Here we go David. I've put a question for you at the bottom.
Ground 2 – disturbance of the crime scene 233. The appellant contends that officers of the Tactical Firearms Group ("TFG") upon entering the premises themselves knocked over chairs, stools, and a sugar bowl but falsely contended at trial that such disturbance preceded their entry. This is relevant to the suggestion that there was a violent struggle between Mr Bamber and his killer before he was killed and the prosecution contention that Sheila Caffell would have been incapable of overpowering her father. Further if there was no violent struggle, the absence of any indication of such on Sheila Caffell was not of significance.
234. Additionally the appellant contends that the Crown failed to disclose a police action record, Action 94 in which DI Cook was asked to examine for sugar the bag in which the body of Sheila Caffell had been transported from the farm to the mortuary. He reported back to DCI Wright in the following terms:
"There was no sugar on the floor it was all confined to an area under the table and if it was, officers would have been walking in the same
Sugar was later found because the table was moved and sugar swept around. No sugar in body bag"
235. The complaint of non disclosure in relation to Action 94 is that whilst, as was the practice in 1986, no general disclosure took place in relation to any action or message, this particular action was clearly of importance to the defence and thus the prosecution were under a positive duty to bring it to the attention of the defence and failed so to do.
236. The assertion in the first part of this ground namely that officers knocked over chairs, stools and a sugar bowl is based in part upon Action 94 but also upon three other documents. Firstly the report of the Essex Review in which the reviewing officer, Detective Chief Superintendent Dickinson, wrote:
"The kitchen was in some disorder. A number of chairs had been knocked to the ground, the table had been pushed forward causing some items of crockery to fall to the floor, including a sugar basin and two stools had been knocked over. It is now believed the stools were possibly knocked over by members of the TFG whilst making their way through the kitchen"
237. The Review does not disclose the source of such belief and accordingly affords no evidential support for the appellant's contention.
238. We have looked at a number of statements taken recently by the prosecution to check that they do not reveal any possible source of this hearsay. In a statement dated 9 May 2000, DI Cook stated that any information he had relating to the subject was "sort of hearsay as far as I was concerned". He said he could not categorically recall any of the officers saying that they knocked the chairs over or the stools or whatever they are, "but certainly I can't recall specifically saying the sugar. I cannot recall who the third party was who may have told me. I don't believe it was the firearms team". We have been supplied with statements from every member of the firearms team all of whom positively assert that save for moving two stools they moved nothing and disturbed nothing upon entering the kitchen.
239. We have considered with great care the statements of PC Collins and PC Delgado who must have been the two officers who entered first at about 7.30 a.m. on the 7 August. PC Collins in a statement of the same date describes forcing an entry into the house and seeing the body of a male person positioned over an upturned chair, which balanced against a cupboard. Having described that person and concluding that he was dead he said:
"On looking around the kitchen I saw upturned chairs and stools and broken crockery on the floor, and on the floor on the far side of the room there were small spots of what appeared to be blood. It appeared that a violent struggle had taken place within this room".
PC Delgado made a similar statement. 240. Mr Turner draws our attention to the fact that on the 19 September 1985 all the police officers who attended at the scene were summoned to attend at Witham Police Station for a round the table conference with Investigating Officers. On the following day, 20 September 1985, PC Delgado made a further statement in which he said:
"in the kitchen by the doorway to the hall were two stools which were laying down on the floor blocking a covering position into the hall, these stools were moved to near the kitchen table. In the hallway the door to the cellar was forced open to allow access, it appeared the door was stuck with old paint and had not been opened for some time. PC Collins attempted to go down the cellar stairs, which gave way beneath him. A window in the dining room was unlocked and opened to allow an escape route if needed, this window was later shut and secured. The door to the bedroom opposite the children's room was locked and this was forced to allow access".
241. On 30 September PC Collins made a second statement in which he said:
"I moved two kitchen stools which were laying down near to the hallway entrance. I moved these stools about 2 or 3 feet but left them in a similar position as they were found. I moved them to enable me to carry on my search of the house as safe as possible. In the hallway a cellar door was forced open, the door appeared to have not been open for a long time. I opened a window in the dining room which I first had to unlock by moving a small catch to allow an escape route for an officer I had left to cover the stairway from the doorway of the dining room. To my knowledge nothing else was moved or disturbed".
242. We take the statements of PC Collins and PC Delgado as clear statements that apart from moving two stools they moved no other furniture. The statements from some 10 other TFG officers indicate that there was no other movement of furniture and certainly no spillage of sugar attributable to any officer. On the other hand the crime scene was disturbed in the sense that the door to the cellar was forced, the cellar stairs gave way, the dining room window was unlocked and opened and a bedroom door was forced.
243. The second document advanced by the appellant in support of the proposition that furniture was moved and sugar was spilled by the officers is the City of London Police Review of 1991 which makes reference to a statement taken from DI Cook in which he stated:
"I later learned that the chairs and brown sugar had been knocked over by the firearms unit when they rushed about the house looking for Sheila".
This again is necessarily hearsay evidence or hearsay upon hearsay. 244. A statement was made to the same inquiry by Ann Eaton in these terms:
"I think it was then I asked if Sheila had sugar on her feet, this was based upon my observation of sugar grains being all over the floor of the kitchen but I later found out that it had been knocked over the floor by a police officer. When it was I was not told, but it was apparently done when they were clearing the house up. If that was the case they must have really knocked it over as it was all over the kitchen".
245. This statement is also based upon hearsay and is at odds with the sworn evidence given at trial. It cannot possibly be right because there is clear photographic evidence of the sugar bowl and the sugar on the floor on the morning of 7 August with Mr Bamber's body still in place when no clearing up of the house had then taken place.
246. Finally it is said that Detective Superintendent Ainsley's interim report of 23 September 1985 and his final report of 7 November 1985 both contain the following paragraph:
"Whilst it is fair to say that the Tactical Firearms Group when searching the premises take the utmost care not to disturb the scene, there is of necessity a certain amount of disturbance and as will be seen from their statements, this was no exception"
247. It seems to us that there is nothing in this passage, which is inconsistent with the "disturbance" identified by PC Collins and PC Delgado in their second statements (namely forcing doors and opening windows). It may well be significant that the round table meeting of the TFG officers and others took place on 19 September. PC Delgado made his statement the following day and the interim report was written three days after that.
248. Application was made pursuant to s.23 of the Criminal Appeal Act 1968 by Mr Turner inviting the Court to call Mr Cook so that he might cross-examine him. We refused that application. Mr. Cook arrived at the farmhouse at 9.20 a.m., one hour and fifty minutes after the entry by the TFG officers. He had gone there accompanied by a photographer and he had arranged for the photographer to photograph the scene beginning with the kitchen at approximately 10.00 a.m. It necessarily follows that any attempt at giving evidence about disturbance of the scene could not result from his own observations since it is not suggested that he observed any disturbance as it took place. The nearest Mr Turner came to suggesting a basis for Mr Cook to give evidence about these matters was that the photographs did not realistically or accurately depict the state of the kitchen. We do not accept that proposition. The photographs are of excellent quality and accurately depict the scene of the crime. DI Cook could not give any admissible additional evidence supporting the appellant's proposition that the TFG knocked over chairs, stools and a sugar bowl.
249. We have considered the potential impact that Action 94 might have had on the jury. We think it is wholly unrealistic to suggest that the jury might have been persuaded by it that there had not been a violent struggle in the kitchen. Even if one discounts the evidence of the overturned stools and chairs and the broken sugar bowl, there was sufficient other evidence to suggest a violent struggle. Mr Bamber's body lay across an overturned chair that can have had nothing to do with the actions of the TFG, the light fitting was broken, there were the injuries apart from the shot wounds to Mr Bamber, there was the piece broken off the rifle stock, there were score marks under the mantelpiece where it had been struck by the sound moderator attached to the rifle, and there was Mr Bamber's watch lying damaged under a rug on the other side of the room.
250. DI Cook's comments on the Action 94 are unsatisfactory in themselves. The words "There was no sugar on the floor it was all confined to an area under the table and if it was, officers would have been walking in the same. Sugar was later found because the table was moved and sugar swept around" are in themselves potentially contradictory depending upon how they are read. It should not be forgotten that DI Cook was one of the officers who had supported the murder/suicide conclusion and that at the date of Action 94, different officers had taken over responsibility for the inquiry and concluded that the original investigation had missed significant evidence. In such circumstances DI Cook had every motive to seek to support his original view by reading into matters that had been reported to him more than was the reality of the situation.
251. We find that there is nothing in the hearsay comments recorded in the Action 94 that even if they could have been introduced into evidence could realistically have been thought to lead to a conclusion other than that there had been a violent struggle in the kitchen.
252. Looking at the Ainsley Reports, we consider that the comment "there is of necessity a certain amount of disturbance" was entirely in accord with the evidence of the TFG officers. A sledgehammer was taken to a door, a window opened, a door unlocked, a chair moved, stools moved, a cellar door forced, a window unlocked and the door opposite the children's room forced. We reject the submission that Ainsley's reports in any way support the appellant's submission that the firearms officers "knocked over the chairs, stools, and a sugar bowl".
253. As to the Essex Police Report, we can find no evidential support for the hearsay suggestion that "It is now believed the stools were possibly knocked over by members of the TFG". By the time of that inquiry, there must have been a number of officers who had every motive to down play the failure to spot important factors in the early stage of the inquiry and the situation was such that just such a proposition might very well be floated. However there is nothing to cause us to believe that it originated from anyone who could give first hand information about the matter.
254. As already explained Ann Eaton's recollection years after the event of what she had been told cannot be factually right whether or not she correctly recalled that which she was told.
255. We find there to be no substance whatsoever in this ground of appeal. The firearms officers have been consistent throughout. Mr Turner indicated that he would not wish to cross-examine them in the event of the Crown successfully applying to call them.
256. The issue of the absence of sugar on Sheila's feet was of minimal significance in the trial. In the summing up all the references to Sheila Caffell's feet were to the absence of blood rather than sugar. In the prosecution case summary it was said:
"The only blood to be found on the body was that of Sheila Caffell nor was there any debris or blood on the soles of her feet" and in their closing speech: "Compare Sheila to June. June is covered in blood, blood on her feet".
257. The defence faced the task of explaining the absence of blood on Sheila's feet with the implausible suggestion that she may have worn socks or washed her feet before committing suicide. In the circumstances the absence of sugar on Sheila's feet added nothing to the prosecution case.
258. As the Judge said at p.84 F in the passage to which we have already referred:
"there were no blood marks on the soles of her feet. Well, you may think that is a matter of considerable importance, because if she had been involved in the fighting with her father as well as killing her mother, surely it is inconceivable that her feet would have been clean"
259. There is simply no evidence available to contradict the evidence of the firearms officers that save for moving one chair and two stools there was no disturbance of furniture and the sugar bowl was not disturbed by them. Their recent statements indicate a search effected slowly and carefully with the minimum of noise and carried out in relative silence with officers believing that Sheila Caffell may still be alive with a gun in her hand. They were trained to create as little disturbance as possible and not to move or touch anything unless it be for reasons of safety or self-preservation. The situation in which they found themselves with the possibility of an armed person somewhere in the premises meant it was both necessary and sensible to go into the farm house with the minimum of noise and disturbance until they were satisfied that an armed person would not suddenly emerge and confront them.
260. We are sure that none of the matters placed before us could possibly have resulted in the jury reaching a different conclusion on any material aspect of the case. This ground of appeal fails there being no evidence to support it.
Question for David:
As evidenced above the appeal point is largely relying on hearsay evidence from DI Cook. Whereas A/PS Woodcock's WS is direct evidence. Why did MT QC overlook this?
You can't afford to be sentimental on the basis he invited you into his chambers for coffee.
