An Appeal Courts Function

[scipio_usmc]

An Appeal Court doesn't substitute its own opinion of guilt or evidence in  place of the jury's decision.  Rather a court
tests the sufficiency of a conviction by determining:

1) whether the evidence used at trial was objectively sufficient to support a conviction. 

2) Whether the proper law was applied and if not whether the law applied improperly affected the outcome

3) Whether the defendant received a fair trial

The record is the trial proceedings and the evidence and arguments presented at trial are what an appeal court will review.  The only way new arguments or new evidence can be presented is if the evidence was not available at the time of the trial and could not have been available even with due diligence of the counsel.

In the 2002 Appeal one of the contentions made by the defense was that police concealed the pages that the Bible had been opened to and that had they known the pages they would have argued the contents of the pages constituted a suicide note.  The Appeal Court rejected this holding that the Bible was submitted as a Court Exhibit and thus defense had the ability to examine it and learn the pages if it so chose thus due diligence would have resulted in them finding the blood covered pages.  The Court also held that even if it had been new evidence it still would fail to establish anything.

"For the sake of completeness, we should record that those acting for the appellant had obtained a statement from Dr Gillingham, a theologian, dealing with the theological significance of the pages at which the Bible was open. No application was made to us to admit this evidence. If it had been, we would have rejected the application. Such evidence could have been obtained for the trial because we are satisfied that the relevant passages could have been obtained by those acting for the appellant. In any event we do not consider that this evidence would have been admissible at trial because there was no evidence to suggest that Sheila Caffell had any particular theological training or expertise which would have enabled her to read more into the passages than would have been apparent to the jury from looking at the passages themselves. Further we have no doubt at all that even if admissible, this evidence could not have had any impact on the jury's verdict."

New evidence must be admissible and also sufficient to permit a reasonable juror to vote to acquit in order for it to rise to the level of an appeal being decided in the favor of an appellant.  In order to assess whether evidence would rise to that level the court looks at the evidence used to convict and looks at whether any major planks of the case is objectively undermined to such a degree by the new evidence that a reasonable juror could acquit.

Suppose a defendant contended they had an alibi at the time of the crime because they were shopping but the store denied having any evidence to support it.  After being convicted the store admitted it had video surveillance of the defendant and thus an appeal is filed.  The new evidence is sufficient to result in an acquittal because it proves the defendant was somewhere else at the time of the crime and thus a reasonable juror could acquit based on such evidence. If the jury didn't hear admissible evidence that is so important it could cause a reasonable person to acquit then there is a right to a retrial.  If new evidence is not able to cause a reasonable person to acquit then it doesn't warrant a new trial.  Appeal Court judges make the call of whether evidence objectively has the ability to cause a reasonable person to acquit by deciding whether a major plank of the case is undermined sufficiently.   

[Holly Goodhead]

The appeal courts have many different functions not just upholding or overturning criminal convictions:

https://en.wikipedia.org/wiki/Court_of_Appeal_of_England_and_Wales

http://www.bbc.co.uk/news/health-28016033

https://www.supremecourt.uk/

[Holly Goodhead]

An Appeal Court doesn't substitute its own opinion of guilt or evidence in  place of the jury's decision.  Rather a court
tests the sufficiency of a conviction by determining:

1) whether the evidence used at trial was objectively sufficient to support a conviction. 

2) Whether the proper law was applied and if not whether the law applied improperly affected the outcome

3) Whether the defendant received a fair trial

The record is the trial proceedings and the evidence and arguments presented at trial are what an appeal court will review.  The only way new arguments or new evidence can be presented is if the evidence was not available at the time of the trial and could not have been available even with due diligence of the counsel.

In the 2002 Appeal one of the contentions made by the defense was that police concealed the pages that the Bible had been opened to and that had they known the pages they would have argued the contents of the pages constituted a suicide note.  The Appeal Court rejected this holding that the Bible was submitted as a Court Exhibit and thus defense had the ability to examine it and learn the pages if it so chose thus due diligence would have resulted in them finding the blood covered pages.  The Court also held that even if it had been new evidence it still would fail to establish anything.

"For the sake of completeness, we should record that those acting for the appellant had obtained a statement from Dr Gillingham, a theologian, dealing with the theological significance of the pages at which the Bible was open. No application was made to us to admit this evidence. If it had been, we would have rejected the application. Such evidence could have been obtained for the trial because we are satisfied that the relevant passages could have been obtained by those acting for the appellant. In any event we do not consider that this evidence would have been admissible at trial because there was no evidence to suggest that Sheila Caffell had any particular theological training or expertise which would have enabled her to read more into the passages than would have been apparent to the jury from looking at the passages themselves. Further we have no doubt at all that even if admissible, this evidence could not have had any impact on the jury's verdict."

New evidence must be admissible and also sufficient to permit a reasonable juror to vote to acquit in order for it to rise to the level of an appeal being decided in the favor of an appellant.  In order to assess whether evidence would rise to that level the court looks at the evidence used to convict and looks at whether any major planks of the case is objectively undermined to such a degree by the new evidence that a reasonable juror could acquit.

Suppose a defendant contended they had an alibi at the time of the crime because they were shopping but the store denied having any evidence to support it.  After being convicted the store admitted it had video surveillance of the defendant and thus an appeal is filed.  The new evidence is sufficient to result in an acquittal because it proves the defendant was somewhere else at the time of the crime and thus a reasonable juror could acquit based on such evidence. If the jury didn't hear admissible evidence that is so important it could cause a reasonable person to acquit then there is a right to a retrial.  If new evidence is not able to cause a reasonable person to acquit then it doesn't warrant a new trial.  Appeal Court judges make the call of whether evidence objectively has the ability to cause a reasonable person to acquit by deciding whether a major plank of the case is undermined sufficiently.

The only reason I am suggesting a retrial may be ordered is that JB's defence will argue had the casings been available JB would be in a position to demonstrate his innocence (which may or may not be true).  The technology was only given Home Office approval in the last couple of years of so.  It's the prosecutions responsibility to maintain court exhibits which in 1996 they destroyed. 

I agree the argument re the bible above had no chance of getting anywhere.  There was no evidence SC was religious until maybe the last few weeks of her life.  She never attended bible classes or even church on a regular basis.  CC said SC showed no interest in religion during their marriage.

Perhaps when a case gets to CoA lawyers attempt to throw the kitchen sink at it!  You can see here where the prosecution attempted to advance the theory that SC had been moved post death and pre SoC photo.  However the appeal court judges rejected this as it was potentially evidence that could have been advanced at trial.  So it's sort of use it or lose it!  Ie if it was evidence that could of been advanced at trial use it as there's no second opportunity down the road.

518. To decide whether we considered that the interests of justice required that we heard Mr Ismail's evidence, we first had regard to the evidence that it was said that he could give. From the blood staining he concluded that following the second and fatal shot Sheila Caffell was lying almost flat on her back with her head propped against a bedside cabinet. For her then to slide to be found in the position depicted in the photographs would have required the downward force to be greater than the friction of her body against the floor. In his opinion this simply was not possible as there would only be the weight of the head providing the downward force. Therefore he concluded that an additional force would have been necessary. It could not have come from Sheila Caffell since the second shot would have been instantly fatal and thus she must have been moved by someone else, for example with her legs being pulled. He also considered that the weight and the friction between her skin and her nightdress was likely to have been less than the weight and friction between the nightdress and the carpet. Therefore, he would expect movement of the body within the nightdress rather than the body and clothing sliding together across the carpet. He pointed out that the photographs demonstrated this effect at the back of the nightdress with the nightdress staying rucked up in its original position. However the front of the nightdress had not demonstrated this effect. Accordingly Mr Ismail concluded that the nightdress had been pulled down after Sheila Caffell slid into her final position. Since on the evidence, she was dead by this stage, Mr Ismail concluded that some one else had arranged her nightdress.

519. Having studied with care the statement of Mr Ismail, we concluded that this was expert evidence capable of belief. Indeed if it had been given and if cross-examination had not revealed flaws in it (which we consider unlikely bearing in mind that there was no application to call any expert evidence to contradict it), had we been on a jury hearing such evidence we might well have been very impressed by it. That evidence in itself could have led to a conclusion of guilt quite apart from the many other matters relied upon by the prosecution at trial. However, we were not satisfied that evidence of this kind was not available at the date of trial if the prosecution had sought to explore these matters and more importantly we thought that Mr Turner was right in his submission that it was very difficult to gauge with sufficient certainty the reaction of a jury to it particularly when we could not judge it against all the related evidence in the trial, which we had not heard.

I've previously posted the CCRC criteria for a referral to the CoA:

http://ccrc.wpengine.com/wp-content/uploads/2015/01/ccrc-q-and-a.pdf

"What is “new evidence or legal argument”?
If we are going to be able to refer your case for an appeal we will
usually need to find some importan
t new evidence or legal argument.
Usually this means something that was
not covered at your trial or your
appeal. For example it may be new
evidence not known about at the
time, or something that has chan
ged since your trial, like the
appearance of a new witness or a new development in science. We
can’t usually look again at things that were known about by the jury,
the judge or the magistrates, even
if you believe that they made the
wrong decision in your case. We need to identify something new that
wasn’t raised back then, and that
the judges at your appeal didn’t
know either, that makes your case
look significantly different now."

It's not necessary to take apart all or any of the prosecutions case at trial.  It's simply a case of new evidence (or legal argument) that the jury were unaware of at trial that if known about might have altered the verdict.  As I've said previously no one knows what weight the jury attributed to the various aspects of the prosecutions case or even if there were aspects they dismissed altogether.  Not forgetting two members of the jury rejected all of it or certainly didn't find it compelling enough to return a guilty verdict.

[Holly Goodhead]

When the CCRC refers a case to the CoA the defence is then allowed to put forward other points that alone would be insufficent of a referral to CoA.

[scipio_usmc]

The only reason I am suggesting a retrial may be ordered is that JB's defence will argue had the casings been available JB would be in a position to demonstrate his innocence (which may or may not be true).  The technology was only given Home Office approval in the last couple of years of so.  It's the prosecutions responsibility to maintain court exhibits which in 1996 they destroyed. 

I agree the argument re the bible above had no chance of getting anywhere.  There was no evidence SC was religious until maybe the last few weeks of her life.  She never attended bible classes or even church on a regular basis.  CC said SC showed no interest in religion during their marriage.

Perhaps when a case gets to CoA lawyers attempt to throw the kitchen sink at it!  You can see here where the prosecution attempted to advance the theory that SC had been moved post death and pre SoC photo.  However the appeal court judges rejected this as it was potentially evidence that could have been advanced at trial.  So it's sort of use it or lose it!  Ie if it was evidence that could of been advanced at trial use it as there's no second opportunity down the road.

518. To decide whether we considered that the interests of justice required that we heard Mr Ismail's evidence, we first had regard to the evidence that it was said that he could give. From the blood staining he concluded that following the second and fatal shot Sheila Caffell was lying almost flat on her back with her head propped against a bedside cabinet. For her then to slide to be found in the position depicted in the photographs would have required the downward force to be greater than the friction of her body against the floor. In his opinion this simply was not possible as there would only be the weight of the head providing the downward force. Therefore he concluded that an additional force would have been necessary. It could not have come from Sheila Caffell since the second shot would have been instantly fatal and thus she must have been moved by someone else, for example with her legs being pulled. He also considered that the weight and the friction between her skin and her nightdress was likely to have been less than the weight and friction between the nightdress and the carpet. Therefore, he would expect movement of the body within the nightdress rather than the body and clothing sliding together across the carpet. He pointed out that the photographs demonstrated this effect at the back of the nightdress with the nightdress staying rucked up in its original position. However the front of the nightdress had not demonstrated this effect. Accordingly Mr Ismail concluded that the nightdress had been pulled down after Sheila Caffell slid into her final position. Since on the evidence, she was dead by this stage, Mr Ismail concluded that some one else had arranged her nightdress.

519. Having studied with care the statement of Mr Ismail, we concluded that this was expert evidence capable of belief. Indeed if it had been given and if cross-examination had not revealed flaws in it (which we consider unlikely bearing in mind that there was no application to call any expert evidence to contradict it), had we been on a jury hearing such evidence we might well have been very impressed by it. That evidence in itself could have led to a conclusion of guilt quite apart from the many other matters relied upon by the prosecution at trial. However, we were not satisfied that evidence of this kind was not available at the date of trial if the prosecution had sought to explore these matters and more importantly we thought that Mr Turner was right in his submission that it was very difficult to gauge with sufficient certainty the reaction of a jury to it particularly when we could not judge it against all the related evidence in the trial, which we had not heard.

I've previously posted the CCRC criteria for a referral to the CoA:

http://ccrc.wpengine.com/wp-content/uploads/2015/01/ccrc-q-and-a.pdf

"What is “new evidence or legal argument”?
If we are going to be able to refer your case for an appeal we will
usually need to find some importan
t new evidence or legal argument.
Usually this means something that was
not covered at your trial or your
appeal. For example it may be new
evidence not known about at the
time, or something that has chan
ged since your trial, like the
appearance of a new witness or a new development in science. We
can’t usually look again at things that were known about by the jury,
the judge or the magistrates, even
if you believe that they made the
wrong decision in your case. We need to identify something new that
wasn’t raised back then, and that
the judges at your appeal didn’t
know either, that makes your case
look significantly different now."

It's not necessary to take apart all or any of the prosecutions case at trial.  It's simply a case of new evidence (or legal argument) that the jury were unaware of at trial that if known about might have altered the verdict.  As I've said previously no one knows what weight the jury attributed to the various aspects of the prosecutions case or even if there were aspects they dismissed altogether.  Not forgetting two members of the jury rejected all of it or certainly didn't find it compelling enough to return a guilty verdict.

You are conflating two distinct issues: 1) whether evidence is admissible before the Court of Appeal; 2) whether the evidence is so important that a jury needs to have heard it and thus a new trial is warranted (or is so powerful that there is no need for a new trial even because it establishes as a matter of law the innocence of the person)

In general the only evidence an appeal court can weigh is the evidence presented at trial. By special rule they can consider new evidence that was not available at the time of the trial with the exercise of due diligence.  Establishing evidence as new is a threshold requirement to getting the COA to consider evidence other than what was presented at trial.

If the COA decides that evidence does qualify as new and thus is able to be considered that doesn't mean it will warrant a new trial.  In  order to warrant a new trial the COA must be convinced that the new evidence is so significant that it would permit a reasonable juror to acquit.  Only if the evidence permits a reasonable juror to acquit is there a need to have a new trial with such additional evidence presented.   The way they assess the significance of the new evidence is by looking at the evidence and theory presented used to convict and see whether the new evidence seriously undermines it. 

In a case where someone is convicted on the basis of 1) a witness saying the defendant committed murder and staged the scene to make it appear someone else did it then committed suicide and 2) evidence that establishes the victim can't have shot herself thus was murdered and it was staged a suicide; evidence of the victim's prints on casings means nothing because it doesn't in any way undermine the claims of the witness or undermine the evidence that says the victim can't have killed herself.  Thus the COA would determine the evidence is insufficient to establish innocence as a matter of law and also insufficient to cause a reasonable jury to acquit thus no need to hold a new trial where a jury considers the new evidence.

If you have a case where 2 people each blame the other and that is the only evidence and one is tried and convicted but then evidence is turned up proving the fingerprints of the non-convicted person was on the casings but not the person convicted then that would be in that case new evidence sufficient to change the mind of a jury because all the jury had to go on was the word of one against the word of the other and the fingerprints could help them decide which one was telling the truth.   The individual circumstances of a case determine whether new evidence is significant enough to warrant vacating a conviction.  When a witness who gave testimony that could have influenced a reasonable juror to convict, recants that is something new that warrants a new trial because the jury should not have heard such testimony. It has to be a change about some significant issue to warrant  a new trial.  For instance suppose the witness testified at trial the defendant left his house at 8 but says he subsequently found evidence proving he left at 9.  If the person can't have committed the crime if he left at 9 then this is significant and could have caused the jury to acquit.  If the defendant still could have committed the crime if he left at 9 then the change in testimony is of no legal consequence. You have to look at the impact it has on the case and whether the evidence could cause a reasonable jury to acquit. Regardless of whether sheila's prints were on the casings she can't have killed herself and likewise such doesn't impact Julie's testimony. That is how the COA would view it if the casings were tested and Sheila's prints found.  They would say her prints could have been planted and also she could have innocently handled the ammunition and that neither makes it possible for her to have killed herself nor undermines the evidence establishing she didn't load or fire a weapon.

It is not some accident the defense keeps trying to think up ways to go after Julie and the moderator.  The only way to get a new trial is by by finding a way to impeach Julie's testimony or impeach the blood evidence.  Nothing else is significant enough to undermine the conviction. They went after both in 1989, in 2002 and in the most recent appeal attempt.  They threw in other red herring crap as well in sheer desperation but it of course failed and never had any chance of success so was a waste of time.  Weak arguments just take time away from the main considerations they never help.

     

[Holly Goodhead]

You are conflating two distinct issues: 1) whether evidence is admissible before the Court of Appeal; 2) whether the evidence is so important that a jury needs to have heard it and thus a new trial is warranted (or is so powerful that there is no need for a new trial even because it establishes as a matter of law the innocence of the person)

In general the only evidence an appeal court can weigh is the evidence presented at trial. By special rule they can consider new evidence that was not available at the time of the trial with the exercise of due diligence.  Establishing evidence as new is a threshold requirement to getting the COA to consider evidence other than what was presented at trial.

If the COA decides that evidence does qualify as new and thus is able to be considered that doesn't mean it will warrant a new trial.  In  order to warrant a new trial the COA must be convinced that the new evidence is so significant that it would permit a reasonable juror to acquit.  Only if the evidence permits a reasonable juror to acquit is there a need to have a new trial with such additional evidence presented.   The way they assess the significance of the new evidence is by looking at the evidence and theory presented used to convict and see whether the new evidence seriously undermines it. 

In a case where someone is convicted on the basis of 1) a witness saying the defendant committed murder and staged the scene to make it appear someone else did it then committed suicide and 2) evidence that establishes the victim can't have shot herself thus was murdered and it was staged a suicide; evidence of the victim's prints on casings means nothing because it doesn't in any way undermine the claims of the witness or undermine the evidence that says the victim can't have killed herself.  Thus the COA would determine the evidence is insufficient to establish innocence as a matter of law and also insufficient to cause a reasonable jury to acquit thus no need to hold a new trial where a jury considers the new evidence.

If you have a case where 2 people each blame the other and that is the only evidence and one is tried and convicted but then evidence is turned up proving the fingerprints of the non-convicted person was on the casings but not the person convicted then that would be in that case new evidence sufficient to change the mind of a jury because all the jury had to go on was the word of one against the word of the other and the fingerprints could help them decide which one was telling the truth.   The individual circumstances of a case determine whether new evidence is significant enough to warrant vacating a conviction.  When a witness who gave testimony that could have influenced a reasonable juror to convict, recants that is something new that warrants a new trial because the jury should not have heard such testimony. It has to be a change about some significant issue to warrant  a new trial.  For instance suppose the witness testified at trial the defendant left his house at 8 but says he subsequently found evidence proving he left at 9.  If the person can't have committed the crime if he left at 9 then this is significant and could have caused the jury to acquit.  If the defendant still could have committed the crime if he left at 9 then the change in testimony is of no legal consequence. You have to look at the impact it has on the case and whether the evidence could cause a reasonable jury to acquit. Regardless of whether sheila's prints were on the casings she can't have killed herself and likewise such doesn't impact Julie's testimony. That is how the COA would view it if the casings were tested and Sheila's prints found.  They would say her prints could have been planted and also she could have innocently handled the ammunition and that neither makes it possible for her to have killed herself nor undermines the evidence establishing she didn't load or fire a weapon.

It is not some accident the defense keeps trying to think up ways to go after Julie and the moderator.  The only way to get a new trial is by by finding a way to impeach Julie's testimony or impeach the blood evidence.  Nothing else is significant enough to undermine the conviction. They went after both in 1989, in 2002 and in the most recent appeal attempt.  They threw in other red herring crap as well in sheer desperation but it of course failed and never had any chance of success so was a waste of time.  Weak arguments just take time away from the main considerations they never help.

Lets take for example the casings.  At the time of the investigation/trial it was virtually impossible to obtain fingerprints from casings.  Roll on 2014:

"The corrosion and electrochromic polymer technologies have been incorporated in the 2014 UK Home Office Fingermark Visualisation Manual, making them available to police forces across the UK".

http://www2.le.ac.uk/research/challenges/safe/fingerprint

It's unclear if the perp loaded all the cartridges into the magazine shortly before the murders or whether the magazine already contained some cartridges.  However it's certain the perp must have loaded  at least 14 further cartridges (assuming the mag was already full 10 and 1 in the breach).  The new technology above is capable of yielding fingerprints.  I dont think any reasonable person would suggest that JB somehow coerced SC into handling 14 cartridges or she just happened to innocently handle 14 of her own accord.   That's too far fetched for most including judge and jury.  Had the casings existed they would have shown one of the following outcomes:

- Too many fingerprints for any conclusions eg from previous reloads plus police officers and lab staff not handling correctly.

- No prints -  guilty JB wore gloves

- JB's fingerprints - guilty

- SC's fingerprints - responsible

If the latter JB would submit an application to CCRC and its almost certain they would refer to CoA who undoubtedly would quash the conviction. 

The above is a perfect example of the type of 'new evidence' the CCRC is looking for to enable a case to be referred to CoA:

"We cannot perform a ‘re-run’ of a trial just because the evidence of the defence was not accepted by the jury and the evidence of the prosecution was. We have to be able to present to the appeal court a new piece of evidence or new legal argument, not identified at the time of the trial, that might have changed the whole outcome of the trial if the jury had been given a chance to consider it."

http://www.ccrc.gov.uk/about-us/what-we-do/

It is absoultely not necessary to counter JM's testimony or the silencer/blood evidence or any aspect of the prosecutions case.

If you're unable or unwilling to accept the CCRC's criteria then that's up to you.

However we now know, based on Trudi's vlog of yesterday, that all trial exhibits other than the rifle and silencer were destroyed in 1996 thus potentially depriving JB of the opportunity for a CoA referral.  This  is despite the CPS making it clear it's the prosecutions case to maintain trial exhibits post trial:

General Guidance: After Production In Court

Once an exhibit is produced in court, or treated as being produced in accordance with section 5B(5) Magistrates Courts Act 1980 (Archbold 10-16), the court has a responsibility to preserve or retain it. Normally the court entrusts the exhibits to the prosecution, usually the police.

The court can impose restrictions on the prosecution. Where it imposes no restrictions, it is for the prosecution to deal with the exhibits in whatever way appears best for the purposes of justice. If the prosecution has doubts as to how to deal with an exhibit it may, but is not obliged to, apply to the court for directions (R v Stipendiary Magistrates at Lambeth and Another, ex p McComb 1983) All ER 321).

http://www.cps.gov.uk/legal/d_to_g/exhibits/#after

As I pointed out previously the CoA took a dim view that exhibits had been destroyed at JB's last appeal.  They were able to make concessions so as not to disadvantage justice/JB but with the casings this isn't possible unless they assume that SC's fingerprints were on the casings and I think most would agree that would be a step too far.  So what's the alternative? 

165. In February 1996, the Essex police destroyed many of the original trial exhibits without reference to the appellant or his legal representatives. It might have been necessary for this court to examine the circumstances in which this had happened. The police officer responsible contended that it was done without his appreciating that there was any on-going legal process that might require the further use of the exhibits. However, during argument it was agreed that the court could protect the appellant's position by making assumptions in his favour and that, therefore, it was unnecessary to resolve precisely how this came about.

http://www.homepage-link.to/justice/judgements/Bamber/index.html

Ordinarily a retrial would not come into the equation in a case like this.  The route would be CCRC - COA - uphold or overturn.  But JB will argue that he has been unable to take that route as the police destroyed all exhibits.

[scipio_usmc]

Lets take for example the casings.  At the time of the investigation/trial it was virtually impossible to obtain fingerprints from casings.  Roll on 2014:

"The corrosion and electrochromic polymer technologies have been incorporated in the 2014 UK Home Office Fingermark Visualisation Manual, making them available to police forces across the UK".

http://www2.le.ac.uk/research/challenges/safe/fingerprint

It's unclear if the perp loaded all the cartridges into the magazine shortly before the murders or whether the magazine already contained some cartridges.  However it's certain the perp must have loaded  at least 14 further cartridges (assuming the mag was already full 10 and 1 in the breach).  The new technology above is capable of yielding fingerprints.  I dont think any reasonable person would suggest that JB somehow coerced SC into handling 14 cartridges or she just happened to innocently handle 14 of her own accord.   That's too far fetched for most including judge and jury.  Had the casings existed they would have shown one of the following outcomes:

- Too many fingerprints for any conclusions eg from previous reloads plus police officers and lab staff not handling correctly.

- No prints -  guilty JB wore gloves

- JB's fingerprints - guilty

- SC's fingerprints - responsible

If the latter JB would submit an application to CCRC and its almost certain they would refer to CoA who undoubtedly would quash the conviction. 

The above is a perfect example of the type of 'new evidence' the CCRC is looking for to enable a case to be referred to CoA:

"We cannot perform a ‘re-run’ of a trial just because the evidence of the defence was not accepted by the jury and the evidence of the prosecution was. We have to be able to present to the appeal court a new piece of evidence or new legal argument, not identified at the time of the trial, that might have changed the whole outcome of the trial if the jury had been given a chance to consider it."

http://www.ccrc.gov.uk/about-us/what-we-do/

It is absoultely not necessary to counter JM's testimony or the silencer/blood evidence or any aspect of the prosecutions case.

If you're unable or unwilling to accept the CCRC's criteria then that's up to you.

However we now know, based on Trudi's vlog of yesterday, that all trial exhibits other than the rifle and silencer were destroyed in 1996 thus potentially depriving JB of the opportunity for a CoA referral.  This  is despite the CPS making it clear it's the prosecutions case to maintain trial exhibits post trial:

General Guidance: After Production In Court

Once an exhibit is produced in court, or treated as being produced in accordance with section 5B(5) Magistrates Courts Act 1980 (Archbold 10-16), the court has a responsibility to preserve or retain it. Normally the court entrusts the exhibits to the prosecution, usually the police.

The court can impose restrictions on the prosecution. Where it imposes no restrictions, it is for the prosecution to deal with the exhibits in whatever way appears best for the purposes of justice. If the prosecution has doubts as to how to deal with an exhibit it may, but is not obliged to, apply to the court for directions (R v Stipendiary Magistrates at Lambeth and Another, ex p McComb 1983) All ER 321).

http://www.cps.gov.uk/legal/d_to_g/exhibits/#after

As I pointed out previously the CoA took a dim view that exhibits had been destroyed at JB's last appeal.  They were able to make concessions so as not to disadvantage justice/JB but with the casings this isn't possible unless they assume that SC's fingerprints were on the casings and I think most would agree that would be a step too far.  So what's the alternative? 

165. In February 1996, the Essex police destroyed many of the original trial exhibits without reference to the appellant or his legal representatives. It might have been necessary for this court to examine the circumstances in which this had happened. The police officer responsible contended that it was done without his appreciating that there was any on-going legal process that might require the further use of the exhibits. However, during argument it was agreed that the court could protect the appellant's position by making assumptions in his favour and that, therefore, it was unnecessary to resolve precisely how this came about.

http://www.homepage-link.to/justice/judgements/Bamber/index.html

Ordinarily a retrial would not come into the equation in a case like this.  The route would be CCRC - COA - uphold or overturn.  But JB will argue that he has been unable to take that route as the police destroyed all exhibits.

You keep incorrectly assuming the Court of Appeal would view Sheila's fingerprints on the casings as warranting a reversal.  I already explained why they would not view such as being able to cause a reasonable jury to acquit and you have failed to address that fundamental flaw in your claims.

Moreover you grossly overstate their concern about evidence being destroyed.  All they said in 2002 was that they ordinarily would have to take a look into why the blood samples were destroyed but had no need to do so since they were able to get DNA via a different route.

Identify a case where the COA quashed a conviction because evidence was not retained to be DNA tested and DNA testing could theoretically clear the defendant.  It hasn't happened.  The police didn't know that the defense was communicating with the Home Office let alone that such sporadic written correspondence constituted the appeal still being alive.  There is nothing to latch onto to suggest they were destroying evidence to conceal that Jeremy was innocent.

Once again finding her prints on the casings would not be viewed as rebutting any of the prosecution contentions int he case that caused the jury to convict. It doesn't prove she loaded a gun, or fired a gun let alone refute the evidence that proves she could have killed herself.  Lead deposits left on one's fingers proves one loaded a gun and GSR that one fired a gun. She lacked both and worse could not have killed herself someone had to have killed her. The judges would view her prints on the casings as being as meaningless as the DNA evidence in evaluating whether the evidence warrants vacating the verdict.

 

[sika]

We can all bang on about this for as long as we like.  The CCRC made it perfectly clear, the last time they poured over this case.  They announced,  'this is the end of the road for Bamber'.   

The CCRC, in Bambers lifetime, won't consider this case again, never mind a court of appeal!

[Holly Goodhead]

We can all bang on about this for as long as we like.  The CCRC made it perfectly clear, the last time they poured over this case.  They announced,  'this is the end of the road for Bamber'.   

The CCRC, in Bambers lifetime, won't consider this case again, never mind a court of appeal!

There's no limit to the number of applications a convict can submit to CCRC or CoA hearings.  And given the fact many high profile miscarriages of justice have a long history of failed appeals that can only be a good thing!

http://miscarriageofjustice.co/index.php?topic=3394.msg129016#msg129016

[Holly Goodhead]

You keep incorrectly assuming the Court of Appeal would view Sheila's fingerprints on the casings as warranting a reversal.  I already explained why they would not view such as being able to cause a reasonable jury to acquit and you have failed to address that fundamental flaw in your claims.

Moreover you grossly overstate their concern about evidence being destroyed.  All they said in 2002 was that they ordinarily would have to take a look into why the blood samples were destroyed but had no need to do so since they were able to get DNA via a different route.

Identify a case where the COA quashed a conviction because evidence was not retained to be DNA tested and DNA testing could theoretically clear the defendant.  It hasn't happened.  The police didn't know that the defense was communicating with the Home Office let alone that such sporadic written correspondence constituted the appeal still being alive.  There is nothing to latch onto to suggest they were destroying evidence to conceal that Jeremy was innocent.

Once again finding her prints on the casings would not be viewed as rebutting any of the prosecution contentions int he case that caused the jury to convict. It doesn't prove she loaded a gun, or fired a gun let alone refute the evidence that proves she could have killed herself.  Lead deposits left on one's fingers proves one loaded a gun and GSR that one fired a gun. She lacked both and worse could not have killed herself someone had to have killed her. The judges would view her prints on the casings as being as meaningless as the DNA evidence in evaluating whether the evidence warrants vacating the verdict.

I disagree entirely.  Perhaps the system is different in the US but the UK system simply requires some fresh evidence that had the jury known about at trial might have caused them to return a different verdict.  It's absolutely not necessary to take apart all or any of the prosecutions case at trial.  Why would SC's fingerprints be on the casings if she hadn't loaded them into the mag?

Fingerprints are stronger evidence than DNA.  Fingerprints alone are enough for a conviction whereas DNA requires further supporting evidence.   

[puglove]

We can all bang on about this for as long as we like.  The CCRC made it perfectly clear, the last time they poured over this case.  They announced,  'this is the end of the road for Bamber'.   

The CCRC, in Bambers lifetime, won't consider this case again, never mind a court of appeal!

I think you're right, sika. The CCRC have covered all possible arses. They've actually given Bamber more leeway than he deserves, just to make sure. It's possible that the information that supporters insist is hidden tells a different story and compounds his guilt.

[scipio_usmc]

I disagree entirely.  Perhaps the system is different in the US but the UK system simply requires some fresh evidence that had the jury known about at trial might have caused them to return a different verdict.  It's absolutely not necessary to take apart all or any of the prosecutions case at trial.  Why would SC's fingerprints be on the casings if she hadn't loaded them into the mag?

Fingerprints are stronger evidence than DNA.  Fingerprints alone are enough for a conviction whereas DNA requires further supporting evidence.

All fingerprints can prove is that she handled ammunition at some point in time not that she loaded it into the weapon let alone fired the weapon.  The conviction was based upon evidence that she did not load the gun did not fire the gun did not beat Nevill and could not have killed herself as well as Julie's testimony that Jeremy did it and framed Sheila. The main evidence presented at trial was:

1) that if she loaded the ammunition in the magazine she would have had visible deposit on her hands and elevated lead levels would have been detected
2) that if she fired the weapon GSR would have been found
3) that if she beat Nevill his spatter would have gotten on her
4) that it was not possible for her to have killed herself
5) that prior to the murders Jeremy plotted to kill them and to frame Sheila and admitted afterwards to Julie that he was responsible

While you choose to believe that fingerprints on the casings is a game changer and refutes the above the reality is that it does not and the Court of Appeals would not find it a basis upon which to vacate the conviction.

The only major difference between the US and UK on appeals based on new evidence is procedural.  In the US there is no body like the CCRC to go through an appeal is filed directly with a court. In state actions it will usually be filed with the original trial court subject to appeal to an intermediate level appeal court and then the highest state court. When such is exhausted an action for Habeas corpus can be filed in the federal courts as well depending on the facts.  In a federal case it will go to an appeals court and can be appealed to the US Supreme Court. The US Supreme Court and highest court in each state don't have to hear such appeals they decide whether to hear the appeal or simply let the lower decision stand without hearing it.  So in the US there are much more layers of court action and more opportunities to try appealing.  This is why cases last so long they can bounce around among appeals courts for a long time. A favorite argument for a new trial is saying the trial counsel was ineffective. The theory is that it was not a fair trial because the trial counsel did such a poor job below the acceptable standards.  That is much more commonly used to try to secure an appeal than other grounds.

In both the US and UK if evidence got before the jury that should not have either because it was not legally admissible and the judge screwed up in admitting it or because the person admits they lied the conviction will be vacated ONLY IF the court decides that a reasonable person could have convicted on the basis of such evidence that should not have been before the jury.  If they could not have convicted on such basis it is harmless error. Sometimes it is hard assess whether testimony is so damning as to warrant a reversal.  Here it is not, the judge expressly told the jury they could convict solely on her testimony if they believed it.  It's not a close call quite clearly if she lied that warrants a reversal even though the other evidence is still enough to convict because they might have convicted in part or whole on the basis of her explosive testimony.

In both the US and UK new evidence has to be of such a nature that it results in proving innocence or at the very least the new evidence must be sufficient that a reasonable juror could acquit on the basis of such evidence.  In order for evidence to have the ability to cause a reasonable person to acquit it must undermine the evidence that formed the basis of the conviction.

Evidence Sheila touched the ammunition at some point in the past fails to establish she loaded the weapon, fired the weapon and could have killed herself.  It doesn't undermine any of the following prosecution arguments:

1) that if she loaded the ammunition in the magazine she would have had visible deposit on her hands and elevated lead levels would have been detected
2) that if she fired the weapon GSR would have been found
3) that if she beat Nevill his spatter would have gotten on her
4) that it was not possible for her to have killed herself
5) that prior to the murders Jeremy plotted to kill them and to frame Sheila and admitted afterwards to Julie that he was responsible

Evidence has to undermine several of these not just 1 in order to rise to a level sufficient to support an acquittal and fingerprints on casings would not even undermine 1 of them. 

The only ones capable individually of warranting vacating the conviction would be to establish Julie lied (for the reasons mentioned above) or evidence that she could not have killed herself because each of these individually were so significant in terms of the overall case.

[scipio_usmc]

There's no limit to the number of applications a convict can submit to CCRC or CoA hearings.  And given the fact many high profile miscarriages of justice have a long history of failed appeals that can only be a good thing!

http://miscarriageofjustice.co/index.php?topic=3394.msg129016#msg129016

The CCRC is different from a court because parties bring evidence before a court yet the CCRC has a quasi investigative function.  They said they were closing the matter because they saw no possibility of any line of argument that could be further investigated that would be capable of warranting overturning his conviction.  it would take something Earth shattering like Julie recanting or concrete evidence of planting of evidence to get them to do anything for Jeremy. 

You can disagree with them all you like but the problem is that they make the decision and you are stuck with their view of things.

     

[Holly Goodhead]

The CCRC is different from a court because parties bring evidence before a court yet the CCRC has a quasi investigative function.  They said they were closing the matter because they saw no possibility of any line of argument that could be further investigated that would be capable of warranting overturning his conviction.  it would take something Earth shattering like Julie recanting or concrete evidence of planting of evidence to get them to do anything for Jeremy. 

You can disagree with them all you like but the problem is that they make the decision and you are stuck with their view of things.   

I think you  might have misunderstood.  The CCRC said they were closing the last application as in the opinion of the CCRC it didn't contain anything capable of a referral to CoA.  If you recall the CCRC gave a provisional decision and allowed JB further time to carry out additional tests. I think JB had a couple of time extensions.  in the end the CCRC gave JB a final deadline.  At this point the CCRC said nothing was forthcoming and they closed the application.  JB is as entitled as any prisoner is to submit a further application to CCRC.  Every application is treated on its own merit.

Prisoners are only allowed to submit an application to the CCRC after a failed appeal at CoA other than in exceptional circumstances. 

[sika]

The CCRC is different from a court because parties bring evidence before a court yet the CCRC has a quasi investigative function.  They said they were closing the matter because they saw no possibility of any line of argument that could be further investigated that would be capable of warranting overturning his conviction.  it would take something Earth shattering like Julie recanting or concrete evidence of planting of evidence to get them to do anything for Jeremy. 

You can disagree with them all you like but the problem is that they make the decision and you are stuck with their view of things.

     

That is spot on.  They bent over backwards to accommodate Bamber, giving him ample time and opportunity to present his case.