93 Problems

Judge Maurice Drake's summing up, The'Facts' and the Bridgewater Three

Fact: the truth about events as opposed to interpretation.

In the summing up of Jeremy Bamber’s 1986 trial on the 24th October, Justice Maurice Drake uses the word ‘fact’, or ‘facts’ 93 times. In some sentences it is used up to three times. In the context in which he uses the word, it’s not a stretch to see how the jury were completely influenced by his summing up,

One former member of the investigation team who does not wish to be named asked the jury foreman afterwards if there had been a deciding factor. He was told: ‘It was all down to the judge’s summing up. He directed us to find Jeremy guilty and that’s why we did, in the end. If it hadn’t been for the judge telling us what we should do, he would have walked free.’

Carol Ann Lee, The Murders at White House Farm: Jeremy Bamber and the killing of his family

Isn’t That What the Judge is There to Do?

Apparently there’s a lot of contention in the world of judicial discourse around the use of the ‘facts’ by lawyers and judges.

A 1987 study in the Nebraska Law Review by Victor Gold from Loyola Law School studied the role of psychology in a trial,

From his study “Psychological Manipulation in the Courtoom”¹,

For example, research reveals that juries are highly susceptible to the indirect assertion of facts by a lawyer during witness examination.

Prima Facie (A prima facie case arises when the prosecution presents evidence that, if accepted as true, would be adequate to prove the defendant's guilt beyond a reasonable doubt.) and the order that that evidence is presented also, according to Gold plays a huge role,

Lawyers can also manipulate the meaning attributed to evidence by the jury by following some simple psychological principles in ordering the presentation of evidence.

For instance, several articles suggest that attorneys should present the most favorable evidence first because it will then have its greatest possible impact.

This so called "primacy effect" is a product of the fact that people are "theorists" in their approach to information.

The jury uses early encountered evidence to form initial theories about the issues in the case. These theories bias the interpretation of all later encountered evidence. Thus, later received evidence inconsistent with theories built upon the initial evidence tends to be either disregarded or misinterpreted.

The jury tends to accord more weight to later received consistent evidence than logic permits. The jurors tend to sustain belief in the validity of their initial theories long after logic suggests those theories have been discredited. This process proceeds without the juror's conscious awareness of it, misleading the juror into believing that he or she is evaluating evidence objectively.

Thus, the lawyer can manipulate the meaning attributed by the jury to the evidence by carefully choosing what evidence the jury first hears.

With such psychological manipulation playing a key role in the influence of a jury (on both sides) you have to wonder if any trial is ever truly fair.

Drake at the Bamber trial

Let’s take a look at some of Drake’s key but very questionable ‘facts’ in his summing up to the jury.

Never let the facts get in the way of a good story right? Read this in the context of the following quote from a study in New Zealand into jury dynamics,²

The last impression a jury will have of your client’s case will be the speech.

So when you read the following I want you to consider these sentences in the context of the facts, the whole facts and nothing but the facts.

The Hitman and Her

Already by page 7 of the summing up Drake is off to the races; we now know that MacDonald ‘the hit-man’ was a figment of Mugford’s overactive creativity, but Drake is spinning it that this was all part of Bamber’s ‘cover-up’.
FACT COUNT: 2

The Latch Key Kid

Two pages later we have the “facts” around the kitchen window. Where to even begin on this one?
FACT COUNT: 2

Misdirection of the jury? What about the ’fact’ its impossible to close the window from the outside because there are TWO latches? Let’s conveniently forget to tell the Jury about the bottom one right? A couple of bangs and it shuts? Wait, what?

Photo of the kitchen window NEVER shown to the jury - the only latch ever referred to was the right hand side latch.

Also he’s claiming Bamber went in through the kitchen window - It was the bathroom window Bamber admitted he could access - not the kitchen window. By Drake saying Bamber could get in and out of the kitchen window, isn’t he implying to the jury that the evidence of locked windows and doors is meaningless, taking the lead from Uncle Bobby?

I note several windows by which entry or exit could have been made without detection by a clever villain.

Robert Boutflour, Bambers Uncle

Temple, the prosecutor at the 2002 appeal states that Bamber got in through the bathroom window.

Confused.com? Imagine how the 1986 jury felt.

More Mugford ‘Facts’

Interesting use of language - sounds like he’s totally directing the jury here.
FACT COUNT: 4

which would lead you to the conclusion — to point to the fact that the defendant was guilty of these murders.

Look at it as,

which would lead you to the conclusion — that the defendant was guilty of these murders.

Put’s it in an entirely different context right? I mean IT’S A FACT he killed them.

If so, that would tend to support the fact that her evidence is true.

If so, that would tend to support that her evidence is true.

Once again you’ve got the facts drilled into your head.

Again the use of ‘fact’ makes it ‘inevitable’ that what she’s saying is supported by evidence.

And so to the Silencer

Here’s the most contentious bit of evidence in the case. LOTS more to follow on this in the coming weeks but lets see what Drake says about it.

‘an absolutely clear fact’ - could you use any more clarifying language ? We now know the red marks did not appear until after the police examination of the mantelpiece. There is no evidence of these marks were ever caused by a struggle in the kitchen. They didn’t appear until much later. This now forms a key issue submitted to the CCRC.

Between a Fact and a Hard Fact

FACT COUNT:3

First use of ‘the hard facts’ in the summing up. He’s upped the anté here so the jury know these are rock solid. ‘Possibility ‘suggests some ambiguity around Sheila carrying out the killings - the ‘hard facts’ seem to suggest she could not have.

In literally the next sentence he’s essentially saying, whatever you may think, the facts show Sheila didn’t do it.

Is it me or does this just sound outrageous, considering what we now know?

After his first use of the ‘hard facts’ he then starts to use this more and more, he was obviously very pleased with himself he’d discovered the use of this adjective,

the hard fact is, clearly from the evidence,

You have other hard facts

FACT COUNT: 3

‘Beyond any doubt the silencer was on the gun.’

Bear in mind Philip Boyce now concludes the silencer was never on the gun when Sheila killed herself, as well as Dr Fowler in the US.

Killing in the Name of

Bamber killed his family for money.
FACT COUNT: 2

But What Does it all Mean ?

In a 1989 paper “ Should Judges sum up on the facts”, in the Criminal Law Review³ apparently it’s been a long debated issue of whether judges should reculpitate at all in their summing up,

Whilst the judge enjoys no power to decide issues of fact beyond determining whether a prima facie case has been established, the discretion to comment on the facts is in the nature of what has been called an informal control over the jury.⁴

In the US the approach,

Whenever the subject comes up of criminal trial judges being allowed to comment on the facts, comparison is invariably made with the United States. In a majority of the state jurisdictions the judge in a criminal trial must express no opinion on the weight or credibility of the testimony of a witness or on the merits of either side. A form of the rule prevailing in most of the states was first introduced by the North Carolina legislature in 1796, requiring the judge to state in full and explicit manner the facts given in evidence but prohibiting any expression of opinion on them.

They even go so far as to say the Judge should not reference them AT ALL,

Conceivably, the only way to prevent any manifestation of bias may be to prohibit the judge from dealing with the evidence altogether, for “the mode of presentation to the jury is likely to influence them just as much as any express comment.” Certainly, with any exercise in marshalling the facts, as Stephen⁵ pointed out, the judge may of necessity be unable to conceal his opinion of them.

Let’s not forget Drake had form in previous cases as a prosecutor - read my previous post The Red Under the bed.

The Bridgewater Three

The Bridgewater Four

In his role as a judge, Drake also came under fire in the case of the killing of Carl Bridgewater. Actually more than under fire - it was proven at the Court of Appeal that he misled the jury. ⁶

At the Appeal hearing,

The judge's summing-up in the original trial of the four men accused of killing newspaper boy Carl Bridgewater was unbalanced, the Court of Appeal was told yesterday.

The judge, Mr Justice Drake, also "wrongly" told the jury that he had naturally formed his own views as to where the truth lay in the case, Patrick O'Connor QC, counsel for James Robinson, one of the accused, said.

"Substantial responsibility" lay at the door of the trial judge and the prosecution and defence lawyers, he said.

Interestingly enough Patrick O’Connor is the same KC who featured in the Sky documentary series and who once again highlighted Drake’s form in his summing up at the Bamber trial. (O’Connor is no stranger to a miscarriage of justice having conducted the appeal trials of 'Guildford Four', for Gerry Conlon and his father, Giuseppe and the 'Birmingham Six' amongst many others.)

Here’s part of his quote from the Bamber documentary (read the full transcript here) ,

There's no question that from the tone and content of the rest of the summing up, the jury will have seen that he thought that Jeremy Bamber was guilty.

So this is a disincentive to acquittal and a significant one.

Patrick O’Connor KC, Doughty Street Chambers, Bambers: Murder at The Farm, Sky

Mr O'Connor further alleged that the judge, prosecution and defence counsel had failed to secure a fair trial for Mr Robinson and that the case against him was "riddled with faults."

The Bridgewater Three were freed on 21st Feb 1997 having served 18 years in prison. They had always protested their innocence. It took six separate police inquiries and three full appeals for them to walk free. (sound familiar?)

Once again it was all down to that elephant in the room - corrupt police officers.⁷

Carl Bridgewater was shot while delivering a newspaper during a robbery at Yew Tree Farm in Staffordshire in September 1978.

The men's murder conviction rested largely on a confession by a fourth man, Patrick Molloy, who was convicted of manslaughter and died in prison in 1981.

Today, Michael Mansfield QC accused two police officers from the Staffordshire force of fabricating and forging a statement purporting to come from Vincent Hickey.

Mr Molloy had said he had been tricked into making a confession after he was shown this "ghost" statement.

Electrostatic document analysis (ESDA) tests later proved police had created such a statement with Vincent Hickey's forged signature on it.

And par for the course, no police were prosecuted in the Bridgewater Four case, but a case against four police officers in Staffordshire was dropped in 1998.

With Cook, Jones and Ainsley all dead, it’s highly likely that no-one will see jail time in the Bamber case now either.

Mark Newby, Jeremy Bamber’s lawyer

As Mark Newby, Jeremy’s lawyer, succinctly puts it,

If you look at the history in the UK there’s quite a lot of notorious appeals that have had to go through several applications before they’ve actually been quashed.

And I think that’s certainly the case for Jeremy.

Jeremy Bamber was convicted on a 10-2 majority verdict in 1986.

A CCRC committee is scheduled to make a decision on Jeremy’s appeal in March 2025.

Jeremy Bamber has maintained his innocence for the entire 39 years he has spent in prison.

1. https://digitalcommons.unl.edu/cgi/viewcontent.cgi?article=1847&context=nlr

2. https://www.lawscot.org.uk/members/journal/issues/vol-46-issue-07/influencing-the-jury/

3. https://intranet.royalholloway.ac.uk/criminologyandsociology/documents/pdf/lawofevidencereading.pdf

4. Per Channel J. in Cohen (1909) 2 Cr.App.R. 187, at p. 208, cited in ibid. , at p.304, and see Mitchell [1960] Crim.L.R. 211, at p.212. He is even entitled to observe that the defendant's story is a remarkable one: O'Donnell (1917) 12 Cr.App.R. 219, at p.221, per Lord Reading C.J. For a comprehensive survey of the authorities dealing with comment on the defendant's failure to disclose his defence before trial see New Law Journal , March 31, 1989, p. 484, and for a survey of a

5. Stephen, History of the Criminal Law of England (London 1883)

6. https://www.independent.co.uk/news/judge-in-newsboy-trial-misled-jury-1269081.html

7. http://news.bbc.co.uk/onthisday/hi/dates/stories/february/21/newsid_2565000/2565269.stm