Trinity Term [2014] UKSC 37 On appeal from: [2012] EWHC 1186 (Admin)

JUDGMENT
R (on the application of Nunn) (Appellant) v Chief
Constable of Suffolk Constabulary and another
(Respondents)
before
Lord Neuberger, President
Lord Clarke
Lord Reed
Lord Carnwath
Lord Hughes
JUDGMENT GIVEN ON
18 June 2014
Heard on 13 March 2014
Appellant
1st Respondent
Hugh Southey QC Fiona Barton QC
Adam Straw
(Instructed by Saunders
Law Ltd
)
(Instructed by Legal
Services, Suffolk County
Council
)
2nd Respondent
Julian Knowles QC
Paul Lodato
(Instructed by Crown
Prosecution Service
Appeals Unit
)
Intervener (Innocence
Network UK; Justice
; The
Criminal Appeals Lawyers
Association)
Henry Blaxland QC
David Emanuel
(Instructed by White &
Case LLP
)
LORD HUGHES (with whom Lord Neuberger, Lord Clarke, Lord Reed and
Lord Carnwath agree)
1. The claimant Kevin Nunn was convicted in November 2006 of the murder of
his girlfriend following the ending of their relationship. His application for leave to
appeal to the Court of Appeal (Criminal Division) was refused after hearing
counsel’s written and oral representations on his behalf. He continues to protest that
his conviction was wrong. The present proceedings for judicial review raise the
question of the extent of any continuing duty of the police and the Crown
Prosecution Service to assist him in gathering and examining evidence with a view
to a further challenge to his conviction, which he asserts was a miscarriage of justice.
2. It is common ground, and well understood, that while his trial was pending
the Crown owed him the statutory duties of disclosure which are set out in sections
3 and 7A of the Criminal Procedure and Investigations Act 1996. That meant that
it was the Crown’s duty to disclose to him anything which had become known to it
and which might reasonably be considered capable either of undermining the
prosecution case or of assisting his own. At the heart of the submissions of Mr
Southey QC for the claimant is the contention that this duty remains in existence in
exactly the same form after as well as before his trial ended with his conviction.
Whilst the statutory duties of disclosure are expressly framed as continuing only
until the end of the trial, Mr Southey contends that those duties are only statutory
enactments of the common law duty which pre-existed the 1996 Act, and that
accordingly this common law duty remains binding on the Crown indefinitely. The
basis for it, he argues, lies in the necessity of detecting and correcting any
miscarriage of justice which may have occurred.
3. Kevin Nunn had been the boyfriend of the deceased, Dawn Walker, for about
two years prior to February 2005. They did not live together and she may have had
other boyfriends during this period. It was agreed that on the evening of Wednesday
2 February their relationship was brought to an end in the course of a discussion
between them at her home. The Crown case was that there was a noisy argument,
overheard by the neighbours and seen by one, and that Dawn had ended the affair
against Nunn’s wishes. His case by contrast was that it had been a matter of
amicable agreement; there had been no argument and he had left well before the
time spoken of by the neighbours. After that evening Dawn was not seen alive again.
Her body was found by a river two days later on Friday 4 February. Attempts had
been made to set fire to it at a different place near the river and at some stage it had
been immersed in water. It had then been disposed in a sexually degrading position,
unclothed except for a fleece over a sweatshirt pulled up above her breasts, which
garments had been put on after death and burning in other clothes. The exact cause
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of death could not be determined. Her head and pubic hair had been shaved off, her
ankles and Achilles tendon had been lacerated, and a length of reed had been inserted
into her anus. The body must have been somewhere else during Wednesday night
and Thursday, for it would have been seen if then by the river.
4. In barest outline, the Crown case against the claimant relied upon (i) the
motive afforded by Dawn’s rejection of him, (ii) evidence that he was of a jealous
disposition and had stalked both Dawn and a previous partner, (iii) his admitted
presence with her on the evening of her disappearance, (iv) the argument which the
neighbours said that they had heard that night, (v) his having provided himself with
a key to her home without her knowledge, which would have afforded access both
to items found where the body had been burned and to a petrol can apparently
removed from her shed for use in the burning, (vi) his having told her employers the
next day that she was not at work because unwell, and (vii) the evidence of a
neighbour who knew him and who said that she had seen him, with an accomplice,
removing a large wrapped object, consistent with a body, from Dawn’s house in the
small hours of the night before she was found.
5. By contrast, the claimant’s case was that he had left Dawn in good health and
had thereafter been elsewhere. He pointed to a telephone record of her mobile
telephone calling his at 04.55 on the night of 2/3 February; he denied that he had
made the call himself to lay a false trail, and he explained the absence on his own
phone of the voicemail message which he said she had left by saying that he had
accidentally deleted it. He said that footprints consistent with his boots near the
riverbank burning site were there because he had gone looking for Dawn the day
after she disappeared; he had walked the river bank but had not seen various items
connected with her which others had seen there. He advanced the positive case that
Dawn had been murdered by one, or perhaps another, of her previous boyfriends, to
one of whom she was perhaps hoping to return. Both were called and cross
examined on his behalf before the jury, as was the girlfriend of one of those men,
who provided that alleged murderer with an alibi. The claimant pointed to the
presence of traces of sperm (four cells) on Dawn’s inner thigh and pubic area (but
not in her vagina) which, since he had had a vasectomy, were unlikely to derive from
him; unless they had got there by secondary or tertiary transfer or unknown past
sexual contact via clothing these, he suggested, were an indication of a killer other
than him. These and other issues were all fully investigated at a trial which lasted
some six weeks. In the course of it the jury heard and was able to judge the evidence
of the claimant and of the identifying neighbour, as well as of the two men whom
the claimant accused.
6. The jury’s verdict of guilty was returned on 20 November 2006. The Court
of Appeal refused the application for leave to appeal against conviction on 17
October 2007. The claimant continued to protest his innocence. Beginning in
January 2008, he made a series of written applications to the police for supply of all
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their records of the investigation. These will, for an investigation such as this, have
been very voluminous; they were logged in detail under the normal police
computerised system for major enquiries (“HOLMES”). He sought everything,
including officers’ notebooks, computer files, incident logs, CID journals and the
like, together with all photographs and forensic science records. The applications
were framed under either the Freedom of Information Act 2000 or the Data
Protection Act 1998. Whether or not the claimant fully appreciated the law, even if
there was anything which could be obtained under these two statutes, these blanket
applications were misconceived (see, inter alia, section 30 of the former and section
29 of the latter), quite apart from the fact that there is no suggestion that anything
relevant had not been disclosed to the defendant, through his trial solicitors, before
the trial.
7. By February 2010, however, the claimant had instructed fresh solicitors, who
had not represented him at his trial. He will have been entitled to call for the case
papers, including unused prosecution material, from his trial solicitors to give to his
new representatives. On 8 February 2010 the new solicitors wrote the first of a
number of letters to the police seeking information. They said:
“We should be most obliged if you could serve upon us some relevant
and as yet undisclosed material in relation to the finances of the
deceased, Dawn Walker.
The purpose of this enquiry is to ascertain whether Ms Walker had any
undisclosed source of income which might indicate any form of
economic activity which was not disclosed to the defence.
This enquiry is necessitated in part by the conclusion drawn from the
available facts that Ms Walker was living at a standard way beyond
the income which she earned at [her employers].
…..
We should also like to know whether the keys to the shed at Dawn
Walker’s home and her mobile phone can be made accessible to our
expert, probably at the forensic science laboratory for the purpose of
DNA testing.”
8. There is no sign that Ms Walker’s finances had been thought by anybody to
have any relevance at all to the trial or to the question of who had murdered her.
The enquiry clearly indicated a wish to start afresh investigating the case. Nor was
Page 4
the request for anything specific; it was a request for the police to exhume all the
investigation records, a little over three years after the end of the trial, and to review
anything bearing on this new topic. By now the investigation documents were all in
storage and some officers concerned had moved on to other postings. In the event,
some research was undertaken and a positively worded letter from the CPS
responded that the author had ascertained that the deceased had certainly not been
living beyond her means. Nothing more seems to have been heard of this line of
enquiry.
9. Other requests, however, followed, some specific and some not. They
included a request for sight of the notes of any forensic scientist who had worked on
the case so that an independent expert could “check their adequacy”, and they sought
access to various exhibits for further testing as and when their expert so advised.
The solicitors made it clear that they were undertaking “a full review of the case to
determine what lines of enquiry may turn up fresh evidence.” They referred to
wanting to review material relating to DNA, pathology, soil composition, pollens
and diatoms. In November 2010 an itemised list of requests for information was
sent to the police. It asked a variety of questions which would have entailed a
detailed review of the investigation documents. It included the question, described
as relating to an “obvious” possibility, whether the murder of Dawn Walker had
been linked to a series of high profile murders of prostitutes in Ipswich. The several
letters made it clear that other requests would be likely to follow as the general
review of the case proceeded. On 1 February 2011 the police replied formally,
repeating what had already been said in correspondence, to the effect an obligation
was accepted to disclose any material which came to light after the conviction and
which might cast doubt on the safety of the conviction, but not to facilitate a general
trawl through a finished case.
10. The claimant’s application for judicial review followed. It sought:
“(a) A declaration that the defendant’s 1 February 2011 refusal to grant
the claimant access to prosecution evidence is unlawful being in
breach of his rights under domestic common law, under articles 5 and
6 of the ECHR and/or under section 7 of the Data Protection Act 1998;
and
(b) a mandatory order requiring the Chief Constable to grant the
claimant access to the prosecution evidence,”
together with such other declaratory relief as might be appropriate. The Divisional
Court (Sir John Thomas P and Haddon-Cave J) refused the application. This is the
claimant’s appeal from that refusal.
Page 5
11. It should be recorded that after the lodging of the claim for judicial review,
and again between the hearing before the Divisional Court and that in this court, the
apparent target of the claimant’s present requests has been narrowed. It seems that
nothing is now made of the suggested “obvious” possibility that this murder was
linked to the murders of prostitutes in Ipswich; the several important differences
between the two cases which have been explained may have been taken on board.
The focus is now upon (i) access to the working papers of the forensic scientists who
advised the Crown and/or gave evidence and (ii) requests for re-testing, or first
testing, of various exhibits recovered in the course of the investigation.
12. At the trial, the scientific evidence was, in most respects, inconclusive as to
the identity of the killer. The Crown did not rely on it to support the case against
the claimant, as the trial judge carefully reminded the jury early in her summing up.
There were the footprints near the river which were consistent with boots which the
claimant wore, but they were not uniquely so, and he admitted walking there at the
material time. DNA testing of various items found either on the body or where it
had been burned provided nothing to associate them either with the claimant or with
any of the other males who figured in the case. The scientific evidence of the
presence of traces of sperm on the deceased was not disputed, and evidence was
given about the possible ways in which, by secondary or tertiary transfer, such
material might arrive where it was found. The claimant called expert evidence
relating to the consequences of his vasectomy. What other scientific advice he had
cannot, in the absence of waiver of privilege, be known. No forensic science report
available to him at trial has ever been disclosed by him; there is of course no
obligation upon a defendant to disclose such a report unless he proposes to rely upon
it. A great many defendants decide, on advice, that there is nothing in the reports
obtained for them which will help them or that the best use to which they can be put
is to inform cross-examination of the Crown scientists without exposing points on
which the reporting expert agrees.
13. Some time after the claim for judicial review was lodged, the claimant
provided the police and CPS with a full report from an independent forensic scientist
who had clearly been instructed by the new solicitors some while beforehand,
though long after the trial. While appeal to this court was pending, a further
statement from a different forensic scientist has also been lodged, dealing with
advances in DNA testing techniques over the period since the trial; this was
admitted without objection before this court.
14. Nevertheless, whilst the focus of the now current application to the police has
narrowed, it is plain from the sequence of the requests made that what the claimant
seeks is a full re-investigation, and access from time to time to whatever he thinks
necessary to review any point which he wishes. Consistently with this, the appeal
has been argued before this court at the general level of the extent of the duty, after
conviction and exhaustion of appeal, to which the Crown and the police remain
Page 6
subject in relation to the products of the police enquiry. The question of law of
general public importance which the Divisional Court certified at Mr Southey’s
request is:
“Whether the disclosure obligations of the Crown following
conviction extend beyond a duty to disclose something which
materially may cast doubt upon the safety of a conviction, so that the
[Chief Constable] was obliged to disclose material sought by the
claimant in these proceedings ?”
15. As is apparent from the summarised history of applications set out above,
what this claimant chiefly seeks is not disclosure of something which has been
withheld from him, but inspection of material which was fully and properly
disclosed during the trial process. Disclosure and inspection are related, and
governed by similar principles, but it does not at all follow that the exact content of
the Crown’s duty in a particular case can be understood without adverting where
necessary to the difference between them.
16. As Mr Southey rightly submits, the Crown’s duty of disclosure and
inspection was formulated by the common law in the second half of the twentieth
century. There were parallel developments of rules of disclosure in other common
law jurisdictions: see for example Brady v Maryland 373 US 83 (1963) in the United
States of America. The precise extent of the duty in England and Wales before and
during trial is not in issue in the present case and calls for no more than a summary.
Early decisions, such as R v Bryant and Dickson (1946) 31 Cr App R 146 and
Dallison v Caffery [1965] 1 QB 348 recognised the Crown’s duty to disclose to a
defendant the existence of a witness who can give material evidence. Later
decisions expanded the rule into a general duty to disclose evidence of any kind
which might reasonably be thought capable of assisting a defendant, in large part in
response to a few notorious cases in which trials went wrong because defendants
were unaware of such material although it was in the hands of the prosecution. R v
Ward [1993] 1 WLR 619 is a well-known example, where wholesale failure to
disclose scientific material bearing on the reliability of scientific evidence at the
centre of the Crown case made it necessary to quash convictions for bomb-setting
some twenty years after the event.
17. A defendant’s right to have disclosed evidential material inspected on his
behalf will generally go with the duty of disclosure. For example, R v Mills [1998]
AC 382 held that a material witness statement should be provided for inspection as
well as the existence of the witness disclosed. There are, however, inevitably
additional considerations associated with inspection of evidential material other than
witness statements. Occasionally, material may have had to be destroyed for reasons
of safety, or may unavoidably have been used up in a testing process. If it remains
Page 7
available, inspection must be on terms that it is properly preserved and, if scientific,
not exposed to risk of contamination. Particular issues may arise in relation to the
cost of handling or preserving some kinds of material. There are special rules for
material falling within the Sexual Offences (Protected Material) Act 1997 designed
to prevent it from being put into the possession of individual defendants. In practice,
in many cases, inspection is likely reasonably to be restricted to nominated and
trusted professional or expert persons. What will be reasonable will vary from case
to case.
18. The Criminal Procedure and Investigations Act 1996 put the common law
prosecution duty of disclosure into statutory form. It recognised a two-stage process
of disclosure, initially under section 3 and continuing under what is now section 7A.
It also inaugurated a duty of defence disclosure, which, although one of imperfect
obligation, is connected to the prosecution duty since the defence statement required
by section 5 and the advance notices required by sections 6C and 6D help to define
the issues and thus to identify material which may be relevant to the duty of
continuing disclosure. The Act somewhat modified the test for disclosure from that
variously articulated in R v Ward and in R v Keane [1994] 1 WLR 746 at 752, whilst
maintaining its purpose. Both the initial duty under section 3 and the continuing
duty under section 7A are couched in the same terms. They apply to any material
which the prosecution has or has inspected and which:
“….might reasonably be considered capable of undermining the case
for the prosecution against the accused or of assisting the case for the
accused.”
19. The Act dealt specifically with the timing of the duties which it created. In
this and generally it gave effect to the recommendation of the Royal Commission
on Criminal Justice (the Runciman Commission) (1993) (Cm 2263) which had
expressed concern that the common law risked requiring detailed disclosure of
“matters whose potential relevance is speculative in the extreme” and about the
impracticability of the sheer bulk of disclosure which might be within the principle
(chapter 6, p 95, at para 49). The Act met those concerns firstly by providing the
test for disclosure set out above. By section 21, where the statutory duties created
by the Act apply, they displace the former common law duties which cease to
operate. The Act then recognised the two-stage disclosure procedure described
above and it defined the period during which its statutory duties of disclosure are
imposed. For trials on indictment, the duty begins with the arrival of the case (by
whatever route) in the Crown Court: section 1(2). It ends with the end of the trial,
whether by conviction, acquittal or the Crown discontinuing proceedings: section
7A(1)(b). It follows that the duty of disclosure created by the Act does not apply to
the present claimant.
Page 8
20. The end of the trial is, however, not always the end of the criminal process.
Any convicted defendant has the right to appeal to the Court of Appeal (Criminal
Division) if he can show an arguable case that his conviction is not safe. If that fails,
a defendant cannot mount a second appeal, because the court is functus officio. But,
again in response to the recommendations of the Runciman Commission, the law of
England and Wales (and also of Northern Ireland and Scotland) has put in place a
separate body, the Criminal Cases Review Commission (“CCRC”), which has the
power to review any conviction and which is charged, if it thinks that there is a real
possibility that the Court of Appeal might quash the conviction, with the power to
refer the case back to that court for, exceptionally, the hearing of a second appeal –
and on any grounds, whether the same as before or different. Such a referral bypasses the requirement for leave to appeal. An arguable case is assumed. The Court
thereupon has the duty to investigate the safety of the conviction and must quash it
if it is unsafe. The CCRC’s extensive investigative powers include the power to
require the production to it of any material in the hands of the police or any other
public body, to appoint an investigator with all the powers of a police officer, and to
assemble fresh evidence not before the court of trial.
21. As summarised above, Mr Southey’s essential submission is that the common
law duty of disclosure was developed with the purpose of preventing miscarriages
of justice. Whilst the common law duty is displaced where the Act applies, it
remains in force, he submits, for periods before and after the Crown Court trial. In
particular, it remains in force after conviction for the purpose of exposing and
correcting any miscarriage of justice which may have occurred. Hence, he contends,
the duty of the Crown in the present case is exactly the same now as it was while the
claimant’s case was pending in the Crown Court. It follows, he says, that the police,
as the custodians of the exhibits and the other products of the investigation, must
afford the claimant such access as he seeks so that he can, if material emerges which
supports him, challenge his conviction. Mr Southey accepts, as he must, that any
such challenge can now only be brought to court if the CCRC decides to refer the
conviction to the Court of Appeal (Criminal Division). But he contends that in order
to demonstrate to the CCRC that this is a proper case in which it should launch a
review, the claimant needs, via his solicitors, to re-investigate the several matters
which they have identified and perhaps more.
22. The principled origin of the duty of disclosure is fairness. Lord Bingham put
it in this way in R v H [2004] UKHL 3; [2004] 2 AC 134, at para 14, speaking in
the context of the proper procedure for handling claims to withhold disclosure on
public interest grounds:
“Fairness ordinarily requires that any material held by the prosecution
which weakens its case or strengthens that of the defendant, if not
relied on as part of its formal case against the defendant, should be
disclosed to the defence. Bitter experience has shown that
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miscarriages of justice may occur where such material is withheld
from disclosure.”
There is no doubt that this principle of fairness informs the duty of disclosure at all
stages of the criminal process. It does not, however, follow, that fairness requires
the same level of disclosure at every stage. The terms of section 7A of the statute
plainly suggest otherwise. So, on inspection, does the jurisprudence.
23. The common law of England and Wales has proved capable of adapting the
duty of disclosure to the different stages of the criminal process. In R v Director of
Public Prosecutions, Ex p Lee [1999] 1 WLR 1950 the Divisional Court dealt with
the position before committal to the Crown Court, and thus before the statutory
duties under the Criminal Proceedings and Investigations Act apply. It held that
some disclosure was indeed required at that early stage but not what Kennedy LJ
described, at p 1963, as the “full blown” version applicable under the Act once
Crown Court proceedings are under way. Examples of material which ought to be
disclosed before committal would include evidence which bears on a bail
application, or which is relevant to an application to stay for abuse, or which relates
to unused eye witnesses whose evidence might be less effective unless promptly
proofed. That illustrates the proposition that the common law duty did not remain
the same throughout. Rather, it was tailored to the needs of the stage of the
proceedings in question.
24. Similarly, although the duties laid down by the Act cease on conviction, some
continuing common law duty is recognised to apply pending sentence, but only in
relation to material relevant to that stage. The Attorney-General has issued
guidelines on disclosure for prosecutors. They recognise at para 58 that prosecutors
must consider disclosing in the interests of justice any material relevant to sentence,
such as information not known to the defendant which might assist him in placing
his role in the offence in the correct context vis-à-vis other offenders. That correctly
gives effect to the common law duty which at this point is limited to material not
known to the defendant which might assist him in relation to sentence.
25. In the same way, while an appeal is pending, a limited common law duty of
disclosure remains. Its extent has not been analysed in English cases, but plainly it
extends in principle to any material which is relevant to an identified ground of
appeal and which might assist the appellant. Ordinarily this will arise only in relation
to material which comes into the possession of the Crown after trial, for anything
else relevant should have been disclosed beforehand under the Act. But if there has
been a failure, for whatever reason, of disclosure at trial then the duty after trial will
extend to pre-existing material which is relevant to the appeal. This was the case,
for example in R v Makin [2004] EWCA Crim 1607, to which Mr Southey referred
the court, where the complaint was of a failure of disclosure at trial, and disclosure
Page 10
pending appeal was necessary to enable the complaint to be investigated by the
court, albeit on examination the court rejected it. A similar result was reached in
McDonald v HM Advocate [2008] UKPC 46; 2010 SC (PC) 1 in relation to Scottish
law (where the content of the duty of disclosure was then in a transitional state). The
Judicial Committee of the Privy Council accepted that if there had been a failure of
disclosure at trial, the duty on appeal was to make available what should have been
provided at trial as well as material relevant to existing grounds of appeal. However,
it roundly rejected the contention that at the appellate stage there arose a duty on the
prosecution to re-perform the entire disclosure exercise, so that the appellant could
see whether anything might emerge which could be used to devise some additional
ground of appeal. Lord Rodger observed at para 71 that that was “an extravagant
proposition”. He went on to explain why, at para 74:
“Not only would such an obligation be unduly burdensome, but it
would often be quite inappropriate at the appeal stage. By then, the
real issues in contention between the parties will have been focused at
the trial. In this new situation material which might have seemed to
be of potential significance for the defence before the trial (for
instance as weakening the identification evidence of a witness to a
murder) may now be seen to have actually been irrelevant (because
for instance the accused admitted that he killed the deceased but
pleaded self-defence).
In other words, what fairness requires varies according to the stage of the
proceedings under consideration.
26. This conclusion is consistent with that reached in other common law
jurisdictions. In the New Zealand case of The Queen v Nepia (unreported) 3 October
2000, the Court of Appeal found the source of the disclosure rule at the pre-appeal
stage in the power of that court under section 389(a) of the Crimes Act to order
production of any document exhibit or thing which appears to be necessary for the
determination of the case (a provision equivalent to section 23 of the England and
Wales Criminal Appeal Act 1968). It held that this jurisdiction, exercisable on
appeal, is not part of an investigatory procedure and should not be used as part of a
general fishing expedition. It held that “a realistic evidential foundation” will in
general have to be laid before it is used. In the recent case of Cant v The Queen
[2013] NZCA 321, again a pending appeal, the Court of Appeal similarly held that
questions of the Crown were not appropriate, and that requests for disclosure must
have a material bearing on an articulated ground of appeal.
27. A similar approach was adopted in the Court of Appeal of Ontario in The
Queen v Trotta [2004] CanLII 600114 (ON CA). Canadian law recognises a duty
of disclosure for the purposes of trial which is equivalent to that imposed in England
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and Wales: R v Stinchcombe [1991] 3 SCR 326. Trotta held that in principle
disclosure obligations continued into the appellate process. The court observed that
the protection of the innocent is as important on appeal as it is prior to conviction.
But it drew attention to the fundamental differences between the two stages when it
comes to the content of the duty. The convicted person is no longer to be presumed
innocent. He has exhausted his right to make full answer and defence. The duty of
disclosure at this stage was held to extend to any information in the possession of
the Crown where the accused can show that there is “a reasonable possibility” that
it could assist him in the prosecution of his appeal. In that case, there had arisen
since the trial some suggestions of lack of balance in the evidence given in other
cases by the Crown pathologist. The Court held that there would be a duty to
disclose this material to the appellant if there were any reason suggested to doubt
the evidence which the pathologist had given in the instant case. Since there was
not, the material was irrelevant and the request for it speculative. This is a good
illustration of the difference between the two stages. There can be no doubt that, if
it had then been in existence, the material affecting the pathologist would have been
disclosable pre-trial, for at that stage it would not have been known whether there
was or was not any challenge to his findings.
28. The important differences between the pre-trial and post-conviction stages
were similarly emphasised by the US Supreme Court in District Attorney’s Office
(Third Judicial District) v Osborne 557 US 52 (2009). The court divided 5:4 upon
the jurisdictional question whether a complaint of denial of access to DNA testing
post-conviction raised a constitutional issue, and thus on whether the issue was a
proper one for the Supreme Court rather than for the federal or State courts. There
was also disagreement on whether there was a right to such access in a case where
it was agreed that the testing would be conclusive of guilt or innocence. But there
was agreement that the position of a convicted person was not generally analogous
to that of a person on trial. All the judges agreed that the disclosure rules applicable
prior to and during trial, set out in Brady v Maryland 373 US 83, did not continue
unaltered after conviction. Roberts CJ, giving the judgment of the majority, said
this:
“Osborne’s right to due process is not parallel to a trial right, but rather
must be analysed in light of the fact that he has already been found
guilty at a fair trial, and has only a limited interest in postconviction
relief. Brady is the wrong framework.”
The minority opinion, delivered by Justice Stevens, agreed on this. It included
approval of Luttig J’s statement in the earlier case of Harvey v Horan 285 F 3d
(2002) 298 at 305 that:
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“…no-one would contend that fairness, in the constitutional sense,
requires a post-conviction right of access or a right to disclosure
anything approaching in scope that which is required pre-trial…”
Whilst the jurisdictional question was later resolved in favour of a different appellant
in Skinner v Switzer 562 US (2011) nothing in that decision bears on the distinction
between disclosure pending trial and disclosure post-conviction.
29. There is thus no basis for saying that the common law ever recognised a duty
of disclosure/inspection after conviction which was identical to that prevailing prior
to and during the trial, and no case, whether in this jurisdiction or any other, has
been found to suggest it.
30. All the stages thus far considered are ones at which the criminal justice
process remains afoot, with either trial or sentence or appeal to be catered for. When
it comes to the position after the process is complete, the Attorney General’s
guidelines deal specifically with disclosure of something affecting the safety of that
conviction. The relevant paragraph in the most recent edition (2013), echoing the
same principle in earlier editions, says this:
“Post conviction.
72. Where, after the conclusion of proceedings, material comes to
light that might cast doubt upon the safety of the conviction, the
prosecutor must consider disclosure of such material.”
The guideline must mean that not only should disclosure of such material be
considered, but that it should be made unless there is good reason why not. Thus
read, it is entirely consistent with the principle reflected in the position set out in the
paragraphs above in relation to the pre-Crown Court stage, to the pending sentence
stage and to the pending appeal stage. Mr Southey’s submission entails the argument
that the guidelines greatly understate the duty in the circumstances of the present
claimant. He is entitled, if Mr Southey is right, to the full extent of the duty which
the Crown had had during his trial. That would mean a duty to give active
consideration, presumably continuously, to the state of the evidence. And, as the
requests made of the police in the present case illustrate, it would mean a duty to
respond from time to time to any requests for information, or for access to material,
which the convicted defendant makes. The argument appears to be that his right to
the performance of that duty endures indefinitely, or certainly whilst he, or perhaps
anyone else, asserts that the conviction was wrong.
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31. The fallacy in this argument lies in the implicit assumption that the common
law duty, as it evolved, was identical before and after conviction. As has been seen,
it was not. Moreover, it does not at all follow from the fact that the common law
developed the Crown’s duty of disclosure with the object of minimising the risk of
miscarriages of justice that a convicted defendant such as the claimant, who asserts
that his conviction was wrong, is or ever was entitled to the same duty continuing
indefinitely after that conviction. The common law developed the duty as an incident
of the trial process, to ensure that that process was fair to defendants. It was designed
to avoid trials creating miscarriages of justice, not as a means of investigating
alleged miscarriages after a proper trial process has been completed. It was not
devised in order to equip convicted persons such as the claimant with a continuing
right to indefinite re-investigation of their cases, and the fact that some such persons
assert that their convictions were miscarriages of justice does not mean that it was.
32. The position of a convicted defendant is different in kind from that of a
defendant on trial. The latter is presumed innocent until he is proved guilty, as he
may never be. The former has been proved guilty. He is presumed guilty, not
innocent, unless and until it be demonstrated not necessarily that he is innocent, but
that his conviction is unsafe. The defendant on trial must have the right to defend
himself in any proper way he wishes, and to make full answer to the charge. The
convicted defendant has had this opportunity. The public interest until conviction
is in the trial process being as full and fair as it properly can be made to be. After
conviction, there is of course an important public interest in exposing any flaw in
the conviction which renders it unsafe and in quashing any unsafe conviction, but
there is also a powerful public interest in finality of proceedings. All concerned,
including witnesses, complainants, the relatives of the deceased and others, have a
legitimate interest in knowing that the legal process is at an end, unless there be
demonstrated to be good reason for re-opening it.
33. A duty such as that suggested by Mr Southey should not be assumed to be
straightforward of performance. The products of a major investigation are typically
voluminous, far more so than the evidence adduced at trial, extensive though that
often is. Whilst they are generally catalogued on computer, many will be paper
material. In smaller cases, in which the same duty would apply, there may be very
little retained. Generally, materials will often be archived after the appeal process
is exhausted. To make an informed or useful search of them requires them to be
mastered. Police officers move on to other appointments, or retire; it cannot be
assumed that the investigating officers will remain in the same place where they
formerly were, or that they will continue to have regular access to the material. If
the material is actively to be managed and re-considered, officers will have to be
diverted to the task from other investigations. The evidence of the detective
inspector in the present case was, for example, that reviewing the stored evidence in
order to deal with the claimant’s subject access request under the Freedom of
Information Act occupied approximately four man-days of police time. If there is
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demonstrated to be a good reason for this kind of review of a finished case, then the
resource implications must be accepted. There is, however, a clear public interest
that in the contest for the finite resources of the police current investigations should
be prioritised over the re-investigation of concluded cases, unless such good reason
is established.
34. If, then, there is no basis for Mr Southey’s principal submission, that the duty
of disclosure remains the same after conviction as before, the question remains what
the duty does entail at that stage.
35. There can be no doubt that if the police or prosecution come into possession,
after the appellate process is exhausted, of something new which might afford
arguable grounds for contending that the conviction was unsafe, it is their duty to
disclose it to the convicted defendant. Simple examples might include a new (and
credible) confession by someone else, or the discovery, incidentally to a different
investigation, of a pattern, or of evidence, which throws doubt on the original
conviction. Sometimes such material may appear unexpectedly and adventitiously;
in other cases it may be the result of a re-opening by the police of the enquiry. In
either case, the new material is likely to be unknown to the convicted defendant
unless disclosed to him. In all such cases, there is a clear obligation to disclose it.
Para 72 of the Attorney General’s guidelines, quoted above, correctly recognises
this. This is, however, plainly different from an obligation not to reveal something
new, but to afford renewed access to something disclosed at time of trial, or to
undertake further enquiries at the request of the convicted defendant.
36. Miscarriages of justice may occur, however full the disclosure at trial and
however careful the trial process. A convicted defendant clearly has a legitimate
interest, if continuing to assert his innocence, to such proper help as he can persuade
others to give him: see R v Secretary of State for the Home Department, Ex p Simms
[2000] 2 AC 115, where a prisoner’s right, for this purpose, to a visit by, and oral
interview with, an investigative journalist was recognised. Quite apart from the
defendant’s interest, the public interest is in such miscarriages, if they occur, being
corrected. There is no doubt that there have been conspicuous examples of
apparently secure convictions which have been demonstrated to be erroneous
through the efforts of investigative journalists, or of solicitors acting on behalf of
convicted persons or, sometimes, of other concerned persons.
37. This court was referred to R v Hodgson [2009] EWCA Crim 490 as a
particularly graphic illustration. There, the defendant’s conviction for rape and
murder, based essentially upon the apparently compelling detail of his own
circumstantial confessions, was, some twenty seven years later, demonstrated to
have been wrong by the advances in science, and despite no one concerned with the
investigation or trial having done anything which could be criticised. This was
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possible because samples of semen recovered from vaginal and anal swabs taken
from the deceased could be analysed for DNA in a way which had not been possible
at the time. A solicitor who was recently instructed on behalf of the defendant made
the enquiry of the CPS and/or the police whether the samples remained in existence
despite the passage of time. When it was found that they did, analysis of them by
modern methods was immediately commissioned by the police and prosecution,
with a view to immediate disclosure of the outcome. The semen could only have
come from the rapist/murderer. The results excluded the defendant. A rapid joint
submission to the CCRC followed, with an immediate reference by that body to the
court. In quashing the conviction, the Court of Appeal, Criminal Division, gave
appreciative recognition to the efforts of solicitor, police and prosecutor and to the
level of co-operation between them.
38. It does not, however, follow from cases such as this that the law ought to
impose a general duty on police forces holding archived investigation material to
respond to every request for further enquiry which may be made of them on behalf
of those who dispute the correctness of their convictions. Indeed, the potential for
disruption and for waste of limited public resources would be enormous if that duty
were to be accepted. The claimant’s initial requests in the present case for
investigation of the finances of the deceased, as well as his earlier applications for
sight of the entire investigation files, afford good illustrations of the kind of
speculative enquiry which such a rule would encourage. There is no such duty. If
the duty of disclosure pending appeal is limited, as it plainly is, to material which
can be demonstrated to be relevant to the safety of the conviction, it is all the clearer
that after the appellate rights which the system affords are exhausted the continuing
obligation cannot be greater than that stated in the Attorney General’s guidelines,
read as explained in para 30 above.
39. The safety net in the case of disputed requests for review lies in the CCRC.
That body does not, and should not, make enquiries only when reasonable prospect
of a conviction being quashed is already demonstrated. It can and does in appropriate
cases make enquiry to see whether such prospect can be shown. It has ample power,
for example, to direct that a newly available scientific test be undertaken. R v Shirley
[2003] EWCA Crim 1976, a DNA case not unlike Hodgson, appears to be a case in
which it did exactly that. What it ought not to do is to indulge the merely speculative.
It is an independent body specifically skilled in examining the details of evidence
and in determining when and if there is a real prospect of material emerging which
affects the safety of a conviction. This exercise involves a detailed scrutiny of the
other evidence in the case and a judgment on the likely impact of whatever it is
suggested the fresh enquiries may generate. Whilst in principle the court retains
control, via the remedy of judicial review, of the duty laid upon the police and
prosecutors after the appeal process is exhausted, it is likely to determine, unless
good reason for not doing so is provided, that relief by that route is inappropriate
until the CCRC has had the opportunity to make a reasoned decision.
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40. The advances of science mean that from time to time it will become possible
to undertake tests which were not available earlier. This possibility presents just one
example of the approach set out above. Sometimes such tests will be potentially
determinative of guilt, as they were in Hodgson. In other cases they will be simply
speculative, either because there is great uncertainty about whether any result can
be obtained or because any result will be consistent both with guilt and innocence.
The difference between the two cases has given rise in the USA to debate about the
extent of any right to re-testing especially if it is likely to be conclusive. Osborne,
referred to above, records some of the debate and the fact that a large number of US
states have made legislative provision for such testing in defined circumstances.
There is, however, no body such as the CCRC in the United States, which can decide
in an appropriate case to require testing. Here, there is.
41. None of this means that the work of solicitors and others in the interests of
convicted persons may not be of great value. There is no doubt that the CCRC is
much assisted by informed legal analysis and presentation if an application for
review is made to it, and not only because its funding is not unlimited, but also
because accurate legal formulation focuses the mind correctly. Sometimes, such
solicitors or others can usefully undertake enquiries of their own, respecting of
course the interests of third parties. On other occasions they may well, by their
arguments and presentations, enlist the co-operation of the police, or the
prosecution, or both: Hodgson was just such a case. The police and prosecutors
ought to exercise sensible judgment when representations of this kind are made on
behalf of convicted persons. If there appears to be a real prospect that further enquiry
will uncover something which may affect the safety of the conviction, then there
should be co-operation in making it. It is in nobody’s interests to resist all enquiry
unless and until the CCRC directs it.
42. It is enough to determine the instant appeal that after conviction there is no
indefinitely continuing duty on the police or prosecutor either in the same form as
existed pre-trial or to respond to whatever enquiries the defendant may make for
access to the case materials to allow re-investigation. The duty is properly stated at
para 72 of the Attorney General’s guidelines, read as explained in para 30 above,
with the addition that if there exists a real prospect that further enquiry may reveal
something affecting the safety of the conviction, that enquiry ought to be made.
43. The Divisional Court held that there was no basis for concluding that any of
the enquiries made in the present case go beyond the simply speculative and satisfy
this latter condition. This court has, rightly, been pressed with argument chiefly on
the principled point of law rather than on the facts of this case. This appeal ought
not, however, to be left without the observation that the fact that DNA testing is one
of the things sought does not by itself answer the question whether the request has
a real prospect of uncovering material affecting the safety of the conviction. The
request for sight of all forensic science working papers so that the scientists’ work
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could be checked was plainly speculative. The report provided by the claimant
states specifically that there is no reason to query any of the work done or
conclusions arrived at. The report also makes it clear in some instances that the
request for testing of items which were not previously tested is made simply because
the claimant or his family would like it done; those requests have the plain
appearance of being likewise speculative. In the case of some of the testing proposed
it seems likely that some alteration of the samples would be involved, by
consolidating them; if this kind of operation is in question, there is a further decision
to be made whether re-testing would rule out any future use of the material. There
may be a separate question concerning the new possibilities of undertaking modern,
and better, DNA testing of certain swabs, especially those from the thigh and genital
region. Even there, however, the forensic science report now relied upon concludes
that even if a match were found to one of the men under discussion in the case, that
would not necessarily exclude the claimant as the killer. The killer may or may not
have deposited traceable DNA. Although it is suggested for the claimant that if DNA
attributable to one of these men were to be found, that would provide good evidence
that he might be the killer, it must also be the case that any DNA which is found
need not be related to the killing, particularly if the deceased had an association with
the man in question. It is plain that the presence of a very few unattributed
spermatozoa was known at the trial and the possibilities for innocent transfer were
fully investigated. On the limited information presently available it seems unclear
that a real prospect is established of material emerging affecting the safety of the
conviction. However, any further request for access to the sample should be tested
on the principles explained above, in the first instance by the police and if necessary
by the CCRC.
44. For these reasons, this appeal should be dismissed.
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