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R [on the application of Nunn] v The Chief Constable of Suffolk Constabulary and another [2014] UKSC 37

After conviction, there was no indefinitely continuing duty on the police to respond to a convict’s enquiries for access to materials to allow…

Executive summary

After conviction, there was no indefinitely continuing duty on the police or prosecutor in the same form as pre-trial to respond to a convict’s enquiries for access to materials to allow re-investigation. Duties post-conviction were set out in paragraph 72 of the Attorney General’s guidelines, with the encouragement to make appropriate enquiry where that enquiry would give rise to a real prospect of the safety of the conviction being undermined.

Background

The claimant was convicted in 2006 of the murder of his girlfriend. He was refused permission to appeal a year later and subsequently began a series of applications to the police for access to their records of investigation. The requests included requests to access retained material for DNA testing and scientific papers to "check [the] adequacy" of the original independent experts’ views.

The police responded to the various requests by acknowledging their obligation only to disclose material coming to light after the conviction which might cast doubt on the safety of the conviction, but not to facilitate a general trawl through the case.

The claimant sought judicial review, alleging that the refusal to grant access to the prosecution evidence breached his domestic common law rights, his rights under Articles 5 and 6 of the European Convention on Human Rights and under the Data Protection Act. The Divisional Court refused his application and he appealed.

Appeal

Lord Hughes delivered the only judgment in the Supreme Court, with which the other law lords agreed.

The question of general public importance was whether the disclosure obligations on the Crown following conviction extended beyond a duty to disclose something which might cast material doubt on the safety of a conviction, to the effect that the police should disclose the material requested by the claimant in the current proceedings.

Although the focus of the application was said to relate to working papers of the forensic scientists and some requests for re-testing or first testing of various exhibits, the court observed that the claimant was in fact seeking "a full reinvestigation, and access from time to time to whatever he thinks necessary to review any point which he wishes."

The statutory duty of disclosure under the Criminal Procedure and Investigations Act 1996 dealt specifically with the timing of disclosure duties created by it. Those duties displaced the former common law duties from which they derived. The claimant contended that the common law duty of disclosure, developed to prevent miscarriages of justice, remained in force after conviction for the purpose of exposing and correcting any miscarriage which may have occurred. Although he accepted that any further challenge to conviction would have to be brought to the court by the Criminal Cases Review Commission (CCRC), for the claimant to demonstrate to the CCRC that his was a proper case for it to launch a review, he needed, via his solicitors, to reinvestigate the matters identified.

The concept underpinning the disclosure obligation was one of fairness, but having analysed the decided cases and the position in comparative jurisdictions, the court held there was no basis for saying that the common law had ever recognised a duty of disclosure/inspection after conviction identical to the duty prevailing before and during trial. As a result, the court concluded that the "fallacy [in the claimant’s argument to the contrary] lies in the implicit assumption that the common law duty, as it evolved, was identical before and after conviction." On the contrary, the common law duty "was not devised in order to equip convicted persons such as the claimant with a continuing right to indefinite reinvestigation of their cases, and the fact that some such persons assert that their convictions were miscarriages of justice does not mean that it was."

The duty post-conviction was properly stated in the Attorney General’s guidelines:

"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."

Supplementing that duty was judicial encouragement to make appropriate enquiries, but only "if there exists the real prospect of further enquiry may reveal something affecting the safety of the conviction." The appeal failed.

Comment

Although the appeal failed for this claimant, the court did recognise the valuable work done in addressing miscarriages of justice, often through the combined efforts of solicitors, police and prosecutors. But that did not make for a general duty on police forces as this claimant argued. The court paid due regard to "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…good reason is established."

The court suggested this sensible approach:

"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 interest to resist all enquiry unless and until the CCRC directs it."

For further information about Weightmans or to discuss any of the issues in this update, please contact Nick Peel, Partner, on 0151 242 9453 or email nick.peel@weightmans.com