Facts
This case concerned the extent of any continuing duty upon the police or the Crown Prosecution Service to assist a convicted person in gathering and examining evidence post-conviction, with a view to challenging that conviction on appeal.
The appellant, Kevin Nunn, was convicted in November 2006 of the murder of his former girlfriend. Nunn instructed new solicitors following conviction who sought access to DNA evidence in order for advanced scientific testing to take place that was not available at trial, but Suffolk Police refused. Upon seeking a judicial review of this decision, the Divisional Court refused the application, holding that there was no right to disclosure.
Following the refusal, Nunn appealed to the Supreme Court.
Held
The case was heard by the UK Supreme Court on 13 March 2014. Judgment was given on 18 June 2014. The Court dismissed the appeal.
The Appellant argued that the duty of disclosure that exists pre-conviction remains in place post-conviction. The statutory duty relating to disclosure by prosecuting authorities of material that undermines the prosecution or supports the defence is expressly framed as continuing only until the end of trial, but the Appellant and Intervenors contended that the same duty continues indefinitely at common law.
Whilst the UK Supreme Court dismissed the appeal on the facts, it did clarify that a duty of post-conviction disclosure exists in circumstances wider than the High Court had previously held. The Court found this duty to arise in two ways: firstly, where material comes to light that casts doubt upon the safety of the conviction, unless there is good reason not to disclose; and secondly, if there exists a real prospect that further enquiry will reveal something that may affect the safety of the conviction (at [41]). It is this latter condition that Nunn failed to fulfil. The Court was not convinced that the issue was sufficiently targeted given that it was not clear whether DNA samples would be revealed on some untested material, and an explanation had been posited at trial for unknown DNA deposits on other material.
Significantly, the Court highlighted the importance of investigatory work conducted by solicitors and other bodies in proving miscarriages of justice, and the need for the police to cooperate with reasonable requests:
“there is no doubt that there have been conspicuous examples of apparent 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 parties.”
The Court’s emphasis on the need for greater cooperation was influenced by the Intervenors who detailed the important role of post-conviction investigation in bringing miscarriages of justice to light.
The Court indicated that ‘[t]he police and prosecutors ought to exercise sensible judgment when representations of this kind are made on behalf of convicted persons.’
JUSTICE intervened jointly with Innocence Network UK (INUK) and the Criminal Appeal Lawyers Association (CALA), kindly represented by Henry Blaxland QC, David Emanuel and instructed by White & Case LLP.