R (Nunn) v Chief Constable of Suffolk Constabulary and another [2014] UKSC 37

R (on the application of Nunn) v Chief Constable of Suffolk Constabulary and another [2014] UKSC 37 concerned an appeal by Lord Hughes, with whom Lord Neuberger, Lord Clarke, Lord Reed and Lord Carnwath agreed, from the Divisional Court’s refusal of judicial review. The Supreme Court dismissed the appeal, holding that the Crown’s duty of disclosure after conviction and exhausted appellate rights is materially more limited than the duty that applies during the trial process.

Mr Nunn had been convicted of the murder of his former girlfriend, Dawn Walker, in November 2006. His application for leave to appeal was refused by the Court of Appeal (Criminal Division) in October 2007 after consideration of written and oral submissions. The prosecution case had relied on motive (the ending of their relationship), evidence of jealousy and stalking behaviour, his presence with the deceased on the evening she disappeared, neighbours’ evidence of an argument, his possession of a key to her home, his false explanation to her employers, and identification evidence placing him removing a large wrapped object from her house. The defence case pointed to an alternative perpetrator, the presence of sperm cells inconsistent with his vasectomy, and other matters. The jury convicted after a six-week trial. Scientific evidence at trial had been largely inconclusive as to the killer’s identity, though it included footprints near the riverbank consistent with the appellant’s boots and DNA material that was fully explored.

Beginning in January 2008, Mr Nunn made a series of requests to the police for comprehensive access to all investigation materials, initially framed under the Freedom of Information Act 2000 or Data Protection Act 1998. In February 2010, newly instructed solicitors began seeking specific information, including material relating to the deceased’s finances, forensic scientists’ working papers, and access to exhibits for further testing. The requests made clear that a full review of the case was being undertaken to identify fresh evidence, with further requests anticipated as the review progressed. The police replied in February 2011 accepting an obligation to disclose any post-conviction material that might cast doubt on the safety of the conviction, but refusing to facilitate a general trawl through a concluded case. The claim for judicial review sought declarations and mandatory orders requiring the Chief Constable to grant access to prosecution evidence on grounds of domestic common law, articles 5 and 6 of the ECHR, and section 7 of the Data Protection Act 1998.

Mr Southey QC for the appellant advanced the central submission that the common law duty of disclosure developed to prevent miscarriages of justice remained in identical form after conviction as during trial. He accepted that the statutory duties under sections 3 and 7A of the Criminal Procedure and Investigations Act 1996, which require disclosure of material that might reasonably undermine the prosecution case or assist the defence, cease at the end of the trial pursuant to section 7A(1)(b). He contended, however, that those statutory duties merely enacted the pre-existing common law duty, which continued to bind the Crown indefinitely after conviction with the same content, so as to enable detection and correction of any miscarriage of justice. On this basis, the appellant claimed entitlement to the same level of disclosure and inspection as during the trial process, to facilitate his re-investigation and any subsequent application to the Criminal Cases Review Commission.

Lord Hughes traced the development of the common law duty of disclosure from cases such as R v Bryant and Dickson (1946) and Dallison v Caffery [1965] 1 QB 348 through to its expansion in response to notorious miscarriages such as R v Ward [1993] 1 WLR 619, where wholesale non-disclosure of scientific material necessitated quashing bomb-setting convictions some twenty years after trial. His Lordship noted that the 1996 Act put the common law duty into statutory form, somewhat modifying the test whilst maintaining its purpose, and expressly displaced the common law duties by section 21 where the statutory scheme applied. The Act defined the period of the statutory duties as beginning when the case arrives in the Crown Court and ending with the end of the trial, whether by conviction, acquittal or discontinuance.

The court emphasised that the principled origin of the disclosure duty is fairness, citing Lord Bingham’s observation in R v H [2004] UKHL 3; [2004] 2 AC 134 that fairness ordinarily requires disclosure of material held by the prosecution which weakens its case or strengthens the defence, and that bitter experience has shown miscarriages may occur where such material is withheld. Lord Hughes held, however, that fairness does not require the same level of disclosure at every stage of the criminal process. He examined how the common law had adapted the duty to different procedural stages. In R v Director of Public Prosecutions, Ex p Lee [1999] 1 WLR 1950, the Divisional Court held that before committal to the Crown Court, some disclosure was required but not the “full blown” version applicable under the 1996 Act, with examples including evidence relevant to bail, abuse of process applications, or unused witnesses whose evidence might deteriorate. Similarly, the Attorney General’s guidelines recognised a continuing common law duty pending sentence, but only regarding material relevant to that stage, such as information assisting the defendant in placing his role in context vis-à-vis other offenders.

Whilst an appeal is pending, the court held that a limited common law duty remains, extending in principle to material relevant to identified grounds of appeal which might assist the appellant. Ordinarily this arises only regarding post-trial material, but extends to pre-existing material if there has been a failure of disclosure at trial, as illustrated by R v Makin [2004] EWCA Crim 1607. The court approved the Privy Council’s approach in McDonald v HM Advocate [2008] UKPC 46; 2010 SC (PC) 1, which accepted that failures of disclosure at trial must be remedied on appeal, but rejected as “an extravagant proposition” any duty to re-perform the entire disclosure exercise so the appellant could devise additional grounds of appeal. Lord Rodger had explained in McDonald that such an obligation would be unduly burdensome and often inappropriate at the appellate stage, because the real issues will have been focused at trial and material potentially significant before trial may now be seen to have been irrelevant given the way the case developed.

Lord Hughes reviewed decisions from other common law jurisdictions reaching similar conclusions. In The Queen v Nepia (unreported, 3 October 2000) and Cant v The Queen [2013] NZCA 321, the New Zealand Court of Appeal held that requests for disclosure on appeal must have a material bearing on an articulated ground and should not be used for general fishing expeditions. In The Queen v Trotta [2004] CanLII 600114, the Ontario Court of Appeal held that whilst disclosure obligations continued into the appellate process, the convicted person was no longer presumed innocent and had exhausted his right to make full answer and defence, so the duty extended only to information where the accused could show a “reasonable possibility” it could assist his appeal. In District Attorney’s Office (Third Judicial District) v Osborne 557 US 52 (2009), the US Supreme Court unanimously held that the Brady disclosure rules applicable at trial did not continue unaltered after conviction, with Roberts CJ observing that the convicted person’s due process right must be analysed in light of the fact he has already been found guilty at a fair trial and has only a limited interest in post-conviction relief.

The court rejected the submission that the common law ever recognised a post-conviction disclosure duty identical to that prevailing during trial. Lord Hughes identified the fallacy in the appellant’s argument as lying in the implicit assumption that the common law duty was identical before and after conviction, whereas the authorities demonstrated it was tailored to the needs of each stage. The duty developed as an incident of the trial process to ensure fairness to defendants and 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 to equip convicted persons with a continuing right to indefinite re-investigation.

The position of a convicted defendant was held to be different in kind from that of a defendant on trial. The latter is presumed innocent until proved guilty; the former is presumed guilty unless and until it is 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 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 possible; after conviction, whilst there is an important public interest in exposing any flaw rendering a conviction unsafe, there is also a powerful public interest in finality, with witnesses, complainants, relatives of the deceased and others having a legitimate interest in knowing the legal process is at an end unless there is good reason for re-opening it.

Lord Hughes noted the practical implications of the duty contended for. The products of a major investigation are typically voluminous and generally archived after appeal. Making an informed search requires mastering the materials. Police officers move on or retire. Active management and re-consideration requires diverting officers from current investigations. The evidence in the instant case was that reviewing stored evidence to deal with the appellant’s subject access request occupied approximately four man-days of police time. There is a clear public interest that current investigations should be prioritised over re-investigation of concluded cases unless good reason is established.

The court held 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 the conviction was unsafe, it is their duty to disclose it to the convicted defendant. Simple examples include a new credible confession by someone else or the incidental discovery of a pattern or evidence throwing doubt on the conviction. Paragraph 72 of the Attorney General’s guidelines, which provides that where material comes to light after conviction that might cast doubt upon the safety of the conviction the prosecutor must consider disclosure, correctly recognises this obligation, though it must mean that disclosure should be made unless there is good reason why not. This is, however, plainly different from an obligation to afford renewed access to material disclosed at trial or to undertake further enquiries at the defendant’s request.

The court emphasised the role of the Criminal Cases Review Commission as the safety net in case of disputed requests for review. The CCRC 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 newly available scientific tests be undertaken, as appeared to have occurred in R v Shirley [2003] EWCA Crim 1976. What it ought not to do is indulge the merely speculative. The CCRC is an independent body specifically skilled in examining evidence and determining when there is a real prospect of material emerging affecting the safety of a conviction, involving detailed scrutiny of the other evidence and judgment on the likely impact of whatever fresh enquiries may generate. Whilst in principle the court retains control via judicial review of the post-appeal duty on police and prosecutors, it is likely to determine, unless good reason is provided, that relief by that route is inappropriate until the CCRC has had opportunity to make a reasoned decision.

Lord Hughes observed that the work of solicitors and others in the interests of convicted persons may be of great value. The CCRC is much assisted by informed legal analysis and presentation. Such solicitors can sometimes usefully undertake enquiries of their own or enlist the co-operation of police or prosecutors; R v Hodgson [2009] EWCA Crim 490, where DNA analysis of preserved samples excluded the defendant some twenty-seven years after conviction for rape and murder, was cited as an example of such co-operation. The police and prosecutors ought to exercise sensible judgment when representations are made; if there appears to be a real prospect that further enquiry will uncover something affecting the safety of the conviction, there should be co-operation in making it, as it is in nobody’s interests to resist all enquiry unless and until the CCRC directs it.

The court held 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 case materials to allow re-investigation. The duty is properly stated at paragraph 72 of the Attorney General’s guidelines, 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. The Divisional Court had held there was no basis for concluding that any of the enquiries in the present case went beyond the simply speculative, and the Supreme Court did not disturb that conclusion. Lord Hughes observed that the request for forensic science working papers was plainly speculative, particularly as the appellant’s own expert report stated there was no reason to query any of the work done or conclusions reached. Some requests for testing appeared to be made simply because the appellant or his family wished it done. Even regarding new possibilities for DNA testing of certain swabs, the appellant’s forensic science report concluded that even if a match were found to one of the men discussed in the case, that would not necessarily exclude the appellant as the killer, and any DNA found need not be related to the killing. On the limited information available, it seemed unclear that a real prospect was established of material emerging affecting the safety of the conviction, though any further request should be tested on the principles explained, in the first instance by the police and if necessary by the CCRC.

In short, the appeal was dismissed, the Supreme Court holding that the Crown’s duty of disclosure after conviction and exhausted appeal is limited to disclosing material that comes to light which might cast doubt on the safety of the conviction, or facilitating enquiries where a real prospect exists of uncovering such material, and does not extend to affording continuing access for general re-investigation of a concluded case.

Dallison v Caffery [1965] 1 QB 348
R v Ward [1993] 1 WLR 619
R v Mills [1998] AC 382
Keane [1994] 1 WLR 746; [1994] 2 All ER 478, 99 Cr App R 1, [1995] Crim LR 225
H [2004] UKHL 3; [2004] 2 Cr App R 10, [2004] 2 AC 134
Director of Public Prosecutions ex parte Lee [1999] 1 WLR 1950; (1999) 2 Cr. App. R. 304
Makin [2004] EWCA Crim 1607
McDonald v HM Advocate [2008] UKPC 46
Cant v The Queen [2013] NZCA 321
The Queen v Trotta [2004] CanLII 600114
R v Stinchcombe [1991] 3 SCR 326
Secretary of State for the Home Department Ex Parte Simms [2000] 2 AC 115

Hodgson [2009] EWCA Crim 490
Shirley [2003] EWCA Crim 1976
Nunn v Chief Constable of Suffolk [2012] EWHC 1186 (Admin)

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Austin [2015] EWCA Crim 349
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