R (on the application of Keogh) v Director of Public Prosecutions [2019] EWHC 912 (Admin)
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R (on the application of Keogh) v Director of Public Prosecutions [2019] EWHC 912 (Admin) was a renewed application for permission to bring a claim for judicial review, dismissed by the High Court on the ground that the claimant’s proper remedy lay with the Criminal Cases Review Commission rather than judicial review of a refusal to disclose material.
Mr Keogh had been convicted of murder at Liverpool Crown Court in November 2008. His victim was Robert Monteith in Rainhill, Merseyside. The Court of Appeal (Criminal Division) refused permission to appeal against conviction in 2011, reported at [2011] EWCA Crim 1888. The prosecution case had rested principally upon CCTV footage said to show Mr Keogh at a location relevant to the timeline and his opportunity to commit the offence, and upon forensic evidence. A spot of blood on a watch the prosecution said Mr Keogh was wearing, as seen on CCTV, was found to contain DNA with a one in one billion chance of coming from someone other than the deceased. Blood staining on the lace of Mr Keogh’s trainer contained a mixed DNA profile of both the applicant and the deceased. The Court of Appeal had access to both the CCTV footage and the forensic file when it refused permission.
The claimant sought to challenge the Director of Public Prosecutions’ refusal to permit him access to the CCTV footage introduced at his trial or to the forensic file. The application was refused on the papers by Julian Knowles J. Mr Keogh renewed the application at an oral hearing. The defendant did not appear and was not represented.
Mrs Hackett, appearing on behalf of Mr Keogh, relied upon evidence from Ms Louise Shorter, CEO of Inside Justice. Ms Shorter stated that members of the Inside Justice Advisory Panel had difficulty understanding the scientific rationale underpinning the prosecution. She said there could be an innocent or alternative explanation for the DNA on the watch, and that Mr John Kennedy, a world-renowned expert in CCTV analysis, believed the CCTV as shown to the jury was incapable of establishing reliable evidence of guilt. Ms Joanne Millington, an expert in how blood is deposited in a forensic context, was said to have questioned the prosecution scientist’s approach. Ms Shorter argued that access to the forensic file was essential to enable experts such as Ms Millington to provide new evidence that might undermine the safety of the conviction. She stated that the application Inside Justice intended to make to the CCRC would be assisted by focused criticism of both the CCTV and the rationale for the forensic scientists’ conclusions, which only access to the forensic file would reveal.
Both parties addressed the decision of the Supreme Court in R (on the application of Nunn) v Chief Constable of Suffolk Police [2014] UKSC 37. In that judgment Lord Hughes, with whom the other members of the court agreed, held that after conviction there is no indefinitely continuing duty on the police or prosecutor to respond to whatever enquiries the defendant may make for access to case materials to allow re-investigation. The duty is as stated in paragraph 72 of the Attorney General’s guidelines, namely that where material comes to light after proceedings which might cast doubt upon the safety of the conviction, the prosecutor must consider disclosure. Lord Hughes explained that such material should be disclosed unless there is good reason why not, 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. Lord Hughes observed that the safety net in the case of disputed requests for review lies in the CCRC, which has extensive investigative powers including the power to require production of any material in the hands of the police or any other public body and to assemble fresh evidence not before the court at trial.
Mr Justice Supperstone applied the principles in Nunn and concluded that the claim was not arguable because the claimant had an alternative remedy by way of application to the CCRC. As to the CCTV, that evidence had been before the jury and the submission that expert evidence might show it to be unreliable could be placed before the CCRC for consideration and further investigation. As to the forensic file, no more was said than that experts needed access to it to be enabled to supply new evidence which might undermine the conviction. The Court of Appeal had itself had access to both the CCTV and the forensic file. The judge held that it was not suggested that there presently existed a real prospect that further enquiry might reveal something affecting the safety of the conviction, applying the Nunn test. Nor had material come to light post-conviction which, in accordance with the Attorney General’s guidelines, required disclosure unless good reason existed why it should not be disclosed. The claimant’s request was for material that had existed and been used at his trial. The judge saw no good reason why Mr Keogh should not pursue his challenge to conviction through the CCRC rather than by way of judicial review.
In short, permission was refused because the claimant had an adequate alternative remedy in the form of an application to the CCRC, which possessed extensive investigative powers to obtain material and to refer a conviction back to the Court of Appeal if there was a real possibility it might be quashed.