New Judgment: R (Nunn) v Chief Constable of Suffolk Constabulary & Anor  UKSC 37
18 Wednesday Jun 2014
On appeal from:  EWHC 1186 (Admin).
The appellant was convicted in November 2006 of killing his girlfriend. The appellant consistently asserted his innocence before, during, and following his trial. The appellant applied for permission to appeal to the Court of Appeal, which was refused. Following this, the appellant made written applications to the police for the supply of all their records of the investigation into his case and he later instructed new solicitors who made a number of further applications to the police on his behalf. The police in conjunction with the Crown Prosecution Service stated that their only obligation was to disclose material which might cast doubt on the safety of the appellant’s conviction, and that the material sought did not satisfy this test. The appellant judicially reviewed that decision, arguing that the police’s duty to disclose was the same after conviction as pending trial and appeal. The Divisional Court rejected the application.
On appeal to the Supreme Court, the appellant submitted that there is an enforceable common law disclosure obligation requiring the police to provide, in the appellant’s case, at least:
(1) Access to the working papers of the forensic scientists who advised the Crown and / or gave evidence, and
(2) Requests for re-testing or first-testing of various items of evidence recovered in the course of the investigation.
The Supreme Court unanimously dismissed the appeal. The common law duty of disclosure is based on fairness but fairness does not require the same level of disclosure at every stage of the process. To say that the full ‘trial’ duty of disclosure and investigation continue indefinitely would be contrary to the public interest in finality and to the need to apply finite police resources in an appropriate way. The statutory duty of disclosure under the Criminal Procedure and Investigations Act 1996 is temporally limited and for Crown Court cases it applies only between the arrival of the case in the Crown Court and the end of the trial. On the question of the post-conviction duty of disclosure, this is limited to the police or prosecution’s duty to disclose to the convicted defendant evidence that comes into their possession affording arguable grounds for contending that the conviction was unsafe, although there are some additional safety nets regarding this.