UK Supreme Court Blog

EDITORS: Dan Tench, Emma Cross, Zainab Hodgson, Francesca Knight, James Warshaw and Natalie Haefner (CMS)
Hugh Tomlinson KC, Matthew Ryder KC, Dévante Gravesande-Smith and Rebecca Khan (Matrix)

The Supreme Court refused the appeal of Mr Nunn, holding that the police and prosecution’s duty of disclosure post-conviction is more limited than their duty of disclosure during proceedings; it is restricted to covering only such evidence as could question the safety of the conviction.

There are a number of controversial aspects to the judgment, most notably the finding that the public interest in discovering miscarriages of justice could be outweighed by competing public interests in the finality of proceedings and the efficient use of police resources.

Facts and Issues

Mr Nunn was convicted of the murder of his girlfriend in 2006. Two days after the end of their relationship, her body was found near a river, having been subject to sexual degradation. There was evidence that on the night of her disappearance they had argued, and that the next day Mr Nunn appeared to carry a body out of her house. Sperm was found on the victim’s inner thigh and pubic area, but forensic evidence did not attribute it to Mr Nunn or anyone else. Mr Nunn claimed that it could not be his as he had undergone a vasectomy.

Mr Nunn’s application to appeal his conviction was refused on the basis that there was no arguable ground for considering his conviction unsafe. He instructed new solicitors to request further information from the police, and proceeded to ask for all of the investigation records, information about the victim’s finances, and the forensic scientists’ reports.

The police stated in reply that, post-conviction, they were only obliged to disclose material that could throw the safety of his conviction into doubt, and that the information he had requested could not do so. Mr Nunn sought judicial review of that decision on the basis that the police’s duty of disclosure remained the same after conviction as before: to disclose anything that might reasonably be considered capable either of undermining the prosecution case or of assisting his own.

Case History

In 2012 the Divisional Court found that an individual convicted of a crime had a right to further disclosure only insofar as it “materially may cast doubt upon the safety of the conviction” (para. 33); not if it only served to facilitate his own re-investigation of the case. The Court held that Mr Nunn’s enquiries fell into the latter category, and so dismissed his application for judicial review. Mr Nunn appealed these findings.

Supreme Court judgment

In a judgment delivered by Lord Hughes, the Supreme Court unanimously refused Mr Nunn’s appeal. The key points were as follows:

(1) The statutory duty of disclosure under the Criminal Procedure and Investigations Act 1996 – applicable to any material “which might reasonably be considered capable of undermining the case for the prosecution or of assisting the case for the accused” – is limited to the trial period and therefore does not assist Mr Nunn (paras. 18-20).

(2) The common law duty of disclosure is a general duty to disclose any evidence reasonably thought capable of assisting a defendant (para. 16). It is based on fairness, but fairness does not require the same level of disclosure at each stage of the proceedings (paras. 22-28).

(3) In determining what fairness requires post-conviction, the public interest in exposing unsafe convictions must be weighed against the public interest in the finality of proceedings, and in distributing police resources effectively (paras. 32-33).

(4) The Supreme Court agreed with the Divisional Court that, post-conviction, the police must still disclose any information that would afford arguable grounds for the conviction being unsafe, but that this was the limit of the post-conviction duty (paras. 34-38).

(5) Nevertheless, it is always open to the police and prosecutors to accede to any requests made by convicted persons, and they should exercise sensible judgment when considering if further enquiries might uncover something of value (para. 41).

(6) An additional safety net exists in the form of the Criminal Cases Review Commission, which has extensive investigative powers and can refer convictions that it considers unsafe to the Court of Appeal (para. 20).

Commentary

The Supreme Court’s finding that the public interest in discovering miscarriages of justice could be outweighed, at least to some extent, by the public interest in the finality of proceedings and the efficient use of police resources is undoubtedly going to cause controversy. Critics might question, for example, whether there is any public interest in the finality of proceedings unless the outcome of those proceedings was just; or whether the pursuit of efficiency should be permitted to detract from the pursuit of justice.

Additionally, the Court’s confirmation of the limited nature of the post-conviction duty of disclosure might be critiqued on more practical grounds. One issue, for example, is that defendants may find themselves having to demonstrate that the information they are requesting could cast doubt upon their conviction before they are granted access to this information. In the foreseeable event that they are unable to make a satisfactory case for its disclosure, it will fall to police and prosecutors to use their ‘sensible judgement’ in deciding whether to accede to the request. The lack of clarity or guidance in this procedure has the potential to leave it open to abuse.

Finally, JUSTICE’s submissions to the Supreme Court as an intervener in this case contain several interesting concerns in relation to the ‘safety net’ of the Criminal Cases Review Commission. Crucially, they raise the issue that references to the CCRC must generally be made on the basis of evidence or argument that was not raised during proceedings. In order to make their submission, defendants may therefore require further disclosure, especially if their lawyers failed to make appropriate enquiries of the police and prosecution during the trial stage. As a result, in some cases the CCRC may not work as a ‘safety net’ for defendants who cannot gain access to disclosure post-conviction, as access to the CCRC will fail for the same reason.

To read JUSTICE’s submissions, please see here.

Catherine is a paralegal at David Phillips & Partners, working in criminal defence. After studying Politics and Philosophy at the University of Sheffield, she completed a Graduate Diploma in Law, and is working towards a career at the Criminal Bar. She is currently gaining her police station accreditation, and regularly volunteering as a Legal Observer on demonstrations.