Supreme Court clarifies continuing police disclosure obligations
The recent Supreme Court judgment in the case of R (on the application of Nunn) v Chief Constable of Suffolk Constabulary and another sheds further light on the continuing duty of the police and the Crown Prosecution Service to disclose information in criminal cases post-conviction.
The underlying criminal case revolves around the violent and sexually obscene murder of Dawn Walker in February 2005 and the subsequent conviction of her boyfriend, Kevin Nunn, in November 2006. Mr Nunn has always maintained his innocence and has unsuccessfully attempted to appeal against his conviction.
The Application for Judicial Review
Four months after his conviction, in January 2008, Mr Nunn (the "Applicant") made the first of a series of applications to the police requesting all records of their investigation, including officers' notebooks, computer files, incident logs, CID journals, all photographs and forensic science records. These initial applications were made under either the Freedom of Information Act 2000 ("FOIA") or the Data Protection Act 1998 ("DPA"). The police rejected the applications on the basis that anything relevant had been disclosed to the Applicant before the trial.
Various other written applications were made to the police on behalf of the Applicant by newly instructed solicitors in February 2010. The solicitors made clear that they were undertaking a full review of the underlying case and raised questions that required a detailed review of the investigation documents by the police. Again the police rejected the requests explaining that whilst they accepted it was incumbent upon them to disclose any material to a defendant which came to light after conviction which might cast doubt on the safety of it, they were under no duty to facilitate a general review of a finished case.
As a result the Applicant issued an application for judicial review on the grounds that the refusal of the police to disclose this material was unlawful under domestic common law, the provisions of Articles 5 (right to liberty and security) and 6 (right to a fair trial) of the European Convention of Human Rights ("ECHR") and/or under section 7 of the DPA. The application was refused by the Divisional Court and that decision was appealed to the Supreme Court.
The key question before the Supreme Court was whether the disclosure obligations of the Crown and the police, following conviction and exhaustion of appeal, extend beyond a duty to disclose material beyond that which may cast doubt upon the safety of a conviction.
The test for disclosure in criminal cases
There is a general duty on the Crown to disclose to a defendant anything that has become known to it and which might reasonably be considered capable either of undermining the prosecution case or assisting the defendant's, as set out in sections 3 and 7A of the Criminal Procedure and Investigations Act 1996 (the "Act").
The duties laid down by the Act are only relevant whilst the criminal justice process remains live. It is silent as to the position post-conviction. However the Attorney General's guidelines do deal with the post-conviction position stating at paragraph 72 of the 2013 edition that "where, after the conclusion of proceedings material comes to light that might cast doubt upon the safety of the conviction, the prosecutor must consider disclosure of such material".
Yet the Applicant argued that the duty of disclosure remains the same before and after conviction. This was based upon a view that in order for the Criminal Cases Review Commission to decide whether or not to review a conviction, the Applicant should have a right to re-investigate matters which have already been identified during the trial process. The Applicant suggested that there is an indefinitely binding common law duty upon the Crown to disclose anything which might reasonably be considered capable either of undermining the prosecution case or assisting a defendant's.
The Supreme Court rejected the Applicant's position and dismissed the appeal. It accepted that there are some continuing common law disclosure duties recognised pending sentence and/or appeal, but only in relation to material relevant to those live stages and not once those stages have passed. It could not identify any common law precedent which recognised a duty of disclosure/inspection after conviction which was identical to that prevailing prior to and during trial.
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 a defendant may make for access to the case materials to allow re-investigation. Instead the duty is limited to that set out in the Attorney General's guidelines.
Considerations of public policy were clearly at the forefront of the Court's conclusions. The Court emphasised the importance of the finality of proceedings, except in circumstances where there has been a flaw in the conviction that renders it unsafe. It focused upon the logistical issues at play in explaining why police resources are better spent on current investigations, rather than the re-investigation of concluded cases, unless good reason is established.
Does ECHR/DPA/FOIA assist in this context?
The Court did not focus upon the fact that the application for judicial review was founded upon an alleged breach of Articles 5 and 6 of the ECHR and section 7 of the DPA (as well as the domestic common law). Almost in passing the Court confirmed that any application of this nature under FOIA or DPA would be misconceived in light of section 30 of FOIA and section 29 of the DPA, which carve out specific exceptions in relation to criminal investigations and proceedings. The relevance (if any) of Articles 5 and 6 of ECHR was not considered and does not appear to have been advanced any further by the Applicant. It seems clear therefore that the Supreme Court does not consider that these statutes assist a convicted criminal attempting to expand the Crown's duties of disclosure beyond material that might cast doubt upon the safety of the conviction.