Nunn v Suffolk Constabulary & Anor

A convicted defendant has no general right to obtain post-conviction disclosure or require the police to reinvestigate a case. The ordinary safeguards are the trial process, continuing prosecutorial duties, appeal, and the Criminal Cases Review Commission. A post-conviction duty to consider disclosure or review arises only where material exists, or testing might reasonably be expected to produce material, that may cast doubt on the safety of the conviction. Where a proper case is advanced and disclosure or retesting is refused, the court determines the issue itself. It does not merely review the refusal for irrationality.

The claimant had been convicted of murder and his application for permission to appeal had been refused by the Court of Appeal Criminal Division: [2007] EWCA Crim 2663. He sought judicial review requiring the police and the Crown Prosecution Service to release forensic files and permit further testing. His experts wished to investigate possible advances in DNA and other forensic techniques before making representations to the Criminal Cases Review Commission. The central issue was whether the state owed a wider post-conviction duty of disclosure or reinvestigation.

1. The court held that the state’s obligations to guard against miscarriages of justice are provided through a layered system: the investigation and trial process, the prosecutor’s duty to act in the interests of justice, disclosure obligations, appeal to the Court of Appeal Criminal Division, and the Criminal Cases Review Commission.

2. The statutory continuing disclosure duty under section 7A of the Criminal Procedure and Investigation Act 1996 ceases on conviction, acquittal or discontinuance. The Attorney-General’s Guidelines and CPS guidance nevertheless require consideration of post-conviction disclosure where material comes to light that might cast doubt on the safety of the conviction. The existence of the Criminal Cases Review Commission was a powerful consideration limiting the police and CPS duty to that scope.

3. There is no general right to disclosure to facilitate a convicted person’s fishing expedition, reinvestigation or re-examination of matters that could have been investigated at trial. Something materially capable of casting doubt on the safety of the conviction is required. Scientific advances may satisfy that threshold where testing unavailable at trial might reasonably be expected to produce a result affecting the conviction’s safety.

4. Where a proper case for disclosure or retesting is advanced, the issue is ultimately for the court. The court must determine whether disclosure or retesting should occur, rather than asking only whether the police or CPS acted irrationally.

5. On the evidence, the claimant had not identified material, or potential test results, capable of meeting the threshold. The claim therefore failed on the facts. Permission was granted because of the importance of the general issue, but the substantive claim was dismissed.

The claimant’s conviction was followed by refusal of permission to appeal by the Court of Appeal Criminal Division, [2007] EWCA Crim 2663. The present proceedings were a first-instance judicial review claim in the Administrative Court.