R v Chief Constable of Suffolk Constabulary and another

This appeal concerns the scope of the continuing duty of the Crown and the police to disclose and to facilitate inspection of material after conviction and after the exhaustion of ordinary appeal rights, with particular reference to sections 3 and 7A of the Criminal Procedure and Investigations Act 1996. The Supreme Court held that the statutory disclosure regime under the 1996 Act, which operates until the end of trial, displaced the former common law duty during trial but did not leave intact an identical, indefinite post-conviction duty. After conviction and exhaustion of appeal the Crown and police must disclose any new material that might cast doubt on the safety of the conviction, and they should consider re-investigation or testing where there is a real prospect that further enquiries would reveal material affecting safety, but there is no general duty to permit indefinite re-investigation or unfettered access to archived investigation material.

The court relied on the purpose of disclosure as fairness during the trial process, the statutory scheme (including the timing and scope of disclosure in the 1996 Act), the public interest in finality, and the role of the Criminal Cases Review Commission as the proper body to investigate disputed convictions. The appeal was dismissed because the Divisional Court correctly found that the claimant's requests were speculative and did not establish a real prospect that further enquiries would reveal material affecting the safety of the conviction.

Background and parties: Kevin Nunn was convicted of murder in November 2006. Leave to appeal to the Court of Appeal (Criminal Division) was refused. He sought judicial review of the police's refusal to grant broad access to prosecution material and to undertake further testing, claiming ongoing duties of disclosure and inspection under domestic common law, the European Convention on Human Rights and the Data Protection Act 1998. The respondents were the Chief Constable of Suffolk Constabulary and the Crown Prosecution Service. The Divisional Court refused relief and the claimant appealed to the Supreme Court.

Nature of the application: The claimant sought (a) a declaration that the police refusal to grant access to evidence was unlawful (on common law and human rights grounds and under data protection) and (b) a mandatory order requiring access to prosecution evidence. The practical focus was on forensic scientists' working papers and re-testing of exhibits by modern DNA techniques.

Issues framed:

• Whether any pre-existing common law duty of disclosure continued after conviction in the same form as before and during trial.
• If not, what duties of disclosure or co-operation the police and Crown prosecution have after conviction and exhaustion of appeal rights, including the extent to which they must facilitate re-testing or further enquiries.
• The proper role of the Criminal Cases Review Commission (CCRC) and the public interest in finality and resource allocation.

Court’s reasoning: The court began by describing the historical development of disclosure, the enactment of the Criminal Procedure and Investigations Act 1996 and the statutory cut-off of disclosure duties at the end of trial. It held that the common law duty had always been adaptable to the procedural stage and never operated after conviction in the full form applicable at trial. Fairness requires more extensive disclosure before and during trial than after conviction. After conviction the prosecutor must disclose material that comes to light which might cast doubt on the safety of the conviction. Where a convicted person seeks review or further testing, a requirement to undertake widespread re-investigation or to facilitate access to all material on demand would be unduly burdensome and contrary to the public interest in finality and resource prioritisation.

The CCRC provides the appropriate investigatory safety net and has powers to require production and to commission new tests; it should, in many instances, be given the first opportunity to consider contested requests. However, the court added that if there exists a real prospect that further enquiry may reveal material affecting the safety of conviction, then that enquiry ought to be made with reasonable co-operation by police and prosecutors.

Disposition: The Supreme Court found no indefinite duty to facilitate the claimant’s broad requests; the Divisional Court was correct to refuse relief because the claimant had not shown a real prospect that further testing or access would produce material affecting the safety of the conviction.

Appeal dismissed. The court held that statutory disclosure under the Criminal Procedure and Investigations Act 1996 governs disclosure through the end of trial and the common law duty was adapted to procedural stage rather than remaining identical after conviction. After conviction and exhaustion of ordinary appeals the Crown and police must disclose any new material that might cast doubt on the safety of the conviction and should pursue further enquiry where there is a real prospect that it will reveal material affecting safety, but there is no general duty to permit unlimited re-investigation or to grant all requests for access to archived material. The claimant’s requests were speculative and did not meet the required threshold.

Convicted November 2006; application for leave to appeal to the Court of Appeal (Criminal Division) refused on 17 October 2007. Judicial review in the Divisional Court was refused ([2012] EWHC 1186 (Admin)). The present appeal to the Supreme Court dismissed ([2014] UKSC 37).