R v Chief Constable of Suffolk Constabulary and another

The prosecution’s pre-trial disclosure duty does not continue indefinitely after conviction. Fairness requires disclosure duties to be adapted to the stage reached in the criminal process.

After the appellate process is exhausted, police and prosecutors must disclose new material which might afford arguable grounds for contending that the conviction is unsafe. They have no general duty to provide renewed access to previously disclosed material or to undertake speculative re-investigation at a convicted person’s request.

Further enquiry should nevertheless be undertaken where there is a real prospect that it will reveal something affecting the safety of the conviction. Disputed requests should ordinarily be considered by the Criminal Cases Review Commission before judicial review is pursued.

The appellant was convicted of murder in 2006. His application for leave to appeal against conviction was refused. Fresh solicitors subsequently sought access to police investigation material, forensic scientists’ working papers and exhibits for further scientific testing.

The police accepted an obligation to disclose new material which might cast doubt on the conviction, but declined to facilitate a general review of the concluded investigation. The appellant sought judicial review, relying on the common law, articles 5 and 6 of the European Convention on Human Rights and section 7 of the Data Protection Act 1998.

The Divisional Court refused the application: [2012] EWHC 1186 (Admin). The certified question was whether post-conviction disclosure obligations extended beyond material which might cast doubt on the safety of the conviction, so as to require disclosure of the material sought.

1. Appeal dismissed. Lord Hughes delivered the unanimous judgment, with which Lord Neuberger, Lord Clarke, Lord Reed and Lord Carnwath agreed.

2. The disclosure duties in sections 3 and 7A of the Criminal Procedure and Investigations Act 1996 apply during Crown Court proceedings and end with the trial. Section 21 displaces the former common law duties while the statutory scheme applies. The statutory duty therefore did not apply to the appellant.

3. Fairness is the principled source of the common law duty of disclosure, but fairness does not require an identical duty at every stage. Before trial, pending sentence and during an appeal, the duty is tailored to the needs of the particular stage. While an appeal is pending, it extends to material relevant to an identified ground of appeal which might assist the appellant. It does not require the prosecution to repeat the entire disclosure exercise so that an appellant may search for a new ground.

4. After conviction and exhaustion of appellate rights, the convicted person’s position differs from that of an accused awaiting trial. The interests in identifying unsafe convictions must be balanced against finality and the proper allocation of finite investigative resources. The common law disclosure duty was an incident of the fair trial process. It did not confer an indefinite right to re-investigation.

5. If police or prosecutors acquire new material which might provide arguable grounds for contending that a conviction is unsafe, they must disclose it unless there is good reason not to do so. That obligation does not require renewed access to material disclosed at trial or further enquiries whenever requested.

6. Police and prosecutors should nevertheless exercise sensible judgment. Where there is a real prospect that further enquiry will reveal something affecting the safety of the conviction, the enquiry ought to be made. Merely speculative requests do not meet that standard. The Criminal Cases Review Commission provides the principal safety net and can require production, investigation or scientific testing. Judicial review will ordinarily be inappropriate until the Commission has had an opportunity to reach a reasoned decision.

7. The requested inspection of all scientific working papers and much of the proposed testing were speculative. The mere fact that DNA testing was sought did not establish a real prospect of obtaining material affecting the conviction’s safety. Any further request was to be assessed under the stated principles, initially by the police and, if necessary, by the Commission.

1. United Kingdom Supreme Court: The appeal was dismissed unanimously: [2014] UKSC 37.
2. Divisional Court of the High Court: Sir John Thomas P and Haddon-Cave J refused the application for judicial review: [2012] EWHC 1186 (Admin).
3. Court of Appeal (Criminal Division): The appellant’s application for leave to appeal against conviction was refused on 17 October 2007. No citation is stated.