Bamber, R (on the application of) v Crown Prosecution Service

After conviction, the prosecution must disclose material that may cast doubt on the safety of the conviction and must make further inquiries where there is a real prospect that they will reveal such material. The Criminal Cases Review Commission is ordinarily the appropriate first forum for assessing proposed new evidence and seeking disclosure. Judicial review is a poor vehicle for resolving highly complex, fact-sensitive disclosure disputes where the court lacks the complete evidential picture. In such cases, the claimant must show an arguable error of law in the prosecution’s decision; disagreement with the assessment of an expert report is insufficient.

The claimant, convicted of five murders, sought permission to challenge the Crown Prosecution Service’s refusal to disclose material concerning an alleged second sound moderator. He said the material was required to enable a forensic expert to complete a report for submission to the Criminal Cases Review Commission.

Permission had previously been refused by Saini J. The renewed application raised whether the CPS had misapplied the post-conviction disclosure principles in R (Nunn) v Chief Constable of Suffolk [2015] AC 225, whether the Criminal Cases Review Commission provided an adequate alternative remedy, and whether the CPS’s decision was arguably unlawful.

1. Application refused. The claimant was not left without a remedy and could present his existing material, including an unqualified expert report, to the Criminal Cases Review Commission.
2. R (Nunn) v Chief Constable of Suffolk [2015] AC 225 recognised a continuing post-conviction duty to disclose material which might cast doubt on the safety of a conviction. Where there is a real prospect that further inquiry may reveal such material, the inquiry ought to be made. The Criminal Cases Review Commission should ordinarily be the first port of call for a convicted person seeking disclosure for reinvestigation.
3. The present dispute was fact-specific and exceptionally complex. It involved a vast body of evidence assembled through investigation, reinvestigation and extensive litigation. Judicial review was a hopelessly blunt tool for determining what disclosure had been made, what further material existed, and whether the alleged second moderator could affect the safety of the convictions.
4. The court could not conclude that the CPS had erred in law. On the material before it, the court was not readily able to accept that the alleged second moderator could meaningfully affect the safety of the convictions. The relevance of the recovered moderator arose from the blood and paint evidence and the conclusion that the victim could not have shot herself with the moderator attached.
5. The court agreed with Saini J’s reasons. The renewed application for permission to seek judicial review was refused.

• High Court (Administrative Court): Saini J refused permission on 22 January 2020. On renewal, Mr Justice Julian Knowles refused permission to seek judicial review.