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You are here: BAILII >> Databases >> United Kingdom Supreme Court >> Nunn, R (on the application of) v Chief Constable of Suffolk Constabulary & Anor [2014] UKSC 37 (18 June 2014) URL: https://www.bailii.org/uk/cases/UKSC/2014/37.html Cite as: [2015] AC 225, [2014] 2 Cr App R 22, [2014] 4 All ER 21, [2015] Crim LR 76, [2014] WLR(D) 265, [2014] 3 WLR 77, [2014] UKSC 37, [2015] 1 AC 225 |
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Trinity Term
[2014] UKSC 37
On appeal from: [2012] EWHC 1186 (Admin)
R (on the application of Nunn) (Appellant) v Chief Constable of Suffolk Constabulary and another (Respondents)
Appellant Hugh Southey QC Adam Straw (Instructed by Saunders Law Ltd) |
1st Respondent Fiona Barton QC (Instructed by Legal Services, Suffolk County Council) |
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2nd Respondent Julian Knowles QC Paul Lodato (Instructed by Crown Prosecution Service Appeals Unit) |
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Intervener (Innocence Network UK; Justice; The Criminal Appeals Lawyers Association) Henry Blaxland QC David Emanuel (Instructed by White & Case LLP) |
LORD HUGHES (with whom Lord Neuberger, Lord Clarke, Lord Reed and Lord Carnwath agree)
"We should be most obliged if you could serve upon us some relevant and as yet undisclosed material in relation to the finances of the deceased, Dawn Walker.
The purpose of this enquiry is to ascertain whether Ms Walker had any undisclosed source of income which might indicate any form of economic activity which was not disclosed to the defence.
This enquiry is necessitated in part by the conclusion drawn from the available facts that Ms Walker was living at a standard way beyond the income which she earned at [her employers].
…..
We should also like to know whether the keys to the shed at Dawn Walker's home and her mobile phone can be made accessible to our expert, probably at the forensic science laboratory for the purpose of DNA testing."
"(a) A declaration that the defendant's 1 February 2011 refusal to grant the claimant access to prosecution evidence is unlawful being in breach of his rights under domestic common law, under articles 5 and 6 of the ECHR and/or under section 7 of the Data Protection Act 1998; and
(b) a mandatory order requiring the Chief Constable to grant the claimant access to the prosecution evidence,"
together with such other declaratory relief as might be appropriate. The Divisional Court (Sir John Thomas P and Haddon-Cave J) refused the application. This is the claimant's appeal from that refusal.
"Whether the disclosure obligations of the Crown following conviction extend beyond a duty to disclose something which materially may cast doubt upon the safety of a conviction, so that the [Chief Constable] was obliged to disclose material sought by the claimant in these proceedings ?"
"….might reasonably be considered capable of undermining the case for the prosecution against the accused or of assisting the case for the accused."
"Fairness ordinarily requires that any material held by the prosecution which weakens its case or strengthens that of the defendant, if not relied on as part of its formal case against the defendant, should be disclosed to the defence. Bitter experience has shown that miscarriages of justice may occur where such material is withheld from disclosure."
There is no doubt that this principle of fairness informs the duty of disclosure at all stages of the criminal process. It does not, however, follow, that fairness requires the same level of disclosure at every stage. The terms of section 7A of the statute plainly suggest otherwise. So, on inspection, does the jurisprudence.
"Not only would such an obligation be unduly burdensome, but it would often be quite inappropriate at the appeal stage. By then, the real issues in contention between the parties will have been focused at the trial. In this new situation material which might have seemed to be of potential significance for the defence before the trial (for instance as weakening the identification evidence of a witness to a murder) may now be seen to have actually been irrelevant (because for instance the accused admitted that he killed the deceased but pleaded self-defence).
In other words, what fairness requires varies according to the stage of the proceedings under consideration.
"Osborne's right to due process is not parallel to a trial right, but rather must be analysed in light of the fact that he has already been found guilty at a fair trial, and has only a limited interest in postconviction relief. Brady is the wrong framework."
The minority opinion, delivered by Justice Stevens, agreed on this. It included approval of Luttig J's statement in the earlier case of Harvey v Horan 285 F 3d (2002) 298 at 305 that:
"…no-one would contend that fairness, in the constitutional sense, requires a post-conviction right of access or a right to disclosure anything approaching in scope that which is required pre-trial…"
Whilst the jurisdictional question was later resolved in favour of a different appellant in Skinner v Switzer 562 US (2011) nothing in that decision bears on the distinction between disclosure pending trial and disclosure post-conviction.
"Post conviction.
72. 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."
The guideline must mean that not only should disclosure of such material be considered, but that it should be made unless there is good reason why not. Thus read, it is entirely consistent with the principle reflected in the position set out in the paragraphs above in relation to the pre-Crown Court stage, to the pending sentence stage and to the pending appeal stage. Mr Southey's submission entails the argument that the guidelines greatly understate the duty in the circumstances of the present claimant. He is entitled, if Mr Southey is right, to the full extent of the duty which the Crown had had during his trial. That would mean a duty to give active consideration, presumably continuously, to the state of the evidence. And, as the requests made of the police in the present case illustrate, it would mean a duty to respond from time to time to any requests for information, or for access to material, which the convicted defendant makes. The argument appears to be that his right to the performance of that duty endures indefinitely, or certainly whilst he, or perhaps anyone else, asserts that the conviction was wrong.