Citation Codes
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Attorney(S)
- Appellant Hugh Southey QC Adam Straw (Instructed by Saunders Law Ltd)
- 1st Respondent Fiona Barton QC (Instructed by Legal Services, Suffolk County Council)
- 2nd Respondent Julian Knowles QC Paul Lodato (Instructed by Crown Prosecution Service Appeals Unit)
- Intervener (Innocence Network UK; Justice; The Criminal Appeals Lawyers Association) Henry Blaxland QC David Emanuel (Instructed by White & Case LLP)
Judges
- LORD CLARKE
- LORD REED
- LORD NEUBERGER PRESIDENT
- LORD HUGHES
- LORD CARNWATH
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Nunn, R (on the application of) v. Chief Constable of Suffolk Constabulary & Anor
Smart Summary
Factual and Procedural Background
The Claimant was convicted in November 2006 of murdering his former girlfriend. His application for leave to appeal to the Court of Appeal (Criminal Division) was refused in 2007. Beginning in 2008, and acting through successive solicitors, he sought extensive post-conviction disclosure and inspection of police and forensic material, including:
- Blanket requests for the entire police investigation file under freedom-of-information and data-protection legislation;
- Specific requests for financial information about the deceased and access to exhibits for further DNA testing;
- Inspection of forensic scientists’ working papers so an independent expert could “check their adequacy”.
The Police (the Defendant) refused to facilitate a wholesale re-investigation but confirmed a willingness to disclose any material that came to light which might cast doubt on the conviction. The Claimant sought judicial review, requesting declaratory and mandatory relief compelling access. The Divisional Court dismissed the claim. This appeal is against that dismissal.
Legal Issues Presented
- Does the common-law duty of disclosure owed by the Crown prior to and during trial continue in identical form after conviction and exhaustion of appeal rights?
- If not, what post-conviction obligations do the Police and Crown Prosecution Service owe to a convicted person who asserts a miscarriage of justice?
Arguments of the Parties
Claimant's Arguments
- The statutory duties in the Criminal Procedure and Investigations Act 1996 merely codified a pre-existing common-law duty that remains binding indefinitely.
- Post-conviction fairness and the need to detect miscarriages of justice require the Police to facilitate a “full review” and provide access to all evidential material for independent testing.
- Refusal to do so breaches domestic common law, Articles 5 and 6 of the European Convention on Human Rights, and section 7 of the Data Protection Act 1998.
Defendant's Arguments
- The 1996 Act displaces the common-law duty during trial and expressly ends that duty when the trial concludes.
- After conviction, the duty is limited to disclosing new material that might cast doubt on the safety of the conviction, as reflected in paragraph 72 of the Attorney-General’s Guidelines.
- A convicted person’s proper remedy is to apply to the Criminal Cases Review Commission (CCRC); requiring police to re-investigate on speculative requests is unduly burdensome and contrary to the public interest in finality.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Brady v Maryland (1963, US) |
Early formulation of prosecution duty to disclose exculpatory evidence |
Referenced as parallel development; illustrates that disclosure duties differ pre- and post-conviction |
| R v Bryant and Dickson (1946) |
Common-law duty to disclose existence of material witnesses |
Cited to trace evolution of disclosure obligations |
| Dallison v Caffery (1965) |
Recognition of disclosure duty regarding witnesses |
Same contextual history as above |
| R v Ward (1993) |
Failure of scientific disclosure can render convictions unsafe |
Illustrates why disclosure rules were strengthened pre-trial, but not authority for indefinite post-trial duty |
| R v Mills (1998) |
Right to inspect material witness statements once disclosed |
Shows linkage between disclosure and inspection during trial |
| R v Keane (1994) |
Part of pre-1996 common-law disclosure test |
Historical context only |
| R v DPP, Ex p Lee (1999) |
Limited disclosure required before committal; not “full-blown” |
Demonstrates stage-specific nature of the duty |
| R v Makin (2004) |
Disclosure pending appeal confined to material relevant to identified grounds |
Cited as authority that post-trial duty is narrower |
| McDonald v HM Advocate (2008) |
Privy Council rejected full re-performance of disclosure on appeal |
Supports rejection of “extravagant” post-conviction duty |
| The Queen v Nepia (NZ, 2000) |
Appellate power to order production requires evidential foundation |
Used to show other jurisdictions limit fishing expeditions |
| Cant v The Queen (NZ, 2013) |
Disclosure on appeal must bear on articulated grounds |
Reinforces limited scope post-conviction |
| The Queen v Trotta (Ontario, 2004) |
Post-conviction disclosure where “reasonable possibility” of assistance |
Adopted as persuasive support for a restrained approach |
| R v Stinchcombe (Canada, 1991) |
Canadian trial-stage disclosure standard |
Contrasted with narrower post-conviction scope |
| District Attorney’s Office v Osborne (US, 2009) |
Post-conviction rights not parallel to trial rights |
Relied on to stress difference between stages |
| Skinner v Switzer (US, 2011) |
Jurisdictional holding; did not alter Osborne distinction |
Cited to confirm no expansion of post-conviction disclosure |
| Harvey v Horan (US, 2002) |
Fairness does not demand trial-level disclosure after conviction |
Quoted with approval |
| R v H (2004) |
Fairness is the source of disclosure obligations |
Used to show fairness is context-specific |
| R v Hodgson (2009) |
DNA advances can overturn convictions when police co-operate |
Illustrative example; not authority for general duty |
| R v Secretary of State, Ex p Simms (2000) |
Right of prisoners to seek investigative assistance |
Recognised value of independent enquiries but not police duty |
| R v Shirley (2003) |
CCRC can direct new scientific tests |
Cited to highlight availability of CCRC as safeguard |
Court's Reasoning and Analysis
The Supreme Court, per Judge Hughes, analysed the disclosure obligation chronologically:
- Statutory framework. Sections 3 and 7A of the Criminal Procedure and Investigations Act 1996 codify and limit the prosecution’s duty to the trial period, ending when the trial concludes.
- Common-law evolution. Pre-1996 authorities reveal a flexible duty tailored to each procedural stage; it was never identical before and after conviction.
- Post-conviction context. Once appeals are exhausted, public interests in finality and resource allocation arise. Fairness still requires disclosure of new material that might undermine the conviction, but not an open-ended right to re-investigate.
- Comparative jurisprudence. Decisions from Scotland, Canada, New Zealand and the United States uniformly confine post-conviction disclosure to material with a demonstrated nexus to conviction safety and reject speculative “fishing expeditions.”
- Attorney-General’s Guidelines. Paragraph 72 correctly states the residual duty: disclose material that “might cast doubt upon the safety of the conviction.” The Court adds that if there is a real prospect that further enquiry will reveal such material, cooperation should follow, but mere speculation is insufficient.
- Role of the CCRC. The Commission exists to investigate potential miscarriages of justice and possesses compulsory powers to obtain material and order tests; disputed or speculative requests should ordinarily be routed through it.
- Application to the present case. The Claimant’s requests—ranging from examination of scientists’ notebooks to broad DNA retesting—were found to be speculative. No evidential foundation showed a real prospect that further access would affect the conviction’s safety.
Holding and Implications
APPEAL DISMISSED.
The Police and Crown are not subject to an indefinite, trial-level duty of disclosure after conviction. Their obligation is limited to:
- Proactively disclosing new material that might cast doubt on the safety of the conviction; and
- Reasonably cooperating with enquiries that present a real (non-speculative) prospect of uncovering such material.
Broader requests should be directed to, and assessed by, the CCRC. The decision reinforces finality in criminal proceedings while preserving mechanisms to correct genuine miscarriages of justice; it sets no new precedent but clarifies the post-conviction disclosure landscape for England and Wales.
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