Nunn v Suffolk Constabulary & Anor [2012] EWHC 1186 (Admin)

Case No CO/3872/2011[2012] EWHC 1186 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 04/05/2012
Before
PRESIDENT OF THE QUEEN'S BENCH DIVISIONMR JUSTICE HADDON-CAVE
Between
Kevin NunnClaimantThe Chief Constable of the Suffolk ConstabularyDefendantThe Crown Prosecution ServiceInterested Party
Hugh Southey QC (instructed by Hickman Rose) for ClaimantFiona Barton QC (instructed by Legal Services, Suffolk County Council) for DefendantJulian B Knowles QC instructed by the CPS for Interested PartyHearing Hearing date: 21 March 2012
JudgmentPresident of the Queen's Bench Division:This is the judgment of the court.
[1]The issue in these proceedings is whether, given the provisions made generally for investigating alleged miscarriages of justice, the claimant, a convicted murderer, is entitled to require the police and the CPS to make available to his advisers forensic material collected during the investigation. He wishes experts instructed on his behalf to be able to review that material to see if it lends further support for referring his case to the Criminal Cases Review Commission (CCRC), as a reference by the CCRC to the Court of Appeal Criminal Division is the only way his conviction can be quashed.

The factual background

[2]On 20 November 2006 the claimant was convicted of the murder of Dawn Walker between 2 and 4 February 2005 after a 6-week trial before Cox J and a jury. His application for permission to appeal to the Court of Appeal Criminal Division was refused on 17 October 2007 [2007] EWCA Crim 2663. In a judgment, delivered by Toulson LJ, the court concluded there was no arguable ground for considering the conviction unsafe. The court concluded the summing-up was detailed and fair and there was ample evidence to support the conviction.[3]The evidence upon which the claimant was convicted can be summarised as follows: i) Dawn Walker who was born in December 1967 lived alone in a two bedroom house in Fornham St Martin, near Bury St Edmunds; she worked in a printing firm and her main hobby was fitness training. ii) For two years before February 2005 she had had a relationship with the claimant; they did not live together. During that period she may have had other boyfriends. Shortly before her murder she had met a new boyfriend. iii) It was common ground at the trial that on Wednesday 2 February 2005 the claimant visited Dawn Walker’s home. During that visit they had a conversation which resulted in the breaking off of their relationship, either by mutual agreement or by Dawn Walker’s decision. iv) It was the evidence of the claimant that the discussion was amicable, but there was evidence from neighbours to contradict this. A number of neighbours heard sounds of argument coming from the direction of her home. v) On the following day, Thursday 3 February 2005, the claimant said that he had awoken and found a missed call; it was from Dawn Walker and timed at 4.55 a.m. She sounded distressed and the phone went dead. He said he deleted the message in error. Although there was a call from her phone at that time, there was no record of what was said. vi) Dawn Walker did not go to work that day. The claimant was told this, as he was listed by her employers as her next of kin. He said he went to search for her near the River Lark. vii) Dawn Walker’s body was found near the River Lark at about 5 p.m. on Friday, 4 February 2005. The body could not have been placed where it was found before that Friday or it would have been seen by others. The body was naked from the waist down; on her upper body were a sweat shirt and a blue fleece jacket. The hair on her head and her pubic hair had been cut and her body had suffered sexual degradation. viii) When the body was found it was clear there had been previous attempts to burn the body at a nearby sluice farm a few hundred metres away on the other side of the River Lark. The site of the fire was at the head of the steps leading down to a drainage ditch. There were traces of burnt clothing. A sports bag and trainers were nearby. The blue fleece jacket and sweat shirt had been put onto the body after it had been burnt.[4]By the time of the trial the Crown’s case was the following: i) The claimant had had an argument with Dawn Walker on 2 February 2005 and killed her. ii) He had burnt her body near the River Lark on 2 February 2005. iii) He had then returned her body to her home. iv) He had subsequently removed the body from her home. There was evidence from a witness, Penelope Dale, that about 4.50 a.m. on 4 February 2005 she saw two men moving a long, heavy, wrapped object from the deceased’s home. Her evidence was that she recognised the man who put the object in the car as the claimant and picked him out in an identification parade. The Crown relied on a number of matters that pointed to the claimant’s guilt, including the fact that he was the only person with a key to her house, the finding at her house of tape identical to that near the burning of her body, and the medical evidence pointing to Dawn Walker being dead at the time of the 4.55 a.m. telephone call on 3 February 2005[5]It was suggested by the claimant that the real killer was a man called Leon May with whom Dawn Walker had had a relationship and who lived in the same road. There were three aspects of his case that May was the killer: i) During May’s relationship with Dawn Walker, May had been violent towards her on occasions. ii) Dawn Walker continued to be worried about the way in which May was behaving towards her. iii) May spoke to Penelope Dale before the murder of Dawn Walker about how to commit a perfect murder. His description bore some significant resemblance to what in fact happened to Dawn Walker. As against that evidence, there was evidence that the relationship between May and Dawn Walker had finished much earlier. There was evidence from other witnesses that in recent years the relationship between May and Dawn Walker had been quite amicable. May had a new girlfriend and she and May both gave evidence about where and how he had spent the night of 2/3 February 2005.[6]There was some forensic evidence given at the trial: i) The pathology evidence was that Dawn Walker had died from asphyxiation or cold. The precise cause of death was not ascertained. She had been exposed to very cold conditions prior to death. She had been immersed in water for some time, so drowning and hypothermia were not precluded as possible causes. ii) There was a diatom analysis. Diatoms on her feet and shoes matched the location where her body was found; diatoms on her ankle and her stomach were not a close match to those in the water of the River Lark where she was found. iii) Forensic evidence showed that her body and clothes had been burnt with approximately a gallon of petrol. iv) A detailed forensic examination was carried out by Helen Haworth and Rosa John. They were both employed by the then Forensic Science Service. It appears that despite extensive examination of a substantial number of items, no usable DNA profiles were found that could be used to connect the claimant or anyone else with the murder. v) Helen Haworth and Rosa John gave evidence at the trial in relation to what they found at various locations, including the claimant’s home, and the DNA analysis. As Cox J succinctly summarised the position in her summing up:
“Forensic science, often so very helpful to everyone in the justice system, has been unable to assist you greatly on these issues in this case, you may think, as it sometimes can, but that does not matter; there is no evidence and so do not speculate about it.” vi) Some footwear marks were found which were a better match with those of the claimant than Dawn Walker. There was no specific association with the claimant. vii) Four sperm cells were found on Dawn Walker’s body, two in the pubic region and two on the inner thigh. Vaginal and anal swabs did not show the presence of semen. The claimant had had a vasectomy. There was medical evidence that it was highly unlikely that he would produce sperm. There was no evidence that Dawn Walker had been sexually attacked when alive. To counter the suggestion made on behalf of the claimant that the sperm had got on to her body through direct contact, probably through masturbation by the murderer over her dead body, the Crown recalled Helen Howarth. Her evidence was that it was unlikely that the sperm had drained from the anus or vagina. It was impossible to analyse the donor of the sperm from a DNA profile. She could not say when it was deposited. She gave evidence that it was possible that the sperm had been deposited on her body by secondary or tertiary transfer. Dawn Walker had been to a gym and there was evidence she had used the male changing room; it was possible that there could have been secondary or tertiary transfer. Her report stated that the sperm samples had been retained for future testing “when the technology has advanced”

The conduct of the claimant after the dismissal of his appeal

[7]After the dismissal of his appeal, the claimant maintained his innocence. Supported by his family, he instructed Ms Hickman of Hickman and Rose in relation to the making of an application to the CCRC. She instructed Dr Sarah Short, who had worked for the then Forensic Science Service for more than 10 years and then became employed by Dr P R Ashurst and Associates for 11 years. In 2008, she had become self-employed. She was asked to consider whether there was any purpose in carrying out tests on items that had not been tested during the investigation or in re-testing items in the light of scientific progress since the investigation in 2005. Ms Hickman also retained Dr John Manlove, a forensic scientist, to conduct a broad forensic overview.[8]On 8 February 2010, Ms Hickman wrote to the CPS Trial Unit at Ipswich seeking disclosure about Dawn Walker’s finances and whether items could be made available to the expert instructed for the purpose of DNA testing. The position taken by the Forensic Science Service was that the files created by Helen Haworth and Rosa John were available at their laboratory in Huntington, but they would not release them for examination without the consent of the CPS.[9]The CPS replied on 21 May 2010 giving some information about Dawn Walker’s finances and stating in respect of the items requested, that testing had been carried out at the time; enquiries would be made as the Suffolk Constabulary (the Constabulary) held the materials. The CPS would revert. The CPS asked if the CCRC was involved. Letters were then written to the Constabulary.[10]On 5 October 2010 the Constabulary responded to say that there was no statutory duty of disclosure. The common law duty under the Attorney-General’s Guidelines (which we set out at paragraph 24 below) was limited to material coming to light after the conclusion of the proceedings which might cast doubt on the safety of the conviction. There was a clear public interest that there should be a degree of finality to litigation. It was not a requirement of the police or CPS to accede to a defence request after the conviction appeal when information review or access was sought. No information had been tendered to justify a further review.[11]Further correspondence ensued where more detailed requests were advanced and information sought. The Constabulary maintained the position taken in the letter of 5 October 2010.[12]On 4 April 2011 Ms Hickman wrote letters before claim under the Judicial Review Pre-Action Protocol. In the light of the response, she issued these proceedings on 27 April 2011. On 12 July 2011 Stadlen J ordered that the application for permission be determined at an oral hearing.[13]In the light of the delay in hearing the application for permission, the parties agreed that the application for permission and the merits of the proceedings should be heard at a rolled up hearing. The claimant was afforded the opportunity to submit any further material. He did not.[14]Before setting out the submissions made, it is necessary to set out in more detail the request as formulated in Dr Short’s report dated 21 November 2011.

The details of the request for forensic examination

[15]Dr Short produced the report of 21 November 2011 after reading the statements and reports used in the trial. On those materials, she had found no fault with the work undertaken by Rosa John or Helen Haworth, though she had clearly not been able to check their case files. i) She recommended that the swabs taken from the pubic area and thighs to which we have referred at paragraph 6.vii) be re-examined by Cellmark using their new techniques together with a tape lift taken from the pubic area to try and obtain a DNA profile. It was accepted that even if a DNA profile was obtained, it might be that the DNA could not be attributable to the sperm as it might have come from another source such as saliva, sweat or skin cells. There would be an issue as to whether any DNA had been deposited by direct transfer or by secondary transfer, such as from a towel or bench in the gym. ii) DNA analysis techniques had improved since 2005, particularly the ability to analyse smaller quantities of DNA. It was not possible to say, without access to the Forensic Science Service files, whether sufficient quantity remained for re-testing to be undertaken. iii) The continuity, the examination and the results for a number of DNA samples and some items belonging to Dawn Walker should be checked. She also wanted to test some items that had not previously been tested for DNA including Dawn Walker’s mobile phone, items found on Dawn Walker’s bed, torch batteries and the holdall. Her report indicated that some were included because Dawn Walker’s family wanted them re-tested and some because of her own recommendation. She also wanted to submit for examination the fleece found on the body, as Dawn Walker’s assailant would have handled the body. One sample had been submitted for DNA analysis, but the other had not. She also wanted to examine the files in relation to the pieces of tape recovered from the burn scene; the reports of Rosa John and Helen Haworth suggested that the pieces of tape might have been mixed up. One piece had given a LCN DNA result which showed a profile from at least two contributors. Sight of the reports would enable her to comment further. iv) Even if further examinations were undertaken and DNA results obtained where none had been before, it would not necessarily exclude the claimant as the murderer. That was because Dawn Walker’s murderer had not necessarily deposited any DNA or any DNA deposited might not be related to her murder.[16]There was also a short report from Professor Allan Jamieson of the Forensic Institute, Glasgow stressing the importance of a fresh examination of the original files.[17]In addition to the request for the examination of the files, Ms Hickman put forward a number of matters which were said to raise questions about the Crown’s case, including a challenge to the time at which the claimant and Dawn Walker had returned to her house on the evening of 2 February 2005 (based on a re-examination of some CCTV tapes). There was also significant criticism of the team that had conducted the defence of the claimant, including a failure to investigate the source of the diatoms found (to which we have referred at paragraph 6.ii)), to conduct a detailed examination of the DNA evidence and properly to cross examine Penelope Dale (to whom we have referred at paragraph 4.iv) ).[18]It was also contended that there were similarities with the five murders of prostitutes committed in Ipswich by Steve Wright in 2006 and this should be more fully investigated. The response of the Constabulary was given by Detective Inspector Smith who had assumed responsibility as the Senior Investigating Officer for the murder of Dawn Walker and had had significant responsibilities for investigating the five murders of prostitutes. He pointed out a number of dissimilarities.[19]Ms Hickman made clear that the claimant’s family were prepared to pay for the further forensic examination and the submission to the CCRC.

The legal obligation of the state to guard against miscarriages of justice

[20]Not unsurprisingly, it was common ground that the mark of our system of justice was that it was the duty of the State to guard against miscarriages of justice and, when things had gone seriously wrong, to do everything possible to put them right: see A v The Secretary of State [2005] 2 AC 68, R v Mirza [2004] 1 AC 1118. In Mirza, Lord Steyn traced the history of modern developments at paragraph 4: “4. Nowadays we know that the risk of a miscarriage of justice, a concept requiring no explanation, is ever present. In earlier times courts sometimes approached the risk of a miscarriage of justice in ways which we would not nowadays find acceptable. In 1980 the Court of Appeal denied the Birmingham Six the right to sue the police in civil proceedings. Lord Denning MR said about the possible innocence of the men: "This is such an appalling vista that every sensible person in the land would say: It cannot be right that these actions should go any further": McIlkenny v Chief Constable of the West Midlands [1980] QB 283 , 323d. The men stayed in prison. Some 12 years later their convictions had to be quashed. Together the miscarriages in the cases of the Guildford Four, the Maguire Seven and the Birmingham Six were described by Lord Devlin as "the greatest disasters that have shaken British justice in my time": "The Conscience of the Jury" (1991) 107 LQR 398. It led to the appointment of a Royal Commission on Criminal Justice which reported in July 1993: Report (Cm 2263). One of the key messages of that Report was that the Court of Appeal must be readier to examine possible miscarriages of justice. One of the recommendations was the creation of new and independent arrangements for identifying miscarriages of justice. This recommendation was implemented in 1995 by the setting up of the Criminal Cases Review Commission:……. There was also a more general change in legal culture. A good illustration of that is the decision in Rv Secretary of State for the Home Department, Ex p Simms [2000] 2 AC 115 where, in the face of some 60 miscarriages of justice in the 1990s, the House of Lords set aside Home Office instructions denying prisoners access to journalists in their efforts to get their convictions overturned. The philosophy became firmly established that there is a positive duty on judges, when things have gone seriously wrong in the criminal justice system, to do everything possible to put it right. In the world of today enlightened public opinion would accept nothing less. It would be contrary to the spirit of these developments to say that in one area, namely the deliberations of the jury, injustice can be tolerated as the price for protecting the jury system.” "This is such an appalling vista that every sensible person in the land would say: It cannot be right that these actions should go any further": McIlkenny v Chief Constable of the West Midlands [1980] QB 283 , 323d.[21]The first and most important safeguard is the system of investigation, prosecution and defence that culminates at the trial. In R v CCRC ex parte Pearson [2000] 1 Cr App R 141 at 145, Lord Bingham summarised the protection it afforded:
“It is essential to the health and proper functioning of a modern democracy that the citizen accused of crime should be fairly tried and adequately protected against the risk and consequences of wrongful conviction. To this end, police operations to investigate crime and interrogate suspects are closely controlled by statutes, codes and rules; the conduct of prosecutions is entrusted to an independent, professional prosecuting authority; and legal aid is made available to fund all but the very well-to-do to defend themselves in serious cases. The main protection of the citizen accused of serious crime is, however, to be found in our system of trial by judge and jury. This system is so familiar as to require no description. But we draw attention to two characteristic features of jury trial germane to this application. First, the procedure is adversarial. There is no duty on the trial judge, as in an inquisitorial proceeding, to investigate what defences might, if pursued, be open to a defendant, nor to interrogate or call witnesses. It is the function of the judge to direct the jury on the relevant law and to summarise (perhaps very briefly) the evidence, and to define the issues raised by the prosecution and the defence, including any possible defence disclosed by the evidence even if not relied on by the defendant. The judge need not, and should not, go further. Secondly, the decision on the defendant's guilt is made following a trial, continuous from day to day, by a jury assembled only for that trial, with no responsibility for the proceedings before the trial begins or after it ends. Thus the decision-making tribunal must reach its decision on the argument and evidence deployed before it at a final, once-for-all, trial. A defendant may quite properly put forward defences cumulatively and alternatively at a single trial, but not serially at different trials.”
[22]Second, the CPS is under a duty to act in the interests of justice. This is long established at common law – see R v Puddick (1865) 4 F&F 497 at 499: Crompton J in directing the jury said:
“I hope that in the exercise of the privilege granted by the new Act to counsel for the prosecution of summing up the evidence, they will not cease to remember that counsel for the prosecution in such cases are to regard themselves as ministers of justice, and not to struggle for a conviction, as in a case at Nisi Prius – nor be betrayed by feelings of professional rivalry – to regard the question at issue as one of professional superiority, and a contest for skill and pre-eminence.”
His direction was approved in R v Banks [1916] 2 KB 621 at 623. In Randall v The Queen [2002] 1 WLR 2237 the Judicial Committee of the Privy Council approved the description of the duty of the prosecutor set out by Randall J in the Supreme Court of Canada in Boucher v The Queen (1954) 110 Can CC 263 at 270:
“It cannot be over-emphasised that the purpose of a criminal prosecution is not to obtain a conviction; it is to lay before a jury what the Crown considers to be credible evidence relevant to what is alleged to be a crime. Counsel have a duty to see that all available legal proof of the facts is presented; it should be done firmly and pressed to its legitimate strength, but it must also be done fairly. The role of prosecutor excludes any notion of winning or losing; his function is a matter of public duty than which in civil life there can be none charged with greater personal responsibility. It is to be efficiently performed with an ingrained sense of the dignity, the seriousness and the justness of judicial proceedings.”
The creation of the CPS under the Prosecution of Offences Act 1985, the Code for Crown Prosecutors and the Attorney General’s Guidelines formalised and strengthened these duties.[23]Third, the state is under stringent obligations of disclosure. At common law, as is made clear in R v Ward [1993] 1 WLR 619, it was settled law that those who prepared and conducted prosecutions owed a duty to ensure that all relevant material of help to an accused was either led by the prosecution or made available to the defence. The Criminal Procedure and Investigation Act 1996 (CPIA 1996) established the statutory regime for disclosure for the purpose of criminal proceedings. In R v Mills [1998] AC 382, Lord Hutton referred with approval to the judgment of Sopinka J in the Supreme Court of Canada in R v Stinchombe (1991) 68 CCC (3d) where he described the fruits of the investigation as:
“not the property of the Crown for use in securing a conviction, but the property of the public to be used to ensure that justice is done.”
[24]It is clear from s.7A of the CPIA that the statutory duty of continuing disclosure ceases upon conviction, acquittal or discontinuance of the prosecution. However, under the Attorney-General’s Guidelines on disclosure, provision is made for disclosure post conviction in the following terms:
“Post Conviction 59. The interests of justice will also mean that where material comes to light after the conclusion of the proceedings, which might cast doubt upon the safety of the conviction, there is a duty to consider disclosure. Any such material should be brought immediately to the attention of line management. 60. Disclosure of any material that is made outside the ambit of the Act will attract confidentiality by virtue of Taylor v SFO [1998].” 25. The CPS guidance entitled Reviewing Previously Finalised Cases – CPS policy is similar. Paragraphs 1 and 2 state: “A review may be required as a consequence of a subsequent trigger, which requires the reconsideration of the safety of convictions, or decisions not to proceed, and an assessment whether justice is served by allowing such convictions, or decisions, to stand. Examples of scenarios where a review of past convictions may be required are set out in paragraph 6 below.”
Paragraph 6 includes:
“A. Where the competence and/or credibility of an expert witness or the methodology the expert witness has used is in doubt. C. Where a new scientific breakthrough raises questions over the safety of earlier convictions”
C. Where a new scientific breakthrough raises questions over the safety of earlier convictions”[25]Fourth, an appeal can be made to the Court of Appeal, Criminal Division which is under a duty to consider whether the conviction is safe.[26]Fifth, the CCRC was established in March 1997 to investigate miscarriages of justice. The ambit of the CCRC’s power was explained by Lord Bingham in ex parte Pearson at p.149:
“Thus the Commission's power to refer under section 9 is exercisable only if it considers that if the reference were made there would be a real possibility that the conviction would not be upheld by the Court of Appeal. The exercise of the power to refer accordingly depends on the judgment of the Commission, and it cannot be too strongly emphasised that this is a judgment entrusted to the Commission and to no one else.”
The contention that there is a general duty of disclosure and the right to obtain information after conviction[27]However, it was submitted by Mr Southey QC on behalf of the claimant that, in addition to the obligations of the state to guard against miscarriages of justice we have set out, there was a further and general duty of disclosure post-conviction, albeit there was no case that established this. His submissions can be summarised as follows: i) The desire to prevent miscarriages of justice was the principle underlying the duty of disclosure. The reasons for that duty were as good before conviction as after conviction. ii) The Attorney-General’s Guidelines made clear that if material came to light, casting doubt upon the safety of the conviction, there was a duty to consider disclosure. As that duty was accepted in principle, it could not be limited in the way suggested in the Guidelines; the Guidelines imposed no duty to keep under review, particularly in the light of scientific advance. iii) Scientific advance in fields such as DNA had resulted in the quashing of convictions. In R v Hodgson [2009] EWCA Crim 490 where the Court of Appeal Criminal Division quashed a conviction of the appellant 25 years earlier in February 1982 because of advances in DNA science, the court referred at paragraph 42 to the work of his solicitor. The Lord Chief Justice had emphasised the importance of disclosure: “It is perhaps worth noting in this dismal story that both the prosecution and the police have demonstrated their commitment to the interests of justice by co-operating positively and fully with the solicitors for the appellant to try to ensure that all the available material was produced and examined. None of the original defence papers are in existence. They were destroyed years ago in accordance with ordinary professional practice.” iv) If the Crown were not obliged to consider the implications of scientific developments on those convicted of crime, it must follow that those acting for a convicted defendant such as the claimant have a right to undertake relevant scientific testing. In the alternative, the Attorney-General’s Guidelines should be interpreted as meaning that there is a duty of disclosure where there is material which might after relevant testing cast doubt on the safety of conviction. Absent such a right or duty, a person convicted of crime was in a “Catch 22” position; testing items might show there was material that might cast doubt on his conviction, yet he could not test the items. v) As the International Covenant on Economic, Social and Cultural Rights provides that States party to the Convention recognise the rights of everyone to enjoy the benefits of scientific progress and its applications, and the Strasbourg Court had recognised it was proper to take into account obligations imposed by such treaties when considering the ECHR, it was permissible to interpret Articles 5 and 6 of that Convention as imposing a duty. Some of the material in the files was personal data within the meaning of the Data Protection Act 1998 and therefore there was a right of access under s.7. vi) The CCRC was under no duty to obtain information or material. S.17 of the Criminal Appeal Act 1995 merely gave a discretion. Nor was there any duty upon the CCRC to investigate any case. It was up to the CCRC to decide what cases to investigate, based upon representations made to it. It followed, therefore, that the existence of the CCRC made no difference to the contention that there was a right to such disclosure as it did not provide an alternative remedy; its existence did not therefore affect the common law duties. vii) The CCRC would not undertake the kind of enquiries undertaken by Ms Hickman; asking for such enquiries to be made would not provide the necessary funding. There was a 25 month waiting list for the CCRC and such an investigation would take 1-2 years. The contention of the Constabulary and the DPP.[28]The contention of Ms Barton QC for the Constabulary and Mr Knowles QC for the CPS was simple and straightforward: the obligations of the state which we have set out above as common ground were the only obligations. There was no general duty of disclosure post conviction, nor any right of a convicted defendant to go on a ‘fishing expedition’ or to re-examine or ‘second guess’ the adequacy of the forensic investigation. The obligation of disclosure only arose when there was new material, including any results of re-testing, which might cast doubt on the safety of the conviction.[29]In this particular case, they submitted, the conviction did not rest on forensic evidence. It was clear form Dr Short’s report that she accepted that even if re-testing resulted in DNA of another person being identified, it would not of itself establish that that other person was the murderer.

The limits of the duty of the State

[30]In our judgment, the duty of the State goes no further than that which we have set out at paragraphs 20 to 26. It is important to emphasise that the procedure leading to trial is specifically designed to give the defendant the fullest opportunity to receive disclosure of the information in the possession of the Crown and, with the benefit of that disclosure, to investigate the evidence and, in particular, the forensic evidence. At the trial, the prosecutor acts as a “minister of justice”. Further, the trial itself, and resulting convictions, are subject to review by the Court of Appeal Criminal Division.[31]This thorough and layered procedure provides the general and main safeguard against wrongful convictions. It is for a defendant in a criminal case to utilise best the opportunities that the procedure affords. It has been made clear in a number of decisions of the Court of Appeal Criminal Division, that the Court will not receive under s.23 of the Criminal Appeal Act, the views of a new expert based on matters which could have been investigated at trial.[32]Since the procedure is, in itself, a sufficient safeguard, the general duty on the Executive Branch of the State through the police and CPS to provide disclosure or to investigate ceases on conviction; Parliament provided in s.7A of the CPIA that the prosecutor’s continuing duty to disclose did not apply after conviction. In the light of the duties accepted by the Attorney General and CPS (which are subject to review by the courts as we explain at paragraph 37) and the safeguard provided by the Criminal Cases Review Commission, there is no wider duty. In our judgment, therefore, a person convicted of a crime has no right to further disclosure to facilitate his re-investigation of the case, any more than the state is under a duty to re-investigate.[33]It is necessary to show something that materially may cast doubt upon the safety of the conviction before the duty of the police and the CPS as set out in the Attorney General’s Guidelines and the CPS Guidance arises. For example, if scientific advances, as in Hodgson to which we referred at paragraph 27iii), enable tests unavailable at the time of the trial to be carried out on items which, if tested, might reasonably be anticipated to provide a result which might affect the safety of the conviction, then under the Attorney General’s Guidelines and the CPS Guidance, the police and the CPS will be under an obligation to consider disclosure or to carry out a review.[34]As we have said, an important consideration to our decision as to the ambit of the duty of the police and the CPS is the establishment and funding of the CCRC by the Executive Branch of the State. It is not necessary for us to set out in any detail its powers and the ways in which it has exercised them, as they are well known. We appreciate the concerns expressed by Ms Hickman about the funding position of the CCRC. However absent evidence that financial constraints imposed by the Executive were considered by the CCRC to be restricting its ability to discharge its powers, the availability of the CCRC as a remedy is a very powerful consideration in limiting the duty of the police and CPS to that which we have set out.[35]We do not consider that the Data Protection Act can assist the claimant as what is sought is information from the files relating to other persons. Nor does the argument based on the International Covenant on Economic, Social and Cultural Rights assist, as it is not disputed scientific advances after a trial can and do affect the position of a convicted person.

The application of these principles to the claimant’s claim

[36]It was contended on behalf of the Constabulary and the CPS, that the correct approach was for the court to consider whether the Chief Constable had applied the correct legal test and, if he had, whether the decision could be said to be irrational. Only if it was irrational, could the claimant succeed.[37]We do not consider this to be the correct approach. Observance of the duty of disclosure in a criminal cause or matter is ultimately a matter for the court. Where a proper case has been advanced for disclosure or re-testing, it is for the court, in the event of a refusal by the police or CPS to disclose, itself to determine whether there should be disclosure or re-testing[38]In our judgment, there is nothing in all the material which has been put before us so carefully by Ms Hickman, Dr Short and Mr Southey QC which might cast doubt on the safety of the conviction or from which we could conclude that there are items which, if tested, might reasonably be anticipated to provide a result which might affect the safety of the conviction. There is, therefore, nothing which gives rise to a duty to make disclosure of the files of the Forensic Science Service or to enable material to be re-tested. As we have set out at paragraph 15.iv), the evidence of Dr Short was that re-investigation would not necessarily produce material which cast doubt on the safety of the conviction. What is essentially sought by the claimant is access to material to enable the case to be re-investigated and re-examined. The time for that investigation and examination was the trial.

Conclusion

[39]In view of the importance of the general issue raised, we grant permission. However the claim on fails the facts of this case; had the general issue not arisen for decision we would have refused permission.

Cited in 1 later judgment