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The importance of having diligent defence solicitors at trial

View profile for Correna Platt
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Concern has been expressed by those involved in campaigning against miscarriages of justice about a recent High Court judgment in judicial review proceedings relating to the obligations on the police to disclose material post-conviction. In the recent case of Kevin Nunn and the Chief Constable of the Suffolk Constabulary [2012] EWCA 1186 [Admin] the Court considered the refusal by the police and the Crown Prosecution Service to release forensic material to the legal advisers of the claimant, Mr Nunn, gathered during a criminal investigation which had led to his trial and conviction for murder.

Mr Nunn had previously unsuccessfully appealed against his conviction but had always maintained that he was innocent and had instructed solicitors to prepare an application to the Criminal Cases Review Commission, the independent body set up by the government to consider wrongful convictions.

His solicitors had instructed new forensic experts to carry out tests which had not been done at the time of trial but those tests could only be conducted with access to the original exhibits which were held by the police.

The police declined to release the exhibits arguing that there was no statutory obligation on them to do so post-conviction and that their overriding common law obligation in relation to disclosure was limited to material coming to light after the conclusion of the proceedings which might cast doubt on the safety of the conviction. They argued there was no obligation on the police or the CPS where what was required was access so that a general review or investigation could be carried out.

As a result Mr Nunn, through his solicitors, sought a judicial review of that refusal, bringing an action against the police, proceedings to which the Crown Prosecution Service intervened as an interested party. The police and the Crown Prosecution Service resisted the proceedings setting out their argument limiting the obligation on them as above.

A number of important principles were set out in the judgment and accepted by all. They were:

  1. There is a legal obligation on the state to guard against miscarriages of justice and, when things had gone seriously wrong, to do everything possible to put them right.
  2. The most important safeguard is the system of investigation and prosecution and defence that results in a trial.
  3. The Crown Prosecution Service is under a duty to act in the interests of justice not simply to seek a conviction.
  4. The state is under stringent obligation regarding disclosure.
  5. An appeal can be made to the Court of Appeal, Criminal Division which is under a duty to consider whether the conviction is safe.
  6. The CCRC was established to investigate miscarriages of justice and has a discretion to refer cases back to the Court of Appeal.

The Court in its judgment however did not agree with the argument submitted on behalf of Mr Nunn that there was a further and more general duty of disclosure post-conviction and held that, because of the safeguards set out above, a person convicted of a crime has no further right to disclosure to facilitate a reinvestigation of this case, any more than the state is under a duty to reinvestigate.

The Court made it clear that it will be necessary to show something that materially may cast doubt the safety of the conviction before the obligation of further disclosure is triggered and gave the example of scientific advances and techniques not available at the time of the original trial in relation to which there is a reasonable expectation that further expert scientific exploration might produce evidence which would undermine the safety of the conviction.

The Court made it clear that, when as in circumstances such as had arisen in this case, a proper request had been made for disclosure, in the event of a refusal it was for the Court to decide whether there should be disclosure and, perhaps crucially, they took the view that there was nothing in the material before them which could lead them to believe that there were items, which if tested, might  reasonably result in new evidence which would undermine the conviction and that it was not appropriate to allow access to material simply to enable the case to be reinvestigated and re-examine.

There is real concern that this judgment will be used widely by the police and the Crown Prosecution Service to make even more difficult the task of those seeking to overturn a wrongful conviction. It should however perhaps be seen as a case that turns on its own facts and may indeed be seen as something that it imposes a greater obligation on the CCRC to investigate such cases  than has been considered to be their obligation in the past.

It also stresses two important obligations on defence practitioners.

First it is absolutely critical to thoroughly test the prosecution case at trial by appropriately instructing the necessary experts and to comprehensively consider all the documentary evidence. In our experience situations arise when defence teams at the first instance do not examine essential material

It is at this juncture that applications can be made for third party requests and applications to the Crown Court for disclosure of prosecution material which is not forthcoming. To obtain this information post conviction is becoming increasingly more difficult as highlighted by the case of Mr Nunn.

Secondly post-conviction, any request for access to previously undisclosed material needs to be focused and justified by its relevance to a potentially successful grounds of appeal. Fishing expeditions will be pointless.

It underlines the importance of having diligent defence solicitors at trial and experienced lawyers handling any challenge to a conviction.

We at Stephensons Solicitors LLP provide a comprehensive service and are committed to thoroughly investigating all matters at trial and post conviction.