On Thursday 13 March staff and student volunteers with the University of Bristol based Innocence Network UK (INUK) attended the Supreme Court hearing of Nunn v Suffolk Constabulary and Others.
INUK was granted leave to intervene in the matter because of the experience of its member innocence projects in assisting alleged victims of wrongful convictions to make applications to the Criminal Cases Review Commission (CCRC). The CCRC is the body that reviews alleged miscarriages of justice and refers cases back to the appeal courts if it is felt that there is a real possibility that the conviction or sentence will not be upheld.
Fellow interveners were JUSTICE, the human rights organisation, and the Criminal Appeal Lawyers Association (CALA). White & Case LLP, London, acted as solicitors for the intervening parties and the barristers were Henry Blaxland QC and David Emanuel, Garden Court Chambers. All provided their services on a pro bono basis.
The case concerns Kevin Nunn who was convicted of the murder of Dawn Walker in 2006. He has always maintained his innocence of any involvement in this crime. His application for leave to appeal was refused in 2007.
Nunn then applied to INUK for assistance by a member innocence project. His case was deemed eligible and two University of Bristol Innocence Project students, Rupert Wheeler and Jen Harris, worked on his case for a year with his then solicitor, Jane Hickman, of Hickman and Rose.
Access to items from the crime scene was sought so that they could be further tested by an expert for possible DNA traces left by the murderer. This request was refused by Suffolk police on the basis that the duty of disclosure on the police of Crown Prosecution Service (CPS) under the terms of the Criminal Procedure and Investigations Act (1996) (CPIA) apply only to the pre-trial and appeal stages and does not apply to cases that have failed in appeal.
Instead, such cases must satisfy the Attorney-General’s Guidelines which require decision makers to consider disclosure ‘where material comes to light after the conclusion of the proceedings, which might cast doubt upon the safety of the conviction’ (emphasis added).
The decision was challenged by judicial review in 2012. The police’s decision was upheld. High Court Judge Sir Brian Leveson was of the view that Nunn should have sought remedy through an application to the CCRC. The judicial review judgment is at:
The High Court’s ruling was referred to the Supreme Court.
In its judgment the Divisional Court stated that for the test in the Attorney-General’s guidelines to be satisfied, ‘it is necessary to show something that materially may cast doubt upon the safety of the conviction.’ The Court then illustrated the application of this test by reference to the need for the convicted defendant to establish that there had been scientific advances, which might reasonably be anticipated to provide a result which might affect the safety of the conviction.
The case for the intervening parties argued that expressed in this way the burden is cast on the defendant to satisfy the test of materiality before he has been supplied with the very material that may itself provide the basis for undermining the prosecution case or supporting his defence.
INUK submitted further that as a review body with limited resources, the CCRC is generally unable to proactively identify lines of enquiry and undertake detailed investigations in every single application. As such, alleged miscarriage of justice victims continue to rely on the investigatory assistance provided by innocence projects and lawyers who have to find fresh evidence or arguments that could persuade the CCRC to refer a conviction back to the Court of Appeal. To perform this investigative function adequately, lawyers and innocence projects must be able to obtain disclosure from the police or the CPS of vital materials that could assist in its investigation, such as laboratory records for forensic reviews and exhibits for forensic testing.
In INUK’s experience, the CCRC’s review process is not foolproof and innocence projects frequently have to raise issues and possible referral grounds missed by the CCRC in previous reviews. In order to fulfil this function, innocence projects will need to get disclosure from the police or the CPS post failed appeal, particularly in cases where the original defence team had failed to undertake a thorough review of all documentary evidence and comprehensively challenge the prosecution’s case.
Indeed, as an independent body, the CCRC does not represent applicants. Innocence projects therefore play a role in advocating for applicants and attempting to persuade the CCRC to use its investigatory powers to follow up lines of enquiry that could potentially benefit the applicant’s case.
The deficiencies in the CCRC’s investigatory process are illustrated by the case of Victor Nealon. Nealon was convicted of attempted rape in 1997 on the basis of disputed identification evidence. In 1997, Nealon applied to the CCRC to ask for a review of the forensic evidence in his case. The CCRC declined on the basis that it had been dealt with at trial. This was not the case and a more thorough investigation by the CCRC would have discovered that no forensic examination had in fact been undertaken.
In 2002, Nealon made a second application to the CCRC and requested again for forensic testing. The request was once again denied on the grounds that the CCRC ‘do[es] not undertake speculative DNA tests’. In 2009, Nealon finally managed to commission the DNA testing privately and DNA was found in intimate areas of the clothing, which was not his, but belonged to an unknown male.
On the basis of this new DNA evidence, a third application was made to the CCRC. After its review, Nealon’s conviction was referred by the CCRC and quashed by the Court of Appeal on the 14 December 2013. He had served 17 years in prison, all of which could have been avoided had the CCRC been willing to investigate the case properly, or the police and CPS been prepared to permit testing of the DNA evidence earlier. Crucially, if the Nunn decision had been applied to Nealon’s case, there is a real chance that Victor Nealon would never have been able to access the DNA evidence for his ‘speculative’ testing, and would still be behind bars.
The Supreme Court judgment will be handed down in due course.
An article on the case of Nunn v Suffolk Constabulary and Others is in INQUIRY: The Newsletter of the Innocence Network UK, 8, at:
Another article of interest by Michael Naughton and Gabe Tan on the right under international law to access exhibits for DNA testing post-conviction is at: