In a judgment handed down by the Supreme Court on Wednesday 18th June 2014, a positive role for investigations into alleged miscarriages of justice by innocence projects was affirmed and the existing rules for access to evidence post-failed appeal were improved to enable such investigations to occur.
The Supreme Court considered whether there was an obligation upon the Police and the Crown Prosecution Service (CPS) to provide access to evidential material to alleged victims of wrongful convictions on appeal or by way of application to the Criminal Cases Review Commission (CCRC). The CCRC is the statutory, public body that is mandated to review alleged miscarriages of justice and refer them back to the appeal courts if it is felt that there is a real possibility that the conviction will be overturned.
The instant case concerned 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.
Access to reports and items from the crime scene, among other things, were sought so that they could be tested, re-tested or reviewed by DNA experts. This request was refused by the Chief Constable of Suffolk Police on the basis that the duty of disclosure on the police and the 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 on appeal.
Instead, it was argued that such cases were required to satisfy the Attorney-General’s Guidelines which instruct 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.”|
The decision was challenged by judicial review in 2012. The police’s decision was upheld.
Divisional Court Judge Sir Brian Leveson was of the view that Mr Nunn should have sought remedy through an application to the CCRC.
|“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…the availability of the CCRC as a remedy is a very powerful consideration in limiting the duty of the police and CPS.”|
This had a major impact on subsequent requests to the police and/or CPS for access to evidence by innocence projects and solicitors investigating alleged wrongful convictions in the process of making applications to the CCRC. It created an environment in which there was a general reliance on the Nunn judgment in the Divisional Court to refuse such requests, impeding investigations into alleged miscarriages of justice.
The judicial review judgment is at:
The Divisional Court’s ruling was referred to the Supreme Court.
In its judgment the Divisional Court had 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 Divisional Court then illustrated the application of this test by reference to the need for the appellant 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.
Innocence Network UK (INUK) JUSTICE and The Criminal Appeals Lawyers’ Association (CALA) were granted permission to intervene in the case as a third party by the Supreme Court. They were represented by White & Case LLP (London) and Henry Blaxland QC, and David Emmanuel of Garden Court Chambers, all working on a pro bono basis.
The case for the intervening parties argued that expressed in this way the burden is cast on the appellant to satisfy the test of materiality before s/he has been supplied with the very material that may itself provide the basis for undermining the prosecution case or supporting her/his defence.
The interveners shared a concern that the earlier judgment of the Divisional Court would have made it extremely difficult to obtain the evidence necessary to demonstrate a potential wrongful conviction. Recent examples where applications for access to evidential materials to the police or CPS had been refused in reliance on the Divisional Court’s judgment were cited.
John Reynolds, Partner and Head of the London Litigation Department, White & Case LLP, emphasised the importance of the intervention in the following terms:
|“Access to evidence is at the heart of the principle of access to justice, whether in civil or criminal law, and at all stages of the legal process. It is essential in the effective representation of alleged victims of wrongful convictions.”|
Innocence Network UK (INUK) was expressly established at the University of Bristol because the creation of the Criminal Cases Review Commission (CCRC) was not the final remedy to the problem of miscarriages of justice that was hoped for and that is widely held to be: factually innocent victims of wrongful convictions still find it difficult, sometimes impossible, to have their cases referred back to the appeal courts and overturned because of how the CCRC is structured and how it operates.
INUK’s individual third party submission was underpinned by an extensive body of research by its founder and director Dr Michael Naughton, Reader in Sociology and Law at the University of Bristol and an academic expert on miscarriages of justice, who has considered the limitations of the CCRC in a number of academic books and peer-reviewed academic articles. These publications provide an insight into the deficiencies of the CCRC’s case review approach and the continuing investigative burden placed upon alleged miscarriages of justice victims despite the establishment of the CCRC.
More specifically INUK’s submission emphasised 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 noted by Dr Naughton in a chapter on the limits of the CCRC to assist alleged innocent applicants in his most recent book, The Innocent and the Criminal Justice System
|“The CCRC…reviews for the most part [are] mere ‘desktop reviews’ of applications.”|
As such, alleged miscarriage of justice victims continue to rely on the investigatory assistance provided by innocence projects and lawyers who need to find fresh evidence or arguments that could persuade the CCRC to use its investigatory powers and/or 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 and access to evidence 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 fool proof 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 and solicitors therefore play a vital 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. Mr Nealon was convicted of attempted rape in 1997 on the basis of disputed identification evidence. In 1997, Mr 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, Mr 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, Mr 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, Mr 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 by the Divisional Court had been applied to Mr 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.
In stark contrast to the judgment by the Divisional Court, the Supreme Court openly acknowledged the role that solicitors and others such as innocence projects can play in investigating alleged miscarriages of justice prior to applications to the CCRC.
The Supreme Court tacitly accepted INUK’s submission that the CCRC is not the panacea to the perennial and on-going problem of wrongful convictions that the Divisional Court wrongly assumed it to be:
|“There is no doubt that the CCRC is much assisted by informed legal analysis and presentation if an application for review is made to it…The police and prosecutors ought to exercise sensible judgment when representations of this kind are made on behalf of convicted persons.”|
Improving upon the existing Attorney-General’s Guidelines on disclosure and access to evidentiary materials post-failed appeal, the Supreme Court ruled:
|“If there appears to be a real prospect that further enquiry will uncover something that may affect the safety of the conviction, then there should be co-operation in making it. It is in nobody’s interest to resist all enquiry unless and until the CCRC directs it.”|
Commenting on the Supreme Court judgement Dr Michael Naughton, Founder and Director of the Innocence Network UK (INUK) stated:
|“The importance of this judgment cannot be overstated as it would have been catastrophic had the Divisional Court judgment been upheld. This ruling, however, ensures the continued viability of the work of solicitors and innocence projects in assisting alleged innocent victims of wrongful conviction and imprisonment. The new revision of the Attorney-General’s Guidelines will enable solicitors and innocence projects to continue to undertake investigations to strengthen their applications to the CCRC. It will facilitate solicitors and innocence projects to give their clients a better chance of having their cases referred back to the Court of Appeal and, ultimately, of achieving justice.”|
The Supreme Court judgment is at:
Notes to editors
For further information, please contact Philippa Walker, University of Bristol Press Office. Tel: +44 (0)117 928 8086 or 07776 170238 Email: Philippa.Walker@Bristol.ac.uk
Innocence Network UK (INUK) is an umbrella organisation that facilitates and supports pro bono investigations into alleged wrongful convictions by member innocence projects for applicants who have exhausted the available legal aid and the normal criminal appeals system. It was established in the University of Bristol Law School in September 2004 by Dr Michael Naughton. INUK currently has 26 member innocence projects in UK universities and one in a corporate law firm. INUK communicates the findings of its work and research on wrongful convictions to policy makers, criminal justice system agencies, the legal community and wider members of the public. INUK’s overall aim is to improve the criminal justice system by learning lessons from wrongful convictions and to effect reforms to prevent them from occurring in the future. For more information, see http://www.innocencenetwork.org.uk
Dr Michael Naughton is a Reader in Sociology and Law in the Law School and School of Sociology, Politics and International Studies (SPAIS), University of Bristol. He has specialised in the area of wrongful convictions for over a decade and has written extensively on the subject. He is the Founder and Director of the Innocence Network UK (INUK) and the University of Bristol Innocence Project (UoBIP), the first innocence project in the UK and the founding member of the Innocence Network UK. Email: M.Naughton@bristol.ac.uk
Copies of INUK’s third party submission to the Supreme Court can be supplied on request.