A real prospect of DNA exonerations? Disclosure after Nunn

By James Saunders,

Solicitor, Saunders Law Limited

Summary: A commentary on R (on the application of Nunn) (Appellant) v Chief Constable of Suffolk Constabulary and another (Respondents). 1

Introduction:

Most US States will commission and pay for DNA testing of relevant crime samples if prisoners credibly continue to protest their innocence of serious crime after appeal has been exhausted. 2 From a few molecules of tissue, DNA profiling now typically gives a billion to one probability as to the origin of a sample, providing a uniquely certain path to truth. The Supreme Court considered in Nunn the disclosure obligations on the Crown after trial and appeal, and how subsequent advances in science should be dealt with by the criminal justice system, so as to properly balance the need for issue finality with the risk of miscarriages of justice.

The certified question of law in Nunn was:

“Whether the disclosure obligations of the Crown following conviction extend beyond a duty to disclose something which may materially cast doubt upon the safety of a conviction, so that the [Chief Constable] was obliged to disclose material sought by the claimant in these proceedings” 3

Kevin Nunn was convicted in 2006 of the murder of a former girlfriend. The evidence against him at trial was strongly challenged and/or circumstantial and the results of scientific examination of crime samples were inconclusive.

Mr Nunn continued to protest his innocence, but his trial had been procedurally fair and there was no fresh evidence, so his appeal was dismissed. He instructed new solicitors, who made a flurry of requests to police for materials and information, and made no secret of their plan to start afresh investigating the case. Many of the requests were unspecific, about matters which were or could have been disclosed by the Crown at trial. They sought to relate Mr Nunn’s case to other well known solved murders with which there were both similarities and differences. Suffolk police

refused access to case materials for use in what they saw as a speculative fishing expedition. The access requested included to exhibits that had probably been in contact with the killer, and might now yield his DNA profile.

Mr Nunn then applied 4 to judicially review Suffolk police’s refusal as being in breach of his rights under domestic common law (and under Articles 5 & 6 of the ECHR), but the Divisional Court held that Mr Nunn had no right of access to the material after appeal had been exhausted and dismissed the application. LCJ Thomas (as he now is) stated the decision might have been different if the Criminal Cases Review Commission (CCRC) did not have powers to obtain such materials and have them tested. 5

Mr Nunn appealed to the Supreme Court, which also received evidence from Justice, Innocence Network UK

(INUK), the Criminal Appeal Lawyers Association, and in 2013 from eminent forensic scientist Rosalyn Hammond, whose team identified the culprits in high profile cold case reviews, such as the killings of Rachel Nickell, Damilola Taylor and Stephen Lawrence, through new DNA profiling science, and evidence collection techniques.

Ms Hammond told of many historic cases where pivotal scientific evidence had been overlooked, and how her team utilised more sensitive and discriminating DNA profiling techniques than were available at the time of Mr Nunn’s trial to identify criminals. Having reviewed the available case papers she was optimistic of such prospects in this case. 6

It was common ground that before and during trial the Crown owes a duty of disclosure of anything capable of undermining the prosecution case or assisting the defence 7 which would include providing access to scientific material. A more limited disclosure obligation arose at the appeal stage under the Attorney General’s disclosure guidelines. The Nunn case however concerned the extent of any continuing duty on the Crown, after exhaustion of appeal.

Lord Hughes gave the court’s unanimous opinion, and in dismissing the appeal, reviewed English, Canadian, New Zealand and US authorities, particularly the 5:4 majority decision of the US Supreme Court in Osborne 8 and found;

“...no basis for saying that the common law ever recognised a duty of disclosure/inspection after conviction which was identical to that prevailing prior to and during the trial, and no case whether in this jurisdiction or any other, has been found to suggest it” 9

“The position of a convicted defendant is different in kind from that of a defendant on trial. The latter is presumed innocent until he is proved guilty, as he may never be.
The former has been proved guilty. He is presumed guilty, not innocent unless and until it is demonstrated.....that his conviction is unsafe. After conviction... there is ...a powerful public interest in finality of proceedings. All concerned including witnesses, complainants, the relatives of the deceased and others, have a legitimate interest in knowing that the legal process is at an end, unless there be (sic) demonstrated to be good reason for re-opening it.” 10

The court’s rejection of Mr Nunn’s appeal was however tempered by concerns over miscarriages of justice in well known cases such as Hodgson. 11

‘Miscarriages of justice may occur, however full the disclosure at trial and however careful the trial process. A convicted defendant clearly has a legitimate interest, if he continues to assert his innocence, to such proper help as he can persuade others to give him..... Quite apart from the defendant’s interest, the public interest is in such miscarriages, if they occur, being corrected’ 12

A right to beg for help being no right at all, Lord Hughes added a rider to the Attorney-General’s guidelines regarding the duty on the Crown after exhaustion of the appellate process to disclose new material which might afford arguable grounds for contending that a conviction was unsafe, by the addition to their paragraph 72 13 of a rider:

“...with the addition that if there exists a real prospect that further enquiry may reveal something affecting the safety of the conviction, that enquiry ought to be made”. 14

The concept of a duty to make further enquiries, where there is a real prospect that they may reveal something affecting the safety of a conviction, is a new and important extension of the existing duty to disclose. The Supreme Court was however not attracted to opening the floodgates to unfocussed, wide ranging, expensive re-investigations of old cases, and Mr Nunn’s appeal was not helped by its breadth. But if his requests had been too wide, yet modern science can now unerringly point to the perpetrator, what will be the practical effect of the rider on old cases? Referring to the work of solicitors and others in positive terms Lord Hughes stated;

“...they may well, by their arguments and presentations, enlist the co-operation of the police or the prosecution or both: Hodgson was just such a case. The police and prosecutors ought to exercise sensible judgment when representations of this kind are made on behalf of convicted persons. If there appears to be a real prospect that further enquiry will uncover something which may affect the safety of the conviction, then there should be co-operation in making it. It is in nobody’s interests to resist all enquiries unless and until the CCRC directs it”. 15

At Mr Nunn’s trial, evidence of the presence of sperm on the deceased was undisputed, and Mr Nunn called unchallenged evidence that he had had a vasectomy. The Crown advanced a theory that the deceased could have been contaminated when changing in her gym, which Rosalyn Hammond rejected. 16

The police in Nunn retained a sample of sperm for future examination when the science of DNA advanced in the future, as it has. When asked for access to this sample after judgement however, the Chief Constable of Suffolk, despite knowing of Ms Hammond’s opinion, saw no real prospect of the safety of the conviction being called into question, and refused. It seems that a real prospect in the eye of one beholder is merely speculative in the eyes of another. Lord Hughes avoided stating that DNA work on Mr Nunn’s case gave rise to a real prospect, and described Ms Hammond’s request for sight of all forensic science working papers as plainly speculative; others might see it as a responsible precursor to scientific work.

The Court turned to what it saw as the pivotal role of the CCRC;

“The safety net in the case of disputed requests for review lies in the CCRC. That body does not, and should not make enquiries only when a reasonable prospect of a conviction being quashed is already demonstrated. It can and does in appropriate cases make enquiry to see whether such prospect can be shown. It has ample power for example, to direct that a newly available scientific test be undertaken.” 17

Practitioners and INUK were somewhat surprised by the italicised passage. It is uncontroversial that the CCRC has the power to obtain materials from public bodies such as the police 18,  but it is underfunded 19, and in practice has often not made original scientific enquiries where a reasonable prospect of a conviction being quashed has not already been established. CCRC Commissioner Ranjit Sondhi revealingly told INUK in November 2013;

“make sure you focus your attention, and ours, on those points that at least might be capable of raising a real possibility that the Court will quash the conviction – anything else is a waste of your time and ours and, perhaps more importantly, of your applicant’s”. 20

It is not easy to see this as an invitation to use new DNA science creatively to find truth as has happened in the US. With miscarriages of justice, the crime is apparently already solved and apart from protestations of innocence, there may be no evidence of innocence until the crime samples are tested. Former CCRC Commissioner David Jessel commented “This means that genuine miscarriages of justice will inevitably slip through the net.” 21

So it was with Victor Nealon who was convicted of attempted rape in 1997 on the basis of disputed identification evidence. The CCRC then refused to review the forensic evidence, apparently not noticing that no forensic science work had been undertaken for trial. In 2002, Mr Nealon’s second application for forensic testing was denied on the grounds that the CCRC ‘does not undertake speculative DNA tests’. Seven years later, Mr Nealon’s commendably persistent solicitor secured DNA testing which led to his exoneration at the Court of Appeal in 2013. Mr Nealon had served nearly 17 years in prison.

It is to be hoped that the CCRC and police, rather than seeing advances in science as the begetters of speculation, will embrace the Supreme Court’s nuanced invitation to engage with scientific innovation, encouraged by the many US cases where it has led to truth and justice. They may draw some inspiration from the powerful judgment of Stevens J dissenting in Osborne;

“Finality is not a stand-alone value that trumps a State’s overriding interest in ensuring that justice is done in its courts and secured to its citizens. Indeed, when absolute proof of innocence is readily at hand, a State should not shrink from the possibility that error may have occurred...DNA evidence has led to an extraordinary series of exonerations, not only in cases where the trial evidence was weak, but also in cases where the convicted parties confessed their guilt and where the trial evidence against them appeared overwhelming”.....the fact of conviction is not sufficient to justify a State’s refusal to perform a test that will conclusively establish innocence or guilt....When a person is convicted for a crime he did not commit, the true culprit escapes punishment. DNA testing may lead to his identification. Crime victims, the law enforcement profession, and society at large share a strong interest in identifying and apprehending the actual perpetrators of vicious crimes, such as the rape and attempted murder that gave rise to this case. If such proof can be readily obtained without imposing a significant burden on the State, a refusal to provide access to such evidence is wholly unjustified” 22

_____________________________________

R(on the application of Nunn) (Appellant) v Chief Constable of Suffolk Constabulary and another (Respondents) [2014] UKSC 37
This modest investment has to date exonerated in the US 317 prisoners of which 18 had been sentenced to death, and who on average served 13.6 years in prison. In almost half of DNA exoneration cases, the actual perpetrator was identified by DNA testing. http://www.innocenceproject.org/know/ [Accessed August 07 2014]
http://www.supremecourt.uk/current-cases/case_2012_0175.html [Accessed July 30 2014]
[2014] UKSC 37 at [10]
S.17 Criminal Appeal Act 1995 “2(a)to produce the document or other material to the Commission or to give the Commission access to it, and (b)to allow the Commission to take away the document or other material or to make and take away a copy of it in such form as they think appropriate”
Statement of Rosalyn Hammond dated January 28 2014; “There is a very high probability that re-examination of the material in this case will produce new evidence.......There are many reasons why useful results may be obtained now where they were not previously...”
Criminal Procedure and Investigations Act 1996 s.3 & and s.7A
District Attorney's Office for the Third Judicial District v. Osborne, 557 U.S. 52 (2009)
[2014] UKSC 37 at [29]
10 [2014] UKSC 37 at [32]
11 [2014] UKSC 37 at [37] Hodgson is a particularly graphic illustration, in which a conviction for rape and murder followed a confession in compellingly detailed terms, was some twenty seven years later demonstrated to be wrong by advances in DNA science after an analysis of retained samples from the deceased excluded the defendant.
12 [2014] UKSC 37 at [36]
13 Attorney General’s Guidelines on Disclosure 2013; “Where, after the conclusion of the proceedings, material comes to light, that might cast doubt upon the safety of the conviction, the prosecutor must consider disclosure of such material”.
14 [2014] UKSC 37 at [41]
15 [2014] UKSC 37 at [41]
16 Statement of Rosalyn Hammond dated January 28 2014. Rosalyn Hammond observed that in her opinion; it is “unlikely that these findings could be accounted for by transfer of spermatozoa from a towel or surface at the gym”.
17 [2014] UKSC 37 at [39]
18 S.17 of the Criminal Appeal Act 1995
19 Criminal Cases Review Commission Annual Report and Accounts 2012-2013. A budget of £6.448m for 1625 cases annually which comes to £3968 per case.
20 www.innocencenetwork.org.uk/wp-content/.../INQUIRY-Issue-9.pdf [Accessed July 31 2014]
21 Jessel, D. cited in INUK (2012) Report on the Symposium on the Reform of the CCRC (INUK), p.52.
22 District Attorney's Office for the Third Judicial District v. Osborne, 557 U.S. 52 (2009)

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