Kevin Nunn (Claimant) The Chief Constable of the Suffolk Constabulary (Defendant) The Crown Prosecution Service (Interested Party)
| Jurisdiction | England & Wales |
| Judge | President of the Queen's Bench Division |
| Judgment Date | 04 May 2012 |
| Neutral Citation | [2012] EWHC 1186 (Admin) |
| Docket Number | Case No: CO/3872/2011 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 04 May 2012 |
[2012] EWHC 1186 (Admin)
President of the Queen's Bench Division
and
Mr Justice Haddon-Cave
Case No: CO/3872/2011
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Hearing date: 21 March 2012
This is the judgment of the court.
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
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.
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.
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
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.
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
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.
On 8 February 2010, Ms Hickman wrote to the CPS Trial...
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