R (on the application of Nunn) v Chief Constable of Suffolk
| Jurisdiction | England & Wales |
| Judge | Lord Neuberger,Lord Carnwath,Lord Reed,Lord Hughes,Lord Clarke |
| Judgment Date | 18 June 2014 |
| Neutral Citation | [2014] UKSC 37 |
| Date | 18 June 2014 |
| Court | Supreme Court |
[2014] UKSC 37
Lord Neuberger, President
Lord Clarke
Lord Reed
Lord Carnwath
Lord Hughes
Appellant
Hugh Southey QC Adam Straw
(Instructed by Saunders Law Ltd)
1 st Respondent
Fiona Barton QC
(Instructed by Legal Services, Suffolk County Council)
2 nd Respondent
Julian Knowles QC Paul Lodato
(Instructed by Crown Prosecution Service Appeals Unit)
Intervener (Innocence Network UK; Justice; The Criminal Appeals Lawyers Association)
Henry Blaxland QC David Emanuel
(Instructed by White & Case LLP)
Heard on 13 March 2014
Lord Hughes (with whom Lord Neuberger, Lord Clarke, Lord Reed and Lord Carnwath agree)
The claimant Kevin Nunn was convicted in November 2006 of the murder of his girlfriend following the ending of their relationship. His application for leave to appeal to the Court of Appeal (Criminal Division) was refused after hearing counsel's written and oral representations on his behalf. He continues to protest that his conviction was wrong. The present proceedings for judicial review raise the question of the extent of any continuing duty of the police and the Crown Prosecution Service to assist him in gathering and examining evidence with a view to a further challenge to his conviction, which he asserts was a miscarriage of justice.
It is common ground, and well understood, that while his trial was pending the Crown owed him the statutory duties of disclosure which are set out in sections 3 and 7A of the Criminal Procedure and Investigations Act 1996. That meant that it was the Crown's duty to disclose to him anything which had become known to it and which might reasonably be considered capable either of undermining the prosecution case or of assisting his own. At the heart of the submissions of Mr Southey QC for the claimant is the contention that this duty remains in existence in exactly the same form after as well as before his trial ended with his conviction. Whilst the statutory duties of disclosure are expressly framed as continuing only until the end of the trial, Mr Southey contends that those duties are only statutory enactments of the common law duty which pre-existed the 1996 Act, and that accordingly this common law duty remains binding on the Crown indefinitely. The basis for it, he argues, lies in the necessity of detecting and correcting any miscarriage of justice which may have occurred.
Kevin Nunn had been the boyfriend of the deceased, Dawn Walker, for about two years prior to February 2005. They did not live together and she may have had other boyfriends during this period. It was agreed that on the evening of Wednesday 2 February their relationship was brought to an end in the course of a discussion between them at her home. The Crown case was that there was a noisy argument, overheard by the neighbours and seen by one, and that Dawn had ended the affair against Nunn's wishes. His case by contrast was that it had been a matter of amicable agreement; there had been no argument and he had left well before the time spoken of by the neighbours. After that evening Dawn was not seen alive again. Her body was found by a river two days later on Friday 4 February. Attempts had been made to set fire to it at a different place near the river and at some stage it had been immersed in water. It had then been disposed in a sexually degrading position, unclothed except for a fleece over a sweatshirt pulled up above her breasts, which garments had been put on after death and burning in other clothes. The exact cause of death could not be determined. Her head and pubic hair had been shaved off, her ankles and Achilles tendon had been lacerated, and a length of reed had been inserted into her anus. The body must have been somewhere else during Wednesday night and Thursday, for it would have been seen if then by the river.
In barest outline, the Crown case against the claimant relied upon (i) the motive afforded by Dawn's rejection of him, (ii) evidence that he was of a jealous disposition and had stalked both Dawn and a previous partner, (iii) his admitted presence with her on the evening of her disappearance, (iv) the argument which the neighbours said that they had heard that night, (v) his having provided himself with a key to her home without her knowledge, which would have afforded access both to items found where the body had been burned and to a petrol can apparently removed from her shed for use in the burning, (vi) his having told her employers the next day that she was not at work because unwell, and (vii) the evidence of a neighbour who knew him and who said that she had seen him, with an accomplice, removing a large wrapped object, consistent with a body, from Dawn's house in the small hours of the night before she was found.
By contrast, the claimant's case was that he had left Dawn in good health and had thereafter been elsewhere. He pointed to a telephone record of her mobile telephone calling his at 04.55 on the night of 2/3 February; he denied that he had made the call himself to lay a false trail, and he explained the absence on his own phone of the voicemail message which he said she had left by saying that he had accidentally deleted it. He said that footprints consistent with his boots near the riverbank burning site were there because he had gone looking for Dawn the day after she disappeared; he had walked the river bank but had not seen various items connected with her which others had seen there. He advanced the positive case that Dawn had been murdered by one, or perhaps another, of her previous boyfriends, to one of whom she was perhaps hoping to return. Both were called and cross examined on his behalf before the jury, as was the girlfriend of one of those men, who provided that alleged murderer with an alibi. The claimant pointed to the presence of traces of sperm (four cells) on Dawn's inner thigh and pubic area (but not in her vagina) which, since he had had a vasectomy, were unlikely to derive from him; unless they had got there by secondary or tertiary transfer or unknown past sexual contact via clothing these, he suggested, were an indication of a killer other than him. These and other issues were all fully investigated at a trial which lasted some six weeks. In the course of it the jury heard and was able to judge the evidence of the claimant and of the identifying neighbour, as well as of the two men whom the claimant accused.
The jury's verdict of guilty was returned on 20 November 2006. The Court of Appeal refused the application for leave to appeal against conviction on 17 October 2007. The claimant continued to protest his innocence. Beginning in January 2008, he made a series of written applications to the police for supply of all their records of the investigation. These will, for an investigation such as this, have been very voluminous; they were logged in detail under the normal police computerised system for major enquiries ("HOLMES"). He sought everything, including officers' notebooks, computer files, incident logs, CID journals and the like, together with all photographs and forensic science records. The applications were framed under either the Freedom of Information Act 2000 or the Data Protection Act 1998. Whether or not the claimant fully appreciated the law, even if there was anything which could be obtained under these two statutes, these blanket applications were misconceived (see, inter alia, section 30 of the former and section 29 of the latter), quite apart from the fact that there is no suggestion that anything relevant had not been disclosed to the defendant, through his trial solicitors, before the trial.
By February 2010, however, the claimant had instructed fresh solicitors, who had not represented him at his trial. He will have been entitled to call for the case papers, including unused prosecution material, from his trial solicitors to give to his new representatives. On 8 February 2010 the new solicitors wrote the first of a number of letters to the police seeking information. They said:
"We should be most obliged if you could serve upon us some relevant and as yet undisclosed material in relation to the finances of the deceased, Dawn Walker.
The purpose of this enquiry is to ascertain whether Ms Walker had any undisclosed source of income which might indicate any form of economic activity which was not disclosed to the defence.
This enquiry is necessitated in part by the conclusion drawn from the available facts that Ms Walker was living at a standard way beyond the income which she earned at [her employers].
…..
We should also like to know whether the keys to the shed at Dawn Walker's home and her mobile phone can be made accessible to our expert, probably at the forensic science laboratory for the purpose of DNA testing."
There is no sign that Ms Walker's finances had been thought by anybody to have any relevance at all to the trial or to the question of who had murdered her. The enquiry clearly indicated a wish to start afresh investigating the case. Nor was the request for anything specific; it was a request for the police to exhume all the investigation records, a little over three years after the end of the trial, and to review anything bearing on this new topic. By now the investigation documents were all in storage and some officers concerned had moved on to other postings. In the event, some research was undertaken and a positively worded letter from the CPS responded that the author had ascertained that the deceased had certainly not been living beyond her means. Nothing more seems to have been heard of this line of enquiry.
Other requests, however, followed, some specific and some not. They included a request for sight...
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