How will the latest non-disclosure debacle affect appeals?
Following the series of recent cases that have collapsed due to inadequate prosecution disclosure, the CPS will be reviewing all live rape and sexual offence cases. But what of the convictions in completed cases that may have been tainted by similar non-disclosure? At the moment, these are not included in the “live” case review and attempts to trigger investigations appear to lie with potential applicants.
The initial difficulty here is that the CPS may send a negative response to any such request based on R (Nunn) v Chief Constable of Suffolk Constabulary [2014] 2 Cr App R 22. In this case the Supreme Court considered a case in which the claimant had been refused leave to appeal against his conviction and had then sought all the police records of the investigation. In relation to post conviction requests for disclosure the Supreme Court stated:
(a) Although the common law duty of disclosure applied to appellate proceedings, and prosecutors were obliged to disclose any relevant material which was not already known to the defendant and which might assist him in the proceedings, such disclosure did not involve a re-performance of the entire disclosure exercise.
(b) Similarly, where the trial process was complete, the common law did not recognise a duty of disclosure and inspection which was the same as that prevailing prior to and during the trial.
(c) The public interest until conviction was in the trial process being as full and fair as possible. After conviction, and apart from the question of its safety, the public interest was in finality.
(d) There was no indefinitely continuing duty on police or prosecutors to respond to whatever enquiries the defendant might make for access to case materials to allow re-investigation.
Crucially, however, in the context of the current discussion, the Supreme Court stated that where, after the conclusion of the proceedings, material came to light which might cast doubt on the safety of the conviction, the prosecutor was obliged to disclose the material to the defendant unless there were good reason not to do so, and, further, where there was a real prospect that further enquiry might reveal such material, there was also a duty to make that enquiry.
In light of the above it is submitted that the CPS would not be justified in issuing a blanket refusal to requests to carry out investigation of the unused material where the request is more than just a “fishing expedition”, and instead identifies the basis of the request with as much particularity as possible. As the Supreme Court stated a “realistic evidential foundation” should be laid to show why the conviction may well be unsafe. Following the recent cases in which late disclosure led to the collapse of the trials, it is arguable that the CPS is at least under a duty to investigate all the cases relating to the particular disclosure officer(s) involved. These may be thought to provide “a real prospect that further enquiry might reveal [relevant] material.”
In addition, it is arguable that if the current review of “live” cases identifies evidence relating to other convictions which might afford arguable grounds for contending that that conviction was unsafe, “there can be no doubt” that the CPS and police have a “duty to disclose it to the convicted defendant.”
Another difficulty in these cases is that an applicant may not have enough material – without further disclosure - to draft arguable grounds. In these case, an alternative route may be an application to the CCRC to assist. However, they too will need to be persuaded that the request is more than a speculative, fishing expedition.
The CCRC has stated that: “….Since the media spotlight fell on non-disclosure in criminal cases in late 2017, we have again been in contact again with the Metropolitan Police and the Crown Prosecution Service about disclosure problems generally and more immediately to check whether there are any particular cases we should look at again.”
Paul Taylor QC
