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In barest outline, the Crown case against the claimant relied upon (i) the motive afforded by Dawns 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... |
By contrast, the claimants case was that he had left Dawn in good health and had thereafter been elsewhere. FAC |
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. F... |
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. FAC |
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. FAC |
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. FAC |
The claimant pointed to the presence of traces of sperm (four cells) on Dawns 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 sugges... |
These and other issues were all fully investigated at a trial which lasted some six weeks. FAC |
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. FAC |
The jurys verdict of guilty was returned on 20 November 2006. FAC |
The Court of Appeal refused the application for leave to appeal against conviction on 17 October 2007. FAC |
The claimant continued to protest his innocence. FAC |
Beginning in January 2008, he made a series of written applications to the police for supply of all their records of the investigation. FAC |
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). FAC |
He sought everything, including officers notebooks, computer files, incident logs, CID journals and the like, together with all photographs and forensic science records. FAC |
The applications were framed under either the Freedom of Information Act 2000 or the Data Protection Act 1998. FAC |
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 r... |
By February 2010, however, the claimant had instructed fresh solicitors, who had not represented him at his trial. FAC |
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. FAC |
On 8 February 2010 the new solicitors wrote the first of a number of letters to the police seeking information. FAC |
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. FAC |
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. FAC |
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]. FAC |
.. We should also like to know whether the keys to the shed at Dawn Walkers home and her mobile phone can be made accessible to our expert, probably at the forensic science laboratory for the purpose of DNA testing. FAC |
There is no sign that Ms Walkers finances had been thought by anybody to have any relevance at all to the trial or to the question of who had murdered her. Ratio |
The enquiry clearly indicated a wish to start afresh investigating the case. Ratio |
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. Ratio |
By now the investigation documents were all in storage and some officers concerned had moved on to other postings. Ratio |
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. Ratio |
Nothing more seems to have been heard of this line of enquiry. Ratio |
Other requests, however, followed, some specific and some not. Ratio |
They included a request for sight of the notes of any forensic scientist who had worked on the case so that an independent expert could check their adequacy, and they sought access to various exhibits for further testing as and when their expert so advised. Ratio |
The solicitors made it clear that they were undertaking a full review of the case to determine what lines of enquiry may turn up fresh evidence. Ratio |
They referred to wanting to review material relating to DNA, pathology, soil composition, pollens and diatoms. Ratio |
In November 2010 an itemised list of requests for information was sent to the police. Ratio |
It asked a variety of questions which would have entailed a detailed review of the investigation documents. Ratio |
It included the question, described as relating to an obvious possibility, whether the murder of Dawn Walker had been linked to a series of high profile murders of prostitutes in Ipswich. Ratio |
The several letters made it clear that other requests would be likely to follow as the general review of the case proceeded. Ratio |
On 1 February 2011 the police replied formally, repeating what had already been said in correspondence, to the effect an obligation was accepted to disclose any material which came to light after the conviction and which might cast doubt on the safety of the conviction, but not to facilitate a general trawl through a f... |
The claimants application for judicial review followed. FAC |
It sought: (a) A declaration that the defendant's 1 February 2011 refusal to grant the claimant access to prosecution evidence is unlawful being in breach of his rights under domestic common law, under articles 5 and 6 of the ECHR and/or under section 7 of the Data Protection Act 1998; and (b) a mandatory order requiri... |
The Divisional Court (Sir John Thomas P and Haddon-Cave J) refused the application. FAC |
This is the claimants appeal from that refusal. FAC |
It should be recorded that after the lodging of the claim for judicial review, and again between the hearing before the Divisional Court and that in this court, the apparent target of the claimants present requests has been narrowed. Ratio |
It seems that nothing is now made of the suggested obvious possibility that this murder was linked to the murders of prostitutes in Ipswich; the several important differences between the two cases which have been explained may have been taken on board. Ratio |
The focus is now upon (i) access to the working papers of the forensic scientists who advised the Crown and/or gave evidence and (ii) requests for re-testing, or first testing, of various exhibits recovered in the course of the investigation. Ratio |
At the trial, the scientific evidence was, in most respects, inconclusive as to the identity of the killer. FAC |
The Crown did not rely on it to support the case against the claimant, as the trial judge carefully reminded the jury early in her summing up. FAC |
There were the footprints near the river which were consistent with boots which the claimant wore, but they were not uniquely so, and he admitted walking there at the material time. FAC |
DNA testing of various items found either on the body or where it had been burned provided nothing to associate them either with the claimant or with any of the other males who figured in the case. FAC |
The scientific evidence of the presence of traces of sperm on the deceased was not disputed, and evidence was given about the possible ways in which, by secondary or tertiary transfer, such material might arrive where it was found. FAC |
The claimant called expert evidence relating to the consequences of his vasectomy. FAC |
What other scientific advice he had cannot, in the absence of waiver of privilege, be known. FAC |
No forensic science report available to him at trial has ever been disclosed by him; there is of course no obligation upon a defendant to disclose such a report unless he proposes to rely upon it. FAC |
A great many defendants decide, on advice, that there is nothing in the reports obtained for them which will help them or that the best use to which they can be put is to inform cross-examination of the Crown scientists without exposing points on which the reporting expert agrees. FAC |
Some time after the claim for judicial review was lodged, the claimant provided the police and CPS with a full report from an independent forensic scientist who had clearly been instructed by the new solicitors some while beforehand, though long after the trial. FAC |
While appeal to this court was pending, a further statement from a different forensic scientist has also been lodged, dealing with advances in DNA testing techniques over the period since the trial; this was admitted without objection before this court. FAC |
Nevertheless, whilst the focus of the now current application to the police has narrowed, it is plain from the sequence of the requests made that what the claimant seeks is a full re-investigation, and access from time to time to whatever he thinks necessary to review any point which he wishes. Ratio |
Consistently with this, the appeal has been argued before this court at the general level of the extent of the duty, after conviction and exhaustion of appeal, to which the Crown and the police remain subject in relation to the products of the police enquiry. Ratio |
The question of law of general public importance which the Divisional Court certified at Mr Southeys request is: Whether the disclosure obligations of the Crown following conviction extend beyond a duty to disclose something which materially may cast doubt upon the safety of a conviction, so that the [Chief Constable] ... |
As is apparent from the summarised history of applications set out above, what this claimant chiefly seeks is not disclosure of something which has been withheld from him, but inspection of material which was fully and properly disclosed during the trial process. Ratio |
Disclosure and inspection are related, and governed by similar principles, but it does not at all follow that the exact content of the Crowns duty in a particular case can be understood without adverting where necessary to the difference between them. Ratio |
As Mr Southey rightly submits, the Crowns duty of disclosure and inspection was formulated by the common law in the second half of the twentieth century. ARG |
There were parallel developments of rules of disclosure in other common law jurisdictions: see for example Brady v Maryland 373 US 83 (1963) in the United States of America. ARG |
The precise extent of the duty in England and Wales before and during trial is not in issue in the present case and calls for no more than a summary. ARG |
Early decisions, such as R v Bryant and Dickson (1946) 31 Cr App R 146 and Dallison v Caffery [1965] 1 QB 348 recognised the Crowns duty to disclose to a defendant the existence of a witness who can give material evidence. ARG |
Later decisions expanded the rule into a general duty to disclose evidence of any kind which might reasonably be thought capable of assisting a defendant, in large part in response to a few notorious cases in which trials went wrong because defendants were unaware of such material although it was in the hands of the pr... |
R v Ward [1993] 1 WLR 619 is a well-known example, where wholesale failure to disclose scientific material bearing on the reliability of scientific evidence at the centre of the Crown case made it necessary to quash convictions for bomb-setting some twenty years after the event. ARG |
A defendants right to have disclosed evidential material inspected on his behalf will generally go with the duty of disclosure. Ratio |
For example, R v Mills [1998] AC 382 held that a material witness statement should be provided for inspection as well as the existence of the witness disclosed. PRE |
There are, however, inevitably additional considerations associated with inspection of evidential material other than witness statements. Ratio |
Occasionally, material may have had to be destroyed for reasons of safety, or may unavoidably have been used up in a testing process. Ratio |
If it remains available, inspection must be on terms that it is properly preserved and, if scientific, not exposed to risk of contamination. Ratio |
Particular issues may arise in relation to the cost of handling or preserving some kinds of material. Ratio |
There are special rules for material falling within the Sexual Offences (Protected Material) Act 1997 designed to prevent it from being put into the possession of individual defendants. Ratio |
In practice, in many cases, inspection is likely reasonably to be restricted to nominated and trusted professional or expert persons. Ratio |
What will be reasonable will vary from case to case. Ratio |
The Criminal Procedure and Investigations Act 1996 put the common law prosecution duty of disclosure into statutory form. Ratio |
It recognised a two-stage process of disclosure, initially under section 3 and continuing under what is now section 7A. It also inaugurated a duty of defence disclosure, which, although one of imperfect obligation, is connected to the prosecution duty since the defence statement required by section 5 and the advance no... |
The Act somewhat modified the test for disclosure from that variously articulated in R v Ward and in R v Keane [1994] 1 WLR 746 at 752, whilst maintaining its purpose. Ratio |
Both the initial duty under section 3 and the continuing duty under section 7A are couched in the same terms. Ratio |
They apply to any material which the prosecution has or has inspected and which: .might reasonably be considered capable of undermining the case for the prosecution against the accused or of assisting the case for the accused. Ratio |
The Act dealt specifically with the timing of the duties which it created. Ratio |
In this and generally it gave effect to the recommendation of the Royal Commission on Criminal Justice (the Runciman Commission) (1993) (Cm 2263) which had expressed concern that the common law risked requiring detailed disclosure of matters whose potential relevance is speculative in the extreme and about the impracti... |
The Act met those concerns firstly by providing the test for disclosure set out above. Ratio |
By section 21, where the statutory duties created by the Act apply, they displace the former common law duties which cease to operate. Ratio |
The Act then recognised the two-stage disclosure procedure described above and it defined the period during which its statutory duties of disclosure are imposed. Ratio |
For trials on indictment, the duty begins with the arrival of the case (by whatever route) in the Crown Court: section 1(2). Ratio |
It ends with the end of the trial, whether by conviction, acquittal or the Crown discontinuing proceedings: section 7A(1)(b). Ratio |
It follows that the duty of disclosure created by the Act does not apply to the present claimant. Ratio |
The end of the trial is, however, not always the end of the criminal process. Ratio |
Any convicted defendant has the right to appeal to the Court of Appeal (Criminal Division) if he can show an arguable case that his conviction is not safe. Ratio |
If that fails, a defendant cannot mount a second appeal, because the court is functus officio. Ratio |
But, again in response to the recommendations of the Runciman Commission, the law of England and Wales (and also of Northern Ireland and Scotland) has put in place a separate body, the Criminal Cases Review Commission (CCRC), which has the power to review any conviction and which is charged, if it thinks that there is ... |
Such a referral by- passes the requirement for leave to appeal. Ratio |
An arguable case is assumed. Ratio |
The Court thereupon has the duty to investigate the safety of the conviction and must quash it if it is unsafe. Ratio |
The CCRCs extensive investigative powers include the power to require the production to it of any material in the hands of the police or any other public body, to appoint an investigator with all the powers of a police officer, and to assemble fresh evidence not before the court of trial. Ratio |
As summarised above, Mr Southeys essential submission is that the common law duty of disclosure was developed with the purpose of preventing miscarriages of justice. Ratio |
Whilst the common law duty is displaced where the Act applies, it remains in force, he submits, for periods before and after the Crown Court trial. Ratio |
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