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There is, however, a clear public interest that in the contest for the finite resources of the police current investigations should be prioritised over the re-investigation of concluded cases, unless such good reason is established. Ratio |
If, then, there is no basis for Mr Southeys principal submission, that the duty of disclosure remains the same after conviction as before, the question remains what the duty does entail at that stage. Ratio |
There can be no doubt that if the police or prosecution come into possession, after the appellate process is exhausted, of something new which might afford arguable grounds for contending that the conviction was unsafe, it is their duty to disclose it to the convicted defendant. Ratio |
Simple examples might include a new (and credible) confession by someone else, or the discovery, incidentally to a different investigation, of a pattern, or of evidence, which throws doubt on the original conviction. Ratio |
Sometimes such material may appear unexpectedly and adventitiously; in other cases it may be the result of a re-opening by the police of the enquiry. Ratio |
In either case, the new material is likely to be unknown to the convicted defendant unless disclosed to him. Ratio |
In all such cases, there is a clear obligation to disclose it. Ratio |
Para 72 of the Attorney Generals guidelines, quoted above, correctly recognises this. Ratio |
This is, however, plainly different from an obligation not to reveal something new, but to afford renewed access to something disclosed at time of trial, or to undertake further enquiries at the request of the convicted defendant. Ratio |
Miscarriages of justice may occur, however full the disclosure at trial and however careful the trial process. PRE |
A convicted defendant clearly has a legitimate interest, if continuing to assert his innocence, to such proper help as he can persuade others to give him: see R v Secretary of State for the Home Department, Ex p Simms [2000] 2 AC 115, where a prisoners right, for this purpose, to a visit by, and oral interview with, an... |
Quite apart from the defendants interest, the public interest is in such miscarriages, if they occur, being corrected. Ratio |
There is no doubt that there have been conspicuous examples of apparently secure convictions which have been demonstrated to be erroneous through the efforts of investigative journalists, or of solicitors acting on behalf of convicted persons or, sometimes, of other concerned persons. Ratio |
This court was referred to R v Hodgson [2009] EWCA Crim 490 as a particularly graphic illustration. Ratio |
There, the defendants conviction for rape and murder, based essentially upon the apparently compelling detail of his own circumstantial confessions, was, some twenty seven years later, demonstrated to have been wrong by the advances in science, and despite no one concerned with the investigation or trial having done an... |
This was possible because samples of semen recovered from vaginal and anal swabs taken from the deceased could be analysed for DNA in a way which had not been possible at the time. Ratio |
A solicitor who was recently instructed on behalf of the defendant made the enquiry of the CPS and/or the police whether the samples remained in existence despite the passage of time. Ratio |
When it was found that they did, analysis of them by modern methods was immediately commissioned by the police and prosecution, with a view to immediate disclosure of the outcome. Ratio |
The semen could only have come from the rapist/murderer. Ratio |
The results excluded the defendant. Ratio |
A rapid joint submission to the CCRC followed, with an immediate reference by that body to the court. Ratio |
In quashing the conviction, the Court of Appeal, Criminal Division, gave appreciative recognition to the efforts of solicitor, police and prosecutor and to the level of co-operation between them. Ratio |
It does not, however, follow from cases such as this that the law ought to impose a general duty on police forces holding archived investigation material to respond to every request for further enquiry which may be made of them on behalf of those who dispute the correctness of their convictions. Ratio |
Indeed, the potential for disruption and for waste of limited public resources would be enormous if that duty were to be accepted. Ratio |
The claimants initial requests in the present case for investigation of the finances of the deceased, as well as his earlier applications for sight of the entire investigation files, afford good illustrations of the kind of speculative enquiry which such a rule would encourage. Ratio |
There is no such duty. Ratio |
If the duty of disclosure pending appeal is limited, as it plainly is, to material which can be demonstrated to be relevant to the safety of the conviction, it is all the clearer that after the appellate rights which the system affords are exhausted the continuing obligation cannot be greater than that stated in the At... |
The safety net in the case of disputed requests for review lies in the CCRC. Ratio |
That body does not, and should not, make enquiries only when reasonable prospect of a conviction being quashed is already demonstrated. Ratio |
It can and does in appropriate cases make enquiry to see whether such prospect can be shown. Ratio |
It has ample power, for example, to direct that a newly available scientific test be undertaken. Ratio |
R v Shirley [2003] EWCA Crim 1976, a DNA case not unlike Hodgson, appears to be a case in which it did exactly that. Ratio |
What it ought not to do is to indulge the merely speculative. Ratio |
It is an independent body specifically skilled in examining the details of evidence and in determining when and if there is a real prospect of material emerging which affects the safety of a conviction. Ratio |
This exercise involves a detailed scrutiny of the other evidence in the case and a judgment on the likely impact of whatever it is suggested the fresh enquiries may generate. Ratio |
Whilst in principle the court retains control, via the remedy of judicial review, of the duty laid upon the police and prosecutors after the appeal process is exhausted, it is likely to determine, unless good reason for not doing so is provided, that relief by that route is inappropriate until the CCRC has had the oppo... |
The advances of science mean that from time to time it will become possible to undertake tests which were not available earlier. Ratio |
This possibility presents just one example of the approach set out above. Ratio |
Sometimes such tests will be potentially determinative of guilt, as they were in Hodgson. Ratio |
In other cases they will be simply speculative, either because there is great uncertainty about whether any result can be obtained or because any result will be consistent both with guilt and innocence. Ratio |
The difference between the two cases has given rise in the USA to debate about the extent of any right to re-testing especially if it is likely to be conclusive. Ratio |
Osborne, referred to above, records some of the debate and the fact that a large number of US states have made legislative provision for such testing in defined circumstances. Ratio |
There is, however, no body such as the CCRC in the United States, which can decide in an appropriate case to require testing. Ratio |
Here, there is. Ratio |
None of this means that the work of solicitors and others in the interests of convicted persons may not be of great value. Ratio |
There is no doubt that the CCRC is much assisted by informed legal analysis and presentation if an application for review is made to it, and not only because its funding is not unlimited, but also because accurate legal formulation focuses the mind correctly. Ratio |
Sometimes, such solicitors or others can usefully undertake enquiries of their own, respecting of course the interests of third parties. Ratio |
On other occasions 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. Ratio |
The police and prosecutors ought to exercise sensible judgment when representations of this kind are made on behalf of convicted persons. Ratio |
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. Ratio |
It is in nobodys interests to resist all enquiry unless and until the CCRC directs it. Ratio |
It is enough to determine the instant appeal that after conviction there is no indefinitely continuing duty on the police or prosecutor either in the same form as existed pre-trial or to respond to whatever enquiries the defendant may make for access to the case materials to allow re-investigation. Ratio |
The duty is properly stated at para 72 of the Attorney Generals guidelines, read as explained in para 30 above, 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. Ratio |
The Divisional Court held that there was no basis for concluding that any of the enquiries made in the present case go beyond the simply speculative and satisfy this latter condition. Ratio |
This court has, rightly, been pressed with argument chiefly on the principled point of law rather than on the facts of this case. Ratio |
This appeal ought not, however, to be left without the observation that the fact that DNA testing is one of the things sought does not by itself answer the question whether the request has a real prospect of uncovering material affecting the safety of the conviction. Ratio |
The request for sight of all forensic science working papers so that the scientists work could be checked was plainly speculative. Ratio |
The report provided by the claimant states specifically that there is no reason to query any of the work done or conclusions arrived at. Ratio |
The report also makes it clear in some instances that the request for testing of items which were not previously tested is made simply because the claimant or his family would like it done; those requests have the plain appearance of being likewise speculative. Ratio |
In the case of some of the testing proposed it seems likely that some alteration of the samples would be involved, by consolidating them; if this kind of operation is in question, there is a further decision to be made whether re-testing would rule out any future use of the material. Ratio |
There may be a separate question concerning the new possibilities of undertaking modern, and better, DNA testing of certain swabs, especially those from the thigh and genital region. Ratio |
Even there, however, the forensic science report now relied upon concludes that even if a match were found to one of the men under discussion in the case, that would not necessarily exclude the claimant as the killer. Ratio |
The killer may or may not have deposited traceable DNA. Ratio |
Although it is suggested for the claimant that if DNA attributable to one of these men were to be found, that would provide good evidence that he might be the killer, it must also be the case that any DNA which is found need not be related to the killing, particularly if the deceased had an association with the man in ... |
It is plain that the presence of a very few unattributed spermatozoa was known at the trial and the possibilities for innocent transfer were fully investigated. Ratio |
On the limited information presently available it seems unclear that a real prospect is established of material emerging affecting the safety of the conviction. Ratio |
However, any further request for access to the sample should be tested on the principles explained above, in the first instance by the police and if necessary by the CCRC. Ratio |
For these reasons, this appeal should be dismissed. RPC |
This is a reference made by the Attorney General for England and Wales (the Attorney General) under section 112 of the Government of Wales Act 2006 (the 2006 Act) for a determination on whether sections 6 and 9 of the Local Government Byelaws (Wales) Bill 2012 are within the legislative competence of the National Assem... |
The background to the reference FAC |
Following a referendum held in 1997, the Government of Wales Act 1998 (the 1998 Act) set out the initial devolution settlement for Wales. FAC |
This included the establishment of the Assembly, a body corporate which had the legal responsibility for discharging the devolved executive and legislative functions. FAC |
Sections 21 and 22 of the 1998 Act governed the functions of the Assembly, and they included provisions for transferring functions vested in a Minister of the Crown to the Assembly, by Order in Council. FAC |
Schedule 2 to the 1998 Act set out the fields of functions which were to be devolved to the Assembly in the first such Order in Council, including [t]he environment and [l]ocal government. FAC |
The first Order in Council making such provision was the National Assembly for Wales (Transfer of Functions) Order 1999, SI 1999 No 672 (the 1999 Order). FAC |
The Assemblys legislative powers were limited, and a White Paper, Better Governance for Wales (Cm 6582) published in June 2005, proposed increasing those powers in three respects: (i) giving the Assembly wider powers to make subordinate legislation; (ii) allowing the United Kingdom Parliament (Parliament) to confer enh... |
These proposals were adopted by Parliament, and implemented by the 2006 Act. FAC |
Part 1 of the 2006 Act re-enacts many of the provisions of the 1998 Act, but it omits any reference to the Assembly being a corporate body. FAC |
Section 45 establishes the Welsh Assembly Government, which comprises the First Minister, the Welsh Ministers, the Counsel General to the Welsh Assembly Government and the Deputy Welsh Ministers. FAC |
Section 46 provides for the First Minister to be appointed by Her Majesty. FAC |
Sections 48 and 50 confer on the First Minister the power to appoint, with the approval of Her Majesty, the Welsh Ministers and the Deputy Welsh Ministers from among the Assembly members. FAC |
Sections 56 to 92 make provision about the functions of the First Minister, the Welsh Ministers, and the Counsel General. FAC |
Part 3 of, and Schedule 5 to, the 2006 Act contain what were anticipated to be transitional provisions regarding the Assemblys powers with effect from the day after the Assembly election in 2007. FAC |
They were intended to be replaced by the Assembly Act provisions, contained in Part 4 of, and Schedule 7 to, the 2006 Act. FAC |
These provisions are intended, inter alia, to give the Assembly primary legislative powers for certain areas, and are provided by section 105 to come into force pursuant to an order made by Welsh Ministers following a referendum. FAC |
That referendum duly took place, and the Welsh Ministers duly made the order contemplated, as a consequence of which the provisions of Part 3 and Schedule 5 lapsed, and the provisions of Part 4 and Schedule 7 took effect, on 5 May 2011. FAC |
As a result of this, the Assembly has power to make primary legislation, which powers are delimited by provisions which identified the extent of the Assemblys legislative competence. FAC |
If there is an issue as to whether a Bill, or a provision in a Bill, passed by the Assembly exceeds that competence, the issue can be referred to this court under the terms of section 112 of the 2006 Act. FAC |
The first Bill to be passed by the Assembly under its new power was the Local Government Byelaws (Wales) Bill 2012 (the Bill), the aim of which is to simplify procedures for making and enforcing local authority byelaws in Wales. FAC |
Certain provisions of the Bill, in particular section 6 and section 91, are intended to remove the need for the confirmation of byelaws by the Welsh Ministers or by the Secretary of State. FAC |
Section 6 (through Part 1 of Schedule 1 to the Bill) refers to certain specific enactments (the scheduled enactments) which currently require confirmation, and section 9 would empower the Welsh Ministers to add to those enactments. FAC |
The Secretary of States consent to the inclusion of these two sections in the Bill was sought. FAC |
She was prepared to agree to section 6 of the Bill (section 6), because she was content to give up her right to confirm byelaws made under the specific provisions identified in Part 1 of Schedule 1 to the Bill, but she was not prepared to agree to the inclusion of section 9 of the Bill (section 9). FAC |
The Assembly nonetheless proceeded to pass the Bill with sections 6 and 9 in their 1 What would be, or become, sections of a Statute enacted by the UK Parliament are conventionally referred to as clauses in the Bill until it becomes a Statute. FAC |
However, in this judgment, I follow the language used in Standing Orders 26 and 26A of the National Assembly for Wales (June 2012), which deal with Acts of the Assembly, and refer to sections of a Bill. FAC |
original form. FAC |
The Attorney General then referred to this court the question whether sections 6 and 9 were outwith the Assemblys legislative competence. FAC |
The parties who were identified as respondents to the reference were (i) the National Assembly for Wales Commission, representing the Assembly, and (ii) the Counsel General, both of whom appeared before us. FAC |
The Assembly was represented by Mr Rhodri Williams QC, with Ms Rebecca Stickler, and the Counsel General, Mr Theodore Huckle QC, was assisted by Mr Clive Lewis QC. FAC |
The Attorney General for Northern Ireland, Mr John Larkin QC (who appeared with Mr David McAlister) also appeared, having been permitted to intervene, as the issues raised by this reference have potential implications for the extent of the legislative competence of the Northern Ireland Assembly under the Northern Irela... |
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