Thursday, June 19, 2014
Beyond the law: the kindness of strangers
At common law, once a defendant has been convicted, disclosure obligations change. This is because of the public interest, particularly the interests of victims and witnesses, in the finality of litigation. So a defendant who disputes a conviction has limited rights to disclosure for the purposes of appeal, but even more limited rights – not really rights at all – once usual avenues of appeal have been exhausted.
This is illustrated in Nunn, R (on the application of) v Chief Constable of Suffolk Constabulary  UKSC 37 (18 June 2014), at -, , . Resources of money and personnel available to the authorities are relevant once criminal proceedings have taken their course:
“ It does not, however, follow ... 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. Indeed, the potential for disruption and for waste of limited public resources would be enormous if that duty were to be accepted. The claimant's 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. There is no such duty. 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 Attorney General's guidelines, read as explained in para 30 above.”
Even the Criminal Cases Review Commission does not indulge in inquiries that are merely speculative .
Obviously, not every jurisdiction has a body like the UK’s Criminal Cases Review Commission. In any event, once criminal proceedings are over a convicted person who disputes the conviction has a “legitimate interest” in obtaining such proper help as others can be persuaded to give . The burden falls on others, and importantly,
“None of this means that the work of solicitors and others in the interests of convicted persons may not be of great value. 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. Sometimes, such solicitors or others can usefully undertake enquiries of their own, respecting of course the interests of third parties. 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. The police and prosecutors ought to exercise sensible judgment when representations of this kind are made on behalf of convicted persons. 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. It is in nobody's interests to resist all enquiry unless and until the CCRC directs it.”