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 [2014] UKSC 37 (18
June 2014), at [23]-[29], [32], [35]. Resources of money and personnel
available to the authorities are relevant once criminal proceedings have taken
their course:
“[38]
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 [39].
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 [36]. 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.”
