This blog first appeared on thejusticegap.com
On this week’s Supreme Court ruling in the case of Kevin Nunn, Louise Shorter at Inside Justice observes, ‘This places an important new duty on the Commission not to refuse arbitrarily to investigate cases as happened to Victor Nealon.’ But are things going to change in practice post Nunn, or will it be business as usual?
The CCRC is already stretched and there are unacceptable delays throughout the review process. If an organisation such as a university innocence project is working on a case and needs, reasonably in its view, to have access to exhibits for pro bono experts, are the police going to be reasonable in dealing with these requests, prior to any CCRC involvement?
This is an extract from one police response letter we have on file: ‘From what I understand about this case, Mr X was convicted due to the substantial evidence against him and there is no uncertainty regarding his conviction. In this instance, I am unable to assist you further.’
If the same request were made today and refused, what would we then do? Apply for that decision to be judicially reviewed? We all know how difficult JR is nowadays, and what about the costs implications? It’s probably not going to be a realistic option for universities. Instead, the fall-back position, our ‘safety net’, is the CCRC.
If we get through their initial sifting we are then in a very long queue. At Cardiff, we have made seven substantive submissions on six different cases. All were accepted for full review, a 100% success rate at that stage, compared to an average figure of about 11%, confirmation that we are submitting good quality arguments that survive the initial CCRC hurdle. We have then waited for up to 41 weeks for a case to be allocated to a Case Review Manager to start the review.
One of our cases (Dwaine George) has been referred by the CCRC to the Court of Appeal, but even in that case where a referral was secured, it seems to have been almost two years before the CCRC commissioned an expert to report on the gunshot residue evidence that was of core concern for us. We all know that justice delayed is justice denied, and that the CCRC is seriously underfunded. How much extra money is going to be invested to accommodate the CCRC embracing the spirit of the Nunn judgement in a timely manner?
Related to this point of the overburdened CCRC, I can’t see in the Supreme Court judgement any comment that deals with points raised by the intervening parties, for example the Innocence Network UK, as to the limitations of the CCRC. Setting aside those concerns, there has been a long wait for this decision, and there is a glimmer of hope if this in fact leads to a less restrictive approach by the CCRC to requests for re-testing in the Nunn case and beyond.
Kevin Nunn’s solicitor James Saunders hopes that ‘the CCRC and police embrace the Supreme Court reasoning’. So do many others. At Cardiff, in the spirit of testing the Nunn reasoning, we hope very soon to give the Commission the opportunity to demonstrate whether that is the case, due to opportune timing on one of our cases.
Previously unsuccessfully referred by the CCRC to the Court of Appeal, it attracted a lot of media interest in days gone by, and benefits from high-profile supporters. So, a classic as yet not overturned miscarriage of justice, if ever there was one. Crucially, it is a case where re-testing of evidence is absolutely critical. We have already obtained outline reports from an eminent forensic scientist expressing serious concerns, but needing access to exhibits to conduct a full review. Importantly, that expert has a proven track record in cases where review of DNA/scientific evidence has been core to overturning major wrongful convictions. We can think of no more powerful case than our current one that will demonstrate whether the CCRC is going to embrace the Supreme Court reasoning as Kevin Nunn’s solicitor has urged.
Will the CCRC be sympathetic to the submissions we will soon formally be making, in the spirit of the Kevin Nunn judgement? Time will tell, and so will we.