Why the Brown and McCollum Exoneration would be unlikely in the UK

Lessons from North Carolina's DNA exoneration case

Disclosure post-Nunn

In light of the recent exoneration of Leon Brown and Henry McCollum in North Carolina after 30 years in prison, it may surprise the average person in the UK that there is no equivalent access to post-conviction DNA testing on this side of the pond.

In the UK, this lack of access to DNA testing, and otherwise to examine case materials, was confirmed in the recent 2014 Kevin Nunn Supreme Court case[1]. This case, in which we acted for Mr Nunn, ruled on the Crown's duty to make evidence available to a convicted defendant who has exhausted the appeal process. The Court's ultimate finding was that for Mr Nunn, and other potential victims of miscarriages of justice, there is no general duty to disclose case materials for testing or examination. This was despite the fact that the police have unfettered access for cold case reviews and the Court acknowledged that "[m]iscarriages of justice may occur, however full the disclosure at trial and however careful the trial process."[2]

For prisoners like Mr Nunn, while pre-conviction he is innocent until proven guilty, requiring the Crown to cooperate and disclose all relevant evidence; post-conviction, access to the original case materials is at his opponent's discretion

For a convicted defendant to have case materials examined, there must be a "real prospect" [3] that it may reveal something affecting the "safety of the conviction"[4]. But oftimes, there can be no such "real prospect" until an examination is made of the case materials. A Catch-22 situation, which would likely have been the case if the Brown and McCollum case had occurred in the UK. Mr Nunn's only hope for a review of his case is by the underfunded[5] Criminal Cases Review Commission (CCRC), which in practice often requires a reasonable prospect of the conviction being quashed before it will make a scientific enquiry into the case evidence.

In North Carolina, thanks to their legislation[6] and the North Carolina Innocence Enquiry Commission, Brown and McCollum had the right to obtain access to case exhibits, have them tested, and take the result to the appeal courts. In the UK prisoners are stuck with what the CCRC decides, and there is no such legislation allowing DNA testing as a matter of course for convicted defendants. In short, the obstacles to proving a wrongful conviction are set too high[7].

Rosalyn Hammond is an eminent forensic scientist whose team identified the culprits in cold case reviews such as the killings of Damilola Taylor and Stephen Lawrence. She is optimistic that, in Mr Nunn's case, pivotal scientific evidence may have been overlooked, and the advancement of more sensitive and discriminating DNA profiling techniques could reveal new and pertinent case material.[8]

In 2006, Mr Nunn was convicted of the murder of his former girlfriend. He has always protested his innocence. A witness who placed him close to the victim's home on the night of her murder was one of the main pieces of evidence in the case. "Eyewitness misidentification is the single greatest cause of wrongful convictions, playing a role in 72% of convictions overturned through DNA testing".[9] None of the forensic evidence proved Mr Nunn's guilt. Sperm was found on the victim's body which was not his as he had had a vasectomy. The sperm sample was not sufficient for DNA testing then, but is now. The Chief Constable of Suffolk, despite Ms Hammond's opinion, and despite repeated appeals from Nunn's lawyers, has seen no "real prospect" that examining case materials will reveal any new evidence and repeatedly refused to release a sample of the sperm for testing.

The more than 30 years served by Brown and McCollum in prison, with McCollum serving his time on death row, is a stark reminder of how easy it is for miscarriages of justice to be overlooked. As of today, Kevin Nunn is still incarcerated with no access to his case materials for examination, other than through the CCRC.

Footnotes:

[1] R. (on the application of Nunn) (Appellant) v Chief Constable of Suffolk Constabulary and another (Respondents) [2014] UKSC 37

[2] [2014] UKSC 37 at [36]

[3] Attorney General's Guidelines on Disclosure 2013: "Where, after the conclusion of the proceedings, material comes to light, that might cast doubt upon the safety of the conviction, the prosecutor must consider disclosure of such material"| 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"

[4] Ibid

[5] Criminal Cases Review Commission Annual Report and Accounts 2012-2013

[6] North Carolina General Statutes SS 15A-269 Request for post-conviction DNA testing

[7] Wicks & Carney, Police Journal 2012, 85(1), Miscarriage of justice and the defendant's right to review forensic evidence, 85-90

[8] Rosalyn Hammond dated January 28 2014: "There is a very high probability that re-examination of the material in this case will produce new evidence"| There are many reasons why useful results may be obtained now where they were not previously"|"

[9] http://www.innocenceproject.org/understand/Eyewitness-Misidentification.php [accessed 04 September 2014]