Kelly & Anor v R.

A witness’s out-of-court statement may be admitted because of fear under section 116(2)(e) of the Criminal Justice Act 2003 only where admission serves the interests of justice. The court must assess the reality of the fear, the statement’s content and reliability, the defence’s ability to challenge it, and all relevant circumstances. Article 6 does not impose an automatic bar merely because the witness cannot be cross-examined, even where the evidence is important.

Lawfully authorised covert prison surveillance may be used in evidence. The prospect of evidential use need not be stated in every authorisation request, and that prospect alone does not make admission unfair under section 78 of the Police and Criminal Evidence Act 1984.

Kelly and Andrews were convicted of the murder of a 14-year-old girl who was fatally shot from a passing car in Nottingham. Each received life imprisonment with a minimum term of 32 years.

They appealed against conviction from the Crown Court at Birmingham. The principal issue was whether statements by Natalie Gee, Andrews’s former partner, could be read after she attended court but refused to testify through fear. Kelly also challenged the admission of covert recordings of his prison telephone calls and visits.

Both appellants challenged their minimum terms. The central questions were whether the hearsay ruling and covert-surveillance ruling rendered the convictions unsafe, and whether the minimum terms properly reflected culpability, aggravation, age and maturity.

1. The appeals against conviction were dismissed. The trial judge was entitled to find that Natalie Gee’s refusal to give oral evidence was caused by genuine fear. He had considered her inconsistent conduct, the available police material, independent evidence of her distress and her demeanour in court. That evaluative conclusion was neither perverse nor obviously wrong.

2. The judge was also entitled to admit her statements in the interests of justice under section 116(4) of the Criminal Justice Act 2003. Applying R. v. Sellick and Sellick [2005] EWCA Crim 651, the court considered the statements’ detail, coherence and independent support, as well as the material available to the defence to expose inconsistencies. Gee’s evidence was not the sole or determinative evidence against Andrews; there was a substantial circumstantial case. Admission was therefore compatible with Article 6.

3. The summing up adequately and fairly directed the jury on the special caution required in assessing Gee’s untested evidence. A judge must fairly identify the issues, but need not repeat every detailed argument made in closing speeches. The omissions alleged did not make the verdicts unsafe.

4. The covert surveillance of Kelly was lawfully authorised under the Regulation of Investigatory Powers Act 2000. The police were not required to state in later authorisation requests that material might be used as evidence. Paragraph 1.8 of the applicable Code expressly contemplated evidential use. Such use was not inherently unfair under section 78 of the Police and Criminal Evidence Act 1984; some additional unfairness had to be demonstrated.

5. Andrews’s appeal against sentence was dismissed. The 30-year starting point for firearm murder applied. The judge was entitled to find premeditation and to treat the random killing as gravely aggravating. Andrews’s age and prior offending did not justify a reduction.

6. Kelly’s appeal against sentence was allowed. Although joint responsibility was properly assessed as equal, Kelly was younger and had less serious prior offending. Applying the approach in Peters [2005] EWCA Crim 605, the court allowed for maturity and his proximity to the statutory age threshold. His minimum term was reduced from 32 years to 29 years.

• Court of Appeal (Criminal Division) — by [2007] EWCA Crim 1715, dismissed both conviction appeals, dismissed Andrews’s sentence appeal, and reduced Kelly’s minimum term from 32 to 29 years.
• Crown Court at Birmingham — Butterfield J and a jury convicted both appellants of murder. Each received life imprisonment with a 32-year minimum term.