Kelly, R. v

Where disclosure of a technical investigative method would seriously prejudice crime prevention or detection, a court may permit a limited departure from full disclosure. It must apply the public interest immunity framework and ensure that any departure is the minimum necessary and does not render the trial unfair as a whole.

The absence of full technical disclosure does not itself make a trial unfair. The decisive question is whether, in light of the evidence and the defence actually advanced, the accused can adequately challenge the case and present that defence. A challenge may arise under Police and Criminal Evidence Act 1984, section 78, or the expert-evidence rules; both require the same assessment of admissibility, public interest immunity and fairness.

R v Lee Paul Kelly [2013] EWCA Crim 1893 concerned encrypted emails recovered from a BlackBerry found in the appellant’s possession when he was arrested. The prosecution relied on the emails as evidence of conspiracies to supply heroin and cannabis.

The appellant said that he had recently bought the phone, could not access it and had neither sent nor received the emails. A prosecution expert recovered 23 emails but, on public interest immunity grounds, the Crown withheld the precise methodology used to overcome the phone’s encryption.

At the Crown Court at Manchester Minshull Street, the recorder declined to exclude the email evidence. The appellant appealed against his convictions, contending that the non-disclosure made the trial unfair and required exclusion of the evidence.

1. Appeal dismissed. The recorder was entitled to permit the Crown to withhold the precise method by which its expert decrypted the BlackBerry, and there was no basis to doubt the safety of the convictions.

2. Article 6 required the fairness of the trial to be assessed as a whole. The ordinary disclosure duty under the Criminal Procedure and Investigations Act 1996 could be qualified where disclosure would seriously prejudice an important public interest. Applying H [2004] 2 AC 134, the necessary derogation had to be kept to the minimum and could not imperil overall fairness.

3. The public interest in preventing disclosure of a technique capable of decrypting communications protected by expensive PGP software was high. The recorder had followed a proper public interest immunity procedure. The court had inspected the relevant hearing transcript and was satisfied that the claim had been properly made and determined.

4. Withholding the methodology did not make this particular trial unfair. It was agreed that the emails put before the jury had been recovered from the BlackBerry. The defence did not contend that the emails had been altered, that the correspondence was incomplete in a misleading way, or that the appellant could not challenge their content. Its case was instead that the emails had nothing to do with him. The expert had disclosed substantial information about his work, including the risk of lost data and his inability to explain discrepancies in earlier examinations. The appellant could therefore advance his defence and challenge the expert’s limitations before the jury.

5. Under Criminal Procedure Rules, rule 19.3, a party introducing disputed expert evidence must ordinarily give the other party an opportunity to inspect relevant records and material. A defence challenge for non-disclosure could be framed either as an admissibility challenge under that rule or as an application under section 78 of the Police and Criminal Evidence Act 1984. The route made no difference here: the court had to assess admissibility, public interest immunity and fairness. Rule 19.3(4) permitted the recorder to direct that the evidence be adduced despite the limited withholding.

6. The jury could properly infer from the messages and surrounding circumstances that the users of the BlackBerry were conspiring to supply heroin and cannabis, and that the appellant was one of them. The convictions were safe.

• Court of Appeal (Criminal Division): In R v Lee Paul Kelly [2013] EWCA Crim 1893, the court dismissed the appeal against conviction and upheld the recorder’s decision not to exclude the BlackBerry evidence.
• Crown Court at Manchester Minshull Street: On 3 October 2016, the appellant was convicted by a jury of conspiracy to supply heroin and conspiracy to supply cannabis. He received a total sentence of nine years’ imprisonment, including for a cocaine-possession offence to which he had pleaded guilty.