Kelly, R. v

Prosecutorial lapses render a conviction unsafe only where their actual effect, considered both individually and cumulatively, deprived the defendant of a fair trial or created a real possibility of a different verdict. A judge’s prompt intervention and clear corrective direction may neutralise improperly elicited evidence.

An expert may address matters within professional expertise but may not express an opinion on whether the partial defence of loss of control is established. That evaluation is for the jury. Expert conclusions must also disclose their factual premises where those premises are disputed or inadmissible.

In disclosure cases, the court asks whether material should have been disclosed and whether non-disclosure created a real possibility of a different verdict.

The appellant was convicted of murder at Stafford Crown Court on 22 May 2013 and sentenced to life imprisonment with a minimum term of 17 years. He admitted causing the deceased’s death but contested an intention to cause really serious injury and relied on the partial defence of loss of control under the Coroners and Justice Act 2009.

His appeal against conviction raised three complaints: an attempted introduction of excluded bad-character material through a prosecution psychiatrist; an expert’s improperly elicited opinion on whether loss of control was available; and late or missing disclosure, including phone records used in cross-examination. The central issue was whether those lapses, separately or cumulatively, made the conviction unsafe or denied the appellant a fair trial.

1. Appeal dismissed. Although the prosecution’s conduct attracted justified and serious criticism, the court held that none of the errors, whether assessed separately or cumulatively, rendered the conviction unsafe or deprived the appellant of a fair trial.
2. An expert opinion depends on its factual premises. Where those premises are controversial, they must be identified so that they can be challenged. A party could not circumvent the exclusion of bad-character evidence by eliciting the psychiatrist’s conclusion while withholding its inadmissible factual basis. The trial judge stopped the question before the conclusion was given. The remaining evidence about dissocial personality disorder did not create the suggested improper inference.
3. The availability of loss of control under sections 54 and 55 of the Coroners and Justice Act 2009 was for the jury. An expert could not express an opinion on whether the defence was made out. The judge’s immediate and emphatic direction told the jury that both of the expert’s opinions on that issue were irrelevant and must be ignored. That direction corrected the improper questioning.
4. On disclosure, the court applied the approach in McInnes v Her Majesty’s Advocate [2010] UKSC 7. The undisclosed phone records should have been disclosed before their use in cross-examination. However, the questioning was peripheral and irrelevant, and there was no real possibility that timely disclosure would have produced a different verdict.
5. The court therefore upheld the conviction. Criticism of a prosecution, even when well founded, does not itself establish unfairness or make a conviction unsafe.

• Court of Appeal (Criminal Division): The appeal against conviction was dismissed: [2015] EWCA Crim 500.
• Crown Court at Stafford: On 22 May 2013 the appellant was convicted of murder and later sentenced to life imprisonment with a minimum term of 17 years.