Kennedy, R. v

Lay evidence from a witness and the witness’s mother may establish cognitive impairment. The absence of expert or medical evidence does not make that evidence irrelevant or inadmissible. Its significance remains a matter for the jury, with appropriate directions.

A disclosure oversight does not render a conviction unsafe where the undisclosed material has no direct relevance to the issues tried. A complaint about special measures for a prosecution witness requires a demonstrated effect on the fairness of the defence trial.

In sentencing for kidnapping, a judge entitled to find dangerousness may impose an extended sentence and select kidnapping as the lead offence, while applying the totality principle.

The applicant was convicted in the Crown Court at Liverpool of kidnapping, assault occasioning actual bodily harm and possessing criminal property. He had also pleaded guilty to burglary, possession of an offensive weapon and handling stolen goods. He received an extended sentence of 11 years for kidnapping, comprising eight years’ custody and a three-year extended licence period.

He renewed applications for leave to appeal against conviction and sentence, with applications for extensions of time. The conviction grounds concerned the trial judge’s treatment of evidence that the complainant had cognitive difficulties, alleged non-disclosure of historic medical material, and the absence of further special measures. The sentencing challenge concerned dangerousness and the length of the extended sentence.

1. The applications for leave to appeal against conviction and sentence were refused. The applications for extensions of time were also refused because none of the proposed grounds had merit.

2. The trial judge had not misrepresented the evidence concerning the complainant’s cognitive difficulties. The evidence came principally from the complainant’s mother, who was well placed to give it. The absence of medical or expert evidence did not make it irrelevant or inadmissible. The judge was entitled to identify it as part of the material relevant to the jury’s assessment, while leaving its significance entirely to the jury. There was no analogy with R v Bateson (1969) 3 All ER 1372.

3. The Crown accepted that the historic psychology report should have appeared on the unused-material schedule. That oversight did not make the convictions unsafe. A report from 2015 supporting cognitive impairment had no direct relevance to the complainant’s position at trial four years later. More importantly, the central trial issues did not turn on any impairment. The complainant gave a full account, his injuries were consistent with being Tasered, and the defence case was a competing factual account.

4. The proposed complaint about an intermediary or further special measures had no material bearing on the fairness of the defence trial. No example showed that the complainant had failed to understand questions or had misunderstood the propositions put to him.

5. The sentencing judge was entitled to find the applicant dangerous and to impose an extended sentence under Criminal Justice Act 2003. The judge could make kidnapping the lead offence, reflect the overall criminality in that sentence, and impose concurrent sentences for the remaining offences in accordance with totality. The sentence was neither wrong in principle nor manifestly excessive.

• Court of Appeal (Criminal Division): renewed applications for leave to appeal against conviction and sentence refused; extensions of time refused.
• Crown Court at Liverpool: on 12 March 2020, the applicant was convicted of kidnapping, assault occasioning actual bodily harm and possessing criminal property, having pleaded guilty to further offences. On 2 April 2020, he received an extended sentence of 11 years for kidnapping, with concurrent sentences on the other counts.