Neutral Citation Number: [2007] EWCA Crim 1715
Case No: 2005/5942/D4; 2005/6056/D2
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT BIRMINGHAM
(Mr JUSTICE BUTTERFIELD)
200057643/2
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 19/07/2007
Before :

LORD JUSTICE LEVESON
MR JUSTICE TREACY
and
MR JUSTICE FLAUX
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Between :

	MARK ANTONIO KELLY
JUNIOR ANDREWS	Appellants
	
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	REGINA	Respondent	

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MR. T. SPENCER Q.C. and MR R. JONES  for Mark Antonio Kelly
MR. O. POWNALL Q.C. and MR. A. REYNOLDS for Junior Andrews
MR. P. JOYCE Q.C.  and MR S. COUPELAND for the Crown
Hearing date : 18 June 2007
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 Judgment

Lord Justice Leveson : 
1.	On 12th October 2005, in the Crown Court at Birmingham, after a trial lasting some five weeks before Butterfield J and a jury, the appellants, Mark Kelly and Junior Andrews, were convicted of murder by majority verdict (10:2).  Each was sentenced to life imprisonment and ordered to serve a minimum term of 32 years less time served.  Both appeal against conviction by leave of the full court and sentence by leave of the single judge.  The challenges are based on decisions of the trial judge, first, to allow the witness statements of Natalie Gee (who had had a relationship with Andrews lasting four years) to be read pursuant to section 116(2)(e) of CJA 2003 and, secondly (in relation to Kelly) to admit evidence secured by means of covert recording of telephone calls by and visits with Mark Kelly while in custody.
2.	In short, the prosecution arose from a truly appalling incident in the early hours of 9th October 2004 when 14 year old Danielle Beccan and her friends were walking home in the St Anne’s area of Nottingham.  For no discernible reason, shots were fired from a passing car.  One shot hit Danielle in the abdomen and led to her death within 2 hours.  The prosecution alleged that the car in question was a gold coloured Citroen Xsara registered number X935 UGW driven by Kelly with Andrews as a front seat passenger; that both came from the Meadows area of Nottingham and hated people from St Anne’s; and that one of them fired at least two shots through the driver’s side window as they came upon the group that included Danielle, the car first having slowed down.  Whoever pulled the trigger, the case was based firmly in joint enterprise.
3.	It was the defence of both men, that each was elsewhere at the time.  Andrew’s case was that he was not in the car at the time of the shooting but was in a nightclub in the centre of Nottingham:  he had nothing to do with it.  For Kelly, it was submitted that the jury could not be sure that it was from his car that the shots were fired or, if it was and if he was driving, they could not be sure that he had anything to do with the victim’s death.
The Facts
4.	In order to put the challenges to these convictions into context, it is necessary to describe the prosecution evidence in a little detail and we do so without reference, at this stage, to the evidence of Natalie Gee.  
5.	From about 9.30 pm, Andrews and Kelly were at the Tollbridge public house in the Meadows.  They were in a group around a sporty silver or gold car.  Andrews’ behaviour was said to be aggressive and play fighting, and the pub manager said Andrews was louder than the rest.   From mobile phone records it was possible to say that both were in the Clifton area around 10 pm:  in that area a house was broken into at about 10 pm. by three young men, two black one white.  The door to the house had been kicked in and all rooms searched.  A DVD player together with a number of DVDs were taken along with an Adidas watch.   The stolen DVDs and player were later recovered from the boot of Kelly’s car.  The watch was in the passenger glove box: DNA from Andrews was recovered from its surface. 
6.	By about 11.30 pm, the mobile phone evidence placed both Kelly and Andrews back in the area of the Tollbridge but there was a question mark as to when they had left the pub itself.  Shortly after midnight a couple stopped at traffic lights in the one way system in the centre of Nottingham, noticed a gold car with tinted windows pulled up to their right and driving without lights.  They did not wish to make eye contact but noticed there were two black occupants, of similar colour and age.  The passenger window was half open so they could see a bright blue light on the dashboard.  The car had four doors.   If this was the car involved in the shooting and the witnesses’ descriptions were accurate, it was argued by Mr Orlando Pownall QC (for Andrews) that the front passenger could not have been him because he was of mixed race and appeared white.  Kelly was black.
7.	We move forward to the incident.  At about 12.30 pm, the victim and her group of friends were returning from the annual Nottingham fair, known as the Goose Fair, along St Anne’s Valley Road.  Not surprisingly having regard to what happened, their descriptions of events were not entirely consistent.  A car described by some ten witnesses as gold in colour, by five as having blacked out or darkened windows, by a number as two door (although one described it as four door) approached or was seen to drive away.  Four described it as sporty.  Five spoke of the car as a Citroen and one said that it was a Xsara or Xantia and other identified it from Citroen models as a Xsara.  It was described by some within the group that included Danielle as pulling up with the driver’s side window down with an arm emerging. From the window a firearm was discharged; a shot or shots were seen or heard.  One witness described the colour of the arm that emerged as of mixed race with a glove; another also described the glove and said the arm was a person of mixed race with light skin.  One said the driver was white; another that the driver was black.   Suffice to say that Danielle was struck: it was just before 12.33 am for that is the time that the emergency services were called.  Tragically, one bullet (which showed signs of some damage and might have hit something before entering Danielle’s body) punctured the right iliac artery causing massive bleeding and her subsequent death. Two 9 mm shell casings were recovered from the pavement; these had been fired from the same gun.
8.	The group watching the car being driven away included a witness who saw a black hand emerge from the passenger window and make what is described as the Meadows sign for the Waterfront gang and is formed as a letter W.  One of this group said the car was X registered and had an exhaust with two side by side pipes.  Another also said that it was X registered with a 3 in the number.  He also saw a gloved hand make the W sign of the gang.
9.	We do not go further into the descriptions of the witnesses but turn to the description of Kelly’s car which was a three door Citroen Xsara registered number X935 UGW with what is described as a topaz gold metallic finish:  ownership was not in issue although it had been bought in a different name.  After its production it was altered and modified with twin exhausts.  Its radio emitted a blue light.      There were 153 such models in the UK but Kelly’s car was the only one to have twin exhausts and the jury heard evidence that the other 152 were traced and  excluded from being in or around the St. Anne’s areas of Nottingham on 8/9th October 2004.   It was not disputed that Kelly had bought the car from the previous owner giving another name or that his mother (who worked at a car dealership as a cleaner) had washed and fully cleaned the car on 8th October, taking it home at about 9 pm.
10.	The police recovered Kelly’s car on the Meadows estate later on 9th October.  Swabs were taken from the inside face of driver’s door and pocket, inside face of passenger door and pocket, dashboard fascia and glove box.   No gunshot residue was found.  Tapings were applied to the seats on 11th October.   The car was swabbed again on 4th February 2005; on this occasion, the seats revealed particles of gunshot residue; one was on the driver’s seat and three were on the passenger seat.  An analytical chemist was of the opinion that the findings provided strong evidence to associate the car with the source of gunshot residue although he accepted that the car had been subjected to tests in the interim by persons who had not worn protective clothing thereby giving rise to a possibility of contamination. Samples representing less than 4% of the total of the original seat tapings were then examined: gunshot residue particles were detected on every sample.  In relation to this evidence, however, it was conceded no control sample tapings were taken.    
11.	Finally, in relation to the car, the police examined 500 hours of CCTV footage and a former RAF imagery interpretation specialist was asked to examine a vehicle timed at 12.33 turning from Woodborough Road into Huntingdon Street, about a kilometre from the scene of the shooting: we return to the significance of Huntington Street later.  Suffice to say that he eliminated 10 possible candidates for the vehicle except a post 2000 model Xsara. Further, a reconstruction led to him concluding that there was powerful support for the proposition that target vehicle and the seized Xsara were the same make and model and limited support for it being the same car (having regard to the wheels, colour and possibility of twin exhausts). The possible route through Nottingham from St. Anne’s to Kelly’s home was plotted, and would have taken just over two minutes.
12.	In those circumstances, it is not unfair to assert that there was strong evidence to associate the car owned by Kelly with the shooting and strong evidence to link Andrews with the car or at least with handling the watch found in the glove compartment taken in the burglary at about 10 pm that evening.
13.	We turn to evidence about the handling of firearms. Collette McDonald had been in a relationship with Andrews and gave evidence that, during a journey to Leicester in about mid September, Andrews became aggressive saying that he wanted to go to St Anne’s to shoot up people; he was dissuaded by one of the other occupants of the car but pulled a silver gun from a Prada bag around his neck which he wiped and hid on a country lane whilst they went to Leicester.  She denied the suggestion that it was Andrew’s stash of drugs that had been hidden but accepted that she had previously denied to the police ever having seen him with a gun; she explained her new evidence on the basis that she had previously been in fear but had decided to speak having taken legal advice.  Her friend denied that she had been told about the journey but said that Collette had mentioned that her boyfriend had a ‘burner’ which she understood to be a gas canister.  The occupant of the car said to have persuaded Andrews to leave the gun behind (who was on parole from a 10 year sentence for drugs offences) was interviewed by the police; he did not mention any journey but denied having seen Andrews with a gun.
14.	There was a substantial body of evidence relating to the use of mobile telephones.  Andrews used handset 222 (which was recovered from the glove box of the Xsara) and another number, 076, the SIM card for which was recovered from Natalie Gee.     Kelly used handset ending 223 but its SIM card was missing.  In the month up to 3rd October there were four calls between Kelly and Andrews.   On the day of the shooting there were no calls between them prior to the shooting, but 13 afterwards although not all of them connected.  The Crown alleged this indicated an urgent need for them to be in touch with each other after the shooting.   In the month before the shooting Andrews had not called Kelly’s mother at all; between 9th and 11th October, he  attempted to call her number on some 19 occasions.   Andrews explained this evidence on the basis that he knew his phone was in the car and was trying to get it back.  The defence also relied on the records of phone use and cell site analysis to show that between 11.10 pm and 11.45 pm  the Kelly and Andrews phones were not together and that the pair had separated. At just after midnight the last call that either made or received was from a landline of Natalie Gee to Andrews which lasted 22 seconds.   There were no calls at all between 12.07 to 1.08 am. Suffice to say that both sides relied on telephone evidence, with Mr Pownall identifying other discrepancies between that and the case advanced by the Crown (particularly in relation to the evidence to which we shall come of Natalie Gee).     
15.	There were other strands of evidence which the Crown also relied upon as forming part of the circumstantial case that was presented.  A photograph of Andrews making a Waterfront gang sign was recovered from a memory card inside a camera bag found at Kelly’s home.  Another photograph recovered from the home of Natalie Gee showed him holding a self loading pistol (although it was admitted that inside the barrel of that weapon was a blockage preventing the discharge of missiles).  The mobile phone recovered from the Xsara without a SIM card had a video, recorded by Andrews, of himself in St. Anne’s walking around with a broomstick with commentary demonstrating his dislike of people from that area.  Additionally, he had made a rap tape which the Crown alleged revealed his true feelings for St. Anne’s people (said by the defence to be meaningless bragging).  Finally, there were a number of tattoos on his body either evident or on photographs (including “Ride or die” down his right arm, “NG2” on his neck, a smoking handgun, “Prento” and “WFG” on his right upper arm and “TRU” on his left lower arm which the Crown alleged was an acronym for The Real Untouchables but which he contended was intended to spell “TRUE” albeit that the “E” had been omitted).
16.	Before coming to the contentious evidence, we ought to add a word about what happened after the killing.  Kelly left the area and went, first, to Manchester and then to London.  When arrested in that city, and travelling back to Nottingham, he asked a question to the effect of what would be the position if a person was in a car and someone had something the person did not know he had got and did something the person did not know he was going to do.  When interviewed, however, he exercised his right of silence.
17.	Andrews also left Nottingham albeit on 16th October and was arrested two days later in Scotland having told the friend with whom he and Natalie Gee had stayed that he was on the run from the Mob.  He said he had been in the car two hours earlier and his phone (recovered from the car) must have fallen out of his pocket.  His friend gave evidence that when he asked how could one drive a car and fire a shotgun at the same time, Andrews replied that it was not a shotgun but a pistol.  When interviewed by the police, he provided a series of statements making it clear that he was in a nightclub at the time that the killing took place and only learnt of it on the news.  He provided explanations (some of which we have attempted to include in this short summary) for the other circumstances upon which the Crown relied.
Natalie Gee
18.	20 years of age at the time of the incident, Natalie Gee had been involved in a relationship with Andrews for some 4 years.  She was initially arrested in connection with assisting an offender.  When interviewed the day after her arrest in the presence of a solicitor (who was also acting for Andrews), she said nothing but made a statement disclaiming any knowledge save for what she had seen in the media or heard by way of gossip.  She was bailed and then changed solicitors returning for further interview after a month.  She confirmed her earlier account notwithstanding that pressure was brought to bear on her by the police; the judge later left to the jury for their consideration that this was an attempt to get her to expand upon the terse and relatively uninformative statements made on her behalf through her solicitor.
19.	After a further week, on 25th November, Natalie Gee returned to the police; she was told that she was not going to be charged and was free to leave.  According to the evidence accepted by the judge, she then asked to speak to her new solicitor in confidence after which the police were told that she wanted to assist.  She then made a short statement in relation to the events of 12th October, making a more detailed statement five days later which was signed the following day although she signed a further copy of that statement in January 2005 after it had been redacted (to protect others named in it).  She was provided with witness support but did not fully cooperate with the programme put in place.  On 22nd August, she signed a retraction statement for the defence, complaining that she had been put under pressure by the police and was on bail, accused of assisting an offender, with the impression that unless she co-operated she would be charged and remanded in custody.  When seen by the police on 4th September about the retraction statement, she said that she had been the subject of increasing threats by friends and associates of Andrews and Kelly (upon which she would not elaborate).  Although asserting that her statements were true, because of the threats, she would not attend court.  
20.	Although not all the other evidence which we have recounted above had necessarily been given at the time of the application to read her statements, it is important to put the material from Natalie Gee on which the Crown sought to rely in the context of the case as it was available for the Judge to consider, together with what happened when she came to court during the trial.  We take those in turn, dealing with each briefly.
21.	The statements can be summarised in this way.  Natalie Gee said that she loved Andrews but was frightened of him.  As long as she had known him, he had hated the St. Anne’s area of Nottingham;   it had become worse when someone from St. Anne’s injured, by shooting, a friend, “Master P” leaving him in a wheelchair.    Further, she had seen Andrews on a number of occasions with a gun, one was silver and the other rust brown;  he had them pushed down the front of his trousers.    She last saw him with a silver one in a Nottingham nightclub when he pointed at men if they approached her:  later that night when they were in a friend’s kitchen and had been arguing he pointed it at her and said he was going to put one in her, then laughed it off.      
22.	In relation to the events surrounding the killing, Natalie Gee said that she made repeated attempts to contact Andrews on 8th October and into the early hours of the following morning:   he came home at about 6 a.m.  He did not talk but eventually told her he had been to the Bomb nightclub.   Later that evening he said his name was flying around the streets as responsible for the murder but said that he was not even there.  There was an increasing atmosphere of fear.  On 10th October, she learned that Kelly’s mother had been arrested; Andrews then tried to get in touch with Kelly and left messages.  On 11th October she and Andrews went to a solicitor:  at this time, Andrews denied he was present at the scene of the murder but said he had left his phone in the car.  He was instructed to lie low.    
23.	When she later questioned Andrews, he admitted that he was with Yardie Mark (Kelly) committing a burglary but said that he was dropped off later at the public house;  this was when he left the phone.  She said that this comment made her believe that he was lying because she had rung him later than that.  She pressed him and he said “I told them I seen her drop”.    He then admitted that he had been the front seat passenger of Kelly’s mother’s car, accusing Kelly of being the driver and the one who pulled the trigger.   He stuck his hand out of the window and let off.  He got out of the car nearby on Huntington Street and then made his way to the nightclub.  Gee described how it made her feel, but they went to Scotland together.  While there, Andrews had swapped the SIM cards in the mobile telephone handset and given them to her.  
24.	Turning to the trial, when she was called to give evidence (following the issue of a witness summons with a warrant to arrest if she was unwilling to attend court voluntarily), Natalie Gee answered the summons and attended court but refused to give evidence.  We can best summarise what transpired thereafter in the words of Butterfield J when dealing with the application to read her statements:
“On arriving at Birmingham Police Station, she said: ‘I have been threatened.  They know where I live.  I knew this moment would come.  I am not going to say a word’.  She was very upset and crying and appeared frightened.  
Later that morning, the officers were directed to bring her to the Birmingham Crown Court.  On entering the witness waiting room she began to sob uncontrollably, but otherwise remained silent.  She was brought into court and sat in the witness box.  She was screened from the defendants and the public gallery was cleared.  I asked her whether she was prepared to give evidence, and if not, why what was.  To all my questions, she remained mute, and declined the offer to write down her response to my questions.  I then adjourned, in the hope that the very experienced representative of the Witness Support Service with her might persuade her to cooperate, at least to a limited extent.  
In the course of the adjournment, Natalie spoke to the representative who wrote down what she said.  The representative wrote: ‘I have previously been threatened, and I have always doubts about giving evidence.  Yes, I am scared, but I am on medication for depression at the moment, and that is making it worse.  I don’t want to speak to anybody.  I am in fear of my life’.  On returning to court, I asked Natalie whether she had indeed told the representative what had been recorded.  She nodded her head.  I further asked her whether what she had said to the representative was true.  Again, she nodded her head.  However, she continued to remain mute, and was sobbing and apparently in great distress.  It is quite apparent that she would not give evidence at all had she been called as a witness.  It is not suggested by anybody that she would.”
The Application 
25.	It was in those circumstances that the Crown made application under s. 116 Criminal Justice Act 2003, the relevant provisions of which are as follows:
“(1) In criminal proceedings a statement not made in oral evidence in the proceedings is admissible as evidence of any matter stated if – 
(a) oral evidence given in the proceedings by the person who made the statement would be admissible as evidence of that matter, 
(b) the person who made the statement (the relevant person) is identified to the court’s satisfaction, and (c) any of the five conditions mentioned in subsection (2) is satisfied.  
(2) The conditions are – 
... (e) that through fear the relevant person does not give ... oral evidence in the proceedings, and the court gives leave for the statement to be given in evidence [fear being widely construed]. ... 
(4) Leave may be given under subsection 2(e) only if the court considers that the statement ought to be admitted in the interests of justice, having regard – 
(a) to the statement’s contents, 
(b) to any risk that its admission or exclusion will result in unfairness to any party to the proceedings (and in particular to how difficult it will be to challenge the statement if the relevant person does not give oral evidence), and ... 
(d) to any other relevant circumstances”.
26.	Both before the judge and in this court, the law was not contentious; it was taken, essentially, from R. v. Sellick and Sellick [2005] EWCA Crim 651 which analysed the predecessor provisions of ss 23 and 26 of the Criminal Justice Act 1988 (which it is not considered are materially different from those set out above) and did so particularly in the context of the right to a fair trial under Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) and the jurisprudence of the European Court.  
27.	From that analysis, giving the judgment of the Court, Waller LJ derived the following propositions (at paragraph 50): 
“i) The admissibility of evidence is primarily for the national law;
ii) Evidence must normally be produced at a public hearing and as a general rule Article 6(1) and (3)(d) require a defendant to be given a proper and adequate opportunity to challenge and question witnesses;
iii) It is not necessarily incompatible with Article 6(1) and (3)(d) for depositions to be read and that can be so even if there has been no opportunity to question the witness at any stage of the proceedings.  Article 6(3)(d) is simply an illustration of matters to be taken into account in considering whether a fair trial has been held.  The reasons for the court holding it necessary that statements should be read and the procedures to counterbalance any handicap to the defence will all be relevant to the issue, whether, where statements have been read, the trial was fair.
iv) The quality of the evidence and its inherent reliability, plus the degree of caution exercised in relation to reliance on it, will also be relevant to the question whether the trial was fair.”
28.	Waller LJ then went on to analyse the proposition that where the evidence was the sole or decisive evidence, the court should not allow it to be read where a defendant had previously had no opportunity to question the witness.  He concluded (paragraph 52) that if the court was sure that the witness had been kept away by a defendant or by persons acting for him, subject to appropriate direction to the jury, such a defendant could have no complaint of an infringement of Article 6(3)(d).  As to the situation where the court believes, to a high degree of probability, that the witnesses are being intimidated for and on behalf of the defence, he observed (at paragraph 53):
“In our view, having regard to the rights of victims, their families, the safety of the public in general, it still cannot be right for there to be some absolute rule that, where compelling evidence is the sole or decisive evidence, an admission in evidence of a statement must then automatically lead to a defendant's Article 6 rights being infringed.  That would lead to a situation in which the more successful the intimidation of the witnesses, the stronger the argument becomes that the statements cannot be read.  If the decisive witnesses can be "got at" the case must collapse.  The more subtle and less easily established intimidation provides defendants with the opportunity of excluding the most material evidence against them.   Such an absolute rule cannot have been intended by the European Court in Strasbourg.”
29.	Waller LJ then cited with approval the observations of Lord Taylor CJ in R v Dragic [1996] 2 Cr App Rep 232 at 237 repeated by Potter LJ (as he then was) in R. v. M (KJ)  [2003] EWCA Crim 357 [2003] Cr. App. Rep 21 at paragraph 40 that what mattered was the content of the statement and the circumstances of the particular case bearing in mind the considerations which the section required the judge to have in mind.  
30.	Finally, subject to one caveat, Waller LJ also adopted my observations in R. v. Arnold [2004] EWCA Crim 1293 (at paragraph 30):
“The reference in Luca to the not infrequent occurrence of the phenomenon of frightened witnesses being unwilling to give evidence in trials concerning Mafia-type organisations is echoed across a wider range of serious crime in this country. Counsel both confirmed that this problem was becoming commonplace and the experience of the members of this Court concerned with the conduct of criminal trials is likewise.  Inevitably, applications under section 23 will follow but this judgment should not be read as a licence for prosecutors.  Very great care must be taken in each and every case to ensure that attention is paid to the letter and spirit of the Convention and judges should not easily be persuaded that it is in the interests of justice to permit evidence to be read.  Where that witness provides the sole or determinative evidence against the accused, permitting it to be read may well, depending on the circumstances, jeopardise infringing the defendant's Article 6(3)(d) rights; even if it is not the only evidence, care must be taken to ensure that the ultimate aim of each and every trial, namely, a fair hearing, is achieved.”  
31.	The caveat was that this observation did not take full account of the case in which the defendant is shown to have kept a witness away by fear (in which event “there should in reality be no question of his Article 6(3)(d) rights having been infringed”).  We endorse that caveat which, in any event, forms part of the circumstances which must be taken into account.  Those circumstances also include the detail of the statement, its coherence, the process by which it came into being and the extent to which it is supported by what eye witnesses described:  see the observations of Calvert-Smith J in R. v. Campbell [2005] EWCA Crim 2078 at paragraphs 20, 21.
32.	We repeat that the law was not contentious before Butterfield J and it is not irrelevant to note that he had also been the trial judge in both Sellick and Campbell which had both been murder trials conducted in the Crown Court at Birmingham in which the victims had been fatally shot. His knowledge of all the ramifications of the judgment that he had to make and the discretion that he had to exercise, therefore, was undeniable.
The Challenge
33.	Before the judge and in this Court, Mr Pownall mounted a twin challenge to the admissibility of Natalie Gee’s statements.  First, he argued that there was no sufficient evidence to justify the conclusion that she was in fear.  She was a woman (described by a witness as feisty) with a conviction for supplying Andrews with drugs while he was in custody and had written letters to him in custody which not only demonstrated no fear of him referring to her fears of those from St Anne’s who might blame her for Danielle Beccan’s death.  Further, there was no suggestion that Andrews had sought to interfere with witnesses and her conduct in returning to Nottingham while under protection undermined her claims to fear; there was no evidence of intimidation in the police contact notes and her first complaint of threats by Andrews’ associates was on 4th September 2005.  When she said to the Witness Service that she was frightened for her life, she did not attribute that to Andrews or his associates and refused to answer questions from prosecution or judge.
34.	The Crown pointed to her conversations with officers responsible for her security, her demeanour both to officers unconnected with the enquiry and in court, her statements that she was “absolutely terrified” (25th November 2004) and “frightened” (23rd January 2005) of Andrews (notwithstanding her love for him) together with her complaints of having been assaulted and threatened with a gun and her statement of 4th September as evidence of her fear.  In this last statement, it was recorded that she said that “people connected to Andrews and Kelly had threatened her and these threats had got worse over the last few weeks” and that these were the reason she would not attend court. There was also material that she had been frightened by a prison letter containing a photograph of two men one with a gun and one with a balaclava; she destroyed the letter and would not show the police the photograph.
35.	There was also the evidence of what transpired before Butterfield J, recounted in the judgment to which we have referred.  The judge recounted Mr Pownall’s submission that her fears of Andrews were contrived but concluded:
“I give full weight to those submissions and others addressed to me on this issue. I am, however, quite satisfied that Natalie Gee does not give evidence through fear…..  Natalie, effectively informing on her former boyfriend, has every reason to be fearful of him and his associates.  Whether he has himself caused threats to be issued to her, or whether others have done so on his behalf without his knowledge, I cannot determine.  I do, however, well understand why, if true, Natalie Gee would not wish to tell the police the identity and nature of the threats she has received.  The police would inevitably investigate those matters and, if possible, arrest those making the threats.  That simply make Natalie Gee’s position even worse.  Having considered all the material available to me, and having regard to her response and demeanour in the witness box, I have no doubt whatsoever that she is in genuine fear of her own life.”
36.	Mr Pownall accepted that he had to establish that the learned Judge was obviously wrong or perverse and unreasonable in his assessment:  see per Tuckey LJ in R. v. Doherty [2006] EWCA Crim 2716 at paragraph 28 citing CPS v. CE [2006] EWCA Crim 1410.  He did not baulk from that submission before us but argued that any fear that Natalie Gee had was limited to the fear of exposure in court of her lies.  He said that it would be a sorry day if, in a case that where there was little or no other evidence, all a witness had to do to avoid cross examination was to use the pretence of fear.
37.	We will come to consider the extent of the evidence below but whereas we agree that it would be entirely unsatisfactory and improper if this provision allowed witnesses who pretended fear to avoid exposure in court, we simply do not accept that the Judge’s refusal to accept that characterisation can even start to be criticised as obviously wrong or perverse and unreasonable.  Not only did the judge have the statements and the contact sheets detailing Natalie Gee’s dealings with the police (which he was in a position to make up his own mind about, hearing such evidence as the parties put before him) but he saw her demeanour and heard witnesses wholly independent of the police (along with officers not connected with the enquiry) who described what they had seen as she came to court and dealt with the issues that were raised.
38.	We accept, of course, that Natalie Gee had been inconsistent over the months that elapsed between her statements and the trial but we do not accept that it necessarily follows that this inconsistency undermines the conclusion as to fear.  She spoke in her statement of her continued love for Andrews and we do not find it surprising that her willingness to assist the police could fluctuate as different emotions played out in her mind and as a result of things said to her.  All this was before the Judge and he was charged with making his mind up about her and the reasons for her behaviour.  He did so in an informed and careful manner and his conclusion was certainly open to him based upon his view of the witness “warts and all” and taking into account all that Mr Pownall most persuasively argued.  This challenge fails.
39.	The second submission concerns the approach to the interests of justice as described in section 116(4) of the 2003 Act.  Mr Pownall argued that Natalie Gee’s account did not contain a wealth of compelling detail or coherence nor could it be described as wholly credible. We do no more than briefly to summarise the main points that he took.  First, her evidence as to the advice that she had been given by the solicitor who acted for her on 19th October was directly contradicted by that solicitor (the learned Judge accepting for the purpose of his ruling that she may have lied on that issue).  We have been taken through the detail of that contact and readily understand the grounds upon which the Judge proceeded on the basis that he did.
40.	Secondly, a note made by her second solicitor was to the effect that Andrews had returned home after the shooting and “had gun”; further, he then told Natalie Gee that he had been “in the car when shot”.  The inference from this note was that this information was imparted on 9th October, rather than 12th (as her statement later recounted), yet there was no waiver of privilege allowing for a proper investigation of this inconsistency.  In addition, a third solicitor had observed that Natalie Gee had said that part of her statement to the police was true and part untrue; it was impossible to unpick upon which parts she relied as truthful.
41.	That was not all.  In various respects, the telephone evidence was inconsistent with her statement as to the attempts that she had made to speak to Andrews on 9th October, as to where she was in the late afternoon and early evening of that day and as to telephone contacts on 12th October, the all important date upon which it is said that Andrews admitted his involvement.  Mr Pownall also relied on letters which she had written to Andrews critical of his promiscuity but never accusing him of murder; rather, she expressed the hope that he would be acquitted.  This last argument is not inconsistent with the ambivalent attitude to him (continued love and fear) to which we have already referred.
42.	Having identified that he proceeded on the premise that Natalie Gee may have lied in relation to her dealings with her first solicitor, the Judge went on to identify those features of her statements that he considered provided a contrary picture to that painted by Mr Pownall.  He said:
“Of much more importance, in my view, is the content of the statements themselves.  The second statement in particular contains a wealth of detail in marked contrast to the terse account Natalie Gee originally gave to the police when under arrest.  That detail is either true or an invention or inaccurate.  In this regard, I have some assistance from the telephone schedules, which demonstrate that there is a clear inconsistency between some of the timings that Natalie Gee gave in her long statement and the telephone calls actually made.  I also gained some assistance from the letters written by Miss Gee.  Without intending to belittle her literary skills, she is not the most coherent of correspondents.  That the author of those letters could invent a detailed and complex account such as that which she gives is not a proposition which I find easy to accept.”
43.	The learned Judge then went on to refer to support for the account she gives in her witness statements in other and independent evidence.  That included the covert material which he had ruled could be adduced in which Kelly himself admitted to having been the driver (consistent with what she had recorded Andrews had told her); the presence in the glove compartment of the Citroen Xsara of the stolen watch, linked by DNA evidence to Andrews; and the description of the car, the burglary (save as to precise location) and the shooting that she said that Andrews provided consistent with the eye witness and other evidence.  He also referred to one other feature of the evidence:
“Miss Gee mentions Huntington Street, and says that Junior Andrews told her he got out of the car on that street.  CCTV evidence shows  what the jury may well conclude was a gold Xsara turning into Huntington Street moments after the shooting.  Miss Gee could not possibly have known of the existence of those CCTV images, because they were not produced until after she made her statement to the police.”
44.	Butterfield J accepted that there was “no smoking gun which nails the suggestion that the statement is an invention” but in the light of its contents and the support for it, came to the firm conclusion that it was capable of belief.  The defence had available material to challenge it, exposing the contradictions, but that taking all the arguments into account, and in the light of his conclusion, he said that there was a significant risk that exclusion would result in unfairness to the prosecution and “it would be easier than in many cases for the defence to challenge the statements in the absence of Natalie Gee from the witness box”.
45.	Once again, Mr Pownall took us through a meticulous analysis of the points that he had made in the Crown Court and argued that the reasoning of the learned Judge was irrational.  True it was that the second statement contained a wealth of detail but the lion’s share of that detail, of what was being said, was not in issue and even then it was not correct in all regards.  He submitted that there was no evidential basis for the proposition that she would have had difficulty inventing a detailed and complex account.  The basis, in fact, is the Judge’s view of Natalie Gee based on all that she had said and done, on the one hand, and what she had written in letters to Andrews, on the other.
46.	As for the importance of this evidence, Mr Pownall argued that without it, there was, in reality, no case for Andrews to address.  There was the video of his behaviour in St Anne’s, the rapping tapes (for what, if anything, they were worth), his mobile telephone left in the Xsara and the DNA on the watch (which proved no more than his involvement with the car earlier that evening).  As he put it, there was Huntington Street and no more. 
47.	Mr Peter Joyce Q.C. for the Crown submitted that there were many aspects of her account that were supported by independent evidence or by the admissions that had been made including details covering the identity and route of the car along with Andrews’ involvement in the burglary the last two of which were provided before any evidence existed as to their accuracy.  The fact that they were not now in issue was beside the point: the question was whether Andrews had confided in her about his activity that evening.  He recognised that there were inconsistencies in the description of telephone calls and the telephone log but he also pointed to consistencies.  
48.	Mr Joyce also provided a detailed review of aspects of Natalie Gee’s evidence, compared with the eye witness evidence, the telephone logs, Andrews’ admitted activities, the finding of a bullet on the hall floor (which he had mentioned to the police and to Thomas Wyness now claiming that it was a lie instigated by Natalie Gee), the evidence of Collette McDonald (relating to Andrews’ possession of a gun on the trip to Leicester, hidden en route and his expressed wish to “shoot up” those who lived in St Anne’s), the photograph of Andrews with a gun and other details.  Thomas Wyness also corroborated Natalie Gee’s evidence that Andrews had given her two SIM cards and gave evidence consistent with her account that Andrews had admitted that Kelly, who had been arrested, was the right person.  Again, it is not necessary to burden this judgment with the full detail of those features of the case upon which the Crown relied.
49.	Mr Joyce also pointed to the material available to Mr Pownall to challenge the reliability of Natalie Gee, utilised by Mr Pownall to demonstrate her unreliability and, thus, the extent to which it was inappropriate to allow her evidence to be read.  He argues that the decision fell to Butterfield J, in the light of all the material that had been deployed before him and which he accurately analysed in a judgment that by no stretch of legitimate argument could be described as obviously wrong, perverse or unreasonable.
50.	Finally, Mr Joyce emphatically rejected the submission that there was no case to answer outside Natalie Gee’s evidence.  He was with Mark Kelly who was linked to the Xsara motor car involved in the shooting (both by description and the presence of firearms residue), was a member of the Waterfront gang, wore a black glove on his left hand (only a left glove being recovered after he was arrested), hated those from St Anne’s and was of mixed race thereby fitting the description provided by some (albeit not all) of the witnesses.  He could be linked to the car after 11.45 pm on 8th October and Kelly called Andrews on three occasions between 1.08 am and 2.18 am on 9th October demonstrating that he did not know that the phone had been left in his car.  Cell site analysis was consistent with them being apart at 1.08 am but this was 35 minutes after the 999 call; this was entirely consistent with Andrews having left the car in Huntington Street.
51.	Further, the video on the mobile telephone was recorded on 1st October along a route at the bottom of the road where Danielle Beccan was shot; in it, Andrews described himself as “Waterfront’s most wanted … I haven’t even got no gun … I’m a real killer”:  Collette McDonald was shown it on 7th October.  The rap tape was rather earlier (recorded after 7th April 2004) but included comments such as “When we shoot to kill we shoot the vill’ for real”, and “…how many niggers are going to get popped before you realise it’s ride or die. That means I’m a ride you’re going to die”.
52.	Butterfield J did not address the issue whether there was a case to answer absent the evidence of Natalie Gee and it is not necessary for us to determine that issue.  It is sufficient for us to indicate that there was a not insubstantial circumstantial case.  Without seeking to be exhaustive, there was evidence linking Andrews with Kelly and the Xsara motor car (itself linked to the shooting) both in committing crime earlier in the evening, within an hour of the killing and, by attempts to telephone, thereafter; there was evidence of motive and other material together with the evidence of Wyness and McDonald; there was some evidence of consistency of description.  True it is that there were circumstances which could point to a contradictory conclusion: these fell to be evaluated by the jury in the normal way.  Suffice to say, although Natalie Gee (if accepted) provided direct evidence of an admission, we do not accept that it could be said that she provided the sole or determinative evidence of the type described in Arnold (supra). 
53.	Was the decision to allow Natalie Gee’s evidence to be read reasonably open to Butterfield J?  We have no doubt that it was.  He reached this decision not at the beginning of the trial but with a full appreciation of the cases that were being mounted by both Mr Joyce and Mr Pownall. He demonstrated in his detailed reasons, delivered towards the end of the trial, a full understanding of the jurisprudence and we reject the submission that his conclusion was obviously wrong, perverse or unreasonable.  He was in by far and away the best position to balance the competing arguments and the extent to which admitting the evidence was unfair to Andrews.  This ground of appeal fails.  The argument advanced by Mr Spencer QC on behalf of Kelly, based on the assumption that Mr Pownall’s submissions were accepted as to impact of Natalie Gee’s evidence upon his case, is similarly rejected: the premise on which it is based is unfounded.
54.	Somewhat tentatively, Mr Pownall advanced a further argument based upon the inadequacy of Butterfield J’s analysis of the inconsistencies of Natalie Gee’s evidence in his summing up.  He argued that it was incumbent on the judge to remind the jury of the detailed criticisms although he readily accepted that he had analysed them exhaustively in his own final speech and that the summing up need not be a repetition of the defence closing speech.  The judge had told the jury how to approach her evidence before it was read and he reminded them of that direction in his summing up; he spoke of the disadvantage to the defence.  In relation to the mobile telephone evidence, he spoke of Mr Pownall’s “very full and very careful analysis … taking you through line by line the schedule at the relevant period” and later, when requested by Mr Pownall, of the fact of “many … inconsistencies” which they should take into account.
55.	We readily accept that it was incumbent on the judge to remind the jury of the issues in the case and to do so in a balanced manner.  That is not, of course, the same as repeating every argument that either or both sides did deploy or could have deployed.  By all accounts, the jury had listened attentively not only to all the evidence but also to lengthy and detailed submissions by counsel; it is inconceivable that they did not well understand the way in which they should approach their responsibilities or the caution that they had to exercise in relation to Natalie Gee’s evidence.  Without any disrespect to Mr Pownall, there is simply no basis for arguing that the absence from the summing up of the additional detail that he had deployed in argument even starts to render these verdicts unsafe.
The Covert Recording
56.	Although Mr Spencer Q.C. allied himself to Mr Pownall’s submissions in relation to Natalie Gee, the principal ground of Kelly’s appeal against conviction concerned Butterfield J’s ruling that covert recordings made of his phone conversations whilst on remand in prison and of his prison visits were admissible in evidence.
57.	The background to this ground of appeal is as follows. On various dates between 22nd October 2004 and 20th July 2005, the Nottinghamshire Police made written requests to the Prison Service for authorisation pursuant to sections 27 and 28 of the Regulation of Investigatory Powers Act 2000, to intercept telephone calls and correspondence and record prison visits. In the case of each such request for authorisation the police stated that the justification for the authorisation and the reason why the surveillance for which authorisation was sought was necessary and proportionate (being the pre-conditions to the grant of authorisation set out in section 28(2) of the Act) was that the police had not been able to identify other suspects known to be involved or to recover the murder weapon.  
58.	In the case of the first request dated 22 October 2004, the police superintendent who signed the request stated: “I confirm that the above information is required for intelligence purposes only and will not be used for any evidential purposes without prior consultation with the Prison Governor”.  In all the subsequent requests, the relevant superintendent stated merely that any information obtained will be used for intelligence purposes only.
59.	The authorisations were granted and covert surveillance of visits and interception of telephone calls took place. In due course the police obtained information which the Crown wished to use in evidence at the trial of Kelly. That such information can in principle be used in evidence is clear from the Code of Practice on Covert Surveillance issued by the Home Office pursuant to the mandatory terms of section 71 of the Act which provides that “The Secretary of State shall issue one or more codes of practice relating to the exercise and performance of the powers and duties” imposed under inter alia Part II of the Act (in which sections 27 and 28 appear). 
60.	Paragraph 1.8 of that Code of Practice provides as follows:
“Use of material in evidence
Material obtained through covert surveillance may be used as evidence in criminal proceedings. The proper authorisation of surveillance should ensure the admissibility of such evidence under the common law, section 78 of the Police and Criminal Evidence Act 1984 and the Human Rights Act 1998. Furthermore the product of the surveillance described in this code is subject to the ordinary rules for retention and disclosure of material under the Criminal Procedure and Investigations Act 1996, where those rules apply to the law enforcement body in question.”  
61.	Notwithstanding the clear words of the Code of Practice, the police did not in fact seek to use the material gathered in the covert surveillance as evidence until they had obtained express permission to do so from the prison governor and the Home Office. This was done pursuant to an informal agreement between the Association of Chief Police Officers and the Prison Service and to a Home Office directive requiring such permission to be obtained.
62.	At the trial, Mr Spencer made an application pursuant to section 78 of the Police and Criminal Evidence Act 1984 to exclude the evidence obtained by means of the telephone intercepts and covert surveillance. He submitted that the authorisations obtained pursuant to the 2000 Act had been neither requested nor granted on the basis that the material obtained would be used in evidence against Kelly. Although the intention at the outset may have been to identify other suspects and locate the murder weapon, Mr Spencer submitted that there must have come a time when that intention shifted to one of amassing evidence against Kelly and that further or changed intention should have been reflected in the applications for authorisation. The approach of those responsible for dealing with the applications was said to have ridden roughshod over the framework of the 2000 Act, calling into question the fairness of admitting the evidence within the meaning of section 78 of the Police and Criminal Evidence Act 1984.
63.	The learned trial judge rejected those submissions. He considered the applications for authorisation and found that the requirements of necessity and proportionality laid down by section 28(2) of the 2000 Act had been considered by the appropriate authority on each occasion so that the surveillance was not unlawful. He considered that it was nothing to the point that the materials now sought to be relied upon by the Crown did not fall within the intelligence which it was hoped to obtain, in circumstances where the materials had been lawfully obtained.
64.	The judge concluded that in principle the materials were admissible in evidence on the basis of paragraph 1.8 of the Code of Practice  and on the grounds that, as he found having considered the relevant correspondence, permission to use the materials in evidence had been granted by the prison governor and the Home Office. He went on to reject the various other detailed objections to admissibility raised by Mr Spencer and ruled the covert material admissible in evidence.
65.	Before this Court, Mr Spencer sought to challenge that ruling on essentially the same basis as the objections to admissibility he had advanced before the learned judge. He referred the Court to the transcript of a telephone call between Kelly and his mother on Christmas Day 2004 which was intercepted pursuant to the covert surveillance in which Kelly said “they haven’t even got the other two people that was in the car with me”. Mr Spencer submitted that from the moment that call was analysed by the investigating officers, they must have known that they were going to use the covert materials in evidence against Kelly and yet they continued to seek the authorisations on the narrow basis that what was being sought was the identity of the other suspects and the location of the murder weapon. 
66.	We reject that submission. Even if there were any force in the suggestion that, from that relatively early stage of the covert surveillance, the police intended to use the materials obtained in evidence (as to which there is no evidence and the fact that permission to use the materials in evidence was not sought from the prison governor until 18 April 2005 would suggest the contrary) we do not consider that it was incumbent on the police to spell this out in the subsequent requests for authorisation. 
67.	It must have been clear to the prison authorities that should any material evidence emerge from the covert surveillance, it might well be deployed in evidence at any forthcoming trial.  Furthermore, such use was expressly contemplated and permitted by paragraph 1.8 of the Code of Practice issued by the Home Office as required by section 71 of the Regulation of Investigatory Powers Act 2000. 
68.	We also consider that there is nothing in the submission advanced by Mr Spencer that, if the police had stated in terms in the requests for authorisation that they intended to use the materials obtained in evidence, the authorisations might have been withheld. The second sentence of Paragraph 1.8 of the Code of Practice requires that the proper authorisation of surveillance should ensure the admissibility of material obtained as evidence, subject to the safeguards such as section 78 of the Police and Criminal Evidence Act 1984. We do not see how in the light of that Code of Practice the prison authorities could have refused authorisation if the police had stated in their requests that materials obtained might be used in evidence against Kelly.
69.	In the circumstances we consider that the submission that the statutory regime under the 2000 Act was somehow disregarded in this case must be rejected. There is no basis for challenging the judge’s finding that the surveillance was lawful.
70.	Equally there is nothing in the submission that the fact that the police had not spelt out in the requests for authorisation that the materials might be used in evidence against Kelly made the admission of that evidence unfair under section 78 of the Police and Criminal Evidence Act 1984. There can be no inherent unfairness in seeking to use materials obtained through covert surveillance in evidence, when such use is not only contemplated but required to be protected by paragraph 1.8 of the Code of Practice issued pursuant to the 2000 Act. Something more than mere intention to use any covert material in evidence must be demonstrated before it can begin to be said that its admission would be unfair within the meaning of section 78.
71.	Before the judge a number of matters were put forward as demonstrating why the admission of the covert material would be unfair, such as the quality of the recordings. The judge, who listened to the recordings through headphones before making his rulings, rightly rejected that and the other objections raised by Mr Spencer: these were not pursued in the appeal hearing before this Court. 
72.	For these reasons both appeals against conviction must be dismissed.
Sentence
73.	These appeals concern the period of 32 years fixed, within the mandatory sentence of life imprisonment, as the minimum term that must be served for punishment and deterrence.  It is, however, common ground that the starting point is 30 years (being murder involving the use of a firearm: see paragraphs 5(1) and 5(2)(b) of Schedule 21 to the Criminal Justice Act 2003).  The issue is the allowance for aggravating and mitigating features of the type set out (but not exhaustively) in paragraphs 10 and 11 of the Schedule.
74.	When passing sentence and fixing the minimum term at 32 years, Butterfield J said:
“Your pathological and irrational hatred for everyone from St Anne’s was so intense that you did indeed want to kill …
In my judgment, the seriousness of this offence is particularly high.  It was a random killing, involving the use of a firearm.  The appropriate starting point is 30 years.  I must go on to take into account any aggravating or mitigating factors.  In my judgment, the aggravating factors in this case are that there was a significant degree of premeditation and your victim was, in my judgment, particularly vulnerable because of her age.  I can find no mitigating factors.  I see no reason to distinguish between you.  This was a joint offence.  You are both equally responsible.  However, I do take the view that to some extent the aggravating factors are subsumed into the starting point of 30 years, but not totally.”
75.	Mr Pownall submitted that it was legitimate to argue that there were two mitigating features.  First, there was no real evidence of premeditation (see paragraph 11(b) of the Schedule) and that, on the basis that Danielle was not representative of those whom Andrews professed to hate, it was also proper to conclude that he had not intended to kill (paragraph 11(a) ibid). He also pointed to Andrews’ age at the time (23 years 8 months) as sufficiently young to permit some allowance in his favour.  He conceded, however, that the untargeted and random nature of this killing (clearly designed to cause terror within the area of St Anne’s among all those who might be on the street) substantially aggravated the offence.
76.	We reject these submissions.  First, based on all the evidence, it was open to the judge (if not an inevitable conclusion), to find that Andrews’ actions were premeditated and that he did, in truth, want to kill someone in the St Anne’s area: it mattered not who.  As to Andrews’ age, he does not fall in the upper bracket to which Sir Igor Judge P made reference in Peters [2005] EWCA Crim 605 (“21 or even 22”) and his previous conviction (at the age of 19) for robbery, which led to a term of 4 years detention in a young offenders institution, demonstrates that it would not be appropriate to make allowance for lack of maturity on the basis of age.  His appeal against sentence is dismissed.
77.	In relation to Kelly, Mr Spencer argued that there was no evidence of premeditation: no video, no rap and no evidence of hatred.  He submitted that his role as a driver could have been recruited at short notice.  So it could, but it has to be borne in mind that there was no evidence to that effect and, as we have said before, Butterfield J was in the best position to determine comparative responsibility and participation.  He also went on to submit that Danielle’s death was not as a consequence of any vulnerability because of age but rather as a result of being in the wrong place at the wrong time: this last point only serves to underline the randomness of this killing as a very seriously aggravating feature.
78.	Finally, Mr Spencer argues that even if the learned Judge was not prepared to distinguish between the two in terms of culpability, he should have done so based on age and experience.  At the time of the killing, Kelly was 20 years 9 months and although he had amassed a number of convictions (including three for assault and three for possession of an offensive or bladed weapon) he had never previously lost his liberty.  The argument goes on that, had he been 3 years younger, the starting point would have been 12 years.  Admittedly, he was not that young, but some allowance should have been made.
79.	In Peters (supra), Sir Igor Judge said at paragraph 11:
“It has long been understood that considerations of age and maturity are usually relevant to the culpability of an offender and the seriousness of the offence. Schedule 21 underlines this principle. Although the passage of an eighteenth or twenty-first birthday represents a significant moment in the life of each individual, it does not necessarily tell us very much about the individual's true level of maturity, insight and understanding. These levels are not postponed until nor suddenly accelerated by an eighteenth or twenty-first birthday. Therefore although the normal starting point is governed by the defendant's age, when assessing his culpability, the sentencing judge should reflect on and make allowances, as appropriate upwards or downwards, for the level of the offender's maturity.”
80.	  We accept that Butterfield J had the opportunity to see Kelly and reach a judgment about him (although he did not give evidence) and we interfere with that judgment only reluctantly.  Nevertheless, we accept that even if the responsibility of each was the same, there was a difference between Andrews and Kelly in relation to their age and gravity of prior offending and that Kelly did deserve some consideration on the grounds that he was that much nearer the age when the starting point prescribed by statute jumped from 12 years to 30 years.  In the circumstances, we are prepared to make an allowance to reflect this feature of the case and, in consequence, to reduce the minimum term in his case from 32 years to 29 years.  To that extent his appeal against sentence is allowed.