R v Christopher Kyei & Anor

By this application, the applicants apply for leave to appeal against their convictions following trial at the Central Criminal Court before His Honour Judge Katz KC and a jury on 19 January 2024. The application has been referred to the full court by the single judge, limited to a single proposed ground of appeal which relates to an allegation of jury irregularity. The single judge refused leave to appeal in respect of a second proposed ground of appeal which related to the alleged wrongful admission of messages posted on WhatsApp. The applicants also applied for leave to introduce fresh evidence relating to a juror's conduct, pursuant to section 23 of the Criminal Appeal Act 1968.

At trial, the second applicant, Courtney Ellis, was convicted of the murder of Michael Small on 5 July 2019, and of the attempted murder of Serge Mukendi on the same date. Both applicants were convicted of doing an act tending or intended to pervert the course of justice.

The circumstances were that at approximately 8 pm on 5 July 2019, the deceased, Michael Small, was shot in the face, at close range, whilst he was outside takeaway premises on Harrow Road, North London, close to his home address. The masked gunman fled on foot to a Mini Cooper motor vehicle which was waiting for him, and which was being driven on false number plates. The driver of the Mini Cooper was alleged to be the applicant Ellis who was convicted of Mr Small's murder as an accomplice.

Shortly after, at approximately 8.17 pm, on Bridge Lane, Wembley Park, Serge Mukendi was in his motor vehicle. The same Mini Cooper parked around the corner. The gunman exited and ran to Mukendi's vehicle where he pulled the trigger of a gun which did not fire. Closed Circuit Television footage caught the gunman exiting the Mini Cooper, running to and from the complainant's vehicle and back to the Mini Cooper which drove off. This was the count of attempted murder and again, as the driver of the car, Ellis was charged as an accomplice.

The background to the murder and the attempted murder was long-standing gang rivalry. Directly after the offences, the Mini Cooper was dumped. Closed Circuit Television captured two men walking away from the vehicle, one of whom was carrying number plates, and getting into a black Volvo. Both vehicles were traced on Automatic Number Plate Recognition cameras, having journeyed to the site where the Mini Cooper was deposited.

On the evening of the following day, 6 July, the Mini Cooper was collected on a tow truck from where it had been deposited and taken to a salvage yard to be scrapped. On 17 July, police attended that yard. The Mini Cooper had been broken up for scrap and parts. The police recovered ten items which still remained at the yard. DNA from the applicant Kyei was found on the headrest of one of the back seats which had been removed and stored.

Both Ellis and Kyei were convicted of perverting the course of justice in that they intentionally participated in the making of arrangements to collect and destroy the Mini Cooper, each knowing that it had been used to commit serious crimes on 5 July 2019.

The jury for the trial was selected on 17 October 2023 and was sworn in on 18 October. Matters of law were then dealt with and eventually, on 24 October 2023, the trial started with the opening speech of counsel for the prosecution. It was originally intended that the trial should finish by Christmas.

The jury first retired to begin considering their verdicts at 3.38 pm on 14 December 2023. Juror number 6 was elected as forewoman. However, after various delays, including juror illnesses, the jury had not finished its deliberations by the end of Friday 22 December 2023. The trial was adjourned and was due to recommence on 16 January 2024.

In the meantime, on 2 January 2024, one juror wrote to the court that they were struggling to continue, that they felt that other jurors with strong opinions were pushing them to change their view, and that the case and situation was affecting their health. They asked to be discharged. However, that situation was managed and the juror was able to continue as a member of the jury.

The jury recommenced their deliberations on 16 January 2024 and returned at about lunchtime on 19 January 2024 with unanimous guilty verdicts in respect of both applicants.

The following day, 20 January 2024, the applicant Kyei discovered that two comments had been posted on Instagram in response to a post about an upcoming music project in which Kyei was due to be involved. The comments were posed by a person to whom we shall refer as "Person Y". He was the partner (or husband) of the jury forewoman to whom we shall refer as "Person X". The comments were as follows:

Comment 2 was posted at two minutes past midnight on 20 January 2024. The time of comment 1 is less certain, but the date was probably 16 January 2024 (that is, before the jury had returned with its verdicts).

Kyei has set out the details of how he discovered the comments and their attribution in a statement dated 25 January 2024. In that statement, he says:

The matter was referred to the trial judge, but he had no power to deal with it and he referred it to the Registrar of Criminal Appeals, and the matter was then referred to the police.

The applications for leave to appeal were lodged in, respectively, February and April 2024, which was before the outcome of the police investigation was known or details of the investigation had been disclosed. On behalf of both applicants, it was submitted that these comments and posts on Instagram bring into question the safety of the verdicts of the jury.

For the first applicant it was submitted that:

For the second applicant, it was submitted that the forewoman of the jury breached her oath and acted contrary to her legal responsibilities as a juror. The exact extent of her conduct remained to be seen, but there was evidence which clearly established that she had discussed the case with her partner who then went on the internet and posted rude and abusive messages towards one of the applicants, including a reference to the outcome of proceedings prior to the verdicts being reached.

Details of the police investigation emerge from the Respondent's Notice and are as follows:

In reliance on the above matters, the Crown submitted that there appeared to have been no inappropriate or impermissible conduct on the part of Person X in respect to any of her fellow jurors. Each of them maintained that they had carried out their role honestly, had remained true to their oath or affirmation, and had decided the case only on the evidence presented in court. The timing and extent of Person X's communications with Person Y about what happened in this trial was not known. What can be inferred is that Person X had told Person Y of the outcome and the identity of the applicant. There is no reliable evidence as to when that conversation took place. Even if the initial post was made on 16 January, that would only indicate that Person X had disclosed to Person Y her views on the charges and the identity of the applicant. Sharing that information alone does not make the unanimous verdicts subsequently returned in this case unsafe. It was further submitted that the other jurors had each independently confirmed that their individual verdicts were their own, and that they had not been influenced by, nor made under pressure from any other juror or other person. In those circumstances it was submitted that the verdicts could not be said to be unsafe.

In March 2025, the applications for leave to appeal were considered by the single judge who, in relation to the comments posted in Instagram, made the following observations:

On 7 October 2025, the Crown submitted a Disclosure Note following review of the material relating to the police investigation into potential jury irregularity. In that Note, they disclose that of the 11 jurors (apart from Person X), seven had provided written statements. In relation to the statements obtained from those seven, the following should be added:

The Disclosure Note also referred to a prepared statement from Person X which had been provided verbally by her legal representative on 29 May 2024. Within that prepared statement, Person X had said that she did not disclose information about statements made, opinions expressed, arguments advanced or votes cast by members of the jury to her partner. She said that there had been no reporting restrictions during the trial and that the statements made in the posts showed no evidence of relying on information that would not have been available in the public domain. She said that the unanimous guilty verdict had not been reached before 19 January 2024. The jurors' phones had been taken from them during deliberations, which meant that Person X was not able to communicate the outcome until after the verdict had been announced in court.

On 9 October 2025, in response to the Disclosure Note, the applicants made a disclosure request in respect of the police investigation into jury irregularity. On 18 October, the Crown responded that there was no further material which may assist the grounds being argued within the jurors' statements. They stated that the prosecution instructed independent disclosure counsel in this case to review the juror statements in order to ensure that any further disclosure would be properly made, following on from the Respondent's Notice. The material was managed in that way to preserve the anonymity of the jurors and to preserve the confidentiality of their deliberations whilst at the same time properly addressing the issues raised in the proposed grounds of appeal. The disclosure junior had reviewed the statements. They stated that anything from those statements which might assist the applicants as regards their proposed grounds of appeal had been disclosed in the Disclosure Note of 7 October 2025.

This matter first came before us on Tuesday 28 October 2025. On that occasion, in his oral submissions before us on behalf of the applicant Kyei, Mr Walker KC submitted that the evidence clearly indicated that Person X must have communicated to her partner (or husband), Person Y, information about how the deliberations were going in order to enable him to post that the applicant Kyie would be going to prison. Any research on the internet about Kyie would have revealed his involvement with gangs and his gang affiliations. Given that they were communicating about the trial, there is an inference that Person Y would have told Person X about what he had discovered on the internet and that this would have prejudiced Person X against the applicant Kyie, would have undermined the careful approach taken at trial to issues of bad character, and would irrevocably have compromised the integrity of the jury. He asked the court to compare the position had it been discovered before the verdicts were delivered that Person X’s partner had been making such posts about the applicants. Mr Walker suggested that the trial judge would unquestionably have discharged the jury, particularly in view of Person X’s position as the jury forewoman.

Judge Katz KC had reminded the jury of the responsibility of the foreman or forewoman to ensure that everyone's views were heard and respected, which only went to enhance the status of the forewoman, and therefore of Person X in this case. Mr Walker further asked the court to infer from the refusal of Person X and Person Y to reveal their PIN codes and their Instagram account details and thereby allow the police to interrogate their messages, that there would have been incriminating evidence upon those devices showing discussion about the case between Person X and Person Y.

Supporting of Mr Walker’s submissions, Mr Scobie KC on behalf of Ellis submitted that there was an irresistible inference that Person Y had carried out internet research and that Person X did not comply with the learned judge's directions to the jury, even during deliberations, and that this gave rise to a real concern that the convictions are unsafe. The letter from the juror referred to above only adds to the deep sense of unease, as does the fact that Person X sometimes retained her smartwatch, which is a communication device. Mr Scobie indicated that the applicants do not know whether Person X and Person Y were given Notices pursuant to section 49 of the Regulation of Investigatory Powers Act 2000, which requires a person upon whom such a notice has been validly served to give the "protected information". He, too, submitted that the refusal of Person X and Person Y to reveal their PIN codes amounted to obstruction of the enquiry and to an offence of impeding justice.

Mr Scobie indicated that, so far as he was concerned, all of the proposed grounds of appeal are, or were, intended to be before the court, including those that the single judge dismissed which, said Mr Scobie, were renewed. These included a proposed ground of appeal that the trial judge erred in failing to discharge the jury after counsel for the prosecution cross-examined the applicant Ellis in a way which went beyond the ambit of his ruling allowing the admission into evidence against Kyei, but not against Ellis, of Instagram messages between Kyei and another which related to "K-Koke", a prominent musician who was in prison at the time, and which could be interpreted as an offer to have "K-Koke attacked in return for money".

For the prosecution, Mr Orchard KC submitted that the second posting "enjoy the showers" was made at 00.02 hours on 20 January 2024, some 11 hours after the jury returned their verdicts and is therefore irrelevant. So far as the first posting is concerned, the starting point is that this is not a post from Person X and there is no evidence that it arose from anything said to Person Y by Person X. He described it as the sort of comment that is regularly posted on blogs and that it required no special knowledge on the part of Person Y at all. He submitted that there is no rule of law that a member of the family of a jury member cannot comment on social media blogs and that by posting this message, Person Y did not cross any line. Mr Orchard submitted that there is no evidence of any misconduct and that the court can infer that had there been any misconduct, it would have been noticed by another member of the jury who would have complained, or brought it to the court's attention, or referred to it in the police investigation.

We adjourned the hearing on 28 October in order for Mr Orchard to acquaint himself fully with the disclosure that had been made, and to assure himself, and then us, that all disclosure had been made which should have been. Accordingly, further Disclosure Notes were sent to the applicants and to the court. They included further information relating to the statements that were taken from the seven jurors who were prepared to make statements in response to the police investigation. All jurors confirmed that they had no concerns about the way in which Person X had conducted herself, or the deliberations of the jury, and that they had each reached their verdicts independently and on the evidence which had been presented to them.

Resuming his submissions today, Mr Orchard submitted that the statements revealed that no conclusions had been reached by the jury until 18 January. Certainly no conclusion had been reached by 16 January, when comment 1 was posted. He referred to the fact that Juror C had praised Person X for structuring the discussions. He submitted that all of the jurors who gave statements said that the decisions were their own and that they had retained their independence. He referred to the fact that the jurors had put together a WhatsApp group, but submitted that this was irrelevant because it was only used for logistical purposes.

In reply, Mr Walker submitted that there was an overwhelming inference that Person X had disobeyed the instructions given to her by the learned judge. He submitted that the timing of the first posting does not help the Crown in this case. He submitted that, given that Person X and Person Y are married with children, what is important in this case is the appearance of bias. One of the more troubling aspects of this case is the lies told by Person Y in suggesting that his phone had been hacked and that the first comment had been posted after the verdicts had been returned, when in fact that post was made before the verdicts and there was no evidence of hacking at all.

Mr Walker repeated the submission made on 28 October, that the court should take a step back and draw an inference against Person Y from his refusal to co-operate. He referred to the failure to give a section 9 notice, whereby there was no sanction against Person X or Person Y for failing to provide their PIN codes. He submitted that it led to a "light touch" in terms of the investigation. His submissions came to this, that the court can be sure that Person X spoke to Person Y about the trial, including the identity of the defendants in the trial and the fact that Person X was at that stage of the view that they were guilty. Given that they, as husband and wife, were communicating about the trial, it is at least possible that Person Y then spoke to Person X about what he had seen on social mediate, and, in the absence of any evidence to the contrary, the court should draw the inference from those circumstances that Person Y had spoken to Person X about the case and that this had influenced Person X's approach not only to her own verdict but to the deliberations of the jury. He emphasised that what that amounts to is an appearance of bias which is enough for this court to say that there is an arguable case of jury irregularity.

Mr Scobie this morning went further in relation to the investigation. He described it not merely as a "light touch", but entirely inadequate. He referred to the lack on enquiry into communications between Person X and Person Y, and to the animus against the applicants on the part of Person X. He asked the question: "Why did Person X and Person Y decide to say nothing, if in fact there was nothing in their communications?" He submitted that the investigation had been far too narrow and limited, and that it had enabled Person X and Person Y to get away with silence with impunity. He submitted that the inability to see the communications between Person X and Person Y is fundamental. It means that answers to questions cannot be obtained to which the applicants are entitled if it is to be said that they had a fair trial.

Following the disclosure process, including the disclosure between 28 October and today's hearing, we are satisfied that the applicants and their counsel have been given disclosure of all relevant material to which they are entitled.

We deal first with Mr Scobie's purported reliance on the proposed "K-Koke" ground of appeal. We consider that this was not renewed and was therefore not before the court as a ground of appeal. In any event, even if it had been, we would have upheld and associated ourselves with the single judge's observations on the matter where he said this:

We return to the matters which are properly the subject of this application. In our judgment, there is nothing in the documents which we have seen, or in the arguments we have heard, to suggest that these convictions were anything other than safe or to justify the granting of leave to appeal.

We are satisfied that the prosecution have investigated this matter thoroughly and have disclosed to the applicants all that they are entitled to see. Although we acknowledge that the posting of any matter on Instagram relating to the trial by the partner of the forewoman of the jury is, to say the least, unfortunate, and that it merited investigation as to whether the forewoman had disobeyed the judge's instructions and had discussed the matter with a third party – her partner – and whether the views of that third party, together with any information he had discovered about the applicants, had been relayed through the forewoman to the jury which might have influenced their decisions, we are satisfied that there is no evidence that any of this occurred.

Upon the basis that the first of the messages was posted whilst the jury were deliberating, which we assume in the applicants' favour, we do not consider that there is any evidence that what was posted came as a result of discussion of the case between the forewoman and her partner. It seems likely that Person X had told her partner at some point which case she was trying, which is in itself an unsurprising and undamaging revelation, even if it might strictly have breached the judge's instructions.

However, there is no reason to suppose that anything going beyond this has taken place. By the time of the posts, the evidence had long been complete, and Person Y could have formed his view about the likely outcome from his knowledge of the case gleaned from information that was in the public domain. There is nothing to contradict Person X’s insistence that she did not disclose information about statements made, opinions expressed, arguments advanced or votes cast by members of the jury to her partner.

We note in particular that the evidence from the other jurors who responded to requests for information was unanimously to the effect that nothing was said or done by Person X that raised any concerns and there was no complaint as to the conduct or actions of Person X in her capacity as either a fellow juror or as the jury foreperson. None of them indicated that they had been approached by any third party or had been encouraged to disclose the contents of their deliberations; nor had anyone sought to influence their decisions or decision-making process in reaching their verdicts.

In the above circumstances, we are of the view that all the evidence points to a conclusion that the integrity of the trial process, and in particular the deliberations of the jury, remained intact and that there is no sufficient evidence upon which we could conclude that an irregularity occurred such that it is reasonably arguable that these convictions are anything other than safe.

The applications for leave to appeal against conviction are accordingly refused.