Minimum Terms
Minimum terms set for young offenders by the Lord Chief Justice
27/02/03
10.00am
Court 3
Royal Courts of Justice
The decision of the Lord Chief Justice on the minimum term in the case of Kristen Troy Kelly in accordance with the Practice Direction dated 27 July 2000 (The Times, 9 August 2000)
1. Kelly was born on 21 July 1977. Kelly was tried between 25 January and 6 February 1995 at Birmingham Crown Court. Kelly declined to give evidence. Through his counsel, he admitted that he had been in the video shop at the time of the shooting but denied that he was the murderer.
2. The following facts are derived from the report of the trial judge, Mr Justice Latham, to the Home Secretary dated 16 February 1995.
3. On 25 May 1993, Kelly entered a busy video rentals shop in Coventry and shot Tristian Malcolm in the neck. Kelly was 15, and Malcolm was 19, years old. Malcolm died in hospital from loss of blood.
4. Kelly was subsequently identified at a video identification parade, as having hurriedly left the shop after the shooting, by witnesses who had been outside the shop.
5. At the time that he died, Malcolm was wearing a bullet proof combat jacket and had in his possession a mobile telephone and a small quantity of crack cocaine, consistent with possession for personal use, but nonetheless indicating the likelihood that he was involved in drug-dealing. There was evidence that there had been previous confrontations between Kelly and Malcolm.
6. Latham J noted that this was "a cold-blooded and deliberate murder committed in circumstances which suggest that Kelly had little compunction in, or regret about, killing Malcolm".
7. Kelly had not been in trouble for violence or drugs-related offences before but he had an extensive record of house-breaking and vehicle-related offences. Latham J commented, "The impression I have is that he is a streetwise kid, from an extremely deprived background, who could present a serious danger on his release if he were simply to return to the area in which he has been brought up, and in which the crime was committed".
8. Latham J ordered that Kelly be detained at Her Majesty's pleasure and recommended a tariff of 12 years, by reason of Kelly's youth. The Lord Chief Justice, Lord Taylor, agreed that 12 years was appropriate. On 17 July 1998, the Secretary of State's decision to set Kelly's tariff at 12 years was communicated to Kelly.
11. The most detailed recent report on Kelly was completed by Ian Levy, a trainee forensic psychologist working under the supervision of a Chartered Senior Forensic Psychologist, at HMP Long Lartin on 28 March 2001. Mr Levy noted:
(a) that Kelly continues to deny committing the index offence and that if he is to develop an insight into his behaviour needs to begin exploring his role in the offence;
(b) that Kelly identifies with a criminal lifestyle, a lifestyle which developed after he was expelled from school at 11 years old and taken into care;
(c) although Kelly has no previous convictions for violence, he has been convicted for a number of burglaries, thefts and handling offences as well as driving offences including Taking Without Consent, criminal damage and contraventions of the Bail Act;
(d) that during his time in custody, Kelly has been the subject of over 60 adjudications for, among other things, drug involvement, disobedience, damaging property and committing assaults;
(e) that Kelly uses violence when he feels slighted or undermined by others, as demonstrated by the fact that nineteen of his adjudications have related to assaults on staff and other inmates, one of which required a member of staff to have facial stitches;
(f) that there has been an improvement in his overall behaviour and he has had fewer adjudications in recent years but he needs to maintain an adjudication free period in order to demonstrate a sustained reduction in risk;
(g) that there is a risk that on release Kelly may revert back to his previous lifestyle, where it appears that he has the knowledge and ability to gain access to firearms;
(h) that he has responded well to prison employment, has a good rapport with staff and inmates, and maintains good contact with his family;
(i) that he will need to sustain his level of motivation and positive achievements with regards to his education, employment and general institutional behaviour in order to further develop his progress.
12. In his more recent report, dated 16 June 2002, the Lifer Governor at HMP Swaleside, Mark Taylor, notes that Kelly:
(a) has now admitted that he is guilty of the index offence;
(b) that staff find him approachable but note that his attitude changes when he is told to do something, and that he has recently received two warnings for poor behaviour towards staff;
(c) has been sacked from his employment for poor attendance;
(d) still has a lot of work to do before he can demonstrate a significant reduction in risk, especially given the evidence of risk from his behaviour in custody.
14. On 17 November 2001, Jonas Roy Bloom solicitors made written representations on Kelly's behalf. They adopt the representations submitted by Kelly's then solicitors on 6 September 1995 and make, amongst others, the following points:
(a) that it is incorrect to say that, in line with the case of Fleming [1973] Cr. App. Reports 524, 528, Kelly's minimum tariff was 12 years;
(b) that Kelly committed the offence as a minor and his time in the adult prison system should be kept to an absolute minimum;
(c) that Kelly had no previous convictions for violence or drug-related crimes and that the victim of his offence was a major local drug dealer.
15. The representations on Kelly's behalf of 6 September 1995 add, among other things, that:
(a) the guideline case of Fleming case (above) is not binding;
(b) that Kelly lived in a fairly deprived area and it is therefore not surprising that he has a number of previous convictions;
(c) that there is no evidence that the murder was related to the drugs scene.
16. The victim's family have made representations in several letters. In a letter dated 24 February 2002, Cheryl Carloss, the victim's eldest sister, expresses her concern about Kelly returning to Coventry on release, in particular because people may seek revenge against him. She says that she believes that, having taken a life, Kelly should pay with his own life, either spending it in prison or by having his own life taken.
17. In her letter of 26 February 2002, Andrea Malcolm, also a sister of the victim, says that her brother's murder left her family shattered. She says that her brother had been a huge part of the family's life and that she will never come to terms with his loss. She hopes that Kelly will never be released and believes that as a minimum he should serve 30 years, to prevent him committing a similar crime in future. She says that Kelly has never shown sadness or guilt in respect of his offence and she says that if he is released, she will be "looking over [her] shoulder for the rest of [her] life".
18. Representations on behalf of the Malcolm family as a whole have also been made in a letter of 27 February 2002. They say, among other things, that Kelly's denial of the offence put the family through weeks of suffering in the court room; that he did not show any remorse or regret; that since the pistol used has never been recovered Kelly may be able to use it again on his release; that the family would not like to see Kelly in Coventry again and fear that Kelly may arm himself again and harass or mock them or that there may be a confrontation between him and the victim's father or brother. They say that the family will never forget or forgive.
19. I have taken these representations into account in reaching my conclusion.
20. In representations dated 12 April 2002, the DPP notes that Malcolm's family feel that they can never forgive Kelly for the murder and feel that they will never be able to come to terms with the murder. They oppose any reduction in the tariff and are concerned that Kelly will return to Coventry on his release. They feel that that would be too much for them to bear and fear an escalation of violence were he to return.
21. It is contended that the principal aggravating factors of Kelly's offence are:
(a) that there is evidence that the murder was planned;
(b) that a pistol was used to in committing the murder; and
(c) that there is evidence that Kelly carried the pistol with him for six months before the murder.
22. No mitigating factors are noted.
27. The tariff should remain at 12 years