Tuesday, February 8, 2011


Sir John Kay

Sir John Kay, the Lord Justice of Appeal who died on Friday aged 60, brought his formidable intellect and common sense to bear in causes celebres such as the appeals of Jeremy Bamber and Sally Clark and the posthumous appeal of Ruth Ellis; he was to have presided at the appeal now being heard of Sion Jenkins, convicted of murdering his foster daughter Billie-Jo.
As a Silk specialising in criminal cases, Kay had been one of the most powerful and compelling advocates on the Northern Circuit. He was a master of detail and his unhesitating courtroom style was well nigh irresistible. Clients were always grateful to have him on their side. On the bench he was firm and never one to let bad points go by, yet he was intellectually entirely fair.
In addition to his cases, Kay's name had recently appeared in the Press with almost equal frequency in connection with his son Ben, who played as a second-row forward in the England rugby team that won the World Cup in Australia in 2003.
Formerly a keen rugby player himself and later an avid follower of the game, Kay had been president of Waterloo Rugby Football Club and ran the club's junior sides at the time that his son was coming through. He and Lady Kay travelled to Australia to watch all of England's games from the quarter-final stage through to the final.
John William Kay was born on September 13 1943 and grew up at Blundellsands on the outskirts of Liverpool, where his father imported timber. John was educated at Denstone and at Christ's, Cambridge, where he read Mathematics before switching to Law eight months before his finals, in which he took a First.
He read for the Bar while teaching at a prep school in Hertfordshire and was called by Gray's Inn in 1968. He was subsequently a Tutor in Law at Liverpool University for a year while starting out as a general common law barrister on the Northern Circuit, based at chambers in Liverpool.

Kay was appointed a Recorder in 1982, took Silk in 1984, and was approved to sit as a deputy High Court judge in 1989. He was appointed to the High Court bench in 1992, assigned to the Queen's Bench Division, and was Presiding Judge on the Northern Circuit from 1994 to 1997 before being promoted to the Court of Appeal in 2000.

In December 2002, Kay sat with Mr Justice Wright and Mr Justice Henriques at the appeal of Jeremy Bamber, who had been convicted in 1986 of murdering five members of his adoptive family at their farmhouse in Essex.

Described by the judge at his trial as "evil almost beyond belief", Bamber argued there were 15 grounds for appealing against his conviction, including new scientific evidence. But Kay and his fellow judges threw out each of these in a 522-point judgment. "We do not doubt the safety of the verdicts," they said, "and we have recorded in our judgment the fact that the more we examined the detail of the case the more likely we thought it to be that the jury were right."

The case was attended by inevitable publicity, not least on the internet, where Bamber continued to protest his innocence on his own website, maintaining, as he always had done, that his schizophrenic sister Sheila Caffell had killed the family before committing suicide. But her innocence - and Bamber's guilt - was proven when her blood was found inside a gun silencer which had been discovered subsequently in a gun cupboard at the farmhouse.

A month after the Bamber case, Kay was again in the spotlight presiding at the second appeal of Sally Clark, the solicitor convicted of murdering her two baby sons. She appealed now on the ground that a Home Office pathologist had failed to disclose information that suggested that the second son might have died from a bacterial infection.

Granting her appeal, Kay said that: "If this had been heard, the trial would undoubtedly have taken a different course. It would have a formed a central part of the defence.

" Kay was also scathing about Sir Roy Meadows' estimate that the chances of two cot deaths in one family were "73 million to one"; he called it a "grossly misleading" figure, adding that "it should never have been put forward at all. Its potential effect when it was manifestly wrong was, I think, huge."

In 2003, shortly before he left for Australia to watch his son play rugby, Kay presided at the posthumous appeal against the murder conviction of Ruth Ellis, the last woman to have been hanged in Britain.

Although he found it "astonishing" that her original trial in 1955 had lasted for just one day, Kay said that "under the law at the date of the trial, the judge was right to withdraw the defence of provocation from the jury" and that therefore the appeal must fail.

He pointed out that Ruth Ellis had "consciously and deliberately chosen not to appeal at the time", and that, unlike the case of James Hanratty, no one disputed that she was the killer (of David Blakely, the racing driver with whom she was having an affair).

Kay then made a general criticism of posthumous appeal cases for wasting court time. "If we had not been obliged to consider her [Ruth Ellis's] case, we would perhaps in the time available have dealt with eight to 12 other cases, the majority of which would have involved people who were said to be wrongly in custody."

"Parliament," he said, "may wish to consider whether going back many years into history to re-examine a case of this kind is a use that ought to be made of the limited resources available."

Kay was at various times chairman of the Criminal Committee of the Judicial Studies Board, the National Criminal Justice Board, the Criminal Justice Council and the Criminal Justice Consultative Council.
In private, he was kind and approachable, always ready with advice, and a loving family man. Besides rugby, he enjoyed horse racing and genealogy.

He is survived by his wife, Jeffa (née Connell), whom he married in 1966, and by their son and two daughters.