England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Sitting at: The Central Criminal Court Old Bailey London EC4M 7EH
		10 October 2001

1. THE LORD CHIEF JUSTICE: We begin our judgment on this appeal by acknowledging the help that we have had both from leading counsel for the appellant and leading counsel for the Crown. It is not an easy appeal. A large amount of material has had to be considered and we have only been able to dispose of the appeal in the time in which we have by doing a very considerable amount of reading of the material outside court.

The background facts

1. On 14 April 2000, in the Crown Court at Maidstone, before Latham J, the appellant, Kenneth James Noye, was convicted of a single offence of murder by a majority verdict of eleven to one. He was sentenced to life imprisonment. The appellant applied for leave to appeal. At a preliminary hearing we gave leave to appeal, and the hearing which has just been concluded was treated as the hearing of the appeal.
2. The appeal would probably have been very straightforward but for the identity of the appellant. Mr Noye has been the subject of very considerable media attention. He first came to the public's attention in 1983 following the infamous Brinks-Mat gold bullion robbery. The inquiries of the police led to Mr Noye. The police kept his premises under observation. While doing so a police officer, PC Fordham, entered Mr Noye's land. The appellant became aware of the officer's presence and confronted him. There was a violent struggle during which Mr Noye stabbed the police officer a number of times. At the trial the appellant contended that he had acted in self-defence. The jury accepted that that was the position because they acquitted him. However, he was subsequently convicted of handling a proportion of the proceeds of the robbery and he was sentenced to 14 years' imprisonment.
3. The prosecution contend that the murder which is the subject of the appeal was committed as a result of an altercation following an incident close to the junction of the M25 motorway near Swanley at about 1.20pm in the afternoon of 19 May 1996. The victim was Stephen Cameron who was a passenger in a Rascal van which was being driven by his girlfriend, Danielle Cable. The appellant was driving a Discovery Land Rover.
4. The appellant gave evidence at his trial. He said that as he came off the M25 slip road he overtook the van as it approached a roundabout. He was not aware of inconveniencing the van, although he did stop suddenly at traffic lights. He got out of his Land Rover not because of any incident that occurred on the road but because he thought he recognised the driver of the van (the girlfriend of Mr Cameron), and he believed that the man in the passenger seat of the van beckoned him. There was no support in the evidence of that beckoning. When he could saw that the person in the van was not the person whom he thought, he apologised. However, notwithstanding that apology, Stephen Cameron responded by saying, "You'll be sorry, you cunt. I'll kill you." Cameron, having left the van, attacked the appellant and kicked him in the waist. The appellant was pushed out into the middle of the road. He thought he was going to be run over. Cameron punched him in the face and knocked him to the ground. Cameron aimed seven or more kicks at him whilst he was defenceless on the ground. The appellant returned to the Land Rover to get inside, but Cameron prevented him from doing so. The appellant took from pis pocket a knife and went to the back of the Land Rover, only to find Cameron there. The appellant held out the knife so that Cameron could see it. Cameron's girlfriend jumped out of the van and shouted, "Don't". This caused Cameron to attack the appellant, kicking and punching him. Cameron kept saying he would kill him. The appellant thought he might be thrown over the bridge beyond the van. The appellant tried to hold the knife down so that he did not become involved in the fight. Cameron grabbed him by the jacket and also struck him with a couple of kicks. The appellant was worn out and could not fight. No one stopped the fighting. He thought that Cameron would use the knife and kill him. He therefore struck out. He only remembered striking out once. He acted deliberately, but he did not know where the knife went as he had his head down. All the time Cameron was saying, "I'll kill you". In view of what had happened in relation to the police officer, the appellant must have known that the use of a knife could be fatal, but he did not know where the knife went on this occasion. He turned away, got into the Land Rover and drove off.
5. The appellant and his wife discussed the matter and he agreed that he would never be believed. He considered that he would not have a fair trial because of what had happened to the police officer. He left the country as soon as possible and he concealed his whereabouts and his identity. He also (and this is an admitted fact) disposed of the Land Rover. It is not clear to this court why he would wish to dispose of the Land Rover. When he was finally extradited the appellant did not initially say that he was relying on self-defence and that was the reason why he should not be extradited. He denied that he had been involved in the incident at all.
6. Mrs Noye gave evidence. She supported the appellant's view that he would not have a fair trial but thought that he would be able to return when the press stopped printing lies about him. She also said that her husband had a swollen face, a bump on the head and a cut on the nose.
7. The issue for the jury, on the appellant's own evidence, was, first: was he acting in self-defence or was he the aggressor? Secondly, if he was acting in self-defence (and this perhaps is the most important issue) was the use of the knife a reasonable form of self-defence? To put it another way: did the appellant act disproportionately in taking the knife and inflicting two stab wounds on Cameron which caused his death? Unless the jury thought that the appellant might have acted proportionately in the situation he believed himself to be, the only verdict they could properly return as a matter of law was one of guilty of murder. That was the legal position in relation to the appellant's own account of what happened.
8. There was some evidence before the jury that Stephen Cameron was a fiery-tempered young man. Once when the papers were being read in his girlfriend's presence it was pointed out that she had said that the appellant had started the fight, and she responded: "What do you expect me to say?"
9. In addition to the calling of the girlfriend Danielle to give evidence, the prosecution called a great number of witnesses. There were 23 in all who had been travelling in other vehicles and who had seen something of what had happened, 18 of whom gave useful evidence. However, only Danielle and one other witness had definitely seen that the appellant had had a knife before the stabbing. But that he had had a knife could not be in dispute. Danielle said that after she got out of the van she tried to get Cameron back into it. She said that Cameron had kicked at the appellant. She agreed that Cameron had followed the appellant round the front of the Land Rover. She said that she saw something in the appellant's hand which she believed was a knife some three or four inches in length.
10. The other witness who was able to say definitely that he saw a knife was a Mr De Cabral. Much of this appeal has concentrated on his evidence. He was driving a blue Rolls Royce. He described a man (the appellant) who came round the back of the Land Rover and stood in front of it. Cameron tried to get back into the van. There was a tussle and punches were thrown. Cameron hit the appellant first and then it was "tit for tat". Mr De Cabral described how the appellant stabbed Cameron with a knife which came from the front right-hand pocket of his jeans. He said that the appellant had taken the knife from his pocket and put his hand behind his back as if to hide the knife. The appellant then ran at Cameron who kicked at him. The appellant lunged forward with the knife towards the sternum of Cameron, who staggered back. As the appellant passed Mr De Cabral the expression on his face was as though he was saying, "That's sorted you out. You've got yours, mate." Mr De Cabral followed the Land Rover to which the appellant had returned. He made a 999 call on his mobile phone to the police. A transcript of the call was produced in evidence. There are relevant parts of that transcript to which we should refer. He said in the course of the telephone conversation:

"I've just seen somebody stabbed."

11. Later on he said:

"I came out of like Lewisham and I went straight up -- I think it's the A2, and just where there's a big roundabout, yeah, to turn left for the Dartford tunnel or right ah, for the M25 and out towards Brighton, there was two guys having a fight and I saw a guy in Range Rover pull a knife out of his right-hand pocket and stab the guy in the red van in the chest. And the guy in the Range Rover pulled right across the front of my car. He jumped back into the car."

12. He gave part of the registration number of the car and later referred to the fact that he saw the appellant actually stick the knife into Cameron. He subsequently referred to the fact that "there was loads of people that saw it". He added:

"I saw him pull a flick-knife out of his right-hand pocket.

....

And the guy in the van was sort of getting the better of the other guy."

13. There he was saying that Cameron was getting the better of the appellant. Later on he said:

".... definitely, definitely 100% saw him stab the other guy in the top of the stomach, you know, between -- you know, about in the diaphragm area."

14. The officer with whom he was having the conversation asked:

".... did you actually see any gun involved?

De Cabral: Any what?

The police officer: Any gun? A firearm?

Mr De Cabral: I saw something that he had under his jacket. He -- he --

....

They were fighting with something. I'm not sure what it was because I, I just pulled up and I saw them stopped in the road, yeah.

....

And I saw they were sort of like wrestling and I'm not sure, they could have been wrestling with a gun, or I, I'm not sure. I don't want to say because I just don't know.

The police officer: You just saw the knife and him being stabbed with the knife?

De Cabral: I 100% saw the knife go into his chest and I saw the blood.

The police officer: Okay."

15. That transcript refers to a telephone call made very shortly after the incident. In the course of this appeal the evidence of Mr De Cabral has been subjected to a very intensive and appropriate attack by Mr Mansfield. Mr De Cabral made it clear that his impression was that at one stage Cameron was getting the better of the appellant. It was suggested that Mr De Cabral was deliberately being untruthful in not disassociating himself from the presence of a gun present. With respect to Mr Mansfield, when the matter is put into context it would perhaps not be just to be overcritical of Mr De Cabral's response. He made it clear at the end that he could not say that a gun was being used.
16. In addition, in his account Mr De Cabral stated that the Land Rover drove at him. But as Latham J made clear in his summing-up to the jury, it is puzzling to see how that could have happened. Mr De Cabral's description, however, of the knife being taken from the appellant's pocket was consistent with Mr Noye's own account.
17. Ignoring witnesses who were at the scene of the incident but who were unable to add anything, there are at least 18 other witness who describe what happened. It is not necessary for the purpose of this judgment to repeat their evidence. But those who distinguished between the part played by the appellant and Mr Cameron suggest that Cameron was the more aggressive and had the upper hand until the appellant produced the knife and twice stabbed Cameron.
18. Medical evidence was called. There was an issue as to the precise amount of force which was necessary to cause the injuries which Cameron received. There is no doubt that at least moderate force had to be used with the knife to cause the injuries which had occurred.
19. No criticisms are made of the judge's summing-up. Both provocation and self-defence were left to the jury. The main issue was, however, self-defence and, in relation to self-defence, whether or not the appellant acted proportionately. Indeed, despite the number of witnesses called and the usual differences in emphasis between one witness and another, the issue was: were the jury satisfied that it was unreasonable for the appellant to use a knife to stab Cameron in the course of the fracas which had undoubtedly taken place?
20. The question whether it is reasonable in the course of a fracas of this sort to use a knife to stab an opponent twice in the chest, as happened here, is a wholly appropriate question for a jury. However, even on the appellant's account we find it not at all surprising that the jury should come to the conclusion that it was unreasonable and quite disproportionate to use a knife in the manner it was used in this case. We acknowledge that, before finding the appellant guilty of murder, a jury would be required to take fully into account the inability of a person in the course of a fracas of this nature to make fine distinctions between what are reasonable and what are unreasonable steps to take in self-defence. But to take out a knife, open it, and then use it, as the appellant agrees that he did, could in the view of the jury be the clearest case of disproportionate behaviour in a fracas which had blown up as this fracas had. The appellant himself suffered only superficial injuries. He says that he brandished the knife to make the deceased see sense. But, as we understand it, it is not suggested that Mr Cameron ran on to the knife or that it was an accident. It is the appellant's case that he twice deliberately stabbed Mr Cameron.
21. On the accounts given on both sides, the dispute which led to the incident which resulted in the death of Mr Cameron had apparently blown up out of almost nothing. The jury had to consider a suggestion made by the appellant that the deceased might have seized the knife and then used it on the appellant. They may have considered that that suggestion was fanciful. Furthermore, as the judge pointed out, the appellant was well aware of how dangerous the use of a knife could be. This was the second time that he had admittedly killed in the course of a struggle.
22. These preliminary remarks emphasise, in our judgment, the shallowness of the appellant's defence.

The Grounds of Appeal

A. Stay of Prosecution

23. The appellant relies on three grounds of appeal. The first is that because of the adverse publicity the appellant had received at the hands of the media, the judge should have stayed the proceedings as an abuse of process. An application made on behalf of the appellant for a stay on this ground was dismissed by the trial judge on 16 December 1999. It had been submitted on behalf of the appellant that the right test to apply was to ask whether it could be shown on the balance of probabilities that there was a real danger of the defendant not having a fair trial before an impartial tribunal. If not, then the judge should intervene and order a stay. This test was based on the speech of Lord Goff in R v Gough [1993] AC 646, 661. On behalf of the prosecution it was contended that the better test to apply was that laid down by Lord Lane CJ in Attorney General's Reference No 1 of 1992 (1992) 95 Cr App R 296, 303, in which it was said that the correct question was: had the defendant shown on a balance of probabilities that he would suffer serious prejudice to the extent that no fair trial could be held? Although the language of the two tests is not the same, we would question whether in practice the application would not inevitably lead to the same result. As we understand it, counsel did not dissent from that view. If there is "a real danger of the defendant not having a fair trial before an impartial tribunal", then the defendant "would suffer serious prejudice". Bearing in mind Article 6 of the Convention on Human Rights we would suggest the issue can be shortly and succinctly stated as: is the court satisfied that the defendant could have a fair trial? A question of this nature is very much for the trial judge. Unless the trial judge can be shown to exercise his discretion wrongly, this court will not intervene.
24. We do not consider that in this case this can be done. The judge appropriately criticised the media coverage as being tendentious in the extreme. He referred to the fact that a book described the appellant as "Public Enemy No 1". He referred to the fact that the reporting in some instances was slanted. At first, Latham J decided that no jury protection would be required. Subsequently he made an order for jury protection. We fully appreciate that ordering jury protection can create an adverse impression on a jury. That is why it should only be ordered when there is a clear and obvious need for it. In this case, however, the risk was perhaps less than in most cases because the appellant's defence involved putting before the jury his involvement in the earlier Brinks-Mat prosecution. This was done so that the appellant could explain why he fled the country after the stabbing which is the subject of the conviction.
25. It is regrettable that certain sections of the press had not exercised more self-restraint. We agree with the strong comments made by the judge. The press is often -- and rightly often -- in the forefront of seeking justice on behalf of the public. They must take care, therefore, to avoid creating situations where it becomes impossible, or more difficult, for the court to do justice. It is, however, important to recognise that in this case the appellant had fled the country following some of the publicity of which complaint was made. In fairness to the press, it was not clear that there would ever be a prosecution of the appellant so far as this case is concerned.
26. In this situation Latham J was faced with a problem of balance. He had to weigh up the dangers of injustice to the appellant against the interests of the public that those who commit offences should be brought to justice. We attach great importance in this country to the protection that juries provide defendants. But the other side of that coin is that we must accept that juries will do, as judges do, their best to put out of their minds prejudicial material. The advantage of a jury trial is that the jury bring to the trial their common sense and fairness. They are, in our judgment, well able to ensure that media comment will not deter them from doing proper justice in the great majority of cases. They follow the guidance given by the trial judge to take into account what is relevant and to ignore what is irrelevant. We must be cautious about reaching a situation as a consequence of our decisions that if the conduct of a defendant has been sufficiently sensational he cannot be tried but can say, "Because of the media attention I have received I cannot be tried." As in so many situations it is for the judge to hold the scales evenly between the public and the defendant.

B. Excessive Security

27. The other aspect of this part of the appeal is the prejudice which it is submitted by Mr Mansfield can be caused to a defendant by the imposition of intensive security. It is said by Mr Mansfield on the appellant's behalf that the manner in which the proceedings had in general been conducted was to give the impression to the jury that the appellant was guilty of the offence with which he was charged. Mr Mansfield takes as an illustration of the excessive security the fact that this appeal is being heard here at the Old Bailey rather than the Royal Courts of Justice. We agree that there can be dangers from the sort of security issues to which Mr Mansfield refers. Unnecessary security must be avoided. It is the responsibility of the judiciary to ensure that there is not excessive security. But the reality of the situation today is that it is only possible properly to conduct certain criminal proceedings if jury protection is provided. That is regrettable. But as long as a judge has material before him which causes him to come to the conclusion that jury protection is justified, he is perfectly entitled to order that jury protection take place. The jury perform a public duty; they perform a difficult public duty. In performing that duty where it is appropriate (and we emphasise "where it is appropriate") they should have the benefit of that protection. We would trust a jury in the great majority of cases where there is protection to make sure that that does not influence their decision. We commend the way in which Latham J directed the jury in this case. He made it clear that it was certainly not a matter which should be held against the appellant. We therefore consider that the judge's decision in relation to jury protection and on the question of abuse of process was correct.

Mr De Cabral

28. The other two principal grounds of appeal both concern Mr De Cabral. Subsequent to the trial Mr De Cabral's wife contacted the defence. She made a long statement and she has given evidence on this appeal. Her evidence makes it clear that Mr De Cabral, who was murdered subsequent to the trial, was engaged in dealing in drugs, including cocaine, in a substantial way. As Mr Bevan accepts and Mr Mansfield contends, it is not inappropriate to describe him as a villain. Mrs De Cabral also gave evidence that he was quite prepared to embroider the truth. In many ways he was a larger-than-life character. In his summing-up Latham J described him as "unforgettable". Mr Mansfield suggested that he would have appeared as a "breath of fresh air" to the jury. It is submitted that if Mrs De Cabral's statement had been available prior to trial, it would have provided a valuable source of ammunition with which Mr De Cabral could be cross-examined on behalf of the appellant to show that he was an unreliable witness. Mr Mansfield accepts that, generally, answers given in cross-examination as to credit are not subject to evidence in rebuttal. However, he submits that Mrs De Cabral's evidence falls within an exception. We take Mrs De Cabral's evidence into account in considering this appeal.
29. In addition, it is submitted that the prosecution failed until after the trial to disclose information which was within their possession. The information which it is said should have been disclosed again goes partly to credit. Among the information which was not disclosed but was subsequently made available to the defence was information that a Mercedes motor car which was in Mr De Cabral's possession had a secret compartment in its petrol tank. Clearly it was to be (and no doubt was) used in connection with drug smuggling. A large sum of money (over £120,000) for a time was confiscated by the police from Mr De Cabral's possession. It is suggested that in addition to its relevance to credibility, the evidence which was disclosed showed that Mr De Cabral was in a vulnerable situation from which he would have wanted to protect himself and in order to do so would seek to ingratiate himself with the police. His desire to ingratiate himself with the police could explain why he gave the evidence which he did. It is said that the two matters stood together. Mr Mansfield submits that Mr De Cabral was a man who had a propensity not to tell the truth, to be dishonest, and in relation to giving evidence he had a motive to be dishonest. It is for this reason that we referred to what he said in the 999 telephone conversation to the police. At the time that he made that telephone call he did not know that the appellant was involved. Among the material that was available to the defence were the various statements that Mr De Cabral had made.
30. The investigation in this case took place prior to the enactment of the Criminal Procedure and Investigation Act 1996, which deals with the question of discovery. The test which had therefore to be applied was that indicated by Lord Taylor CJ in R v Keane (1994) 99 Cr App R 1, and in the decision of R v Brian Winston (1995) 1 Cr App R 191. In summary there is a duty to disclose material that can be seen on a sensible appraisal by the prosecution (1) to be relevant or possibly relevant to an issue in the case; (2) to raise or possibly raise a new issue whose existence is not apparent from the evidence the prosecution propose to use; (3) to be material which holds out a real as opposed to a fanciful prospect of providing a lead on evidence which goes to (1) or (2).
31. We do not have to decide whether there was a failure to comply with those guidelines. For the purposes of this appeal we are prepared to accept that there was a failure. Mr Bevan on behalf of the Crown thought it right to conduct the case on the basis that there should be generous disclosure. There is material now available which could certainly have been disclosed under that approach. It is, however, right to point out that the prosecution made the usual checks required at that time and that the initial information disclosed included information "that in August 1995 De Cabral was believed to be involved in a multi-kilo cannabis operation". There were warnings on his record as to weapons and drugs. In addition, by a letter dated 13 December 1999 the Crown Prosecution Service disclosed that De Cabral was strongly suspected of being actively involved in the distribution and supply of class A drugs in the London area; that he had pleaded guilty to three offences of possession of cannabis and cocaine; and that when he was subsequently arrested he was in possession of £123,500.
32. It is possible to deal with this part of the case succinctly. Mr Batten QC, who had conducted the case on behalf of the appellant at trial, gave evidence on this appeal. He indicated that if he had been aware of the information relating to Mr De Cabral which is now available he would have conducted the defence differently; he would have attacked the credit of Mr De Cabral more aggressively than he did; and he would have relied on motive to say that the jury should not attach importance to his evidence.
33. Mr Bevan accepts that Mr Batten probably would have changed his tactics. In those circumstances we have to ask: are we sure that had Mr Batten had that opportunity, would the verdict of the jury have been the same? It is important when considering Mr De Cabral's evidence to bear in mind the extent to which it fits in with the appellant's own evidence and the extent to which it fits in with the other witnesses who gave evidence at the trial. We consider that in an incident of this sort where there are a great many accounts the approach of the judge in his summing up to the jury has much to commend it. The judge said to the jury that they should have in mind "the shape of the evidence", by which he meant the pattern of the evidence as a whole. Having had the advantage of hearing a number of accounts of the incident, a composite picture was formed of what had happened. The jury were encouraged by the judge to form a composite picture. It is important, as we have already indicated, to note, when considering the extent to which the jury would have been influenced by the attack of Mr Batten, the fact that Mr De Cabral made favourable concessions to the appellant. It does not appear that he was influenced by the motive on which Mr Batten had the opportunity to rely, as is now suggested by Mr Mansfield. It is true that in his evidence Mr De Cabral gave more details of the stabbing than any other witness. However, the significance of this is greatly reduced by the fact that the appellant admits deliberately using the knife and stabbing Cameron. On the evidence as a whole which was before the jury, if the issue which they had to consider was whether it was the appellant or Mr Cameron who was the aggressor, there was ample evidence to suggest that Mr Cameron was the aggressor. The real issue upon which the jury had to focus was that which we identified earlier, namely: was the use of the knife in the way it was used reasonable and proportional, or could it have been reasonable or proportional having regard to the nature of the fracas?
34. The jury also had to consider whether the account given by the appellant was fanciful. Was it likely that he thought that he would be thrown over the bridge, as he suggested? Or was that something which he put forward to try to justify what he knew could not otherwise be justified, namely the stabbing? Equally, if there had been threats to kill, would he really have taken them seriously, having regard to the nature of the incident?
35. Mr Batten was called to give evidence. It is an unusual occurrence that counsel who conducted the trial on behalf of a defendant is called to give evidence on an appeal as to how he would have behaved if circumstances had been different. That is something about which we have reservations. We consider that it should be avoided if at all possible. But we accept that there are exceptional cases (and perhaps this is one) where that is permissible. We take into account and act on Mr Batten's evidence which we accept was honestly given.
36. We have to ask ourselves whether or not we are satisfied that a jury, had they been aware of the cross-examination of Mr De Cabral that did not take place, would have reached the same verdict. That is a question which each member of this court has individually considered, having looked at the evidence as a whole, and having paid very great attention to the arguments advanced by Mr Mansfield. Having done so, each of us concludes that this was a case where, putting Mr De Cabral's evidence to one side, the only proper conclusion is that the jury would have reached exactly the same verdict. There was absolutely no justification for the appellant to take out a knife (whether it was a flick-knife or a knife which required two hands to open it), and to use it in this fracas. Accordingly, this appeal is dismissed.
37. At the beginning of this appeal very properly Mr Mansfield and Mr Bevan drew our attention to the possibility that there could be a retrial. In view of our decision there will be no retrial. It follows that in those circumstances the order that we made restricting publicity is now withdrawn. The press are entitled to publish any part of the proceedings which they care to.