NOYE v. THE UNITED KINGDOM
Inadmissible
Matti Pellonpää;Nicolas Bratza
The applicant, Mr Kenneth James Noye, is a United Kingdom national, who was born in 1947 and is currently detained in HM Prison Whitemoor. He is represented before the Court by Mr H. Milner, a lawyer practising in London. The facts of the case, as submitted by the applicant and as revealed by the supporting documents, may be summarised as follows. In 1983 the applicant came to the attention of the public when he was implicated in a notorious gold bullion robbery (‘the Brinks-Mat robbery’). As part of their enquiries, police kept observations on the applicant and his property. A police officer dressed in black and wearing a balaclava with only slits for eyes, hid in the grounds of the applicant’s home. The applicant’s dogs alerted him to the presence of someone and he went to confront the intruder. A violent struggle ensued during which the officer was stabbed and died. The applicant was tried and acquitted of murder, his defence being that he had acted in self-defence. The applicant was subsequently convicted of handling proceeds from the Brinks-Mat robbery and was sentenced to fourteen years’ imprisonment. Both trials received extensive media coverage. At about 1.20 p.m. on the afternoon of 19 May 1996, Stephen Cameron became involved in an altercation with the applicant on a slip road of the M25 motorway. The applicant had overtaken the van in which Cameron was a passenger and which was driven by his girlfriend, Danielle Cable. The applicant and Cameron left their respective vehicles and fought, during the course of which the applicant stabbed Cameron twice, fatally wounding him. Fearing that he would not be treated fairly by the police the applicant fled abroad. In 1998 he was arrested in Spain for the murder of Cameron and extradited to the UK to face trial. In December 1999 at a pre-trial hearing the applicant submitted that it would be impossible for him to have a fair trial in light of the lurid and extensive press coverage since the 1996 death of Cameron. The judge acknowledged that the coverage was “tendentious in the extreme” and went on to say: “There were allegations made about his criminal activities which went beyond any of his previous convictions, to the extent that he was being presented ... as ‘public enemy number one’. The undoubted effect of those articles, and the media coverage generally, will have been to bring back into the public mind all the controversy which surrounded his trial in 1983. Indeed, it is clear that a lot of the material was intended to stimulate precisely that controversy, to the extent that a significant proportion of the press coverage was so slanted as to suggest that the jury’s verdict in the defendant’s previous trial was perverse.” The judge noted that the coverage had been extreme in 1996 (when the applicant was out of the country) and 1997, but had then decreased and there was no significant adverse publicity after August 1998 (when he was arrested). The applicant submitted that the test to be applied was whether on the balance of probabilities there was a real danger of even one juror being prejudiced by the publicity. The tribunal could not then properly be said to be impartial. It was submitted that there clearly was such a danger and that therefore it was not possible for the applicant to have a fair trial. The judge considered that there were two aspects of the adverse publicity; the ‘general miasma of notoriety’, which could be addressed by careful directions to the jury, who could be trusted to approach the facts as established, and also the fact that the applicant was charged with the same offence as in 1983 and was running the same defence. Given the cynicism in the press about the earlier verdict, the latter aspect was a cause for concern. However, even if, as the prosecution had conceded, there was a risk that, “one or more members of the jury may have retained sufficient prejudice from the publicity as to let it affect his or her judgement” that was not the test to apply. The fact that one or more jurors had already formed an adverse view of the applicant was not bias in the relevant sense. The applicant had confused bias and prejudice in the way the application had been argued. The judge concluded that the test to be applied was whether it was possible for the applicant to have a fair trial and he found that the jury could be trusted to deal with the matter fairly and properly in the context of the directions they would be given. The passage of time, coupled with the process of trial, would sufficiently concentrate the jury’s minds on the events in issue so as to enable a fair trial to take place. On 14 April 2000, the applicant was convicted of Cameron’s murder, by a majority of eleven to one. At the trial he gave evidence that the deceased had been the aggressor throughout the fight and he had only taken out the knife as a last resort to try and dissuade the deceased from attacking him. He only stabbed the deceased when the attack continued and he believed it was necessary to protect himself. The issue for the jury therefore centred on the credibility of the applicant and by extension, the prosecution witnesses. There were two prosecution witnesses who claimed to have seen the stabbing (although many others who saw part of the fight); Danielle Cable and an apparently independent witness called Alain De Cabral, who presented himself as a respectable and successful businessman. Danielle Cable gave evidence that the deceased had behaved aggressively and that he had pursued the applicant when he had broken away from the fight, thus providing some support for the applicant’s case. A number of the other witnesses also suggested that the deceased was the more aggressive of the two men. De Cabral said that the applicant had initially approached the van and there had been a tussle between the two men, Cameron apparently trying to get back in the van. He was not sure who threw the first punch, but Cameron appeared to be in a stronger position. He gave evidence that he saw the applicant take the knife from his front right hand pocket of his trousers and conceal it behind his back. The applicant then ran at the deceased, who punched and kicked at him. The applicant lunged at him, stabbing him in the sternum. The applicant then turned to face De Cabral and shut the knife. As he walked past De Cabral’s car he nodded at him as if to say, ‘that sorted him out’. Neither the applicant or deceased were known to him. Soon after the incident De Cabral made a 999 emergency call to report a stabbing, the transcript of which was made available to the jury. Before the trial the prosecution had disclosed to the defence the fact that in June 1999 De Cabral had been arrested, suspected of involvement in a large scale drug dealing operation. Over 120,000 pounds sterling GBP in cash had been seized from him, but subsequently returned, the police being satisfied that he had an adequate explanation for it. He pleaded guilty to minor drugs possession offences and was conditionally discharged. Some time after the trial, De Cabral’s wife approached the applicant’s solicitors and gave a statement claiming that her husband had been involved in substantial cocaine dealing and that he was dishonest. It also transpired that a Mercedes car had been seized from De Cabral at the time of his arrest, which had been adapted to include a secret compartment to enable drugs to be concealed in the petrol tank. The modification had been noted by a customs officer four days before the witness attended an Identification Parade at which he picked out the applicant. The vehicle was returned to De Cabral after the trial. No application was made to the trial judge for an order relating to disclosure of the information about the vehicle and the judge was not aware of the information. Leading counsel for the applicant at trial did not consider that on the basis of the information provided to the defence he could justify suggesting to De Cabral that he had a motive to give untrue or embroidered evidence. Information disclosed which tended to show that De Cabral was suspected of involvement in the supply of Class A drugs was evidentially insufficient to form the basis of cross examination. A query raised with the prosecution about whether De Cabral had received unusual or lenient treatment was never answered. The applicant appealed against the conviction, initially on the grounds that the judge had been wrong to refuse the application to stay the proceedings on the basis of the adverse publicity and also that there had been excessive security, including jury protection, which would have reinforced any prejudices the jury did have. Later, the applicant submitted additional grounds relating to the fresh evidence from Mrs De Cabral (who gave evidence on the appeal) and the lack of disclosure by the prosecution about the Mercedes vehicle. By the time of the appeal De Cabral himself had been killed. The applicant was represented by new counsel on the appeal and leading trial counsel gave evidence as to how his approach to the case would have differed had he been aware of the additional information about De Cabral. On 10 October 2001 the Court of Appeal dismissed the appeal. It was noted that the trial judge’s summing up had not been criticised. The court found that the judge had been correct to refuse the application to stay the proceedings. The submissions made by both parties to the judge had amounted to the same in essence, namely was the court satisfied that the applicant could have a fair trial. A question of that nature was very much within the judge’s discretion. Whilst it was regrettable that the press had not exercised more self-restraint, it was noted that the applicant had fled the country following some of the publicity and it was not clear that there ever would be a prosecution. The court agreed that juries were well able to put media comment out of their minds and do proper justice to a case in the great majority of cases. The court said: “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 which 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.” The court proceeded on the basis that the evidence about the Mercedes car ought to have been disclosed, but nevertheless found that even had De Cabral’s credibility been duly impugned, the jury would not have come to a different conclusion, as the real issue was whether the applicant’s account of events was fanciful. De Cabral did not in any event appear to have been motivated in the way it was claimed for the applicant. He had in fact made favourable concessions to the applicant. There had been absolutely no justification for the applicant to take out and use a knife and it could not have been reasonable and proportional having regard to the nature of the fracas. The procedure to be applied when determining questions of disclosure was governed at the time by common law. The prosecution were under a duty to disclose any information which was ‘material’ and (i) raised a relevant or possibly relevant issue in the case, (ii) raised or possibly raised a new issue, or (iii) which held out a real, as opposed to fanciful, lead on (i) or (ii) (R. v. Keane [1994] 1 WLR 747). It was for the court to determine what it was proper to disclose if the prosecution sought to withhold material information. Previous convictions of a prosecution witness or other matters adverse to the character of the witness were matters which would prima facie fall to be disclosed (R. v. Ward [1993] 96 Cr.App.R. 23, and R. v. Winston Brown [1995] 1 Cr.App.R. 191). Jurors are required to swear an oath or affirmation that they will: “faithfully try the defendant and give a true verdict according to the evidence.” (Practice Direction (New Jury Oath) 80 Cr.App.R. 13) In a case of alleged bias, the test for the court to consider was set out in R. v. Gough ([1993] A.C. 646). Having ascertained the relevant circumstances, the court should ask itself whether there was a real danger of bias on the part of the relevant member of the tribunal, in the sense that he might unfairly regard with favour or disfavour the case of a party to the issue under consideration, a test confirmed in the case of Locabail (UK) Ltd. v. Bayfield Properties ([2000] 2 WLR 870). Where it is alleged that the particular circumstances mean that a defendant cannot have a fair trial, for example where there has been significant delay, the defendant must show on the balance of probabilities that he would suffer serious prejudice to the extent that no fair trial could be held (Attorney General’s Reference number 1 of 1990 [1992] 95 Cr.App.R. 296). In the case of R. v. West, (1996 2 Cr.App.R 374) the appellant claimed that she could not have a fair trial because of the publicity surrounding the case. The Lord Chief Justice said: “The question raised on behalf of the defence is whether a fair trial could be held after such intensive publicity adverse to the accused. In our view it could. To hold otherwise would mean that if allegations of murder are sufficiently horrendous so as inevitably to shock the nation, the accused cannot be tried. That would be absurd. Moreover, providing the judge effectively warns the jury to act only on the evidence given in court, there is no reason to suppose that they would do otherwise.”