Neutral Citation Number: [2010] EWHC 1468 (QB)
Royal Courts of Justice
Strand, London, WC2A 2LL
(sitting at Newcastle-upon-Tyne Combined Court Centre)
Before:
The Hon Mr Justice Simon
Between:
Regina
and
Kenneth James Noye
Judgment
Mr Justice Simon:
Background
On 14 April 2000 the applicant, Kenneth James Noye, was convicted of the Murder of Stephen Cameron following a trial before Lord Justice Latham and Jury, and was sentenced to a term of life imprisonment.
In accordance with the practice at the time, and after receiving a recommendation by the trial Judge and the Lord Chief Justice, the Home Secretary set a minimum term before the applicant could be considered for release by the Parole Board. The minimum period notified to the applicant was a term of 16 years.
This is the application for the setting of the minimum term for his Life Sentence, pursuant to Schedule 22 Paragraph 3 of the Criminal Justice Act 2003.
A number of matters were in dispute at trial and were not resolved by the verdict. It follows that any summary of the facts is incomplete.
The murder was committed as a result of an altercation following an incident close to the junction of the M25 motorway near Swanley at about 1.20 pm in the afternoon of 19 May 1996. The applicant was driving his Land Rover Discovery off the M25 onto the roundabout at the junction of the M25 and A20. Stephen Cameron was a passenger in a red van driven by his girlfriend Danielle Cable. As both vehicles approached the lights at the junction of the roundabout and the slip road coming up from the A20 for traffic travelling in an Easterly direction, the lights turned red. The applicant's vehicle cut across the van and stopped in front of the van and at a slight angle to it.
The applicant and Stephen Cameron both got out and confronted each other. What occurred next was seen by a number of witnesses who gave evidence at trial. Much of the evidence was conflicting as to what precisely occurred.
What is clear is that there was a fight during which the applicant was driven back towards his car. A number of witnesses then saw him go to the front nearside of the car, where he took a knife from his pocket. He then went to the back of his car where Stephen Cameron was standing and held out the knife towards him. Stephen Cameron seems to have thought he was about to be attacked, kicked out at the knife and then tried to get hold of the applicant.
The trial Judge recorded what occurred next in his report to the Home Secretary dated 19 April 2000,
It was at this stage that the defendant stabbed the victim twice. One wound went from the left side of the victim's chest at 45% inwards and upwards towards the right slicing across the liver. This was not the fatal blow. The other went in at 45% inwards and upwards from the right side of the chest towards the left and entered the heart. This was the fatal wound. The stab wounds were respectively 18cm and 16cm in depth according to the prosecution's main pathologist.
The primary issue at trial was whether the Prosecution had proved that the Applicant had not acted on lawful self-defence. As the Court of Appeal (Criminal Division) later noted, R v. Noye [2001] EWCA Crim 2229 at [34] there was 'ample evidence to suggest that Mr Cameron was the aggressor. ' By their verdict the majority of Jury must have been sure that the use of the knife was neither a reasonable nor a proportionate response to the threat.
The applicant immediately left the scene in the Discovery, and made arrangements during the course of the afternoon to dispose of the car and the knife and to escape abroad. He remained abroad until his arrest and subsequent extradition from Spain.
The Trial Judge expressed his overall view of what had occurred in his report to the Home Secretary.
I have little doubt that at the beginning of the incident both the defendant and the victim were equally prepared for a fight. The defendant was angry because, as I read the evidence, he had been baulked. The victim was prepared to defend his girlfriend. Both the defendant and the victim had short tempers. The defendant only resorted to the knife when he got the worst of the fight. As I have already said, only he will know whether in the first instance he intended simply to intimidate and therefore depart with the trappings of victory, or whether he intended to use the knife from the moment that he took it out. There is no doubt that he ultimately used the knife deliberately twice in circumstances in which he must have known from his own previous experience that there was, at the very least, real risk of fatal injury.
In expressing his conclusion about the tariff (the period to be served in custody in order to meet the requirements of retribution and general deterrence) the Judge wrote,
In view of the fact that the defendant was carrying a knife and was prepared to use it despite his previous experience of the possible consequences, 16 years. I have taken account of the fact that this was an unpremeditated incident in which he was himself subjected to sustained attack, even if he had started the fighting, by a younger and fitter man.
The reference to the Applicant's previous experience of the consequences of using a knife was to an incident in 1985, when he had stabbed Detective Constable John Fordham to death in the grounds of his home. He had pleaded self-defence at his trial for the murder of DC Fordham, and had been acquitted.
The Lord Chief Justice agreed that the tariff should be set at 16 years, and this tariff was notified to the Applicant on behalf of the Home Secretary in a memorandum dated 10 June 2002.
It had been submitted by the applicant that the minimum term should take into account the fact that the Applicant had been held on remand in Spain for a period of
approximately 9 months prior to his extradition in conditions which were said to be 'harsher than those found in England. '
The view of the Trial Judge was that no discount should be given for this period since it was the consequence of his unsuccessful attempts to resist extradition.
The Applicant was aged 53 at the time of the conviction. He was not a man of good character; but his only previous custodial sentence had been a term of imprisonment for 14 years following his conviction on a charge of Conspiracy to handle stolen bullion from the Brinks-Mat robbery. That sentence had been passed at the Central Criminal Court in July 1986. The death of PC Fordham had occurred while that officer had been carrying out surveillance operations in the course of police investigations into the robbery.
Representations and Documents
I have received the following submissions:
Submissions sent under cover of a letter from the Applicant's solicitors dated 19 May 2006. These included a report from a forensic pathologist (Dr Nathaniel Cary) dated 21 January 2005, a report from a Clinical Psychologist (Dr Arthur Anderson) dated 17 July 2003 and the Applicant's own submissions dated December 2005.
Further written submissions from the Applicant dated 19 July 2007.
A short response on behalf from the Crown Prosecution Service dated November 2008
The Crown Prosecution Service submits simply that the notified term of 16 years should stand for the reasons set out by the Trial Judge.
The Applicant raises two points which cannot be taken into consideration on this application.
First, the report of Dr Cary is critical of the evidence of the pathologist called by the Prosecution and his conclusion that there were two distinct stabs causing the injuries. As I understand his report Dr Cary postulates a single 'overall action' causing double penetration of Stephen Cameron's body. The Applicant attaches material in support of the contention that the Prosecution Expert has subsequently been shown to have been fallible in other cases. This evidence cannot form part of the factual basis for the present review since, unlike the evidence given to the Jury, it is entirely untested.
Secondly, the report of Dr Anderson is to the effect that the Applicant was suffering from symptoms of depression and PTSD while at the Secure Unit at Whitemoor Prison in 2003. There are several difficulties with this evidence. First, in so far as there is a diagnosis, Dr Anderson (who is a Clinical Psychologist and not a Doctor) does not appear to be qualified to make the diagnosis. Secondly, it results from a single interview in July 2003. Thirdly and most importantly so far as sentence is concerned, the physical and mental well-being of prisoners is primarily for the Prison Service.
The basis of the Applicant's own representations is that his conduct has been mischaracterised. In short, he was being attacked by Stephen Cameron, who was acting aggressively when he came towards the Applicant at a point when he was standing by his Discovery. The Applicant was not a violent man, whereas the victim was a young man who was physically strong and not afraid of a fight. The Applicant submits that there are a number of mitigating features: the degree of provocation, the lack of premeditation and an intent to kill. In conclusion he submits that the appropriate tariff is a term of 10 years, and that he should have credit for the time in custody in Spain. He had resisted extradition because of fears that he would not get a fair trial in view of his history.
Discussion and Conclusion
The Court's task is to decide whether the early release provisions under the 2003 Act should apply to the applicant after a shorter period than 16 years. In considering this application I must have regard to the seriousness of the offence; and, in doing so, to the general principles set out in schedule 21 of the Act and to the recommendations made by the trial Judge and in particular the Lord Chief Justice, see R v. Caines and Roberts [2006] EWCA Crim 2915 at [38-39],
If the minimum term were to be fixed by reference exclusively to the provisions of schedule 21 then the appropriate starting point for determining the minimum term would have been 15 years.
There were three mitigating factors as set out in paragraph 11 of schedule 21. First, there was no clear intention to kill rather than cause serious bodily harm; secondly, there was a lack of premeditation; and thirdly there was an element of self-defence, falling short of a defence to the charge. None of these matters was overlooked by the Trial Judge.
There were no statutory aggravating features as set out in paragraph 10 of schedule 21. However this is not an exhaustive list. The carrying of a knife which the applicant was prepared to use in a very public place against an unarmed man, knowing well of the potential fatal consequences in using a knife was a significant aggravating factor, as was the sophistication in the destruction of evidence and avoiding apprehension. Another relevant consideration was the Applicant's previous conviction for the serious conspiracy offence.
Taking these matters into account, as well as the views of both the trial Judge and the Lord Chief Justice, I have concluded on this review that there is no proper justification for reducing the minimum term; and for this reason I set the period which must be served before the Applicant can be considered for parole at 16 years. The period during which the applicant was held in custody in this country (11 months and 24 days) must be deducted from this period.