FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 4491/02 by Kenneth James NOYE against the United Kingdom

The European Court of Human Rights (Fourth Section) , sitting on 21 January 200 3 as a Chamber composed of

Mr M. Pellonpää , President , Sir Nicolas Bratza , Mr A. Pastor Ridruejo , Mrs V. Strážnická , Mr R. Maruste , Mr S. Pavlovschi , Mr L. Garlicki , judges , and Ms F. Elens-Passos , Deputy Section Registrar ,

     Having regard to the above application lodged on 18 January 2001,

Having deliberated, decides as follows:

THE FACTS

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.

A. The circumstances of the case

The facts of the case, as submitted by the applicant and as revealed by the supporting documents , may be summarised as follows.

1. Background

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.

2. 1996 events and later trial

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.

3. The applicant’s appeal

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.

B. Relevant domestic law and practice

1. Non-disclosure

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).

2. Adverse publicity

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.”

COMPLAINTS

1. The applicant complains under Article 6 §§ 1 and 3 (b) and (d) that the failure to disclose information about De Cabral , which tended to undermine the prosecution case, was such as to render the proceedings as a whole unfair. The failure to disclose the full extent of the available information prevented the defence from mounting an effective cross-examination of the witness. Further, the failure to disclose appeared to be a deliberate and unlawful decision by the prosecution. The applicant was entitled to a first instance hearing which met the requirements of Article 6 and in particular at which the live prosecution evidence could be fully and effectively challenged. The applicant relies on Findlay v. the United Kingdom ( judgment of 25 February 1997, Reports of Judgments and Decisions 1997-I).

He submits that the appeal proceedings had failed to remedy the defect. The appeal court had relied on transcripts and submissions by counsel and had not investigated the circumstances in which the non-disclosure had taken place. It was not possible for the appeal court to assess the impact the information would have had on the evidence and the court may even have been influenced by the jury’s verdict.

2. The applicant complains under Article 6 § 1 of the Convention that he was not tried by an impartial tribunal because of the nature, extent, inaccuracy and unfairness of the publicity about him prior to the trial. In light of the concession by the prosecution and the trial judge that one or more of the jurors may have retained sufficient prejudice from the publicity as to let it affect their judgement and the judge’s concerns that the earlier verdict had been widely suggested to be perverse, the judge ought to have found that a fair trial was not possible. No direction could protect against the conscious or unconscious prejudice of a juror in those circumstances. The risk of jury bias was accentuated by the police protection of jurors, secretly arranged during the trial.

There were objective grounds to fear that one or more of the jurors was actually biased against the applicant and such legitimate doubts about the impartiality of the court were not sufficiently addressed. Furthermore, the reasoning of the appeal court when upholding the judge’s ruling (that defendants whose conduct was ‘sensational’ could not claim it was impossible for them to have a fair trial) was flawed. It had been acknowledged that the publicity to which the applicant had been subject was for the most part false and sensationalised.

THE LAW

The applicant has complained that he was denied a fair trial because of material non-disclosure by the prosecution and because of adverse publicity about him prior to trial. He relies on Article 6 §§ 1 and 3 (b) and (d) of the Convention, which provide as relevant:

“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law.

3. Everyone charged with a criminal offence has the following minimum rights:

(b) ... to have adequate time and facilities for the preparation of his defence;

(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him.”

A. Non-disclosure

The applicant complains that information material to the case was improperly and deliberately withheld by the prosecution. The material tended to show that De Cabral may have been treated unusually leniently by police and may have had a motive to at least embroider his evidence before the jury. No application was made to the trial judge about it. The failure to disclose all the information about De Cabral meant that the applicant was prevented from cross-examining the witness as effectively as he might and the Court of Appeal was not able to adequately remedy the defect. The proceedings overall were therefore unfair.

The Court recalls that the guarantees in paragraph 3 of Article 6 are specific aspects of the right to a fair trial set out in paragraph 1 (see Edwards v. the United Kingdom , judgment of 16 December 1992, Series A no. 247-B, § 33). In the circumstances of this case it is unnecessary to examine the applicant’s allegations separately from the standpoint of paragraph 3 (b) and (d), since they amount to a complaint that the applicant did not receive a fair trial. The question is whether the proceedings in their entirety were fair ( ibid ., § 34). Article 6 § 1 requires that the prosecution authorities should disclose to the defence all material evidence in their possession for or against the accused ( ibid ., § 36).

The Court notes that as a general rule, it is for the national courts to assess the evidence before them (see the Edwards judgment cited above, § 34). The Court’s task is to ascertain whether the decision-making procedure applied in each case complied, as far as possible, with the requirements of adversarial proceedings and equality of arms and incorporated adequate safeguards to protect the interests of the accused.

Where information has been withheld from the trial judge, it is necessary to consider whether the procedure before the appeal court was sufficient to remedy any unfairness caused by the absence of any scrutiny of the withheld information by the trial judge. Unlike the latter, who sees the witnesses give their testimony and is fully versed in all the evidence and issues in the case, the judges in the Court of Appeal are dependent for their understanding of the possible relevance of the undisclosed material on transcripts of the Crown Court hearings and counsel’s submissions. In addition, the first instance judge would have been in a position to monitor the need for disclosure throughout the trial, assessing the importance of the undisclosed evidence at a stage when it might have been possible through cross-examination seriously to undermine the credibility of key witnesses. In contrast, the Court of Appeal is obliged to carry out its appraisal ex post facto and may even, to a certain extent, be unconsciously influenced by the jury’s verdict of guilty into underestimating the significance of undisclosed evidence ( Rowe and Davis v. the United Kingdom [GC], no. 28901/95, §§ 62-65, ECHR 2000-II).

However the observations of the Court in Rowe and Davis concerned the situation in which the material had not been disclosed to the defence by the time of the appeal or during the appeal. In the case of Edwards , (cited above), the appeal proceedings were found to be adequate to remedy the defects at first instance, as the defence had by that stage received most of the missing information and the Court of Appeal was able to consider the impact of the new material on the safety of the conviction in the light of detailed and informed argument from the defence. In the applicant’s case, as in Edwards , the material in question had been disclosed by the time the appeal was heard. The applicant had the benefit of leading counsel to present the appeal, as well as, unusually, evidence from trial counsel as to how he would have presented the case differently with the benefit of the material which had not been disclosed. In addition the court heard new evidence from Mrs De Cabral , to the effect that her husband had been a significant drugs dealer and that aspects of his evidence had been untruthful.

Furthermore, in the applicant’s case, the Court of Appeal assumed, for the purposes of the appeal, that the non-disclosure had been wrongful, and accepted Mrs De Cabral’s evidence. It was not possible for the defence to cross-examine De Cabral himself, who had died meanwhile, but one consequence of that was that there was nothing to rebut the evidence of Mrs De Cabral , and her motive for coming forward to assist the applicant appears not to have been explored. It is difficult to see how evidence from De Cabral himself would have assisted the applicant on appeal. Even had he conceded that his evidence was not wholly truthful (which seems unlikely), that would not have affected the court’s decision, which was based on the account of the applicant himself.

The applicant relies on the case of Findlay v. the United Kingdom ( judgment of 25 February 1997, Reports 1997-I, § 79) to submit that a defect in the fairness of the proceedings at first instance is not capable of remedy by the appeal courts. The Court considers this submission to be misconceived. The Court found that Findlay was entitled to a first instance tribunal which fully met the requirements of Article 6 § 1 and had been deprived of such because the tribunal had not been impartial. That defect was not capable of remedy on appeal. That does not alter the fact that certain defects in first instance proceedings will be capable of remedy on appeal. The proceedings as a whole must be considered (see Edwards , cited above).

The Court considers that the applicant had every opportunity to persuade the appeal court that the conviction was unsafe. The appeal court heard full argument and gave a reasoned decision. The Court therefore finds that the appeal procedure was sufficient to remedy the shortcoming at first instance in this case and the complaint must be rejected as manifestly ill founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

B. Adverse publicity

The applicant submits that the press coverage about him arising from earlier proceedings when he had been acquitted of the murder of a police officer but convicted of handling stolen gold bullion from a notorious robbery made it impossible for him to have a fair trial. Soon after Cameron’s death it became known that the police wanted to question the applicant and also that his whereabouts were unknown. There was extensive coverage about the applicant during 1996 and 1997, but after his arrest in 1998 it tailed off somewhat.

The Court recalls that it is of fundamental importance in a democratic society that the courts inspire confidence in the public and above all, as far as criminal proceedings are concerned, in the accused. To that end it has constantly stressed that a tribunal, including a jury, must be impartial from a subjective as well as an objective point of view. Personal impartiality of a juror is to be presumed unless there is proof to the contrary (see Sander v. the United Kingdom, no. 34129/96, § 22, ECHR 2000-V).

The applicant argues that in this case “there were objective grounds to fear that one or more of the jurors ... were actually biased against him”. There was in fact no evidence at all of the views of any particular juror, i.e. actual or subjective bias, which is what was under consideration in the Sander case (cited above). The applicant submits however that the prosecution and court’s concession that one or more jurors may have been affected by adverse publicity meant that the court could not be satisfied that he would be tried by an independent and impartial tribunal and that accordingly the proceedings should be stayed.

The Court recalls that it is also necessary to consider whether in the circumstances there were sufficient guarantees to exclude any objectively justified or legitimate doubts as to the impartiality of the court. Although the standpoint of the accused is important in this connection, it cannot be decisive ( Sander , cited above, and Gregory v. the United Kingdom, judgment of 25 February 1997, Reports 1997-I). The judge ruled in this case that the concerns the applicant had about the effect of the adverse publicity on the jurors could be adequately dealt with by careful directions to the jury. He noted that the jury, following directions, could be trusted to approach the facts as they would be established, bearing in mind that most of the publicity had been some time in the past and the detail was likely to have been forgotten.

The judge concluded, summarising the prosecution submissions with which he agreed:

“... whilst there may be the 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 is not the test that I should apply ... I should ask the question ... whether I think that a fair trial is impossible.”

He ruled that it was not. While there is no detail in the application about the directions actually given by the judge to the jury at the trial concerning adverse press coverage, the Court notes that no complaint or criticism was made by the applicant on his appeal of what was said.

Furthermore, the Court of Appeal found that the judge had been correct in his ruling and considered that juries were well able to put prejudicial material out of their minds. It noted that the judge had considered whether it was possible for the applicant to have a fair trial and that such a question was very much a matter for the trial judge’s discretion. The Court is of the view that both the judge at first instance and the appeal court carefully considered whether the applicant was able to have a fair trial. The domestic courts were best placed to make this assessment. Although the applicant submits that no direction by the trial judge would have been capable of remedying the situation, the Court considers that in the circumstances of this case the judge could properly assume that the jury would follow the directions he did give. Accordingly the Court finds that the applicant did have a fair trial in this regard and his complaint must be rejected as manifestly ill founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Françoise Elens-Passos Matti Pellonp ää Deputy Registrar President