Neutral Citation Number: [2013] EWCA Crim 510
Case No. 2010/04362/A4
IN THE COURT OF APPEAL
CRIMINAL  DIVISION

Royal Courts of Justice
The Strand
London
WC2A 2LL

Date: Tuesday  12  March  2013

B e f o r e:

THE LORD CHIEF JUSTICE OF ENGLAND AND WALES
(Lord Judge)

MR  JUSTICE  MACKAY

and

MR  JUSTICE  SWEENEY
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R E G I N A

- v -

KENNETH  JAMES  NOYE
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Mr R Chand appeared on behalf of the Applicant
Mr M Ellison QC appeared on behalf of the Crown
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J U D G M E N T

THE LORD CHIEF JUSTICE:  

1.  On 14 April 2000 in the Crown Court at Maidstone before Latham J (as he then was) and a jury, Kenneth Noye, a professional criminal, was convicted of the murder of Stephen Cameron.  He was sentenced to life imprisonment.  In accordance with the practice then current, the minimum term of custody recommended by the judge was sixteen years.  He now renews his application for leave to appeal against the decision of Simon J on 25 June 2010 (19 months out of time) when Simon J exercised the jurisdiction in relation to the setting of the minimum term pursuant to Schedule 22, paragraph 3 of the Criminal Justice Act 2003, in effect leaving the recommendation made by Latham J unchanged and setting the minimum term accordingly.  The application for leave to appeal against this decision was refused by Rafferty J (as she then was) in October 2010.  Following her refusal of leave to appeal against Simon J's decision, and before the application for leave was renewed, this court considered and dismissed an appeal against conviction following a reference by the Criminal Cases Review Commission when, as far as we can see (and so far as I can recollect) no attempt was made at the time to address the sentencing issue.

2.  The single issue which now arises is whether the 16 year minimum term should be subject to a reduction to reflect the fact that the applicant was detained in custody in Spain for a period of nine months before he was extradited to this jurisdiction.  We must put this issue into its factual context.  The facts are summarised by Simon J in his judgment and we gratefully adopt it for present purposes. 

3.  A number of matters were in dispute during the course of the original trial which were not resolved by the verdict of the jury.  Nevertheless, a fair, if incomplete, summary can be made.

4.  The applicant was 53 years old at the date of his conviction in 2000.  He was not a man of good character.  His only previous custodial sentence had been a term of imprisonment for fourteen years following his conviction on a charge of conspiracy to handle stolen bullion from the notorious Brinks-Mat robbery.  The was the basis on which we described him as a professional criminal.  That sentence had been passed at the Central Criminal Court in July 1986.

5.  In due course we shall come to the applicant's previous experience of the consequences of using a knife: in 1985 he had stabbed Detective Constable John Fordham to death in the grounds of his home.  He pleaded self-defence at his trial and had been acquitted.

6.  The murder of Stephen Cameron arose out of an altercation following an incident close to the junction of the M25 motorway near Swanley at about 1.20pm on 19 May 1996.  The applicant was driving his Land Rover Discovery off the M25 onto the roundabout at the junction of the M25 and the A20.  Stephen Cameron was a passenger in a 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 it and at a slight angle.  The applicant and Stephen Cameron each left the vehicle in which he was travelling.  They confronted each other.  What occurred next was seen by a number of witnesses who gave evidence, although there was conflicting evidence about the precise sequence of events.  However, it is clear 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 the knife out towards him.  Stephen Cameron seems to have thought that he was about to be attacked, kicked out at the knife and then tried to get hold of the applicant.

7.  In his report to the Home Secretary Latham J described what happened next:

		".... at this stage 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 [wound] 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."

8.  The issue at trial was whether the prosecution had disproved the defence of self-defence asserted by and on behalf of the applicant.  In his report Latham J expressed his view of what had occurred:

		"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."

That previous experience was the occasion when the applicant had stabbed Detective Constable Fordham.

9.  Within a very short time of the fatal injury sustained by Mr Cameron, the applicant had arranged for the Discovery vehicle he had been driving to be destroyed and crushed, for a similar vehicle to be purchased with a false name and address, and parked up at his home so as to give a wholly false impression of the vehicle that he was driving at the time of the killing.  He left this country by private helicopter on 20 May (the day after the killing) from a private address near Bristol.  He flew to a golf course in Normandy, and on the following day he flew by private jet from Paris to Madrid.

10.  When he was arrested in Spain he was in possession of false passport, driving licence and insurance, all in the false name of Alan Green.  He contested his extradition from Spain.  Following an order for extradition made in February 1999, he appealed against the order. The appeal was eventually unsuccessful.  It is not insignificant that when he gave evidence at his trial the applicant told the jury that he had left for Spain intending never to return to the United Kingdom because he had as much money as he wanted in Spain.  Moreover, although he had asserted self-defence as part of his defence at the trial in this country before Latham J, during the course of the extradition proceedings in Spain he had adamantly maintained a denial that he had any involvement whatever in Mr Cameron's death.

11.  The single issue which now arises is whether the sixteen year minimum term should be subject to a reduction to reflect the fact that the applicant was detained in custody in Spain for a nine month period before he was extradited.  The renewed grounds can therefore be briefly summarised.  There is no argument about the basic structure of the minimum term.  The complaint is that Simon J's approach to the issue was wrong; he ought to have made some allowance (even if not necessarily for the full nine month period) for the time the applicant was in custody.

12.  There is evidence before us from the lawyer in Spain who dealt with the extradition proceedings on behalf of the applicant.  It reveals that the applicant was arrested in Spain on 28 August 1998. By then he had been deliberately at large abroad for well over two years. As we have already indicated, he was sufficiently well funded not to need to return to this country and he had no intention of doing so.  According to this evidence, the process of extradition, even if it had been uncontested, would have taken something like six months.  We have our reservations about the accuracy of that observation, but it makes no difference to our conclusion.

13.  At the date of the applicant's conviction and the original sentence, any possible allowances to be made in relation to the assessment of the custodial term for an extradited prisoner was governed by section 47 of the Criminal Justice Act 1991.  So far as relevant it states:

		"(1)  A short-term or long-term prisoner is an extradited prisoner for the purposes of this section if --

			(a)	he was tried for the offence in respect of which his sentence was imposed --

				(i)	after having been extradited to the United Kingdom; and

				(ii)	without having first been restored or had an opportunity of leaving the United Kingdom; and

			(b)	he was for any period kept in custody while awaiting his extradition to the United Kingdom as mentioned in paragraph (a) above.

		(2)  If, in the case of an extradited prisoner, the court by which he was sentenced so ordered, section 67 of the 1967 Act (computation of sentences of imprisonment) shall have effect in relation to him as if a period specified in the order were a relevant period for the purposes of that section.

		(3)  The period that may be so specified is such period as in the opinion of the court is just in all the circumstances and does not exceed the period of custody mentioned in subsection (1)(b) above."

14.  The effect of this legislation was summarised in the then contemporary edition of Archbold (Archbold 2000) at paragraph 5-121(b):

		"In making orders under this section courts will presumably be guided by earlier decisions which indicate that an offender who has deliberately prolonged the period in custody abroad should not be given credit for the full period."

A number of authorities were cited, and we shall refer to some of them.

15.  In R v Scalise and Rachel 7 Cr App R(S) 395 this court made clear that while time spent in custody overseas pending extradition should normally be taken into account when sentencing, where the defendants had deliberately resisted extradition to the fullest extent and prolonged the period in custody abroad while awaiting extradition, it was not necessary for the sentence to be reduced to make allowance for that fact.

16.  The same principle was underlined in R v Peffer (1992) 13 Cr App R(S) 150.  The court was required to consider the period spent in custody, and then decide what, if any, reduction should be made.  All relevant matters had to be considered, including the reasons why the appellant went and stayed abroad, and whether there was any resistance to the extradition proceedings.  It was also an important point for consideration that it should not be thought by those who flee this country in the hope of evading justice that if they are caught and remain in custody in a foreign country for a period of time, that that period of time will necessarily be considered as though it had been spent in this country serving the sentence imposed by its courts.  Given that the decisions involved the exercise of discretion on the basis of individual facts, we note, without reciting, R v Stone (1988) 10 Cr App R(S) 322, R v De Simone [2000] 2 Cr App R(S) 332, and R v Howard [1996] 2 Cr App R(S) 416, all of which illustrate that different circumstances will bear on the way in which this discretion falls to be exercised, whether some, or all, or any of the period in foreign custody may be set against and allowed for in the sentencing decision in this country.

17.  Under the current regime following the coming into force of the Criminal Justice Act 2003, the relevant provisions for crediting time served by fixed-term prisoners are sections 240 and 243.  These allow for credit to be given to an extradited prisoner for time served abroad awaiting extradition, provided (by section 240(4)) that any period will not apply to the extent that "it is in the opinion of the court just in all the circumstances not to give the appropriate direction".  These provisions -- and we are indebted to Mr Ellison QC for drawing our attention to this -- do not apply expressly to mandatory life sentences.  But section 269(3) of the 2003 Act provides that the minimum term in such a case should take into account the effect of any direction that would have been made under section 240, had the sentence been a fixed-term sentence. 

18.  The court is vested with a discretion, and continues to be so vested, to refuse to make any discount from the minimum term where the defendant has been held in custody abroad pending extradition to this country.  Even if the first response now suggested by the statutory language in section 240(4) is different from the original language in section 47 of the 1991 Act, and the first response is that the court will normally allow some discount, it must nevertheless decide whether it would be just to do so.  In the context of the differing legislative regimes, the question whether to make any such allowance was examined by Latham J when making his recommendation about the appropriate length of sentence to be served by the applicant.  That is clear from the letter that he wrote dated 3 May 2000, in which he said in his observations to the then Lord Chief Justice:

		"In view of the fact that the greater part of that period, if not all of it, was the result of his seeking to avoid extradition, I see no justification for altering my recommendation in any way."

19.  The issue was then considered by Simon J when setting the minimum term.  The single judge considered it again when the application for leave to appeal against Simon J's decision was mounted.  As it seems to us, if this discretion may be exercised in such a way as to refuse to make any allowance for the time spent in custody abroad pending extradition -- and plainly the statutory language underlines that it can -- it would fall to be exercised where a defendant deliberately fled this country in a well-organised, sophisticated plan to evade justice here; successfully evaded justice for some time by staying abroad; when eventually brought before the courts abroad with a view to extradition, contested the extradition proceedings every inch of the way, and, what is more, put up a totally false story in order to evade extradition followed by as we have indicated, an unsuccessful appeal against the order.

20.  We can see no reason whatever for interfering with the approach taken either by Latham J in 2000 or, in the light of current statutory provision, its adoption by Simon J.  Indeed, we agree with it.  This renewed application for leave to appeal many months out of time is wholly without merit and is refused.

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