This Time The Fire?

By Satish Sekar © Satish Sekar (March 12th 2011)

Poisoned Chalice

The Lord Chief Justice, Lord [Igor] Judge, reserved judgement yesterday on the second appeal of Kenneth Noye. Clare Montgomery QC argued that crucial witnesses Alan Decabral, who was shot dead in 2000, and disgraced pathologist Michael Heath must now be seen as so unreliable that Noye’s conviction for the 1995 ‘road-rage’ killing of Stephen Cameron that it should be declared unsafe.

Montgomery told the judges that Heath had gone beyond the limits of forensic pathology in his evidence. Forensic pathologist Dr Nat Cary agreed, explaining that Heath’s methods for determining whether ‘considerable force’ had been used were unreliable. The knife probably did go in to the hilt, but that alone is not a good measure of force.

Nevertheless, Heath was now so discredited that following Cary’s opinion, which supported that of Peter Jerreat, the Criminal Cases Review Commission (CCRC) referred the conviction back for appeal. Montgomery argued that Heath’s testimony was based on unscientific conclusions, and had undercut Noye’s claims of self-defence. She detailed evidence that supported his claim that the second stage of the confrontation on the slip road to Swanley off the M25, amounted to self-defence.

Self-Defence

Evidence showed that Noye had got the worst of the fight against Cameron and retreated, but brandished a knife. Montgomery went through the accounts of various eyewitnesses including Cameron’s partner Danielle Cable to show that Cameron came after Noye and that in this critical phase, even when brandishing the knife, Noye’s actions were consistent with self-defence.

Noye fled to Spain after the incident, but was extradited in 1998 after Cable was taken to view him and identified him. Noye was convicted two years later, when his claim of self-defence was rejected by the jury. Montgomery claimed that Decabral and Heath were instrumental in that verdict and that their evidence can no longer be trusted.

Decabral, the driver of a Rolls Royce, had a criminal past. His wife said he was a drug-dealer with debts. A previous appeal had established that this evidence affected his credibility, but not the safety of the conviction. Decabral had claimed that he saw Noye conceal the knife and lunge at Cameron, and say, ‘That sorted him out; you got yours mate.’ Montgomery pointed out that the other witnesses did not see this and that the injuries suffered by Cameron were consistent with Noye’s account.

Dr Cary explained that the injuries were likely to have been caused through a different mechanism of the confrontation than that favoured by the now thoroughly discredited Heath.

Discredited

Cary disagreed with Heath’s term ‘considerable force.’ Even accepting that the knife may have gone in to the hilt Cary says that is the wrong measure of force and that the damage done, especially to bone is a better indicator. Mark Ellison QC claimed that the Crown’s case did not depend on either witness and detailed the evidence of other witnesses that contradicted Noye’s account and suggested that Cary had a habit of countering Heath, which Cary denied.

Almost five years ago Heath faced a Home Office Forensic Pathology Advisory Board Tribunal due to complaints by colleagues over his methods and evidence in two cases – Kenneth Fraser and Steven Puaca. Despite his protests he was found wanting and resigned from the Home Office Register of Home Office Forensic Pathologists after losing the hearing.

Heath still conducts post-mortem examinations for Coroners, but is no longer an accredited forensic pathologist. The General Medical Council concluded that there was no need to punish him further by removing his licence to practice. Noye’s is only the second case that the CCRC referred back for appeal, based on his pathology evidence. Heath had been found to be dogmatic in his conclusions and reached conclusions outside the limits of forensic pathology in the tribunal in relation to Puaca. Mushtaq Ahmed made the same complaints to no avail last December.

Montgomery argued that the evidence given by both Decabral and Heath would have affected the way the jury viewed Noye’s claims of self-defence and that both are now so tainted that conviction is unsafe. Judgement was reserved in Noye’s appeal.