Singh LJ gave the following helpful summary of fundamental principles as to the extent to which the judge may properly intervene during the examination and cross-examination of witnesses:
‘First, the tribunal of fact in a criminal trial in the Crown Court is the jury and no one else.
Secondly, ours is an adversarial system, not an inquisitorial one. The role of the judge is therefore to act as a neutral umpire, to ensure a fair trial between the prosecution and the defence. The judge should not enter the arena so as to appear to be taking sides. . .
Thirdly, there is nothing wrong in principle with a trial judge asking questions of witnesses in order to assist the jury. That indeed is one of the fundamental functions of the trial judge. For example, this may be done to clarify a point that may arise on the face of a document or in an immediate response to an answer that has just been given by a witness. Otherwise, it may often be preferable for the judge to wait until the end of the evidence given by that witness, or at least the end of the evidence-in-chief. Often things that are not clear may become clearer once the evidence-in-chief has been completed.
Fourthly, since ours is an adversarial system it is for the prosecution to prove its case and it will have the opportunity to cross-examine the defendant if he or she chooses to give evidence. It will often be unnecessary for the judge to ask any questions during the defendant’s evidence-in-chief because it should be for the prosecution to cross-examine the defendant. It is certainly not the role of the judge to cross-examine the defendant.
Fifthly, it is particularly important that the defendant should have the opportunity to give his or her account to the jury in the way that he or she would like that evidence to come out, elicited through questions from their own advocate. If there were constant interruptions of the evidence-in-chief there is a risk that a defendant will not be able to give his or her account fully and in the manner they would wish to put before the jury.
Sixthly, this is not affected by the fact that the defence account may appear to be implausible or even fanciful. If it is truly incredible, the prosecution can reasonably be expected to expose its deficiencies in cross-examination and the jury will see through it. If anything, unwarranted interventions by a judge may simply prove to be counterproductive.’
[2018] EWCA Crim 1081
Bailii
England and Wales
Cited by:
Cited – Marchant, Regina v CACD 23-Nov-2018
The defendant appealed his conviction for rape saying that the judge had improperly intervened to prevent him presenting his case properly.
Held: The appeal was dismissed. Although the judge had overstepped the proper boundaries in his . .
Lists of cited by and citing cases may be incomplete.
Criminal Practice
Updated: 14 January 2022; Ref: scu.630986