michel_rPC2009
(Jersey) The defendant appealed, complaining that the number and character of the judge’s interventions in his trial for money laundering had made it unfair.
Held: The conviction was quashed and the case remitted for a decision as to rehearing. The judge had repeatedly intervened to ask questions damaging to the defence and which the prosecutor could not himself properly have asked. The judge interrupted the defendants evidence with some 273 questions, demonstrating scepticism and hostility, and ‘Regrettably too, on occasion the questioning was variously sarcastic, mocking and patronising.’
if that alone was insufficient: ‘There is . . a wider principle in play in these cases merely than the safety, in terms of the correctness, of the conviction. Put shortly, there comes a point when, however obviously guilty an accused person may appear to be, the Appeal Court reviewing his conviction cannot escape the conclusion that he has simply not been fairly tried: so far from the judge having umpired the contest, rather he has acted effectively as a second prosecutor. This wider principle is not in doubt.’
‘not merely is the accused in such a case deprived of ‘the opportunity of having his evidence considered by the jury in the way that he was entitled’. He is denied too the basic right underlying the adversarial system of trial, whether by jury or Jurats: that of having an impartial judge to see fair play in the conduct of the case against him. Under the common law system one lawyer makes the case against the accused, another his case in response, and a third holds the balance between them, ensuring that the case against the accused is properly and fairly advanced in accordance with the rules of evidence and procedure. ‘
Lord Phillips of Worth Matravers, Lord Rodger of Earlsferry, Baroness Hale of Richmond, Lord Brown of Eaton-under-Heywood and Lord Neuberger of Abbotsbury
[2009] UKPC 41, [2010] 1 WLR 879, [2010] 1 Cr App R 24, [2010] Lloyd’s Rep FC 81
Bailii, Times
Citing:
Cited – Regina v Hamilton CACD 9-Jun-1969
Lord Parker CJ discussed the duties of a judge in a criminal trial: ‘Of course it has been recognised always that it is wrong for a judge to descend into the arena and give the impression of acting as advocate . . Whether his interventions in any . .
Cited – Regina v Hulusi and Purvis CACD 1973
The defendant appealed against his conviction, complaining of the judge’s repeated hostile interventions. Lawton LJ said: ‘Time and time again the judge intervened, got an answer and then asked questions on that answer. The impression he must have . .
Cited – Snooks and Dowse v United Kingdom ECHR 2002
The court described the way that a Jersey Jurat was selected: ‘Jurats are . . elected by a special electoral college whose members include the bailiff, the jurats, advocates and solicitors of the Royal Court and members of Jersey’s legislature, the . .
Cited – Jones v National Coal Board CA 17-Apr-1957
The judicial function of dealing with cases justly in an adversarial system requires a first instance judge ‘to hear and determine the issues raised by the parties, not to conduct an investigation or examination on behalf of society at large.’ That . .
Cited – Regina v Perren CACD 2009
The defendant appealed against his conviction, saying that the judge had prejudiced his trial.
Held: The appeal was allowed. Toulson LJ emphasised ‘that it is for the prosecution to cross-examine, not for the judge’, and that ‘the right time . .
Cited – Randall v The Queen PC 16-Apr-2002
(Cayman Islands) The defendant complained that the conduct of prosecuting counsel at his trial had been such as to undermine the fairness of his trial. Counsel had repeatedly and disparagingly interrupted cross-examinations, and the summing up.
Cited – CG v The United Kingdom ECHR 19-Dec-2001
The applicant complained that her criminal trial had been conducted unfairly, insofar as the judge had interfered so heavily as to make it difficult for her to present her case. The English Court of Appeal had criticised the judge, but concluded . .
Cited – Regina v Nelson CACD 25-Jul-1996
Simon Brown LJ said: ‘Every defendant, we repeat, has the right to have his defence, whatever it may be, faithfully and accurately placed before the jury. But that is not to say that he is entitled to have it rehearsed blandly and uncritically in . .
Lists of cited by and citing cases may be incomplete.
Commonwealth, Criminal Practice
Updated: 01 November 2021; Ref: scu.377803