Mitchell, R v

In deciding whether a trial judge’s interventions have made a conviction unsafe, the court must assess the quality as well as the number of interventions and consider the trial as a whole. A judge may clarify evidence and protect a child witness from unfair or oppressive questioning. However, the judge must not appear to enter the arena, bolster a prosecution witness, disparage the defence, or impede the proper presentation of the defendant’s case.

Where inappropriate interventions are compounded by a summing-up that misdirects the jury or reinforces judicial hostility to the defence, the resulting unfairness may render the convictions unsafe.

The appellant was convicted at Luton Crown Court of two indecent assaults and rape alleged to have been committed against his niece when she was a child. He received a total sentence of eight years’ imprisonment.

He appealed by leave of the single judge. The appeal alleged that the trial judge’s interventions during the evidence, and directions in the summing-up, favoured the complainant and undermined the defence. The appeal also challenged the handling of medical evidence which showed repeated penetration but did not support the complainant’s account in the particular form advanced by the prosecution.

The central issue was whether the conduct of the trial and summing-up had rendered the convictions unsafe, and, if so, whether a retrial should be ordered.

1. Appeal allowed. Collins J, giving the judgment of the court, held that the convictions were unsafe and quashed them. A retrial was directed.

2. Applying Matthews 78 Cr. App R 23, the court held that the number of judicial interventions is not decisive. The question is whether, considering the adducing and testing of evidence, counsel’s submissions and the summing-up as a whole, there is a real possibility that unfairness or a denial of justice has made the verdict unsafe.

3. A judge was entitled to assist a child witness to understand questions, prevent oppressive or unnecessarily complex cross-examination, and clarify evidence. Those powers must be exercised without appearing to enter the arena or to favour the complainant. The defendant must be able to present and test the defence case fairly.

4. Some interventions were inappropriate. In particular, the judge interrupted proper questioning about the complainant’s denial of previous sexual intercourse, criticised defence counsel, and appeared to come to the complainant’s rescue. His treatment of evidence from the appellant’s son and wife risked conveying scepticism about the defence.

5. The summing-up did not cure those difficulties. Its treatment of the medical evidence was a serious misdirection: evidence of repeated penetration did not support the prosecution’s particular account, since it was inconsistent with the complainant’s denial of other sexual activity. The jury might instead have understood the direction as inviting it to attribute unspecified injury to the appellant. The unnecessary and inaccurate direction on consent added to the risk of unfairness.

6. Taking the interventions and summing-up together, the court concluded that they may have bolstered the complainant’s evidence, diminished the defence case and led the jury to think that the judge regarded the defence as lacking merit. Despite evidential difficulties, elapsed time and the appellant’s fourteen months in custody, the seriousness of the allegations and the public interest required a retrial.

• Court of Appeal (Criminal Division) — allowed the appeal against conviction, quashed all convictions and ordered a retrial: [2003] EWCA Crim 907.
• Luton Crown Court — convicted the appellant on 29 October 2001 of two counts of indecent assault and one count of rape, and imposed a total sentence of eight years’ imprisonment on 19 December 2001.