Lashley, R v

A conviction may be unsafe where a trial judge’s repeated and unjustified personal criticism of defence counsel’s ability and integrity creates an appearance of animosity, interferes materially with due process, and reasonably damages the defendant’s confidence in the administration of justice.

A judge may robustly control proceedings, and counsel should not reopen an argument after a ruling merely because they disagree with it. However, case management must remain fair and professional. The cumulative effect of judicial interventions, including those made before the jury, is decisive.

The appellant was convicted at the Crown Court at Snaresbrook of theft and obtaining property by deception arising from the theft and use of a debit card. The prosecution relied principally on CCTV images and a colleague’s identification of the appellant from still photographs.

Her appeal on the quality of the identification evidence was not pursued. The appeal instead challenged the fairness of the trial, alleging that the judge’s conduct towards defence counsel undermined due process. The central issue was whether the cumulative effect of those exchanges rendered the convictions unsafe.

1. Appeal allowed. The convictions were unsafe and were quashed. A retrial was inappropriate, given the age of the offences, the nature of the penalty, and the time elapsed since sentence.

2. The court accepted that a trial judge may be robust and may properly prevent wasted time. It also held that, once a ruling has been given, counsel should not persist with the same argument merely because counsel disagrees with it or believes it was insufficiently explained. The proper remedy for an erroneous ruling is ordinarily an appeal, unless circumstances change. That differs from a preliminary indication, which remains open to persuasion.

3. Those considerations did not justify the judge’s subsequent conduct. His repeated remarks portrayed defence counsel as incompetent, improper and deliberately dishonest. Some criticisms were voiced before the jury. Others were made in the appellant’s presence and impugned counsel’s professional integrity without justification. The cumulative effect was an appearance of personal animosity which materially interfered with normal due process.

4. The court also expressed doubt that the judge lacked discretion under Police and Criminal Evidence Act 1984, section 78. Ordinarily, admissibility issues should be resolved before the challenged prosecution evidence is heard by the jury. It further explained that questions asked in a police interview are not evidence merely because the accused answered “no comment”; ordinarily such questions should not be put before the jury unless the accused later gives evidence and their use becomes appropriate.

5. Although some early judicial attempts to control counsel would not alone have made the trial unfair, the later pattern of unjustified personal criticism damaged both the appellant’s confidence and the reasonable observer’s perception of justice. The convictions therefore could not stand.

• Court of Appeal (Criminal Division) — allowed the appeal, quashed both convictions, and held that a retrial would be inappropriate.
• Crown Court at Snaresbrook — on 22 September 2004, convicted the appellant of theft and obtaining property by deception and imposed concurrent community punishment and rehabilitation orders.