Oshungbure & Anor, R v

A trial judge may properly express firm views at sentence about evidence already heard. However, where the judge is to conduct a later fact-finding exercise involving the same defendant, the remarks must not give a fair-minded and informed observer the sensible impression that the judge is biased or will be unable to approach future evidence with an open mind.

Actual bias need not be shown. If trenchant sentencing remarks create an appearance of bias, a later corrective assurance will ordinarily be incapable of removing it. A confiscation order made in those circumstances should be quashed.

The appellants were convicted at Chelmsford Crown Court of conspiracy to defraud financial institutions by identity theft. Following sentence, the trial judge conducted confiscation proceedings and made confiscation orders against both appellants.

One appellant sought the judge’s recusal during those proceedings. The application relied on exceptionally severe sentencing remarks about his dishonesty. The other appellant had not sought recusal. Earlier appeals had reduced their sentences, and renewed applications for permission to appeal against conviction had been dismissed.

The central issue was whether the sentencing remarks gave rise to an objectively justified perception of bias when the judge later determined confiscation issues.

1. The appeals were allowed. The confiscation orders against both appellants were quashed.
2. A judge may, and often should, express trenchant views at sentence about evidence heard at trial. Such observations can explain the sentence and assist a later appellate review. But a judge who is likely to determine further facts in confiscation proceedings must avoid remarks which could sensibly be perceived as showing bias against the defendant or an unwillingness to believe future evidence.
3. The court held that the principles in Locabail v Bayfield Properties [2000] QB 451, although expressed in a civil case, apply where appropriate in criminal proceedings. The applicable inquiry was whether a fair-minded and informed observer would perceive bias, following In Re Medicaments [2001] 1 WLR 700.
4. The judge’s remarks that Odewale was dishonest through and through, and incapable of recognising the truth, crossed the permissible line. They would create the relevant perception of bias. The judge’s later statement that Odewale need not be deterred from giving evidence could not effectively cure that perception.
5. Although there were differences between the appellants’ positions, it would have been wholly inappropriate to maintain Oshungbure’s order. The court had power to conduct a fresh confiscation investigation itself, but held that justice did not require that course.

• Court of Appeal (Criminal Division): Allowed the appeals against the confiscation orders and quashed both orders.
• Chelmsford Crown Court: Following convictions for conspiracy to defraud, the trial judge conducted confiscation proceedings and made the orders appealed from.