El-Ghaidouni, R v

Where the trial judge becomes ill after the jury has retired, another judge may properly make himself available to receive the verdict. That limited step does not permit the replacement judge to leave a material request for guidance unanswered.

If a jury's unanswered question concerns an evidential issue raised at trial and the omitted answer could assist the defence, the absence of the trial judge may have adversely affected the verdict. The resulting conviction cannot stand and a retrial should be ordered.

The appellant was convicted at the Crown Court at Middlesex Guildhall of possessing cocaine and cannabis with intent to supply, and was sentenced to five years' imprisonment.

After the trial judge had summed up and the jury had begun deliberations, he became ill. A different judge took over while the jury continued to deliberate. The jury asked for evidence to be read and for information about the police search. Although two questions were answered, no answer was given to a question about how long it took to find the cannabis.

The appeal concerned whether that failure, in the circumstances of a change of judge after retirement, rendered the convictions unsafe.

1. Appeal allowed. The convictions were quashed and a new trial was ordered on both counts.

2. The court accepted the established position stated in R v The Crown Court at Southwark ex parte The Commissioners of Customs and Excise [1993] 97 Cr App R 266. A trial judge should not normally be changed after the jury has been sworn and before it returns its verdict. Where illness prevents the trial judge from continuing, another judge may take the verdict because that limited act is not affected by the earlier conduct of the trial.

3. It was therefore proper initially for the replacement judge to try to preserve the trial and to be available to receive the verdict. The arrangements to replay the evidence requested in the first question were satisfactory, and the third question could properly be answered by stating that there was no evidence identifying the room searched first.

4. The second question was different. It directly concerned an evidential matter canvassed before the jury. Counsel could not agree an answer, and further examination would have shown evidence capable of supporting the defence contention. The replacement judge gave no answer because he could not resolve the issue without further delay.

5. In those circumstances, the absence of the trial judge may have had a significant adverse effect on the outcome. The convictions could not stand. A fresh indictment was to be preferred and the appellant re-arraigned within one month. Bail pending retrial was refused and he was remanded in custody.

• Court of Appeal (Criminal Division): Allowed the appeal, quashed both convictions, and ordered a new trial.
• Crown Court at Middlesex Guildhall: On 11 May 2005, convicted the appellant of possessing cocaine and cannabis with intent to supply. On 27 June 2005, imposed a total sentence of five years' imprisonment.