Denton, R. v

A judge may intervene during cross-examination to clarify the evidence and establish its true context. There is no fixed rule governing the timing of an intervention. The overriding question is whether, viewed in the context of the evidence, the trial as a whole and the summing-up, the intervention impaired fairness or the safety of the conviction.

Sustained questioning requires caution. A judge must preserve both impartiality and its appearance. An intervention which may initially cause concern will not alone make a trial unfair where the issue remains for the jury and the summing-up fairly presents the competing cases.

The appellant was convicted in the Crown Court at Winchester of three counts of possessing class A drugs with intent to supply and was sentenced to concurrent terms of five years’ imprisonment. The drugs were found during a second search of his car after he had been taken to the police station.

His defence was that a police sergeant had planted the drugs. He appealed against conviction on the sole ground that the trial judge’s questions to that officer during cross-examination undermined the defence, compromised judicial independence and rendered the conviction unsafe.

1. Appeal dismissed. The court held that the judge’s intervention did not make the trial unfair and did not affect the safety of the convictions.
2. Judges must be free to clarify the evidence and its context. They are not subject to a fixed rule requiring questions to be postponed until the end of cross-examination. The timing and propriety of an intervention depend on the facts of the particular case.
3. The court endorsed the caution expressed in R v Sharp [1994] QB 261. Sustained judicial questioning during cross-examination may hamper counsel and threaten both impartiality and its appearance. However, an intervention that attracts concern does not itself establish an unfair trial or an unsafe conviction. Its effect must be assessed against the evidence, the conduct of the whole trial and the summing-up.
4. The questions about the consequences for the officer if he had planted drugs properly put the allegation in context. They did not suggest that an acquittal would itself ruin a police witness, and they left the jury to decide whether the drugs had been planted.
5. The remaining questions properly clarified the sequence of events and whether the officer had been alone with the car. Although the intervention occurred at a sensitive stage before a weekend adjournment, it was confined to one series of questions in a four- or five-day trial. Defence counsel resumed cross-examination, and the summing-up fairly left the issues of opportunity and planting to the jury.

• Court of Appeal (Criminal Division): dismissed the appeal against conviction in [2007] EWCA Crim 1111.
• Crown Court at Winchester: on 15 March 2006 convicted the appellant of three counts of possession of class A drugs with intent to supply; on 13 April 2006 imposed concurrent five-year sentences.