Harirbafan, R. v

Excessive judicial interventions in a criminal trial may make a conviction unsafe where they obstruct the orderly presentation and testing of the defence case, or cause the jury to perceive that the judge has adopted a prosecutorial and disbelieving role. The effects may be cumulative. The safety assessment must consider the significance of the disrupted evidence in the trial as a whole. A strong prosecution case does not cure a denial of the defendant’s fair opportunity to answer it.

The appellant was convicted at Isleworth Crown Court of attempting to remove criminal property from the jurisdiction, knowing or suspecting that it represented the proceeds of criminal conduct. He received three years’ imprisonment.

His defence was that the cash had legitimate family and commercial sources. Several witnesses from Iran gave evidence, through an interpreter where necessary, and produced documents said to support that account. By leave of the single judge, the appellant appealed against conviction on the ground that the Recorder’s interventions during the defence case created apparent partiality and deprived him of a fair trial.

1. Appeal allowed. The conviction was unsafe and was quashed. The court declined to order a retrial.

2. Judicial interruptions may prejudice trial fairness in two cumulative ways. They may prevent defence evidence from being elicited and tested coherently. They may also lead the jury to think that the judge has assumed the role of prosecutor and believes the defendant is attempting to deceive them.

3. The Recorder repeatedly interrupted defence counsel while she was examining important supporting witnesses. He prevented her from developing explanations for documents central to the defence account, questioned witnesses in a manner that amounted to cross-examination, and on more than one occasion wrongly instructed counsel to sit down before the jury. The tone and substance of the interventions went well beyond permissible clarification.

4. The supporting evidence was material. In the summing-up, the Recorder attached considerable importance to the authenticity and weight of the documents, including documents whose provenance the interruptions had prevented the witnesses from explaining coherently. Some aspects of the summing-up added to the confusion surrounding that evidence.

5. Although the prosecution case was strong, the appellant was entitled to a fair opportunity to meet it. Taken overall, the interventions denied that opportunity and the court could not regard the conviction as safe. A retrial would be neither just nor in the public interest because the appellant had completed his sentence and a new trial would involve substantial delay, expense and inconvenience in securing witnesses again from Iran.

• Court of Appeal (Criminal Division) Allowed the appeal against conviction and quashed the conviction; no retrial was ordered: [2008] EWCA Crim 1967.

• Isleworth Crown Court The appellant was convicted on 23 March 2007 of attempting to remove criminal property from the jurisdiction and was sentenced to three years’ imprisonment.