Cole, R v

A Turnbull direction is not required where there is no identification issue. Where the issue is whether reliable evidence permits an inference that the defendant was the driver, the jury should assess that evidence in the ordinary way.

A conviction is unsafe where the cumulative effect of judicial interventions, disparaging treatment of defence counsel, and the failure to place material evidence before the jury undermines confidence that the defendant received a fair trial.

The appellant was convicted at the Crown Court at Northampton of dangerous driving. The driving itself was not disputed. The central issue was whether he, rather than an unnamed third man, had driven the vehicle.

Police evidence supported an inference that the appellant had emerged from the driver’s position. Evidence from the driver of a heavy goods vehicle was capable of bearing on whether both vehicle doors had opened and on the identity of the driver. The appellant appealed against conviction, alleging inadequate directions and unfair judicial conduct during the trial.

1. The appeal was allowed and the conviction was quashed. The court could not be satisfied that the conviction was safe after considering the cumulative effect of the matters complained of.
2. A Turnbull or modified Turnbull direction was unnecessary. The appellant’s identity was not in issue: he accepted that he had left the passenger side of the vehicle and run from the scene. The issue was whether the jury could safely accept the police officers’ evidence and the inference that he had emerged from the driver’s seat.
3. The trial judge had otherwise given an adequate concise direction on the respective functions of judge and jury, the burden and standard of proof, and the defence evidence. However, he omitted any reference to the heavy goods vehicle driver’s evidence. When the jury asked about the vehicle doors, the judge repeated only the police evidence and did not correct that omission. That omission alone might not have rendered the conviction unsafe.
4. The judge’s interventions and comments, viewed as a whole, displayed an inappropriate hostility towards defence counsel and the defence case. This included interventions tending to assist prosecution witnesses, the premature dismissal of a submission of no case, and an insulting written note to counsel. Such criticism, especially where the defendant could hear it, was liable to undermine confidence that the case had received a fair hearing.
5. The Crown sought a retrial under section 7. The court declined to order one and held that justice was best done by simply quashing the conviction.

• Court of Appeal (Criminal Division) — allowed the appeal and quashed the conviction: [2008] EWCA Crim 3234.
• Crown Court at Northampton — convicted the appellant of dangerous driving by a majority of 11 to 1 on 24 April 2008.