Peter Michel v The Queen

A criminal defendant has an absolute right to a fair trial, irrespective of the apparent strength of the prosecution case. A conviction must be quashed where judicial intervention becomes so gross, persistent, prejudicial or irremediable that the judge effectively acts as a second prosecutor.

A trial judge may clarify ambiguities and promote the orderly presentation of evidence. The judge must remain impartial and must not cross-examine witnesses, display hostility or disbelief, denigrate the defence, or comment adversely while evidence is being given. An appellate court cannot treat the probable correctness of the verdict as decisive once the trial process itself was fundamentally unfair.

The appellant, an accountant, was convicted by the Inferior Number of the Royal Court of Jersey on nine counts of money laundering contrary to article 32 of the Proceeds of Crime (Jersey) Law 1999. The principal issue at trial was whether he knew or suspected that his offshore clients had engaged in criminal conduct.

The Commissioner repeatedly intervened during the evidence, including on 273 occasions while the appellant testified. Many interventions amounted to hostile cross-examination and disclosed disbelief in the defence. The Court of Appeal of Jersey accepted that the interventions were improper but dismissed the appeal because it considered that they had not made the trial unfair.

The Board considered whether the interventions deprived the appellant of a fair trial despite the strength of the evidence. It also addressed whether the standing arrangement alleged in count 1 was capable of constituting an offence under article 32(1).

1. Appeal allowed and conviction quashed. Lord Brown delivered the judgment of the Board. The Commissioner’s interventions were so extensive and improper that the appellant had not received a fair trial. Their sheer volume, hostile character and repeated disclosure of disbelief in the defence meant that the Commissioner had effectively acted as a second prosecutor.

2. The three grounds described in R v Hamilton were not exhaustive. A conviction may require reversal even where defence counsel presented the case properly, the defendant told his story, and the fact-finders could probably reach an independent and correct verdict. The wider question is whether the trial process itself remained fair. The absolute right to a fair trial belongs to an apparently guilty defendant as much as to an innocent one.

3. An appellate court must condemn a trial as unfair where departure from proper judicial conduct becomes sufficiently gross, persistent, prejudicial or irremediable. The strength of the prosecution case and the likelihood that the same verdict would otherwise have been returned cannot cure such fundamental unfairness.

4. Under the adversarial system, the judge must remain impartial and hold the balance between the parties. A judge may clarify ambiguities, clarify answers and promote the orderly elicitation of evidence. The judge must not cross-examine witnesses, particularly during examination-in-chief; appear hostile to the defendant; belittle the defence; make sarcastic comments; comment on evidence while it is given; or make personal disbelief in the defence apparent. Although a jury judge may analyse the strengths and weaknesses of the competing cases in a fair summing-up, the absence of a factual summing-up in a Jersey trial by Jurats does not permit the Commissioner to perform that analysis through questioning witnesses.

5. The challenge to count 1 under article 32(1) of the Proceeds of Crime (Jersey) Law 1999 failed. The alleged arrangement was not merely a prospective facility which clients might use. There was ample evidence of an operating, continuing arrangement under which the proceeds of crime were repeatedly returned to clients in cash, involving numerous acts of facilitation during the indictment period.

6. The case was remitted to the Court of Appeal of Jersey to decide whether to order a fresh trial. The respondent was ordered to pay the appellant’s costs of the appeal before the Board and the appeal below.

1. Privy Council: Allowed the appeal, quashed the conviction and remitted the case to the Court of Appeal of Jersey to decide whether to order a fresh trial: [2009] UKPC 41.
2. Court of Appeal of Jersey: Dismissed the appeal against conviction on 13 December 2007. It held that the Commissioner’s interventions were improper but had not rendered the trial unfair.
3. Royal Court of Jersey: The Inferior Number convicted the appellant on nine money-laundering counts on 14 May 2007. He was sentenced to six years’ imprisonment on 18 June 2007.