P, R v

A conviction is not unsafe merely because the trial judge has intervened sharply or managed the trial imperfectly. The appellate court must assess the proceedings as a whole and decide whether the defendant had a proper opportunity to test the prosecution evidence and whether the jury’s verdict may have been affected.

A judge may control irrelevant or excessive cross-examination and may permit a young witness to give evidence in open court where satisfied that the witness is sufficiently mature and confident. Criticism of counsel in the jury’s presence is inappropriate, but it warrants intervention only if it undermines the safety of the conviction.

The appellant was convicted at Kingston-upon-Thames Crown Court of assault occasioning actual bodily harm and common assault, the latter contrary to section 39 of the Offences Against the Person Act 1861. He was sentenced to 12 months’ imprisonment, with a concurrent 14-day sentence. He was acquitted of other counts.

He appealed against conviction, contending that the judge had improperly restricted cross-examination, wrongly allowed his 12-year-old son to give evidence in open court, behaved hostilely towards defence counsel, and summed up the case unfairly. The central issue was whether those matters rendered the two convictions unsafe.

1. The appeal was dismissed. Although aspects of the trial judge’s conduct were unfortunate and should not have occurred, the convictions were not unsafe.

2. A trial judge is entitled to supervise the progress of a case and to take reasonable steps to avoid time being wasted. The judge should, however, do so temperately and should permit counsel to explain the relevance of a proposed line of questioning where appropriate. On the evidence available to the court, defence counsel had nevertheless had a proper opportunity to cross-examine the complainant fully on the two counts of conviction.

3. The decision whether a young witness may give evidence in open court is essentially for the trial judge, who is well placed to assess the witness’s maturity and confidence. There was no basis for concluding that the initial decision to permit the child to give evidence in that way was wrong. After becoming distressed, he was given a break and was able to complete his evidence satisfactorily.

4. The judge’s criticism of defence counsel in the presence of the jury was wholly inappropriate. Once the child became distressed, the proper course was to give him a break, retire the jury, and discuss the future conduct of cross-examination calmly. The exchange was brief, however, and did not undermine the safety of the convictions. A further intemperate exchange outside the jury’s presence was immaterial to the convictions.

5. The summing-up, read as a whole, was not partial. It fairly dealt with the defence evidence and case. The jury’s acquittals on two serious counts also indicated that they had not been prejudicially influenced by the conduct of the trial.

• Court of Appeal (Criminal Division): Appeal against conviction dismissed.
• Crown Court at Kingston-upon-Thames: The appellant was convicted of assault occasioning actual bodily harm and common assault, and sentenced to 12 months’ imprisonment with a concurrent 14-day sentence.