Andrew, R. v

A criminal trial judge must remain impartial during the evidence and in the summing-up. Judicial questions may clarify matters left obscure, but must not amount to cross-examination for the prosecution, imply that the defendant must prove innocence, or convey disbelief in the defence case.

Where the judge's interventions and summing-up, viewed cumulatively, make the judge appear to be an advocate for the prosecution and deprive the defendant of a fair trial, the conviction cannot stand. This follows even if the defendant may appear plainly guilty.

The appellant was convicted at Taunton Crown Court of possessing cocaine, a Class A controlled drug, with intent to supply, and was sentenced to three years' detention in a young offender institution. His case was that the cocaine was for his own use; the Crown alleged an intention to supply.

He appealed against conviction, contending that the Recorder had questioned him as though cross-examining for the prosecution, had elicited evidence suggesting that he ought to have called a witness to prove his innocence, and had delivered a hostile and unbalanced summing-up. He also complained that the summing-up failed adequately to address evidence supporting the defence case.

The central issue was whether the Recorder's conduct had denied the appellant a fair trial.

1. Appeal allowed. The Recorder's conduct, considered as a whole, denied the appellant a fair trial.

2. A judge may intervene to clarify an overlooked or obscure matter, maintain proper order and ensure that the case is fairly presented. The judge must nevertheless remain neutral and must not assume the role of an advocate. The need for that restraint is especially acute in a criminal jury trial.

3. The Recorder's questioning of the appellant about the absent former partner effectively suggested that the appellant had a witness who could provide a complete defence and should have called him. That was liable to convey, wrongly, that the appellant bore a burden to prove his innocence. The subsequent warning against speculation did not cure the problem.

4. The prolonged questioning about drug use and debts resembled cross-examination for the prosecution and was likely to communicate the Recorder's disbelief in the defence. The summing-up compounded the prejudice. It advanced the Crown case vigorously, treated the defence only briefly, and did not fairly address material defence evidence, including expert evidence relevant to personal use rather than supply.

5. The court applied the principle in R v Michel v The Queen [2009] UKPC 41: apparent guilt cannot excuse a trial that lacks the impartial judicial conduct required by the adversarial process. The conviction for possession with intent to supply was therefore quashed. The Crown did not seek a retrial. The appellant's plea to simple possession was to be dealt with for sentence in the Crown Court.

• Court of Appeal (Criminal Division): allowed the appeal against conviction in [2010] EWCA Crim 798, quashed the conviction for possession with intent to supply, and left sentence for the plea to simple possession to the Crown Court.

• Taunton Crown Court: on 14 November 2008, convicted the appellant of possession of a Class A controlled drug with intent to supply. On 18 December 2008, sentenced him to three years' detention in a young offender institution.