McDonald v R.

A conviction is not unsafe merely because a judge does not rehearse documentary evidence orally in the summing up. A conventional judicial reminder is ordinarily necessary, but it may be unnecessary where the evidence is wholly documentary, has been systematically explained during trial, and is readily available to the jury in a clear working schedule.

Complaints of judicial interruption require an assessment of the trial as a whole. Relevant matters include the strength of the prosecution case, the character and extent of the interventions, any inhibition of the defence, their likely effect on the jury, and whether the defendant received a fair trial. Robust case management must remain courteous, but excessive interventions do not make a conviction unsafe where the advocate was not overborne and the jury were properly directed.

The appellant, a motor-company manager, was convicted at Isleworth Crown Court of three counts of entering into money-laundering arrangements contrary to section 328 of the Proceeds of Crime Act 2002. The prosecution relied principally on records of cash purchases and repurchases of high-value cars, said to show arrangements that converted criminal cash into apparently legitimate payments.

He appealed against conviction on two grounds. He submitted that the judge had failed adequately to sum up the evidence and the defence case. He also alleged that the judge’s interruptions during cross-examination of the principal police witness had undermined his case and counsel’s credibility before the jury.

1. Appeal dismissed. The convictions on counts 1, 2 and 6 were safe.

2. The judge had adequately placed the substantial defence case before the jury. By the end of the summing up he had properly summarised the defence witnesses. No important matter in the appellant’s interviews or defence documents had been identified as omitted in a way that could have assisted the defence materially.

3. Although a judge will normally give an organised reminder of the principal factual evidence, that was not required in the exceptional circumstances of this trial. Virtually all the prosecution evidence was documentary. It had been comprehensively organised in a schedule, cross-referenced to the jury bundle, explained in the prosecution opening and police evidence, and used throughout the trial. A further oral review would not have assisted the jury’s necessary examination of the documents and might have reinforced the prosecution case.

4. Complaints about judicial interventions must be assessed on a spectrum and by reference to the whole trial. Relevant considerations include the strength of the case, the nature and effect of the interruptions, whether counsel was improperly prevented from advancing the defence, the possible effect on the jury, and whether the defendant and an informed observer would regard the trial as unfair.

5. Some interventions were unfortunate and at times too numerous or prolonged. However, they were generally attempts to control a robust and repetitive cross-examination. Counsel was not overborne and was able to pursue the questions and lines of enquiry he wished. The appellant declined the opportunity to seek discharge of the jury. The matters complained of occurred well before retirement, after which the jury heard closing speeches and an adequate summing up. The very strong prosecution evidence and the jury’s discriminating verdicts confirmed that the trial as a whole remained fair.

• Court of Appeal (Criminal Division): dismissed the appeal against conviction: [2011] EWCA Crim 1776.
• Isleworth Crown Court: the appellant was convicted of three money-laundering counts and sentenced to concurrent terms of 12 months’ imprisonment, suspended for two years, with 250 hours’ unpaid work.