Malcolm v R.

A defence statement must identify the factual basis of any positive case which an accused intends to advance. A bare denial is inadequate where the defence relies on permission, lack of dishonesty or a lack of intent.

A judge may invite either party to consider adducing further evidence in order to secure a fair trial. Fairness extends to the accused, the victim and society. However, a judge must not direct the prosecution to fill perceived gaps in its case or repeatedly press deficiencies in the defence case so as to appear to assume the role of a second prosecutor. The whole trial process must be assessed from the standpoint of the fair-minded and informed observer. A resulting real possibility of apparent bias renders the conviction unsafe.

The appellant was unanimously convicted in the Crown Court at Kingston-upon-Thames of theft of fixtures, fittings and furniture from a furnished flat which he had rented. He was sentenced to 21 months’ imprisonment.

His prepared statement asserted that an unidentified female estate-agent employee had allowed him to remove some items as security for the return of his deposit. His defence statement did not give particulars of that positive case. During the trial, the Recorder repeatedly criticised the statement, directed the prosecution to obtain and call witnesses from the letting agencies, and extensively questioned witnesses.

The appellant appealed his conviction, principally contending that the Recorder had entered the arena and acted as a second prosecutor. The central issue was whether the Recorder’s conduct, viewed as a whole, deprived him of a fair trial.

1. Appeal allowed; conviction quashed. Although the evidence ultimately made the factual case against the appellant overwhelming, the court held that the conviction was unsafe because of the manner in which the trial had been conducted.

2. The defence statement was hopelessly inadequate under section 6A of the Criminal Procedure and Investigations Act 1996. Unlike the position considered in Rochford [2010] EWCA Crim 1928, the appellant was advancing a positive case. He should have identified the alleged agent, or described her sufficiently to identify her, and supplied particulars of the items removed, his asserted authority, his intention, and the basis on which he claimed entitlement to retain the property. The Recorder was entitled to warn of the possible adverse consequences of non-compliance and to allow an amendment.

3. A judge may properly invite the prosecution or defence to consider adducing further evidence. A fair trial is not concerned only with fairness to the defence: the interests of the accused, the victim and society must be balanced. Nevertheless, in an adversarial criminal trial the judge must remain impartial while evidence is elicited. The judge must not direct the prosecution to call witnesses whom it did not intend to call in order to cure perceived gaps in its case, or appear to take over the prosecution.

4. The court applied the fair-minded and informed observer test for apparent bias. The Recorder’s repeated and forceful criticisms of the defence statement, coupled with his directions concerning the witnesses to be called, would have created a real possibility that he had become biased against the appellant. Strong comments in summing up would have been available after proper case management, but the combined conduct during the trial crossed the boundary of acceptable judicial intervention. It therefore denied the appellant a fair trial.

5. The Recorder was nevertheless entitled to ask defence counsel whether the alleged permission had been given by the employee who had shown the appellant the flat. The cross-examination had made that question relevant. The court did not need to decide whether the Recorder’s questioning of witnesses before the jury, viewed separately, would itself have rendered the trial unfair.

6. The court invited written submissions on whether there should be a retrial.

• Court of Appeal (Criminal Division) ([2011] EWCA Crim 2069): allowed the appeal against conviction and quashed the conviction; invited written submissions on a retrial.
• Crown Court at Kingston-upon-Thames: the appellant was unanimously convicted of theft and sentenced to 21 months’ imprisonment.