Zarezadeh, R. v

A criminal conviction is unsafe where judicial interventions deprive the accused of a fair trial. The central question is qualitative, not numerical. The court must assess whether the interventions invited the jury to disbelieve the defence in a way that directions could not cure, prevented counsel from properly presenting the defence, or prevented the accused from giving the account relied upon.

Judicial questions may properly clarify evidence. Even ill-timed and pointed questions during cross-examination will not render a trial unfair unless, separately or cumulatively, they cross the line into prejudicial advocacy or otherwise undermine the fairness of the trial.

The appellant, a prison officer, was convicted at Exeter Crown Court of possessing Class A and Class C controlled drugs with intent to supply. Drugs were found when he entered the prison. His defence was that threats to him and his family had compelled him to bring drugs into the prison.

He appealed against conviction, with leave of the Full Court. The sole issue was whether the trial judge's interventions while the appellant was being cross-examined made the trial unfair and the convictions unsafe. The court also noted that the appellant's application for leave to appeal against his total sentence of nine years' imprisonment had been adjourned.

1. The appeal against conviction was dismissed. The trial judge had, on several occasions, improperly intervened during prosecuting counsel's cross-examination and pursued matters which should generally have been left to counsel. Some questions were pointed and concerned matters central to the defence of duress.

2. The governing approach was that stated in Hulusi and Purvis, 1974 Vol 58 Criminal Appeal Reports 378. Interventions may justify quashing a conviction where they invite the jury to disbelieve the defence in a way that ordinary directions cannot cure, prevent defence counsel from properly presenting the case, or prevent the accused from doing justice to the account given.

3. The assessment was not a statistical exercise. The court considered the nature, context and cumulative effect of the interventions, including the guidance illustrated by Copsey and Copsey, 2008 EWCA Crim 2043, Perren, 2009 EWCA Crim 348, and Michael Mitchell, 2010 EWCA Crim 783.

4. Although the judge had interrupted the prosecutor and should have allowed counsel to complete the relevant lines of questioning before intervening, the questions did not go beyond seeking elucidation of apparent inconsistencies in the appellant's account. Neither their tone nor their language would have indicated that the judge disbelieved the appellant. The appellant had given his evidence in chief without significant intervention, and it was not contended that counsel had been unable properly to present the defence.

5. The interventions, whether considered individually or cumulatively, did not create the requisite risk that the jury would regard the judge as inviting disbelief of the defence. They therefore did not infringe the appellant's right to a fair trial or make the convictions unsafe.

• Court of Appeal (Criminal Division) — dismissed the appeal against conviction: [2011] EWCA Crim 271.
• Exeter Crown Court — convicted the appellant on 13 November 2009 of possession of Class A and Class C controlled drugs with intent to supply; imposed a total sentence of nine years' imprisonment on 16 November 2009.