Naz, R. v

A criminal defendant is entitled to a fair trial irrespective of the apparent strength of the prosecution evidence. Judicial interventions must remain neutral. Interventions which appear to endorse a prosecution witness, challenge an accused person’s account in the manner of cross-examination, or prevent counsel from presenting the defence in the chosen way may render a conviction unsafe.

The court must assess the proceedings cumulatively and in the round. A fair summing-up and conventional directions that fact-finding is for the jury cannot necessarily cure unfairness occurring during the evidence. They will be insufficient where accumulated interventions have created serious unfairness or impaired the accused person’s opportunity to advance the case fairly.

The appellant was convicted after a retrial at Snaresbrook Crown Court of racially aggravated intentional harassment, alarm or distress. She was fined and ordered to pay prosecution costs and a surcharge.

Her application for leave to appeal against conviction was referred by the Registrar. She contended that the trial judge had intervened improperly during the evidence, appeared to favour the complainant’s account, challenged her own evidence, and entered into irrelevant discussion of UKIP immigration policy. The central issue was whether the cumulative effect of those interventions rendered the conviction unsafe through an unfair trial.

1. The appeal was allowed. The court held that the conviction was unsafe because the process by which the evidence was taken was seriously unfair. The conviction was quashed.

2. The Crown’s submission that the evidence against the appellant was overwhelming could not answer a complaint of unfairness. Every defendant has an absolute right to a fair trial, whatever the strength of the prosecution case. The court applied the principle stated by Lord Bingham in Randall v The Queen [2002] 2 Cr App R 17.

3. The summing-up was full, balanced and fair. It accurately identified the issues and put both sides’ cases to the jury. However, a proper direction that factual assessment was for the jury could not automatically rectify unfairness arising earlier in the trial.

4. During the complainant’s evidence, the judge’s interventions in the jury’s presence gave the impression that he had formed a positive view of the complainant’s account and challenged the basis of the defence case. During the appellant’s evidence, repeated questions went beyond clarification and assumed the character of cross-examination. They conveyed disbelief, deprived the appellant of the opportunity to present her account in her chosen way, and prevented her counsel from eliciting the evidence in the chosen manner.

5. The judge’s discussion of UKIP’s immigration policy introduced matters of no or marginal relevance and a potentially prejudicial element. Comments made when the jury was absent, describing the defence as far-fetched or bunkum, should never have been made. Those comments did not themselves create unfairness because the defence was later advanced fully before the jury.

6. Viewed cumulatively, the interventions abandoned the required neutral judicial role and deprived the appellant of a fair opportunity to present her case. The later summing-up and conventional directions were wholly insufficient to remove the resulting harm or potential harm.

7. The court ordered a retrial in the public interest. A fresh indictment was to be served and the appellant re-arraigned within two months. It also made a reporting restriction under Contempt of Court Act 1981, section 4(2), and granted unconditional bail pending retrial.

• Court of Appeal (Criminal Division) — allowed the appeal in [2017] EWCA Crim 482, quashed the conviction and ordered a retrial.
• Snaresbrook Crown Court — convicted the appellant after a retrial on 22 September 2016. An earlier trial had ended when the jury was discharged through disagreement.