Muir, R. v

Judicial interventions render a conviction unsafe only where, viewed in the context of the trial as a whole, they prevent the defence from being properly presented or invite disbelief of the defence in terms that clear jury directions cannot cure. Probing questions, including questions bearing on credibility, do not alone establish unfairness where the defendant has been able to give her account, counsel has been able to conduct the defence, and the questioning is not hostile.

A trial judge may comment on the evidence. A balanced summing-up and clear directions that factual judgments are exclusively for the jury may cure any appearance that the judge has expressed a view.

The appellant was convicted of blackmail at the Crown Court at Derby and sentenced to four years and four months’ imprisonment. The prosecution alleged that she joined her co-accused in making demands for money, backed by threats to expose a married complainant’s use of her escort services.

Her case was that the co-accused alone made the threats and that she acted under his coercion. On appeal against conviction, she contended that the Recorder’s prolonged questioning of her, contrasted with the absence of questions to the complainant, and comments in the summing-up created an appearance of bias. The central issue was whether those interventions made the trial unfair and the conviction unsafe.

1. Appeal dismissed. The Recorder’s questioning and summing-up did not render the conviction unsafe.
2. The court applied the approach in R v Hulusi and Purvis 58 Cr App R378. The question was whether the interventions, considered in the trial’s overall context, either made it impossible for defence counsel to perform his duty, prevented the appellant from giving her account in her own way, or invited the jury to disbelieve the defence so strongly that ordinary directions could not cure the position.
3. The Recorder’s questions were prolonged and sometimes probing, but they were put after the appellant had completed her evidence-in-chief and cross-examination. They did not prevent her from advancing her case or counsel from testing the prosecution evidence and making submissions. Some questions also assisted clarification of her account. The questioning was not hostile and did not make the Recorder a second prosecutor.
4. The summing-up was balanced. Although the Recorder was entitled to comment on the evidence, he repeatedly directed the jury that the facts were exclusively for them and that they should disregard any view they thought he had expressed unless they agreed with it. He also identified evidence capable of supporting the appellant’s account.
5. There was substantial evidence apart from the complainant’s credibility, including the payments into the appellant’s account, messages apparently sent by her, meetings at which money was received, her post-arrest comments, and her delayed attribution of blame to the co-accused. The court was not satisfied that the trial was arguably unfair or that the conviction was arguably unsafe.

• Court of Appeal (Criminal Division) — dismissed the appeal against conviction: [2017] EWCA Crim 537 .
• Crown Court at Derby — convicted the appellant of blackmail on 26 September 2016 and sentenced her to four years and four months’ imprisonment on 30 September 2016.