AA, R. v

A trial judge must remain a neutral umpire in the adversarial criminal process. Judicial comments or interventions which indicate an adverse view of a defendant’s case may impair the fair giving of evidence, even when made outside the jury’s presence. The fairness of the trial must be assessed cumulatively and in the round, including the effect of a questionable withdrawal of bail immediately before the defendant gives evidence.

If judicial conduct may have caused the defendant to believe that a fair trial was unavailable or handicapped the presentation of evidence, the resulting verdict is unsafe. Strong prosecution evidence does not cure the absence of a fair trial.

The appellant was convicted at the Crown Court at Kingston-upon-Thames of bringing cannabis, mobile telephones, a SIM card and charging cables into prison. She had separately pleaded guilty to bringing in a further SIM card. She received concurrent sentences totalling 18 months’ imprisonment.

Her case at trial was that she passed only the SIM card to her imprisoned partner and that the other items were already concealed on him. On appeal, she contended that the trial judge’s conduct deprived her of a fair trial. The complaints concerned comments on the strength of her case, withdrawal of bail before she gave evidence, treatment of her daughter, and interventions during her evidence.

1. Appeal allowed. The convictions challenged on counts 1 to 4 were unsafe and were set aside. The Crown did not seek a retrial. The conviction following the appellant’s guilty plea on count 5 remained.

2. It was inappropriate for the judge, during the trial, to indicate an adverse view of the strength of the appellant’s case. The jury, not the judge, determined guilt. The judge was required to remain a neutral umpire. The comments could have led the appellant to believe that she would not receive a fair trial and could have handicapped her evidence, consistently with R v Alves [1997] 1 Cr App R 78.

3. The withdrawal of bail on the judge’s own initiative, on the evening before the appellant was due to give evidence, was questionable. The reasons given again referred to the weight of the evidence. In the circumstances, including the appellant’s distress at being separated from her children and her first experience of custody, this was likely to reinforce the impression that the judge had prejudged her case and to impede her evidence.

4. The threat to send the appellant’s 14-year-old daughter to a cell for any reaction in court was unnecessary and inappropriate. The judge’s interventions during the appellant’s evidence were also comments rather than clarification. In particular, the questioning conveyed disbelief in evidence later shown to be correct. A judge should be especially careful not to interrupt evidence-in-chief except to clarify, maintain focus or avoid prolixity: R v Perran [2009] EWCA Crim 348.

5. The complaints about the summing-up and the appellant’s absence during the final stages of deliberation did not carry substantial weight. Nevertheless, the first four matters, taken together, deprived the appellant of a fair trial. Once that conclusion was reached, the verdict was unsafe notwithstanding the apparent strength of the prosecution evidence.

• Court of Appeal (Criminal Division): In [2018] EWCA Crim 2191 , allowed the appeal, set aside the unsafe convictions on counts 1 to 4, and did not order a retrial.

• Crown Court at Kingston-upon-Thames: On 23 April 2018, convicted the appellant after trial on counts 1 to 4. She had pleaded guilty to count 5. On 24 April 2018, she received concurrent sentences totalling 18 months’ imprisonment.