Marchant, R. v

A trial judge may ask questions to clarify evidence, but must remain a neutral umpire in an adversarial criminal trial. The judge must not take over the prosecution’s role by cross-examining a defendant during examination-in-chief or unnecessarily interrupt the defendant’s account.

A summing-up may identify weaknesses and inconsistencies in either case. It need not artificially equalise cases of unequal strength. It must, however, fairly state and analyse both cases, leave factual conclusions to the jury, and remain objectively impartial. The appellate question is whether, viewing the trial as a whole, there was a real risk that the jury was materially impeded from reaching a fair verdict.

The appellant was convicted by a jury at the Crown Court at Bristol of rape. The central issue at trial was whether the complainant had consented to sexual intercourse. The appellant maintained that she had willingly participated; the prosecution relied on her account that she awoke to find him penetrating her without consent.

With leave of the single judge, the appellant appealed against conviction. He alleged that the trial judge improperly intervened during his examination-in-chief and delivered a summing-up that was fundamentally unbalanced in favour of the prosecution. The question was whether those matters, separately or together, deprived him of a fair trial and rendered the conviction unsafe.

1. Appeal dismissed. Some of the judge’s interventions during the appellant’s examination-in-chief were improper. They went beyond clarification and entered territory that should have been left to prosecuting counsel in cross-examination. The questioning about a matter affected by Youth Justice and Criminal Evidence Act 1999, section 41 was particularly unfair, as it made the appellant appear evasive after he referred to evidence he had been prohibited from giving.

2. The warning given outside the jury’s presence about possible consequences if the appellant attacked the complainant’s character or advanced new matters was proper. It was given in the appellant’s interests and did not create an intimidating atmosphere.

3. Applying the principles summarised in R v Inns [2018] EWCA Crim 1081, a defendant should ordinarily be allowed to give an account through their own advocate without unnecessary interruption. The judge’s errors did not, however, prevent this appellant from giving his account of the critical events, including his account of the sexual intercourse.

4. The summing-up was not fundamentally unbalanced. A judge may draw the jury’s attention to difficulties in the defence case and need not repeat every defence submission. The judge fairly identified the defence case and reminded the jury of the appellant’s evidence. Although some descriptions of the evidence were open to minor criticism, the prosecution case was materially stronger and the judge was entitled to explain the evidential reasons for that assessment. This accorded with the approach in R v Nelson [1997] Crim LR 234.

5. Standing back and applying the fair-trial approach stated in R v Perren [2009] EWCA Crim 348, neither the interventions nor the minor deficiencies in the summing-up, whether viewed separately or together, materially impeded fair consideration of the evidence. The conviction was not unsafe.

• Court of Appeal (Criminal Division): dismissed the appeal against conviction in [2018] EWCA Crim 2606.
• Crown Court at Bristol: following a jury trial before HHJ Horton, convicted the appellant of rape on 22 January 2018. He was acquitted on the judge’s direction of two associated counts of assault by penetration.