Thomas, R v

For the false-impression gateway in section 101(1)(g), the court must assess what the defendant’s evidence actually conveyed. Evidence cannot be admitted merely because the judge infers an impression that the questions and answers did not create.

A trial judge may clarify evidence, but must remain a neutral umpire. Repeated or hostile questioning of a defendant, particularly during examination-in-chief and on matters central to the defence, can make the trial unfair where it conveys to the jury that the judge disbelieves the defendant. A conventional direction that the jury decides the facts will not cure that unfairness.

The appellant was convicted in the Crown Court at Lincoln of acts tending and intended to pervert the course of justice. The prosecution alleged that he deliberately gave his partner false names for the driver of a car detected speeding, intending that the names would be supplied to the police.

On appeal, he challenged the admission of evidence that he had six penalty points on his driving licence. He also complained that the Recorder’s interventions during his evidence made the trial unfair. The central issues were whether his evidence had created a misleading impression for the purposes of section 101(1)(g), and whether the Recorder had ceased to act as a neutral umpire.

1. Appeal against conviction allowed. The conviction was unsafe and was quashed. The court refused the prosecution’s application for a retrial.

2. The Recorder erred in admitting evidence of the appellant’s six penalty points. The test under section 101(1)(g) was whether the examination-in-chief had created a misleading impression. It had not. Defence counsel did not ask how many points the appellant had, and he did not say that he had none. His answers were confined to whether three further points would have caused disqualification or affected his work.

3. The erroneous admission was serious. The manner in which the evidence emerged could have suggested that the appellant had failed to be forthcoming. The summing-up neither corrected that impression nor reminded the jury that he had not sought to conceal the points. That error itself undermined the safety of the conviction.

4. The Recorder’s numerous interventions also deprived the appellant of a fair trial. The court agreed with the principles in R v Inns [2018] EWCA Crim 1081. A judge may clarify evidence but must not enter the arena or conduct what effectively becomes cross-examination.

5. Here, the interventions occurred repeatedly during examination-in-chief and then in extensive further questioning. They concerned central elements of the defence account, including the occupants of the car, the changing of drivers and the hotel booking. Their nature and frequency could well have conveyed that the Recorder disbelieved the appellant and had sided with the prosecution. The hearing had become essentially inquisitorial. Standard directions could not cure that unfairness.

6. As the conviction was quashed, it was unnecessary to determine the sentence appeal. A retrial was not in the interests of justice because the appellant had served the four-month sentence and the events dated from 2015.

• Court of Appeal (Criminal Division): By [2019] EWCA Crim 1958, the court allowed the appeal against conviction, quashed the conviction and refused a retrial.

• Crown Court at Lincoln: On 15 November 2018, Recorder Bacon QC convicted the appellant of acts tending and intended to pervert the course of justice. On 19 December 2018, the Recorder imposed four months’ imprisonment.