SR, R. v (Rev 1)

A judicial intervention must be assessed in its factual context and by its effect on trial fairness and the safety of the verdict. A judge must remain a neutral umpire and must not appear to take sides. An intervention may justify quashing a conviction if it effectively invites rejection of the defence, prevents counsel from properly presenting it, or prevents the defendant from fairly telling his account.

An intervention based on a misunderstanding may be unfair to counsel without making the conviction unsafe. The decisive questions are whether it favoured the prosecution, impeded the defence, or caused prejudice on the issue the jury had to determine.

The appellant was convicted at the Crown Court at Snaresbrook in December 2018 of assault by penetration, contrary to section 2 of the Sexual Offences Act 2003. The complainant alleged that the appellant violently penetrated her vagina without consent. The appellant accepted that he caused the injury but contended that it occurred accidentally during consensual sexual activity.

With leave of the single judge, he appealed against conviction. He alleged that the trial judge unfairly interrupted defence counsel’s closing speech and gave an unbalanced summing-up, so that the trial was unfair and the conviction unsafe. The central issue was whether the intervention prevented the defence from being properly advanced or prejudiced the jury’s assessment of consent.

Decision

1. The appeal was dismissed. The conviction was safe.

2. The trial judge’s interventions during the appellant’s examination-in-chief were necessary and appropriate. Defence counsel had asked leading questions on highly contentious matters.

3. The intervention during counsel’s closing speech was based on a misunderstanding. Counsel had been making legitimate submissions about the circumstances and manner of penetration, which were relevant to consent, rather than about the medical mechanism of the injury. The intervention was therefore unfair to counsel, and it would have been preferable for the judge to raise the concern in the jury’s absence.

4. That unfairness did not render the trial unfair or the conviction unsafe. Applying the principles summarised in Inns [2018] EWCA Crim 1081, the court held that the intervention did not appear to favour the prosecution, invite rejection of the defence, or prevent counsel from continuing his address with structure and force. The jury remained able to determine the stark conflict of evidence on consent.

5. The summing-up, read fairly as a whole, did not create an unfair or prejudicial imbalance. Although the judge spent more time recounting the complainant’s evidence, the appellant’s account could properly be stated briefly. The judge ultimately identified the correct issues: whether there was consent and, if not, the appellant’s state of mind.

6. There was compelling evidence supporting the verdict. In particular, the appellant’s conduct after the injury was capable of undermining his account that he had accidentally injured his partner during consensual activity.

1. Court of Appeal (Criminal Division). By [2019] EWCA Crim 2225, dismissed the appellant’s appeal against conviction.

2. Crown Court at Snaresbrook. In December 2018, convicted the appellant of assault by penetration. No lower-court citation is stated.