Mustafa, R. v (Rev 1)

A trial judge may question witnesses to clarify ambiguity, identify an unclear defence, or ensure accurate notes. The judge must nevertheless remain a neutral arbiter and must not take over examination, perform the prosecution’s cross-examination, or give the appearance of acting as an advocate.

Whether intervention makes a conviction unsafe depends on the overall fairness of the trial. Sustained and disruptive questioning which prevents defence counsel from presenting the defendant’s case, particularly where the defendant has known vulnerabilities, can render the trial unfair despite proper legal directions and evidence capable of supporting conviction.

The appellant was convicted in the Crown Court at Woolwich of failing to comply with an enforcement notice, contrary to section 179 of the Town and Country Planning Act 1990. He was fined and ordered to contribute towards prosecution costs.

He appealed against conviction and sentence. The prosecution case concerned his control of premises used as a hostel after the expiry of the compliance period. His defence was that he had ceased to control the company and premises. The appeal alleged that the trial judge’s extensive interventions during his evidence, and in questioning a defence witness whom the prosecution did not cross-examine, deprived him of a fair trial.

The central issue was whether the interventions caused the conviction to be unsafe through unfair judicial treatment.

1. Appeal allowed and conviction quashed. The court held that the trial was unfair because the judge repeatedly entered the arena during the appellant’s evidence and thereby rendered the conviction unsafe.

2. A judge may properly intervene to clarify evidence or an unclear defence. However, the adversarial process requires the judge to remain neutral while evidence is elicited. The court adopted the principles in Serafin v Malkiewicz & Ors [2019] EWCA Civ 852, R v Gavin Inns and Emma Inns [2018] EWCA Crim 1081, and Michel v R [2009] UKPC 41.

3. On the first day of the appellant’s evidence the judge’s questions were within reasonable bounds. On the following day, however, the interventions became numerous, disruptive and frequently unnecessary. They diverted defence counsel from proper lines of examination, took control of the examination-in-chief, and later pursued matters which were properly for prosecuting counsel to develop in cross-examination.

4. The judge also opened a new and effectively cross-examinatory line of questioning of a defence witness after the prosecution had elected not to cross-examine him. The court found that these interventions impeded counsel’s proper presentation of the defence and prevented the appellant from giving his account in his own way. That conclusion was reinforced by the appellant’s known mental-health difficulties, which made him vulnerable to becoming disorganised and flustered under questioning.

5. There was no conscious animus against the appellant. Nor was there criticism of the legal directions, the summing-up, or the sufficiency of the prosecution evidence. Those matters could not cure the accumulated effect of interventions which materially infringed judicial neutrality. The separate hearsay complaint was rejected and would not itself have justified allowing the appeal. The appeal against sentence was not determined.

• Court of Appeal (Criminal Division): Allowed the appeal and quashed the conviction: [2020] EWCA Crim 1723.

• Crown Court at Woolwich: On 2 August 2019, convicted the appellant of failing to comply with an enforcement notice contrary to section 179 of the Town and Country Planning Act 1990, fined him £5,000, and made a costs order.