Regina v Tarik Hill

In a retrial, admitting convictions for closely connected offences may be lawful, but the defendant must retain the statutory opportunity to prove that those offences were not committed. The jury must not be prevented from reconsidering the earlier convictions where the prosecution relies on them as evidence of the offence charged. A criminal judge must remain neutral and allow the defence to present its case, however implausible it may appear. The question is the overall fairness of the trial. Interventions or criticisms which invite disbelief, undermine defence counsel, or prevent the defendant from giving his account may render the conviction unsafe.

The appellant was convicted at the Crown Court at Kingston upon Thames of rape after a retrial. He had previously been convicted of related assaults, false imprisonment and controlling or coercive behaviour arising from his relationship with the complainant. At the retrial, the prosecution relied on the earlier convictions, including convictions for offences committed on the alleged date of rape. The judge admitted them but restricted the defence from challenging those convictions and made a series of critical interventions during the defence case.

The appellant appealed against conviction and sentence. The central issues were whether the restriction infringed the statutory evidential scheme and whether the judge’s conduct made the trial unfair.

1. Appeal allowed. The conviction on count 4 was quashed. A retrial was directed before a different judge. The sentence appeal fell away.

2. The convictions for false imprisonment and assault on 4 March 2017 were legally admissible under section 98(a) of the Criminal Justice Act 2003. However, section 74(3) of the Police and Criminal Evidence Act 1984 gave the appellant an express entitlement to seek to prove that he had not committed those offences. The evidential presumption arising from the convictions did not prevent him from using the ordinary processes of the court, including cross-examination and calling evidence, to challenge them. The approach in R v C [2010] EWCA Crim 2971 was applied.

3. The judge’s ruling that the jury could not effectively retry the earlier counts imposed an improper restriction. The convictions were closely connected with the rape allegation, and the appellant’s presence at the scene and the complainant’s credibility were fundamental issues. Preventing cross-examination directed to the earlier offences meant that the appellant could not fully contest the prosecution case. That amounted to an unfair trial.

4. The judge in a criminal trial is a neutral umpire. The defendant must be able to present the defence, however implausible it may be, without it being undermined by overt or subtle judicial comment. The fairness of the trial is assessed as a whole and is a question of degree. The principles were identified by reference to R v Thomas [2019] EWCA Crim 1958 and R v Mustafa Kemal Mustafa [2020] EWCA Crim 1723 at [7].

5. Viewed cumulatively, the judge’s interruptions, criticism of the appellant’s manner and accent, challenge to his account of his relationships, and unjustified admonitions of defence counsel conveyed disapproval and hostility. They impaired counsel’s ability to represent the appellant and prevented him from doing himself justice before the jury. Together with the section 74(3) error, they made the conviction unsafe. A direction to disregard the judge’s hostility could not have cured the defect.

• Court of Appeal (Criminal Division): The appeal against conviction was allowed, the rape conviction was quashed, and a retrial was directed before a different judge. The sentence appeal fell away.
• Crown Court at Kingston upon Thames: The appellant was convicted of related offences on 7 January 2019, convicted of rape after retrial on 23 March 2019, and sentenced on 20 June 2019. The retrial conviction for rape was the subject of this appeal.