Atheer Al Rawe & Anor v R

A criminal conviction is unsafe where judicial interventions, viewed over the trial as a whole, deprive the defendant of a fair opportunity to present the defence. The court must assess both the quantity and quality of the interventions and their cumulative effect. Relevant considerations include whether the judge has conveyed disbelief in the defence, obstructed counsel’s presentation, or prevented the defendant from giving an account in the defendant’s own way.

Intervention during examination-in-chief requires particular restraint. Clarification and proper case management remain permissible, but the judge must not assume the prosecution’s cross-examining role or reveal a hostile view of the evidence. Where the trial has thereby become unfair, the verdict is unsafe even if the prosecution evidence appears strong.

The appellants were convicted at Snarebrook Crown Court of conspiracies to commit fraud by false representation and to conceal criminal property. The prosecution alleged that an investment scheme promoted to the public was fraudulent from its inception. The appellants maintained that it was a legitimate property-investment business which later failed after its sale.

Both appellants appealed against conviction. Their principal complaint was that the trial judge’s repeated interventions while Al Rawe gave evidence caused the judge to descend into the arena. Ellis also challenged decisions to continue the trial, and later to refuse to prevent the jury returning verdicts against him, while he was absent through ill health.

The central issues were whether the interventions rendered the convictions unsafe and whether Ellis’s absence, viewed in that context, further undermined the fairness of his trial.

1. The appeals were allowed and both convictions were quashed. The court held that the governing principles concerning judicial intervention required no reformulation. As stated in R v Hulusi, R v Purvis (1974) 58 Cr. App. R 378 and applied in R v Matthews and Mathews (1984) 78 Cr App R 23, the question is whether the interventions, assessed in their overall setting, may have made the verdict unsafe by depriving the defendant of a fair trial.

2. The judge was entitled to clarify evidence, keep it focused and manage the trial. Some interventions did no more than that. But the court found that, from the first day of Al Rawe’s evidence and throughout his lengthy time in the witness box, the judge repeatedly went beyond those functions. The interventions included adversarial questioning during examination-in-chief, expressions of scepticism, assertions of matters akin to expert evidence, and interruptions which disrupted counsel’s questioning.

3. The cumulative effect was that the judge hijacked parts of the examination-in-chief, interfered with the presentation of the defence, and revealed a cynical view of Al Rawe’s account. The questions were often skilful questions for cross-examination, but that did not make it permissible for the judge to ask them. The unfairness was fundamental and rendered Al Rawe’s convictions unsafe.

4. Ellis’s case substantially ran with Al Rawe’s. Although the court considered the first two adjournment decisions reasonable case-management decisions, it could not be sure that the jury would have separated Ellis’s case from the adverse effect of the interventions directed at Al Rawe. Ellis had also been absent for reasons beyond his control. Insufficient weight had been given to his circumstances and to the possibility of severing his case before jury deliberations. His convictions were likewise unsafe.

5. The court granted a retrial on both counts. The alleged high-value fraud against private individuals created a substantial public interest in a retrial before a different judge, despite the age of the allegations, time already served, and Ellis’s ill health. A fresh indictment was ordered under the Criminal Procedure Rules, with reporting restricted under the Contempt of Court Act 1981 until the retrial concluded.

• Court of Appeal (Criminal Division) Allowed the appeals against conviction, quashed both convictions, and ordered a retrial.
• Snarebrook Crown Court Convicted both appellants of conspiracy to commit fraud by false representation and conspiracy to conceal criminal property, and sentenced each appellant to five years’ imprisonment.