R v Leon Shortt

A conviction may be unsafe because the accused was not fairly tried, even where the evidence of guilt is strong. The appellate court must assess alleged judicial misconduct objectively and in the context of the trial as a whole. A judge may clarify evidence and manage the trial, but must hold the ring fairly and avoid appearing to take a side. Judicial bullying, angry rebukes and unnecessary interventions are unacceptable. They justify quashing a conviction only where their cumulative effect is sufficiently gross, persistent, prejudicial or irremediable to render the trial unfair.

The appellant was convicted at St Albans Crown Court of offences concerning the supply of Class A and Class B drugs, possession with intent to supply cannabis, and possession of criminal property. The prosecution relied principally on messages recovered from mobile telephones, including messages said to refer to crack cocaine and heroin.

The defence accepted involvement in Class B drug supply but contended that the disputed abbreviations referred to cannabis products. The appellant appealed against conviction, alleging that the trial judge’s interventions, treatment of defence counsel and summing up had rendered the trial unfair. The Crown resisted the appeal and sought a retrial if it succeeded.

1. Appeal dismissed. The court held that the trial was not rendered unfair, and the convictions were safe.
2. The governing question was objective fairness, not merely the apparent correctness of the verdict. Under the principles drawn from R v Michel [2010] UKPC 41, R v Myers [2018] EWCA Crim 2191 and Serafin v Malkiewicz [2020] UKSC 23, a conviction must be quashed where judicial conduct is sufficiently gross, persistent, prejudicial or irremediable to deprive the accused of a fair trial. Lesser departures from good practice do not ordinarily have that consequence.
3. A judge may clarify ambiguity and identify the real issues, but must hold the ring fairly and avoid entering the arena: R v Tuegel (Peter Johannes) [2000] 2 Cr App R 361. Judicial bullying and angry or disproportionate rebukes are unacceptable, consistently with In Re AZ [2022] EWCA Civ 911.
4. The Recorder was unwise to make repeated interventions during the expert’s cross-examination and, on one occasion, improperly entered the arena. He also lost his temper with defence counsel on two occasions. Those incidents were inappropriate. Most of the remaining complaints, however, were either proper trial management or insignificant comments.
5. Viewed cumulatively, the improper incidents were few and brief. They did not show a pattern of antagonistic conduct. The appellant gave coherent evidence, and defence counsel remained effective throughout the material part of the trial. There was no real possibility that the jury had been improperly influenced or that the trial was unfair from the appellant’s perspective.

• Court of Appeal (Criminal Division) — appeal against conviction dismissed in R v Leon Shortt [2024] EWCA Crim 1041.
• Crown Court at St Albans — the appellant was convicted on 4 October 2023 of drugs and criminal-property offences. He was sentenced on 20 March 2024 to a total of four years’ imprisonment.