Nigel Lloyd Hannon, R (on the application of) v The Crown Court at Bristol

A trial judge may actively clarify evidence, but must not descend into the arena by cross-examining a defendant or appearing to act as a second prosecutor. The controlling question is whether the interventions, viewed in the trial as a whole, rendered the proceedings unfair and the conviction unsafe. A judge’s improper questioning does not necessarily require that result. Relevant considerations include whether the issue was already in the case, whether counsel had an opportunity to respond, whether the defendant could present his account, and the extent, tone and persistence of the interventions. The court may recognise an error in judicial conduct while concluding that no material unfairness occurred.

The claimant was convicted by Bath Magistrates’ Court of driving without due care and attention and appealed by way of rehearing to Bristol Crown Court. His conviction was affirmed. He sought judicial review of the Crown Court’s decision, alleging that the judge’s questioning of him during the appeal hearing was unfair and rendered the conviction unsafe.

Chamberlain J granted permission on the limited issue whether sustained questioning about the trailer drifting across the boundary between the carriageway and hard shoulder amounted to cross-examination beyond proper judicial limits. The central issue was whether the judge’s conduct, assessed in the context of the whole hearing, caused an unfair trial.

1. Application refused. The judge had improperly descended into the arena and, at times, questioned the claimant in the style of cross-examination. That was a departure from proper judicial conduct, but it did not render the trial unfair or the conviction unsafe.
2. The governing principle was trial fairness. A judge may clarify ambiguities and seek orderly elicitation of evidence, but must not cross-examine a defendant, belittle the defence, display hostility, or make the judge’s disbelief apparent. The question is one of degree, assessed in the context of the proceedings as a whole.
3. The questioning concerned the trailer’s lateral movement and its crossing of the Vibraline strips. That issue had been present from the beginning through the police evidence, contemporaneous notes and prosecution case. It was not a new case theory or a surprise to the claimant.
4. The claimant’s own evidence about his knowledge of the road, tramlines, speed, braking and cruise control gave the judge a legitimate basis to seek clarification. Although the questioning could have been shorter and less colloquial, the claimant had ample opportunity to explain his position.
5. The absence of a complaint by counsel at the time was not fatal, but it was a strong indication that the questioning had not caused apparent unfairness. The judge also invited further questions after the passage, and counsel declined.
6. The three circumstances identified in R v Hamilton were absent: there was no jury, counsel was not prevented from presenting the case, and the claimant was able to tell his story. The case was materially different from the extreme conduct in Michel v The Queen and closer to R v Binoku. The judicial review claim was therefore refused.

• Bristol Crown Court: on 28 May 2021, after a rehearing, affirmed the claimant’s conviction by Bath Magistrates’ Court.
• High Court (Administrative Court): refused judicial review of the Crown Court decision on 24 January 2024.