R v Rebecca Toloui & Anor

The right to a fair criminal trial is absolute. A conviction is unsafe where judicial departures from good practice are so gross, persistent, prejudicial or irremediable that the defendant was not fairly tried, regardless of the apparent strength of the evidence. A judge may raise whether further evidence should be called, but cannot decide which prosecution witnesses must be called. Judicial questioning may go beyond clarification without automatically causing unfairness. The court must assess each intervention and its cumulative effect, asking whether the judge displayed hostility, entered the arena or acted as a second prosecutor. Unwise or misplaced comments may fall short of unfairness where the trial remains fair and the jury is properly directed.

Rebecca and Simon Toloui appealed with leave against convictions in the Crown Court at Ipswich for fraud by abuse of position. The prosecution alleged that direct payments made for the care of a severely disabled family member were used for household expenditure. The appellants accepted some expenditure but disputed dishonesty.

They alleged that the Recorder’s interventions concerning prosecution witnesses, documentary evidence, questioning, defence statements and the summing-up showed hostility and that he had acted as a second prosecutor. The central issue was whether those matters, individually or cumulatively, deprived them of a fair trial.

Appeals dismissed. The court considered each complaint separately and then assessed the cumulative effect of the matters relied on.

1. Fair-trial principle. The right to a fair criminal trial is absolute. As explained in R v Michel [2010] UKPC 41; [2010] Cr App R 24, a trial becomes unfair where judicial departures from good practice are sufficiently gross, persistent, prejudicial or irremediable. The strength of the evidence cannot cure that defect.
2. Calling witnesses. A judge may raise with the prosecution whether further witnesses should be called. However, criminal case-management powers do not extend to deciding which prosecution witnesses must be called. If the prosecution calls no evidence on a matter, the defendants may give their own evidence and the jury must assess it. The Recorder’s intervention was based on an inaccurate understanding of procedure, but it was polite, and the evidence was ultimately obtained.
3. Judicial questioning. The principle in R v Malcolm [2011] EWCA Crim 2069 that a judge must not enter the arena or become a second prosecutor was applied. The forceful language and conduct in that case were materially different from the present case. The Recorder’s questioning about the email, invoices and company directorship went beyond clarification and was unnecessary and unwise, but its content, length, tone and significance did not demonstrate hostility or undermine fairness.
4. Other interventions. The Recorder’s handling of the defence statement was also unwise and unnecessary. The remaining complaints, including pauses to make notes, the treatment of interview material, the directions on burden of proof and reliability, the treatment of the care evidence, and praise of counsel, did not establish actual or apparent unfairness. Praise of advocates in a summing-up was misplaced, since the summing-up should focus on legal directions and the evidence.
5. Cumulative effect. Taken together, the matters amounted at most to departures from best or ideal practice. They did not show that the Recorder acted as a second prosecutor or that either appellant lacked a fair trial. The evidence was properly summed up, the appellants had the opportunity to put their cases, and the jury determined guilt. Each appeal was therefore dismissed.

• Crown Court at Ipswich: Rebecca and Simon Toloui were convicted of fraud by abuse of position and sentenced to two years’ imprisonment suspended for two years.
• Court of Appeal (Criminal Division): Appeals against conviction were dismissed: [2025] EWCA Crim 1599.