R v Denise Povall

In an appeal alleging improper judicial intervention during defence evidence, the question is whether the interventions, viewed in context and cumulatively, invited the jury to disbelieve the defence evidence or created a clear impression that the judge rejected the defence case. Assessment is fact-sensitive. Clarifying questions are permissible, but questioning which becomes cross-examination, or comments which suggest disbelief, may imperil the fairness of the trial. Isolated unnecessary or inappropriate interventions do not automatically make a conviction unsafe. The court must assess their nature, frequency, context and overall effect, together with the fairness of the trial and summing-up.

The appellant was convicted in the Crown Court at York of one count of sexual assault of a child under 13 and six counts of causing or inciting a child under 13 to engage in sexual activity. She received an aggregate sentence of eight years’ imprisonment. The prosecution concerned events in 2007 and 2008 involving a child known to the appellant.

With permission, she appealed against conviction on the ground that the Recorder had intervened improperly during her evidence and that of her witnesses, creating an impression that their evidence was not credible and rendering the convictions unsafe. A secondary argument was that the interventions inhibited her ability to give evidence. The central issue was whether the interventions, considered individually and cumulatively, deprived her of a fair trial or affected the safety of the convictions.

1. The appeal was dismissed. The court applied the principles summarised in Zarezadeh [2011] EWCA Crim 271, including the guidance derived from Hulusi and Purvis and the approach illustrated by Copsey and Copsey 2008 EWCA Crim 2043.
2. The assessment was fact-sensitive. The critical question was whether the judge’s interventions invited the jury to disbelieve the defence evidence or gave the clear impression that he did not believe the appellant’s case. The court also considered whether the interventions prevented the appellant from presenting her case or from giving her evidence fairly.
3. The transcripts did not establish repeated interruptions. Some interventions were unnecessary or approached implied criticism. Questions about the mobile telephone were nevertheless reasonable enquiries in context and were not confrontational. Other interventions clarified evidence and did not objectively convey disbelief.
4. The Recorder did err by asking questions which amounted to cross-examination during two short passages of evidence. Similar questioning during a witness’s evidence was also erroneous. Those errors were confined to two brief parts of a 97-page transcript and did not vitiate the fairness of the trial.
5. The intervention during the younger son’s evidence went beyond clarification and resembled cross-examination, but it did not amount to a challenge to his account or imply that his evidence was not credible. Mild impatience with another witness was not commendable, but did not indicate the judge’s view of credibility.
6. The summing-up was fair and balanced. Even if the criticism of the treatment of one evidential issue had force, it would not alter the overall assessment. The errors did not affect the safety of the convictions.

• Court of Appeal (Criminal Division): The appellant appealed from convictions and sentence in the Crown Court at York. The Court of Appeal dismissed the appeal, holding that the Recorder’s errors and interventions did not render the trial unfair or make the convictions unsafe: [2025] EWCA Crim 802.