Law Report: Judge's conduct amounted to denial of justice: Regina v Whybrow and another - Court of Appeal (Criminal Division) (Lord Taylor of Gosforth, Lord Chief Justice, Mr Justice French and Mr Justice Pill), 21 January 1994.

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Although a trial judge should intervene to curb prolixity and repetition and to exclude irrelevance, discursiveness and oppression of witnesses, he should not intervene so as to prevent the accused from giving his account or to pour scorn on it or intervene with such frequency and hostility during the accused's evidence as to deny the accused a fair hearing.

The Court of Appeal allowed the appellants appeals against convictions of conspiracy to murder and ordered a retrial.

The prosecution case was that the first appellant conspired with the second appellant, her lover, to kill her husband and make it look like an accident by the husband's tractor-style lawnmower tipping over. The appellants' defence was that they had conspired only to give the victim a beating to teach him a lesson for his alleged mistreatment of his wife, not to kill him.

The appellants appealed against their convictions on the ground that they did not have a fair trial due to the conduct of the trial judge, Mr Justice Ian Kennedy. They complained that he descended into the arena, prevented each of the appellants from giving evidence in chief properly and intervened with such frequency and hostility throughout their evidence as to deny them a fair hearing and conveyed to the jury his disbelief of their evidence.

Julian Bevan QC and Ian Croxford QC (Kingsley Napley); Rock Tansey QC and Philip Statman (Simons Muirhead Burton) for the appellants; JC Kellett (CPS) for the Crown.

LORD TAYLOR LCJ, giving the court's judgment, said that the court had read the lengthy transcripts with the numerous interventions of the judge. It was complained that during the first appellant's evidence in chief, the judge interrupted her narrative by questions having the quality of hostile cross-examination and during her cross-examination continued to ask hostile questions, including 14 interventions during the Crown's cross-examination.

The second appellant fared no better. During one lengthy intervention, counsel for the second appellant sat down in desperation. It was no part of a judge's duty during examination in chief to cross-examine the defendant, either 'to understand to what extent he is in agreement with the last witness' or 'to make certain that he does mean to say what he has said'. In one instance, not only did the judge intervene in a hostile manner, but he took a false point suggesting the witness had contradicted himself when he had not.

In one passage the judge took over the cross-examination and asked 51 questions with the effect of ridiculing the appellants' account.

The judge's interventions during the evidence of the two appellants went far beyond the bounds of legitimate judicial conduct. In their evidence in chief he interrupted the flow of their narrative not simply to clarify what they were saying but to pour scorn on it. Whether or not their story was improbable, they and their counsel were prevented from presenting it as they wished.

The appellants were cross examined on their account as they were advancing it and before it had been developed. The court had been driven to the conclusion that the appellants were deprived of their right to a fair trial and there was a denial of justice.

The judge began his summing-up with a more than usually lengthy passage stressing that the facts were for the jury and seeking to explain the purpose of his questions to the appellants. However, what had happened could not be cured in the summing-up.

There were circumstances in which and purposes for which it was entirely appropriate for a judge to intervene during the evidence. If a witness gave an ambiguous answer, the judge should have it clarified as briefly as possible. If the answer was long or the judge did not hear it clearly, he might have it repeated for the purposes of his note.

The Royal Commission on Criminal Justice had recommended that judges should be more 'interventionist' so as to prevent trials becoming protracted. The court

entirely supported that recommendation. Judges should intervene to curb prolixity and repetition and to exclude irrelevance, discursiveness and oppression of witnesses. But all that was a far cry from what occurred here, where very experienced counsel were seeking to do their duty without hesitation, deviation or repetition.

The appeal should be allowed and the case retried.

Ying Hui Tan, Barrister