Judges must not prejudice accused’s right to fair trial

The Judicial Committee of the Privy Council so held, allowing an appeal by the defendant, Peter Michel, from the dismissal by the Court of Appeal of Jersey (Mr Michael Birt, QC, Deputy Bailiff, Mr David Vaughan, QC and Mr Geoffrey Vos, QC) on December 13, 2007, of his appeal from his conviction on May 14, 2007, in the Inferior Number of the Royal Court of Jersey (Sir Geoffrey Nice, QC, Commissioner, sitting with two jurats) on nine counts of money laundering contrary to article 32 of the Proceeds of Crime (Jersey) Law 1999.

Mr Peter Knox, QC and Mr Gideon Cammerman for the defendant; Mr William Bailhache, QC, Attorney-General of Jersey, and Mr David Farrer, QC, for the prosecution.

LORD BROWN, giving the report of the Judicial Committee, said that it was not often that defence counsel, appealing on the ground of an unfair hearing, was able to turn the appeal court’s feeling from initial rueful concern to eventual deep dismay simply by reference to the number and character of the judge’s interventions in the course of the trial.

The central ground of appeal focused entirely on the commissioner’s conduct of the hearing; his continued interruptions of the evidence, of prosecution witnesses as well as of the defendant himself, of evidence-in-chief as well as cross-examination. During the Crown’s case, the commissioner time and again asked questions damaging to the defence case which prosecuting counsel could never have asked.

During the defendant’s own evidence, the commissioner intervened on no fewer than 273 occasions, 138 of them during evidence-in-chief. Generally, that was with a whole series of questions taking up over 18 per cent of the defendant’s eight and a half days in the witness box.

Of greater significance than the mere number or length of those interruptions was, however, their character. For the most part, they amounted to cross-examination, generally hostile. By his questioning, the commissioner evinced not merely scepticism but sometimes downright incredulity as to the defence being advanced. On occasion the questioning was variously sarcastic, mocking and patronising.

In the context of a fairness challenge, the sole touchstone of a safe conviction was whether the appeal court could be satisfied that the jury, here the jurats, would inevitably have come to the same conclusion even without the judge’s inappropriate intervention. The case against the defendants was a formidable one.

There was however a wider principle in play, merely than safety, in terms of the correctness of the conviction. There came a point when however obviously guilty an accused person might appear to be, the appeal court reviewing his conviction could not escape the conclusion that he simply had not been fairly tried. So far from the judge having umpired the contest, rather he had acted effectively as a second prosecutor.

The clearest enunciation of that wider principle was found in the opinion of Lord Bingham of Cornhill in Randall v The Queen (The Times April 24, 2002; [2002] 1 WLR 2237) where the conviction was quashed because of persistent misconduct by prosecuting counsel which the judge had failed to control.

As Lord Bingham said, there would come a point when the departure from good practice was so gross, or so persistent, or so prejudicial, or so irremediable, that an appellate court would have no choice but to condemn a trial as unfair and quash a conviction as unsafe, however strong the grounds for believing the defendant to be guilty.

The right to a fair trial was one to be enjoyed by the guilty as well as the innocent, since a defendant was presumed to be innocent until proved to be otherwise in a fairly conducted trial.

Not merely was the accused in such a case deprived of the opportunity of having his evidence considered by the jury in the way that he was entitled to, he was denied too the basic right underlying the adversarial system of trial, whether by jury or jurat; that of having an impartial judge to see fair play in the conduct of the case against him.

Under the common-law system, one lawyer made the case against the accused; another, his case in response, and a third held the balance between them, ensuring that the case against the accused was properly and fairly advanced in accordance with the rules of evidence and procedure.

The core principle that under the adversarial system the judge remained aloof from the fray and neutral during the elicitation of the evidence applied no less to civil litigation than to criminal trials: see the judgment of Lord Justice Denning in Jones v National Coal Board ([1957] 2 QB 55, 64).

The need for a judge to steer clear of advocacy was more acute still in criminal cases. It was imperative that a party to litigation, above all a convicted defendant, would leave court feeling that he had had a fair trial, or at least that a reasonable observer having attended the proceedings would so regard it.

None of that was to say that judges presiding over criminal trials by jury could not attempt to assist the jury to arrive at the truth. On the contrary they should. That was part of their task.

Judges existed to see that justice was done and justice required that the guilty be convicted as well as that the innocent went free. But for the most part they should do so, not by questioning of the witnesses, but rather by way of a carefully crafted summing-up. But the judge in his summing-up must make it abundantly plain that the all important conclusion on the facts was for the jury alone.

In Jersey, where the facts were decided by jurats, the facts were not summed up. But that could not justify the commissioner seeking to give the jurats the benefit of his analytical powers by way of his own extensive examination of the witnesses, or indicating his thinking by the nature of his questions and comments. It did not entitle him to conduct the hearing in any way different from that ordinarily required of a judge at trial.

He could clarify ambiguities and he could clarify the answers being given. But he should be seeking to promote the orderly elicitation of the evidence, not needlessly interrupting its flow.

He must not cross-examine witnesses, especially not during evidence-in-chief. He must not appear hostile to witnesses, least of all the defendant. He must not belittle or denigrate the defence case. He must not be sarcastic or snide. He must not comment on the evidence while it was being given. And above all, he must not make obvious to all his own profound disbelief in the defence being advanced.

The commissioner’s interventions during the trial breached each one of those canons. One could understand his incredulity during parts of the defendant’s evidence. But quite why he thought it necessary to manifest it was altogether more difficult to follow. Not only was it improper, but he could scarcely have thought the jurats unable to perceive many of the defence’s implausibilities, inconsistencies and illogicalities.

No one had sought to justify the bulk of those interventions and in the end it was their sheer volume which compelled the conclusion that the conviction could not stand. The conviction was quashed and the case was remitted to the Court of Appeal of Jersey to decide whether or not to order a fresh trial.

Solicitors: Charles Russell LLP; Baker & McKenzie LLP.