England and Wales Court of Appeal (Criminal Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM CROWN COURT AT SNARESBROOK
HHJ MEDAWAR AND A JURY

		Royal Courts of Justice Strand, London, WC2A 2LL
		28 July 2005

Lord Justice Judge :

1. On 22nd September 2004, in the Crown Court at Snaresbrook, before HHJ Medawar QC and a jury, the appellant was convicted of two offences, theft and obtaining property by deception. She was sentenced to a community punishment and rehabilitation order consisting of 60 hours community punishment and 12 months community rehabilitation on each count to run concurrently.
2. On 20th July 2005, at the conclusion of the argument, we quashed the conviction. These are our reasons for doing so.
3. The essential facts, in what was pre-eminently a case for the decision of the jury, can be briefly summarised.
4. On 5th December 2003, a switch debit card belonging to Ilene Marino was stolen from her handbag at Moorfields Primary School, Old Street. Later that evening the card was used in the Old Street branch of Argos to purchase a gold necklace valued at £299. Mrs Marino did not appreciate that she had lost her card until 7th December.
5. CCTV footage was recovered from the shop. This showed a black woman, wearing a white hat, purchasing the necklace with a card. The stills from the CCTV footage were shown to the headmistress of the school. She did not make an identification. The precise reasons were differently described, and for present purposes do not matter. However, at her suggestion, the stills were then shown to a teacher at the school, Zoe Thomas, and she positively identified the appellant, a colleague at the school, as the person using the card to purchase the gold necklace.
6. The CCTV footage was recovered by PC Leach. He also obtained the stills which were shown first to the headmistress, and then to Zoe Thomas. He said that Miss Thomas had looked at the stills and immediately identified the appellant. When cross-examined, he said that Miss Thomas had not been present when he discussed the identification she had made with the headmistress.
7. Another police officer, PC Gilchrist, described how the appellant had attended the police station by appointment, and that she had been interviewed twice, and on advice, provided "no comment" responses. She also confirmed that a search of the appellant's house had not revealed the clothing shown by the woman depicted in the stills. As a result of cross-examination, she confirmed that the switch card had been used some seven minutes before it was used in Argos. Thus it was used twice, and the fraud on the bank account amounted to £347.28.
8. The prosecution case was that the appellant had stolen the card and then used it to buy the gold chain, the basis of the allegation was the positive identification by Zoe Thomas of the appellant using the CCTV stills, and the CCTV images themselves, which, so the Crown contended, were sufficiently clear to allow a proper identification of the person as the individual purchasing the gold necklace.
9. The defence case was that the appellant had not stolen the debit card, and therefore could not have used it to buy the chain. Zoe Thomas was mistaken. Although the case was approached on behalf of the defendant as if it were a case of mistaken identity, some of the questions put to Zoe Thomas in cross-examination constituted an implicit attack on her integrity, as well as the accuracy of her identification.
10. There were two distinct grounds of appeal. One related, so to speak, to the merits of the case and the quality of the evidence relating to the identification of the defendant as the purchaser of the gold necklace at Argos. Leave to appeal this ground was refused, and the application for leave was not renewed. The second ground criticised the judge's conduct of the trial, in particular his behaviour towards defence counsel, which it is said undermined what may be conveniently be described as due process, and deprived the defendant of a fair trial. In fact, as we shall see, some of the unfortunate exchanges between the judge and counsel arose from counsel's concern about the identification issue.
11. Before the jury was sworn, counsel for the defendant – not Mr Henley who appeared before us – sought the exclusion of the evidence of the stills and challenged the admissibility of the evidence on which Miss Thomas' identification was based. She relied on s 78 of the Police and Criminal Evidence Act 1984. The judge responded by suggesting that this was not the appropriate time, and when counsel said that she did not propose to seek a voir dire, the judge agreed that she would not have one. Counsel then drew attention to the evidence of Miss Thomas, who purported to recognise the appellant, and suggested that proper records of the purported identification were not made. The judge told her that this was not time "to be making this application. If, at the end of the prosecution case, if you think it is worthwhile no doubt you may make a submission of some kind but not now". Counsel responded by suggesting that the judge had a discretion, and he told her in direct terms that he did not have one, and that it was "not the right time". Counsel persisted, pointing out that the process by which Miss Thomas' identification took place made it, as she put it, "extremely difficult for the identification properly to be challenged". After a short further discussion, counsel for the prosecution submitted that the appropriate time for any application would be after the close of the prosecution case, and the judge entirely agreed with him.
12. We doubt whether the judge was right to believe that he lacked any discretion to consider the admissibility point. After all, the essence of s 78 is the exercise of judicial discretion. However, more important, if, as he indicated, the submission on admissibility should be postponed until the end of the prosecution case, by then, for all effective purposes, the decision would have been made: the evidence sought to be excluded would already have been put before the jury. For obvious reasons, decisions relating to the admissibility of the Crown's evidence are normally completed before the challenged evidence is put before the jury, and before the close of the prosecution's case.
13. The jury was sworn. Counsel for the Crown opened his case. In it he said that the defendant was identified from still photographs. He also told the jury that they would have the opportunity to consider the photographs so that they could assess the evidence themselves. During the course of the opening the judge intervened to stop counsel for the Crown discussing relevant law with the jury. In this, we fully agree with the judge. As he explained, in the context of the meaning of "theft", "everyone knows in general terms what theft it". He suggested that it was not necessary for counsel to go through legal definitions. We further agree that in this case the jury needed no assistance about the law from counsel for the Crown in his opening save perhaps, and we emphasise perhaps, to remind the jury of the burden and standard of proof. We are not minded to criticise Mr Douglas-Jones. He was reflecting a habit which has become ingrained in the system. It is a bad habit, and it should be broken. The presumption should be that an opening address by counsel for the Crown should not address the law, save in cases of real complication and difficulty where counsel believes and the trial judge agrees that the jury may be assisted by a brief and well-focussed submission.
14. On the morning after counsel had concluded his opening, in the absence of the jury, counsel for the defence returned to the issue of the identification by Miss Thomas. Her concern was that the Crown had opened the case on the double basis of Miss Thomas' identification, and the suggestion that the jury would in due course make its own assessment. Counsel did not say, and it is not suggested to us, that she had invited counsel for the Crown not to open this material. In any event it was a little difficult, at the outset at any rate, to deduce precisely what the application was. The judge asked her in terms, "If you are making an application, would you kindly tell me what it is." Counsel replied:

"Yes. My application, first of all, is to say that it is wrong for the Crown to rely on both those propositions, because of the case I have just cited to your Honour. They have to say either that the quality ... "

The judge then interrupted. He said:

"Do not be ridiculous. Of course, they do not have to either/or they can say both."

15. The judge continued that there may be circumstances in which a third possibility would be appropriate. Counsel then said that she would be:

"extremely grateful if your Honour would let me make an application ...".

The judge interrupted again saying:

"No, because you are not making an application, you are simply saying that in some way the Crown have opened the case in a way that it is not possible, and, of course, it is possible."

Counsel said to the judge:

"Your Honour, if I may make this point and then we can move on. If Miss Thomas is an expert, because she is giving opinion evidence as an expert, then ..."

The judge again interrupted:

"No, she is not an expert."

Counsel persisted:

"Well, if she is to give ... if opinion evidence is not admissible per se in a trial, unless it is given by an expert ..."

The judge again interrupted:

"I am simply not going to take up any more time with this application."

16. Normal rules of courtesy suggest that the trial judge and counsel should not interrupt each other. On the other hand at this stage of the proceedings counsel appeared to be making an unfocussed submission, in effect appearing to argue a different slant about a point on which the judge had already ruled. We are therefore not unsympathetic with the judge's anxiety that time should not be wasted. That said, there was no justification for the insulting message that counsel was being "ridiculous".
17. Unfortunately, counsel then continued the argument, repeating her submissions using different words. The judge told her that he did not agree and that he was not going to take up any more time. He repeated that the appropriate time might be at the end of the prosecution case. "The jury will come in and we will get on with the case".
18. That really should have been an end of this argument. Nevertheless counsel returned to it, repeating herself, and the judge interrupted to say, "Alright, now, let us have the jury in". Counsel was undeterred. The judge said, "Please ... will you please ..." but counsel continued, leading the judge to say to her, "Will you confine yourself to where you are and stop constantly, and this is not the first case in which this has happened, when you want to raise something that is appropriate at another time. Now, be sensible and ...". Counsel interrupted, suggesting that she had another application, but Judge Medawar continued "... this sort of behaviour just results in a waste of time as you know. Now, let us get on with it." Counsel then raised an administrative matter which was dealt with very rapidly, and the judge asked for the jury to be brought in.
19. Again, we highlight this exchange as an example of another bad habit which has crept into the conduct of trials and which should stop.
20. Right or wrong, the judge's ruling is or should be the end of an argument, or an application. Mr Henley submitted to us that counsel, doing his duty on behalf of his client, should return to matters if he feels that the judge has misunderstood counsel's contention, or if he believes that he has failed to explain his contentions with sufficient clarity. We disagree. Counsel is not entitled to keep pressing the judge about a ruling with which he disagrees on the basis of his duty to his client. The remedy for an incorrect ruling is provided in this Court. It does not take the form of trying to re-embark on the argument in an endeavour to persuade the judge to a judicial rethink of a ruling that he has already given, at any rate unless and until the circumstances have changed.
21. This situation should be distinguished from an indication by the judge of a preliminary view. Then, of course, he has given no ruling, and counsel may then seek to persuade him to the contrary. However in a criminal trial there really can be no clearer indication that, so far as the judge is concerned, a point is closed, than a request by him for the jury to be brought into court.
22. We have reflected on the judge's efforts to curb counsel. It was suggested that he should not have told counsel to "be sensible" or criticised her behaviour as a "waste of time". Observations like these have to be put in context. Because they are normally unnecessary, they are usually inappropriate. Taken on their own, in the particular context of this case, and the stage and circumstances in which they were used in this trial, they would certainly have been insufficient on their own to persuade us that the trial was unfair. At this stage the judge was doing his best to see that the trial was making progress.
23. Unfortunately that was not the end of it, and although it seems plain that counsel did not operate as quickly as some, the pattern which emerges hereafter is of increasing judicial impatience and irritation, probably compounded by the judge's belief that he had had previous encounters with counsel, when, according to counsel, she had only appeared before the judge on a single previous occasion when the trial then listed did not proceed. There had been no previous history of any conflict between them, nor as far as we can ascertain, any previous occasion when the judge would have had cause to be concerned about counsel's conduct.
24. During the course of cross-examination of the victim, counsel asked her she had made a note of events on 5th December (that is, before the victim had become aware of the loss of her credit card). The judge interrupted to say that the witness had:

"made no note of anything"

and told counsel:

"Let us not be silly. Let us move on".

As the cross-examination continued, the judge intervened in relation to another series of questions:

"Well, what is this nonsense about her not looking at the copy document …".

This intervention led counsel to comment:

"I think that is rather unfair, your Honour. I am not …".

The judge interrupted:

"Well, it is not unfair at all. Anyone dealing with a case properly would have said by now there is no … you have not made the suggestion, so, presumably, you are accepting that that is not her signature?"

The exchange continued briefly and culminated with the judge saying,

"Then, let her look at this copy. This is really nonsense."

In this short exchange, in the presence of the jury, counsel was twice told that she was behaving or talking nonsensically, once told that she was being silly, and it was once suggested that she was not dealing with the case properly.

25. No specific problems arise in relation to the evidence of the witness who purported to identify the defendant. However problems arose with the evidence of PC Leech. Counsel began her cross-examination by asking about the relevant codes required to be applied when the police were dealing with identification issues. She commented (rather than questioned) that it was "vitally important to allow the jury to assess the strength of the evidence, to comply with certain safeguards are were put in place, when you show photographs to witnesses?" Counsel for the Crown saw that as an implication that the police officer had not been acting in accordance with the relevant codes. He asked for the jury to leave court so that he could argue that this line of cross-examination was inappropriate. After hearing him, and before inviting submissions from counsel for the defendant, the judge observed:

"… it is not a proper way to question anyway …"

And then addressing counsel for the defendant:

"You are given to … whilst it is quite appropriate for defence counsel to take every point, you go beyond that which is proper on so many occasions that it is another one of them. Had it been an appropriate way of dealing with the case, it would not have been an appropriate way to ask the question."

26. With that introduction he invited her submissions about the relevant Code. Some discussion then emerged about the fact that the one person who was present was the headmistress, and she had not given any evidence incriminating the defendant. The judge made a number of assumptions about the position of the headmistress which were not sustained by the evidence. However that said, counsel invited the judge to allow her, notwithstanding his ruling that she should not ask any questions about specific breaches of the relevant Code, to permit cross-examination about the circumstances of the identification. The judge responded:

"Well, you are, provided you exercise extreme caution, because it is very easy for you to overstep the mark …"

27. The exchange continued, and counsel suggested to the judge that the observation was "very unfair".

He replied:

"No it is not. It is not."

Counsel then said:

"I am not sure which circumstances …".

This led the judge to reply,

"We have come across each other before …"

and he went on

"This is not the first occasion and whilst, in your enthusiasm to exercise what you see as the rights of defence counsel, you go close to if not beyond the line on almost every occasion …"

Brushing aside an attempt by counsel to comment, he went on

"You do not seem to have the capacity just to deal with things in a proper way. Now as long as you exercise extreme caution you will hear nothing from me, but overstep the mark and I will upbraid you about it, because I am not having it …".

28. There then was a short passage where both counsel and the judge were speaking together. The transcript reads:

"Counsel: Well, your Honour, I would appreciate ….

Judge: As I have said on other occasions …

Counsel: In that event, if your Honour would please tell me, so that it is not said in front of the jury, as your Honour just said which …

Judge: Well, I am afraid it will be, because I am giving you … you must act responsibly, if you go beyond it and start going beyond it, then I will do my best to indicate that you are doing so, but is perfectly obvious and you know perfectly well how to behave yourself. You are not a baby barrister, you've been doing this for some time, so you know perfectly well and everything you do is deliberate."

29. This exchange occurred in the absence of the jury during a discussion about a point of law. The defendant, of course, was present. The judge's observations were wholly disproportionate. Despite the criticisms we have made of counsel at the beginning of the trial, during subsequent exchanges she remained courteous and behaved properly. The judge was, of course, entitled to reject her submission, and to criticise the questions she had asked, or intended to ask in cross-examination. What however we have here was a personal attack not only on her skill, but in effect on her professional integrity. He was saying that counsel went beyond the line of propriety, and that she knew what she was doing, and nevertheless did it deliberately. In fairness to counsel, we have to record that this attack on her integrity was unjustified. We cannot discern any basis for it. Indeed we wonder whether the judge can really have appreciated the full implications of and the cumulative effect of the language he was using, and whether he did or not, its likely impact on the defendant, observing these unfortunate exchanges.
30. Counsel then sought the judge's permission, and he gave it, to ask specific questions. The exchange included this observation by the judge.

"You see, if you do these things properly and you ask the questions and you say it on the basis: don't you think you should have made a note? That is one way of putting it, but the way you tend to put it is far more abrasively than that. You say: Oh you did not make a note. And then make something of it, to try and make some false point and that is what I object to. I do not mind you asking the questions, it is when you start moving to a false point and you know perfectly well the difference."

Counsel's response was:

"No: I am sorry, your Honour, I do not …",

to which the judge replied,

"Or at least you should do".

Counsel said:

"I do not know which false point your honour is referring to",

and the judge said that he was going to leave it to her to get on with it otherwise more time would be being spent out of court. This further exchange simply underlined the judge's view that counsel was prone to making not bad or mistaken points, but false ones. It must be read in context of the earlier exchange and the judge's aspersions on her integrity.

31. Eventually the jury returned and the judge directed them to "put aside any query" they had "mistakenly heard from counsel to this police officer … None of those matters then have anything to do with the case and take it from now".
32. The cross-examination proceeded to its conclusion without further difficulties.
33. When PC Gilchrist gave evidence she explained the formal arrangements for the interview with the defendant. The judge asked her to explain the caution, which she did, and then asked counsel for the Crown whether he was going to produce the interview record. He replied that he was not, "because it is a 'no comment' interview." The judge asked whether that made any difference and suggested that normally the jury would see the questions. The judge suggested that there was "no authority for withholding these statements from the jury".
34. This led counsel for the defendant to point out that the questions asked by the police were not evidence in the case, and if the answers consisted of "no comments", in themselves they provided no evidence. The judge responded:

"You know perfectly well that that is not the reason. The answer is there is no answer to the questions at that time and that may be relied on by the Crown as evidence from which inferences can be drawn".

The exchange continued in the presence of the jury with counsel saying,

"Of course, your Honour in cross-examination …"

to which the judge responded,

"and those inferences cannot be drawn without seeing what the questions were."

Counsel pointed out that that would arise if the defendant gave evidence in which case the questions could be produced at that stage. She was right. And the judge then said,

"I see, you have not made your mind up whether you are going to call the defendant."

Counsel said that she had not.

35. However the case then proceeded with the judge inviting counsel for the prosecution to go through the questions that he wanted so that they could "just listen to them and we may or may not see a copy later". And this is what counsel for the Crown did, selecting a number of questions that were put to the defendant. After a few questions, counsel for the defendant asked for the matter to be considered in the absence of the jury. In the result, no point is taken on the way in which this part of the case was addressed.
36. We must briefly address the problem which arose at this stage, not least because the practice among prosecutors and judges is not uniform. In judgment, however, the principle is straightforward. The questions asked by a police officer, whether he is quoting from another witness statement, or not, do not constitute evidence for or against the defendant. Although the answers to those questions may do so, if the only answers given in the course of the interview consist of "no comment", then in reality the questions are not being answered at all. Therefore, normally, the questions which gave rise to a "no comment" interview or series of answers should not be before the jury until the defendant has given evidence when it may become appropriate to refer to them.
37. At that stage "no comment" does not amount to evidence for or against the defendant. The caution itself says in terms that the defence may be harmed if the defendant does not mention something later relied on in court: at that stage, but only then, different considerations may arise.
38. After lunch, counsel on behalf of the defendant, in the absence of the jury, raised concerns expressed to her by her client. We do not have a full record of precisely what was said, beyond a note that the basis for the submission was that the defendant had expressed anxiety to her counsel that she was not receiving a fair trial. We are told, and we have no reason to doubt, that the defendant indicated that she had picked up that there had been previous disputes between her counsel and the judge, and this formed the basis for her concerns. In short, she had heard the exchanges to which we have already referred, and we have no reason to doubt that she was troubled by them, and we would add, that it was not unreasonable for her to be troubled by them.
39. Of itself, the fact that a defendant may invite his counsel to complain about the judge's behaviour is far from conclusive about any aspect of the trial. If it were so, any defendant who felt that the trial was going badly, would instruct his counsel to make a submission recording his (the defendant's) dissatisfaction with the fairness of the trial judge, with a view to bringing a perfectly satisfactory trial to an end. Here, however, it is significant that the defendant's concern was triggered by a specific concern arising from the exchanges which we have already recorded, a concern that we share. Although it is by no means conclusive, in this particular case the anxiety expressed on the defendant's behalf about what was happening is a feature that we have borne firmly in mind.
40. During the course of her cross-examination of PC Gilchrist, the cross-examination had "put in" that the second transaction involving the stolen card had taken place on 5th December. Counsel for the defendant was not sure which of her questions had had that consequence. The judge commented:

"You have quite unnecessarily gone into … the use of the card",

and he then went on,

"for some reason known best to yourself, picking through every little stone, in case there is something that might fortuitously come up, you've gone into the whole business of the card and so forth, and, now, counsel quite fairly, unnecessarily fairly, actually had left out the second transaction and I think now he is entitled to put it in".

It was submitted that nothing that had been done warranted or required mention of the first transaction to which the judge said:

"I do not know why you did it, but it is your way and you think there is a benefit in it, I am afraid I do not. Anyway, there we are."

The jury returned to court.

41. The re-examination proceeded and the fact of the earlier use of the card was adduced in evidence. When counsel for the Crown had finished, counsel for the defendant stood up to ask a question about this first transaction and the judge, in the presence of the jury, said,

"Well, listen to the question, if he [a reference to counsel for the Crown] does not object you can ask it. I cannot imagine what question you want to ask but there we are. Go on."

Counsel then asked a single question and the evidence of the officer was completed.

42. The trial then proceeded with the defendant giving evidence. Counsel for each side addressed the jury. During the course of her speech counsel for the defendant said,

"Bear in mind when the card went missing and if you need to see the CCTV again, then, please, ask and you will be shown that, because it may assist you in deciding whether or not it is a clearer image".

43. After a few short sentences counsel ended her speech. It was virtually the end of the day. The jury was invited to go home. After they left court the judge commented to counsel:

"You see, you just find yourself unable to stop. Again, you have told the jury that if they want to they can see the tape. The answer to that is they cannot. It is not an exhibit and it deliberately was not made an exhibit, so we would not have difficulties in the middle of the jury being out and wanting to come back and look at it because there are stills in this case."

Counsel apologised saying,

"I did not realise … "

and the judge said that he was not going to discuss it but he was merely

"pointing out with you so that you if would pay attention to what is going on, you would know that is the position. If you are going to raise those sorts of matters, it is as well to mention it to the judge to see whether he approves of that course or not, but I am afraid you are not alone these days, there are many young barristers who feel it is necessary to tell the jury things that are not going to happen, or tell them what they imagine the judge is going to say. I must say you have restrained yourself from doing that, for which I am grateful, but it does not help, as a rule."

44. The reprimand at the end of the day was unfair. Ignoring altogether its tone, and the language used, the CCTV video had in fact been shown to the jury was therefore an exhibit. Indeed at the time when the issue of the CCTV video was discussed, the judge had stated that it should not become an exhibit unless it was shown, which by the time counsel had addressed the jury, it had been. Although there was no formal exhibit number, the video was an exhibit, and it was perfectly proper for counsel to tell the jury that it was available to them. For present purposes, however, the way in which the judge criticised counsel reinforced his earlier repeated criticism of counsel's skill and experience.
45. With that the court adjourned. On the following morning counsel for the prosecution raised two points, suggesting that counsel for the defendant had misrepresented what he had said about the white hat, and her submission that the evidence of Miss Thomas could be ignored. The judge commented,

"I know, she was quite wrong. Well, I am afraid this is what [counsel] does quite frequently and I am not proposing to say anything about it, because I understand your irritation and you can understand why I become irritated at times with this silliness, but I imagine it was inadvertent on her part and only to discuss it now only gives it a weight which it does not deserve. I will sum up in a way that I think is correct and we will leave it there …. Thank you for drawing my attention to it and I can understand your irritation. All right."

46. Counsel asked to address the judge on the hat issue, and he responded that he did not need her to address him at all. This brief exchange on the morning before the judge summed the case up to the jury speaks for itself. It is clear to us not only that the judge was indeed irritated by counsel, but that if he made any effort at all to conceal it, he had, as the narrative account of this trial demonstrates, been unsuccessful.
47. No point is taken about the summing up. We note that the judge suggested to the jury that the complainant's evidence was entirely straightforward and capable of belief, and that he observed about Miss Thomas, the crucial witness against the appellant that "She too, you may think, was a very straightforward witness, capable of belief." The transcript includes a question mark after "belief", from which we infer that the judge's tone suggested that this was a question for the jury. Given the challenge to her evidence, including the motivation for it, although not on its own providing the basis for a successful appeal, it would have been preferable for these observations to have been omitted.
48. These convictions followed an unsatisfactory trial. We expect judges to be robust, and we are not troubled when counsel are over-sensitive to criticism. We also recognise that from time to time judges will become impatient, sometimes unjustifiably so, without undermining the safety of the conviction. The stark problem in the present case was that the judge's attitude and conduct towards counsel for the defendant was unfair. In truth, this trial became over-infused with what appears to have been a repeated and unnecessary demonstrations of inappropriate personal animosity towards counsel which involved public criticism not only of her ability, but also of her integrity. These interfered to a marked degree with the normal due process required at every trial. This had the inevitable effect of damaging the defendant's confidence in the administration of justice in her case. Our reading of the transcripts shows that the perception of any reasonable observer present at the trial would have been similarly damaged.
49. In these circumstances we concluded that the convictions were not safe, and accordingly allowed the appeal. When a conviction is quashed on this basis, the usual order is that there should be a retrial. However we have reflected on the age of the offence, and the nature of the penalty imposed on the defendant, as well as the time that has elapsed since the penalty was imposed. In our judgment a new trial of these issues would be inappropriate.