England and Wales Court of Appeal (Criminal Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM WARWICK CROWN COURT
His Honour Judge Marten Coates
T20047370

		Royal Courts of Justice Strand, London, WC2A 2LL
		29 March 2007

Lord Justice Thomas :

1. The prosecution case against the appellant was that he had sexually abused his niece EB between 1989 and 1996 when she was between the ages of 6 and 14. He had on a single occasion in 1985 also indecently assaulted her older sister, BL, when she was 6½. The defence case was that the accounts were fabricated; nothing of the kind had happened. The appellant was tried at the Crown Court at Warwick in April 2005; on 13 April he was convicted on counts of rape, gross indecency with a child, sexual assault on a female and indecent assault on a female; he was acquitted on one count. He was sentenced to concurrent terms of 8 years imprisonment for the counts of rape with an extended licence period. On the other counts he was sentenced to a concurrent period of imprisonment of four years on each count.
2. He appeals against conviction and sentence, 10 months out of time, by leave of the single judge. The grounds of the appeal against conviction can be grouped under four headings.

i) A failure by the judge to direct the jury in relation to collusion.

ii) A failure by those acting for the appellant to take witness statements from two potentially key witnesses and to call those witnesses.

iii) Interventions by the trial judge which had the effect of curtailing cross examination by the defence and undermining the evidence of any potential defence witnesses and improper pressure from the trial judge not to call evidence in support of the defence case.

iv) An intervention by the trial judge which had the effect of undermining if not destroying the appellant's credibility in the eyes of the jury.

In the result, and in particular as a result of the third ground, it was contended that the conduct of the trial by defence counsel and the trial judge was such as to render the verdict unsafe. The third ground gives rise to day-to-day issues relating to the application in practice of the duty of a trial judge to manage a trial under the Criminal Procedure Rules and in accordance with the guidance given on trial management in R v. Chaban [2003] EWCA Crim 1012 and other cases. The appellant's case in this court was ably advanced by Mr Michael Turner QC who did not appear at the trial.

Evidence at the trial

3. The general evidence relating to the allegations of abuse can be summarised as follows:

i) EB's evidence was that from the age of 3 she had stayed with the appellant and his wife, June. June was absent on occasions at work or with friends. The appellant slept in the afternoon and invited her into his bedroom to join him on the bed. Initially he touched her over her clothing but as time progressed he put his hand under her clothing, fondled her and put his finger into her vagina. He would get her to stroke his penis. Matters then progressed to her giving him oral sex and him giving her oral sex. The appellant subsequently put his penis into her vagina on a number of occasions, but never ejaculated. EB also gave evidence that the appellant would buy her treats. He told her not to tell anyone or it would tear the family apart and she would not be believed. He told her that he was preparing her for her boyfriends.

ii) The appellant's evidence was that he had been married for 44 years and had no children; he accepted that EB regularly visited him and his wife. Until 1990 he worked as a bricklayer but had to give up work when his eyesight failed due to diabetes; his hours of work were 7 a.m. until between 6 and 9 p.m. His wife worked from 7 a.m. to 4.30 p.m. Before 1990 EB would only visit their home at weekends and his wife would always be present. The only time before 1990 when he would have been in sole charge of EB was when he collected her from her home to go and feed the ducks in the park. In cross examination he accepted that at weekends and school holidays he would often be at home alone in the house with EB. He had had no interest in sex for 20 years because of his diabetes. The appellant had agreed he had always been especially generous financially to EB, often buying her presents over the years. He accepted this had been over and above what he had spent on the other children in the family. He said it had nothing to do with keeping any secrets.

iii) His wife, June, also gave evidence. Her hours of work were as given by the appellant but, from about 1995, she started a different shift and either worked 6 a.m. to 2 p.m. or 2 p.m. to 10 p.m. Prior to 1990 when EB visited, she would be there to take care of her. It was only after the appellant left his work that he sometimes cared for EB at the bungalow. She had never witnessed any behaviour between the appellant and EB which she considered to be inappropriate.

4. The indictment charged the appellant with 3 specimen counts of rape (counts 3, 4 and 5) and a number of specific counts relating to particular incidents; there were two other counts of rape which covered a period prior to December 1988; as EB gave evidence that the abuse commenced after December 1988, the judge directed the jury to return verdicts of not guilty on those counts.

i) A specimen count in the indictment, count 6 (gross indecency with a child) related to occasions when a young girl called SW visited the appellant's house. It was alleged that the appellant, EB and SW would play a game of 'spin the bottle'. The bottle was spun and the person towards whom the bottle pointed when it stopped had to remove an item of clothing.

a) It was EB's evidence that this game had been played on some occasions and on one occasion EB ended up completely naked.

b) The prosecution also called SW. She had recalled once playing the game of 'spin the bottle' when Mrs L was away in Florida. They all removed some clothes, but none became naked. EB had encouraged her to join in and she had played the game with friends at school. The game had stopped when they got down to their underwear. It is important to note that she also gave evidence that she had never noticed anything unusual about EB's behaviour in the presence of the appellant; she had been on holidays with EB and the appellant and EB had always been loving to him and he had been loving back, but not in a sexual manner.

c) The appellant's evidence was that there had been an occasion when a game of 'spin the bottle' had been played as EB had learnt the game at a party. However, he had watched from the sofa and when the two girls had got down to their underpants and vest, he had stopped the game.

ii) Count 7, indecent assault, related to a specific occasion on which it was alleged that the appellant had touched EB on her chest whilst watching a pornographic film on television. Her evidence was that she was sitting on his lap; the appellant's evidence was she never sat on his lap and that he had not had pornography in his house. This was the count on which the appellant was acquitted by the jury.

iii) Counts 8 and 9, indecent assault on a female, related to two specific allegations as to what had happened behind the sofa in the appellant's living room:

a) It was EB's evidence that during the school holidays two of her male cousins (SK, then aged five and RM, then aged seven) came to the appellant's house. Whilst they were watching the television on two or three occasions the appellant made her strip off her clothes behind the sofa and on one occasion she had to touch his penis over his trousers. Neither SK nor RM gave evidence at the trial for reasons we shall explain at paragraphs 15-19 below.

b) The appellant's evidence was that the cousins had come on a couple of occasions only. He denied the allegation that EB had made; the account was impossible as the sofa was positioned up against the wall.

iv) Two further counts of indecent assault, counts 10 and 11, were based on EB's evidence that one of the bedrooms in the house was used as a gym; she was asked to go to that room by the appellant who forced her to sit on a bench with her hands up on a bar acting scenarios of naughty schoolgirls being punished. On occasions he tied her hands loosely with a dog lead and would strip off her clothes. He would then smack her bottom and touch her. This activity occurred between 20 and 30 times starting when she was about six years old. She said it was possible that her mother and the appellant's wife were present at the house on one occasion. The appellant accepted there was a room in the house with a sun bed and some items of equipment but he had never played 'naughty schoolgirl' games with EB as alleged. She had only been into the room to watch him do some weight training but he stopped when she arrived.

v) The final count involving EB, count 12, related to what EB claimed had happened in August 2004 when EB was 22 after she had broken up with her fiancé and the appellant and his wife had come to visit her.

a) EB's evidence was that during their visit she had gone to her bedroom to collect the appellant's birthday present but he had followed her upstairs. He had then touched her breasts and vagina over her trousers. He told her, "Watch out now, make sure nobody takes advantage of you". He suggested he should come and stay with her.

b) The appellant accepted that he had gone to EB's home because his wife was concerned about her following troubles with her then fiancé. There had been an incident in EB's bedroom but it amounted to no more than the appellant poking her in the chest during an argument. He was accusing her of having an affair with her office manager whilst living with her fiancé. He told her, "I know what you're doing; you'll get no more money until you stop playing about". He denied touching her on her breasts or vagina. After the incident EB wanted the appellant and his wife to look at a car which was for sale; they went to look but Mrs L would not agree to buy it for her or lend her the money.

5. There was evidence of prior complaint by EB:

i) EB gave evidence that as a result of the last incident she had confided in her friend Sean and then her mother. She had then reported the allegations to the police. Sean gave evidence that in about April 2004 EB had become distracted at work and he had asked her if she was all right. Eventually she had confided in him that she had been abused by the appellant from an early age. She had reluctantly provided details of the game of 'spin the bottle', digital penetration and sexual intercourse. He also recalled her describing a room in a separate part of the house where he would abuse her even when her own parents were in the house.

ii) EB had also given evidence that she had confided at a much earlier stage to her then boyfriend Mark and to others. Mark gave evidence that he had been her boyfriend and they had lived together for a period of 4½ years from November 1999. The first he had known of any difficulty in EB's childhood was a few months into their relationship when she told him she had been sexually abused from early age by the appellant. She never went into any detail and appeared to find the matter very painful emotionally.

6. One count, count 13, charged the appellant with indecent assault on BL in 1985.

i) Her evidence was that she had heard EB's allegations and as a result she confided that the appellant had also sexually abused her when she was about 6½. She said that she had gone to the appellant's house on a Saturday morning; her mother and Mrs L went shopping. The appellant took her upstairs and they lay on the bed together. The appellant placed his hand underneath her clothing onto her bottom and told her, "This is what boyfriends will do". He then told her it would be best not to mention the incident to her mother or to Mrs L. That was the only occasion on which anything untoward had happened. She had not mentioned it because she did not want to cause trouble in the family, but when she had heard about EB's allegation she realised she should have said something at the time.

ii) The appellant's evidence was that when BL visited it was always with her mother, her brothers and sisters. He had never looked after her alone and he had never sexually abused her.

7. The appellant was arrested in November 2004. He declined to answer questions when interviewed, apart from a single denial that he had abused the two complainants at all. When he was cross-examined about the reasons for no comment he rejected the suggestion that the reason that he did so was that he had no good response to the allegations. He was immediately re-examined by trial counsel who asked him why he answered no comment. He replied that he was advised to do so by his solicitor because his solicitor had said whatever he said the police would twist round. He added that when they left the interview his solicitor had asked the officer whether the police would let him know what they were going to charge the appellant with. The police sergeant had replied that the charges were already prepared. His solicitor had commented that in 50 years he had never heard of that before. It was at that stage that the judge made comments which form one of the grounds for appeal and to which we refer below at paragraphs 30-34.
8. We turn to the grounds of appeal in turn.

(i) The direction on collusion

9. Although there was no suggestion of collusion in the ordinary sense of the term of one or more witnesses discussing the case with others, it is clear from R v Ryder (1994) 98 Cr App R 242 that where there is the possibility that the evidence of one witness in a case such as this might unconsciously influence the evidence of another, the judge should give an appropriate direction to the jury that they should not use the evidence of the one to support the other if they consider that there is a real possibility of such influence.
10. It was submitted that the judge had failed to give such a direction in respect of the evidence of BL and EB. This had made the convictions unsafe because of the approach the judge had taken to the order in which the jury should consider the counts in the indictment. The judge had asked the jury to begin their consideration of the case by taking the count that related to BL first. He said:

"In some respects you can actually start your deliberations with Count 13. It is a single count from a lady who was never going to make a complaint and it is the earliest allegation in time."

Given the way the judge had asked the jury to approach the case, the fact that he had not given a specific direction on collusion made the verdict unsafe.

11. In considering this submission it is important to note that trial counsel did not suggest to BL that she had colluded with EB. He merely put it to her that her account was untrue and that she was here to support her sister EB. In his closing speech defence counsel did no more than to suggest that BL might be making a false allegation, perhaps to support or to lend credibility to the allegation that her sister made.
12. What the judge in fact did in the circumstances was to direct the jury that they first had to consider whether the evidence of BL was true; it was only if they were satisfied that it was true were they to take that evidence into account when considering where the truth lay in relation to the evidence of EB. If they decided that the account of BL was true, then it would provide some support in relation to the counts involving EB. It was for them to consider the circumstances, including BL's evidence that the appellant had done it when her mother and Mrs L were out shopping, that the appellant had told her that that was what boyfriends would do and that she should not tell anyone.
13. It was clear from the evidence of BL that she had said nothing when the incident she alleged had taken place and it was only when she had heard of the allegations that EB was making that she decided to tell others. This was a case where there was no collusion in the ordinary sense of the word, but the type of case where it would generally be necessary to tell the jury that they should only use the evidence of one witness as support for the account of another witness, if they were first satisfied that it was not a false account made to support that other witness.
14. In the present case the judge did not spell out to the jury that they should consider whether her evidence was false because of a desire to support her sister. But we do not think it was necessary in this case to spell that out. What the judge said was clear – the jury should only use the evidence of BL in relation to the other counts if they were first sure it was true. There was no need to go further in the circumstances of this case, because the only possibility as to why the account might be untrue was that BL had made the story up to help her sister. That must have been obvious to a jury; in the circumstances the direction given was right and there was no need to go further. As this court has said on numerous occasions, a summing up must be tailored to the circumstances of the case and should be neither formulaic nor over-elaborated. In this case, the judge gave a direction properly tailored to the circumstances of the case.

(ii) Failure of the defence to take statements from and call SK and RM

15. The prosecution served, as part of the unused material in the case, statements from SK and RM who had, according to EB's evidence, been present in the living room when the allegations set out in counts 8 and 9 took place (as set out at paragraph 4.iii) above). In those statements both SK and RM said they had been to the appellant's home but on no occasion had they seen anything untoward. They were not called at the trial.
16. Solicitors newly instructed on behalf of the appellant took statements from both on 2 October 2006. An application was made that their evidence should be heard by this court in the exercise of its powers under s.23 of the Criminal Appeal Act 1988. We decided that we would hear the evidence de bene esse as both had been ordered to attend and their evidence was very short.

i) SK's evidence was that although he would have been 5 or 6 at the time in about 1989 that EB had alleged that the appellant had abused her behind the sofa, he had a recollection of being at the appellant's house with EB and could say that EB had not gone behind the sofa with the appellant; EB had never been upset and he had seen no inappropriate behaviour. He accepted that he had only been asked to recall this in 2004 and his memory was not that good.

ii) RM also recalled visits when he was 9 and EB and SK being present; his uncle had sat on the sofa whilst they watched TV and he had not gone behind the sofa.

Both would have been available to come to court at the time of the trial.

17. In our view, although their evidence was admissible and capable of belief by a jury, there was, however, no reasonable explanation given for the failure to call these witnesses. On 17 January 2005, the Plea and Directions hearing had taken place; the opportunity was taken of a conference between counsel who appeared on behalf of the appellant at that hearing on 17 January 2005 (who was not trial counsel), the solicitor and the appellant; detailed advice was given on evidence. In the course of that advice, counsel told the solicitor he should consider taking statements from SK and RM. On 22 February 2005, the solicitor for the appellant sent trial counsel 6 statements taken on behalf of the appellant; statements from SK and RM were not included. Trial counsel advised in writing on those statements but did not question why statements had not been taken from RM or SK. When asked about the omission to take statements, neither the solicitor nor counsel had any recollection why statements were not taken.
18. Although, as was pointed out on behalf of the prosecution, EB had admitted in cross-examination that her account of the assault covered by counts 8 and 9 was extraordinary as two other persons were present, we accept that some advocates might have taken the view in this type of case that there was good reason to call these witnesses. Although they could add little, they would show that other members of the family, apart from the appellant's wife, had seen nothing untoward and were prepared to give evidence on behalf of the appellant.
19. However their evidence was no more than that; they were not key witnesses. Plainly consideration was given to calling them, their police statements had been seen and they were available, but they were not called. It was submitted to us that this must have been due to negligence on behalf of their solicitor or counsel. We cannot reach that conclusion. It is clear that the solicitor took a number of statements and forwarded these to counsel who advised on them; given this thorough approach to other aspects of the preparation of the case, there is no reason to infer that the failure to call them was due to negligence; no one can recall the reason, but the view may have been taken that they added little, as we have already observed. But even if the decision was negligent, this was not a case of flagrant incompetence or where the failure to call would give rise to any doubts about the safety of the conviction; their evidence on analysis added virtually nothing to the evidence before the court.

(iii) The judge's comments on the defence witnesses, the decision not to call defence witnesses and the judge's conduct of the trial.

(a) The decision not to call defence witnesses

20. The trial began on Monday, 11 April 2005. Prior to that occasion there had been hearings on 22 November 2004, 17 January 2005 and 4 April 2005; on each of those occasions, apart from the hearing on 17 January 2005, trial counsel had represented the appellant. As we have set out at paragraph 17 above, advice was given on evidence and the appellant's then solicitor and counsel carefully considered what witnesses to call.
21. It was anticipated at the outset of the case that, because of commitments of the judge in respect of another jurisdiction he exercised and of defence counsel to appear in this court, it might not be possible for the court to sit on the Thursday and Friday of that week. The judge made it clear, in the absence of the jury, that the case would be handled in such a way to ensure there was no unfairness to either the appellant or the witnesses in the case. Before the jury was empanelled the judge took the precaution of seeing whether any of the jurors would have a problem if the case went into the following week.
22. By the evening of Tuesday, 12 April 2005, the prosecution had called its evidence and closed its case, the appellant had given his evidence in chief and counsel for the prosecution had conducted a substantial part of her cross examination. When the jury left court shortly after 4.15, counsel for the prosecution made an application to the judge to adduce evidence of bad character to correct a false impression it was claimed the appellant had given; the judge refused this; in due course he gave a full good character direction in the summing up. The events which gave rise to part of this ground of appeal then occurred:

i) The judge enquired as to what further defence evidence there was and whether, if the court had an early start on the Wednesday, the jury could retire to consider their verdicts for a good half day or more on the Wednesday.

ii) After counsel had examined his diary he informed the judge he was intending to call Mrs L. The judge then said that he thought he might but he could not actually see to what purpose, as the appellant had admitted there was a time when he was alone in the house with EB. There had been no suggestion that there were any witnesses as to what went on and he wondered what Mrs L was going to say that was going to be of any great help. Trial counsel said that Mrs L was going to give evidence that the two were not alone together on anything like the number of occasions that were alleged. The judge commented that she was not going to be long whatever happened.

iii) Trial counsel then said that he had got two other witnesses as to fact who were very short and who would be five minutes each. On enquiry by the judge as to the issue in the case to which the witnesses went, trial counsel stated that they went to observations as to EB and the appellant getting on well together. The judge then commented that trial counsel had established that fact and it was perfectly clear that as people the appellant and EB had got on well together; SW had also given evidence of that (to which we have referred at paragraph 4 i)b). Trial counsel commented that if it was established then he might not need to call the witnesses.

iv) Counsel for the prosecution then said that if trial counsel for the appellant thought it was appropriate she would have a look at the evidence and see if she could agree it.

v) The judge commented,

"This case is about how they got on when people were not watching".

Trial counsel responded, "Yes, yes. It is essentially".

vi) There was then a discussion about a 9.45 a.m. start on the Wednesday with the prospect of the jury retiring at lunchtime on the Wednesday to consider their verdict.

23. On the following morning the judge saw counsel for the prosecution and for the appellant in his chambers. No recording of the conversation that then occurred was made; this was wrong as this court has repeatedly made clear. However the judge, when he came into court, said that he ought to put on record the fact that they had had a talk in his chambers about the form of the indictment and the remainder of the evidence. The judge then said that he had asked trial counsel about the witnesses he was going to call and had been told that he was going to call Mrs L. He then asked trial counsel in open court if that would be the end of his case. Trial counsel said that he needed to take instructions but could not speak to the appellant because he was in the middle of his evidence. The judge said he had no objection to him asking that point at that stage. The judge then said,

"Let us make it quite clear that I know that it is part of your case that you want to call people who say, "Nothing happened when I was there" and I have taken the view that that does not help for the fact that someone says, "It didn't happen when I was there" does not mean that it did not happen when they were not there, which is what the case is about and I really do not see that it goes to the issue in the case, Mrs L I understand and I thought it might be – have a word with your client. I am happy for you to speak to him about that."

The judge then rose while counsel took the appellant's instructions. The cross examination of the appellant was resumed and thereafter Mrs L was called but no other witnesses.

24. On the basis of the matters we have summarised in the preceding paragraphs, Mr Michael Turner QC contended:

i) that the intervention by the judge undermined the evidence of potential defence witnesses and put undue pressure upon defence counsel not to call any evidence in support of his client's case.

ii) there were six other witnesses who might have given evidence and the trial judge wrongly intervened to prevent the witnesses being called; they would have been important to the defence as they would have helped show that there were plenty of occasions when EB could have complained if the appellant had abused her, but she had not. It was clear that one of those defence counsel had intended to call was AS, the appellant's great niece who was 16 at time of the trial; the statement she had given to the appellant's then solicitor stated that she had always been treated in the same way as EB; she had never been uncomfortable with the appellant, had been on holiday with him and had walked with him when he was on his own on the beach at night. There was one other witnesses to the same effect and witnesses who spoke of the appellant's good character.

iii) the trial judge and defence counsel appeared to be under pressure from other commitments.

iv) In the circumstances, although trial counsel should have done better in protecting his client's position against a bullying judge, the judge had put totally improper pressure upon defence counsel to curtail his defence; he had wrongly descended into the trial arena.

(b) Interruptions of the cross examination of prosecution witnesses

25. Mr Michael Turner QC also referred us to interruptions made by the judge during the cross examination by defence counsel of prosecution witnesses. It was said that the interventions were unnecessary and had the effect of curtailing the cross examination, bolstering the credibility of EB and undermining the defence case. It was submitted that the judge should not have intervened; defence counsel had failed to control the trial judge and failed to persevere with his cross examination. It was no doubt, it was submitted, in the light of the judge's interventions in the cross examination of EB that the cross examination of BL had been extremely short.

(c) The views of defence counsel at the trial

26. Before the hearing, solicitors newly instructed for the appellant had asked trial counsel and the solicitors acting for the appellant at the time of the trial whether unfair pressure was put on the defence and why certain witnesses were not called. Trial counsel, who had the experience of over 20 years call, replied that the judge had frequently intervened to urge him to get on with the case and he understood that this was not unusual for the judge in question. Whilst he considered that he had been put under a certain amount of pressure, he did not believe that this affected his ability to defend the appellant. He did not allow pressure to curtail his cross examination. Although he subsequently decided not to call some evidence, it was not as a result of the behaviour of the judge. He considered it unfortunate that the judicial comments made may have given the impression that things were being rushed, but he did not believe that he would have acted differently were the case conducted in a more relaxed atmosphere. He explained that most of the witnesses were only able to say that, when they had observed the appellant in the company of children, they had seen nothing to concern them. His opinion had been that this was not relevant or admissible evidence. As to one of the witnesses, AS, (to whom we have referred at paragraph 24 ii)), his view was that the only purpose of calling her would be to establish that on occasions when she had been in the company of the appellant and the complainant they both behaved normally and in particular the complainant did not exhibit a reluctance to be with him. However, as the judge had observed, he, as defence counsel, had already been able to elicit that from the witnesses who were called. He thought AS was a very nervous witness and he considered there was nothing to be gained from calling her. Whilst he did not think that the decision to call her had any impact on the outcome of the trial, with the benefit of hindsight, it would perhaps have been wise to call her if only to satisfy the appellant's desire for the witness to be called.

(d) The duty of a trial judge

27. Rule 3 of the Criminal Procedure Rules which had come into force shortly before this trial began make it clear that it is the duty of court to manage the case and trial actively. This court has also emphasised the essential importance of the duty of the trial judge actively to manage the trial. The three most important judgments were all given by Sir Igor Judge, President, and in view of their importance to the conduct of trials and to this appeal, we set the passages out in full.

i) In R v. Chaaban [2003] EWCA Crim 1012 ([2003] Crim.L.R. 658) the trial judge had made it clear that he intended the case to proceed expeditiously; it was contended on behalf of the appellant that the impression was left that convenience and speed were treated as having higher importance that the fairness of the trial, but could point to no material which had not been made available or where proper examination was obstructed. Judge LJ (as he then was) said in the course of giving the judgment of the court:

35. …The trial judge has always been responsible for managing the trial. That is one of his most important functions. To perform it he has to be alert to the needs of everyone involved in the case. That obviously includes, but it is not limited to, the interests of the defendant. It extends to the prosecution, the complainant, to every witness (whichever side is to call the witness), to the jury, or if the jury has not been sworn, to jurors in waiting. Finally, the judge should not overlook the community's interest that justice should be done without unnecessary delay. A fair balance has to be struck between all these interests.

37. We must also consider whether the case was somehow rushed, a submission which gives this court the opportunity to highlight a significant recent change, perhaps less heralded than it might have been, that nowadays, as part of his responsibility for managing the trial, the judge is expected to control the timetable and to manage the available time. Time is not unlimited. No one should assume that trials can continue to take as long or use up as much time as either or both sides may wish, or think, or assert, they need. The entitlement to a fair trial is not inconsistent with proper judicial control over the use of time. At the risk of stating the obvious, every trial which takes longer than it reasonably should is wasteful of limited resources. It also results in delays to justice in cases still waiting to be tried, adding to the tension and distress of victims, defendants, particularly those in custody awaiting trial, and witnesses. Most important of all it does nothing to assist the jury to reach a true verdict on the evidence.

38. In principle, the trial judge should exercise firm control over the timetable, where necessary, making clear in advance and throughout the trial that the timetable will be subject to appropriate constraints. With such necessary even-handedness and flexibility as the interests of the justice require as the case unfolds, the judge is entitled to direct that the trial is expected to conclude by a specific date and to exercise his powers to see that it does. We find that nothing in the criticisms of the way in which the judge dealt with the timetable, and nothing in the remaining complaints about his management of the case which would justify us interfering with the decisions made while exercising his discretion as the trial judge."

ii) In R. v. Jisl, Tekin, Konakli [2004] EWCA Crim 696 (set out very helpfully in Blackstone 2007 edition at paragraph D3.6), Judge LJ, giving the judgment of the court again drew attention to the duty of the trial judge to manage a trial:

114. The starting point is simple. Justice must be done. The defendant is entitled to a fair trial: and, which is sometimes overlooked, the prosecution is equally entitled to a reasonable opportunity to present the evidence against the defendant. It is not however a concomitant of the entitlement to a fair trial that either or both sides are further entitled to take as much time as they like, or for that matter, as long as counsel and solicitors or the defendants themselves think appropriate. Resources are limited. The funding for courts and judges, for prosecuting and the vast majority of defence lawyers is dependent on public money, for which there are many competing demands. Time itself is a resource. Every day unnecessarily used, while the trial meanders sluggishly to its eventual conclusion, represents another day's stressful waiting for the remaining witnesses and the jurors in that particular trial, and no less important, continuing and increasing tension and worry for another defendant or defendants, some of whom are remanded in custody, and the witnesses in trials which are waiting their turn to be listed. It follows that the sensible use of time requires judicial management and control.


115. Almost exactly a year ago in R v Chaaban [2003] EWCA Crim 1012 this Court endeavoured to explain the principle:


116. The principle therefore, is not in doubt. This appeal enables us to re-emphasise that its practical application depends on the determination of trial judges and the co-operation of the legal profession. Active, hands on, case management, both pre-trial and throughout the trial itself, is now regarded as an essential part of the judge's duty. The profession must understand that this has become and will remain part of the normal trial process, and that cases must be prepared and conducted accordingly.


117. The issues in this particular trial were identified at a very early stage, indeed during the course of the previous trial itself. In relation to each of the defendants, in a single word, the issue was knowledge. And indeed, the issue in most trials is equally readily identified.


118. Once the issue has been identified, in a case of any substance at all, (and this particular case was undoubtedly a case of substance and difficulty) the judge should consider whether to direct a timetable to cover pre-trial steps, and eventually the conduct of the trial itself, not rigid, nor immutable, and fully recognising that during the trial at any rate the unexpected must be treated as normal, and making due allowance for it in the interests of justice. To enable the trial judge to manage the case in a way which is fair to every participant, pre-trial, the potential problems as well as the possible areas for time saving, should be canvassed. In short, a sensible informed discussion about the future management of the case and the most convenient way to present the evidence, whether disputed or not, and where appropriate, with admissions by one or other or both sides, should enable the judge to make a fully informed analysis of the future timetable, and the proper conduct of the trial. The objective is not haste and rush, but greater efficiency and better use of limited resources by closer identification of and focus on critical rather than peripheral issues. When trial judges act in accordance with these principles, the directions they give, and where appropriate, the timetables they prescribe in the exercise of their case management responsibilities, will be supported in this Court. Criticism is more likely to be addressed to those who ignore them.


119 …..We are not seeking to analyse each and every aspect of the present trial where modern case management would have avoided delay. We are simply illustrating some of the more obvious areas where the modern approach would probably have saved time.

120. Experience shows that once the forward impetus has been lost, it becomes extremely difficult to recover it. Imperceptibly at first, drift infiltrates the proceedings and develops into unacceptable delay…… The trial judge is responsible for providing the necessary example and leadership to prevent accumulating drift. In the longer cases in particular, the organisation of his administrative and other judicial burdens should, so far as practical, be reduced or organised to start at times which enable him to sit every day for full court days.


121. As already explained, these observations are directed to future arrangements for case management of criminal trials. They do not impinge on the safety of these convictions, or the appropriate levels of sentence

iii) These principles were reiterated in R v K & others [2006] EWCA Crim 724:

"Case management decisions are case specific. We are simply emphasising that the new Criminal Procedure Rules impose duties and burdens on all the participants in a criminal trial, including the judge, and the preparation and conduct of criminal trials is dependent on and subject to these rules.

These principles are clearly set out in the Protocol on Disclosure dated 20 February 2006. This protocol should be applied by trial judges, and those who act both for the prosecution and the defence should ensure that they familiarise themselves with it."

(d) Our conclusion

28. Mr Turner QC did not seek to dispute these principles or the need for their application in every case. His submission was that in the present case the trial judge had not managed the trial in a proper manner, but had managed it in an improper and unfair manner. We have very carefully considered the matters relied upon by Mr Turner QC in the light of observations made by trial counsel.

i) First, as to the judge's interventions during cross-examination, it is clear that the judge's interventions were either for the purpose of suggesting to counsel he move on when a point had been gone over sufficiently or to keep the trial focussed on the issues or to clarify questions; the interventions were quite proper and it is to be noted that the judge also intervened during the examination of EB by counsel for the prosecution. It is clear to us that what the trial judge was doing was robustly ensuring that the issues in the case were addressed, that cross examination concentrated on the issues in the case and that it was not unduly repetitive; all of that was good trial management. The cross-examination of BL was very short; she had become upset during her examination in chief and we can well understand why defence counsel may have quite properly taken the course he did by crossing examining her in a relatively brief manner, but nonetheless putting the appellant's case to her. There is no reason to infer that the shortness of the cross examination was in any way at all attributable to the way the judge conducted the trial.

ii) Secondly as to raising with counsel the need to call witnesses, so far from this founding a ground of criticism of a judge, it is our view that this is what a judge ordinarily ought to do in the course of a case as part of good trial management. As a case develops, there is often the need to review what evidence remains necessary; it was plainly right for the judge to remind the advocates what had already been established during the course of the trial and to question whether, in the light of that, further evidence was necessary. In this case, as we have set out EB accepted that she had behaved as any niece would when she was with her uncle in the presence of others; SW had given similar evidence of how EB behaved towards the appellant. In the circumstances there was good reason to question the need to call witnesses who would traverse that ground further.

iii) The judge may have been more robust and brief in his expression of view than some other judges might have been, but that is not, in our view, a point of criticism. The judge put all the points fairly and squarely to counsel as was his duty as part of trial management; there was nothing approaching improper or unfair pressure. No such pressure was discernible from the transcript which we have carefully considered and trial counsel made it clear he had not acted under pressure. Counsel had carefully advised on most of these witnesses in February 2005; it is evident from that advice that he had very carefully thought about the relevance of their evidence at that time. There is no reason to doubt that his decision not to call them at the end of the trial was based on the reasons he gave.

iv) It seems to us that if counsel did not agree with the judge's view, it was counsel's duty to seek to call the witnesses; there is nothing to suggest that he could not have done so or that the judge would have sought to exclude the evidence. In our view the witnesses could have added little in the light of the evidence that had already been adduced; it was entirely within the ambit of the discretion of any competent counsel to have made the decision not to call further evidence.

v) We would add that, if in such circumstances, a judge indicated that a witness should not be called because his evidence was inadmissible or irrelevant (because, for example it had ceased to be relevant given the course the trial had taken), but the advocate wished to call the witness, then the advocate should seek a ruling. If the judge ruled that the evidence of the witness was not relevant or was inadmissible and accordingly refused to admit the evidence, the ruling could be challenged by seeking leave to appeal to this court.

vi) In contradistinction, trial management decisions made by the trial judge are necessarily within that wide ambit of discretion that the judge necessarily has in the conduct of the trial. The principles on which an appellate court will intervene in such decisions are within well known and narrow limits.

29. There is no substance in this ground of appeal. On the contrary, the judge was following the Criminal Procedure Rules and the guidance given by this court in the way in which he was actively managing the trial.

(iv) The intervention by the judge in relation to the police station interview

30. We have set out at paragraph 7 above the evidence that the appellant gave in relation to the no comment interview in his re-examination. The judge then commented that it was a bit late for all this to be coming out. He asked counsel if the solicitor was going to be called. Trial counsel said that he was not. The judge then said to counsel that the appellant had accused police officers of the grossest misconduct and said that there was not much he could do about it then. Trial counsel had replied that there was not; counsel then asked the appellant why he had not answered questions. The appellant replied he had done so because he was advised by the solicitor.
31. The judge then asked the appellant about the way in which the interview had started and why he had asked the interview to be stopped. The appellant answered that he had done so because the solicitor was looking at him and when they got out the solicitor had said to him, "I told you to say no comment". After that he did as he had been advised. After the appellant had returned to the dock. The judge then said to him,

"I will deal with that outburst. What the defendant just said about the conduct at the police station amounts to the gravest misconduct of the preparation of a trial and charges and the fact is that whether a person is brought before the court is not down to the police, it is down to the Crown Prosecution Service.

"I think the fairest thing to do is to forget what he has just said about that. I am not going to allow time for all that to be rehearsed, for the officers to be brought to say what did happen, it could take us into next week. It does not go to where the truth lies in this case, which centres around [EB]. So this does happen sometimes. I am going to direct you go ignore it. It cannot help you. Ignore it."

32. It is submitted that the comment made was wholly inappropriate, unfair and had the effect of potentially undermining, if not destroying, the appellant's credibility in the eyes of the jury. The effect of the intervention was to suggest the appellant was dishonest at worst or grossly unfair at least.
33. The judge was right to observe that, if there was a suggestion that the police had been acting improperly and this was the reason why the appellant had exercised his right of silence, that ought to have been put to the officer in the case. It may, of course, have been wiser if the judge had discussed with counsel in the absence of the jury what should have been done about the appellant's outburst, but when the whole of the transcript is examined, we do not think that the way in which the judge dealt with this matter rendered the conviction unsafe. It is important to note that trial counsel's view was that the incident has no bearing on the outcome of the trial
34. When the judge came to direct the jury on the law in relation to the interview during the course of his summing up, he fairly and properly explained the position to the jury, making no reference to the appellant's allegation that the police had behaved improperly. He left to the jury the issue for them to decide as to whether the appellant was ever given the advice by his solicitor to remain silent. It was submitted that the judge's comments during the course of the appellant's evidence in relation to the allegations that the appellant had made about the police officers' conduct might have adversely affected the jury's decision whether to believe the appellant in relation to the advice given by the solicitor. The judge had, however, told the jury at the time to ignore the entire episode; we have no reason to doubt that the jury acted as they were directed when they considered matters during their retirement. We do not consider that what happened in any way affected the jury's verdict.

Overall conclusion

35. It was submitted on behalf of the appellant by Mr Michael Turner QC that if the conduct of a trial as a whole was looked at, together with the failure of the lawyers then acting for the appellant to call the two witnesses, RM and SK, and the failure to give a direction on collusion, there had been an unfair trial and the verdicts could not be safe.
36. We have looked at all the matters together and after considering them, we have reached the conclusion that these were not unsafe convictions.

Appeal against sentence

37. The sentences of 4 years passed on the counts 6 and 13 were in excess of the maximum of 2 years that could have been passed for those offences at the time they were committed. We accordingly quash those sentences and impose sentences of 21 months.
38. Furthermore the judge did not specify the offence to which the extended licence period applied and it was not possible to ascertain this from the court file or other records. As the judge found the appellant was unlikely to re-offend this extended period could not have been imposed under s.85 of the Powers of Criminal Courts (Sentencing) Act 2000 in respect of the one offence to which that section applied (count 12). It would not in these circumstances be right to explore whether it could have been imposed under earlier legislation applicable to some of the other offences and therefore we also quash the extension period.