England and Wales Court of Appeal (Criminal Division) Decisions

IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM EXETER CROWN COURT
HIS HONOUR JUDGE COTTLE
T20080441

		Royal Courts of Justice Strand, London, WC2A 2LL
		01/03/2011

MR JUSTICE WILKIE :

•    Introduction

1. Ryan David Zarezadeh appeals with leave of the Full Court against a conviction at the Crown Court at Exeter on 13^th November 2009 for possession of a controlled drug of Class A with intent to supply (count 1) and 2 counts of possession of a controlled drug of Class C with intent to supply (counts 2 and 3). The Full Court adjourned his application for leave to appeal against sentence of a total of 9 years imprisonment imposed on 16^th November 2009 following that conviction. The sole issue in the appeal is whether the interventions by the learned Judge in cross examination of the Appellant by counsel for the prosecution were such as to render the trial unfair and, accordingly, the convictions unsafe.

•    The facts

2. The appellant was employed as a prison officer at HMP Channings Wood. On 9^th June 2008 he was searched as he entered the prison and drugs were found in his possession: 12.7 grammes of heroin; 32.4 grammes of herbal cannabis; and 12.4 grammes of skunk cannabis. He was interviewed under caution and asserted that he had acted under duress. He had been told to supply drugs to a prisoner called Junior Morgan. When he initially refused, threats were directed towards his family by men who approached him outside his home. It was those threats which drove him to bring drugs into the prison on one occasion, when he was caught. His home address was searched, £850 cash was seized. In November 2007 an anonymous note was received at the prison which suggested that a prisoner, called Francis, might be planning to blackmail the appellant into bringing heroin into prison.
3. The prosecution case was that the appellant was being paid by the inmate Junior Morgan to supply him with drugs. There was no independent evidence to support his assertion that he was approached and threatened. Even if he was under some pressure, he was a trained prison officer and it would have been no more than the usual pressure that goes with the job which he could easily have dealt with using the proper channels. It was submitted that he was willingly and actively involved in this supply.
4. The defence case was duress. The appellant's evidence was that he was driven to supply Junior Morgan with drugs because of threats. Initially he refused. Then he was approached outside his house by a male. Again the appellant said no. A few weeks later the same person approached him again with another man. He was told that he had to take something into prison. If he refused his house would be burgled and things could happen to his wife and children. He also received at least one telephone call in which he was told he had to do this. He was approached outside his house for a third time. He feared for the safety of his wife and children and felt he had no option but to comply.

•    The relevant evidence

5. Insofar as is relevant for this appeal, we focus on evidence given by the appellant and Andrew Chattaway. Mr Chattaway was the assistant prison governor with functions relating to security. He spoke of the problems caused by drugs being brought into prison, described training received by the appellant and other prison officers, particularly how to deal with pressure from prisoners. He gave evidence of security incidents with which the appellant had dealt. He also gave evidence in relation to the anonymous note referred to.
6. We have a transcript of the evidence of Mr Chattaway which covers some 58 pages. It started at 10.39am on 10^th November 2009 and finished at 12.48pm on the same day. We have had identified some 11 occasions when the judge intervened to ask questions during his evidence. Seven were during examination in chief by the prosecution. Two were during cross-examination and two were during re-examination. Although it is apparent that the judge intervened early on in the examination in chief and, in respect of certain subjects, effectively took over examining the witness to the exclusion of prosecuting counsel, there is nothing in terms of the number, duration or nature of his interventions which remotely affects the fairness of the trial. For the most part he was endeavouring to clarify, for his benefit and that of the jury, parts of the evidence being given by Mr Chattaway in a way which was designed to enable him to bring out points which, the judge thought, would be helpful to the jury in due course. We have listened to the tape of Mr Chattaway's evidence, focussing on those interventions. In our judgment the tone of those interventions was entirely proper. It was not unduly friendly to Mr Chattaway. It was brisk and businesslike and could not have led a fair minded observer to think that the judge was in any way biased towards the prosecution's witness, or its case, or against the Defendant.
7. The appellant gave evidence. It is common ground that the judge did not intervene to any significant degree whilst the appellant was giving evidence in chief. Furthermore, there was no significant intervention for about the first third of his cross examination by counsel for the prosecution. We have, however, read the transcript and heard the tape of some three quarters of the cross-examination which ran from 11.51am on Thursday 12^th November 2009 until shortly before 1pm. It covers 35 pages. There are nine separate occasions on which the judge intervened to ask questions of the appellant. These interventions are to be found on 13 of the 35 pages.
8. On virtually every occasion, the transcript reads to the effect that the Judge's intervention was an interruption of the prosecutor's cross-examination. There was only one occasion when the prosecutor appeared to have reached the end of a particular part of his questioning. Even then the Judge simply intervened and did not do what is usual, as part of the courtesies of a trial, to ask him if he is going on to some new topic and, at that stage, explicitly intervene only to clarify some point concerning that previous passage of cross-examination. On the contrary, save for one occasion, the Judge on every occasion appeared to interrupt the flow of the prosecution cross-examination.
9. On a number of occasions these interventions were relatively brief and could properly be said to amount to clarification conducted in a neutral way. However, there are a number of passages where the intervention, in our judgment, is more pointed and amounts, in effect, to cross-examination of the appellant. By way of example, at the bottom of page 10, top of page 11, Mr Wraith, prosecuting, was asking questions about a false entry, unrelated to the offence in question, which was being put to the appellant as an example of him doing a favour for Mr Morgan by falsifying an entry in a book. The point was being made that it looked as though the entry had been changed. Cross-examination had reached the following stage at page 10H:

"Q. So your case is that a prison officer must have put in this false entry, is that right?

A. What I am saying is that someone has put a false entry in, yes; it's not myself."

At that stage the judge intervened in the following terms:

"Judge Cottle. Well who could have done that?

A. I don't know your Honour.

Judge Cottle. Well what sort of person could have done it? I mean a prison officer, a prisoner…

"A. A prison officer, if the room is left open a prisoner, I wouldn't know, I wasn't on the wing on that morning, I was on the wing that afternoon I think."

10. At page 20 Mr Wraith was dealing with the anonymous note that Mr Francis may have been blackmailing the appellant. Mr Wraith was asking him about being questioned by a Mr Murden. At that point the judge intervened to ask a series of questions concerning a Mr Luscombe, the head of residence, who, Mr Chattaway had given evidence, had spoken to the appellant about an issue concerning another prisoner called Raime. That exchange, over a number of questions is to be found a page 21 of the transcript. That passage of questions is pointed, though in our judgment it can fairly be said to be seeking to clarify what the appellant was saying about the time, and extent, of any conversation between him and Mr Luscombe about the prisoner Raime.
11. The next intervention was of particular significance. As part of his case, the appellant had suggested that damage done to his cars may have been part and parcel of a "softening up" process leading, in the end, to the threats which caused him to commit the offences under duress. He was being cross-examined by Mr Wraith that it was not accepted that any damage had been done to his cars. He was being taxed with being unable to produce any documentary evidence of their being repaired. In the middle of that passage of questioning, the Judge intervened. There then was a passage of questions and answers undertaken by the Judge which ran almost two pages in the transcript. In the course of that, the Judge drew the appellant's attention to what he had said in his interview. The questioning in this passage was pointed and could fairly be described as cross examination. There came a point where the prosecution took up the questioning, virtually seamlessly, and resumed its cross-examination on this issue (transcript pages 24 and 25). Some 2 pages further on, still in connection with damage to cars and repairs, the Judge intervened again and drew the appellant's attention to a further passage in an interview which seemed to be inconsistent with what he was saying (pages 27G to 28D).
12. At the foot of page 34, going on to page 35, there is a further, shortish, intervention which, in our judgment, properly can be described as clarification. At page 36D of the transcript, there is a further intervention by the Judge which lasts about a page and a half. This concerned the heart of the defence case. The appellant's case was that he was visited by two men who threatened to burgle his house and to do "other stuff" to his wife and harm his children. The judge intervened and, in the course of questioning the appellant, drew his attention to a passage in his interview which tended to suggest that the appellant's account at that time was that the threats had only been of burglary and not of harm to his wife or children. At that point the judge engaged in pointed cross-examination in which the appellant was seeking to explain what he had said in interview by being in a daze. The judge pressed him to accept that, at that point his interview, he had only referred to a threat of burglary, though the Judge noted down his explanation for having only made a limited claim of threats.

•    Defence Counsel's concerns and Grounds of Appeal

13. The court, at that point, adjourned for lunch and the jury was sent away. Counsel for the appellant expressed concern that the Judge was descending into the arena and cross-examining the defendant. The Judge's response was that he was simply seeking clarification. Counsel for the appellant indicated that the interventions had been done in such a way as may indicate to the jury that the Judge had formed a view adverse to the appellant. The judge said that that was not the case at all. At that point the case was adjourned for lunch.
14. We are told by counsel for the appellant that consideration was given to applying to discharge the jury but that, after a consultation between himself, his solicitor and the appellant, it was decided not to do so. However he also informs us, which is common ground, that from that point the Judge did not intervene in the cross-examination, or the re-examination, which was concluded shortly after lunch.
15. Counsel for the appellant also raised the question of other misconduct by the Judge namely: that he observed, during the appellant's evidence, that the Judge made eye contact with the prosecution witness, Mr Chattaway, who was sitting in the public gallery, in such a way as to convey the impression that the judge did not think much of the appellant's evidence or case. Counsel was sufficiently concerned about this, at the time, to have alerted prosecuting counsel. Prosecuting counsel agrees that this concern was raised but had, understandably, been focussing on the witness and had not noticed anything untoward passing between the judge and Mr Chattaway. It appears that the problem did not recur and, certainly, no application was made to the judge.
16. Grounds of appeal were lodged taking a number of points, including the assertion that the conduct of the trial judge meant that the applicant did not receive a fair trial and accordingly the verdicts were unsafe. Leave to appeal was refused by the Single Judge on the papers but granted by the Full Court on the single ground now pursued.

The relevant legal principles

17. The approach traditionally adopted to appeals raising this issue is encapsulated in the decision of the Court of Appeal Criminal Division in Hulusi and Purvis 1974 Vol 58 Criminal Appeal Reports 378 in the passage in the judgment of the court given by Lord Justice Lawton at p.382 where he says as follow:

"Interventions to clear up ambiguities, interventions to enable the judge to make certain that he is making an accurate note, are of course perfectly justified, but the interventions which give rise to a quashing of a conviction are really three fold: those which invite the jury to disbelieve the evidence for the defence which is put to the jury in such strong terms that it cannot be cured by the common formula that the facts are for the jury and you, members of the jury, must disregard anything that I, the judge, may have said with which you disagree. The second ground giving rise to a quashing of a conviction is where the interventions have made it really impossible for counsel for the defence to do his or her duty in properly presenting the defence, and thirdly, in cases where the interventions have had the effect of preventing the prisoner himself from doing himself justice and telling the story in his own way."

18. We have been helpfully referred to a number of recent authorities in which these principles have been applied. In the case of Copsey and Copsey 2008 EWCA Crim 2043 the grounds of appeal were that the judge made disparaging and prejudicial remarks about important defence evidence and made excessive and prejudicial interventions during the course of the evidence of the appellants, with the result that he would have been perceived by the jury as not believing or accepting the defendants' case. In that case the interventions were set out in some detail and, after doing so, the court expressed its view as follows:

"In our view this was a case in which the Judge, by his comments and the manner of his questioning, to which we have referred, gave the clear impression to the jury that he doubted the case for Mr Copsey. He also took on the role of cross-examining in a way which is more suitable for a prosecuting counsel than for a judge. The frequency and nature of the questioning causes us particular concern, as does the Judge's statement that what was an important part of Mr Copsey's case was "bizarre." Therefore we have reached the conclusion that the appellant did not have a fair trial in respect of count 1 and therefore his conviction was unsafe…"

19. The next case is Perren 2009 EWCA Crim 348. In that case the court, having reminded itself of Purvis and other authorities, expressed its conclusions as follows:

"24….we add that, if the court is driven to the conclusion that the defendant has not had a fair trial when the matter is looked at in the round, the natural conclusion will be that the verdict is unsafe because our system of criminal justice is dependant upon the fundamental principle of the provision of a fair trial. To allow an appeal in such circumstances, even though the evidence for the prosecution may have been exceedingly strong, is not to allow an appeal on a technicality but to allow it upon a fundamental principle which underlines our criminal justice system.

25. We therefore turn to assess the nature and effect of the Judge's interventions in the case. It cannot be done by a simple statistical approach. It is not suggested that the appellant was thrown off course by the Judge's interventions so as to be unable to put his case across to the jury. What is suggested is that the Judge fell foul of the first principle in Hamilton as applied in Hulusi namely that the Judge must avoid intervening in such a way as to cause prejudice which cannot be undone by using the formula in the summing up that the facts are entirely for the jury.

26. There is no doubt that in this case the Judge asked a large number of questions which were of the nature of hostile cross-examination. On repeated occasions throughout the three days in which the appellant was in the witness box he asked questions which were frankly designed not to elucidate the appellant's evidence but to discredit it."

The court then identified a significant number of such passages. At paragraph 34 the court expressed particular concern about the questions put in the course of examination in chief, saying that a judge should be particularly careful about refraining from intervening during a witness's evidence in chief because, however improbable the appellant's story might have been, he was entitled to explain it to the jury without being subjected to "sniper fire" in the course of so doing.

20. The court concluded at paragraph 36 as follows:

"We have been driven in this case to the regretful conclusion that the nature and extent of the interventions over the three days in which the appellant gave his evidence deprived him of the opportunity of him having his evidence considered by the jury in the way that he was entitled. The conclusion from that is that we do not consider that he received the quality of a fair trial to which he was entitled. That was not curable by a summing up which reminded the jury that the facts were for them because their process of forming their opinion as to where the truth of the facts lay would have begun as they listened to the evidence unfold"

21. Finally we were referred to the case of Michael Mitchell 2010 EWCA Crim 783. In that case the appellant had given evidence in chief and had been cross-examined and then re-examined by his counsel without intervention. In response to the conventional courtesy of counsel asking whether the judge had any questions, the judge asked a number of questions both before and after the short adjournment over a period of in excess of 10 minutes and, in the view of the CACD, proceeded to cross-examine the defendant about a number of central issues giving rise to the accusation that the judge had descended into the arena and had given the impression to the jury that he did not believe the account that had been given.
22. The court, in that case, was not referred to any of the authorities to which we have been referred. At paragraph 23 of the judgment they say as follows:

"We take the view that the length of the cross-examination was unnecessary and by asking so many questions the judge did run the risk of giving the impression to the jury that he was not accepting what the defendant said.

24. Time and again this court has had occasion to comment that it is quite unnecessary for a judge to have another go at a defendant after he has been cross-examined by the prosecution. Indeed it is no part of his function to cross-examine a defendant at all lest he runs the risk of demonstrating his own approach to the evidence that the defendant had given. So often these occasions arise where there is a strong case against the defendant and a judge proves unable to resist the temptation to descend into the arena. But those cases are those where it is quite unnecessary and unfair for a judge to do so. This is by no means one of the worst cases but we have to say that the judge did go too far."

•    Analysis and conclusions

23. We have found this a very difficult and anxious case. There is no doubt, in our judgment, that this experienced Judge did, in this trial, on a few occasions, descend into the arena by intervening in cross-examination, by taking up lines of cross-examination which should, more properly, have been left to counsel for the prosecution to have pursued. We have no doubt that, having been taken politely to task by counsel for the defendant, the judge thought better of his previous interventions and ceased doing so. We also have little doubt that, if he were to have had the opportunity to have read the transcriptions which we have he would have felt somewhat abashed at the extent and nature of his interventions.
24. In particular, he did not permit prosecuting counsel to pursue his lines of cross-examination to a conclusion and, only then, carefully intervene if there were matters which had not been covered, either by way of elucidation, or to enable the appellant to give explanations for matters which the jury might be considering in due course. In our judgment, on two of the occasions to which we have referred, having obtained the initial explanation he pursued the point by his questioning on matters which went to the heart of the defendant's defence of duress.
25. We have listened to the tape of the exchanges between the judge and respectively: Mr Chattaway and the appellant. Whilst there is some difference in tone, the judge adopting a somewhat stiffer tone with the appellant than Mr Chattaway, we do not think that there is anything in either the tone with which he asked his questions, or the language which he used, which would have indicated to the jury that the Judge did not believe the defendant, as opposed to his pressing him so as to obtain his explanation for matters of apparent difficulty with his account in evidence.
26. We have carefully considered the authorities which have been cited to us: establishing the principles on which this court will intervene as exemplified in recent cases. With the exception of Mitchell those cases seem to us to have involved interventions by the judge far more extensive, pointed, and overtly critical than the interventions complained of in this present case. In Mitchell, although the scale of the interventions was of a different order, the approach of this court was the same: that the trial was unfair and the verdict unsafe because the Judge had descended into the arena to the extent that he gave the impression, or ran the risk of giving the impression, to the jury that he was not accepting what the defendant said. Thus in fact applying the first formulation identified in Hulusi and Purvis.
27. It is not argued in this case that the Judge's interventions made it impossible for defence counsel to do his duty properly in presenting the defence, nor is it argued that they prevented the appellant from doing himself justice because he had a free run in his examination in chief. What is said is that the nature and centrality of the interventions by the Judge made him appear to be a second prosecutor and, accordingly, that the impression would, or may have been given, to the jury that the Judge did not accept what the defendant was saying on the central issue in the defence case.
28. We have looked very carefully at the transcript of the interventions by the judge and, in particular, the two concerning damage to the family cars, at pages 24B, 25F and pages 27G to 28D, and that concerning the nature of the threats to burgle and to do "other stuff" to his family, at pages 36D to 37F, with a view to deciding whether or not those interventions gave rise to the risk that, thereby: the judge might be thought to be inviting the jury to disbelieve the appellant's account ( Hulusi); or gave the clear impression to the jury that he doubted the case for the appellant (Copsey); or that he intervened in such a way as to cause prejudice, which could not be undone by the traditional formula, by asking a large number of questions designed, not to elucidate his evidence but to discredit it (Perrin); or ran the risk of giving the impression to the jury that he was not accepting what the defendant said (Mitchell).
29. In our judgment, unfortunate though those interventions were and contrary to what is to be expected of a judge conducting a criminal trial, the interventions, whether taken singly or cumulatively, were not such as to infringe the appellant's right to a fair trial as given expression in the formulations to which we have referred. At no point in those passages did the Judge go beyond the point of seeking elucidation of what exactly it was that the appellant was saying and how he responded to the fact that he may have been saying somewhat different things in the course of his interviews. Unfortunate though it was, that the judge chose to intervene at the time and in the way that he did, rather than allowing prosecuting counsel to perform his task, in our judgment the Judge did not cross the line which is required before unwise interventions can properly be characterised as conduct resulting in an unfair trial.
30. Accordingly in our judgment this appeal against conviction does not succeed and is dismissed.