Malcolm in the middle

The thorny issue of judicial intervention in the trial process has been revisited again in the case of R v Malcolm [2011] EWCA Crim 206. In Malcolm, the Court of Appeal had to decide whether the judge had inappropriately descended into the arena rather than holding the ring impartially.

Mr Malcolm had rented a flat through an estate agency and failed to pay rent. A warrant for his eviction was executed, the property was found to be empty and all the fixtures and fittings had been taken. The appellant was arrested at a new address and some of the missing items were recovered.

The defendant gave a prepared statement in which he claimed to have been given permission by an unnamed female employee of the agency to take fixtures and fittings. His defence statement was drafted as a general denial that he did not steal or intend to steal the items, nor had he acted dishonestly. He did not give evidence and was convicted of theft. He appealed the conviction on the grounds that the recorder adopted the role of second prosecutor.

By virtue of section 5(5) of the Criminal Procedure and Investigations Act 1996, where an accused has been committed for trial he 'must give a defence statement to the court and the prosecutor'. The statement is supposed to:

(a) set out the nature of the accused's defence, including any particular defences on which he intends to rely;

(b) indicate the matters of fact on which he takes issue with the prosecution;

(c) set out, in the case of each such matter, why he takes issue with the prosecution, setting out particulars of the matters of fact on which he intends to rely for the purposes of his defence; and

(d) indicate any point of law which he wishes to take, and any authority on which he intends to rely for that purpose.

The recorder took the view that the defence statement was wholly inadequate. This view was shared by the Court of Appeal which described it as seriously defective. However, views diverged as to how that should have been handled during the trial.

The recorder, in the absence of the jury, was highly critical of the appellant for failing to identify the female employee who gave him permission to take the items in question and made clear his view that the defendant ought to amend his defence statement. The recorder made explicit references to being forced to descend into the arena by questioning witnesses and was increasingly vocal in how the case ought to be prosecuted.

The recorder did warn the appellant of the adverse consequences that could flow from the failure to comply with the requirements. The Court of Appeal concluded that he was right to do so, as it might have mitigated criticism of the defendant.

However, in examining the previous case law on unacceptable judicial intervention, the Court of Appeal found the recorder in Malcolm had crossed the line.

Overstepping the mark

In the recent case of Tedjame-mortty [2011] EWCA Crim 80, the Court of Appeal found that the judge had behaved in such a wholly inappropriate manner towards the defendant shortly before he gave evidence that the quality of his evidence could have been affected. The conviction was quashed.

In Cordingley [2007] EWCA Crim 2174, one of the grounds of appeal was that the judge behaved oppressively towards defence counsel in the absence of the jury affecting the fairness of the trial. The Court of Appeal distinguished between legitimate and robust case management and simple rudeness or discourtesy. Many will recall the case of Cole [2008] EWCA Crim 3234, where the judge was criticised for providing defence counsel with a disgraceful note about her competence in the presence of her client.

In Malcolm, the ultimate question for the court was whether, looking at the trial process as a whole, the recorder, albeit unintentionally, crossed the line between appropriate and inappropriate judicial conduct.

The court concluded, albeit reluctantly, that his 'repetitious criticism', taken together with the directions he gave to the prosecution about witnesses who were to be called, would have created the perception that there was a real possibility of bias against the defendant. The conviction was duly quashed on the grounds of safety.

It is clear that, regardless of the best intentions of a judge, the adversarial boundaries of the trial process need to be respected. The system allows for sanctions for those who do not comply and prosecuting the case under the guise of case management jeopardises the fairness of the trial.