McDonald v R. [2011] EWCA Crim 1776

[2011] EWCA Crim 1776Case No 2010/04132 C1
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM ISLEWORTH CROWN COURT
His Honour Judge McDowall
T2009/1326
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 21/07/2011
Before
PRESIDENT OF THE QUEEN'S BENCH DIVISIONMR JUSTICE HICKINBOTTOMMRS JUSTICE THIRLWALL DBE
Between
GRANVILLE MARTIN MCDONALDAppellantRRespondent
M Magarian QC for AppellantMs R Harris for RespondentHearing Hearing date: 22 nd June 2011
Judgment

Sir Anthony May, President of the Queen’s Bench Division:

[1]In June 2010 the appellant, Granville Martin McDonald, now aged 40, appeared in the Crown Court at Isleworth before His Honour Judge McDowall and a jury upon an indictment containing 7 counts of money laundering contrary to section 328 of the Proceeds of Crime Act 2002. Section 328 provides that a person commits an offence if he enters into or becomes concerned in an arrangement which he knows or suspects facilitates (by whatever means) the acquisition, retention, use or control of criminal property by or on behalf of another person.[2]On 7th June 2010, the appellant was convicted on counts 1 and 6. On 8th June 2010, he was convicted on count 2. He was acquitted on the other 4 counts of the indictment. On 16th December 2010, the judge sentenced him to a term of 12 months’ imprisonment suspended for 2 years with a requirement to undertake 250 hours of unpaid work within 12 months. Concurrent sentences to this effect were passed on each of the 3 counts of which he was convicted. He appeals against conviction by leave of the single judge limited to grounds 2 and 5 of his original Grounds of Appeal. He originally sought to renew his application for leave on two of the grounds for which the single judge refused leave, but Mr Magarian QC on his behalf withdrew the application relating to those two grounds at the hearing before us. The appeal therefore proceeded before this court on two grounds only.[3]The appellant was the manager at the London Motor Company, whose premises are in West London. The Managing Director of the company was Francis Grech. It was the prosecution case, and the appellant had accepted during his police interview, that the appellant was the leading salesman as well as the manager. The prosecution case was that he had entered into arrangements with a number of criminals and helped them to launder cash by buying and selling high value motor cars through the company. The prosecution evidence showed versions of the alleged transactions which varied in detail, but a simple (hypothetical) example would be where a criminal dealing in drugs bought from the company a high value motor car paying for it with cash derived from drug dealing. At a later date, the company would buy the motor car back paying for it by cheque. The criminal would then have a superficially genuine paper transaction and would expect or hope to be able to pay the money into a bank without attracting suspicion, and without obligating the bank to make disclosure to the Serious Organised Crime Agency under section 330 of the 2002 Act.[4]The 7 counts on the indictment each alleged against the appellant money laundering of this general kind by or on behalf of named known criminals. For the counts on which he was convicted, count 1 named David Cole, count 2 named Adrian Cole and Sasha Rainford and count 6 named Jado Pommell. Adrian Cole is David Cole’s brother. The prosecution did not allege that the appellant knew that these individuals were criminals, or that the money in question was criminal property. The essential prosecution case was that the various transactions taken as a whole so obviously indicated that the money probably derived from crime that the appellant must at least have suspected that it was criminal property for the purposes of section 328.[5]The appellant’s case was that he had no such suspicion. He said so repeatedly in his police interview. He maintained that the prosecution had cherry picked a few sale and purchase transactions from a much larger number effected by the company, and that, at the lowest, the jury could not safely infer suspicion which the prosecution maintained was quite obvious. The appellant maintained that transactions in cash were relatively common for the sale and sometimes purchase of motor cars for unobjectionable reasons. His case included that the sale and subsequent repurchase of a motor car was sometimes effected because the purchaser saw it as less expensive than hiring a car.[6]The prosecution case was that the appellant dealt with most of the day to day transactions of the company. He dealt with almost all of the particular transactions that were alleged to constitute money laundering. His name and signature appeared on most of the relevant paperwork both during the period covered by the counts on the indictment and during earlier periods for which evidence was admitted. Many of the documents relating to the sales and purchases also had descriptive material in his handwriting. As we shall explain, most of the evidence relied on by the prosecution was documentary evidence of this kind. The documents were readily proved as the documents they appeared to be – there was no dispute about this - but they needed to be explained forensically, and in theory much of the explanation might not have required evidence. Counsel for the prosecution, Ms Rebecca Harris, explained the documents in some detail in her opening to the jury – we have a copy of her opening note, which we are told she followed closely. Unsurprisingly however, the prosecution did not just rely on the documents to speak for themselves. They called DS Paul Farrell, the officer principally concerned with the investigation, to explain the documents and to give some further additional evidence.

The Schedule and the Jury Bundle

[7]The prosecution had prepared and the jury had before them a detailed Schedule of Vehicle Transactions. They also had a Jury Bundle (so called) which contained all the documents deriving from the company on which the prosecution relied. The Schedule was divided into 35 sections each relating to transactions for one of 35 expensive motor cars. The first four sections related to Damian (David) Cole, the criminal named in count 1 of the indictment. The third and fourth entries, for an Audi A3 and a Golf 1.6SE were transactions effected between the dates alleged for count 1, that is between 1st November 2006 and 28th February 2007. The first two entries, for an Audi TT and a Porsche Carrera, related to transactions at earlier dates. There were then 4 sections (numbers 5 to 8) relating to Adrian Cole, the criminal named for count 2. Sasha Rainford was mentioned five times in these entries, although during the course of the trial one of these was deleted as an error and the company’s name substituted. There is also one reference to Dawn Rainford, who is Sasha Rainford’s mother. Subsequent entries contained details which the prosecution said were relevant to counts on the indictment of which the appellant was acquitted. Entries 28 to 30 summarised entries relevant to count 6 where the named criminal was Jado Pommell.[8]The Schedule was a comprehensive summary of what was shown in the documents in the Jury Bundles with cross references. The first column identified the vehicle. The second column gave details for some of the vehicles of its acquisition by the company. The third column gave details of its sale by the company. The fourth column gave details of its purchase or repurchase by the company or of an onward sale.

Admissions

[9]The fact that those named in each of the counts of the indictment (other than Sasha Rainford) were indeed criminals concerned with unlawful drug trafficking was comprehensively admitted in a detailed document which the court and the jury had. All had relevant convictions, and most of them had been sentenced to substantial terms of imprisonment for drug offences. Sasha Rainford had no previous convictions. The admissions document stated that she is Adrian Cole’s common law wife. It also stated that Dawn Rainford is her mother.

The issue and the appellant’s outline case

[10]The issue for the jury therefore was whether they were sure, in relation to each count separately, that the transactions shown by the documents, with which the appellant was concerned, must have led him to suspect that the transactions were elements of money laundering, or whether the inferences to this effect suggested by the prosecution were not surely to be drawn. The appellant’s case that he had no such suspicion was asserted by him in his very extensive police interviews. Edited parts of these (still extending to over 100 pages) were given in evidence. He did not give evidence at his trial. He called as witnesses Francis Grech and Edward Roberts. We shall refer to their evidence later in this judgment.[11]Grech, the managing director of the company, had been arrested and interviewed on suspicion of money laundering, but he was not charged. Ms Harris told us, and we accept, that this was a responsibly taken decision by the Crown Prosecution Service. It was part of the appellant’s case that, since Grech was presented by the prosecution as innocent of money laundering offences of this kind within his company, the appellant, who was not a director, cannot have had the requisite suspicion. Grech’s name certainly appeared from time to time in the paperwork.

The first ground of appeal in outline

[12]The first surviving ground of appeal in summary is that the judge failed to sum up the evidence and failed to do justice to the defence case. We shall deal with this in more detail later in this judgment, but part of the complaint is that the judge declined to sum up the prosecution evidence in a usual methodical manner. As we shall explain, he certainly did not do this, but, as Ms Harris explained and Mr Magarian accepted, the jury had the Schedule and the Jury Bundle and the Schedule was a constant point of reference during the course of the trial. Additions and amendments were made to it throughout the trial at the instigation of both counsel, and the copy of the Schedule which the court has shows instances of such amendments in manuscript. Amendments were also made at the instigation of the judge and, on occasions, the jury. Ms Harris submits that the Schedule allowed all parties to follow the evidence in the case clearly. She says that this was apparent from questions and amendments suggested even by the jury themselves. She says that it is apparent that the jury understood the details of the facts advanced by the prosecution from the facts that the jury convicted the appellant on three counts but acquitted him on four, and that verdicts were delivered successively during the course of the jury’s deliberations. Mr Magarian accepts that, subject to some points of detail, especially concerning matters to be derived from some documents which were favourable to the appellant’s defence and which Mr Magarian advanced as such as part of his defence, the prosecution’s case was derived from documents which were before the jury and fully summarised in the Schedule, which the jury appeared to understand and follow.

The prosecution’s detailed case

[13]We shall now set out details of the prosecution case on counts 1, 2 and 6 largely to be derived from the documents and the Schedule. We do this, as much as anything, to indicate what the judge did not do in his summing up.[14]On count 1, the appellant was convicted of entering into an arrangement with Damian (David) Cole and his long term partner Dionne Randall. She was admitted to have a number of convictions for offences of dishonesty, but not for drug trafficking. In November 2008, Damian Cole had pleaded guilty to drug dealing and money laundering offences and was sentenced to 6 years imprisonment. There was evidence that these money laundering offences to which he had pleaded guilty were based in part on his buying cars from the company for cash and selling them back for cheques.[15]The transactions that were the basis of count 1 were entries 3 and 4 on the Schedule. It was the prosecution case that the Audi A3 was probably a car bought to order. A used car sales invoice issued by Miles and Miles Limited indicated that the company purchased this Audi on 17th November 2006, paying £13,000 for it. The documents showed that the company had already sold this vehicle twice before they purchased it. There was a sales invoice dated 16th November 2006 which appeared to indicate that the car was undersold to Ann Watson, Damian Cole’s mother, for £10,000. A second sales invoice, also dated 16th November 2006, appeared to indicate that it was sold on the same day to a J.H. Marsh at Holy Road for a total of £13,000 (the amount which the company were to pay for it on the following day) and that a Chrysler was given in part exchange. The prosecution contended that the invoice to J.H. Marsh was a false invoice to cover up the under sale to Damian Cole’s mother. DS Farrell told the jury that inquiries made by him revealed that there was no such address at Holy Road and no such person as JH Marsh. Evidence from the owner of the Chrysler was that he had not part exchanged it for an Audi. There was evidence that Damian Cole had used the Audi, although it had apparently been sold to his mother. There was evidence that, when he was arrested, the Audi was at his home address.[16]The prosecution’s inferential case was that the car was invoiced to Ann Watson, not her son, because she was able to provide paperwork which would satisfy money laundering regulations. There was evidence that the appellant knew that the car was intended to be for Cole’s use in that he had completed the DVLA paperwork to register the car to Cole. It was admitted on the appellant’s behalf that the handwriting on the DVLA document was his. This document was in the Jury Bundle.[17]The prosecution case in relation to the Golf at entry 4 in the Schedule was that Damian Cole and Dionne Randall were hoping to launder a further £10,000 by buying another car. On 31st January 2007, they each paid £5,000 in cash to the company. The documents showed that this money was received by the appellant. It was suggested that there were two separate payments of £5,000 and not one payment of £10,000 to avoid triggering money laundering regulations. There was, however, no transaction to purchase a motor car. On 2nd February 2007, the company produced paperwork confirming that it had paid £5,000 in cash back to each of Damian Cole and Dionne Randall. The prosecution’s inferential case was that, even if this was simply a cash in and then cash out transaction, it was still money laundering because Damian Cole and Dionne Randall had acquired paperwork which might represent a genuine non-criminal transaction.[18]Evidence of the earlier transactions in the first two entries of the Schedule were admitted as a consequence of a bad character application. They concerned dealings with Damian Cole before 1st November 2006, the first date in the Particulars for Count 1.[19]The first entry in the Schedule related to an Audi TT. Documents in the Jury Bundle showed that this car was sold for £19,440 in cash to Dionne Randall on 15th October 2001. On 9th March 2002, the company bought the car back for £17,500. The company paid for the repurchase by cheque issued to Damian Cole. The prosecution contended that this was an example of money laundering in its simplest and most obvious form. It was suggested that the loss of just under £2,000 was a small price to pay for the laundering of the money. The documents showed that the appellant undertook these transactions. He was also concerned with dealings relating to the Porsche Carrera shown in the second entry in the Schedule. The prosecution’s inferential case was that Damian Cole must have asked the company to find him an appropriate car to spend his cash on. On 20th March 2002, 11 days after Damian Cole had received £17,500 for the repurchase of the Audi at entry 1 on the Schedule, he deposited £26,400 in cash with the company. Documents showed that the appellant was responsible for receiving this money. On the following day, 21st March 2002, the company purchased the Porsche Carrera from the Lonsdale Motor Company. They sold it on on the same day to Dionne Randall. The price paid was £43,000, consisting of £25,500 of the cash that had been deposited on the previous day and a banker’s draft for £17,500. Damian Cole and Dionne Randall had received a cheque for £17,500 eleven days earlier, and the prosecution inferred that this was how they were able to obtain the draft. The prosecution also inferred that the £900 difference between the cash deposited and the amount attributed to this transaction was probably some kind of an arrangement fee. The documents then showed that on 6th August 2002, the company bought the Porsche back for £37,000. Damian Cole had thus turned a large quantity of cash into an apparently genuine cheque. This transaction was completed by the appellant.[20]For count 2, the appellant was convicted of Entering into an Arrangement with Adrian Cole and Sasha Rainford. It was admitted that Adrian Cole had convictions for violence, dishonesty, possession of Class A drugs and fire arms. In August 2008, he had pleaded guilty to drugs and money laundering offences and was sentenced to 5 years imprisonment. Part of the evidence supporting his money laundering conviction was that he had laundered cash by buying and selling cars with the company. In his confiscation proceedings, his benefit figure included the purchase price of a Mercedes 320 CLK. In the appellant’s case, entry 6 on the Schedule related to this Mercedes. The documents showed that Sasha Rainford bought it from the company on 31st May 2003 for £33,000 all in cash. The defendant undertook the transaction and agreed on behalf of the company that the company would buy the car back after a month provided that it had no scratches or scuffed wheels. On 30th June 2003, the company duly repurchased the Mercedes for £30,000 paid by cheque to Sasha Rainford. Adrian Cole and Sasha Rainford thus lost £3,000 in a month, but achieved an apparently legitimate cheque for £30,000 which they were able to pay into the bank. The appellant’s case was that this transaction was either consistent with someone buying a car and changing their mind, or a more economic way of hiring a car. The prosecution contended that the first of these was plainly untrue, because the agreement showed that they had no intention of keeping the car for more than a month and the car was never registered in either of their names.[21]The prosecution case was that Adrian Cole continued to use the company to launder the proceeds of his criminal activity. This was shown by entries 7, 8 and 9 on the Schedule and supported by documents in the Jury Bundle. There was also an earlier transaction which featured as entry 5 on the Schedule and which related to a BMW convertible. Adrian Cole must have purchased this car elsewhere. On 26th June 2002, the company purchased it for £28,000 from Adrian Cole and Sasha Rainford’s mother, Dawn Rainford. Adrian Cole was paid £3,000 in cash for which he provided a signed receipt countersigned by the appellant, and a cheque for £25,000. Furthermore, during a search of the appellant’s home in July 2008, police officers found in his briefcase a copy of a receipt addressed to Adrian Cole for “£27,000.00 paid to Granville McDonald” on the company’s stationery. In his interview, the appellant was unable to explain this document. There was no obvious vehicle transaction to which it related. The receipt was in the Jury Bundle.[22]On count 6 the appellant was convicted of Entering into an Arrangement with Jado Pommell. It was a factually different arrangement, not involving the company, whereby the appellant was alleged to have purchased cars in his own name but on behalf of Pommell using Pommell’s cash. Entry 29 on the Schedule related to a R32 Golf. The documents showed that on 5th March 2007, the appellant purchased the Golf from the company for £27,000 and registered it in his own name. The car had originally come to the company from Paul Hayden, who was a witness. He had collected cash in instalments but was unaware that the car was intended for the appellant. On 31st July 2007, the appellant sold the Golf to Greenford Motors for £20,000. There was no trace of either the £27,000 or the £20,000 in the appellant’s bank accounts. On 20th April 2007, Pommell was seen by police in this car. Pommell had convictions for drug trafficking and was currently serving a sentence of 12 years’ imprisonment for distributing heroin.[23]In 2007, police were investigating circumstances concerning Pommell. On discovering that the Golf was registered in the appellant’s name, they took a statement from him, in which he stated that he had rented the vehicle to Pommell. He gave this explanation again when he was interviewed about the Golf following his arrest. The prosecution’s case against the appellant was that this explanation was not true. There was no evidence of any money paid into the appellant’s bank account consistent with Pommell making payments for the hire of the vehicle. In his 2007 witness statement, the appellant had also told the police that Pommell was known to him because he had undertaken vehicle transactions at the company. But the paperwork from the company showed that Pommell had never in fact undertaken such a transaction. The prosecution case was that the appellant had lied to the police in 2007 to cover the true nature of the arrangement. In addition, a speeding ticket found at the appellant’s home issued in April 2007 in relation to the Golf had been completed by the appellant using a false name.[24]It was the prosecution case that the appellant had made a similar arrangement with Jado Pommell in 2005 relating to a BMW M3 referred to in entry 30 on the Schedule. This car was purchased by the company from Foxtons on 13th May 2005 for £30,000. The documents also appeared to show that on the same day the car was purchased by the appellant from the company also for £30,000 although there was again no sign of the £30,000 being withdrawn from any of his bank accounts. Also on the same day, the car was sold to Carl Jerome and then bought back from him on 5th July 2005. The police investigated the details given for Carl Jerome but they appeared to be false. The appellant was shown on the document as the salesman and he himself had bought the car. The prosecution case was that this BMW was in fact bought by the appellant for Jado Pommell. Indeed, on 12th May 2005, papers were sent to the DVLA to register the car to Anthony Pommell, a relation of Jado Pommell. It was never registered to either the appellant or Carl Jerome.[25]We have given these extended details of the facts supporting the 3 counts on the indictment of which the appellant was convicted to show the nature of the evidence. The evidence was very largely contained in the documents, all of which the jury had. The documents were comprehensively summarised in the Schedule which the jury also had, and which had been used as a working document throughout the trial. Our account of the evidence for these 3 counts also serves to show what the judge might conventionally have done during his summing up, but did not do.

The summing up

[26]The judge told the jury at an early stage in his summing up that he was not going to take them through all the material again, because they had already got the suitably corrected Schedule and they could check the details in the Schedule from the documents in the Jury Bundle. He reminded the jury that they had the defendant’s account given in interview and that they had the various admissions. If they were unable to identify the evidence on a particular point, they should ask, and the judge with counsels’ assistance would point them to it (page 4B-5A). He told them again a little later that they had really got all the raw material and the helpful guide provided by counsel – presumably the Schedule (page 10B). The summing up was then adjourned over a weekend.[27]On the Monday morning, the judge again said that he was not going to read through every word of evidence, but if the jury wanted to be reminded of any detail, they should send a note to ask (page 16C). Somewhat later, the judge mentioned some details of the transaction with the Chrysler and told the jury that they had to look at the details of the particular transaction to ask whether there was any explanation for it, or should they draw a sinister conclusion? He did not have to take the jury item by item through the paperwork and the Schedule in which the whole trial was laid out. They had been taken through it very carefully by counsel checking up on these things (page 37B).[28]There came a time in the judge’s summing up (page 45) when he was obviously intending to draw to a close, and when he asked counsel if there was anything, law or fact, which they wanted to raise before the summing up concluded. Both counsel said that there was, and the jury were asked to withdraw. Mr Magarian raised three matters. First, he suggested that the direction which the judge had given about the defendant not having given evidence (pages 38-41) was not adequate. There was an extended discussion about this. In the result, the judge declined to add to or alter his direction. This matter originally featured as the subject of the appellant’s third ground of appeal to this court, which Mr Magarian withdrew during the hearing before us.[29]Second, Mr Magarian contended that the judge should have given both limbs of a good character direction. The judge initially disagreed about the appropriateness of doing this. But Ms Harris later agreed with Mr Magarian that the appellant was entitled to a modified full good character direction. The judge acceded to this request, directing the jury accordingly, and this matter does not feature as a ground of appeal.[30]Third, Mr Magarian recalled that the judge had told the jury that he had not gone through the evidence count by count, because he did not want to insult the jury’s intelligence. But, said Mr Magarian, the judge had not taken the jury to a single document in his summing up. Challenged by the judge to say what counsel reckoned he ought to have done, Mr Magarian submitted that the judge had failed to sum up the evidence. It was as simple as that (page 51G). He had not referred the jury in detail to any item on the Schedule (page 52E). The judge in a criminal trial, said Mr Magarian, has an obligation to sum up the evidence. There was a root and branch failure to do so (page 53F).[31]There were at least four strands to counsel’s submission, three of which survive as parts of the first remaining ground of appeal. First, the judge had not given a conventional detailed account of the evidence relating to each count. His view was that this was all contained in the Schedule and the documents in the Jury Bundle, and that further reiteration was unnecessary and an insult to the jury’s obvious understanding and intelligence. Second, the judge had not referred to any documents in a substantial additional Defence Bundle, reference to the detail of some of which was said to be helpful to the appellant’s case. Third, the judge had not referred the jury in detail to any of the content of the appellant’s edited interviews. Fourth, the judge had not referred in detail to the oral evidence called on behalf of the appellant by Mr Grech and Mr Roberts. There had been some references to Mr Grech’s evidence, but no systematic account of what he had said. The last three of these objections comprised a composite submission that the judge had failed to sum up the appellant’s case.[32]When the jury returned, the judge did then summarise in some detail the evidence of Mr Grech and Mr Roberts. He made further references to bundles of documents, mentioning the Defence Bundle at least twice, but not referring to any of the individual documents in detail. He also gave some further directions about various matters including the drawing of inferences. But, so far as is relevant to this appeal, he did not otherwise respond positively to counsel’s submission that there had been a root and branch failure to sum up the evidence.

The evidence of Mr Grech and Mr Roberts

[33]Frank Grech’s evidence, as summarised by the judge, was that he was the principal owner of the London Motor Company. He was of good character. He had known the appellant for approximately 15 years. The appellant had worked firstly as a cleaner, then a salesman before becoming a manager and profit sharer. Mr Grech spoke highly of his work ethic and never had cause to doubt his honesty. The company conducted a lot of business during the period covered by the indictment with average sales of over 60 vehicles per month. Transactions were often in cash and there was an advertisement outside the premises stating this. He himself had conducted such transactions, some of which he identified from the Schedule. He also identified other members of his staff who featured in the documents. He himself took a keen interest in his business. He did most of the purchasing of vehicles. He employed a book-keeper. He would write the necessary cheques if he was present at the premises, or otherwise leave a number of signed blank cheques to be used in his absence. The appellant was not a signatory to the bank account.[34]Mr Grech had himself been arrested and interviewed. As he had stated in that interview, he had seen nothing that showed illegality or dishonesty. The paperwork before the jury merely reflected the business of buying and selling motor cars.[35]Mr Grech was taken in cross-examination through the documents in detail to establish that the appellant featured prominently in the transactions on the indictment. Notification to the DVLA was usually undertaken by the book-keeper and later her son was engaged. Finally this was undertaken by Mr Grech’s wife. It was obviously important that notifications were made.[36]Edward Roberts’ evidence included that he had been a salesman at the London Motor Company since 2002 and had then become the Finance Manager. He agreed that they would sell between 40 and 60 motor cars a month. He gave evidence of the workings of the company, the conduct of cash transactions and responsibilities which supported the appellant’s case. He was not aware of any upper limit on cash transactions. If there was a large amount of cash involved, he would obtain proof of identification, but he was unaware of any further money laundering requirements. Nothing, he said, occurred in the business that was unknown by Mr Grech. He confirmed that the company offered guaranteed buy backs on vehicles. Customers would return vehicles for any number of reasons and this arrangement kept them happy. The company set a resale price and a period of time for return. The company did not hire cars, but this produced a similar result.

The appellant’s case

[37]As we have said, the appellant did not give evidence, but relied on the account in his extended edited interviews and on the evidence of his two witnesses. Other than in points of detail, he could not and did not argue with the contents of the documents. But he asserted that he did not know that those named in the indictment were concerned with drug dealing or other criminal activity. He had no suspicion that the sales and purchases in which he had participated were part of a series of money laundering transactions. The company bought and sold up to 60 motor vehicles a month and the prosecution had cherry picked a few only of these transactions and invited the jury to infer the requisite suspicion. The inferences could not surely be drawn, if the whole business of the company was seen in perspective. DS Farrell had agreed that the transactions in the indictment were a drop in the ocean of the company’s whole business. Cash transactions were not unusual, and the company advertised that it would purchase vehicles for cash. The appellant was not a director of the company nor a signatory to its bank account. He did not conduct the entirety of every transaction, so that the fact that his writing or signature was on many of the documents did not mean that he alone was concerned with the relevant transaction for the company. Others were involved also, as the documents showed. Mr Grech was closely concerned with the details of the company’s business. He himself had been arrested, but not charged. He was to be regarded as an honest witness whose honesty the prosecution were unable to challenge. He had not suspected that there was money laundering. Why should adverse inferences be drawn against the appellant, when they were not asserted against Mr Grech? On this topic, Ms Harris pointed out that Mr Grech was not a prosecution witness, and that the decision not to charge him had been responsibly taken. It went no further than that.

The first ground of appeal

[38]As we have said, the first of the remaining grounds of appeal (originally ground 2) is that the judge did not sum up the details of the evidence count by count at all; that he failed to refer other than in passing to the details of the appellant’s interview; that he failed to refer adequately to the defence bundle to remind the jury of documents there favourable to the appellant’s defence, including documents showing that Grech himself was a hands-on salesman; and that generally the judge failed to sum up the appellant’s case adequately. This is at first blush a formidable ground of appeal.[39]However, on closer examination the appeal takes on a rather different complexion. In the course of his measured submissions to this court, Mr Magarian accepted that the preponderance of the documents did indeed refer to the appellant so as to evidence that he took a part at least in the transactions for which he was convicted. Mr Magarian accepted that there was no point of significance for the three convictions that is not on the face of the Schedule. He also accepted that the summing up did contain interspersed within it the main lines of the defence case in summary form. We have ourselves confirmed that this is correct. The following among other short form references are relevant: a) What is the difference between the appellant and Grech? (page 23E). b) Grech would have been aware of the transactions that were going on (page 24C) – this in addition to the fuller summary of Grech’s evidence later. c) Reference to the book-keeper and to blank signed cheques (page 24E). d) Different people might complete a transaction (page 25A). e) Cash transactions not exactly uncommon (page 25G). f) High value cars do not automatically mean high profit (page 27B). g) No specific links established between the sales people and the criminals (page 28F). h) Not automatically sinister if a man buys a car for his girlfriend (page 29F). i) Police satisfied themselves that there were links between those named in the indictment. “The defence say, putting it simply, so what? How does that establish that the defendant knew of the relationships between them? And again, there is nothing specifically relied on to say that.” (page 30C). The judge went on to say that there may be various reasons why people go to car dealers. j) Defence may say that the details of a transaction are odd, but it’s not sinister (page 34D). k) Reference to interviews in which the appellant was asked for an explanation, and said that in many instances he could not remember things that happened years ago. A customer bringing a car back may have said there was something wrong with it. (page 34E-35C). l) Reference to the explanation of a guaranteed buy back scheme (page 35F). The company did not do car hire, but buying it back at a lower price had that effect. m) Reference to interviews which were read to the jury and of which they had copies. The appellant content to answer those questions (page 38D). n) A summary, later expanded of Grech’s evidence, and further reference to the explanation about hiring (page 43D).[40]The edited transcripts of the interviews were not put before this court. Mr Magarian did not refer to any specific significant point made by the appellant in these interviews relating to the counts on which he was convicted which did not feature in the summing up. Mr Magarian did say that DS Farrell was asked questions about the contents of the interviews but (apart from questions relevant to the second surviving ground of appeal, which we address later), he did not draw our attention to any relevant answer or concession relating to the counts on which the appellant was convicted. He did refer to some points relating to counts on which the appellant was acquitted, but that is beside the present point. As to the judge’s omission to refer in detail to any document in the defence bundle, there were more than 100 pages in that bundle, some of which showed participation by Grech in some of the transactions: but that point was made in the judge’s summary of his evidence. Mr Magarian also referred to a few documents relevant to counts of which the appellant was acquitted. He only specifically referred us to two documents in the defence bundle – page 36, which showed that a payment of £24,000 was made by the company to Adrian Cole in cash for the sale of a BMW, (i.e. the criminal did not receive a cheque or other apparently genuine document); and page 58, which related to a count on which the appellant was acquitted, but which showed that some transactions were not dealt with by the applicant alone. These were points which featured descriptively in the summing up, and we do not consider that the judge can be criticised for not drawing the jury’s attention to those two documents. We invited Mr Magarian to draw our attention to any other document in the defence bundle which might evidence an important defence point not dealt with in the summing up, and he did not do so.[41]As to defence witnesses, Mr Magarian accepted that by the end of the summing up the judge had “more or less” done justice to the defence witnesses, Mr Grech and Mr Thomas. In our view, the “more or less” is unduly grudging. The judge, having been invited to do so, summed up this evidence entirely properly. It was unfortunate, perhaps, that this occurred in the second part of the summing up after the judge had been asked to do this, but there had already been a fair shorter summary of Grech’s evidence covering in total nearly two pages of the transcript on pages 24 and 42).[42]This analysis, in our judgment, indicates that much of this ground of appeal is on examination insubstantial. The judge did sum up the defence witnesses. He did in substance put the main substantial points which comprise the defence case. Detailed reference to the appellant’s interviews would not have materially assisted the defence case; likewise, more detailed reference to the documents in the defence bundle. This is to be seen and understood against a background where the prosecution case on the 3 counts on which the appellant was convicted was very strong, and where it is not perhaps surprising if numerous points of detail supporting the defence case were not embedded in the interviews or the defence bundle.[43]It remains to consider whether the summing up is to be regarded as defective and the convictions in consequence unsafe, because the judge did not go through any of the detail of the prosecution case as set out in the Schedule and the Jury Bundle. It would perhaps have been conventional to do so, because in nearly every jury trial an organised judicial reminder of the main lines of the factual evidence is now regarded as necessary. There are some matters – directions of law mainly – which the jury must hear from the judge, however many times these have been rehearsed by counsel. However, we are persuaded that, in the most unusual circumstances of this case, the judge should not be criticised for proceeding as he did. Virtually the entire prosecution case resided in the documents which were systematically summarised and organised in the Schedule with full cross references. The jury had had the details of all this explained at least twice during the course of the trial – in the prosecution opening and DS Farrell’s evidence. The Schedule was moreover a working document throughout the trial. We think that oral repetitive re-examination of this material in the summing up was not necessary and may even not have helped the jury, because the jury could in reality only further consider this evidence by reading the documents and the schedule themselves when they retired. Another oral explanation was unlikely to assist this necessary process. If it had any additional effect, it may even have strengthened the prosecution’s case.[44]We conclude for these reasons that the appellant’s convictions on Counts 1, 2 and 6 are not to be regarded as unsafe by reason of deficiencies in the summing up. It was unfortunate that the summing up was given in two parts. Our consideration of this ground of appeal has some bearing on our consideration of the safety of the conviction as a whole in the light of the other surviving ground of appeal, to which we now turn.

The second ground of appeal

[45]The second surviving ground of appeal (originally ground 5) is that the judge repeatedly and unfairly interrupted the cross-examination of DS Farrell so as to undermine the appellant’s case and his counsel’s credibility in the eyes of the jury. The cross-examination sought to undermine the officer’s credibility, maintaining that he had cherry-picked transactions that suited the prosecution’s case. Counsel also wanted to put to the witness that he had lied on at least one occasion.[46]DS Farrell was the main prosecution witness. He gave evidence over four days. On part of the third day (Thursday 27th May), four other interposed prosecution witnesses gave evidence and the witness statements of three others were read. On that Thursday, DS Farrell gave evidence both before and after the interposed evidence. He gave his evidence in chief mainly on Tuesday 25th May. His cross-examination began at 11.06 a.m. on Wednesday 26th May and ran (apart from the interpositions) until whatever time the court rose on the afternoon of Friday 28th May. This court has transcripts of his cross-examination from 11.06 a.m. to 3.04 p.m. on Wednesday 25th May and from 12.40 p.m. to about 2.10 p.m. on Friday 28th May with breaks on each day for lunch. The greater part of this ground of appeal concerns the second of these. It is of some significance that this part of the cross-examination that is complained of lasted approximately 20 minutes in a cross-examination spread over a large part of three days. It is also of some significance that it occurred fairly close to the end of the cross-examination, which was followed by a weekend. The trial resumed on the following Wednesday, 2nd June, when the defence witnesses were called. The summing up started towards the end of Thursday 3rd June. The jury retired on the morning of Tuesday 8th June at 10.08 a.m., 10 days after the 20 minute part of the cross-examination of DS Farrell which comprises the strongest ground of complaint. We must remember that the discussion between the judge and counsel about the adequacy of the summing up had occurred during the morning of Monday 7th June.[47]We can consider the judge’s interruptions on Wednesday 26th May relatively briefly, because we do not consider that, taken alone, they were such as to constitute unfairness or to render the conviction unsafe. They do, however, contribute to the larger issue raised by this ground of appeal.[48]Between 11.06 a.m. and 3.04 p.m. (lunch intervening), the transcript shows that the judge intervened in counsel’s cross-examination approximately 8 times apart from other more routine interventions. Mr Magarian does not say that the judge was incorrect in all his interruptions, but submits that the general impression must have been detrimental to the appellant’s case. We summarise some examples.[49]Starting on page 19 of the transcript, Mr Magarian asked the officer whether he was disappointed that Mr Grech had not been charged. The officer answered that it was not the right place to ask his opinion. The judge interrupted to say that the jury were not concerned with Mr Grech who was not on trial. Whether he might have been charged was interesting, but not relevant. Mr Magarian said that he did not agree with the judge, but was interrupted again by the judge saying that he would in due course direct the jury that they had to focus on the evidence against the appellant and the charges he faced. They should not be speculating about matters upon which they did not have evidence. Mr Magarian said that he was not interested in why Mr Grech was not prosecuted, but wanted to examine what Grech did to see whether it could truly be said that there was a case against the appellant. The judge told counsel to stick to factual matters. Counsel then said to the witness that they were going through all the documents to see what the case was against the appellant, and he then proceeded to cross-examine the officer about Grech’s involvement in the business.[50]This appears to us to have been a discussion between the judge and counsel (in the presence of the jury and the appellant), each of whom had a point. The judge rightly said that evidence about why Grech was not prosecuted and the officer’s opinion on that subject were irrelevant and that counsel should stick to the facts relevant to the case against the appellant. Counsel was fully entitled to examine documents to show what Grech’s involvement had been and to advance the case that the appellant was no more involved in the detail than Grech, and that, if Grech was not to be regarded as implicated in the money laundering, neither should the appellant. In the event, Mr Magarian was not overborne and proceeded with his cross-examination.[51]Another intervention by the judge, on page 25 of the transcript, appears to have been justified. He evidently thought that Mr Magarian was cross-examining in a manner which raised the temperature unnecessarily and was over-dramatic, and where Mr Magarian said that he was sorry that his style of advocacy was not acceptable to the court. The judge suggested that he cross-examined so as to collect facts, and counsel proceeded.[52]There is a passage beginning on page 30 of the transcript and running for some 4 pages, when Mr Magarian was asking the officer about a sales person called Susan Jones and a transaction in 2002. The transcript records the judge doing most of the talking and Mr Magarian struggling to make his point. The subject was the judge’s initial understanding of the prosecution case that cash transactions could not have been charged as money laundering before legislation in 2003. Mr Magarian was eventually able to explain that such transactions could have been charged as money laundering under earlier legislation, but it was “a lot, lot harder to prove”. To this the judge said “well in that case I stand corrected and my apologies Mr Magarian”. The cross-examine about Susan Jones continued.[53]These examples are, we believe, representative of the other judicial interventions on Wednesday 26th May. Speaking generally, the judge was concerned that Mr Magarian should stick to gathering facts and should refrain from comment. Mr Magarian was concerned to be allowed to cross-examination in his own style. He was not overborne and was not prevented from asking the questions he wanted to ask. He obviously felt that the judge was interrupting too much remarking on page 66, “I’m sorry, have I done something wrong again?” and “speaking too loudly?”.[54]The last of the passages in this transcript occupies 3½ pages from page 117 which reads as a somewhat heated altercation between the judge and counsel, in which Mr Magarian was saying that he really should not be interrupted as frequently as he had been; and the judge was saying that Mr Magarian should not keep asking repeat questions on subjects that could not seriously be pursued. The passage ends with the judge asking Mr Magarian in effect three times to continue with his cross-examination, which Mr Magarian eventually did.[55]These were in total unfortunate episodes. We do not consider it appropriate to apportion blame or responsibility. Mr Magarian is an experienced criminal advocate who has, since the appellant’s trial, been appointed Queen’s Counsel. We have the impression from the transcript – we trust he will forgive us, if he regards this as a criticism – that his style of cross-examination in this trial was at least robust, excitable perhaps, and on occasions repetitious, although he showed none of these characteristics before this court. We have no doubt that he was conducting the cross-examination with vigour in the best interests, as he saw it, of his client. It appears that he and the judge had something of a clash of personality, with the judge intervening perhaps too often and perhaps at too great length, although the interventions were in the main properly made in a proper attempt to control and confine the proceedings. On the occasion when the judge’s intervention was erroneously based, he apologised. As it turned out, the interventions and the ensuing discussions (or, in one instance at least, altercation) were unfortunate. Counsel was not prevented by them from continuing with a lengthy cross-examination, nor from asking the witness the questions he wanted to ask. What matters, of course, is, not to apportion responsibility between counsel and the judge, but to consider very carefully whether what happened resulted in a trial which was unfair to the appellant such that his conviction should be regarded as unsafe. This in turn has to be asked of the trial as a whole including the later episode, to which we shall turn. But, in our judgment, the interventions which we have so far considered on Wednesday 26th May would not alone sustain a successful appeal against these convictions.[56]The final passage in the cross-examination of DS Farrell was the better part of two days later shortly before lunch on Friday 28th May. The appellant had made a statement to the police in 2007 before he was arrested. DS Farrell said in answer to questions from counsel that in September 2007 he had served a production order (not, we understand, on the appellant himself) and that he had then spoken to people including, he thought, the appellant in general terms. There then followed this passage:
“Q. What, you told him about Sacha Rainford? A. I can’t recall what was said ---- Q. No, you did not, did you? A. ---- I did speak to him. Q. You did not. You are lying, are you not? A. I did ---- Q. All right, let us have a look ---- Judge McDowall: Mr Magarian, Mr Magarian, you are getting a little bit excited, I think Mr Magarian: I am. Of course, I am.”
The point about Sasha Rainford was that, as we have seen, she was Adrian Cole’s girlfriend who featured by name in a number of entries in the Schedule, in particular entry 7, which related to a Freelander Landrover, and constituted one of the transactions for count 2 of the indictment. Mr Magarian explained to us that, if DS Farrell had told the appellant in September 2007 that Sasha Rainford had criminal connections that would have undermined the whole defence case that the appellant neither knew nor suspected that the people he was dealing with were criminals or that the money they brought along was criminal property. Hence Mr Magarian’s excitement. He had not, however, as we read the transcript, introduced the point of it, which we now understand. Mr Magarian: I am. Of course, I am.”[57]After the passage which we have shortly described, there follows just over three transcript pages of what reads as unseemly and, it may be, heated altercation between counsel and the judge – this in the presence of the jury and, of course, the appellant. The judge considered that Mr Magarian was over-excited, that he should not accuse people of lying unless there was a serious point to make, and that the officer had made no record of saying anything or getting answers which were in any way important to the investigation. He considered that Mr Magarian was going over the top. Mr Magarian considered that he had been interrupted at a critical point of his cross-examination, so that the judge had taken the steam out of it; that he was professionally obliged to put to the officer that he was lying and that it was no part of the judge’s function to stop him; and that, contrary to the judge’s expressed observation, his cross-examination was being conducted very professionally. Neither of them wanted to get into this kind of discussion in front of the jury. The judge suggested that “instead of trying to blacken my character as well as the officer’s” Mr Magarian should get on with asking him questions in a calm measured way. Mr Magarian continued to try to make a point. But after the judge had three times asked him to continue his questions, Mr Magarian asked if the jury could go out so that he might raise a point of law. After a few more interchanges, the judge asked the jury to leave for their lunch.[58]There may be a short gap in the tape at this point. But we have a further 16 transcript pages of apparently rather more measured discussion between counsel and the judge in the presence of the appellant, but in the jury’s absence. The judge’s point of view is illustrated by this passage on pages 23 and 24 of the transcript:
“JUDGE MCDOWALL; ---(a), the point of principle. I fail to perceive – I still fail to perceive – why, when the prosecution’s case is moved in the way it is, the – call it – what you call the honesty of the officer is relevant, unless it is being suggested that he has falsified or dishonestly suppressed relevant material. The second point ---- MR MAGARIAN; Can I answer that? JUDGE MCDOWALL; (Inaudible) just a second point. I will conclude and you can have your say. The second point is this: that it seemed to me not necessarily helpful to Mr McDonald if you make what I regarded as an over the top charge, without laying the ground first and I am afraid that at the moment, I am – I will, obviously, try to restrain myself as I have been as far as possible, but if you are conducting questioning that seems to me to be unhelpful or, more significantly, unfair, then I will continue to intervene. Now, what do you want to say?”
The judge reckoned that the prosecution’s case depended on the documents and that, unless Mr Magarian was going to suggest that DS Farrell had suppressed or falsified documents, the judge did not see that his honesty came into it. The second point ---- MR MAGARIAN; Can I answer that? Now, what do you want to say?”

MR MAGARIAN; Can I answer that?

[59]Mr Magarian’s position is illustrated by this passage on page 14 of the transcript:
“MR MAGARIAN: Can I make my submission? My submission is this: I did absolutely nothing wrong. There was nothing wrong with my tone. It was aggressive, certainly, but one is entitled to be occasionally. There was nothing wrong with the content and, indeed, on this page which we are examining, the officer accepts he has made substantial errors. I am perfectly entitled, within the rules, which I am, to cross-examine him and accuse him of lying, but, with respect, your Honour is not entitled in the jury’s presence to announce that I should not be accusing a police officer of lying.”
Mr Magarian reckoned that the judge should not have interrupted at what counsel regarded as a critical point, so that a perfectly good point was undermined.[60]Towards the end of this unfortunate, and at times unseemly, interchange, the judge said that he noted Mr Magarian’s position and that he would continue to try to avoid intervention, but if necessary he might send the jury out again. The transcript records Mr Magarian as saying “But I am intimidated now …” , which we doubt. We think “intimidated” is probably a mistranscription for “inhibited”.[61]Towards the end of all this, and shortly before the court adjourned, Ms Harris made a few brief observations, which read as being hugely tactful in the circumstances. Part of what she said was this:
“… so I do understand to a certain extent – well I do understand – sorry, not to a certain extent – that my learned friend has in some parts been challenging this officer’s credibility and I do not – I do understand why he wishes to accuse him of being – I am going to use the term, less than frank in some instances. However, I do in – in relation to the passage of questioning that brought all this about, I would make the following observation. My learned friend did, as your Honour observed, go in quite quickly and accuse Mr Farrell of lying, as well he might, but, in fact, what my learned friend did not do unless it is my note and it may be me, I could not – I did not understand what he was saying he was lying about, because he has just referred to the passage ----”
And then a little latter Ms Harris said:
“MS HARRIS: Your Honour, that was, in fact, the point I was to develop and, in fact, the officer then said: “I think I spoke to him in general terms.”
He was not asserting at that point that he had told him about Sacha Rainford. JUDGE MCDOWALL: Well, again, I think ---- MS HARRIS: And that was when my learned friend accused him of lying, so that was why I was confused as ---”[62]Part of the way through this long altercation, the judge had asked Mr Magarian if he wanted the jury discharged. To this Mr Magarian said:
“MR MAGARIAN: I am not going to apply for the jury to be discharged, but I ought to say that, in my estimation, I have not yet examined it in any great detail, your Honour has interrupted me a great deal during this trial and particular in that very contentious cross-examination of this same witness earlier on, I had to constantly field interruptions from the Bench.”
[63]When the court resumed after lunch Mr Magarian said:
“MR MAGARIAN: I really do not want to fall out with, your Honour, and I feel that before lunch we were going in that direction because it is just not in anybody’s interest, least of all my clients. May I suggest a way forward is this? I have spoken to the defendant and although he is anxious about some of the things that were said, he is very – he is more anxious to get the trial over and done with, so he does not want the jury discharged, so I am not making such an application. But may I suggest, I will endeavour to be less punchy in my style for the remainder of this cross-examination, but could I invite, your Honour, to say to the jury that you do not cast any aspersions on the way I am doing my job and maybe to say: “We have different jobs; Mr Magarian is defending and I am the Judge and, you know, maybe there has been a clash, but I do not” ---- JUDGE MCDOWALL: I will certainly say something to them if you wish. MR MAGARIAN: I would be very grateful. It is just – it is just the idea that my – the job could have been done more effectively than I am doing it. That is what worried me. JUDGE MCDOWALL: Well, it was not my intention to cast aspersions, because as I say, I recognise that everyone has a different style of advocacy, but, as I say, if it is not necessary to be aggressive (inaudible) term used, then I respectfully suggest you do not and then we will not have any problems.”
The jury then returned to court and

the judge said to them:

“JUDGE MCDOWALL: Members of the jury, in case you were wondering, I did not send you off for an early lunch so that Mr Magarian and I could have a physical fight or anything like that, but it is, to be slightly more serious, one of these areas where I was intervening the way I did for what seemed like good reason to me. Mr Magarian, as you gather, was cross-examining the way he did because it seemed like a good idea to him, but I cannot stress too highly, although I will be saying this again, or may be saying this again to you in due course, that when you are dealing with matters of fact and the significance of them, it does not matter what anyone thinks except you 12. So, insofar as there have been these kind of interventions, do not lose sight of what is the point, is it made, does it matter, because all these matters are areas that you go into. I think we have, as far as we can, agreed a non-aggression pact between us, so we will, I hope, be able to continue.”
Mr Magarian then continued his cross-examination for so much of the Friday as was necessary.[64]There are certain points to be noted about these passages. First, the larger part of it was in the absence of the jury. It was, of course, all in the appellant’s presence, and an element of fairness is that the appellant might feel that his counsel was unfairly inhibited from conducting his full defence. Second, we again refrain from apportioning responsibility. But at the outset Mr Magarian had undoubtedly become excited, and we are clear that the judge was not interrupting in order to spoil a good defence point. Third, we consider that Ms Harris fairly summarised the problem when she submitted that Mr Magarian was entitled to challenge the officer’s credibility, but that it had been quite unclear on what basis it was suggested that the officer was lying. All that he had said was that he had spoken to the appellant in September 2007 in a context which also mentioned Sasha Rainford. Fourth, there was no mention of any evidence on this topic in the summing up, so that any suggestion that the appellant may have been told in 2007 that Sasha Rainford had criminal connections, if it were ever made, disappeared from the case which the jury were to consider 10 days later. Fifth, the appellant, through counsel, was given the explicit opportunity to apply for the jury to be discharged because of what had happened, including the complaint about the judge’s interruptions, but he took a considered decision not to make that application. This does not disentitle him from seeking to have his conviction quashed on this second ground of appeal. But it does mean that the judge was never asked to rule at the time on what is in effect the substance of this ground of appeal. It is pointless to speculate what that ruling might have been. But, either the jury would have been discharged or they would not: and, if not, the judge would have had to give reasons which could have formed the basis of an appeal. It is understandable if the appellant gave instructions not to make the application because he wanted to get the matter over one way or the other. But we are entitled, we think, to suppose that the appellant and his counsel must have considered that, notwithstanding what had occurred, continuing this trial before this jury would not be unfairly prejudicial to his case.[65]We were helpfully referred by Ms Harris to four authorities where appellants convicted in criminal trials sought to appeal against their convictions on grounds of judicial interference, rudeness and discourtesy to counsel and the like. These cases were R v Sullivan and Hare [2004] EWCA Crim 3324; R v Lashley [2005] EWCA Crim 2016; R v JDP [2010] EWCA Crim 3224; and R v Davis [2010] EWCA Crim 708. In Sullivan and Lashley, judgments in this court given by the present Lord Chief Justice concluded that the convictions were unsafe. In JDP and Davis, in which the judgments were given by Moore-Bick LJ and Jackson LJ respectively, the appeals were dismissed. There were in each case other grounds of appeal. Inevitably each case is fact sensitive in the respects relevant to the present appeal.[66]There will always be a spectrum, where complaints of this kind are made, which requires the court to judge whether an otherwise properly conducted trial was unfair to the point that the convictions are to be regarded as unsafe. Relevant considerations include, but are not limited to, the strength of the prosecution case on the one hand, and on the other hand the nature of the interruptions; the extent to which the appellant’s advocate may have been wrongly prevented from conducting the appellant’s case in the way in which he or she judged was in the appellant’s best interests; whether the interruptions etc. may have adversely influenced the jury against the appellant; whether the appellant himself could properly say that he had not had a fair trial; and whether an informed member of the public would so consider.[67]In Sullivan, where the case against the appellant appeared to be strong,

Judge LJ expressed the court’s conclusion in paragraphs 57 and 58 as follows:

“Perhaps we should start with underlining that we expect judges to be robust. We expect them to be curb time wasting. We expect them to keep trials moving forward, and we commend those who do so. But we see no reason why proper judicial control and management cannot be accompanied by and achieved with reasonable courtesy and politeness to counsel. If counsel behaves badly, there will be occasions for rebuke and sometimes there will have to be rebuke in unequivocal and unmistakable language: but not if counsel behaves properly, as here. We have studied this considerable transcript. We could not find a single incident in this trial where Miss Levitt, for the appellant Sullivan, or, for that matter, Miss Clarke, on behalf of the prosecution, fell below the high standards required of the Bar, in Miss Levitt’s case, in particular, fearlessly to defend her client and simultaneously to bear in mind her obligation to the court. She was fearless, but she was entirely courteous throughout. The judge’s response to her wish to re-examine her client was not. It was damaging to the jury’s perspective of the entire defence case, and it damaged her client’s confidence in the fairness of the process and, perhaps, in his counsel’s ability to represent him before the judge. Its effect was to prevent what was thought then by both counsel, and we think rightly, legitimate re-examination on a critical issue in the case. In short, Miss Levitt was prevented from seeking to put admissible and potentially relevant defence evidence before the jury which would go to her client’s state of mind. We do not know what answers Sullivan may have given. We cannot guess or speculate. What we have concluded is that, taking all these matters together, it would not be right for us to be satisfied that these convictions are safe. Accordingly, they will be quashed. It is absolutely apparent that this case needs to be retried.”
[68]In Lashly, observations of the judge in the absence of the jury were wholly disproportionate. (paragraph 29). Counsel had remained courteous and behaved properly. There was what the court described as a personal attack not only on her skill, but in effect on her professional integrity which was unjustified. There is reference in paragraph 44 to a judicial reprimand which was unfair. It was clear, not only that the judge was irritated by counsel, but that, if he made any effort at all to conceal it, he had been unsuccessful (paragraph 46). No point was taken about the summing up (paragraph 47). Judge LJ then said at paragraph 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.” The court concluded that the convictions were not safe.[69]In Davis, one ground of appeal relied on discourtesy and rudeness by the judge towards counsel. Jackson LJ referred to Lashley and R v Cordingly [2007] EWCA Crim 2174; [2008] Crim LR 299. He then said at paragraphs 50 and 51:
“It is clear to us from the transcript that there were a number of irascible exchanges between counsel and the judge. On some occasions there was some justification for the judge’s impatience. On other occasions the judge’s impatience was not justified and we consider that he was rude to counsel. However, it should be noted that all of these exchanges occurred in the absence of the jury. Furthermore counsel Ms Brennan is a member of the Bar of very considerable experience, who stood her ground firmly and in no way was beaten down by the judge. Although we do not feel able to commend the manner in which the judge addressed counsel on a number of occasions, in our view this case falls far short of the extreme circumstances exemplified by the cases of Lashley and Cordingly. We do not think that any of the exchanges between the judge and counsel should be characterised as judicial misconduct. Nor do we consider that those exchanges would have the effect of denying a fair trial to the appellant. In the result, therefore, we refuse leave to appeal on ground 6.”
These cases illustrate the spectrum to which we have referred.[70]We have each been troubled by this second ground of appeal. We have, however, concluded that it does not succeed; that the trial taken as a whole was fair; and that the appellant’s convictions are safe. Some factors which contribute to that conclusion have appeared earlier in this judgment, but the main reasons for our conclusion are as follows: a) the prosecution case on counts 1, 2 and 6 was, not just strong, but very strong. b) the judge’s directions of law are no longer criticised, and we have rejected the ground of appeal which otherwise criticised the judge’s summing up. c) accordingly, the jury were properly directed and, so directed, must surely have rejected the appellant’s exculpatory explanations and so much of the evidence of Mr Grech and Mr Thomas (or inferences to be drawn from it) as supported the appellant’s case. d) the jury were obviously discriminating and understood the details of the case, since they convicted the appellant on three counts but acquitted him on four. Ms Harris explained why on the facts a discriminating assessment might understandably have had this result. We were not persuaded by Mr Magarian’s submission that the four acquittals should predicate the same result on the other three counts. e) the judge’s interventions were not in the main discourteous, and most of them individually at least started off, as proper judicial attempts to control and confine an excitable and at times repetitive advocate. The interruptions became at times too numerous and too long, but this was in part a reaction to a voluble and persistent advocate. f) Mr Magarian is an experienced criminal advocate who was not overborne. He was able to conduct a very long cross-examination and was not prevented from asking the questions and pursuing lines of questioning which he wanted to ask and pursue. g) the appellant was given the explicit opportunity to apply for the jury to be discharged, but decided on advice not to do so. h) this was a long trial and the matters complained of occurred upwards of 10 days before the jury were asked to retire. In the meantime, the jury will have heard closing speeches from counsel, including of course Mr Magarian, and a summing up which cannot properly be criticised.[71]For these reasons, the appeal against conviction is dismissed.