Freeland, R. v [2013] EWCA Crim 928

[2013] EWCA Crim 928

Case No 201204770 C2

IN THE COURT OF APPEAL (CRIMINAL DIVISION)

ON APPEAL FROM Reading Crown Court

Deputy Circuit Judge Hall

T20117351

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 11/06/2013

Before

LORD JUSTICE TREACY

MR JUSTICE EDWARDS-STUART

HIS HONOUR JUDGE INMAN QC (SITTING AS A JUDGE OF THE COURT OF APPEAL CRIMINAL DIVISION)

Between

ReginaCrown

Samuel FreelandDefendant

Ms S E Davies (instructed by Registrar of Criminal Appeals) for Appellant

Mr R Scamardella (instructed by Crown Prosecution Service) for Respondent

Hearing Hearing dates : 9th May 2013

Judgment

[1]This is an appeal against the Appellant’s conviction of rape on 11th July 2012 in the Crown Court sitting at Reading. The Appellant was sentenced to six years and six months imprisonment.

[2]The grounds of appeal relate to the conduct of the trial judge. It is argued that the judge’s conduct and in particular his interventions in the case rendered a fair trial impossible. It is argued that(a) defence counsel felt constrained in her cross examination of Crown witnesses,

(b) the proper and lucid deployment of the Appellant’s case was hampered,

(d) the jury will have been unfairly influenced against the Appellant. Thus the overall effect was to undermine the fairness of the proceedings and render the jury’s verdict unsafe.

[3]Counsel for the Crown is of fifteen years call. Ms Davies is considerably more experienced than that. The trial judge is an experienced judge.

[4]The facts of the case do not impinge greatly on the matter to be decided. The complainant, E, was a university student who was in a bar in Reading. She had gone there with friends, but had left the friends in a private area and had gone to a more public area downstairs. She was drunk. The Appellant was with a group of friends. One of them approached the complainant, who flirted overtly with him, putting her arms round him, kissing him, and putting her number into his mobile. That friend, Paul Doherty, did not pursue matters with her and returned to his own friends, including the Appellant.

[5]A short while later the complainant left the bar, followed by the Appellant. She accepted an offer to share a taxi, and ended up at his shared four bedroom house. She had previously been a virgin, but sexual intercourse took place that night. The complainant said it was without her consent; the Appellant said it was consensual. The complainant was clear as to lack of consent, although her memory was patchy about a lot of the detail of events because of the alcohol she had consumed.

[6]The police came to the house during the night and found the complainant intoxicated, confused and befuddled. On examination the complainant had sustained three genital injuries, and in addition to the alcohol in her system, there was found the drug Promethazine which would have added to the effect of the alcohol. In the Appellant’s room was found an empty tablet box for Promethazine, which is an antihistamine prescribed as a sleeping drug. The Crown’s case was that the Appellant must have administered this, although the Appellant denied it.

[7]In addition to the complainant, the Crown called evidence from three witnesses. Two of them were friends of the Appellant, Doherty and Parker, who had been present in the bar. The other witness was Elizabeth Thomas, a friend of the complainant, who had been in her company in the private function room of the bar. The asserted problems in the conduct of the trial arose during Ms Davies’ cross examination of the complainant and those witnesses.

[8]Ms Davies relies on what happened with each of those witnesses. Her grounds referred us to a number of passages in transcripts with which we have been provided. We have, however, read the full transcripts so as to form a complete picture.

[9]We start with the complainant, E. Ms Davies complains of a large number of interventions. There are about a dozen episodes in a thirty four page transcript. As has been said in previous cases, it is the quality of the intervention rather than the quantity that matters. Our clear conclusion is that there is nothing untoward in the judge’s interventions. They are very largely matters of clarification or appropriate judicial intervention to prevent comment, inaccuracy or over-involved and unnecessary detail.

[10]There came a point towards the end of the cross examination where the judge made clear that he wanted to finish the witness’ evidence that day, rather than have her part heard overnight. He said that he was doing this “in fairness to the witness”. We regard this intervention, of which complaint is made, as a reasonable one to make. It is of a type commonly made by judges, particularly where a sensitive witness has been giving evidence. We observe that notwithstanding the judge’s comment, Ms Davies continued cross examination for a reasonable period without giving signs of being under pressure. She then said she thought she had finished. She paused to check and then confirmed that she had.

[11]Our view is that there is nothing to complain of in relation to the witness E. The judge was controlling or managing the proceedings firmly, but appropriately. There is no sign that Ms Davies was put off or impeded improperly in what she was doing.

[12]Next we turn to Paul Doherty. There was one insignificant intervention followed by a more significant one. Ms Davies was cross examining Doherty about the part of the bar in which the Appellant’s group were standing before Doherty went over to the complainant. She invited the witness to take a plan of the premises, which the prosecution had adduced. The judge had previously criticised the Crown for introducing the plan as being unnecessary. When Ms Davies referred to the plan, the judge said:

“I wish we could get round to what is important. I really do. You are wasting time.”

[13]Ms Davies said she was not wasting time, and the judge repeated that she was, with Ms Davies maintaining her position. There were further exchanges in which each maintained their stance, culminating in Ms Davies saying that she resented the allegation of time wasting. The judge then said:

“Well, you can resent to your heart’s content. My pen is put down for the moment.”

[14]Ms Davies then asked the witness to take up the plan and proceeded to put a question or questions to him based on it. This episode occurred halfway through the witness’ cross examination. Our reading of the transcript shows that Ms Davies carried on with a cross examination which appears unaffected by the exchange. She certainly stood up to the judge, and does not seem to have been deflected. The judge was entitled, in our view, to seek to focus the cross examination to the more important areas of the case without a descent into unnecessary detail on other matters. However, his remark about putting his pen down was, in our view, discourteous and should not have been made in front of the jury.

[15]Then we turn to the cross examination of Matthew Parker. The judge intervened to prevent Ms Davies telling Mr Parker what another witness had said. In our judgment, the judge was justified in doing this, and Ms Davies dealt with the matter in a different way. There is a separate complaint which is to the effect that after a particular question had been asked, and an unfavourable answer given, the judge had commented “well you asked the question”. This was not, in our view, a comment which should have been made.

[16]Next we turn to the witness Elizabeth Thomas. Ms Davies complains that the judge refused to let her ask some questions of Ms Thomas about the movements of the complainant’s group from elsewhere in Reading to the private room in the bar, with E then going into the public area. Apparently Ms Davies wanted to explore the possibility that E was upset by the departure of a young man she was attracted to with another girl from the bar, and that this had led the complainant to go into the area where the Appellant and his friends were. The Crown apparently would not have objected to this line of questioning.

[17]We have to say that we regard the proposed questions as only marginally relevant, if relevant at all. The questions were remote from the real issue in the case and run the serious risk of inviting a speculation or an inadmissible opinion in response to them. We therefore see no forensic disadvantage in the judge’s ruling delivered in the absence of the jury. The exchanges concluded in this way:

“Ms Davies: “I submit that it is relevant and it is fair.”

The Judge:

“Wood and trees, to you; that is what I say. I am rising.”

Ms Davies:

“Well, are you allowing me to do it or not?”

Judge: “No.”” Ms Davies: “Well, are you allowing me to do it or not?”

[18]The judge’s manner of ruling was rude and unnecessary. It was not, however, said in the presence of the jury.

[19]After the luncheon adjournment Ms Davies applied to the judge to recuse himself and to discharge the jury. She said that either the judge had taken against her personally so that she could not conduct the trial properly or his attitude was directed at the Appellant. The judge responded that he had a duty to conduct the case in an efficient way and he had done no more than that. He refused the application. Ms Davies then asked for time to take advice and said that her client had lost confidence in having a fair trial. Time was granted to Ms Davies. She apparently consulted a senior member of her chambers and took advice from the Professional Conduct Committee of the Bar Council. When the hearing resumed Ms Davies pursued her application for the jury to be discharged. She submitted that the cumulative effect of the judge’s interventions had to be considered. She wished to withdraw from the proceedings, but did not want to run the risk of her client having to represent himself.

[20]The judge asked the Crown for its observations. Mr Scamardella said that the Crown was neutral in relation to the application to discharge. He went on to express the Crown’s concerns about the judge’s interventions towards him over his introduction of the plan. The judge commented that he thought prosecuting counsel had been wasting time in that respect. The judge had invited Mr Scamardella to speak frankly, and so he did. He said that in relation to Elizabeth Thomas, the judge had “stepped into the ring a little too much”. He as prosecutor had not objected to the desired line of questioning. The judge said that that was not stepping into the ring. He had been ruling on relevance. The judge had apparently also described Ms Davies’ proposed questions as “trivial”. Mr Scamardella said that was harsh, and that both counsel felt that the judge should have let them get on with their jobs.

[21]The judge gave a ruling. He explained that he was attempting to manage the trial by getting counsel to consider the real issues in the case, rather than exploring trivia. He had permitted what he regarded as irrelevant questioning of Elizabeth Thomas for a while before intervening. That was the judge’s job. He refused the application to discharge the jury. He indicated he would be happy to address the jury with some “emollient words”. He said that the issues in the case were quite clear, and the Appellant would get a fair trial, and that there was some way to go in the case. He thought counsel were being oversensitive and what had happened would quickly fade into the background.

[22]The case continued. The witnesses we have described gave evidence on a Tuesday and a Wednesday. On the Thursday the remainder of the prosecution evidence was called without incident. At the beginning of that day the judge addressed the jury, redeeming his offer to use “emollient words”. Counsel had between them drafted an agreed form of words which the judge was happy to use. In summary, he explained to the jury that he, as judge, was doing his best to manage the trial. If on occasion he had appeared partisan, that was unintentional. He went on to say that nothing in what had happened should be held against the Appellant.

[23]The Appellant then gave evidence on the Friday and the following Monday. Again, there was no intervention or untoward incident. Prosecution counsel rightly attracted judicial intervention for asking questions in the form of a comment. After speeches the judge summed up. The summing up was a balanced and concise summary of the evidence and the issues, about which no complaint is made. The judge made clear that the assessment of the evidence was entirely a matter for the jury.

[24]Ms Davies acknowledges that after matters had come to a head on the Wednesday afternoon, there could be no matter of complaint. Nonetheless she maintains her complaint that a fair trial did not take place. She says that by the Wednesday afternoon a fair trial had become impossible; the damage had been done, and what happened thereafter was too little, too late. The continuation of the trial was in effect a second best option. The judge should have recused himself and discharged the jury on the Wednesday afternoon. She argued that the jury would have been affected by the interventions in the course of the evidence of the prosecution witnesses, and also asserted that she had been hampered in her presentation of the case.

[25]Mr Scamardella said that he too had been criticised by the judge, and he characterised the trial as being conducted in a “terse atmosphere” between bar and bench. However, he maintained that the judge’s conduct was not hostile to the Appellant or Ms Davies personally or to the merits of the defence case. The judge had engaged in robust case management, but no more than that. He had on occasion expressed himself in a way which was unduly harsh or unnecessary, but with the exception of the matter relating to Elizabeth Thomas (which we have commented on above), Ms Davies was able to ask whatever questions she wished. From the Thursday morning onwards the judge’s conduct had been impeccable, and looked at overall, the trial was a fair one.

[26]The question for us is whether, but by reason of anything that occurred during the trial, we think that the conviction is unsafe. If we felt that the trial had been procedurally unfair, the strength of the evidence available to the Crown could not preserve the conviction. We were referred to R v Matthews & Matthews 78 Cr App R 23, [cited at paragraph 7-81 Archbold 2013 Edition], where this court said that in a case concerning judicial interventions the ultimate question was:

“Might the case for the defendant as presented to the jury over the trial as a whole…be such that the jury’s verdict might be unsafe?”

[27]That was a decision made in July 1983. The formulation of the question is looser than the statutory test now imposed by Section 2 of the Criminal Appeal Act 1968 as amended. Ms Davies accepted that the Act provides the governing test and that to the extent that Matthews is inconsistent with it, the sterner test required by the Act must apply.

[28]In written submissions we were referred to a number of other decisions of this court. However, we have to say that they were not of particular assistance to us since this sort of issue is very much case-specific. Ms Davies rightly accepted that the decision for this court would be very much a matter of impression. We recognise that the bare transcript cannot convey the full flavour of what happened in the court room. Counsel have sought to convey their own impressions, but there is a serious danger of placing undue weight on what are subjective impressions. It is, however, clear to us that in the initial stages of the trial at least, there were tensions between counsel and the judge arising from the judge’s somewhat robust management style in seeking to confine the case to what he regarded as a proper and relevant ambit. Counsel do not, however, have a free hand. Judges increasingly these days have a responsibility to manage a case as part of the overall management of court resources and to focus minds on appropriate expedition and what really matters in a case.

[29]There was not a happy atmosphere between bar and bench in this case, certainly in the early stages, but that cannot conceivably make a trial unfair. There were some comments which the judge should not have made; some of them were made in the presence of the jury. However, Ms Davies does not argue that the Appellant was prevented from giving his side of the story in his own way. Nor does she argue that the jury were invited to disbelieve the evidence of the defence in terms which would make it impossible for the jury to ignore that. She submits that this is a case of it being made impossible for defending counsel to do her duty.

[30]We have to say that whilst there were aspects of the judge’s behaviour which were the subject of legitimate criticism, other criticisms are not well founded since they merely represent forensic disagreement with the judge’s not unreasonable position as to management of the case, relevance of evidence, or the way in which matters should be presented before the jury. Insofar as criticism is justified, we are clearly of the view that it falls very far short of a level which could have rendered this trial unfair. On no sensible reading of the transcripts could the jury have regarded the judge as personally hostile to, dismissive or demeaning of the defence case, or favourable to one side at the expense of the other. The jury will have had the impression of a judge who behaved briskly, perhaps brusquely at times, but no more than that.

[31]Moreover, once matters had come to a head on the Wednesday afternoon as a result of the frank exchanges between bar and bench, there were no further problems. The judge spoke to the jury on the Thursday morning in terms which will have made clear to the jury the reason underlying any perceived difficulty arising from the judge’s interventions. Importantly, the judge made plain that what had happened was no reflection on the merits of the defence case. The judge dealt with it in a form which was acceptable to counsel. Thereafter the trial proceeded for three further days without any untoward event. The Appellant gave his evidence without incident and at length. Counsel made their addresses to the jury, again without problem. A balanced summing up made no criticism of the defence or its conduct of the case, although the judge reiterated his criticism of the Crown for the introduction of the plan.

[32]We recognise that during the early part of the trial the Appellant may have felt concerns about the process. However, we have to assess the matter objectively. We are satisfied that overall this trial was fair and that the verdict was safe. Anything untoward which occurred in the early stages was not of such moment as not to be cured by the judge’s comments to the jury and the way in which the latter part of the trial was conducted. Accordingly, the grounds of appeal fail and this appeal against conviction is dismissed.