CASE OF C.G. v. THE UNITED KINGDOM
No violation of Art. 6-1;No separate issue under Art. 6-2;No separate issue under Art. 6-3-c;No separate issue under Art. 6-3-d;No separate issue under Art. 13
Nicolas Bratza
9. For several years until January 1996 the applicant was employed as an accounts clerk at a fruit and vegetable wholesalers. It was her job to bank cash and cheques. In January 1996 she resigned after telling the company secretary (“S.”) that there was a shortfall in the accounts which had been caused by the theft in November 1995 of two bags containing GBP 3,700, which she said had been taken out of her possession at some time between her getting the money ready for banking at her place of work, visiting a local public house at lunchtime, and arriving at the bank. She said that she had not reported the theft earlier because she was afraid she would be held responsible and lose her job, and that she had made efforts to meet the shortfall from her own money, but that the strain had become too much. S. subsequently went through the accounts from 1 October 1995 and discovered a shortfall of approximately GBP 2,900. He also discovered that since October 1995 the applicant had been consistently banking the takings late and occasionally failing to bank all the cash received. 10. The applicant was charged with stealing GBP 2,905.21. She pleaded not guilty and, in April 1997, following a three-day trial in a Crown Court before a judge and jury, she was convicted of theft and sentenced to two years’ probation and one hundred hours’ community service. She was 27 years of age at the time and had no previous convictions. 11. The applicant appealed against conviction. Her grounds of appeal were, inter alia, that the judge had made frequent interruptions and persistently hectored defence counsel, thus depriving the applicant of a fair trial. In particular, it was submitted that during the defence counsel’s cross-examination of the main prosecution witness, S., the judge had intervened so frequently that defence counsel was prevented from testing the accuracy of a schedule of banking payments prepared by S. which was the basis of the prosecution case, or from developing possible lines of defence, such as that the loss had occurred prior to the commencement date in the schedule. In addition, the applicant complained that the judge had constantly interrupted her examination-in-chief, making it impossible for her to give her evidence in a coherent manner, and had hectored her counsel to such an extent that he had felt unable to continue and had curtailed the examination. The grounds of appeal referred to the transcript of the trial which showed interventions by the judge on almost every page of S.’s cross-examination and on twenty-two of the thirty-one pages of the applicant’s examination-in-chief. 12. In February 1998 the Court of Appeal dismissed the applicant’s appeal against conviction, finding as follows: “The principal ground relied upon by Mr Engel, who appeared at trial and also on this appeal before us, was that the trial was unfair (and he does not mince his words) because of the attitude of the learned judge from the moment that he began to cross-examine [S.] through to the time when the appellant was giving her evidence in-chief, throughout her cross-examination, and even up to the moment when he was addressing the jury on her behalf at the close of the evidence. He says that there were frequent interruptions and that on balance they were hostile to the defence case being presented. They had the effect of disturbing his concentration and diverting the attention of the jury and also the attention of the appellant who was thereby unable to present a coherent and consecutive account of what had happened. We find that there is some substance in those criticisms. It appears from a reading of the transcripts that there were frequent interruptions at the start of the appellant’s evidence. In our view those interruptions, though no doubt well intentioned, may well have had the untoward and unfortunate effect of putting the appellant out of her stride and also, as seems to have been the case and as Mr Engel tells us, of disconcerting him. Likewise, so far as the evidence of [S.] is concerned, it does appear that, probably through a misunderstanding of the points that Mr Engel was seeking to make, the learned judge did interrupt cross-examination far more often than could be justified on any view. We are not impressed with the complaint which is made about the interruption which occurred during Mr Engel’s speech to the jury. That was simply to clear one matter up; it could have occupied no more than about ten seconds out of a speech lasting 45 minutes or thereabouts, we are told. That complaint is unjustified. We have to consider that ground and the criticisms which we feel have been made good in the context of the case as a whole. But we turn from that first ground of appeal to the second, which is to the effect that the summing-up was defective . ... This was a very short summing-up. It might be said that it was somewhat laconic. But we have to consider whether or not there was a sufficient reference to the defence which was being put forward. In essence the learned judge dealt with the defence at pages 9 and 10 of the transcript. He said: ‘... the broad case is the defendant says that the money was taken from her, I think it is fair to say now in October rather than November, as she originally said, and that she believes now it may well have been taken from [her place of employment], and she seeks to support that by saying there have been other small thefts [there], which suggests somebody dishonest was there who might have taken this amount.’ ... That was a very short way of putting the defence forward. It does not deal in great detail with the points which Mr Engel had been attempting to advance both in the course of the cross-examination and in his speech. To that extent the criticism is justified. It is a further criticism that the judge erred in withdrawing from the jury a main line of defence to the effect that the loss may have occurred prior to October 1995, but we find that that ground of appeal is misconceived. The prosecution case was quite simply that the money must have gone after 1 October because it was the reconciliation of the cash received, with the amounts paid into the bank, which produced the deficiency of GBP 2,900. No part of that sum could have been stolen before 1 October. Further it is said that the judge wrongly directed the jury that there was no evidence of there being a second paying-in book in use at the time, and the complaint is made that the appellant said that there was (in conflict, it has to be said, with the evidence of [S.]). This was a mistake on the judge’s part, so it appears, and something which we have to take into account. It is then said that the judge erroneously implied that defence counsel had failed to suggest to [S.] that there was more than one paying-in book, and once again it appears that the judge was in error about that. So far as we have been able to see, he was not corrected subsequently. Next it is said in further criticism of the summing-up that the judge told the jury that the appellant never made the suggestion that the money might have been stolen before she left her place of work on the day in question. That, too, was an error, but it was corrected by [prosecution counsel] at the close of the summing-up and in itself could not support a basis for quashing the conviction. ... As we have observed, there are criticisms which can be made of the manner in which this trial was conducted. It does seem to us that on occasions this very experienced and highly regarded circuit judge (now retired) did enter the arena, sometimes for legitimate reasons and at other times perhaps without justification. It does seem to us also that counsel found himself incommoded and disconcerted by those interventions and interruptions. Counsel have to possess (and if they do not have them they have to grow) rather thick skins. There was never an occasion where the learned judge in the course of trial, so it appears to us, made a ruling to the effect that Mr Engel should not continue with the line of defence that he was attempting to develop either in cross-examination or through his own witness. It appears to us that perhaps Mr Engel was on this occasion a trifle oversensitive. That does not, of course, detract from the validity of the criticisms – some well-founded, some not – in the round. In the end we have to ask ourselves whether or not we think this conviction was unsafe. That is the test we have to apply. The case was a strong one; indeed the evidence was overwhelming. The appellant on her account to the police and to the jury was admitting that a substantial sum of money had gone missing whilst it was in her possession. She had, by means of late banking, taken steps to cover up the deficiency. We have not a moment’s hesitation in saying that, so far as we are concerned, the conviction was entirely safe. Notwithstanding the criticisms which we have found to be made out as to the manner in which the trial was conducted, this appeal will be dismissed.” 13. Section 2(1) of the Criminal Appeal Act 1968 (“the 1968 Act”), as amended by the Criminal Appeal Act 1995 (“the 1995 Act”), provides a single, composite right of appeal against a criminal conviction. It states that the Court of Appeal: “(a) shall allow an appeal against conviction if they think that the conviction is unsafe; and (b) shall dismiss an appeal in any other case.” The broad intention behind this provision was summarised by the then Lord Chief Justice, Lord Bingham, in R v. Graham and Others ([1997] vol. 1 Criminal Appeal Reports p. 302 [Court of Appeal]), when he said: “This new provision......is plainly intended to concentrate attention on one question: whether, in the light of any arguments raised or evidence adduced on appeal, the Court of Appeal considers a conviction unsafe. If the Court is satisfied, despite any misdirection of law or any irregularity in the conduct of the trial or any fresh evidence, that the conviction is safe, the Court will dismiss the appeal. But if, for whatever reason, the court concludes that the appellant was wrongly convicted of the offence charged, or is left in doubt whether the appellant was rightly convicted of that offence or not, then it must of necessity consider the conviction unsafe. The Court is then subject to a binding duty to allow the appeal.” 14. The scope of the “safety test” was discussed by Lord Bingham C.J. in his judgment in R v. Criminal Cases Review Commission, ex parte Pearson [2000] 1 Criminal Appeal Reports 141 (Court of Appeal) (after the hearing of the applicant’s appeal), where he stated: “The expression ‘unsafe’ in section 2(1)(a) of the 1968 Act does not lend itself to precise definition. In some cases unsafety will be obvious, as (for example) where it appears that someone other than the appellant committed the crime and the appellant did not, or where the appellant has been convicted of an act that was not in law a crime, or where a conviction is shown to be vitiated by some serious unfairness in the conduct of the trial or significant legal misdirection, or where the jury verdict, in the context of other verdicts, defies any rational explanation. Cases however arise in which unsafety 15. This passage was subsequently cited by the Court of Appeal in the case of R v. Davis, Rowe and Johnson [2001] 1 Criminal Appeal Reports 8, where Lord Justice Mantell, delivering the judgment of the court, stated that: “The following is not intended to be an exhaustive statement of the principles involved. We simply extract the following. The Court is concerned with the safety of the conviction. A conviction can never be safe if there is doubt about guilt. However, the converse is not true. A conviction may be unsafe even where there is no doubt about guilt but the trial process has been ‘vitiated by serious unfairness or significant legal misdirection’ ... Usually it will be sufficient for the Court to apply the test ... which, as adapted by [counsel for the Crown], might read: ‘assuming the wrong decision on law or the irregularity had not occurred and the trial had been free from legal error, would the only reasonable and proper verdict have been one of guilty?’.” Later in his judgment, Lord Justice Mantell stated that: “We are satisfied that [the questions of ‘fairness’ and ‘safety’] must be kept separate and apart. The E.C.H.R. is charged with inquiring into whether there has been a breach of a Convention right. This Court is concerned with the safety of the conviction. That the first question may intrude upon the second is obvious. To what extent it does so will depend upon the circumstances of the particular case. We reject, therefore, [counsel for Johnson]’s contention that a finding of a breach of Article 6 (1) by the E.C.H.R. leads inexorably to the quashing of the conviction. Nor do we think it helpful to deal in presumptions. The effect of any unfairness upon the safety of the conviction will vary according to its nature and degree.” 16. The subject of judicial interventions at trial has arisen in a number of appeals. In R v. Hulusi (1973) 58 Criminal Appeal Reports 378 (Court of Appeal) the appellants complained that the conduct of the trial judge had made it impossible for counsel to conduct the case for the defence effectively. The judge had in particular made frequent interruptions to the examination-in-chief of the appellants and their witnesses. Lord Justice Lawton stated that: “It is a fundamental principle of an English trial that, if an accused gives evidence, he must be allowed to do so without being badgered and interrupted. Judges should remember that most people go into the witness-box, whether they be witnesses for the Crown or for the defence, in a state of nervousness. They are anxious to do their best. They expect to receive a courteous hearing, and when they find, almost as soon as they get into the witness-box and are starting to tell their story, that the judge of all people is intervening in a hostile way, then, human nature being what it is, they are liable to become confused and not to do as well as they would have done had they not been badgered and interrupted.” The court concluded that the judge must have given the impression that he was cross-examining on the evidence-in-chief as it was being given and that defending counsel was at times driven off-course by the judge’s interventions. The convictions were accordingly quashed. 17. In R v. Ahmed (unreported, 3 March 1995, Court of Appeal), Lord Justice Glidewell, delivering the judgment of the court, said that interventions by a judge in a criminal trial were generally undesirable for a number of reasons: (i) they might unsettle a witness; (ii) they might prevent counsel from pursuing a legitimate point; (iii) they might belittle counsel for the defence; and (iv) they might indicate a pre-conceived view by the judge. However, on the facts of the case, despite the inappropriate interventions by the judge, the court was satisfied that counsel for the defence had not been prevented from making the points he wished to make and that the conviction was not “unsafe or unsatisfactory” (which reflected the test contained in section 2 of the 1968 Act at that time). The appeal was therefore dismissed. 18. The Ahmed case was cited by the Court of Appeal in the context of the new test under the 1995 Act in R v. Roohi (Kambiz) (unreported, 11 July 1997). The court concluded that the Recorder conducting the trial had intervened “far too often” during the questioning of expert witnesses and that various of the undesirable consequences identified by Glidewell L.J. had followed. In all the circumstances, the court concluded that the verdict was unsafe on the basis that the appellant had not received a fair trial. 19. In R v. Frixou [1998] Criminal Appeal Reports 352 (Court of Appeal), the appellant complained that the Recorder had intervened with his examination-in-chief at trial to such an extent that he had been denied a fair trial. The court upheld the complaint and allowed the appeal, finding that the appellant had been effectively deprived of an opportunity to put his whole case before the jury in an ordered and structured form before that case was tested by the rigours of cross-examination. 20. Similarly, in R v. Roncoli [1998] Crim. LR 584 (Court of Appeal), the court found that the trial judge’s hostile interruptions of the appellant’s examination-in-chief had effectively constituted a cross-examination and concluded that the jury was bound to have thought that the judge was of the view that the appellant had no defence. The court stated that the fact that the prosecution case was a strong one did not deprive the appellant of his right to be tried fairly and thus allowed the appeal on the basis that the conviction was unsafe. 21. All of the cases cited at paragraphs 16 to 20 above were decided by the Court of Appeal before the appeal in the applicant’s case. 22. In R v. Kartal and others (unreported, 15 July 1999, Court of Appeal), Lord Justice Clarke, giving the judgment of the court, commented as follows: “The key principle is that every person is entitled to a fair trial. That general principle is enshrined in Article 6 of the European Convention on Human Rights. This appeal involves a particular application of that general principle. The particular principles are summarised in ...Archbold 1999... under the heading ‘Conduct of Trial Judge’: ‘Interventions by the judge during a trial will lead to a quashing of a conviction: (a) when they have invited the jury to disbelieve the evidence for the defence in such strong terms that the mischief cannot be cured by the common formula in the summing-up that the facts are for the jury, and that they may disregard anything said on the facts by the judge with which they did not agree; (b) when they have made it impossible for defending counsel to do his duty; (c) when they have effectively prevented the defendant or a witness for the defence from telling his story in his own way’ (...). We have seen a transcript of the whole trial except for the opening and counsel’s closing submissions to the jury. The transcript shows that the judge intervened on a considerable number of occasions during the evidence. He did so in particular during the cross-examination of prosecution witnesses by defence counsel. It is clear from the transcript that he did so for a number of different reasons. For example, he took the view that counsel were cross-examining the witnesses at excessive length and that they were inclined to make comments to witnesses when they should have been asking questions. It is the duty of counsel (...) both to cross-examine witnesses firmly, fairly and with reasonable dispatch and to avoid making comments which should be confined to submissions. It is equally the responsibility of the judge to do his or her best to ensure that counsel does not overstep the mark in these or indeed in other respects. Moreover, we see no reason why appropriate comments should not be made by the judge on these topics in the presence of the jury. On the other hand, as we have already said, it is of the utmost importance that every defendant should have a fair trial and indeed that he must be seen to be having a fair trial. It is therefore important that any rebuke to counsel should be delivered in measured tones, especially if it is done in the presence of the jury, and nothing should be done which might have any adverse impact upon the fair presentation of the defendant’s case or which might lead the jury to conclude that the judge was unfairly prejudiced against the defendants (...). It is submitted on behalf of the appellants that in this case on a number of occasions the judge unfortunately treated defence counsel in such a way as to make it difficult for them to put their client’s case fairly to the jury, and was such as might lead the jury to conclude that the judge was prejudiced against both defence counsel and the defendants. We have regretfully reached the conclusion that there is considerable force in these submissions. (...) (H)aving considered the transcript as a whole we have reached the conclusion that in the light of the judge’s approach to defence counsel and his frequent interruptions during the cross-examination of prosecution witnesses, none of which favoured the defence and many of which tended to favour the prosecution, together with his attitude to part, at least, of the defence case, these defendants did not receive a fair trial. An impartial observer at that time would, in our opinion, clearly have reached that conclusion. Yet, as we have already said, each defendant has a right to a fair trial. (...) (W)e are quite unable to say that these verdicts are safe given the fact that these appellants did not receive a fair trial.”