Randall (BV) v R
| Jurisdiction | UK Non-devolved |
| Judge | (Lord Bingham of Cornhill, Lord Nicholls of Birkenhead, Lord Hutton, Lord Hobhouse of Woodborough and Lord Rodger of Earlsferry) |
| Judgment Date | 16 April 2002 |
| Court | Privy Council |
| Date | 16 April 2002 |
(Lord Bingham of Cornhill, Lord Nicholls of Birkenhead, Lord Hutton, Lord Hobhouse of Woodborough and Lord Rodger of Earlsferry)
J.D. Guthrie, Q.C. and T.I. Roe for the appellant;
D. Perry, G.I. Patterson and S.W. Bulgin, Solicitor General, for the Crown.
(1) Anderson v. R., [1972] A.C. 100; [1971] 3 All E.R. 168, referred to.
(2) Barrow v. State, [1998] A.C. 846; [1998] 4 LRC 517, referred to.
(3) Berry v. R., [1992] 2 A.C. 364; [1992] 3 All E.R. 881, referred to.
(4) Boucher v. R., [1955] S.C.R. 16; (1954), 110 C.C.C. 263, dicta of Rand J. applied.
(5) R. v. Aziz, [1996] A.C. 41; [1995] 3 All E.R. 149, referred to.
(6) R. v. Banks, [1916] 2 K.B. 621; (1916), 85 L.J.K.B. 1657, referred to.
(7) R. v. HulusiUNK(1973), 58 Cr. App. R. 378, referred to.
(8) R. v. MacDonald, English Court of Appeal, March 25th, 1999, unreported, referred to.
(9) R. v. PuddickENR(1865), 4 F. & F. 497; 176 E.R. 662, referred to.
Criminal Procedure-fair trial-role of prosecutor-prosecutors role to act as minister of justice, not to obtain conviction-to present all relevant and credible evidence before court in firm but fair manner
Criminal Procedure-fair trial-conduct of counsel-counsel not to interrupt oral evidence or judges summing-up (unless factual error, quickly corrected), or address jury other than at prescribed times-contentious objections to be made in absence of jury, especially if concern merits of case-not to intimidate or insult witnesses or other counsel-to confine any disparagement of witnesses to closing speech-not to disclose existence of prejudicial matters not before jury
Criminal Procedure-fair trial-role of judge-trial judge to ensure proceedings conducted in orderly and fair manner-to monitor and correct behaviour of counsel, in absence of jury if necessary-to refrain from disparaging accused or defence counsel-personal opinions to be presented in balanced and moderate way in summing-up
The appellant was charged in the Grand Court with theft and obtaining a valuable security by deception.
The appellant, a professional trustee, was charged with three counts of theft in respect of large sums stolen from a pension trust fund, which he then used as security for loans, one count of the theft of money placed on deposit with his company by an individual client, and one count of obtaining funds for investment in a company by misrepresenting the identity of the companys shareholders. The appellants defence was that he had not acted dishonestly and had believed himself to be entitled in law to do what he had done. He was convicted by a jury after a lengthy trial, and sentenced to 4 years imprisonment. The court made compensation orders in respect of one of the theft counts and the deception count, each with a consecutive term of imprisonment in default of payment.
On appeal to the Court of Appeal, the appellant submitted that his trial had been unfairly conducted. He alleged, inter alia, that the trial judge had allowed Crown Counsel to make comments and speeches in the
presence of the jury that were prejudicial to his case, on the pretext of summarizing evidence or responding to issues raised by the defence, and the judge himself had made prejudicial comments during defence counsels examination of the witnesses and in his summing-up to the jury. A large number of examples of such comments were cited in the notice of appeal, but only a few were elaborated on by the appellants counsel, and fewer still seriously pursued.
The Court of Appeal dismissed the appeal. It ruled that Crown Counsels interventions had sometimes been unnecessary and inappropriate and that the trial judge had failed to curb debate between counsel, but that defence counsel appeared to have retaliated in kind, and that the jury were unlikely to have drawn adverse conclusions. It concluded that the trial judges comments did not disclose any bias against the appellant so as to render his trial unfair.
On further appeal to the Judicial Committee, the appellant submitted that (a) the transcript of the Grand Court trial contained numerous examples of prejudicial comments made by Crown Counsel during his own and defence counsels examination of the appellant and other witnesses; (b) the trial judge had not only permitted lengthy, unnecessary exchanges between counsel relating to the appellants evidence and their questioning of him, but had also supported Crown Counsels intolerance of the appellant and his counsel by echoing his complaints; (c) with the apparent approval of the judge, Crown Counsel had alluded to undisclosed prejudicial evidence which he had threatened, before the jury, to reveal; (d) Crown Counsel had also accused defence counsel of disgracing the legal profession and dishonouring the law by seeking to smear prosecution witnesses and have recorded as fact matters that had not been proved; (e) in his summing-up, the trial judge had repeated many of the exchanges described above and had suggested that the appellant was deliberately forgetful and evasive in his answers; (f) the judge had also failed properly to direct the jury on the issue of dishonesty and had neglected altogether to direct them on the appellants previous good character; and (g) the court should not have imposed compensation orders carrying a term of imprisonment in default without first inquiring into the appellants means.
The Crown submitted in reply that (a) there had been no unfairness in the conduct of the appellants trial such as to render his convictions unsafe or unsatisfactory; (b) the case against the appellant had been very strong and his defence had been conducted in an obstructive manner, hampering the presentation of the case to the jury and evading giving any convincing explanation of the facts proved against him; (c) although Crown Counsels conduct had at times been unprofessional and the trial judge had not always exerted proper control over the proceedings, defence counsels objections had prompted many of the comments made, and the exchanges cited by the appellant represented isolated incidences in a long trial; and (d) neither of the appellants counsel had asked for the jury to be discharged or for argument to be heard in its absence, and the appellant had had a fair opportunity to present his case.
Held, allowing the appeal:
(1) The decision of the Court of Appeal would be reversed and the appellants convictions quashed. The evidence against the appellant had been very strong, and his defence might well have been properly rejected by the jury. Furthermore, there were some grounds for criticism of the conduct of his defence, which had made the task of the prosecution unnecessarily difficult. However, Crown Counsel had failed to conduct himself in accordance with accepted standards of professional behaviour and the trial judge had failed to exert his authority so as to control the proceedings and enforce proper standards. The judge had also showed his antipathy toward the appellant and his counsel in front of the jury. Taken together, a sufficient number of the appellants complaints were made out to conclude that the presentation of the defence case may have been inhibited, and the jurys attention distracted from its task. His trial had therefore been conducted unfairly. The Court of Appeal had not considered the full ambit of the appellants complaints, and it may have been unclear that the appellant relied in his appeal on a large number of passages from the trial transcript besides the small number of instances that had been elaborated on. A retrial was inappropriate, since the appellant had already served his sentence (para. 49; paras. 5154; para. 58).
(2) Among the well-established rules of practice developed to safeguard the fairness of the trial process were the following:
(a) The prosecutors duty was to act in the interests of the administration of justice, and not to obtain a conviction at any cost. His remit was to lay all relevant and credible evidence before the court to prove the offence, in a firm but fair manner. It excluded any concept of winning or losing.
(b) The jury should not be distracted from its task of determining guilt on the basis of the evidence adduced, the submissions made and the judges summing-up. Accordingly, evidence should ordinarily be given without interruption by counsel, and any objection likely to give rise to extended argument should take place in the absence of the jury, particularly if it concerned the substantial merits of the case. Counsel were not permitted to address the jury other than at prescribed times and should not do so under the guise of interjections in the course of evidence. Counsel might criticize a witnesss testimony, based on the other evidence or lack of it, but should not seek to intimidate or insult witnesses or each other. Any disparaging comment should be made in closing speeches. Counsel should never refer to matters prejudicial to the accused which were not before the jury. The judges summing-up should not be interrupted unless a factual misstatement could be quickly and uncontroversially corrected. Any misdirection, omission or inaccuracy should be brought to his attention at the close of the summing-up and, if there was a risk of prejudice, in the jurys absence.
(c) The judges role was to ensure that the proceedings were conducted in an orderly and fair manner. This included monitoring and correcting
the conduct of counsel if it fell below acceptable standards, in the jurys absence if necessary. He should refrain from disparaging the accused or counsel, and should express any personal opinions in a moderate and balanced way in summing-up (para. 18).
(3) Not every departure from good practice would render a trial unfair. Most infringements of the rules of conduct which commonly occurred did not undermine the integrity of the trial process, especially if...
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