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Court of Appeal allows appeal against conviction and takes law “one step further” in significant case for right to fair trial and permissible judicial comment

Rabah Kherbane represented the Appellant in Awil [2020] EWCA Crim 1802, a Court of Appeal judgment on which reporting restrictions were recently removed.

In a significant case on the right to a fair trial and permissible judicial comment, the Court of Appeal agreed there had both been a failure of fair process, and the judge’s interference may have swayed the outcome. The court quashed the conviction for firearms offences.

Rabah had appealed with leave to the full court, arguing the judge had entered into the arena in an unacceptable manner, and adopted a fundamentally unbalanced approach in his summing up.

The court made a number of important observations:

  • The court first summarised the principles in the main authorities up to Reynolds [2020] EWCA Crim 2145, and then noted it proposed to go “one step further” on judicial conduct to ensure a fair trial;
  • In doing so, the court agreed with Rabah’s submissions that for the judge “an appearance of advocacy on behalf of the prosecution is never appropriate” (emphasis in original);
  • The court further adopted the Appellant’s submission that: “No judge should appear to enter into the arena. They should be seen to remain the impartial arbiter throughout. That is the essence of being a judge”;
  • A judge must always deploy careful and judicious use of language. This exercise requires considerable judicial skill. The best way to sum up is “straight down the line.”

In this case, the court held:

  • The judge’s summing up was fundamentally unbalanced, and to the disadvantage of the Appellant, where “Small opportunities were taken to bolster the prosecution account”;
  • The judge was further criticised for his use of scepticism bordering on sarcasm to undermine the Appellant’s evidence;
  • Large passages of the judge’s summing up, “would not have been out of place in a prosecution speech” but were “inappropriate for a summing-up”;
  • The summing up contained ill-considered statements of the judge’s personal views. Parts of the judge’s summing up were pejorative to an unacceptable degree.

The judgment has since been cited.

The full judgment can be accessed here.