No: 2004/3459/D4 
Neutral Citation Number: [2005] EWCA Crim 2079
IN THE COURT OF APPEAL 
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2 

Thursday, 28 July 2005
 
B E F O R E:

LORD JUSTICE JUDGE 
(DEPUTY LORD CHIEF JUSTICE)

MRS JUSTICE RAFFERTY 
 
SIR DOUGLAS BROWN
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R E G I N A 

-v- 

PATRICK BRYANT 
 
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MR T BURKE QC appeared on behalf of the APPELLANT
Mr K DOW AND MR B DOUGLAS-JONES appeared on behalf of the CROWN
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J U D G M E N T 

1.	LORD JUSTICE JUDGE:  On 18th May 2004 in the Crown Court at Snaresbrook, before His Honour Judge Medawar QC and a jury, this appellant was convicted of causing Adrian Watson grievous bodily harm with intent, wounding Anthony Obi-Daniel with intent and affray.  He was sentenced to a total of eight years' imprisonment concurrent for causing grievous bodily harm with intent and wounding with intent, and three years' imprisonment concurrent for affray.  Two co-accused, Ryan and Stephen Cunningham were acquitted of the counts alleging offences against section 18 of the Offences Against the Person Act 1861, but convicted of affray.  
2.	The appellant appeals against conviction and sentence.  We began the hearing earlier this week on 20th July.  We were unable to conclude it then in the unavoidable absence of prosecution trial counsel, Mr Kenneth Dow.  He has returned from holiday and has been present today to assist us.  We are grateful to him for coming and for the objective and dispassionate way he has exercised the fundamental obligation of counsel for the Crown to act as a minister of justice.
3.	The trial arose from a most unpleasant incident on 10th and 11th July 2003 in Islington.  The prosecution and defence cases were in direct conflict on virtually every issue including, and most importantly, the true identity of the aggressors and those who were seeking to do no more than to defend themselves.  
4.	The Crown alleged that three black youths Adrian Watson, Anthony Obi-Daniel and Sampson Orenuga together with two girls were walking home late one evening.  While they were waiting for a bus this group noticed an altercation and fight involving some six men and three girls.  This took place on the other side of the road and included the use of fists, punching and kicking and indeed the smashing of glasses.  At the end of this disturbance two of those involved ran off.  One of the men remained.  
5.	When the bus Watson and his groud were waiting for failed to arrive, they walked over to the side of the road where this altercation had occurred.  Thereafter they were racially abused and then they were set upon by the appellant and his two co-defendants.  At the end of the incident Watson suffered multiple lacerations consistent with being caused by broken glass, including facial lacerations and Obi-Daniel suffered from two lacerations on his right arm consistent with having been caused by a broken bottle.  
6.	The defence was self-defence.  Bryant's case was that he was injured in the fight, and he contended that the behaviour of the alleged victims during the fight and afterwards supported his case that he was not the aggressor and that they were.  His injuries included a deep cut to the lower hand which was bleeding profusely, as well as a superficial laceration of the lower abdominal region; both injuries were consistent with the use of a sharp instrument such as a knife.  He called witnesses to support his account that one of the alleged victims was carrying a knife which was used to inflict the injuries.  He relied on the fact that after the incident he and his group ran towards his home and that they were followed there by the alleged victims.  His mother gave evidence in support of his defence.  So did a number of other witnesses including one named Zoe Brindle.  
7.	We need not give a lengthy narrative account of the different versions of this incident.  Reduced to ordinary language the single ground of appeal advanced to us is that the trial was unfair and rendered so by the behaviour of the trial judge.  At an earlier stage two separate points of law arising from the way in which the judge dealt in his summing-up with the appellant's "no comment" interview and an alleged perversity in the jury's verdict were raised.  The single judge gave leave on the basis that it was arguable that the judge had improperly descended into the arena.  Leave to argue the remaining grounds was not given and they were not renewed before us.
8.	The judge is said to have displayed open hostility to the defence case by his demeanour, his interruptions, his behaviour and his treatment of defence witnesses generally and in particular Zoe Brindle.  This was said to contrast with his treatment of prosecution witnesses who were afforded every courtesy.  Complaint was made about this striking contrast, and it was suggested that the judge's attitude to the defence was evident from the start, not least because he believed that the case should be concluded far more quickly than the four to five day time estimate.  
9.	When the case was called on late, through no fault of this appellant, the judge's irritation at the time the case was taking was first to be observed when counsel, who was called in 1988 and who was present to assist us but did not act as counsel in the appeal, began his cross-examination of Adrian Watson.  Counsel asked that a plan should be available and the judge responded that everyone should wait to see whether a plan was relevant.  Counsel suggested that the relevance arose from the fact that the address to which his client went afterwards was his own home.  The judge said: 
"At the moment, it seems obscure that any plan would assist at all, but it may do, if you think it does."  
We find nothing unfair or unreasonable in this approach.  The judge postponed a decision until he could see what assistance a plan might give.  
10.	Counsel then cross-examined about the earlier incident.  The witness confirming that no weapon was used during that fight, which was "a case of fists and punches or kicks".  
11.	After a few pages covered by the transcript the judge suggested to counsel that the case could "move on at a slightly less leisurely pace, don't you think".  Counsel asked the judge if he would allow him to ask questions which he thought were relevant and the judge responded that he expected him to move on.  Cross-examination continued.  After a few more pages covered by transcript the judge intervened to say:
"There really is no warrant for taking it at this speed and I will not have it, so will you kindly move on." 
Counsel responded that he would like to raise something in the absence of the jury, who then left court.  Counsel then addressed the judge explaining that:
"... details of where these incidents took place are an important part of the defence case." 
The judge responded that he understood,but he was not prepared to have the case move on:
"... at a snail's pace like this.  I think enough time has been wasted already and you have succeeded in wasting more by thinking it is necessary for the judge to go out while you make some comment.  
I obviously understand what the defence is, if any in the case, right, from the defence statement.  They may be said to be wholly inadequate, but I have read them, so I know what the defence is.  
Now, we will you kindly move on at a normal speed.  I just won't have it and I won't have the next barrister asking the same questions as have already been asked.  You can either adopt it if you want.  If you want to ask something else because you don't agree with the line, that's fine.  Otherwise we will move on.  This is a case that should not take more than three days, four days at the outside and I am certainly not having time wasted.  Very well, let's have the jury back." 
12.	In passing we note that the defence case statement was woefully inadequate.  It consisted of a general denial of the counts in the indictment, accompanied by the sentence "The defendant takes issue with any witness purporting to give evidence contrary to his denials".  That sort of observation is not worth the paper it is written on.  It is not the purpose of a defence case statement.  
13.	The other consideration arising from the judge's observations is that he plainly wished the case to move forward.  The text suggests that he was concerned with the leisurely pace of the questioning.  He was not suggesting that the questions that were asked were inappropriate.  However some 55 questions and answers had been given.  The judge had already urged a less leisurely pace and none of the questions at that stage had related directly to the allegations in the indictment.  
14.	Counsel then raised a question relating to photographs taken by the Crown, and the judge replied that it was a matter for the Crown to decide whether to produce them in evidence.  They would choose how to present their case.  Counsel then said that the judge was making him feel extremely uncomfortable.  The judge interrupted and commented:
"Well, I hope I am because that is the intention ... You are behaving in a way which I don't accept as being reasonable and I would rather you didn't."  
Counsel said he did not understand the criticism; he would like the photographs to be produced.  The judge responded:
"Well, I feared that was what you were going to say, you don't understand.  Well, if you don't understand, it is very difficult for me.  I don't normally have difficulties with barristers, but if they are, as I would say, wasting time and not proceeding in a sensible and structured way, well, then there it is.  You must carry on and do your best within your abilities.  Apparently, I thought you were able, and I don't think there is any need for this and I don't propose to enter into any more matters about it.  If I ask you to move on, I expect you to do so.  A judge's job apart from anything else is to see that the trial moves at a reasonable speed." 
Counsel then made a bad point about the identity of those responsible for the delay by failing to bring a co-accused to court, and the judge rightly dismissed that observation as having nothing to do with the point and as an "irrelevance as far as your behaviour is concerned." 
15.	That exchange was robust.  Many judges would have phrased it differently.  This judge used words which did not disguise his meaning.  He wanted the case to proceed at a faster pace, and he believed that it was part of his duty to see that the case did indeed proceed at a reasonable speed.  This court will support the efforts of trial judges who take this view of their responsibilities.  Counsel really should not complain if they are rebuked, even in robust fashion, by way of encouragement of exhortation.  More important, however, the question for us is whether the exhortation to counsel, whatever form it may take and however robust, serves to deprive the defendant of a fair trial.  Taken on its known and considering only the transcript, this one did not.  
16.	The cross-examination of Watson continued without further complaint either by the judge about or to counsel or indeed by counsel critical of the judge.  A number of witnesses were called for the Crown and a number for the defence and again no specific criticism is advanced about the way in which the judge dealt with this part of the case until the very last of the defence witnesses, Zoe Brindle.  
17.	It is however at this stage necessary for us to return to the evidence we have beyond the transcript of the hearing.  We come to the basis of the allegations critical of the judge's general demeanour.  Counsel who appeared for the appellant at trial made a witness statement which includes these passages:  
"In relation to the prosecution witnesses, the judge was the epitome of courtesy and politeness.  There was in marked contrast to the defence witnesses who were dealt with in a dismissive and discourteous way.  This applies, in particular, to the witness Zoe Brindle but also relates to the defendant's mother who had ongoing and serious medical problems.  
It is difficult to gain an impression of the atmosphere in the court, on paper, but I am able to confirm that the trial was marked with numerous occasions when the judge would roll his eyes, shake his head, throw down his pen or interject with comments during the conduct of the defence case.  In my opinion, this can be contrasted with his attitude to the Crown case.  
I am also able to confirm that this behaviour was the subject of a number of conversations with the defendant who was clearly concerned that I was being prevented from pursuing lines of cross-examination, or if they were being pursued, were being subjected to scorn and derision by the judge.  He was very concerned that the jury would hold it against him.  In my opinion, the defendant felt that he was not being given a fair chance to conduct his defence." 
18.	The solicitor's representative spoke of these matters in a sworn witness statement.  She says: 
"I also saw that which is not evident from the transcripts, namely, that throughout the trial on numerous occasions Judge Medawar made it blatantly obvious when he did not agree with defence points by, for instance, sighing, throwing his pen or papers down or rolling his eyes; all of which was clearly visible to the jury and all present.  
I also vividly recall his behaviour towards witnesses.  What struck me was the way in which he was courteous to prosecution witnesses, in stark contrast with defence witnesses to whom he was positively rude and abrupt."  
These are extremely serious allegations.  
19.	Counsel for the Crown in a written skeleton argument made this comment under the heading "hostility": 
"[The judge] does not conceal his impatience with those he thinks are wasting court time and gestures such as those described will be familiar to those who appear before him although, without a note, their nature and frequency cannot be stated with precision."  
20.	In his submissions to us today, seeking to assist us, Mr Dow made it clear that over a year after the event he was certainly not in any position to identify any particular occasion when one or other of these individual incidents occurred, or indeed to relate the incident or any one incident to any particular passage in the evidence of any particular witness.  On the other hand, he agrees that these incidents did indeed occur, and taken as a whole he accepted on behalf of the Crown that there would have been little doubt that the jury would have gained the impression from his behaviour as well as from the tone of what he said that the judge favoured the prosecution case. That is the material about which we have been most concerned in this case.  
21.	We shall come now to the incident arising in the context of Zoe Brindle.  She began her evidence by dealing with the earlier incident in which, according to her evidence, three white boys approached Ryan Cunningham in an aggressive way looking for a fight.  When the appellant and Stephen Cunningham appeared, the appellant was slapped or punched in the face but after telling them that he was not going to row or argue with them he, together with the Cunninghams, also walked away.  No weapons were involved in this incident.  It was not really a fight, more an argument.  Shortly after she heard a commotion and eventually saw three black boys approach and attack the appellant who had nothing in his hands.  She did not see the actual start of the trouble, rather she became aware of a commotion.  However, when Stephen and Ryan Cunningham saw what was happening they ran towards the appellant and succeeded in pulling the black boys off him.  They ran to the appellant's house and while they were there she could hear the black boys shouting "We are going to kill you and I know where you live".  She said that she saw nothing in the hands of the appellant or his co-accused and she had seen nobody with a knife or jabbing one of the black boys in the face with anything or slashing a black man across the back or the arm.  Her evidence was given in-chief and she was then cross-examined.  There was a very brief re-examination. 
22.	The judge, as he was entitled, then asked some further questions.  Effectively Zoe Brindle said that she was not aware of any injuries sustained by the black boys.  She was told later that they had been injured.  The questioning then continued:
"Q. Once you knew that they had been injured, did it surprise you that they were following your friends to Patrick's house?  
A.  Did it surprise me they had chased us back to the house?
Q.  Really?  
A.  Did it surprise me?  
Q.  Yes.
A.  I was just scared.  I was terrified that they was chasing us. 
Q.  If they had been deliberately injured by your friends in the street with bottles, it wouldn't be surprising, would it, if they followed them?" 
Counsel then intervened and objected, suggesting that the judge might "ask the question in slightly less confrontational terms".  The judge responded that the witness was there and therefore knew the situation.  He went on:  
"She is saying that she became alarmed because these black boys were following her friends to Patrick's house."  
He then observed that counsel had successfully interrupted his question and he would leave it there.  He told the witness that she could go.  We are told that she did indeed go, in tears.  
23.	We were sufficiently concerned about the allegation that the judge had ill-treated this witness that rather than rely on the transcript alone we listened to the live recording of the evidence.  This we felt would give us a better insight into the tone and manner adopted by the judge, and would reveal whether, at any rate by volume, he had been unfairly bullying or aggressive to the witness.  Having listened to it and just concentrating on the noise alone, we have concluded that this allegation against the judge is not established.  We think he could fairly be criticised for including inappropriate comments in his questions, but in the exchanges themselves there is no particular overt sign of aggression and discourtesy.  That of course begs the question whether the conduct such as the rolling of the eyes, shaking of the head and throwing down of the pen did or did not take place during the evidence given by that witness.  At the end of her evidence there is no doubt that she was indeed in tears.  She may have been upset of course by the sheer pressure of giving evidence but we think it would be wrong in this particular case, given what is accepted by the Crown, to assume that none of the matters complained of occurred in the course of the evidence of this particular witness.  
24.	We next come to the summing-up.  Mr Trevor Burke QC in what throughout was a careful and measured submission, for which we are grateful, and was devoid of hyperbole or exaggeration, did here criticise what he described as the unfair cumulative effect of the summing-up, or perhaps better the cumulative unfairness of the summing-up.  He accepted that if his criticisms were taken in isolation the summing-up would not be vitiated.  
25.	Accordingly we have examined the summing-up as a whole.  We can illustrate the submission by referring to two examples of concern.  Dealing with the evidence of Adrian Watson the judge said:
"He was cross-examined at some length...  He was in the witness box for so long that you can readily form a clear view about him and to ask yourselves the questions that you have to ask in relation to every witness."  
It is true that the judge was returning to the theme with which the trial began - the lengthy time taken by the cross-examination of this witness.  
26.	A little later he reminded the jury of the evidence of Anthony Obi-Daniel.  He pointed out to them that they might wish to "remember how slow he was to even bring [himself] to repeat the offensive remarks that had been made, how he did not even want to use the words".  A little later, rounding up the evidence of this witness, he said:
"Considering the evidence of any witness you may think it is as much the manner of giving evidence as what he said that will inform your belief or rejection of a witness' evidence.  
The reluctance of Anthony Obi-Daniel to speak the racist remarks may be a significant indication of the truth of his evidence." 
27.	The judge summarised the evidence given by the witnesses for the Crown and he then raised a number of matters which, as he put it, "the jury may wish to consider generally".  He ended this part of the summing-up: 
"However, if you believe that these three black boys for some wholly unexplained reason were or may have been the aggressors and that they did attack Patrick Bryant and that he was merely defending himself with the assistance of the other two defendants then of course you will find them not guilty.  It is entirely a matter for you." 
28.	In deference to Mr Burke's submission we examined the summing-up as a whole and with particular reference to the passages to which he drew our attention in the context of the summing-up as a whole.  Our judgment on this submission can be described very briefly.  The comments made by the judge did not go beyond what is permissible to a trial judge and the effect of the summing-up as a whole was to leave the issues to the jury for decision.  We could not interfere with these convictions on the basis of the criticisms made in the summing-up taken in isolation from the judge's demeanour as described in the statement of counsel and the solicitor, and the concessions by counsel for the Crown.  
29.	Our conclusion can be expressed very briefly.  There are a number of criticisms of the judge here which are not sustained.  There is, however, a major criticism which is.  We do not think it can be right for a judge ever to give the impression that he favours the prosecution case against that of the defendant.  Ofcourse, he should, in a case where the prosecution case is a strong case, present the case to the jury as the strong case that it is.  The summing-up has to reflect the whole of the evidence.  Similarly, if the defence case is a strong case, or the evidence in support of it appears to be, the judge must fairly put the strong defence case before the jury.  The summing-up must be neutral and that means it must reflect the case that has been presented to the jury as a balanced whole. What the Judge's conduct of the case cannot do, and is wholly impermissible, is to allow the jury, who are the fact-finders with the ultimate responsibility for returning the verdict in the individual case, to be left with the impression that he favours one side rather than another, and in particular the prosecution rather than defence, by conduct of the kind described in this case, and by the contrasting way in which he behaved in relation to the witnesses for the prosecution as opposed to the witnesses for the defence.  
30.	In those circumstances this conviction cannot be sustained and the conviction will be quashed.
31.	We have considered the question whether the conviction having been quashed we should or should not order a new trial.  Mr Burke submitted to us that a new trial at this stage would be unfair; there would be a real danger that the defence case of Bryant would be prejudiced following the verdicts of the jury in the cases of the two Cunninghams.  Prejudice in a number of ways: (1) that they are now convicted of affray, and (2) that they themselves would not be present as witnesses when they were parties to this incident and acting, so they said, in reasonable defence of the appellant.  We recognise the difficulties.  On the other hand we have to remember that the trial of Bryant was, although a joint trial, a trial of a single individual and the jury had to give separate consideration to the charges against him as they did the charges against the other two defendants.  In our judgment there is no reason why, with co-operation between counsel, the judge should not be able to find a way to prevent any improper prejudice to Bryant if there were to be a new trial. That apart, the overwhelming requirement of justice is that this very serious incident should go to trial - a trial in which it will not be able to be said, as has been said and we have accepted, that the judge failed to maintain the cold neutrality which a judge should maintain.  Accordingly, there will be an order for a new trial.  
32.	The appeal will be allowed and the conviction quashed.  All three counts on which the appellant was convicted will be retried on a fresh indictment, and the appellant will be re-arraigned on that fresh indictment within two months of today's date.  
33.	There are two points we need assistance about, please, (i) custody or bail and (ii) representation order for the new trial. 
34.	MR BURKE:  The defendant was on unconditional bail, I understand without objection, for the best part of a year before the trial.  I would invite this court to admit him to bail.  Although he will be arraigned in two months we cannot predict when the trial itself may take place.  It may be many months away.  There were no offences committed on bail and no complaint, I am told, of his conduct through the period of his bail prior to the trial.
35.	LORD JUSTICE JUDGE:  Representation?  Mr Burke, junior counsel I am afraid. 
36.	MR BURKE:  Yes, of course. 
37.	LORD JUSTICE JUDGE:  And solicitor.  What is the Crown's position on bail, Mr Dow? 
38.	MR DOW:  It is my recollection that all three defendants were on bail during the period leading up to the trial and it seems to me that it cannot be seen that there is any justification for the Crown to object to that position returning.  I am sure that there were conditions attached to that bail in relation to not making contact with any prosecution witnesses.  Beyond that I do not object to the appellant being allowed bail.
39.	LORD JUSTICE JUDGE:  I am just marginally troubled - I have not discussed it with my colleagues - about the conditions.  They may be very important. 
40.	MR DOW:  Yes.  The prosecution witnesses were not people who lived in the close vicinity of the address where the Cunninghams, and I think Mr Bryant lived somewhere nearby as well.  So there was not that immediate danger that they would run into each other.  But clearly the Crown would wish that there be a condition they should not -- I do not know the addresses of the witnesses and I am not in a position to ask for any kind of exclusion zone or anything of that kind, but simply a condition that they should not make contact or seek to do so directly or otherwise. 
41.	LORD JUSTICE JUDGE:  Very well, thank you. We will adjourn for a moment. (Short adjournment) 
42.	LORD JUSTICE JUDGE:  Mr Burke, our position is this.  We think that the likelihood is - and you can make a note of this and the judge who deals with the matter can be told - that it would be appropriate to admit your client to bail.  We are, however, not at all happy that the issue of condition, and I mean this without discourtesy to Mr Dow, has really been addressed.  It is not simply a repeat of the conditions that were in force before the trial.  There has after all been a trial and there has been a sentence imposed on him.  So those points, we think, ought to be reflected in the Crown's approach to conditions.  Our present view, but we will of course allow you to address us, is that we should adjourn the bail application to a Circuit Judge at Snaresbrook Crown Court. If the resident judge is available we would be extremely grateful if he would take it in his list, and we would ask that it be listed as a matter of urgency on Monday or Tuesday of next week. 
43.	MR BURKE:  Thank you very much.
44.	LORD JUSTICE JUDGE:  That said, the trial will eventually take place at a Crown Court decided by the presiding judge.  It may very well not take place at Snaresbrook for all sorts of obvious reasons, but we think Snaresbrook is the appropriate court for this application.  Of course there will be legal aid for counsel to appear at Snaresbrook for that application. 
45.	MR BURKE:  Thank you, my Lord.
46.	LORD JUSTICE JUDGE:  Thank you.  Mr Dow I think you, if you would not mind, you had better get those who instruct you to give their minds to all the implications.
47.	MR DOW:  I am without any instructions in relation to bail obviously.
48.	LORD JUSTICE JUDGE:  We are not unaware, as I said earlier, that you are here under some pressure yourself. That gives everyone time to think about it, but you have our intimation of how we think the case should proceed.  Very well.  Thank you both very much.