Damian Thomas [2019] EWCA Crim 1958; [2020] R.T.R. 33
Mr Thomas was convicted on 15 November 2018 in the Crown Court at Lincoln before Recorder Bacon QC and sentenced to four months’ imprisonment on 19 December 2018, which he had already served. On 19 April 2015, a BMW registered to Mr Thomas’s then partner, Ms Jade Riviere, had been caught speeding at 84 mph in a 70 mph zone. When the Notice of Intended Prosecution was sent to the registered keeper, she asked Mr Thomas who had been driving. He told her it was Mr Kennedy Ntini and gave her an address in London. The police sent a notice to Mr Ntini, who replied that he did not hold a driving licence. Mr Thomas then provided the details of a second person, Ms Caroline Rose, who likewise responded that she held only a provisional licence. After further police inquiries, Mr Thomas attended two voluntary interviews. He maintained that he had been travelling to a rave in Leeds with five others in the car and that the drivers had been switched during the journey. The prosecution case was that Mr Thomas had been the sole occupant and had deliberately provided false names to avoid penalty points.
At trial, the appellant gave evidence that he had promoted raves and parties and that on the night in question he had driven to Leeds with his brother, his cousin Lendl Clark, a male known as Rider and two females. He said he did not know Rider’s real name and had asked his brother, who had given him the names he passed on to Ms Riviere. He relied on a hotel booking confirmation and a cash withdrawal in Cambridge consistent with his account. His cousin, Mr Clark, gave evidence corroborating the account of the journey and produced records of his cash withdrawal. During examination‑in‑chief, defence counsel asked Mr Thomas whether receiving three points would result in disqualification or affect his work; he answered negatively. He also stated that he had no previous convictions or cautions. The Recorder ruled that Mr Thomas had given a false impression about his licence points and permitted the prosecution to cross‑examine him on that issue. In cross‑examination, Mr Thomas confirmed that he had had six points on his licence at the material time. The fact that he had six points had been mentioned in his police interview but excised from the version placed before the jury. The Recorder further intervened extensively during Mr Thomas’s examination‑in‑chief, asking detailed questions on central issues including why he did not know the names of the two females, why a hotel confirmation had been dated October, why he had not provided his brother’s contact details to the police, and pressing him on the plausibility of four people being in the back of the car when the speed camera photograph showed no visible rear passengers.
On appeal, Mr Thomas advanced two grounds. First, he submitted that the Recorder had erred in admitting evidence of his previous penalty points, having wrongly concluded that he had given a false impression. The Recorder had prevented defence counsel from making full submissions and had mischaracterised what had been said in examination‑in‑chief. Secondly, he contended that the Recorder had descended into the arena and conducted a hostile cross‑examination that would have conveyed to the jury that the judge did not believe him. The Crown resisted both grounds, arguing that the Recorder had properly ruled on the false impression issue and that, although his interventions may occasionally have strayed towards cross‑examination, the trial remained fair and the verdict was safe on the strength of the evidence.
The Court of Appeal held that the Recorder’s ruling on the penalty points issue was wrong in law under section 101(1)(g) of the Criminal Justice Act 2003. The test was whether a misleading impression had been created; the questions put in examination‑in‑chief had not asked how many points the appellant had, and at no stage had he stated that he had none. The Recorder had been too quick to form a conclusion and had mischaracterised what had been said, stating incorrectly that counsel had asked about the number of points on the licence. The Court was troubled by the way the fact of six points was then elicited in cross‑examination, which might have given the jury the impression that the appellant had not been forthcoming. The Recorder’s summing‑up did not correct any misleading impression and gave no suitable direction on the issue. This error was sufficiently serious to undermine the safety of the conviction.
Turning to the second ground, the Court reviewed the extensive transcript of the examination‑in‑chief and cross‑examination. It noted that the Recorder had made a considerable number of interventions during the appellant’s evidence‑in‑chief on issues central to the defence case—including the hotel booking, the names of the passengers, the cash withdrawal, the switching of drivers and the credibility of the account that there were multiple occupants in the car—yet made no interventions at all during cross‑examination by the Crown. After counsel’s questions had concluded, the Recorder engaged in six further pages of questioning, returning in detail to matters already raised. The Court quoted at length from the authorities, including **R v Hamilton** [1969] Crim LR 486, **R v Copsey** [2008] EWCA Crim 2043, **R v Perren** [2009] EWCA Crim 348 and **R v Inns** [2018] EWCA Crim 1081, emphasising the fundamental importance of the judge remaining a neutral umpire, the particular need to avoid interventions during evidence‑in‑chief that suggest the judge disbelieves the witness, and the principle that the defendant must have the opportunity to put his account to the jury in his own way. The Court was driven to the conclusion that the Recorder had descended into the arena, that the trial had become essentially inquisitorial, and that the jury may well have formed the impression that the Recorder himself did not believe the appellant and had sided with the prosecution. The standard directions in the summing‑up as to the jury being the judges of fact did not cure the unfairness. Accordingly, the appellant had not received a fair trial and the conviction was unsafe.
The Court quashed the conviction and rejected the Crown’s application for a retrial, noting that Mr Thomas had already served his sentence in full and that the incident dated back to 2015, such that it would not be in the interests of justice to order a fresh trial. In short, the conviction was set aside because extensive and inappropriate judicial interventions deprived the appellant of a fair hearing, in breach of fundamental principles governing the conduct of criminal trials.
The appellant was convicted of perverting the course of justice and sentenced to 4 months imprisonment. The prosecution case was that he had provided false information on two occasions to his girlfriend for her to respond to a notice of intended prosecution. The prosecution also alleged that the appellant had been driving the car at the relevant time, and his account to the police that there had been five people in the car and had switched drivers was fabricated.
The defence case was that he had been attending a rave and was driving to it with others and supplied the names of the drivers believing them to be true.
Two grounds of appeal were raised. First that the Recorder erred in admitting evidence of the appellant’s previous penalty points. Second, that the Recorder “entered the arena and conducted a hostile cross-examination of the appellant”.
Held: the key issue is whether the Recorder’s ruling was either correct in law or fair. The Court’s view was that the ruling was wrong in law; it was not accepted that there was a materially misleading impression given in examination in chief. The Recorder was too quick to form a view and should have considered the matter more carefully. Had he done so, he may not have fallen into error. The jury may have been given the impression that the appellant had not been entirely forthcoming in his evidence, and this was not something curable by the summing-up, nor did the Recorder attempt to deal with it.
The defence submitted that the Recorder had transgressed most of the principles set out by Singh LJ in Inns. The Court was driven to the conclusion that the appellant did not receive a fair trial because of the inappropriate nature and frequency of the Recorder’s intervention into issues which went to the core of the defence. The jury may well have formed the impression that the Recorder did not believe the appellant.
The conviction was quashed, and there was no order for a re-trial, the appellant had served the full extent of his custodial sentence.