Jury Questions Are for Clarification, Not Investigation: Assessing Trial Fairness as a Whole

1. Introduction

This decision clarifies the boundary between legitimate jury questions and an impermissible investigative role in a criminal trial. Jurors may seek clarification of evidence, but they should not be encouraged to identify and fill perceived gaps in the parties’ cases. Equally, a judge may clarify testimony without becoming an additional advocate for the prosecution.

The appeal concerned a conviction for controlling or coercive behaviour in an intimate or family relationship, contrary to section 76(1) and (11) of the Serious Crime Act 2015. The appellant argued that judicial questioning and an unusually active jury had undermined the adversarial process, effectively required him to prove his innocence, and prevented the fair presentation of his defence.

The Court of Appeal dismissed the appeal. Although it identified several departures from good practice, it concluded that the trial, considered as a whole, remained fair and the conviction safe. The judgment principally applies established authority rather than creating a new test, but gives a clear warning against inviting jurors to fill evidential gaps.

2. Background and Grounds of Appeal

The prosecution and defence cases

The appellant and the complainant were in a relationship between 2019 and 2021, underwent a Muslim Nikah ceremony, and had a child together. The prosecution alleged a continuing pattern of control over the complainant’s clothing, appearance, workplace interactions, gym attendance, social contacts and parenting.

The complainant described becoming withdrawn, changing how she dressed, avoiding conversations with male customers and restricting her social activities because of the appellant’s conduct. Workplace colleagues supported aspects of her account, and the prosecution also relied on text and WhatsApp messages.

The appellant denied controlling or coercive behaviour. He maintained that events had been misrepresented or taken out of context. His evidence included an explanation that requests for modest dress related to occasions involving his family. Other defence witnesses addressed the couple’s apparent relationship, access to the complainant’s gym, family interactions and the appellant’s character.

Conviction and sentence

Following conviction in the Crown Court at Aylesbury, the appellant received two years’ imprisonment suspended for two years, with 240 hours of unpaid work and a rehabilitation activity requirement of up to 20 days. The appeal concerned the conviction, not the sentence.

The alleged procedural unfairness

The appellant’s complaints focused on five interconnected matters:

• Judicial interventions allegedly reversed the burden of proof.
• The judge encouraged jurors to adopt an investigative approach.
• The judge’s questioning appeared to reinforce the prosecution case and scrutinise the defence unevenly.
• Repeated jury questions allegedly disrupted counsel’s questioning and the appellant’s evidence.
• The subsequent directions were said to be incapable of repairing the unfairness.

The jury submitted 24 notes during the evidential stages. A central issue was whether their content and handling demonstrated a departure from the jury’s proper fact-finding role.

3. Summary of the Judgment

The Court of Appeal rejected the contention that the appellant had been denied a fair trial. Its principal conclusions were:

1. The appellant could present his account. His evidence-in-chief and cross-examination were not disrupted by a continuing flow of jury questions. Most judicial interventions during those stages were innocuous clarification.
2. The burden of proof was not reversed. Asking defence counsel to put documents to a witness, after counsel had suggested that those documents supported a proposition, did not require the appellant to prove his innocence.
3. The judge did not become a prosecution advocate. Most of her questioning clarified evidence or checked her notes, although some questions were unnecessary and inappropriate.
4. The jury had been wrongly encouraged to identify evidential gaps. Nevertheless, their questions, read fairly, did not establish an inability to follow directions on their role or on the prosecution’s burden.
5. The corrective directions were sufficient in this trial. The judge clearly explained that the jury was not an investigatory body and repeatedly addressed the burden of proof, speculation, delay and an unsupported allegation.

The refusal to discharge the jury was upheld, and the appeal was dismissed.

4. Precedents Cited and Their Influence

R v Inns [2018] EWCA Crim 1081; [2019] 1 Cr. App. R. 5

This was the principal authority. The court reproduced its guidance on judicial interventions and jury notes at paragraphs 35–37.

R v Inns establishes that the jury alone determines the facts and that the judge must remain a neutral umpire in an adversarial process. Judicial questions are permissible where they assist understanding, but the judge must not cross-examine the defendant or prevent the defendant from giving an account through their own advocate.

The authority also supplies a flexible approach to jury notes. They should normally be shown to counsel so that an appropriate response can be considered. Depending on the question, that response might involve further questioning, an agreed fact, a judicial explanation or discussion outside the jury’s presence. The particular danger is a flow of questions that interrupts the defence account or prevents its complete and fair presentation.

Applying that framework, the court examined what actually happened rather than accepting the general characterisation of constant disruption. It found that the appellant’s evidence-in-chief and cross-examination proceeded without interruptions from jury questions, while several notes were reserved for re-examination.

R. v Hamilton [1969] Crim. L.R. 486 and R. v Gunning (1994) 98 Cr. App. R. 303

These authorities appeared within the passage quoted from R v Inns. They support the established rule that a judge must not “enter the arena” so as to appear to take sides.

The present judgment does not separately examine their facts. Their importance is foundational: judicial neutrality concerns not only actual intention, but also how the judge’s participation may reasonably appear to the jury. The court therefore considered whether the questioning conveyed endorsement of the prosecution case or disbelief of the defence, and concluded that it did not.

R v Hulusi and Purvis (1974) 58 Cr. App. R. 378

This authority, drawing on Lord Parker LCJ’s judgment in Hamilton, identifies three particularly serious effects of judicial intervention:

• Inviting the jury to disbelieve the defence in terms too strong to be repaired by a conventional direction.
• Making it effectively impossible for defence counsel to present the case properly.
• Preventing the defendant from telling their story and doing justice to their defence.

These categories gave practical substance to the fairness assessment. The court found none established: the judge did not strongly denigrate the defence, counsel remained able to perform her role, and the appellant could explain his account.

R v Matthews (1984) 78 Cr. App. R. 23

This decision reinforces that the number of interventions is not decisive. What matters is their quality: the attitude they convey to the jury and their effect on the orderly and intelligible presentation of the defence.

That principle was directly relevant to both the 24 jury notes and the judge’s approximately 20 minutes of questioning of the complainant. Neither figure, by itself, established unfairness. The court instead examined the questions’ substance, timing and consequences.

Randall v The Queen [2002] UKPC 19; [2002] 1 WLR 2237

The court relied on Lord Bingham’s distinction between imperfect trial practice and an unfair trial. Not every inappropriate remark or procedural departure undermines the proceedings, especially where it is isolated and addressed by a clear direction.

However, the right to a fair trial is absolute. Departures may become so serious, persistent, prejudicial or irremediable that a conviction must be quashed, regardless of the apparent strength of the prosecution case.

This supplied the judgment’s central evaluative approach. The court expressly criticised aspects of the trial but held that they had not undermined its integrity. Its conclusion was not that apparent guilt could excuse unfairness, but that unfairness had not been established.

Michel v The Queen [2009] UKPC 41; [2010] 1 WLR 879

This authority was cited alongside Randall v The Queen. The judgment did not separately analyse its facts or reasoning. Its role was supplementary support for the principles governing judicial intervention and the protection of trial fairness.

5. Analysis of the Court’s Reasoning

A. Clarification is legitimate; investigating evidential gaps is not

The clearest criticism concerned the judge’s opening invitation to jurors to ask about “gaps in the evidence”. She later praised a jury that submitted many notes as demonstrating a desire to “fill the gaps”.

The Court of Appeal held that this was wrong. Criminal proceedings are adversarial: the prosecution and defence present their cases, and the jury decides whether the evidence establishes guilt. Jurors are not responsible for completing an investigation or assembling a more satisfactory evidential record.

The judge had linked this invitation to the prohibition on independent research. The court rejected that connection. Jurors must not conduct their own research in any event; that prohibition does not justify giving them an investigative role inside the courtroom.

The distinction is between understanding the evidence presented and seeking to construct additional lines of inquiry. It does not prohibit useful jury questions, but it requires judges to explain their proper purpose accurately.

B. Requests for documents did not transfer the burden of proof

During cross-examination of the complainant, defence counsel suggested that emails supported the proposition that the complainant had referred the appellant to her gym for a trial period. The judge said that, if counsel had such emails, they should be put to the witness.

The court rejected the argument that this shifted the burden of proof. The judge was responding to counsel’s own indication that particular documents existed and supported the question being asked. She was not imposing a general obligation on the appellant to substantiate his innocence.

This illustrates an important distinction: proper scrutiny of the evidential basis for a particular question is not equivalent to requiring the defence to prove its overall case.

C. Judicial questioning had to be read in context

The judge questioned the complainant for approximately 20 minutes after prosecution counsel declined to re-examine. The court accepted that this was an unusually large number of questions. Most, however, concerned dates, persons present, the clarity of existing evidence or the accuracy of the judge’s notes.

Some answers expanded the complainant’s account, but the court did not infer that the judge was seeking to strengthen the prosecution case. Her questions were neutral and open, and both advocates were offered an opportunity to ask further questions.

The court nevertheless observed that the clarification and note-checking would better have occurred when the relevant evidence was given. This was a criticism of the way the questioning accumulated, not a rule requiring judges routinely to interrupt witnesses.

The appellant also relied on the judge’s statement that he needed to remember an event because “now is the time for you to remember”. Read alone, that wording could appear unsympathetic. In context, however, the judge immediately referred him to a contemporaneous message to assist his recollection. The court regarded the intervention as an attempt to resolve confusion about timing, rather than an expression of disbelief.

D. Some questions were genuinely inappropriate

The court did not endorse every intervention. After re-examination, the judge asked the appellant questions occupying approximately ten transcript pages. Most clarified his account, but a minority probed unnecessarily.

One example concerned why he had photographed the complainant in a dentist’s chair and whether she had asked him to do so. The court could not understand why those questions were necessary or appropriate and described them as unfortunate.

Nevertheless, they were isolated instances rather than forceful invitations to reject the defence. Applying Randall v The Queen, the court distinguished a real departure from good practice from one sufficiently serious to make the trial unfair.

E. The jury notes did not establish prejudgment or a reversed burden

Many notes simply sought clarification. Others followed up matters introduced by defence counsel. Importantly, notes received during the appellant’s evidence were generally held over and discussed with counsel before being addressed in re-examination. Counsel initially observed that several covered matters she had intended to revisit anyway.

The most concerning note addressed an allegation that the appellant had owned a brothel. Jurors asked why, if the allegation was true, it had not appeared in his account of previous convictions.

The court treated that as a poorly expressed request for assistance, not proof that the jury accepted the allegation or required the appellant to disprove it. Jurors’ questions should not be assessed as though drafted by careful lawyers.

The judge gave a direct instruction that there was no evidence supporting the allegation, no police investigation into such matters, and no relevant police suspicion. The jury was told to put the subject out of mind, and the direction was repeated in the summing up.

F. Corrective directions addressed the identified risks

The judge repeatedly explained that:

• The prosecution bore the burden of proof throughout.
• The appellant never had to prove his innocence.
• The jury must decide the case on the evidence, without speculation.
• Its role was not investigatory.
• It could convict only if sure of guilt.

She also addressed the potential prejudice caused by delay, including impaired memories and unavailable documents. Any disadvantage to the appellant was to be taken into account in his favour. Despite three driving convictions more than 20 years old, he received a good-character direction addressing both credibility and propensity.

The summing up fairly presented the defence and was not criticised as biased. Counsel’s opportunities to seek clarification or ask further questions also formed part of the context. The absence of an objection was not treated as automatically defeating the appeal.

Crucially, the court did not suggest that directions invariably cure judicial overreach. Here, the underlying conduct and the jury’s questions did not disclose prejudice beyond correction. That supported both the refusal to discharge the jury and the conclusion that the conviction remained safe.

6. Significance and Potential Impact

For trial judges, the judgment is a warning about introductory language. Encouraging attentiveness is appropriate; encouraging jurors to complete the evidence is not. Directions should distinguish requests for clarification from requests for further investigation.

For handling jury notes, it reinforces the normal importance of consulting counsel and choosing a response that preserves the orderly presentation of evidence. The inappropriate handling of the first notes caused no prejudice here, but was still expressly criticised.

For advocates, the decision shows why objections should identify concrete effects rather than rely on the volume of questions. Relevant concerns include lost continuity, inability to develop an account, apparent judicial disbelief and indications that jurors expect the defendant to establish innocence.

For conviction appeals, the focus remains qualitative and cumulative. There is no numerical threshold at which interventions or jury notes automatically make a conviction unsafe. Conversely, repeated reminders about the burden of proof cannot necessarily save a trial whose conduct has fundamentally prevented a fair defence.

The decision does not alter the substantive elements of controlling or coercive behaviour under section 76. Its wider significance concerns criminal trial procedure across offences: preserving adversarial roles while permitting sensible clarification.

7. Complex Concepts Simplified

Adversarial proceedings

The parties present and challenge the evidence. The judge supervises fairness and law; the jury decides the facts. Neither judge nor jury should assume the prosecution’s investigative role.

Burden and standard of proof

The prosecution must prove guilt. The defendant need not prove innocence, and the jury must acquit unless sure of guilt.

“Entering the arena”

A judge becomes so involved in questioning or challenging a case that they appear to act for one side rather than neutrally supervise the trial.

Discharging the jury

Ending the current jury’s involvement before it returns a verdict. The court held that the concerns in this case did not require that step.

A safe conviction

A conviction that can properly stand on appeal. A trial rendered unfair in breach of Article 6(1) of the European Convention on Human Rights cannot produce a safe conviction.

The two limbs of a good-character direction

Directions explaining how good character may assist the assessment of the defendant’s credibility and the likelihood of committing the alleged offence. They do not replace consideration of the evidence as a whole.

8. Conclusion

The judgment draws a firm distinction between clarifying evidence and investigating perceived gaps. Jurors may ask questions, but they must not be encouraged to complete either party’s case.

Its complementary lesson is that procedural criticism does not automatically establish an unsafe conviction. Courts must examine the nature, context and cumulative effect of interventions, together with any corrective measures. Here, the appellant could present his defence, the prosecution’s burden remained intact, and clear directions addressed the identified risks. The appeal was therefore dismissed.