R v Toloui [2025] EWCA Crim 1599:
Limits on Trial Judges’ Case Management Powers and the Threshold for an Unfair Trial by Judicial Intervention

1. Introduction

R v Toloui [2025] EWCA Crim 1599 is a significant decision of the Court of Appeal (Criminal Division) on the boundary between legitimate judicial case management and impermissible “entering the arena” so as to become, or appear to become, a “second prosecutor”.

The appeal arose from convictions for fraud by abuse of position, but the legal importance of the case lies almost entirely in its treatment of:

the scope of a trial judge’s case management powers in a criminal trial, particularly regarding calling witnesses for the prosecution; and
the threshold at which cumulative judicial interventions render a trial unfair, notwithstanding strong evidence of guilt.

LORD JUSTICE LEWIS (with the Court) dismissed the appeals, holding that although the Recorder’s conduct involved a number of “unwise” departures from ideal practice, both individually and cumulatively they fell well short of creating an unfair trial or the appearance of unfairness.

2. Factual and Procedural Background

2.1 The parties and the underlying facts

The appellants, Rebecca and Simon Toloui, are respectively the stepmother and father of Andre Toloui, an adult with “severe and profound disabilities” [2]. Andre required intensive 24‑hour support. Following his move from London to Suffolk, Suffolk County Council funded his needs through a direct payments scheme.

Key factual points:

By 2017 Andre’s package had grown to approximately 336 hours a week of care (roughly 2:1 care, 24/7) [2].
The funds were paid as direct payments to Rebecca Toloui, who was responsible for using them to pay carers [2].
The prosecution alleged that a portion of these funds, intended for Andre’s care, was used instead by the Tolouis to pay for their own mortgage, utilities, and other general expenditure [3], including a house purchased in Suffolk.
It was ultimately accepted that some of the direct payments had been used for those private outgoings [3].

The defence emphasised that:

Andre’s care needs were fully met in practice;
they believed, based on conversations with social workers (Katrina Warren and Hollie Scorer), that they were permitted to use direct payments flexibly for Andre’s benefit, including in ways that indirectly supported his care (e.g. maintaining nearby housing) [4];
they therefore lacked the dishonesty essential to the charge of fraud by abuse of position.

2.2 The prosecution case

The prosecution’s central contention was that the appellants dishonestly diverted funds intended for Andre’s care to their own use, and that their subsequent conduct — in particular the creation of false invoices and repeated lies — demonstrated dishonesty.

Core features relied upon by the prosecution included [5]–[7]:

Rebecca submitted a series of invoices to the Council in the name of a consultancy, “RLHR”, which she owned and ran but did not disclose to the Council [5].
Some of these invoices were alleged to be false and did not represent genuine expenditure on Andre’s care [5].
Funds paid on those invoices were used to cover the Tolouis’ mortgage and household bills [5].
Rebecca admitted a series of lies about who was caring for Andre and how the funds were being spent, including:
- a false breakdown of hours and mileage (email of 3 January 2019) [6(1)];
- false claims at a February 2019 meeting that her brother and nephew had been caring for Andre and receiving all RLHR funds [6(2)];
Simon admitted agreeing that a letter should contain an untrue explanation about an account balance (blaming a reduction in trips for Andre) [7].

Against that background, the only live issue at trial was dishonesty [4]: did the Tolouis honestly believe they were entitled to use the funds in the way they did, in light of their alleged understanding from social workers?

2.3 The trial and conviction

The trial took place before the Recorder at the Crown Court at Ipswich. The Recorder:

gave legal directions, including on the burden and standard of proof [29];
gave a “great length” summing-up of the evidence, including the appellants’ testimony [8];
intervened on numerous occasions in the questioning of witnesses, and engaged with the parties on issues of case management (in particular, concerning whether social workers Ms Warren and Ms Scorer should be called) [10]–[15], [21]–[23].

Both appellants were convicted of fraud by abuse of position on 6 December 2023 and sentenced on 23 February 2023 to 2 years’ imprisonment suspended for 2 years [1].

3. Issues Before the Court of Appeal

The appellants did not challenge the substantive directions on the law of fraud or the sufficiency of evidence as such. Instead, they advanced a single, overarching ground:

The trial was unfair because the Recorder ceased to be an impartial umpire and, through his interventions and comments, became in substance a second prosecutor, or appeared to favour the prosecution.

Within that broad complaint, a series of discrete allegations were made (all said to have cumulative significance) [9]–[17]:

The Recorder’s intervention in the calling of social workers (Ms Warren and Ms Scorer), including remarks that the prosecution case had a lacuna that needed to be filled, and explaining to the jury how one of those witnesses came to be called [10].
The insistence that the entire email from Rebecca to Ms Scorer be adduced and the Recorder’s line-by-line questioning of that email, allegedly to undermine Rebecca’s assertion as to what she had been told [11]–[12], [24].
Judicial questioning of Rebecca and Simon that went beyond clarification and became hostile or prosecutorial, such as:
- going through a false invoice line by line and asking Rebecca: “Is any of that true?” [13], [25];
- asking Simon whether he would regard a co-director as dishonest if they submitted fictitious invoices [14]–[15], [25].
Stopping evidence that was favourable to the defence (such as Simon’s explanation of the care he gave Andre) to query whether it was germane [14].
A “robust” judicial intervention when Simon criticised his defence statement as a “vanilla” document prepared by lawyers, which the appellants said conveyed judicial disparagement of Simon [15], [27].
Conduct in relation to the defence statement and social workers that allegedly misled the jury about when the prosecution had first known of and sought evidence from Ms Warren and Ms Scorer [15], [28].
The Recorder’s selective reading of inculpatory portions of Simon’s interview without including exculpatory explanations, which had to be remedied by defence counsel [16], [28].
Directions and comments that allegedly:
- downplayed the relevance of the amount and quality of care actually provided to Andre [17], [30];
- “diluted” the burden of proof direction by inviting the jury to scrutinise the appellants’ credibility [17], [29];
- praised the prosecution’s presentation of the case (and, to some extent, the defence) in the jury’s presence [17], [31].

The appellants relied in particular on the well‑known line of authority on unfair trials caused by judicial intervention:

R v Michel [2010] UKPC 41; [2010] Cr App R 24;
R v Malcolm [2011] EWCA Crim 2069;
the underlying principles set out in Randall v R [2002] 2 Cr App R 267 (PC) (cited in Michel).

4. Summary of the Judgment

4.1 Outcome

The Court of Appeal dismissed both appeals against conviction [34].

It held that:

None of the individual complaints, viewed in isolation, demonstrated that the Recorder became a second prosecutor or behaved with hostility to the appellants [32].
Viewed cumulatively, the Recorder’s actions did not cross the threshold where a trial becomes unfair or appears unfair [34].
While aspects of the Recorder’s conduct were “unwise”, “unnecessary”, or based on an inaccurate understanding of criminal procedure (particularly as to calling witnesses), these were departures from best practice only, not errors that rendered the convictions unsafe [22], [24], [26], [27], [31]–[32].

4.2 Key holdings and clarifications

Case management and calling witnesses:
- It is ultimately for the prosecution to decide what witnesses to call as part of its case [22].
- A judge’s case management powers do not extend to deciding what witnesses must be called; any suggestion that the prosecution “needs” to call particular witnesses is procedurally inaccurate [22].
- Nonetheless, a judge may properly raise with the prosecution whether other witnesses should be called, as part of ensuring a fair trial [23].
- If, as here, the relevant witnesses (or their evidence) are eventually obtained and tested, that typically cures any concern about fairness [23].
Judicial questioning:
- Judges may ask questions to clarify evidence and assist the jury, usually at the end of re‑examination [26].
- In this case, some of the Recorder’s questions went beyond pure clarification and were “more by way of challenge” [24], [26].
- However, the content, length, tone, and significance of the questioning fell far short of the level of hostility and intrusion condemned in Michel or Malcolm [23], [26], [32].
Handling of defence statements and interviews:
- The Recorder’s “robust” response to Simon’s description of his defence statement as “vanilla” was described as “unwise and unnecessary” but did not undermine trial fairness [27].
Directions on burden of proof and evaluation of evidence:
- The Recorder correctly directed that the burden of proof lay on the prosecution and did not, in substance, dilute that direction [29].
- Reminding the jury to assess the appellants’ evidence (like that of any other witness) for reliability, accuracy, and truthfulness was proper [29].
Comments on advocacy and the care provided to Andre:
- The Recorder properly recognised that the Tolouis greatly cared for Andre and that there was no allegation of neglect; he was entitled to state that the central issue was dishonesty, not the quality of care [30].
- Praising the “skill” of counsel on both sides in the summing‑up was misplaced but not prejudicial [31].
Cumulative effect:
- While one can criticise aspects of the trial as failing to meet “best or ideal practice”, the cumulative effect of the Recorder’s conduct did not cross the line into unfairness [32]–[34].
- Both appellants had a full opportunity to give evidence and have their cases put; the jury were properly directed and left to determine guilt [34].

5. Detailed Analysis

5.1 Legal framework: fair trial and judicial intervention

The Court anchored its analysis in the absolute right to a fair trial and the established constraints on judicial conduct in a criminal trial.

5.1.1 Michel and Randall: the “second prosecutor” paradigm

In R v Michel [2010] UKPC 41; [2010] Cr App R 24, the Privy Council confronted egregious judicial intervention. The trial judge there had:

asked questions on 273 occasions;
engaged in cross‑examination hostile to the defendants;
demonstrated scepticism, incredulity and, at times, sarcasm, mockery and patronising behaviour [18].

Lord Brown (for the Board) distilled the governing principle, drawing on Randall v R [2002] 2 Cr App R 267. The Court of Appeal in Toloui quoted this passage at [27]–[28] of Michel:

“Put shortly, there comes a point when, however obviously guilty an accused person may appear to be, the Appeal Court reviewing his conviction cannot escape the conclusion that he has simply not been fairly tried: so far from the judge having umpired the contest, rather he has acted effectively as a second prosecutor…

… the right of a criminal defendant to a fair trial is absolute. There will come a point when the departure from good practice is so gross, or so persistent, or so prejudicial, or so irremediable that an appellate court will have no choice but to condemn a trial as unfair and quash a conviction as unsafe, however strong the grounds for believing the defendant to be guilty.” [18]

This encapsulates the key points:

Not every departure from good practice impeaches a conviction.
But there is a critical threshold beyond which cumulative judicial misbehaviour renders a trial unfair regardless of the strength of the prosecution case.
The judge must remain an umpire, not an advocate.

5.1.2 Malcolm: judicial “descent into the arena” and calling of witnesses

In R v Malcolm [2011] EWCA Crim 2069, the Recorder’s conduct came much closer to the impermissible line. There, the Recorder:

stated he would “demand a witness” from the estate agents be produced during the trial;
insisted that the witness should be present throughout and that witness statements be made straight away;
criticised the defence statement and said he was being “forced into the arena”, emphasising that a “lacuna” in the evidence “would have to be filled” [19].

The Court of Appeal in Malcolm made two key points (quoted in Toloui at [83]–[84], [92]):

Judges are entitled — and indeed sometimes obliged — to invite either party to consider calling further evidence to ensure a fair trial. Fairness is not a one‑way concept: it involves a “triangulation of interests of the accused, the victim and society” (R v A [2001] UKHL 25; [2002] 1 AC 45, per Lord Steyn) [20].
However, a judge must not enter the arena and become a second prosecutor. A defendant is entitled to require the prosecution to prove its case without judicial pressure to fill gaps [20], [92].

This duality — judges may prompt, but not prosecute — is central to assessing the Recorder’s conduct in Toloui.

5.2 Application of these principles in Toloui

5.2.1 Calling the social workers: limits of case management

The most legally significant aspect of Toloui concerns the Recorder’s handling of the evidence of Ms Warren and Ms Scorer, the social workers whom the appellants said had given them assurances about spending flexibility [4], [10].

In the absence of the jury, the Recorder:

told the prosecution there was a “gap” in their case that needed to be filled;
suggested that the prosecution should seek evidence from the social workers [10], [21].

The Court’s evaluation:

It accepted that the Recorder believed he was exercising case management powers in the interests of fairness, since the appellants’ defence depended heavily on what they said the social workers had told them [21], [23].
However, the Court held that this reflected “an inaccurate understanding of the procedure in a criminal trial” [22]:
- It is ultimately for the prosecution to decide which witnesses to call [22].
- A judge’s case management powers do not extend to deciding which witnesses should be called as part of the prosecution case [22].
- The Recorder’s language (“needed to be filled”, etc.) was therefore inappropriate.

However, the Court distinguished this case from Malcolm in two important ways:

The Recorder’s language, while inaccurate, was polite and courteous, not coercive or hectoring [23].
Most critically, the evidence was in fact obtained:
- Ms Warren provided a statement (read to the jury) but had limited recollection;
- Ms Scorer gave evidence and was cross‑examined [23].
The defence therefore had exactly the opportunity they claimed they needed — to put their version of events to the social workers and let the jury assess it.

The Court’s conclusion:

“We do not consider that the steps taken by the Recorder showed a hostility to the appellants or involved him becoming a second prosecutor” [23].

Importantly, the Court did not say that judges must refrain from suggesting that further witnesses might be desirable; it drew the line at a judge seeking to direct or justify the prosecution’s calling of witnesses on the basis that the case is incomplete. Rather, the proper approach is:

judges may raise with the prosecution whether additional evidence is appropriate [23];
they must not assume the role of determining what the prosecution must do to make good its case [22].

5.2.2 The email to Ms Scorer and the “line‑by‑line” questioning

Rebecca had sent an email to Ms Scorer including the crucial sentence:

“I am assuming that, providing we don't go over the current funding levels, then we can spend the money for supporting Andre in a way in which he feel he is gaining the most – is that correct?” [11].

Part of this email was put to Ms Scorer. The Recorder:

insisted that the entire email be placed in evidence [12], [24];
subsequently went through the email with Rebecca line by line, in a manner the prosecution accepted was more of a “challenge” than clarification [24].

The Court’s assessment was nuanced:

Insisting the whole email be before the jury was understandable and, in principle, correct: there was a legitimate concern that cherry‑picking parts might mislead as to context [24].
However, the way the Recorder then examined the email with Rebecca was “unnecessary and unwise” and went further than was needed [24].
Nevertheless, the conduct still fell “short of amounting to anything remotely demonstrating hostility” [24].

Thus, the Court signalled a practical standard:

Full context can — and often should — be insisted upon for fairness.
But judicial questioning that goes beyond clarification risks projecting scepticism about a defendant’s explanation. Repeated or aggressive use of that technique might, in another case, create the perception of partiality; here, its isolated use did not.

5.2.3 Challenging questions to the appellants

The Recorder’s most striking questions were:

to Rebecca, after taking her through a false invoice: “Is any of that true?” [25];
to Simon, asking whether he would expect co‑directors to be “acting honestly” if they put in false invoices [25].

The prosecution candidly accepted that these were “more by way of challenge than clarification” [26].

The Court:

reaffirmed that judges may need to seek clarification, usually at the end of re‑examination [26];
accepted that, “on occasions”, the Recorder had gone beyond mere clarification and did challenge witnesses [26];
nonetheless concluded that the content, length, tone and significance of the questioning did not undermine the fairness of the trial [26].

In other words, the Court implicitly draws a line on degree:

A few pointed questions, even if ill‑judged, do not of themselves convert the judge into a second prosecutor.
It is only when such interventions become gross, persistent, prejudicial, or irremediable that Michel/Randall principles demand quashing the conviction.

5.2.4 The defence statement and the “vanilla” remark

Simon, challenged on why conversations with Ms Warren were absent from his defence statement, suggested the statement was drafted by lawyers and was a “vanilla” document [27]. The Recorder responded in what counsel later described as a “robust clarification” of the nature of defence statements [27].

The Court considered:

The judge should have addressed the function and content of defence statements in his summing‑up, not in this robust mid‑trial exchange [27].
The Recorder’s approach was again “unwise and unnecessary” [27].
Nonetheless, it arose as a response to how matters unfolded in evidence and fell “far short of any demonstration of hostility” or advocacy for the prosecution [27].

The case thus cautions trial judges:

Explaining procedural matters to a jury should avoid any implication that the defendant has been personally at fault for perceived shortcomings in their defence statement, unless that is squarely a matter of proper inference or statutory consequence.
Such issues are best handled neutrally in summing‑up, rather than through combative exchanges in live evidence.

5.2.5 Other complaints: notes, interviews, social worker timing, praise of counsel

The Court dealt more briskly with the remaining criticisms:

The Recorder pausing witnesses to take notes was a neutral act without any sinister inference [28].
The suggestion that the jury might have been misled about when the prosecution first sought to contact the social workers lacked material significance: there was no shown actual unfairness and the defence case on those matters was fully aired [28].
The partial reading of the interview was corrected in real time and did not create an enduring unfairness [28].
On praising counsel, the Court was clear that it is better not to do so in front of the jury, and that summings‑up should focus on legal directions and evidence [31]. But the Recorder’s “polite and complimentary” remarks about both prosecution and defence advocacy did not, in context, prejudice the appellants [31].

5.2.6 Directions on burden of proof and the care evidence

On the critical question of legal directions, the Court firmly rejected the suggestion of any dilution of the burden of proof:

The Recorder had made it “quite clear that the burden of proof lay with the prosecution. He did not dilute that direction” [29].
His reminder that the jury needed to assess the appellants’ evidence for reliability, accuracy, and truthfulness was simply applying the same standard to all witnesses [29].

Regarding the amount and quality of care provided to Andre, the Court accepted that:

The Recorder expressly recognised that the Tolouis cared greatly for Andre and that there was “no suggestion of any lack of care” [30].
He also acknowledged the difficulties of recruiting and organising carers for someone with Andre’s challenging needs [30].
He told the jury they might consider that this was not the main issue, since the central question was whether the appellants had dishonestly abused their position of trust by using funds meant for Andre’s care on their own expenses [30].

That focus on dishonesty was orthodox: the fact that Andre was in practice well cared for, and that caring for him was demanding, might contextualise the defendants’ behaviour but did not answer whether they honestly believed they could divert direct payments for mortgage and household bills.

5.3 Cumulative effect and the “Michel threshold”

Both appellants’ counsel placed heavy emphasis on the cumulative effect of the Recorder’s interventions, relying on Lord Brown’s statement in Michel that there comes a point where a defendant has simply not been fairly tried, however compelling the evidence [33].

The Court of Appeal approached this in two stages:

It examined each individual complaint in detail [21]–[31], acknowledging several as “unwise” or “unnecessary”, and identifying one (the view of case management powers in relation to witnesses) as reflecting an “inaccurate understanding of procedure” [22].
It then considered all matters cumulatively [33]–[34], explicitly engaging with the Michel/Randall threshold.

The conclusion is encapsulated in [32] and [34]:

“Criticism can be made, as we have made, of individual matters. But the criticism would at most establish a failure of best or ideal practice. They fall short of establishing that the individual failures constituted or resulted in any unfairness in the trial.” [32]

“We do not consider that these matters taken together establish that there was unfairness in this trial or the appearance of unfairness.” [34]

The Court emphasised that:

The appellants had the opportunity to put their entire case in evidence [34].
The evidence was “properly summed up” and the jury undertook the task of assessing guilt or innocence [34].
The Recorder’s conduct did not rise to the level where he could be said to have effectively become a second prosecutor [34].

Toloui therefore reinforces the high bar set by Michel and Malcolm: multiple imperfections in judicial conduct, even when criticised on appeal, will not automatically lead to a finding of unfairness. The key questions remain:

Was the trial actually unfair?
Did it at least appear unfair to a reasonable and informed observer?

On the facts, the Court answered both in the negative.

6. Precedents Cited and Their Influence

6.1 R v Michel [2010] UKPC 41; [2010] Cr App R 24

Michel provided the primary framework. In that case, the judge’s:

repeated intrusive questioning;
hostile tone;
mocking and patronising remarks;
general scepticism towards the defence;

led the Privy Council to conclude that the judge had effectively turned into a second prosecutor. The fairness of the trial had been irreparably compromised.

In Toloui, the Court:

acknowledged Michel as “the” authority on trials undermined by judicial intervention [18];
accepted that Michel’s threshold applies even when a defendant appears obviously guilty [18];
held that the Recorder’s conduct in Toloui did not approach the “gross or persistent” departures described in Michel [23], [26], [32].

Thus, Michel served as a benchmark for what an unfair trial by excessive judicial intervention looks like. Toloui stands as an example where, despite some judicial over‑engagement, that threshold is not reached.

6.2 R v Malcolm [2011] EWCA Crim 2069

Malcolm addressed the specific issue of judges pressing the prosecution to call additional witnesses. The Recorder there:

indicated he would “demand” that a particular witness be produced;
complained that he was being “forced into the arena”;
spoke of a “lacuna” that “must” be filled [19]–[20].

The Court in Malcolm held that while judges can be proactive in suggesting additional evidence when fairness demands it, the kind of coercive language used in that case was inappropriate.

In Toloui, this authority was used to:

validate the principle that judges may invite parties to consider calling further evidence [20], [23];
draw a contrast between the strong and somewhat coercive language in Malcolm and the Recorder’s more measured but procedurally flawed remarks in Toloui [23];
reiterate the final principle at [92] of Malcolm:
“The judge should not enter the arena and become a second prosecutor.” [20]

Toloui refines Malcolm by emphasising that:

there is a clear legal limit on case management powers — a judge cannot decide what witnesses must be called [22];
but suggesting the desirability of calling certain witnesses (without compulsion) remains permissible where fairness is at stake [23].

6.3 Randall v R [2002] 2 Cr App R 267 and R v A [2002] 1 AC 45

Although not directly argued, these cases inform the broader framework:

Randall v R underpins Michel’s statement of principle that the right to a fair trial is absolute, and that departures from good practice must reach a certain gravity before they undermine a conviction.
R v A (No.2) contributes the notion of the “triangulation of interests” — the accused, the complainant, and society — which Malcolm (and Toloui via Malcolm) rely upon in assessing what fairness requires in terms of evidence and procedure [20].

Together, they frame the balancing exercise in which Toloui participates: ensuring that a trial remains fair to the defendant but also effective in pursuing the truth and protecting the public interest.

7. Complex Legal Concepts Explained

7.1 “Fraud by abuse of position”

This is an offence under section 4 of the Fraud Act 2006. While the judgment does not rehearse its elements, in general terms it involves:

the defendant occupying a position in which they are expected to safeguard or not to act against the financial interests of another person (here, the Tolouis’ position in relation to Andre and the direct payments);
abusing that position; and
doing so dishonestly with the intention of making a gain for themselves or another, or causing loss (or risk of loss) to another.

The appeal concentrated on dishonesty — whether, in light of what they said the social workers told them, the Tolouis could honestly have believed they were entitled to use direct payments for their mortgage and utilities.

7.2 Direct payments in social care

“Direct payments” are a mechanism by which local authorities pay funds directly to individuals (or their representatives) so that they can arrange their own care and support. The key features are:

The money is public funding, subject to conditions on how it can be spent.
The recipient has greater control and flexibility but must still use funds in line with the care plan and statutory scheme.
Misuse of those funds can constitute both breach of conditions and, in more serious cases, criminal fraud.

7.3 Defence statement

A defence statement is a document the defence is required to file in the Crown Court (under the Criminal Procedure and Investigations Act 1996 and Criminal Procedure Rules). It must, among other things:

set out in general terms the nature of the defence;
identify the matters of fact on which the defendant takes issue with the prosecution; and
indicate any points of law to be relied upon.

If the defence later departs significantly from the defence statement, or fails to mention key points (such as conversations with crucial witnesses), the jury may be directed that they may (in some circumstances) draw adverse inferences. In Toloui, the issue was that Simon had not mentioned Ms Warren in his defence statement, then later sought to rely on her alleged assurances [15], [27].

7.4 “Summing‑up”

At the end of a jury trial, the judge gives a summing‑up, which:

directs the jury on the relevant law;
explains how to approach the evidence and the burden and standard of proof;
summarises, in a balanced way, the evidence for both prosecution and defence.

In Toloui, the Recorder’s summing‑up was described as at “great length” and was not itself impugned as inaccurate; rather, the complaint was that certain earlier interventions, and some commentary within the summing‑up (such as praising counsel), created an appearance of partiality [8], [17], [31].

7.5 “Case management powers”

Trial judges have extensive powers to manage criminal proceedings: setting timetables, ruling on admissibility, controlling questioning, requiring compliance with statutory disclosure and defence statement requirements, and making orders necessary for the efficient, fair determination of the case.

However, Toloui makes clear a specific limit:

Case management powers do not entitle the judge to decide which witnesses the prosecution must call [22].
The prosecution remains dominus litis (master of its case) on that question.
Judges may invite, suggest, or query, but not compel, under the guise of fairness, the filling of perceived evidential “gaps” in a way that aligns them with the prosecutorial function.

7.6 “Entering the arena” / “second prosecutor”

The metaphors “entering the arena” and “second prosecutor” describe situations where a judge:

abandons the neutral, supervisory role; and
actively takes up the prosecution’s cause, typically by:
- aggressive or repeated cross‑examination of the defendant;
- hostile commentary on the defence case;
- pressing the prosecution to cure evidential weaknesses;
- signalling disbelief in the defendant’s evidence.

In such cases, even if the outcome appears factually correct, the conviction must be quashed because the trial has not been conducted by an impartial tribunal. Toloui confirms that this threshold is high: robust or imperfect judicial conduct is not enough unless it produces or clearly appears to produce unfairness in the proceedings as a whole.

8. Likely Impact of R v Toloui

8.1 Clarifying the boundaries of case management over prosecution evidence

The most concrete doctrinal contribution of Toloui is its clear statement that:

“A judge’s case management powers in [a] criminal trial do not extend to deciding what witnesses should be called. It is ultimately for the prosecution to decide what witnesses they wish to call as part of the prosecution case.” [22]

This will be of practical importance in:

Judicial training: Trial judges must temper proactive case‑management instincts with respect for the prosecution’s autonomy in structuring its case.
Advocacy: Both prosecution and defence can rely on Toloui to resist undue judicial pressure to call or not call particular witnesses.
Appeals: Where judges overstep in this area, Toloui provides a benchmark for distinguishing procedural missteps (not necessarily fatal) from genuine incursions into prosecutorial territory that may undermine fairness.

8.2 Calibrating complaints of unfairness due to judicial intervention

Toloui is likely to be cited alongside Michel and Malcolm in future appeals where defendants allege unfair trial due to judicial interventions. It:

demonstrates the Court’s willingness to criticise aspects of a judge’s conduct — labelling them “unwise”, “unnecessary”, or based on a misunderstanding — without automatically concluding that the trial was unfair;
reaffirms that the appellate test focuses on actual or apparent unfairness, not mere deviation from best practice;
shows that the cumulative effect argument must be grounded in clear, substantive prejudice, not just a catalogue of imperfections.

For defence practitioners, this underscores the importance of:

creating a clear record at trial of any judicial interventions that threaten fairness;
showing how those interventions materially constrained the defence or undermined the jury’s ability to assess the case fairly, not merely that they were unsatisfactory.

8.3 Guidance on judicial etiquette in front of juries

Toloui offers some practical, if informal, guidance for trial judges:

Praising counsel in the summing‑up — even both sides — is best avoided, as it is an unnecessary distraction and may be misinterpreted as favouring one side [31].
Robust interventions about the nature and adequacy of defence statements should be made, if at all, in a measured, neutral way, preferably in the context of legal directions rather than as reactive criticism in front of the jury [27].
Judicial questions should usually be limited to clarification and ideally follow the parties’ questioning, not supplant or appear to supplement cross‑examination [26].

While none of these points were treated as errors of law in Toloui, they function as practice guidance that trial judges will be well advised to heed to avoid future appeals.

8.4 Limited impact on the substantive law of fraud

The case does not significantly develop the law of fraud by abuse of position or dishonesty. It assumes rather than revisits:

the elements of the offence;
the centrality of dishonesty as a jury question; and
the relevance of alleged authorisation or assurances by public officials (here, social workers) to a defendant’s state of mind.

Its principal contribution instead lies in criminal procedure and judicial conduct.

9. Conclusion

R v Toloui [2025] EWCA Crim 1599 is an important modern reaffirmation of the limits on judicial intervention in criminal trials and a clarification of the scope of trial judges’ case management powers, particularly regarding the calling of witnesses.

Key takeaways include:

The absolute right to a fair trial requires judges to remain impartial umpires, not to assume the role of a second prosecutor.
Case management powers do not extend to deciding which witnesses the prosecution must call. The prosecution remains responsible for its own case. Judges may, however, raise with the parties whether additional evidence is desirable for fairness.
Even where a judge’s conduct can be criticised as “unwise” or procedurally inaccurate, an appeal will only succeed if there is actual or apparent unfairness — a high threshold illustrated by Michel, Malcolm and Randall.
Judicial questioning that occasionally borders on challenge, or commentary that is somewhat misplaced (for example, praising advocacy in summing‑up), will generally be treated as departures from best practice rather than grounds for quashing a conviction, absent serious prejudice.
In Toloui, the appellants had a full opportunity to put their case, the crucial social workers’ evidence was obtained and tested, and the Recorder’s legal directions correctly placed the burden of proof on the prosecution. In that context, the Court of Appeal found no unfairness, either individually or cumulatively, and upheld the convictions.

As a result, Toloui will stand as a reference point for future challenges based on judicial intervention: a case where the Court scrutinised and criticised aspects of the judge’s approach, yet concluded that the line into unfairness — as drawn in Michel and Malcolm — had not been crossed. It thus both reassures trial judges that not every misstep is fatal and reminds them of the procedural and ethical boundaries that must be respected to maintain public confidence in the criminal justice system.

R v Toloui [2025] EWCA Crim 1599: Limits on Trial Judges’ Case Management Powers and the Threshold for an Unfair Trial by Judicial Intervention