THE QUEEN v Marchant

Factual and Procedural Background

On 22 January 2018, following a trial in the Crown Court at The City before Judge Horton and a jury, the Appellant was convicted of an offence of rape and acquitted on two associated counts of assault by penetration. The Appellant appeals against his conviction with leave of the single judge, alleging that he did not receive a fair trial due to improper judicial interventions during his examination-in-chief and a fundamentally unbalanced summing-up to the jury.

At the time of the alleged offence, the Complainant, aged 23, and the Appellant, aged 36, were friends. On the day prior to the incident, they exchanged text messages in which the Appellant expressed feelings beyond friendship, which the Complainant declined, affirming her relationship with her boyfriend. They agreed to meet socially as friends later that evening.

The meeting took place at the home of a mutual friend ("Alan") in The City. Both the Appellant and others, including the Complainant, consumed alcohol and cocaine throughout the night. The Complainant fell asleep on a sofa around 4:30 a.m. and was later carried to a bedroom by the Appellant. She awoke to find the Appellant engaging in sexual intercourse with her without her consent, resisted his advances, and he left hurriedly after a phone call.

The Complainant immediately sought help from the friend’s mother, who contacted the friend, who in turn contacted the Appellant. The Appellant admitted to consensual sex. The Complainant was taken to hospital where medical examination revealed tenderness and bruising but no tearing. The Appellant denied rape, asserting consent and claiming impairment due to drugs and alcohol.

The central issue at trial was whether the Complainant consented to the sexual activity.

Legal Issues Presented

1. Whether the judge's interventions during the Appellant's examination-in-chief were improper and inhibited the Appellant's ability to give his account freely.
2. Whether the judge’s summing-up to the jury was fundamentally unbalanced, favouring the prosecution and undermining the defence.
3. Whether, taken together, these alleged procedural errors resulted in the Appellant being denied a fair trial and rendered the conviction unsafe.

Arguments of the Parties

Appellant's Arguments

• The judge intervened excessively during the Appellant's examination-in-chief, adopting a role akin to prosecution counsel, thereby inhibiting the Appellant’s ability to present his case fully and freely.
• The judge gave a warning to the Appellant in the absence of the jury that could have created an intimidating atmosphere, deterring the Appellant from attacking the Complainant’s character or presenting evidence inconsistent with his defence.
• The judge questioned the Appellant about an incident ruled inadmissible, causing confusion and unfairly portraying the Appellant as evasive to the jury.
• The summing-up was fundamentally unbalanced, amplifying the prosecution’s case, highlighting evidence favourable to them (including some not relied on by the Crown), while downplaying or omitting defence evidence and arguments.
• The combined effect of the judge’s interventions and summing-up may have unduly influenced the jury in favour of the prosecution, preventing a fair consideration of evidence.

Crown's Arguments

• Some judicial interventions may have been unfortunate but did not render the conviction unsafe.
• Interventions were intended to clarify ambiguities and ensure accurate evidence recording; the Appellant was not prevented from presenting his case, nor was his counsel obstructed.
• The judge’s warning to the Appellant was legitimate and in his interests, given the withdrawal of certain charges and potential consequences for attacking the Complainant’s character.
• The judge did not intervene during the critical part of the Appellant’s evidence concerning the sexual intercourse.
• The summing-up was appropriate; omission of some defence points did not render it unfair, especially as the case was not finely balanced and the defence case had real weaknesses.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
R v Hulusi and Purvis (1974) 58 Cr App R 378	Extent of proper judicial intervention during witness examination.	Referenced as part of authorities guiding limits on judge's intervention in examination-in-chief.
R v Copsey and Copsey [2008] EWCA Crim 2043	Proper role of judge in adversarial criminal trials.	Used to support the principle that judges should act as neutral arbiters, not cross-examining defendants.
R v Zarezadeh [2011] EWCA Crim 271	Limits on judicial intervention and ensuring fair trial.	Guided assessment of whether judge’s questioning improperly affected fairness.
R v Inns [2018] EWCA Crim 1081	Fundamental principles on judge’s role in questioning and summing up in criminal trials.	Provided a detailed summary of principles emphasizing judge neutrality, limited intervention, and impartial summing-up.
R v Nelson [1997] Crim LR 234	Requirement for even-handed summing up and impartiality.	Quoted to explain that judges need not compensate for weak defence cases but must fairly state and analyse both sides.
R v Perren [2009] EWCA Crim 348	Test for assessing whether a trial was fair overall and whether a conviction is unsafe.	Applied to determine if the Appellant was denied a fair trial due to judicial conduct.

Court's Reasoning and Analysis

The court considered the extent and nature of the judge's interventions during the Appellant's examination-in-chief. It found that some interventions were excessive and inappropriate, resembling cross-examination, which should have been reserved for the prosecution. This included detailed questioning about text messages, an inadmissible incident, and the Appellant’s knowledge of certain events, which risked interfering with the Appellant's ability to present his account freely.

However, the court concluded that these interventions did not prevent the Appellant from giving his own narrative of events, especially during the critical period of the alleged offence. The warning given by the judge regarding consequences of attacking the Complainant’s character was deemed appropriate and not intimidating.

Regarding the summing-up, the court acknowledged some minor unfair characterizations and omissions but rejected the claim that it was fundamentally unbalanced. The judge fairly reminded the jury of the evidence supporting both parties and appropriately highlighted weaknesses in the defence case, consistent with the principle that impartiality does not require downplaying strong prosecution evidence or artificially bolstering a weak defence.

The court emphasized that the trial was fundamentally a credibility contest between the Complainant and the Appellant, and the judge’s approach reflected this without unfair bias.

Ultimately, the court applied the test from relevant precedents to assess whether there was a real risk that the jury was impeded from fairly considering the case. It found no such risk and concluded that the conviction was not unsafe.

Holding and Implications

The court DISMISSED the appeal.

The direct consequence is that the Appellant's conviction for rape stands. The court found that, despite some judicial errors in intervention and minor criticisms of the summing-up, the overall fairness of the trial was not compromised to a degree warranting quashing the conviction. No new precedent was established; the decision reaffirmed existing principles regarding judicial conduct and summing-up in criminal trials.