Summary of Opinion

Factual and Procedural Background

On 6 December 2023, at the Crown Court in The City, two appellants (referred to below as Appellant A and Appellant B) were convicted of one offence of fraud by abuse of position. On 23 February 2023 they were sentenced to two years' imprisonment suspended for two years. Each appellant appealed with leave against conviction. The principal ground of appeal was that the trial judge (referred to below as Judge [Recorder]) allegedly entered the arena as a second prosecutor and displayed hostility to the defence or preference for the prosecution; counsel for each appellant emphasised the cumulative effect of a number of discrete complaints.

Substantive facts (as found or alleged at trial): The Care Recipient is the adult child of Appellant B and the stepson of Appellant A and has severe and profound disabilities requiring extensive care. From about 2014 the Care Recipient's needs were funded by The County Council via direct payments made to the recipient (in practice received and managed by Appellant A). Funding increased from 45 hours per week in 2014 to 336 hours per week by 2017. The prosecution alleged that part of the direct payments intended for care were used by the appellants for their personal outgoings, including mortgage and utility payments for a residence in The County. It was accepted that some funds had been used in that way.

The central factual and legal issue at trial was dishonesty. The appellants' case was that they provided required care and that they had understood from conversations with social workers that funds could be used flexibly for the Care Recipient's benefit (either directly or indirectly). The prosecution relied in particular on invoices submitted over a period (submitted on behalf of a consultancy referred to as Company A, owned and run by Appellant A but not disclosed to The County Council), allegations that some invoices were false, and admissions or findings that Appellant A had told several lies in documents and meetings. Appellant B admitted discussing and agreeing the contents of a letter that contained a false account balance explanation.

The Recorder gave directions, conducted a lengthy summing-up, and the jury returned guilty verdicts. The appeals challenge the fairness of the trial based on the Judge [Recorder]'s interventions and conduct during the trial, both individually and cumulatively.

Legal Issues Presented

1. Whether, in the course of the trial, the trial judge (the Recorder) intervened so as to enter the arena as a second prosecutor, thereby denying the appellants a fair trial.
2. Whether the cumulative effect of the Judge [Recorder]'s interventions (including urging the prosecution to call particular witnesses, insisting on whole-document evidence, asking challenging questions of witnesses, selective reading of interview material, criticisms of defence statements, and oral directions in summing-up) rendered the convictions unsafe.

Arguments of the Parties

Appellants' Arguments

• The Judge [Recorder] repeatedly intervened in a manner that favoured the prosecution and expressed hostility to the defence, cumulatively amounting to acting as a second prosecutor.
• The Judge [Recorder] told the prosecution (in the absence of the jury) to call two social workers (referred to below as Social Worker A and Social Worker B) to fill an alleged gap in the prosecution case; that instruction and related references were said to signal preference for the prosecution.
• The Judge [Recorder] insisted that an email from Appellant A to Social Worker B be read in full and then questioned Appellant A through it in a way designed to emphasise an adverse interpretation rather than clarify context.
• The Judge [Recorder] frequently interrupted witnesses to note down points, and asked closing questions that emphasised alleged falsehoods (for example, reading a false invoice line by line and asking “Is any of that true?”), which the appellants say was demonstrative of prosecutorial advocacy.
• The Judge [Recorder] criticised and was disparaging of Appellant B (for example, about the description of a defence statement as a “vanilla” statement) in front of the jury.
• The Judge [Recorder] selectively read parts of an interview favourable to the prosecution while not initially reading parts presenting the appellants’ explanations.
• In the summing-up the Judge [Recorder] diluted or improperly amplified directions on the prosecution's burden, downplayed the relevance of the quantity and quality of care provided, and praised the prosecution's conduct, all of which cumulatively prejudiced the defence.
• Counsel for both appellants urged that these matters should be considered cumulatively rather than in isolation.

Prosecution's Position

• The trial judge was exercising case management powers and sought to ensure fairness by addressing the absence of potentially relevant witnesses; the judge was polite and courteous in doing so.
• The prosecution accepted (through Attorney Parker during submissions) that certain questions by the judge were more challenging than clarificatory and that some interventions were unwise in hindsight, but maintained that nothing occurred that undermined fairness or amounted to the judge becoming a second prosecutor.
• The prosecution had, in fact, obtained at least one statement from a social worker prior to the evidence, and the missing-witness concerns did not produce prejudice because evidence from the social workers was obtained and tested (Social Worker A's statement was read and Social Worker B gave oral evidence and was cross-examined).

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
R v Michel [2010] UKPC 41; [2010] Cr App R 24	Establishes that there is a wider principle: a trial may be unfair if the judge effectively acts as a second prosecutor; persistent, gross or prejudicial departures from good practice can render a trial unfair regardless of apparent guilt.	The court relied on Michel's articulation of the point at which judicial intervention becomes unfair and used it as the primary contrast when analysing whether the Judge [Recorder] had acted as a second prosecutor.
R v Malcolm [2011] EWCA Crim 2069	Addresses limits on a judge's interventions (including demanding or strongly urging that particular witnesses be available) and warns against language and conduct that amount to entering the arena.	The court compared the language and conduct in Malcolm (where the judge used forceful language and the Court of Appeal condemned entry into the arena) with the more restrained conduct of the Judge [Recorder], finding important differences in tone and circumstances.
Randall v R [2002] 2 Crim App R 267	Enunciated in Michel: emphasises that the right to a fair trial is absolute and that departures from good practice can be so severe as to make a trial unfair.	Quoted in support of the general principle that there is a threshold beyond which judicial conduct will render a trial unfair; used to evaluate whether that threshold was crossed in the present case.
R v A [2001] UKHL 25; [2002] 1 AC 45	Referenced for the proposition that fairness involves balancing interests (accused, victim and society) and that proportionality can play a role in what a fair trial entails.	Invoked to underline that a judge may invite further evidence to ensure fairness, but this must not cross into advocacy; the court applied this balance when assessing the propriety of the Judge [Recorder]'s invitations to the prosecution.

Court's Reasoning and Analysis

The court conducted a structured analysis of each discrete complaint and then assessed their cumulative effect.

1. Calling of Social Workers (Social Worker A and Social Worker B): The court observed that the Judge [Recorder] discussed with the prosecution, in the absence of the jury, whether those witnesses should be called. The appellate court stated that a trial judge's case management powers do not extend to deciding what witnesses the prosecution should call; ultimately that is the prosecution's choice. The court nevertheless recognised three points: (a) a judge may raise whether other witnesses should be called; (b) the language and tone in this case were not comparable to the more forceful language condemned in Malcolm; and (c) evidence from the social workers was obtained (one statement read, the other giving oral evidence and being cross-examined). On that basis the court concluded no unfairness and no demonstration of hostility or acting as a second prosecutor.

2. Insistence on Reading Whole Email to Social Worker B: The court accepted that insisting the whole email be put in evidence and then going through it line by line was unnecessary and unwise. Attorney Parker for the prosecution accepted the questioning was more challenging than clarificatory. Nonetheless, the court concluded this alone did not undermine fairness.

3. Questions and Interruptions by the Judge [Recorder]: The court acknowledged occasions where the judge interrupted witnesses to make notes, repeated points, or asked challenging end-of-examination questions (including reading a false invoice line by line and asking whether any of it was true, and hypothetical questions about dishonesty and company directorship). The court again described such questioning as unwise and sometimes beyond mere clarification, but concluded that the content, length, tone and significance of the questioning did not render the trial unfair.

4. Criticism of Defence Statement and Oral Directions: The court noted that the Judge [Recorder] made a robust clarification about the defence statement when Appellant B described it as a "vanilla" statement. The appellate court regarded the approach as unwise and better addressed in the summing-up, but not amounting to hostility or entering the arena. On legal directions, the court accepted the burden of proof was correctly put and that reminders to assess reliability, accuracy and truthfulness were substantively correct, even if better placed earlier in the summing-up.

5. Selective Reading of Interview Material and Procedural Points: The court considered the complaint that parts of an interview were read selectively and that the prosecution's prior attempts to contact a social worker were not made explicit. The appellate court held there was no actual unfairness: the jury was directed to the whole interview and to the defence case during summing-up, and nothing suggested deliberate assistance to the prosecution.

6. Praise of Counsel and Emphasis on Care Given: The court regarded the Judge [Recorder]'s praise of counsel as unnecessary in the summing-up but not prejudicial. Likewise, the way the judge addressed the quality and amount of care for the Care Recipient—accepting that appellants cared greatly and noting recruiting carers was difficult—did not diminish that the central issue was dishonesty; the judge was entitled to direct the jury that that was the main issue.

7. Cumulative Assessment: Applying the principles articulated in Michel and Malcolm, the court reviewed the cumulative effect of the individual instances of unwise conduct. It concluded that while some interventions were unnecessary or unwise, they amounted at most to departures from best practice and did not, individually or cumulatively, demonstrate that the Judge [Recorder] had acted as a second prosecutor or denied a fair trial. Each appellant had the opportunity to present their evidence, evidence was properly summarised, and the jury assessed the evidence in accordance with directions. Accordingly, the convictions were not rendered unsafe by the judicial conduct complained of.

Holding and Implications

DISMISSED

Holding: The court dismissed both appeals. It held that although aspects of the Judge [Recorder]'s conduct were unwise or unnecessary (for example, some questioning, insistence on whole-document evidence, and comments about counsel), none of the individual matters nor their cumulative effect established that the judge had entered the arena as a second prosecutor or that the appellants were denied a fair trial.

Implications: The direct consequence is that the appellants' convictions and suspended sentences remain intact. The court treated the matters complained of as departures from best practice in places but concluded they did not render the trial unfair or the convictions unsafe. The opinion applies established authorities on judicial intervention (notably R v Michel and R v Malcolm) to reaffirm the boundary between permissible judicial case management and impermissible entry into the arena; it did not, in substance, establish a new legal principle beyond that existing jurisprudence.