- Bookmark
- Share
- CaseIQ
Mohammed, R. v
Factual and Procedural Background
The Appellant was tried in the Crown Court at [Location] on one count of controlling or coercive behaviour in an intimate or family relationship, contrary to section 76(1) and (11) of the Serious Crime Act 2015. He was convicted and received a suspended sentence of two years’ imprisonment, together with unpaid work and rehabilitation requirements. He appealed against conviction with permission. [1]
The prosecution alleged that, during the relationship, the Appellant controlled the Complainant’s clothing, appearance, contact with men, social activities, family contact and ability to take their child out. The prosecution relied on the Complainant’s evidence, supporting evidence from work colleagues, and messages. [2][3][4][5][6][7][8][9]
The defence denied the allegations, contending that events had been taken out of context and that the Complainant had displayed similar behaviour. The defence also relied on evidence from the Appellant, a gym member, a former partner, character evidence and the Appellant’s sister. [10][11][12][13][14]
Legal Issues Presented
- Whether judicial interventions during the trial reversed or appeared to reverse the burden of proof. [15][16]
- Whether the judge encouraged the jury to adopt an inquisitorial or investigatory approach. [17][18]
- Whether the judge’s questioning of witnesses caused her to enter the arena or appear to favour the prosecution. [19]
- Whether the jury’s questions and the handling of those questions made the trial unfair or impaired the presentation of the defence case. [20][18]
- Whether the judge’s directions were capable of curing any unfairness and whether the jury should have been discharged. [19][21][22]
Arguments of the Parties
Appellant’s Arguments
- The trial was unfair and the conviction unsafe because the judge’s interventions allegedly shifted the burden of proof. [15][16]
- The judge’s questions to witnesses allegedly suggested that she preferred the prosecution case and reinforced the Complainant’s evidence. [17][19]
- The jury’s repeated questions allegedly encouraged an inquisitorial approach and interrupted the Appellant’s evidence and defence cross-examination. [17][20][18]
- The judge’s directions allegedly failed to cure the resulting unfairness. [19]
- The Appellant applied for the jury to be discharged, relying particularly on the jury’s questions and the alleged shifting of the burden of proof. [21][23]
Respondent’s Position
- The Respondent took a neutral position on the application to discharge the jury. [23]
- The Respondent’s counsel relied on authority concerning judicial interventions and the distinction between departures from good practice and unfairness sufficient to make a conviction unsafe. [24][25][26]
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| R v Inns [2018] EWCA Crim 1081; [2019] 1 Cr. App. R. 5 | The jury is the tribunal of fact; the judge must remain a neutral umpire; judicial questions may clarify evidence but must not turn the trial into an inquisitorial process or prevent the defendant from presenting their account. Jury questions should generally be shown to counsel and handled so that the defence case is not disrupted. [27][28][29][30][31][32][33][34] | The Court used these principles to assess the judge’s interventions, witness questioning and handling of jury notes. [35][36][37][38][39] |
| R. v Hamilton [1969] Crim. L.R. 486 | A judge must not descend into the arena or appear to take sides. [40] | The Court applied this principle in concluding that the trial judge had not acted as an advocate for the prosecution. [41] |
| R. v Gunning (1994) 98 Cr. App. R. 303 | The judge’s role in an adversarial trial is that of a neutral umpire rather than an inquisitorial investigator. [40] | The Court considered the principle when examining the jury’s questions and the judge’s conduct. [42][43] |
| R v Hulusi and Purvis (1974) 58 Cr. App. R. 378 | Whether interventions justify quashing a conviction depends on their nature and effect, including whether they undermine the defence presentation or prevent the defendant from giving their account properly. [44] | The Court found that the interventions did not invite rejection of the defence case or prevent the Appellant from presenting it. [41][45] |
| R v Matthews (1984) 78 Cr. App. R. 23 | The number of interventions is not decisive; their quality, apparent judicial attitude and effect on the orderly presentation of the defence are critical. [46] | The Court treated the judge’s questioning as mostly clarificatory, with isolated shortcomings that did not render the trial unfair. [37][47][45] |
| Randall v The Queen [2002] UKPC 19; [2002] 1 WLR 2237 | Not every departure from good practice makes a trial unfair. Unfairness arises where departures are sufficiently gross, persistent, prejudicial or irremediable. [24][25] | The Court regarded certain interventions as imperfect or unfortunate, but isolated and insufficient to undermine the trial’s integrity. [45] |
| Michel v The Queen [2009] UKPC 41; [2010] 1 WLR 879 | The Court referred to this authority alongside the principles concerning fairness and departures from good practice. [26] | The Court’s assessment remained focused on whether the alleged irregularities made the trial unfair or the conviction unsafe. [35][48] |
Court’s Reasoning and Analysis
The Court accepted that the trial judge’s opening direction correctly placed the burden of proof on the prosecution and stated that the Appellant did not have to prove his innocence. The judge repeated those directions during the trial and in the summing up. [49][50][51][52][53]
The Court found that the Appellant’s evidence was not materially interrupted. His examination-in-chief occupied approximately 48 pages, and the judge’s interventions were limited principally to identifying documents and clarifying innocuous matters. [54][36]
The judge’s request that counsel put alleged gym-related emails to the Complainant did not shift the burden of proof. It merely addressed documents that counsel had said existed. [55]
The judge asked an unusually large number of questions of the Complainant after prosecution counsel declined to re-examine. The Court considered that better practice would have been to raise the matters during examination-in-chief or cross-examination. Nevertheless, the questions were viewed as neutral attempts to clarify the evidence and the judge’s notes, not as an endorsement of the prosecution case. [37][47][56][57]
The judge’s later questions to the Appellant included some unnecessary probing, including questions about a photograph. The Court regarded those interventions as unfortunate and not good practice, but isolated and insufficiently strong to invite the jury to reject the defence case or undermine the trial’s fairness. [45]
The Court accepted that the judge should ordinarily have shown jury notes to counsel before dealing with them and that dealing with the first notes in front of the jury was inappropriate. However, the actual handling of those notes caused no unfairness or prejudice. [38]
Many jury notes sought clarification rather than investigation. The notes concerning the Appellant’s evidence were generally dealt with after discussion between the judge and counsel and did not prevent the Appellant from giving his account or the defence from addressing the issues. [58][39][59][60][61]
The Court criticised the judge’s initial instruction that the jury could raise “gaps in the evidence.” That instruction was inconsistent with the adversarial system, because jurors must decide the case on the evidence presented and have no investigatory role. [42]
Despite that error, the jury’s questions, read fairly and as a whole, did not demonstrate that the jury had shifted the burden of proof or failed to understand its role. The judge subsequently gave clear directions that the jury was not an investigatory body and that the prosecution retained the burden of proof. The refusal to discharge the jury was therefore proper. [62][63][64][43]
The Court also found that the judge’s summing up fairly reflected the prosecution and defence evidence, contained no apparent bias, and properly directed the jury on proof, delay, good character and the limits of the evidence. [65][52][53][66][67]
Holding and Implications
Appeal dismissed. The Court held that, although some aspects of the trial judge’s conduct were inappropriate or fell short of better practice, they did not render the trial unfair or make the conviction unsafe. [42][43][48]
The Appellant’s conviction and sentence therefore remain effective. The opinion discusses no broader consequence beyond the determination of this appeal and applies existing principles concerning judicial interventions, jury questions and trial fairness.
Alert