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Comments made by a judge which were rude (“Shut your mouth and listen”), harsh (“How dare you speak to a member of the public”), and sarcastic (“You are really sorry? Yes, you will be really sorry”) made to the defendant just before he gave evidence rendered the conviction unsafe.

The English Court of Appeal could not safely exclude the possibility that the defendant’s evidence may not have come out as well as it would have done if the judge had dealt with the matter appropriately. When this was combined with that fact that the defendant’s credibility was a key issue, he had a strong defense and the jury acquitted him of the most serious charge and returned a majority verdict on another, the Court was collectively left with a sufficient sense of unease about what the outcome of the case to compel the conclusion that the convictions were unsafe.  The key factor in this conclusion was that the defendant was subject to treatment by the judge that was wholly inappropriate and in a context not directly connected to the ongoing trial.

What I find most interesting about this case is how the Court of Appeal approached the issue of the safety of the conviction – it reflects an intuitive and personal sense of doubt about the safety of the conviction. It is not about the fine splitting of arguments and there is no thought as to finely calibrated tests on appeal that so often seem the province of our appellate courts.

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