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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Butt, R v [2005] EWCA Crim 805 (17 March 2005) URL: https://www.bailii.org/ew/cases/EWCA/Crim/2005/805.html Cite as: [2005] EWCA Crim 805 |
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CRIMINAL
DIVISION
Strand London, WC2 |
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B e f o r
e :
MRS JUSTICE DOBBS
HIS HONOUR JUDGE FINDLAY BAKER QC
(Sitting as a Judge of the CACD)
____________________
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EJAZ ![]() |
____________________
Computer Aided Transcript of the Stenograph Notes of
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
MISS J MCINTOSH appeared on behalf of the APPELLANT
MISS G ETHERTON appeared on behalf of the CROWN
____________________
VERSION
OF JUDGMENT
Crown Copyright ©
"MISS MCINTOSH: When did you start to look for accommodation?
A. After we arrived here.
Q. Why were you looking for accommodation?
A. Because we wanted to be independent and have aroom
for ourselves only.
Q. What sort of accommodation were you looking for? A. A smallroom.
A hotel is
very
expensive.
Q. Did you look into any bed and breakfasts?
A. No.
Q. The accommodation that you did stay at, where you say the landlord, Mr Hussain, met you?
A. Uh huh.
Q. That was 168 Norbury Avenue. Is thatright?
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A. Yes.
Q. How manyrooms
were at that premises?
A. Um, maybe five or six.
Q. And were they all occupied?
A. Yes, but later on half of them were free.
Q. Do you know the people who occupied the otherrooms?
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A. Yes.
Q. Did you know a Mr Zorbitz?
A. Perhaps the first name, if you could.
Q. That is the only name I have.
A. Could yourepeat,
please.
Q. Zorbitz?
A. No, it doesn'tring
a bell."
At page 33 the judge intervened and the following exchange occurred (line 5):
"THE JUDGE: Miss McIntosh, I think we ought to get onto the case soon.
MISS MCINTOSH: The background information that I am seeking is not purely futile, it accords with my instructions. I will move along.
THE JUDGE: Yes, but I think let's getrelevant
soon, please."
There then followed many questions occupying five pages of the transcript about the complainant's accommodation arrangements and Mr Hussain, including at page 38 line 5, this exchange:
"Q. Mr Hussain, can you just describe Mr Hussain for us?
A. Yes. A short man, dark complexion, arm long hair.
Q. Say that again?
A. Arm-length hair, dark, slightly curly.
Q. Any facial hair?
THE JUDGE: Does it matter, Miss McIntosh? You have been cross-examining for over half-an-hour. Not every single word in your proof is necessarilyrelevant
in cross-examination.
MISS MCINTOSH: Your Honour, yes. (To the witness) Mr Hussain, who was also present, did he participate in the conversation between yourself and his friend?
A. Yes he did.
Q. Do yourecall
whether he was looking at the TV?
A. Yes. Iremember
the TV was on.
Q. When you spoke to the friend of Mr Hussain, did you discuss with him making application to the Home Office so that yourvisa
would allow you to study and work in the country?
A. No.
Q. I suggest to you that that did take place and there was conversation of that nature. Were you asked about the employment that you did in Poland?
A. Yes."
"THE JUDGE: Miss McIntosh, you have put the defendant's casevery
clearly. You now seem to be concentrating on matters which appear to me to be
relatively
unimportant. Will you please finish your cross-examination within ten minutes.
MISS MCINTOSH: Your honour, I will try to finish my cross-examination in ten minutes.
THE JUDGE: You will finish your cross-examination within ten minutes, please."
Between pages 65 and 68 Miss McIntosh continued her cross-examination. She asked detailed questions about the complainant going naked to the bathroom after the alleged rape,
about her taking the appellant's credit card which had his signature on it, about her journey home, including a question about a lift to Tesco's, and so on. At page 68 the judge said:
"Three minutes, Miss McIntosh."
There followed a few more questions about the £50 and then at page 69 this exchange (line 18):
"THE JUDGE: Time's up, Miss McIntosh. Would you bring matters now to an end.
MISS MCINTOSH: May it berecorded
that that is where I am told to stop my cross-examination.
THE JUDGE: I said bring it to an end now.
MISS MCINTOSH: Your honour, I cannot bring it to an end. If I am told I must stop here, that's it."
Miss McIntosh submits that the judge prevented her from exercising her duty as defence counsel to cross-examine a prosecution witness in accordance with the principles stated by the Chairman of the Bar following R
v
McFadden 62 Cr.App.
R
187 at 193, and in particular this:
"It is the duty of counsel when defending an accused on acriminal
charge to present to the court, fearlessly and without
regard
to his personal interests, the defence of that accused. It is not his function to determine the truth of falsity of that defence, nor should he permit his personal opinion of that defence to influence his conduct of it... This duty includes the clear presentation of the issues and the avoidance of waste of time,
repetition
and prolixity. In the conduct of every case counsel must be mindful of this public
responsibility".
"35. We can now turn to the grounds of appeal arising from the judge's management of the case. The trial judge has always beenresponsible
for managing the trial. That is one of his most important functions. To perform it he has to be alert to the needs of everyone involved in the case. That obviously includes, but it is not limited to, the interests of the defendant. It extends to the prosecution, the complainant, to every witness (whichever side is to call the witness), to the jury, or if the jury has not been sworn, to jurors in waiting. Finally, the judge should not overlook the community's interest that justice should be done without unnecessary delay. A fair balance has to be struck between all these interests.
...
37. We must also consider whether the case was somehowrushed,
a submission which gives this court the opportunity to highlight a significant
recent
change, perhaps less heralded than it might have been, that nowadays, as part of his
responsibility
for managing the trial, the judge is expected to control the timetable and to manage the available time. Time is not unlimited. No one should assume that trials can continue to take as long or use up as much time as either or both sides may wish, or think, or assert, they need. The entitlement to a fair trial is not inconsistent with proper judicial control over the use of time. At the
risk
of stating the obvious, every trial which takes longer than it
reasonably
should is wasteful of limited
resources.
It also
results
in delays to justice in cases still waiting to be tried, adding to the tension and distress of
victims,
defendants, particularly those in custody awaiting trial, and witnesses. Most important of all it does nothing to assist the jury to
reach
a true
verdict
on the evidence.
38. In principle, the trial judge should exercise firm control over the timetable, where necessary, making clear in advance and throughout the trial that the timetable will be subject to appropriate constraints. With such necessary evenhandedness and flexibility as the interests of the justicerequire
as the case unfolds, the judge is entitled to direct that the trial is expected to conclude by a specific date and to exercise his powers to see that it does. We find that nothing in the criticisms of the way in which the judge dealt with the timetable, and nothing in the
remaining
complaints about his management of the case which would justify us interfering with the decisions made while exercising his discretion as the trial judge."