THE JUDGE INTERRUPTED A BIT TOO MUCH… COURT OF APPEAL JUDGMENT

In Keane v Sargen & Ors [2023] EWCA Civ 141 the Court of Appeal commented that interruptions of the cross examination of a witness by the trial judge had not been helpful and, indeed, inappropriate.

“I add a few words to emphasise that, in my view, the way in which the judge interrupted the cross-examination of Mr Keane was, as Newey LJ has said, inappropriate. My reading of many of the interruptions is that the judge was, perhaps inadvertently, but certainly inappropriately, protecting the witness. I also agree that ultimately the trial was not rendered unfair, but that is only because Mr Keane had almost no detailed recollection of what had occurred and that is what the judge found (see, for example [38], [61], [79], [80], [135] and [213] of his judgment). That finding has formed a key part of our decision that the judge’s reconstruction of the facts cannot be sustained on the evidence.”

(Sir Geoffrey Vos, Master of the Rolls)

THE CASE

The claimant brought an action claiming that he was a partner in a partnership.  The claimant’s case was successful at first instance.  The defendants appealed. One of the grounds of appeal was that the trial judge had interrupted the cross-examination of the claimant too much.  The Court of Appeal allowed the defendants’ appeal on other grounds, however it did make observations in relation to interruptions.

THE JUDGEMENT ON THIS ISSUE

Lord Justice Newey considered the issue, which had not been pressed, but which had some importance.

The Interventions Issue

1. 1. One of the grounds of appeal is to the effect that the trial was unfair because the Judge intervened too much when Mr Keane was giving oral evidence. Ms Anderson did not advance the point with any force, but I should nevertheless address it briefly.

1. 1. The Courts have repeatedly warned of the dangers of judges intervening when witnesses are giving evidence. In Serafin v Malkiewicz [2020] UKSC 23, [2020] 1 WLR 2455, Lord Wilson (with whom Lord Reed, Lord Briggs, Lady Arden and Lord Kitchin agreed) noted at paragraph 40 that “[t]he leading authority on inquiry into the unfairness of a trial remains the judgment of the Court of Appeal, delivered on its behalf by Denning LJ, in Jones v National Coal Board [1957] 2 QB 55“. In Jones v National Coal Board (“Jones“), Denning LJ said at 63 that a trial judge “sits to hear and determine the issues raised by the parties, not to conduct an investigation or examination on behalf of society at large” and went on:

“Was it not Lord Eldon L.C. who said in a notable passage that ‘truth is best discovered by powerful statements on both sides of the question’?: see Ex parte Lloyd and Lord Greene M.R. who explained that justice is best done by a judge who holds the balance between the contending parties without himself taking part in their disputations? If a judge, said Lord Greene, should himself conduct the examination of witnesses, ‘he, so to speak, descends into the arena and is liable to have his vision clouded by the dust of conflict’: see Yuill v. Yuill.“

At 65, Denning LJ said:

“Now, it cannot, of course, be doubted that a judge is not only entitled but is, indeed, bound to intervene at any stage of a witness’s evidence if he feels that, by reason of the technical nature of the evidence or otherwise, it is only by putting questions of his own that he can properly follow and appreciate what the witness is saying. Nevertheless, it is obvious for more than one reason that such interventions should be as infrequent as possible when the witness is under cross-examination. It is only by cross-examination that a witness’s evidence can be properly tested, and it loses much of its effectiveness in counsel’s hands if the witness is given time to think out the answer to awkward questions; the very gist of cross-examination lies in the unbroken sequence of question and answer. Further than this, cross-examining counsel is at a grave disadvantage if he is prevented from following a preconceived line of inquiry which is, in his view, most likely to elicit admissions from the witness or qualifications of the evidence which he has given in chief. Excessive judicial interruption inevitably weakens the effectiveness of cross-examination in relation to both the aspects which we have mentioned, for at one and the same time it gives a witness valuable time for thought before answering a difficult question, and diverts cross-examining counsel from the course which he had intended to pursue, and to which it is by no means easy sometimes to return.”

1. 1. In Southwark London Borough Council v Kofi-Adu [2006] EWCA Civ 281, [2006] HLR 33 (“Kofi-Adu“), Jonathan Parker LJ, giving the judgment of the Court of Appeal, observed at paragraph 142 that “a first instance judge is entitled to a wide degree of latitude in the way in which he conducts proceedings in his court” and at paragraph 145 that “[n]owadays, of course, first instance judges rightly tend to be very much more proactive and interventionist than their predecessors, and the above observations [i.e. those in Jones and Yuill v Yuill] (made, in the case of Lord Denning M.R., almost 50 years ago, and, in the case of Lord Greene M.R., more than 60 years ago) must be read in that context”. Jonathan Parker LJ continued, however:

“That said, … it remains the case that interventions by the judge in the course of oral evidence (as opposed to interventions during counsel’s submissions) must inevitably carry the risk so graphically described by Lord Greene M.R.”

“The risk,” Jonathan Parker LJ explained in paragraph 146, “is that the judge’s descent into the arena (to adopt Lord Greene M.R.’s description) may so hamper his ability properly to evaluate and weigh the evidence before him as to impair his judgment, and may for that reason render the trial unfair.”

1. 1. In a similar vein, in Michel v R [2009] UKPC 41, [2010] 1 WLR 879, Lord Brown, giving the judgment of the Privy Council, referred in paragraph 31 to “[t]he core principle … that under the adversarial system the judge remains aloof from the fray and neutral during the elicitation of the evidence”. He went on to quote from “Denning LJ’s celebrated judgment in Jones v National Coal Board“.

1. 1. On the other hand, excessive interventions by the judge during oral evidence will not necessarily render a trial unfair. Thus, in Shaw v Grouby [2017] 1 WLR 2455, Patten LJ, with whom Vos C agreed, considered that “the judge’s interventions, whilst always courteous, were … excessive and … he should have attempted to postpone his questioning, particularly of the witnesses of fact, until after counsel had conducted his cross-examination except when it was necessary to ask the witness to clarify an answer so that the judge could understand the evidence that was being given” (paragraph 45), but “reached the conclusion that there was still a fair trial and a proper judicial determination of the main issues” (paragraph 46). “The allegation of unfairness,” Patten LJ said, “requires one to look carefully at what were the real issues in the case and how the judge’s conduct impacted on them” (paragraph 46).

1. 1. In the present case, Ms Anderson did not suggest that the Judge had ever been other than courteous and stressed that she was not advancing a complaint of judicial misconduct. She pointed, however, to 52 occasions when the Judge intervened during her cross-examination of Mr Keane.

1. 1. Having read the relevant transcripts, it is plain, not only that the Judge was courteous, but that he was concerned to ensure that Mr Keane understood Ms Anderson’s questions and had a fair opportunity to answer them. Even so, looked at in the round, it does seem to me that the Judge interrupted more often than was appropriate.

1. 1. It is worth, I think, commenting specifically on two of the interventions. So far as the first is concerned, the relevant transcript extract reads as follows:

“Q. Forgive me, so we can pin it down even further, between 1 March, you say, when this was sent to you, and the 10 May, then you say some other offer was made to you?

A. From my memory, yes.

Q. Where do we see that in your evidence?

A. Sorry, are we back to my witness statement?

Q. Yes, back in bundle B.

A. Bundle B, yes, sorry, I have it, yes.

JUDGE JONES: So to cut down the awful problem that always arises of a witness in the witness-box suddenly having to work out what is in his statement, with a certain amount of panic that ensues when somebody is put on the spot, are we right that we are dealing with between paragraphs 2 and 17, simply because it can’t be between anywhere else, Ms Anderson?

MS ANDERSON: I think so, yes.

JUDGE JONES: Okay, Mr Keane, if we look at your paragraph 12, you are explaining some background in paragraph 12.

A. Yes.

JUDGE JONES: So that sort of sets it up. And 13, but emphasising your main contact is Mr MacGloin. And then at 14 you are making an observation with regard to DRSL’s performance. And then for 15 you are talking about Sean approaching you, so now we are in February 2012.

A. Yes.

JUDGE JONES: This is obviously a little early and he is telling you that there is a space for you. And then at 16 you are referring to how much you were getting Bank of America and it was made clear to you you would be joining as an equal partner. You don’t set out any dates about this, but that is what you are saying.

A. No.

JUDGE JONES: And various observations that you make and then:

‘By the time negotiations reached fruition those requirements [which I understand are performance criteria] were no longer discussed and no targets were put and it is clearly agreed that I would join the business as an equal partner.’

And then in 17 you go into what you would do, your plan of what you would do as head of operations, and that is a little bit more – I am just going to put it in those terms – at the top of page 5. That’s what we are looking at.

A. Yes, my Lord.

JUDGE JONES: Now, if you want to ask the question, Ms Anderson, it will help because he has got in his mind what he is dealing with.”

1. 1. As Denning LJ noted in Jones, “the very gist of cross-examination lies in the unbroken sequence of question and answer” and it “loses much of its effectiveness if the witness is given time to think out the answer to awkward questions”. In the intervention set out in the previous paragraph, the Judge will not merely have given Mr Keane “valuable time for thought” (to use words of Denning LJ), but pointed him to where he might find an answer to Ms Anderson’s question. It seems to me that it was inappropriate for the Judge to intervene in this way and thereby to run the risk of debilitating the cross-examination. This intervention and the questions asked by the Judge in the passage that followed also risked clouding his ability properly to weigh and evaluate the evidence.

1. 1. The second intervention can be seen in the following transcript extract:

“Q. Mr Keane, it is so obvious that you are not telling the truth about this.

A. No.

JUDGE JONES: It is not a question of not telling the truth. You have many times accused him of telling lies. I don’t think this is this sort of case at all. It is not a case of intending to lie. I have had all of this yesterday and I formed a pretty clear view as to his evidence.

MS ANDERSON: I’m grateful.

JUDGE JONES: And I don’t think this is really particularly helpful, but I take the note, except for the fact that the note refers specifically to these points, and I agree, and that is in the document.”

1. 1. While a judge may of course form a provisional view as to the truthfulness of a witness while cross-examination is in progress, his role at that stage is not to arrive at a conclusion, let alone to voice one, but essentially to listen. To my mind, it was not appropriate for the Judge to state while Mr Keane’s cross-examination was still in progress that “[i]t is not a question of not telling the truth”. The Judge will here, I think, both have prevented Ms Anderson from asking a legitimate question and in all probability provided Mr Keane with reassurance as to how his evidence was being received and, hence, made Ms Anderson’s task generally harder. Of course, there can potentially be occasions when it is not only legitimate but incumbent on a judge to intervene during cross-examination to prevent a witness from being subjected to unfair bullying, but there was no need for that in the present case. If, alternatively, a judge feels that a point has already been explored with a witness sufficiently, he can seek to move the cross-examiner on without expressing any view as to the veracity of what the witness has said.

1. The ultimate question, however, is whether the Judge’s interventions made the trial unfair. I have already indicated that the Judge intervened more often than was appropriate. He should have attempted to postpone his questioning of Mr Keane until after Ms Anderson had conducted her cross-examination, save when it was necessary to clarify the evidence being given. Judicial self-restraint is required to avoid the consequences referred to above and to ensure that the trial process is fair to all involved. That said, I do not consider that the interventions either prevented the appellants from fully presenting their case at trial or impaired the Judge’s decision-making. There was a fair trial and Ms Anderson did not really suggest otherwise in her submissions to us. While the Judge may have intervened more than was appropriate, his conduct was nothing like that which led to appeals being allowed in Kofi-Adu and Serafin v Malkiewicz and, “look[ing] carefully at what were the real issues in the case and how the judge’s conduct impacted on them”, I am in no doubt that the trial remained fair.