Although the judge's interventions in the course of the defendant's trial on counts of indecent assault and rape had not bolstered the complainant or belittled the defendant in the eyes of the jury to such an extent as to render the defendant's conviction unsafe, his summing-up not only failed the same test but also contained serious misdirections.Appeal by the appellant ('M') against his convictions before HH Judge Maher and a jury of three counts alleging two instances of indecent assault and a third instance of rape. The complainant ('V') was M's niece. In 2000 she aired for the first time allegations of incidents in 1994, 1996 and 1998 (when she was 6, 8 and 10 years old respectively) which gave rise to the charges subsequently brought against M. By this appeal M alleged that in the course of the trial the judge had intervened, whether by asking questions or making remarks in the presence of the jury, which appeared: (i) to excuse or explain V's difficulty in answering questions by reference to her (admitted) learning difficulties, thereby giving the impression that he was coming to her rescue; (ii) to cast doubt upon the ability of M's wife ('W') to remember events relating to the alleged rape in 1998; and (iii) to suggest that M's young son ('S') had given evidence on M's behalf which was coloured by his knowledge of the consequences for M were he to be convicted. M also complained that the judge's summing-up: (a) improperly denigrated the evidence of W and S in the same way; and (b) contained serious misdirections in relation to the medical evidence and the issue of consent.HELD: (1) The judge's interventions in relation to (i) and (ii), whilst unfortunate and inappropriate, would not have bolstered V or belittled M in the eyes of the jury to such an extent as to render the convictions unsafe. (2) However, the same could not be said of the summing-up. The repetition of the judge's remarks as to the credibility of the evidence given by W and S was hardly helpful to M's case. The summing up also contained serious misdirections.Appeal allowed. Retrial ordered.

[2003] EWCA Crim 907

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