When Judges Enter the Arena

Fatima Jama evaluates the Court of Appeal’s ruling in Mathurin [2025] EWCA Crim 1254.

Introduction

Mathurin [2025] EWCA Crim 1254 serves as a reminder that judicial intervention during an ongoing trial must be kept within proper bounds. The Court of Appeal quashed the defendant’s conviction for drug related offences and ordered a retrial, finding that the trial judge’s interventions had crossed the line from clarification into advocacy. By descending into the arena with too much force, the judge created an impression of partiality toward the prosecution’s case.

The case underscores the constant challenge facing trial judges: maintaining an appropriate balance between active case management and maintaining impartiality. While judicial intervention is sometimes necessary to ensure clarity or fairness, Mathurin reminds us that there remains an important distinction between a judge who intervenes and a judge who, however unintentionally, begins to sound like another member of the prosecution team.

The court concluded that whilst the appellant had been convicted on what appeared to be strong prosecution evidence, the trial judge’s questioning had significantly weakened his defence on the central issue of credibility.

The Prosecution’s Case

On 26 October 2023, police officers were preparing to execute a search warrant at a flat in Snaresbrook occupied by two individuals. Before they could enter, the appellant arrived in a van and parked outside. One of the occupants cycled up to the van, spoke briefly with the appellant, then returned to his flat.

Six minutes later, the appellant emerged from his van carrying a Footasylum drawstring bag. He entered the flat and left four minutes later without the bag. He then drove away.

When police executed the warrant approximately an hour later, they discovered the Footasylum bag on a shelf inside a box. Within it lay a blue plastic shopping bag, which in turn contained a clear plastic bag holding just under one kilogram of heroin.

The appellant’s fingerprints were found on the outside of the Footasylum bag, though notably not on the inner bags containing the drugs themselves. When he returned to the flat more than an hour after his initial visit, he was greeted at the door by a plain-clothes police officer. The appellant immediately fled, though he was quickly apprehended. A search of his van revealed building equipment and tools.

One of the occupants subsequently pleaded guilty to supplying a controlled drug of Class A. Charges against the other occupant were dropped, leaving the appellant to stand trial alone. The prosecution also relied upon the appellant’s previous conviction for a drugs offence as evidence of propensity.

The Defence

The appellant’s explanation for his presence at the flat was that his visit was related to his occasional work with the occupant on building projects. According to the appellant’s evidence, the occupant had been asking to borrow a charger for an electric scooter. Additionally, a bag containing the occupant’s tools was in the back of his van. The appellant gave evidence that he had been sitting in his van talking on his mobile phone when the occupant approached but quickly departed to use the toilet.

The appellant claimed he placed the charger in the Footasylum bag, carried it to the flat, left it in the hallway, chatted briefly, and returned to his van. He said he drove off but later remembered the tools he had forgotten to return. When he came back to the flat, an unfamiliar man answered the door. Although he did not realise the man was a police officer, he nonetheless panicked and ran.

The Issue

The single ground of appeal concerned the nature and frequency of the trial judge’s questions during the appellant’s cross-examination by prosecution counsel.

No complaint was made about the evidence-in-chief, the judge’s summing-up, or his legal directions. The Court of Appeal acknowledged that the judge had given correct directions in law and fairly summarised the case, specifically noting their instruction to jurors that “my view of the evidence, whatever you think it may be, does not matter in the slightest”.

However, during cross-examination, the judge intervened on multiple occasions in ways that defence counsel argued went beyond permissible clarification and amounted to testing and challenging the defendant’s account.

Early in the cross-examination, when prosecuting counsel was exploring why the appellant was giving the occupant the charger, the judge interrupted to ask: “Did he not have one himself?” Shortly afterwards, a more extended exchange occurred:

“JUDGE: Just help me with that, when you say the Footasylum bag was in the van.

APPELLANT: Yes.

JUDGE: So, your charger was in your house?

APPELLANT: Yes.

JUDGE: How did you take it from your house to the van?

APPELLANT: Got the charger and put it –

JUDGE: Just in your hand?

APPELLANT: Yes, yes. I got the charger.

JUDGE: Any particular reason to put it in a bag? Why not just hand it over as you took it?

APPELLANT: It was just – I just put it in a bag. No thought behind it, no.”

Defence counsel highlighted this as an example of the judge moving beyond clarification to testing the account’s credibility.

Another passage concerned why the appellant had not simply given the charger to the occupant at the van:

“JUDGE: You did not say to him, ‘It’s in the back of the van, just grab it and then shut the door’?”

This line of questioning was then taken up by prosecuting counsel, who asked: “That would have been the easier option, would it not? Reach over and hand it across to him through your window.”

Further interventions challenged why the occupant had not mentioned the tools during the first visit, and why the appellant had not brought the tools with him on his return. In one particularly lengthy exchange, the judge questioned why the appellant sought the occupant’s help with the tools when “presumably not all builders go around in twos carrying tools”.

The Legal Framework

In allowing the appeal, the principles established in R v Inns [2018] EWCA Crim 1081 were applied where Singh LJ set out six fundamental propositions regarding judicial intervention: First, the jury alone is the tribunal of fact. Second, England and Wales operates an adversarial, not inquisitorial, system, with the judge acting as neutral umpire. Third, whilst judges may ask clarifying questions, this should often wait until after evidence-in-chief. Fourth, it is not the judge’s role to cross-examine the defendant. Fifth, defendants must be able to give their account as they wish, through their own advocate. Sixth, implausible accounts should be exposed by prosecution cross-examination, not judicial intervention. The court emphasised that “unwarranted interventions by a judge may simply prove to be counterproductive”.

The Court’s Analysis

The Court of Appeal accepted that the trial judge had not intended to do more than seek clarification. However, it was concluded that on numerous occasions, the questions went beyond clarifying what the appellant had said or addressing apparent omissions. Instead, they tested the account in a manner highlighting its weaknesses.

“Whether counsel would have raised similar questions is nothing to the point,” the judgment stated, “It was the judge who in fact raised them, and in our view he did so in a manner which would have left the jury with the impression that he was sceptical about the appellant’s defence.” This constituted “an impermissible entry into the arena, giving to the jury the appearance that the judge was taking sides”.

Prosecuting counsel had conceded that some interventions may have been excessive whilst maintaining the overall case was strong. She emphasised that the questions were pertinent ones she might have asked herself, and that the judge’s summing-up had made clear that the jury’s view of the evidence was paramount.

The court considered whether, despite the flawed interventions, the conviction could still be regarded as safe. Several submissions were made about the prosecution’s position: the case was strong overall, the defence account was already implausible, the appellant had not mentioned his explanation when questioned under caution, his evidence-in-chief had proceeded without inappropriate interruption, and the summing-up was fair.

However, the court concluded these factors could not overcome the fundamental problem. The judge had correctly identified the stark issue for the jury: could they be sure the appellant’s account was untrue?

“The credibility of his evidence on that critical issue was therefore central to the jury’s verdict, and on that central topic we conclude that his defence was significantly weakened by the inappropriate interventions of the judge.”

The court was unable to say the conviction remained safe and accordingly allowed the appeal. The Court of Appeal ordered a retrial at Snaresbrook Crown Court on the count of supplying a controlled drug of Class A. The prosecution was directed to serve a fresh indictment within 28 days, with the appellant to be rearraigned within two months. The court noted that the original trial judge had since been appointed and no longer sat at Snaresbrook, removing any concern about the same judge presiding over the retrial. The resident judge at Snaresbrook would allocate the case to an appropriate judge. No reporting restrictions were imposed, with the Court of Appeal noting that “the chances of a prospective Snaresbrook juror reading my words of wisdom is perhaps a slim one”.

Defence counsel raised the matter of bail, noting that the appellant was currently serving his prison sentence but had been on bail before conviction. The court directed that the case be mentioned before the Crown Court as soon as possible for any bail application to be considered with appropriate notice.

Conclusion

This judgment serves as an important reminder of the boundaries of appropriate judicial intervention during criminal trials. Whilst judges undoubtedly have a duty to ensure clarity and assist juries, the line between helpful clarification and impermissible cross-examination can be a fine one.

The case reinforces that in an adversarial system, it is for the prosecution to prove its case and expose weaknesses in the defence account. Even when a defendant’s evidence appears implausible, judges must resist the temptation to test it themselves, however well-intentioned such interventions might be.

As the court in Inns observed, and as this case demonstrates, unwarranted judicial interventions risk being counterproductive. They may give defendants grounds for appeal whilst simultaneously potentially strengthening their case in the eyes of the jury if they appear to be under unfair pressure from the bench.

The difficulty for defence advocates in knowing when and how to object to judicial questioning was implicitly acknowledged in this case. By the time defence counsel sought to raise the matter in the absence of the jury, most of the problematic interventions had already occurred. This highlights the practical challenges facing defence counsel in managing such situations without appearing disrespectful to the court or drawing further adverse attention to their client.

For trial judges, the message is clear: patience and restraint during cross-examination are essential. Questions should be reserved for genuine clarification, and judges must constantly guard against conveying scepticism about a defendant’s account, however implausible it may appear.

The fact that this conviction was quashed despite strong prosecution evidence, fair legal directions, and an appropriate summing-up demonstrates how seriously the appellate courts regard inappropriate judicial intervention in the adversarial process. The appearance of impartiality is just as important as impartiality itself.