Keeping Up Is Hard to Do:
A Trial Judge’s Reading Blog


In Bhatt, R. v [2022] EWCA Crim 926, July 7, 2022, the accused was tried for a sexual offence. During the cross-examination of the complainant, the court took a break.  When the trial recommenced, the following exchange took place between the trial judge and defence counsel:

JUDGE: Right, so Mr Burton, I am going to impose a time limit. Now, it maybe that 20 minutes is too short. What would you suggest?

COUNSEL: Your Honour, could I ask for 40 minutes, [which I think?] [inaudible] 35 minutes. I think I’ve been on [my feet?] for about 15 minutes but I appreciate your [inaudible] said 45 minutes outside, but because –

JUDGE: Right, I think that is at the very outside, but I am going to say a time limit, and it will be imposed. I have not got a bell, but it will be imposed. I am going to say 35 minutes.

COUNSEL: Thank you.

The accused was convicted.  In appealing against conviction, the accused agued that the trial judge” unfairly undermined the Defence by his imposition and enforcement of an arbitrary time limit on cross-examination” (at paragraph 4).

The Law:

The Court of Appeal described a trial judge’s authority to set a time limit on cross-examination, in the following manner (at paragraphs 53 and 54):

…We accept (as did Mr Scobie) that the imposition of time-limits and their enforcement are commonplace in Crown Court Trials, particularly those involving allegations of sexual offending, and that the discretion of the trial judge in relation to the setting and enforcement of time-limits is broad, the touchstone being that the fairness of the trial must not be compromised…In the present case, the Judge was confronted by a witness who was finding matters distressing. He took the view that prolonged cross-examination would lead to diminishing returns and increased episodes of distress and that it was not in the interests of the Appellant for that to happen: see [14] above. In addition he took the view that imposing a time limit was appropriate to protect D. Those were views that he was fully entitled to take and we do not criticise his conclusion that cross-examination should be curtailed. It appears that the Judge may have been under a misapprehension about how long the cross-examination had lasted when he came to formulate his view about how much longer Defence Counsel should have; and it also seems to us that just under 90 minutes in total is quite tight given the amount of material that Defence Counsel had to cover in order to put the main features of his client’s case. However, it was undoubtedly within the range of durations that the Judge was entitled to impose; and the time limit, though tight, cannot reasonably be described as arbitrary. Rather it can and should be seen as the Judge’s assessment of what further period of cross-examination best protected both the Appellant and D when the time limit was first set. Nor would we criticise the manner in which the time limit came to be set, which we have set out at [12]-[15] above. The gradual movement towards imposing the time limit were characterised by proper and courteous discussion with counsel leading to the Judge’s decision.

In some cases there may be compelling reason why a time-limit, once set, should be enforced to the minute, either to protect a witness or because counsel is making poor use of the time allowed to them. It is not clear that this was such a case. There is no sign that D was distressed in the minutes approaching 12 noon, and her reply to Defence Counsel’s rolled-up question, when it came, shows that she was still fully able to maintain her evidence. Defence Counsel had been using his time competently and had covered considerable ground in the time he had been given. In our assessment, he needed only a very few minutes – five at the outside – to put his case on the family meeting properly to the main prosecution witness. It would have been relatively easy for the Judge, who was clearly fully in control of his Court, to explain both to D and to the Jury why her cross-examination was to be prolonged for that short while.

This Case:

In this case, however, the Court of Appeal concluded that the trial judge erred in the manner in which he enforced the guillotine (at paragraph 56):

Where we part company with the Judge is in his handling of the enforcement of the guillotine. As Mr Munday rightly accepted, it does not make for happy reading. It is, in our view, a marker of the unsatisfactory manner in which the termination was handled that experienced and competent Defence Counsel felt compelled to suggest in front of the jury that he was being “harangued”. The Judge did not agree. We have not heard the voices and so cannot gauge the tone of voice that was being employed; but it is sufficient to say that, on the basis of the transcript, we can understand why Defence Counsel responded as he did. It may not be necessary to try to analyse precisely what went wrong when, in our judgment, the overall effect was clear, but some points may be identified, dealing first with the passage we have set out at [17] above. First, to start by saying “Twelve o’clock, so this is your last question” can only be described as peremptory since it would be obvious that Defence Counsel was unprepared for the directive that he had only one question. Whether Defence Counsel should have been prepared is of secondary importance since the Judge had to deal with how things stood at 12 noon. Second, it was really no answer to say, when Defence Counsel pointed out the importance of the family meeting, that he had been given notice, that it was now 12 o’clock and that it was now time for a last question. That response smacks of an unexplained and unnecessary adherence to form rather than the result of a reappraisal of the balance of fairness to D and the Appellant. Third, the question “Do you want to ask another question or not?” seems to us in context to be confrontational rather than judicially firm, an impression that is heightened by the Judge saying a moment later “Ask your last question or sit down.”