In Malcolm v The Crown [2011] EWCA Crim 2069, the Court of Appeal held that “the way in which the Recorder descended into the arena was inappropriate … the combined effect of his constant repetitious criticism of the inadequacies of the defence statement … together with the directions he gave to the prosecution about witnesses who were to be called, would have created in the mind of the informed observer the perception that there was a real possibility that the Recorder had become biased against the defendant”. Judges are entitled to invite the prosecution to consider putting further evidence before the jury but “none of us have come across a case in which the judge has used the kind of language used by the Recorder in this case”.

In R v Tedjame-Mortty, Judge Mitchell was told that a work experience student in the public gallery said he had been looked at threateningly during the trial by the defendant who approached him outside court, which caused him to feel intimidated. Without first informing defence counsel, the judge questioned the defendant about the allegation. The Court of Appeal held “the judge was rude (“shut your mouth and listen”), he was harsh (“how dare you speak to a member of the public”), and he was sarcastic (“You are really sorry? Yes, you will be really sorry”). Both counsel were taken aback by the judge’s diatribe”; the judge’s conduct was “wholly inappropriate”. Lord Justice Toulson said the case was “happily unprecedented and hopefully won’t happen again”.