A trial judge's summing up that repeatedly undermines the defence case through adverse commentary, including putting arguments against the defence not advanced by the Crown Prosecutor, exceeds the permissible limits of judicial comment on the facts and constitutes a substantial miscarriage of justice to which the proviso should not be applied. The trend of authority requires greater judicial restraint in adverse comment than older authorities such as R v Clewer might suggest. The phrase 'you might think', when used by a judge to introduce argumentative propositions, is a term of advocacy inappropriate for judicial use in that context.
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