No Case To Answer

Submission of No Case To Answer

submission of no case

This is an application to the judge in the Crown Court, magistrates' court, or district judge in the magistrates' court to dismiss the case due to lack of evidence for the defendant to answer. Once the prosecution has outlined its case, the defence may decide to make a submission of no case to answer. This should be upheld if there is no evidence to prove an essential element of the offence charged, or if the evidence presented by the prosecution has been so discredited by the defence that it is manifestly unreliable and no reasonable tribunal would convict on it. If a submission of no case is upheld, the accused goes free. If not, the trial continues.

The Defence case

The defence may file a submission of no case to answer if the prosecution's case is weak due to a lack of evidence to prove the offence or insufficient evidence to support a conviction. Under rule 24 CrimPR, if there is a case to answer, the defence may wish to call evidence, but does not have to. The defendant is a competent witness, and therefore can give evidence, but is never compellable, so cannot be forced to give evidence. Once the defence evidence has been presented, the defence can deliver a closing speech. The prosecution does not have the right to deliver a closing speech, but the relative informality does permit them to ask questions when and if they become relevant.

The verdict

It is possible for judges and magistrates to determine on their own that there is no case to answer; but, they are required to provide the prosecution the chance to make representations in response as to why there is a case to answer. Even if the judges or magistrates decide there is no case to answer on their own initiative, they will often ask the defence to make an application. If the summary trial is being presided over by a district judge, the judge will usually announce his or her decision immediately. Lay magistrates tend to retire to consider their verdict. Unlike the jury in a trial on indictment, the judge at summary trial must deliver a verdict based on the offence charged (see Malcolm v DPP [2007] 1 WLR 1230). Under s.142 of the Magistrates’ Courts Act 1980, if the magistrates then have second thoughts, they can direct that the case be re-heard by different justices.

When can a submission be made?

1. Usually at the end of the prosecution case

Because it often takes place around the halfway point of the trial (that is, after the conclusion of the case presented by the prosecution and before to the beginning of the case presented by the defence), a submission of no case to answer is sometimes referred to as a "half-time" submission. The reason for this is because a judge or magistrate cannot make an appropriate conclusion about the adequacy of the prosecution's evidence until all of the prosecution's evidence has been heard. This is because a judge or magistrate cannot properly make a decision until all of the evidence has been heard.

2. Occasionally during the case, where all the remaining prosecution evidence is agreed

A submission of no case to answer is normally made at the end of the prosecution case; however, in certain circumstances, it is permitted to be made before the end of the prosecution case. This can only happen at a stage of the trial where the remainder of the prosecution case is agreed evidence, and therefore the judge and the advocates are aware of exactly what the evidence amounts to.

3. Rarely after the defence case

After the defence has presented their side of the case, there is a possibility that the prosecution may argue that there is no case to answer. It would only come up in a circumstance in which the evidence presented by the defence had been so successful in undermining the case presented by the prosecution that there was no longer enough evidence to warrant a conviction. A submission of no case may only be made for certain criminal acts in the Crown Court after the hearing of all relevant evidence, including that which was presented in the defensive case. (Rule 25.9(3) of the Criminal Procedure) This is relevant in cases when the accused party is accused of:

1. an offence under section 5 of the Domestic Violence, Crime and Victims Act 2004 that involves causing or permitting the death of a child or vulnerable adult, or allowing them to suffer serious physical harm; and

2. an offence under sections 18 or 20 of the Offences against the Person Act 1861 that involves murder, manslaughter, attempted murder, or harming someone.

How does a judge decide if there is no case to answer?

If there is no case to answer, how does a court make that determination? The judge in the Crown Court must determine whether the evidence would allow a jury to find a defendant guilty. The magistrates or District Judge handle legal matters in the magistrates' court and serve as the factual tribunal, weighing the evidence and rendering a decision. They must determine whether they might fairly convict on the facts when a submission of no case to answer is made, which is why they function as both a jury and a judge. The Criminal Procedure Rules' rule 25.9(2)(e), which specifies the test and process, reads as follows:

“… at the end of the prosecution evidence, on the defendant’s application or on its own initiative, the court— (i) may direct the jury (if there is one) to acquit on the ground that the prosecution evidence is insufficient for any reasonable court properly to convict, but (ii) must not do so unless the prosecutor has had an opportunity to make representations;”

The role in the Crown Court is governed by Criminal Procedure Rules, Part 25, Rule 25.9(2)(e), while the position in the magistrates' court is governed by Part 24, Rule 24.3(3)(d), which is almost equivalent. The Criminal Procedure Rules' standard that states that "the prosecution's evidence is insufficient for any reasonable court properly to convict" is derived from and enhanced by the standard that the Court of Appeal established in the R v. Galbraith 73 Cr.App.R.124 case.

The Galbraith Test

Galbraith establishes when there is no proof the defendant committed a crime, the first situation in which a no case to answer motion will be granted is that situation. In the second case, the evidence may be ambiguous, contradictory, or flimsy. Whether a properly guided jury might find the defendant guilty based on the presented evidence is the factor that the judge will consider. Should they be unable to, the matter will be dropped. The judge has the last say on this matter.

“(1) If there is no evidence that the crime alleged has been committed by the defendant, there is no difficulty - the judge will stop the case.

(2) The difficulty arises where there is some evidence but it is of a tenuous character, for example because of inherent weakness or vagueness or because it is inconsistent with other evidence.

(a) Where the judge comes to the conclusion that the prosecution evidence, taken at its highest, is such that a jury properly directed could not properly convict upon it, it is his duty, upon a submission being made, to stop the case.

(b) Where however the prosecution evidence is such that its strength or weakness depends on the view to be taken of a witness’s reliability or other matters which are generally speaking within the province of the jury and where on one possible view of the facts there is evidence upon which a jury could properly come to the conclusion that the defendant is guilty, then the judge should allow the matter to be tried by the jury.”

Galbraith refers to ‘the jury’ but note that it applies equally to magistrates. The Galbraith test means there are two separate limbs for the defence to consider when making a submission of no case to answer:

Limb 1

There is no evidence upon which the jury could convict; or

Limb 2

There is some evidence, but it is so poor that it would be unsafe to leave it to the jury.

Application of Galbraith

The application of the Galbraith test to cases based on circumstantial evidence was considered in Sardar [2016] EWCA Crim 1616, where Sir Brian Leveson P cited (inter alia) this passage from King CJ’s judgment in Questions of Law Reserved on Acquittal (No 2 of 1993) (1993) 61 SASR 1 as one that correctly reflects English law:

“If there is direct evidence which is capable of proving the charge, there is a case to answer no matter how weak or tenuous [the judge] might consider such evidence to be. If the case depends upon circumstantial evidence, and that evidence, if accepted, is capable of producing in a reasonable mind a conclusion of guilt beyond reasonable doubt and thus is capable of causing a reasonable mind to exclude any competing hypotheses as unreasonable, there is a case to answer. There is no case to answer only if the evidence is not capable in law of supporting a conviction. In a circumstantial case, that implies that even if all the evidence for the prosecution was accepted and all inferences most favourable to the prosecution which are reasonably open were drawn, a reasonable mind could not reach a conclusion of guilty beyond reasonable doubt, or to put it another way, could not exclude all hypotheses consistent with innocence, as not reasonably open on the evidence.”

THE CIVIL LITIGATION HANDBOOK

Check out the Civil Litigation Handbook if you want to learn more about civil litigation and applications such as no case to answer or no real prospect of success (Civil). The writing style and organisation of the book are friendly. It outlines the important milestones in the process and offers helpful advice on how to learn them. The material is structured and written such that a pupil barrister or trainee solicitor, or a final-year law student, may quickly understand how to apply the knowledge they have learned in Civil Litigation module.