Broadhead, R. v

On a submission of no case to answer, the judge must take the prosecution evidence at its highest but assess it as a whole. The judge must take account of its weaknesses as well as its strengths. The case must be stopped where a properly directed jury could not properly convict.

On an appeal alleging a wrongful refusal of such a submission, the appellate court considers the evidence available at the close of the prosecution case. Later defence evidence is excluded. A defendant's interview silence cannot strengthen the prosecution case under Criminal Justice and Public Order Act 1994, section 34, unless the defendant relies at trial on a fact not mentioned when questioned or charged.

The appellant was convicted of murder at Hull Crown Court on 15 November 2005. The Crown case was wholly circumstantial. There was no direct or forensic evidence that he had been present during, or participated in, the fatal attack.

At the close of the prosecution case, the trial judge rejected a submission that there was no case to answer. The judge relied on the appellant's presence at the house, his conduct and remarks after the body was discovered, his departure with a co-accused, and his silence in interview.

The appellant appealed by leave of the single judge. The central issue was whether the evidence then available could properly support a conviction for participation in the murder.

1. Appeal allowed. The conviction for murder was quashed. The submission of no case to answer should have succeeded at the close of the Crown case.

2. The court applied the test in R v Galbraith 73 Cr App R 124. Although credibility was for the jury, the judge had to assess the prosecution evidence in the round. This required attention to its weaknesses as well as its strengths, consistently with the point approved from R v Shippey [1988] Crim LR 767.

3. The trial judge had not addressed significant weaknesses. There was no evidence that the appellant was present during the attack. A witness who saw the deceased apparently dead did not see him there. The bloodstained room, absence of the deceased's blood on the appellant, and absence of significant marks of conflict were also material. The judge had inaccurately treated the appellant as having shown no reaction to the discovery of the body.

4. The appellant's conduct after the event could bear innocent explanations. His departure, remark about a story, and intervention in a telephone call did not permit a jury properly to be sure that he had participated in the attack.

5. Section 34 of the Criminal Justice and Public Order Act 1994 did not permit the judge to use interview silence as support for the Crown case. Under R v Moshaid [1998] Crim LR 420 and the distinction in R v Webber [2004] 1 Cr App R 40, merely testing the prosecution evidence did not amount to relying on an unmentioned fact. The absence of an explanation could not itself add strength to the evidence.

6. Following R v Patrick Smith [1999] 2 Cr App R 238, the erroneous ruling made the conviction unsafe. The court therefore disregarded evidence later given in the defence cases.

• Court of Appeal (Criminal Division) — Allowed the appeal and quashed the murder conviction: [2006] EWCA Crim 1705.

• Crown Court at Hull — On 15 November 2005, convicted the appellant of murder before His Honour Judge Mettyear.