Corwn Prosecution Service v S

On a submission of no case to answer, the court must apply the Galbraith test: evidence should be withdrawn only where, taken at its highest, a properly directed tribunal could not properly convict. Where the strength of the evidence depends on witness reliability or credibility, the issue ordinarily belongs to the fact-finder at trial. Magistrates who are both judges of law and fact must nevertheless determine the submission at the legal stage and must not resolve factual inconsistencies prematurely. In a joint enterprise case, evidence that the defendant encouraged an assault or prevented assistance may amount to a case to answer even if an alleged kick by the defendant was not proved to have connected.

The Crown Prosecution Service appealed by case stated from the Blackpool Youth Court, which dismissed an information alleging that S had assaulted Nicola Adcock, occasioning actual bodily harm. The prosecution relied principally on joint enterprise, alleging that S encouraged Phoebe, who admitted assaulting Nicola, and prevented Ainsley from intervening. It also alleged that S himself kicked Nicola.

The Youth Court treated the prosecution evidence as weak and inconsistent and ruled that there was no case to answer. The central issue was whether a reasonable, properly advised Bench could have reached that conclusion under the Galbraith test.

1. The appeal was allowed and the matter was remitted to the Blackpool Youth Court for trial by a differently constituted Bench.
2. Under the test in Galbraith 73 Crim App R 124, a case must be stopped where, taking the prosecution evidence at its highest, a properly directed tribunal could not properly convict. Where the evidence is capable of supporting guilt on one possible view and its strength depends on witness reliability or credibility, the case must proceed to trial.
3. Although the Youth Court was both judge of law and tribunal of fact, it was required to apply that legal test when considering the submission. It wrongly treated relatively minor inconsistencies and criticisms of Nicola’s credibility as sufficient to stop the case, without adequately addressing the materially consistent evidence of Nicola, Ainsley and Mrs Jones.
4. The evidence that S encouraged Phoebe to assault Nicola, and that he prevented Ainsley from intervening, provided evidence capable of supporting the prosecution’s joint enterprise case. The evidence therefore amounted to a case requiring an answer.
5. Mr Justice Burton agreed, adding that the magistrates appeared to have been misled by the issue whether S’s kick connected. That issue might have been relevant if S were charged as the principal assailant, but in a joint enterprise case the alleged kick remained relevant even if it did not connect.
6. An order was made for payment of the claimant’s costs from central funds, in the sum of £2,281.25 including VAT.

• High Court (Administrative Court): [2007] EWHC 3313 (Admin) allowed the appeal by case stated and remitted the matter to the Blackpool Youth Court for trial by a differently constituted Bench.
• Blackpool Youth Court: dismissed the information after upholding a submission of no case to answer.