N Ltd & Anor, R. v

A trial judge’s jurisdiction to uphold a submission of no case to answer arises at the close of the prosecution case, when the evidence actually called is known. The judge then decides whether the prosecution has called the minimum evidence capable of establishing the offence. The judge must not decide credibility or competing inferences.

Absent agreed, admitted or assumed facts, a judge has no common-law power before evidence is called to rule that there is no case to answer or to compel an acquittal. The parties may invite an early ruling on a legal issue upon agreed facts, but any acquittal should ordinarily await the end of the prosecution case. Active case management remains proper if the judge does not take control of either party’s case.

The respondents, two companies engaged in bridge works over the River Thames, were prosecuted following a welder’s death during the dismantling of a working platform. The indictment alleged offences under sections 3 and 33 of the Health and Safety at Work Act 1974, with further counts under regulation 10 of the Construction (Health, Safety and Welfare) Regulations 1996.

Before a jury was sworn and before any evidence was called, the trial judge considered witness statements, exhibits and expert material. He ruled that no properly directed jury could convict and directed acquittals. The Crown brought an interlocutory appeal under section 58 of the Criminal Justice Act 2003.

The Court heard only whether the judge had power to make a no-case ruling at that stage. It did not decide whether the prosecution evidence, if heard, could establish the alleged health and safety offences.

1. The Crown’s appeal was allowed. The trial judge had no power, on unagreed material and before any evidence had been called, to determine that there was no case to answer and to direct acquittals.

2. The ordinary no-case jurisdiction, recognised in R v Galbraith (1981) 73 Cr App R 124, is exercised at the conclusion of the Crown case. At that point the judge decides whether the prosecution has called the minimum evidence capable of establishing the offence. The judge may not decide which evidence to accept or which inferences to draw.

3. The authorities did not support an earlier common-law jurisdiction. The evidence may develop differently from witness statements, and in this case a reverse burden was likely to arise. A power exercised before evidence would also blur the respective functions of the prosecution and the judge.

4. The court accepted that parties may invite an early ruling on whether an offence is made out on agreed, admitted or assumed facts. That is distinct from a power to compel acquittal before the Crown case ends. The Crown may, after an adverse ruling, elect to offer no evidence; otherwise a direction to acquit should ordinarily await the proper stage.

5. Judges should continue actively to manage criminal cases, including by encouraging an agreed-facts ruling where appropriate. They must avoid descending into the arena or controlling either party’s case.

6. Under section 61 of the Criminal Justice Act 2003, the interests of justice required a fresh trial before a different judge. The court made no finding on the sufficiency of the prosecution case, and the retrial was not to begin before the pending House of Lords decision in R v Chargot Ltd [2007] EWCA Crim 3032.

• Court of Appeal (Criminal Division). The Crown’s interlocutory appeal under section 58 of the Criminal Justice Act 2003 was allowed on the jurisdictional issue. A fresh trial was ordered before a different judge. [2008] EWCA Crim 1223
• Croydon Crown Court. Before a jury was sworn and before evidence was called, the judge upheld a no-case submission and directed verdicts of acquittal. No citation was stated.