Goddard & Anor v R

On a submission of no case to answer, the judge must apply the Galbraith test. Where guilt depends on an inference, the question is whether a reasonable jury, properly directed and taking the prosecution case at its highest, could be sure of that inference. This entails rejecting realistic possibilities consistent with innocence, but it does not replace the traditional test.

A conspiracy requires proof that each alleged conspirator intended, when the agreement was made, that the unlawful plan would be carried out. Where the evidence is equally consistent with sexual fantasy and executory intent, the case must be withdrawn from the jury. Unrelated possession of indecent images cannot prove either an agreement to commit a separate offence or an intention to execute it.

The appellants were convicted at Reading Crown Court of conspiracy to rape a child under 13 after an exchange of text messages concerning a proposed rape. Each had also pleaded guilty to offences involving indecent images of children. The prosecution contended that the messages evidenced a real agreement and an intention to carry it out. The appellants contended that the exchange was a mutually gratifying fantasy.

On appeal, they challenged the rejection of their submissions of no case to answer, the adequacy of the jury directions on inferred intent, and the admission and use of bad-character evidence. The central issue was whether the prosecution evidence could permit a properly directed jury to be sure that, when any agreement was made, both appellants intended to put it into effect.

1. The conviction appeals were allowed and the conspiracy convictions were quashed. The court applied the classic no-case test in R v Galbraith [1981] 1 WLR 1039. In an inferential case, the issue is whether a reasonable jury, properly directed and viewing the evidence at its highest for the prosecution, could draw the adverse inference. It is not whether every reasonable jury would do so.

2. The prosecution had to prove that each appellant intended, at the time of the alleged agreement, that the rape would be carried out. The available evidence could not support that conclusion. The messages were as consistent with fantasy as with an intention to execute a plan. The appellants had never met, had not arranged a practical meeting, and had taken no step to advance the alleged plan. Their interview silence could be considered, but carried very little weight in that evidential context.

3. The court therefore held that no reasonable jury could safely infer executory intent. The judge should have accepted the submission of no case to answer.

4. Although unnecessary to the disposition, the court stated that, where an unexecuted conspiracy depends on inference, a summing-up should identify the evidence capable of supporting executory intent and make clear that the jury must be sure the matter was not mere fantasy.

5. The court also stated that the indecent-image offences should not have been admitted under section 101(3) of the Criminal Justice Act 2003 or section 78 of the Police and Criminal Evidence Act 1984. They could not prove either an agreement between the appellants or an intent to execute an unrelated plan, and were highly prejudicial. If properly admitted, they required precise limiting directions and a warning against reasoning from revulsion to guilt.

6. The other convictions remained. Paragraphs 2 and 4 of the Sexual Offences Prevention Orders were to be deleted.

• Court of Appeal (Criminal Division). In [2012] EWCA Crim 1756, the court allowed the conviction appeals, quashed the conspiracy convictions, and directed amendment of the Sexual Offences Prevention Orders.
• Reading Crown Court. Following a jury trial before HHJ John, both appellants were convicted on 23 June 2011 of conspiracy to rape a child under 13 and were sentenced to imprisonment. They had earlier pleaded guilty to offences involving indecent images of children.