DZ & JZ, R. v

On a submission of no case, the question is whether there is evidence on which a properly directed jury could convict. The judge must not substitute an assessment of the likely verdict, or of the verdict the judge would reach.

Where defendants accept presence at the scene, disputed evidence identifying them as participants raises issues of reliability and truthfulness for the jury. Prior discussion between witnesses, possible collusion, and weaknesses in an identification procedure may require careful warnings. They do not justify withdrawing the case where the evidence remains capable of supporting conviction.

The Crown appealed under section 58 of the Criminal Justice Act 2003 against a terminatory ruling made at Woolwich Crown Court on 20 March 2012.

The trial concerned alleged sexual offences against a 13-year-old girl in a basement. DZ and JZ accepted that they were at the scene, but denied sexual activity and disputed that they had been in the basement as alleged. The trial judge directed their acquittal because he considered the identification evidence incapable of supporting conviction.

The central issue was whether the evidence, including the complainant's account and the respondents' detailed knowledge of events in the basement, was capable of supporting conviction despite evidence that the two young witnesses had discussed the perpetrators and had used social media material in making identifications.

1. The Crown's appeal was allowed. The trial judge had wrongly withdrawn the allegations against DZ and JZ from the jury.

2. The applicable test was that derived from R v Galbraith (1981) 73 Cr App R 124, as recently emphasised in R v F(S) [2011] 2 Cr App R 28. The question was whether there was evidence on which a properly directed jury could convict. It was not whether the judge considered conviction likely or would himself have convicted.

3. This was not, in substance, a visual-identification case. Both respondents accepted presence at the scene. The real issue was whether the complainant reliably and truthfully identified them as sexual assailants. Their police interviews supplied powerful evidence that they had been inside the basement, rather than merely at its periphery, because each displayed detailed knowledge of what occurred there.

4. The witnesses' earlier discussions, their concealment of prior visits to the basement, and their use of photographs and a later identification procedure all bore materially on credibility and reliability. The evidence could support warnings about discussion and possible collusion. It did not require the case to be stopped. Those matters were for the jury to assess in the light of the competing evidence and counsel's submissions.

5. Pursuant to section 61(4)(a) of the Criminal Justice Act 2003, the court ordered the proceedings resumed.

1. Court of Appeal (Criminal Division) Allowed the Crown's appeal in [2012] EWCA Crim 1845 and ordered the proceedings resumed under section 61(4)(a) of the Criminal Justice Act 2003.

2. Woolwich Crown Court On 20 March 2012, made a terminatory ruling directing the acquittal of DZ and JZ on the relevant counts.