Masih v R

In a circumstantial case, a submission of no case to answer must be assessed by asking whether a reasonable jury, properly directed, could be sure of guilt and exclude all realistic possibilities consistent with innocence. Questions of assessment and weight remain for the jury. The judge decides only whether the evidence is sufficient for a reasonable jury to draw the necessary inference.

An inference of guilt cannot fill a critical evidential gap by speculation. Where the evidence leaves a realistic possibility of accident, the case must be withdrawn from the jury and a resulting conviction is unsafe.

The appellant was convicted of murder at Warwick Crown Court after the deceased fell from the balcony outside the appellant's flat. The prosecution case was wholly circumstantial. It alleged that the appellant had assaulted the deceased, tried to remove him from the building, and then propelled him over the balcony.

The appellant's account was that the deceased, who had consumed alcohol and drugs, accidentally fell while attempting to climb from the balcony. At the close of the prosecution evidence, the trial judge rejected a submission of no case to answer. The appellant appealed against conviction on that single ground.

The central issue was whether a reasonable jury could safely exclude accident and infer that the appellant caused the deceased's fatal fall.

1. Appeal allowed; conviction quashed. The prosecution evidence should have been withdrawn from the jury because it could not safely exclude the realistic possibility that the deceased's fall was accidental.

2. The applicable no-case test was whether a reasonable jury, properly directed, could be sure that the appellant was guilty. In a wholly circumstantial case, that required the jury to be capable of excluding all realistic possibilities consistent with innocence. The trial judge was concerned with evidential sufficiency, not with resolving questions of weight or deciding what inference the judge would draw.

3. The court assumed in the prosecution's favour that the appellant had lied about aspects of the violence in the flat and that aspects of his account were implausible. Those assumptions did not answer the critical question: whether the evidence could safely exclude an accidental fall.

4. There was no evidence that the appellant was on the walkway during the critical period after he had returned to his flat. The eyewitness could hardly have failed to see him had he been there. Other evidence was capable of supporting, rather than excluding, the possibility that the deceased had climbed onto or stood precariously on the balcony rail. His head injury and consumption of alcohol and drugs also meant that rational behaviour could not be assumed.

5. The appellant's conduct after the fall was consistent with guilt, but was also consistent with an attempt at self-preservation by a person who had committed serious violence and feared blame for a death. To infer that he emerged at the precise moment the eyewitness looked away and propelled the deceased over the rail would fill a critical lacuna by speculation rather than evidence.

• Court of Appeal (Criminal Division): In Masih v R, [2015] EWCA Crim 477, the court allowed the appeal against conviction and quashed the murder conviction as unsafe.

• Warwick Crown Court: The appellant was convicted of murder on 23 June 2014 after the trial judge rejected a submission of no case to answer.