Lewis & Anor, R v

On a prosecution appeal from a terminating ruling under the Criminal Justice Act 2003, the question is whether the ruling was one which the trial judge could reasonably make. In a circumstantial case, the evidence must be assessed at its highest for the prosecution. It must nevertheless be capable of supporting a conviction by a properly directed reasonable jury. Suspicion, even in highly suspicious circumstances, does not suffice.

Where the prosecution alleges that two defendants acted as joint principals, it must adduce evidence capable of proving that each participated with the required intent. If the jury could only be sure that one of two defendants committed the offence, but could not be sure which, both must be acquitted.

The Crown sought leave to appeal a terminating ruling made by the Crown Court at Maidstone. At the close of the prosecution case, the trial judge upheld submissions of no case to answer by R v Lewis and Marshall-Gunn, who were charged with murder, and discharged the jury.

The case was wholly circumstantial. The Crown alleged that both defendants returned to a car park and acted as joint principals in setting fire to the deceased. It did not advance a joint-enterprise case based on one defendant assisting or encouraging the other.

The central issue was whether the judge's ruling was one which it was not reasonable for him to make under section 67 of the Criminal Justice Act 2003.

1. Appeal dismissed. The court held that the judge had correctly directed himself and that his terminating ruling was one which it was reasonable to make. The statutory question was not whether the Court of Appeal might have reached a different view, but whether the ruling was unreasonable.

2. The prosecution case had to be assessed at its highest. In a circumstantial case, the essential question is whether there is evidence on which a properly directed reasonable jury could convict. The court applied that approach, supported by Khan [2013] EWCA Crim 1345, and held that suspicion could not fill evidential gaps.

3. The Crown alleged that both defendants were joint principals, each having the intent to kill or cause really serious harm. The evidence did not permit a safe inference that both had participated on that basis. In particular, the evidence against the second defendant did not establish a shared hostile intent, and the DNA on the lighting-fluid bottle did not show when or how it came to be deposited.

4. The evidence admitted of several possibilities: both defendants acting as principals; one acting alone; one assisting or encouraging the other; or an accidental or self-inflicted fire. The court followed Bellman [1989] 1 Cr. App. R 252: if the jury can be sure that one of two people committed the crime but cannot be sure which, both must be acquitted. Although a joint-enterprise case can sometimes succeed without identifying the principal and accessory, as explained in Jogee [2016] 1 Cr. App R 31, that was not the case advanced by the Crown.

5. The ruling was therefore confirmed, the appeal dismissed, and both defendants acquitted of murder.

• Court of Appeal (Criminal Division) — Dismissed the Crown's appeal under the Criminal Justice Act 2003 and confirmed the terminating ruling: [2017] EWCA Crim 1734.

• Maidstone Crown Court — On 22 September 2017, HHJ Statman accepted submissions of no case to answer on the murder count at the close of the prosecution case and discharged the jury.