AB v Crown Prosecution Service (CPS)

Under the second limb of R v Galbraith, a criminal case must be stopped where, taking the prosecution evidence at its highest, no properly directed jury could safely convict. In a circumstantial case, the court must consider the evidence in combination and ask whether a realistic possibility consistent with innocence remains. Possession of stolen property at a defendant’s home may be consistent with another household member’s guilt and may therefore have insufficient probative value alone. An adverse inference from silence requires a structured and fair inquiry into the fact omitted, the explanation for its omission, and whether guilt is the proper inference. The appeal was allowed because the remaining evidence did not exclude a realistic possibility that another person committed the robbery.

AB, aged 16 at the relevant time, was convicted by Birmingham Youth Court of robbery after stolen property was found in his home, in his brother’s bedroom. The prosecution also relied on AB’s presence near the same underpass on the following evening, when he was wearing a face mask and carrying a knife, and on his silence in interview.

The justices rejected a submission of no case to answer and subsequently convicted AB. On appeal by way of case stated, the central issue was whether, applying the second limb of R v Galbraith, the prosecution evidence, taken at its highest, was sufficient for a properly directed tribunal to convict.

1. Outcome. The appeal was allowed and the conviction for robbery was quashed. The Crown did not seek a retrial.
2. No case to answer. The two questions posed by the justices converged on the Galbraith test. The relevant question was whether, taking the prosecution case at its highest, a properly directed jury could safely convict. The case should have been stopped under the second limb because the evidence remained insufficient.
3. Adverse inference. The court did not decide whether silence in this case could support an inference under section 34 of the Criminal Justice and Public Order Act 1994 or at common law. Even if such an inference were legally available, fairness required a structured inquiry: identify the fact which could reasonably have been mentioned, consider the defendant’s explanation for not mentioning it, and decide whether guilt was the proper inference in all the circumstances. The justices had not undertaken that inquiry. The possibility that AB had remained silent to protect his brother had not been addressed.
4. Other circumstantial evidence. The stolen property found at AB’s home was consistent with his involvement in some way, but did not itself prove that he had committed the robbery. It was also consistent with his brother, or another household member, having brought the property into the house. AB’s presence near the underpass the following evening, ready to rob, supplied only weak support for the proposition that he had committed the earlier robbery. The similarities were limited and did not dispel the realistic possibility that someone else was responsible.
5. The identification evidence was so equivocal that it had no evidential weight either way. The justices’ references to witness credibility did not address the real issue, which was whether AB or someone else had committed the robbery. It was unnecessary to answer the second question separately once the no-case conclusion had been reached.

• High Court (Administrative Court) — On appeal by way of case stated, the court allowed the appeal and quashed the conviction for robbery.
• Birmingham Youth Court — On 23 January 2017, the justices rejected the submission of no case to answer and convicted AB of robbery. He was sentenced on 10 February 2017.