Ikram, R v

Where the prosecution appeals a ruling that there is no case to answer and has nominated an additional ruling, the appellate court should first determine whether that additional ruling materially affected the no-case ruling. The no-case ruling must be assessed on the indictment and evidential case actually before the trial judge.

A prosecution cannot sustain a count by abandoning the pleaded factual basis at the submission stage and relying on a different basis for which the evidence is insufficient. Under the Criminal Justice Act 2003, a ruling is not reversible merely because another conclusion could reasonably have been reached. If the ruling that there is no case to answer is confirmed, the respondent must be acquitted.

The Crown applied to challenge two rulings made at Leeds Crown Court on an indictment alleging misconduct in public office by an elected councillor. The first ruling refused a late amendment to the particulars of the count. The second upheld a submission of no case to answer.

The unamended indictment alleged that the respondent sought contracts between district councils and Nexus Assist Ltd while failing to declare a financial interest in that company. The Crown accepted that it had to prove a financial interest, the seeking of contracts, and a duty to disclose that interest. On appeal, the central issues were whether the no-case ruling was unreasonable and whether the court should address the proposed amendment before that ruling.

1. The court refused the Crown leave to appeal, confirmed the ruling that there was no case to answer, and ordered the respondent’s acquittal.

2. Under section 67 of the Criminal Justice Act 2003, a terminating ruling may be reversed only if it was wrong in law, involved an error of law or principle, or was not a ruling reasonably open to the judge. A different conclusion being reasonably available does not establish that the judge’s conclusion was unreasonable. The court applied the observation in R v B [2008] EWCA Crim 1144 that a trial judge’s balancing of competing considerations may permit more than one reasonable outcome.

3. Where a no-case ruling and another nominated ruling are before the court, the relationship between them determines the appropriate sequence. Here, the refusal to amend the indictment had not prevented the trial continuing. The no-case ruling therefore had to be reviewed on the unamended indictment and the case as conducted at trial. It would have been wrong to assess that ruling as though the amendment had been allowed, particularly because the judge found that the defence would have conducted its case differently.

4. The pleaded allegation required proof that the respondent had sought contracts. The Crown had presented its case on contracts obtainable through the consortium process, but ultimately accepted that there was no evidence to support that basis. Its later reliance on possible off-contract placements did not assist. The judge was entitled to find that the evidence was wholly insufficient to support a conviction on that alternative basis. Since this was an essential element of the prosecution case, the no-case ruling could not be disturbed.

5. The court also considered that the evidence was arguably insufficient to establish a financial interest in the company, as distinct from an interest in its success. It did not finally decide that point because the failure of proof concerning the seeking of contracts was determinative.

6. By section 61(7) of the Criminal Justice Act 2003, confirmation of the no-case ruling required an acquittal. The proposed amendment was consequently moot. The court added that the acquittal did not endorse the respondent’s conduct; the prosecution’s difficulties arose from its late and insufficiently rigorous formulation of the case.

• Court of Appeal (Criminal Division): The Crown’s application under the Criminal Justice Act 2003 was refused. The court confirmed the no-case ruling and ordered the respondent’s acquittal: [2018] EWCA Crim 440.

• Leeds Crown Court: His Honour Judge Marson QC refused the Crown permission to amend the indictment on 23 November 2017 and upheld the respondent’s submission of no case to answer on 6 December 2017.