Director of Public Prosecutions v DNL

A trial judge may raise a no-case submission on the court’s own initiative and, where concerned that the prosecution evidence is insufficient, may be required to do so. The intervention must not involve stepping into the arena or interfering with trial strategy.

At the first limb of the Galbraith test, the question is whether there is evidence capable of proving the alleged offence. A young child need not use medically precise anatomical language. Evidence that a defendant put his penis inside the complainant’s bum, considered in context and alongside evidence of pain, may establish a case of anal penetration. Credibility weaknesses and inconsistencies ordinarily fall to be assessed under the second limb after the evidence is complete.

The Director of Public Prosecutions appealed by way of case stated against District Judge Holland’s ruling that there was no case to answer on two allegations of rape contrary to section 5 of the Sexual Offences Act 2003. The charges alleged that DNL had penetrated the anus of a boy under 13 on one occasion and on at least two further occasions.

The District Judge considered that the prosecution had not proved penetration because the child’s use of the word “bum” did not establish whether he meant the buttocks or the anus. The questions for the High Court were whether the judge was entitled or required to raise the issue, and whether the evidence reasonably permitted a finding of no case to answer.

1. The appeal was allowed. The trial judge was entitled, and on the facts required, to raise the no-case issue with both parties. Rule 24.3(3)(d) of the Criminal Procedure Rules 2020 expressly permits the court to act on its own initiative, provided the prosecutor has an opportunity to make representations.
2. Intervention must not cause the judge to step into the arena, particularly in relation to trial strategy. Whether intervention is appropriate is fact-specific. It is unhelpful to describe such intervention generally as unusual or exceptional.
3. The applicable test was the two-limb test in R v Galbraith. The first limb is engaged where there is no evidence that the crime was committed. Under the second limb, the court considers whether, taking the prosecution evidence at its highest, no properly directed tribunal could convict, or whether the evidence raises questions of reliability and inconsistency that remain within the tribunal’s province.
4. The District Judge erred in finding that there was no evidence of penetration. The complainant’s parents gave evidence of his disclosure that DNL had put his penis into his bum and that it hurt. He repeated the account in his recorded evidence and in cross-examination, where he distinguished touching from putting the penis inside. The evidence had to be assessed in the context of the complainant’s age and inability to use medically precise vocabulary.
5. The inconsistencies concerning the number and continuation of incidents were matters for assessment at the conclusion of the evidence. They did not justify finding that the complainant’s evidence as a whole lacked credibility. The evidence was clear, direct and compelling enough to raise a case to answer.
6. Having raised the issue, the judge should also have afforded the prosecution an opportunity to apply to amend the charges. The indication that such an application would require persuasion effectively shut out a possible sexual-assault charge. That observation was additional to the basis on which the appeal was allowed.

• High Court (Administrative Court): Appeal by way of case stated allowed against the District Judge’s ruling of 11 July 2025.
• Leeds Youth Court: District Judge Holland ruled that there was no case to answer and entered not-guilty verdicts on both charges.