Trial Judges May Revoke a “No Case to Answer” Terminatory Ruling During a Section 58 CJA 2003 Adjournment: A Second Ruling Is a Negation, Not a “Step in Consequence”

1. Introduction

In Clarke, R. v [2026] EWCA Crim 184, the Court of Appeal (Criminal Division) considered whether a Crown Court judge, having upheld a defence submission of no case to answer on an indictment count (a “terminatory ruling”), could lawfully change his mind and reverse that ruling during an adjournment granted to the prosecution to consider an appeal under section 58 of the Criminal Justice Act 2003.

The applicant had pleaded guilty to serious sexual offences on other counts but was tried for attempted rape (count 1). The key procedural issue arose mid-trial: the judge initially acceded to a no-case submission on attempted rape, then—within hours—revoked that ruling and left the count to the jury, which convicted.

Because the case involved a sexual offence complainant, the court noted the continuing operation of the Sexual Offences (Amendment) Act 1992 anonymity regime.

Parties and posture

• Applicant/defendant: convicted after trial of attempted rape (count 1), following guilty pleas on other counts.
• Respondent: the Crown.
• Application: leave to appeal against conviction on count 1, focused on the legality/fairness of the judge’s reversal of the initial terminatory ruling.

Key issues

1. Does section 58 CJA 2003 prevent a trial judge from reversing an earlier “no case to answer” ruling while the prosecution is considering whether to appeal?
2. If not, does the judge have a general discretion to reverse an earlier ruling before verdict?
3. If yes, was that discretion exercised lawfully and fairly here (including any “legitimate expectation” argument)?

2. Summary of the Judgment

The Court of Appeal refused the application. It held:

• Section 58 CJA 2003 does not preclude a judge from reversing a terminatory no-case ruling during a prosecution adjournment to consider appeal.
• The judge’s later ruling was not a “step in consequence” of the earlier ruling within section 58(11); it was a negation of it.
• A trial judge generally has a discretion to reverse earlier rulings before the jury’s verdict; no statutory wording here removed that discretion.
• The applicant’s claimed legitimate expectation that the first ruling would stand was insufficient; any “disappointment” did not amount to unfairness vitiating conviction.

The court also recorded that, despite the absence of direct prior authority on this precise point, it gave leave for the judgment to be reported and relied upon in future cases.

3. Analysis

3.1 Precedents Cited

R v Galbraith [1981] WLR 1039

The sole cited authority was R v Galbraith [1981] WLR 1039, which supplies the orthodox two-stage test governing a submission of no case to answer:

• Stage 1: If there is no evidence that the alleged offence has been committed by the defendant, the case must be stopped.
• Stage 2: If there is evidence but it is such that a properly directed jury could not properly convict (often because it is inherently weak or inconsistent), the judge may withdraw the case from the jury.

The Court of Appeal noted it was uncontroversial that the trial judge applied the Galbraith framework on both occasions. The appeal did not challenge the substantive correctness of the second ruling (that there was a case to answer). This mattered: the appellate focus became purely procedural/statutory—whether the judge could reverse himself—rather than whether he should have left the count to the jury as a matter of evidential sufficiency.

3.2 Legal Reasoning

(a) Statutory construction of section 58 CJA 2003

Section 58 creates a prosecution right of appeal against certain rulings (including “no case to answer”) made at an “applicable time.” Crucially:

• Section 58(3): the ruling “is to have no effect” whilst the prosecution can take steps under s.58(4).
• Section 58(11): if a ruling has no effect, “any consequences of the ruling” have no effect; the judge may not take steps “in consequence of the ruling,” and if he does, they have no effect.

The applicant argued that the judge’s second ruling was itself a “step in consequence” of the first, and therefore ineffective. The Court of Appeal rejected this. Its key interpretive move was to distinguish:

• Steps “in furtherance of” (i.e., implementing) the no-case ruling—such as directing an acquittal, discharging the jury, or otherwise finalising the termination of the count; from
• A step that negates the ruling—namely withdrawing the earlier decision and restoring the count to be tried.

On the Court’s analysis, s.58(11) is designed to prevent trial progression on the basis that the count is dead while the prosecution considers appeal (avoiding irreversible procedural consequences that would undermine the statutory appeal mechanism). It is not designed to freeze the judge into an acknowledged error and force the parties into a potentially unnecessary Court of Appeal process.

(b) The existence of a general discretion to revisit rulings mid-trial

Once the Court rejected the applicant’s reading of s.58, the remainder followed relatively directly: it was “uncontroversial” that a criminal trial judge generally has discretion to reverse earlier rulings during the course of a trial before verdict. The applicant effectively accepted this, arguing only that s.58 displaced that discretion. It did not.

(c) Exercise of discretion and “legitimate expectation”

The applicant’s fairness argument was framed as a “legitimate expectation” that the terminatory ruling would stand. The Court treated this as, at most, a complaint about disappointment and litigation advantage rather than a protected procedural entitlement. The factors supporting the judge’s decision included:

1. Speed: the reversal was communicated about four hours after the first ruling.
2. Alternative route: if the first ruling stood, the prosecution could have appealed and might have succeeded, causing delay and disruption.
3. Safety valve: if the second ruling were arguably wrong, it could have been challenged post-conviction on the basis the count should not have been left to the jury—yet no such ground was advanced.
4. Practical fairness: the jury were unaware of the aborted ruling; no steps were taken to implement the acquittal; the trial simply continued after the legal issue was resolved.

The Court’s reasoning is underpinned by a strong functional concern: the criminal process should not be driven into avoidable appellate detours where a trial judge identifies (quickly, and before irreversible consequences) that an earlier ruling improperly “usurped the function of the jury.”

3.3 Impact

(a) Trial management and section 58 practice

This decision supplies practical guidance on the interaction between:

• the “suspensory” effect of s.58 (rulings having “no effect” while appeal is considered), and
• a judge’s ability to correct a mistaken terminatory ruling during that window.

It makes clear that s.58 does not operate as a one-way ratchet requiring the prosecution either to appeal or accept the ruling, even if the judge rapidly recognises error and no irreversible steps have been taken.

(b) Incentives and fairness

The judgment may reduce:

• Unnecessary prosecution appeals where the trial judge can promptly remedy an erroneous terminatory decision; and
• Strategic reliance by defendants on a premature “win” where the statutory scheme has, in effect, placed the ruling in abeyance while the prosecution considers its position.

At the same time, the decision implicitly preserves safeguards: if the judge has already taken concrete steps implementing the acquittal or if reversal produces demonstrable unfairness (for example, through disclosure of the aborted acquittal to the jury or procedural prejudice), different considerations may arise.

(c) Attempted rape counts and judicial caution

Although the appeal did not challenge the substantive Galbraith outcome, the narrative signals judicial sensitivity to the boundary between:

• preparatory conduct and
• acts “more than merely preparatory” for criminal attempts,

and reinforces that, where there is evidence capable of supporting the inference that the defendant moved beyond preparation, the question will often be for the jury rather than the judge at half-time.

4. Complex Concepts Simplified

4.1 “No case to answer” (half-time submission)

A defence submission that, even taking the prosecution evidence at its highest, the evidence is insufficient for a jury properly to convict. If accepted, the judge stops the case on that count and directs an acquittal.

4.2 “Terminatory ruling”

A ruling that would terminate proceedings on a count (e.g., “no case to answer”), triggering the special prosecution appeal mechanism under s.58 CJA 2003.

4.3 Section 58 CJA 2003 “ruling has no effect”

During the short period when the prosecution requests time to consider appeal (or indicates an intention to appeal), the ruling is put into a form of procedural suspension: the court should not implement it (e.g., by formally acquitting, discharging the jury, etc.).

4.4 “Step in consequence of the ruling” (s.58(11))

A step that carries the ruling into effect (such as formally directing an acquittal). The Court held that reversing the ruling is not such a step; it is the opposite—undoing it.

4.5 “Legitimate expectation” in this context

A claim that a party is entitled to rely on a procedural assurance or established practice. Here, the Court treated the applicant’s “expectation” as no more than an understandable hope that did not translate into an enforceable procedural entitlement, particularly given the statutory suspension of the ruling’s effect.

4.6 “More than merely preparatory” (attempt offences)

For an attempt, it is not enough that the defendant intended the full offence; the defendant must also do an act that goes beyond preparation and begins the commission of the crime. Whether conduct crosses that line is often fact-sensitive and may be a jury question where the evidence permits competing inferences.

5. Conclusion

Clarke, R. v establishes a clear procedural principle: section 58 CJA 2003 does not bar a trial judge from revoking an erroneous “no case to answer” terminatory ruling during a prosecution adjournment to consider appeal. The Court of Appeal’s interpretation of “steps in consequence” confines s.58(11) to preventing implementation of the terminatory ruling, not preventing its correction.

The decision strengthens the practical operation of s.58 by avoiding avoidable appeals and preserving the jury’s role where the evidence is capable of supporting conviction, while leaving room for future cases to police the boundaries where reversal might cause concrete unfairness.