Date: Jan 16, 2026

No-Case-to-Answer After Galbraith: A Judge Must Not Rely on Unadduced/Contested Defence Material When Halting a Jury Trial

1) Introduction

R v LEJ concerns a prosecution application for leave to appeal under section 58 of the Criminal Justice Act 2003 against a Crown Court ruling upholding a submission of no case to answer. The respondent, anonymised as LEJ, was a music teacher accused by a 12-year-old pupil (C1) of touching her thigh under a table during a lesson.

The trial judge stopped the case at the end of the prosecution evidence under the second limb of the Galbraith test, reasoning that the complainant’s account was beset by internal inconsistencies and conflicted with other material. A central feature of the appeal was that the judge’s ruling referred to proposed defence evidence from a school support staff member that had not yet been given and was denied by the complainant.

The Court of Appeal (Criminal Division) (Dingemans LJ, Senior President of Tribunals) granted leave, allowed the appeal, and ordered a fresh trial under section 61(4). (An addendum records that LEJ was later acquitted at the retrial; that outcome does not alter the appellate court’s clarification of the legal approach to no-case rulings and prosecution appeals.)

Key issues

Whether the trial judge misapplied the R v Galbraith [1981] 1 WLR 1039 test by deciding matters that should have been left to the jury.
Whether it was an error of law to rely (when stopping the case) on defence material from a witness who had not yet testified and whose account was disputed.
Whether, even if the ruling was wrong, the Court of Appeal should refuse permission to appeal in the interests of justice (per R v Al-Ali [2008] EWCA Crim 2186; [2009] 1 WLR 1661).

2) Summary of the Judgment

The Court of Appeal held that the judge was wrong to uphold the submission of no case to answer. Although there were inconsistencies in the complainant’s accounts (for example, about whether she went “straight to the toilet” and the description of the hand movement), these were matters on which a reasonable jury could reach differing views and which did not necessarily undermine the “essential allegation” (touching under the table).

Crucially, the court found an error of law in the judge’s reliance on the anticipated evidence of a school support staff member. At the time of the ruling, this was not evidence that had been adduced before the jury; it existed only as hearsay within police email exchanges, its admissibility had not been tested, and the complainant denied making the alleged statement. That was for the jury to assess if and when properly admitted.

Applying the statutory test in section 67 (a high hurdle), the Court of Appeal concluded the ruling involved an error of law and was not a ruling it was reasonable for the judge to have made. The court granted permission to appeal and ordered a fresh trial.

3) Analysis

A) Precedents Cited

R v Galbraith [1981] 1 WLR 1039

Galbraith provides the orthodox two-stage approach to a no-case submission. The Court of Appeal’s reasoning in R v LEJ is anchored in the second limb: where there is “some evidence” but it is said to be “tenuous” due to weakness, vagueness, or inconsistency, the judge may stop the case only if the evidence taken at its highest is such that a properly directed jury could not properly convict.

The appellate court emphasised that the identified inconsistencies were of a kind that some juries might regard as damaging but others might not, particularly given the complainant’s age. That assessment placed the case squarely within the jury’s constitutional role under Galbraith, rather than within the narrow residual category where the judge must stop the case.

R v Al-Ali [2008] EWCA Crim 2186; [2009] 1 WLR 1661

The court cited Al-Ali to underline that, notwithstanding the statutory framework enabling prosecution appeals, the Court of Appeal retains a discretion to refuse permission if the interests of justice so require. LEJ argued that his good character and public service meant permission should be refused even if the ruling was wrong.

The court declined to do so, holding that the allegation should be determined by a jury and that both sides’ points could be fairly assessed at a new trial. The significance of this aspect is that Al-Ali discretion is acknowledged but treated as exceptional; where the alleged error stopped a jury trial prematurely and a fair trial remains possible, permission is likely to be granted.

Practitioner texts (not precedents, but influential statements of principle)

The judgment referred to Archbold (para 4-365) and Blackstone’s Criminal Practice 2025 (para D16-57) to express the tension within the second limb of Galbraith: the judge must not usurp the jury’s function, but retains a “residual role” to halt a case where evidence is “transparently unreliable.”

The Court of Appeal’s conclusion in R v LEJ effectively illustrates how that “residual role” is confined: it is not triggered merely because inconsistencies exist, even numerous ones, if a reasonable jury could still accept the core allegation.

B) Legal Reasoning

1. The statutory appellate framework: a “high hurdle”

The court set out the prosecution appeal regime under the Criminal Justice Act 2003. Under section 67, the Court of Appeal may not reverse a ruling unless satisfied that it was wrong in law, involved an error of law or principle, or was not reasonable for the judge to have made. The court accepted this is a stringent threshold.

2. Distinguishing “inconsistencies for the jury” from “inherent weakness requiring withdrawal”

The trial judge treated multiple inconsistencies (timing of going to the toilet; movement of the hand; joking afterwards; the “staple” episode) as making the complainant’s account “transparently” unreliable. The Court of Appeal disagreed, repeatedly framing the inconsistencies as classically jury-evaluative:

A jury might consider discrepancies about post-incident behaviour immaterial to whether the touching occurred, especially from a 12-year-old giving multiple accounts over time.
Differences between the complainant’s description and the mother’s recollection could be attributed to reporting imprecision rather than fabrication.
The “staple” evidence was not supported by expert evidence about x-ray detection and was therefore not a safe basis for a judicial conclusion of “transparent” unreliability; it was a matter of weight for the jury.

The appellate analysis reflects a central Galbraith boundary: unless the prosecution evidence is so unsatisfactory that no reasonable jury could convict, the judge must allow the case to proceed.

3. The critical error: relying on unadduced and disputed defence material

The most concrete legal error identified was the judge’s reliance on anticipated defence evidence from a support staff member. At the time of the no-case ruling:

The witness had not testified, so the jury had not seen or heard the evidence.
The material was, at that stage, hearsay (email exchanges with police officers), and admissibility had not been litigated.
The complainant denied making the alleged statement, creating a clear dispute of fact.

The Court of Appeal treated this as an error of law because it allowed the judge’s reliability assessment to be influenced by material that had not been properly placed before the tribunal of fact. It also cut across the logic of a no-case submission, which assesses whether the prosecution evidence (taken at its highest) could sustain a conviction, not whether the judge prefers a potential defence account that has not yet been tested.

4. Remedy and discretion

Having found the ruling wrong, the court ordered a fresh trial under section 61(4). The court also considered (via Al-Ali) whether to refuse leave in the interests of justice but found this was not such a case.

C) Impact

R v LEJ is likely to be cited for three practical propositions:

Inconsistencies in a complainant’s accounts—especially peripheral ones—ordinarily remain for the jury unless they render the core allegation incapable of safe reliance by any reasonable jury. The judgment provides worked examples (toilet timing; hand movement; post-incident behaviour) illustrating the line.
A no-case ruling must not be founded on unadduced, untested, or disputed defence material. If a judge’s conclusion of “transparent unreliability” depends materially on evidence that has not been properly admitted and tested, the ruling is vulnerable as an error of law/principle.
The “interests of justice” discretion to refuse leave survives (per Al-Ali), but where a fair retrial is possible and the allegation is one properly for jury determination, leave will commonly be granted.

In sexual offence trials in particular, the decision reinforces appellate sensitivity to premature withdrawal of cases based on credibility-type assessments, while still preserving the Galbraith safety valve for truly irredeemable evidence.

4) Complex Concepts Simplified

Submission of no case to answer: A request by the defence, at the end of the prosecution case, for the judge to stop the case because the evidence is insufficient in law for a conviction.
Galbraith second limb: Even if there is “some evidence,” the judge may stop the case only if, taken at its highest, it is so weak or unreliable that no properly directed jury could convict. If the outcome depends on witness reliability or weighing competing views, the case generally goes to the jury.
“Taken at its highest”: The judge assumes the jury could accept the prosecution evidence in its strongest reasonable form, rather than deciding contested issues as if conducting the fact-finding exercise.
Prosecution appeal under the Criminal Justice Act 2003: A statutory route allowing the prosecution to appeal certain terminating rulings. Under section 67 the Court of Appeal can reverse only if the ruling was wrong in law, involved an error of law/principle, or was not reasonable—setting a high bar.
Section 71 reporting restrictions and the Sexual Offences (Amendment) Act 1992: Section 71 can restrict publication of appeal proceedings until trial conclusion; the 1992 Act protects the lifetime anonymity of complainants in sexual cases. Hence the anonymisation of the defendant as “LEJ” in the published judgment.
Section 28 cross-examination: A procedure (for eligible witnesses) allowing cross-examination to be pre-recorded. It can produce multiple “accounts” across ABE interview and section 28 questioning, making careful treatment of apparent inconsistencies especially important.

5) Conclusion

The Court of Appeal’s decision in R v LEJ [2026] EWCA Crim 49 clarifies the limits of the trial judge’s residual evaluative role under the second limb of R v Galbraith [1981] 1 WLR 1039. Even where there are numerous inconsistencies, if a reasonable jury could still accept the core allegation, the case should proceed. Most significantly, a judge commits an error of law by allowing a no-case ruling to be influenced by unadduced, untested, and disputed defence material.

The judgment also confirms—by reference to R v Al-Ali [2008] EWCA Crim 2186; [2009] 1 WLR 1661—that the Court of Appeal retains a discretion to refuse leave in the interests of justice, but that discretion will not ordinarily prevent a retrial where the terminating ruling was legally flawed and a fair trial remains possible.