Summary of Opinion

Factual and Procedural Background

This is an application by the Prosecution for leave to appeal under section 58 of the Criminal Justice Act 2003 against a Trial Judge's ruling upholding a submission of no case to answer. The Trial Judge had halted the trial after the Prosecution case and discharged the jury. The complaint was that, during a school music lesson on 10 May 2024, the Complainant (a 12‑year‑old pupil) was touched on her right thigh by the Defendant, who was the school's music teacher. The Complainant disclosed the allegation to her mother on 16 May 2024 and spoke to a friend (referred to in the trial as "G"). The Defence denied the touching. A member of school support staff was identified as a potential Defence witness who might have heard the Complainant make comments inconsistent with the allegation; that witness had not given oral evidence before the submission was upheld. The Court of Appeal (Judge Dingemans) heard submissions from Attorney Taylor for the Prosecution and Attorney Harris for the Defendant.

Reporting restrictions under section 71 of the Criminal Justice Act applied to the proceedings; an addendum dated 5 February 2026 records that, following the appeal decision, the Defendant was tried again and acquitted, so the section 71 restrictions no longer apply.

Legal Issues Presented

1. Whether the Trial Judge was wrong in law to uphold the submission of no case to answer at the close of the Prosecution case.
2. Whether the Trial Judge usurped the jury's function by assessing witness reliability and/or relying on evidence not yet adduced at trial.
3. Whether, if the Trial Judge's ruling was wrong, permission to appeal should be granted and what order should follow (resumption of proceedings, fresh trial, or acquittal) under section 61 of the Criminal Justice Act 2003.

Arguments of the Parties

Prosecution (Attorney Taylor)

• Submitted that the Trial Judge usurped the jury's function and took an unreasonable decision in upholding the no‑case submission.
• Contended the judge was wrong in law to rely upon evidence attributed to the Support Staff Member who had not given evidence at trial.
• Argued it was in the interests of justice that the allegation be determined at trial.

Defence (Attorney Harris)

• Argued the judge was correct to accede to the no‑case submission under the second limb of R v Galbraith because of internal inconsistencies in the Complainant's account and inconsistencies with other evidence.
• Noted the Complainant had been consistent about the essential point (that she was touched) but that variations on timing, the nature of movement, and other matters rendered the evidence such that no reasonable jury could safely convict.
• Identified the Support Staff Member as a prospective Defence witness whose evidence would undermine the Complainant's account.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
R v Galbraith [1981] 1 WLR 1039	Test for upholding a submission of no case to answer (two limbs: (1) no evidence of the crime, (2) some evidence but of such tenuous character that no jury properly directed could convict).	The court applied Galbraith to assess whether the prosecution evidence, taken at its highest, was such that a reasonable jury could convict. The court held that, despite inconsistencies, a reasonable jury could be sure of the essential allegation and therefore Galbraith did not support the Trial Judge's stopping the case.
R v Al-Ali [2008] EWCA Crim 2186; [2009] 1 WLR 1661	Court's discretion to refuse permission to appeal in the interests of justice when considering appeals under the Criminal Justice Act 2003.	The court considered Al‑Ali in deciding whether to grant permission to appeal and concluded that, despite factors in mitigation for the Defendant, it was in the interests of justice to grant permission and order a fresh trial.

Court's Reasoning and Analysis

The Court set out the statutory framework under the Criminal Justice Act 2003, including the standard for appellate intervention (sections 61 and 67) and the high hurdle for the Prosecution to show the Trial Judge's ruling was wrong in law or unreasonable. The Court reviewed the Galbraith principles governing no‑case submissions and authorities emphasising the jury's primacy, noting also textbook commentary that courts retain a residual role to assess whether evidence is too inherently weak or vague.

The Court examined the evidential matrix presented at trial: the Complainant's consistent assertion that she was touched on the thigh, but multiple internal inconsistencies concerning timing (when she went to the toilet), the type of movement or stroking, an apparent joking response with a friend after the incident, and the unexplained matter of a swallowed staple and x‑ray. The Trial Judge had accepted Defence submissions under Galbraith's second limb and had referred to material attributed to the Support Staff Member, including hearsay email material, which had not been tested orally at trial and which the Complainant denied.

The Court concluded that, taken as a whole and properly deferential to the jury's role, a reasonable jury could accept the essential thrust of the Complainant's account (that the Defendant touched her thigh beneath the desk) and be sure that the touching was sexual. The Court found error in the Trial Judge's reliance on the Support Staff Member's hearsay material which had not been adduced and denied by the Complainant—a matter for the jury to assess. On that basis the Trial Judge's decision was held to be wrong in law and unreasonable.

Applying the Al‑Ali discretion over permission to appeal, the Court noted submissions about the Defendant's good character and service but determined that both parties' positions could be fairly assessed at a fresh trial and that permission should be granted.

Holding and Implications

PERMISSION GRANTED; APPEAL ALLOWED; ORDER FOR A FRESH TRIAL

Holding: The Court allowed the Prosecution's appeal, concluding the Trial Judge was wrong to uphold the submission of no case to answer because a reasonable jury could convict on the essential evidence and because the judge erred in relying on unsupported evidence from the Support Staff Member.

Implications: The immediate consequence was an order under section 61(4) of the Criminal Justice Act 2003 for a fresh trial. The Court recognised the high statutory threshold for overturning no‑case rulings but found it met here. The addendum records that, following the retrial ordered by this decision, the Defendant was tried again and acquitted; accordingly the section 71 reporting restrictions that had applied during the proceedings cease to apply.

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Panel: Judge Dingemans, Senior President of Tribunals. Submissions were presented by Attorney Taylor (Prosecution) and Attorney Harris (Defence).