Clarke, R. v

Factual and Procedural Background

This opinion concerns an Appellant tried at The Crown Court who was arraigned on a four-count indictment including attempted rape (count 1), sexual assault (count 2), assault by penetration (count 3) and breach of a Sexual Harm Prevention Order (count 4). On 1 October 2024 the Appellant pleaded guilty to sexual assault and breach of the Order (counts 2 and 4). On 3 March 2025 he pleaded guilty on re‑arraignment to assault by penetration (count 3) but maintained a not guilty plea to attempted rape (count 1); following a trial on 11 March 2025 he was convicted on count 1 by a majority jury (10:2). On 30 April 2025 he was sentenced to an extended determinate sentence (custodial term of ten years and an extended licence period of three years), with concurrent terms for the earlier guilty pleas.

The underlying factual narrative (as presented at trial) is that on 10 December 2023 the 17 year old Plaintiff was confronted by a stranger who dragged her into woods, forcibly restrained her, touched her breast and nipple, and inserted finger(s) into her vagina. The Plaintiff described struggling, being held over her mouth, kicking the assailant (striking his testicles) and then seeing the assailant with his trousers down and the tip of his penis exposed. The Appellant's DNA was later found on the Plaintiff's clothing. The Appellant did not give evidence and his case was that the Plaintiff's evidence was unreliable and that he had no intent to rape.

At the close of the prosecution case on the third day of trial the defence made a submission of no case to answer in respect of count 1. The Judge (hereafter "Judge") acceded to that submission and directed that there was no case to answer. The Prosecution sought and was granted an adjournment under section 58 of the Criminal Justice Act 2003 to consider whether to appeal that terminatory ruling. Later the same day the Judge emailed that he had concluded the earlier ruling was made too hastily and wrong, and he uploaded written reasons revoking his earlier terminatory ruling and ruling that there was, after all, a case for the Appellant to answer. The trial then continued, the Appellant remained silent, and the jury convicted him of attempted rape.

Legal Issues Presented

1. Whether the wording of section 58 of the Criminal Justice Act 2003 precludes a trial judge from reversing an earlier finding that there is no case for the defendant to answer during the period of adjournment granted to the prosecution under that section.
2. If not, whether the judge nonetheless had a discretion to change his mind and reverse his earlier ruling.
3. If the judge had such a discretion, whether his decision to change his mind fell within legitimate parameters for exercising that discretion (including whether the Appellant had a legitimate expectation that the first ruling would stand).

Arguments of the Parties

Appellant's Arguments

• The Appellant argued (via defence counsel) that, as a matter of statutory interpretation of section 58(11) of the Criminal Justice Act 2003, the judge's subsequent revocation was a "step in consequence" of the terminatory ruling and thus had no effect; on this view the second ruling was ineffective and the Appellant should have been acquitted of count 1.
• The Appellant further argued that he had a legitimate expectation that the Judge's original terminatory ruling would stand and that revoking it unfairly prejudiced him.

The Prosecution's Arguments

• The Prosecution submitted that the Judge was entitled to change his mind. The adjournment sought under section 58 had been obtained, the Judge had taken no steps in the trial during that adjournment, and the Judge's later revocation operated to negate rather than to take steps in consequence of the earlier ruling.
• The Prosecution also contended that, even if the first ruling had been allowed to stand, the prosecution could have appealed and succeeded, and that any challenge to the second ruling's correctness could have been pursued after conviction by appeal—factors relevant to assessing prejudice and the proper exercise of judicial discretion.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
R v Galbraith [1981] WLR 1039	The two-stage test for a submission of no case to answer (whether, on the prosecution evidence, a reasonable jury properly directed could be sure of guilt).	The Court noted that the Judge had applied the Galbraith test in both his initial terminatory ruling and his later revocation, albeit reaching different conclusions in each.

Court's Reasoning and Analysis

The Court analysed the matter in three stages corresponding to the issues framed.

First, on statutory interpretation of section 58 of the Criminal Justice Act 2003 (particularly subsections (2), (3), (4), (8) and (11)), the Appellant's contention was that subsection (11)'s prohibition on taking "steps in consequence" of a ruling that has no effect should render any subsequent revocation ineffective. The Court rejected that narrow construction. It reasoned that "steps in consequence" was not intended to include every step the Judge might later take which, but for the original ruling, would not have been taken. The Court accepted the Prosecution's submission (as advanced in their Respondent's Notice) that the Judge's second ruling negated the first ruling rather than constituting a step in consequence of it. The Court observed that a contrary interpretation would prevent a judge from correcting a clearly flawed terminatory ruling and would force the prosecution to pursue an appeal to the Court of Appeal, causing delay and expense with no compensating advantage.

Second, the Court accepted that a trial judge retains a discretion, during the course of trial and before the jury has delivered verdicts, to reverse an earlier ruling. The Appellant accepted in general terms that such a discretion exists; his primary contest was the statutory interpretation which the Court had rejected.

Third, the Court considered whether the Judge's exercise of that discretion in this case was lawful and within legitimate parameters. The Appellant argued that he had a legitimate expectation that the Judge's first ruling would stand. The Court acknowledged the inevitable disappointment to the Appellant but held that this did not demonstrate that the Judge's discretion had been exercised unlawfully. The Court endorsed the Judge's own explanation that the first ruling had been delivered too hastily and had usurped the jury's role by focusing excessively on penetration; it concluded that the Judge was right to recognise that the jury should decide whether the proved acts were more than merely preparatory to rape.

The Court further identified and relied upon specific considerations supporting the reasonableness of the Judge's decision: (1) the revocation occurred only about four hours after the original ruling; (2) the prosecution in any event had the statutory right to appeal the original ruling; (3) any substantive challenge to the second ruling could have been pursued after conviction by way of leave to appeal against conviction; and (4) no such substantive ground of appeal was advanced to the Court, reflecting the realistic assessment that the Judge's second ruling was substantively unimpeachable.

Holding and Implications

REFUSED

Holding: The application (seeking to impugn the Judge's revocation of his terminatory ruling and the subsequent conviction) was refused. The Court concluded that section 58 of the Criminal Justice Act 2003 does not preclude a trial judge from reversing a no-case-to-answer finding during the adjournment permitted to the prosecution, that the Judge had a discretion to change his ruling, and that his exercise of that discretion in the circumstances was within legitimate bounds.

Implications: The direct effect is that the Appellant's challenge to the judge's reversal was dismissed and the conviction stands for the purposes described in the opinion. The Court recorded that, notwithstanding the absence of earlier authority directly in point, it gave leave for the judgment to be reported and to be referred to in future cases where its conclusions may be relevant.