R v Galbraith

JurisdictionEngland & Wales
Judgment Date19 May 1981
Judgment citation (vLex)[1981] EWCA Crim J0519-1
CourtCourt of Appeal (Criminal Division)
Docket NumberNo. 5541/B/79
Date19 May 1981
George Charles Galbraith

[1981] EWCA Crim J0519-1


The Lord Chief Justice of England (Lord Lane)

Mr. Justice Peter Pain


Mr. Justice Stuart-Smith

No. 5541/B/79



Royal Courts of Justice

MR. R. SIMPSON, Q.C. and MR. H. GODFREY appeared on behalf of the Applicant.

MR. A. GREEN and MISS S. EDWARDS appeared on behalf of the Crown.


On 13th November 1979 at the Central Criminal Court, this applicant was convicted by a majority verdict of affray and was sentenced to four years' imprisonment. He now applies for leave to appeal against that conviction, the application having been referred to this Court by the single Judge.


The facts of the case were these. On 20th November 1978 at the Ranelagh Yacht Club, Putney Bridge, in the early hours of the evening a fight broke out in the bar. There were a number of people present, amongst them being Darke, Begbe, Bohm, Dennis and Bindon. Knives were used. At least three men were stabbed, Darke fatally, Bindon seriously, and Dennis less so. There was in these circumstances no doubt that there had been an affray. The only question for the jury to decide was whether it had been established with a sufficient degree of certainty that the applicant had been unlawfully taking part in that affray.


At the close of the prosecution evidence, a submission was made by counsel for the applicant that there was no case for this applicant to answer. The Judge rejected that submission. The principal ground of appeal to this Court is that he was wrong in so doing. There are other subsidiary grounds of appeal which we shall have to examine in due course.


We are told that some doubt exists as to the proper approach to be adopted by the Judge at the close of the prosecution case upon a submission of "no case" (see Archbold (Fifth Cumulative Supplement to the 40th Edition at paragraph 575 and R. v. Tobin (1980) Cr. L.R. 731).


There are two schools of thought: (1) that the Judge should stop the case if, in his view, it would be unsafe (alternatively unsafe of unsatisfactory) for the jury to convict; (2) that he should do so only if there is no evidence upon which a jury properly directly could properly convict. Although in many cases the question is one of semantics, and though in many cases each test would produce the same result, this is not necessarily so. A balance has to be struck between on the one hand a usurpation by the Judge of the jury's functions and on the other the danger of an unjust conviction.


Before the Criminal Appeal Act 1966, the second test was that which was applied. By section 4(1)(a) of that Act however the Court of Appeal was required to allow an appeal if they were of the opinion that the verdict should be set aside on the grounds that "under all the circumstances of the case it is unsafe or unsatisfactory". It seems that thereafter a practice grew up of inviting the Judge at the close of the prosecution case to say that it would be unsafe (or sometimes unsafe or unsatisfactory) to convict on the prosecution evidence and on that ground to withdraw the case from the jury. Whether the change in the powers of the Court of Appeal can logically be said to justify a change in the basis of a "no case" submission, we beg leave to doubt. The fact that the Court of Appeal have power to quash a conviction on these grounds is a slender basis for giving the trial Judge similar powers at the close of the prosecution case.


There is however a more solid reason for doubting the wisdom of this test. If a Judge is obliged to consider whether a conviction would be "unsafe" or "unsatisfactory", he can scarcely be blamed if he applies his views as to the weight to be given to the prosecution evidence and as to the truthfulness of their witnesses and so on. That is what Lord Widgery, Chief Justice, in Barker (1977) 65 Cr. App. R. 287, said was clearly not permissible: "….. even if the judge (our emphasis) had taken the view that the evidence could not support a conviction because of the inconsistencies, he should nevertheless have left the matter to the jury. It cannot be too clearly stated that the judge's obligation to stop the case is an obligation which is concerned primarily with those cases where the minimum evidence to establish the facts of the crime has not been called. It is not the judge's job to weigh the evidence, decide who is telling the truth and stop the case merely because he thinks the witness is lying. To do that is to usurp the functions of the jury." Although this was a case where no submission was in fact made, the principle is unaffected.


Some of the difficulties have arisen from the subsequent case of Mansfield (1977) 65 Cr. App. R. 276. Lord Justice Lawton said this: "Unfortunately since this practice started (sc. withdrawing a case from the jury on the ground that a conviction on the evidence would be unsafe) …..there has, it seems, been a tendency for some judges to take the view that if they think the main witnesses for the prosecution are not telling the truth then that by itself justifies them in withdrawing the case from the jury. Lord Widgery, Chief Justice, in his judgment in R. v. Barker pointed out that this was wrong …..". He then cites part of the passage we have already quoted.


The learned Lord Justice then went on to say: "(Counsel) intended to submit to the Judge that some evidence was so conflicting as to be unreliable and therefore if the jury did rely upon it the verdict would be unsafe. In our judgment he was entitled to make that submission to the judge and the judge was not entitled to rule that he could not."


On one reading of that passage it might be said to be inconsistent both with Barker and with the earlier part of the judgment itself. It is an illustration of the danger inherent in the use of the word "unsafe" by its very nature it invites the Judge to evaluate the weight and reliability of the evidence in the way which Barker forbids and leads to the sort of confusion which now apparently exists. "Unsafe", unless further defined, is capable of embracing either of the two schools of thought and this we believe is the cause of much of the difficulty which the judgment in Mansfield has apparently given. It may mean unsafe because there is insufficient evidence on which a jury could properly reach a verdict of guilty; it may on the other hand mean unsafe because in the Judge's view, for example, the main prosecution witness is not to be believed. If it is used in the latter sense as the test, it is wrong. We have come to the conclusion that if and in so far as the decision in Mansfield is at variance with that in Barker, we must follow the latter.


How then should the Judge approach a submission of "no case"? (1) If there is no evidence that the crime alleged has been committed by the defendant, there is no difficulty. The Judge will of course stop the case. (2) The difficulty arises where there is some evidence but it is of a tenuous character, for example because of inherent weakness or vagueness or because it is inconsistent with other evidence. (a) Where the Judge comes to the conclusion that the prosecution evidence, taken at its highest, is such that a jury properly directed could not properly convict upon it, it is his duty, upon a submission being made, to stop the case. (b) Where however the prosecution evidence is such that its strength or weakness depends on the view to be taken of a witness's reliability, or other matters which are generally speaking within the province of the jury and where on one possible view of the facts there is evidence upon which a jury could properly come to the conclusion that the defendant is guilty, then the Judge should allow the matter to be tried by the jury. It follows that we think the second of the two schools of thought is to be preferred.


There will of course, as always in this branch of the law, be borderline cases. They can safely be left to the discretion of the Judge.


We turn now to the evidence in this case. It was admitted that the applicant had gone to the club with Darke and Begbe and, using a false name, had signed them in. They had later been joined by Bohm. It was further not disputed that at the conclusion of the fighting the applicant was in the bar and, much to his credit, was helping a dying Darke. He did not go into the witness box, but the account of events which he gave in a self-exculpatory statement to the police, reiterated in a statement from the dock, was that he had at the material time when the affray was in progress not been in the bar at all but had been downstairs in the lavatory.


There were two principal pieces of evidence called by the prosecution which tended to disprove that assertion and to show that he was in the bar taking an active part in the affray. The first was a witness called John Gilette. He said that Darke had attacked Bindon and that at that time there were three men with Darke. They all had knives. He then described the three men. One description plainly referred to Begbe, another to Bohm and the third was an accurate description of the applicant. These men were described by Gilette as standing by the fight watching with knives out in a threatening way. He had attended an identification parade on 19th February 1979. On that parade the applicant was standing. Gilette however said he was not able to point out anyone on that parade whom he recognised as having been in the club that night.


The second piece of evidence was from a witness called Cook. He was the doorman of the club and was a very reluctant witness. Leave was eventually given to treat him as hostile. Cook described how the applicant, or a...

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