Trial procedure in magistrates' court and Crown Court - Subm...

Learning Outcomes

This article examines submissions of no case to answer in criminal trials in magistrates’ courts and the Crown Court, including:

• The function and timing of submissions of no case to answer in summary and indictment procedures
• Operation and significance of the Galbraith Test, including its two limbs and application to direct and circumstantial evidence
• Roles of judge, jury, magistrates, and advocates in making and deciding submissions
• Effects of evidential failures, including missing or unreliable evidence, and appropriate legal responses when essential elements are absent from the prosecution’s case
• Procedures and legal consequences following successful or unsuccessful submissions
• Strategic considerations for the defence, including ethical and professional responsibilities when challenging the prosecution case
• Common pitfalls, limitations, and exceptional cases where submissions cannot be made at the halfway stage
• Typical criminal trial scenarios involving legal burden, evidential burden, and reverse burdens in relation to submissions
• Relationship between the burden and standard of proof, evidential burdens, and the mechanics of mid-trial submissions
• Procedural details of disclosure, late evidence, and the changing status of critical witnesses or exhibits as they relate to submission viability

SQE1 Syllabus

For SQE1, you are required to understand submissions of no case to answer within criminal trial procedure in magistrates’ courts and the Crown Court, with a focus on the following syllabus points:

• The process, timing, and legal function of submissions of no case to answer in criminal trials.
• The Galbraith Test: its legal basis, application, and consequences of each limb.
• Differences in procedure and decision-maker between magistrates’ courts and the Crown Court.
• The intersection between evidential sufficiency, legal burden, and the mid-trial evaluation of prosecution evidence.
• Effects of successful and unsuccessful submissions, including finality, acquittal, and rights of further application or appeal.
• The impact of evidential defects (e.g., unreliable witnesses, non-disclosure, absence of key ingredients) on criminal liability.
• Duties of defence advocates in making submissions, including professional conduct considerations and limitations on advocacy.
• Exceptional offences for which submissions may not be made until the close of all evidence, and recognition of statutory exceptions.
• Strategic, ethical, and practical factors in the mid-trial assessment of evidence and tactical use of submissions.
• The role of the defence in upholding the integrity of the trial while advancing the best case for their client.

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. What is the Galbraith Test, and when is it applied in a criminal trial?
2. Who decides a submission of no case to answer in the magistrates’ court, and what is the effect of a successful submission?
3. What are the two main grounds on which a submission of no case to answer can be made?
4. In the Crown Court, what is the role of the judge and jury when a submission of no case to answer is made?

Introduction

Criminal trial procedure is structured around ensuring fair treatment for the accused. One of the most significant safeguards is the right of the defence to make a submission of no case to answer at the midpoint of trial—once the prosecution has closed its case, but before the defence presents evidence. This mechanism ensures that no defendant is compelled to answer a charge when the prosecution has failed to present sufficient evidence on which a reasonable tribunal could convict. The proper timing and deployment of a submission of no case to answer is therefore a fundamental element of fair procedure and the presumption of innocence.

Key Term: submission of no case to answer
A formal argument by the defence, made at the close of the prosecution’s case, that the prosecution’s evidence is insufficient to justify a conviction and that the case should be dismissed without the defence being required to call evidence.

Procedurally, this submission can only be made when the prosecution has completed presenting all its evidence, including the examination, cross-examination, and any re-examination of their witnesses, and any exhibits they intend to rely upon. The court is then asked to determine, on the evidence that has actually been adduced, whether there is a case for the defendant to answer. At no stage during this assessment does the burden rest on the defendant to prove innocence; the question is always whether the prosecution has made out a prima facie case.

This procedural safeguard is a critical expression of the right to silence, the presumption of innocence, and the burden of proof.

The Galbraith Test

The legal standard applied to submissions of no case to answer is derived from the Court of Appeal decision in R v Galbraith [1981] 2 All ER 1060. The Galbraith Test ensures that justice is served not merely by the presence of some evidence, but by its quality and reliability, and was designed to clarify when a case should be withdrawn from the jury or magistrates due to insufficient evidence.

Key Term: Galbraith Test
The legal test applied by the judge (or magistrates) to decide whether there is sufficient evidence for the case to proceed to verdict. It asks whether there is any evidence on which a reasonable tribunal could properly convict.

The Galbraith Test comprises two distinct but interrelated limbs:

• No evidence limb: If there is no evidence to support the commission by the defendant of the offence charged (i.e., the prosecution has failed to adduce any evidence on one or more essential elements), then the judge must stop the case and direct an acquittal.
• Unreliable or tenuous evidence limb: If there is some evidence, but it has been totally discredited or is so weak, inconsistent, or manifestly unreliable that, even taken at its highest, no reasonable tribunal could safely convict, again the case should be stopped.

Where the evidence is merely weak, or open to different interpretations, but has not been so discredited as to render a conviction unsafe, it is for the tribunal of fact—jury or magistrates—to assess its weight and credibility. The judge or magistrates must not usurp the fact-finding function except where the evidence could not support a safe conviction by a reasonable tribunal.

Explanatory Note

The test is applied as the evidence stands at the close of the prosecution’s case, not as the defence alleges it could be or will be. Any formal admissions, facts not in dispute, or agreed evidence are included in the body of prosecution evidence for this purpose. Evidence which has been excluded, is inadmissible, or is insufficient as a matter of law to establish essential elements cannot be relied on by the prosecution at this stage.

Worked Example 1.1

A defendant is charged with burglary. The only evidence is a single eyewitness who admits in court that they could not see the burglar’s face and were not wearing their glasses. The prosecution closes its case.

Answer:
Yes. The defence should submit there is no case to answer as the only evidence is so weak and unreliable that no reasonable tribunal could convict. The judge or magistrates should uphold the submission and acquit the defendant.

The Galbraith Test is therefore context-dependent. Where the evidence comes down to an identification of the accused—and that identification is so poor or fraught with error that no jury could properly rely upon it—the judge must take the decision out of the tribunal’s hands and acquit.

The test also applies to cases which rest solely or substantially on circumstantial evidence; here, the judge must consider whether the evidence, viewed in the round, could reasonably permit a jury to convict. If so, the matter is for the jury; if not, the judge must withdraw the case at the conclusion of the prosecution case.

Scrutiny of Circumstantial and Direct Evidence

The Galbraith Test is not a mere formality. Where the only evidence is uncorroborated, tenuous, or circumstantial, the judge must analyse whether the logical inference to guilt could realistically be drawn beyond reasonable doubt by a rational tribunal.

Limitations and the Standard of Proof

It is critical to emphasise that the Galbraith Test does not equate to the criminal standard of proof. The prosecution may have some admissible evidence, but unless a reasonable jury or magistrates could convict on it, the judge must direct acquittal. The test is about sufficiency and quality of evidence at the mid-trial stage, not whether the tribunal would, in fact, be sure of guilt.

Key Term: evidential burden
The responsibility of a party (usually the prosecution) to adduce sufficient evidence to make an issue 'live' for the tribunal of fact—unless discharged, there is no case to answer.

Worked Example 1.2

A defendant is charged with possession of a controlled drug with intent to supply. The prosecution's only evidence is the defendant's proximity to a package, but there is no evidence connecting the defendant to the package or establishing knowledge or control over it.

Answer:
This is insufficient. There is no evidence on an essential element of the offence (control or knowledge). The judge should uphold a submission of no case to answer.

Procedure in the Magistrates’ Court

The procedural approach in the magistrates’ court reflects that the bench or district judge acts as both arbiter of law and fact. After the prosecution has closed its case, the defence may make a submission of no case to answer, highlighting the absence or unreliability of evidence on one or more critical elements of the offence.

Key Term: magistrates’ court submission
In the magistrates’ court, the tribunal of fact and law is the same (the magistrates or district judge). They decide the submission and, if rejected, continue to hear the case.

Upon a successful submission, the magistrates are obliged to acquit immediately. If the submission fails, the defence case proceeds, with the defendant able to present evidence or remain silent—the case then advances to the ordinary process of examination-in-chief, cross-examination, and closing submissions.

This procedure requires the advocacy of the defence to bring to the clear and immediate attention of the magistrates the absence of evidence or the degree of manifest unreliability being relied upon—for example, by drawing attention to admissions made by the prosecution or the implausibility of certain factual allegations.

Worked Example 1.3

A defendant is charged with assault occasioning actual bodily harm. The prosecution calls the complainant, who testifies to being punched but gives no evidence about any injury, and no medical evidence is produced.

Answer:
Yes, a submission of no case to answer is very likely to succeed. The prosecution has failed to adduce any evidence of 'actual bodily harm', which is an essential element of the offence under s.47 of the Offences Against the Person Act 1861. The magistrates should direct the defendant’s acquittal.

Matters of Law and Fact

In the magistrates’ court, the distinction between legal and factual questions collapses—magistrates rule both on the submission and, if necessary, on the ultimate facts of the case. They must be alert to their duty not to allow the case to continue where it is apparent that conviction would not be possible on the evidence. A failure to acquit in such circumstances could result in a miscarriage of justice and may be reviewable by appeal or case stated.

Procedure in the Crown Court

In the Crown Court, after the prosecution's case closes, the defence can make a submission of no case to answer. Here, the judge alone determines the submission as a matter of law—in the absence of the jury, to prevent prejudice.

Key Term: Crown Court submission
In the Crown Court, the judge decides the submission of no case to answer. If successful, the judge directs the jury to acquit.

The judge reviews all admissible prosecution evidence presented to the jury up to that moment—oral evidence, exhibits, admissions, expert testimony, and cross-examination results. The judge must not supplement the case with evidence yet to be called, nor with speculation about what defence evidence may produce.

If the judge upholds the submission, the trial concludes: the judge directs the jury to return a formal not guilty verdict. If rejected, the defence may call evidence or rest; the trial continues to its ordinary conclusion.

Worked Example 1.4

In a Crown Court trial for robbery, suppose the only prosecution evidence is a confession, which—following a voir dire hearing—is ruled inadmissible due to breaches of PACE. No other evidence is presented.

Answer:
The judge should uphold a submission of no case to answer. There is no admissible evidence on which the jury could convict. The judge would direct the jury to acquit.

Judicial Directions and Jury Management

Judges must carefully explain the basis of a directed acquittal following a successful submission, ensuring the jury understands their role is concluded because there is no lawful basis for continuing.

If a case is borderline—if evidence is weak but technically present—it is for the jury to decide whether to convict or acquit, with appropriate directions about the weight (or lack thereof) of the evidence and the need for the prosecution to have proved the case beyond reasonable doubt.

Grounds for Submission

A submission of no case to answer is made on one (or both) of two central bases:

• The prosecution has failed to adduce evidence on an essential element of the offence charged—i.e., there is a critical ingredient missing, such as lack of proof of ownership in theft, lack of proof of injury in ABH, or lack of proof of entry as a trespasser in burglary.

• Although there is some evidence, it is so wholly discredited, inconsistent, or manifestly unreliable that no reasonable tribunal could properly convict upon it.

Key Term: essential element
A fact or ingredient of the offence that the prosecution must prove beyond reasonable doubt for a conviction.

Key Term: unreliable evidence
Evidence that is so discredited, inconsistent, or weak that no reasonable tribunal could safely convict on it.

The first ground is a matter of law: if there is simply no evidence, the tribunal must direct acquittal. The second ground, relating to discredited evidence, is typically more complex and typically arises from devastating cross-examination, contradictions, or manifest implausibility emerging from the prosecution’s own case.

The judge or magistrates must take the prosecution’s evidence 'at its highest'—in the light most favourable to the prosecution. If, even then, the evidence could not suffice for a safe conviction, a submission should succeed.

Worked Example 1.5

A defendant is charged with theft. The prosecution presents evidence that the defendant was present at the scene but adduces no evidence that property was dishonestly appropriated or that it belonged to another.

Answer:
A submission of no case to answer should succeed. Presence is insufficient for theft—there is no evidence of appropriation, no evidence of property belonging to another, and no evidence of dishonesty or intention to permanently deprive.

Impact of Admissibility Rulings

Sometimes, evidence central to the prosecution case is ruled inadmissible as a result of a preliminary voir dire—for example, a confession held inadmissible under PACE or an identification excluded owing to procedural irregularities. If the exclusion leaves the prosecution without evidence on an essential element, a submission should be made and will almost certainly succeed.

Note on Circumstantial Evidence

Where the prosecution case rests entirely on circumstantial evidence, but that evidence is inadequate to exclude innocent hypotheses, it is open to the defence to submit (successfully) that there is no case to answer if a reasonable tribunal could not convict on such evidence, even taken at its highest.

Worked Example 1.6

A defendant is tried for burglary. Circumstantial evidence shows the accused was seen running from the scene, but there is no evidence proving entry into the building, and no forensic evidence links the defendant to the crime. The prosecution case closes with nothing further.

Answer:
There is no evidence on the essential element of 'entry as a trespasser.' Submission should succeed; the court should acquit.

Legal Consequences

If a submission of no case to answer is successful:

• The defendant is acquitted and discharged, with double jeopardy protections prohibiting retrial on the same facts except in specific circumstances (such as "new and compelling evidence" in serious offences under statutory provisions).
• The acquittal is final; there is no right for the prosecution to appeal against the upholding of a no case submission in the Crown Court, except in the rare case of a "terminating ruling" in certain serious crimes under exceptional statutory procedure.
• If the submission is rejected, the trial continues in the ordinary course, and the defence may call evidence or rest without doing so.

A submission is not, however, an alternative to a closing speech or the presentation of a defence case. Once the submission fails, the defence must decide tactically whether and how to proceed.

Duty of the Defence Advocate

An advocate’s duty is to act in the best interests of their client but must never mislead the court. The decision to make a no case submission where there is manifest lack of evidence must be made independent of the client's strategy where the law so requires.

Worked Example 1.7

During a fraud trial, the prosecution fails to serve an essential business record despite multiple case management reminders. The evidence of loss is wholly dependent on that record, which is neither produced nor explained. The defence makes a submission at the close of the prosecution’s case.

Answer:
There is no evidence of loss—an essential element of fraud. Submission must succeed.

Strategic Considerations

Making a submission of no case to answer is a matter of legal judgment and tactical strategy. Defence advocates should:

• Scrutinise the prosecution's evidence for actual (not merely theoretical) proof of each element.
• Be alert to gaps arising from non-disclosure, absent witnesses, or late withdrawal of critical evidence (e.g., a DNA report abandoned on grounds of unreliability).
• Consider the risk that an unsuccessful submission may expose defence strategy or invite the prosecution to address weaknesses in summing up or recall witnesses (permitted only in rare circumstances).
• Remember that, if unsuccessful, the defendant then faces the question of whether to give evidence (and thus risk adverse inferences for silence at trial).
• Avoid submissions based on the likelihood of conviction: the legal test is whether a safe conviction could follow, not the prospect or probability that it will.

Revision Tip:
Before making a submission of no case to answer, review whether the prosecution’s evidence as adduced proves every ingredient of the offence to the evidential standard. If in doubt, and ethically justified, the submission should be made; there is no adverse inference from an advocate making a weak submission, but one should never waste the court's time.

Ethical and Professional Conduct

A solicitor must not mislead the court. Being aware that your client is factually guilty does not prevent you from pursuing a submission if the prosecution cannot discharge its evidential burden. However, should the defendant seek to give false evidence or mislead the court, professional conduct rules require the solicitor to cease acting.

Special Cases and Limitations

Several exceptions and limitations must be appreciated:

• For some offences—such as murder, certain manslaughter charges, attempted murder, and specified road traffic offences—a submission of no case to answer cannot be made until all the evidence (including that adduced by the defence) has been heard. This exception ensures that the full factual matrix is considered before a legal filtering takes place.
• Very occasionally, unusual case management or evidential developments (for example, disclosure of critical evidence after the prosecution case closes) may require the judge to permit a brief prosecution re-opening by way of exception, but this is rare and strictly controlled to protect the fairness of the trial.
• The prosecution’s right of appeal against an acquittal following a successful no case submission is practically non-existent, save for very serious crimes and new statutory exceptions, and even then only with leave and in the most serious cases (such as double jeopardy exceptions for murder).

Exam Warning:
Do not conflate the Galbraith Test (a mid-trial test of evidential sufficiency) with the legal burden of proof at verdict (proof beyond reasonable doubt).

Case Management and Disclosure

Late or inadequate disclosure may result in the exclusion of evidence (by procedural order or under s.78 PACE 1984). If such exclusion leaves the prosecution case fatally incomplete, a submission of no case to answer may be the proper remedy.

Implications for Co-defendants and Related Offences

Where co-defendants face joint proceedings, the evidence must be considered separately for each defendant. A successful submission in respect of one defendant does not necessarily mean the other is to be acquitted unless the prosecution case fails in relation to both.

In multi-count indictments, it is possible for a submission to succeed as to one count and not others; the judge or magistrates must analyse the sufficiency of evidence for each count individually.

Further Practical Points

• If the submission is successful, the acquittal is final for that offence (except in very rare circumstances as above).
• The defence does not waive the right to call evidence by making a submission—if the submission fails, the trial continues with the option to call defence evidence, or not.
• Where the judge (in the Crown Court) is in doubt about the quality of the evidence, but it is more than fanciful, the decision is for the jury.
• If the jurors or magistrates are not satisfied as to the defendant’s guilt beyond reasonable doubt, even after all evidence is heard, they must acquit, but such a decision is procedurally different from granting a submission of no case to answer.

Summary Table

Key Point Checklist

This article has covered the following key knowledge points:

• A submission of no case to answer is made at the close of the prosecution’s case, before any defence evidence is called.
• The Galbraith Test, derived from R v Galbraith [1981], governs whether a case should proceed: the submission succeeds if there is no evidence on an essential element, or the evidence is so unreliable that no reasonable tribunal could safely convict.
• The tribunal (magistrates or judge) must take the prosecution's evidence 'at its highest' when applying the test, giving the benefit of any doubt about reliability or credibility to the prosecution; only if the prosecution case could not possibly succeed should it be withdrawn.
• The defence can and should make such a submission where there are fatal evidential gaps, not as a means of previewing or rehearsing their own case.
• In a Crown Court jury trial, the judge decides the submission (in the absence of the jury); if successful, the judge directs the jury to acquit.
• If the submission is successful, the defendant is formally acquitted and may not be tried again for the same offence except in extraordinary circumstances expressly permitted by law.
• The prosecution generally has no right of appeal against a directed acquittal.
• Exceptionally, for certain serious crimes (e.g., murder, attempted murder), no submission may be made until all the evidence is complete.
• Defence advocates must make submissions with respect to the Rules of Professional Conduct, never misleading the court, but robustly challenging gaps or flaws in the prosecution evidence.
• The judge or magistrates must review the evidence as it stands, not speculate about what defence evidence might produce.

Key Terms and Concepts

• submission of no case to answer
• Galbraith Test
• magistrates’ court submission
• Crown Court submission
• essential element
• unreliable evidence
• evidential burden