No case to answer in criminal law

When a defendant appears in the criminal court for trial, the prosecution will present its case against the defendant before the defence makes its case. Before the trial, the defence has access to any prosecution evidence that may assist the defence case – meaning they can explore any inconsistencies and help their own case.

The burden of proof lies with the prosecution to prove the defendant committed the offence with which they are charged. The prosecution must therefore prove all elements of the offence have been committed by the defendant, and seek to provide enough evidence to convince the jury that the defendant is guilty beyond reasonable doubt.

When could there be no case to answer?

After the prosecution has presented its case against the defendant, the defence then presents the case for the defence. But what if the prosecution case put forward is so flimsy and weak, for instance, there is insufficient evidence in support, that the defence takes the view that the case should not be continued?

In these circumstances, the defence can make an application to the judge to withdraw the case on the basis that there is ‘no case to answer’. Such an application could, in theory, be made before the close of the prosecution case where both parties agree; however, it is normally made after the prosecution has finished presenting its case.

How is the application made?

A judge can consider an application of ‘no case to answer’ upon submissions by the defence. The application is heard by the judge (or magistrate in the Magistrates’ Court) in the absence of the jury in order not to prejudice or influence the jury. Once the members of the jury have left the courtroom, the defence counsel makes a submission, and the prosecution then has opportunity to respond.

If the application has been rejected by the judge, no mention of it having taken place will be made in front of the jury.

How is the application decided?

In determination of the defence’s application, the judge must assess the prosecution evidence as a whole and not simply focus on the credibility of individual witnesses, or of any evidential inconsistencies between witnesses. The reliability or credibility of prosecution witnesses or evidence is not relevant – the issue is the amount of prosecution evidence put forward.

Essentially, the judge must allow the application where there is no evidence that the defendant committed the offence. However, where there is some evidence – for example, there is weak or tenuous evidence that the defendant committed the crime – the judge must consider whether the evidence, taken at its highest, is such that a jury properly directed could not properly convict on it. If so, the case must stop – and if not, the trial will proceed.

In borderline cases, the decision is safely left to the discretion of the judge hearing the application.

If the application is based on part only of the case against the defendant, for example, it relates to one count on the indictment where there are multiple counts, the judge may withdraw that count from the jury’s consideration.

However, if the judge decides that the prosecution’s evidence is sufficient, then the defence’s application fails and the trial continues. The defence will then put its case.

What is the procedure on a successful application?

If the application is allowed, the trial stops at that point and the defendant will be acquitted. The jury will be brought back to the courtroom and the judge will explain his decision to the jury members. He then asks them to appoint a foreman to speak on behalf of the jury; and the court clerk takes from the foreman on each count on the indictment a verdict of ‘not guilty’ upon judge’s direction.

If a decision has been reached on an application of no case to answer in respect of one (or more) count of multiple counts (but not the full case), the judge will explain to the jury that they should ignore the counts for which there is no case to answer. At the end of the trial, they will be directed to enter a not guilty verdict on those counts on the judge’s direction.

Article written by...
Lucy Trevelyan LLB
Lucy Trevelyan LLB

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Lucy graduated in law from the University of Greenwich, and is also an NCTJ trained journalist. A legal writer and editor with over 20 years' experience writing about the law.