R v Galbraith [1981] 1 WLR 1039

Galbraith was tried for affray. At the close of the prosecution case, the defence submitted that the evidence was insufficient to require an answer. The trial judge rejected the submission and left the case to the jury, which convicted him by a majority verdict. On appeal, the Court of Appeal used the case to clarify when a judge must withdraw a criminal charge from the jury. The court addressed two different situations: a complete absence of evidence on an essential element, and the presence of some evidence whose quality is challenged. Its guidance was intended to prevent unsupported cases proceeding while preserving the jury's constitutional role in evaluating witnesses and drawing permissible factual inferences.

When must a trial judge uphold a submission of no case to answer, and when should disputed evidence remain for the jury to assess?

The Court of Appeal stated a two-limb test. First, where there is no evidence that the offence was committed by the defendant, the judge must stop the case. Secondly, where some evidence exists but is so weak, vague or inconsistent that a properly directed jury could not safely convict, the judge must also withdraw it. If, however, the strength of the prosecution case depends on assessing a witness's reliability, or on other matters ordinarily within the jury's competence, the case should generally be left to the jury. The judge asks whether a reasonable jury properly directed could convict on the evidence at its highest, rather than deciding whether the judge personally believes the prosecution witnesses.

A criminal charge must be withdrawn where there is no evidence on which the defendant could be convicted, or where the prosecution evidence is so tenuous that no reasonable jury properly directed could convict. Genuine questions of witness credibility and evidential weight ordinarily remain for the jury.

The Galbraith test remains the standard direction for no-case submissions in Crown Court trials and is also influential in other criminal tribunals. It protects defendants from answering legally insufficient cases without allowing the trial judge to usurp the fact-finding function of the jury. The threshold differs from the jury's final task: the judge decides whether conviction is reasonably open, while the jury decides whether guilt has actually been proved beyond reasonable doubt. Later cases emphasise that the test can be applied robustly where evidence is demonstrably unreliable, but not simply because credibility is contested.