A Submission of ‘No Case to Answer'

Whilst there is no standard of proof attached to the evidential burden, the prosecu- tion/claimant still needs to produce enough evidence for the tribunal of fact (judge or jury) to reach a finding.

In criminal cases, if the prosecution has not produced enough evidence the defence can make a ‘submission of no case to answer' at the half-way point of the trial. In essence the defence will allege that the case has not been proven due to insufficient evidence. A ‘submission of no case to answer' can also be made at a pre-trial hearing after the prosecution has disclosed its evidence to the defence.

In R v Galbraith [1981] 73 Cr App R 124 Lord Lane CJ gave some guidance on when a judge should grant an application.

An application should be granted:

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 on it, it is his duty, upon a submission being made, to stop the case.

[127]

An application should be refused and the trial allowed to continue:

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.

[127]

Whilst the Galbraith guidance comes from a criminal case, submissions of no case to answer can also be made in the civil courts. The court will use the same principles to consider whether the case has any real prospects of success. However, the defendant must first be offered a right of election as to whether they will call further evidence before a judge dismisses a case based on a defendant's ‘submission of no case to answer' (see Boyce v Wyatt Engineering and Others [2001] EWCA Civ 692). As the majority of civil cases take place before a single judge rather than a jury, the case of Bentham Ltd v Kythira Investments Ltd [2003] EWCA Civ 1794 reminds courts of the need to exercise caution where a ‘submission of no case to answer' is made before a judge sitting alone and the judge has not heard all the evidence.

The powers of the court to stop a trial altogether can be found in CrimPR Part 25.3 for criminal proceedings and in CPR Part 32.1 in civil proceedings.