Report and Recommendations - Scottish Government

Other JurisdictionsSubmissions at Trial7.3.10 In England and Wales, a trial judge can acquit a defendant if he/she is satisfiedthat no jury, properly directed, could convict 22 . The precise test is set out in Rv Galbraith 23 where Lord Lane said 24 :“How then should the judge approach a submission of ‘no case’? (1) Ifthere is no evidence that the crime alleged has been committed by thedefendant, there is no difficulty. The judge will, of course, stop thecase. (2) The difficulty arises where there is some evidence but it is ofa tenuous character, for example because of inherent weakness orvagueness or because it is inconsistent with other evidence. (a) Wherethe judge comes to the conclusion that the prosecution evidence, takenat its highest, is such that a jury properly directed could not properlyconvict upon it, it is his duty, upon a submission being made, to stopthe case. (b) Where however the prosecution evidence is such that itsstrength or weakness depends on the view to be taken of a witness’sreliability, or other matters which generally speaking are within theprovince of the jury and where on one possible view of the facts thereis evidence upon which a jury could properly come to the conclusionthat the defendant is guilty, then the judge should allow the matter tobe tried by the jury…There will of course, as always in this branch of the law, be borderlinecases. They can safely be left to the discretion of the judge”.7.3.11 It is important to note that this statement of the law was designed todiscourage submissions made at trial about the safety of a potential verdict; theprovince of the Court of Appeal. The first leg of the test appearsstraightforward and means that the submission has to be sustained if there hasbeen no evidence to prove an essential fact. The second leg is moreproblematic. Although it makes it clear that a submission that it would be22 Archbold: Criminal Pleading etc. 2011 para 4-293/4; Blackstone’s Criminal Practice 2011 paraD15.51 et seq23 [1981] 1 WLR 103924 at 1042294