It's Not Just Galbraith

• Published date: 16 August 2022
• Subject Matter: Litigation, Mediation & Arbitration, Criminal Law, Trials & Appeals & Compensation, Crime
• Law Firm: Mountford Chambers
• Author: Mr Ben Hargreaves

While making submissions at half time becomes an increasingly rarer exercise, certainly for this practitioner, when the chance arises it must be seized with both hands. We are all familiar with R v Galbraith [1981] 1 WLR 1039, (1981) 73 CrAppR 124 (CA) which remains the standard test but a potent ancillary weapon - certainly in cases focused on circumstantial evidence - is R v Goddard (G) & Fallick (F) [2012] EWCA Crim 176.

This case concerned a conspiracy to rape a child under 13. The prosecution case was that a series of text messages sent between the appellants was evidence of an agreement to rape a young boy. In addition, the prosecution exhibited texts sent by G to others showing an interest in raping young boys. The Crown also relied upon the convictions of the appellants possessing indecent photographs of children as evidence showing (1) a keen sexual interest in young boys and (2) a willingness to break the law. Further, in F's messages there was reference to a specific boy, identified by the police as being the son of a friend of F. This, the Crown claimed, showed that there was a plan in existence rather than a mere fantasy.

The defence case was that there was no agreement to rape a child and that the texting was fantasy from which each appellant gained sexual gratification. The appellants relied on the fact that they had never met and that between the texting on 15 September 2006 and their arrests in 2009 nothing at all had ever happened.

At the Court of Appeal - Lord Justice Aikens, Mr Justice Sweeney, Mr Justice Supperstone - it was accepted for the purposes of the submission of no case that there was evidence of an agreement to rape such that a jury, property directed, could so find. At the close of the Crown's case, the key issue for the judge therefore was whether there was sufficient evidence that a jury properly directed could infer that there was an intent on the part of each of the defendants at the time the agreement was concluded, to carry out that agreement.

After considering the cases of R v Hedgecock, Dyer and Mayers [2007] EWCA Crim 3486 and the judgment of Laws LJ who referred to Lord Diplock in Kwan Ping Bong v R [1979] AC 609 and the statements of Moses LJ in R v Jabber [2006] EWCA Crim 294, this powerful Court summarised the position as follows:

"(1) in all cases where a judge is asked to consider a submission of no case to answer, the judge should apply the "classic" or "traditional" test set out by Lord Lane CJ in...