Lewis & Anor, R v

A terminatory ruling in a murder case was upheld, despite highly suspicious circumstantial evidence, where there were too many possible inferences from the circumstantial evidence for a jury to safely convict.

This appeal was brought by the prosecution under s.58 of the Criminal Justice Act 2003 (CJA 2003) against a terminating ruling. The trial judge accepted a submission of no case to answer on behalf of both defendants. The prosecution submitted the terminatory ruling was unreasonable, in accordance with s. 67 of the CJA 2003.

Both defendants had been charged with the murder of Giles Metcalf, whose burnt body had been found in a carpark. Subsequent pathologist reports indicated the cause of death to have been a combination of inhalation of fumes and burns.

The case against the defendants was that both set Mr Metcalf alight intending to kill or cause him very serious harm. The prosecution did not state this was joint enterprise; they were both principals. The Crown could not say who had done what, precisely.

The trial judge acknowledged that the case against both defendants was circumstantial. The Crown's case relied on cumulatively:

Movements and timings from the CCTV showing presence at the time of the fire-setting.
Some evidence of motive for one defendant.
DNA link between second defendant to the BBQ lighting fluid bottle.
First defendant admitting being present when BBQ lighter fuel poured and lies in prepared statement
Failure to answer questions for first defendant
Kerosene on first defendant's shoes
Apparent disposal of sim by first defendant
Likely mechanism of fire being naked flame applied to sleeping bag
Kerosene found on deceased's clothing

The trial judge was troubled that this was not a joint enterprise case, if the jury were sure one of the defendants had carried out the murder but could not be sure which defendant this was, they would of course have to acquit them both.


It is accepted that there were highly suspicious circumstances in this case. However, suspicion is not enough in a case such as this which requires the jury to make an inference based on circumstantial evidence. The Court thought the evidence disclosed five different possible scenarios (one defendant as murderer, other defendant as murderer, both as principals, one principal being assisted/encouraged with the intent, accident). The question is whether or not there is evidence, taking the prosecution case at its highest, upon which a reasonable jury, properly directed, could convict. Here, given how the prosecution put their case, the judge's ruling that there was not a case to answer was, on the facts of this case, a ruling which was reasonable for him to make. His ruling is accepted.

Appeal dismissed.




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