Director of Public Prosecutions v DNL

Mrs Justice O'Farrell:

1. This is an appeal, by way of case stated, against the ruling by District Judge Holland dated 11 July 2025 that there was no case to answer in respect of two allegations of rape contrary to section 5 of the Sexual Offences Act 2003 brought against DNL.

2. On 14 January 2025, the defendant was charged with two offences contrary to section 5 Sexual Offences Act 2003 . The allegation was that DNL had anally raped a boy under the age of 13.

3. On 4 March 2025 the defendant pleaded not guilty. The Leeds Youth Court retained jurisdiction in respect of the matter and a two-day trial was listed to start on 10 July 2025.

4. At the case management hearing on 26 June 2025, the Crown amended the second charge, to allege anal rape “on at least two other occasions”, replacing the initial allegation of “on at least four other occasions”.

5. The charges at trial were: i) Charge One – between 1 September 2023 and 8 April 2024 the defendant intentionally penetrated the anus of a boy under the age of 13 with the Defendant’s penis. ii) Charge Two - Between 1 Sep 2023 and 8 Apr 2024 on no fewer than two occasions other than the one mentioned in the above charge, the defendant intentionally penetrated the anus of a boy under the age of 13 with the Defendant’s penis.

6. The defendant, the complainant’s cousin, DNL, was aged 16 years at the time of the allegations and 17 years’ old at the time of the trial. The complainant was aged six years at the time of the allegations and seven years’ old at the time of the trial. The trial

7. On 10 July 2025, the trial began before the Judge.

8. The complainant’s mother and his father were called to give evidence by the prosecution and were both cross-examined.

9. The complainant’s mother explained that the defendant had moved in with her mother (the complainant’s grandmother) in about April 2024. Her son would stay at his grandmother’s on Tuesdays and Thursdays between about 3.15pm and 5pm. She gave evidence that his demeanour had changed recently. She explained that he had started to ask, on many occasions, who could touch his ‘private parts’. She didn’t think much of it at the time, as there had been some input from school as a result of children’s conversations in the playground.

10. She stated that she had noticed that on the 8 April 2024 at the grandmother’s house, the defendant was ordering her son around somewhat and her son appeared to be upset by this. When they got home he explained that he needed to tell her something. The complainant said that the defendant had “done something rude” and, after some hesitation, said: “I need to tell you something about [DNL] but I don’t want you to tell me off.” Following reassurance from his mother, he used a slang word for his own penis, pointed at the crotch area and said: “He put it in my bum”. She explained that this was not normal for her son, and that he appeared to look serious and concentrated. He said it had happened four times, and recently. She told her husband to start recording this disclosure on their phone.

11. The complainant then asked if the defendant would get in trouble. He was told yes. He asked whether “it was for Mummy’s and Daddys to do” and was told yes. He asked if it was for a man and wife and was told it was. When the complainant was told that the police would be coming to the house he explained that they would not believe him; making a gesture with his finger which appeared to show an erect penis.

12. The complainant’s father gave evidence at trial. On the 8 April 2025 he was aware that his son wanted to tell him something. His evidence was that the complainant said that ‘the defendant did something’, pointed at his own penis and said “[DNL] put it in my bum”. He had noticed that his son had become clingy and emotional. He can also recall an occasion when his son had used the toilet whilst his father was in the bath and asked: “Why doesn’t mine do the same as yours and the defendants?”. This was because of an issue with his foreskin; his father could not think of any reason why the complainant would have made a comparison with the defendant’s penis.

13. There were special measures in place for the complainant’s evidence, given his young age. The edited video interview of the complainant had been recorded on 16 May 2024 and was played as his evidence in chief. During the trial, he was assisted by a registered intermediary, who had sat with him during the recording of his video interview with the police and sat with him at court during cross-examination. The intermediary liaised with defence counsel in advance of the trial to agree the form of all cross examination questions of the complainant and the questions were asked in line with the agreed document.

14. The complainant was initially asked why he was at the police station, and he replied: “Cos [DNL] did something wrong”. When first prompted to talk about what the defendant did, the complainant was hesitant and requested that his mother tell the police instead but it was explained to him that she could not because she was not present when these things happened.

15. The complainant said the location was his grandma’s house, where the complainant and DNL also sometimes stayed. He drew DNL’s bedroom, and identified DNL’s bed as the location where he did “bad stuff”.

16. When asked directly what bad things DNL did, the complainant stated: “A. He put his, he put his privates in my bum. Q. Okay. A. And that’s all. Q. Okay. And how did that make you feel? A. Sad. Q. Sad, okay. And, and if, it’s okay if you don’t know, but do you know how many times that happened? A. I think about five times. Q. Five time, okay. Were they on different days or the same day? A. I think … it was on the same days cos it’s the same days when I go to Grandma’s. … Q. Where were you when these bad things happened? A. At Grandma’s house.”

17. Using a diagram, the complainant drew himself and the defendant on the bed, stating that the defendant had a phone.

18. When asked what he meant by ‘privates’, the complainant shrugged, unable to explain verbally, but with the aid of a ‘gingerbread person’ cutout, he circled or marked the genital area (penis) as ‘privates’. He confirmed that part of the body is used ‘to wee’. When asked to confirm the front and back of the gingerbread person, the complainant drew a line across the area of buttocks and identified it as ‘a bum’. When asked how come he had drawn that, he stated: “By putting the line”.

19. During an attempt to clarify what occurred, the interviewer asked about clothing. The complainant said he was wearing his school uniform and that DNL “pulled his trousers back up”. He confirmed that DNL had pulled the complainant’s trousers down at some point and that DNL took his own underpants off.

20. When asked if DNL said anything, the complainant replied that he said: “Did it hurt?” and the defendant “got annoyed,” then “just started doing it then”. When asked if he said anything afterwards, the complainant said, “No, he just kept doing it”.

21. When asked: “Each time, how did it stop?” he answered: “When my Grandma shouted me down at dinner”, adding that this was for dinner. When asked how long DNL did the ‘bad thing’ for, the complainant said: “About five minutes”. He was asked: “What would you and [DNL] be doing before these bad things happened?” The complainant said they were playing, and then “he started being naughty”. The sequence was repeated: “[DNL] took the thingy off me”, went away for five minutes, and then “started doing bad things”.

22. In response to a request for clarification, the complainant stated that the defendant “put his privates in my bum”. When asked if anything else happened he stated: “He did but I can’t remember what he done, he did do something else but I can’t remember what he done”. Asked about the position used for the ‘other bad thing’, the complainant replied: “It was the same position”. On orientation, he answered that he was lying “face up”. He was asked if he was “looking upwards”. When the interviewer asked: “[DNL] put his privates into your bum?”, the complainant nodded his head. He stated that he told the officer, and on an initial video to his parents, that “It hurt”.

23. In cross examination there was the following exchange: “Q: Did [DNL] ever take your clothes off? A: Only trousers from school does that. … Q: Did [DNL] ever put his willy in your bum? A:Yeah Q:‘Did [DNL] just touch your bum with his willy, or did he put his willy inside your bum? A: Inside. Q. Did [DNL] ever tell you not to tell your grandma about that? A. Yeah he told me not to tell anyone about it but I told my Mum straight away when he did it but he started doing it again, Grandma and mum not to do it. Q: Did [DNL] put his willy in your bum, once or more than once? A: He did it a lot of times, I don’t know how many times but it was a lot, he used to do it every time at Grandma’s house. … Q: Did [DNL] put his willy in your bum on one day or on different days? A: Does it lot of a day every time I go there. Q: [DNL] says that he has never put his willy in your bum. Is [DNL] telling the truth or is [DNL] telling a lie? A. A lie. Q. [DNL] says he has never touched your bum. Is [DNL] telling the truth or is [DNL] telling a lie? A. A lie. Q. Have you made these things up about [DNL]? A. No. Q. Have you made these things up to get [DNL] into trouble? A. No, he’s done it in real life no-one has told me to say this about [DNL].”

24. The recording made by the complainant’s father was exhibited as evidence of part of the complainant’s disclosure: “Mother: What did he ask you to do” Complainant: Stick his [unclear] into my bum Mother: And when he did it, did it hurt. Complainant: Yeah, it hurt us. [Unclear] Complainant: …I can’t tell anyone Mother: It’s definitely the truth? You wouldn’t lie about that because it could get someone in really bad trouble. Complainant: It is true.”

25. The defendant’s interview with the police was read, as were the agreed facts. The defendant denied the offence. He was said he was not responsible, and when specifically asked if he had pulled down the complainant’s clothing he said it had not happened. He answered “no comment” to a number of questions. The defendant was asked if he knew how the complainant would know about such things, if they had not happened. The defendant said he had seen the complainant watching YouTube on his iPad. The videos had sometimes involved male and female Barbie type dolls taking their clothes off. The defendant saw him watching this and told his mother, who took the iPad away.

26. At the end of the first day of the trial the Crown closed its case. The Judge’s Ruling

27. On the morning of the second day of the trial, the Judge raised with counsel for both parties a concern that there might be no case to answer on the ground that the Crown had not called evidence to prove the complainant’s anus had been penetrated.

28. The Judge stated that she would apply the test in the first limb of R v Galbraith (1981) 73 Cr.App.R. 124 CA, namely: “If there is no evidence that the crime alleged has been committed by the defendant there is no difficulty – the judge will stop the case.”

29. The Judge stated to counsel that if an adult witness had used the phrase he put it “inside my bum”, the words would be given their natural meaning and the words alone would be evidence upon which a court, properly directed, could convict of anal rape and would not result in a finding of no case to answer. In this case however, that evidence was given by a six and seven year old boy who was not precise in his use of words and could not always express his meaning. It was not possible to assume what he meant by the word “bum” by reference only to its common usage among adults.

30. Counsel for the Crown made representations that there was a case to answer. Counsel for the Defence was not called upon to respond.

31. The Judge found that the Crown had not adduced evidence that there had been penetration, however minimal, of the complainant’s anus by the Defendant’s penis. In her brief reasons, the Judge stated that, despite their best efforts, the police officer and intermediary were not able to obtain clear details of the mechanism of the alleged rape. The Judge stated that the complainant was clear when he said DNL put his penis “into my bum”, but, without any clear evidence of what he meant by “bum”, whether that was the bottom cheeks, or the anus itself, there was no evidence upon which the Judge could safely convict of penile penetration of his anus.

32. In her written decision that there was no case to answer, the Judge stated as follows: i) “I applied the test “If there is no evidence that the crime alleged has been committed by the defendant …the judge will stop the case” to the evidence I had heard. I considered the submission from the Crown. ii) I found that the Crown had not adduced evidence upon which I could find that when this child witness used the word “bum” he was referring to his anus. iii) I therefore found there was no case to answer and Not Guilty verdicts were entered. iv) The defendant had been absent throughout the legal discussions, it was therefore necessary to explain my decision to him. v) I did not repeat the legal test which I had set out earlier and had applied to the evidence. I drafted a document in simple language for the defendant so he could understand why the Not Guilty verdicts had been entered at the close of the Prosecution case. vi) I summarised my reasons as “there is no evidence upon which I could safely convict” as a simple way of explaining my decision to a 17 year old. vii) Having ruled there was no case to answer on the first limb of Galbraith , there was no need to consider the second limb on the charges being tried.”

33. On that basis, the Judge concluded that there was no case to answer and found the defendant ‘Not Guilty’ of both charges. Appeal by way of case stated

34. The questions for this Court are: i) Was the trial judge entitled to raise the issue of whether there was a case to answer? ii) Was the trial judge required to raise the issue of whether there was a case to answer? iii) Was the evidence such that the judge could reasonably find there was no case to answer? Questions 1 & 2

35. The Criminal Procedure Rules 2020, rule 24.3(3)(d) provide that, at the conclusion of the prosecution case, on the defendant’s application or on its own initiative, the court may acquit on the ground that the prosecution evidence is insufficient for any reasonable court properly to convict but must not do so unless the prosecutor has had an opportunity to make representations.

36. The Court’s attention has been drawn to the case of R v Juett [1981] Crim LR 113 (CA), in which the Court of Appeal indicated that such intervention by the trial judge would be an exceptional course, stating that the responsibility of the trial judge for the overall integrity of a criminal trial does not require or entitle them to interfere in the conduct of the case by experienced defending counsel, in the absence of improper or irregular conduct. As is noted by both counsel before the Court, that case was decided before the CrimPR in force at the time of this trial but, in any event, it did not go so far as to state that a trial judge should never intervene by raising the issue of no case to answer.

37. In the case of R v Brown [1998] Crim LR 196 (CA), the Court of Appeal observed that the judge has a responsibility not to allow a jury to consider evidence on which they could not safely convict. If, at the conclusion of the evidence, a trial judge is of the view that no reasonable jury, properly directed, could safely convict, he should generally speaking, whether a submission of no case has been made at the conclusion of the prosecution case or not, raise that view for discussion with counsel. Although the Court of Appeal was considering a trial by jury, those principles apply equally to a trial before a District Judge.

38. CrimPR 24.3(3)(d) is clear that the court has power, acting on its own initiative, to acquit on the basis that the prosecution evidence is insufficient for any reasonable court properly to convict. The trial judge must always be careful not to ‘step into the arena’ by interfering in the conduct of the case by counsel. This is particularly important when matters of trial strategy are concerned, where the parties may have good reason for adopting a particular course of action and should not be required to explain or justify their decisions to the court. That does not detract from the trial judge’s power and duty, to raise matters of concern during the course of a trial, or, in appropriate circumstances, to stop a case. It is not particularly helpful to describe such interventions as unusual or exceptional because the appropriateness of any interruption to the course of a trial will be fact-specific. In each case, the relevant question is whether the trial judge was entitled and correct to intervene.

39. On the facts of this case, the Judge was entitled to raise the issue of whether there was a case to answer; indeed, the Judge was required to raise the issue with both counsel, given her concern that the prosecution evidence did not disclose a case to answer. Question 3

40. As recognised by counsel before the Court, the material question in this case is whether, on the evidence, the Judge could reasonably find there was no case to answer.

41. It is common ground that the appropriate test was that set out in Galbraith (1981) 73 Cr.App.R.124 (CA) as follows: “(1) If there is no evidence that the crime alleged has been committed by the defendant, there is no difficulty. The judge will of course stop the case. (2) The difficulty arises where there is some evidence but it is of a tenuous character, for example because of inherent weakness or vagueness or because it is inconsistent with other evidence. (a) 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 upon it, it is his duty, upon a submission being made, to stop the case. (b) 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.”

42. The Crown’s case is that the Judge misdirected herself as a matter of law and reached a decision that no reasonable tribunal could have reached. The Judge's finding of fact that no penetration was established is one that no reasonable tribunal could have properly reached on the evidence. Accordingly, the first limb of the Galbraith test was not satisfied.

43. The respondent concedes that the full evidence adduced by the prosecution was capable of leading a court to the conclusion that there was evidence of anal penetration. However, the Judge also had in mind credibility issues and inconsistencies which emerged during the evidence, which could have entitled the Judge to find there was no case to answer under the second limb of Galbraith .

44. The Judge identified the correct question for the purpose of the actus reus, or essential element of the crime, namely, whether there was evidence that there had been penetration, however minimal, of the complainant’s anus by the defendant’s penis. Mr Barry, counsel for the DPP, properly notes that there is a distinction between the gluteal cleft, which separates the two buttocks, and the anus, which is the external opening of the digestive tract. There is no definition of anus within the Sexual Offences Act 2003 . The word is therefore interpreted according to its ordinary meaning as understood in medical and common English usage. It is common ground, as accepted by the Judge, that the slightest degree of penetration would suffice, there being no sensible reason for any distinction to be drawn between penetration of the anus and penetration of the vagina.

45. The Judge reached the wrong conclusion in her answer to the question posed. In my judgment, there was ample evidence adduced by the prosecution case that the defendant had committed the alleged offences of anal rape so as to give rise to a case to answer for the following reasons.

46. First, the complainant’s parents both gave evidence that he disclosed to them that the defendant had put his penis into the complainant’s bum and that it hurt.

47. Second, the complainant repeated that account in his ABE evidence and in cross-examination.

48. Third, in the ABE interview the complainant demonstrated that he understood what he meant by “privates”, “bum”. It is accepted that he was not asked in terms whether there was penetration of his anus but the context was that this was the evidence of a six-seven year old child, who could not reasonably be expected to use vocabulary that was medically accurate. His inability to describe in anatomical detail precisely what occurred must also be considered against his repeated assertions in evidence that it hurt, strongly suggestive of penetration, rather than simply contact.

49. Fourth, in cross-examination, the complainant was asked expressly: “Did [DNL] just touch your bum with his willy or did he put his willy inside your bum?” in answer to which the complainant replied: “Inside”. This indicated that the complainant was capable of distinguishing touching from penetration and his evidence was that penetration had occurred.

50. I accept Mr Barry’s submission that the expectations of the Judge as to the type of evidence that a six year old might give in these circumstances were wholly unrealistic. The Judge noted that the complainant appeared unhappy and embarrassed during the ABE interview, and reluctant to talk about what he alleged happened to him. That demeanour is what might be expected from a young child giving formal evidence of anal rape. The Judge also noted that he appeared not to be concentrating towards the end of interview, which lasted for 51 minutes. This was not unusual for a child of his age and it certainly couldn’t be said to cast doubt on the crucial evidence given by him in the earlier parts of the interview.

51. In this case there was clear, direct, and compelling evidence from the complainant that the defendant penetrated the complainant’s anus with the defendant’s penis and that it hurt. That was sufficient evidence to raise a case to answer that the defendant had committed the offence of rape.

52. I have considered whether, as submitted by Ms Brown, counsel for the defendant, the Judge was entitled to find that there were weaknesses in the evidence that would have justified stopping the case under limb 2 of Galbraith . It was entirely appropriate that the Judge considered the prosecution evidence in the round, identifying weaknesses and inconsistencies. The Judge correctly noted that the complainant gave contradictory evidence as to how often the offending occurred and whether it continued after he told his mother. However, these matters were issues that could, and should, have been considered within the overall case at the conclusion of the evidence and following submissions from both parties. They did not lead to a reasonable finding that the complainant’s evidence as a whole was lacking in credibility.

53. Mr Barry raises a further issue, namely, as to whether the Judge wrongly shut out the opportunity for the prosecution to amend the charges, for example by adding charges of sexual assault. No application was made at trial for the charges to be amended. However, the Judge made it clear in her ruling that she would require some persuading before allowing any application to amend.

54. Although the Judge was no doubt endeavouring to offer a helpful indication, this was an unfortunate position for her to take. Having acted on her own initiative to raise the issue of no case to answer, the appropriate course of action by the Judge on the facts of this case would have been to afford the prosecution an opportunity to make an application to amend the charges. The evidence that had been given by the complainant, reinforced during his cross-examination, was sufficient to support a charge of sexual assault. By her negative indication, the Judge effectively shut out the prosecution from putting that charge before the Court.

55. In conclusion: i) The Judge was entitled, and required, to raise the issue of whether there was a case to answer, given her concerns as to whether there was sufficient evidence that the alleged offence had occurred. ii) The circumstances in which a trial judge can, or should, raise the issue of whether there is sufficient evidence based on limb 1 or limb 2 of the Galbraith test may vary depending on the facts of the case; it is not helpful to describe it as an unusual or exceptional course for the judge to take. iii) On the facts of this case, there was clear, direct and compelling evidence from the complainant from which a case of anal rape could be established. In those circumstances, the Judge could not reasonably find there was no case to answer.

56. For those reasons, I allow the appeal by way of case stated.