R v LEJ

Relevant provisions of law

Section 61(1) of the Criminal Justice Act provides that the Court of Appeal has power to confirm, reverse or vary any ruling to which the appeal relates. Section 67 provides that the court may not reverse a ruling on an appeal under this Part of the Act unless “it is satisfied that the ruling was wrong in law, that the ruling involved an error of law or principle, or that the ruling was a ruling that it was not reasonable for the judge to have made”. It was common ground in the submissions that this involves a high hurdle for the prosecution to overcome.

Reporting restrictions

[ Addendum on 5 February 2026: As a result of the decision in this appeal, LEJ was tried again. He was acquitted of the offence by the jury. This means that the restrictions set out in section 71 no longer apply because the trial has concluded ].

Factual circumstances

The complainant in this case (“C1”) was at the material times a 12-year-old schoolgirl who was a student at a school. As part of her curriculum, she took part in music lessons, and LEJ was a music teacher at the school. There was evidence which was extracted in the course of the section 28 cross-examination that the complainant liked the previous music teacher, who she called her “Bestie”, and it was suggested in cross-examination that this allegation against the defendant LEJ was some part of getting that previous music teacher back to the school.

On Friday 10 May 2024, the complainant attended a scheduled music lesson given by the defendant between 12:05 and 13:05 hours. C1's essential complaint is that whilst in attendance at the lesson she was talking to her friend about the work set, which she said she had not seen before, when the teacher (LEJ) told her to sit at an alternative seat closer to him on the side of the desk. C1 alleges, whilst sitting at this seat LEJ, under the cover of a table, placed his hand on her right thigh and proceeded to stroke it for a short period of time. Nothing was said by either of them while that occurred.

There were some complaints made by C1 on 16 May (so about just under a week later). C1 told her mother about the alleged incident, saying, “My teacher felt my legs”. The mother also made a note of the disclosure, which we have seen and have details of.

The complainant also spoke to a friend, who we will just refer to as “G”, who said that the complainant had said she could not remember the exact day and date. It was possibly at some point in May 2024, possibly a Thursday, that the defendant had touched her thigh. It was suggested by the complainant that she had not remembered the incident until she had spoken to her friend.

The submission of no case to answer

The judge in the relevant ruling upheld the submission of no case to answer.

It is relevant at this stage to set out the relevant law relating to submissions of no case to answer. As is well known, the case of R v Galbraith [1981] 1 WLR 1039 provides that a submission of no case can be upheld in two circumstances. The first, which causes no difficulties, is where there is no evidence of the crime having been committed. The second is the one that causes issues, and we will quote from Galbraith as follows:

“(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. Where the judge concludes 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. 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 on which the 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.”

Archbold at paragraph 4-365 notes that:

“In making the judgment, in line with the second limb of Galbraith, as to whether the state of evidence called by the prosecution, taken as a whole, is so unsatisfactory, contradictory or so transparently unreliable, that no jury, properly directed, could convict, the judge must bear in mind the constitutional primacy of the jury and not usurp their function…”

In Blackstone's Criminal Practice 2025 at paragraph D16-57 it was noted:

“However, the second limb of the Galbraith test does leave a residual role for the court as assessor of the reliability of the evidence. The court is empowered by the second limb of the Galbraith test to consider whether the prosecution’s evidence is too inherently weak or vague for any sensible person to rely on it. Thus, if the witness undermines his or her own testimony by conceding uncertainty about vital points, or if what the witness says is manifestly contrary to reason, the court is entitled to hold that no reasonable jury properly directed could rely on the witness's evidence, and therefore (in the absence of any other evidence) there is no case to answer.”

The submission was made at the end of the prosecution case. It is relevant to note that a member of support staff at the school had been referred to in the cross-examination of the complainant, and that member of support staff was ready to be called as a defence witness. Her proposed evidence had been referred to at the trial and was to the effect that she had heard C1 at the photocopier saying words to the effect that she liked the defendant and that he did not do anything. There was evidence as to the percentage reliability of that recollection given by that member of support staff about the last comment — somewhere, as she put it, at about 80 to 90%. The complainant, when asked about that in cross-examination, had said that she had not said anything to that effect to the member of support staff.

The submission of no case to answer was advanced by Ms Harris, who appeared below on behalf of LEJ as she does before us, on the basis of the second limb of Galbraith . It was accepted that the complainant had been consistent in her evidence that her thigh had been touched, but the method by which it had been touched had differed between what she had said and what her mother had reported, and there were other differences based on what her friend G had said. It was also said that there were inconsistencies as to whether, after the alleged touching, the complainant had gone straight to the toilet, as she had said in one version of events (and that was in cross-examination under section 28) or had, as it were, dawdled on the way by speaking to a friend, or speaking to a friend and sitting down, before going to the toilet.

Other inconsistencies were identified in the evidence. It was noted that the mother's contemporaneous report did not mention the touching of the thighs (although it was obviously consistent with that complaint having been made by the mother to the police) and that the mother had referred to ‘thighs’ rather than ‘thigh’. The mother later gave evidence that that was her fault.

There were other points which were relied on in submissions. It was noted that the complainant had apparently joked after the incident with her friend. There was also reference to the fact that after this incident (about a month after) the complainant had been taken to hospital because she had swallowed a staple, according to her evidence, but it had not been noted on an x-ray. We just interpose at this stage to note that during the course of submissions before us Mr Taylor KC, who did not appear below on behalf of the prosecution, pointed out that there was no evidence as to whether that would be expected to be shown on an x-ray when a staple is swallowed and indeed no evidence as to the reliability of the x-ray process at the time. Ms Harris identified that this evidence had come to the defence’s notice at a very late stage.

In any event the judge, having reflected on all these matters, said in his ruling that:

“In my judgment, this is not a simple case. In making my assessment of the evidence as a whole, and the evidential inconsistencies that I see internally within the complaint made by [the complainant], and also as set against the further inconsistencies in the wider evidential matrix, I am deeply concerned that with proper and full direction on all relevant areas, I do accede to the defence application. In my judgment, when I look at the evidence as a whole, it is transparently clear that there is, at the heart of [the complainant's] account, unreliability and significant inconsistency within her own account, and as against the evidence that surrounds her complaint.

The determination of this application for leave to appeal

So far as the prosecution are concerned, Mr Taylor submits that the judge did usurp the function of the jury, took a decision which was unreasonable, and was wrong in law to rely on the evidence given by the member of the support staff who had not even given evidence.

Ms Harris on behalf of LEJ submits that the judge is right. There is a high hurdle to be overcome by the prosecution on this application. There were inconsistencies in the evidence which showed that the complainant was unreliable in terms of internal inconsistencies and there were inconsistencies with other important evidence, so that no reasonable jury could rely on the complainant's evidence.

We consider that the judge was wrong to uphold the submission of no case to answer. There were inconsistencies which a reasonable jury might say did not affect the reliability of the essential account given by the complainant. This was to the effect that LEJ had touched her leg under the table. In those circumstances, a jury could also be sure that that touching must have been sexual.

In the ABE interview: “ I went to my mate first, and started talking to her, and he told me to sit down. But as I have toilet pass, I asked to go to the toilet …” — so a delay talking to a friend.

Later on: “ So I just asked to go toilet instead of walking out, cos if I walk out, then I’ll get, like, a detention and that, and my mum will get really angry. ”

Then later on in the same interview: “ I just felt his hand on my thigh. And then after that I stood up, went to talk [with a person], and then after that he told me to sit down, and I went and sat down, and then I said, ‘Sir, can I go toilet?’”

Later on: “ I stood up and talked to my friend, and then he told me to sit back down, but then I asked to go to the toilet.”

And then: “I just went straight to the toilet.”

Then in the section 28 cross-examination: “ He touched my right leg with his left hand. Afterwards, I asked to go to the toilet.”

Those are the inconsistencies in relation how quickly C1 went to the toilet that are relied on. We identify those because those are the sort of internal inconsistencies in the evidence which some juries might consider rendered the original allegation of touching so unreliable that it could not be relied on, but other juries might take the view were nothing to the essential truth of the matter, and exactly the sort of thing that a 12-year-old complainant might muddle up in relation to the matter.

It is right to record that there was an inconsistency in relation to the type of movement of the hand. The complainant's evidence given at trial through the ABE and section 28 cross-examination was to the effect that it did not move but there was a stroking, whereas the mother's evidence was that the hand moved up and down. Again, those are the sort of inconsistencies in evidence which members of the jury might consider to be fatal to the conclusion, but others might not.

There was said to be a joke after the incident with a friend. Again, some members of the jury after being properly directed might consider that to be nothing to the thing; others might consider it to be very important.

There was the evidence in relation to the staple. The complainant's evidence was that she had swallowed a staple, and that that was obviously something to be considered alongside the x-ray which showed no staple there. On the other hand it is not unknown to courts for x-rays not to show everything or not to have spotted everything that is there to be seen. One only needs to read some reports of clinical negligence disputes to see that. What is the proper explanation will be for the jury to assess.

We also consider that the judge was wrong in law to rely on the evidence inconsistent with the complainant's account given by the member of support staff. To be fair to Ms Harris, she had not relied on that evidence in her submissions at trial. Ms Harris was going to call that member of support staff to give evidence in support of the defendant at the trial, but the judge had referred to it in his ruling. It was at that stage only hearsay evidence from email exchanges with police officers, the admissibility of which had not been challenged. The complainant had denied that she had ever said anything of the sort to the member of the support staff, and that is a matter for the jury to assess.

In our judgment, taken as a whole and looking at the evidence conscious of the disadvantages that we have in assessing these matters removed from the trial, we find that a reasonable jury could accept and be sure of the complainant's evidence that LEJ had touched her on the thigh below the desk, and be sure that the touching must have been sexual. For all those reasons, we consider that the judge’s decision was wrong. There was an error of law in taking account of the evidence of the member of support staff which had been denied by C1 and had not yet been adduced as the evidence. The judge’s decision was therefore ot a reasonable decision to make.

The question then arises as to whether we should grant permission to appeal by reference to the decision in R v Al-Ali . What is submitted on behalf of LEJ is that he is a person of good character who has performed exceptional public service over many years and that it would not be in the interests of justice to grant permission to appeal, and in that way although a fair trial might be possible, so that section 61(5) would mean that, if in the light of our conclusions so far permission to appeal was granted, a retrial would have to be ordered, we should not grant permission to appeal. It is said on behalf of the prosecution by Mr Taylor that it is in the interests of justice for this allegation to be determined at trial. The young pupil complainant has been consistent that her thigh was touched by the teacher and that needs to be determined by the jury.

Conclusion

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