A case concerning inconsistent verdicts and the inappropriateness of a judge directing a jury to consider an option not proposed by the Crown.
On 23rd August 2013, the appellant was convicted by a majority of 10 to 2 of ABH, count 1; he was acquitted on count 2: possessing an offensive weapon. He appealed against conviction.
At trial, the complainant said that the defendant produced a knife and injured him with it. A witness saw the appellant put his hand in his trouser pocket. She did not see the item he took out but heard the complainant say: "The knife has injured me". The knife was never recovered.
The defendant argued that he did not use a knife and any wounds suffered must have been self-inflicted. A medical expert concluded that there was a "strong possibility" that the abrasions could have been self-inflicted.
In the summing up, when dealing with the first count of ABH, the judge focused on the way the prosecution had advanced its case:
"…the prosecution are not saying:…there's a plan B, if you like, that if you weren't sure about the knife you can convict of different kind of assault if you are sure that there was slapping around going on….the question [is]: was injury caused with a knife…?"
Similarly, the second count was firmly grounded on the allegation that the appellant had a knife.
In his answer to a jury question, the judge said:
"If you took a view that there was something that the defendant had, and he is the one who was the aggressor, and he used that something to cause injury, then that would be legally sufficient for Count 1. Count 2 does depend upon saying, firstly: 'Was it a knife at all?' and, secondly: 'Was it brought to the scene for the purpose of causing injury/harm…?'"
The acquittal on count 2 meant that the jury could not have been sure that he did bring a knife for the purpose of causing injury/harm. If the jury were entitled to find that the offence was committed with something other than a knife, that would mean that there was no inconsistency with the verdicts at all – they would be entirely compatible. The jury were plainly satisfied the evidence about a knife was not reliable. But at the same time the 10 jurors must have been satisfied that the injury was caused by an implement other than a knife.
Held, the prosecution having "nailed their colours to the knife", the judge ought not to have allowed the jury to consider whether they could be sure that the appellant had inflicted this injury using some other unspecified implement which had not been the subject proposed at trial. Therefore, we think these verdicts are inconsistent.
They were not inconsistent on the basis of the direction which the jury was given in response to its question. But, on the basis that the jury ought not to have been given that answer, they were inconsistent with the only way in which the jury could fairly consider the case against the appellant. Conviction quashed.
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