“… it has been held from an equally early period in the history of this Court that the fact that some members or all the members of the Court think that they themselves would have returned a different verdict is again no ground for refusing to accept the verdict of the jury, which is the constitutional method of trial in this country. If there is evidence to go to the jury, and there has been no misdirection, and it cannot be said that the verdict is one which a reasonable jury could not arrive at, this Court will not set aside the verdict of Guilty which has been found by the jury.” ii) Lord Bingham CJ in R v Martyn W (transcript30 March 1999 ), to which we refer in more detail at paragraphs 13.ix) and 29 below: “The jury is one of the oldest and most highly valued of our legal institutions, esteemed by the public and almost all of the legal profession, for the fairness, open-mindedness, common sense, practical judgment and breadth of experience which jurors bring to their important task. But the jury is not a precision instrument. It delivers its decision ordinarily in one or two words; it gives no reasons; it provides no explanation. While jurors ordinarily listen with obvious attentiveness to judicial directions, no one can be sure what they make of those directions in the course of their deliberations. It may be that if their thought processes were subjected to logical analysis, flaws would be found. If, however, a flawless process of reasoning were required, a jury would be a strange body from which to require it. As Evans LJ pointed out in R v Van Der Molen [1997] Crim LR 604, 605, the court must be very careful not to usurp the role of the jury.”
“We do not know whether this Court of Appeal has ever previously formally adopted the view expressed there by Devlin J. that the burden is on the defendant to show that verdicts on different counts are not merely inconsistent but are so inconsistent as to demand interference by an appellate court. Be that as it may, for our part we are satisfied that it is right and we now formally express our approval and adoption of that proposition.”
“This is a most puzzling case. It gives rise once more to the question of how the inconsistent verdicts of juries are to be regarded in this Court. We reject as too bold the proposition that the simple fact that a jury has returned inconsistent verdicts, acquitting on some count or counts and convicting on others, means that in every such case this Court is obliged ex necessitateto quash the convictions. There are cases which, in our view, can arise when it would be proper for this Court to say that, notwithstanding the inconsistency, the conviction or convictions must stand. It all depends upon the facts of the case.”
“By their verdict of guilty on the count of driving at a dangerous speed it is plain that the jury did reach the view that the speed was dangerous, and it is also plain by their verdict that on the broad issue of who was telling the truth the jury preferred, and indeed accepted, the evidence of the police officer, at least so far as that evidence was concerned with the speed at which the car was being driven. As a matter of common sense and justice the jury might seem to have reached a very reasonable conclusion. They brought in a verdict of guilty of dangerous speed. They felt, or this is a fair interpretation of what they may well have felt, that really in those circumstances it was quite unnecessary, and perhaps indeed unfair, to bring in a verdict of guilty of driving in a dangerous manner since that verdict added nothing to the guilt of the appellant, who in their view was to blame for driving too fast. Nevertheless, as [counsel for the appellant] has submitted, those verdicts are as a matter of legal logic inconsistent. … Inconsistent? Yes, in law. Unsafe, unsatisfactory or lacking in common sense? No, a perfectly understandable approach, in the view of this court. This is not a puzzling case. In R v Drury the court was puzzled. In this case we are not; and certainly the existence of a formal logical inconsistency does not lead us to doubt the safety of the verdict on speed. At the end of the day it is for this court to make up its mind undersection 2 of the Criminal Appeal Act 1968 whether the verdict of guilty in all the circumstances was safe and satisfactory. We have reached the unhesitating conclusion that, although it is formally inconsistent with the verdict of not guilty on driving in a dangerous manner, it is nevertheless a safe, satisfactory and sensible verdict once the jury had decided that they preferred the evidence of the police officer to the evidence called for the defence. That is enough to dispose of the appeal.”
“... unless there is a logical inconsistency, the question of whether or not the jury’s verdicts can sensibly be explained does not generally arise. There have recently been a number of appeals to this court based on allegedly inconsistent verdicts, and it is perhaps therefore worth emphasising that it is axiomatic that, generally speaking, logical inconsistency is an essential prerequisite for success on this ground: see Durante at page 714 [which we have in substance set out at paragraph 8 above]and Warner transcript17 February 1997 .”
“[J]uries cannot always be expected to act in accordance with strictly logical considerations and in accordance with the strict principles of the law which are explained to them, and courts, I think, must be very cautious about setting aside verdicts which are adequately supported by the evidence simply because a judge might find it difficult to reconcile them with the verdicts which had been reached by the jury with respect to other charges. Sometimes juries apply in favour of an accused what might be described as their innate sense of fairness and justice in place of the strict principles of law. Sometimes it appears to a jury that although a number of counts have been alleged against an accused person, and have been technically proved, justice is sufficiently met by convicting him of less than the full number. This may not be logically justifiable in the eyes of a judge, but I think it would be idle to close our eyes to the fact that it is part and parcel of the system of administration of justice by juries. Appellate courts therefore should not be too ready to jump to the conclusion that because a verdict of guilty cannot be reconciled as a matter of strict logic with a verdict of not guilty with respect to another count, the jury acted unreasonably in arriving at the verdict of guilty.”
“Two verdicts being shown to be logically inconsistent may not be by itself be a reason for quashing the verdict, but if the only explanation for inconsistency must or may be that the jury was confused and/or adopted the wrong approach, the verdict complained of is unsafe. Thus, if in a many count indictment it is demonstrated in relation to two or several counts that the minds of the jury were or may have been in a confused state and/or they adopted the wrong approach, convictions may very well have to be quashed regardless of the number of them.” ii) This passage was then given some authority some two years later in McCluskey (to which we have referred in paragraph 10.ii) above. Henry J in giving the judgment of a court presided over by Watkins LJ referred to the passage we have set out from Trundell on the basis that it added something to the decision in Stone and Durante. Professor Sir John Smith subsequently commented, after referring to the test set out by Devlin J in Stone: “It appears that the unreported case of Trundell (June 28, 1991) may have taken Devlin J.'s proposition in Stone further for, according to Henry J. the court said [setting out the passage cited above]. Perhaps it would have been better if this had been left unreported because it is not one of the clearer pronouncements of the Court. Do they mean “must” or do they mean “might”? If “might” is intended then “must” is superfluous. What is to be done where there are two possible grounds for the inconsistency, (a), which is “material” and (b), which is not? If the burden is on the appellant, it appears that he has to satisfy the Court that (a) is the explanation and, on one interpretation of Trundell, not merely the more probable but the only explanation. But how can the verdict be safe if there is a 50/50 chance that it resulted from confusion or a wrong approach on the part of the jury? It is submitted that a better view would be that the conviction is not safe unless the court is satisfied that the verdict is not based on the confusion or wrong approach of the jury; and that, once the verdicts are shown to be inconsistent, the burden of persuasion is on the Crown, not the appellant.” iii) Professor Sir John Smith’s comment was set out in the report of R v Harrison [1994] Crim LR 859, (transcript17 June 1994 ) where Hobhouse LJ, sitting with Tudor Evans and Rix JJ, in giving the judgment of the court applied the formulation adopted from Trundell in McCluskey rather than the test set out in Stone and Durante. iv) In R v Aldred & Butcher [1995] Crim LR 160 (transcript23 June 1994),the court (Hobhouse LJ, Tudor Evans and Ebsworth JJ), although not referring to McCluskey, Trundell or Harrison stated that the appellant needed to show, in a case of alleged inconsistency in the verdicts, that the jury had approached the matter in a seriously defective way; that the jury were shown to be confused and self-contradictory to such an extent that the verdicts become unsafe and unsatisfactory. v) In R v Campbell (transcript26 January 1996 ), Colman J in giving the judgment of the court (Pill LJ, Colman and Maurice Kay JJ) after stating that the law was investigated and explained in Durante referred to cases such as Harrison where logical inconsistency was discussed and then added another gloss: “There is, however, a broader category of case where, although the verdicts are strictly not logically inconsistent in the sense described they are nonetheless such as to suggest that they jury cannot rationally have applied its mind to the evidence. If the differing verdicts suggest that this has happened or may have happened, the verdict of guilty may be regarded as unsafe. Whether this does follow obviously depends upon the coincidence of the factual matters in issue in relation to the different counts in each particular case.” vi) In Van der Molen [1997] Crim LR 604 (transcript20 February 1997 ), the court (Evans LJ, Hidden J and Judge Brian Walsh QC) although citing Durante and Hunt referred to and adopted the tenor of the approach set out in the formulations in this line of cases, including Campbell. vii) Although this line of cases was not referred to in Bell which, as we have said at paragraph 10.iv) above, followed Durante, the formulation in this line of cases appears to have been further developed in R v Clarke and Fletcher (transcript30 July 1997 ). The court (Hutchison LJ, Laws J and Judge Allen), stated it was seeking to follow Durante and set out what it described as well settled law in the following terms: “to succeed the appellant must show, first, that the verdicts are logically inconsistent and, secondly, they are so inconsistent as to demand interference by an appellate court – i.e there is no way that the logically inconsistent verdicts can sensibly be explained.”
“We approach the present case on the basis that it is for the appellant to show (1) that verdicts are logically inconsistent and (2) that they cannot sensibly be explained in a way which means that the conviction is not unsafe. Thus an appellate court will not conclude that the verdict of guilty is unsafe, if not withstanding that it is logically inconsistent with another verdict, it is possible to postulate a legitimate train of reasoning which could sensibly account for the inconsistency.”
“One may perhaps be permitted to speculate as to how “a legitimate train of reasoning” can lead to logically inconsistent verdicts. Is not there something wrong with the reasoning if it concludes in a logical inconsistency?”
“The cases to which we have referred in our view make quite plain the proper approach. In a case other than the Cilgram type of case (which is in a class of its own), it is ordinarily for an appellant to show a logical inconsistency between the verdicts criticised and then to demonstrate that it is not possible to postulate a legitimate chain of reasoning which could explain the apparent inconsistency. The court will not interfere with the verdict of the jury unless those tests are satisfied.” x) In R v Rafferty and Rafferty[2004] EWCA Crim 968 , the Court (Rose LJ V-P, Crane and Hunt JJ) emphasised adherence to Buxton LJ’s observation in G (Steven) that Bell and G (Steven) should be before any court considering inconsistent verdicts. xi) The formulation developed in this line of cases was thereafter applied in very many cases – see for example R v Hayward[2000] Crim LR 189 (transcript25 November 1999 ), R v Rogers (Ian)[2004] EWCA Crim 489 , R v Chohan[2007] EWCA Crim 3175 (at paragraph 6), and R v Cross[2009] EWCA Crim 1553 (paragraphs 3-4) where another formulation was put forward. No one appears to have heeded the comment on Rogers by Professor Ormerod at [2004] Crim LR 747: “The ultimate question for the Court of Appeal is whether “no reasonable jury properly directed could have arrived at the conclusion which was in fact reached”
“(1) The test for determining whether a conviction can stand is the statutory test whether the verdict is safe; (2) Where it is alleged that the verdict is unsafe because of inconsistent verdicts, a logical inconsistency between the verdicts is a necessary condition to a finding that the conviction is unsafe, but it is not a sufficient condition; (3) Even where there is a logical inconsistency, a conviction may be safe if the court finds that there is an explanation for the inconsistency. It is only in the absence of any such explanation that the court is entitled to conclude that the jury must have been confused or adopted the wrong approach, with the consequence that the conviction should be quashed; (4) The burden of establishing that the verdict is unsafe lies on the appellant; (5) Each case turns on its own facts and no universal test can be formulated.”
“A key issue is what amounts to a logical inconsistency. In R. v Durante at 714 Edmund Davies L.J. described the test as being whether the verdicts were such that “no reasonable jury who had applied their minds properly to the facts in the case could have arrived at the two differing conclusions”
“The explanation for inconsistency referred to in proposition 3 must be an explanation which falls within the parameters of the case as summed up by the judge” b) By Pitchford LJ in R v RB[2013] EWCA Crim 2301 at paragraph 34: “We would with respect add two riders to this analysis which we are sure the court in Dhillon recognised. The first concerns Elias LJ's paragraph 33.3. If the court identifies an explanation as to why logically inconsistent verdicts may have been returned, it will act on that explanation to dismiss the appeal only where it is a satisfactory explanation which justifies the conclusion that the verdict is safe. This seems to us to be a necessary implication. The second was recognised by the court in R v J[2010] EWCA Crim 1768 at paragraph 19, when Aikens LJ acknowledges the observation of Rose LJ in the unreported case of R v Bell that there may be rare cases where although there is no logical inconsistency the particular facts and circumstances of the case render the verdict unsafe. Rose LJ said this: “…there are, of course, exceptional cases, of which Cilgram provides an example, where a verdict may be quashed because, although there is no logical inconsistency, the particular facts and circumstances of the case render the verdict unsafe. However, it is to be noted that in Cilgram this Court, differently constituted, expressly rejected the submission that, where a complainant's credibility is in issue and her evidence is uncorroborated, guilty verdicts must be regarded as unsafe because the jury also returned not guilty verdicts in relation to some of the complainant's allegations.”” “…there are, of course, exceptional cases, of which Cilgram provides an example, where a verdict may be quashed because, although there is no logical inconsistency, the particular facts and circumstances of the case render the verdict unsafe. However, it is to be noted that in Cilgram this Court, differently constituted, expressly rejected the submission that, where a complainant's credibility is in issue and her evidence is uncorroborated, guilty verdicts must be regarded as unsafe because the jury also returned not guilty verdicts in relation to some of the complainant's allegations.””
“50. We question whether it is helpful to adopt a staged approach to the burden of proof in this way. The starting point is that the burden is on an appellant to persuade the Court of Appeal that a verdict is unsafe. Where he seeks to do this by showing that acquittals on some counts are inconsistent with convictions on others he has to persuade the court that the nature of the inconsistencies is such that the safety of the guilty verdicts are put in doubt. That question will turn on the facts of the particular case and it is not safe to attempt to formulate a universal test.”
“Thus where evidence is given by a witness for the Crown on one count and the defendant is acquitted on that count, we often hear it argued that the jury must have disbelieved the witness and therefore should have acquitted on another count which also depended on that witness’ evidence. It cannot be said too strongly that that line of reasoning is fallacious; there may be all sorts of reasons (valid reasons) why the jury may have been convinced by the witness on one count taking all the evidence into consideration, but not convinced on another. A jury is not to be treated as having rejected a witness’ evidence altogether just because it is not convinced of the defendant’s guilt on a particular count. Where that happens, as it does happen from time to time, there is nothing irrational in the jury convicting on one count and acquitting on another. Unless it can be said that the verdicts are irrational or self-contradictory, this court will not interfere in such a case.” ii) In G (Steven) (to which we have referred at paragraph 13.viii)) the court said: “A person’s credibility is not a seamless robe, any more than is their reliability. The jury had to consider (as they were rightly directed) each count separately, and might take a different view of the reliability of the evidence on different counts. It was too simplistic to draw a stark distinction between reliability and credibility (as had been put in the argument). It was for the jury to decide on the basis of all the material before it whether it was sure of the particular allegation in each count.”
“The verdicts of a jury are not to be treated as inconsistent simply because the jury is sure about some parts of a complainant's evidence, but unable to be sure to the requisite standard about others. Here the jury was sure about the reliability of the complainant's evidence, where it was provided with a measure of independent support, but unprepared to be sure where it was not. This was an entirely rational approach, properly seeking to give the benefit of any doubt to the defendant. The verdicts are not logically inconsistent.”
“.. we would point out that the judge's direction in this case, as is acknowledged, was in conventional terms. He urged separate consideration of each count. He emphasised that the facts were for the jury. He suggested that most, if not all, of the counts in relation to each complainant would stand or fall together, but he did not direct the jury that, as a matter of logic, it was necessary for counts 1 to 7 and 8 to 16 respectively to be decided in the same way. He was not invited to give such a direction. The defence acquiesced in the direction which he did give, and on appeal Miss Worrall expressly approves it. If the view of the defence was that any differentiation by the jury in the verdicts on counts 1 to 7 or on counts 8 to 16 would of necessity be inconsistent, then that is a view which should have been put to the judge and he should have been invited to give a different direction. As it is, it would be anomalous that a jury, directed that the facts were for them, that they should consider the charges separately without any obligation to decide all the counts in relation to each complainant the same way, and that they should not convict unless they were quite sure, should then be held to have returned irrational or logically inconsistent verdicts because they took the judge's direction at its face value and gave effect to it.”
“If it was in truth to be said that this was a case where the appellant could not be convicted if [the co-defendant] was acquitted, then the jury should have been directed in that way. However, we have been told that had that point been raised before the jury the prosecution would have made it very, very clear that their case was that, on the evidence before the jury, it was open to the jury to convict the appellant and acquit [the co-defendant]. It seems to us very important to bear in mind the passage in the judgment of Lord Bingham CJ [in Martyn W]. If an issue of this kind arises, it must be dealt with at trial, before a direction is given to the jury. Everyone prizes the institution of the jury. If the jury proceed to give a verdict on the evidence and are told that the verdicts do not have to be the same, it simply is not open to someone to come to this Court hereafter and complain that a verdict which is open to the jury on the evidence and which was arrived at in accordance with the judge's directions (which were not objected to) is one that is perverse.”
“It is open to you to find the defendant guilty even if you conclude that there is no corroboration or supporting evidence of C’s allegations if you are sure she is telling the truth and is a reliable witness. If, on the other hand, you retain some reservations as to whether C is a truthful and reliable witness, and therefore are not prepared to rely solely on her evidence, you will then want to look to see if there is any corroboration or supporting evidence which, despite any reservations you might have about C and the quality of her evidence, nevertheless drives you to the conclusion that you can be sure that the defendant is guilty.”
“Let’s stop doing it because police is here”
“In the course of his argument the court has been referred to a great number of cases dealing with apparently inconsistent verdicts, in some of which the verdict has been upheld and in others in which it has been quashed. They are, of course, by their very nature cases in which the two counts being compared and which are said to be inconsistent are closely linked either on the facts or by reason of motive or in regard to the nature of the defences, but the principle, as it seems to this court, in every case is whether the inconsistency is such that it would not be safe to allow the verdict, which prima facie is entirely a proper verdict, to stand.” He then continued: “There is a useful passage in regard to the approach that the court should make which was given in the unreported case of R v Stone (13 December 1954 ). Devlin J said there: “When an appellant seeks to persuade this court as his ground of appeal that the jury had returned a repugnant or inconsistent verdict, the burden is plainly upon him. He must satisfy the court that the two verdicts cannot stand together, meaning thereby that no reasonable jury who had applied their mind properly to the facts in the case could have arrived at the conclusion, and once one assumes that they are an unreasonable jury, or they could not have reasonably come to the conclusion, then the convictions cannot stand. But the burden is upon the defence to establish that.”” “When an appellant seeks to persuade this court as his ground of appeal that the jury had returned a repugnant or inconsistent verdict, the burden is plainly upon him. He must satisfy the court that the two verdicts cannot stand together, meaning thereby that no reasonable jury who had applied their mind properly to the facts in the case could have arrived at the conclusion, and once one assumes that they are an unreasonable jury, or they could not have reasonably come to the conclusion, then the convictions cannot stand. But the burden is upon the defence to establish that.””