Testouri, R v

In a two-defendant conspiracy case, different verdicts are permissible only where evidence admissible against one defendant alone is, or could be, critical to proving that defendant’s participation in the conspiracy. The trial judge must determine that question and direct the jury accordingly. Where the evidence does not permit that distinction, the jury must return the same verdict for both defendants. If it is not sure that one defendant was dishonest and party to the agreement, it must acquit both.

The appellant was convicted in the Crown Court at Inner London of conspiring with Carl Gordon to defraud the London Borough of Lambeth through false and inflated claims for repair work. He received a community punishment order of 120 hours.

The jury convicted the appellant but was not satisfied of Gordon’s guilt. The trial judge had directed that differing verdicts were legally open because the appellant’s and Gordon’s positions were markedly different.

The appeal concerned whether, on a conspiracy count alleging only those two defendants, differing verdicts were legally possible and, if so, what direction the jury required.

1. Appeal allowed. The court held that the jury should have been directed to return the same verdict for both defendants.
2. In a two-defendant conspiracy to defraud, the judge must first ask whether there is evidence of an agreement to achieve a criminal purpose. If the evidence permits only a finding that one defendant was dishonest, there is no proved conspiracy between the two and both must be acquitted. The court treated Yip Chieu-Chung v The Queen [1995] 1 AC 111 as authority for that proposition.
3. The judge must next ask whether there is evidence admissible only against one defendant which is, or could be, critical to proving that defendant’s participation in the alleged conspiracy. Only then may the jury be directed on a route to convicting one defendant while acquitting the other. Otherwise, different verdicts are not open. This was the proper practical effect of R v Longman & Cribben [1981] 72 Cr App 121 and R v Roberts [1987] 78 Cr App R 41.
4. The question is for the judge, not the jury. As a useful cross-check, the judge may consider whether either defendant could properly be convicted if tried alone, having regard to the Criminal Law Act 1977.
5. There was no material evidence admissible only against the appellant which could justify different verdicts. Since the jury was not sure of Gordon’s guilt, it should also have acquitted the appellant.

• Court of Appeal (Criminal Division): allowed the appeal against conviction: [2003] EWCA Crim 3735.
• Crown Court at Inner London: convicted the appellant of conspiracy to defraud on 21 January 2003 and imposed a community punishment order of 120 hours on 14 February 2003.