Elkins, R v

Under section 5(8) of the Criminal Law Act 1977, one of two alleged conspirators may be convicted although the other is acquitted. Different verdicts are nevertheless unavailable where the evidence does not permit the jury rationally to find that the case is proved against one defendant but not the other.

In a two-person conspiracy, the judge must first identify evidence of an agreement to pursue a criminal purpose. The judge must then decide whether critical evidence is admissible against only one defendant. If it is, the jury require clear directions explaining how separate verdicts may properly be reached. Evidence of acts in furtherance of the alleged agreement is admissible against both alleged conspirators. Lies by one defendant require a careful direction before they may be used as evidence that the original agreement was criminal rather than merely evidence of that defendant’s dishonesty.

The appellant was convicted at Bournemouth Crown Court of conspiracy to defraud an elderly relative and sentenced to 12 months’ imprisonment. Her co-defendant, her brother-in-law, faced the same allegation, but the jury did not reach a verdict against him.

The prosecution alleged that the two defendants agreed to use the relative’s money for their own benefit, including through a joint Halifax account. The appellant contended that withdrawals were made for the relative’s benefit or with her consent, and denied dishonesty.

The appeal concerned whether the jury could properly return different verdicts in a two-person conspiracy and whether the trial judge adequately directed them on the distinct admissible evidence against each defendant.

1. Appeal allowed. The conviction was unsafe and was quashed. A fresh indictment was ordered and the appellant was to be retried with her co-defendant.

2. Section 5(8) of the Criminal Law Act 1977 permits the conviction of one of two alleged conspirators despite the acquittal of the other. It does not, however, remove the requirement that differing verdicts be logically sustainable on the admissible evidence.

3. Applying R v Testouri [2004] 2 Cr App R 26, the court held that the judge had to consider whether there was evidence of an agreement to achieve a criminal purpose and whether evidence admissible against only one defendant could be critical to proving that defendant’s participation. Where no such distinct critical evidence exists, the jury must be told that different verdicts are not open to them.

4. Acts said to have been done in furtherance of the alleged conspiracy were admissible against both defendants and could not, therefore, justify separate verdicts. The appellant’s lies might potentially support an inference that the joint account had been opened pursuant to a criminal agreement, rather than merely show her individual dishonesty. That inference required a careful and specific direction. The judge gave only a conventional lies direction and omitted that explanation.

5. Further, the prosecution case was that both defendants had agreed from the outset to defraud the victim through the joint account. On that case, differing verdicts would inevitably be inconsistent unless the jury were properly shown how the admissible evidence permitted them. The summing-up did not do so.

The court directed that the appellant be released on bail pending the retrial.

• Court of Appeal (Criminal Division) — allowed the appeal, quashed the conviction and ordered a retrial: [2005] EWCA Crim 2711.
• Crown Court at Bournemouth — on 3 May 2005, convicted the appellant of conspiracy to defraud and sentenced her to 12 months’ imprisonment.