Cova Products Ltd, R. v

Logically inconsistent verdicts do not automatically make a conviction unsafe. However, where convictions for statutory health-and-safety duties depend on the same state of affairs as an acquittal on a connected duty, the jury must be directed to resolve the prerequisite count first. If no legitimate, non-speculative reasoning can reconcile the verdicts, the convictions are unsafe and must be quashed.

The court applied that principle to interdependent duties under the Health and Safety at Work Act 1974.

Cova Products Ltd operated a factory in which a contractor, Carter Brothers Ltd, replaced a mixer. During the work, Carter’s employee, Greenwood, entered an area beside an intermittently moving conveyor and suffered fatal injuries.

At Newcastle upon Tyne Crown Court, Cova was convicted under sections 2(1) and 3(1) of the Health and Safety at Work Act 1974. Carter, Greenwood’s employer, was acquitted under section 2(1). Cova appealed against conviction.

The central issue was whether the verdicts could stand together and, if not, whether the inconsistency rendered Cova’s convictions unsafe.

1. Appeal allowed. The convictions on counts 1 and 2 were quashed because they were logically inconsistent with Carter’s acquittal on count 3 and were unsafe.

2. The counts arose from the same alleged danger: a gap in the intermediate platform beside an intermittently moving conveyor. If that state of affairs did not put Carter, Greenwood’s employer, in breach of its section 2(1) duty to Greenwood, it could not put Cova in breach of its section 2(1) duty to Merilo. Assuming the maintenance work was Cova’s undertaking, it was likewise impossible for Cova to be in breach of section 3(1) to Greenwood while Carter was not in breach of section 2(1) to him.

3. The jury should therefore have been directed that a conviction of Carter on count 3 was a prerequisite to a conviction of Cova on either count. The unqualified direction that different verdicts could be returned on the counts was wrong.

4. An inconsistency does not of itself require a conviction to be set aside. Applying the approach stated in Durante (1972) 56 Cr App R 708, the court considered whether a reasonable jury properly applying its mind to the facts could reach the two verdicts. No legitimate train of reasoning reconciled them. The prosecution could not establish safety merely by asserting that its case against Cova was strong, since live issues remained on Cova’s counts while the jury had acquitted Carter.

5. The court added that a judge may refuse to accept inconsistent verdicts and ask the jury to reconsider them, as recognised in Harris [1964] Crim LR 54. Proper discussion between judge and counsel before final speeches should identify the legal issues, the order in which counts should be considered, and any necessary written assistance for the jury.

6. Cova was awarded its costs here and below from central funds, to be assessed if not agreed.

• Court of Appeal (Criminal Division) Allowed Cova’s appeal in [2005] EWCA Crim 95, quashed both convictions, and ordered costs from central funds.
• Crown Court at Newcastle upon Tyne On 19 December 2003, convicted Cova of offences under sections 2(1) and 3(1) of the Health and Safety at Work Act 1974 and imposed fines. Carter Brothers Ltd was acquitted of the related section 2(1) count.