Formhals, R v

A jury’s failure to agree is not itself a verdict and cannot, in the strict sense, be inconsistent with a conviction. Nevertheless, an appellate court may assess a conviction’s safety by analogy with the law on inconsistent verdicts where it would be logically inexplicable for the jury to have failed to agree on one count while convicting on another.

That route will arise only rarely. The threshold is at least as demanding as that for true inconsistent verdicts. The court must scrutinise the counts, the evidence and the directions as a whole. A conviction remains safe where the counts involved distinct evidence or transactions and there were logical routes by which the jury could reach different conclusions.

R v Formhals concerned convictions at the Crown Court at Southampton for eight offences of fraud by dishonest representation and two offences of possessing articles for use in fraud. The alleged fraud involved sales or proposed sales of memorabilia said to bear genuine signatures, including purported signatures of Sir Winston Churchill.

The jury convicted on counts 4 to 6, acquitted on count 7, convicted on count 8, and later failed to agree on counts 1 to 3. The appellant challenged the safety of the convictions on the ground that those outcomes were inconsistent. He also renewed applications for leave to appeal concerning the refusal of an adjournment and the judge’s direction that the jury could convict if he had forged the signatures or knew that they were forged.

1. The appeal was dismissed and the renewed applications for leave to appeal were refused. The convictions were safe.

2. A failure to agree is not a verdict. It therefore cannot strictly be inconsistent with a guilty verdict. However, the court held that terminology must not prevent review of safety. The principles governing inconsistent verdicts may apply by analogy where it is logically inexplicable for a jury to fail to reach a verdict on one count while convicting on another.

3. That is an exceptional route of challenge. The established high threshold for inconsistent-verdict arguments applies with at least equal force. The court must closely scrutinise the particular counts, evidence and directions. It is not enough that different outcomes appear unlikely; the appellant must show that no logical route could explain them.

4. Here, the jury had returned the guilty verdicts on counts 4 to 6 before the majority direction and only later failed to agree on counts 1 to 3. The judge had correctly directed the jury to consider each count separately. The expert evidence concerned different lots, the sales were separate transactions over time, and it was logically open to the jury to reach different conclusions about the evidence or the appellant’s knowledge. The acquittal on count 7 and conviction on count 8 were also explicable because count 8 involved materially different evidence and a different source of acquisition.

5. The refusal to adjourn was a proper exercise of discretion. The trial judge had balanced the proposed further delay against the limited apparent utility of further medical evidence and the available material. The judge was also entitled to leave the fraud counts under Fraud Act 2006, section 2, on either basis permitted by their particulars: that the appellant forged the signatures or knew them to be forged. That caused no identified unfairness to the defence.

• Court of Appeal (Criminal Division) Dismissed the appeal against conviction and refused leave on the two renewed grounds.
• Crown Court at Southampton The appellant was convicted after trial of eight counts of fraud by dishonest representation and two counts of possessing articles for use in fraud, and was sentenced to a total of 10 months’ imprisonment.