Thompson, R v

In a case resting substantially on circumstantial evidence, the jury must receive structured guidance on the evidence relied on, the defence case, permissible inferences and the need to avoid speculation. The jury must decide whether the evidence accepted makes them sure of guilt.

A jury must not be placed under pressure to return a verdict within a particular time. Where the judge’s directions on circumstantial evidence are fundamentally inadequate and the jury may have understood that they had to finish deliberating that day, the resulting convictions are unsafe.

The appellant, the sole director of a building company, was convicted at Plymouth Crown Court of two frauds by false representation. The invoices issued by the company claimed VAT although the company was not VAT registered. The prosecution alleged that she knew of, and was party to, the false representations. Her case was that she was a nominal director and had left the company’s affairs to her co-accused.

She appealed against conviction, challenging rulings and directions on bad character, the burden and standard of proof, her co-accused’s guilty pleas, adverse inferences, circumstantial evidence and the conduct of the jury’s deliberations. The central issue was whether the summing up and the pressure of time rendered the verdicts unsafe.

1. Appeal allowed; convictions quashed. The decisive defects concerned the treatment of circumstantial evidence and the pressure placed on the jury to conclude its deliberations on the Friday afternoon.

2. Where a case depends substantially on circumstantial evidence, the judge must give the jury meaningful assistance on how to reason from it. The direction should explain the nature of the circumstantial case, identify the evidence said to support it, summarise the defence response and evidence capable of rebutting the suggested inference, and distinguish reliable inference from speculation. The jury must then be directed to ask whether the evidence they accept makes them sure of guilt. The Recorder’s instruction that the jury should work out what had happened from separate pieces of evidence did not meet that standard. It created a fundamental risk of conviction on suspicion alone, particularly because there was little direct evidence of the appellant’s knowledge.

3. The jury were told both that they were under no time pressure and that they were not expected to return on the following Monday. In the circumstances, those remarks could reasonably have been understood as requiring a verdict that afternoon. A judge must ensure that a jury can continue deliberations if needed, reassure it that it will be sent home at a reasonable time, and make clear that there is no pressure to decide by a particular deadline. The defective circumstantial-evidence direction reinforced the risk that the comparatively brief deliberations produced unsafe verdicts.

4. Other complaints did not independently make the convictions unsafe. The admission and direction on the appellant’s earlier voluntary director disqualification were illogical and inadequately reasoned, but the direction effectively removed the evidence from consideration and it added little to other agreed evidence. The summing up, viewed as a whole, sufficiently conveyed that the prosecution bore the burden of proof. The directions on the co-accused’s guilty pleas, the adverse inference under section 34 of the Criminal Justice & Public Order Act 1994, and the absent witness did not undermine safety.

5. Obiter: having clearly indicated a proposed community order, a sentencing judge must not materially depart from that indication without telling counsel of the reconsideration and allowing submissions before sentence is passed.

• Court of Appeal (Criminal Division): Allowed the appeal against conviction and quashed both convictions: [2013] EWCA Crim 988.
• Plymouth Crown Court: On 20 April 2012, the appellant was convicted of two fraud offences. On 25 June 2012, Recorder Levene imposed concurrent suspended sentences of six months’ imprisonment, with unpaid work requirements, and a ten-year director disqualification.