R v Ali

Where the prosecution has advanced an assault charge on a specified factual basis, a judge may leave a different route to conviction only if doing so does not disadvantage the accused. A late and untested alternative, especially one raised after the jury has retired, should not be left where the defence had no opportunity to examine or address it and it may affect a realistic issue at trial.

Apparent inconsistency between verdicts does not necessarily make a conviction unsafe. Any explanation, however, must be compatible with the directions properly available to the jury.

The appellant was convicted at the Crown Court at Isleworth of assault occasioning actual bodily harm. The prosecution put its case on the basis that he had caused an abdominal injury with a knife. He was acquitted of a separate count of possessing an offensive weapon.

During retirement, the jury asked whether the assault could have been committed with an implement other than a knife. The judge directed that an unidentified implement could suffice for the assault count. The appellant appealed against conviction, contending that the verdicts were inconsistent and that this fresh route to conviction was unfairly left to the jury.

1. Appeal allowed. The court quashed the conviction for assault occasioning actual bodily harm. It did not order a retrial.

2. Verdicts which appear logically inconsistent are not invariably unsafe. As explained in R v Dhillon [2010] EWCA Crim 1577, there may be an apparent explanation. Any explanation must, however, be one available within the parameters of the summing-up. The court distinguished R v Dobson [2011] EWCA Crim 1856, because the judge here had, in answer to the jury’s question, left an alternative route based on an implement other than a knife.

3. There was evidence from which a jury could infer that an implement other than a knife caused the injury. In principle, that finding would reconcile the conviction with the acquittal on the offensive-weapon count. The critical issue was whether it was legitimate to leave that possibility to the jury.

4. Following R v Japes [1994] Crim LR 605, a judge is not invariably confined to the prosecution’s stated basis of conviction. A fresh basis may be left only where the accused suffers no disadvantage or prejudice. R v Mason [2012] EWCA Crim 2635 illustrated circumstances in which a new route arising from a jury question caused no prejudice, but those safeguards were absent here.

5. The prosecution had confined its case to a knife. The defence had no opportunity to test whether the appellant possessed another possible implement, whether such an implement could have caused the injury, or whether the injury had another cause. That mattered because self-infliction was a realistic possibility on the evidence. The judge should therefore not have left an unspecified implement as a route to conviction. On the only fair basis on which the case could be considered, the verdicts were inconsistent.

• Court of Appeal (Criminal Division): Allowed the appeal against conviction, quashed the conviction for assault occasioning actual bodily harm, and did not order a retrial.
• Crown Court at Isleworth: The appellant was convicted by a majority of assault occasioning actual bodily harm and acquitted of possessing an offensive weapon.