Brown, R v

A conviction is unsafe where guilty verdicts on related counts cannot be rationally reconciled with acquittals on the evidence and directions given to the jury. The court must assess whether a coherent distinction was available on the case as left to the jury. It cannot uphold a conviction on an evidentially unsupported theory that was not left to the jury.

The appellant was convicted at Woolwich Crown Court of six counts of making indecent images of children contrary to section 1(1)(a) of the Protection of Children Act 1978. The convictions concerned images found in a hidden computer cache and a rolled-up count. He was acquitted of further counts concerning images in other computer locations and attempts to make such images.

He appealed on the basis, among other grounds, that the guilty verdicts were logically inconsistent with the acquittals. The central issue was whether the differing verdicts could be rationally reconciled on the evidence and the directions given.

1. Appeal allowed. The guilty verdicts were irrationally inconsistent with the related acquittals and could not safely stand.
2. The jury acquitted the appellant of counts concerning files in the virtual store, unallocated computer space, and attempted downloads. On those counts it had been directed to decide whether he intentionally downloaded the files and knew, or was likely to know, that they contained indecent images of children.
3. It convicted on the thumbcache counts after being directed that the files had been intentionally downloaded and viewed, leaving only knowledge of their likely content as an issue. That distinction could not rationally explain the different verdicts. The date of download of the thumbcache images could not be identified, and the acquittals on the April download and attempt counts prevented the Crown from relying on a later point at which the appellant must have acquired the requisite knowledge.
4. Nor could the convictions be justified because the thumbcache images had been viewed. The appellant had also viewed and deleted images outside the thumbcache, yet was acquitted in respect of them. The suggestion that the images might have been the same was unsupported by the evidence and was not the basis on which the thumbcache counts had been left to the jury.
5. The court therefore did not need to determine the remaining technical evidence or the disputed meaning of statutory terms. It was sufficient that no rational basis existed for reconciling the guilty verdicts with the acquittals.

• Court of Appeal (Criminal Division): Allowed the appeal in [2015] EWCA Crim 1791 because the guilty verdicts could not rationally be reconciled with the acquittals.
• Crown Court at Woolwich: On 12 October 2012, convicted the appellant on six counts of making indecent images of children under the Protection of Children Act 1978, while acquitting him on further making and attempt counts. On 15 November 2012, imposed concurrent suspended sentence orders.