Fanning & Ors, R v

In an appeal alleging inconsistent jury verdicts, the question is whether the conviction is unsafe. The appellant must establish that the verdicts cannot stand together because no reasonable jury, properly applying its mind to the evidence, could have reached them.

The court restored the clear test in R v Stone and R v Durante. It rejected later elaborations requiring appellate courts to construct a legitimate chain of reasoning for apparently inconsistent verdicts. Jurors may rationally assess a witness differently on separate counts. An acquittal on one count does not ordinarily amount to a rejection of that witness’s evidence as a whole.

Five related appeals and applications arose from jury trials at the Crown Courts at Shrewsbury, Inner London, Snaresbrook and Caernarfon. Each applicant or appellant contended that convictions were unsafe because they were inconsistent with acquittals on other counts.

The cases involved allegations of sexual offending. The disputed verdicts concerned separate allegations, different periods, different incidents, or counts supported by different evidence. Some applications also raised complaints about missing material, the admission of interview evidence, the summing up, text-message cross-examination, and sentence.

The common issue was the proper appellate approach where jury verdicts are said to be inconsistent.

1. All appeals were dismissed and all applications for leave to appeal were refused. The convictions were safe.

2. The governing question under the statutory jurisdiction is whether the conviction is unsafe. Where inconsistency is alleged, the appellant bears the burden of showing that the verdicts cannot stand together: that no reasonable jury which properly applied its mind to the evidence could have reached the differing conclusions. This was the clear test stated in R v Stone and formally adopted in R v Durante.

3. The court held that later formulations, including that summarised in R v Dhillon [2010] EWCA Crim 1577, should not be applied. There was no sound reason to depart from the Stone/Durante test. Appellate courts should not add glosses to settled law or compare fact-specific decisions in search of specialised rules for a single sexual encounter or events occurring over a longer period.

4. A jury may accept a complainant’s evidence on one count while retaining doubt on another. Credibility and reliability are count-specific assessments, unless a particular direction makes one count dependent on another. The conventional direction is to consider each count separately. A defendant seeking a direction that conviction on one count depends on guilt on another must ordinarily raise that issue at trial.

5. Applying those principles, the different verdicts in each case had rational evidential bases. These included differences in date-specific proof, the emergence of allegations through flashbacks, independent supporting evidence, differing sexual encounters, the possibility of a reasonable belief in consent, and inconsistencies in the complainant’s accounts. The court also rejected the subsidiary procedural and evidential complaints. In particular, the trial judge’s treatment of the interview passage under PACE 1984 and of the speculative text-message material caused no unfairness.

• Court of Appeal (Criminal Division) — dismissed Fanning’s and De Jesus’s appeals against conviction, and refused the applications for leave to appeal brought by Kerner, Osianikovas and Smilginis. Smilginis’s application for leave to appeal against sentence was also refused.
• Crown Court at Shrewsbury — Fanning was convicted on nine counts of indecent assault and acquitted on the remaining counts.
• Crown Court at Inner London — Kerner was convicted on two counts of sexual activity with a child while in a position of trust and acquitted on six counts.
• Crown Court at Snaresbrook — Osianikovas and Smilginis were convicted of one count of oral rape and acquitted on three further rape counts.
• Crown Court at Caernarfon — De Jesus was convicted on one rape count and acquitted on two counts.