Davey, R. v

Evidence of a jury’s internal deliberations is inadmissible after discharge, save in the limited cases where the jury did not deliberate at all or were affected by extraneous influences. A post-verdict complaint of pressure from fellow jurors does not fall within those exceptions and cannot found an appeal.

An inconsistent-verdict appeal succeeds only where no reasonable jury, properly applying its mind to the evidence, could have returned the verdicts. The Court of Appeal will not substitute its own factual assessment where differing verdicts can rationally reflect differences in the evidence on separate counts.

The appellant appealed his conviction at Lewes Crown Court for assault by penetration. He had been acquitted on a separate count of sexual assault arising from the same alleged incident. He received a suspended sentence of two years’ imprisonment, with unpaid work, rehabilitation and ancillary orders.

The trial judge certified the case as fit for appeal after two jurors complained, after discharge, that they had felt pressured to agree verdicts because other jurors did not wish to return on the following Monday. The appellant also contended that the conviction and acquittal were inconsistent. The central issues were whether the juror communications could be relied upon and whether the verdicts met the test for impermissible inconsistency.

1. Appeal dismissed. The trial judge should neither have disclosed the former juror’s communication to counsel nor certified the case as fit for appeal. Under the Criminal Practice Directions, a post-discharge allegation of jury irregularity should be referred neutrally, with the communication, to the Registrar.
2. The rule against investigating jury deliberations made the complaints inadmissible. The narrow exceptions concern a jury which did not deliberate at all, such as a decision by chance, and a jury affected by extraneous influences. Alleged pressure exerted by fellow jurors during deliberations was not such an exception. The complaints could therefore not found a ground of appeal and did not assist the inconsistent-verdict ground.
3. Applying the test stated in R v Fanning [2016] EWCA Crim 550, the appellant had to show that no reasonable jury properly considering the evidence could have returned the two verdicts. The jury had been correctly directed to consider each count separately.
4. The evidence was capable of supporting the conviction for digital penetration while leaving the jury unconvinced of the allegation of oral contact. The complainant had been more consistent about the former allegation, and her intoxication could rationally have led the jury to conclude that she was mistaken about the latter. The verdicts were therefore not so inconsistent as to require appellate intervention.

• Court of Appeal (Criminal Division): Appeal dismissed: [2017] EWCA Crim 1062.
• Lewes Crown Court: The appellant was convicted on 3 March 2017 of assault by penetration and acquitted of sexual assault. On 15 May 2017 he was sentenced to two years’ imprisonment suspended for two years, with unpaid work, rehabilitation and ancillary orders.