McDonald, R. v

An appeal based on inconsistent verdicts succeeds only where the appellant demonstrates that no reasonable jury, properly applying its mind to the evidence, could have reached the differing verdicts. An apparent error or merciful acquittal on one count does not make a conviction on another count unsafe unless it casts real doubt on that conviction. The jury’s constitutional role requires appellate restraint. A direction to consider each count separately, and a clear rejection of the defence on the count of conviction, may show that the conviction remains safe despite any strict logical tension between verdicts.

Following a jury trial at the Central Criminal Court, the appellant was convicted of inflicting grievous bodily harm and of possessing an offensive weapon. He was acquitted of a separate offensive-weapon count relating to the stabbing.

He appealed against conviction, contending that the acquittal necessarily meant that the jury had accepted his account that he had picked up the complainant’s knife. He submitted that this could not be reconciled with the conviction for grievous bodily harm. The central issue was whether the verdicts on the two counts were inconsistent in a way which made the conviction unsafe.

1. Appeal dismissed. The conviction for inflicting grievous bodily harm was safe. The separate conviction for possession of the knife found in the appellant’s car was wholly distinct and raised no inconsistency issue.

2. The governing approach was that stated in R v Fanning [2016] EWCA Crim 550. An appellant must establish that the verdicts cannot stand together because no reasonable jury, properly addressing the evidence, could have reached them. The test respects the constitutional function of the jury while preserving the safeguard against an unsafe conviction.

3. Strict logical tension between verdicts is insufficient. The appellate court must ask whether the alleged inconsistency indicates that the conviction is unsafe, rather than an error favourable to the defendant on the acquitted count. It may be relevant that the jury were directed to consider the counts separately, or that they took a merciful or ameliorative view of one count.

4. The jury had been clearly directed on the defence of accident and self-defence in relation to the grievous-bodily-harm count. Their acquittal of the more serious section 18 offence and conviction of the alternative section 20 offence showed a careful assessment of that count. Nothing suggested that their rejection of accident and self-defence was confused or unsafe.

5. There were realistic factual routes to the conviction which did not undermine it. The jury could have concluded that the appellant picked up the complainant’s knife but then used it unlawfully; alternatively, they could have concluded that he initially armed himself in anticipation of imminent trouble but then stabbed without accident or self-defence. The acquittal on the possession count could also reflect the jury’s treatment of fleeting unlawful possession or a merciful view. Neither possibility imperilled the conviction.

• Court of Appeal (Criminal Division) — in [2018] EWCA Crim 798, dismissed the appeal against conviction.
• Central Criminal Court — on 19 May 2017, convicted the appellant of inflicting grievous bodily harm and possessing an offensive weapon; he was acquitted on a separate offensive-weapon count. On 16 June 2017, he received a total sentence of four years’ imprisonment.