The Court of Appeal, Criminal Division, in dismissing the defendant’s appeal against conviction for various counts of fraud by dishonest representation and two counts of possession of articles for use in fraud, held that the principles applicable to inconsistent verdicts were capable of applying by analogy where it was logically inexplicable as to how the jury could not reach a verdict on one count when it had reached a verdict of guilty on another. However, it would be a rare case where a failure to reach a verdict was logically inexplicable when set against verdicts reached.
R v Formhals: Court of Appeal, Criminal Division: 21 November 2013
Criminal Law – Trial – Fraud by dishonest representation – Possession of articles for use in fraud – Defendant selling various items, purporting to be signed by Winston Churchill and other famous figures, to victims – Signatures being forged
The defendant dealt in antiques and memorabilia on eBay. The first victim had an interest in memorabilia relating to Winston Churchill and, until 2005, his father had run a book shop specialising in Winston Churchill memorabilia. Counts 1-6 concerned the purchase of a quantity of items, purporting to be signed by Winston Churchill, by the first victim from the defendant on various occasions between November 2009 to November 2010 for the total sum of over £10,000.
On each occasion, the first victim had met with the defendant and had examined the goods before purchasing them. Counts 7 and 8 concerned sales of similar signed items to the second victim in Texas, who paid over $4,000. Counts 9-13 related to the purchase by the third victim, for a total of just short of £1,000, of a variety of books purportedly signed by famous figures. Upon the defendant’s arrest, his home was searched and a huge amount of material, including forged signatures, a calligraphy pen and ink, was found (counts 14 and 15).
At an early stage of the proceedings, the prosecution proposed to conduct its case on the footing that the signatures purporting to be of Winston Churchill, amongst others, had been forged and that the defendant had known that to be the case. However, latterly, the focus of the prosecution case was that it was the defendant who had forged the signatures and that it followed that he had to have known that they were forgeries. Expert evidence was produced at trial to show that the signatures were forgeries.
The defence case was to put the prosecution to proof that the signatures were not genuine; the defendant had believed that the signatures on the books were genuine, had not acted dishonestly, and denied forging the signatures. Further, his father had believed the signatures to be genuine. In his summing up, the judge instructed the jury, amongst other things, that they had to consider each count separately. The defendant was convicted of eight counts of fraud by dishonest representation and two counts of possession of articles for use in fraud. He was acquitted of two counts of fraud by dishonest representation (counts 7 and 11) and three counts of the same offence were ordered to be left on the file following the giving of a majority direction (counts 1-3). He appealed against conviction.
He submitted, amongst other things, that, by reference to the jury failing to agree verdicts on counts 1-3 set against the verdicts of guilty on counts 4-6, the verdicts were inconsistent. There was also an inconsistency in acquitting the defendant on count 7 and convicting him on count 8. The prosecution contended, amongst other things, that, in relation to counts 1-6, the jury could have concluded that the defendant had lacked the necessary knowledge in relation to the first three sales, but had acquired the relevant knowledge by the time of the last three sales (the prosecution contention). The appeal would be dismissed.
The failure of the jury to agree a verdict was not a verdict. However, linguistics ought not to be allowed to triumph. The principles applicable to inconsistent verdicts were capable of applying by analogy where it was logically inexplicable as to how the jury could not reach a verdict on one count when it had reached a verdict of guilty on another. It would be a rare case where a failure to reach a verdict was logically inexplicable when set against verdicts reached. The bar was set high for the application of the principles of inconsistent verdicts. However, it could be set higher where the attempt was to compare verdicts of guilty with instances where the jury could not agree.
On the facts, there was no logical inconsistency in the overall result and the convictions were safe. The jury had not been logically required to achieve an outcome on all of counts 1-6. It was to be noted that the verdicts of guilty on counts 4-6 had not been returned after the majority direction had been given, but had been reached at an earlier stage after several hours of deliberation. It had only been after the majority direction had been given that the jury had indicated that it was unable to agree verdicts on counts 1-3. That negated any concern relating to hasty compromise by reason of seen time pressures.
It was clear that the verdicts on counts 4-6 were not simply to be assumed to be unsafe by virtue of the fact that the jury had failed to reach verdicts on counts 1-3 after many further hours of deliberation. The judge had given clear and separate treatment directions in his summing up.
The expert evidence had focused on items comprising separate counts; the jury had not had to make an identical evaluation of the expert evidence upon each count. Whilst it was not permissible to speculate as to how the jury reached its verdict, the prosecution contention illustrated that there were logical ways for the jury to have ended up with the result. There was no logical inconsistency in relation to the verdicts on counts 7 and 8 either.
R v Batten  Times, 16 March considered; R v Rooney  All ER (D) 158 (Jul) considered; R v Dhillon  EWCA Crim 1577 considered; R v Solomons  All ER (D) 61 (Jan) considered; R v Dobson  EWCA Crim 1856 considered.
Justin Gau (assigned by the Registrar of Criminal Appeals) for the defendant; Paul Jarvis (instructed by the Crown Prosecution Service) for the Crown.