England and Wales Court of Appeal (Criminal Division) Decisions

Court of Appeal Criminal Division

		Royal Courts of Justice Strand, London, WC2A 2LL
		08/07/2010

Lord Justice Elias :

1. On 23 October 2009 at the Crown Court at Southwark before His Honour Judge Wadsworth, the appellant was convicted by a majority of 10/2 of assault by penetration (count 1) and sexual assault (count 3). He was sentenced to 18 months' imprisonment on count 1, and 6 months' concurrent on count 3. The total sentence was therefore 18 months. As a consequence he was required to comply with the provisions of Part 2 of the Sexual Offences Act 2003 for 10 years.
2. He was acquitted of three counts; one of assault by penetration (count 2); one further count of sexual assault (count 4), and one of attempted rape (count 5). He now appeals against conviction by leave of the single judge.
3. The five counts reflected allegations of different forms of sexual activity with one complainant during the course of a single sexual encounter.
4. The counts and the activities they reflected were as follows:

Count 1, assault by penetration, allegedly involved insertion of the fingers into the vagina of the complainant.

Count 2, assault by penetration involved the alleged insertion of the fingers into the anus of the complainant.

Count 3, sexual assault, involved touching the breasts of the complaint.

Count 4, another count of sexual assault, involved allegedly licking the vaginal area of the complaint.

Count 5 was the attempted rape.

5. The appellant admitted that the activities reflected in counts 1, 3 and 4 had occurred. He denied that the activity in count 2 had occurred and as for the attempted rape, he accepted that he was willing to have consensual sex with the complainant but said that he was unable to do so since his penis was not erect.
6. The background was as follows. The complainant had stayed with the appellant at a flat owned by the company of which they were both employees. They had both been to a charity quiz at a wine bar and the complainant had asked if she could stay in the flat rather than return to her home in Hove. During the course of the evening sexual activity took place. The appellant agreed that it had (whilst denying that the particular acts covered by counts 2 and 5 had occurred) but said that it was with consent.
7. The complainant's evidence was that when they got back to the flat she was drunk and very tired but was aware of things. The appellant had offered her the bed but she had refused. He went back to the bedroom and she went to sleep. The next thing she remembered was being in the hall. The appellant was behind her. He was trying to lift and push her. She did not go to the bedroom by herself. She dug her heels in and asked what he was doing. He had his hands under her arms and he was pushing her along. He said that they should swap sleeping arrangements. They then got to the bedroom. She did not feel particularly threatened.
8. Once inside the bedroom the next thing she recalled was being face down on the bed. The appellant was moving his fingers in and out of her vagina and anus. He was using both hands. He did this more than once. She was aware at that stage that she had no knickers on. She had not taken them off and did not know what had happened to them. She was confused and did not know what was happening. He was naked.
9. She was trying to turn onto her back but he kept pushing her back. She could feel his chest and his penis. He was constantly trying to take her top off and was groping her breasts and legs. She twisted her hips around in a kneeling position, but was still face down. He then licked her vagina. She started to panic. She was disgusted and confused.
10. He got her onto her front and was on top of her and between her legs. He was in a position for sexual intercourse and was making a stabbing motion. He did not care whether he entered her vagina or anus. She shouted "Enough" two or three times. His penis was not erect and he said "Oh, flippy floppy". She then said "I'm fed up with this" and moved off sideways.
11. She went to the bathroom because there was a lock on the door. She then got dressed in the lounge. She sat on the sofa to put her shoes on and he came in wearing his pyjamas. He said "You're not going to be silly? I did nothing you didn't want". She told him to leave her alone which increased the intensity of what he was saying. As she left he said "nice arse by the way" and she replied "Fuck off".
12. The appellant's evidence about the incident was that he had offered her the bed but she had refused it and so he went into the bedroom and fell asleep. Later he woke up and realised that another couple were staying in another bedroom in the flat so he went to the complainant and told her that he thought it would be embarrassing if the other couple were to see her on the sofa. She agreed. He offered her the bedroom and this time she accepted.
13. He went to the lavatory. When he came out she was in the bed and the bedroom door was closed. He got into the bed and tickled her back. She giggled and rolled over onto her back. He pulled up her vest and fondled her breasts. He touched her over her knickers. She groaned and said "I like this". He put his hand inside her knickers and there were more appreciative signs. She lifted her legs and took her knickers off. He then performed oral sex and penetrated her vagina with his fingers. His finger might have been on her anus but he did not penetrate it and he did not want to.
14. He began to take his shirt off and she tugged at his shorts in order to get them off. He lay on his back and she straddled him. They kissed and he performed more oral sex. He then held his penis up and said "Oh, I've just got a flippy floppy". She reached around and touched his penis and made a noise as if to say he was pathetic. He was embarrassed and said that they should not be doing this and that it was awful.
15. The complainant pulled her vest down and went to the toilet. She came out and he said nothing. He then put his trousers on and went into the lounge. He asked if she was ok but she did not respond. He asked her whether she was feeling bad as well. He then said "What have I done?" and she replied "You know what you've done". He answered "We did that". She asked him to leave her alone and he did. He heard her leave about 10 minutes later. He went back to bed and found her knickers. He pushed them down the back of the bed. He then went to sleep until the police arrived.
16. The complainant left the flat at around 2.14 a.m. She telephoned two sisters, who were friends of hers, and they said she was distressed and crying. She recounted the experience to them but made no mention of oral sex at that time. Nor did she mention the oral sex or attempted intercourse in her first statement to the police. Again, when she saw the doctor she did not initially mention the oral sex, but did so after the doctor had asked her if they had kissed. She then said "I think he went down on me".
17. The basis of the appeal is that there were inconsistent verdicts. It is accepted that the jury were entitled to find the appellant guilty on some counts and not others, and indeed the judge had reminded the jury that they should consider each count separately. However, it is submitted that there is a logical inconsistency in the verdicts which the jury in fact reached; convicting on counts 1 and 3, but not on count 4.
18. The basis of the submissions of Ms Whitehouse, counsel for the appellant, is as follows. There was no issue before the jury other than that the three incidents referred to in counts 1, 3 and 4 had occurred. The only issue for the jury to determine was whether the complainant had consented, or whether there was a reasonable belief in consent. She referred us to passages in the summing up which, she submits, make this plain.
19. In relation to count 1, the judge said that the appellant had agreed that he had penetrated the complainant's vagina with his finger and he told the jury "It is a fact for you to decide one way or the other, but nobody disputes it". And then he told them that really what they had to decide was whether there was consent or reasonable belief in consent.
20. Similarly, in relation to count 3, touching the breast, he said this "He said he touched her breast. She says he touched her breast. You probably will be satisfied that he did. Question, was it consensual or not? Was there belief on his part?"
21. He then approached count 4 in essentially the same way. After referring to the oral sex, he commented that: "Both sides agree it happened, but the questions are of consent and reasonable belief in consent."
22. Logically there were three potential routes by which the jury might have reached the different verdicts. The first was that the jury may have been unsure whether the oral sex had occurred whilst being sure that the other two sexual acts had occurred. The second was that the complainant had consented to the oral sex but not the two lesser acts identified in counts 1 and 3. The third was that the Appellant had a reasonable belief that the complainant was consenting to the oral sex but did not have any such reasonable belief with respect to the touching of the vagina and the breasts.
23. Ms Whitehouse submits that a conclusion that the oral sex might not have occurred was an impossible conclusion given that both participants had said under oath that it did, and given the way in which the judge summed up to the jury. Although in the time honoured way the judge told the jury that the facts were for them, there was simply no basis for departing from the evidence of both parties in a manner entirely inconsistent with the way in which the case was left to them.
24. As to the question of consent, it would be quite bizarre to infer that the complainant had objected to the touching of the breasts, referred to in count 3, and yet had been a willing party to the oral sex in count 4. Similarly, given the nature and inter-relationship of these counts, it was fanciful to think that the appellant could have had reasonable grounds to believe that the complainant was consenting to the oral sex but not the less invasive incident in count 3.
25. Mr Gritt, who appeared for the prosecution in this court but not at the trial, accepted that there was no conceivable basis on which the jury could have found that the complainant had consented to the oral sex but not the two acts of touching. However, he contended that there were two potentially rational and consistent bases for the verdicts that the jury reached. First, they might not have been sure that the oral sex occurred. He emphasises that the jury were told that they should approach each count separately, and that the evidence was for them. There is no reason to suppose that they did not adhere to those directions.
26. He points out that the complainant, when recounting her experience, had not initially mentioned the oral sex at all. Furthermore, this was a matter that was firmly before the jury because the appellant was seeking to rely upon that fact. It is true that he was doing so not in order to dispute that the oral sex had occurred - because of course he admitted that it had - but rather in order to establish that the complainant's account of events was not consistent and therefore unreliable. Nevertheless the evidence about this was prominently before the jury who might have focused on that evidence in order to conclude that they were not entirely sure that that incident had occurred, notwithstanding the contrary evidence at trial of both complainant and appellant.
27. The second possible basis for the verdicts suggested by Mr Gritt focuses on the issue of reasonable belief in consent. Mr Gritt says that if one looks at the chronology of these incidents then a possible explanation is that the jury did not believe that the appellant could have had a reasonable belief that the complainant was consenting to the incidents recounted in counts 1 and 3, whilst concluding that he may reasonably have held that belief with respect to the oral sex covered by count 4.
28. He puts the point this way: there had been no evidence of any sexual attraction or flirtation when the parties were together before returning to the flat. The appellant would, therefore, have had no basis for assuming that any advances of his would be with the complainant's consent. However, there was no evidence either that the complainant actually said anything while the sexual activity was taking place and that could have led the appellant to believe that she was happy with what he was doing. So by the time he engaged in the oral sex, the jury might have concluded that he reasonably believed that she was consenting.
29. Ms Whitehouse responds that there was no evidential basis to support either analysis, and furthermore it was not the way in which either counsel was advancing the case to the jury. Indeed, when she asked the judge to remind the jury that the complainant had not initially mentioned the oral sex – in order to illustrate the unreliability of her evidence - he did not do so giving as his reason the fact that both parties had agreed that oral sex had happened.
30. As to the possibility that the appellant may have had no reasonable belief in consent with respect to counts 1 and 3, but may have had such reasonable belief with respect to count 4, Ms Whitehouse submitted that this was not a conceivable explanation either. She pointed out that the jury had in fact posed a question to the judge about the chronology of events. They asked this:

"Is it possible to clarify for the jury the chronological order of the first four counts?"

31. The judge replied to the jury in the following way:

"I have had a word with counsel about this and we all assume from that that you are satisfied that the 5^th came last in time. As remains for the other four, it is a matter for you to find the chronological order, not for us to tell you, but I think I can say that counsel are content that I should say we should expect that count 1 probably came first, if only by a very, very short time, and it is unlikely, whether these matters are consensual or not, that either a complainant or a defendant asked a year later about such an incident should be able to lay it out in a sort of Parliamentary series; the other three probably came pretty speedily together afterwards, but that is a matter for you. Again, you may think, and I stress that I mean these words literally, you may think that if you are looking at questions of consent or reasonable belief in consent it may be that they would apply equally to all four in that they all happened in the same incident, but you are certainly not bound to that view and you may have a different view."

32. Ms Whitehouse contends that in the light of the evidence, coupled with this indication as to the sequence of events, the jury could not properly have concluded that the incident in count 4 occurred at some appreciably different time to that in count 3. There was, therefore, no proper evidential basis entitling a reasonable jury to conclude that the appellant did not have a reasonable belief in consent with respect to count 3 but might have done with respect to the oral sex in count 4.

The law.

33. It is notoriously difficult successfully to challenge a jury's verdict on the grounds that inconsistent verdicts have been returned. We have been referred to a number of authorities which in our view establish the following principles:

1. The test for determining whether a conviction can stand is the statutory test whether the verdict is safe.

2. Where it is alleged that the verdict is unsafe because of inconsistent verdicts, a logical inconsistency between the verdicts is a necessary condition to a finding that the conviction is unsafe, but it is not a sufficient condition.

3. Even where there is a logical inconsistency, a conviction may be safe if the court finds that there is an explanation for the inconsistency. It is only in the absence of any such explanation that the court is entitled to conclude that the jury must have been confused or adopted the wrong approach, with the consequence that the conviction should be quashed.

4. The burden of establishing that the verdict is unsafe lies on the appellant.

5. Each case turns on its own facts and no universal test can be formulated.

34. The requirement summarised in the second principle, namely that there must be a logical inconsistency in the verdicts, is now very firmly established. It was affirmed by the decision of this court in R v Rafferty and Rafferty [2004] Crim 968 when the then Vice President (Rose LJ) said this (para 18):

"So far as inconsistent verdicts are concerned, during the last 10 years or so, this court has said again and again that an appeal based on inconsistent verdicts cannot and will not get off the ground unless there is, first a logical inconsistency between the verdicts returned by the jury. ……. We repeat yet again, in summary form, just a few of the authorities in this court, in which the need for logical inconsistency between the verdicts to be prevented before such a ground can take off. We identify, for example, R v McCluskey 98 Criminal Appeal Reports 216; R v Bell Court of Appeal (Criminal Division) 15 May 1997, R v Clarke and Fletcher Court of Appeal (Criminal Division) Transcript 3 July 1997, R v Gee [1998] Crim LR 483, and R v McCartney & Others [2003] EWCA Crim 1372. Finally, we refer to an observation made by Buxton LJ in G at page 484 of the report which, regrettably, seems to be far less heeded than it should be. It is in these terms:

"In appeals in relation to alleged inconsistent verdicts those promoting the appeal should ensure that Bell and the instant case [G] are before the court and should be in a position to explain why the general approach adumbrated in Bell (i.e the need to establish a logical inconsistency) should not apply.""

35. The third principle is supported by a number of authorities where this court has accepted that there is a logical inconsistency in the verdicts, but has nonetheless not been persuaded that the verdict is unsafe: see e.g. R v Segal [1976] RTR 319; R v McCluskey (1994) 98 Cr App R 216 and most recently, R v Lewis, Ward and Cook [2010] EWCA Crim 496. In Clarke and Fletcher (30 June 1997) Hutchison LJ said that an appellate court will not conclude that the verdict is unsafe "if it possible to postulate a legitimate train of reasoning which could sensibly account for the inconsistency."
36. However, in R v Cova Products Ltd [2005] EWCA Crim 95, Kennedy LJ observed that it is difficult to see how a legitimate train of reasoning could lead to logically inconsistent results. We respectfully agree that the phrase "legitimate train of reasoning" may be inapt. But in some cases it may be possible to see why a jury applying common sense and their experience of life has reached the verdicts it has, even though its analysis cannot withstand rational scrutiny. A recent example is found in R v Lewis, Ward and Cook where a jury convicted of manslaughter when rationally, given their verdict on another count, it was conceded by the prosecution that they ought in logic to have convicted of murder. This court surmised that they had not done so because, unlike the two co-accused who were convicted of murder, the appellant did not participate in the actual killing.
37. The fourth and fifth principles were affirmed by this court in a judgment given by the then Lord Chief Justice, Lord Phillips, in R v Ashley Mote [2007] EWCA Crim 3131. In that case the court declined to follow a suggestion originally made by Professor Sir John Smith, and which this court in Cova Products considered had much to commend it, to the effect that once a logical inconsistency had been established, it should be for the prosecution to satisfy the court that the conviction was not the result of confusion or the jury adopting the wrong approach. Lord Phillips said this (para 50):

"We question whether it is helpful to adopt a staged approach to the burden of proof in this way. The starting point is that the burden is on an appellant to persuade the Court of Appeal that the verdict is unsafe. Where he seeks to do this by showing that the acquittals on some counts are inconsistent with convictions on others, he has to persuade the court that the nature of the inconsistencies is such that the safety of the guilty verdicts are put in doubt. That question will turn on the facts of the particular case and it is not safe to attempt to formulate a universal test."

38. A key issue is what amounts to a logical inconsistency. In Durante (1972) 56 Cr App R 708, 714 Edmund Davies LJ described the test as being whether the verdicts were such that "no reasonable jury who had applied their minds properly to the facts in the case could have arrived at the two differing conclusions." In other words, there is no rational explanation to justify the jury's conclusion. However, since the facts are within the purview of the jury, and they do not reveal them, it must follow that if the apparently inconsistent verdicts could be explained by findings of fact which were properly open to the jury on the evidence, even if they might appear to be surprising findings, then no successful appeal could be maintained.
39. This approach is supported by the observations of Toulson LJ giving the judgment of this court in R v Cross [2009] EWCA Crim 1553. Toulson LJ said that verdicts would be inconsistent where:

"they cannot plausibly be explained by any line of reasoning which the jury could have adopted looking at the evidence as fair-minded ordinary people. The appellate court has to apply this test in the context of the issues which were presented to the jury, but that does not of course mean that a jury had to view the evidence bearing on those issues in the way that was argued for either by the prosecution or the defence."

40. It is firmly established, however, that a verdict will not be illogical simply because credibility is in issue, each count depends upon the uncorroborated account of a single complainant, and the jury convicts on one count but acquits on another. As it was put in R v G [1998] Crim LR 483 by Buxton LJ, neither credibility nor reliability is a seamless robe. A jury is entitled to accept part of a complainant's evidence whilst rejecting - or more accurately not being sure about - other parts.
41. Generally, therefore, in sex cases where it is alleged that different sexual incidents occurred on separate occasions, verdicts will not be inconsistent simply because a jury convicts on some counts and acquits on others, because there is likely to be an obvious legitimate chain of reasoning to explain the verdicts. The jury may be sure that a witness has reliably recalled one incident but remain unsure about another; or they may consider that some incidents are exaggerated or fabricated but not all. There have been numerous cases of this nature where challenges on the basis of inconsistent verdicts have unsurprisingly failed: e.g. R v Bell (unreported 15 May 1997, BAILII: [1997] EWCA Crim 1200 ) and R v VV [2004] EWCA Crim 355.
42. This case does not, however, fall into that category. Here the various alleged offences are simply different facets or acts in the course of a single sexual encounter. In these circumstances, if the jury is unsure of the complainant's evidence with respect to one count on the grounds that it may be unreliable or lacking credibility, it is likely to be more difficult than it would be with respect to chronologically separate encounters for a jury to be sure that the evidence on the other counts is reliable and credible.
43. We have been referred to two cases where the appellant appealed his conviction on the grounds of inconsistent verdicts with respect to what might be treated as a single sexual encounter.
44. In Van der Molen [1997] Crim LR 604 the appellant had allegedly both sexually assaulted a woman by putting his finger into her anus and a little later raped her. He denied that the assault had occurred and claimed that he honestly believed that she was consenting to the intercourse. She denied consenting to either act. He was convicted of the assault but not the rape. In giving evidence the appellant agreed that initially the complainant had not been willing to have sex. The appeal was on the basis that if the jury could not be sure as to the rape, it was unsafe to convict for the assault.
45. This court (Evans LJ, Hidden J and Judge Walsh QC) observed that "the court had to be very careful not to usurp the role of the jury who had heard the witnesses and considered the matter long and hard." The court held that there was nothing irrational or inconsistent about the jury acquitting of the more serious charge of rape but convicting on the lesser charge. We respectfully agree; there was plainly evidence from the defendant himself which suggested that there was initially opposition to his advances. So the jury could well have concluded that he did not initially believe that the complainant was consenting to the assault, but did later honestly believe that she consented to intercourse.
46. By contrast, in R v Michael O'Brien [2003] EWCA Crim 995 the appellant was charged with two counts of rape and one of attempted rape, all incidents occurring in the course of a single encounter. The appellant conceded that intercourse had occurred once but claimed that it was consensual. He was convicted on one of the rape counts but acquitted on the other two counts. The Court of Appeal (Tuckey LJ, Keith J and Sir Brian Smedley) upheld the appeal on the grounds that the conviction was unsafe. After exploring possible ways to find a logical basis for the verdicts, Tuckey LJ said this:

"So it is apparent from this analysis that one has to struggle to find a logical explanation for these verdicts and that each possible explanation is very much open to doubt. The reason for that, of course, is that these explanations stray further and further away from the evidence which was actually given in the case, where there was, as we have said, an acute conflict between the complainant and the appellant as to what happened. Of course, it is open to a jury to accept part of a complainant's evidence and part of an appellant's evidence and it is not bound by a black and white conflict to accept one version or the other. But in this case, at the end of the day, struggle though we have to find a logical reason, we have not been able to find at least one which satisfies us sufficiently to be able to say with confidence that these verdicts were not inconsistent and that the appellant's conviction was therefore safe."

47. This case demonstrates the principle that when assessing the jury's reasoning, it is important to have regard to how a fair minded jury would approach the evidence that was properly before them. It is not legitimate to find an explanation for the different verdicts which is premised on factual findings which no reasonable jury, properly considering the whole of the evidence, could reach.
48. Applying the principles we have enunciated to the facts of this case, we have concluded that these verdicts are logically inconsistent. There is no satisfactory explanation of them which can render them consistent. We are not persuaded by either of the possible explanations advanced by Mr Gritt. As to the first, we do not think that a fair minded jury, having regard to the evidence before them, could reasonably have found both that the incidents in counts 1 and 3 did occur but that the oral sex covered by count 4 did not. We do not say that the jury was bound to find that any of these incidents occurred; plainly that was a matter for them, and in principle they could have been so unimpressed with the evidence from both complainant and appellant that they were not satisfied that they could be sure of anything. But having accepted as true and reliable the complainant's evidence that the incidents in counts 1 and 3 occurred, it would in our view have been perverse for it to reject her evidence that the incident in count 4 occurred given that the appellant in an admission against interest corroborated her evidence by admitting that it did indeed occur. The perversity of such a finding would in our view cast sufficient doubt as to the jury's approach to the evidence as to render the convictions potentially unsafe.
49. Nor do we think that Mr Gritt's alternative explanation is plausible. In our view no reasonable jury could have concluded that the appellant had a reasonable belief that the complainant was consenting to the oral sex but not the touching of the breasts referred to in count 3. Again, there was no evidential basis for drawing a distinction in this regard between counts 3 and 4. It was not as if the evidence showed that the oral sex in count 4 had occurred some time after the breast touching in count 3. Had that been the case then it might just have been possible to justify an inference that the appellant's reasonable perception of whether the complainant was consenting could have changed in the meantime. But the evidence was that they occurred virtually at the same time. The judge's response to the question on the chronology of events indicated that it was not possible from the evidence to be clear as to which of the acts in count 3 or 4 had occurred first. Furthermore, neither the judge nor counsel had ever suggested that the appellant may have had a reasonable belief at one stage but not another. In our view no reasonable jury, fairly applying their minds to the evidence before them, could have distinguished count 4 in this way.
50. It follows that in our view the verdicts were inconsistent and/or perverse. But as we have said, that does not of itself demonstrate that they are unsafe. Mr Gritt submitted that even if, contrary to his primary submission, they were inconsistent and/or perverse, they constituted what he described as "explicable perversity". The issues before the jury were clear; they knew that they had to find that the act described in the count occurred, that there was no consent, and no reasonable belief in consent. The jury took considerable care over their verdicts; they considered them over a period of some six hours. If and to the extent that the verdicts are inconsistent, the evidence suggests that the verdict on count 4 might have been an unjustified acquittal, favourable to the appellant, rather than that he was unjustifiably convicted on counts 1 and 3.
51. We see the force of that submission but are not ultimately persuaded by it. We are satisfied that the jury may have approached these counts in the wrong way. They clearly found difficulty reaching a verdict as witnessed by the fact that it was a majority verdict after some six hours of deliberation. We think that there is a real risk that in an understandable attempt to reach a verdict, a compromise might have been reached without the necessary majority actually being sure with respect to the two counts where convictions were returned.
52. It follows that in our view the appeal succeeds; the guilty verdicts are not safe and must be quashed.