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England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Abnett & Anor, R v  EWCA Crim 41 (31 January 2017)
Cite as:  EWCA Crim 41
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London, WC2A 2LL
B e f o r e :
MS JUSTICE RUSSELL DBE
THE RECORDER OF MANCHESTER
HIS HONOUR JUDGE STOCKDALE QC
(Sitting as a Judge of the CACD)
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Mr C May appeared on behalf of the Crown
Crown Copyright ©
"You must consider each count separately and the case against and for each defendant separately on each count."
There had been no suggestion by any counsel before him that such a direction was inappropriate or should be tailored or modified in any way.
"The prosecution do not have to prove knowledge that it was amphetamine sulphate, only knowledge that they were controlled drugs."
This direction was and is accepted by all counsel as correct in law. Turning to count 2 (that is, the count relating to the ecstasy) the judge said this amongst other things:
"Count 2, I shall not repeat all of that because of course the circumstances are identical. This is the ecstasy that was in box 8..."
The judge went on to state that here too what the prosecution had to prove, if there was to be a conviction, was that each particular defendant knew that the package contained controlled drugs. The judge then said this:
"So there is no separate proof of knowledge of the category of drug required in both count 1 and count 2. Proof of knowledge of a controlled drug is sufficient. The reason that it is split up is that there are different consequences. That is entirely a matter for me and not for you, but the fact that they are split does not indicate the need to have a separate proof of knowledge as to the class A drug and the class B drug."
He gave further directions to like effect at a later stage in the summing-up.
"When an appellant seeks to persuade this court as his ground of appeal that the jury had returned a repugnant or inconsistent verdict, the burden is plainly upon him. He must satisfy the court that the two verdicts cannot stand together, meaning thereby that no reasonable jury who had applied their mind properly to the facts in the case could have arrived at the conclusion, and once one assumes that they are an unreasonable jury, or they could not have reasonably come to the conclusion, then the convictions cannot stand. But the burden is upon the defence to establish that."
"We do not know whether this Court of Appeal has ever previously formally adopted the view expressed there by Devlin J that the burden is on the defendant to show that verdicts on different counts are not merely inconsistent but are so inconsistent as to demand interference by an appellate court. Be that as it may, for our part we are satisfied that it is right and we now formally express our approval and adoption of that position."
"We reject as too bold the proposition that the simple fact that a jury has returned inconsistent verdicts, acquitting on some count or counts and convicting on others, means that in every such case this Court is obliged ex-necessitate to quash the convictions. There are cases which, in our view, can arise when it would be proper for this Court to say that, notwithstanding the inconsistency, the conviction or convictions must stand. It all depends upon the facts of the case."
"Inconsistent? Yes, in law. Unsafe, unsatisfactory or lacking in common sense? No, a perfectly understandable approach, in the view of this court."
The court went on to say that the existence of the formal logical inconsistency did not lead it to doubt the safety of the verdict on speed.