Formhals, R v

LORD JUSTICE DAVIS:

The appellant, Allan Formhals, is a man now aged 67. On 25th October 2012 after a lengthy trial at the Crown Court at Southampton before His Honour Judge Henry and a jury the appellant 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 furthers counts of fraud by dishonest representation, those being counts 7 and 11 on the indictment. Three further counts were ordered to remain on the file on the usual terms after the jury could not agree on those counts. Those were counts 1 to 3 on the indictment. In due course he was sentenced to a term totalling 10 months' imprisonment.

He now appeals against conviction by leave of the single judge, limited to one ground which may be styled "inconsistency of verdicts". In addition, however, the appellant renews two other grounds in respect of which the single judge refused leave.

The background facts may be relatively shortly summarised as follows. Counts 1 to 6 concerned the purchase of a quantity of items relating to the late Sir Winston Churchill by the complainant, Mr Kim Taylor-Smith, from the appellant. The appellant dealt in antiques and memorabilia on the internet auction site eBay.

The complainant had an interest in memorabilia relating to Winston Churchill; and it seems that his father, Allan Taylor-Smith, had run a bookshop specialising in Churchill memorabilia until 2005. All of the relevant items sold to Mr Taylor-Smith (essentially books, magazines and so on) purported to be signed by Winston Churchill. In total the complainant paid over £10,000 for them. The items in question were purchased on various occasions between 3rd November 2009 and 29th November 2010. On each occasion the complainant, Mr Taylor-Smith, met the appellant in person and examined the goods before purchasing them and paying by cash or cheque.

Amongst other things, the appellant had said that the items had come from the estate of Neville Duke who had been a famous pilot and who had been associated with Winston Churchill. It was further said that the items had been acquired by the appellant himself from Wimbourne Market, albeit his case was that his own understanding was, when he acquired them, that they had indeed originally come from Neville Duke's estate.

So far as counts 7 to 8 on the indictment were concerned, those referred to the sale, or proposed sale of similar signed (or purportedly signed) items to a man called Mr Boatright who was in Texas. He paid over $4,000 for them. Counts 9 to 13 on the indictment related to purchases by a Miss Honan. She bought a variety of books from the appellant purportedly signed by famous figures such as, for example, RL Stevenson, paying just short of £1,000 in total.

The appellant was arrested on 3rd February 2011 at his home in Milford on Sea. His home was subsequently searched and police found a huge amount of material, including autograph books and papers containing forged signatures, a calligraphy pen and a bottle of chestnut brown ink. Some of those items reflected counts 14 and 15 on the indictment, possession of articles for use in fraud.

The indictment in the relevant respects for the relevant counts alleged fraud. By way of illustration, on count 1 the particulars of offence were described as follows:

It appears that at the early stages of the proceedings the Crown had been proposing to conduct the case on the footing that the signatures purporting to be signatures of Winston Churchill had been forged and that the appellant knew that they had been forged. However, latterly the focus of the Crown case was that it was the appellant himself who had forged these signatures of Winston Churchill; and it would follow that if he had forged them himself he knew that they were forgeries.

An amount of expert evidence was adduced at trial with a view to showing that the various signatures on the various lots which were the subject of the various counts were indeed forgeries and did not represent the true signatures of Winston Churchill.

The defence case in a nutshell was to put the prosecution to proof that the signatures were indeed not genuine, as well as putting the prosecution to proof that the goods identified at trial were the same as the ones that he had sold. Further, the appellant was to say in evidence in his own defence that he believed that the signatures on the books and items that he sold were genuine and therefore that he had not acted dishonestly. He denied having forged the signatures himself. His evidence was to the effect that he had bought these various items already bearing the signatures. Indeed part of the defence case was that Allan Taylor-Smith, himself an expert in Churchilliana, had thought initially that the signatures were indeed genuine.

The focus of the appeal for which leave has been granted by the single judge has been by reference to the jury's failure to agree verdicts on counts 1 to 3 as set against their verdicts of guilt on counts 4 to 6. It is said there is an inconsistency in that result. Further, it is said that there is an inconsistency between the acquittal on count 7 and the conviction on count 8. We will come on to the appeal shortly, but it is convenient first to deal with the renewed grounds for leave.

The first renewed ground is that the judge was wholly wrong, as it is said, to refuse at the outset of the trial on 8th October 2012 an application by the defence that the forthcoming trial be adjourned. This application had been made in circumstances when the prosecution had - very late in the day - indicated that they had received medical evidence relating to Mr Allan Taylor-Smith, the father of the complainant. This was to the effect that Mr Allan Taylor Smith's mental and physical frailties were such that it was not proposed that he be called as a witness. The judge approved that decision by the prosecution as a proper decision. The prosecution were however prepared to tender Mr Allan Taylor-Smith to the defence. But the defence complaint was that in truth that gave them no kind of choice, given the then evidence as to Mr Taylor Smith's health. It was said by Mr Gau that no counsel could simply proceed to cross-examine Mr Taylor-Smith as matters then stood.

The defence applied to the judge for an adjournment, indicating that they wanted to undertake their own psychiatric assessment of Mr Allan Taylor-Smith before they could decide whether or not to pursue the possible cross-examination of him. It has to be said, however, that it is not entirely obvious to us what such further medical evidence was likely to achieve.

Be that as it may, in our view this does not begin to give rise to an arguable point here. The trial had already been adjourned once on a previous occasion. Any further adjournment might, as the judge indicated, bearing in mind amongst other things the availability of counsel, cause very significant further delay. Moreover, as the judge pointed out in his ruling, on the face of the witness statement of Mr Allan Taylor-Smith there were passages unhelpful to the defence, as well as passages perhaps potentially helpful. Certainly, on any view, the defence could make the point, as indeed they did, that Mr Allan Taylor-Smith, himself a great expert in Churchilliana, had been prepared to accept these signatures as genuine.

At all events, the judge acknowledged the potential difficulties for the defence. He balanced that against other considerations. His ruling took into account all relevant factors. It cannot possibly be said that it was not a proper exercise of discretion by the judge to refuse to grant the adjournment sought. Thereafter, we also note, no one sought to put in any parts of Mr Allan Taylor-Smith's statement as hearsay evidence. Overall we unhesitatingly refuse leave on this ground.

The second ground sought to be renewed is a complaint that the judge had left the matter to the jury in his summing-up in a way which, it is said, had never been advanced by the prosecution at trial. What the prosecution at trial had been saying was that the appellant had himself forged these various signatures. But the judge had left the case to the jury on the footing that the jury could convict either if they were sure that the appellant had forged these signatures himself or if they were sure that he at any rate knew that the signatures were forgeries even if not forged by himself.

The judge left it in this way to the jury having first discussed the position with counsel before speeches were made. There can be no doubt that leaving the matter to the jury in this way accorded with the way in which the fraud counts had been particularised on the indictment. Indeed, as we have indicated, it seems that in the early stages of these proceedings the Crown had not been seeking to set out to show that the appellant himself had forged these signatures.

In the circumstances, we can see nothing objectionable in what happened here. Mr Gau asserts that he would, or might, have conducted the trial differently on behalf of the appellant had he known in advance that that was the way in which the matter was going to be left to the jury. The position at trial was that the prosecution had sought to show that the appellant had forged these signatures. But, we repeat, the way in which it was ultimately left to the jury accorded with the indictment. In any event, the defendant himself had advanced as his defence not only that he was not the forger of these signatures but also that he neither knew nor believed that the signatures had been forged. In our view, the judge was perfectly entitled to sum the case up as he did. We can identify no disadvantage to the defence in the judge doing so. The judge's approach, fairly in our view, reflected the two alternatives that were properly open to be considered by the jury. He fairly summarised the defence case to the effect that the appellant had neither forged the signatures nor knew that the signatures were forged. It is also noticeable that Mr Gau candidly and fairly conceded that he could have had no complaint had the Crown at the outset of the trial proceeded on the footing of the two alternative bases.

In such circumstances, we refuse leave on that ground also.

That leaves the ground for which permission to appeal has been granted, namely inconsistent verdicts.

Mr Gau's written argument was based on the assumption that a failure by a jury to reach a verdict, as occurred in the case of counts 1 to 3 here, was capable of giving rise to verdicts inconsistent with the guilty verdicts on counts 4 to 6. But, self-evidently, a failure to reach a verdict is not a verdict. Strictly, therefore, it cannot be said that there has been an inconsistency in the jury's verdicts (emphasis added) as such at all.

This point cannot be brushed aside quite as easily as Mr Gau would have it, at least in his written arguments; although it is right to say that in oral argument he acknowledged that matters were not quite so straightforward as initially proposed.

There are in fact authorities, unearthed by the helpful researches of the Criminal Appeal Office, in which constitutions of this court have apparently proceeded on the basis that the principles applicable to alleged inconsistent verdicts do not apply to situations where there has been a failure to reach a verdict. For example, in the case of Solomons [2011] EWCA Crim. 1, Pitchford LJ said at paragraph 17 of the judgment:

In the case of Rooney [2006] EWCA Crim. 1841, on the other hand, a yet different constitution of this court was prepared to accept that a failure by a jury to agree may be sufficient to bring in play the principles applicable to inconsistent verdicts. That approach also seems to have been accepted in the earlier case of Clifford (unreported, 8th May 1998). The decision in Clifford itself referred to a previous decision of the Court of Appeal over which Lord Chief Justice, Lord Lane, had presided in the case of Batten (1990) The Times Law Reports 217.

This court does not have a full report of the decision in Batten. But the position, as summarised in the case of Clifford so far as Batten is concerned, was apparently this. The offence charged was against two men. It was one of gross indecency which was alleged had taken place in a public lavatory. The prosecution's evidence consisted of a single witness, a police officer, who had, so he told the jury, observed the offence through a peep hole in the floor of the loft of the public lavatory. The jury convicted one defendant but failed to agree in the case of the other. The Court of Appeal held that if the jury had been made sure by the police officer's evidence of what the police officer said he had seen then both men were plainly guilty. If, on the other hand, the jury were not sure that the police officer's evidence was truthful and accurate then neither man could be guilty. In those circumstances, the conviction could not stand because the jury's failure to agree in the case of the one defendant was a clear indication they were not sure that the police officer had accurately described what he had seen. (Given the remarks in Batten one must presumably deduce that identification had not been raised as an issue in that case.) So far as Clifford itself was concerned, the court on the facts held that the convictions were safe.

Overall in this context what the Court of Appeal ultimately has to consider is whether or not a conviction is safe. The failure of a jury to agree on a verdict is, as we have said, self-evidently not a verdict. But in our view, in a context such as the present, linguistics should not be allowed to triumph over justice. It thus may be that where a jury fails to reach a verdict that cannot be said to give rise, strictly, to an inconsistent verdict when set against another verdict. But that is labelling; and in our view, the principles applicable to inconsistent verdicts are capable of applying by analogy where it simply is logically inexplicable as to how a jury could not reach a verdict on one count when set against a verdict of guilt they had reached on another count. We thus think it would be going too far to preclude a defendant in such a situation from even being permitted to argue that the resulting situation gives rise to an unsafe conviction. Accordingly, it is open to the appellant to raise this point in this appeal.

It will be a rare case indeed where a failure to reach a verdict can be said to be logically inexplicable when contrasted with or set against a verdict or verdicts which have been reached. If such an argument is to be run, it will have to be run in cases which will call for the closest scrutiny by the court. Moreover, such an argument has to be run in circumstances where the principles applicable to inconsistent verdicts (in the true sense of the words) are - as has long been established - themselves very tightly prescribed: see, amongst other cases, Dhillon [2011] 2 Cr.App.R 10, [2010] EWCA Crim 1577 where the main relevant principles are helpfully summarised by Elias LJ at paragraph 33 of the judgment of the court, and as further amplified by the judgment of the court delivered by Jackson LJ in the case of Dobson [2011] EWCA Crim. 1856. The bar is thus set high for the application of the principle of inconsistent verdicts. It can be set no less high, and perhaps is set higher, where the attempt is to compare and contrast a verdict of guilt with a failure by the jury to agree.

We turn to the present case. It is to be noted that the verdicts of guilt on counts 4 and 6 were not returned after the majority direction had been given and at the same time as the indication of failure to agree a verdict on counts 1 to 3. On the contrary, the jury reached their verdicts on counts 4 to 6, as well as on certain other counts, at a much earlier stage (albeit after several hours of deliberation) and before any majority direction had been given. It was only after the majority direction had been given and after many more hours of further deliberation that the jury indicated that they were unable to agree verdicts on counts 1 to 3.

As Mr Jarvis for the Crown pointed out, that scenario tends to displace any concern about, for example, a hasty and illogical compromise by reason of perceived time pressures. Furthermore, he was also entitled to point out (reflecting, perhaps, what was said in Keeling) that the unanimous verdicts on counts 4 to 6 are not simply to be assumed to be unsafe by reason of a subsequent failure to agree on counts 1 to 3 after many hours of further deliberation.

We also note, in this regard, that the judge had given a clear and specific separate treatment direction towards the outset of his summing-up. He said this:

In any case, we can see no logical inconsistency in the overall result. The jury were not logically required to achieve the same outcome on all of counts 1 to 6. For one thing, the expert evidence had focused on various of the lots separately comprising the separate counts. The jury did not have to make an identical evaluation of the expert evidence on each such matter. They could have made a different assessment and reached a different conclusion depending on the lot in question. We agree that may not perhaps seem to be a very likely position: but it was logically open to the jury and juries are conventionally told that they do not have either to accept particular evidence in its whole or to reject that evidence in its whole. Moreover, whilst the ultimate source of the appellant's purchases of all these items which were the subject of counts 1 to 6 was the same (that is to say Wimbourne Market) the various lots were the subject of separate sales to Mr Taylor-Smith over an extended period of time: which, indeed, reflects the fact that there were six separate counts on the indictment in this regard. Mr Jarvis suggested that the jury could have concluded that the appellant may have lacked the necessary knowledge on the first three sales but have concluded that he had acquired the relevant knowledge of the signatures being forged by the time of the last three sales. Mr Gau objected that that is illegitimate speculation as to the jury's thought processes. But whilst of course one cannot know or speculate as to how the jury reached its verdicts, Mr Jarvis's point simply indicates that there were logical ways for the jury to have ended up with the result that eventuated; and it is not enough for an appellant then to seek to dwell on whether or not such a scenario is very plausible.

Turning to counts 7 and 8, here indeed there were true verdicts. The jury acquitted on count 7 and convicted on count 8. They did so prior to the majority direction and at the same time as returning the verdicts of guilty on the other counts. There is no logical inconsistency here either. Count 7 related to a batch of books and other items acquired by the appellant from various sources and offered to Mr Boatright over a period of time, Mr Boatright then selling some of them on. Count 8 on the other hand related to a particular proposed transaction whereby Mr Boatright had been offered, albeit had not purchased, 12 volumes of Christian Science Monitor with alleged false signatures. In that respect, there had been evidence querying whether Winston Churchill would ever sign such a magazine. Further, there had been evidence to the effect that volumes containing such magazines had in an unsigned form previously been collected by persons acting for the appellant. Yet further, such volumes with signatures on them were later found at the appellant's property. Moreover, these magazines had, on the appellant's own evidence, been acquired from a different source, a source which the jury may have considered not very impressive, namely a re-cycling centre. Such matters clearly highlight potential differences on the facts as compared to count 7. There is no logical inconsistency between these verdicts.

In the overall result, we therefore refuse leave on the renewed grounds. The appeal itself based on alleged inconsistent verdicts is dismissed. This court is satisfied that the convictions are safe.