Unsafe to Convict Two Defendants for the Same Injury Absent a Put and Directed Joint Enterprise Case: Alignment of Indictment, Route to Verdict, and Proof

Case: CGA & Anor, R. v [2026] EWCA Crim 385 (CA (Crim Div))
Date: 27 March 2026

1) Introduction

This appeal concerned convictions of two parents (anonymised as CGA and ZFX) for causing grievous bodily harm with intent (Offences Against the Person Act 1861, s.18) and associated assault counts, arising from serious non-accidental injuries sustained by their infant daughter, C. The prosecution case at trial did not identify which parent inflicted which injuries; nor did it allege that the injuries resulted from any form of joint enterprise or assistance/encouragement between the parents.

The central issue on appeal was whether the jury’s verdicts were inexplicable and irrational—and therefore unsafe—because they convicted both parents of causing the same distinct injuries even though the case had been presented and directed on the basis that, for each injury, the jury had to be sure which defendant caused it.

The Court of Appeal allowed both appeals, quashed the s.18 and related convictions, and limited any retrial to s.5 Domestic Violence, Crime and Victims Act 2004 “causing or allowing” counts (for CGA), recognising that s.5 was designed for precisely this evidential difficulty.

2) Summary of the Judgment

3) Analysis

A. Precedents Cited

1. R v Fanning [2016] EWCA Crim 550 (endorsing R v Durante [1972] 3 All ER)

The Court treated R v Fanning [2016] EWCA Crim 550 as the modern statement of principle on when “inconsistent” or irreconcilable verdicts justify appellate intervention. The burden lies on the appellant to show that the verdicts “cannot stand together,” in the sense that no reasonable jury, properly applying itself to the facts, could have returned them. Importantly, the Court repeated the caution in Fanning against over-elaborating the test.

The Court accepted that, in the abstract, apparent inconsistencies do not automatically render verdicts unsafe (a theme stemming from R v Durante [1972] 3 All ER), reflecting respect for the jury’s constitutional role and the realities of trial dynamics. However, that general restraint does not protect verdicts that are incompatible with the way the case was actually left to the jury.

2. R v Green [2005] EWCA Crim 2513

R v Green [2005] EWCA Crim 2513 supplied the methodological key: inconsistency is not assessed in the abstract but by examining how the case was opened, how evidence emerged, and how the case was finally presented. The Court quoted Green to emphasise that reconciliation attempts on appeal must be tested against the trial’s forensic reality—opening, directions, and closing submissions.

In Green the Crown’s appellate reconstructions were rejected because they did not “properly take into account” the evidence and the way the case was presented. The present case adopts and extends that logic: even if the Crown can hypothesise a logically possible route to guilt after the event, it cannot salvage convictions where the jury were neither asked nor equipped (by evidence and directions) to take that route.

3. R v Ismail [2019] EWCA Crim 290

R v Ismail [2019] EWCA Crim 290 was relied upon for a procedural/sentencing point: where alternative counts exist, and the jury convicts on the more serious alternative, the unused alternatives should generally be directed to “lie on the file” rather than attracting sentence. Here, ZFX had pleaded guilty to s.5 but received “no separate penalty” once convicted under s.18. The Court held that was strictly wrong because the s.5 counts were alternatives and should have been filed at that stage; the “no separate penalty” was therefore quashed.

B. Legal Reasoning

1. The indictment and directions made perpetrator-identification essential

The indictment charged each appellant separately for each injury; there was no joint count and no pleaded or put case of joint enterprise. The route to verdict directed the jury, for each injury and each defendant, to ask: “Are we sure that the defendant in question caused the injury in question?” Only if the jury was sure could it proceed to malice and intent. This structure made the jury’s task one of attribution, not household responsibility.

2. The verdicts departed from the only rational routes left to the jury

On the trial presentation and directions, each distinct fracture/bruising episode (as charged) could only have been “caused” by one perpetrator, absent:

• a properly advanced and directed joint enterprise case (joint principals or accessory liability), or
• evidence supporting multiple independent causative acts by both defendants producing the same charged injury, coupled with appropriate directions on causation.

Yet the jury convicted both defendants of causing the same injuries. The Court treated this not as mere “oddity,” but as a verdict pattern incompatible with the case as tried.

3. The Crown’s three appellate “reconciliations” were rejected

(i) Joint enterprise (not run; not directed; no evidential foundation)

The Court held that if the jury’s implicit reasoning was “joint enterprise,” it was pure speculation how it got there. The Crown had accepted at trial it could not advance that case, the judge gave no directions on the requirements of joint enterprise (including the distinctions between joint principals and secondary liability), and the judgment noted that the relevant principles are set out in sections 7-2 to 7-4 of the Crown Court Compendium and require careful tailoring to the evidence. With no direction and no evidence of assistance/encouragement or coordinated infliction, no reasonable jury could convict on that basis.

(ii) “Split injuries” between defendants (speculative and inconsistent with both indictment and verdicts)

The Crown’s alternative suggestion—that one parent caused some injuries and the other caused others—was rejected because:

• it remained wholly speculative (no identification of which injury was caused by whom),
• it clashed with the indictment’s demand for injury-by-injury findings against each defendant, and
• it did not match what the jury actually did (they convicted both of all injuries rather than apportioning them).

(iii) “Material contribution” by each as principal (contrary to the expert evidence and not left to the jury)

The Court treated the “material contribution” theory as both unadvanced at trial and inconsistent with the unchallenged medical evidence. In particular, Dr Owen Arthurs’ evidence was that the skull injury was caused by a single direct impact, and the overall injuries could have arisen from as few as three to five incidents. There was no evidential basis that a specific fracture was the product of multiple, separate assaults by different perpetrators such that both could be convicted as principals for the same injury.

4. Why “inconsistent verdicts” doctrine applied even though this was not the classic pattern

The Court explicitly treated this as a “different kind of inconsistency”: not acquittal vs conviction, nor co-defendant acquittal vs conviction, but two convictions for the same injury where the case as left to the jury required a single perpetrator finding. The same contextual test applied: once one considers opening, evidence, directions, route to verdict, and closings, the convictions could not safely stand.

5. Section 5 DV, Crime and Victims Act 2004 as the “designed” solution to the evidential problem

The Court’s reasoning emphasised legislative design: s.5 exists to enable conviction where the prosecution cannot prove which household member inflicted serious harm, but can prove that each defendant either inflicted it or failed to protect despite awareness (or constructive awareness) of the risk. The Court observed that, on the material seen, the evidence for CGA’s s.5 liability was “strong,” and that ZFX had already pleaded guilty to s.5. The s.18 route failed because it demanded proof of perpetration (and intent) beyond reasonable doubt against a particular defendant for each injury.

6. Substitution of an alternative verdict under s.3 Criminal Appeal Act 1968 was declined

The Court considered but rejected substituting a s.5 conviction for CGA under s.3 Criminal Appeal Act 1968. The prosecution did not invite it; more importantly, the Court regarded the factual basis of the jury’s s.18 verdict as unclear, making it inappropriate to conclude the jury “must have been satisfied” of facts proving the alternative offence.

7. Retrial confined to s.5 (CGA) in the interests of justice

The Court accepted the seriousness of the injuries and ordered a retrial of CGA on s.5 counts despite the age of events and the fact the Crown Court trial was itself a retrial. But it refused retrial on s.18/s.20/s.47 counts for either appellant because the evidence would not materially improve and would again be incapable of safely attributing perpetration.

C. Impact

1. Tightened discipline on “post hoc” prosecution theories

The judgment underscores that appellate courts will not uphold verdicts by inventing or accepting speculative reconciliations that were not (i) advanced, (ii) evidenced, and (iii) directed at trial—especially where the route to verdict required a different factual finding.

2. Drafting and trial strategy in multi-suspect child injury cases

Prosecutors must align the indictment and directions with the available proof. If perpetrator attribution is not realistically provable, s.5 counts (and properly managed alternatives) become central rather than peripheral. Conversely, if the Crown seeks to rely on joint enterprise, it must be pleaded/advanced and supported by evidence, with careful directions (as flagged by the reference to the Crown Court Compendium).

3. Judicial responsibility: routes to verdict cannot paper over a mismatch

The case illustrates the risk of a structured route to verdict that assumes a single-perpetrator model where the evidence and prosecution presentation do not permit confident attribution. Where a jury nonetheless returns “both did it” verdicts, the conviction may be unsafe because the jury has, in effect, solved the evidential difficulty in a way the law does not allow on the counts charged.

4. Sentencing management of alternative counts

By applying R v Ismail [2019] EWCA Crim 290, the Court reinforces correct practice: alternative counts should be managed so that sentencing (and “no separate penalty”) does not inadvertently produce irregular outcomes when convictions are later quashed.

4) Complex Concepts Simplified

• Inconsistent / irrational verdicts: Not every apparent inconsistency matters. The question is whether, given how the case was tried, no reasonable jury could have reached the combination of verdicts.
• Joint enterprise / secondary liability: Liability can arise if two people act together as joint principals, or if one assists or encourages the other. But the jury must be directed on the legal requirements and there must be evidence supporting that route.
• “Material contribution” causation: Sometimes more than one act can contribute to an outcome. Here, without evidence that each defendant’s separate violence contributed to the same specific fracture, it was not a permissible basis to convict both as principals for the same injury.
• s.5 Domestic Violence, Crime and Victims Act 2004 (“causing or allowing”): A tailored offence for household settings where the prosecution cannot prove who inflicted the harm but can prove that each defendant either did it or failed to protect the child despite knowing (or being expected to know) the risk.
• Counts “lie on the file”: A procedural mechanism where unused alternative counts are left inactive (not proceeded with or sentenced) after conviction on a principal alternative.

5) Conclusion

CGA & Anor, R. v establishes a clear practical principle: where a case is tried and directed on the basis that the jury must identify which defendant caused each specific injury, it is unsafe to uphold convictions in which the jury convicts both defendants of causing the same injuries without (i) an advanced and evidenced joint enterprise case and (ii) appropriate jury directions. The decision also reaffirms that s.5 DV, Crime and Victims Act 2004 is the proper legislative mechanism for “two carers, one perpetrator unknown” scenarios, and that appellate reconciliation must be anchored to the trial’s actual presentation, not speculative theories.