Case Nos: 2011/2881/B2, 2011/3199/B2 and 2011/3160/B2
Neutral Citation Number: [2012] EWCA Crim 1477

IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM IPSWICH CROWN COURT
His Honour Judge Overbury
T20107003/T20107102
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 06/07/2012
Before:

LORD JUSTICE MOSES
MR JUSTICE UNDERHILL
and
HIS HONOUR JUDGE INMAN, QC
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Between:

	Minddaugus Mickevicius
Aivaras Urbonas
Arturas Bagdziunas	1st Appellant
2nd Appellant
3rd  Appellant	
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	The Crown	Respondent	

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Mr M Levett (instructed by Saunders Goodwin Solicitors) for the 1st Appellant, Mr C Myatt (instructed by McCarthy Stewart Solicitors) for the 2nd Appellant, Mr S Dyble (instructed by Hullock & Co Solicitors) for the 3rd Appellant
Mr M McNiff (instructed by the Crown Prosecution Service) for the Respondent

Hearing dates: 28th May, 2012
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Judgment
Lord Justice Moses: 
1.	In a re-trial these three appellants were convicted of jointly raping a 16 year-old girl, SC, on New Year’s Eve 2009.  The issues in the appeal concern the directions the judge gave to the jury and the manner in which he took the verdicts from them.  Two of the appellants, Mickevicius and Urbonas, were convicted of oral and vaginal rape (Counts 1 and 2).  Bagdziunas was convicted not only of oral and vaginal rape (Counts 1 and 2) but also of anal rape (Count 3).  The three counts in the indictment named these three appellants and another defendant, Sliburas, in respect of whom the jury could not reach any verdict.
2.	It is, however, important to record at the outset the way in which the prosecution put their case.  SC had been drinking and, whether the allegations were true or not, was expected to give evidence which was confused; in particular, it was foreseen that she might not be able to remember with any accuracy the precise sequence of events or which of the defendants committed a particular act.  In those circumstances the case was put on the basis that all participated in a joint rape and each was responsible for the sexual acts of the other once it was proved that they had participated themselves.  It is also important to record that the case was not put on the basis that a defendant could be guilty merely by encouraging one or more of the others to commit an act of rape.  It could have been, but the jury was not directed on that basis.  On the contrary, the jury was specifically directed that no defendant could be convicted of joint enterprise rape unless and until the jury was sure that that particular defendant had himself committed an act of rape.  This favourable basis, unfortunately, led to confusion when the verdicts were taken.
3.	On New Year’s Eve 2009 the complainant, SC, 16 years-old, was with friends and was then left on her own.  She wanted attention and someone to talk to.  She met a group of Lithuanian men, including Bagdziunas, and a man who was never charged, Z.  They invited her to the house where some of them lived in Holland Road.  Mickevicius was not part of that group.  The complainant agreed to go with them.  The men were speaking in a foreign language.
4.	When she arrived at the house she saw there were two other men, but no other girls.  She smoked a cigarette.  Bagdziunas told her she was pretty and the others kept saying she was beautiful.  Bagdziunas started to touch her between the legs.  She became afraid and asked to use the toilet, intending to call for help on her mobile ‘phone.  When she went upstairs she was followed by Bagdziunas.
5.	Her account was that Bagdziunas pushed her into a bedroom where he pushed her onto a bed and removed her lower clothing.  Sliburas left.  Bagdziunas took his trousers down and put his penis in her mouth.   Sliburas returned and took his trousers down.  Bagdziunas lay on the bed and pulled her on top of him, penetrating her vagina and then her bottom.  Sliburas pushed her towards his penis and made her suck it.  She told him to stop and pushed him away.   then left.  At that stage, she said, someone else was in the room filming the events on a mobile ‘phone.
6.	She then described a bald man, who it was accepted was Mickevicius, entering the room.  He bent over and put his penis inside her vagina a little bit and was making her suck Bagdziunas’s penis.  He also, she said, put his penis into her “bottom”.  Bagdziunas was saying “finish it”.  At one stage he slapped her neck.  Two other men were coming in and out of the room.
7.	She said she put her leggings back on, went downstairs, and refused to return upstairs with two other men.  She felt sick and wanted to get away.  She left the house, followed by Bagdziunas and Mickevicius for a short time.  She met a stranger who informed the police.  She was taken to a police station where she was crying and very distressed.  She said she had gone to the house because she was stupid but had not consented to any sexual activity.
8.	On examination it was found that there was marginal redness to the complainant’s anus and Bagdziunas’s semen had come into contact with her lower back.
9.	It is of significance in this appeal that both Bagdziunas and Urbonas admitted penetrating the complainant but contended that it was with her consent.  Mickevicius admitted attempting to penetrate her but denied that he had been successful.
10.	The ground of appeal on which permission has been given rested on the combination of a complaint as to the complexity of the directions and the way in which the verdicts were taken.  The judge gave oral directions which he reduced to writing.  The written directions, some of which cover only half a page, were 27 pages long.  But, in our view, that is not of itself a source of complaint.  Moreover, after a short discussion as to the form of the indictment and the nature of the allegations, the judge rightly puts at the forefront issues as to consent.  Those issues were the central feature of the case.  As we have recalled, both Bagdziunas and Urbonas agreed that they had had sexual intercourse and the only issue was consent.  Mickevicius had admitted attempt, although not the completed offence.  In those circumstances, at least so far as Bagdziunas and Urbonas were concerned, consent was the only issue.
11.	The judge then directed the jury as to joint enterprise.  He pointed out that joint enterprise could be inferred both from conversation before any sexual activity took place upstairs, from what was said after Bagdziunas began to have penetrative sex with the girl, and from the actions of those going to and fro into the room whilst sexual activity was taking place.  The judge accurately directed the jury that the case against the defendants was:-
“that there was in reality a tacit agreement by some or by all of the defendants to force [SC] to engage in acts of penetrative sex and therefore a joint enterprise to commit the acts alleged in Counts 1 to 3.  The Crown argues that if there was a joint enterprise of this nature, there is no need for any defendant to know which particular act was being carried out by another defendant, so long as it amounted to a serious, penetrative, sexual act.”
12.	The problems appear to us to have started in the judge’s description of the route to verdicts.  To prepare a route was an appropriate course in a case of this nature.  Moreover, we should record that it was discussed with counsel fully and no objection was taken to it.  The start of the route was question one, in which the judge asked whether, in relation to a particular defendant: “was he committing the individual act alleged?”  If he was not, the judge directed the jury that he should be found not guilty of both joint enterprise and any individual act.
13.	This direction was unduly favourable to the defendants.  It was open to the jury to convict any defendant who encouraged another to commit rape.  But the case was never left to the jury on the basis merely of encouragement.
14.	The judge then posed a second question, namely, whether any of the individual acts that they found a defendant had committed was consensual.  The third question the judge asked was whether the jury was sure that the particular defendant was:-
“part of an agreement (in the way I have described it) with at least one other defendant, to force SC to engage in acts of penetrative sex, intending that such acts be carried out.”
15.	This approach was, in our view, confusing.  If the jury was sure that the answer to the first two questions was in the affirmative, namely, that a particular defendant had committed an individual sexual act and that it was without consent, then there was no need to consider joint enterprise at all.  Issues of joint enterprise only arose if the jury were not sure of the particular act alleged against a particular defendant.  It was only necessary to allege joint enterprise if the jury had been unsure as to what particular act a defendant committed.  Since the case was not left to the jury on the basis of encouragement, joint enterprise would only arise in a case where the jury was sure that a particular defendant had committed a sexual act against the victim without her consent, but was not sure which particular act it was.  But that was not the basis on which the questions were asked since the first question was whether the defendant had committed the individual act alleged.
16.	The confusion was compounded by the judge, in an attempt to be helpful and with the endorsement of the defendants, identifying to the jury a number of possible factual conclusions.  For example, he directed the jury:-
“But, looking at Count 1(f) M disputes that anal sex took place.  B does not dispute he had oral sex when M was behind SC.  If you concluded M did not or may not have had anal sex with SC, then the verdict would be NG for M on the joint enterprise and the individual act.  It would follow then, even though B does not dispute oral sex at that time with SC, B could not be found guilty of a joint enterprise to anally rape her with M, if M is NG of the anal rape.  On the other hand, if you were sure that M did have anal sex with SC, whilst B had oral sex, you would move on to Q2.”
There was a similar explanation under question two relating to whether the individual acts were consensual.
17.	After asking the questions the judge set out the various allegations as follows:-
“Count 1	(Joint enterprise to ORAL rape)
a)		B having non consensual vaginal sex when S having non consensual oral sex, or
b)	B having non consensual anal sex when S having non consensual oral sex, or
c)	B having non consensual vaginal sex when U having non consensual oral sex, or
d)	B having non consensual anal sex when U having non consensual oral sex, or
e)	M having non consensual vaginal sex when B having non consensual oral sex, or
f)	M having non consensual anal sex when B having non consensual oral sex.
Count 2			(Joint enterprise to VAGINAL rape)
a)	B having non consensual vaginal sex when S having non consensual oral sex, or
b)	B having non consensual vaginal sex when U having non consensual oral sex, or
c)	B having non consensual oral sex when M having non consensual vaginal sex.
Count 3			(Joint enterprise to ANAL rape)
a)	B having non consensual anal sex when S having non consensual oral sex, or
b)	B having non consensual anal sex when U having non consensual oral sex, or
c)	M having non consensual anal sex when B having non consensual oral sex.”
18.	Having directed the jury in a way which asks them to consider individual acts against individual defendants and then to proceed to consider joint enterprise, when it came to taking the verdicts the judge, again with the consent of the defence, took the verdicts in a reverse order.  He asked the jury for their verdicts in relation to joint enterprise before asking for their verdicts in relation to individual acts.  This must have led to confusion and appears to have confused the jury.  The jury returned verdicts of joint enterprise oral and vaginal rape, that is, on Counts 1 and 2.  Once the jury had returned verdicts of guilty against Bagdziunas, Mickevicius and Urbonas on the basis of joint enterprise, no verdicts were taken against those three defendants in respect of individual acts.  But the problem arose in relation to Count 3, the allegation of anal rape.
19.	Following the order previously adopted, the first question the jury was asked by the clerk in relation to Count 3 was:-
“On Count 3 of this indictment alleging joint enterprise anal rape, do you find the defendant Mr Bagdziunas guilty or not guilty?  The foreman answered ‘guilty’ and told the clerk that it was by a majority of 10 to 2.”
The jury then returned verdicts of not guilty to the allegation of anal rape joint enterprise against Mickevicius and Urbonas.  This, of course, was a conclusion which was not open to the jury.  If Bagdziunas was the only person convicted of anal rape, he could not have been convicted on the basis of joint enterprise since the other defendants had been acquitted of it.  The confusion in taking the verdicts continued.  Once the jury had returned a verdict of not guilty of joint enterprise anal rape against Urbonas, the clerk then asked:-
“Do you find Mr Urbonas guilty or not guilty of the individual act of anal rape?”
The judge intervened, explaining that an individual act of anal rape was not alleged on the indictment against Urbonas.  The judge continued:-
“I think, Mr Foreman, you should be asked in view of those verdicts so far, that had you been asked about Mr Bagdziunas for the individual act of anal rape, was your verdict guilty or not guilty?”
The foreman answered “guilty” and the judge replied “yes, that’s just so that I understand”.
20.	The judge then, sensibly, asked the jury to withdraw and explained that he had asked the question about individual act anal rape in relation to Mr Bagdziunas because there could only be a joint enterprise to commit anal rape if there had been a verdict against Mr Sliburas(the other two having been acquitted).  The jury had not returned any verdicts in relation to him.  Later they were to tell the judge they could not agree in relation to that defendant in respect of any count and they were discharged from giving verdicts in relation to him.
21.	There was no need for this complexity.  The paramount task for the prosecution was to simplify this case as much as the allegations allowed.  There was no reason why the case should not have been presented on the basis of allegations of individual acts of rape.  Any defendant convicted of a particular act would have to be sentenced on the basis of the seriously aggravating circumstance that others had also, at the same time, abused this girl.  There was no need to prove joint enterprise for that purpose.
22.	Joint enterprise need only have been proved if the jury was unsure as to precisely what act a particular individual had committed or was unsure whether he had committed any physical act, but was sure that that particular defendant had encouraged another person to do so.
23.	In those circumstances, the jury should have been asked first whether it was sure that a particular defendant had committed a particular act without consent.  If it was sure that he had, then there was no need to consider joint enterprise at all.  The jury should have been asked to consider joint enterprise only on the basis we have identified above.
24.	The consequences of the approach that was in fact adopted led to directions which can only have served to confuse.  The passages we have quoted were too difficult for a jury to follow.  We ought, however, to record, in fairness to Mr McNiff who prosecuted, that he was, unfortunately, taken suddenly to hospital and was not available to make submissions to the judge as to his directions and as to how the verdicts were taken.  It appears that a member of the Crown Prosecution Service was compelled to stand in Mr McNiff’s shoes.  But we should observe that defence counsel should also have strived to achieve the simplicity this case demanded.
25.	What then follows?  The appellants contend that the confusion was such that the verdicts against them were unsafe.  We do not agree.  Bagdziunas and Urbonas both admitted sexual activity with SC.  The only issue was consent.  In those circumstances, the issue before the jury was simple and they must have concluded that the girl did not consent.  In the light of the way the case was left to them, they must also have been sure that consent was not given in respect of individual acts alleged against those two.  In those circumstances, we do not think there can have been any confusion in the minds of the jury as a result of the over-complication of cases against them in relation to Counts 1 and 2.
26.	Mickevicius stands in a different position because he did not admit committing any penetrative act.  He admits attempting to do so but said that he failed.  It is at this stage we should refer to a ground on which he had not been given leave but which he renewed before this Court.  He says that there was no case against him because the evidence of the victim at the first trial was that Mickevicius did not have vaginal or oral sex with her.  The difficulty with that submission is that whilst it is true that at her previous trial she denied when asked whether she had had oral or vaginal sex with Mickevicius, she had also said in her original ABE interview that he had penetrated her vagina and penetrated “her bottom”.  Moreover, he had done that whilst Bagdziunas was making her suck his penis.  That was evidence on the basis of which the jury could convict Mickevicius of joint enterprise oral and vaginal sex.
27.	All the appellants have, on occasion, relied upon the fact the jury could not reach a verdict in relation to Sliburas.  It is true that the victim gave substantial evidence against Sliburas who was, apparently, the person who joined Bagdziunas very shortly after he went into the bedroom occupied by Mickevicius.  But the fact that the jury did not agree in relation to that particular appellant, who was the youngest and who gave evidence in a way which might have attracted the sympathy of some of the jury, is not a basis upon which any of the appellants can rely.  It is not a basis upon which Mickevicius can rely in seeking permission to argue that the judge should have stopped the case against him.
28.	In our view, the judge was correct to leave the case to the jury.  There was evidence, even if the victim from time to time changed her account, against Mickevicius.  In those circumstances, we reject his appeal in relation to Counts 1 and 2 also.
29.	Bagdziunas is the only appellant who stands convicted in relation to anal rape.  In our view, the way in which the verdicts were taken led to difficulty and confusion in relation to his conviction on the third count.  The jury convicted of anal rape on the basis of joint enterprise.  Having acquitted the other two appellants and having been unable to reach a verdict in relation to Sliburas it was not open to them to do so.  The fault arose in relation to the order in which the verdicts were taken.
30.	Nor in our view is it possible to uphold the verdict on the basis of an individual act.  We have set out the sequence of events and, in the light of the manner in which the judge asked the question, it was not clear whether the jury was in fact returning a verdict of guilty of an individual act of anal rape against Bagdziunas.  The question was asked in an unfortunate conditional form and no question was asked as to whether it was unanimous or by a majority.  The judge had put it on the basis:-
“Had you been asked about Mr Bagdziunas for the individual act of anal rape was your verdict guilty or not guilty?”
31.	In the heat of the moment we do not blame the judge for asking the question in that way, but the reality was they had never been asked that question clearly and thus never properly returned a verdict.  We think in the circumstances it is unsafe to rely upon any verdict as having been given against Mr Bagdziunas of an individual act of anal rape.  But we wish to stress that that does not affect our conclusion in relation to the verdicts on the other counts.  Unfortunate though the order in which the verdicts were taken was, as it turns out the issue was simple and the jury can have been in no doubt about the conclusion they were reaching in relation to the issue of consent.
32.	Accordingly, we shall quash the verdict of guilty on Count 3 against Bagdziunas but dismiss the appeals in relation to Counts 1 and 2 advanced on behalf of Bagdziunas, Mickevicius and Urbonas.
33.	We then turn to sentence.  Mickevicius is now 32, Bagdziunas 30 and Urbonas 27.  They have all come from Lithuania.  They have no relevant previous convictions.  They contend that the sentences were manifestly excessive and that the appropriate sentence would have been one of eight years, taking into account the aggravation that this was “gang rape”.  We do not agree.  These were serious cases of a group sexually abusing a young girl of 16, who was vulnerable through the drink she had taken.  That the appellants joined with others in committing sexual offences make this particularly serious.
34.	In relation to Bagdziunas, the judge took the view that he was the prime mover in what he described as the degradation of the victim and in the plan that was hatched to have what the judge described as “group sex”.  Whilst a reduction in sentence would reflect our views of the conviction of anal rape, his sentence should not be reduced to the same level as that of the other two appellants.  In those circumstances, we shall quash the sentence of 12 years’ imprisonment in relation to Counts 1 and 2 and substitute concurrent sentences of 11 years.  To that limited extent, his appeal against sentence is allowed.  We refuse permission in relation to the sentences against the other two appellants, Mickevicius and Urbonas.