Mickevicius & Ors v R

Where a prosecution for joint rape is put on the basis that each defendant participated physically, the jury should first decide whether each defendant committed a particular non-consensual sexual act. If so, joint enterprise need not be considered. Joint enterprise is relevant only where the jury cannot identify the precise act committed, or where liability is put on a basis of encouragement.

Directions and a route to verdict must keep those alternatives distinct. A conviction is nevertheless safe if, despite over-complicated directions, the jury necessarily resolved the decisive issue. A purported joint-enterprise conviction is unsafe where the verdicts are logically inconsistent and no clear, properly recorded alternative verdict for the individual offence has been taken.

Following a retrial at Ipswich Crown Court, the three appellants were convicted of joint rape of a 16-year-old complainant. The prosecution alleged a tacit agreement to force her to engage in penetrative sexual acts, but did not leave liability based solely on encouragement. The judge directed that no defendant could be convicted unless the jury was sure that he had himself committed an act of rape.

Bagdziunas and Urbonas admitted sexual activity but contended that it was consensual. Mickevicius admitted an attempt but denied successful penetration. The appeal challenged the complexity of the directions and the order in which verdicts were taken. In particular, Bagdziunas was convicted of joint-enterprise anal rape although the other appellants were acquitted on that count and the jury reached no verdict in respect of Sliburas.

1. The appeals against conviction were dismissed in respect of Counts 1 and 2. The directions and route to verdicts unnecessarily intermingled individual liability and joint enterprise. The proper approach was first to ask whether each defendant committed a particular penetrative act without consent. If the jury was sure of that, there was no need to consider joint enterprise. Joint enterprise was material only if the jury could not identify the particular act, or if the case was left on a basis of encouragement.

2. The errors did not render the convictions on Counts 1 and 2 unsafe. Bagdziunas and Urbonas admitted sexual activity, so consent was the decisive issue. The jury must have rejected consent in respect of the individual acts alleged. There was also evidence capable of supporting Mickevicius's convictions, notwithstanding inconsistencies in the complainant's accounts.

3. Bagdziunas's conviction on Count 3 for joint-enterprise anal rape was quashed. Once the other two appellants had been acquitted on that count and no verdict had been returned against Sliburas, the joint-enterprise verdict could not stand on the way the case had been left. The subsequent conditional question did not clearly obtain a verdict for an individual act of anal rape, and did not establish whether any such verdict was unanimous or by majority.

4. Bagdziunas's sentence on Counts 1 and 2 was reduced from 12 years to concurrent terms of 11 years. His appeal against sentence was allowed only to that extent. Permission to appeal sentence was refused to Mickevicius and Urbonas.

• Court of Appeal (Criminal Division): In [2012] EWCA Crim 1477, the court quashed Bagdziunas's conviction for Count 3, dismissed the appeals against conviction on Counts 1 and 2, and reduced Bagdziunas's sentences on those counts.
• Ipswich Crown Court: Following a retrial before His Honour Judge Overbury, the appellants were convicted of joint rape offences. The judgment appealed is not otherwise cited.