Raivich v The Queen

On an appeal based on allegedly inconsistent jury outcomes, the decisive statutory question is whether the conviction is safe. Logical inconsistency is necessary, but it does not by itself make a conviction unsafe. The appellant must show that there is no rational explanation for the differing outcomes.

A failure to agree is not a verdict. Comparing it with a conviction will therefore only rarely establish an unsafe conviction. The appellate court must consider each count, its elements, the evidence and the possible reasons why a jury might have differed in its assessment.

The appellant was convicted at the Crown Court at Blackfriars of two counts of sexual assault contrary to section 3 of the Sexual Offences Act 2003. The jury did not reach verdicts on eight other counts, including four concerning the same complainant.

The convictions concerned stimulation of the complainant’s clitoris and touching of her breasts during an insemination appointment. The appellant contended that they were unsafe because the jury had failed to agree on the other counts, including allegations of digital penetration during the same encounter. The issue was whether the differing outcomes were logically inexplicable and therefore rendered the convictions unsafe.

1. Appeal dismissed. The convictions were safe. The governing approach was that set out in R v Dhillon [2010] EWCA Crim 1577: logical inconsistency is necessary, but insufficient, to establish that a conviction is unsafe. A conviction should only be quashed where there is no explanation for the inconsistency and the jury must therefore have been confused or adopted a wrong approach.

2. The fact that the jury failed to agree, rather than acquitted, made the challenge still more difficult. Applying R v Formhals [2013] EWCA Crim 2624, a failure to agree is not a verdict and comparison with a conviction will only exceptionally be logically inexplicable.

3. The counts did not require an all-or-nothing assessment of the complainant’s credibility. A jury could accept or be sure of some allegations while remaining uncertain about others. It could also reach different conclusions where the legal issues differed, including whether there was consent or a reasonable belief in consent.

4. There were rational explanations for the outcomes. The jury could find that clitoral stimulation was sexual and unconnected with conception, while entertaining doubt whether digital penetration before insemination was reasonably thought necessary to identify the position for insemination. As to the later allegations, the jury could assess the evidence concerning post-insemination penetration differently from the separate allegation of breast touching.

5. The jury had been properly directed to return separate verdicts on each count. It was entitled to evaluate all the evidence, including the complainant’s evidence, expert evidence, character evidence and the appellant’s police interviews. The appellant had not surmounted the high hurdle required to show that the two convictions were unsafe.

• Court of Appeal (Criminal Division): dismissed the appeal against conviction in Raivich v The Queen [2015] EWCA Crim 632.
• Crown Court at Blackfriars: on 27 June 2014, the appellant was convicted by majority verdict of two counts of sexual assault. The jury failed to reach verdicts on eight further counts.