R v Ryan Stevens

Where an indictment contains distinct counts, the jury must be directed to consider each count separately unless the court expressly makes one count conditional on a finding of guilt on another. A route to verdict must preserve the statutory elements of each offence.

Where consent and reasonable belief in consent are live issues in a charge of assault by penetration, directions must require the jury to determine them. A direction that treats competing accounts as a binary choice cannot displace those questions. A conviction is unsafe where confusing directions create a real risk that the jury convicted on an admitted act of penetration without addressing consent or reasonable belief in consent.

The appellant was tried at Bristol Crown Court on two counts of attempting to choke, suffocate or strangle with intent, and one count of assault by penetration contrary to section 2 of the Sexual Offences Act 2003. He was acquitted on the two choking counts but convicted of assault by penetration.

His case on the third count was that the penetration was consensual, or that he reasonably believed it was consensual. The trial judge directed the jury to decide between two conflicting accounts and used a route to verdict which linked the penetration count to choking or strangulation. The jury queried both the separate nature of the charges and the absence of an intent direction. The central issue was whether the directions left the jury able to determine the third count by reference to its essential elements.

Appeal allowed. The conviction for assault by penetration was unsafe, quashed, and a retrial was ordered.

1. The route to verdict improperly merged the facts of the choking count and the assault-by-penetration count. It did not make clear that the jury had to consider the counts separately. The jury’s note showed that it understood the problem: it identified that the reference to choking in the direction on count 3 was misplaced and asked about intent.

2. The judge had presented the case as a binary choice between the complainant’s and the appellant’s accounts. That approach was inadequate. The appellant’s account did not merely deny the allegation: it asserted a reasonable belief in consent. The jury therefore had to assess consent and reasonable belief in consent as elements of count 3.

3. Absent an express direction that guilt on count 3 depended on guilt on count 1, a separate-count direction was essential. The jury also required an express direction that the relevant intent direction and the consent issues applied to count 3. The earlier statement of the elements in paragraph 27 was too remote and was undermined by the later route to verdict and the judge’s response to the jury.

4. The acquittal on count 1 did not produce legally inconsistent verdicts. However, after that acquittal, the effective direction on count 3 concentrated on penetration in the context of strangulation and did not require an assessment of consent or reasonable belief. There was a real risk that the jury convicted because penetration was admitted, without deciding those issues. The court could not be sure that the conviction was safe.

5. The court ordered a retrial at Bristol Crown Court before a different judge. A fresh indictment was to be served under rule 10.8(2) of the Criminal Procedure Rules, followed by rearraignment within two months.

• Court of Appeal (Criminal Division): Allowed the appeal, quashed the conviction for assault by penetration, and ordered a retrial.
• Bristol Crown Court: The appellant was acquitted of two counts of attempting to choke, suffocate or strangle with intent, but convicted of assault by penetration.