R v MEK

The provisions of the Sexual Offences (Amendment) Act 1992 apply in this case. Under those provisions, no matter relating to the victim of the applicant's offences (whom we will call "H") shall during H's lifetime be included in any publication if it is likely to lead members of the public to identify H as the victim of that offence. To prevent the indirect identification of H (who was the applicant's niece), the applicant’s name will be anonymised in the transcript of this judgment and of our judgment on the application for leave to appeal against sentence.

The Registrar has referred to the full court the applicant's applications for leave to appeal against conviction and sentence. This is our judgment on the application for leave to appeal against conviction.

On 16 June 2025 in the Crown Court at Cambridge the applicant was convicted of one count of indecent assault, contrary to section 14 of the Sexual Offences Act 1956. This was a retrial, following a first trial at which the jury could not agree on a verdict, and the applicant was convicted by a majority of 10 jurors to 2. On 22 August 2025 he was sentenced to 2 years and 4 months' imprisonment.

The Crown's case was that in 2003 the applicant sexually assaulted H at a time when H was 14 or 15 years old and the applicant was 40 or 41. The matter was not reported to the police until 12 January 2022. H's evidence was that there was an occasion when she attended a barbecue at the applicant's home address with her family. The applicant took her into the garage, which contained, amongst other things, two cars and a fruit machine. She went there to play on the fruit machine. She was alone in the garage with the applicant. At one point, whilst he was standing behind her, he undid the clasp on her bra and proceeded to massage her breasts and fondle her nipples. She did not remember anything being said and could not say how long it lasted.

The edited statement of H's mother (whom we will call "I") was read at trial. She said that, when H was approximately 11 to 13, she approached I and said that the applicant had touched her boobs. When cross-examined, I said that she remembered H stating that her boobs and bum had been touched, that the applicant had tried to take off her bra and that she thought that H had said that this happened two or three times.

Another witness (whom we will call "J"), an old friend of H, who had known H all her life, said that when H was a teenager she told J that "[MEK] touched me", but that H did not disclose any more details. A further witness (whom we will call "K"), who was a good friend of H, said that H told her on a day which K could not recall that her uncle had touched her boobs when she was a teenager.

The applicant was arrested and interviewed in 2022. He was interviewed in one and the same interview about two allegations, namely H's allegation of indecent assault and an allegation by H's aunt of rape. That allegation did not result in a prosecution.

In interview, the applicant provided a prepared statement in which, in relation to H's allegation, he said:

Thereafter the applicant answered "no comment" to all questions asked of him in interview.

He gave evidence at trial. He maintained his denials, saying that he did not stand behind H or fondle her breasts or touch her in any way. However, the applicant also said as follows in his evidence at trial. First, he accepted that there was a time when he and H were together in the garage. Then he said that the incident could not have happened because there was not room for him to stand behind H as the garage was configured on that occasion. He said that H lost £20 in the fruit machine. He refused to give her the £20 and she then said that, if he did not give her the £20, she would say that he had touched her. The applicant also adduced evidence at trial in support of his claim that there was no room for him to stand behind H at the fruit machine as the garage was configured on that occasion.

It is not disputed that in these circumstances the applicant relied at trial on matters not mentioned by him in interview. In those circumstances, the Crown invited the recorder to give an adverse inference direction. The applicant contended that it was inappropriate to give such a direction, on the grounds that he could not reasonably have been expected to mention in interview the facts which he subsequently relied on at trial, in particular, in circumstances where:

The applicant gave evidence about the first two of these matters and the recorder clearly took the view that the jury were in a position to assess that evidence when considering whether to draw an adverse inference. Consequently, the recorder's ruling focused on the issue as to the scope of the interview, as to which the applicant did not give evidence either before the jury or inavoir dire before the recorder. In relation to this issue, the recorder said as follows:

The recorder also said as follows:

The recorder went ahead to give an adverse inference direction. No complaint is made about the terms of that direction. The complaint is that the direction should not have been given at all.

We are told that the recorder also observed that the applicant could have chosen to put the issue as to the scope of the interview before the jury. He may have said this in the course of hearing submissions. However, it did not form part of his ruling. We do not regard it, therefore, as part of the reasons for his decision.

In his succinct and careful submissions to us today, Mr Cooke began by submitting that this was a case of the Crown seeking to use an adverse inference to bolster a weak case. We are not persuaded by that. H gave direct evidence of the alleged assault on her. It was a matter for the jury whether they believed her or not. Her evidence was supported to an extent by the evidence of I, J and K. This was not a weak case of the kind in which it is inappropriate to give an adverse inference direction.

The proposed ground of appeal as set out in the advice on evidence focuses on the issue as to the scope of the interview. It is submitted that it will be unusual for a suspect being interviewed to answer questions about one allegation, but not another, and that it was unrealistic to expect the applicant's solicitor to advise him to answer questions about H's allegation, but not the rape allegation, not least because such an approach could have caused prejudice to the applicant if the rape allegation had proceeded to trial.

On the other hand, the Crown point out that the applicant did not give evidence that the reason why he chose not to answer questions about H's allegation was that he had been advised to take that course, let alone that he been advised to take that course because of the scope of the interview. The Crown also submit that the applicant could have introduced the rape allegation without mentioning the nature of it, had he wished to rely on the scope of the interview in his evidence as a reason for not answering questions in interview.

We consider that the recorder was entitled to conclude that it was appropriate to give the adverse inference direction, having identified, in effect, that there was no overlap between the two allegations. We note that it might have been preferable for there to be two separate interviews. Indeed, the applicant's solicitor could have suggested that course if, as to which there was no evidence, he had been concerned by the scope of the interview. However, the applicant was cautioned in the usual way and thereby informed as to the potential consequences of his not answering questions about H's allegation. Having taken advice, he chose not to answer questions about H's allegation. Then, at trial, he relied on matters which he had not mentioned in interview.

We note that there was no evidence before the recorder that the reason, or one of the reasons, why the applicant had not answered questions in interview in relation to H's allegation was the scope of the interview. In particular, the applicant had not given evidence, which he could have done without revealing the basis for his solicitor's advice that he had decided not to answer questions because he had been advised by his solicitor not to answer questions. Since the applicant did not say that he had relied on his solicitor's advice, the question whether a solicitor could reasonably have been expected to give different advice simply does not arise. Similarly, the applicant did not give evidence, either before the jury or in avoir dire, that he himself had chosen not to answer questions about H's allegation because of the scope of the interview. We observe that it would perhaps be surprising if a suspect, unprompted by legal advice, had chosen to take that approach to an interview.

We can see that, if the applicant had sought to give evidence at trial that his decision not to answer questions about H's allegation had been based on scope of the interview, then issues might well have arisen at trial of how to present that evidence to the jury. However, we do not speculate about those issues and how they might have been dealt with, since they did not arise at the applicant's trial.

Accordingly, in all the circumstances, we refuse leave to appeal against conviction.

We have already given a judgment in this case on the applicant's application for leave to appeal against conviction. We do not propose to repeat what we said in that judgment. This is our judgment on the application for leave to appeal against sentence.

When he sentenced the applicant, the recorder had before him a pre-sentence report, which reported that the applicant continued to deny his guilt, a victim personal statement from H, sentencing notes from the Crown and the applicant and various medical reports concerning the state of health of the applicant's wife. It was agreed that, because of the significant age difference between the applicant and H, the offence fell within category A2 in the sentencing guideline for sexual activity with a child, contrary to section 10 of the Sexual Offences Act 2003, with a starting point of 3 years' imprisonment. However, the recorder noted that the modern offence carries a greater maximum sentence (14 years' imprisonment) than the offence under section 14 of the 1956 Act (10 years).

The aggravating factors identified by the recorder were age disparity and the circumstances in which the offence was committed, whether on the basis that there was an abuse of trust or on the basis that the applicant was trusted as H's uncle. The mitigating factors identified by the recorder were the applicant's good character, both before the offence and in the many years since, and the ill-health of his wife. She had complex needs, as set out in the medical reports, and he was her sole carer.

The advice on appeal does not, as it should, include a concise statement of the grounds of appeal. However, those grounds appear to us to be as follows:

As the recorder rightly recognised, some reduction from the starting point of 3 years' imprisonment set out in the sentencing guideline was appropriate in this case because of the difference in maximum sentence. That in itself might have been a good reason for reducing the sentence, before considering the aggravating and mitigating factors, from 3 years to 2 years and 4 months' imprisonment.

We are concerned by the recorder's treatment of the difference in age between the applicant and H. This was the factor which placed the applicant's culpability in category A, yet the recorder also treated it as an aggravating factor. That, in our judgment, was double-counting.

The only other aggravating factor identified by the recorder was, in effect, that the applicant was H's uncle. We do not consider that this was irrelevant, since it may well be that H would not have gone into the garage with a stranger, but we make it clear that this was not a case of abuse of trust as that term is used in the sentencing guideline: see, for instance, R v Opriah [2021] EWCA Crim 16 at [22].

Against that, there were mitigating factors of appreciable value in the applicant's good character and the effect of his imprisonment on both his wife and his neurodivergent son. These factors were acknowledged by the recorder, but it is contended that he did not give them sufficient weight. We agree that the mitigating factors outweighed the one limited aggravating factor and that a further reduction in sentence was required on that account.

In all the circumstances, we consider that the sentence imposed by the recorder was manifestly excessive. We quash the sentence and impose instead a sentence of 18 months' imprisonment. Having regard to the factors identified in the guideline on imposition of community and custodial sentences, we suspend that sentence for 18 months. Having regard also to the time at which the applicant has already spent in prison, we impose no conditions on the suspended sentence order.

LORD JUSTICE MALES: We strictly need to give leave to appeal and then allow the appeal, with the effect that my Lord has said.

MR O'DONNELL: I presume all ancillary orders remain as they were.

LORD JUSTICE MALES: Indeed.