R v MEK

An adverse-inference direction may be given where a defendant relies at trial on matters omitted from interview, unless the circumstances reasonably explain the omission. The fact that an interview covered separate allegations does not, without evidence of its significance, prevent such a direction. In sentencing, a factor placing culpability within a guideline category must not also be counted as aggravating. A family relationship may remain relevant, but is not necessarily an abuse of trust in the guideline sense. Good character and the impact of imprisonment on family members may substantially reduce sentence. For a historic offence, the difference between the maximum sentence for the offence of conviction and that for the corresponding modern offence may justify reducing the guideline starting point.

The applicant was convicted after a retrial in the Crown Court at Cambridge of indecent assault contrary to section 14 of the Sexual Offences Act 1956, arising from an allegation that he had sexually assaulted his teenage niece in 2003. His first trial ended without a verdict. He had denied the allegation in interview and answered no comment, but at trial relied on matters not mentioned in interview, including the configuration of the garage and an alleged threat concerning money from a fruit machine.

The applicant sought leave to appeal against conviction, arguing that the interview covered a separate, more serious allegation and that this explained his omissions. He also sought leave to appeal against sentence. The issues were whether an adverse-inference direction was appropriate, and whether the sentence involved double-counting, insufficient mitigation and an excessive custodial term.

1. Conviction. Leave to appeal against conviction was refused. The recorder was entitled to give an adverse-inference direction because the applicant relied at trial on matters omitted from interview after being cautioned and taking legal advice. The fact that the interview also concerned a separate allegation did not, without evidence that this affected the applicant’s decision, provide a sufficient reason to withhold the direction. There was no evidence that the applicant had relied on solicitor’s advice, or had himself chosen silence because of the interview’s scope. Separate interviews might have been preferable, but that did not prevent the direction.
2. Sentence. The sentence of two years and four months was manifestly excessive and was quashed. The offence was sentenced by reference to category A2 of the guideline for sexual activity with a child under section 10 of the Sexual Offences Act 2003, although the conviction was under section 14 of the Sexual Offences Act 1956. The difference between the maximum sentences was a proper reason to reduce the three-year starting point.
3. The recorder had double-counted the age disparity. That disparity placed culpability in category A and could not also operate as an aggravating factor. The applicant’s status as H’s uncle was a limited aggravating factor, because it might have facilitated the incident, but it was not an abuse of trust in the guideline sense: see R v Opriah [2021] EWCA Crim 16 at [22]. Good character and the impact of imprisonment on the applicant’s wife and neurodivergent son were mitigation of appreciable value and outweighed the limited aggravating factor.
4. Leave to appeal against sentence was granted, the sentence was replaced with 18 months’ imprisonment, and that sentence was suspended for 18 months without conditions, having regard to time already served.

• Court of Appeal (Criminal Division): Leave to appeal against conviction refused. Leave to appeal against sentence granted; the sentence was quashed and replaced with 18 months’ imprisonment suspended for 18 months.
• Crown Court at Cambridge: Following a retrial, the applicant was convicted on 16 June 2025 and sentenced on 22 August 2025 to two years and four months’ imprisonment.