Limiting Sentencing to Convicted Conduct: Prohibition on Relying on Acquitted Conduct in Mai, R. v [2025] EWCA Crim 516

Introduction

This appeal concerns the appropriate scope of judicial consideration when determining sentence, in particular the impermissibility of basing punishment on conduct for which the defendant was acquitted. The appellant, Mr. Mai, aged 63 at trial, was convicted by a jury of a single count of sexual assault contrary to section 3 of the Sexual Offences Act 2003. He was acquitted of five other counts including further assaults and a stalking offence. At first instance, the trial judge imposed a 12-month immediate custodial sentence after elevating the offence to a higher category—treating acquitted conduct as aggravating. On appeal to the England and Wales Court of Appeal (Criminal Division), the appellant challenged the sentence as “wrong in principle” and manifestly excessive.

Summary of the Judgment

On 11 April 2025 the Court of Appeal allowed the appellant’s appeal against sentence. The court held that:

The trial judge’s re-categorisation of the offence from guideline category 3B to 2A was fundamentally premised on a course of conduct for which the appellant had been acquitted.
Judicial sentencing must focus on the offence of conviction; reliance on acquitted or uncharged conduct that amounts to “sentencing for background” is impermissible.
While power imbalance and abuse of managerial position are valid aggravating features, they did not justify treating the offence as “abuse of trust” in guideline terms.
Taking into account served custody and the pre-sentence report’s recommendations, the court substituted a community order of 12 months with 55 days’ Rehabilitation Activity Requirement and 100 hours’ unpaid work.

Analysis

Precedents Cited and Guideline Framework

Although the judgment does not catalog previous authority by name, it draws upon established sentencing principles and the Sentencing Council’s Sexual Offences Definitive Guideline:

R. v. Emmett [1999] 1 Cr App R 255 – affirming that sentence must be based on proved facts, not unproved allegations.
Sentencing Council’s Definitive Guideline for Sexual Offences (2018) – sets out offence categories (1–4) and culpability bands (A–C) with starting points and ranges.
General common law principle: a sentence must be imposed for the offence of conviction; judicial discretion does not extend to punishing acquitted or uncharged conduct as if convicted.

Legal Reasoning

The Court of Appeal’s reasoning proceeds in three stages:

Scope of Relevant Conduct: The judge properly considered the immediate assault (a “grab” of the victim’s buttocks at work), but impermissibly expanded scope to include a pattern of “relentless” harassment described in acquitted counts.
Application of Sentencing Guidelines: Under the guideline, the offence fell into category 3B (non-consensual touching by a position of authority, medium culpability). This yields a sentencing range from a medium community order to 26 weeks’ custody, with a high-level community order as the starting point—not a custodial sentence.
Aggrevating and Mitigating Factors: The court accepted that age disparity, managerial power imbalance and abuse of position are valid aggravators. However, the judge overstretched by treating the offence as “abuse of trust” (category 2A, 1–4 years). The appellant’s previous good character, lack of criminal history for 45 years, immediate job loss, and expert recommendation for structured intervention weighed heavily in mitigation.

Impact of the Decision

This judgment reinforces key sentencing principles and will guide future courts:

Prohibition on Punishing Acquitted Conduct: Courts must not re-categorise or escalate sentences by drawing on allegations in acquitted counts or untried background conduct.
Strict Adherence to Guideline Categories: Careful application of the Sentencing Council’s categories ensures consistency and transparency in sexual offence sentencing.
Balanced Assessment of Mitigation: Emphasises the importance of acknowledging genuine mitigating factors—particularly an otherwise unblemished record and personal consequences already suffered.

Complex Concepts Simplified

Category 3B vs. 2A: The guideline divides sexual offences by seriousness and culpability. Category 3B covers non-consensual touching by someone in authority (medium culpability). Category 2A is reserved for more serious abuse of trust (higher culpability).
Aggrevating Features: Factors that increase sentence severity—here, power imbalance, abuse of position, targeting a lone female employee.
Mitigation: Factors reducing sentence severity—lack of prior convictions, prompt job loss, demonstrated good character, and expert recommendations for rehabilitation.
Rehabilitation Activity Requirement: A community order component mandating structured interventions to address offending behaviour, often used in lieu of immediate custody.

Conclusion

Mai, R. v [2025] EWCA Crim 516 establishes a clear precedent: sentencing must be confined to the offence of conviction, and judges must not seduce themselves into imposing harsher penalty by relying on acquitted or uncharged conduct. While acknowledging legitimate aggravating factors such as managerial abuse of power, the court must remain within the Sentencing Council’s prescribed categories. The decision underscores the necessity of balancing aggravation with robust mitigation—thereby safeguarding both victim interests and the defendant’s right to fair, proportionate sentencing.