R v MAK [2025] EWCA Crim 1138: Fresh “Evidence” from Family Opinion and Pressured Retractions Held Non‑Probative; ABE Editing and Social Worker as Appropriate Adult Endorsed; Pre‑Sentence Recommendations Not Binding

Introduction

This Court of Appeal (Criminal Division) decision concerns renewed applications by a defendant (the applicant), convicted of sexual offences against his stepdaughter, to:

• Appeal against conviction (with a substantial extension of time);
• Appeal against sentence (with extensions of time); and
• Adduce fresh evidence under section 23 of the Criminal Appeal Act 1968.

The prosecution case was based principally on the complainant’s account of sustained sexual abuse over a period when she was 12–14, corroborated in aspects by early complaint and disclosure evidence from a family acquaintance and professionals. The defence case at trial was denial, with no defence witnesses called.

The renewed appeal raised four conviction grounds: alleged improper editing of the complainant’s ABE (Achieving Best Evidence) interview; the presence of the complainant’s social worker as an “appropriate adult” at that interview; failure to obtain statements from family members; and an asserted post‑trial retraction by the complainant. On sentence, the applicant relied on a pre‑sentence report’s recommendation for suspension and personal mitigation (health and caring responsibilities).

Summary of the Judgment

The Court refused all renewed applications. In particular:

• Conviction appeal: Permission refused. Editing of ABE material was orthodox; the social worker’s presence as appropriate adult was proper; the proposed “fresh evidence” from family members lacked probative value and had been available at trial; and the alleged retraction was shown to have been made under pressure, with the complainant affirming the truth of her original allegations.
• Fresh evidence (s.23 CAA 1968): Refused. The four family statements added nothing of probative value and no cogent explanation was offered for their absence at trial. The applicant’s refusal to waive privilege precluded proper inquiry into trial representation issues.
• Sentence appeal: Permission refused. A 7-year term on the count of digital penetration, with concurrent sentences on related counts, was in line with the guideline. A pre-sentence report’s view on suspension does not bind the court; and family hardship/health were considered but did not alter the necessity for immediate custody.
• Extensions of time: Refused, given the absence of merit in the underlying applications.

Detailed Analysis

1) Precedents and Authorities Cited

No case authorities are cited in the judgment. The Court explicitly applies:

• Sexual Offences (Amendment) Act 1992 (statutory lifetime anonymity of complainants in sexual cases); and
• Criminal Appeal Act 1968, section 23 (fresh evidence on appeal: the statutory framework and factors guiding the reception of new material).

Although the Court does not recite specific authorities, its reasoning reflects settled principles governing:

• Editing of ABE interviews to remove irrelevant or prejudicial content while ensuring full transcripts are available to the defence;
• The permissibility of a social worker acting as an “appropriate adult” for a vulnerable witness at interview;
• Fresh evidence gateways: availability with due diligence at trial, credibility/weight, and potential to affect safety of conviction;
• Limited weight of “belief/opinion” evidence on another witness’s credibility;
• Non‑binding nature of pre‑sentence recommendations in reports; and
• Extensions of time: lack of merit is fatal to such applications.

2) The Court’s Legal Reasoning

A. ABE interview editing and presence of social worker

The applicant argued that the ABE interview was improperly edited and that the complainant’s social worker should not have been the “appropriate adult.” The Court rejected both points decisively:

• Editing: It is routine to edit ABE footage/transcripts to remove irrelevant or prejudicial passages. Crucially, the full transcripts were available on the Digital Case System during trial, preserving defence access for case preparation and cross-examination. This practice protects fairness without undermining disclosure.
• Appropriate adult: Given the complainant’s vulnerabilities (learning disability, ASD, ADHD), the presence of a social worker as appropriate adult was proper. The social worker also gave evidence and was cross‑examined; exchanges edited from the ABE did not form evidence at trial. The Court considered these complaints “incontestably bad.”

B. “Fresh evidence” from family members and alleged retraction

The Court treated the “new evidence” and retraction claim together. Four family members provided statements primarily asserting disbelief in the complainant’s allegations and, in one case, positing limited opportunity for offending.

• Probative value: Whether relatives believe or disbelieve the complainant is not probative; credibility assessments are for the jury. The general observation about “limited opportunity” did not preclude opportunity and had, in any event, been explored at trial in cross‑examination. None of the statements contained direct factual evidence undermining the jury’s findings.
• Due diligence and availability: All four witnesses were plainly available at trial. No cogent explanation was given for their absence. The applicant’s refusal to waive privilege prevented exploration of whether the trial team was instructed not to call them or had considered and rejected their evidential value.
• Alleged retraction: A police report recorded that the complainant’s so‑called retraction was a recorded reading of words written by the applicant’s daughter, sent by another daughter, and made under pressure from the complainant’s mother in the context of daily telephone calls from the applicant. The complainant then confirmed the truth of her original allegations and explained the pressure. The Court deemed the “retraction” unreliable and incapable of undermining the safety of the conviction.

These findings align with the statutory factors in section 23 of the Criminal Appeal Act 1968. The proposed evidence was available at trial, lacked weight and probative force, and did not give rise to any arguable ground that could render the conviction unsafe.

C. Sentence: guideline adherence and non‑binding PSR recommendations

On sentence, the Court endorsed the trial judge’s approach:

• Structure: The judge correctly treated the digital penetration (count 1) as the lead offence (7 years), taking into account the totality of criminality, with concurrent 2‑year terms on the other counts—an orthodox totality approach aligned with the relevant guideline.
• Pre‑sentence report: A recommendation for a suspended sentence, while sometimes offered, does not bind the court and may be inappropriate or even unlawful in serious cases. Here, immediate custody was clearly required.
• Mitigation and family impact: The judge expressly considered the applicant’s health and caring responsibilities and the wider impact on his family. However, given the gravity and pattern of abuse, such mitigation could not alter the necessity for a substantial custodial term.

The Court concluded the sentence was neither wrong in principle nor manifestly excessive; the criticisms were “untenable.”

D. Extensions of time

The Court refused the substantial extensions of time because the proposed grounds were meritless. While extension decisions may balance length of delay against the interests of justice, the absence of any arguable ground is decisive against granting lengthy extensions.

3) Impact and Practical Implications

• ABE challenges narrowed: Appeals alleging unfairness from ABE editing or the presence of a social worker as an appropriate adult will face a high bar where full transcripts were disclosed and the witness was available for cross‑examination.
• Fresh evidence gatekeeping reinforced: Family-member statements offering mere opinions on a complainant’s credibility—or general “opportunity” observations—will rarely satisfy section 23. Fresh evidence must be specific, probative, and capable of affecting safety. Availability at trial, without a cogent explanation for absence, will be fatal.
• Retractions scrutinised: Retractions obtained under pressure, through scripted recordings, or otherwise compromised, will not ordinarily render a conviction unsafe—especially where the witness promptly re‑affirms the original account and explains the coercion.
• Privilege and appellate scrutiny: Refusal to waive privilege may limit the Court’s ability to assess allegations concerning trial representation and witness decisions, weakening “fresh evidence” bids premised on supposed defence failures.
• PSR recommendations: Defence reliance on recommendations for non‑custodial disposal carries limited strategic value in serious sexual offences; sentencing judges remain duty‑bound to apply guidelines and impose immediate custody where warranted.
• Extensions of time: Substantial delays without arguable merit will not be indulged. Practitioners should ensure prompt, evidence‑based grounds before seeking long extensions.

Complex Concepts Simplified

• ABE interview: A recorded interview used to capture a vulnerable complainant’s account in a fair and reliable way. Editing removes irrelevant or prejudicial parts before trial; the defence typically gets the full transcript to ensure fairness.
• Appropriate adult: A person present to support a vulnerable witness during police processes. A social worker can fulfil this role. Their presence does not taint the evidence; they may also later give evidence and be cross‑examined.
• Fresh evidence (s.23 CAA 1968): New material the appellant wants to introduce on appeal. The Court considers whether it could have been obtained at trial with reasonable efforts, whether it is credible and significant, and whether it might reasonably have affected the verdict.
• Probative value: The capacity of evidence to prove something material in the case. Mere opinions about whether someone is telling the truth are generally not probative; concrete facts that contradict key parts of the case are.
• Manifestly excessive / wrong in principle: Appellate standards for interfering with sentence. A sentence must be clearly too high or based on a legal/sentencing error for the Court to adjust it.
• Extension of time: Permission to appeal late. The Court balances length of delay, reasons for delay, and—crucially—whether the proposed appeal has merit. No merit usually means no extension.

Key Takeaways

• Editing ABE material is legitimate case management; full disclosure of transcripts preserves fairness.
• A social worker may act as appropriate adult for a vulnerable complainant; their participation does not undermine the integrity of the interview or trial.
• “Fresh evidence” consisting of family opinions on credibility—or non‑specific observations of opportunity—lacks probative value and is unlikely to be admitted, particularly if the witnesses were available at trial and no cogent explanation exists for their absence.
• Retractions procured under pressure, especially via scripted recordings, will not ordinarily jeopardize the safety of a conviction where the witness re‑affirms the original account.
• Pre‑sentence recommendations are advisory, not binding; in serious sexual offending, immediate custody may be unavoidable notwithstanding personal mitigation.
• Extensions of time will be refused where the underlying grounds are unarguable.

Conclusion

R v MAK provides a clear, practical reaffirmation of several appellate fundamentals in sexual offence cases. The Court’s insistence on probative, trial‑unavailable, and potentially outcome‑altering fresh evidence under section 23 CAA 1968 sets a stern benchmark for post‑conviction attempts to revisit credibility through family opinions or pressured retractions. It also underscores the routine propriety of ABE editing and the legitimacy of a social worker acting as an appropriate adult for a vulnerable witness. On sentencing, the judgment reminds practitioners that pre‑sentence recommendations do not bind the court and that guideline‑compliant immediate custody is likely in serious abuse cases. Finally, the refusal of extensive time extensions where no arguable merit exists reflects a continuing commitment to finality and the integrity of jury verdicts.