Adverse Inference Where “Scope of Interview” Is Asserted Without Evidence; and Sentencing Double‑Counting of Age Disparity in Category A2

1. Introduction

In R v MEK ([2025] EWCA Crim 1743), the Court of Appeal (Criminal Division) considered (i) whether a trial judge was wrong to give an adverse inference direction after a defendant answered “no comment” in police interview but later advanced a detailed account at trial, and (ii) whether the sentence imposed for a historic indecent assault was manifestly excessive.

The applicant (“MEK”) was convicted on retrial of one count of indecent assault, contrary to section 14 of the Sexual Offences Act 1956, arising from an alleged assault in 2003 against his niece (“H”), who was then aged 14 or 15. The allegation was reported in 2022. The appeal engaged anonymity protections under the Sexual Offences (Amendment) Act 1992.

Two principal issues arose:

  • Conviction: whether an adverse inference direction should have been withheld because the applicant was interviewed about two separate allegations (H’s allegation and an unrelated rape allegation which did not proceed), making it “unreasonable” to expect him to mention in interview the matters later relied on at trial (“the scope of the interview” argument).
  • Sentence: whether the recorder wrongly treated age disparity both as the basis for placing the conduct in guideline category A2 and again as an aggravating feature, and whether insufficient weight was given to powerful mitigation (good character; caring responsibilities for an unwell wife and a neurodivergent son).

2. Summary of the Judgment

2.1 Conviction appeal (leave refused)

The Court refused leave to appeal against conviction. It held that the recorder was entitled to give the adverse inference direction. Critically, there was no evidence before the recorder that the applicant’s silence in interview on H’s allegation was caused by the interview’s inclusion of the separate rape allegation, nor evidence that he remained silent because of legal advice rooted in that “scope” problem. The two allegations were not shown to overlap, and the applicant had been cautioned as to the potential consequences of silence.

2.2 Sentence appeal (leave granted; appeal allowed)

The Court held the original sentence of 2 years and 4 months’ immediate imprisonment to be manifestly excessive. It quashed that sentence and substituted 18 months’ imprisonment suspended for 18 months, with no conditions, taking account of time already served.

3. Analysis

3.1 Precedents Cited

R v Opriah [2021] EWCA Crim 16

The principal authority cited was R v Opriah [2021] EWCA Crim 16, relied on at sentence. The Court cited it to clarify what amounts to “abuse of trust” as used in the sentencing guideline. While MEK was H’s uncle and therefore in a position of familial proximity, the Court stressed that this did not automatically equate to “abuse of trust” in the guideline sense.

This mattered because labelling conduct as “abuse of trust” can materially increase seriousness. The Court accepted that being an uncle could still be relevant (H might not have been alone with a stranger), but it confined that relevance to a limited aggravating factor rather than a guideline “abuse of trust” uplift.

3.2 Legal Reasoning

(A) Adverse inference and the “scope of the interview” argument

The Court’s reasoning turned on the structure of the applicant’s case at trial and on appeal:

  • The applicant gave a prepared statement in interview denying any sexual contact with H, then answered “no comment” to all questions.
  • At trial, he advanced additional facts not mentioned in interview (including a claim about the garage layout and an allegation of a threatened false complaint over £20 lost on a fruit machine).
  • He argued that it was unfair to permit an adverse inference because the interview covered two allegations, and advice/strategy would be dominated by the more serious one.

The Court upheld the recorder’s approach for three connected reasons:

  1. No evidential foundation: the applicant did not give evidence that he stayed silent on H’s allegation because of the interview’s scope, and did not give evidence that he was acting on legal advice to that effect. Without such evidence, the asserted “scope” justification remained a submission, not a fact the jury could evaluate.
  2. Separation of allegations: the recorder was entitled to treat the two allegations as unrelated (“a different person on a completely different occasion”). In that context, the mere presence of another allegation did not, by itself, make it unreasonable to expect the applicant to mention the later-relied-upon matters when questioned about H’s allegation.
  3. Caution and choice: the applicant was cautioned “in the usual way” and chose not to answer questions about H’s allegation; he then relied at trial on matters not mentioned. That combination commonly supplies the factual precondition for an adverse inference direction, provided the judge considers whether it would have been reasonable to mention the matters earlier.

The Court also rejected the characterisation of this as the Crown using adverse inference to shore up a “weak” case: H gave direct evidence, and there was some supporting evidence from other witnesses about earlier disclosure.

(B) Sentencing: guideline calibration, double-counting, and the limits of “abuse of trust”

The sentencing reasoning is notable for its careful separation of (i) categorisation factors (used to place an offence in a guideline category) and (ii) aggravating factors (used to move within a category range).

Key steps:

  • The parties agreed that, by reference to the modern guideline framework, the conduct aligned with category A2 (starting point 3 years) for sexual activity with a child, because of the significant age difference.
  • The recorder correctly noted that the historic offence under the 1956 Act had a lower maximum than the modern comparator offence, and that some downward adjustment was appropriate.
  • The Court then identified an error: the recorder used age disparity both (a) to place the case into category A and (b) again as an aggravating factor. The Court held that this was double-counting.
  • On “uncle” status, the Court accepted this could carry some aggravating weight, but explicitly rejected treating it as abuse of trust within the guideline meaning, citing R v Opriah [2021] EWCA Crim 16.
  • The Court considered the mitigation “of appreciable value”: good character over many years, and the impact on the applicant’s wife (for whom he was sole carer) and neurodivergent son.

Taking these together, the Court concluded the imposed immediate custodial term was manifestly excessive, substituted 18 months, and suspended it in light of the custody/community guideline factors and the time already served (imposing no further conditions).

3.3 Impact

(A) Future “adverse inference” disputes where interviews cover multiple allegations

This decision reinforces a practical evidential principle: a defendant who seeks to avoid an adverse inference direction on the basis of interview “scope” must ordinarily place before the court (and, where appropriate, the jury) evidence that the scope actually explains the silence—either as the defendant’s own reasoned decision or as reliance on legal advice. Mere assertion by counsel, without an evidential platform, is unlikely to prevent the “usual” direction where the defendant later relies on new matters.

It also signals that where allegations are distinct and non-overlapping, the inclusion of a second allegation in an interview is not, without more, a reason to treat silence on the first as automatically reasonable.

(B) Sentencing: guarding against double-counting and over-extending “abuse of trust”

The sentencing outcome underscores two points likely to be cited in future sentencing appeals:

  • Double-counting vigilance: if a factor has already determined category/culpability, it should not be used again as an aggravating feature unless the judge explains a distinct additional dimension beyond what the category already captures.
  • “Abuse of trust” is a term of art: familial relationship alone does not necessarily satisfy the guideline concept; courts must identify the specific trust role contemplated by the guideline (as illuminated by R v Opriah [2021] EWCA Crim 16) rather than treating any family connection as “abuse of trust”.

Finally, the case illustrates that even in serious sexual offending contexts, strong personal mitigation (especially caring responsibilities supported by medical evidence) can justify a suspended custodial term, depending on overall seriousness and the custody threshold assessment.

4. Complex Concepts Simplified

  • Adverse inference direction: a judicial direction that jurors may, in certain circumstances, draw a negative inference from a suspect’s failure in interview to mention facts later relied on in court. It is not automatic; it depends on whether it would have been reasonable to mention those facts when questioned.
  • “No comment” interview: where a suspect declines to answer police questions. Doing so can be lawful and sometimes sensible, but it may carry evidential consequences if the suspect later advances a detailed defence not previously mentioned.
  • Double-counting (sentencing): treating the same feature twice—first to place an offence into a higher seriousness category and then again to increase the sentence within that category—thereby unfairly inflating the sentence.
  • Abuse of trust (guideline meaning): not every relationship involves “trust” in the guideline sense. The term generally targets situations where the offender has a recognised position enabling access, influence, responsibility, or authority over the child beyond mere acquaintance or kinship.
  • Suspended sentence: a custodial sentence which is not immediately served in prison unless the offender breaches the suspension period requirements (and any attached conditions, if imposed).

5. Conclusion

R v MEK [2025] EWCA Crim 1743 delivers two clear messages. First, a “scope of the interview” justification for silence will rarely defeat an adverse inference direction unless supported by evidence that the scope truly drove the decision not to answer questions. Second, in sentencing, courts must avoid double-counting factors already embedded in guideline categorisation and must apply “abuse of trust” as a defined guideline concept, not as a label that automatically attaches to familial relationships. The result was a refusal of leave on conviction, but a substantial reduction and suspension of sentence due to identified sentencing error and compelling mitigation.