R v Mingo & Neale: The Court of Appeal Affirms Flexible Jury Directions on the “Sure / 100 % Certainty” Dichotomy

Introduction

The Court of Appeal (Criminal Division) in Mingo & Anor, R. v ([2025] EWCA Crim 712) was invited to quash two historic sexual-offence convictions and to reduce a sentence on the basis that the trial judge had allegedly diluted the criminal standard of proof when replying to a jury note.

The case concerned two defendants:

Paul Mingo – convicted of indecent assault on a male (s 15(1) Sexual Offences Act 1956) and sentenced to three years’ imprisonment.
John Neale – convicted of buggery (s 12 Sexual Offences Act 1956) and given an extended determinate sentence of 12 years (8 years custodial, 4 years extended licence).

The sole ground of appeal against conviction centred on the judge’s supplemental direction after the jury asked whether “reasonable doubt” meant being “100 % sure”. The appellants claimed that any reference to percentages impermissibly lowered the standard. Mingo alone challenged his sentence, arguing that the judge wrongly applied modern sentencing guidelines to a historical offence.

Summary of the Judgment

The Court of Appeal (Vice-President presiding) refused all applications:

Convictions: The trial judge’s amplification did not dilute the “beyond reasonable doubt / sure” test. Referring to “100 %” merely mirrored the jury’s wording and, read fairly, reinforced rather than relaxed the burden on the prosecution.
Sentence (Mingo): The three-year term for indecent assault was neither wrong in principle nor manifestly excessive. The judge correctly deployed modern guidelines as a cross-check while respecting the lower statutory maximum for the 1956 offence.

Analysis

1. Precedents Cited

R v JL [2017] EWCA Crim 621
Approved a direction that jurors need not be “100 % certain”; “sure” is the modern synonym for “beyond reasonable doubt”.
R v Mohammad [2022] EWCA Crim 380
Endorsed an answer to a jury asking if 99 % certainty suffices. The judge stated that courts “do not place percentages on the word ‘sure’”.
R v H [2011] EWCA Crim 2753
Sets out the methodology for sentencing historical sexual offences: apply today’s guidelines for structure, but cap by the historical statutory maximum.

The Court treated JL and Mohammad as near-identical scenarios. Their approval of explicit references to “100 % certainty” undermined any suggestion that the trial judge here erred. H underpinned the sentencing analysis.

2. Legal Reasoning

The Court distilled the question to a single issue: could the supplemental direction have led a reasonable jury to think it could convict without being sure? In rejecting the challenge, the judges emphasised:

The primary written and oral directions—unequivocally correct—remained before the jury.
The judge reiterated that the prosecution must make the jury “sure of guilt”.
Use of “100 % sure” originated from the jurors, not the judge; addressing a jury’s own terminology does not per se create misdirection.
Although mentioning “certainty” was sub-optimal, the language could not reasonably be interpreted as lowering the standard.

On sentence, the Court reaffirmed that historical cases demand a three-step approach (H): ascertain today’s guideline category, stand back to respect the historic maximum, and adjust for any aggravating/mitigating factors. The sentencing judge’s category 1A assessment (penetration + grooming + vulnerability) and starting point were well within range once the 10-year cap was considered.

3. Impact of the Decision

While the Court did not craft an entirely new rule, it consolidates and clarifies existing authority, offering practical guidance:

Trial judges may, without causing a misdirection, repeat or paraphrase percentage phrases introduced by jurors provided they anchor the standard to “being sure”.
Introducing the notion of “scientific certainty” or “absolute certainty” is discouraged but not fatal if counter-balanced by clear restatement of the orthodox test.
Practitioners should pro-actively furnish the trial judge with authorities (e.g., JL, Mohammad) whenever jury queries on standard arise, reducing appellate challenges.
The case reinforces the sentencing protocol for historic sexual offences—expect robust sentences reflecting modern guidelines yet calibrated to past maxima.

Complex Concepts Simplified

Standard of proof (“beyond reasonable doubt”): The level of certainty a jury must reach before convicting. Modern practice shortens this to “being sure”. It is not mathematical; jurors need not quantify doubt in percentage terms.
Extended Determinate Sentence (EDS): A post-Criminal Justice Act 2003 sentence where an offender receives a fixed custodial term plus an “extended licence” period because they are deemed dangerous.
Historical offence: Conduct criminalised under older legislation tried today. Sentencing judges look at:
1. The law and maximum penalty in force when the offence occurred (Article 7 ECHR prevents retrospectively harsher penalties).
2. Current Sentencing Council guidelines for structure and consistency.
Category 1A (Sexual offences Guideline): The most serious band for child sexual activity involving penetration, significant planning/grooming, vulnerability, or large age disparity.

Conclusion

Mingo & Neale stands as a strong reaffirmation that the criminal standard of proof is qualitative, not numerical. Judges answering jury questions may safely acknowledge jurors’ own percentage language so long as they firmly re-state that the prosecution must make the jury “sure”. The Court’s endorsement of this pragmatic approach will guide trial judges who frequently encounter similar queries.

On sentencing, the case underscores that historic sexual abuse can and should attract substantial custodial penalties even when statutory maxima have since risen, provided judges transparently map modern guidelines onto the historical framework.

Ultimately, the decision promotes clarity, consistency, and practical flexibility in criminal trials—values essential to maintaining jury confidence and safeguarding defendants’ fair-trial rights.