Mingo & Anor, R. v

Factual and Procedural Background

On 10 May 2024, following a trial at the Crown Court at Wood Green before Her Honour Judge Greenberg KC and a jury, the applicants, referred to as Plaintiff A and Plaintiff B, were convicted of indecent assault and buggery respectively, offences under the Sexual Offences Act 1956. Plaintiff A was convicted of indecent assault contrary to section 15(1), and Plaintiff B was convicted of buggery contrary to section 12 of the 1956 Act. They were sentenced on 27 June 2024 to imprisonment terms of 3 years and an extended determinate sentence of 12 years (8 years custodial term plus 4 years extended licence), respectively.

Both applicants sought leave to appeal against their convictions, with Plaintiff A also seeking leave to appeal against his sentence. These applications were referred to the full court by the Registrar.

The offences occurred in the mid-1980s involving a male victim, referred to as C, who was 15 years old at the time. Plaintiff A was 24 and Plaintiff B was 32. The victim was entitled to lifelong anonymity under the Sexual Offences (Amendment) Act 1992.

The offences involved grooming and sexual abuse. Plaintiff A committed the first offence at a removals business office where the victim was present alone, involving indecent assault. Plaintiff B committed the second offence at his home, involving non-consensual anal penetration of the victim, who was drugged and unable to consent.

The victim did not report the offences until many years later. Both applicants denied the allegations at interview and trial, with their counsel accusing the victim of lying. Neither applicant gave evidence.

During the trial, the judge gave conventional directions on the burden and standard of proof, instructing the jury that they must be sure beyond reasonable doubt before convicting. After initial deliberations, the jury sent questions seeking clarification on the standard of proof and particulars of the offence, to which the judge responded with further directions emphasizing the need to be sure but clarifying that "sure" does not mean "100% sure". The jury subsequently returned unanimous guilty verdicts.

At sentencing, the judge considered a pre-sentence report for Plaintiff A, who was aged 61, and noted limited previous convictions. The judge received a victim personal statement detailing the impact of the offences. The judge sentenced Plaintiff A to 3 years' imprisonment, applying sentencing guidelines for a modern equivalent offence but reflecting the lower statutory maximum applicable to the historical offence.

Legal Issues Presented

1. Whether the judge's directions to the jury regarding the standard of proof "beyond reasonable doubt" were proper, or whether they diluted the standard by suggesting the jury need not be "100% sure".
2. Whether the convictions are unsafe on the sole ground of the jury directions.
3. Whether Plaintiff A's sentence of 3 years' imprisonment was manifestly excessive, particularly regarding the application of sentencing guidelines for a modern equivalent offence and the categorisation of the offence severity.

Arguments of the Parties

Applicants' Arguments

• The applicants contended that the judge's response to the jury's question diluted the standard of proof by implying that "beyond reasonable doubt" did not require absolute certainty or being "100% sure".
• It was argued that this misdirection could have led the jury to convict even if they were only "90% sure" or "nearly sure" of guilt, thus undermining the safety of the convictions.
• Plaintiff A's counsel submitted that the prosecution case was weak, increasing the risk that any misdirection affected the verdict.
• Regarding sentencing, Plaintiff A's counsel argued the sentence was manifestly excessive, asserting that the judge wrongly equated the historical offence with a more serious modern equivalent and misapplied sentencing guidelines, particularly disputing the finding of grooming and significant age disparity.
• Additional arguments included that insufficient weight was given to Plaintiff A's personal mitigation, prison conditions, procedural delays, and that the judge erred in considering the victim's loss of work experience as an aggravating factor.

Respondent's Arguments

• The respondent contended that the judge correctly addressed the jury's question by clarifying the standard of proof without diluting it, and only referenced percentages in response to the jury's own terminology.
• The respondent emphasized that the judge reminded the jury of the need to be sure of all elements of the offences before convicting.
• On sentencing, the respondent submitted that the judge adopted the correct approach for historical offences, properly balanced aggravating and mitigating factors, and was best placed to assess the seriousness of the offences given her role in the trial and receipt of the victim personal statement.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by affirming that the initial directions on the burden and standard of proof given by the trial judge were correct and unassailable. The central issue was whether the judge’s subsequent clarification, in response to the jury’s question about the meaning of "reasonable doubt" and whether it required "100% sure" certainty, had the effect of lowering the standard of proof.

The court reasoned that the judge’s answer, while referencing the jury’s own use of percentages and the term "100% sure," did not dilute the requirement that the prosecution must make the jury sure of guilt beyond reasonable doubt. The judge explicitly stated that "sure" does not mean "100% sure" or absolute certainty, but it does mean a high standard of proof. The judge also reminded the jury of all the elements that the prosecution had to prove beyond reasonable doubt.

The court observed that it is desirable for answers to jury questions on legal directions to be succinct and focused on the core legal standard. The judge’s use of the term "certainty" was noted as unnecessary but not prejudicial or confusing in a way that would undermine the standard of proof. The court rejected the argument that the jury could have convicted on a lower standard than "sure."

In support, the court considered two prior authorities—R v JL and R v Mohammad—that approved similar jury directions clarifying that the standard of proof does not require absolute certainty or a percentage measure.

Regarding sentencing, the court found that the sentencing judge applied the correct legal principles for historical offences, balancing aggravating and mitigating factors appropriately. The judge’s assessment of the offence’s seriousness and application of sentencing guidelines for the modern equivalent offence were upheld. The court rejected the submissions that the sentence was manifestly excessive or improperly based.

Holding and Implications

The court REFUSED the applications by both applicants for leave to appeal against conviction and also refused Plaintiff A's application for leave to appeal against sentence.

The direct effect is that the convictions and sentence imposed at first instance stand. No new precedent was established beyond the court’s reaffirmation of existing principles regarding jury directions on the standard of proof and sentencing of historical sexual offences. The decision underscores the importance of precise jury directions and confirms the acceptability of clarifications that "beyond reasonable doubt" does not require absolute certainty.