MAK, R. v

Factual and Procedural Background

The Sexual Offences (Amendment) Act 1992 applies to this matter. Under that statute, where an allegation has been made that a sexual offence has been committed against a person, no matter relating to that person shall, during that person's lifetime, be included in any publication if it is likely to lead members of the public to identify that person as the victim of that offence.

The Appellant, aged 43 at the time of the proceedings, was convicted on 18 August 2023 at the Crown Court in The City of a variety of sexual offences committed against his stepdaughter (the Complainant). On 15 December 2023 Judge Henderson sentenced the Appellant to a total of 7 years' imprisonment.

The Appellant renewed an application for an extension of time (143 days) for leave to appeal against conviction. He also sought an extension of time of 40 days in which to renew his application for an extension of time of 31 days for leave to appeal against sentence, and an order for representation. A single judge refused those applications. Separately, the Appellant applied for leave to adduce fresh evidence under section 23 of the Criminal Appeal Act 1968, seeking to rely on witness statements from four individuals.

The factual basis of the offending, as found at trial, was:

• The Complainant was the Appellant's stepdaughter and was a vulnerable child with a mild learning disorder affecting intellectual function; she was diagnosed with Autism Spectrum Disorder and Attention Deficit Hyperactivity Disorder.
• When the Complainant was about 12 the Appellant approached her from behind in the house's toy room on multiple occasions, put his arms round her, touched her breasts and rubbed her groin over clothing. These events corresponded to counts 2 and 3.
• Further incidents occurred after the Complainant went to bed in a bedroom she shared with half-siblings: the Appellant entered, established she was awake and put his hand under her nightwear, rubbing her vagina over her knickers (count 4, pleaded as a single incident although the prosecution alleged repetition).
• The abuse progressed to direct contact when the Appellant moved the Complainant's underwear aside, placed his hand directly on her vagina and inserted a finger into her vagina (count 1). The Complainant experienced pain and later noticed blood in her underwear.
• The abuse ceased in September 2016 when, for reasons unconnected to these allegations, the Complainant and her half-siblings were taken into care. The Complainant made a complaint to the police in August 2018.

At trial the principal witness was the Complainant. There was additional evidence from a witness who was the natural father's partner (referred to in the trial material) that the Complainant had complained to her; a social worker and a foster carer also gave evidence concerning disclosure timing and content. The Appellant's defence at trial was denial; when asked for an explanation he said the allegations were "to get him out of the picture." The Appellant called no witnesses at trial.

Legal Issues Presented

1. Whether to grant an extension of time (143 days) for the Appellant's out-of-time application for leave to appeal against conviction.
2. Whether to grant an extension of time (40 days to renew a 31-day extension) for leave to appeal against sentence and for a representation order.
3. Whether permission should be given to adduce fresh evidence under section 23 of the Criminal Appeal Act 1968 based on the statements of four witnesses.
4. Whether the convictions are unsafe because (a) the Achieving Best Evidence (ABE) interview of the Complainant was edited by the prosecution, and (b) the social worker who acted as appropriate adult at the ABE interview later gave evidence at trial.
5. Whether subsequent material — including alleged retraction by the Complainant — undermines the safety of conviction.
6. Whether the sentence of 7 years (for digital penetration on count 1, with concurrent sentences on other counts) was wrong in principle or manifestly excessive, having regard to a pre-sentence report which recommended a suspended sentence and to the Appellant's health and caring responsibilities.

Arguments of the Parties

Appellant's Arguments

• The ABE interview of the Complainant was edited by the prosecution in a manner that undermined the fairness of the trial.
• The appropriate adult at the ABE interview was the social worker (Social Worker Williams), who later gave evidence at trial and therefore her attendance at the interview was said to be improper or prejudicial.
• The police and the Appellant's legal representatives failed to obtain statements from family members who could provide fresh evidence that would undermine the convictions; four family members now provide such statements.
• The Complainant has since purportedly disclosed that she lied about the allegations and that she had been told to make them by her social worker.
• In relation to sentence: the pre-sentence report recommended a suspended sentence; the sentencing judge failed to take into account the Appellant's health and caring responsibilities.

Respondent's/Prosecution's Position

The opinion does not contain a detailed, separate account of the respondent's formal legal submissions. The single judge's and appellate court's reasoning records the responses to the Appellant's grounds (summarised in the Court's analysis below), including that full ABE transcripts were available during the trial, that the social worker's presence as appropriate adult was lawful and that she gave evidence and was cross‑examined at trial, that proposed new witnesses were available to be called at trial and their statements lack specific probative detail, and that investigatory reports show the Complainant reaffirmed her original disclosures.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The court approached the applications by considering the substance of each challenge and the material relied on by the Appellant, and by reviewing the single judge's earlier determinations. The analysis below follows the structure of the court's reasoning as contained in the opinion.

Preliminary statutory point

The court began by noting the application of the Sexual Offences (Amendment) Act 1992 and the restriction on publishing material likely to identify the victim of the sexual offences.

ABE interview editing and role of the appropriate adult

The single judge observed that editing of ABE interview transcripts to remove irrelevant or prejudicial material is routine practice. Full ABE transcripts had been available on the Digital Case System (DCS) during the trial. The Complainant, being vulnerable by reason of a learning disability, ADHD and autism, was entitled to have her social worker present as an appropriate adult for those interviews. The recorded interviews and the full transcripts — including exchanges between the social worker and the Complainant which were edited out of the evidence given to the jury — were available on the DCS. The social worker gave evidence at trial and was cross‑examined. On this basis the court agreed with the single judge that the complaints about editing and the social worker's presence were "incontestably bad" and did not render the convictions unsafe.

Fresh evidence from family members

The four proposed "new" witnesses were family members (the Appellant's partner, two of his daughters and his brother). Their statements primarily asserted disbelief of the Complainant's allegations or sought to suggest limited opportunities for the Appellant to commit the offences. The court pointed out:

• Their statements do not provide specific evidence addressing the allegations themselves; they state opinions about credibility, which is a matter for the jury and of little or no probative value on an application to adduce fresh evidence.
• Where statements suggest restricted opportunity, they do not assert a lack of any opportunity, and this line was already explored at trial during the cross‑examination of the Complainant.
• All four witnesses were plainly available at the time of the trial and could have provided statements or been called; no cogent explanation was given for why they were not called at trial.
• The Appellant refused to waive privilege in communications with his former legal team, which prevented further investigation into the reason these witnesses were not used at trial.

For these reasons the court accepted the single judge's conclusion that the proposed witness statements added nothing of probative value and did not justify permission to adduce fresh evidence or an appeal based on fresh evidence.

Alleged retraction by the Complainant

The single judge noted, and the appellate court accepted, that a report dated 10 October 2024 from the Officer in Charge (OIC) recorded a recent interview with the Complainant in which she confirmed the truth of the evidence she had given against the Appellant. The court also considered a later police report (dated 19 December 2024) by Officer Bryant, which provided further detail about the alleged retraction. That report indicated the purported retraction took the form of a recording in which the Complainant read words written by one of the Appellant's daughters; the recording was then emailed to a Review Unit by another daughter. The Complainant told the officer she had been put under pressure by her mother (the Appellant's partner) because the Appellant phoned daily from prison; the Complainant said she was worried about the consequences of not making the recording but nevertheless confirmed the truth of her original disclosures. The appellate court treated this material as corroborating the single judge's conclusion that the Complainant had not genuinely retracted her allegations.

Appeal against conviction — overall assessment

Taking the above points together, the court agreed with the single judge's assessment and concluded that it was not arguable that the convictions were unsafe. The ABE editing and the social worker's attendance did not undermine trial fairness; the new family witness statements were not sufficiently probative or novel; and the investigatory material including the OIC and police reports supported the Complainant's original evidence. Accordingly, the renewed application for permission to appeal against conviction was refused.

Appeal against sentence

The sentencing judge had treated count 1 (digital penetration) as the most serious offence and imposed 7 years' imprisonment for that offence, taking other offending into account. Concurrent sentences of 2 years were imposed on counts 2, 3 and 4. The court accepted that approach as correct. The Appellant's criticisms of sentence were limited to (a) reliance on the pre-sentence report which had recommended a suspended sentence and (b) that the judge failed to take account of the Appellant's health and caring responsibilities.

The appellate court agreed with the single judge that a pre-sentence report may recommend a disposal that, on analysis, proves to be unlawful or wholly inappropriate; in the present case immediate custody was the proper outcome. The court also recorded that the sentencing judge had expressly considered the knock-on effects of the offending on the Appellant's family, but concluded that those effects were an unavoidable consequence of the Appellant's offending. The 7 year term was within the relevant sentencing guideline and was neither wrong in principle nor manifestly excessive. For these reasons the renewed application for permission to appeal against sentence was refused.

Extensions of time

The court observed that substantial extensions of time were sought for the various applications. Because the applications themselves contained no material of substance to support the claims advanced, the court refused the requested extensions of time.

Holding and Implications

The appellate court refused the renewed application for permission to appeal against conviction; it refused the renewed application for permission to appeal against sentence; and it refused the extensions of time sought for those applications.

Direct consequences:

• The Appellant's convictions and the sentence of 7 years' imprisonment, as imposed by Judge Henderson on 15 December 2023, remain in force.
• The Appellant's applications to adduce fresh evidence and to obtain the various extensions of time were dismissed; no further relief was granted by this court in respect of those matters.

Broader implications:

The opinion does not establish or apply any new precedent. The court's decision rests on the specific facts and material in this case: routine editing of ABE materials, appropriate adult attendance for a vulnerable witness, lack of novelty or probative force in late family statements, the availability of those witnesses at trial, and investigatory reports confirming the Complainant's original disclosures. No wider legal development was announced.