Summary of Court of Appeal Opinion

Factual and Procedural Background

The Registrar referred the Appellant's applications for leave to appeal against conviction and sentence to the full court. The Appellant was convicted on 16 June 2025 at the Crown Court at The City of one count of indecent assault contrary to section 14 of the Sexual Offences Act 1956 following a retrial (first trial hung; conviction by majority 10–2). On 22 August 2025 the Appellant was sentenced to 2 years and 4 months' imprisonment. The allegation was that, in 2003, the Appellant sexually assaulted the Victim (then aged about 14–15) in the garage at the Appellant's home. The Victim gave direct evidence; additional lay witnesses provided prior disclosures. The Appellant was interviewed in 2022 about two allegations (the Victim's indecent assault allegation and a separate rape allegation which did not proceed to prosecution). At interview the Appellant made a prepared denial about the Victim's allegation, then answered "no comment" to questions. At trial he maintained denial but relied on factual matters not put in interview (including that there was insufficient room in the garage and an alternate explanation involving lost money on a fruit machine). The recorder gave an adverse inference direction in relation to reliance at trial on matters not mentioned in interview. The Appellant sought leave to appeal conviction and sentence; this opinion deals first with leave to appeal against conviction and then with leave to appeal against sentence.

Legal Issues Presented

1. Whether it was appropriate for the recorder to give an adverse inference direction because the Appellant had relied at trial on matters not mentioned in his police interview, in circumstances where the Appellant had been interviewed about two separate allegations (the "scope of the interview" issue).
2. On sentence, whether the recorder erred in (a) treating the offence within the relevant sentencing category and then double-counting age disparity as an aggravating factor, (b) failing to give sufficient weight to mitigation (good character and the Appellant's family circumstances), and (c) imposing a manifestly excessive custodial term rather than a lower or suspended sentence.

Arguments of the Parties

Appellant's Arguments

• The Appellant (through Attorney Cooke) submitted that the adverse inference direction was inappropriate because the Appellant could not reasonably be expected to have mentioned the factual matters he later relied on at trial, given: (i) the long delay since the alleged events and the Appellant's age; (ii) the Appellant's anxieties about his wife's serious medical treatment on the day of interview; and (iii) that he was being interviewed about two allegations and, on legal advice, could reasonably have been advised to address the more serious allegation rather than the Victim's allegation (the "scope of the interview" point).
• On sentence, grounds included that the offence fell at the lower end of the relevant category (naked breasts rather than genitalia), that age disparity was double-counted, insufficient weight was given to mitigation (good character, wife's ill health, neurodivergent son), and that a sentence of 2 years or less (capable of suspension) should have been imposed.

Prosecution's Arguments

• The Prosecution submitted that the Appellant did not give evidence that his failure to mention matters in interview was because he had received advice to answer about one allegation but not the other, or that the scope of the interview justified his approach. Consequently, the recorder was entitled to give the adverse inference direction.
• On sentence, the Prosecution relied on the sentencing guideline categorisation and the aggravating factors identified by the recorder (age disparity and the fact the Appellant was the Victim's uncle).

Table of Precedents Cited

Court's Reasoning and Analysis

The court first applied the Sexual Offences (Amendment) Act 1992 anonymity provisions to protect the Victim's identity. On the conviction appeal, the court analysed whether the recorder was entitled to give an adverse inference direction under the usual principles where a defendant relies at trial on matters not mentioned in interview. The court considered the Appellant's reasons for not mentioning those matters at interview, including the submission that being interviewed about two distinct allegations meant he could not reasonably be expected to mention the matters later relied on. The court emphasised that there was no evidence before the recorder that the Appellant had been advised to answer only in respect of one allegation or that the scope of the interview explained his silence about particular matters. The Appellant had not given evidence that he had relied on solicitor's advice to remain silent about the Victim's allegation, and had not put the scope-of-interview reason before the jury or in a voir dire. Given the absence of such evidence, the recorder was entitled to conclude there was no overlap between the two allegations that would justify withholding the normal adverse inference direction. The court therefore refused leave to appeal against conviction.

On sentence, the court accepted the correct starting point under the guideline for category A2 but noted the guideline's starting point derived from a modern statutory scheme with a higher maximum sentence than the older offence under which the Appellant was convicted. The court found the recorder had double-counted age disparity by treating it both as the factor placing the offence in category A and as an additional aggravating factor; the court characterised that as error. The court accepted that the Appellant's good character and the serious ill-health of his wife (and impact on a dependent neurodivergent son) were mitigating factors of appreciable value that outweighed the limited aggravation. Concluding the original sentence was manifestly excessive, the court quashed it and substituted a sentence of 18 months' imprisonment, suspended for 18 months, without conditions, taking account of time already spent in custody.

Holding and Implications

Conviction: The court refused leave to appeal against conviction. The adverse inference direction given by the recorder was held to be lawful in the absence of evidence that the Appellant's failure to mention matters in interview was due to the scope of the interview or advice he had received.

Sentence: The court quashed the recorder's sentence of 2 years and 4 months' imprisonment and imposed a sentence of 18 months' imprisonment, suspended for 18 months, with no conditions and having regard to time already served. The court identified that double-counting of age disparity was an error in the sentencing exercise and that mitigation (good character and family circumstances) warranted a greater reduction from the guideline starting point. Ancillary orders were to remain as before.

This decision sets out the court's application of established principles on adverse inference directions and sentencing adjustment for double-counting and mitigation; it does not purport to create a new legal precedent beyond its application to the facts of this case.