R v Paul Mingo & Anor [2025] EWCA Crim 712

WARNING: reporting restrictions apply to the contents transcribed in this document, as explained in paragraph 3 of the judgment, because the case concerned sexual offences and involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice.This Transcript is Crown Copyright.  It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority.  All rights are reserved.[2025] EWCA Crim 712Venue Royal Courts of JusticeStrandLondonWC2A 2LLDate Tuesday 15 April 2025
Before
THE VICE-PRESIDENT OF THE COURT OF APPEAL, CRIMINAL DIVISIONLORD JUSTICE HOLROYDEMRS JUSTICE EADYMR JUSTICE BENNATHAN
Between
REXCrownv
Between
PAUL MINGOJOHN NEALE__________Computer Aided Transcript of Epiq Europe Ltd,Lower Ground, 46 Chancery Lane, London WC2A 1JETel No: 020 7404 1400; Email: rcj@epiqglobal.co.uk (Official Shorthand Writers to the Court)_________MR JEREMY LYNN appeared for Applicant MingoMR JAMES VARLEY appeared for Applicant NealeMS LESLEY BATES KC appeared for Crown_________JUDGMENT
[1]On 10 May 2024, at the conclusion of a trial in the Crown Court at Wood Green before Her Honour Judge Greenberg KC and a jury, the applicant Paul Mingo was convicted of indecent assault on a male person contrary to section 15(1) of the Sexual Offences Act 1956, and the applicant John Neale was convicted of buggery contrary to section 12 of the 1956 Act. On 27 June 2024 they were sentenced to 3 years' imprisonment, and to an extended determinate sentence of 12 years, comprising a custodial term of 8 years and 4 years’ extended licence, respectively.[2]They both now apply for leave to appeal against their convictions. Mingo also applies for leave to appeal against his sentence. Their applications have been referred to the full court by the Registrar.[3]The victim of their offences is entitled to the life-long protection of the provisions of the Sexual Offences (Amendment) Act 1992. Accordingly, during his lifetime, no matter may be included in any publication if it is likely to lead members of the public to identify him as the victim of either of these offences. We shall refer to him as C.[4]The sole ground of appeal against conviction relates to the directions given by the judge in response to a jury note. It is not suggested that the convictions are unsafe on any other ground. We can therefore summarise the relevant facts briefly. For convenience, and meaning no disrespect, we shall refer to the applicants by their surnames alone.[5]The offences were committed in the mid-1980s, when C was aged 15. Mingo was then aged 24; Neale 32. They all lived in the same area. Mingo ran a shop near a café which was used at the time by men seeking out young boys to groom and abuse. Both applicants were customers at the café and Mingo on occasions worked there.[6]C had had an unhappy time at school and had effectively stopped attending when he was 13 or 14. C's personal circumstances were such that the judge was satisfied that he would have been seen by the applicants as vulnerable. C would hang around in the area of Mingo's shop and the café. He was befriended by Mingo. Mingo's partner offered C work experience in a removals firm in the same area. C welcomed this as a fresh start, enabling him to escape from the bullying he had suffered at school.[7]The first offence was committed by Mingo when C, dressed in his school uniform, was alone in the office of the removals business. Mingo rubbed his hand along C's trousers, unzipped them and began to suck C's penis. C froze in fear, not knowing what to do. Mingo was then disturbed by a noise and C fled, never to return to the removals business. He felt he had to lie to his parents about why he was no longer attending that work experience.[8]C did, however, continue to visit the café, and on a couple of occasions he accepted invitations to visit Neale's home. On one such visit he was given a cup of tea which made him drowsy, the inference being that it had been drugged. C fell asleep on a couch. He woke to find that his trousers had been pulled down. Neale was behind him, also with his trousers down. Neale penetrated C's anus with his penis, causing C to scream in pain.[9]The offences were not reported to the police until many years later. When arrested and interviewed under caution, both applicants denied the offences. Mingo said he had had a consensual sexual relationship with C when C was aged 16 or over. Neale denied any sexual contact with C. At trial, through their counsel, they accused C of lying. Neither applicant gave evidence.[10]In her directions of law to the jury, the judge explained the burden of proof in conventional terms. She continued:
"In order for the prosecution to discharge that burden of proof, before you can find a defendant guilty you must be sure of guilt. Another way of putting it, which means the same, is that you must be satisfied beyond reasonable doubt that the defendant is guilty. If you are anything less than sure of guilt, you must resolve your doubt in the defendant’s favour and find him not guilty."
No criticism is or could be made of that direction, which was provided to the jury both orally and in writing.[11]After a total of about three hours in retirement, spread over part of an afternoon and much of the following morning, the jury sent a note to the judge indicating that they were struggling to reach a verdict. They were asked to provide further detail, and sent a further note which included these two questions:
"What happens when we agree with a statement of offence but not the particulars?" "
What is the definition of reasonable doubt? Anything other than a 100% sure?"[12]After discussing her proposed further directions with counsel, the judge brought the jury back into court. She answered their first question in terms which made entirely clear what the prosecution had to prove in relation to each of the charges. Turning to the second question, she directed the jury as follows:
"Members of the jury, you are wrong to equate my direction of proof beyond reasonable doubt with 100% sure. If you read my directions again, they are clearly set out. My direction is that you must be sure. I do not say 100% sure. 100% sure would, you may think, equate with certainty and certainty is not the standard of proof required. Sure does not equate with 100% sure, as you ask in your question. The standard of proof required is a high standard and means no more and no less than you are sure of guilt. That equates with, are you sure beyond reasonable doubt. That is the test, members of the jury. I trust that with that clarification you can now continue with your deliberations."
The jury retired for a further period of about an hour and then returned their unanimous guilty verdicts.[13]At the later sentencing hearing the judge was assisted by a pre-sentence report in relation to Mingo. He was then aged 61. His criminal record was limited to an offence of theft in 1979 and a drugs offence in 2006. The judge treated those matters as irrelevant to her sentencing.[14]The judge had a powerful victim personal statement from C about the effects on him of the crimes committed by both the accused.[15]The judge noted that the maximum sentence for the offence under section 15 of the 1956 Act was 10 years' imprisonment, whereas the equivalent modern offence (sexual activity with a child, contrary to section 9 of the Sexual Offences Act 2003) has a maximum of 14 years' imprisonment. The judge stated that she would reflect the lower maximum in her sentence. She assessed the offence as falling within category 1A of the sentencing guideline applicable to the modern offence because it involved penetration of Mingo's mouth with C's penis and involved grooming of a vulnerable child (albeit not a very young child) and a significant disparity in age. The judge stated that the seriousness of the offence was aggravated because C had suffered severe psychological harm. She identified as mitigating factors the absence of any relevant previous convictions. She took into account Mingo's age and health issues. She accepted that he may have had a very difficult childhood but observed that when committing the offence he was an adult abusing a child. She rejected Mingo's claim that C had consented to the sexual activity. As we have said, she imposed a sentence of 3 years' imprisonment. We observe that for the equivalent modern offence the guideline indicates a starting point of 5 years' imprisonment and a range from 4 to 10 years.[16]In their grounds of appeal against conviction, Mr Lynn and Mr Varley, both of whom appeared below, submit that the convictions are unsafe because the judge "diluted the standard of proof" by directing the jury that they need not be "100% sure". It is submitted that the judge was wrong to refer to percentages when answering the jury's question, and that the effect of that misdirection was that the jury may well have convicted even though they were not sure that all the ingredients of the offences had been proved. It is suggested that the jury might, for example, have convicted on the basis that they were "90% sure" or "nearly sure".[17]Mr Lynn, on behalf of Mingo, submits that the prosecution case against Mingo was weak and that therefore any misdirection by the judge was capable of having a particularly significant effect on the jury's verdict. His key proposition in his oral submissions to the court this morning was that the terms in which the judge answered the jury's question gave rise to an obvious risk that the jury may convict even if they were not sure of guilt. Mr Lynn accepts that the direction initially given during the summing-up about the burden and standard of proof was correct, that the jury had it in writing and that the judge referred the jury back to it.[18]Mr Varley, for Neale, endorses the submissions made on behalf of Mingo. He encapsulates his key point by saying that the terms in which the jury were directed had the effect of watering down the standard of proof which they had previously been instructed must be reached by the prosecution.[19]Those submissions are resisted by Ms Bates KC on behalf of the respondent, who points out that the judge only referred to percentages because of the terms of the jury's question. It is submitted that the judge correctly directed the jury that they had to be sure, and specifically reminded them of all of the ingredients of the offences which the prosecution had to prove against each of the applicants.[20]Reflecting on the submissions, we reach the following conclusions. As we have said, no criticism is or could be made of the judge's initial directions as to the burden and standard of proof. The central issue in this case, in our view, is whether the judge's later direction, given in response to the jury's question, could have caused the jury to think that they could convict a defendant even though they were not sure of his guilt. We are satisfied that it could not.[21]When a jury asks a question which seeks amplification of a conventional direction about the burden and standard of proof, such as the judge had given in this case, it is desirable that the answer should be as short as possible, and should focus on the need for the prosecution to make the jury sure of guilt before they could convict. Given that the jury here had referred to "100% sure", the judge cannot fairly be criticised for including that phrase in the direction she gave. With respect to her, it would have been better if she had not introduced the word "certainty" into her direction when the jury had not used that word. However, nothing the judge said could be taken to have diluted or altered the meaning of her original direction. We reject the submission that the judge's later direction could be understood by the jury as an instruction that"sure" could mean something less than sure. On the contrary, the judge specifically directed the jury that the prosecution must make them sure of each of the ingredients of the offence they were considering, and she carefully and clearly reminded the jury of what those ingredients were.[22]No counsel had assisted the judge below with any reference to case law, nor had any reference to case law been included in the written submissions to this court. Prompted, however, by an indication given by the court as to relevant authority, we have this morning received submissions about two cases.[23]In R v JL [2017] EWCA Crim 621, the jury had asked whether the standard of proof was "100% certainty" or "beyond reasonable doubt" and, if the latter, what "beyond reasonable doubt" actually meant. The judge directed them that they were not required to be 100% certain, that "sure" and "beyond reasonable doubt" meant the same thing, and that a reasonable doubt is the sort of doubt that might affect the jurors' minds if they were making decisions in matters of importance in their own affairs in their own lives. This court refused leave to appeal against conviction, approving the directions given and observing that absolute or scientific certainty is not required.[24]Similarly, in R v Mohammad [2022] EWCA Crim 380, the jury had been directed that they had to be sure of guilt. In retirement they asked, "How sure do we have to be? Do we have to be 100% with no doubt? Would 99% sure be acceptable for example?" In response

the judge gave the following direction:

"You will recall the direction which you have in writing is that, in order to prove the case against a defendant, the prosecution would have to make you satisfied so that you were sure of guilt. If you were less than sure, then the case would not have been proven. That remains the case. The simple answer to your question is no, you are not required to be 100% sure with no doubt. The courts do not place percentages on the word 'sure'. What I can say is that you should use 'sure' in your deliberations as you would in your day-to-day lives, when making decisions in matters of importance in your own affairs, in your own lives or those of your loved ones."
That direction was approved by this court, which refused an application for leave to appeal against conviction.[25]In the present case the judge, as we have said, was not referred to either of those decisions. Her response to the jury's question was, however, in substantially the same terms as the directions which this court has previously approved. She was correct to instruct the jury that they had to be sure of guilt before they could convict, and nothing she said could be taken to have undermined or weakened that standard. We are therefore satisfied that there is no arguable ground for doubting the safety of the convictions.[26]We turn to Mingo's application for leave to appeal against sentence. Mr Lynn submits on his behalf that the sentence of 3 years' imprisonment was manifestly excessive, in particular because the judge wrongly equated the offence with a modern equivalent which carries a significantly higher maximum penalty, and sentenced by reference to guidelines applicable to that more serious offence. It is further submitted that the judge erred in finding that the circumstances of this case would fall within category 1A of the guideline applicable to the modern offence. Mr Lynn argues that this was not a case of grooming: C was not particularly vulnerable and there was no significant disparity in age. It is also submitted that the judge was wrong to give weight to the fact that C was unable to continue with his work experience, given that he obtained employment on his 16th birthday; and that insufficient weight was given to Mingo's personal mitigation, or to prison conditions, or to the delays which occurred in the proceedings. We regret to observe that some of these submissions were couched in intemperate terms.[27]We reject the criticism made of the judge's approach to sentencing. She adopted the correct approach to the sentencing of historical offences as laid down in R v H [2011] EWCA Crim 2753 and as summarised in the Sentencing Council’s guidance on "Sexual offences - historical". Further we are satisfied that the judge, having presided over the trial and having received C's victim personal statement, was in the best position to assess the seriousness of the offence. There is no arguable ground on which her assessment could be challenged. She correctly identified the aggravating and mitigating factors, and did not fall into error in her balancing of them.[28]In the result the judge passed the sentence of 3 years' imprisonment, which was well below the guideline starting point for an equivalent modern offence and which fairly reflected the findings which she had been entitled to make.[29]In those circumstances the judge made no error of principle and there is no arguable ground on which the sentence could be said to be manifestly excessive.[30]For those reasons, the applications by both applicants for leave to appeal against conviction, and the application by Mingo for leave to appeal against sentence, are refused. Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground Floor, 46 Chancery Lane, London, WC2A 1JE Tel No: 020 7404 1400 Email: Rcj@epiqglobal.co.uk