R v BTC

LORD JUSTICE WARBY: On 17 November 2022 after a trial in the Crown Court at Southwark, the appellant was convicted of one count of sexual activity with a child family member, contrary to section 25(1) of the Sexual Offences Act 2003. He has not been sentenced, having absconded before his sentencing hearing. On 2 April 2025, after hearing argument from Miss Topolski KC, this court granted renewed applications for an extension of time and leave to appeal against conviction.

In summary, the appellant contends that his conviction is unsafe because of culpable failures by the prosecution and/or the appellant's own representatives adequately to explore matters going to the reliability of the evidence against him.

The Sexual Offences (Amendment) Act 1992 applies to this case. The Act confers a right to lifetime anonymity on someone who complains of a sexual offence. We will therefore anonymise the complainant as "C". Although the appellant himself has no right to anonymity, we cannot both name him and set out details of the case in this judgment without indirectly identifying C, so we find ourselves obliged to anonymise the appellant and others in order to ensure that C's statutory right to anonymity is preserved. The appellant will be identified, at least in the title of the case, as "BTC".

The indictment alleged that between 1 January 2018 and 29 January 2019 the appellant, being aged 18 or over, intentionally touched C, who was his son aged eight or nine, in circumstances where the appellant knew those facts and the touching was sexual.

The background was as follows. The appellant and C's mother, M, had separated several years earlier. Contact arrangements allowed for the complainant to stay at the appellant's flat on Wednesday evenings and every other weekend. When he did so he would share a bed with the appellant. On 25 January 2019, M asked C if anyone had touched his private parts. He replied that the appellant had "touched his willy" and that this would happen when the appellant's girlfriend was not around and on Wednesdays. On 29 January 2019, C repeated these allegations to a safeguarding police officer, DC Sarah D'Arcy. Later on 29 January, C gave an Achieving Best Evidence interview in which he alleged that the appellant sometimes touched his penis and that he thought it had started when he was seven or eight years old. C described how the appellant touched his willy "like a gearstick" when they were in bed together.

The prosecution relied on the ABE interview, oral evidence from M and from DC D'Arcy, and the text of an iMessage which C sent to M on 21 February 2019. M gave evidence about what she had asked C and what he had told her. She said that she had been prompted to ask the questions by learning from a woman called Linda of an unrelated allegation of sexual abuse committed by Linda's husband. DC D'Arcy told the jury what C had told her. The text of the iMessage from C to M was: "When I slept at my dad's house he said not to sleep with pants because it blocks circulation".

The defence case was that there was no sexual touching. C was cross-examined before trial on that basis pursuant to section 28 of the Youth Justice and Criminal Evidence Act 1999. That cross-examination was conducted by Emma Fenn of counsel. At his trial the appellant was represented by Giles Newell of counsel. It was Mr Newell who cross-examined both M and DC D'Arcy and who led the evidence for the defence.

The appellant told the jury that he had a very good relationship with his son and did not know why C had said these things. He accepted making the statement recorded in C's iMessage but he denied that the motivation was to gain access to his son's private parts. The defence also called evidence from the appellant's then girlfriend, G, who said that she was aware that the appellant believed it was better for males to sleep without underwear so as to ease circulation. G also said that she had had no concerns about the appellant's behaviour towards C or towards her own five-year-old son. It was an agreed fact that the appellant had no previous convictions, cautions or reprimands.

After a summing-up of which no complaint is made, the jury were sent out to consider its verdict. After some four-and-a-half hours in retirement the jury returned a unanimous verdict of guilty.

Leave was given to pursue two grounds of appeal. Ground 1 is that relevant facts were not explored with C in the section 28 cross-examination. The cross-examination is said to have been inadequate in three respects.

Ground 2 relates to the conduct of the trial and relies upon what is called an “extensive and unhappy history” between the appellant and M. Complaint is made of a failure to explore this "in any depth" as it is said to have provided M with a motive for inventing allegations and then planting them in the mind of C. Three sources of information are relied on as available in the unused material served by the prosecution and which it is said should have been drawn upon by counsel for the defence.

In further written submissions following the leave hearing, and prompted by some of the exchanges at that hearing, Miss Topolski has developed two particular aspects of the grounds of appeal. There were, she now says, culpable failures by the police and prosecution in respect of the iPad and in respect of the letter to the UK Border Agency. Miss Topolski relies on the ongoing duty to pursue all reasonable lines of inquiry imposed by the Code of Practice promulgated under section 23 of the Criminal Procedure and Investigations Act 1996. She submits that there were breaches of duty and consequent failures of disclosure.

As to the iPad, the submission is that C's statement about watching pornography was significant, his iPad was an important exhibit in the case, and that the police and prosecution were under a duty to seize and examine the iPad or to conduct a further ABE interview with C to find out more, or both. The product of such investigations should then have been disclosed to the defence.

As to the letter, Miss Topolski acknowledges the point made by the court during the leave hearing, that the FTT judgment was hearsay and would be of little use to the defence unless M admitted writing the letter referred to. Miss Topolski argues that inquiries could easily have been made of M herself by way of a further interviewing witness statement or of the Border Agency and that such inquiries might have clarified the provenance of the letter and might have afforded a basis for applying to adduce non-defendant bad character evidence.

Given the nature of the grounds of appeal, the appellant has been required to waive legal professional privilege. In assessing the merits we therefore have had the benefit of responses from Miss Fenn and Mr Newell. These are informative, detailed, and comprehensive. In summary, counsels' response to the original grounds of appeal was that the tactical choices they made were considered and that they were correct or at the very least reasonable. The tactical approach was adopted following detailed consultation with the appellant and with his approval. Counsel acknowledge that other tactical approaches could have been adopted but they disagree that these were preferable or even advisable.

We also have the benefit of a detailed written advice given by Mr Newell on 24 November 2022, within days of the jury's verdict, in which he expressed the firm view that there were no grounds of appeal against conviction. He advised, among other things, that the questions asked of C at the section 28 hearing were "appropriate ones to pose in this case" and that it would have been unwise for him to cross-examine M further about the nature of her relationship with the appellant.

In further responses provided since the April hearing, the appellant's trial counsel and prosecution have given us additional information about the pretrial disclosure process. The Crown's position is that there was no breach of duty by the prosecution. It has confirmed that no steps were taken to interrogate C's iPad or to question C about his remarks relating to pornography. It is submitted however that these were not in all the circumstances reasonable lines of inquiry that had to be pursued. As for the letter to the UK Border Agency, we now know that the defence statement included a request for disclosure of any previous police intelligence or crime reports supportive of the suggestion that M had made previous false reports, including that letter. The Crown has located a police memo which indicates that an attempt was made to obtain a copy from the Home Office but the Home Office were unable to locate one. The suggestion that any further steps should have been taken is not accepted. The Crown does not itself see any fault in the way that the defence advocates conducted the section 28 cross-examination or the trial and resists the contention that the appellant's conviction is unsafe.

The approach to be taken to questions of non-disclosure in a criminal trial is settled. Two questions must be addressed. The first is whether the material under consideration should have been disclosed. The second question arises if a breach of duty is established. That question is whether taking all the circumstances of the trial into account the appeal court considers that there is a real possibility that the jury would have arrived at a different verdict: see Kelly (Richard) [2015] EWCA Crim 500 at [42]. In the present case the complaint is not of a failure to disclose material that was obtained but that relevant material was not obtained and disclosed due to a breach of the Crown's investigative duty. In our judgment however a similar two-stage approach must be taken. Miss Topolski agreed with that analysis.

A two-stage approach is also taken where an appeal against conviction is mounted on the basis of forensic decisions made by the appellant's counsel at trial. There must first of all be demonstrable incompetence. It is not enough to identify an additional or alternative course of action that could have been taken, nor is an error of judgment sufficient: see R v Clinton [1993] 1 WLR 1181. The court must be alive to the dangers of second guessing, with the benefit of hindsight, decisions made by advocates directly involved in the detailed dynamics of a case. Secondly, as this court noted in R v Day [2003] EWCA Crim 1060 at [15]:

It is a rare case in which an appeal is held to meet these standards. Clinton is one of them. In that case the court allowed an appeal against conviction having observed that it was open to an appellate court to do that if satisfied that the verdict was unsafe because of key decisions made by counsel when "all the promptings of reason and good sense pointed the other way".

It is against this background of principle that we consider the grounds of appeal.

The prosecution conducted its second interview of C with the aim of exploring whether the appellant had ever shown his son pornography. C said that this had not happened. The prosecution placed no reliance on this interview but disclosed its contents as unused material. The original recording having been lost, it was a typed up version of contemporaneous notes that was disclosed. These show that the interview lasted 20 minutes. The note is short and contains the following passages of relevance:

We do not consider that the prosecution was at fault. The duty imposed by the Code of Conduct under section 23 of the CPIA is to pursue all reasonable lines of inquiry. As paragraph 3.5 of the Code of Practice states: "What is reasonable will depend on the circumstances." Implicit in this language is a limiting principle of proportionality - see R (on the application of Ebrahim) v Feltham Magistrates' court [2001] 1 WLR 1293 at paragraph [9]. The prosecution is not required to conduct an exhaustive examination of every possible angle, nor is it under a duty to conduct speculative inquiries. The questioning of C in this second interview pursued an appropriate and reasonable line of inquiry. It went far enough to identify an issue that the defence might or might not have considered worthy of further investigation. Disclosure was duly given. The defence did not press for more, although the prosecution made an inquiry as to whether it wished to do so. We are satisfied that in all the circumstances the steps taken by the prosecution were both reasonable and sufficient.

We accept the submission of Mr Olivares-Chandler that the evidence indicates that on a single occasion on a date unknown when he was alone, C used his iPad to make an internet search for sexually explicit material of an unspecified kind but apparently of people having sexual intercourse. That left some unexplored questions but the prosecution was, in our judgment, under no duty to press on further in an attempt to resolve them. The case the jury had to consider was whether during the indictment period, when C was eight or nine years of age, his father had squeezed his penis when in bed. Neither the contents of the interview nor any extraneous material suggested that the pornographic material which C said he had viewed might have depicted acts of this kind or that the viewing might in some other way have served as a prompt for the allegations that C made.

We have not been persuaded that the safety of this conviction is undermined by the fact that this unexplored area of C's second interview was not taken up by the defence, including by Miss Fenn in cross-examination of C. First, as the appellant acknowledges, such a course would have required the leave of the court pursuant to section 41(1) of the 1999 Act. Watching pornography alone is "sexual behaviour" within the meaning of that subsection: see R v Ben-Rejab [2011] EWCA Crim. 1136 at [35]. To obtain leave the defence would therefore have had to satisfy the court that the case fell within section 41(2)(b), that is to say, "that a refusal of leave might have the result of rendering unsafe a conclusion of the jury or the court on any relevant issue in the case." This is a high threshold to meet. We very much doubt that the trial judge would have found it satisfied in this instance. That is for reasons we have already indicated. In short this would have been a speculative inquiry. There was and remains no solid basis for supposing that the questioning of C about his use of his iPad to access pornographic material would yield anything of value to the defence. In this connection we have considered with interest the decision of the Court of Appeal of Northern Ireland in LT on which Miss Topolski relies but we have found nothing in it that alters our view. As the court noted itself at paragraph 44, that case was fact-specific. It differed in many respects from the present case. We certainly do not regard LT as laying down any new principle of relevance to the case before us today.

Further, and more significantly, Miss Fenn was entitled, in our judgment, to adopt the tactical approach which she did. The section 28 questions which we have reviewed were composed carefully, with detailed input from an intermediary as to the topics and the way in which they should be raised. The questions covered nine clearly identified topics in a way that reflected the advice given by the intermediary. The intermediary had advised that questions must be asked in chronological order, located in time and place and clear about the level of detail that they required. It is not easy to see how questioning of the kind that is now suggested could have satisfied those criteria, given the vague and unspecific nature of C's remarks in the second ABE interview. We note also that the appellant approved the questions.

It was in any event legitimate for Miss Fenn to take the view that the risks of any cross-examination on the lines now suggested outweighed any advantages they might possibly have. She identifies three dangers in particular. Information that C had been accessing pornography of his own accord might have coloured the jury's view of the appellant's character and conduct as a parent. The same was true of another part of the same ABE record in which C asserted that the appellant had shown him films with sexual content, albeit whilst covering C's eyes. That second aspect of the interview was also contrary to the appellant's case which was that with one specific exception he did not allow C to watch films with sex scenes. These are all reasonable grounds for concern to which could be added, perhaps, the risk that pursuit of a line of speculative questioning of this kind might itself be prejudicial to the defence.

These observations provide much of the answer to the second criticism under ground 1. An attempt to gain advantage by adducing evidence that the appellant would cover C's eyes when sex scenes came on the screen was liable to be self-defeating. We add that we are not persuaded that there was, in any meaningful sense, a prosecution theme that the appellant had sought to normalise sexual behaviour as a grooming method in relation to C.

As to the third criticism, we agree with Miss Fenn's observations: an attempt to use old social services records to establish that shortly after the time of the alleged offending C had wanted to see his father would have been dangerous. It would in particular have opened up an investigation into how C's feelings had developed over the three years since that time. There was every reason to think that these were unfavourable.

In conclusion, the forensic decisions made about cross-examination of C were tenable and for that reason ground 1 must fail.

The material before us makes plain that the appellant's representatives had clearly in mind the possibility of deploying the bad relationship between M and the appellant as part of the defence case. The question of whether and, if so, how to present this issue to the jury was considered by both Miss Fenn and Mr Newell who discussed the matter with the appellant, advised him, and took his instructions upon it. The strategy adopted was one approved by him.

One of the issues considered was the letter of December 2012. The information we now have provides, in our view, a complete answer to the appellant's criticisms on that score. First, the issue was not ignored but specifically considered and it was raised in the defence statement. But by that time the letter was some nine years old. Some seven years had passed since the FTT gave judgment. There is no basis for supposing that the FTT might have retained a copy of the letter. Nonetheless the police did exactly what Miss Topolski has suggested: they took active steps to obtain a copy from the Home Office, the parent department of the Border Agency. Those attempts were unsuccessful, which is not surprising given the lapse of time. We do not consider that the prosecution's duties of reasonable inquiry required them to conduct any further interview with M. We note that the defence did not suggest at the time that anything more should or could be done. We can understand why. For one thing the FTT judgment tells us that the letter did not actually say that the marriage was only one of convenience. In the Tribunal's own assessment it contained what was “essentially a subjective assessment” about the appellant's motives for getting married. Nor did the FTT reach a conclusion that the letter was malicious. It identified this as the worst construction that could be put upon it. It cannot, in our view, be said that there was any breach of duty by the prosecution.

Miss Topolski has not persuaded us that in the absence of the letter itself the defence could realistically have sought to introduce what the FTT judgment said about it as hearsay evidence of M's bad character, let alone that counsel was duty-bound to make the attempt. In reality, we think the most that counsel could have done is to place the judgment before M, without showing it to the jury, and to seek to elicit confirmation from her of the truth of one of more of the key propositions it contained. That was not done. But it plainly cannot be said, in our judgment, that this omission represented incompetence of the degree required to sustain an appeal against conviction. On the contrary, viewed in context we find it entirely understandable.

The other material relied on under ground 2 was considered in detail by the appellant's retained counsel. Both took the view that it was both possible and preferable to present the appellant's case without reliance on this material. An attempt to blacken M's name by reference to this material was, in their opinion, likely to backfire. The appellant was given and accepted advice to that effect.

In giving that advice both defence counsel were acting well within the bounds of reasonable professional judgment. It seems to us that these are further instances of material the deployment of which could have been at least as likely to harm the defence as to assist. Specifically, the social services records are not all favourable to the appellant. The jury might well have ended up with the impression that husband and wife had both behaved badly towards one another. An attack on M's character might also have jeopardised the appellant's right to an unqualified good character direction.

For the reasons we have given we find there was no breach of duty by either the prosecution or the defence. There is thus no basis for a conclusion that the conviction is unsafe.

We would add that after close consideration of the arguments that have been skilfully and tenaciously pursued on behalf of the appellant, we have not been persuaded there is any real possibility that the suggested lines of questioning would have resulted in a different outcome. The case that C may have been prompted to make false allegations against his father was explored with him but rejected by the jury. The case that M had an acrimonious relationship with the appellant was put to her and accepted. The case that M, for malign reasons, had influenced or may have influenced her son to make the allegations was also fairly put before the jury but manifestly rejected by them.

For all these reasons the appeal against conviction is dismissed.