BQX, R. v

Factual and Procedural Background

The Applicant, aged 57 at the time of trial, was convicted on 5 September 2023 at the Crown Court in The City of a total of 24 sexual offences, including indecent assault, rape, and indecency with a child, spanning a period from 1993 to 2002. The offences involved five male complainants, two of whom were the Applicant's stepsons. The Applicant denied all allegations throughout the investigation and trial. The prosecution portrayed the Applicant as a predatory paedophile with a lifelong interest in underage boys, relying on complainants' testimonies, corroborative evidence, and prior convictions. On 10 November 2023, the Applicant was sentenced to a total term of 12 years, including an 11-year custodial sentence and a 1-year licence period, consecutive. The Applicant sought leave to appeal against conviction and for a representation order, challenging the trial judge's ruling permitting fresh bad character evidence after the close of the prosecution case during cross-examination.

Legal Issues Presented

1. Whether the trial judge was entitled to exercise discretion to admit fresh bad character evidence after the close of the prosecution case, specifically evidence relating to a 2019 conviction known to the prosecution before trial but introduced during cross-examination.
2. Whether the admission of this late evidence rendered the conviction unsafe.

Arguments of the Parties

Appellant's Arguments

• The Applicant challenged the judge’s ruling allowing fresh bad character evidence after the prosecution case had closed, contending that the prosecution had known of the 2019 conviction prior to trial and that its late admission was improper.
• The Applicant’s counsel acknowledged that had the 2019 conviction been known earlier, it could have been included in a bad character application prior to trial.
• Following discovery that the prosecution had prior knowledge of the 2019 conviction, the Applicant requested reconsideration of the judge’s decision to admit this evidence late.

Prosecution's Arguments

• The prosecution argued that the Applicant had created a false impression during cross-examination regarding his past convictions, specifically minimizing the seriousness of the 2016 offences.
• They applied under section 101(1)(f) Criminal Justice Act 2003 to cross-examine the Applicant to correct this false impression, which justified the admission of further bad character evidence including the 2019 conviction.
• The prosecution maintained that the evidence was relevant, probative, and admissible, and that the Applicant had sought to take advantage of the prosecution’s oversight by portraying himself as naïve and innocent.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Rice [1963] 1 QB 847	Rule of practice that all prosecution evidence should be called before the close of their case if available.	The court acknowledged this rule but noted exceptions allowing discretion to admit evidence after close of prosecution case.
Graham [2019] EWCA 2141	Exercise of discretion to admit late evidence must be cautious and not encourage sloppy police practice; a nuanced, case-sensitive approach is required.	The court applied this principle to justify the judge’s discretion in admitting late evidence in the interests of justice without creating precedent for encouraging late evidence.

Court's Reasoning and Analysis

The court recognized that while the prosecution should present all evidence before the close of their case, there are exceptions permitting late admission of evidence at the judge’s discretion. The 2019 conviction evidence was known to the prosecution prior to trial but was inadvertently overlooked by both parties. The Applicant, during cross-examination, sought to create a false impression of innocence and naïveté regarding his prior offending, specifically the 2016 convictions. The judge found that allowing the prosecution to cross-examine on the 2016 offences and to introduce the 2019 conviction was necessary to correct this false impression and to provide the jury with a balanced and accurate picture. The court emphasized the importance of exercising discretion with caution to avoid rewarding procedural negligence, but found that in this case, the interests of justice justified the admission. The strong evidence against the Applicant and minimal prejudice from the late evidence supported the judge’s decision. Consequently, the court concluded that the conviction was not unsafe.

Holding and Implications

The court refused the Applicant’s application for leave to appeal against conviction and for a representation order.

The decision confirms that trial judges have discretion to admit fresh bad character evidence after the close of the prosecution case to correct false impressions created by the defendant, even if the prosecution had prior knowledge of such evidence but failed to present it earlier. This discretion must be exercised cautiously and on a case-by-case basis to balance fairness and the interests of justice. The ruling does not establish a precedent encouraging late admission of evidence but clarifies the boundaries of judicial discretion in such situations. The direct effect is the upholding of the Applicant’s conviction and sentence, with no new legal precedent altering existing practice rules.