Factual and Procedural Background
Following a trial in the Crown Court at Southwark on 17 November 2022, 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. The Appellant absconded prior to sentencing. On 2 April 2025, after hearing argument from Attorney Topolski KC, the Court granted renewed applications for an extension of time and leave to appeal against conviction.
The indictment alleged that between 1 January 2018 and 29 January 2019, the Appellant, aged 18 or over, intentionally touched the complainant ("C"), his son aged eight or nine, in a sexual manner. The Appellant and C's mother ("M") had separated years earlier, with contact arrangements allowing C to stay with the Appellant on certain days, during which they shared a bed.
On 25 January 2019, M asked C whether anyone had touched his private parts; C alleged the Appellant had done so when the Appellant's girlfriend was not present. C repeated these allegations to a safeguarding police officer and later gave an Achieving Best Evidence (ABE) interview describing the touching.
The prosecution relied on C's ABE interview, oral evidence from M and the police officer, and an iMessage from C to M referencing the Appellant's instruction not to sleep with pants on. The defence denied any sexual touching, with C cross-examined pre-trial and the Appellant represented by counsel who cross-examined witnesses and led defence evidence, including testimony from the Appellant's then girlfriend.
After a jury summing-up, the jury returned a unanimous guilty verdict after approximately four and a half hours.
Legal Issues Presented
- Whether the conviction is unsafe due to alleged failures by the prosecution and/or defence counsel to adequately explore matters affecting the reliability of the evidence against the Appellant, particularly concerning the complainant's exposure to pornography and other relevant background information.
- Whether the conduct of the trial was unfair due to insufficient exploration of the acrimonious relationship between the Appellant and M, which was argued to provide a motive for false allegations.
- Whether there were breaches of the prosecution's investigative and disclosure duties under the Criminal Procedure and Investigations Act 1996 and related codes.
- Whether defence counsel's tactical decisions amounted to incompetence sufficient to render the conviction unsafe.
Arguments of the Parties
Appellant's Arguments
- The conviction is unsafe because the prosecution and defence failed to sufficiently investigate or cross-examine on the complainant's viewing of pornography, which could have provided an alternative explanation for the allegations.
- The complainant was not questioned about whether the Appellant covered his eyes during sexual scenes on television, which could have undermined the prosecution's narrative.
- Positive statements by the complainant towards the Appellant, found in social services records, were not explored, which could have supported the defence.
- The prosecution failed to adequately investigate and disclose relevant materials, including the complainant's iPad and a letter allegedly sent by M to the UK Border Agency, which might have supported a defence of malicious falsehood.
- The acrimonious relationship between the Appellant and M was not sufficiently presented as a motive for false allegations, despite available material such as police reports, social services records, and an immigration tribunal decision.
- There were culpable failures by police and prosecution in their investigative duties, breaching the duty to pursue all reasonable lines of inquiry.
Respondent's Arguments
- The prosecution met its duty by pursuing reasonable lines of inquiry; the complainant’s second interview about pornography was disclosed as unused material and further investigation was not required.
- The prosecution denies any breach of investigative or disclosure duties regarding the iPad and the letter to the UK Border Agency, noting reasonable attempts were made to obtain relevant materials.
- Defence counsel’s tactical decisions, including the scope of cross-examination and presentation of the acrimonious relationship with M, were considered, reasonable, and approved by the Appellant.
- The prosecution contends that the conviction is safe and resists the contention that the Appellant’s conviction should be overturned.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Kelly (Richard) [2015] EWCA Crim 500 |
Two-stage approach to non-disclosure: whether material should have been disclosed and whether breach leads to real possibility of different verdict. |
Guided the court’s assessment of alleged prosecution investigative failures and their impact on safety of conviction. |
| R v Clinton [1993] 1 WLR 1181 |
Standard for appellate review of counsel's tactical decisions requiring demonstrable incompetence and resulting unfairness. |
Applied to evaluate defence counsel’s decisions on cross-examination and presentation of evidence. |
| R v Day [2003] EWCA Crim 1060 |
Requirement that incompetence must lead to identifiable errors rendering trial unfair or unsafe. |
Supported the court’s approach to reviewing counsel’s tactical choices. |
| R (on the application of Ebrahim) v Feltham Magistrates' Court [2001] 1 WLR 1293 |
Reasonableness and proportionality in prosecution investigative duties under CPIA. |
Used to confirm limits on prosecution’s duty to investigate speculative lines of inquiry. |
| R v Ben-Rejab [2011] EWCA Crim 1136 |
Definition of "sexual behaviour" for purposes of section 41(1) Youth Justice and Criminal Evidence Act 1999. |
Informed the court’s view on necessity of leave to question complainant about pornography viewing. |
| R v LT [2024] NICA 64 |
Exceptional nature of allowing defence to adduce evidence of complainant’s clandestine pornography viewing as potentially explaining allegations. |
Considered but distinguished on facts; not regarded as establishing new principle applicable to this case. |
Court's Reasoning and Analysis
The court applied settled principles regarding non-disclosure and counsel’s tactical decisions. It first considered whether the prosecution breached its duty to pursue all reasonable lines of inquiry under the Criminal Procedure and Investigations Act 1996 and associated Code of Practice. The court found the prosecution’s investigation into the complainant’s exposure to pornography was reasonable and proportionate, noting that the prosecution disclosed the relevant interview as unused material and that further inquiry was not required given the speculative nature of the line of questioning and lack of direct connection to the allegations.
Regarding defence counsel’s tactical decisions, the court emphasized the high threshold for appellate intervention, requiring demonstrable incompetence that led to unfairness or an unsafe trial. The court found that counsel’s decisions—such as not pursuing certain lines of questioning about pornography, not heavily attacking the complainant’s mother’s character with older material, and how to present the defence case—were reasonable, informed by professional judgment, and approved by the Appellant. The court recognized the risks that certain lines of inquiry could have prejudiced the defence or backfired before the jury.
The court also analyzed the material relating to the acrimonious relationship between the Appellant and M, concluding that the defence had considered and strategically decided how to present this issue, and that the prosecution’s investigative efforts regarding the letter to the UK Border Agency and other records were sufficient given the passage of time and absence of concrete evidence.
Ultimately, the court found no breach of duty by the prosecution or defence that would undermine the safety of the conviction. It concluded that the jury had properly considered the evidence, including the motives and relationships involved, and that there was no real possibility of a different verdict had the suggested lines of questioning been pursued.
Holding and Implications
The appeal against conviction is DISMISSED.
The court’s decision directly upholds the safety of the Appellant’s conviction, confirming that neither the prosecution’s investigative conduct nor the defence’s tactical decisions rendered the trial unfair or unsafe. No new legal precedent was established; the ruling reinforces established principles regarding prosecutorial duties and appellate review of counsel’s conduct. The immediate consequence is that the conviction stands, and the Appellant’s appeal is refused.