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	England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> BQX, R. v [2025] EWCA Crim 155 (15 January 2025) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2025/155.html Cite as: [2025] EWCA Crim 155

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IN THE COURT OF APPEAL
CRIMINAL DIVISION
ON APPEAL FROM THE CROWN COURT AT CHESTER
HIS HONOUR JUDGE LEEMING T20237004

		Royal Courts of Justice Strand London WC2A 2LL
		15 January 2025

MRS JUSTICE STACEY:

1. The provisions of the Sexual Offences (Amendment) Act 1992 apply to this offence. Under those provisions, where an allegation has been made that a sexual offence has been committed against a person, no matter relating to that person shall during that person's lifetime be included in any publication if it is likely to lead members of the public to identify that person as the victim of that offence. This prohibition applies unless waived or lifted in accordance with section 3 of the Act.
2. On 5 September 2023 in the Crown Court at Chester before His Honour Judge Leeming

the Applicant (then aged 57) was convicted of a total of 24 sexual offences: 19 counts of indecent assault on a male person, contrary to section 15(1) Sexual Offences Act 1956, three counts of rape, contrary to section 1(1) Sexual Offences Act 1956, and two counts of indecency with a child, contrary to section 1(1) Indecency with Children Act 1960.

3. On 10 November 2023 before the same court and constitution, the Applicant was sentenced to a total sentence of a standard determinate sentence of 12 years and a sentence for an offender of particular concern pursuant to section 278 Sentencing Act 2020, comprised of a custodial term of 11 years and a further 1-year licence period, consecutive.
4. He renews his application for leave to appeal against conviction and for a representation order following refusal by the single judge. The issue in the proposed appeal concerns the Judge's ruling to allow fresh bad character evidence after the close of its case during cross-examination of the Applicant.

The facts

5. The 24-count indictment concerned historic allegations of sexual abuse against five male complainants spanning a 9-year period from 24 October 1993 to 30 October 2002, when the Applicant was aged between 27 and 36. Of the five complainants, two were the Applicant's stepsons (C1 and C2). The Applicant had moved in with their mother when the oldest (C1) was 9 or 10, and the others were either friends of the stepsons or neighbours. All were aged between 10 and 15 at the time of the offences. The complainants were mature adults in their mid to late thirties and early forties when they reported matters to the police.
6. The Applicant was arrested and interviewed in 2018 in relation to C1, C2, C3 and C4 and denied all the allegations: he denied that he had ever sexually abused them as alleged or at all. He was later interviewed in relation to C5 in June 2021 and answered 'no comment' to all of the questions put to him. His defence at trial continued to be denial that any of the incidents had occurred.
7. The Prosecution case was that the Applicant was a predatory paedophile - a man with a life-long interest in underage boys, who groomed and sexually abused not only his own stepsons when they were young boys, but others of their friends and contemporaries who came within his orbit.
8. To prove the case, the Prosecution relied primarily on the evidence of the five complainants which was consistent with the counts the Applicant faced, together with reports of three of the complainants to others at various times of what had occurred to them, also the evidence of C1 and C2's mother, and C5's mother, and others around at the time. They also relied on a confession by the Applicant to C5 that the Applicant was having sex with C1 which resulted in a report to the police in 2003. The report to the police was not pursued or further investigated at the time.
9. The prosecution also relied on four separate pieces of bad character evidence which it had obtained leave to adduce well in advance of the trial.

First, a conviction in 2016 on guilty pleas of four counts of indecent assault on a male person at the Galway Circuit Court in the Republic of Ireland committed between 1 January 1985 and 31 January 1986 against the same individual, when the complainant was aged 7 and the Applicant was aged 19.

Secondly, the evidence of C1 that he had been anally raped by the Applicant during the indictment period whilst on holiday in Gran Canaria. The allegation did not appear on the face of the indictment since the alleged offending had been committed outside the jurisdiction.

Thirdly, the facts of activities with a boy aged 15 (a different boy), which led to a Risk of Sexual Harm Order being imposed on 9 November 2008. The Applicant had sent sexually explicit messages to the young boy and photographs of his penis; some of the messages were set out in the agreed facts before the jury.

Fourthly, the cross-admissibility of the complainants of each complaint in respect of the case involving the others.

10. There is no appeal from the Judge's ruling in relation to the admission of these four pieces of bad character evidence that were put before the jury.
11. After the close of the Prosecution case, in the course of his cross-examination the Applicant stated that the four offences committed in Galway between 1985 and 1987 occurred when he was a very immature 19-year-old. He told the jury that his curiosity had got the better of him in the shower with a young boy at his father's gym. He got "over excited as a young lad and it happened". At the time he said that he did not think he had done anything wrong and thought it was innocent. As an adult he realised that it had been wrong, hence he pleaded guilty after he was charged some 30 years later. He denied that he was a manipulative person who deceived people and denied having a sexual interest in young boys.
12. Overnight, after his evidence the Prosecution obtained the details of the four offences from the authorities in the Republic of Ireland who also informed the Prosecution that the Applicant had further convictions from the Galway Circuit Court after a trial in 2019 for 20 counts of indecent assault on dates between June 1984 and January 1986.
13. Starting with the four offences that the Applicant had pleaded guilty to in 2016, the offences were of masturbation, oral sex and sexual touching which occurred in the Applicant's shed as well as the father's gym over a period of about 12 months and the incidents were accompanied by grooming when the Applicant had brought the complainant sweets. They occurred on a very regular basis (three or more times per week) and the Applicant had told the complainant that if he told anyone he would cut both the complainant's and his mother's throat.
14. The Prosecution applied under section 101(1)(f) Criminal Justice Act 2003 for leave to cross-examine the Applicant on the basis that he had created or given a false impression during the course of his evidence of innocence and naïveté when it came to the commission of these offences. The Judge allowed the application and permitted the Prosecution to cross-examine the Applicant on the basis that the four counts were specimen counts and allowed him to put the allegation of the threat to cut the throat of both the Applicant and his mother. The Judge found he had given a false impression about himself and for it not to be corrected would leave the jury with an unbalanced and misleading picture about the Applicant's evidence. For the jury to know the true facts of the 2016 conviction would go no further than was necessary to correct the false impression and would not infringe section 78 Police and Criminal Evidence Act 1984.
15. The Crown also sought to adduce evidence about the 2019 conviction for the 20 sexual offences of which the Applicant had made no mention of in his evidence-in-chief. At the time of the application the Crown wrongly believed that they had not previously been aware of it. Counsel on behalf of the Applicant accepted that if it had been known of before the trial had started it could have been part of a prosecution bad character application. However it transpired that the police did know of the 2019 Galway Circuit conviction since it had been raised by the interviewing officer when she interviewed the Applicant under caution in June 2021 when she asked him, "You were unanimously found guilty on 20 counts of indecent assault on a male child under the age of 14. You received a 4-year sentence for similar offences which was backdated to November 2019" towards the end of a lengthy no comment interview. The Applicant gave no answer to the question. Both counsel at trial had neglected to notice the question in preparing for the trial and the Prosecution was only reminded of it when informed by the relevant authorities in Ireland overnight during the course of the Applicant's cross-examination when they sought details of the facts of the 2016 offences.
16. Not knowing of the Prosecution's prior knowledge, the Judge granted the Prosecution's application to admit the evidence of the 2019 conviction on grounds it was relevant, probative and admissible and the Prosecution was entitled to cross-examine on it and if the Prosecution had known of it sooner it would have been admissible as relevant to an important matter in issue between the Prosecution and the Defence, namely the Applicant had a propensity to commit child sex offences and tending to show a continuing interest in underage boys. The Judge found that the Applicant knew all about his conviction and had taken advantage of the Prosecution not knowing about it by seeking to portray his past behaviour as mere innocence on his part - a mixture of naïveté and curiosity – which was part of the false impression that he had sought to create.
17. The trial resumed and the Prosecution asked the Applicant about the 2019 conviction.
18. During the lunch adjournment, counsel for the Applicant spotted the question in the police interview that showed the prosecution had known of the 2019 conviction at least since June 2021. He asked the court to reconsider its decision to admit the evidence after the close of the Crown's case since it was now apparent that the Crown had known about the conviction ab initio. The Judge ruled that the new information about the timing of the Crown's knowledge did not and would not affect his earlier ruling. The evidence was relevant, probative and admissible. Both counsel had missed it, coming, as it did, at the end of a lengthy no comment interview.
19. Following his ruling a further agreed fact was put before the jury that the UK police were informed of the 2019 conviction in advance of the Applicant's second interview in June 2021 and the cross-examination continued. The purpose of the further agreed fact was to minimise the risk of the jury thinking that the Applicant had sought to hide his 2019 conviction in Galway from the police.

Analysis and conclusions

20. It is common ground that it is a rule of practice (not of law) that all of the evidence on which the Prosecution intended to rely as probative of guilt should be called before the close of their case if it is available then (Rice [1963] 1 QB 847). The evidence of the 2019 conviction was available before the close of the prosecution case, so the evidence about the facts of the four offences in 2016 would have been easily available if the Prosecution had thought to ask their Irish counterparts in advance of the trial. If it had been remembered or spotted sooner, the 2019 conviction would likely have been subject to a bad character application that may have been difficult for the Applicant to resist. But that did not happen because it had been missed, it appears, by everyone. But there is no doubt that the Applicant would have remembered the 2019 conviction and his 4-year custodial term of imprisonment for it.
21. There are however a number of exceptions to the rule and it is also common ground that the Judge had a discretion to permit the Prosecution to adduce further evidence after the close of its case. The question is whether the trial Judge was entitled in all the circumstances and on the specific facts of this case to exercise his discretion to allow the fact of the 2019 conviction to be before the jury.
22. There is no challenge to the Judge's ruling that section 101(1)(f) Criminal Justice Act 2003 was engaged and that the facts of the 2016 conviction could correct the false impression that the Applicant had sought to create in relation to those offences.
23. The Judge's ruling that the Prosecution could rely on the 2019 conviction, even though it had been known of ab initio, appears to have been significantly influenced by the ex improviso element in the Applicant's attempt to create a false impression about the 2016 conviction and more generally his denial of sexual interest in young boys and his denial of being manipulative and deceitful, which, the judge considered, entitled the admission of the rebuttal evidence in relation to the detail of the 2016 offences as well as the 2019 conviction. The Applicant had sought to take advantage of the prosecution oversight of the 2019 conviction to create a false impression, and, having done so, he had opened the door to an application under section 101(1)(f).
24. The discretion whether or not to admit evidence after the close of the prosecution case is one which must be exercised with care and caution, not least because nothing must be done to encourage the belief that sloppy police practice can be overcome by the late admission of evidence (Graham [2019] EWCA 2141 at [22]), but as noted in Graham, there are indeed exceptions and a more nuanced, fact and case sensitive approach based on the interests of justice may apply, without in any sense creating a precedent that late evidence is to be encouraged.
25. In this case there was strong evidence against the Applicant from the five complainants themselves, and also powerful evidence of propensity from the four separate pieces of bad character evidence that it is not disputed that the jury was entitled to hear. Any prejudice to the Applicant from the evidence of the 2019 conviction would be minimal; he was well aware of his 2019 conviction when he chose to minimise the propensity of his offending and attempted to create a false impression in his answers to questions about the 2016 conviction in cross-examination. This is one of the rare cases when the judge was entitled to exercise discretion to admit the evidence in the interest of justice and to rebut the false impression that the Applicant was seeking to convey to the jury.
26. It is therefore not reasonably arguable that the conviction was unsafe and the applications are refused.