R v BTC

A conviction should not be quashed merely because another investigative step or cross-examination strategy was available. The prosecution’s duty to pursue reasonable lines of inquiry is proportionate and does not require exhaustive or speculative investigation. On an appeal alleging inadequate defence representation, the appellant must show demonstrable incompetence, rather than an alternative tactic or error of judgment, together with resulting errors or irregularities that made the trial unfair or unsafe. Questioning a child complainant about viewing pornography required leave under section 41 of the Youth Justice and Criminal Evidence Act 1999. Where the material is vague and lacks a solid connection with the allegations, the inquiry is speculative. The conviction was upheld because no breach was shown and there was no real possibility of a different verdict.

Following a trial at Southwark Crown Court on 17 November 2022, the appellant was convicted of sexual activity with a child family member, contrary to section 25(1) of the Sexual Offences Act 2003. He had not been sentenced because he absconded. The Court of Appeal granted an extension of time and leave to appeal on 2 April 2025.

The appeal alleged failures by the prosecution to investigate and disclose material concerning the complainant’s viewing of pornography and a letter relating to the complainant’s mother. It also alleged inadequate section 28 cross-examination and inadequate exploration of the relationship between the appellant and the complainant’s mother. The central issues were whether the prosecution breached its investigative duty and whether defence counsel’s forensic decisions amounted to incompetence rendering the conviction unsafe.

Appeal dismissed.

1. For an alleged failure to obtain and disclose relevant material, the court adopted a two-stage approach. The first question was whether the material should have been obtained and disclosed. If a breach was established, the second question was whether, taking all the circumstances of the trial into account, there was a real possibility that the jury would have reached a different verdict. The court applied the approach identified in Kelly (Richard) [2015] EWCA Crim 500 to an alleged failure to obtain material rather than merely disclose material already held.

2. The investigative duty under the Criminal Procedure and Investigations Act 1996 was limited by proportionality. The prosecution was not required to examine every possible angle or pursue speculative inquiries. The steps taken concerning the iPad were reasonable and sufficient. The undisclosed questions were too vague to provide a solid basis for connecting the pornography to the allegations.

   Questioning the complainant about pornography would have required leave under section 41 of the Youth Justice and Criminal Evidence Act 1999. Viewing pornography was sexual behaviour for that purpose, but the high threshold in section 41(2)(b) was not met. The court distinguished R v LT [2024] NICA 64 as fact-specific and as laying down no new principle relevant to this case.

3. An appeal based on defence counsel’s forensic decisions required demonstrable incompetence. An alternative course or an error of judgment was insufficient. The appellant also had to identify errors or irregularities caused by the incompetence which rendered the process unfair or unsafe. The court applied R v Clinton [1993] 1 WLR 1181 and R v Day [2003] EWCA Crim 1060, and warned against second-guessing advocates with hindsight.

   The section 28 questions had been carefully prepared with intermediary input, and the tactical decisions were tenable. The proposed questioning about pornography, sexualised television scenes and later positive feelings towards the appellant carried substantial risks of prejudice or of opening an unfavourable inquiry. Counsel were also entitled to decide that further attacks on the complainant’s mother’s character might backfire and jeopardise an unqualified good character direction.

4. There was no breach of duty by the prosecution or the defence. The suggested lines of inquiry would not have created a real possibility of a different verdict. The appeal against conviction was therefore dismissed.

• Court of Appeal (Criminal Division)—on 24 June 2025, the appeal against conviction was dismissed: [2025] EWCA Crim 902. An extension of time and leave to appeal had been granted on 2 April 2025.
• Southwark Crown Court—following trial on 17 November 2022, the appellant was convicted of an offence contrary to section 25(1) of the Sexual Offences Act 2003. The appellant had not been sentenced.