R v Nasir Al-Shumari

On 26^th April 2024, in the Crown Court at Minshull Street, Manchester before Mr Justice Pepperall, the appellant, who was born on 22 April 2007 and was then aged 17, was convicted under count 1 of the murder of Ahmed Alsrhan (to whom we shall refer as “C1”). He was acquitted under count 2 of the attempted murder of Sami Alhaj (to whom we shall refer as “C2”), but convicted under count 3 of the alternative offence of wounding with intent under s. 18 of the Offences Against the Person Act 1861. On 5^th June 2024 the judge sentenced the appellant to detention at His Majesty’s pleasure for a minimum term of 13 years and 239 days.

Mohammed Al-Enizi Hameed (“D1”) aged 36 was convicted of murder (count 1) and wounding with intent (count 3) and sentenced to life imprisonment with a minimum term of 24 years and 81 days. Hussein Muhalhal (“D2”) aged 20 was convicted of wounding with intent (count 3) and was sentenced to 5½ years detention in a young offender institution. The jury failed to reach a verdict on count 1 and the prosecution did not seek a retrial. Hamad Alawath (“D3”) aged 17 was convicted of wounding with intent (count 3) and was sentenced to 2½ years detention. Hussein Mouhelhel (“D4”) aged 21 and Fares Hassan (“D5”) aged 22 were acquitted of all three counts.

The appellant appeals againstconvictionwith the leave of the single judge.

Shortly after 6pm on 16^th August 2023, C1, his younger brother, Yousef Alsrhan and his friends, C2 and Abubaker Ashrif, bought takeaway coffees near Manchester Piccadilly train station and walked down to the canal at Piccadilly Basin. Within six minutes of arriving on the towpath, C1 and C2 had been stabbed. C2 survived but C1 had been stabbed to the heart. He suffered cardiac arrest. He was placed on life support, which was withdrawn on 9^th October 2023. He was aged 33 when he died.

The prosecution case was that the appellant and his co-accused were jointly responsible for attacking and stabbing both C1 and C2.

D1 initially got into a verbal confrontation with C1. This turned into a physical fight, during which D1 shouted in Arabic, something like “bring the knife and kill them”.

The appellant and the other four co-accused responded to the shout and ran down the towpath towards the lock gate where the other men were fighting. C2 tried to stop the men from getting involved but he was attacked and stabbed. He was unsure who had stabbed him but he described seeing “the fat guy” (said to be D2) and “the kid” (said to be the appellant) with knives. Everyone was fighting. C2 saw C1 being thrown into the water and decided that that was the only way to escape. He threw himself into the canal and swam across it. Youssef Alsrhan ran across the lock gate to get to the other side and join C1 and C2, while Mr Ashrif stayed on the other side watching in shock.

When C2 got out on the other side, he took his top off to see how badly he was injured. He then noticed that C1 had collapsed and tried to assist him. The appellant and D3 left the scene first, running back up the towpath. The other co-accused were still shouting from the other side of the canal. They accused Mr Ashrif of stealing D1’s mobile phone and frisked him. D2 threw an object across the canal towards the Alsrhan brothers and C2. As the police and paramedics arrived, the remaining co-accused left the scene together.

D4 was arrested nearby. D1, D2 and D5 were arrested on 23^rd August 2023 – D1 at his girlfriend’s home in Crewe and D2 on a flight about to leave for Iraq. D5 was contacted by phone and waited for the police to arrive at his location. The appellant and D3 were arrested at their homes three months later in November 2023.

To prove the case, the Prosecution relied on:

D1 did not give evidence.

In his examination in chief, D2 said he had gone to the canal on 16^th August with D5 to smoke cannabis and had intended to meet another friend later to play pool. He had a vape in his hand and D5 had a can of Red Bull. Neither of them were carrying a knife. While sitting by the canal, he heard a shout for help in both English and Arabic. He saw D1 being attacked and ran to stop the fight.

C2 stopped D2 at the lock gate and threatened to stab him if he got involved. C2 then punched or pushed D2, so he pushed him back. The appellant pushed past and jumped the lock gate. D2 then pulled Youssef Alsrhan off of D1. C1 was also fighting with D1. C2 was still trying to fight with him. D2 then saw C1 and C2 going across the water. On the other side, C2 shouted, threatening his family, which made him angry and he threw his vape across the canal towards C2. He did not see the appellant and D3 leave but he had seen the appellant fighting with C1. D2 denied that there had been any agreement for all the co-accused to meet at the canal.

D2 said that afterwards he went with D1 and D5 to Ardwick (to the south east of Manchester City Centre) because D3 had found D1’s phone. D3 was with the appellant. He heard D3 say that he D3 had stabbed C2. He had not seen anyone get stabbed, nor had he seen anyone with a knife during the incident.

In cross examination for the appellant, D2 denied making up that the appellant had been fighting with C1, but agreed that he had not mentioned him fighting with anyone in interview or in his defence statement. It was suggested to D2 that he was lying to cover up the fact that he had stabbed C2 and probably C1 as well; that he was picking on the easiest victims to blame, the two younger boys. He denied trying to flee the country because of what he had done. He was going to see a sick relative in Iraq.

In further cross-examination for the co-accused and the prosecution, D2 said that he was trained in self-defence as a security guard so he was trying to control the fight. He had not seen D1 with a knife. He had not seen D4 involved in the fighting. He denied saying that D3 had confessed to stabbing C2 simply because of what D3 had said in his interview. D2 said he had remained silent previously on advice but now it was the right time to tell the truth in evidence. He said that there was no reason for D1 to know that any of the co-accused would come to his rescue and it was just coincidence that they responded to his shout. He repeated that D3 had told him that he had stabbed C2. He did not know who had stabbed C1, but he had seen the appellant fighting with him. He had not seen the appellant with a knife. He had not told police anything because he did not want to be a part of it and he was panicking. He had not discussed what had happened with the others and he did not know why he sent a message to D5 after the incident saying “Don’t say you were there”.

D3 did not give evidence, but D4 and D5 did.

The appellant’s case was that he had not wanted to be involved, he tried to break up the fight, he did not have a knife and he did not stab anyone.

In evidence in chief, the appellant said he had been with D3 and two girls just prior to the incident. They had gone down to the canal to smoke cannabis and relax. D1 and D2 walked past them and said hello. About 20 minutes later, they heard a shout or scream so the appellant and D3 ran towards the noise to see what was happening. When they arrived at the lock area, there were people fighting. The appellant tried to pull C2 away from D2. He then heard a splash and saw C1 in the water. At that point, he and D3 ran away. It all happened very quickly and he did not want to be involved.

The appellant said that he did not see anyone with a knife, he did not have a knife and he did not stab anyone. After the incident, a friend of D3’s picked them up. D3 was receiving a lot of calls. They drove to a park in Ardwick, where D1, D2 and D5 arrived in two cars. D3 spoke to the others but the appellant did not. He waited in the car. He then left with D3 and his friend and remained at the friend’s house for the rest of the evening. The appellant was arrested in November 2023. He did not answer questions in interview because his solicitor advised him not to.

In cross-examination for D2, the appellant confirmed that he did not hear words shouted or screamed, just a noise. He was interested to see what was going on. He was very high, a little confused, with heightened emotions. The appellant did not remember C2 telling them not to get involved at the lock gate. He just saw fighting and he pulled C2 away from D2. He also saw D1 on the floor being attacked by two men. He denied producing a chrome flick knife. He said C2 was lying when he said that. He did not inflict injury with a knife on either C2 or C1. He denied being involved in the fighting. He ran away because he was scared, not because he had stabbed anyone.

The appellant could not remember the calls he made after the incident but he was not trying to arrange transport to get away because he had done something wrong. He swapped jumpers later in the evening with D3 because he was cold. He did not change his clothes because they were bloodied. He did not discuss the incident with the others in Ardwick. Neither he, nor D3 were boasting about stabbing anyone.

In further cross-examination for D3 and then for the prosecution, the appellant confirmed D3 was his best friend and they lived close to each other. He did not hear any shouting about knives or killing anyone. He had tried to help the adults who were fighting. The appellant first saw C1 on top of D1 and had pushed him off. He then went to split up C2 and D2. D3 told him as they were running away that he had seen knives but the appellant had not, himself, seen any knives. He did not ask D3 anything further about who had the knives. He did not think D3 had had a knife or stabbed anyone. The appellant was the youngest of those there but he was not “the kid with the chrome flick knife”.

D3 did not give evidence.

The issue for the jury was whether each of the co-accused had caused, or helped or encouraged another to cause, the death of C1 or serious injury to C2.

At the conclusion of the appellant’s examination in chief,D2 applied to adduce bad character evidence in relation to the appellant under s101(1)(e) Criminal Justice Act 2003 (“CJA 2003”) as having substantial probative value in relation to an important matter in issue between the defendant and a co-defendant. The evidence consisted of four allegations regarding the appellant’s behaviour in school in CRIS reports and an Instagram exchange with D3.

D2 argued that the appellant had mounted a direct attack on him in relation to an important matter in issue, namely who carried a knife and stabbed the deceased. The evidence had substantial probative value as it supported the contention that the appellant was willing to associate himself with, carry knives and supply them to others. The appellant opposed the application.

The judge ruled that two allegations in CRIS reports along with the redacted Instagram exchange were admissible under s101(1)(e) of the CJA 2003 as follows:

The single ground of appeal is that the judge erred in allowing the D2’s bad character application against the appellant under s.101(1)(e) of the CJA 2003; this had such an adverse effect on the trial as to render the convictions in respect of the appellant unsafe.

D2 gave evidence before the appellant. As we have already said, in cross-examination the appellant’s counsel challenged D2’s account of the appellant fighting with C2 as a lie, to cover up for the fact that it was instead he who had stabbed C2 or both C2 and C1. He was picking on the two youngest people as the easiest to blame, the appellant and D3 both aged 16. This questioning occurred on 13 March 2025.

On Tuesday 19 March 2025, following the completion of D2’s evidence, his counsel made a request for disclosure by the prosecution in the light of the conflict between the defences of D2 and the appellant. In particular, D2 sought any crime intelligence reports on the appellant and D3 in relation to offences of violence or possession of bladed articles or offensive weapons.

A disclosure note setting out a summary of four incidents involving the appellant was provided to all parties on 20 March 2024. The relevant crime reports were disclosed to all parties on the following day.

Following the provision of that disclosure, the appellant made a similar disclosure request in relation to D2 on 20 March 2024. One incident relating to D2 was disclosed in the morning of 22 March 2024.

The appellant did not begin giving evidence until about 3pm on Friday 22 March. His evidence in chief did not resume until the morning of Tuesday 26 March 2024. The appellant said that while he was present at the fight, he did not see anyone with a knife, he himself did not have a knife and he did not stab anyone.

During legal argument on Monday 25 March 2024 D2’s counsel said that his client intended to make a bad character application against the appellant based on the material disclosed, but reserved his position until the completion of the appellant’s evidence in chief. Consequently, when the following day that stage was reached and an application was made, the appellant’s counsel said that it had not come as a “massive surprise”.

Although the notice of application was dated 25 March 2024, it was not served until the morning of 26 March, upon the appellant completing his evidence in chief. The application contended that the matters disclosed fell within s.101(1)(e) as being of substantial probative value to important issues between D2 and the appellant, namely (a) who brought the knife to the scene and (b) the identity of C1’s attacker. D2’s case was that he saw the appellant fighting with C1.

Oral submissions on the application were made on 26 March. The judge said that he would allow the appellant as much time as was needed to consider the application.

The appellant’s counsel opposed the application submitting that there was no important matter in issue between the co-defendants and in any event the material was not of substantial probative value in relation to the issue raised by D2. He said that the matters alleged would not be the subject of any admissions. He referred the judge to R v Braithwaite [2010] EWCA Crim 1082; [2010] 2 Cr. App. R. 18 at [19]-[22] and raised the issue of whether the allegations could be proved as well as the risk of prejudice if matters were simply raised in cross-examination of the appellant but were denied.

Counsel asked the judge formally for permission to speak to the appellant about the subject matter of the bad character application, but said that if granted he would decide whether or not it would be appropriate to do so.

D2’s counsel submitted that the CRIS reports were clear as to what was said to have taken place and recorded that the matters were ultimately dealt with by a process within the school. There had been no court proceedings, and therefore no conviction, in relation to the matter in November 2020 because the police had left it to be dealt with by the school and youth offending team.

D2’s counsel told the judge that the material disclosed comprised about half a dozen documents running to about 50 pages and that what he described as the “only real disclosure documents” formed the sole basis for his application. The material had been disclosed to all defendants and they would have been aware that it had been sought by D2. Indeed, as we have noted the appellant sought the same type of disclosure in relation to D2 around the same time. D2 submitted that there had been an opportunity for the appellant’s counsel to take instructions from his client before his evidence began on 22 March. During that window it would have been possible for the appellant to have been advised on, and to decide, whether to give evidence in the light of that disclosure and the risk of a bad character application being made. The appellant’s counsel told the judge that he was not saying that if the application had been made earlier that would have affected the appellant’s decision on whether or not to give evidence.

Towards the end of the submissions on 26 March the appellant’s counsel said to the judge that, having considered the matter carefully, he was no longer seeking leave to speak to his client. In answer to the judge, counsel also said that if the bad character application were to be allowed, he would reserve his position on whether to apply to reopen the examination-in-chief until the conclusion of cross-examination.

On the morning of 27 March the judge ruled that the three matters he identified would be admissible under s.101(1)(e). The judge also stated that, in the light of that ruling, he would give leave for the appellant’s counsel to reopen the examination-in-chief. Counsel said that he did not seek to do so. D2 then cross-examined the appellant.

On 18 April 2024 the judge gave his written reasons for the ruling.

The judge gave a careful and detailed ruling.

He described the evidential background at paras. 4 to 11, including the time at which the appellant arrived at the canal lock where the stabbings took place and the time by which C1 must have been fatally stabbed. The pathologist had said that C1 had been killed by a blade 10cm long and that the jury was likely to be sure that one or more of the five defendants who were by the lock had a knife with a blade of at least 10cm. In his evidence at trial C2 said that he was sure that the person with the flick knife was the appellant to whom he referred as “the kid”, which was consistent with his formal identification of the appellant at the police station. However, that was not consistent with all of the previous accounts he had given to the police.

The judge said that D2 and the appellant had each sought to place the knife in the possession of the other. D2’s counsel clarified with C2 that the person with the knife was the kid who jumped the lock gate. D2 then said in evidence that it was the appellant who had jumped the lock gate and had been involved in fighting with C1. The appellant’s counsel challenged D2’s account in cross-examination as we have previously set out.

The judge summarised the bad character evidence sought to be adduced. At paras. 18 to 28 of his ruling the judge set out well-established legal principles relevant to his decision.

At paras. 29 to 32 the judge explained why he considered that the identity of the knifeman who carried the chrome flick knife and stabbed C1 was directly in issue between D2 and the appellant and of central importance in the trial. A matter can be put in issue between co-defendants not merely by the direct evidence given by one defendant against another but also by a case put by counsel, for example in cross-examination of witnesses. Here, there had been D2’s cross-examination of C2 which sought to incriminate the appellant and there was also the evidence of D2 referred to above. Subsequently, the appellant had sought to incriminate D2 in cross-examination (para. 31).

At paras. 33 to 44 the judge considered whether the “substantial probative value” test was satisfied. He concluded that it was, essentially for the reasons which appear at paras. 41 to 44:

“41.

I take, however, a different view in respect of three matters concerning knives. Evidence that Mr Al-Shumari took an eight-inch knife into school for the purpose of a planned meeting with another child with whom he was in dispute and that he threatened to stab another child about 3 years before the incident at the canal, and that he offered to help another child obtain a knife three months after that incident have, in my judgment, substantial probative value in respect of the important matter in issue between him and Mr Muhalhal.

42.

The evidence of the first incident in October 2020 is not just evidence of an allegation, but evidence that an identifiable member of school staff confiscated a knife that was brought into school and that, when asked, Mr Al-Shumari gave an explanation for carrying the knife. Likewise, the threat that Mr Al-Shumari would stab another child was uttered to an identifiable teacher on a school bus. Further, the Instagram message can be proved from the material downloaded from the mobile devices in this case. These allegations are not therefore dependent upon the disputed and uncorroborated statements of other pupils who were not willing to support a criminal prosecution.

43.

For all of these reasons, I conclude that evidence of Mr Al-Shumari’s conduct in carrying a knife, threatening violence with a knife, and offering to help another person to obtain a knife has substantial probative value upon a matter in issue between these two defendants which is of substantial importance in the context of the trial as a whole. Subject to one further point, such evidence is therefore admissible under s.101(1)(e). Care will have to be taken in order to avoid the risk of identifying Mr Alawath as the other party to the Instagram exchange, but the potential risk of his identification is not a proper ground for refusing permission to adduce evidence of substantial probative value to an important issue in the case.

44.

There is no merit in the prosecution’s observation that sanitising the Instagram messages to exclude Mr Alawath’s name would mislead the jury. The issue is whether Mr Al-Shumari offered to help someone obtain a knife, and not the identity of the person who initiated the enquiry.”

Rule 21.4(4) of the Criminal Procedure Rules 2020 required a defendant wishing to make an application under s.101(1)(e) to serve a notice on the court and other parties as soon as reasonably practicable and in any event not more than 10 days after the prosecutor discloses material on which the notice is based. At paras. 45 to 54 the judge considered the appellants’ objection to the admissibility of bad character evidence against the appellant because of a breach of this rule.

The judge decided that the application had not been made as soon as reasonably practicable. It ought to have been made by 25 March 2024 in relation to the CRIS reports. It was also late in relation to the Instagram messages which had been included in unused material. However, the judge did not consider that the timing of the application involved any ambush of the appellant or a deliberate attempt to manipulate the trial process. The judge noted that the appellant’s counsel did not say that the appellant would not have given evidence if the application under s.101(1)(e) had been made earlier. At para. 54 the judge said:

“In my judgment, the default in this case is not a proper ground for excluding evidence that is of substantial probative value upon an important matter in issue. Furthermore, the unfairness of the late application could properly be addressed by allowing Mr Shafi and Ms Akhtar limited permission to take instructions on these issues and by allowing them to reopen their evidence in chief should they prefer to lance the boil by leading this evidence rather than leaving it for cross-examination. In the event, Mr Shafi declined to take further instructions or to reopen his examination in chief.”

The matters which the judge ruled admissible were not the subject of any agreed admissions. The CRIS reports were not produced as documents to the jury but the Instagram messages were shown to the jury in an agreed form. Accordingly, the ground of appeal relates to the admissibility of the bad character material in so far as it became evidence through cross-examination, along with the messages.

The appellant was asked by D2’s leading counsel (Mr. Rhodes KC) about the incident in October 2020 when he took a breadknife into his school (transcript 27 March 2024 at 57E-F and p.58C-59B):

“Q. Is it your case that you would not carry a knife for offensive or defensive purposes?

A. “Is it your case” -- no. When I was little, I was a bit dumb.

Q. Sorry?

A. When I was younger, I was a bit dumb. I used to---

Q. You were a bit dumb when you were younger?

A. Yes.

MR RHODES: Well, let us just -- we will explore it. In October of 2020, did you take a breadknife into school?

A. Yes.

Q. And was the purpose of that so that you could defend yourself in a beef with a person at another school?

A. Yes. I was scared of someone.

Q. And had you made an arrangement to meet that person at the other school? A. Sorry, do you want me to explain?

Q. I am just asking you. Just answer the question “yes” or “no”. It may be better if you answer these questions yes” or “no”.

A. All right, sir. Go ahead.

Q. “Yes” or “no”. Did you make an arrangement to meet the other person from the school -- from the other school?

A. I think so. I don’t remember that much of---

Q. You do not remember. You think so.

A. ---my younger life.

Q. And was it your intention to use that knife either to attack him or to defend yourself from him?

A. To defend myself.

Q. To defend yourself?

A. Yes, sir.

Q. So that is why you were carrying a knife, a breadknife, an 8-inch breadknife?

A. Yes, sir.

Q. Yes. And that was taken from you in school from your knapsack because you were searched with a metal detector, were you not?

A. Yes, sir.”

So this part of the bad character evidence was left to the jury on the basis of those matters which the appellant accepted.

The appellant was then asked about an alleged threat to stab another boy (transcript 27 March 2024 at p.59F-60):

“Q. All right. Just bear in mind it is in your interests to listen to the question and to answer it either “yes” or “no”.

A. Go ahead, sir.

Q. There was another occasion in November of 2020, was there not, when you told a teacher you were going to stab another boy with whom you had a beef in the face?

A. I don’t remember, sir.

Q. You do not remember?

A. No.

Q. Do you not remember being dealt with by the police and the school?

A. With which? With what?

Q. You do not remember it. Is that what you are saying?

A. When I was -- say that again?

Q. You do not remember that incident where you said to a teacher you were going to stab somebody in the face?

A. No.

Q. Tony. Does that help you?

A. Tony?

Q. Tony is the person you were going to stab in the face.

A. I still don’t remember. I know who Tony is. But I still don’t remember.

Q. Oh, I see.

A. I don’t remember saying that.”

Given that the appellant did not accept any part of that allegation it did not form part of the judge’s direction to the jury on the bad character evidence they could take into account.

Then the appellant was asked about the Instagram messages on 15 November 2023 (transcript 27 March p.60C-61C):

“Q. Let us just have a look at one other matter. I am going to ask you about …. an Instagram conversation between you and another person who we will keep anonymous.

A. All right, sir.

Q. And “anonymous” means that we are not asking you to name the other person.

A. Okay, sir.

Q. But that other person on 15th November 2023 - so a week before you were arrested - sent you an Instagram message: “Yo, I need knife.” And then he sent you -- and this is at a quarter to 2.00 in the morning. And a minute later, he followed that message with a further message which started with an emoji of a knife, and it said “You have”, the clear suggestion being that you have a knife. And then a few minutes later - about eight minutes later - you responded: “We go tomorrow and buy one.” Now Mr Al-Shumari, you must surely remember that?

A. No, sir, I actually don’t.

Q. You do not?

A. No.

Q. Well, that is an Instagram message between you and that other person.

A. Yes, sir. I still---

Q. Think about it.

A. I still don’t remember.

Q. You do not remember it?

A. No. ‘Cos I’m a casual smoker. I smoke a lot.

Q. Do you want us to produce that message?

A. Say that again?

Q. Do you want us to produce that message?

A. What does that mean?

Q. Do you want to see it?

A. Yes, please.

Q. Well then, we can make arrangements for that to happen. But I am afraid it is going to take a moment or two.”

The cross-examination returned to this subject when the messages were shown on a screen timed at 1.41am on 15 November 2023 (transcript p.64H to p.66C):

“MR RHODES: … And this person is Instagramming you a message: “Yo, I need a knife.” And then just below that, you can see a few seconds later first of all the emoji of a knife, an emoji, one of those pictures of a knife. I am afraid we cannot reproduce it because we do not have it on our computers. But whoever it is had it on their computer and it showed up on these messages. A picture of a knife, and then “You have.”

A. Yes, sir. I do not remember.

Q. So reading it logically, it would be “knife you have”. And then the final message in this sequence on 15th November, again the same day, and a few minutes later - about eight minutes as I suggested to you earlier - your response. And that is why it is an incoming message. It is your response to that phone. Or at least somebody using your phone at 10 to 2.00 in the morning responds “We go tomorrow and buy one.” Well, that is messaging between you and another person, is it not?

A. Yes, sir. But I do not remember.

Q. What?

A. I do not remember. Yes, sir but I do not remember.

Q. Can you think of why somebody would be asking you to supply them with a knife?

A. No, sir. I don’t remember.

Q. Well, let me perhaps help you. At a quarter to 2.00 in the morning, the only reason someone would be asking you for a knife is because they expect you to be able to supply one.

A. No, sir.

Q. And we are not talking about kitchen knives here, are we?

A. I don’t know, sir.

Q. We are talking about a particular type of knife that someone might not be able to find in their kitchen.

A. I don’t know, sir.

Q. Well, let us think of a sort of knife that you might not find in your kitchen. What about a flick knife?

A. I don’t know, sir.

Q. Because unless you can think of a reason for having a flick knife in a kitchen, there is not an obvious need for one, is there?

A. Of course not, no.

Q. It could be a hunting knife perhaps. Maybe they were going hunting.

A. I don’t know, sir.

Q. Can you remember anyone asking you, or anyone that you would be involved in an Instagram conversation that is a hunter, for instance?

A. No, sir. I do not remember.

Q. Or a fisherman.

A. I do not remember, sir.

Q. At a quarter to 2.00 in the morning.

A.

I do not remember, sorry.”

The prosecution then cross-examined the appellant but without asking any questions on the matters covered by D2’s bad character application. There was no re-examination of the appellant.

The judge circulated drafts of his legal directions for counsel to consider and make submissions on.

In written submissions on behalf of the appellant dated 3 April 2024, the judge was asked to direct the jury that only D2 could rely upon the bad character evidence relating to the appellant; they could take that evidence into account when considering D2’s case that it was the appellant who had committed the offences and not D2. No other defendant had relied upon that material. The appellant also asked the judge to direct the jury to ignore the bad character evidence when considering the prosecution’s case against the appellant. The judge gave directions as sought by D2, save that, as we set out below, he extended the first direction to include any other defendant running the same case against the appellant. The appellant does not criticise that extension to include other defendants in this appeal.

The judge gave the following written bad character directions in relation to the appellant:

“As a result of cross-examination by Mr Rhodes KC, you have heard evidence that Mr Al-Shumari has, in the past, carried a knife and offered to assist another in obtaining a knife. Specifically, in October 2020 when he was 13, Mr Al-Shumari was found with an 8-inch breadknife in his school bag. He told you that he was carrying the knife to defend himself.

Secondly, he agreed that in an exchange of Instagram messages on 15 November 2023 (tab 18 in the red file) he had offered to go with someone the next day to buy a knife.

Mr Rhodes KC argues that these matters show that Mr Al-Shumari has a tendency to carry knives, and that it was Al-Shumari (and not Mr Muhalhal) who carried and used a knife at the canal on 16 August 2023.

How should you approach this question? Your approach to this will be different depending on whether you are considering the case against Mr Al-Shumari or the case against other defendants

Other defendants’ cases

When considering the case of the other defendants, if having regard to all the evidence you decide that Mr Al-Shumari has, or may have a tendency to carry knives, you may use this as support for any suggestion made by defence counsel in their speeches that Mr Al-Shumari committed these offences alone and that other defendants were not involved in the carrying or use of knives.

Mr Al-Shumari’s case

You must, however, adopt a different approach when considering the case against Mr Al-Shumari. The prosecution has not sought to rely on this evidence in its case against Mr Al-Shumari. Accordingly, you should not rely on this evidence when you are considering the proper verdicts in Mr Al-Shumari’s case, and you must not allow it to undermine in any way the significance that you consider should attach to Mr Al-Shumari’s good character in his case.”

The oral directions given to the jury were to the same effect.

We are grateful to Mr. David Bentley KC and Mr. Stephen Fidler (who appeared for the appellant in this court but not at trial) and to Ms. Sharon Beattie KC and Ms. Chloe Fairley (who appeared for the prosecution both on the appeal and at the trial) for their helpful submissions.

On the admissibility of the bad character evidence, Mr. Bentley said that no criticism is made of the judge’s conclusion that the cases for the appellant and D2 each involved accusing the other of being the person who carried the chrome flick knife and stabbed C1 and that this was an “important matter in issue” between the two parties for the purposes of s.101(1)(e) of the CJA 2003. The sole challenge to the judge’s decision under s.101(1)(e), is that he was wrong to treat each item of bad character evidence as having substantial probative value in relation to that issue.

It was submitted in the appellant’s skeleton that the application to adduce bad character evidence breached Crim.P.R. 2020 r.21.4(4). The judge had been wrong to conclude that it had not been reasonably practicable to have made the application before Monday 25 March 2024. The appellant submitted that it should have been made before he began his evidence in chief in the afternoon of Friday 22 March. The Instagram material had been included in the unused material and so in that respect the application was plainly out of time. Although counsel accepted that the appellant had not been ambushed, he submitted that there had been prejudice because the appellant had been denied the opportunity to deal with the bad character evidence in chief. Instead, the appellant’s team had been placed in the invidious position of having to consider re-opening that examination after the jury had heard that there would be no further questions from his counsel and after a break in the evidence for a legal matter to be addressed in their absence.

However, at the hearing before us Mr. Bentley stated that he would not pursue any challenge based on procedural unfairness or breach of the 2020 Rules. He said that the appellant was unable to satisfy the high hurdle for the court to intervene, as laid down in R v Musone [2007] EWCA Crim 1237; [2007] 1 WLR 2467 and R v Phillips [2011] EWCA Crim 2935; [2012] 1 Cr. App. R. 25. We consider that he was right to take that stance.

In relation to the “substantial probative value” issue the appellant made essentially three criticisms.

First, the judge should not have allowed cross-examination relating to the threat in November 2020 to stab another boy. In cross-examination the appellant said he could not remember having said this. No evidence was called to prove that the threat was made. Counsel’s questioning did not amount to evidence and, the jury having heard it, should have been directed to ignore it. But there was a real danger that the jury might wrongly have accorded the questioning some weight, even if a direction had been given. The situation was irretrievable. Furthermore, the direction in fact given, that the bad character evidence could only be used in support of a co-defendant’s case and had to be ignored when considering the case against the appellant, involved mental gymnastics which would have confused the jury (R v Robinson [2005] EWCA Crim 3233; [2006] 1 Cr. App. R. 32).

Ms Beattie pointed out that this criticism of the judge for not directing the jury specifically to ignore the November 2020 allegation was only raised for the first time in the skeleton argument dated 14 September 2025, shortly before the hearing of the appeal. Accordingly she invites caution because she believes that the point was discussed in oral submissions but no transcript has been obtained of that part of the trial. Ms Beattie says that this direction may have been omitted with the agreement of those representing the Appellant. She says that this would be consistent with the Appellant’s written submissions as to how the learned Judge should address the issue of Bad Character in his summing up. For our part it is also significant that this point has not been addressed in the McCook communications with trial counsel which have been shown to the court.

The second criticism is that although the appellant had accepted taking the breadknife into school in October 2020, the appellant should not have been put in the position of having to answer questions based upon an allegation in a CRIS report, applying Braithwaite at [22]. Furthermore, the facts accepted by the appellant in relation to the incident in October 2020 were insufficient to establish a propensity to carry knives and lacked probative value.

Third, although there was evidence of the exchange of messages on Instagram, the appellant had no recollection of the matter. The evidence before the jury merely suggested that the appellant was prepared to help someone to obtain a knife but not to carry one.

Mr. Bentley accepted that the judge, in his reasons for allowing D2’s bad character application, had correctly directed himself on the relevant principles by reference to Braithwaite, Phillips and other well-known authorities. There is no need for us to re-traverse all of that territory. It was common ground that s.101(1)(e) may apply where the important issue between two co-defendants is raised through one defendant’s case being put by his advocate in cross-examination of the other (R v Jones [2007] EWCA Crim 2741 at [23]).

Leaving aside cases where as a matter of logic bad character evidence has no probative value in relation to an issue, in other words it is irrelevant, the issue of whether that evidence has substantial probative value or “force” on that point is a matter of judgment. Where a judge has made no error as to the legal principles to be applied, this court will not interfere with his or her decision on the admissibility of that evidence unless the judgment made in the application of those principles was plainly wrong or Wednesbury unreasonable. The assessment made by a trial judge is highly fact-sensitive and his or her feel for the case is often crucial (see R v Hanson [2005] EWCA Crim 824; [2005] 1 WLR 3169; R v Renda [2005] EWCA Crim 2826; [2006] 1 Cr. App. R.24 at [3]; R v Lawson [2006] EWCA Crim 2572; [2007] 1 WLR 1191 at [39] and [44]; Braithwaite at [12]).

Section 109(1) of the CJA 2003 requires (subject to subsection (2)) an assessment of the relevance or probative value of bad character evidence to be made on the assumption that that evidence is true. It was not suggested that s.109(2) applied in this case. But the assumption in s.109(1) is not dispositive of the question of admissibility; instead it provides the context in which the decision on admissibility falls to be made (R v Dizaei [2013] EWCA Crim 88; [2013] 1 WLR 2257 at [36]). In other words, although the bad character evidence is assumed to be true, all the legal tests for admissibility under the gateway relied upon still have to be applied to that evidence.

In R v Mitchell [2010] EWCA Crim 783 this court upheld a decision to admit under s.101(1)(e) evidence referred to in a prison report of a co-defendant’s alleged misconduct and his allegedly false explanation which was similar to the one given for the index offence [12]. The court held that s.109(1) had required the judge to assume the truth of the bad character evidence sought to be relied upon. In this instance, that referred to both the giving of the explanation and to its falsity ([17]-[18]). That then provided the context for the application of the substantial probative value test. Similarly, in Musone the court held that although the trial judge had “grave doubts” about the reliability of an alleged confession by a co-defendant, the test for admissibility under s.101(1)(e) had to be applied on the assumption that the confession was true, given that s.109(2) did not apply ([44]-[45] and [60]).

By contrast in Braithwaite, where the trial judge had refused to admit bad character evidence relating to a prosecution witness under s.100(1) of the CJA 2003, this court held that s.109(1) was not engaged [17]. That was because of the wholly inadequate nature of the particular material contained in two CRIS reports [7]. One incident involved objects being thrown at a house from a passing car. The witness was in the area and was arrested. But no person identified him. The police merely suspected links between the witness and the car. The CPS advised that there was insufficient evidence to proceed. The other report referred to an attack by three men on a complainant who did not wish to pursue the matter. Someone gave the police first names for the three men and, relying upon “intelligence checks”, the police suspected the witness of being involved. As this court said, this material was “… no more than evidence that a complaint or allegation had been made. It was not evidence that the witness had done what was alleged.” “The CRIS reports did not even contain any accusation by anyone identifying [the witness] as responsible for the bad character conduct alleged” [20]. Therefore, it would have been inappropriate for the jury to be told, that “police officers suspected that the witness had committed the offence, or that they had investigated him for it, because neither of those is evidence at all that he committed it” [22]. That conclusion would also have applied if there had been an attempt to adduce the same material by way of admission or direct evidence from a witness. Section 109 does not come into operation or bite where the material in question does not amount to evidence that the witness did the act alleged [17].

Not surprisingly, this court held that the trial judge in Braithwaite had been entitled to rule that the material in the CRIS reports did not satisfy the substantial probative value test. Similarly, it would have been inappropriate for counsel for the prosecution to cross-examine the witness by putting allegations to him based on the CRIS reports, with counsel wanting “… additionally to be seen to derive what he said [in questioning] from police material, with a view to showing that it was likely to be true. That however would be to make the CRIS reports apparently evidence that the witness committed the offence when they were nothing of the kind” [22].

We refer back to the judge’s reasoning in the present case. Here, the circumstances were very different from Braithwaite. Instagram messages could be proved from material downloaded from mobile phones. The other allegations did not depend upon disputed statements of another pupil who had been unwilling to support a prosecution. The incident in October 2020 related to the confiscation by a named teacher of a bread knife brought into the school by the appellant. The CRIS report recorded the appellant’s acceptance that the knife had been seized from him and his explanation that he had it with him for self-protection. The matter was dealt with by the school and the youth offending team, rather than by the police. Likewise, in November 2020 the appellant was said to have made the threat to stab another boy to an identified teacher on a school bus. This was also dealt with by the school and a safeguarding team. As Ms Beattie pointed out, the appellant’s counsel did not suggest to the judge that the CRIS reports were inaccurate in so far as D2 sought to rely upon their content.All this formed part of the relevant context for the judge’s determination as to whether the material was admissible.

We conclude that, on the facts and in the circumstances of this case, the judge was entitled to reach the judgment that the three items of bad character evidence taken together did have substantial probative value in relation to the issue between the appellant and D2, namely which of the two men carried the chrome flick-knife and stabbed C1. The evidence was capable of showing a propensity on the appellant’s part to carry knives.That judgment was not Wednesbury unreasonable. In reaching this conclusion we have kept in mind the reasons set out in Phillips at [40] as to why the substantial probative value test is important.

The next issue is whether the judge erred in allowing D2 to cross-examine the appellant about the three items of bad character evidence without establishing whether D2 could and would call evidence to substantiate the allegations in the CRIS reports if the appellant were to deny them. Here again, the context we have summarised above is relevant.

In R v Miller [2010] EWCA Crim 1153; [2010] 2 Cr. App. R.19 the prosecution, relying upon s.100(1) of the CJA 2003, wished to attack the credibility of a defence witness by putting to him allegations that he had been involved in a conspiracy to supply drugs and had supplied a shotgun. However, the prosecution said that if the witness denied the allegations it did not intend to call evidence to prove them and would be bound by the answers he gave ([11]-[13]).

This court said that although the prosecution had sound material to prove the allegations, unless they were in a position to prove them and intended to do so, they should not have been allowed to embark upon the exercise because of the unfair prejudice it was capable of generating ([20] and [23]). But the court went on to say that this was not an absolute principle. There might be circumstances in which such cross-examination might take place, if it was limited in scope. However, in the event that an accusation is denied and otherwise unproved, the jury would have to be directed that the questions did not in any way support the prosecution case. They were only questions, not evidence ([21]).

In this case D2’s counsel made it plain that he was proposing either to draft admissions for the appellant to consider or to put the matters in cross-examination. The appellant’s counsel stated that there would be no agreed admissions, but he never suggested to the judge that the appellant denied the allegations. Nor did he ask the judge to rule that cross-examination should not take place unless D2 called evidence to support the material in the CRIS reports. He had a sufficient opportunity to consider the implications of taking that stance. We do not consider that, in the particular circumstances of this case, the judge is to be criticised for having allowed the cross-examination which did take place. This conclusion is, of course, fact sensitive.

The cross-examination on behalf of D2 was not unfair, either in terms of its content or its effect on the appellant’s trial. It was limited in duration and scope. The appellant admitted the essence of the allegation in relation to the first incident and repeated his explanation that he had taken the knife into his school in order to defend himself. The appellant did not deny the second allegation. He simply said that he did not remember the conversation with a teacher alleged to have taken place in November 2020. In those circumstances it was reasonable for D2’s counsel to have asked him one question about whether he remembered the involvement of the police and the school.

In view of the answers given by the appellant to the questions about the alleged incident in November 2020, it would have been preferable for the judge to have given a direction at that point in the trial that there was no evidence to support the allegation, it being raised only by questioning, and they should therefore ignore it. In addition, the effect of the evidence was that there were only two items of bad character evidence remaining, the October 2020 incident and the Instagram messages. If D2’s application under s.101(1)(e) had been based solely upon that material we doubt whether it would have been granted. However, the appellant did not ask the judge to revisit the issue of admissibility and to rule that those two remaining matters should be disregarded altogether by the jury.

The question is whether the jury’s verdicts on counts 1 and 3 are unsafe. We have reached the firm conclusion that they are not.

The judge’s legal direction to the jury was clear and sufficient. The jury was told unambiguously that the prosecution had not relied upon the bad character material in their case against the appellant and the jury should ignore it when considering that case. They were also told that the appellant’s good character remained unaffected. The jury was also directed separately that they could only consider that material when dealing with the cases of any defendant whose counsel had suggested that they were not involved in carrying or using knives and that the appellant had committed the offences.

The written submissions of counsel for the appellant did not seek a direction expressly referring to the incident in November 2020. That is unsurprising. The trial lasted about 10 weeks in all and the short cross-examination of the appellant on bad character had taken place about one month before the summing up. We also bear in mind the observations in [70] above. In any event, we are satisfied that the direction given to the jury was sufficient to indicate that they should not take the November 2020 allegation into account as part of the prosecution’s case against the appellant.

The issue raised by D2 was straightforward and the trial did not involve complexities or mental gymnastics of the kind discussed in Robinson ([2006] 1 Cr. App. R. 32 at p 488). Indeed, the effect of Robinson is that a direction of the kind given in the circumstances of the present case is appropriate (see [81]). There is no reason to think that the jury would not have followed such a direction (Miller at [24]). The direction properly told the jury to ignore the bad character evidence in the prosecution’s case against the appellant. Neither the cross-examination nor the legal directions render the appellant’s trial or convictions unsafe.

For these reasons the appeal must be dismissed.