202401911 B3 - [2025] EWCA Crim 1317

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.