202401911 B3 - [2025] EWCA Crim 1317

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.