202401911 B3 - [2025] EWCA Crim 1317

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.