202401911 B3 - [2025] EWCA Crim 1317

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.”