Co-defendant Bad Character Evidence under s.101(1)(e) CJA 2003: When School CRIS Reports and Social Media Messages Supply “Substantial Probative Value” and the Required Jury Directions if Allegations Are Not Proved — R v Al‑Shumari [2025] EWCA Crim 1317

Introduction

This appeal from the Crown Court at Minshull Street, Manchester, concerns a multi-defendant joint enterprise prosecution arising from a fatal stabbing at the Piccadilly Basin canal on 16 August 2023. The appellant, a youth aged 17 at trial, was convicted of the murder of Ahmed Alsrhan (C1) and of wounding with intent under section 18 of the Offences Against the Person Act 1861 in relation to C2. He received detention at His Majesty’s pleasure with a minimum term of 13 years and 239 days. Co-defendants received a variety of verdicts and sentences, including a life sentence for D1 (murder and s.18) and convictions for wounding for D2 and D3.

The sole ground of appeal challenged the trial judge’s decision to admit, at the instance of co-defendant D2, bad character evidence against the appellant under section 101(1)(e) of the Criminal Justice Act 2003 (“CJA 2003”)—the “co-defendant gateway”. The material comprised:

• An October 2020 school incident in which the appellant was found with an eight-inch breadknife and said he carried it for self-protection;
• A November 2020 incident in which the appellant was said to have told a teacher he would stab another pupil in the face;
• A 15 November 2023 Instagram exchange, three months after the killing, in which the appellant replied, “We go tomorrow and buy one” to a request for a knife.

The key issue on appeal was whether admitting these items under s.101(1)(e) was wrong because they lacked “substantial probative value” to the important issue between co-defendants—namely, who possessed the chrome flick-knife and stabbed C1—and whether their use created an unsafe conviction. Ancillary issues included the timeliness of the application under CrimPR r.21.4 and the propriety of cross-examination on allegations not independently proved at trial.

Summary of the Judgment

The Court of Appeal (Criminal Division) dismissed the appeal. It upheld the trial judge’s carefully reasoned ruling that, taken together, the three items had substantial probative value on an important issue between co-defendants for the purposes of s.101(1)(e). The Court distinguished R v Braithwaite because the school incidents here were anchored to identifiable teachers and contemporaneous records rather than bare police intelligence or unparticularised suspicion; the Instagram messages were provable from downloaded material.

The Court reaffirmed that under s.109(1) CJA 2003 bad character material is assessed for admissibility on the assumption it is true, but it added practical guidance: if an allegation is not admitted or otherwise proved at trial, a clear direction should be given that the jury must ignore it. While such a direction would have been preferable on the November 2020 threat (which the appellant said he could not remember and which was not proved), the absence of a specific direction did not render the conviction unsafe given the clear limiting directions that the prosecution could not rely on any of the bad character material against the appellant, and that it could only be used in support of co-defendants’ cases.

The Court also confirmed that a late application under r.21.4(4) is not, without more, a reason to exclude otherwise admissible evidence; fairness may be preserved by allowing the defence to take instructions and to reopen examination-in-chief. The judge’s “two-door” direction—permitting co-defendants to rely on the bad character while prohibiting the prosecution from doing so and preserving the appellant’s good character direction—was held to be clear and workable, not impermissible “mental gymnastics”.

Analysis

Precedents Cited and How They Shaped the Decision

• R v Braithwaite [2010] EWCA Crim 1082; [2010] 2 Cr App R 18:
  The Court distinguished Braithwaite, where CRIS reports contained only unparticularised allegations and police suspicion, insufficient to trigger s.109(1)’s assumption of truth. Here, the October 2020 knife incident was documented by a named teacher who confiscated the knife and recorded the appellant’s own explanation; the November 2020 threat was said to have been made to an identified teacher and recorded; and the Instagram messages were provable from phone downloads. Those features elevated the material from mere suspicion to admissible evidence capable of satisfying s.101(1)(e).
• 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:
  These cases set a high appellate threshold for interfering with a trial judge’s discretion on bad character. The Court reiterated that it will not disturb admissibility decisions save where plainly wrong or Wednesbury unreasonable.
• R v Hanson [2005] EWCA Crim 824; [2005] 1 WLR 3169; R v Renda [2005] EWCA Crim 2826; [2006] 1 Cr App R 24; R v Lawson [2006] EWCA Crim 2572; [2007] 1 WLR 1191:
  These decisions emphasize the fact-sensitive nature of propensity and the centrality of the trial judge’s “feel” for the case in assessing probative value.
• R v Jones [2007] EWCA Crim 2741:
  Confirmed that an “important matter in issue” between co-defendants may be raised by counsel’s case in cross-examination, not only by a defendant’s oral evidence. This supported the finding that the identity of the knifeman was squarely joined between D2 and the appellant.
• Section 109 CJA 2003 and R v Dizaei [2013] EWCA Crim 88; [2013] 1 WLR 2257:
  Admissibility must be assessed on the assumption of truth (s.109(1)), but that assumption is not dispositive; the statutory tests must still be applied. The Court used this framework to treat the school incidents and Instagram messages as “true” for the admissibility decision, while recognising the need for trial management if an allegation is later not proved.
• R v Mitchell [2010] EWCA Crim 783:
  Reinforces that s.109(1) requires assuming truth for admissibility assessments, even where reliability is in question, unless s.109(2) is engaged.
• R v Miller [2010] EWCA Crim 1153; [2010] 2 Cr App R 19:
  Warns against cross-examination based on allegations the questioner cannot or will not prove, though recognises this is not absolute. If an allegation is denied and unproved, juries must be directed that questions are not evidence. The Court applied Miller, observing that a specific “ignore it” direction would have been preferable for the November 2020 threat, but the overall directions were sufficient.
• R v Robinson [2005] EWCA Crim 3233; [2006] 1 Cr App R 32:
  Addresses the risk of confusing directions. The Court endorsed the judge’s “two-door” instruction here, consistent with Robinson, that the bad character could be used in co-defendants’ cases but not by the prosecution against the appellant.

Legal Reasoning

1. Important matter in issue between co-defendants (s.101(1)(e)):
   The identity of the knifeman who carried a chrome flick-knife and fatally stabbed C1 was a central, “important matter in issue” between D2 and the appellant. Both the evidential positions adopted and the lines of cross-examination (per Jones) made this a live inter-defendant issue.
2. Substantial probative value:
   The judge’s assessment, upheld on appeal, was that the three items—(i) admitted carrying of a breadknife to school, (ii) a reported threat to stab another pupil made to a teacher, and (iii) a later Instagram offer to accompany someone to buy a knife—taken together were capable of evidencing a propensity to carry or be prepared to procure knives, and thus had substantial probative value on the contested issue of who brought and used the flick-knife.
   Importantly, the Court noted that if only the October 2020 breadknife incident and the Instagram exchange had been in play, the s.101(1)(e) threshold might not have been met. The combination mattered.
3. Distinguishing Braithwaite and applying s.109(1):
   Unlike the bare, unattributed suspicions in Braithwaite, the school incidents here were anchored to identified teachers and outcomes, and the Instagram evidence was technically provable. That evidential footing allowed the court to apply s.109(1)’s assumption of truth for admissibility.
4. Cross-examination fairness (Miller):
   The Court did not fault the judge for allowing limited cross-examination on the CRIS-based incidents. The appellant admitted the October 2020 knife-carrying; he did not deny (but said he could not remember) the November 2020 threat. Consistent with Miller, the Court said a contemporaneous direction to ignore the November 2020 allegation would have been preferable once it was neither admitted nor proved. Still, the omission did not render the trial unfair given the overall directions.
5. Case management and CrimPR r.21.4(4) timeliness:
   The application was late. But lateness alone did not warrant exclusion of otherwise probative evidence. The judge addressed potential unfairness by permitting instructions and the reopening of examination-in-chief; defence declined. No procedural unfairness ground was ultimately pursued on appeal.
6. Directions and use-limitation:
   The jury were directed that: (a) the prosecution could not rely on the bad character against the appellant; (b) the material could be used only in assessing any co-defendant’s case that the appellant, not they, carried/used a knife; and (c) the appellant’s good character direction remained unaffected in the prosecution’s case against him. The Court found this clear and adequate. There was no reason to suppose the jury failed to follow it.
7. Safety of the conviction:
   Considering the evidence as a whole, the Court held the convictions were safe. The limited use to which the bad character evidence could be put, and the jury’s proper directions, cured any potential prejudice.

Impact: What This Decision Clarifies for Future Cases

• Evidential quality matters for s.101(1)(e):
  School CRIS reports can qualify if they record events witnessed by identifiable staff, confiscated items, and the defendant’s own explanations. Social media content that can be forensically attributed (e.g., downloads) is, likewise, capable of carrying substantial probative value. Braithwaite does not bar CRIS-based evidence per se; it bars reliance on bare suspicion or unparticularised complaints.
• The composite approach to probative value:
  Multiple items may cumulatively satisfy “substantial probative value” when one or two alone might not. Practitioners should assess the combined force of knife-related conduct and communications when arguing s.101(1)(e).
• Assumption of truth at admissibility; ignore if unproved at trial:
  The s.109(1) assumption assists the judge at the gateway stage. At trial, if an allegation is not admitted or otherwise proved, a Miller-compliant instruction should tell the jury to disregard it. Counsel should be ready to request such a direction as soon as it becomes clear that proof will not be forthcoming.
• Limited cross-examination on unproved allegations is not absolutely barred:
  It may be permitted if tightly confined, but fairness requires robust judicial management and directions that questions are not evidence if a denial/lack of proof persists.
• “Two-door” directions are workable:
  A judge may permit co-defendants to rely on the bad character while forbidding the prosecution from using it against the accused, preserving a good character direction for the prosecution’s case. Properly framed, this does not constitute confusing “mental gymnastics”.
• Late applications under CrimPR 21.4(4):
  Lateness does not mandate exclusion. Judges may cure unfairness by allowing additional instructions-time or reopening of examination-in-chief. Parties should nonetheless make s.101(1)(e) applications “as soon as reasonably practicable”.
• Practice point—invite revisiting admissibility if a “plank” falls away:
  Where a key item in a cumulative s.101(1)(e) ruling is not admitted or proved at trial, counsel should consider inviting the judge to re-evaluate admissibility or direct the jury to ignore the now-unproved allegation. The Court’s observation that the two remaining items alone might not have justified admission is an important strategic signal.
• Youth/school conduct and knife crime:
  The judgment signals that juvenile, school-context knife incidents can, with sufficient evidential underlay, bear on adult trials where knife possession/use is in issue between co-defendants—though courts will remain alert to fairness and the remoteness of such conduct.

Complex Concepts Simplified

• Bad character evidence:
  Under the CJA 2003, “bad character” broadly covers evidence of misconduct other than the alleged offences. Section 101 lists gateways by which such evidence may be admitted. Gateway (e) allows admission where it has substantial probative value to an important matter in issue between co-defendants.
• “Substantial probative value”:
  More than minimal or marginal helpfulness; the evidence must materially assist the jury in resolving a significant issue, such as identification of a knifeman in a joint enterprise case.
• CRIS reports:
  Police crime recording entries. They vary in evidential quality. Reports anchored to identifiable witnesses, seized items, and admissions carry more weight than bare suspicions or anonymous allegations.
• Section 109(1) assumption of truth:
  When deciding if bad character evidence is admissible, the judge assumes the evidence is true. This does not mean the jury must accept it; if the allegation is later not proved or is denied, the jury may have to be told to ignore it.
• Miller principle on cross-examination:
  Counsel generally should not put allegations they cannot prove, but this is not absolute. Limited cross-examination may be allowed with the safeguard that, if unproved/denied, questions are not evidence and must be disregarded.
• “Two-door” direction:
  A limiting instruction that allows one party (e.g., a co-defendant) to rely on certain evidence while forbidding another (e.g., the prosecution) from using it against the accused, to prevent unfair prejudice.
• Wednesbury unreasonableness:
  A high threshold for appellate intervention: a decision so unreasonable that no reasonable judge, properly directing themselves, could have reached it.
• Detention at His Majesty’s pleasure:
  The indeterminate sentence for murder committed by a person under 18; the court sets a minimum term after which release is a matter for the Parole Board.

Conclusion

R v Al‑Shumari provides a practical and principled clarification of the s.101(1)(e) “co-defendant gateway” in the context of knife-crime allegations. It confirms that juvenile school incidents documented by identifiable staff and a defendant’s own statements, together with provable social media exchanges, can cumulatively satisfy the “substantial probative value” threshold where knife possession is an important matter in issue between co-defendants. It also sharpens the trial management tools: if an allegation is not admitted or proved, a timely instruction should tell the jury to ignore it; late applications can be accommodated by procedural safeguards; and “two-door” directions can fairly limit how such evidence is used.

The judgment balances probative force against fairness. It signals to practitioners that the quality and provenance of CRIS entries and digital communications will be scrutinised; that cumulative probative value can matter; and that strategic applications to revisit admissibility or seek “ignore it” directions are essential when evidential planks fall away. Above all, it reaffirms the wide, but reviewable, discretion of trial judges in calibrating the admission and use of co-defendant bad character evidence in serious multi-handed trials.

Key Takeaways

• CRIS reports tied to identifiable staff actions and a defendant’s own explanations, and provable social media messages, can meet s.101(1)(e)’s “substantial probative value” test when knife possession is the issue between co-defendants.
• The court assesses admissibility on the assumption of truth (s.109(1)), but if an allegation is not later proved, the jury should be directed to ignore it.
• Limited cross-examination on allegations a party will not prove is not categorically barred, but requires careful directions that questions are not evidence.
• “Two-door” directions—allowing co-defendants but not the prosecution to rely on the bad character—are legitimate and manageable.
• Late s.101(1)(e) applications are not automatically excluded; fairness can be preserved by allowing the defence to reopen evidence.
• Where cumulative items underpinned the s.101(1)(e) ruling, and one falls away at trial, counsel should consider asking the judge to revisit admissibility or to give an “ignore it” direction.