R v Nasir Al-Shumari

For bad character evidence between co-defendants, an important matter in issue may be raised by counsel’s case in cross-examination. The evidence must have substantial probative value, assessed under the statutory assumption that it is true, but that assumption does not determine admissibility. The assessment is fact-sensitive and concerns the force of the evidence on the issue in the context of the trial.

Evidence supported by identifiable sources, admissions or reliable digital material may satisfy the test. Bare allegations in crime reports may not. Cross-examination about unproved allegations is not absolutely barred, but it must be limited and accompanied by an appropriate direction. Clear directions restricting use of the evidence to a co-defendant’s case can preserve a conviction under the Criminal Justice Act 2003.

The appellant, aged 17 at the time of the offences, was convicted at the Crown Court at Manchester of murder and wounding with intent under s 18 of the Offences Against the Person Act 1861. A co-defendant applied under s 101(1)(e) of the Criminal Justice Act 2003 to adduce evidence that the appellant had previously carried a knife, threatened violence with a knife and offered to help obtain one.

The trial judge admitted three items as having substantial probative value on the issue whether the appellant or the co-defendant had carried the knife and stabbed the deceased. The appellant appealed against conviction, challenging the admissibility, cross-examination and jury directions. The central issue was whether the evidence and directions rendered the convictions unsafe.

Disposition

The appeal against conviction was dismissed. The Court of Appeal concluded that neither the admission of the bad character material, nor the cross-examination or jury directions, rendered the convictions unsafe.

1. It was common ground that an important matter in issue between co-defendants may be raised through one defendant’s case being put by counsel in cross-examination of another. The issue need not arise only from direct evidence, as confirmed by R v Jones [2007] EWCA Crim 2741.
2. The assessment of substantial probative value is a matter of judgment and is highly fact-sensitive. Where the trial judge has applied the correct legal principles, the appellate court should interfere only if the decision was plainly wrong or Wednesbury unreasonable. Under s 109(1) of the Criminal Justice Act 2003, the evidence is assumed to be true for the assessment, unless s 109(2) applies. That assumption supplies the context for the decision but does not replace the statutory admissibility tests. The approach was consistent with R v Dizaei [2013] EWCA Crim 88, R v Mitchell [2010] EWCA Crim 783 and R v Musone [2007] EWCA Crim 1237.
3. The circumstances differed materially from R v Braithwaite [2010] EWCA Crim 1082, where the material amounted only to uncorroborated allegations and suspicions. Here, the knife incident involved an identifiable teacher and the appellant’s acceptance that the knife had been taken into school. The threat was made to an identifiable teacher, and the Instagram exchange could be proved from downloaded phone material. Taken together, the three items were capable of showing a propensity to carry knives and had substantial probative value on the issue whether the appellant or the co-defendant carried the flick knife and stabbed the deceased. The judge’s conclusion was not Wednesbury unreasonable.
4. There was no absolute bar on cross-examination about allegations which the cross-examining party might not prove. Such questioning may be allowed where it is limited. If an allegation is denied and remains unproved, the jury must be directed that the questions are not evidence and cannot support the case, following R v Miller [2010] EWCA Crim 1153. In the present case the questioning was limited, the appellant accepted the essence of the first allegation, did not deny the second and had not asked the judge to require supporting evidence. The cross-examination was not unfair.
5. It would have been preferable to direct the jury immediately that there was no evidence supporting the November 2020 allegation, but the appellant did not seek a reconsideration of admissibility. This was an observation and did not affect the result.
6. The jury directions clearly stated that the prosecution did not rely on the material against the appellant, that it had to be ignored in deciding his case and that his good character remained relevant. The jury could use the material only in considering co-defendants’ cases where counsel had suggested that the appellant alone had carried or used a knife. The direction was appropriate and did not involve the complexity discussed in R v Robinson [2005] EWCA Crim 3233. The convictions were safe.

1. Court of Appeal (Criminal Division): The appeal against conviction was dismissed under [2025] EWCA Crim 1317.
2. Crown Court at Manchester: The appellant was convicted of murder and wounding with intent and sentenced to detention at His Majesty’s pleasure with a minimum term.