R v Shay Shaw [2026] EWCA Crim 1061

WARNING: reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice.This Transcript is Crown Copyright.  It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority.  All rights are reserved.[2026] EWCA Crim 1061Venue Royal Courts of JusticeStrandLondonWC2A 2LLDate Friday 19 June 2026
Before
LORD JUSTICE COULSONMRS JUSTICE BRUNNERHER HONOUR JUDGE LUCKING KC(Sitting as a Judge of the CACD)
Between
REXCrownV
Between
SHAY SHAW__________Computer Aided Transcript of Epiq Europe Ltd,Lower Ground, 46 Chancery Lane, London WC2A 1JETel No: 020 7404 1400; Email: rcj@epiqglobal.co.uk (Official Shorthand Writers to the Court)_________MS A PIERCY & MR L LYNCH appeared for Applicant_________JUDGMENT
[1]This application for permission to appeal against conviction has been referred to the Full Court by the Registrar. It concerns section 35(1)(b) of the Criminal Justice and Public Order Act 1994.[2]That section and the following sections provide as follows:
"35 Effect of accused’s silence at trial. (1)At the trial of any person for an offence, subsections (2) and (3) below apply unless— (a)the accused’s guilt is not in issue; or (b)it appears to the court that the physical or mental condition of the accused makes it undesirable for him to give evidence; (2)Where this subsection applies, the court shall, at the conclusion of the evidence for the prosecution, satisfy itself (in the case of proceedings on indictment, in the presence of the jury) that the accused is aware that the stage has been reached at which evidence can be given for the defence and that he can, if he wishes, give evidence and that, if he chooses not to give evidence, or having been sworn, without good cause refuses to answer any question, it will be permissible for the court or jury to draw such inferences as appear proper from his failure to give evidence or his refusal, without good cause, to answer any question. (3)Where this subsection applies, the court or jury, in determining whether the accused is guilty of the offence charged, may draw such inferences as appear proper from the failure of the accused to give evidence or his refusal, without good cause, to answer any question."
[3]In the present case, the applicant did not give evidence at his trial. Together with his co-defendants, he was convicted at Snaresbrook Crown Court on 21 October 2025 of two counts of attempted murder. He was also convicted of one count of possession of a firearm with intent to endanger life. He was sentenced to 14½ years' detention. The judge throughout was HHJ Noel Casey ("the judge"). The sole ground of the appeal is that the judge erred in refusing the applicant's application that the adverse inference direction (which we have just outlined) should not have been given in his case because of his mental condition. The Applicant[4]The applicant was 15 years and 11 months at the date of the attempted murders. He was 16 when he was sentenced, and he is now 17.[5]He has a variety of mental health difficulties. These have been exacerbated by a moderate/severe traumatic brain injury suffered as a result of a bicycle accident in 2023. There are a number of reports before the court identifying those difficulties from Ms Tostevin, Dr Watts and the intermediary, Mr Johnson. We have read them all carefully, and accordingly the following is intended simply as a short summary.[6]The applicant exhibits significant fatigue and he can find a long day very tiring. That will also increase his anxiety. His comprehension and engagement requires considerable work from others. He may have ADHD. Intellectually, he falls into a very low percentile, particularly in relation to working memory and processing speed, as well as ability to recall. He shows above average suggestibility. There are, however, no signs of initiation or inhibit history control, and he did not present with any signs of acute mental illness. The Facts of the Offending[7]In the early hours of 26 October 2024, Joe and Billy Raymond were out walking their dog in Canning Town in East London. Two men got out of a stolen Audi and chased the brothers down the street, discharging in total seven gunshots at them. The two assailants then ran back to the stolen Audi, which made off at speed. Joe Raymond had been shot through the hand. Billy Raymond was shot in the back and was left partially paralysed.[8]The applicant and his co-defendants, Hill, Senga and Seidi, accepted that they were the four men in the stolen Audi. Of the four, only Seidi gave evidence to the jury. He said that nobody got out of the Audi and the group had happened upon a shooting carried out by others. By their verdict on the attempted murder counts, the jury rejected that version of events.[9]There was significant evidence against all four defendants, including the applicant. The police were able to work out that the four men had met 2.5 hours before the shooting when then had taken delivery of a false number plate and thereafter travelled in an Uber (booked by Seidi) to a block of flats where Hill's sister had property. They arrived there shortly after midnight.[10]Footage from the camera in the underground carpark showed the men arming themselves with weapons. Seidi had a large knife. Senga had a large sheath knife that he gave to the applicant. The applicant was also seen to put down his trousers the false number plate that the stolen Audi was subsequently to travel on. Other evidence suggested that Hill had access to a firearm.[11]At around 1am in the morning, the four men took a second Uber to pick up the stolen Audi. They drove to Canning Town. It appears that Hill was the driver and Seidi, Shaw and Senga were the passengers. Ring doorbell footage showed the Audi pulling up and waiting for the Raymond brothers as they walked towards the vehicle. Suddenly (off camera) it was the Crown's case that two men got out of the Audi. Footage from a petrol station taken shortly before the shooting showed Senga and the applicant in the front and rear passenger seat respectively. When the two men got out of the car and pursued the Raymond brothers they appeared on the pavement as if they had come from the passenger side of the Audi. Moreover, Hill was driving the Audi and Seidi claimed to the jury to have a leg injury, which meant he had difficulty running. So the strong inference was that it was Senga and the applicant who got out of the car, chased the Raymond brothers and shot them.[12]Once out of the car one of the two men shouted "Oi stab him, stab him" or "slap him, slap him" (which is slang for shoot). There were then two gunshots in close succession. After that there was a third shot, and then four more shots again in quick succession. In total therefore, seven shots were fired at the Raymond brothers.[13]Video footage showed the two figures in dark clothing running back in the direction of the waiting Audi. One shouted:
"Don't worry, I got him, I got him"
. Two car doors slammed in quick succession and the Audi could then be heard revving hard as it took off at speed. Subsequent records showed that Seidi and the applicant dropped their phones on 26 October. Moreover a balaclava was found close to the scene of the shooting with the applicant's DNA on it.[14]Following their arrest, incriminating calls were made by Hill, Senga and Seidi, in which, amongst other things, they discussed the dropping of the balaclava at the scene. There were express references to the applicant, both in connection with the balaclava and in relation to his involvement in the shooting.[15]In the light of that evidence, it is perhaps not surprising that the jury rejected Seidi's evidence that nobody got out of the Audi, and that the shooting was carried out by others. That is important because the applicant's Defence Statement, which was the extent of the defence he provided for the jury to consider, bore marked similarities to that rejected account. The applicant said he did not exit the vehicle and did not know of anyone else having a firearm. Indeed, he said he was unaware of a shooting taking place. He said that the four of them were planning to go to a party together. He did not accept that he had dropped the balaclava on the night of the shooting. The Trial[16]By reason of the applicant's mental conditions an application had been made at the outset for the applicant to have a full intermediary throughout the trial process. That application was granted. In addition, the judge was anxious to ensure that the applicant's mental difficulties were properly accommodated during the trial. That is properly acknowledged by Ms Piercy, who appeared on behalf of the applicant at trial and again at the hearing today. At paragraphs 11 and 12 of her grounds of appeal she says this:
"On behalf of the Applicant, it is acknowledged that the learned trial judge employed all available measures to assist this young defendant. These included the provision of regular breaks, the use of an intermediary, pre-trial court visits, and adequate time for conferences during the Crown’s case, all to ensure that the Applicant, and those representing and assisting him, were able to follow the proceedings. As will be apparent from the updated intermediary report, there were still significant issues in particular with memory and recall (head injury) and these very much worsened as the court day proceeded. 12. It is important to note that, at all material times, it was the view of all counsel, the trial judge, and the intermediary that SS sought to engage with the proceedings and cooperated to the best of his ability throughout the trial. The learned judge made comments to this effect on several occasions, particularly when contrasting SS’s conduct with that of certain co-accused who repeatedly refused to attend court or otherwise disrupted aspects of the trial."
[17]In addition to having an intermediary for the entire trial, the applicant had a court visit, supported by the intermediary, before it began. The judge granted the applicant time out, to permit conferences with counsel and the intermediary, before and after each court day. During the court day, frequent breaks were taken so as to allow the applicant time to regroup. This was particularly important given that fatigue and concentration span issues had been identified as major problems for him. It appears that, whenever a break was sought, it was granted. The Application and the Ruling[18]At the close of the prosecution case Ms Piercy made an application pursuant to section 35(1)(b), that by reason of the applicant's mental condition the usual warning as to adverse inferences should not be given in his case. A voir dire was conducted in which the applicant’s psychologist, Ms Tostevin, gave evidence. It is unnecessary to set out all the evidence from the transcript that Ms Tostevin gave on the issue as to whether or not the applicant should give evidence. But there was this important exchange:
"Yes. You also say that questioning of Mr Shaw, so a presumption that he is going to give evidence, or in the event that he gives evidence, should be kept focused and time-limited as possible. Now, again, do you accept that if the Court gives very regular breaks, that would certainly assist Mr Shaw if he chooses to give evidence? A. Regular breaks would definitely assist him. I think setting them in advance of his limitations, so to set the expectation that perhaps a break would be taken every 30 minutes – Q. Yes. A. – may requires some adaptation and some responsivity to his particular needs, especially as the day progresses, and his cognitive overload increases, and his ability to respond decreases. Obviously, an intermediary would be mindful of that, but it would need some flexibility, I think, rather than a plan. Q. Of course, of course, but if the Court were able to say, and it is one of Mr Johnson's observations that he, Mr Shaw, tends to get tired in the afternoon, so if the Court were to accommodate his evidence in the morning, in very short chunks, as it were, that would also assist Mr Shaw, would it not? A. It is my opinion that it would assist, whether there would still be detriment to him, you know, it may still be detrimental over time, but I do think it would assist, yes. Q. But you are not suggesting that him giving evidence would in any way be detrimental to his health, are you? A. Mental health, it may be, in the sense that if he – if it knocks his self-esteem, you know, he was a little flat at times, I know that he is very – I am trying to think of the right word now –he does not like his disability to be brought into the front of people's minds. Q. It is a – A. As a young man, I am sure, you know, young men with illnesses, serious illnesses and disabilities like to blend in amongst their peers and having your disabilities highlighted, I think, can be quite damaging to someone's mental health and their self-esteem. Q. Yes. A. And I think that could well be the case with him, and that may affect how responsive he is if he becomes irritable, moody, upset, and I think it could reduce his engagement. Q. But no effect on his physical health? A. In terms of him having, you know, a physical illness, no. Q. No. A. It would be more psychological."
[19]Following the making of that application and the consideration of the evidence at the voir dire, the judge gave a detailed oral ruling in which he refused the application that the standard direction should not be given. He set out some of the authorities, and stressed the fact that it would be a rare case in which section 35(1)(b) would be triggered. He summarised the applicant's conditions and the reports that he had read. He then took express account of a number of matters which we note below.[20]First, the judge said that the applicant had attended the trial for 3 weeks and that his general level of behaviour and attention had been “close to exemplary”. Secondly, he had had an opportunity to settle into the courtroom environment, so that concerns about his cognitive load and difficulties being elevated in an unfamiliar environment would have been allayed. Thirdly, the judge noted that the analysis of the applicant's mental condition revolved around the same body of concerns, going to fatigue, attention, frustration, memory and potential capacity for misunderstanding or error. The judge said that those were the concerns that the court had in mind when ordering that an intermediary could attend upon the defendant both pre-trial and throughout the trial. As a consequence, ground rules hearings had taken place. The judge said that a further hearing could serve to model the nature of the questioning that the applicant would face, the number and timing of breaks and so on. Fourthly, the judge said that the intermediary would be there to assist the applicant in giving his evidence.[21]Finally, the judge noted that the matters on which the applicant would be required to give evidence in this case would be limited, given the large measure of agreement between the parties. In this way, the questioning would not require questions on complicated technical matters and would not turn on a long and complex series of interconnected events. Instead the judge said the applicant's evidence would go to a fairly narrow segment of the evidence, to such matters as who was in possession of the knife, who was in possession of a firearm, who got out of the car, and what may have been said in advance of the incident in question. The judge said that the applicant would throughout be greatly assisted by the graphics presentational bundle that had been put before the jury.[22]For those reasons, the judge rejected the application. Notwithstanding that, the applicant chose not to give evidence and so the standard adverse inference direction was given by the judge to the jury at the end of the trial. The Law[23]The relevant principles are well known and do not require extensive elaboration.[24]It will be rare for a judge to have to consider whether it is undesirable for an accused to give evidence on account of his mental condition, as in the majority of cases where that may arise there will be evidence that the accused is unfit to plead (R v Friend [1997] 2 All ER 111). As all the authorities emphasise, the Court has a wide discretion as to whether or not section 35(1)(b) should apply (R Dixon [2013] EWCA Crim 465). Every case will turn on its own facts. Thus it is only if a judge took into account an irrelevant factor or failed to take into account a relevant factor, or this Court decided that the judge was wrong because no reasonable judge could have reached such a conclusion, that an appeal against a section 35(1)(b) ruling could even be arguable.[25]The focus of section 35(1)(b) is on the applicant's physical or mental well-being and the extent to which that physical and mental well-would be damaged, possibly irretrievably, by giving evidence (see R v Ensor [2009] EWCA Crim 2519). That explains why, for example, in the case of R v Hamberger [2017] EWCA Crim 273, section 35(1)(b) would have applied because there the elderly defendant had angina, so there was a risk that the very act of giving evidence was potentially life threatening.[26]Of course, the mere fact that a defendant has a physical or mental condition does not mean that section 35(1)(b) will somehow automatically have been made out (R v Tabbakh [2009] EWCA Crim 464 and R v Biddle [2019] EWCA Crim 86). As Hughes LJ (as he then was) put it in Tabbakh:
"The fact that he may have some difficulty in giving evidence is insufficient to justify the conclusion that it is undesirable that he should do so. Many, if not most, difficulties that a defendant or for that matter any other witness may have in giving evidence are things which have to be assessed by the judge of the tribunal of fact - in a Crown Court trial by the jury."
Discussion[27]For a variety of reasons, we have concluded that this application for permission to appeal is simply not arguable.[28]First, we consider that this was essentially a matter for the trial judge. He had a wide discretion and he produced a detailed ruling in which he gave thoughtful consideration to all the issues raised by the application. There is no suggestion that he took into account something irrelevant or failed to take into account something relevant. Moreover, any such suggestion would be unarguable, given the detailed nature of that ruling. Put simply, although we quite understand why the applicant does not like the result, the decision-making itself is not now open to attack.[29]Secondly, there is no basis in the evidence to suggest that the giving of evidence would have had a significant detrimental effect on the physical or mental health of the applicant. It was accepted that it would have no effect on his physical health at all. As to his mental health, we consider that the evidence of Ms Tostevin, which we have summarised above, gets nowhere close to demonstrating that it would be undesirable for the applicant to give evidence. Questions such as "knocks to self-esteem" cannot be used by a defendant to avoid giving evidence where there is a case to answer.[30]Looking at this point another way, we would say this. The experts' concerns were not about any undesirable effect on the applicant's mental health, which is essentially what section 35(1)(b) is all about; instead the concerns of the experts (Ms Tostevin in particular) were about the potential difficulties the applicant may have once he started to give evidence. For example, there was a concern that he might become unresponsive or moody, or that he may have difficulties in recall, and that these points might therefore make a negative impression on the jury. But as was pointed out in Tabbakh, those sorts of difficulties arise every day in the Crown Court and they can be managed by experienced judges and counsel, with appropriate directions to the jury at the end of the trial.[31]Thirdly, any evidence from the applicant would not have been complicated. The applicant accepted that he was there at the time of the shooting in the stolen Audi. The CCTV evidence showing four men getting ‘tooled up’ before the event and the subsequent evidence of the telephone calls (which, amongst other things, indicated Hill's grudge against the Raymond brothers and the involvement of the four in the incident) realistically puts paid to any suggestion that this was just a chance encounter. So the only real point would have been for the applicant to respond to the Crown's case that he was one of the two men who got out of the car and was involved in the actual shooting of the Raymond brothers. As the judge said, the real issues on which the applicant might have provided some assistance were extremely limited.[32]Finally, there is the overarching reality that the applicant's mental conditions (the tendency to fatigue, lack of concentration, the need to go slowly, the difficulties with recall) were all being dealt with by the measures that the Court had put in place from the outset, through the use of the intermediary, short days, regular breaks and so on. The judge had already taken sufficient steps to accommodate the applicant's mental condition. There is no reason why those same measures, perhaps even involving preapproved questions, could not have facilitated the applicant giving oral evidence.[33]Finally, there was a suggestion in Ms Piercy's helpful submissions that, since a number of the authorities (particularly Friend) and indeed the 1994 Act itself, are now of some antiquity, the question of adverse inferences against those with a mental condition should perhaps be reviewed. The underlying submission, we think, was that potentially a more liberal approach should be adopted to section 35(1)(b), given the developments in society's understanding of mental health issues and the difficulties that they can create. As Ms Piercy put it succinctly: the landscape has changed.[34]We agree with that but, in our view, the result is the opposite of that urged upon us: the changes mean that section 35(1)(b) should in future be invoked even more infrequently than it is now. That is because the undoubted developments in our understanding of mental health issues have led to the adoption of a wide range of measures specifically designed to facilitate the proper participation in the trial process – including the giving of evidence - of those with such conditions, which were not available a quarter of a century ago. Many of those measures were of course utilised here. Moreover, if there was a case where those measures were not available or could not be of any proper assistance, then it may very well be that, in such a case, as in Friend, the defendant would be unfit to plead. That is not this case.[35]So for all those reasons, we reject this application for permission to appeal. Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground Floor, 46 Chancery Lane, London, WC2A 1JE Tel No: 020 7404 1400 Email: Rcj@epiqglobal.co.uk