Kurtaj v R [2025] EWCA Crim 1163: Authority and Funding for Appeals by the Unfit to Plead, and Fairness Limits on Using Prior Convictions as Propensity in s4A Trials

Introduction

This Court of Appeal (Criminal Division) decision addresses two significant areas of criminal procedure and evidence: (1) the fairness constraints on admitting prior convictions as bad character/propensity evidence in proceedings under section 4A of the Criminal Procedure (Insanity) Act 1964 (s4A proceedings) where the accused is unfit to plead and there is agreed evidence of a lifelong condition affecting fitness to plead; and (2) the authority and public funding framework for legal representatives appointed under s4A to bring and renew appeals on behalf of an accused who is unfit to act in person.

The case concerns a young defendant, diagnosed with autism and ADHD, alleged to have been a leading member of the Lapsus$ cybercrime group. Following a determination of unfitness to plead, a jury under s4A found that he had done the relevant acts and made the relevant omission across a suite of hacking, fraud, and blackmail counts. He received a hospital order with restrictions. Renewed grounds of appeal challenged four trial rulings: admission of prior convictions (propensity), admission of bail-condition evidence, restriction on cross-examination about a third-party suspect, and admission of a corporate threat intelligence report containing chatroom material.

Summary of the Judgment

Ground 1 (Bad character/propensity via March 2021 Youth Court convictions): The Court held the trial judge should have excluded the prior convictions on fairness grounds, given the conclusive agreed fact that autism was lifelong/immutable and the lack of contemporaneous assessment of fitness to plead in 2021. Nonetheless, the convictions’ admission did not render unsafe the jury’s s4A findings in light of very strong independent evidence. Leave to appeal granted on this ground; appeal dismissed.
Ground 2 (Bail-condition evidence): Properly admitted. It was relevant to whether the applicant did the relevant acts in September 2022 and to issues of intention/recklessness inherent in some counts even within s4A proceedings. Appeal dismissed.
Ground 3 (Cross-examination about a third-party suspect): Properly refused as inviting speculation; the suspect was linked to a different swapped SIM and the proposed line lacked probative value. Appeal dismissed.
Ground 4 (NVIDIA threat intelligence report with chatroom material): The judge erred in treating some material as non-hearsay, but it was nonetheless admissible under s117 (business records) and/or s114 (interests of justice) Criminal Justice Act 2003. Appeal dismissed.
Representation and funding for appeals where the accused is unfit to plead: The Court clarifies that representatives appointed under s4A in the Crown Court have authority to settle, lodge, and renew applications for leave to appeal to the full court without fresh appointment. Costs out of central funds are ordinarily available where leave is granted; when leave is refused, costs require a particular justification (following R v Grey). In this case, costs were ordered for the successful grant-of-leave ground only.

Factual Background and Procedural History

The applicant, aged 16–17 during the indictment period, faced 12 charges for alleged involvement with Lapsus$ in high-profile cyber intrusions (BT/EE, NVIDIA, Revolut, Uber, Rockstar Games), related fraud, blackmail, and failure to comply with a RIPA s49 notice. He had March 2021 Youth Court convictions for Computer Misuse Act offences concerning MCProHosting stemming from conduct in 2020. In June 2023, after expert psychiatric evidence (autism and ADHD), he was found unfit to plead and s4A proceedings were conducted alongside the jury trial of a co-accused (Jubair).

The s4A jury found he had done the relevant acts and made the relevant omission. A hospital order (s37 MHA 1983) with a restriction order (s41) followed. On appeal, four trial rulings were challenged, and the Court also took the opportunity to clarify representation and funding principles for appeals by individuals found unfit to plead.

Issues Before the Court

Whether the trial judge erred in admitting the March 2021 convictions as propensity evidence under the Criminal Justice Act 2003, given the fairness concerns around fitness to plead in those prior proceedings.
Whether evidence of breaching a bail condition (prohibition on possessing a smartphone) was relevant and admissible in s4A proceedings.
Whether the defence should have been permitted to cross-examine about a third-party suspect linked to a related SIM-swap event.
Whether the NVIDIA threat intelligence report, including screenshots of anonymous chatroom comments, was properly admitted, and if hearsay, whether it met the statutory gateways.
What authority s4A-appointed representatives have to commence and renew appeals and how their fees are funded when leave is refused or granted.

The Court’s Decision

The Court dismissed the appeal overall but granted leave on Ground 1, holding that the prior convictions ought to have been excluded for fairness yet did not render the jury’s findings unsafe given the strength of the prosecution case. The other grounds were unarguable and were rejected. The Court then issued important guidance on representation and funding for appeals where the accused is unfit to plead, confirming the authority of s4A appointees to renew applications to the full court and articulating a principled approach to costs out of central funds.

Detailed Analysis

1) Bad Character/Propensity and Fitness to Plead in Prior Proceedings (Ground 1)

Statutory framework: s101(1)(d) and s103(1)(a) CJA 2003 permit admission of bad character to demonstrate propensity; s101(3) empowers exclusion where admission would have such an adverse effect on the fairness of proceedings that it ought to be excluded. PACE s78 provides a parallel fairness discretion. The applicant opposed admission of his March 2021 convictions (Youth Court) on the basis that his lifelong autistic condition likely rendered him unfit to plead at that time, rendering the guilty pleas unreliable as indicators of propensity.

The Court accepted that the prior convictions were prima facie admissible as propensity evidence given their close temporal and thematic proximity to the indictment offences, and the similarity of modus operandi in a relatively unusual form of cyber offending (para 50). The difficulty lay in fairness. Two features were decisive:

The agreed facts, later before the jury, that autism is “lifelong and immutable” and that the applicant had “almost no understanding of his own needs” (para 16), treated as conclusive against the party admitting them by s10(1) CJA 1967 (paras 56–57).
The absence of any contemporaneous assessment of fitness to plead in March 2021 (para 58).

These features created an unfairness: the jury lacked a proper evidential basis to determine whether the earlier guilty pleas were reliable, yet the agreed facts compelled recognition that the condition affecting fitness in 2023 also existed in 2021. While the judge cautioned the jury about relying on the 2021 pleas (para 54), the Court held that fairness nonetheless required exclusion (para 58).

However, the Court concluded the wrongful admission did not render the s4A findings unsafe: the prosecution case independent of the bad character was “very strong” (paras 49, 59).

New principle crystallised: In s4A proceedings, where there is conclusive agreed evidence of a lifelong condition likely affecting fitness at the time of earlier pleas and no contemporaneous fitness assessment, admitting prior convictions as propensity evidence risks unfairness and should ordinarily be excluded under s101(3) CJA 2003 and/or PACE s78—even if their admission may not ultimately undermine the safety of the findings on the relevant acts.

2) Bail-Condition Evidence in s4A Proceedings (Ground 2)

The Court upheld the admission of the accused’s breach of a bail condition (possession of a smartphone) as relevant to:

Whether he did the relevant acts in September 2022, by showing a deliberate choice that enabled the alleged hacking (para 60); and
State-of-mind elements embedded in the definition of certain “relevant acts” (e.g., s2 CMA “with intent”, blackmail) and recklessness where applicable (para 60).

The Court emphasised that in s4A proceedings juries can be required to consider aspects of intention/recklessness where these are integral to determining that the accused did the act charged (para 60). Even if admission were arguendo wrong, any prejudice was negligible given other evidence of arrests and ongoing activity (para 61).

3) Alternative Suspect Evidence and Speculation (Ground 3)

The defence sought to cross-examine the officer in the case to suggest a named but anonymised “suspect” might have used one of the hijacked SIMs implicated in the BT/EE offence strand. The trial judge refused; the Court agreed. The suspect was linked to a different SIM (para 62), and in the context of widely dispersed cyber offending, mere co-location in the same county was not probative of shared activity. The proposed cross-examination invited speculation, lacked a proper nexus to the specific act alleged, and risked juror confusion (paras 27–28, 62).

Practical point: Alternative suspect lines must be grounded in non-speculative linkage to the precise act in issue; generic proximity or involvement in related wrongdoing will not suffice to open cross-examination.

4) Corporate Threat Intelligence Reports and Hearsay Gateways (Ground 4)

The NVIDIA report (DR/15) included internal analyses and chatroom screenshots. The judge initially treated this as non-hearsay via authorised corporate witnesses speaking to company records and investigative work; the Court held that, insofar as chatroom statements were adduced for their truth, they were hearsay (para 63). Nonetheless, adopting the R v Riat six-step structure (para 32), the Court affirmed admissibility under:

s117 CJA 2003 (business records): compiled by senior staff responding to immediate, business-critical cyber threats; not made in contemplation of criminal proceedings; multiple hearsay allowed; identity of makers not always required; sufficient material to assess reliability (para 32).
s114(1)(d) CJA 2003 (interests of justice): high probative value, central to understanding the attack and response; circumstances did not suggest unreliability; and witnesses could be cross-examined on the underlying material (para 33).

Practice consequence: In complex cybercrime, corporate threat intelligence (including curated third-party chat data) can be admissible under s117 and/or s114 if reliability safeguards and contextualising testimony are present. Prosecutors should still be precise: identify which passages are adduced for truth and justify the statutory gateway relied upon.

5) Representation and Funding on Appeal for the Unfit to Plead

The Court consolidates and clarifies the post-Antoine/Roberts position:

Authority to appeal: Counsel appointed under s4A to put the case for the defence in the Crown Court have authority to settle and give notice of appeal under s15 Criminal Appeal Act 1968 and, crucially, to renew an application for leave to the full court if leave is refused by the single judge—no fresh appointment is necessary (para 86; cf. R v Antoine; R v Roberts).
Accused cannot act in person: An accused found unfit to plead is likewise unfit to act in person to commence or conduct an appeal or to instruct new lawyers (para 70). Any purported pro se renewal should be referred to the single judge; if there may be arguable grounds, the court may appoint fresh counsel for the limited purpose (paras 79–80).
Funding: s4A proceedings and s15 appeals are not “criminal proceedings” for legal aid purposes (para 72). Payment is via central funds under s19(3)(d) Prosecution of Offences Act 1985 and the Costs in Criminal Cases (General) Regulations 1986, with amounts assessed by the Registrar/determining officer (paras 73–75). Where the full court grants leave to appeal, it will “usually” be appropriate to order costs out of central funds for the ground(s) on which leave is granted (para 87; CrimPR 45.4 governs the process).
Costs when leave is refused: Following R v Grey, awards of costs on renewed applications that fail are not the norm; a particular reason is required (para 88). The Court acknowledges the practical reality that renewal will often be pro bono unless good reason for a costs order exists (para 89).
Registrar’s role: The Registrar cannot appoint counsel to present the accused’s case (para 83). Errors to that effect in this case were immaterial but are noted and corrected in principle (paras 83–84).
Outcome here: Costs ordered out of central funds only for preparation and presentation of Ground 1 (on which leave was granted); not for Grounds 2–4 (para 90–91).

New procedural clarification: s4A-appointed representatives have continuing authority to manage appellate steps up to and including renewal to the full court; costs will usually follow only granted grounds, and refusals will attract costs orders only for particular reasons.

Precedents and Statutory Framework

Key Cases

R v Antoine [1999] 2 Cr App R 225: Counsel appointed to put the defence case under s4A has authority to settle and argue an appeal on the accused’s behalf (para 71).
R v Roberts [2019] EWCA Crim 1270: If representatives judge there is no arguable ground, there can be no valid appeal; an unfit accused cannot validly act in person, though the court may appoint fresh counsel if a single judge discerns possible arguable grounds (paras 70, 79–80).
R v Riat [2012] EWCA Crim 1509: Sets out a structured approach to hearsay admissibility under s117 CJA 2003, applied to corporate intelligence material (para 32).
R v Grey [2023] EWCA Crim 1285: Costs on renewed applications where leave is required are not awarded in the ordinary course; a specific reason is needed (paras 88–89).

Principal Statutes and Rules

Criminal Procedure (Insanity) Act 1964, s4A: Procedure where defendant is unfit to plead; jury determines whether the accused did the act or made the omission.
Criminal Justice Act 2003: Bad character (ss101, 103); hearsay gateways (ss114, 117).
Police and Criminal Evidence Act 1984, s78: General discretion to exclude evidence to ensure fairness.
Criminal Justice Act 1967, s10(1): Agreed facts are conclusive against the party making the admission (paras 56–57).
Prosecution of Offences Act 1985, s19(3)(d): Central funds for representatives appointed under s4A (paras 73–75).
Costs in Criminal Cases (General) Regulations 1986, regs 13A–13C, 5(2)–(3): Application of central funds and determination by the Registrar/determining officers.
Criminal Appeal Act 1968, ss15–16: Appeals from s4A findings.
Criminal Procedure Rules, r.25.10(3): Appointment of a person to put the case for the defence under s4A; r.45.4: applications for payment from central funds (paras 67, 87, 91).

Impact and Practical Guidance

On Bad Character in s4A Trials

Where an accused’s fitness to plead is at issue in the current proceedings and there is agreed evidence of a lifelong/immutable condition, prosecutors must exercise heightened caution before relying on earlier guilty pleas as propensity, particularly absent a contemporaneous fitness assessment.
Defence should foreground s10(1) CJA 1967: once agreed, facts are conclusive against the party. If those facts imply unfitness at the time of earlier pleas, the fairness discretion under s101(3)/s78 is strongly engaged.
Trial judges should carefully assess whether the jury has a proper evidential foundation to evaluate the reliability of earlier pleas. Jury cautions may be insufficient where the underlying forensic deficit cannot be cured.

On Corporate Cyber Evidence

Threat intelligence reports compiled in the ordinary course of a corporate security function responding to live incidents can qualify as s117 business records, even where they incorporate multiple hearsay and anonymous online content, provided reliability can be tested through a senior witness with responsibility for the response.
Prosecutors should explicitly identify which portions are adduced for their truth and signpost s117 and/or s114(1)(d) gateways, with reliability factors (non-litigation purpose, traceability, corroboration) and cross-examination access.

On Bail-Condition Evidence

Even in s4A proceedings, evidence of deliberate breach of bail conditions may be relevant to doing the relevant act and to embedded mental elements (intention/recklessness) that form part of the act definition.
Courts will weigh probative value against prejudice; where the jury already knows of prior arrests, incremental prejudice may be minimal.

On Alternative Suspects

Defence proposals to cross-examine about third-party suspects must demonstrate a concrete evidential linkage to the specific act in issue; mere geographical proximity or involvement in broadly similar activity is insufficient.

On Representation and Funding for Appeals by the Unfit

s4A-appointed representatives retain authority to take all necessary appellate steps, including renewal to the full court if the single judge refuses leave; no separate appointment is needed.
Where leave is granted on any ground, costs out of central funds will usually be ordered for that ground. Where renewal fails, costs require a particular reason; representatives must be prepared to act pro bono on renewal in many cases.
The Registrar cannot appoint counsel to present the accused’s case; the proper mechanism is through the s19 POA 1985 central funds route, with assessments per CrimPR 45.4.

Complex Concepts Simplified

s4A proceedings: When a defendant is unfit to plead, there is no trial of guilt. Instead, a jury decides whether the defendant “did the act or made the omission” charged. Some counts still require the jury to consider intention/recklessness as part of the definition of the “act.” No conviction results; disposal options include hospital orders.
Bad character/propensity: Evidence of previous wrongdoing can be admitted to show a tendency to commit similar offences. Even if admissible in principle, judges can exclude it if admitting it would be unfair.
Agreed facts (s10 CJA 1967): Facts formally agreed by the parties are conclusive against them; the jury must treat them as proved, and parties cannot contradict them with other evidence in that case.
Hearsay gateways (CJA 2003): s117 allows business records to be admitted, even if multiple hearsay, where reliability safeguards are satisfied. s114(1)(d) admits hearsay in the interests of justice considering probative value, reliability, and ability to test evidence.
Central funds: In certain non-legal-aid contexts (including s4A and related appeals), counsel can be paid from public funds. Payment is not automatic; the court applies statutory/regulatory criteria, and refusals of leave typically do not attract costs absent particular reasons.

Conclusion

Kurtaj v R refines the law on two fronts. First, it sets an important fairness boundary for the use of prior convictions as propensity in s4A proceedings: where agreed facts conclusively establish a lifelong condition likely bearing on fitness to plead at the time of earlier guilty pleas and there was no contemporaneous assessment, fairness may require exclusion—even if the remainder of the evidence is strong enough to render the findings safe. Second, it provides clear guidance on the authority of s4A-appointed representatives to bring and renew appeals and on the circumstances in which their costs will be met from central funds.

The case will influence how prosecutors marshal corporate threat intelligence in cybercrime trials, how defence teams litigate alternative suspect theories, and how courts approach bail-condition evidence in s4A contexts. It also offers practical certainty for practitioners about who may take appellate steps on behalf of an unfit accused and how those efforts will be remunerated. The net effect is a more coherent and fair procedural and evidential landscape for cases involving defendants unfit to plead, particularly in complex, technology-driven prosecutions.

Key Takeaways

In s4A proceedings, prior convictions used for propensity should be excluded if agreed facts show a lifelong condition likely affecting the reliability of earlier guilty pleas and no contemporaneous fitness assessment exists.
Corporate threat intelligence reports can be admitted under s117 and/or s114 CJA 2003 when reliability and testing via senior witnesses are available, even if they contain curated anonymous online material.
Evidence of breach of bail conditions is admissible where it bears on whether the accused did the relevant acts and on embedded mental elements within those acts.
Alternative suspect cross-examination requires concrete linkage to the specific act; courts will not permit speculative forays.
s4A-appointed representatives have continuing authority to renew applications for leave to appeal; costs out of central funds usually follow granted leave, while refusals require particular reasons for costs.