Open justice prevails over speculative harm in criminal appeals: Hartwell [2025] EWCA Crim 1450

Introduction

This commentary examines the Court of Appeal (Criminal Division)’s decision in Hartwell, R. v [2025] EWCA Crim 1450, handed down on 16 October 2025 by Warby LJ and Lavender J. The case concerned a renewed application for (i) a short extension of time to appeal; (ii) leave to appeal against conviction; and (iii) a confidentiality order over the applicant’s late-served written submissions. The applicant, Ms Hartwell, had been convicted by a jury at Southwark Crown Court on 16 January 2024 of two counts of theft, arising from transfers out of a bank account in which she was holding funds for a friend, Peter Atherton, who lacked a bank account of his own after receiving a substantial bequest. Her defence at trial was that Mr Atherton had consented to the transfers (framed as loans to third parties and reimbursement of expenditure allegedly incurred on his behalf). The jury rejected that account.

Two features of broader legal interest emerge. First, the Court reaffirmed the primacy of the open justice principle in the criminal appellate context and refused a confidentiality order sought to shield parts of voluminous written submissions filed at the start of the hearing. Second, the Court confirmed the consistently high threshold for obtaining leave to appeal against conviction, especially where proposed grounds rest on allegations of perjury, disclosure failings, jury impropriety, alleged ineffective assistance, or reasonable adjustment issues—none of which, on the facts, gave rise to an arguable unsafe conviction.

Summary of the Judgment

Confidentiality order refused: Warby LJ, applying the open justice principle and referring to Civil Division authority (Tickle v BBC) and Criminal Procedure Rules 5.7 and 5.8, held that the asserted risks of harm from public access to the appellant’s written submissions did not outweigh the strong presumption of openness. The Court noted that sensitive detail need not be replicated in a public judgment and that non-party access to court files is already restricted.
Extension of time granted: Lavender J granted a two-day extension of time to seek leave to appeal; good reason was shown and the period was minimal.
Leave to appeal refused: Having read the applicant’s late 73-page document “thoroughly,” together with all case materials and the single judge’s detailed refusal reasons (appended to the transcript), the Court held that there was no arguable basis on which the conviction could be said to be unsafe. None of the seven grounds identified any reversible error or material irregularity that undermined the verdicts.

Detailed Analysis

1. Precedents and materials cited

Open justice and Tickle v BBC: The Court invoked the common law principle of open justice, “described in some detail” in recent Civil Division authority including Tickle v BBC. The takeaway is not that Tickle creates a bespoke rule for criminal appeals, but that the core open justice presumption applies across jurisdictions. Derogations require specific, evidenced, and weighty risks of harm that outweigh the transparency imperative.
Criminal Procedure Rules 5.7 and 5.8: The Court highlighted these provisions to emphasise that access by non-parties or the media to documents on the criminal court file is regulated and limited. This existing framework reduces any speculative risk of harm from public access to written submissions.
Criminal Appeal Act 1968, section 2 (unsafe conviction): While not expressly cited, the Court’s analysis proceeds from the familiar statutory question on an appeal against conviction: is the conviction “unsafe”? Leave is refused where grounds do not disclose a realistic prospect of establishing unsafety.
Equal Treatment Bench Book (ETBB): The single judge’s reasons refer to the ETBB as guidance on reasonable adjustments, reaffirming that the trial judge must be alert to disability-related needs and agree proportionate adjustments in consultation with the defendant and counsel.

2. The Court’s legal reasoning

Open justice and the confidentiality application

The Court refused to seal or anonymise parts of the appellant’s written submissions for three interlinked reasons:

Open justice default: Public scrutiny of court processes and reasoning is a fundamental common law value. Exemptions must be justified by “harm or prejudice of sufficient weight” to outweigh that default.
Targeted mitigation already available: The Court can avoid repeating sensitive details in a public judgment if not necessary. This undermines the premise that a confidentiality order over the submissions is needed to protect privacy or prevent prejudice.
Restricted third-party access: Under CrimPR 5.7 and 5.8, third-party access to court documents is not automatic. Given those limits, the residual risk that a non-party might obtain and misuse sensitive material is speculative and insufficient to justify a derogation from openness.

In short, the judgment confirms a practical approach: when the court can achieve sufficient protection by not reciting sensitive detail and relying on existing access controls, a sweeping confidentiality order will rarely be justified.

Leave to appeal and the “unsafe” conviction test

Lavender J adopted a two-step approach. First, the two-day delay was excused for good reason. Second, the merits were addressed comprehensively. The Court read the appellant’s late 73-page document in full but declined to engage in point-by-point adjudication in the judgment, instead endorsing the single judge’s “very full reasons” refusing leave, which are appended to the transcript. The overarching conclusion: there was “no good reason” to consider any proposed ground arguable; it was “not arguable that the applicant’s conviction was unsafe.”

Ground-by-ground synthesis (from the single judge’s reasons, accepted by the Court)

Ground 1 (alleged police perjury re emails): The appellant said the OIC denied using the email address to which she claimed to have sent a key message on 11 December 2017. PDF copies of emails sent to that address were produced. The single judge reasoned that the PDFs did not demonstrate perjury; at trial, the email was put in evidence and the conflict was canvassed before the jury, who were entitled to resolve it. The Court of Appeal agreed that nothing in this point rendered the verdicts unsafe.
Ground 2 (complainant’s credibility: chronic fatigue syndrome, DWP claims, lifestyle): There was a GP letter confirming CFS; counsel explored the point, mindful that pressing attacks on the complainant’s honesty risked a bad character application admitting the defendant’s prior dishonesty convictions. The prosecution did apply; although refused, the forensic risk was real and counsel’s caution was rational. The jury assessed credibility on both sides. No arguable unsafe conviction.
Ground 3 (alleged prosecution non-disclosure of DWP material): The documents in question were not clearly identified; in any event, prior disclosure addressed the core point that the inheritance would not affect entitlement to benefits, diluting relevance. The defence cross-examined on benefits in any case. No material irregularity or prejudice made out.
Ground 4 (alleged jury tampering): A juror reported seeing the complainant filming near the RSA and properly notified the court. There was no interaction. The trial judge consulted the parties, all accepted there was nothing of concern, and the juror’s conduct was exemplary. There was no evidence of tampering; the suggestion was speculative.
Ground 5 (complaints about legal representation, alleged forged documents, strategic disagreements): The record showed diligent preparation and communication by the legal team. Strategy decisions—particularly about the risks of inviting a bad character application—were reasonable. A key trial issue was the email chains; the applicant’s own evidence (as summarised in the summing-up) did not align with her later stance about the existence of emails, undermining the complaint. No deficiency capable of rendering the conviction unsafe was identified.
Ground 6 (memory loss evidence): The CFS diagnosis was supported by a GP letter; the extent of any memory impairment was for the jury to assess in light of cross-examination. Additional medical expert evidence was not shown to be necessary or likely to affect the outcome. No arguable unsafety.
Ground 7 (reasonable adjustments: dyslexia): The court log showed the judge engaged with the issue at trial, with counsel requesting—and the judge granting—regular breaks. The judge checked whether reading assistance was needed; on instructions, counsel indicated breaks sufficed. The ETBB-consistent process was followed. Post-trial materials did not show prejudice. There was no basis for an intermediary; the applicant gave evidence and participated effectively. No fair trial violation.

3. Why the Court reached the decision it did

Three themes run through the reasoning:

Materiality and specificity: Allegations of misconduct (perjury, non-disclosure, tampering) must be backed by cogent, specific evidence showing how the asserted wrongdoing would have affected the jury’s verdict. Here, the applicant’s materials did not meet that threshold. Where the jury has heard and resolved a factual dispute (e.g., over emails), appellate intervention requires something more than a different view of credibility.
Proper weight to trial management and counsel’s forensic judgments: The Court will not readily impugn reasonable tactical choices, especially where counsel is balancing evidential gains against live risks (such as a bad character application under the Criminal Justice Act 2003 where a defendant attacks a witness’s character). The record suggested assiduous representation.
Procedural fairness and proportional adjustments: The reasonable adjustments discussion demonstrates a practical, defendant-centred approach: identify needs; consult; implement proportionate measures (here, breaks); document them in the court log. Absent evidence of prejudice, an appeal on this basis will fail.

4. Likely impact and practical implications

Confidentiality in criminal appeals: The judgment reinforces that sealing orders over appellant submissions will be rare. Applicants should expect the Court to:
- Prefer not to recite unnecessary sensitive detail in public judgments; and
- Rely on CrimPR controls over non-party access to documents, rather than impose broad confidentiality orders.
Derogations will require a concrete showing of significant harm that cannot be mitigated by the above measures.
Late, voluminous submissions from litigants in person: The Court was clear that it had “read [the 73-page document] thoroughly,” but did not consider itself obliged to address each point in detail. Practically, appellants should submit focused, timely grounds with pinpointed materiality; sprawling last-minute documents rarely shift the safety analysis.
Ineffective assistance and tactical decision-making: This case aligns with the established restraint of the CACD in second-guessing reasonable strategic choices. Only demonstrable incompetence causing real injustice will suffice, and even then the Court asks whether the conviction is unsafe, not whether different tactics might have been preferable.
Jury contact issues: The handling here models good practice: juror promptly informs court; judge consults parties; absent evidence of influence or interaction, the trial continues. Mere proximity or observation does not amount to tampering.
Reasonable adjustments for defendants with specific learning difficulties: The decision underscores that ETBB-consistent, proportionate measures (breaks, careful pacing of evidence, ensuring understanding) can suffice; intermediaries or more intrusive measures are exceptional and must be justified by necessity to secure a fair trial.

Complex Concepts Simplified

Open justice: The default that court proceedings and judgments are public. It promotes accountability and public confidence. Limits are exceptional and must be justified by strong evidence of harm (e.g., protecting vulnerable witnesses, national security, or real risk of prejudice).
CrimPR 5.7 and 5.8 (non-party access): The Criminal Procedure Rules regulate who can see documents on the court file. Non-parties generally have limited access and may need to apply. This mitigates the risk that sensitive content in a party’s submissions will become widely available.
Unsafe conviction (Criminal Appeal Act 1968, s.2): The central appellate question in a conviction appeal: is the conviction “unsafe”? Leave to appeal is refused where the proposed grounds do not realistically show unsafety.
Fresh evidence: New evidence that was not available at trial. The Court considers whether it can and should be admitted and whether it might reasonably have affected the verdict. Bare assertions or documents lacking provenance or materiality will not suffice.
Bad character risk: Under the Criminal Justice Act 2003, if a defendant attacks the character of a prosecution witness, the prosecution may apply to adduce the defendant’s own bad character (e.g., prior dishonesty). Counsel often calibrate cross-examination to avoid triggering such applications.
Reasonable adjustments and the ETBB: Courts must take reasonable steps to accommodate disabilities (such as dyslexia), commonly by allowing breaks, adjusting pace, or providing assistance. More intensive measures (like intermediaries) are exceptional and depend on necessity.
Jury tampering vs. incidental contact: Tampering involves attempts to influence jurors improperly. Accidental sightings or passive observations, promptly reported with no interaction, do not amount to tampering and typically require no drastic response.

Conclusion

Hartwell is a careful, workmanlike application of two settled but important principles. First, in the absence of specific, compelling evidence of likely harm, the open justice principle will trump generalised privacy or prejudice concerns, particularly where the Court can avoid repeating sensitive material and where CrimPR already constrains third-party access to filings. Second, the Court of Appeal will not grant leave to appeal unless grounds disclose an arguable unsafe conviction. Allegations of perjury, disclosure failures, jury compromise, deficient representation, or inadequate adjustments must be supported by cogent, material evidence showing that the trial process was unfair or the verdict undermined. On the facts, none of the seven grounds passed that bar.

For practitioners and appellants, the decision offers practical guidance: tailor confidentiality requests with precision and evidence; file timely, focused grounds; recognise the risks of aggressive character attacks; and document adjustment requests with clarity. Above all, the judgment underscores continuity in appellate scrutiny—robust but restrained—anchored in open justice and the statutory safety test.