Kurtaj v R.

Factual and Procedural Background

Judge Holroyde delivered the opinion summarised here. The Appellant was charged with twelve offences concerning large-scale computer hacking. The Crown Court found the Appellant to be unfit to plead; under s4A of the Criminal Procedure (Insanity) Act 1964 a jury was asked to determine whether he had done the relevant acts and made the relevant omission, and the jury found that he had. A single judge refused the Appellant's application for leave to appeal against those findings; the Appellant renewed that application to the full court.

The Appellant is now aged 20; during the period covered by the indictment he was aged 16–17. In March 2021, when he was aged 15 at the time of the offending, he pleaded guilty in the Youth Court to six offences contrary to s3(1) of the Computer Misuse Act 1990 (the "March 2021 convictions"). No issue as to fitness to plead was raised in the Youth Court at that time.

Summary of the alleged offending and the procedural history in the Crown Court:

• The prosecution alleged that the Appellant was a leading figure in cyber offending carried out by a hacking collective referred to in the materials as Hacking Group A.
• The indictment alleged, in summary, that between July 2021 and February 2022 the group hacked into computer systems of several large companies, including Company B and Company C, blackmailed victims by threatening publication and misused acquired data (counts 1–7). In September 2022 the group was said to have attacked Company D, Company E and Company F (counts 8–11).
• The Appellant was arrested on three occasions (24 January 2022; 30 March 2022; 22 September 2022). On those occasions various phones, laptops, USB sticks and SIM cards were seized; on 22 September 2022 an iPhone (described in the record as an iPhone 13) was seized and a notice under s49 RIPA 2000 to disclose the device PIN was served but not complied with.
• The Appellant made no reply when interviewed under caution.
• The indictment comprised a mix of counts including unauthorized acts to impair computers (Computer Misuse Act 1990), blackmail (Theft Act 1968), fraud (Fraud Act 2006), and an offence of failing to comply with a s49 notice (RIPA 2000).
• On 22 June 2023 the trial judge, Judge Lees, heard evidence from three psychiatrists (one, Expert Hindley, had prepared a report for the March 2021 sentencing). The psychiatrists agreed on diagnoses of autism and ADHD and the judge found the Appellant unfit to plead. The s4A proceedings were heard together with the trial of the co-accused (referred to in the record as the Defendant).
• Prosecution evidence before the jury included evidence from company representatives (the "company witnesses"), evidence from affected customers of Company B, evidence obtained from servers located in the USA, online chat logs said to show planning and execution of offences, physical items seized from the Appellant, the agreed facts as to the March 2021 convictions, and evidence about the Appellant having been on bail with a condition prohibiting possession of a smartphone yet being in possession of the iPhone on 22 September 2022.
• There were agreed facts before the jury about the Appellant's diagnoses. Those facts included the following agreed passage (anonymised here):

"Autism is lifelong and immutable, and therefore the Appellant continues to experience the core difficulties associated with a diagnosis of autism. Many (in fact most) people with autism learn to understand and manage their neurodiversity, however the Appellant's additional disabilities have hampered his abilities to do so. He therefore has almost no understanding of his own needs and therefore is incapable of making adjustments for them."

The Appellant did not give evidence. The jury found that he had done the relevant acts and made the relevant omission. The court made a hospital order under s37 of the Mental Health Act 1983 with a restriction order under s41.

Legal Issues Presented

1. Whether the trial judge erred in admitting evidence of the Appellant's March 2021 convictions as bad character evidence (propensity evidence) and, if so, whether that error required exclusion on grounds of unfairness (considering fitness to plead issues).
2. Whether the trial judge was wrong to admit evidence that the Appellant had previously been subject to a bail condition prohibiting possession of a smartphone (relevance and unfair prejudice).
3. Whether the trial judge was wrong to prohibit cross-examination about a third person described in the proceedings as "the suspect" (relevance, potential prejudice and whether exclusion improperly prevented the jury considering an alternative explanation).
4. Whether the trial judge erred in admitting exhibit DR/15 (a threat-intelligence / incident report from Company C) in its entirety, in particular chatroom screenshots that the defence said were anonymous hearsay and not business records.
5. Procedural and funding questions arising in appeals brought on behalf of persons found unfit to plead: the authority of representatives appointed under s4A to renew applications for leave to appeal to the full court and the availability of costs out of central funds for such work.

Arguments of the Parties

Appellant's Arguments

• Ground 1 (March 2021 convictions): Although principled admissible, the evidence should have been excluded as unfair because the prosecution's application was served late leaving no time to investigate the earlier proceedings; the Appellant's longstanding neurodevelopmental disorders made it at least likely he was unfit to plead in March 2021; the trial judge did not give sufficient weight to psychiatric evidence heard in the Crown Court about fitness in 2023 (including Expert Camden-Smith's evidence that the Appellant derives satisfaction from notoriety), and calling that expert risked exposing the Appellant to otherwise inadmissible cross-examination. The defence were therefore left only able to invite the jury to disregard the March 2021 guilty pleas.
• Ground 2 (bail condition): Evidence that the Appellant breached a bail condition banning smartphones was irrelevant to any issue for the jury and was purely prejudicial. Any relevance to mens rea did not assist because mens rea was not in issue before the jury in the way the prosecution suggested.
• Ground 3 (cross-examination about "the suspect"): It was relevant for the jury to hear that a man known to police as a violent criminal, living in the same county as the Appellant and linked to an eSIM swap, could have been responsible for the handset used on 7 November 2021; exclusion prevented the jury considering a non-speculative alternative explanation.
• Ground 4 (DR/15): The chatroom screenshots in DR/15 should have been redacted because they were anonymous hearsay (no maker identified, no evidence of personal knowledge, and not made in the course of a trade or business), so the requirements of s117(2)(b) and (c) could not be satisfied; cross-examination showed the witness for Company C could not explain those comments; their admission caused unfair prejudice that could not be cured by submissions to the jury.

Respondent's Arguments

• Ground 1: The March 2021 convictions were for a course of conduct of similar hacking offences shortly before the indictment period and were therefore capable of showing a relevant propensity (s101(1)(d) and s103(1)(a) Criminal Justice Act 2003). Expert Hindley had not previously raised any fitness concerns in relation to the March 2021 proceedings, and the prosecution had given prior indication that bad-character evidence might be relied on. The jury also heard a Telegram chat that linked an online alias to the Appellant and to the earlier hack of Company A, so the convictions were relevant background the jury were entitled to know.
• Ground 2: Evidence of deliberate flouting of a bail condition (acquiring and possessing the iPhone 13 despite the ban) was relevant to the jury's assessment of whether the Appellant had equipped himself to commit the alleged offences in September 2022 and was relevant to issues of intention or recklessness on counts where specific intent was required.
• Ground 3: The suggestion that the suspect might have used the handset with Mr Shenton's reassigned number was speculative. The suspect was linked to a different swapped SIM, and there was a strong evidential basis for the jury to infer that the Appellant was using the Mr Shenton swapped SIM on 7 November 2021.
• Ground 4: The witness for Company C (Witness Reber) was authorised to explain the company's investigative material and to exhibit DR/15 when describing the attack and the company's response; in any event, if parts of DR/15 were hearsay they were admissible under s117 and/or s114 CJA 2003 (business records or in the interests of justice).

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
R v Defendant A and others [2012] EWCA Crim 1509	The six-step approach for assessing business-record hearsay under s117 Criminal Justice Act 2003 (and related admissibility considerations for multiple hearsay).	The trial judge adopted the six-step approach from this authority when concluding that exhibit DR/15 comprised business records admissible under s117; the appellate summary records that the judge was entitled to treat DR/15 as business records applying the principles from this case.
R v Defendant B [2019] EWCA Crim 1270	Authority on the role and duties of counsel appointed to put the case for an accused found unfit to plead; counsel's responsibility to consider arguable grounds of appeal when the accused cannot instruct.	The court relied on this authority to confirm that representatives appointed under s4A must consider and, if proper, advance arguable grounds of appeal on behalf of an unfit accused; if representatives consider there are no arguable grounds no valid appeal can be advanced by the accused in person.
R v Defendant C [1999] 2 Cr App R 225	Held that counsel appointed by the court to put the defence in the Crown Court has authority to settle and give notice of appeal and to argue the appeal on the accused's behalf.	The court cited this authority to confirm the professional duty of counsel appointed under s4A to determine and pursue arguable grounds of appeal where appropriate, and to outline the scope of counsel's authority to renew applications for leave to appeal to the full court.
R v Defendant D [2023] EWCA Crim 1285	Consideration of the court's power to order payment out of central funds for renewed applications for leave to appeal (including limits on routine awards and the need for particular reasons).	The court applied the principles in this authority when considering whether to order payment out of central funds for representatives who renewed the application for leave; it explained the appropriate approach to awards of costs out of central funds in renewed applications.

Court's Reasoning and Analysis

The court approached the four renewed grounds by reference first to the strength of the overall prosecution case and then to the specific legal rules on admissibility and fairness.

Overall strength of the case: the court began (paragraph 49) by recording that the evidence that the Appellant had done the relevant acts and omission was "very strong." On that basis the court rejected the submission that the prosecution had adduced bad character evidence to bolster a weak case.

Ground 1 — March 2021 convictions (bad character / propensity)

The court accepted that the March 2021 convictions were, in principle, capable of demonstrating a relevant propensity and therefore admissible under s101(1)(d) and s103(1)(a) Criminal Justice Act 2003. The more difficult question was whether, in light of the defence concern about the Appellant's fitness to plead, the convictions should nevertheless have been excluded under s101(3) CJA 2003 and/or s78 Police and Criminal Evidence Act 1984 on fairness grounds.

The court identified powerful points on both sides: the defence relied on the lifelong nature of the Appellant's neurodevelopmental conditions and argued it was likely he was unfit to plead in March 2021; the prosecution pointed to the absence of any contemporaneous challenge to fitness in the Youth Court and to Expert Hindley's earlier report, which did not raise fitness concerns. The judge faced a difficult evaluative decision.

On the procedural issue of lateness (the prosecution's application to adduce the March 2021 convictions was served five days before trial) the court accepted the judge's view that lateness alone did not cause unfairness in this case. Tactical difficulties arising from the risk that calling defence experts would expose the Appellant to cross-examination about admissions did not in themselves make the admission unfair: such tactical choices are commonplace.

Nonetheless the appellate court accepted the defence contention that the convictions should have been excluded. Two factors drove that conclusion: (i) the judge had heard expert evidence (which the jury did not hear) indicating that the Appellant's neurodevelopmental disorder made it at least likely he was not fit to plead in March 2021; and (ii) agreed facts placed before the jury (after the judge's ruling) were conclusive under s10(1) Criminal Justice Act 1967 and established that the Appellant's autism was lifelong and immutable, and therefore must have affected him in March 2021. The combination of there being no contemporaneous fitness assessment in March 2021 and the conclusive agreed facts meant the jury had no proper basis to judge the reliability of the March 2021 guilty pleas; exclusion was therefore required to avoid unfairness.

However, the court also held that the failure to exclude the March 2021 convictions did not, in the particular circumstances, render the jury's findings that the Appellant did the relevant acts unsafe. The convictions were not a central feature of the prosecution case and, given the strength of the other evidence, the error was not of such consequence as to undermine the jury's verdicts.

Ground 2 — Bail condition evidence

The court rejected the contention that evidence the Appellant had been on bail with a condition prohibiting possession of a smartphone (and nonetheless possessed the iPhone 13) was irrelevant and purely prejudicial. The court accepted the respondent's submissions that the deliberate acquisition and possession of a device capable of committing the charged conduct was relevant to whether the Appellant committed the September 2022 acts and was relevant to issues of intention or recklessness on counts where specific intent was required (for example counts alleging securing access with intent and blackmail). The jury had in any event been told of earlier arrests and other evidence showing persistent activity despite prior arrests; the additional fact of a specific bail condition was not such as to render unsafe the findings.

Ground 3 — Cross-examination about "the suspect"

The court found the judge was right to refuse the proposed cross-examination. The evidence linked "the suspect" to a different swapped SIM than that used in the incident involving Victim Shenton; the suggestion that the suspect had used Mr Shenton's swapped SIM on 7 November 2021 would have been speculative and risked confusing the jury. In the context of offending by a group where multiple participants were involved, the mere fact that the suspect lived in the same county did not provide a non-speculative basis to invite the jury to consider the suspect as the alternative user of the specific SIM in question.

Ground 4 — Exhibit DR/15 (threat-intelligence report and chat screenshots)

The court considered whether DR/15 was hearsay and, if so, whether it was admissible under s117 (business records) or s114 (interests of justice) of the Criminal Justice Act 2003. The appellate court took the view that some chatroom comments in DR/15 were adduced as hearsay (i.e. to prove the matters they stated) and that the trial judge was therefore wrong to base her decision primarily on the evidence not being hearsay. Nevertheless, the court upheld the alternative bases the trial judge gave: (i) that the material could properly be regarded as business records under s117 (applying the six-step approach in R v Defendant A and others); and (ii) that, in any event, the material was admissible under s114 because its probative value was high, it was central to explaining the attack and response, and the circumstances of production did not make it unreliable. The court therefore concluded that admission of DR/15 was supportable on statutory grounds and did not render unsafe the jury's findings.

Representation and funding for appeals by persons found unfit to plead

The court analysed the procedural framework governing appeals by persons found unfit to plead and the position of representatives appointed to put the defence under s4A.

• Statutory and rule background: s4A(2) Criminal Procedure (Insanity) Act 1964 requires the jury to determine whether the accused did the act "on the evidence (if any) already given in the trial" and "on such evidence as may be adduced ... by a person appointed by the court ... to put the case for the defence". Crim PR 25.10(3) sets out factors the Crown Court must consider when appointing such a person (willingness, suitability, complexity of case, continuity, defendant's wishes and needs). In this case Attorney Miller and Attorney Archer were appointed to put the Appellant's case in the Crown Court.
• Authority of representatives on appeal: the court confirmed (relying on R v Defendant C and R v Defendant B) that counsel appointed to put the defence in the Crown Court have authority to settle and give notice of appeal and to argue the appeal on behalf of an accused who is unfit to plead. It follows that an appeal can only be brought by the representatives; an accused who is unfit is not competent to act in person to commence or conduct an appeal.
• Funding: proceedings under s4A in the Crown Court and appeals under s15 Criminal Appeal Act 1968 are not "criminal proceedings" for the purposes of the ordinary public funding provisions; therefore the Registrar cannot make a representation order in the way available for most criminal appeals. However, s19(3)(d) Prosecution of Offences Act 1985 and regulations made under that Act (Cost in Criminal Cases Regulations) permit payment out of central funds for fees or costs reasonably necessary to cover the proper fee of a person appointed under s4A to put the case for the defence; the Registrar is the appropriate authority to assess sums ordered out of central funds in this court.
• Renewed applications for leave: if the single judge grants leave to appeal, representatives will ordinarily be remunerated from central funds for the grounds on which leave is given. If the single judge refuses leave, representatives who consider a renewal to the full court is proper are authorised by their Crown Court appointment to renew the application. The full court retains a discretion to order payment out of central funds when it considers it appropriate, but practice is not to award such costs routinely; particular reasons are required.

Holding and Implications

Core Rulings:

• The renewed application for leave to appeal was refused in relation to grounds 2, 3 and 4.
• Leave to appeal was granted on ground 1 only (the admission of the March 2021 convictions), but the substantive appeal against the jury's findings that the Appellant did the relevant acts and made the relevant omission was dismissed.
• The court ordered payment out of central funds to remunerate the representatives (Attorney Miller and Attorney Archer) for their work in preparing and presenting the one ground (ground 1) on which leave to appeal was granted; the Registrar is directed to assess the appropriate amount and the representatives must provide written particulars.

Implications and immediate consequences (limited to those discussed in the judgment):

• The appellate court accepted that the trial judge erred in admitting the March 2021 convictions in evidence given the agreed facts about the Appellant's lifelong diagnosis and the absence of any contemporaneous fitness-to-plead assessment in March 2021; nevertheless, because the remaining evidence against the Appellant was strong and the March 2021 convictions were not a central feature, the error did not render the jury's findings unsafe and the findings were upheld.
• The trial judge's rulings to admit evidence of the Appellant's breach of bail and to refuse the proposed cross-examination about "the suspect" were upheld: the former was relevant to issues the jury had to decide including intent/recklessness, and the latter was rightly rejected as speculative and potentially confusing.
• The trial judge's admission of exhibit DR/15 was sustained on statutory grounds (s117 and/or s114 CJA 2003) even though parts of the material were, strictly speaking, hearsay; the appellate court concluded that admissibility was justified in the interests of justice and did not render the verdicts unsafe.
• On representation and funding, the court clarified that representatives appointed under s4A have the authority to renew applications for leave to appeal to the full court and that, where leave is granted by the full court, it will commonly be appropriate to order payment out of central funds for work related to the grounds on which leave is given. The court exercised that discretion here in respect of ground 1 only.

Direct orders made by the court:

• Payment out of central funds to compensate the representatives for their work in preparing and presenting ground 1; assessment to be made by the Registrar (who will appoint a determining officer) and the representatives must provide particulars in accordance with Crim PR 45.4(5).
• The renewed application for leave to appeal was refused as to grounds 2–4; leave to appeal was granted on ground 1 only; the substantive appeal against the jury's findings was dismissed.