202303262 B1 - [2025] EWCA Crim 1163

Analysis:

Ground 1: In our view, the evidence that the applicant had done the relevant acts, and made the relevant omission, was very strong. It follows that we reject the submission that the respondent used bad character evidence to bolster a weak case.

The applicant’s previous convictions, for a course of conduct committing similar hacking and related offences a comparatively short time before the start of the indictment period, were capable of showing a relevant propensity and were therefore admissible under s101(1)(d) and s103(1)(a) of the 2003 Act. The more difficult issue is whether, having regard to the concern raised by the defence about fitness to plead, evidence of the convictions should have been excluded under s101(3) of the 2003 Act, and/or s78 of the Police and Criminal Evidence Act 1984, on grounds of fairness.

On that issue, there were powerful points on each side. The applicant was able to argue that his neurodevelopmental disorder was lifelong, that it rendered him unfit to plead in the summer of 2023, and that he was therefore unfit to plead in March 2021. The respondent was able to respond that neither those who represented the applicant in March 2021, nor Dr Hindley (see paragraph 13 above) had felt it necessary or appropriate to raise that issue, and there was no evidence before the jury that the applicant had been unfit to plead when he entered his guilty pleas to the earlier offences. The March 2021 convictions were valid and subsisting, and the burden would be on the applicant to persuade the jury on the balance of probabilities that he was not guilty of those offences. The judge was therefore faced with a difficult issue.

Whilst we do not condone the very late service of the prosecution application, we see little merit in the submission that the lateness of the application in itself caused prejudice to the applicant’s case. Nor do we accept that the applicant suffered unfair prejudice simply because calling expert evidence on the issue of fitness to plead in March 2021 would have led to the jury hearing evidence of admissions made by the applicant: difficult tactical decisions of that kind are commonplace in criminal trials, and it was not unfair to require the applicant (acting through his skilled legal representatives) to make such a decision when the anticipated unwelcome line of cross-examination would correctly have been admitted.

We nonetheless accept that this ground is arguable, and we accept the applicant’s submission that evidence of the March 2021 convictions should have been excluded.

We note that the judge’s directions of law to the jury included the following in relation to those convictions:

“Because the defence say the guilty pleas are not reliable, you should treat them with caution for the following reasons: firstly, because Arion Kurtaj was not assessed by a psychiatrist to determine whether he was psychologically fit to enter those guilty pleas; secondly, because Arion Kurtaj has now been assessed as not fit to plead in these proceedings; thirdly, because the Youth Court never heard evidence or made any finding of fact in relation to those matters so what happened was he pleaded guilty. That is the point they are making.”

That direction might be said to encourage the jury not to regard the previous convictions as providing support for the prosecution case. But there are two reasons why the fact that the judge left the matter to the jury in that way is not a complete answer to this ground of appeal.

First, the judge was aware from the expert evidence which she had heard (but the jury did not hear) that the nature of the applicant’s disorder was such as to make it at least likely that he was not fit to plead in March 2021. There may be a number of reasons why no such concern was raised at that time: we therefore cannot regard the fact that fitness to plead was not raised as a conclusive argument in the respondent’s favour.

Secondly, we understand that the agreed facts to which we have referred in paragraph 16 above were drafted and placed before the jury some days after the judge’s ruling, and were therefore not considered in counsel’s submissions or in that ruling. At the time of the summing up, however, the jury had those agreed facts; and it is, with respect, unfortunate that consideration does not appear to have been given at that stage to their status. Experience suggests that this is an error which occurs more frequently than it should. It is therefore important to note that by s10(1) of the Criminal Justice Act 1967:

“Subject to the provisions of this section, any fact of which oral evidence may be given in any criminal proceedings may be admitted for the purpose of those proceedings by or on behalf of the prosecutor or defendant, and the admission by any party of any such fact under this section shall as against that party be conclusive evidence in those proceedings of the fact admitted.” [emphasis added]

It follows that there was conclusive evidence before the jury that the difficulties which the applicant suffered as a result of his autism were lifelong and immutable, and must therefore have affected him in March 2021.

With all respect to the judge, her ruling unintentionally caused unfairness to the applicant because of the combination of two features. First, there had been no contemporary assessment of the applicant’s fitness to plead in March 2021. Secondly, if the applicant had sought explicitly to rely on the agreed fact as conclusive evidence that the applicant was unfit to plead at that time, we think the respondent would inevitably have reconsidered the terms of the agreed fact: that would very probably have required the obtaining of further expert evidence on both sides, and would have risked diverting the jury’s attention away from the real issues in the case. The consequence, in practical terms, was that the jury had no proper basis on which to determine whether the March 2021 guilty pleas were reliable. In those circumstances, the judge was in our view bound to exclude evidence of the March 2021 convictions.

We are, however, satisfied that the failure to exclude the evidence of the March 2021 convictions does not in itself render unsafe the findings that the applicant did the relevant acts. The evidence was by no means a central feature of the prosecution case: it was, at most, an additional reason why the jury would accept what was in any event a very strong case against the applicant.

Ground 2: We do not regard this ground as arguable. We accept the submissions of the respondent as to why the fact that the applicant was subject to a specific bail condition was relevant to some of the issues which the jury had to decide. First, in deciding whether the applicant did the relevant acts in September 2022, the jury were entitled to take into account that he had deliberately equipped himself with the iPhone 13, which could be used to commit the hacking, when he knew he was forbidden to do so. Secondly, the deliberate flouting of the bail condition could not properly be characterised as relevant only to issues of mens rea with which the jury were not concerned: it was relevant also to the jury’s assessment of whether the prosecution had proved, where it was necessary to do so, that the applicant had acted intentionally or recklessly. In particular, two of the three charges relating to the applicant’s activities in September 2022 (count 10, securing unauthorised access to computer material with intent; and count 11, blackmail) required the prosecution to prove that the applicant had acted with a specific intention; as did the allegations that he had participated in doing relevant acts by intentionally encouraging others. The judge was therefore correct to rule as she did.

Further, and in any event, the jury received evidence of the two arrests of the applicant earlier in 2022, and cogent evidence that he engaged in the September 2022 hacking activity despite those arrests. The jury therefore knew that if the applicant did the relevant acts in September 2022, he did so despite being aware that he faced prosecution for his alleged earlier activities. We do not accept that significant prejudice was caused to the applicant’s case by the jury’s learning of the additional fact that he was subject to a specific bail condition prohibiting him from possessing a smart phone. Certainly, any prejudice was not such as to render unsafe the findings that he did the relevant acts.

Ground 3: We regard this ground also as unarguable. It was clear throughout that the applicant was not the only person involved in the hacking and related offending. The possibility that “the suspect” was involved in one specific eSIM swap did not cast any doubt on the evidence implicating the applicant in a separate eSIM swap, or in other aspects of the offending. In the context of cyber offending, the fact that “the suspect” lived in the same county as the applicant provided in itself no basis for the suggestion that they may have been in contact with one another. The reality is that the suggestion, that the jury should have been able to consider whether “the suspect” may have used Mr Shenton’s swapped SIM on 7 November 2021, could amount to nothing more than an invitation to speculation by the jury. The judge was therefore correct to rule against the proposed cross-examination.

Ground 4: It seems to us that the comments in the chatrooms were, at least in part, adduced by the prosecution as evidence of the truth of the matters stated. With respect to the judge, we therefore take the view that she was wrong to base her decision primarily on the evidence not being hearsay. However, for the reasons which she gave (see paragraphs 32-33 above), the hearsay evidence was in our view admissible under either s117 or s114 of the 2003 Act. The alternative basis for the judge’s ruling was therefore correct, and it is not arguable that the findings that the applicant did the relevant acts are unsafe because part of exhibit DR/15 should have been excluded from the evidence.