202303262 B1 - [2025] EWCA Crim 1163

The judge’s rulings: 3 - cross-examination about “the suspect”:

In relation to counts 1-4, the prosecution alleged that the applicant and others had obtained access to the computer systems of BT/EE and had gained control of customers’ phone numbers by reassigning those numbers to embedded SIM (“eSIM”) cards controlled by members of the group. Armed with those numbers, the group were able to access the customers’ online accounts.

The evidence showed that over 900 telephone numbers had been reassigned to eSIM cards and used in a total of 29 handsets controlled by the group. There was evidence that one such number, taken from a BT/EE customer Mr Shenton, was used on 7 November 2021, in the vicinity of the applicant’s home, by a handset which was in the possession of the applicant when he was arrested on 24 January 2022.

The police investigation had shown a link between “the suspect” (a man known to the police, who lived in the same county as the applicant) and the use via an eSIM of the telephone number of a different BT/EE customer, referred to at trial as “JB”.

The defence wished to put before the jury, by cross-examination of the officer in the case, evidence that “the suspect” was linked to the same cyber attack on BT/EE. It was submitted that the jury, when considering the prosecution allegation that on 7 November 2021 the applicant had used the handset equipped with Mr Shenton’s telephone number, should be able to take into account the possibility that it may have been “the suspect” who did so.

The judge refused to permit such cross-examination. She referred in her ruling to the fact that the applicant was alleged to have used the telephone number of Mr Shenton, whereas “the suspect” was linked to the telephone number of “JB”. She continued:

“3.Therefore, although the argument is superficially attractive, the reality is that the most this can amount to is evidence of a fraudulent EE SIM swap possibly by another person living in the same county as Arion Kurtaj around the same time.

In my judgement, to admit this material in evidence would do no more than potentially cause confusion for the jury as to its relevance and encourage them to waste time considering something which could not help them with the question they must consider: whether they are sure that Arion Kurtaj was a party to the EE SIM swap frauds relied on by the prosecution including the fraud involving Mr Shenton’s credentials.”