202303262 B1 - [2025] EWCA Crim 1163

The submissions to this court:

Ground 1: For the applicant, it is submitted that evidence of the March 2021 convictions, though admissible in principle, should have been excluded because it was unfair to the applicant. It is submitted that, contrary to the judge’s ruling, the late service of the prosecution application to adduce that evidence did cause unfair prejudice, because the defence did not have time to investigate exactly what had happened in and around March 2021. It is submitted that the applicant has suffered severe neurodevelopmental disorders from birth: it was common ground that he was unfit to plead in the present proceedings, and there was no reason to think he was any more fit to plead in March 2021. It is submitted that the judge, when deciding whether the jury could treat the guilty pleas in March 2021 as reliable, failed to give sufficient weight to the evidence she had received from all three psychiatrists (in relation to the applicant’s fitness to plead in the present proceedings). In particular Dr Camden-Smith’s evidence was that the applicant derives satisfaction from his notoriety: her evidence was, and the applicant’s submission is, that it would therefore not be surprising if he claimed to be guilty of an offence which he had not committed.

It is further submitted that the defence were placed in an impossible position, because the judge had indicated that if Dr Camden-Smith were called to give evidence for the defence, she could be cross-examined about admissions made by the applicant when interviewed under caution, which would otherwise be inadmissible against him. In the result, it is said, the defence could do no more than invite the jury to disregard the applicant’s guilty pleas in March 2021 because the jury could not know whether the applicant would have been found fit to plead if that issue had been considered at that time.

The respondent relies on the fact that the March 2021 convictions related to six offences committed by the applicant over a number of days in April 2020, just over a year before the start of the indictment period. It is submitted that the March 2021 convictions were capable of demonstrating a propensity to commit offences of this relatively unusual kind.

The respondent further relies on the fact that Dr Hindley, in his report in relation to the sentencing of the applicant in 2021, had not raised any issue as to whether the applicant had been fit to plead in those proceedings.

The respondent contends that the applicant suffered no prejudice as a result of the late service of the bad character application: an indication had been given at an earlier stage that such an application would be made, and the application was not argued until well into the trial. The respondent relies on the fact that the jury heard evidence of a Telegram chat between Lapsus$ members in which one, using the name Alexander Pavlov, made what the jury could find were admissions that his real name was Arion Kurtaj and that he “did the MCProHosting hack”. It is submitted that it was therefore appropriate for the jury to know what the previous convictions were.

Ground 2: It is submitted on behalf of the applicant that breach of his bail condition was not relevant to any issue in the case, and this evidence was purely prejudicial. Insofar as the prosecution contended that possession of a smart phone in breach of a bail condition was evidence of the applicant’s motivation, it is submitted that that could only be relevant to the mens rea of an alleged offence, which was not an issue before the jury.

The respondent submits that the evidence was correctly admitted, for two reasons. First, if the jury found that the applicant had deliberately flouted his bail condition, they may consider that it was therefore more likely that he committed the offences in September 2022 despite having been arrested and bailed for similar offences some months earlier. Secondly, although the applicant was not being tried for committing offences with the requisite mens rea, his state of mind at the time of relevant acts was nonetheless relevant: in relation to the offence charged in count 1, the judge directed the jury that before they could find that the applicant had done the relevant act, they had to be sure that he had intended or been reckless as to whether his act would impair the operation of any computer, or impair the operation of a program, or impair the reliability of data.

If this court concludes that the judge was wrong to admit this evidence, the respondent submits in the alternative that the findings that the applicant did the relevant acts would not thereby be rendered unsafe: the jury knew that the applicant had already been arrested twice before his arrest on 22 September 2022, and evidence that he had been subject to a bail condition would not have caused any prejudice to his case.

Ground 3: It is it is submitted on behalf of the applicant that, contrary to the judge’s ruling, it was relevant for the jury to hear that a man known to the police as a violent criminal, living in the same county as the applicant, was linked to the same eSIM swap cyber attack. It is suggested that the applicant could have come into possession of the handset used on 7 November 2021 (see paragraph 25 above) through some contact with “the suspect”.

The respondent submits that the applicant’s argument is mere speculation. There was a very strong evidential basis for the jury to infer that the applicant was using Mr Shenton’s swapped SIM on 7 November 2021, and there was no basis for suggesting that it was used by “the suspect” (who was linked to a different swapped SIM).

Ground 4: The submissions on behalf of the applicant are focused on the inclusion in exhibit DR/15 of screenshots of comments made in chat rooms. It is submitted that the comments should have been redacted from the report, because they were anonymous hearsay: there was no information about who posted or collated the comments; there was no evidence that any of the makers of the comments had any personal knowledge of the matters stated; and, unlike the remainder of the report, the comments were not made in the course of a trade, business or profession. In those circumstances, it is submitted, the requirements of s117(2)(b) and s117(2)(c) could not be satisfied. Particular reference was made to a comment about someone called Alexander, said by the prosecution to be the applicant: the comment gave a new email account for Alexander, and said he had not been arrested but his old account had been deleted. It is submitted that the witness Mr Reber was not able to answer any questions in cross-examination about such comments, and the defence submissions to the jury could not cure the prejudice caused by this inadmissible evidence.

The respondent submits that Mr Reber was entitled to refer to all the material in exhibit DR/15 when explaining how NVIDIA was attacked and what response was made to that attack: in doing so, he was not adducing hearsay evidence. In the alternative, if the judge should have held that the evidence was hearsay, it is submitted that she was correct to find that it was admissible under s117 or s114 of the 2003 Act.

We are grateful to all counsel for their written and oral submissions.