Arion Kurtaj v R [2025] EWCA Crim 1163

WARNING: REPORTING RESTRICTIONS APPLYAs explained in paragraph 2 of the judgment, nothing may be published in relation to this appeal which names or may otherwise lead members of the public to identify the man referred to in the judgment as “the suspect”.Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice.[2025] EWCA Crim 1163Case No 202303262 B1
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT SOUTHWARK
HH JUDGE LEES
T2022 7074
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 11/09/2025
Before
LORD JUSTICE HOLROYDELORD JUSTICE EDISHH JUDGE EDMUNDS KC(sitting as a judge of the Court of Appeal, Criminal Division)
Between
ARION KURTAJApplicantTHE KINGRespondent
David Miller and Trevor Archer (appearing pro bono) for applicantDharmendra Toor (instructed by CPS Appeals & Review Unit)) for respondentHearing Hearing dates: 16 April 2025
Approved JudgmentThis judgment was handed down remotely at 10.30am on Thursday 11 September 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives..............................
[1]The applicant was charged with twelve offences relating to computer hacking. He was found to be unfit to plead. In proceedings pursuant to s4A of the Criminal Procedure (Insanity) Act 1964 he was found to have done the relevant acts. His application for leave to appeal against those findings was refused by the single judge. It is now renewed to the full court.[2]One ground of appeal relates to the applicant’s submission that a named individual was suspected of having been involved in one of the offences. In order to avoid a substantial risk of prejudice to the fair trial of any proceedings against that man, the court has directed that no report of these proceedings may name him or include anything which may lead members of the public to identify him. We shall refer to him as “the suspect”. For clarity, “the suspect” is not Thalha Jubair, to whom we shall refer later in this judgment. The applicant:[3]The applicant is now aged 20. During the period covered by the charges in the indictment, he was aged 16 or 17.[4]In March 2021 he had pleaded guilty in the Youth Court to six offences contrary to s3(1) of the Computer Misuse Act 1990 (“the March 2021 convictions”). The offences, which involved hacking into the computer system of a company, MCProHosting, had been committed in 2020, when the applicant was aged 15. No issue as to fitness to plead had been raised at any stage of those proceedings before the Youth Court. Summary of the facts:[5]The prosecution alleged that the applicant was a leading figure in cyber offending carried out by a computer hacking group called Lapsus$.[6]The charges in the indictment alleged that, between July 2021 and February 2022, the group hacked into the computer systems of a number of large companies, including BT/EE and NVIDIA, blackmailed their victims by threatening to publish confidential material online, and made fraudulent use of the data which they had acquired (counts 1-7). In September 2022 the group hacked into the systems of Revolut, Uber and Rockstar Games (counts 8-11).[7]The applicant was first arrested on 24 January 2022. His mobile phones, laptops, USB sticks and SIM cards were seized from his home.[8]The applicant was again arrested on 30 March 2022. Items seized on this occasion included a new Samsung phone and laptop, and two more SIM cards.[9]The applicant was arrested for a third time on 22 September 2022, when an iPhone 13 Max Pro (“the iPhone 13”) was seized from him. It was the prosecution case that, moments before the police entered his room, he had been committing offences against Rockstar Games. He was later served with a notice under s49 of the Regulation of Investigatory Powers Act 2000 requiring him to disclose the PIN of the iPhone 13, but did not do so.[10]The applicant made no reply when interviewed under caution. The criminal proceedings:[11]The applicant was charged with the following offences: i) Counts 1, 3, 8 and 9: unauthorised act to impair the operation of a computer (s3(1) of the Computer Misuse Act 1990) ii) Counts 2, 7 and 11: blackmail (s21(1) of the Theft Act 1968) iii) Counts 4 and 6: fraud (s1 of the Fraud Act 2006) iv) Count 5: unauthorised modification of computer material (s3(1) of the Computer Misuse Act 1990) v) Count 10: securing unauthorised access to computer material with intent (s2(1)(b) of the Computer Misuse Act 1990) vi) Count 12: failing to comply with a s49 notice to disclose a key (s53 of the Regulation of Investigatory Powers Act 2000).[12]On counts 1, 2, 6, 7 the applicant was jointly charged with Thalha Jubair, a youth about a year younger than himself. Jubair is now an adult, and so is not entitled to anonymity. With the exception of count 12, all the other charges in the indictment alleged that the applicant had committed the offences together with Jubair or with others unknown.[13]On 22 June 2023, in the Crown Court at Southwark, HH Judge Patricia Lees heard evidence from three psychiatrists who had assessed the applicant. One of them, Dr Hindley, had previously prepared a report for sentencing purposes in relation to the March 2021 convictions. The psychiatrists were agreed on a diagnosis of autism and Attention Deficit Hyperactivity Disorder (“ADHD”). The judge found the applicant to be unfit to plead.[14]The proceedings against the applicant under s4A of the 1964 Act were heard together with the trial of Jubair.[15]The prosecution evidence comprised, in summary, the following: i) Evidence from “the company witnesses”: a spokesperson on behalf of each of the five companies which had been directly targeted by the cyber attacks. In the case of NVIDIA, the company’s Senior Director for Software Product Security, Mr Reber, gave evidence of his own knowledge and experience of the cyber attack, and produced exhibits including DR/15, a Threat Intelligence Report which contained details of the attack and material linking the attack to the Lapsus$ group. ii) Evidence from customers of BT/EE whose phones and online accounts had been hacked and from whose bank accounts money and cryptocurrency had been taken. iii) Evidence from computer servers located in the USA. iv) Evidence of online chats which the prosecution contended showed the applicant and others planning and executing their crimes. v) Evidence of the seizing from the applicant of devices said to have been used in the offending. vi) Evidence (in the form of agreed facts) of the March 2021 convictions. vii) Evidence that between March and September 2022 the applicant had been granted bail subject to conditions which included a prohibition on his possessing a smart phone, and that he had nonetheless been in possession of the iPhone 13 on 22 September 2022.[16]There were agreed facts as to the applicant’s diagnosis of autism and ADHD. They included the following:
“Autism is lifelong and immutable, and therefore Arion 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 Arion’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.”
[17]The applicant, being unfit to plead, did not give evidence.[18]The jury found that the applicant had done all the relevant acts and made the relevant omission.[19]The applicant was made subject to a hospital order pursuant to s37 of the Mental Health Act 1983, with a restriction order pursuant to s41 of that Act. The judge’s rulings: 1 - the applicant’s previous convictions:[20]Five days before the trial, the prosecution applied to adduce the March 2021 convictions as evidence that the applicant had a propensity to commit offences of a similar nature to those of which he was accused.[21]The defence opposed the application, on the grounds that: i) no adequate explanation had been given for the late notice of the application. ii) the March 2021 guilty pleas were unreliable: no consideration had been given at that time to the applicant’s fitness to plead, but the nature of his severe neurodevelopmental disorders is such that he was likely to have been unfit to plead. iii) the defence could not adduce evidence as to the context of those guilty pleas. iv) if the prosecution evidence were adduced, it may cause the jury to doubt whether the applicant really was unfit to plead in the present proceedings. v) a single conviction was unlikely to be capable of demonstrating a propensity. vi) bad character evidence should not be admitted to bolster a weak case.[22]The judge rejected those submissions. She noted that no application had been made to vacate the guilty pleas which resulted in the March 2021 convictions, and ruled that those convictions were capable of demonstrating a propensity to commit offences of a similar nature. The judge added that:
“The surrounding circumstances of the guilty pleas can also be admitted in evidence so that the jury are able to judge them in the light of it and ignore them if they are unsure of them.”

The judge’s rulings: 2 - the applicant’s bail conditions:

[23]The prosecution wished to adduce evidence of the bail condition, prohibiting the applicant from having a smart phone, to which the applicant was subject prior to his arrest on September 2022. It was submitted that the applicant’s possession of the iPhone 13, despite that condition, showed a deliberate flouting of the court’s order, which could assist the jury in deciding whether the applicant engaged in the hacking activity which was the subject of the charges. The defence objected. The judge ruled that the evidence was admissible. No written ruling or statement of reasons was given. The judge’s rulings: 3 - cross-examination about “the suspect”:[24]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.[25]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.[26]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”.[27]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.[28]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. 4. 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.”

The judge’s rulings: 4 - the NVIDIA threat intelligence report:

[29]The defence opposed the admission of exhibit DR/15 (see paragraph 15(i) above) on the ground that it contained screen shots from chat rooms, which were anonymous hearsay and did not come within the provisions of s117 of the Criminal Justice Act 2003.[30]The judge observed that the defence could not realistically dispute that the cyber attacks had taken place. The central issue for the jury was whether the prosecution could prove that either of the accused took part. The judge therefore accepted that the evidence of the company witnesses was crucial to the prosecution case, but held that it was not the sole or decisive evidence. She ruled that exhibit DR/15, and similar material exhibited by a prosecution witness who represented Uber, was admissible, for the following reasons.[31]First, the judge accepted the prosecution’s submission that the evidence was not hearsay: the company witnesses were authorised to speak as officers of the companies concerned, and they were entitled to give evidence both from their own knowledge of the relevant events and from the investigative work of other employees and the business records of the company.[32]In the alternative, if the evidence was hearsay, the judge ruled that it was admissible under s117 and/or s114 of the 2003 Act. As to the former, she adopted the six-step approach indicated in R v Riat and others [2012] EWCA Crim 1509. She held that the material comprised business records within the provisions of s117. She noted in particular that the evidence came from senior employees who had the responsibility of understanding and dealing with the immediate threat posed by the cyber attack; that there was no evidence that the response was made in contemplation of criminal proceedings; that s117 allows for multiple hearsay, and does not require the court to be satisfied as to the identity of the maker; and that there was material to enable the jury to assess the reliability of the evidence.[33]As to the latter, the judge ruled that the evidence was in any event admissible in the interests of justice pursuant to s114: the probative value of the evidence was high; it was fundamental to the presentation and understanding of the case; the circumstances in which the statements were made were not such as to cause the contents to be unreliable; and the company witnesses could be cross-examined about the underlying material.[34]Finally, the judge ruled that the admission of the evidence would not cause such unfairness that it should be excluded. The grounds of appeal:[35]The applicant initially put forward eight grounds of appeal. All were rejected by the single judge. Four are no longer pursued, and we need say no more about them. The grounds which have been renewed to the full court challenge the judge’s rulings summarised in paragraphs 23-34 above. They are: i) The judge was wrong to rule that the prosecution could adduce evidence of the March 2021 convictions. ii) The judge was wrong to rule that the prosecution could adduce evidence of the applicant’s bail conditions. iii) The judge was wrong to prohibit the defence from cross-examining the officer in the case about “the suspect”. iv) The judge was wrong to rule that the prosecution could adduce exhibit DR/15 in its entirety. The submissions to this court:[36]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.[37]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.[38]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.[39]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.[40]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.[41]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.[42]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.[43]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.[44]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”.[45]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).[46]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.[47]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.[48]We are grateful to all counsel for their written and oral submissions. Analysis:[49]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.[50]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.[51]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.[52]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.[53]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.[54]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.[55]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.[56]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][57]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.[58]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.[59]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.[60]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.[61]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.[62]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.[63]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. Conclusion on grounds of appeal:[64]For the reasons we have given we refuse the renewed application for leave to appeal on grounds 2, 3 and 4. We grant leave to appeal on ground 1 alone, but we dismiss the appeal against the jury’s findings that the applicant did the relevant acts and made the relevant omission. Persons found unfit to plead: representation and funding on appeal:[65]We turn finally to issues which this case has raised as to representation and funding in relation to appeals by persons who have been found unfit to plead, and found to have done a relevant act or made a relevant omission.[66]Where a court has determined that an accused person is unfit to plead, s4A(2) of the Criminal Procedure (Insanity) Act 1964 requires that a jury must determine whether he did the act or made the omission charged against him as the offence. That determination must be made “(a) on the evidence (if any) already given in the trial; and (b) on such evidence as may be adduced or further adduced by the prosecution, or adduced by a person appointed by the court under this section to put the case for the defence”.[67]By Crim PR 25.10(3):
“Where the court determines that the defendant is not fit to be tried – (a) the court must exercise its power to appoint a person to put the case for the defence, taking account of all the circumstances and in particular – (i) the willingness and suitability (including the qualifications and experience of that person), (ii) the nature and complexity of the case, (iii) any advantage of continuity of representation, and (d) the defendant’s wishes and needs …”
In the present case, Mr Miller and Mr Archer were so appointed.[68]Purely for convenience, we shall refer to the person who has been found unfit to plead as “the accused”, and to the person(s) appointed to put the case for the accused as “the representatives”.[69]By s15 of the Criminal Appeal Act 1968, the accused may (with leave) appeal against a finding that he did the act or made the omission charged against him. Provisions as to the powers of this court on hearing such an appeal are contained in s16.[70]However, since the accused is unfit to plead, it follows inescapably that he or she must also be unfit to act in person to commence or conduct an appeal, and equally unfit to give instructions to fresh legal representatives. Any appeal must be brought on his or her behalf by the representatives: see R v Roberts [2019] EWCA Crim 1270 at [34] and [35].[71]In R v Antoine [1999] 2 Cr App R 225 this court held, at p237, that counsel who had been appointed by the court to put the case for the accused in the Crown Court has authority to settle and give notice of appeal, and to argue the appeal, on his behalf. It follows that it is the professional duty of counsel so appointed to consider whether there are arguable grounds for appealing against an adverse determination by the jury, notwithstanding that the accused, being unfit, cannot give binding instructions in that regard.[72]Neither the proceedings in the Crown Court under s4A of the 1964 Act, nor an appeal to this court under s15 of the 1968 Act, are “criminal proceedings”. They are therefore not covered by the provisions as to public funding which apply to legal representation in a criminal trial. The Registrar cannot grant a representation order, as she can do in an appeal against conviction pursuant to s1 of the 1968 Act.[73]However, by s19(3)(d) of the Prosecution of Offences Act 1985, as amended, the Lord Chancellor is empowered to make regulations providing for “the payment out of central funds … of such sums as appear to the court to be reasonably necessary to cover the proper fee or costs of a person appointed by the Crown Court under section 4A of the Criminal Procedure (Insanity) Act 1964 to put the case for the defence”.[74]By regulations 13A-13C of the Costs in Criminal Cases (General) Regulations 1986, Part III of those Regulations (“Costs out of Central Funds”) applies, with appropriate modifications, to the determination of the proper fee. No specific reference is made, in those provisions, to proceedings before this court; but in Antoine, at p237, this court confirmed that s19 of the 1985 Act, and the regulations made thereunder, apply to an appeal under s15 of the 1968 Act.[75]Where an order for costs out of central funds is made in proceedings before this court, the appropriate authority to determine the proper amount is the Registrar, who may appoint determining officers to act on her behalf: see regulation 5(2)(a) and (3).[76]The effect of these provisions, in a case in which notice of appeal under s15 of the 1968 Act is given, and the single judge grants leave to appeal, is that the representatives will prepare and present the appeal on behalf of the accused, and will in the ordinary way be remunerated (whatever the outcome of the appeal) by an order for costs out of central funds.[77]What, however, is the position of the representatives if the single judge refuses leave to appeal? The accused may well wish the application for leave to appeal to be renewed to the full court, but he or she remains unable to give any binding instructions. Do the representatives have authority either to renew or not to renew all or any of the grounds of appeal to the full court? If they renew, what funding (if any) is available? If they do not renew, does the accused have any right to renew as a litigant in person or to appoint fresh legal representatives?[78]We have received helpful submissions from counsel on these questions.[79]In Roberts, at [39], this court held that if the representatives consider that there is no arguable ground of appeal, there can be no valid appeal by the accused. At [40] and following, the court helpfully outlined the appropriate course to be taken if the accused attempted to make an application in person for leave to appeal: in summary, the papers should be referred to a single judge; and if the single judge considered there may be arguable grounds of appeal, fresh counsel could be appointed to settle any appropriate grounds and to present the appeal if leave were granted.[80]The circumstances in Roberts were that the representatives had advised that there were no arguable grounds for an appeal under s15 of the 1968 Act. The accused purported to file grounds of his own composition. His application for leave to appeal was refused by the single judge. The accused purported to renew his application to the full court. The court held, at [32], that the accused was not competent to do so. Counsel had, however, been appointed to represent the interest of the accused, and argued grounds of appeal. The court concluded that there was no arguable ground, and therefore refused the renewed application for leave to appeal. The court, following Antoine, nonetheless made an order that counsel’s costs be paid out of central funds.[81]The procedural history of the present case is somewhat different. We are, however, satisfied that the principles underlying the decision in Roberts apply equally to this case.[82]As we have noted, the single judge rejected all the original grounds of appeal. The applicant himself, acting in person, purported to renew the application to the full court. By error, that application was accepted by the Criminal Appeal Office: as indicated in paragraph 80 above, Roberts makes clear that the applicant was not competent to act in person. An appeal can only be brought through the representatives.[83]The representatives were then asked whether they would act on behalf of the applicant at the hearing before the full court. By a further error, the Registrar purported to grant a defendant’s costs order (under s16 of the Prosecution of Offences Act 1985) to remunerate counsel from central funds for confirming to the Registrar whether the application for leave would be renewed, and for explaining the position to the applicant. The Registrar does not have the power to appoint a person to present the case on behalf of the accused.[84]Those errors are regretted, but nothing turns on them.[85]Renewed applications for leave to appeal are often considered by the full court on the papers. The representatives, understandably in the circumstances, took the view that they should continue to present the case for the applicant, and were willing to do so pro bono. They have made their submissions on the four renewed grounds which we have considered earlier in this judgment. They invite us to order that their costs be paid out of central funds. In support of that invitation, they submit that the case in the Crown Court was unusually complex, and that this court would have been disadvantaged if it had had to consider the grounds of appeal without oral submissions on both sides. Analysis:[86]Representatives appointed to put the case for the accused in the Crown Court have authority to act on behalf of the accused in relation to an appeal, and may on that basis seek the leave of the single judge to appeal on grounds considered to be arguable. If leave to appeal is refused by the single judge, that authority extends to renewing the application to the full court. In such a situation (and in contrast to the position if the representatives do not think it proper to renew the application: see paragraph 79 above), no fresh appointment by the court is necessary: the renewal of an application for leave to appeal, where counsel thinks it proper, comes within the authority conferred by the appointment in the Crown Court.[87]If the full court grants leave to appeal, as we have done on one ground in this case, then it will usually be appropriate for the court to make an order for the payment out of central funds of the sum reasonably necessary to cover the proper fee of counsel, in relation to any ground on which leave is given. The procedure to be followed in applying for such a payment is explained in Crim PR 45.4.[88]If the full court refuses leave to appeal, it still has the power to award costs out of central funds: see R v Grey [2023] EWCA Crim 1285, at [3]. Grey was a renewed application for leave to appeal against the making of a hospital order. At [4], the court said:
“We think that the principles governing what may be described as ‘standard’ applications for leave to appeal to this court should also apply to applications made under section 16A of the Criminal Appeal Act 1968, namely where the Crown Court has made a hospital order. The practice of this court in cases where section 11(1) applies (ie, in cases where leave is required in relation to proposed appeals against conviction and/or sentence) is not to award costs out of central fund in the normal or ordinary course. Some particular reason is required …”
[89]In our view, the same approach should be applied in a case where the representatives renew an application for leave to appeal on behalf of the accused, but the full court refuses the application. We are conscious that the practical consequence is that an accused will only be able to renew an application for leave to appeal to the full court if the representatives are not only satisfied that there are grounds which merit renewal, but are also prepared to act pro bono in the knowledge that, if the renewed application is refused, good reason will have to be shown why an order should be made for the payment of their costs.[90]Returning to the present case, we take the view that ground 1, on which we have granted leave, was the principal ground of appeal and the main part of counsel’s argument. In our judgement, an appropriate sum should be paid from central funds to remunerate both Mr Miller and Mr Archer for their work in preparing and presenting that ground of appeal. Grateful though we are for their assistance, we are not persuaded that any sufficient reason has been shown why they should be remunerated for presenting the grounds of appeal which we have held to be unarguable. Conclusion on costs:[91]We accordingly order the payment out of central funds of the amount which is reasonably sufficient to compensate the representatives for their work in preparing and presenting ground 1. We direct the assessment of that amount by the Registrar, who will no doubt appoint a determining officer. We further direct that the representatives must provide the Registrar with the written particulars required by Crim PR 45.4(5).