Arion Kurtaj v R

Previous convictions may show propensity under sections 101(1)(d) and 103(1)(a) of the Criminal Justice Act 2003, but fairness may require their exclusion where the jury has no proper basis to assess the reliability of earlier guilty pleas, particularly when agreed facts establish a lifelong condition relevant to fitness to plead. An erroneous admission will not make findings unsafe where the convictions were only additional support to a very strong case. Deliberate breach of a bail condition may be relevant to whether an accused did the acts and acted intentionally or recklessly. Chatroom material adduced for its truth is hearsay, but may be admitted under sections 117 or 114 of the 2003 Act. An unfit accused must appeal through appointed representatives, whose authority may extend to renewing an application for leave.

The applicant was charged with twelve hacking-related offences committed when he was aged 16 or 17. He was found unfit to plead under section 4A of the Criminal Procedure (Insanity) Act 1964, and a jury found that he had done the relevant acts and made the relevant omission.

He renewed an application for leave to appeal against four evidential rulings concerning previous convictions, breach of a bail condition, cross-examination about another possible participant, and chatroom material in a threat intelligence report. The appeal also raised questions about representation and funding for appeals by persons found unfit to plead.

Disposition. Leave to appeal was granted on ground 1 alone. Leave was refused on grounds 2, 3 and 4. The appeal against the findings that the applicant had done the relevant acts and made the relevant omission was dismissed.

1. Previous convictions for a recent course of similar hacking and related offences were capable of showing propensity under sections 101(1)(d) and 103(1)(a) of the Criminal Justice Act 2003. However, the convictions should have been excluded for fairness under section 101(3) of that Act and/or section 78 of the Police and Criminal Evidence Act 1984. There had been no contemporary assessment of fitness to plead, while agreed facts admitted under section 10(1) of the Criminal Justice Act 1967 conclusively established lifelong and immutable difficulties. The jury therefore had no proper basis to assess the reliability of the earlier pleas. The error did not make the findings unsafe because the prosecution evidence was very strong and the convictions were only additional support.
2. Evidence that the applicant deliberately possessed a smartphone in breach of bail was relevant both to whether he had done the alleged acts and to whether he had acted intentionally or recklessly, including on charges requiring specific intention.
3. Cross-examination about the suspect was properly excluded. The suspect was linked to a different eSIM transaction, residence in the same county supplied no evidential link, and the proposed line would invite speculation.
4. The chatroom comments were at least partly adduced for the truth of their contents and were therefore hearsay. Although the judge was wrong to treat them primarily as non-hearsay, the alternative ruling was correct. The evidence was admissible under section 117 or section 114 of the 2003 Act, applying the reasons associated with the six-step approach in R v Riat and others [2012] EWCA Crim 1509.
5. An accused found unfit to plead is also unfit to act in person in commencing or conducting an appeal or instructing fresh representatives. The appeal must be brought through the representatives appointed to put the defence case. Following R v Roberts [2019] EWCA Crim 1270 and R v Antoine [1999] 2 Cr App R 225, those representatives may seek leave and renew a refused application before the full court where they consider renewal proper. No fresh appointment is required.
6. Proceedings under section 4A of the 1964 Act and an appeal under section 15 of the Criminal Appeal Act 1968 are not criminal proceedings for ordinary public-funding purposes. The central-funds regime under section 19(3)(d) of the Prosecution of Offences Act 1985 and the Costs in Criminal Cases (General) Regulations 1986 applies. Where leave is granted, payment will usually be ordered for work on the successful ground. Where leave is refused, costs remain discretionary and a particular reason is generally required, applying R v Grey [2023] EWCA Crim 1285. Costs were ordered only for ground 1, with assessment by the Registrar.

1. Court of Appeal (Criminal Division) — On the renewed application, leave was granted on ground 1 and refused on grounds 2, 3 and 4. The appeal was dismissed. The court also gave guidance on representation and central-funds costs.
2. Crown Court at Southwark — HH Judge Lees found the applicant unfit to plead under section 4A of the Criminal Procedure (Insanity) Act 1964. A jury found that he had done the relevant acts and made the relevant omission.