R v Erlind Demiraj

On 24 August 2023, in the Crown Court at Reading (before Her Honour Judge Heather Norton and a jury), the Applicant (then aged 32) was convicted of one count of conspiracy to blackmail (Count 1) and one count of conspiracy to kidnap (Count 2).

On 12 December 2023, before the same judge, the Applicant was sentenced to 14 years imprisonment on Count 2, 11 years imprisonment concurrent on Count 1, and a consecutive sentence of 2 years imprisonment on an additional count of perverting the course of justice that did not form part of the trial. A total sentence of 16 years’ imprisonment.

Co-accused Gerson Lala pleaded guilty to Counts 1 and 2 (thereby establishing the existence of the conspiracies). He further pleaded guilty to Count 3 (false imprisonment), Count 4 (false imprisonment) and Count 5 (assault occasioning actual bodily harm). A further count of threatening with an imitation firearm was left to lie on file. He was sentenced to 12 years imprisonment.

Co-accused Gevin Pasha was convicted of Counts 1 to 5 and sentenced to a total of 11 years imprisonment. Co-accused Klej Doci was convicted of Counts 2, 3 and 4 (being acquitted of Count 5) and he was sentenced to a total of 5 years detention in a Young Offender Institution. A further co-accused Gentjan Kica was acquitted of Count 1.

The Applicant renews his application for an extension of time (288 days) for leave to appeal against conviction following a refusal by the single judge (Mrs Justice Jefford DBE).

In the extension of time reasons, it is stated that the delay was due to counsel’s very difficult family circumstances and his junior also suffering difficult circumstances. It is stressed that none of the delay was attributable to the Applicant. We would only observe at the outset that the application was out of time even by the time of sentence, when there were no suggested difficulties.

The renewed application raises a somewhat unusual ground of appeal; it being alleged that the Judge gave contradictory directions in relation to “truth” and in directing the jury that they were not in court to “discover the truth”.

Turning to the facts of the alleged offending. The allegations surround the alleged kidnapping of Mr Shazaib Khan (“Mr Khan”) and Mr Cheslyn Nys, and alleged blackmail of Mr Khan and his parents Ms Shanaz Khan and Mr Haider Kayani.

In this regard, on 8 December 2021 Mr Khan’s parents were growing concerned as they were unable to contact their son for some time. Ms Khan asked Mr Kayani to call the Applicant, a known associate of Mr Khan. He did so, and he was told that the Applicant had kidnapped their son and that he would be released for £45,000. The call was partially recorded by Ms Khan. Following the call, and increasingly concerned, they contacted the police.

At 8.30am on 13 December 2021 armed police forcibly entered Flat 2, 32 Hunter Street, Northampton. They found the co-accused Pasha resisting their attempts to enter, and having detained him, found Mr Khan and Mr Nys in a utility room area. There was bedding on the floor. Both Mr Khan and Mr Nys were taken to hospital. Mr Nys was found to be dehydrated. Mr Khan had a number of bruises and other superficial wounds. Both were treated and discharged.

Mr Khan’s parents informed the police that they had been giving money to the Applicant and his associates through October and November 2021.

The Prosecution case was that Mr Khan owed a drug debt to the Applicant and his group. The Applicant was the ringleader of a conspiracy that set out to secure the money. He agreed, with the co-accused, to blackmail Mr Khan and his parents, at first by using threats to the safety of him, his family and the family home, and ultimately through kidnapping and threatening to harm Mr Khan (Count 1), the agreement to kidnap Mr Khan forming a separate conspiracy (Count 2, excluding co-accused Kica). The co-accused Lala, Doci, and Pasha jointly detained Mr Khan and Mr Nys (Counts 3 and 4) and assaulted Mr Khan causing injury (Count 5).

To prove the case, the Prosecution relied on the ABE interview and statements from Mr Khan. This covered evidence giving the motive, and tying the Applicant and co-accused to the threats, the kidnap and detention, and indicated their common purpose. The debt, which Mr Khan explained was a drug-related debt owed by a friend to the Applicant, who he knew as ‘Big Man’ or ‘Kafu’, was transferred to Mr Khan when his friend fled the country. The debt was initially serviced by him doing jobs for the Applicant, but when Mr Khan refused to work as the debt was not being reduced, interest was added until the debt was around £100,000. Mr Khan received threats from the Applicant in the presence of the co-accused Kica.

Mr Khan was previously kidnapped and driven to a flat by the co-accused Lala and, on instructions issued by the Applicant by phone, threatened with being burned. He had been transported to the flat in a blue Audi with what was described as a strange number plate. Mr Khan was then again kidnapped, this time from a location where he had frequently met the Applicant, and where he was told by a third party he would meet the Applicant.

The prosecution also relied upon his account of the kidnap, detention and assault at the hands of three males, and the identification procedures where he picked out the co-accused Pasha, Doci, and Lala as the individuals involved in his kidnapping and detention.

The Prosecution also relied upon the statements of Ms Khan and Mr Kayani, establishing the demands made by the Applicant and the involvement of his associates. These covered visits, threats, and demands issued by the Applicant who called himself Kafu or ‘Big Man’ and his associates, in particular an incident on 17 September 2021 where threats were issued to burn down the house, as well as the contact from the Applicant and the demands made in the course of the abduction of Mr Khan and the identification procedures. In this regard Ms Khan picked out the co-accused Lala as getting a petrol can from a car during the arson threat on 17 September 2021, and Mr Kayani who picked out Lala as the one getting a petrol can during the threat of 17 September 2021 and the co-accused Kica as a person who accompanied ‘Big Man’ when attending their address in September and October 2021.

The Prosecution also relied on the evidence of the cars used and movements of the co-accused, which corroborated the accounts of the complainants. In this regard Mr Kayani stated that Kafu had attended the family home in a black BMW X5 with a personalised plate, the Applicant owning a black BMW X5 with the personal numberplate K44 AFU. Mr Khan stated that he was taken in a blue Audi with a “funny plate” in the earlier kidnapping, and there were photographs taken by Ms Khan outside her address of people involved in issuing the demands showing two Audis YG21 ZHP and ESZ 4533 (the latter being, it will be seen, a distinctive dateless numberplate). There was evidence that YG21 ZHP was hired by the co-accusedKica and the blue Audi ESZ 4533 was hired by the co-accused Doci. There was cell site information that put the Applicant and the co-accused Lala, Pasha and Kica near the address on the same day, 16 September 2021. There was also an account from Ms Khan and Mr Kayani that an Audi was used by the Applicant and Lala when the arson threat was issued on 17 September 2021, along with ANPR evidence that the Audi ESZ 4533 moved towards the location along with cell site information that put the Applicant and the co-accused Lala in the area.

The Prosecution also relied on messages between the Applicant and the co-accused which indicated knowledge and participation and with timings that corroborate the evidence of the complainants, as well as transactions from Mr Khan and his family members to the Applicant and his associates corroborating the accounts of the complainants.

In respect of the Applicant, the Prosecution also relied upon his bad character, indicating a propensity to use threats to secure money, as well as inferences that might be drawn from the Applicant’s failure to give evidence.

Mr Khan, Ms Khan, and Mr Kayani did not give oral evidence due to fear. Their evidence was admitted under the provisions of s.116 Criminal Justice Act 2003 due to fear on their part.

The Defence case was that the Crown could not prove the allegations. The key witnesses could not be cross-examined, so limiting the Jury’s ability to assess the truth. Mr Khan was clearly unreliable; a person involved in criminality who gave three different accounts as to how the debt arose, including in his defence statement for an ongoing drug prosecution. His parents, likewise, were selective in their evidence. Counsel highlighted that in one of the recorded calls to Mr Khan’s parents, the Applicant stated he was trying to help them, and this was not challenged or remarked upon at the time, the implication being that he was not involved in the kidnapping. In short it was submitted that there were too many unanswered questions for the jury to be sure of guilt. As we have foreshadowed, the Applicant did not give evidence.

The issue for the jury was whether the Applicant had entered into an agreement with the co-accused to blackmail Mr Khan and his parents, and to kidnap Mr Khan.

Turning to the hearsay application in a little more detail. Counsel for the Prosecution applied for the statements of the complainants Mr Khan, Ms Khan, and Mr Kayani to be admitted as evidence under the hearsay provisions, as they refused to give evidence out of fear (s.116(2)(e) Criminal Justice Act 2003).

Counsel for the Defence submittedthat the evidence did not demonstrate fear. Further the Applicant’s counsel specifically submitted that Mr Khan was reluctant to give evidence as he would be cross examined and this would expose his lies. His account lacked credibility and reliability in the light of the material inconsistencies and implausibility of elements within it, its inconsistency with what he told his parents and in his own defence case statement for alleged possession with intent to supply drugs, and in light of his ongoing prosecution which itself revealed serious criminal involvement and a motive to lie.

The Judge ruled that having read the evidence, and read evidence of police attendance with the complainants, and questioned the three complainants in a voir dire, their statements would be admitted. In respect of Ms Khan and Mr Kayani, they confirmed the truth of their statements and explained their reason for refusing to give evidence. The Judge was satisfied that they were in fear. It was in the interests of justice for the statements to be admitted. It was important evidence and its reliability could be tested with independent evidence, including CCTV, recordings, and financial transactions.

In respect of Mr Khan, the Judge noted that the assessment was harder both due to a lack of timely and detailed information about the defendants’ cases but also by delay in sharing information about the alleged criminality of Mr Khan by the Prosecution. The Judge noted that while the defence had suggested Mr Khan’s reluctance was due to avoiding cross- examination on his lies, fear need not be the only reason for refusal, just a substantive one. Having considered the material, the Judge found the principal reason for refusing to give evidence was fear.

Mr Khan was a decisive but not a sole witness. As with his parents, there was substantial independent evidence to test the account and for the Defence to advance their points regarding his inconsistency, allowing the Jury to come to a proper assessment. No party sought exclusion of evidence under s.126 Criminal Justice Act 2003. The Judge considered whether any of the accounts should be excluded under s.76 Police and Criminal Evidence Act 1984 and concluded in light of the supporting evidence and the safeguards that could be put in place that it should not.

It is important to note that the Judge’s rulings and the admission of the hearsay evidence is not challenged as part of the grounds of appeal.

There is a single ground of appeal, which is renewed following refusal by the single judge, which is that the Judge gave inconsistent and confusing instructions to the jury. The Judge stated that it was not the role of the jury to establish truth, and yet went on to give a number of what are characterised as confusing directions conflicting with this, including:

Mr Maguire, on behalf of the Applicant, for whom we are grateful for his written and oral submissions, refers to the following passage from the Judge’s summing-up about the significance of “truth” which he submits contradicts other parts of the summing-up in relation to “truth” and which he says was inappropriate in such circumstances:

“It may surprise you to learn that you are not actually here to discover what the truth is; that’s not actually your job. You are here to decide whether you are sure that each defendant is guilty of the charge or charges that he faces. That’s your job. You’re not detectives. You’re not here actually to discover what the truth is. In many criminal trials the truth is never actually known. You’re here to decide whether or not you are sure that the defendants are guilty.”

Like the single judge before us, we do not consider that there was anything inappropriate about this observation from the Judge, which was perfectly comprehensible, and simply emphasising that the role of the jury was to decide whether they were satisfied, so that they were sure, on each count that each defendant was guilty of the count or counts they faced. It was not their role to embark on some quest to discover what the truth was, in a wider sense, in relation to all factual matters before them, just as it was not their role to speculate on what evidence there might have been that there had not been, or to speculate as to the motives of those who were involved.

We can see no inconsistency between that passage and the various directions that the Judge properly gave in relation to whether they were satisfied or not as to whether a particular witness was telling the truth or the like. Whether or not a particular witness is telling the truth is a different matter, and any juror would have appreciated that distinction.

The further complaint about what the Judge said arises out of counsel referring in their closing speech to the well-known view adopted by John Henry Wigmore regarding the value of cross-examination, that “cross-examination is the greatest legal engine ever invented for the discovery of truth”. This led the Judge to observe as follows:

“When commenting on the fact that they have not been able to cross-examine Shahzaib Khan and his parents, more than one advocate referred to the first part of a famous quote by a man called John Henry Wigmore, who stated that ‘cross-examination is the greatest legal engine ever invented for the discovery of truth.’

…

‘Well, John Wigmore was American, which may explain why he also thought that cross-examination, not trial by jury, was the greatest permanent contribution of the Anglo-American system of law to improve methods of trial procedure. You, as members of the jury, may disagree with that. I think that trial by jury is in fact the greatest and most important contribution, but there it is.’

We do not consider that this observation was inappropriate or would have been misunderstood by members of the jury, or in any way undermined the submissions made by the Defence. The Judge properly directed the jury in relation to the hearsay evidence and the difficulties that this caused the Defence, and this observation did not distract from that. It was merely an observation by the Judge as to the relative contribution made by trial by jury and cross-examination to improve methods of trial procedure. This in no way undermined the direction given by the Judge or the submissions made by counsel.

Equally we can see no relevance as to what the Judge said about truth in her hearsay ruling not least given that this was not before the jury in any event.

We agree with what was said by the single judge in refusing the application:

“1.

Your application for leave to appeal turns solely on an alleged inconsistency between remarks made by the Judge to the Jury about their role in ascertaining or otherwise the truth and other remarks about the truth which you appear to suggest will have misled or confused the Jury to the extent that your conviction is unsafe. This takes the Judge’s comments wholly out of context. There was extensive evidence against you and there is nothing unsafe in your conviction.

2.

You do not seek leave to appeal on the basis of any challenge to the Judge’s decision to admit the hearsay evidence of 3 witnesses, including your victim. It follows that those witnesses could not be cross-examined and that in itself cannot give raise to any unfairness or ground of appeal. Further, the Judge gave the Jury proper directions in relation to hearsay evidence which you do not, and could not, criticise.

3.

The Judge gave the Jury clear written legal directions which you also do not and could not criticise and which set out for the jury their function and the approach they should take to that function. She summed up to the Jury (i) what the defendants said they would have wanted to put to the witnesses whose evidence was admitted as hearsay if they had given evidence and (ii) matters going to credibility. She directed the jury as to the approach they should take analysing the evidence to reach logical conclusions of fact.

4.

The comments you complain about were made against that background and in the particular context of proper directions that the conclusions that the Jury drew from the facts were matters for them and that they did not need to decide every point but only those that were material to the defendants’ guilt. Nothing in the Judge’s comments about a quotation your counsel had relied upon in their speech to the Jury was misleading or confusing or could have led to your conviction being unsafe.”

In the above circumstances, we do not consider that the Judge misdirected the jury in relation to truth in any of the respects alleged, still less do we consider that the convictions are arguably unsafe as a consequence of the matters that are raised.

Accordingly, the application for an extension of time and renewed application to appeal against conviction are refused.