R v Dean Xhediku

This is an appeal against conviction brought with the leave of the single judge. There are two grounds of appeal in respect of which leave to appeal was granted, and we shall come to the details of those below.

The basis of the appeal broadly is the way in which a previous conviction of the appellant was dealt with at his trial and the directions that were given in this respect to the jury.

Following a trial in the Crown Court at Lewes, before Mr Recorder Brock and a jury, on 28 February 2024 the appellant was convicted of two counts. They were: count 1, possession with intent to supply a drug of Class A, namely cocaine; and count 2, possession with intent to supply a drug of Class A, namely MDMA.

A plea of guilty was accepted upon re-arraignment at the beginning of the trial on a further count. That was a count originally of supply, but the prosecution accepted a plea of guilty to simple possession, in relation to cannabis.

There was a fourth count, which was one of driving whilst disqualified, in respect of which the appellant also pleaded guilty.

On each of the two counts upon which he was convicted, the appellant was sentenced to concurrent terms, the first of four years six months' imprisonment, and the second of four years' imprisonment. Thus, the overall sentence was one of four years and six months' imprisonment.

The usual forfeiture and destruction orders in respect of the drugs were also made. In respect of the driving offence, the appellant was sentenced to a total period of disqualification of 45 months, which was made up of an 18 month disqualification, together with an extension period under section 35A of the Road Traffic Offenders Act 1988 of 27 months to reflect the time he would spend in custody.

At approximately 11.20 pm on 28 August 2023, police officers stopped the appellant who was driving a Vauxhall Corsa, which was heading eastbound on the Old Shoreham Road in Hove, near Brighton. The appellant was the driver and sole occupant of the vehicle. There was a strong smell of cannabis coming from the vehicle and so the appellant was asked when he had last used cannabis, to which he replied "Today". When he was asked if there were any drugs in the vehicle, he told the police officers that there was cocaine and cannabis in the back of the vehicle for his own personal use. When asked who the vehicle belonged to, he said that it belonged to a friend and that he was not insured to drive it.

The vehicle was searched and a box containing cannabis, cocaine and MDMA was found in the glove compartment. Police officers also found some synthetic cannabis in zip style bags, three mobile telephones, two of which were still sealed within their boxes. All of the items were seized. The appellant was arrested and taken to the police station in Brighton

In total, there were two bags of cannabis which weighed about five grams each; 15 small bags of cocaine, which weighed about 15 grams in total; three larger bags of cocaine, which weighed about seven grams in total; five small bags of MDMA, which weighed about 7 grams in total; and three further bags of cannabis in small bags, each of which weighed about three and a half grams.

It was established that the appellant did not have any insurance to be driving the vehicle and that he was already disqualified from driving. That disqualification period was to run from September 2021 to December 2023.

The appellant answered "No comment" to all questions when interviewed by the police, except for those in relation to the driving disqualification when he said that he was unaware that he had been disqualified and had never received any paperwork in respect of it.

The subject matter of this appeal arises in respect of a previous conviction that the appellant had. In 2021 he had pleaded guilty to one count of possession with intent to supply Class A drugs – in other words, the same offence with which he was charged on this occasion under count 1 and count 2.

A Newton hearing had been held on that previous occasion to determine whether the supply of drugs to which he had pleaded guilty was social supply, or supply on a commercial basis. The Recorder conducting that Newton hearing found for the purposes of sentencing that the supply was commercial. He therefore sentenced on that basis. This finding was not accepted by the appellant who disputed it.

In the trial for the instant offences, the prosecution wished to adduce in evidence the appellant's previous conviction under section 101(1)(d) of the Criminal Justice Act 2003. That application was not opposed. The appellant gave evidence in his own defence. He said that in relation to his previous conviction that those drugs were for social supply.

Prosecution counsel then applied to adduce in evidence the conclusion from the Newton hearing that the drugs were for commercial supply. That was allowed by way of an agreed fact.

The facts underlying that previous conviction – in other words, whether the supply was social or commercial – were therefore in issue between the prosecution and the defence in the instant trial as a fact. It is the way in which the jury were directed on this point that gives rise to the issues on this appeal.

The Recorder accepted the prosecution's submission that the burden rested on the defence to prove, on the balance of probabilities, that the previous conviction had involved social supply. In other words, the defence bore both the burden and standard of proof, albeit to the lower civil standard, on that disputed fact.

The defence maintained – although this point was not accepted by the Recorder who conducted the trial – that it was for the prosecution to prove, beyond reasonable doubt, that the previous conviction had involved commercial supply.

The Recorder gave a ruling on this which we have summarised as his accepting the prosecution analysis on this point.

The jury were therefore directed in the following way:

As a summary, having read out that part of the summing up – and this is accepted by the Crown – the jury were directed that the burden of proof rested upon the appellant in respect of that fact in issue relating to the previous conviction. The Recorder directed them that the standard that they should apply when considering that burden of proof was the lower balance of probabilities, but he still directed them that the defence bore the burden of demonstrating that fact to the jury's satisfaction to the lower standard.

There are two grounds of appeal. They are expressed as follows. The first ground is that the learned Recorder erred in ruling admissible the finding of a previous judge for the purposes of sentencing that the supply intended was not social but commercial. The second ground is that the learned Recorder erred in directing the jury that it was for the appellant to prove that the learned judge in the previous case was wrong and that the appellant's intention was on that previous occasion social as opposed to commercial supply.

We have had the benefit of a Respondent's Notice from the prosecution, settled by Mr Attenborough who appeared before us, as he did below. The submissions of law within that document follow the broad direction adopted before the Recorder which led to this situation. Mr Attenborough contends in particular in respect of what we consider to be the main point on this appeal, namely the burden and standard of proof under ground 2 and the way that the jury were directed on this matter, that section 74 of the Police and Criminal Evidence Act 1984 and section 75 not only justifies but requires the approach identified by him and adopted by the Recorder at the trial.

We are grateful both to Mr Attenborough for his helpful submissions and also to Dr O'Shea, who appears for the appellant. To explain further the point contended for by the respondent, it is submitted that section 74(3) of the Police and Criminal Evidence Act 1984 provides:

Section 75(1) of the Police and Criminal Evidence Act 1984 provides:

In R v Ainscough [2006] EWCA Crim 694, at [19], the court observed as follows:

We quote a passage from the Respondent's Notice which summarises Mr Attenborough's position:

We will refer to two further authorities in slightly more detail. The first is R v Humphries [2005] EWCA Crim 2030, which was referred to in the judgment of Ainscough, in which the Lord Chief Justice said as follows:

There are a number of formidable legal difficulties facing Mr Attenborough for the prosecution in resisting in particular ground 2 of the grounds of appeal and they are as follows.

Firstly, it is the most basic of principles that in a criminal trial the prosecution bears the burden of proof of disputed of facts, and the standard that must be satisfied is beyond reasonable doubt, which is usually referred to as the criminal standard. In more modern language, they must be satisfied that they are sure. This is also the case on a number of defences too. So, for example, in a case of the use of unlawful violence where the defendant relies on self-defence, the burden remains upon the prosecution on that point. That means that the jury have to be sure that the defendant did not believe that he or another was under attack or about to be attacked before they are entitled to discount the defence. Unless they are so sure, they then go on to consider the next limb of self defence. The defendant is given the benefit of the doubt.

We rely also on paragraph 21 in the case of R v Labinjo-Halcrow [2020] EWCA Crim 951, a judgment of Macur LJ. That case concerned non-defendant bad character evidence, where the issue was self defence. At [21], in relation to the direction in that case which was wrong in law, Macur LJ said that that direction had transferred the evidential burden back to the defence, and it was made clear that the burden of proving disputed facts is always upon the prosecution.

Similarly in R v Kordansinki [2006] EWCA Crim 2984, a judgment of May LJ, which concerns foreign convictions, it is also made clear, at [72], that it is the prosecution that bear the burden of proving the facts upon which they rely.

Here, Mr Attenborough relies upon the terms of the statute, namely the Police and Criminal Evidence Act, to justify his arguments. However, here the dispute was about a finding in the Newton hearing and none of the items listed in section 75(b) of that Act, namely the information, complaint, indictment or charge sheet, is relevant. That section uses the expression "without prejudice to the reception of any other admissible evidence". Here the findings of the judge on the Newton hearing, if they were admissible, would fall into that general category, and not the provisions of section 75. Subsection (a) of that section makes it clear that it is "evidence of the conviction" that is the subject of the subsection. Here there was no dispute about the conviction. That was adduced before the jury as an agreed fact. The dispute was about some of the underlying facts that lay behind the conviction.

The appellant's account of those previous facts and the prosecution contention that it was commercial supply both lay underneath the exact same offence as framed in law. They would both be possession with intent to supply. The nature of that supply is what was in issue.

We repeat what has been said in many cases about the need to avoid satellite litigation on disputed facts relating to other previous offences. Usually, but not invariably, it will be the fact of the conviction that is relevant, which is admitted and usually dealt with by an agreed fact.

Here the prosecution wished to prove that the previous conviction was for commercial supply. That is not part and parcel of the fact of the conviction itself. It was part of the underlying or background facts to the offending, but part that was disputed by the appellant.

The fact that a finding had been made in the Newton hearing did not mean that it was not in dispute between the appellant and the prosecution. Accordingly, the burden was upon the prosecution, so the jury had to be sure that on this disputed fact, as with most (or almost all) others, they were sure so that they could properly then go on to consider the next step of the process, namely how that assisted them, if at all, in the other matters they had to decide as part of arriving at a verdict on the instant counts in this trial.

The other point which presents an equally formidable obstacle to the interpretation urged on us by the respondent is the following. In the Bench Book at chapter 14.6 there is reference to the case of R v Gabbana [2020] EWCA Crim 1473. In that case, at [103], Davis LJ observed that:

We add that it goes without saying that that burden and standard of proof is one that rests upon the prosecution. We can do little better than repeat that here. The disputed issue as to the underlying facts of the previous conviction was not the fact of the conviction, which was admitted. The disputed aspect was the very difference, namely the type of supply. That was a disputed fact which went to bad character. The burden of proving that was upon the prosecution and is the criminal standard, so the jury had to be satisfied so that they felt sure.

Given that that is our conclusion on ground 2, none of the rest of the points made by the appellant on ground 1 either improves his position or indeed arises. Given how the jury were so clearly directed that the appellant bore the burden in the way that we have identified, in our judgment that was a clear and obvious misdirection in law.

In those circumstances the convictions on counts 1 and 2 are both unsafe. The appeal must be allowed and those two convictions are quashed.

The defendant pleaded guilty on counts 3 and 4 and they are not affected by the success of his appeal on counts 1 and 2.

For those reasons the appeal is allowed.

Now, are there any consequential orders?

MR ATTENBOROUGH: The Crown would ask the court to direct that a retrial is appropriate in the circumstances.

LORD JUSTICE FRASER: Yes. So we have allowed the appeal, we have quashed the conviction. We order a retrial on counts 1 and 2. We direct that a fresh indictment be served in accordance with Criminal Procedure Rule 10.8.2, and that requires the prosecution to serve a draft indictment on the Crown Court Officer not more than 28 days after this order. We direct that the appellant be re-arraigned on the fresh indictment within two months.

We also make an order under section 4(2) of the Contempt of Court Act 1981 restricting reporting of the proceedings until after the conclusion of the retrial. Such an order is, I believe, already in place, but as a matter of an abundance of caution we make an order today anyway. The precise scope of the order covers all of the appeal hearing this morning and our judgment.

DR O'SHEA: My Lord, yes. So, my Lord, one could not even announce, for example, on the chambers website that a point of law, the reverse burden, has been addressed?

LORD JUSTICE FRASER: No. It is a blanket order that covers everything dealt with in the appeal hearing and the judgment.

DR O'SHEA: Yes. My Lord, understood. My Lord, I have not researched this, but in terms of the defendant, he was remanded in custody at the time of the initial proceedings. Am I able to make an application for bail here, or should I ---

LORD JUSTICE FRASER: Any application for bail must be dealt with by the Crown Court.

DR O'SHEA: My Lord, I am grateful for that clarification.