R v Emra Hajrizaj

This is a renewed application for leave to appeal against sentence, following refusal by the single judge. He has been ably represented before us this morning by Mr Scobie KC, for whose careful and helpful submissions we are grateful.

On 23 October 2023, in the Crown Court at Inner London, the applicant pleaded guilty to two counts of conspiracy. A number of other counts were ordered to lie on the file. The offences to which he pleaded guilty were conspiracy to supply Class A drugs, the drugs in question being cocaine (count 1), and conspiracy to sell or transfer prohibited weapons (count 11). For these offences, on 15 July 2024, he was sentenced by Her Honour Judge Baraitster to a term of 11 years' imprisonment on the drugs offence, and a term of five years' imprisonment on the weapons' offence, those terms to run consecutively. The overall term of imprisonment was therefore 16 years in total.

A co-defendant, one Senner Koskocan, was sentenced to a total of 13 years and six months' imprisonment.

The prosecution case was that the applicant and the co-accused together with others unknown were involved in conspiracies to supply both Class A drugs and firearms. Their criminality emerged from an analysis of messages sent and received by them in April 2020 using what is called EncroChat, a type of encryption of telecommunications devices. This method or type of communication was heavily encrypted and was understood at the time by the criminal fraternity to be completely indecipherable. However, law authority agencies in Europe managed to crack the encryption in the early part of 2020 and this has led to a number of "EncroChat prosecutions". The evidence underlying the offences in this case was derived from EncroChat material.

It was the prosecution case that the applicant was the user of the handle "jamesbond.com". Initially the applicant denied being "jamesbond.com" but subsequently accepted attribution. It was the prosecution case that, on a proper analysis of the messages that were sent and received by the user of this so-called handle, there was clear evidence of that person – namely the applicant - brokering kilogram and multi-kilogram drug deals and also organising, or being involved in discussions for, the purchase of a firearm from associates. The messages included pictures of blocks of cocaine being sent, and discussions in various messages relating to quantities of drugs, prices, handover locations and passwords.

All of the messages were analysed by an expert for the prosecution who concluded that the number and type of messages demonstrated that the holder of the encrypted device that had been assigned the username "jamesbond.com" was working in conjunction with others who were criminal associates, to import significant quantities of cocaine and diamorphine into the United Kingdom. The conversations demonstrated how the person had direct links with the Colombian drug cartel and was using air freight to traffic large quantities of cocaine into the UK via a number of locations in Europe. The conversations demonstrated that the holder of the device was actively seeking new trafficking routes, utilising corrupt officials and employees of air freight companies. The phone holder detailed their availability to obtain a supply of drugs from a stock of 600 kilograms that was stored somewhere in a location in Spain. Quantities of cash that were quoted in the conversations included discussions of the price range for kilogram quantities of drugs and the supply of multiple kilogram quantities to persons within the UK and others who were required to deliver the commodities and collect the cash. Passwords were used to facilitate these transactions.

There was also an attempt to purchase or borrow a firearm with a silencer and ammunition in order to supply to another person. This, in the opinion of the witness, demonstrated the commercial wholesale trafficking of drugs from source providers throughout South America and into Europe, and the trafficking of those commodities into the UK with the intent to supply to others.

Turning to the specific firearms charge, on 24 and 25 of May 2020 there was a three-way conversation between somebody using the handle "misterinternational", and on the other hand "jamesbond.com" and another person using the handle "kingspaniard". These conversations began with "jamesbond.com" inquiring whether "misterinternational" had any "hand tings" which is criminal slang for guns or handguns, to which a positive reply was provided. This led to a number of discussions about the type of gun required, the use of a silencer, whether purchase or loan arrangements could be agreed, who would be using it, what it would be used for and whether and in what circumstances it could be provided. At one point the firearm was said to be potentially available with a silencer for £9,000. The user "kingspaniard" stated that that appeared to be expensive but was available to be sourced if required. The calibre of the weapon was discussed, namely 9 millimetres, the fact of it being brand new, including indications that the firearm had not been previously used. All of these matters formed part of these messages.

The messages were analysed by a firearms expert for the prosecution who stated that in his opinion they were consistent with criminal conduct for the following reasons: the use of the slang terms for firearms and ammunition; the discussion and use of safe storage facilities; the precautions undertaken in respect of the storage of the firearms; the potential price depicted; and the manner of supply or potential supply through intermediaries. The expert witness opined that it was the practice of individuals or groups involved in serious crime, and in particular in the supply of large quantities of drugs, to protect or enhance their criminal activity by the threat or use of violence. That would sometimes involve firearms either as a deterrent or in order to be used. He explained that in his opinion the evidence of that use of firearms was consistent with the messages between the individuals here.

In sentencing the applicant, the judge identified that some of the messages were bluster or exaggeration, but that overall there was evidence of supply on a commercial scale and that, as she put it:

The judge took those factors into account and said that the notional starting point after trial would be 15 years' imprisonment. The offence was significantly aggravated by the fact that the EncroChat platform had been used, that this was a highly sophisticated and expensive means for avoiding detection and that the device was disposed of in order to conceal evidence as soon as the applicant had become aware that the platform had been compromised.

The judge observed that there was significant mitigation in the applicant's case. This is a point to which we will return later in this judgment. Taking into account the available mitigation, the judge moved to a figure of 14 years before a discount for his guilty pleas, which she assessed at 12.5 per cent. By applying that, she moved to a figure of 12 years and three months.

The judge approached the sentencing exercise in this structural way by ordering the two sentences to run consecutively, but in taking account of totality, she reduced each of the terms, namely 11 years' imprisonment for the drugs charge and five years' imprisonment for the firearms charge, as we have explained.

In the original proposed grounds of appeal it was said that the sentence was manifestly excessive, and reliance is placed on the four following factors:

Mr Scobie has helpfully clarified those grounds before us today. He has essentially accepted that the first ground (the imposition of consecutive rather than concurrent sentences) is not realistically open to challenge. Nor has he made any oral submissions regarding disparity with the co-accused, or that the role that was assessed by the judge to be at the lower end of the "leading role" rather than the top end of the "significant role" would make much difference. He has, however, focused on two specific areas. The first relates to credit. He takes no issue with the discount applied for the drugs conspiracy on count 1; but in respect of the weapons conspiracy, he submits that the time when the applicant pleaded guilty to count 11 (conspiracy to transfer weapons) in the Crown Court in October was effectively the first proper opportunity for him to enter a plea, and that therefore a more appropriate discount would have been 25 per cent. However, he does accept the contents of the defence statement in respect of attribution, which was maintained by the applicant until a somewhat late stage in the proceedings (although that latter phrase is ours and not that of Mr Scobie).

The other point on which he has concentrated his helpful oral submissions this morning relates to personal mitigation, or (as he put it) the applicant's "fact specific personal circumstances". Mr Scobie does not suggest that the sentencing judge did not read or make reference to the extensive material that was before her, but he submits that the personal mitigation in this case is truly exceptional and was inadequately or incorrectly taken account of by the judge in the discount that she made in respect of it. He also draws attention to the exemplary work that the applicant has undertaken whilst in prison, in which he has helped prisoners, and in particular foreign prisoners, during his time in custody at His Majesty's Prison Thameside.

Finally, in terms of totality, Mr Scobie submits that 16 years' imprisonment for this offending is manifestly excessive and it is for that reason that he advances the applicant's case that in all the circumstances leave ought to be granted and that the appeal ought to lead to a reduced sentence somewhat lower than that which was imposed.

In refusing leave on the original grounds which were advanced, the single judge gave detailed reasons. He said:

It is unnecessary for us to say anything further in respect of that ground of appeal because it was not advanced by Mr Scobie to any appreciable extent, but we agree with the observations of the single judge.

So far as the categorisation of the applicant’s role is concerned, we also fully agree with the single judge's reasons.

The third ground (the categorisation of culpability for the weapons conspiracy) was touched on by Mr Scobie. He urged us that it was a category 3C offence, rather than a 3B offence. In relation to that, the single judge observed that the applicant had asked the co-defendant to obtain a firearm:

We also agree with those observations by the single judge.

Turning to credit for the guilty plea, the single judge observed:

We also agree with those observations of the single judge. We observe that the figure for discount which is ordinarily applied for a plea at the start of a trial is 10 per cent. There can be no argument that the figure awarded to the applicant for what is a late plea, at the stage that it was given, is entirely correct in principle and also on the facts.

We will deal with the applicant's mitigation in a little more detail than did the single judge, due to the fact that Mr Scobie has so helpfully expanded on it orally, and given it has taken the lion’s share of the oral submissions before us The applicant dos have considerable personal mitigation; he had a very difficult start in life. We refer to the sentencing remarks (at page 5), where the sentencing judge turned to his specific significant mitigation. She said that she accepted that he had used cocaine and alcohol to excess in the past to the extent that he had been admitted to two hospitals on two separate occasions, both potentially linked to cocaine use. She also said that his background, including his early life in Kosovo, his escape from the war in Kosovo to the UK in the back of a lorry when he was aged only 7, and the difficulties that he had had in settling into a country with an unfamiliar language and culture – all of this was explained in the extensive material which she had before her, to all of which she referred in some detail in her sentencing remarks. Not only did he have difficulties when he was at school and as a young man, but following his pursuit of a potential career as a footballer, he sustained a knee injury which ended his dream. Thereafter, he had started to use cocaine and had run up a large debt. He also had a potential career in music, which had taken off, as his music has become increasingly popular. Indeed, at sentencing the judge had a letter before her from the Vice President of Atlantic Records confirming their interest in him and the fact that, as the judge put it, he was on the verge of having a significant career in music. She also read the positive reports from the applicant and on his behaviour in prison, including his support and help to other inmates which, as she put it – and we agree – indicates that his behaviour in custody has been exemplary. He was a trusted prisoner and placed on the induction wing of the prison because of his exceptionally positive behaviour.

The judge took account not only of the aggravating factors but his strong mitigation by moving from a notional sentence after trial of 15 years' imprisonment, down to 14 years' imprisonment on the drugs count. We consider that it is also apparent from the sentencing remarks that she took his personal mitigation into account when she had to assess the correct sentence on the weapons conspiracy charge. We observe that each of the sentences on each of the two counts might well have been considerably longer had those very positive aspects of his character and mitigation not been present.

In relation to the disparity argument – and it is not necessary, given the fact that Mr Scobie has effectively abandoned that ground – for completeness we refer to the comments of Leggatt LJ (as he then was) in R v Williams [2019] EWCA Crim 279. At [3] he explained that arguments concerning disparity will rarely be attractive or succeed in large, drug dealing conspiracy cases.

In the very recent case of R v Ross [2025] EWCA Crim 691, this court (Stuart-Smith LJ, Goose and Eadie JJ) observed that in conspiracy cases in particular the sentencing court has to make a fair but realistic assessment of the overall scale of the conspiracy's operations, both actual and intended. That court also explained that it could only sensibly be said that nobody but a criminal would intend to acquire, or transfer, or want a weapon such as a firearm. We agree, and would also observe that when that intended weapon is a pistol, the very possession of which is illegal in the United Kingdom – and in this case a 9 millimetre pistol with a silencer – the inextricable link with significant criminality applies even more. Such a weapon, including the supply or arrangements to obtain ammunition, can only be associated with involvement in extreme criminality. There can be no reason for such weapons to be organised, deployed, transferred or potentially used, other than to cause a high risk of serious harm or distress, or a high risk of death or serious physical or psychological harm. The fact that, as in this case, those discussions did not lead to a weapon in fact being used, in our judgment, does not significantly matter. It would be an aggravating factor were such use then to occur. But even if it does not, the offence is still a serious one.

The sentencing judge here was entitled to see the discussions regarding the firearm in the context of the overall large-scale drugs conspiracy. It is not arguably wrong that the role of the applicant was miscategorised, or that any other of the proposed grounds of appeal have a reasonable prospect of success. The test for this court at this stage is whether the resulting sentences are manifestly excessive or wrong in principle. We do not consider that they are, even on a reasonably arguable basis.

We therefore agree with the views of the single judge that these grounds are not reasonably arguable, and that includes the one that was so skilfully advanced and expanded upon by Mr Scobie this morning.

Accordingly, for those reasons this renewed application for leave to appeal against sentence is refused.