R v Erik Muci [2026] EWCA Crim 900

[2026] EWCA Crim 900Venue Royal Courts of Justice, Strand, LondonWC2A 2LLDate 3 July 2026
Before
LORD JUSTICE STUART-SMITHMR JUSTICE BOURNERECORDER OF WOLVERHAMPTON(His Honour Judge Chambers KC)
Between
REXCrown-v-
Between
ERIK MUCI
Anand Beharrylal KC and Khadim Al’Hassan appeared for AppellantKevin Dent KC and Tyrone Silcott appeared for Crown
Approved Judgment
[1]On 10 October 2024 at the Central Criminal Court before Her Honour Judge Trowler, the appellant was convicted by a majority of 11:1 on Count 1 and unanimously on Count 2 of one count of being concerned in the fraudulent evasion of a prohibition on the importation of a class A drug (cocaine) and one count of being concerned in the supply of a controlled drug of class A (also cocaine).[2]On 3 December 2024 the appellant was sentenced as follows: i) On Count 1, which was the offence of being concerned in the fraudulent evasion of a prohibition on the importation of a class A drug (cocaine), he was sentenced to 26 years’ imprisonment. ii) On Count 2, which was an offence of being concerned in the supply of a controlled drug of class A (cocaine), he was sentenced to 7 years consecutive. The total sentence was therefore one of 33 years' imprisonment.[3]He now appeals against his conviction with the leave of the single judge.

The facts of Count 1

[4]The particulars of the offence as set out in the indictment were that Petko Zhutev, Erik Muci (the appellant) and Olsi Ebeja, together with Bruno Kuci and Gjergji Diko, on or before 18 February 2021, were knowingly concerned in the fraudulent evasion of the prohibition on the importation of a controlled drug, namely cocaine.[5]On 18 February 2021, two police officers acting as lorry drivers delivered a consignment of bananas to Agro Foods Ltd ("Agro") whose registered address was at Unit C9A, Crispin Industrial Centre, Angel Road, London N18 ("the Unit"). Officers making the delivery were operating covertly as they were aware that four days earlier within a consignment of 41 pallets of bananas (from Colombia), UK Border Force at Portsmouth had found four pallets containing 2,330 blocks of cocaine, each block weighing around 1kg. The wholesale value of the cocaine was in excess of £90 million. The street value, without any adulteration, was in the region of £186 million.[6]Before delivery of the load on 18 February 2021, the numbers of the four pallets had been noted, and the cocaine removed and replaced with bananas. Between 9 and 10.30 am, three men (Mr Petko Zhutev, Mr Gjergii Diko and Mr Bruno Kuci) took delivery of the consignment at the Unit. Approximately two hours after the delivery had been made, police officers entered the Unit to make arrests. They found that three of the four pallets bearing the numbers containing drugs had already been identified by the men.[7]The two main defendants with whom we are concerned are, first of all, Mr Zhutev. He, said the prosecution, was involved in organising the consignment, having earlier been appointed as a director of Agro on 30 December 2020 and having been instrumental in preparing the Unit so that it would give the impression of being a bona fide warehouse for importing fruit. The lease for the Unit was in Mr Zhutev's name. He had also organised the rental of a forklift truck and pallet truck for the Unit, as well as the installation of cold rooms through a company called Atlas ICS Ltd ("Atlas").[8]The appellant, Erik Muci, said the prosecution, was one of the principal organisers of the drugs operation. On 12 January 2021, on one occasion he was captured on CCTV at Agro associating with Mr Zhutev, Mr Kuci and Mr Diko. He was also later seen on CCTV at Atlas Refrigeration in the company of Mr Zhutev. It was whilst at this location that he was seen to be involved in negotiating the purchase of £45,000 worth of fridges for Agro. Telephone communication with phones attributed to him showed him to have been both at the heart of the organisation of the banana cocaine consignment (Count 1) and to be involved in the on-going distribution of other significant amounts of cocaine (Count 2).[9]The third main conspirator or defendant to whom we need to refer is Mr Ebeja. He, said the prosecution, was also knowingly involved in the banana cocaine consignment, acting under the direction of others. His role included acting as the intended driver for the banana cocaine consignment.

The operation

[10]Agro was first incorporated as a company on 22 September 2015. Mr Zhutev was appointed a director of Agro on 30 December 2020 and from that date its registered address was the Unit. The Unit was owned by a company called Ceys Properties Ltd ("Ceys"). In December 2020, the Unit became vacant, and Ceys advertised the Unit for rent through Easy Properties London.[11]In early January 2021, two men came to view the Unit without an appointment. They were met by a representative of Ceys. One of the men was Mr Zhutev, who gave his name as "Peter" and his mobile phone number as 0746658446. The second man was Turkish and gave his name as "Murat". His mobile phone number was 07882886944. Murat said that he was helping Peter to find a place to rent.[12]Meanwhile, from 1 January 2021 onwards, there was regular telephone contact involving two numbers, first a UK-based one, ending 7193, which was referred to as Banka St ("Banka St"), and one ending 5604, which was known as Toni ("Toni"). The 5604/Toni number was attributed to the appellant. As the communication developed, the prosecution said that there was a clear inference that the unattributed user of the 7193/Banka St number was also involved in organising the cocaine operations. Furthermore, the Toni number was in close and regular telephone conversation with Mr Ebeja. Indeed, there was a close triangulation of contact between the numbers attributed to the appellant, Mr Ebeja and Banka St.[13]On 18 January 2021, Peter and Murat paid £31,000 in cash, comprising a deposit of £15,500 plus £15,500 for rent to secure a 5-year lease starting on 21 January 2021. The lease was in the name of Mr Zhutev. Mr Zhutev was also involved in organising the rental of a forklift truck and pallet truck for the Unit. Likewise he organised installation of cold rooms by the company called Atlas. On 9 February 2021 he requested a quote by phone for two cold storage rooms, using the mobile phone number ending 6126. The caller gave his name as Peter and said he wanted one to facilitate a banana room and the other a chiller room.[14]On 12 February 2021, Mr Zhutev, the appellant and another male visited Atlas's premises and spoke to the managing director about trying to bring the work forward to 13/14 February 2021. The reason given was that they had a shipment at the port awaiting customs’ clearance and they required the chiller rooms to be installed. Delivery of the shipment was expected on Wednesday, 17 February 2021.

The facts – Count 1

[15]On 13 February 2021, 41 pallets of bananas arrived at Shed 13 in Flathouse Quay, Portico, Portsmouth. They arrived on a ship, having been loaded onto the vessel in Colombia. The consignor of the pallets was the Colombian company Frutoro SAS. The consignee of the pallets was recorded as Agro.[16]Shortly after 9 am on 14 February 2021, the pallets were examined by a UK Border Force Customs official. Of the 41 banana pallets examined, four were found to contain tape-wrapped packages amongst the boxes. The total number of packages removed from the four pallets was 2,330, with an estimated total weight of 2796 kgs.[17]On 17 February 2021, the pallets were loaded on to two HGVs. Four were made to replicate the pallets that had contained cocaine. The four ‘dirty’ pallet numbers were fixed with audio listening devices before delivery and were all placed in the second lorry.[18]On 18 February 2021 the first driver, known as "George", delivered the first lorry at approximately 9 am. He was met by three men, shown on CCTV to be Mr Zhutev, Mr Kuci and Mr Diko. The unloading of the first lorry concluded at about 10 am, and at about 10.10 am George drove the lorry away from the Unit and the location.[19]The second lorry arrived just after 10.30 am and was driven by a covert officer known as "Vinny". As Vinny approached the head of Angel Road he was waved down by Mr Zhutev. Mr Zhutev assisted Vinny in parking. The unloaded bananas were taken by forklift truck into the Unit. Once Mr Zhutev appeared to be satisfied with the number of pallets, he agreed to sign the delivery sheets and retained a copy of them. A short time later Vinny left the area.[20]At 1.06 pm on Thursday, 18 February 2021, a team of NCA officers and armed and unarmed police officers attended the Unit with a warrant granting power of entry. Mr Zhutev was detained. Two mobile phones were on the floor, approximately 4 to 5 metres from where he was found, one of which was ringing. Whilst Mr Zhutev was being detained, Mr Kuci and Mr Diko attempted to escape via a scaffolding balcony on the first floor, but when they were challenged, they went back in.[21]It was the prosecution case that the appellant was involved in both the consignment of cocaine recovered on 18 February 2021 (Count 1) and also in an on-going operation concerning significant quantities of cocaine (Count 2).[22]At the material time he was living at 125 Haynes Road, Hornchurch. He went by various names, and identity documents showing his image were found with both the name "Erik Muci" and "Hajrii Xheleli". He was also referred to by the name "Daku", and a SIM card recovered from his home address following his arrest in November 2023 featured several messages referencing that name. Likewise, a telephone number ending 0188 attributed to him was stored under the name "Daku" in a phone attributed to Mr Diko.[23]The prosecution suggested that there was an overwhelming inference from all the evidence that the user of the phones attributed to the appellant was a high-level organiser, closely involved in the planning of the banana consignment of cocaine. The prosecution's case that the appellant was "Toni" was based upon a number of strands of evidence, including both attribution to him of the "Toni" phone and the "Daku" phone. There was extensive evidence of communication between the phones attributed to the appellant and the other people involved in the importation and distribution, including extensive evidence of co-location of relevant phones.[24]The appellant denied throughout having anything to do with 5604/Toni number, but there was ample evidence, in particular from police staff officer Lee Thompson, that contradicted his denial.

The facts - Count 2

[25]The particulars of the offence were that Mr Muci and Mr Ebeja, between 3 January 2021 and 9 April 2021, together with other or others unknown, were concerned in the supply of drugs of class A, namely cocaine.[26]This charge was closely intertwined with Count 1. The evidence also showed, said the prosecution, the appellant, Mr Ebeja and others involved in an on-going cocaine distribution enterprise centred around Flat 7, The Yard, Caledonian Road, London N1 ("the Yard"). On his arrest, Mr Diko was found in possession of an electronic key for the Yard. Further investigation work about the address and various phone devices attributed to Mr Ebeja and others revealed this address to be a hub for an on-going cocaine operation, one that had been underway for some time prior to the arrests on 18 February 2021.[27]The evidence indicated that the appellant, Mr Diko, Mr Ebeja, Mr Kuci and others had been involved in making the arrangements for the importation and subsequent supply of large quantities of cocaine, carrying out such activities prior to the consignment that arrived at the Unit on 18 February 2021. The Yard, said the prosecution, played the role as a "stash" location.[28]A search of the Yard revealed 31 individual kilogram blocks of cocaine under the kitchen cabinets at the address. The search also revealed a large amount of drugs wrappings, suggesting other quantities of cocaine had been present in the flat. These were discovered in the cupboards in the bedroom of the address and were seized. In total there were approximately 60 wraps that appeared to have come from 1kg blocks. The purity of the drugs varied, with the lowest being 60% purity and the highest 91% purity. The estimated market prices for cocaine wholesale at the time suggest a 1-kg block of cocaine as having a value of £40,000 to £45,000. Taking this at its lowest, the wholesale value of the drugs present at the Yard was £1.24 million. This would, however, be a minimum figure given the other drugs wrappings found at the address.[29]Finger marks recovered from the address by scenes of crime officers that were found on a plate in the kitchen were a match for Mr Diko and there was also a forensic match for him from a pair of shoes.[30]Enquiries with the letting agent for the flat revealed that he had been approached by a male giving the name "Augustine Kola", said to be the owner of a plumbing business called No Limits Plumbing. When the appellant was arrested on 23 November 2023, he was driving a vehicle registered to No Limits Plumbing.[31]A review of telephone data showed that the appellant, Mr Diko and Mr Ebeja had been in regular contact from 4 January 2021 until 18 February 2021. Moreover, there was a repeated pattern of the appellant contacting Mr Ebeja, who would then travel to the vicinity of the Yard. Having attended this location, Mr Ebeja would then contact Mr Diko. Following this contact, Mr Ebeja would travel to different parts of the UK. The prosecution suggested that the inference to be drawn from this pattern was that Mr Ebeja was regularly transporting drugs from the Yard. Moreover, cell site evidence revealed that on 4 January 2021 Mr Ebeja was in contact with the 5604/Toni number. There was further contact between the two phones on 13 January 2021. There was also contact between Mr Ebeja, whose movements placed him in the vicinity of the Yard, and numbers attributed to the appellant on 20, 23 and 28 January 2021 and 2 February 2021.

The appellant

[32]The appellant was a person of previous good character. When interviewed he answered "no comment" to all questions. His defence statements amounted to a complete denial of any involvement with illegal drugs. He denied the attribution of phones to him or that the use of the names "Toni" and "Daku" had anything to do with him. He denied knowing or associating with Mr Ebeja or Mr Diko.

The trial

[33]At the trial Mr Zhutev and the appellant ran cut-throat defences. The appellant did not give evidence. His case was a denial of any knowledge or involvement in the importation or supply of cocaine. His case was that he had only been contacted by Mr Zhutev in his capacity as a plumber to assist in a potential job at the warehouse, but he never got the job. He denied possession of the Toni phone or that he was Toni. At no time did he realise that the people he was in contact with were involved with illegal drugs.[34]The appellant called one witness, Mr Orlin Roussev, who was a remand prisoner at HMP Belmarsh having been charged with spying offences. Mr Zhutev and the appellant were also remanded at Belmarsh pending trial. Mr Roussev was Bulgarian, as was Mr Zhutev, and they met and spoke to each other in Bulgarian long before the appellant was arrested. Following the appellant's arrest, Mr Roussev discovered that he and Mr Zhutev were in the same case, and when discussing matters with Mr Zhutev, Mr Zhutev revealed that he had made up a false story around "Toni" to support his defence, and that now the appellant had been arrested this was causing him problems in his re-trial. Mr Roussev was called to give evidence about the conversation he had had with Mr Zhutev because it supported the appellant's defence in relation to Mr Zhutev.[35]Mr Zhutev's case at trial was that he had been duped by the appellant. He disputed Mr Roussev's evidence with the same determination as he brought to the conduct of the rest of his defence.

Mr Zhutev's change of plea and the appellant's application to discharge the jury

[36]On 17 September 2024, after the prosecution's closing speech and just before his own counsel was due to make his speech, Mr Zhutev pleaded guilty to Count 1. The jury was promptly informed and directed to return a guilty verdict in his case, which they did.[37]The following day the appellant made an application to discharge the jury, arguing that on the facts and in the circumstances of the case, the trial was no longer fair and continuing the trial risked an unsafe conviction. The application identified the relevant law culminating in Sookram [2011] UKPC 5 at [19]. It asserted the court's power and discretion to discharge the jury and submitted that there was a necessity to discharge the jury in the circumstances prevailing after Mr Zhutev's change of plea.[38]The central core of the appellant's argument was that by delaying his guilty plea Mr Zhutev had enabled himself to mount a comprehensive attack on the appellant in order to bolster what was now known to be the false defence that he had been duped by the appellant. Had he pleaded at the outset of the trial, he would have taken no further part and would not have been able to cross-examine or adduce bad character evidence against the appellant. Mr Roussev was only called by the appellant in order to rebut the false defence being run by Mr Zhutev. His evidence would have been irrelevant otherwise. In a resonant phrase, it was submitted that Mr Zhutev's contribution to the trial at every stage was "not a bell that can be unrung". It was submitted that it would "impinge on the jury's function to invite them to simply disregard Mr Zhutev's evidence that they have heard so substantially". Furthermore, the prosecution had commented "liberally" on Mr Zhutev's case and had "strategically deployed their combined case on the whole of all the evidence against all defendants", which was alleged to provide an unfair advantage to the prosecution that would not have been available if Mr Zhutev had changed his plea earlier. This was alleged to have distorted the trial to such a degree that it was unrealistic to expect the jury to follow any directions intended to cure the asserted prejudice.[39]The Crown's response contended that the appellant was now in a better position as a result of Mr Zhutev's late plea than he would have been had the plea not been entered, late as it was. It asserted that right from the outset the prosecution had made clear that it placed no reliance on Mr Zhutev's evidence in respect of the appellant. It had characterised it as being "dishonest and self-serving".[40]The judge heard the application on 19 September 2024 and rejected it, with written reasons to follow.[41]The judge then immediately directed the jury as follows (this being before the speech to be made by the appellant's counsel):
"Of course, you know that Mr Zhutev has admitted his guilt of the offence charged in Count 1. He has admitted being, taking it shortly, knowingly involved and concerned in the importation. And it follows that, by his guilty plea, he has admitted that he was not duped by Mr Muci or anyone else. It follows from that that he has given false evidence in this trial before you and, for that reason, I direct you that you cannot rely on what Mr Zhutev said in his evidence against Mr Muci and you should disregard Mr Zhutev’s evidence. I also remind you that suggestions made to witnesses on behalf of Mr Zhutev by Mr Smith during the trial are no more than that. They are not evidence and you should disregard the suggestions that he made. It is the answers, of course, which are the evidence in the trial. Similarly, the comments made by the Prosecution and, in particular, by Mr Dent in his closing speech are not evidence and that includes the comments that he made of Mr Zhutev’s evidence. Because I have directed you to disregard the evidence of Mr Zhutev, you should disregard the comments of the Prosecution in relation to Mr Zhutev’s evidence. The Prosecution, of course, said to you in terms that the Prosecution did not rely on the evidence given by Mr Zhutev to prove its case against Mr Muci. The Prosecution relies upon the evidence that the Prosecution called in order to prove its case against Mr Muci and, of course, Mr Dent addressed you on that evidence during the Prosecution closing speech and it will be for you to decide whether or not the Prosecution have made you sure that Mr Muci is guilty of Count 1 and/or Count 2 on that evidence. That is the evidence upon which the Prosecution relies, the evidence that the Prosecution called and on nothing else."
[42]When she provided her written reasons, the judge briefly outlined the law and then at paragraph 39 identified nine factors upon which she relied in support of her conclusion that it was not necessary to discharge the jury to secure a fair trial for the appellant. They were:
"(i) PZ’s plea was admissible against Muci. The guilty pleas of Diko and Kuci were admitted in the trial without objection, it being accepted that they were admissible to show that the defendants were in contact with persons who had admitted being knowingly concerned in Count 1. The same rationale applies equally to the admissibility of PZ’s plea. It did not follow from PZ’s plea that Muci was necessarily guilty. The issues to be determined in his case included whether he was Toni/Daku and, even if he was, whether Toni/Daku must have been knowingly concerned etc. Moreover, the jury were directed to consider the case of each defendant separately. (ii) In light of PZ’s plea, the jury became aware that he had given a false account of his own innocence and of being duped by Muci. It follows that on no sensible basis could it be contemplated that the jury would rely on those aspects of his evidence against Muci. Nor was there any reason to conclude that the jury would not follow the direction to ignore PZ’s evidence. They had also been directed at the outset of the trial to keep an open mind and not reach a concluded view until they had heard all the evidence, and all closing speeches and received the directions of law and the summing-up of the evidence. (iii) Similarly, there was no sensible basis on which to conclude that the jury might rely on PZ’s evidence that Toni was Muci. PZ was substantially undermined as a credible witness. Although in closing for the prosecution Mr Dent KC stated that ‘the one thing PZ told the truth about was that Toni is Muci’, that was one of several comments made to demonstrate that PZ was a lying witness. The prosecution had made it clear in closing that no reliance at all was placed on PZ’s evidence to prove the prosecution case against Muci or Ebeja. In any event, again there was no basis to conclude the jury would not follow a direction to disregard PZ’s evidence. (iv) The jury had also been directed that counsel’s questions were not evidence. There was no reason to conclude that the jury would not follow that direction in relation to questions asked of witnesses on PZ’s behalf. (No submission was made that any of the answers were inadmissible). (v) Considering PZ’s plea, the evidence of Orlin Roussev was no longer relevant or useful to the jury, it being plain that PZ had indeed made up a false narrative about being duped. That being the case, the fact of OR’s bad character ceased to have any relevance to the issues to be determined by the jury and there was no proper basis to conclude that the jury would fail to follow the direction to disregard OR’s evidence. (vi) There was no evidence admitted in the trial against PZ alone which was prejudicial to EM. (vii) As to 2013 messages adduced by PZ to show previous involvement by EM in the supply of cocaine, although the prosecution did not seek to adduce it, the prosecution relied on it against EM in closing. No objection was made to this, nor could there have been. In any event, had the prosecution sought to adduce it in the first place, it would have been admitted pursuant to s. 101(1)(d) CJA. (viii) As a lesser but nonetheless relevant consideration, the three defendants had been properly tried together and there was no application to discharge the jury by OE. (ix) Finally, it was undoubtedly the case that EM was in a better position than he would have been had PZ maintained his not guilty plea and had the jury not been directed to disregard PZ’s evidence."
[43]The appellant was convicted on Count 1 by a majority and on Count 2 unanimously. No criticism is made of the Judge’s directions of law or summing up of the evidence.

Grounds of appeal

[44]The sole ground of appeal is that the judge erred in refusing the application to discharge the jury in circumstances where a high degree of need to discharge the jury was made out because Mr Zhutev had run a cut-throat defence to make good his case that he had been duped by the appellant. He had pursued this cut-throat defence by all available means, including by successfully adducing bad character evidence against the appellant and against Mr Roussev.[45]In support of that ground the appellant submits that: i) Mr Zhutev had consistently tried to derail the trial process. ii) It was not humanly possible for the jury to unhear or unsee Mr Zhutev's evidence or his contributions to the trial process. iii) He relies on the prosecution's initial concession that it was unrealistic for the jury to be directed to disregard Mr Zhutev’s evidence and submits that the Crown's subsequent withdrawal of that concession and its assertion that the jury could simply be given a direction to disregard Mr Zhutev’s evidence was itself unrealistic. iv) The approach adopted by the judge could not cope with other events, such as the introduction by Mr Zhutev of evidence about the seizure of a firearm and ammunition, which was irrelevant to the prosecution's case against the defendants. This is said to have proved "problematic" when a juror during deliberations received what appeared to be an Albanian phishing email demanding money. v) It is submitted that the judge erred in not applying the appropriate test correctly.[46]Turning to the judge's nine supporting features, the appellant submits in summary as follows:[47]39(i): The judge’s consideration that Mr Zhutev’s guilty plea was admissible against the appellant was misunderstood. This is because even if Mr Zhutev’s plea was admissible, had he pleaded guilty at pre-trial this would not have entitled him to participate in the trial as a defendant running the cut-throat defence against the appellant. The jury being directed to consider each defendant separately is not in issue, it was the essence of the cut-throat defence in conjunction with the guilty plea that was material, where the latter would not have required for any consideration of Mr Zhutev at all. The judge did not properly consider any of these matters in her consideration that Mr Zhutev’s guilty plea was admissible against the appellant.[48]39(ii): The judge’s consideration that in light of Mr Zhutev’s guilty plea the jury became aware that he had given a false account of his own innocence and of being duped by the appellant was misunderstood. Zhutev’s evidence had intimately sought to explain the prosecution evidence, which was circumstantial (e.g. phone communications, cell site locations etc), with Mr Zhutev weaving a narrative around the timeline, CCTV events, communications, visit to locations etc, implicating the appellant whenever he could, none of which would have been in evidence without Mr Zhutev giving that evidence, i.e. if he had pleaded guilty earlier.[49]Further, and in the submission of the appellant perhaps one of the most critical features, the judge failed to consider and properly evaluate the evidence that Mr Zhutev had given during his evidence when confronted with Mr Roussev’s evidence in cross-examination, where he explained that he (Mr Roussev) had been bribed and that he (Mr Zhutev) feared for his life. Later in cross-examination of Mr Roussev, Mr Zhutev put a robust positive case that Mr Roussev on behalf of the appellant had attempted to bribe Mr Zhutev so that he would plead guilty and then also threatened him when that failed.[50]Against this background it is said that when Mr Zhutev pleaded guilty it was understandable that the entire jury looked across at the dock and looked at both Mr Zhutev and the appellant. Mr Zhutev was closest to the jury, showing signs of injury and significant loss of weight, albeit that the jury would have had a better sight of him than counsel, who were lower down in the well of the court and mostly facing in the opposite direction. These circumstances gave rise to the following matters: Mr Zhutev’s guilty plea was connected in his evidence and cross-examination to threats by the appellant; Mr Zhutev was showing signs of injury and significant loss of weight; it could not be and it was not said to the jury that the guilty plea had no connection to the appellant.[51]As such, it is submitted, this is precisely the type of case that Lord Brown in Sookram had very much in mind, where the guilty plea of one defendant carried with it the necessary inference that the remaining defendant was also guilty; or that, as in this case, the remaining defendant had caused the pleading defendant to enter his guilty plea, thus supporting the evidence of Mr Zhutev about the appellant but which was the product of a false defence. None of those matters were matters that could be cured by direction.[52]39(iii): The judge considered that there was no sensible basis upon which to conclude that the jury might rely on Mr Zhutev's evidence that Toni was the appellant. This is submitted to be fanciful, when on every single day Mr Zhutev gave evidence in relation to virtually every aspect of his defence, implicating if he could Mr Muci.[53]39(iv): The judge considered that the jury had been directed that counsel's questions were not evidence. This was submitted to be overly simplistic. The judge's additional consideration that no submission was made that any of the answers were inadmissible is to misunderstand the point. The application for the jury to be discharged was made because Mr Zhutev, if he had pleaded guilty at the outset, he would simply not have been a participant in the trial and not have been able to make any contribution to distort the issues the jury had to decide between the prosecution and the appellant.[54]39(v): The judge's consideration that she could simply direct the jury to ignore the evidence of Mr Roussev was fanciful. Mr Roussev was only called as a defence witness in reaction to the evidence of Mr Zhutev. Had he not been, there would have been no need to call Mr Roussev at all and his evidence would not have been admissible. As such, what the appellant describes as this "inadmissible evidence", which was weaponised against the appellant by both Mr Zhutev and the prosecution in their closing speech, could only have had an overwhelmingly devastating effect on the appellant.[55]39(vi): No separate observations were made.[56]39(vii): The judge considered that even though the prosecution had not sought to adduce bad character evidence against the appellant, she adopted a retrospective reasoning that, had the prosecution sought to adduce it, it would have been admitted pursuant to section 101(1)(d) CJA 2003. But it was Mr Zhutev who sought to adduce it as bad character, and even then the prosecution did not seek to join the application. Even if the prosecution had successfully applied to adduce it, its value and scope in evidence would have been different and they would not have been able to cross-examine their own witness. Consequently, had Mr Zhutev not been in this trial, the 2013 bad character evidence would not have been admitted.[57]39(viii): The judge considered that it a lesser but nonetheless a relevant consideration that the three defendants had been properly tried together and there was no application to discharge the jury by Mr Ebeja. The appellant submits that this was not a relevant consideration at all. He submits that Mr Ebeja was in a very different position to the appellant when it came to Mr Zhutev. Mr Zhutev did not mount a comprehensive cut-throat defence against Mr Ebeja but sought to portray that he worked for the appellant, as he claimed Mr Kuci and Mr Diko did.[58]39(ix): The judge considered that it was undoubtedly the case that the appellant was in a better position than he would have been had Mr Zhutev maintained his not guilty plea and the jury not been directed to disregard his evidence. This is said to be fanciful because the evidence that had been given was simply not evidence that could be disregarded bearing in mind the cut-throat nature of it, its scope, and the sheer length of time over which it was given to a jury who were paying close attention and had been making notes.[59]One feature of the case which loomed large in oral submissions was the suggestion that Mr Zhutev had been visibly injured when he pleaded guilty and the jury may have been influenced by the evidence that he had given to the effect that he had been bribed and threatened in order to make him change his plea. The suggestion made is that the jury may have speculated that in these circumstances Mr Zhutev's guilty plea was not voluntary. This is said to have given rise to an irredeemable prejudice that was not addressed by the judge's rulings or direction, and in any event could not have been remedied by any direction that the judge might give. In the light of the weight that the appellant now sought to place on this feature, we deal with it separately below.

The Crown's response

[60]The Crown relies, first, on the fact that it is not suggested that anything occurred before Mr Zhutev changed his plea that could render the appellant's conviction unsafe. The jury had not heard anything that they should not have heard. The trial was fair up to that point.[61]Second, the Crown submits that Mr Zhutev pleading guilty on 17 September 2024 conveyed a distinct advantage to the appellant as he would no longer have Mr Zhutev's counsel making a closing speech attempting to cut his throat.[62]Third, the change of plea meant that Mr Zhutev had clearly lied in his evidence. As the appellant asserts, he had demonstrated by his guilty plea that his defence was a false defence from start to finish. Therefore, this case was the very opposite of the situation considered in Sookram, where the co-defendant's pleading guilty had arguably been to the disadvantage of the co-defendant.[63]Turning to the judge's ruling, the prosecution supports each of the nine features identified in paragraph 39 of the ruling. It submits that the judge's ruling was a proper exercise of her discretion.

Discussion and resolution

[64]Despite the extreme forensic effort that has been devoted to this appeal on behalf of the appellant, we are not remotely satisfied that there is merit in the appeal. We can state our reasons quite shortly.[65]The applicable law is not in dispute: i) The discretion to discharge the jury is a power to be exercised sparingly: see Consolidated Practice Directions at para. 8.4.1. ii) Discharge will only be appropriate where there is a high degree of need to discharge: see Crown Court Compendium citing Erle CJ's judgment in Winsor (1866) LR 1 QB 390. iii) Where inadmissible prejudicial material is inadvertently disclosed to the jury, the ultimate question for the judge in determining whether the jury should be discharged is whether to continue with the trial would or could, by reason of the disclosure, result in an unsafe conviction. Where the material is capable of more than one reasonable interpretation, the test should be applied on the basis of the most prejudicial interpretation: see Docherty (1999) 1 Cr App R 274. iv) Following an application to discharge following one defendant absconding (akin to a plea of guilty by one defendant), it will be a compelling reason not to discharge the jury if the conviction of the missing defendant would be admissible against the other defendant, but the converse will not necessarily be the case and the individual facts of the particular case must be considered: see Genese and Kaye [1998] Crim LR 679. v) The Court of Appeal will not lightly interfere with a judge's ruling on an application to discharge: see Docherty, as above, at page 279A. vii) As Lord Brown stated at para. 19 of Sookram:
"There are, of course, cases where, upon a co-accused (B) changing his plea, justice requires the jury to be discharged and the accused (A) to be tried afresh by a new jury. Wherever an appeal has succeeded on that basis, however, it has been possible to point to a particular unfairness which could be seen to result from A continuing to be tried by the same jury. It may be, for example, that the trial having begun with A and B both steadfastly maintaining their innocence, B's subsequent acceptance of his guilt necessarily carries with it the inference that A too is guilty - as in R v O'Connor (1986) 85 Cr App R 298 where A and B were jointly charged with having conspired together (and with no one else) to obtain property by deception (although in the event the proviso was applied); or as in R v Fedrick [1990] Crim LR 403 where the prosecution had opened the case on the basis that A and B were 'in cahoots' (although no conspiracy charge was laid); or, indeed, because A and B had been seen (or had admitted being) together at or near the time and place of the crime. Or it may be that, before B's change of plea, evidence had been led against him which was not admissible against A but nevertheless highly prejudicial to him."
We do not consider it is necessary to refer to any other authority.[66]The appellant focuses relentlessly on the fact that had Mr Zhutev pleaded guilty before trial he would not have been able to take part in the trial and run the cut-throat defence that he did. That is undoubtedly true, but it is ultimately irrelevant. What has to be determined is whether by pleading guilty at a later stage he rendered the trial unfair and his conviction unsafe. The only possible answer is that he did not. The appellant has not identified anything that happened before Mr Zhutev's change of plea that would have rendered a conviction of the appellant unsafe. Up to that point there was no evidence that had been adduced that was inadmissible and the jury had not inadvertently heard anything that they should not have heard. None of the judge's rulings up to that point are said to have been liable to render a conviction unsafe. The appellant and Mr Zhutev had been vigorously pursuing their cut-throat defences, with each doing their best to demolish the case of the other, but up to that point there was no reason to consider that the trial was or might be unfair.[67]Had Mr Zhutev not pleaded as and when he did, the cut-throat dispute between him and the appellant would have continued unabated. Mr Zhutev's counsel would have used all means and the evidence properly at his disposal to ensure the conviction of the appellant and the acquittal of Mr Zhutev. It would have been for the jury to decide whether the appellant's case was sound or Mr Zhutev's. This would be an additional source of danger for the appellant that was over and above the prosecution's case, which disavowed reliance on the evidence marshalled against the appellant by Mr Zhutev and vice versa.[68]What then was the true effect of Mr Zhutev's change of plea? It conferred a considerable benefit on the appellant because, as the jury were immediately told by the judge, Mr Zhutev "had admitted being … knowingly involved and concerned in the importation. And it follows that by his guilty plea, he has admitted that he was not duped by [the appellant] or anyone else. It follows from that that he has given false evidence in this trial before you and, for that reason, I direct you that you cannot rely on what Mr Zhutev said in evidence against the appellant and you should disregard Mr Zhutev's evidence." That would readily be understood and applied by the jury.[69]Furthermore, it was not only Mr Zhutev's evidence that was to be disregarded, in addition the appellant would not be troubled by Mr Smith making a final speech intent on demonstrating Mr Zhutev's innocence and the appellant's guilt.[70]We would add that, in our judgment, the fact that Mr Zhutev had given his evidence and his counsel had asked questions arising from it is not closely comparable with a situation where a jury has inadvertently been allowed to hear something significant which it should not have heard, such as inadmissible evidence of a defendant's previous convictions or an inadmissible confession. Mr Zhutev's evidence relating to the appellant was neither inadmissible nor, strictly speaking, irrelevant. Rather, it had become apparent that Mr Zhutev was a dishonest witness on whose evidence the jury could not safely rely. A direction to the jury to disregard his evidence, for that reason, did not in our judgment require any unrealistic "mental gymnastics" on their part.[71]The judge set out the factors upon which she relied at paragraph 39 of her written ruling. In our judgment, each of the factors she identified was sound, even if some were weightier than others, and we reject the criticisms made of them by the appellant. Most of the appellant's criticisms are based on the assertion that Mr Zhutev would not have been in a position to take part in the trial had he pleaded guilty earlier. As we have already explained, this is a false point. More granular criticisms, such as the judge's asserted failure to consider the evidence of Mr Zhutev when confronted by Mr Roussev's evidence, also fall away since that evidence was all intended to bolster his lying defence that he had been duped by the appellant and was to be ignored by the jury. In any event, that evidence, for what it was worth, would have been before the jury had Mr Zhutev not pleaded guilty when he did. There can be no suggestion that it was not properly admitted.[72]The evidence of the appellant's witness Mr Roussev would have been before the jury in any event. It was not inadmissible. The jury was directed to ignore it, which was not a difficult direction to follow.[73]Similarly, the 2013 messages adduced by Mr Zhutev to show previous involvement of the appellant in drugs supply could have been adduced by the prosecution under section 110(1)(d) had the prosecution so wished. It was properly admitted in the course of the trial and was always going to be admissible against the appellant.[74]The appellant's real complaint is that he was disadvantaged by Mr Zhutev not pleading sooner. He was not disadvantaged by Mr Zhutev pleading when he did. Mr Zhutev's plea lightened the appellant's burden and did not make it worse.[75]In the course of argument, the appellant sought to persuade us that in arriving at her decision the judge did not conduct a sufficient "evaluative exercise" to assess the potential prejudice caused by Mr Zhutev's evidence in order to decide whether any direction to the jury could remedy it. In our judgment the discussion at paragraph 39 of the judge's written ruling (which we have set out in full above) demonstrates, on the contrary, that she had the relevant facts well in mind and carried out a proper assessment of any risk of prejudice and the means of addressing it. Nothing in any of the authorities suggests that her evaluation or her explanation of it needed to be any more elaborate.[76]We turn to the suggestion that irredeemable prejudice may have been caused to the appellant because the jury may have speculated that Mr Zhutev's plea was involuntary because they thought it might be induced by threats.[77]It is apparent from the judge's later sentencing remarks that Mr Zhutev's self-harm was serious and required hospitalisation for several days. It is also correct that in their written submission dated 28 August 2024, before he had pleaded but by which time it was known that Mr Zhutev had self-harmed, the appellant suggested that if Mr Zhutev was eventually produced in court showing signs of injury, there was a risk that the jury would speculate about how he had sustained the injury. At that point the appellant submitted that "there can be no circumstance in which the jury are not told if Z is produced in court that any injury he sustained was self-inflicted and that this is what had delayed the trial and that there should be no comment on that direction by any counsel".[78]In their application to discharge the jury, the question of Mr Zhutev's self-harm was raised again at para. 25, where the appellant said:
"Finally, the court is already in possession of medical evidence that suggested that during his evidence Zhutev was malingering, the effect of which was to protract the trial. His recent self-harming also had the effect of protracting the trial. Both of these matters can properly be seen as consistent with Zhutev's highly manipulative nature to derail the trial, including to the prejudice of Muci."
[79]Two other points need to be mentioned on this issue: i) First, it was not accepted by the Crown before us that Mr Zhutev showed any signs of injury when he came to plead, although he had lost weight and looked unwell; ii) Second, we were told, and accept, that although it did not feature in the written application, this point was raised in oral submissions in support of the application to discharge the jury.[80]We consider that there is no merit in this submission. We leave on one side the disagreement about whether Mr Zhutev was visibly injured on 17 September 2024, nearly a month after he had self-harmed. The starting point is that the evidence of bribery and threats made to Mr Zhutev to persuade him to plead formed part of his false evidence in support of his false case that he was duped by the appellant. The jury had been directed to disregard all of that evidence. We have cited the direction in full above. There was never any suggestion that Mr Zhutev's plea was involuntary or equivocal, and the direction directly contradicted it. The direction was clear and comprehensive. There is no reason to suppose that the jury did not follow it. We are quite unable to accept a submission that it was fanciful to think that the jury would follow the direction that they had been given.[81]As a separate point, there was a suggestion that it had been raised in argument that the jury should be directed that self-harm had nothing to do with the appellant. Before us the appellant wisely disavowed that suggestion. Such a direction was not needed where the voluntary nature of Mr Zhutev's plea was not in question. Had it been in question, it would have been a matter for the jury to decide, not for the judge to direct.[82]For these reasons, we consider that the judge was not merely entitled, but right to rule that it was undoubtedly the case that the appellant was in a better position than he would have been had Mr Zhutev maintained his not guilty plea and had the jury not been directed to disregard his evidence. This appeal is dismissed. Before leaving it however, we would pay tribute to the clarity and quality of the judge's written reasons, which in our judgment were a model of their kind.