Scottish High Court of Justiciary Decisons

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2016] HCJAC 32

HCA/2015/2634/XC

Lord Justice General

Lord Menzies

Lady Cosgrove

OPINION OF THE COURT

delivered by LORD CARLOWAY, the LORD JUSTICE GENERAL

in

APPEAL AGAINST CONVICTION AND SENTENCE

by

SHAMSUL AREFIN

Appellant;

against

HER MAJESTY’S ADVOCATE

Respondent:

Appellant: MC Mackenzie; Good & Stewart

Respondent:  Prentice QC AD (sol adv); the Crown Agent

16 March 2016

Introduction
[1]        On 3 July 2015, at the Sheriff Court in Fort William, the appellant was found guilty of 8 offences of human trafficking under the Asylum and Immigration (Treatment of Claimants etc.) Act 2004.  The first four charges libelled breaches of section 4(1)(a); that is arranging or facilitating the arrival into the United Kingdom of four men “with intent to exploit” them.  The second four were under section 4(2)(a) and involved arranging or facilitating travel within the UK for the same men with the same intention.  The offences occurred between November 2008 and May 2010 at the Stewart Hotel, Duror, near Appin and elsewhere in the UK and Bangladesh.  On 24 July 2015, the appellant was sentenced to 3 years imprisonment.

The evidence
[2]        The appellant owned and operated a hotel in Argyll.  Over a period of one year from the end of 2008, he recruited, by newspaper advertisement in Bangladesh, four men.  Ostensibly, they were to work as chefs in a tandoori restaurant at the appellant’s hotel.  The first three arrived in June, July and October 2009 and the fourth in May 2010.  No tandoori restaurant was ever operated at the hotel, although the appellant had, in the name of his wife, obtained suitable permits to bring staff into the UK for the specific purpose of working as tandoori chefs.

[3]        The offers of employment, which were in writing, included an annual salary of around £18,000 for each man, as well as paid holidays, free food and accommodation.  As a condition of the offer, however, the appellant demanded an initial payment from each man of about £5,000.  That was paid but, after the men had secured their visas, the appellant had demanded more.  Three of the men paid about £18,000, while the fourth negotiated the price down to £15,000.  The men said that they had paid about seven times their annual Bangladeshi salaries of about £2,400 per annum for the purpose of obtaining employment at the appellant’s hotel.  They had had to go to considerable lengths to raise the money demanded.

[4]        When the first man arrived in May 2009, he was told that business was bad and that the appellant could not afford what was due under the contract.  Instead, only £100 per week would be paid and with the balance to be provided later.  All of the other men were told something similar.  They were not, however, paid even £100 every week.  Arrears under that arrangement built up, although these arrears were eventually paid off when the men left the hotel.  The shortfall on the contractual entitlements was never paid.  The deposits were retained.  The men were required to work in the hotel kitchen preparing European food.  They had a number of other duties, including cleaning rooms, gardening, clearing ground, painting and decorating, snow clearing and labouring for tradesmen.

[5]        The men spoke to the intensely compelling circumstances in which they found themselves and the pressure that they were under to keep working for the appellant.  They had left jobs in Bangladesh where work was difficult to come by.  They had heavy financial obligations to their families and, in one case, to an aggressive moneylender.

[6]        The evidence of the appellant had been that he had required some £10,000 from each man, but said that that would have been repaid had they worked for him for 5 years.  He explained why business had been bad, but maintained that he had all along intended to honour the contracts.  It is clear from the jury’s verdict that not all of this was accepted.

Directions
[7]        The ground of appeal against conviction is concerned with the application of mutual corroboration.  The sheriff introduced and explained that principle to the jury and, on three occasions, directed that it was for them to be satisfied whether, on the evidence, the offences libelled were so closely linked in time, character and circumstances as to allow mutual corroboration to apply.  He went on to direct them as follows:

“... the Crown says the rule can be applied in this case and I’m telling you that there is enough evidence in law that the trafficking crimes alleged are sufficiently close in time, character, place of commission and circumstances for the rule to apply in this way.”

He added:

“But just because there is evidence from different sources you might not accept that evidence.”

Shortly thereafter, he continued:

“But as I said it is up to you to decide if you should use it, and as I said in that case you have to decide if the evidence in each case is credible and reliable and if the necessary link in time, character and circumstances has been established and if the rule should be applied.”

Submissions for the appellant
[8]        There were two strands to the argument in the appeal against conviction.  First, it was contended that the sheriff had misdirected the jury in relation to mutual corroboration.  In directing them that there was a legal sufficiency, the sheriff had failed to leave it to the jury to decide whether mutual corroboration should apply (Sinclair v HM Advocate 1990 SCCR 412 and McPhee v HM Advocate 2009 JC 308 at para [40]).          

[9]        There was an additional point made about whether the sheriff had in fact decided that there was insufficient corroboration on the second group of charges.  However, that was not a ground of appeal and the court does not have the sheriff’s view on this particular challenge.  It does not consider it appropriate, therefore, to consider that matter.

[10]      The second strand to the argument was that the sheriff’s use of the word “rule” on twelve occasions, when describing mutual corroboration, amounted to a misdirection because of the definite character of that particular description. 

Decision
[11]      It was the function of the jury, properly directed, to assess the evidence and to decide whether or not the appellant’s employment of the four men was so closely linked in time, character and circumstances as to demonstrate a course of criminal conduct and the appropriate unity of purpose to make it appropriate to apply mutual corroboration.  The proper course for the sheriff or judge is to direct the jury, first, on whether it is open to them on the evidence to find that there is such an interrelationship and, secondly, that it is for them to decide whether the necessary link has been established on the evidence.

[12]      Reading the charge as a whole, it is apparent that the overall tenor of the sheriff’s directions was to the effect that it was open to the jury to apply mutual corroboration, but that it was for them to decide whether the necessary link had been established.  The decision on whether to apply the doctrine was left as one firmly for the jury.  In this respect, the case is readily distinguishable from Sinclair v HM Advocate 1990 SCCR 412, in which the sheriff had simply told the jury that there was a link in time, character and circumstances.

[13]      In McPhee v HM Advocate 2009 JC 308 the court, obiter at para [40], cautioned against advising a jury that there was sufficient evidence in law to merit a conviction on the basis that such a direction may confuse a jury.  However, it is not potentially confusing to give what has been a standard direction for many years.  It is often very important to tell a jury that there is a sufficiency of evidence in law and to inform them of the component parts of that sufficiency.  This will enable the jury to return an appropriate verdict, particularly one of acquittal, if an essential element of proof is rejected.

[14]      The second strand of the appeal contains a degree of artificiality.  Although the sheriff referred to mutual corroboration as a “rule”, as distinct from a “doctrine” or “principle”, the overall effect of the direction was that it was for the jury to decide whether to apply it or not.  Reading the charge as a whole, the use of the word “rule” cannot be said to have resulted in a miscarriage of justice.

[15]      The appeal against conviction is accordingly refused.

Sentence
[16]      On the matter of sentence, the submission was that the sheriff had failed to give sufficient weight to the circumstances of the offences themselves, the personal circumstances of the appellant and the delay which had occurred between the original investigation by the Home Office in 2010 and the conviction some 5 years later. 

[17]      It was said that this had been a bona fide business in which the appellant had genuinely thought he would succeed, but had been overcome by events, notably the economic downturn.  There had been no question of the employees being entrapped in any substantial way in the hotel.  There had been evidence that they had been permitted to take English lessons in Fort William, to which the appellant had contributed and, in one case, had been allowed to return to Bangladesh in order to be at the birth of a child.  The movements of the employees were, to that extent, not controlled, as may occur in other situations.

[18]      The sheriff had erroneously relied upon AG’s Reference (Nos 37, 38 and 65 of 2010) [2010] Cr App R 186, which involved the recruitment of 9 men over a period of 4 years to work at a restaurant in Harrogate.  This had attracted a starting point of 6 years imprisonment, as against the maximum sentence then applicable of 14 years. The court was referred to HM Advocate v Craig and Beukan, unreported, Glasgow Sheriff Court, 3 October 2011, involving a sentence of 3 years and 8 months on a plea of guilty to a contravention of section 22 of the Criminal Justice (Scotland) Act 2003, involving the trafficking of persons for the purposes of work in the sex industry.

[19]      So far as the appellant’s personal circumstances were concerned, he was aged 41 and married.  He had a young child, who had been conceived after IVF treatment.  His wife, who had returned to Bangladesh in the meantime, suffered from Guillain-Barré syndrome, causing extreme restriction to her mobility. 

[20]      Finally, on the question of delay, this was said to have been excessive and that the sheriff had placed insufficient attention to it. 

[21]      In all these circumstances, it was said that a custodial sentence was not the only appropriate one and that a community disposal might have been imposed.  Alternatively, the length of the sentence was excessive.

[22]      On the question of delay, the advocate depute supplied a timeline detailing the events since the original investigation, by a Home Office Crime Team, in July and August 2010.  Apparently, the Home Office had decided not to take further action, but had referred the matter to the procurator fiscal’s office in November 2011.  Thereafter, investigations had proceeded, in the sense of obtaining appropriate documentation.  A full police report was only submitted on 15 January 2013.  In November 2013, Crown counsel instructed that the appellant should appear on petition.  That was done.  He was made the subject of certain bail conditions involving reporting to a local police station in London, where he was then living, and the surrender of his passport.  An indictment was only served in October 2014. 

[23]      The offences here were callous, deliberate and planned for the purposes of gain.  As a result, considerable hardship was suffered by the complainers and no doubt their families.   The jury had held that there had been no intention to pay the men in terms of the offers of employment.  The anticipated wages of around £18,000 per annum were simply not realised.  There were very substantial deposits, obtained from the men, which were never returned.  It is not without significance that the appellant’s previous convictions include, not only an assault upon his wife from 2007, but two sexual assaults upon hotel employees, who had come from abroad, in 2013.  Although these are not directly analogous, they have some bearing on sentence.

[24]      The sheriff had regard to AG’s Reference (supra) and considered that the period of 3 years which he selected was reasonable, given that the circumstances were not as extreme as those in that case.  However, regard must be had, amongst other things, to the fact that the exploitation here involved the obtaining of almost £70,000 from the complainers and a requirement that they work for something in the region of £100 per week, albeit supplemented by accommodation and food, for a considerable period of time. 

[25]      In these circumstances, only a custodial sentence could have been regarded as appropriate.  The sheriff’s selection of 3 years imprisonment cannot be described as excessive.  In that regard, he did take into account the period of delay which had occurred and, in particular, the strictures placed on the appellant as a result of the special conditions of bail.  In these circumstances, the appeal against sentence is also refused.