Harsher sentences for modern day slavers

14 December 2010 by Maria Roche

R v Khan [2010] EWCA Crim 2880 – Read judgment

The Court of Appeal has increased the sentences of two human traffickers from 3 to 4 years and upheld the 3 year sentence of a third trafficker (despite her mental health problems) for systematic and well-planned exploitation of trafficked restaurant workers.

The offenders, Shahnawaz Ali Khan, Raza Ali Khan and their mother Perveen Khan, were family restaurateurs in Harrogate. Over a period of four years they recruited nine men from the Middle East and the Indian subcontinent to work in the restaurant. All the workers entered the country legally on non-EEA work permits, after the offenders made assurances of good pay and working conditions to both the workers and the Home Office.

On arrival, their passports and personal documents were confiscated; the victims were compelled to surrender bond money; forced to work 12 hours or more a day for 6-7 days a week without due recompense for overtime and in some cases without basic salary; isolated from the community and prevented from receiving tax documentation and access to medical treatment. The victims were subjected to threats, abuse, coercion, bullying and insult – particularly if they challenged their treatment. Their treatment effectively amounted to a modern-day form of indentured labour.

At first instance, the Khans were convicted of an offence of statutory conspiracy to traffic persons for the purpose of exploitation contrary to Section 4 of the Asylum and Immigration (Treatment of Claimants etc) Act 2004 and HHJ Marson QC sentenced them to 3 years of imprisonment. The maximum sentence is 14 years. There were cross applications from the offenders and the Solicitor General for leave to appeal the length of sentencing.

The Solicitor General argued that deterrent sentences were required because the problem of human trafficking was increasing in the United Kingdom:

background information suggests that economic exploitation of non-EEA nationals is growing and the problem is largely undisclosed … The International Labour Organisation estimates that only 10% of international trafficking relates to sexual exploitation and that most human trafficking is for economic purposes from developing to developed countries …”

The Solicitor General further argued that the offences amounted to:

a persistent campaign of exploitation involving nine vulnerable men over a prolonged period of time”.

The offenders submitted that the gravity of the offending was mitigated as there had been no physical injury or permanent harm; victims were not illegal immigrants or smuggled in to the country; there had been Home Office oversight of the restaurant and the victims had both returned to the restaurant after trips home and recommended their employers to friends.

The court, whilst noting that the voluntary return of the victims was a striking feature, dismissed this argument on the ground that the victims had not been exercising effective choice – they were driven to return by the economic circumstances in their home countries. There had also been promises of improved working conditions and behaviour. The court held that it was in fact:

evidence of further exploitation by the offenders of personal circumstances of which they knew they could take advantage”.

A second striking feature noted was the offenders’ attempted control and/or persuasion of the victims to give untruthful accounts to the police.

The Court of Appeal outlined 8 factors that require consideration when sentencing a Section 4 offence, which broadly fall into the following categories:

The Type of Exploitation:

• The nature and degree of deception or coercion – coercion will be an unusual aggravating feature in a case of economic exploitation;
• Nature and degree of exploitation exercised – both in relation to the degree that the conditions/pay promised are denied on arrival and the extent to which those conditions offend UK common standards;
• Level and methods of control exercise

The Victims

• Level of vulnerability of the worker – including economic, physical and psychological factors
• Degree of harm suffered
• The numbers of victims

The Organisation and the Offender:

• The level of organisation and planning; the gain sought or achieved; and the offender’s status in the organisation
• Previous convictions for similar offences

The court concluded that the seriousness of the Khans’ offence was primarily in the scale of its planning, organisation, manipulation and deception with workers having been kept in conditions that the Defence had conceded were close to slavery. The court accepted that an element of general deterrence was appropriate in assessing sentence and held that:

despite the care with which the learned judge approached the assessment of sentence, sentences of 3 years imprisonment for offending of this magnitude were unduly lenient. Giving limited credit for personal mitigation it is our view that sentences of 5 years imprisonment would have been appropriate. We recognise that the male offenders are still comparatively young men for whom sentences of imprisonment will have lasting consequences. They have had to await a second sentencing process and the effect of that process should be reflected in a further reduction from the appropriate sentence to 4 years imprisonment.”

It was argued on behalf of Mrs Khan that a hospital order should have been made under Section 37 of the Mental Health Act 1983 as Mrs. Khan fulfilled the conditions under Section 37(2) –  two medical experts had given evidence that she suffered from a mental disorder which was of a degree that made it appropriate for her to be detained in a hospital for medical treatment, and the most suitable method of sentence was a hospital order.  At first instance, the judge had accepted that Mrs. Khan suffered from a depressive disorder but concluded that part of her behaviour was “manipulative, histrionic and exaggerated”.

The Court of Appeal, referring to Khelifi [2006]2 Cr App R (S) 100, noted that a hospital order is still discretionary in those circumstances and that the appropriate sentence must be assessed according to the seriousness of the offence. Accordingly, a sentence of imprisonment was necessary but the court left Mrs Khan’s sentence of 3 years unaltered as:

“we have concluded that the uncertain and fluctuating state of her mental health should preserve her from the logical consequences of our decision.”

The court’s strict deterrence approach in this case may be contrasted to its recent more nuanced consideration of the thorny issue of when to prosecute victims of trafficking – previously considered here .

Related posts:

• When, and when not, to prosecute victims of human trafficking
• Case comment: Cadder – Presence of a lawyer at police interview required by Strasbourg rights of defence
• Fruit of the poisoned tree: evidence obtained under torture in the UK