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Neutral Citation Number: [ 2010 ] EWCA Crim 2880 |
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Case Nos : 201002998 A3, 201002997 A3, 201005469 A3 |
COURT
OF
APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM
HHJ Marson QC sitting at Leeds Crown Court on 7th May
2010
and 13th September
2010
and in the matter
of
application
nos
.
37, 38
and
65 of 2010
by
HM
Attorney
General under section 36 Criminal Justice Act 1988
|
|
Royal Courts of Justice Strand, London, WC2A 2LL |
|
|
09/12/ 2010![](/images/contextdown.png) |
B e f o r e :
LORD JUSTICE PITCHFORD
MR JUSTICE HENRIQUES
and
HHJ MILFORD QC
____________________
Between:
____________________
Edward Garnier QC, HM Solicitor General, and Edward Brown QC instructed by HM
Attorney
General
Mr Nicholas Lumley (instructed by Clarion - Solicitors) for the First Respondent/Applicant
Mr Balraj Bhatia (instructed by Kamrans - Solicitors) for the Second Respondent/Applicant
Mr Zarif Khan (instructed by Opus Law - Solicitors) for the Third Respondent/Applicant
Hearing date: 9 November
2010
____________________
HTML VERSION
OF
JUDGMENT
____________________
Crown Copyright ©
Lord Justice Pitchford :
- On 9th November
2010
the court heard the Solicitor General's application under section 36 Criminal Justice Act 1988 for leave to review sentences imposed by HHJ Marson QC sitting at Leeds Crown Court on 7th May
2010
and 13th September
2010
. The Registrar had also referred to the full court the offenders' applications for leave to appeal against the same sentences. We propose to consider each
of
these applications in a composite judgment.
- On 26 March
2010
, following a trial which lasted some 12 weeks at Leeds Crown Court, the offenders were convicted
of
an offence
of
statutory conspiracy to traffic persons for the purpose
of
exploitation contrary to section 4 Asylum & Immigration (Treatment
of
Claimants, etc) Act 2004. On 7 May
2010
the male defendants, Shahnawaz Ali Khan, and Raza Ali Khan were each sentenced to a period
of
3 years imprisonment. Sentence upon their mother, Perveen Khan, was postponed until 13 September
2010
when she too received a sentence
of
3 years imprisonment. Shahnawaz Ali Khan was born on 24 September 1979 and is aged 31 years. Raza Ali Khan was born on 18 August 1976 and is aged 34 years. Perveen Khan was born on 1 January 1955 and is aged 55 years.
- The Khan family moved to Harrogate in 1987. In about 1992 Mrs Khan opened a restaurant, the Rajput. Her husband, Ali Khan, worked for the local council. As youngsters, the two sons were encouraged to take an interest in the restaurant business. Shahnawaz Ali Khan, when he was not in school or college, worked in the restaurant. In about 2000 Mr Ali Khan retired and he assisted in the restaurant until about 2002. In that year, the two brothers became partners in the business. Their mother continued in titular charge but it was the brothers who took the more active roles in its management. Shahnawaz was the head chef and Raza was responsible for front
of
house functions. In early 2004 Mrs Khan was diagnosed with breast cancer and underwent a period
of
treatment. During the period
of
the conspiracy, between 2004 and 2008, Mrs Khan was on most days present at the Rajput but worked fewer hours than her sons. She was commonly referred to by her sons and the employees
of
the restaurant as "the boss". Little or nothing occurred without Mrs Khan's approval. During a period
of
over 4 years the offenders recruited from the Middle East and the Indian continent nine men who worked for varying periods
of
time at the restaurant. In 2008, as a result
of
complaints, the restaurant was visited by police who discovered that these employees, deceived by promises
of
attractive wages and working conditions in the United Kingdom, had been subjected to conditions
of
neglect, abuse, deprivation and economic exploitation.
- All non-EEA (European Economic Area) nationals seeking entry or permission to remain in the United Kingdom for the purposes
of
employment require a work permit. In the present case work permits and visas were issued under the UK's business and commercial scheme. The scheme permits employers in the United Kingdom to recruit workers from outside the EEA in order to fill vacancies for which they cannot find "resident workers". When making the application the employer must satisfy a number
of
criteria including that the pay and conditions
of
the position are equal to those which would be provided to a resident worker doing similar work. A work permit is issued for a specified period
of
time which at the time
of
the relevant applications was for a maximum period
of
60 months. Several
of
the present complainants received work permits valid for about 18 months. The employer is responsible for forwarding the original work permit to the worker. The worker seeking entry into the United Kingdom must present the permit to the relevant British consular service office in support
of
the application for a work permit visa. The offenders' system was to identify prospective employees and to make promises
of
favourable conditions
of
employment. Those terms
of
employment were repeated in applications made for work permits. Few or
no
records were kept
of
the employment or the victim's income tax affairs. It follows that the repeated failure
of
the offenders to employ the workers on the terms represented to the Home Office represents a deception both upon the victims themselves and upon the Home Office.
- The court has been provided with the judge's summing up to the jury and a transcript
of
his sentencing remarks. A pattern
of
conduct emerged from the evidence. On arrival in the United Kingdom each
of
the victims suffered many or all
of
the following methods
of
exploitation: he would be met at the airport and escorted to Harrogate where his passport and other documents, many
of
them personal and confidential, were confiscated; he was required to arrive with bond money or to tolerate deductions from his income in lieu
of
bond money; bond money was not returned; if he questioned his working conditions or the terms
of
his employment the worker was subjected to threats, abuse and insult; contrary to the terms upon which he was engaged he was required to work 12 hours or more a day for 6-7 days a week; he did not receive due recompense for overtime and in several cases did not receive even his basic salary; the men were housed at two addresses provided by the offenders, one
of
which was next door to the Khan family home, and were told that they should not visit the town, should not talk with customers and should not mix with the local community; they were never provided with national insurance numbers, which would have enabled them apply for other employment, or wage slips, which would have provided evidence
of
salary received, and were not, as promised, registered with the National Health Service for medical and dental treatment.
- Section 4 Asylum and Immigration (Treatment
of
Claimants etc) Act 2004 provides:
"(1) A person commits an offence if he arranges or facilitates the arrival in the UK or an individual ("the passenger") and:
(a) he intends to exploit the passenger in the United Kingdom or elsewhere ...
(4) For the purposes
of
this section a person is exploited if (and only if):
(c) He is subjected to force, threats or deception designed to induce him:
(i) to provide services
of
any kind,
(ii) to provide another person with benefits
of
any kind, or
(iii) to enable another person to acquire benefits
of
any kind ..."
- The maximum sentence for an offence under section 4 is 14 years imprisonment.
- We shall refer to the evidence
of
Mohammed Shabir whose experience is representative
of
several
of
the victims. Mr Shabir worked at the Rajput Restaurant for a period
of
just over 5 months between 1 March and 13 August 2008 although, as we have said, most
of
the complainants worked for longer periods
of
time. In about 2006 Mr Shabir was working as a chef in a restaurant in Dubai visited by Raza Khan and his wife. Raza Khan offered him a job. At first Mr Shabir did not express interest but Raza Khan returned to the restaurant and repeated his offer. He made a video film
of
an "interview" between himself and Mr Shabir and told Mr Shabir that he would show it to his mother. Mr Shabir was informed that the salary would be 4 to 5 times what he was then earning; he would be given one day off work per week and would work 9 hours a day. Accommodation, laundry and medical help would be provided. Later, the offender Shahnawaz Ali Khan visited Dubai and called at the restaurant. He too interviewed Mr Shabir. On 15 November 2006 the Home Office received an application from Shahnawaz Ali Khan on behalf
of
the Rajput restaurant seeking a work permit for Mr Shabir representing that he would work 42 hours per week at a salary
of
£12,000, with allowances for accommodation, travel and food
of
£5,500. Eventually a work permit was granted in respect
of
an application for Mr Shabir who, it was said, would receive a salary
of
£15,000 for a 42 hour week, free accommodation, allowances
of
£2,000 and a performance related bonus
of
£500-£1,000. The work permit was granted on 14 January 2008. On 17 February 2008, after the visa had been obtained, Shahnawaz Khan requested Mr Shabir to telephone his mother, Perveen Khan. She approved
of
his appointment and on 28 February 2008 Mr Shabir landed at Manchester airport.
- He was met at the airport by Shahnawaz Khan. He was taken to 71 Green Lane, the family home. Shahnawaz Khan searched Mr Shabir, patting him down, and then searched his bag, removing and retaining Mr Shabir's documents including his
references
, passport and a title to land. When he questioned Shahnawaz Khan's conduct Mr Shabir was told that it was the law
of
the United Kingdom. Mr Shabir shared a room in the bungalow next door at 73 Green Lane. He was required to work up to 13 hours per day commencing at about 2.15 pm and finishing between 2 am and 2.45 am. During busy weekends he would not finish until about 3.15 am. Mr Shabir could not read English. Sums
of
money were sent to his account in Pakistan for the benefit
of
his family but he received for himself very small sums
of
money in cash. He did not receive wage slips. He had to be given money for a haircut and to return with the change. He was never issued with a National Insurance number and none was applied for. In the kitchen he was treated to abuse, being called a donkey, a "bottom boy" and the like. He had never experienced such treatment in over 16 years in Dubai. He told the jury that Mrs Khan treated him like an animal. Mrs Khan would say to him, "May God destroy you and your home and take your wife off the world". He was told that he was not permitted to chat with others or to visit the town. The staff were encouraged to report on one another. He was discouraged from seeking medical or dental help. On 12 August 2008 he escaped the restaurant with two others and was taken to Halifax. The following day they went to a police station to make a complaint.
- The other workers described similar treatment although their exposure to one or other
of
the Khan brothers depended largely upon whether they worked in the kitchen or front
of
house. Protest or complaint was simply not tolerated. On
no
account was Mrs Khan to be crossed. Out
of
the public eye she, with the support
of
her sons, treated the men with contempt while demanding from them obeisance. If the workers attempted to raise grievances with any
of
the offenders their complaints would be stalled, deflected or ignored. If anyone persisted he would be met with threats or abuse.
- At trial the two male defendants gave evidence while their mother did not. In general, their evidence constituted a root and branch denial
of
the victims' description
of
their treatment. Any shortfall between what was promised and what was received was explained as a mistake or inefficiency. The defendants described their good works in the community in which they lived and claimed that they had been utterly misrepresented by the prosecution witnesses.
- It is the Solicitor General's submission that this was a bad case
of
its type. Furthermore, the Solicitor submits that deterrent sentences are required. We have been provided with background information which suggests that economic exploitation
of
non-EEA nationals is growing and the problem is largely undisclosed. The international background against which these submissions are made is as follows. Section 4
of
the 2004 Act was brought into force on 1 December 2004 following ratification by the UK Government
of
the UN Trafficking Protocol 2000 and in compliance with the United Kingdom's obligations under International Human Rights law and the European Convention on Human Rights. In December 2008 the United Kingdom Government ratified the Council
of
Europe Convention on Action Against Trafficking in Human Beings which came into force on 1 April 2009. 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, suggesting that it is primarily related to poverty, lack
of
education and poor employment opportunities in the country
of
origin. The International Labour Office, in conjunction with the European Commission, published the results
of
the "Delphi Survey" in March 2009 in which were identified indicators, compiled by an international team
of
experts, to assist investigators to identify the victims
of
trafficking. "Adults for labour exploitation" was one
of
four categories
of
victims identified. The indicators are subdivided as follows:
(1) Deceptive recruitment;
(2) Coercive recruitment;
(3) Recruitment by abuse
of
vulnerability;
(4) Exploitation at work;
(5) Coercion at destination;
(6) Abuse
of
vulnerability at destination.
Many
of
the indicators are present in the current case.
- The Serious Organised Crime Agency, including the United Kingdom Human Trafficking Centre, has concluded that the United Kingdom is primarily a destination state. Reliable statistics for the trafficking
of
people for economic purposes are difficult to obtain by reason
of
the fact that this is largely an underground phenomenon. The vulnerability
of
victims and their economic entrapment discourages requests for assistance from the police and other public services. It is noteworthy that in the present case those who escaped did so only with the assistance
of
a relative. Publicity and encouragement has increased the flow
of
information which has revealed that the problem in the United Kingdom is increasing, as in most developed western economies.
- The Solicitor General has described the current offending as a persistent campaign
of
exploitation involving nine vulnerable men over a prolonged period
of
time. We agree. The complainants were subjected to threats, coercion, bullying, control, restriction
of
liberty, excessive working hours, and suffered the theft
of
significant sums
of
money. The offenders were the principals, and the only principals involved in a business
of
economic exploitation. The motivation was financial. Each
of
the offenders played a different but prominent and complimentary role. Some
of
the victims were particularly vulnerable and badly affected by their experience. The pattern
of
offending demonstrated a significant degree
of
organisation and planning. The method adopted involved the deception not only
of
the victims but also
of
the United Kingdom which, on the strength
of
representations made by the offenders in the applications for work permits, granted both work permits and working visas.
- Our attention has been drawn to the fact that an offence committed under sections 25, 25A or 25B Immigration Act 1971 (facilitating a breach
of
UK immigration law, facilitating the arrival in the UK
of
an asylum seeker, facilitating breach
of
a deportation order) attracts a maximum sentence
of
14 years imprisonment. An offence committed contrary to section 57 Sexual Offences Act 2003 (trafficking to the UK for sexual exploitation) also attracts a maximum sentence
of
14 years imprisonment. In the case
of
section 25(1)(a) Immigration Act 1971 Lord Bingham CJ said in R v Van Binh Le and Rudi Heinrich Stark [1999] 1Cr. App. R (S) 422 at page 425:
"The offence is one which calls very often for deterrent sentences and, as the statistics make plain, the problem
of
illegal entry is on the increase. Plainly the 7 year maximum sentence [as it was then] must accommodate offences with the most aggravating features. There are indeed a number
of
features which may aggravate the commission
of
this offence. One aggravating feature plainly is where the offence has been repeated and the defendant comes before the court with a record
of
violations
of
this provision. It is also an aggravating feature where the offence has been committed for financial gain, and it is an aggravating feature where the illegal entry has been facilitated for strangers as opposed to a spouse or a close member
of
the family. In cases
of
conspiracy, it is an aggravating feature where the offence has been committed over a period, and, whether or not there is a conspiracy, the offence is aggravated by a high degree
of
planning, organisation and sophistication. Plainly, the more prominent the role
of
the defendant the greater the aggravation
of
the offence. It is further aggravated if it is committed in relation to a large number
of
illegal entrants as opposed to one or a very small number. Lastly,
of
course, the maximum must cater for the case in which the defendant has contested the charge and so fail to earn the discount which a plea
of
guilty would have earned."
- We accept the Solicitor General's submission that offences under section 25
of
the 1971 Act will after trial routinely attract sentences in the range 3–8 years. Where an individual sentence will stand within this range will depend upon features
of
aggravation such as those identified by Lord Bingham. These offences are, however, committed in breach
of
immigration control. We also accept that by reason
of
the humiliation, degradation and gross personal harm which may attend cases
of
sexual exploitation, they will usually attract heavier sentences than offences committed contrary to section 4
of
the 2004 Act. In cases
of
conspiracy or multiple offences committed contrary to section 57 Sexual Offences Act 2003 total sentences in excess
of
the maximum have been imposed either by the imposition
of
consecutive sentences or in consequence
of
a conviction for conspiracy.
- It seems to this court that factors which require consideration when assessing the seriousness
of
an offence under section 4
of
the 2004 Act will include the following:
"(1) The nature and degree
of
deception or coercion exercised upon the incoming worker. Coercion will be an unusual aggravating feature in a case
of
economic exploitation. The gravamen
of
the offence committed against economic migrants is the deceitful promise
of
work on favourable terms;
(2) The nature and degree
of
exploitation exercised upon the worker on arrival in the work place. This will involve a consideration both
of
the degree to which what is promised is in fact denied on arrival and the extent to which treatment in the work place offends common standards within the United Kingdom;
(3) The level and methods
of
control exercised over the worker with a view to ensuring that he remains economically trapped;
(4) The level
of
vulnerability
of
the incoming worker, usually economic but also physical and psychological;
(5) The degree
of
harm suffered by the worker, physical, psychological and financial;
(6) The level
of
organisation and planning behind the scheme, the gain sought or achieved, and the offender's status and role within the organisation;
(7) The numbers
of
those exploited;
(8) Previous convictions for similar offences.
We think it probable that victims
of
these offences will routinely be strangers rather than family members. In cases
of
facilitating illegal entry to the United Kingdom, the fact the entrant is a family member and not a stranger may constitute some mitigation
of
the seriousness
of
the offence. The fact the victim
of
economic exploitation is a stranger is not, we consider, an aggravating feature
of
the basic offence.
- There are two striking features
of
the current offending to which we should separately refer. Several
of
the victims in the present case obtained the return
of
their passports for the purpose
of
returning to their country
of
origin at the expiry
of
their work permits/visas, or
of
visiting their families. Those returning to Pakistan left with blandishments from the offenders, asking them to return upon receipt
of
a further work permit and, on return, to bring with them clothing and objects for which they could expect to be repaid. In evidence, the complainants were asked why they returned to the UK. They said they were promised that their working conditions would be improved and the offenders' behaviour towards them would change. They were led to believe that they were valued employees. Their experience, however, was that having decided to return to the restaurant conditions did not improve, or did not improve significantly, and the offenders expected the goods delivered to be presented as gifts. The unspoken but clear explanation for the workers' preparedness to return to the risk
of
further subjection and helplessness was the contrast between the economic circumstances
of
the families they left behind and even the degraded expectation
of
a job in the UK. They would need to borrow money to fund their return to the UK and, in the process, be driven further into dependence upon the goodwill
of
the offenders. Contrary to submissions made on behalf
of
the offenders we agree with the Solicitor General that the return
of
the workers does not constitute evidence that the conditions to which the workers were subjected were acceptable but, in the circumstances
of
the present case, is evidence
of
further exploitation by the offenders
of
personal circumstances
of
which they knew they could take advantage.
- Secondly, it is apparent that when police investigations began the offenders used their control over some
of
their workers and former workers by attempting to persuade them to give untruthful accounts
of
working conditions and the behaviour
of
their working colleagues in order to avoid a successful prosecution. In this they were unsuccessful.
- It is not, in the court's view, possible to identify in the present judgment ranges
of
appropriate sentences for offending at different levels
of
seriousness. The aggravating and mitigating features
of
the offence will vary considerably. For example, a single migrant worker employed domestically may be subjected not only to psychological coercion but also to physical violence. The individual harm to a single victim may therefore be a prominent feature in the assessment
of
the seriousness
of
the offence. In the present case actual violence is not alleged although several
of
the victims gave evidence that they feared that threats
of
violence and physical intimidation would lead to actual violence. In our judgment, the seriousness
of
the present offending is represented primarily by the scale
of
its planning, organisation, manipulation and deception. Several vulnerable workers were kept in conditions which counsel conceded were close to slavery. The offending took place over an extended period
of
time, affected many individuals, and was motivated purely by profit. We accept that when assessing sentence for offending
of
this seriousness an element
of
general deterrence is appropriate.
- The sentencing judge took conspicuous care in his identification
of
prominent features
of
the evidence which he accepted. He described the evidence
of
a conspiracy to traffic persons for the purpose
of
'labour exploitation' as overwhelming. He took account
of
the fact that the victims were not illegal entrants; each held a work permit. Over four years the offenders had brought into the UK nine men from disadvantaged backgrounds who "were
no
doubt keen to provide a good standard
of
living for their families back home". The offenders had exploited their ambition by luring them with the promise
of
wages well in excess
of
what they were earning and good working conditions. The majority spoke little or
no
English. Their passports and documents had been taken away. They were not prisoners but they were effectively "trapped and controlled, being unable to work legally elsewhere...and being unable to leave the country and return home". Each
of
them was to a greater or lesser extent subjected to verbal abuse, long working hours and insufficient payment. Other members
of
staff were asked to report on behaviour. They were discouraged from speaking with customers and having contact with others. Some were made to swear on the Koran as to their behaviour. Bonds were taken and not returned. Shahnawaz Khan had on two occasions defaced passports. The offenders' motive was greed and commercial gain. There was not the slightest measure
of
remorse for the plight
of
the complainants, some
of
whom had been deeply affected. The judge concluded that each
of
the offenders played a principal role in the full knowledge as to how each
of
the complainants was being treated. The judge described the main features
of
the evidence
of
each
of
the victims. His description included other features
of
the offending to which we have already made
reference
. The judge concluded that only immediate terms
of
imprisonment were appropriate.
- Shahnawaz Khan had a previous conviction for affray in 2005 in respect
of
which he was fined. Raza Ali Khan had previous convictions for affray in 1999, when he was sentenced to a community order, and for common assault in 2001, when he was made the subject
of
a suspended sentence.
No
convictions were recorded against Mrs Khan. The judge gave
no
indication that the previous convictions
of
the male offenders were material to his sentencing task and we concur with that view. The judge was in possession
of
pre-sentence reports upon each
of
the offenders. The offenders were continuing to minimise their culpability.
- In our judgment the starting point, before consideration is given to the personal circumstances
of
the accused, would be, after a trial, 6 years imprisonment.
- We shall now turn to the submissions made on behalf
of
the offenders. We were, most helpfully, provided with a note drafted jointly on behalf
of
each
of
the offenders, setting out in summary those submissions which applied to each
of
the offenders and those which applied to the individuals. It is conceded that the trial judge made an assessment
of
the evidence which was clearly open to him. Subject to personal factors, custodial sentences were merited. Counsel, however, draw attention to the following factors which, it is submitted, mitigate the gravity
of
the offending. There was
no
physical injury caused;
no
harm was permanent; the victims were not placed in physical danger; they were not illegal immigrants, smuggled into the country; the visa system was by its nature transparent. The Home Office made regular checks at the restaurant and required passports, visas and permits to be produced for each man found working on the premises; several
of
the victims returned home and renewed their visas; some
of
the victims recommended the Rajput restaurant to friends as a place to work; the investigation and conviction
of
the offenders had brought about the closure
of
the restaurant.
- It was submitted on behalf
of
Shahnawaz Ali Khan that he had been at his mother's side from an early age working within the restaurant environment. He was a capable, intelligent, and industrious young man who, were it not for the incentive for the restaurant, could have made a life for himself elsewhere. A very significant number
of
character
references
demonstrated a completely different side to Shahnawaz Khan's personality. He was highly regarded in the town
of
Harrogate and beyond. He had, as was confirmed by Mr Shabir, promoted Asian cuisine in the area and in schools, raising several thousands
of
pounds for charity. In 2002, when Shahnawaz Khan became a partner in the restaurant, he and his brother learned that it was in severe financial difficulty. The brothers were inefficient business people as were their parents. None
of
the offenders set out to traffic in people. This was a legitimate business which took advantage
of
the victims. Shahnawaz Khan was married with a young son.
- Some
of
the witnesses spoke
of
Raza Ali Khan as generally a friendly figure in the restaurant. He was not prominently involved in the recruitment
of
staff, nor in the taking
of
documents from the victims; his responsibility for the business was to handle the finances for which he had received
no
formal training. He believed that he may have paid too much money to some employees and not enough to others.
- Counsel for the male defendants suggested that a suspended sentence order would have provided an adequate reflection
of
the seriousness
of
their offending and would take full account
of
mitigating factors.
- Perveen Khan is aged 55 years and is a woman
of
previous good character. She was the person who built up the restaurant from nothing. Her relationship with the local Muslim community was a difficult one by reason
of
the fact that she had chosen a business role. Mrs Khan maintains that she had
no
personal involvement with the completion
of
applications for work permits. The offending behaviour did not begin until the running
of
the business was effectively handed over to her sons. A large number
of
character witnesses spoke highly
of
Mrs Khan's good nature, humour and hard work. Apart from suffering breast cancer in 2004, Mrs Khan had been referred by her general practitioner for bouts
of
anxiety, depression, chest pains and the like. She was admitted to a psychiatric unit shortly after her conviction and between 26 March
2010
and 13 September
2010
she was examined by Dr Mendelson, Dr Bloye and Dr King, all three
of
whom concurred in the opinion that Mrs Khan was suffering from a depressive disorder, a mental disorder within the meaning
of
the Mental Health Act 1983. They agreed that a hospital order under section 37
of
the Act was appropriate. Should such an order be made a restriction order was inappropriate. Dr King gave oral evidence at the sentencing hearing.
- In his sentencing remarks on 13 September
2010
the judge said [page 7/9-12]:
"There are...two sides to [Mrs Khan]; the public perception and the reality
of
what, in fact, was going on with some
of
the employees. And, as I say, in my judgement her culpability is very high."
The judge considered the medical evidence in Perveen Khan's case with care. He said [page7/13-9/4]:
"I turn now to the question
of
[Mrs Khan's] mental state and the appropriate disposal in what I confess I have found to be a very troubling and difficult case. There are a number
of
psychiatric reports in this case and I note from the latest report from Dr Bloye that he concludes there is a history
of
fluctuating depressive and anxiety symptoms and hypochondriacal beliefs. He concludes that her current presentation is consistent with a diagnosis
of
severe depressive disorder, and indeed Dr King has given evidence to that effect...He concludes [in his latest report] that she is probably self-obsessive, and can express distress in an exaggerated and demonstrative way, and this is exemplified by her numerous self-harm attempts, which appear to lack real suicidal intent, some
of
which are self-reported...Staff are sceptical that she is truly suicidal. A good deal
of
her behaviour comes across to them as theatrical and histrionic, and I bear in mind,
of
course, Dr King's evidence that this is part
of
her personality. I observed this lady over the course
of
the trial, which lasted for almost 3 months. During the course
of
that trial there was one period when it was said on her behalf that she was physically unfit to attend court. She had reported a number
of
symptoms and although...she had high blood pressure...there was
no
underlying physiological reason for any
of
her claimed symptoms. In his report
of
the 1st July Dr King says that staff report she sleeps well at night and is reasonably well. "There has been limited engagement with interventions", which accords with Dr King's evidence this morning about the pharmacological treatment she receives but otherwise there is little engagement...But "she has enjoyed pampering sessions and appears to be able to concentrate when interested in something". That accords with my observations
of
her during the course
of
the trial. When witnesses were speaking highly
of
her she was clearly interested and appeared to be preening herself in the dock, but where witnesses were speaking
of
her ill treatment [
of
them] she would scowl and shake her head."
- The judge repeated and acknowledged Dr King's evidence that Mrs Khan's theatrical and histrionic behaviour was an expression
of
her distress rather than wilful manipulation. He concluded [page 10/4-7]:
"In my judgment, having observed her during the course
of
the long trial and knowing what I know about her I am satisfied that a significant part
of
her behaviour is manipulative, histrionic and exaggerated."
Nevertheless, the judge accepted that Mrs Khan was suffering from a depressive disorder. He continued, "I am faced with the stark choice
of
either making a hospital order under section 37 as recommended by the doctors or passing a sentence
of
imprisonment". The judge noted [page 10/12] that the treating psychiatrist, Dr Kerr, had expressed the view that while Mrs Khan suffers from a depressive disorder "she likes to portray herself as more unwell than she is". The judge's view was that since Dr Kerr was the treating psychiatrist he probably had the closest knowledge
of
Mrs Khan. The judge himself concurred with Dr Kerr's opinion. He had given considerable thought to the question whether he should accede to the recommendation for an order under section 37. In reaching his decision he had paid particular attention to Mrs Khan's culpability, the seriousness
of
the offence and to Mrs Khan's present state
of
mental health. He came to the conclusion that the only sentence which could properly be imposed was a sentence
of
imprisonment. Should there be a deterioration Mrs Khan could be transferred to a psychiatric ward. Following sentence Mrs Khan was lodged at Holly House, the healthcare wing
of
HMP New Hall. However, by the date
of
the hearing before this court she was being re-located to the main prison.
- It is submitted on Mrs Khan's behalf that while the judge had a discretion whether or not to accede to the recommendation
of
the psychiatric experts, they were unanimous both as to diagnosis and appropriate treatment and the judge should have made a hospital order. In Khelifi [2006] 2 Cr App R (S) 100 this court re-iterated that an order under section 37 Mental Health Act 1983 is not the inevitable consequence
of
satisfaction
of
the conditions provided by section 37(2). There is
no
presumption. While the welfare
of
the offender is an important consideration, the appropriate sentence must be assessed according to the seriousness
of
the offence.
- We consider that the judge carried out the task
of
weighing the relevant factors with conspicuous care. He concluded that while Mrs Khan was suffering from a depressive illness she had exaggerated her symptoms in the past and was exaggerating at the time
of
sentence. This conclusion was plainly open to him. We note that there were recognised symptoms
of
a depressive illness which in Mrs Khan's case were absent or equivocal. She was sleeping well; she could concentrate; she had been fit to give evidence but declined to do so; she was selective in her submission to treatment. These features
of
Mrs Khan's illness were relevant to her ability to serve a sentence
of
imprisonment which, as the judge found, was richly deserved. This was not a case in respect
of
which it could be argued that Mrs Khan's mental condition had any causative influence upon her offending (see Nafei [2005] 2 Cr App R (S) 127). In our judgment the judge did not err in principle in reaching the conclusion that a sentence
of
imprisonment was necessary.
- None
of
the offenders could claim to have demonstrated genuine remorse or concern for the complainants. While they enjoyed a favourable reputation within the area served by their restaurant, and for that reason were able to present to the sentencing court many testimonials
of
good character, it was plain that there was an aspect
of
the offenders' characters which was kept hidden by their exploitative conduct towards their victims. In our view there was limited personal mitigation available to these offenders. The judge clearly had in mind that these were the first sentences
of
imprisonment which the offenders would be required to serve and mitigated their length accordingly. We have concluded 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. In Mrs Khan's case we have concluded that the uncertain and fluctuating state
of
her mental health should preserve her from the logical consequences
of
our decision.
- We therefore grant leave to the Solicitor General for a review
of
the sentences upon the three offenders. The sentences
of
3 years imprisonment in the cases
of
Shahnawaz Ali Khan and Raza Ali Khan will be quashed and sentences
of
4 years imprisonment substituted. The sentence
of
3 years imprisonment imposed upon Perveen Khan will take effect unaltered. The applications for leave to appeal sentence will be refused.
- Following the hearing the court received a letter from Mr AU Khan dated 11 November
2010
. We have not employed this letter in our deliberations. Mr Khan was present at the
reference and appeal hearing. The offenders made submissions by counsel. A further attempt by Mr Khan to engage the court by letter was not appropriate.
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URL: http://www.bailii.org/ew/cases/EWCA/Crim/2010/2880.html