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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> COL v Director of Public Prosecutions [2022] EWHC 601 (Admin) (17 March 2022) URL: https://www.bailii.org/ew/cases/EWHC/Admin/2022/601.html Cite as: [2022] ACD 60, [2022] 2 Cr App R 14, [2022] EWHC 601 (Admin), [2022] Crim LR 755 |
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QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
DIVISIONAL COURT
Strand, London, WC2A 2LL |
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B e f o r e :
MR JUSTICE DOVE
____________________
COL |
Claimant |
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- and - |
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Director of Public Prosecutions |
Defendant |
____________________
John McGuinness QC and Andrew Johnson (instructed by CPS Appeals and Reviews Unit) for the Defendant
Hearing dates: 23rd February 2022
____________________
Crown Copyright ©
Mr Justice Dove :
Introduction
The claimant's case
The history of the decision to prosecute
The decision
(a) Dealing with events in the UAE, the decision recorded an inconsistency in relation to the account the claimant gave in a statement of January 2015 as to how she secured her contract to work for Mr and Mrs Aljaberi. A second inconsistency was noted between an account given in a Trafficking Expert Report of June 2014 from a Ms Kenny commissioned to consider the claimant's case, stating the claimant did not have any communication with Mr Aljaberi before she left the Philippines, contrasting with other accounts in which she stated that she was told she would be paid US $400 per month before she left the Philippines.
(b) In relation to the UK, the decision noted that whilst in interview with the police the claimant gave evidence that Mr Aljaberi had promised her £1000 per month if she came to the UK, in the Trafficking Expert's Report it was recorded that she was not told what her salary in the UK would be but was aware of the monthly salary of £1000 stated on the Certificate.
(c) Also, whilst in the UK the defendant noted that in a Facebook message to a Ms Wells (a person to whom she chatted on social media) the claimant, when addressing the question of her remuneration, did not say that Mr Aljaberi had promised to pay her £1000 per month. She also failed to mention the promise of payment of £1000 per month in a written account to Kanlungan (a charity that she was put in touch with and which is dedicated to assisting victims of trafficking), as well as in subsequent emails to them. Further, in her interview with the police in August 2013, she made no reference to the promise to be paid £1000 per month. Additionally, in the summary of the conclusive grounds decision no mention was made of the salary of £1000 per month being promised before she came to the UK.
(d) The defendant recorded an inconsistency between the claimant stating that she was told she would only work eight hours each day and 40 hours each week with a day off: if she was working six days for 8 hours that would be 48 hours rather than 40.
(e) There were inconsistencies regarding the frequency of payments and amounts paid by Mr Aljaberi and the circumstances in which she was given money to buy clothing.
"On all the available evidence, it is not possible to be sure exactly what the suspects may (or may not) have said to Ms L in the UAE in relation to salary and hours. There are contradictory accounts from her. Even if Ms L could be relied on as a reliable and credible witness about low pay and long working hours once in the UK this does not mean that any intention of the suspects to deceive can be proved from this.
The mere fact that a case consists of one person's word against another does not necessarily mean that the case can go no further, but it is helpful to identify any potential persuasive supporting or undermining evidence either way.
I have considered the Certificate of Employment which stated that her salary was US $400 a month in the UAE and the Certificate of Sponsorship to support her application for her visa to work in the UK stated that she was to be paid £1000 a month. This evidence of an apparent deception, if proved, would be of the authorities in order to procure Ms L's entry to the UAE and subsequently the UK. In itself, this is insufficient to prove that the suspects also deceived Ms L.
I acknowledge that Ms L's account is that she had seen the Certificate of Sponsorship and it stated that she was to be paid £1000 a month. However, Ms L has provided conflicting accounts to third parties as to whether the suspects told her, whilst she was in the UAE, what she would be paid in the UK.
On her account, Ms L had therefore been aware that the suspects had apparently put a higher wage figure in an official document in order to obtain her previous visa to work in the UAE. I have considered whether Ms L's evidence of what the suspects told her set out in the previous paragraph; and/or the evidence of the visa document could be introduced and relied on as demonstrating a predisposition by the suspects to deceive Ms L when they carried out a similar exercise upon entry to the UK. I have concluded that it is unlikely that it could demonstrate such a deceit.
Even if it could be proved, on her own account, that Mr A promised a salary of £1000 it is clear that Ms L had known full well why the suspects had put a higher figure in her UAE visa, having asked and been told, that it was to facilitate her visa entry from the Philippines into the UAE. The fact that the suspects may have repeated the same exercise and put a certain salary amount on the immigration document connected with her entry to the UK, without more, does not prove a deception had operated on the mind of Ms L. It may have amounted to a deception of the authorities to facilitate her entry into the UK but given the clear knowledge of how her entry to the UAE had been facilitated, it is unlikely to have deceived Ms L into believing it represented the whole amount she would be paid.
I have also considered the position of possible deception in relation to the hours that Mr A told Ms L she would work namely 40/48 hours. The issue here in relation to this offence is not what Ms L was paid or what hours she worked but whether the suspects arranged or facilitated the arrival in, or entry into, the UK of Ms L intending to exploit her. In my assessment, is it not likely that the evidence is such that it could be proved to the required standard that the suspects had arranged Ms L's arrival in the UK intending to exploit her. Firstly because it is not possible to be sure what was said to Ms L and by whom before she left the UAE to come to the UK and secondly, even if we could be sure what was said, it is not possible to prove that the suspects had at the time the intention to exploit her."
"This is where the suspect occupies a position in which he was expected to safeguard, or not to act against, the financial interests of another person and abused that position, dishonestly, intending by that abuse to make a gain/cause a loss. That is not the case in relation to employer and employee.
The position was discussed in R v Valujevs and Mezals [2014] EWCA Crim 2888 where the defendants were accused of defrauding migrants who had travelled to the UK voluntarily, and had signed up under the promise of well-paid work. The workers found out that their accommodation was a condition of their being given work for which they paid excessive rent, earnings were withheld and financial penalties were imposed. The defendants used fear and debt to exploit the agricultural workers. They were charged with fraud by abuse of position. This is distinguishable from the present case. The suspects are employers and Ms L was an employee. They were not in a position where they were expected to safeguard, or not to act against, the financial of Ms L and owed no fiduciary duty. The critical factor in the instant case was that there was evidence that the gangmasters has assumed control of, and responsibility for, collecting the workers' wages or that they controlled the wages when they were handed over."
"Inconsistent accounts The relevant inconsistencies I was addressing were not only concerned with the name of the agency but related to Ms L's contact with the agency, the payment of agency fees and who paid for her flights to the UAE.
As I explained in my letter, Ms L's core claim is that she was promised £1000 a month to work in the UK but was only paid £200 a month. Mr A's account is that she was paid as agreed and she did not raise an issue about what she was paid. Whilst I acknowledge that Ms L's circumstances were such that she could not be expected to provide documentary proof of how much she was paid, her various accounts, as set out in my letter, were confusing and contradictory and in my view are very likely to be considered unreliable."
"7. Section 4 of the Fraud Act 2006 I do not agree that my decision contains a misdirection on the application of section 4. The evidence in Valujevs & Mezals was such that the Court of Appeal held it was open to the jury to find as a fact that the defendants in the case (who were gangmasters) occupied a position in which they were expected to safeguard the financial interests of the workers they were supplying to do the work in circumstances where there was evidence a) the workers were provided with accommodation as a condition of being given work; b) they charged grossly excessive rent to inflate in the indebtedness of the workers; c) they withheld work until a worker had accrued a significant debt; d) they withheld legitimately earned moneys (or deducted moneys before handing them over) to recoup the workers suggest indebtedness; and e) they impose unwarranted financial penalties to inflate a workers indebtedness, thereby enabling them to justify withholding earnings or simply to take a worker's money.
My assessment of the admissible evidence in this case was that the suspects were not in a comparable position of control in respect of Ms L. It would be for the prosecution to prove the suspects occupied a position in which they were expected to safeguard the financial interests of Ms L. In my judgment, there was not a realistic prospect even on the basis that Ms L was not paid what she was promised or worked longer hours than she had been told she would be expected to work that the suspects would be convicted of a section 4 offence."
The grounds
The law
"23 Authority makes clear that a decision by the Director not to prosecute is susceptible to judicial review: see, for example, R v Director of Public Prosecutions, Ex p C [1995] 1 CrAppR 136. But, as the decided cases also make clear, the power of review is one to be sparingly exercised. The reasons for this are clear. The primary decision to prosecute or not to prosecute is entrusted by Parliament to the Director as head of an independent, professional prosecuting service, answerable to the Attorney General in his role as guardian of the public interest, and to no one else. It makes no difference that in practice the decision will ordinarily be taken by a senior member of the Crown Prosecution Service, as it was here, and not by the Director personally. In any borderline case the decision may be one of acute difficulty, since while a defendant whom a jury would be likely to convict should properly be brought to justice and tried, a defendant whom a jury would be likely to acquit should not be subjected to the trauma inherent in a criminal trial. If, in a case such as the present, the Director's provisional decision is not to prosecute, that decision will be subject to review by senior Treasury counsel who will exercise an independent professional judgment.
The Director and his officials (and senior Treasury counsel when consulted) will bring to their task of deciding whether to prosecute an experience and expertise which most courts called upon to review their decisions could not match. In most cases the decision will turn not on an analysis of the relevant legal principles but on the exercise of an informed judgment of how a case against a particular defendant, if brought, would be likely to fare in the context of a criminal trial before (in a serious case such as this) a jury. This exercise of judgment involves an assessment of the strength, by the end of the trial, of the evidence against the defendant and of the likely defences. It will often be impossible to stigmatise a judgment on such matters as wrong even if one disagrees with it. So the courts will not easily find that a decision not to prosecute is bad in law, on which basis alone the court is entitled to interfere. At the same time, the standard of review should not be set too high, since judicial review is the only means by which the citizen can seek redress against a decision not to prosecute and if the test were too exacting an effective remedy would be denied."
"44. The circumstances in which this court will intervene in relation to prosecutorial decisions are rare indeed. The principle of the separation of powers leads, as Sir John Thomas P put it in L v Director of Public Prosecutions [2013] EWHC 1752 at [7]; 177 JP 502, to the adoption of a "very strict self-denying ordinance".
45. An authoritative statement of this principle, and its application to cases of this type, was given by Lord Bingham of Cornhill in R (Corner House Research) v Director of the Serious Fraud Office (JUSTICE intervening) [2009] AC756, 840841, paras 3032:
"30. It is common ground in these proceedings that the Director is a public official appointed by the Crown but independent of it. He is entrusted by Parliament with discretionary powers to investigate suspected offences which reasonably appear to him to involve serious or complex fraud and to prosecute in such cases. These are powers given to him by Parliament as head of an independent, professional service who is subject only to the superintendence of the Attorney General. There is an obvious analogy with the position of the Director of Public Prosecutions. It is accepted that the decisions of the Director are not immune from review by the courts, but authority makes plain that only in highly exceptional cases will the court disturb the decisions of an independent prosecutor and investigator: R v Director of Public Prosecutions, Ex p C [1995] 1 Cr AppR 136, 141; R v Director of Public Prosecutions, Ex p Manning [2001] QB 330, para 23; R (Bermingham) v Director of the Serious Fraud Office [2007] QB 727, paras 6364; Mohit v Director of Public Prosecutions of Mauritius [2006] 1 WLR 3343, paras 17 and 21 citing and endorsing a passage in the judgment of the Supreme Court of Fiji in Matalulu v Director of Public Prosecutions [2003] 4 LRC 712, 735736; Sharma v Brown-Antoine [2007] 1 WLR 780, para 14(1) - (6). The House was not referred to any case in which a challenge had been made to a decision not to prosecute or investigate on public interest grounds.
31. The reasons why the courts are very slow to interfere are well understood. They are, first, that the powers in question are entrusted to the officers identified, and to no one else. No other authority may exercise these powers or make the judgments on which such exercise must depend.
Secondly, the courts have recognised (as it was described in the cited passage from Matalulu v Director of Public Prosecutions) _the polycentric character of official decision-making in such matters including policy and public interest considerations which are not susceptible of judicial review because it is within neither the constitutional function nor the practical competence of the courts to assess their merits'. Thirdly, the powers are conferred in very broad and unprescriptive terms.
32. Of course, and this again is uncontroversial, the discretions conferred on the Director are not unfettered. He must seek to exercise his powers so as to promote the statutory purpose for which he is given them.
He must direct himself correctly in law. He must act lawfully. He must do his best to exercise an objective judgment on the relevant material available to him. He must exercise his powers in good faith, uninfluenced by any ulterior motive, predilection or prejudice. In the present case, the claimants have not sought to impugn the Director's good faith and honesty in any way."
46. We distil the additional propositions from the authorities and the principles underlying them:
(1) Particularly where a CPS review decision is exceptionally detailed, thorough, and in accordance with CPS policy, it cannot be considered perverse: L's case 177 JP 502, para 32.
(2) A significant margin of discretion is given to prosecutors: L's case, para 43.
(3) Decision letters should be read in a broad and common-sense way, without being subjected to excessive or overly punctilious textual analysis.
(4) It is not incumbent on decision-makers to refer specifically to all the available evidence. An overall evaluation of the strength of a case falls to be made on the evidence as a whole, applying prosecutorial experience and expert judgment.
47 Lord Bingham recognised that prosecutorial decisions may be corrected for error of law, and a rare example of such a case was cited to us. In R (F) v Director of Public Prosecutions [2014] QB 581 the claimant, who did not wish to become pregnant, consented to her husband having sexual intercourse with her on the basis only that he would withdraw before ejaculating. During intercourse he stated that he would not do so. He ejaculated before she could object or do anything about it, and she became pregnant as a result. The Director's decision not to prosecute was quashed by this court because the decision-maker had misconstrued consent within section 74 of the 2003 Act. This was a question of legal analysis rather than of evidential evaluation. We will need to return to this authority because Ms Kaufmann relies on it in support of her over-arching submission on her first ground. What it demonstrates is that prosecutorial decisions are not immune from challenge in a sufficiently clear-cut case."
"14. The circumstances in which this court will intervene in respect of prosecutorial decisions by the DPP has been considered by this court in a long series of cases, most recently by Lord Burnett of Maldon LCJ and Jay J in R (Monica) v Director of Pubic Prosecutions [2018] EWHC 3508 (Admin) at [44] and following. It is unnecessary to consider these authorities in detail, because, as Sir John Thomas PQBD said in R (L) v Director of Public Prosecutions [2013] EWHC 1752 (Admin) at [3], the relevant law is very clear and uncontroversial.
15. The following propositions are relevant to this case.
i) A prosecutorial decision is amenable to challenge by judicial review but only on conventional public law grounds, e.g. if the policy upon which the decision was based was unlawful or if the decision-maker did not follow relevant lawful policy or if the decision is irrational in the sense that it was a decision not reasonably open to the decision-maker on the available material (R v Director of Public Prosecutions ex parte C [1995] 1 Cr App R 136 at page 141C-E; L at [4]; and R (Purvis) v Director of Public Prosecutions [2018] EWHC 1844 especially at [75]-[81]). "Irrationality", as used in C and L, includes the raft of conventional Wednesbury grounds for public law intervention, including where the decision-maker incorrectly applies the law (e.g. R (F) v Director of Public Prosecutions [2013] EWHC 945 (Admin)) or where his approach is wrong as a matter of law (R (B) v Director of Public Prosecutions [2009] EWHC 106 (Admin); [2009] 1 WLR 2072).
ii) If the decision-maker asks the right questions and informs himself properly, challenges to prosecutorial decisions will succeed "only in very rare cases" or "only in exceptionally rare circumstances" (L at [5] and the cases the referred to, and at [7]; see also Monica at [44], "rare indeed"). This is because Parliament has given the relevant function to the DPP as an independent decision-maker with particular experience and expertise in making such decisions which involve the exercise of judgment in relation to (e.g.) how disputed evidence is likely to be received at trial and whether a prosecution is in the public interest (R v Director of Public Prosecutions ex parte Manning and Melbourne [2000] EWHC 342 (Admin); [2001] QB 330 at [23] per Lord Bingham of Cornhill LCJ, citing C; and R (Corner House Research) v Serious Fraud Office [20018] UKHL 60; [2009] 1 AC 756 at [30]-[32] per Lord Bingham, cited with approval in Monica at [45]). Consequently, prosecutorial decision- makers have "a significant margin of discretion" (L at [43]; and Monica at [46(2)]). The result is that this court, whilst intervening if the decision is irrational or otherwise unlawful, has adopted a "very strict self-denying ordinance" (L at [7]).
iii) However, as Mr Grodzinski submitted, the margin allowed to the decisionmaker (and, hence, the deference this court gives to his decision) depends upon the issues with which he has to grapple and the circumstances of the case. The issues in this context often involve disputed evidence of primary fact, where the decision- maker's experience and expertise in considering how that evidence will be received at trial and predicting the verdict at trial will be a particularly powerful factor; and this court will be slow to hold that the decision- maker's assessment is irrational. Similarly, where the issue involves an assessment of the public interest. However, if the issue is essentially one of law, the decision- maker's experience and expertise are of less force, and this court will more readily be prepared to find that his conclusion was wrong in law.
iv) Whilst the exercise of the court's power to intervene will always be exceptional, because a decision not to prosecute is final subject only to judicial review, the exercise of the court's powers will be less rare in those circumstances than in the case of a decision to prosecute because the defendant is then free to challenge the prosecutor's case in the criminal court (B at [52]- [53] per Toulson LJ).
v) Prosecutorial "decision letters should be read in a broad and common-sense way, without being subjected to excessive or overly punctilious textual analysis" (Monica at [46(3)])."
"4 Fraud by abuse of position
(1) A person is in breach of this section if he
(a) occupies a position in which he is expected to safeguard, or not to act against, the financial interests of another person,
(b) dishonestly abuses that position, and
(c) intends, by means of the abuse of that position
(i) to make a gain for himself or another, or
(ii) to cause loss to another or to expose another to a risk of loss.
(2) A person may be regarded as having abused his position even though his conduct consisted of an omission rather than an act."
"4. There is no statutory explanation of what constitutes the circumstances set out in s.4(1)(a), so it must depend upon the facts of each case. Neither is the word "abuses" in s.4(1)(b) defined in the Statute. A good working meaning might be: "uses incorrectly" or "puts to improper use" the position held in a manner that is contrary to the expectation that arises because of that position. That appears to be the proposition which is accepted in the current edition of Archbold at para.21386.
6 Thus, in general terms, in respect of an offence charged under s.4 of the Fraud Act 2006, the prosecution has to prove four matters:
(1) that the defendant at the relevant time occupied a position in which he is expected to safeguard or, at least, not act against the financial interests of another. The current edition of Archbold, at para.21385, suggests that the "expectation" in s.4(1)(a) is that of the reasonable member of the public as personified by the jury. For present purposes we would accept that definition;
(2) that the defendant "abuses" that position, ie. he uses that position incorrectly or he puts it to improper use contrary to the expectation resulting from the position held;
(3) that the defendant's abuse of that position is dishonest; and
(4) that the defendant intends, by means of his dishonest abuse of that position, either to make a gain for himself or another person; or that he intends to cause loss to another or to expose another person to a risk of loss. As is clear from s.5 of the Act, the gain or loss must relate to money or any other property, but it can be a temporary gain or loss or a permanent one. But there does not have to be an actual gain or an actual loss."
"40. We stress, we have focused on the regulatory scheme that applies to gangmasters and whether or not the approach taken on this appeal will apply in future cases as regards others who, in different roles, take on the responsibility for collecting the wages of a worker, employed or self-employed, is not for this court to determine.
41. Although the statute does not provide any assistance on the issue, in our view the "expectation" in section 4 of the 2006 Act is an objective one. It is for the judge to assess whether the position held by the individual is capable of being one "in which he is expected to safeguard, or not to act against, the financial interests of another person". If it is so capable, it will be for the jury thereafter to determine whether or not they are sure that was the case. It would be untenable to suggest that the expectation should be that of either the potential victim (the test would, in all likelihood, be too low) or the defendant (the test is likely to be set too high). Therefore, this is an objective test based on the position of the reasonable person.
42. We are unpersuaded by the defendants' contentions that unlicensed gangmasters are not caught by this "expectation". In this regard we accept the submission of the prosecution that, although the defendants were allegedly acting as gangmasters without a licence, they do not fall outside the ambit of section 4. If they are guilty of count 1 then the expectation potentially applies with as much force as if they had been operating under a licence. There is plainly a strong link between the two alleged offences. The facts that underpin count 1 are equally relevant to the jury's assessment of count 2. We would suggest that the jury should be directed to consider count 1 first and that count 2 is dependent on a conviction on count 1, albeit the jury would then have to go on to consider the various additional elements of count 2.
43. The prosecution has relied on other forms of questionable financial behaviour on the part of the defendants as part of its reliance on section 4 of the 2006 Act, such as the general device of charging excessive sums for rent, withholding work in order to ensure that the worker in question was indebted to the gangmaster, or lending money to workers for which claims are later made for repayment (as opposed to deducting sums from wages). In our judgment, potentially reprehensible behaviour of this kind falls outside the financial interests of a person the gangmaster could properly be expected to safeguard or not to act against. Individuals do not commit a criminal offence under section 4 of the 2006 Act if they seek rental payments in excess of the market rate and gangmasters are not under an obligation to provide employment for those seeking work. Gangmasters are entitled to ask for repayment of moneys that they have lent to workers. Although we recognise that these can be difficult situations, the individual is able to look for accommodation or employment elsewhere and we are unpersuaded that this suggested behaviour on the part of the defendants arguably provides the basis for inclusion as particulars of a section 4 of the 2006 Act offence. In this critical sense we agree with the judge in the court below that to establish an abuse of position for the purposes of section 4 of the 2006 Act it is necessary for the prosecution to demonstrate a breach of a fiduciary duty, or a breach of an obligation that is akin to a fiduciary duty. This can conveniently be described, for instance, as a breach of trust or a breach of a privileged position in relation to the financial interests of another person. Section 4 does not apply to those who simply supply accommodation, goods, services or labour, whether on favourable or unfavourable terms and whether or not they have a stronger bargaining position. Therefore, the fact that an individual is a gangmaster who oers work or accommodation on particular terms, or lawfully requests the repayments of debts incurred by workers, does not ipso facto involve the abuse of a relevant position as regards the financial interests of another person.
44. We therefore concur with the conclusion of the judge that section 4 should not apply in "the general commercial area where individuals and businesses compete in markets of one kind or another, including labour markets, and are entitled to and expected to look after their own interests". We repeat, the critical factor in this case is that there is evidence that the defendants arguably assumed control of, and responsibility for, collecting the wages of the workers, or they controlled the wages at the moment that they were paid over, and the fact that they were acting as gangmasters merely provided the vital context relied on by the prosecution in which that role was assumed."
"4 Trafficking people for exploitation
(1) A person commits an offence when he arranges or facilitates the arrival in, or entry into, the United Kingdom of an individual (the passenger) and
(a) he intends to exploit the passenger in the United Kingdom or elsewhere, or
(b) he believes that another person is likely 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)
(a) he is the victim of behaviour that contravenes Article 4 of the Human Rights Convention (slavery and forced labour),
(b) he is encouraged, required or expected to do anything as a result of which he or another person would commit an offence under the Human Organ Transplant Act 1989 (c.31) or under section 32 or 33 of the Human Tissue Act 2004,
(c) he is subjected to force, threats or deception designed to induce him
(i) to provide services of any kind."
"33. As quoted above (at paragraph 21), the decision maker said in this letter that "exploitation is narrowly defined" itself a moot point (see, e.g., R v Karemera [2018] EWCA Crim 1432; [2019] 2 Cr App R 14 at [44] per Hallett LJ) and he continued that the relevant parts of the definition were slavery and forced labour (as defined in section 4(4)(a)); and, "the use of force designed to induce a person to provide services, provide another person with benefits or enable another person to acquire benefits". These words, Mr McGuinness submitted, although not referring to "threats" or "deception", were clearly a reference to section 4(4)(c). However, if they were, "deception" is a most notable absentee. The decision maker noted the Claimant's complaints of "her hours of employment were extremely long; she was paid significantly below what was due"; but, he said, there had been "no deception as to the nature of the work that would be undertaken" and the Claimant had been "remunerated for her services, albeit in sums alleged to be significantly less than agreed". The references here to hours and pay, and to "deception", however, were clearly made in the context of section 4(4)(a).
34. As indicated above (paragraph 23), in the August decision letter, the decision maker said that he had "considered each potential route through which the offence could be made out", which would on its face include the section 4(4)(c) route but then went on to consider seriatim those potential routes, not mentioning any section 4(4)(c) route, before concluding that the evidential test was not met. This is a clear indication that, in the August decision letter at least, the section 4(4)(c) route was not in his mind at all.
35. Therefore, although the June decision letter asserts that there is an insufficiency of evidence to sustain charges against Mr & Mrs Aljaberi on the basis that they deceived the Claimant to induce her to come to provide services in the UK, there is simply no indication in the June or August decision letter that the decision maker considered at all the relevant available evidence. There is no indication in either letter that the decision maker considered the available evidence as to (i) deception (notably the terms as to pay and hours settled prior to the Claimant's departure for the UK compared with the actual hours required and payments made in respect of the Claimant's work in London, including whether this amounted to deception on the part of Mr and/or Mrs Aljaberi), and (ii) if it were deception, whether the Claimant was induced by it to come and work in the UK; or that he considered the extent to which that evidence might support such a charge. As to (i), the Claimant's evidence was clear and (with the exception of one occasion when she referred to 48 rather than 40 hours per week) consistent; and, at least as to required hours, confirmed in the CoS.
As to (ii), the Claimant said in her interview that the proposed terms as to pay and hours were "the reason I came here" (ABE Interview Transcript, page 20); and, in her January 2014 statement, she said that she had only accepted the job in London "because it seemed that my working conditions in the UK would be better" (paragraph 20). Whilst I accept that, even though the decision maker's starting point was to accept the Claimant's evidence as credible (and, despite his concerns about inconsistencies etc, he drew no conclusion that her version of events was generally not credible), the decision maker might have considered that the evidence was still not sufficient to give a realistic prospect of conviction; but that is an issue with which the decision maker appears not to have wrestled.
36. In my view, although we were referred to authorities on the adequacy of reasons in public law decision making, this is not a reasons case: as Mr Douglas-Jones submitted, there is simply no evidence that the decision maker grappled with the assessment of the sufficiency of the available evidence against the elements of the offence by way of section 4(4)(c). In the absence of evidence, there is no basis for finding that he did. The decision maker's approach was thus fundamentally flawed."
Submissions and conclusions
"131. In assigning a Certificate of Sponsorship to private servants in diplomatic households, the sponsor will have guaranteed that you:
- are aged 18 years or over;
- will be employed as a private servant by, and in the household of;
(a) a named member of staff of a diplomatic or consular mission who has diplomatic privileges and immunity as defined by the Vienna Convention on Diplomatic relations; or
(b) a named official employed by an international organisation with certain privileges and immunities under United Kingdom or international law;
- intends to work full-time in domestic employment for that named employer;
- will not take up any other form of job for the sponsor other than private servant in the specified household; and
- will leave the United Kingdom when your permission to stay has expired.
Please note that you must provide written evidence of the terms and conditions of your employment in the United Kingdom in the form set out in the table below. This must be signed by you and your employer, who must be a diplomat."
Lord Justice Fulford VP