Abstract
On 22 February 2019, the offenders (‘MC’, ‘MB’, ‘JC’ and ‘JP’) were convicted of various offences relating to their involvement in a ‘large-scale, sophisticated and extensive trafficking of Polish nationals to and within the United Kingdom for the purposes of exploitation’ (at [24]) and money laundering. There were seven counts on the indictment, each charging a conspiracy between June 2012 and October 2017 which involved numerous victims. In respect of counts one to six, they had in fact been split into pairs of counts to reflect the enactment of the Modern Slavery Act 2015 (‘MSA 2015’) and its predecessor legislation, during the operation of the criminal scheme.
The operation centred on the ‘B’ family and the head of the operation was AB who was in Poland awaiting extradition at the time of the hearing. The offenders induced vulnerable individuals to travel to the UK on the promise of employment and wages, as well as accommodation. Often those approached were, inter alia, homeless, addicted to alcohol and/or had mental health issues. Victims were taken to employment agencies and job centres to obtain National Insurance numbers and provided with unskilled or low skilled jobs. The victims were also forced to open bank accounts, over which the gang then exercised control. Victims would work long hours and would often be escorted to and from work, sometimes being driven several hours from accommodation. The victims were paid only a small part of their actual wages each week and much less than they had been promised, the rest of which would then be taken by the members of the gang. The accommodation provided was in many cases ‘squalid’, sometimes without heating or running water (at [22]). When victims challenged the offenders in relation to their living conditions or wages, they would be ‘subjected to threatened or (on occasion) actual violence, including sexual violence, and other forms of intimidation’ (at [25]). It was estimated that the value of the financial exploitation was in the region of £380,000, although the criminal property generated by the conspiracy involved some further £2 million.
In sentencing, Her Honour Judge Stacey clearly determined that this was a case of forced labour but did not amount to serfdom or slavery (at [41]). The judge took into account the period in which the offending took place and that ‘the conspiracies extended significantly beyond the 66 complainants who had been identified and who gave evidence at trial’ (at [40]). The judge imposed concurrent sentences on all counts making it clear that she ‘loaded’ the lead counts so as to reflect the totality of the offending (at [12]). MC was convicted in six of seven counts and received 11 years’ imprisonment. MB was convicted on all counts and sentenced to nine years’ imprisonment. JC was convicted on the three counts on which she faced trial and received seven years’ imprisonment. JP was similarly convicted and received eight years’ imprisonment. In addition, the offenders were made subject to a Slavery and Trafficking Prevention Order (‘STPO’).
The Solicitor General subsequently sought leave to challenge the sentences of MC and MB under s 36 of the Criminal Justice Act 1988 as unduly lenient. All four (‘MC’, ‘MB’, ‘JC’ and ‘JP’) sought to appeal the sentences as being manifestly excessive. At the time the appeal was brought, all four offenders had outstanding appeals against conviction.
The involvement of JC was of a relatively short period compared to the others and she had little active involvement after the relevant date (at [67]). While she was aware of the overall scale of the operation, she had no role in the trafficking within the UK nor the accommodation arrangements (at [68]). Her sentence was reduced to five years’ imprisonment (at [72]).
JP’s active participation in the conspiracy was limited, being in a subordinate position to MC and MB (at [74]). The sentence of eight years’ imprisonment was quashed, and a total of five-and-a-half years’ substituted (at [76]).
Commentary
It is noteworthy, at the time of writing, that the Sentencing Council will undertake a consultation between March-May 2020 and aims to publish definitive sentencing guidelines for modern slavery offences in spring 2021 (Sentencing Council, Business Plan Financial Year 2019/20 (November 2019) Annex D. Available at: https://www.sentencingcouncil.org.uk/wp-content/uploads/Sentencing-Council-Business-Plan-2019-20.pdf (accessed 29 Nov 2019). The Independent Anti-Slavery Commissioner (‘IASC’) has agreed to contribute to the development of the guidelines (IASC, Strategic Plan 2019-2021 (October 2019) para. 2.3.5). Further, the 2019 Independent Review of the Modern Slavery Act: Final Report (May 2019) p 64) recommended that the IASC monitor and review the outcomes of prosecutions and appeals to ensure that the courts are not taking an overly narrow interpretation of trafficking under s 2 of the MSA 2015, and whether it needs to be expanded legislatively in the future. It is submitted that any report that materialises from the IASC would prove instrumental in the Sentencing Council developing tailored sentencing guidelines in the following ways: firstly, by identifying flaws in the interpretation and application of legislation/existing guidance; secondly, taking cognisance of the issues judges commonly encounter when determining the level of sentence in cases that pre- and/or post-date the implementation of the MSA 2015; thirdly, ensuring that any guidelines are tailored in such a way as to prevent traffickers attempting to obviate the maximum custodial sentence imposed under the MSA 2015 and/or predecessor legislation; and finally, ensuring that effective sentences are not disproportionately reliant upon the presence of victim evidence.
Determining Level of Sentence for Trafficking Offences
Notwithstanding the absence of definitive sentencing guidelines, Lord Davies was mindful of ‘the scale, sophistication and seriousness of the conspiracy’ (at [54]), which mandated the ‘the need for appropriately severe sentencing for serious and exploitative criminality’ (at [51]). When assessing the level of seriousness, his Lordship explicitly rejected MB’s assertion that the offending was less serious than that in Zielinski (at [64]). In Zielinski, the conspiracy had lasted some nine months and involved the defendant (Z) who conspired with his family to trick desperate Polish people (who spoke no English) to travel to the UK on the promise of well-paid work. The offender and his family then housed the victims in appalling conditions, threatened and beat them, forced them to work in regular jobs and took their wages. There were six specific complainants, although it was assessed that there would have been more involved. Z was convicted of two counts of trafficking for exploitation contrary to s 2 of the MSA 2015, and one of conspiring with others to require another to perform forced or compulsory labour contrary to s 1. Z was sentenced to 12 months’ imprisonment for trafficking offences, and 4 years’ imprisonment for the forced compulsory labour, concurrent, with a STPO of 10 years. In sentencing, the trial judge applied the relevant considerations from Attorney-General’s Reference (Nos 2, 3, 4 and 5 of 2013) (Connors) [2013] 2 Cr App R (S) 71 (a case decided under s 71 of the CJA 2009, corresponding to s 1 of the MSA 2015), and having referred to the relevant statutory provisions, observed that current events were indicative of the growing concern at offending of this kind and that there was a need for deterrence. While the trial judge's sentencing comments were praised by the Court of Appeal, he erred in his evaluation of the gravity of the offending; it had to be borne in mind that some of the authorities referred to were decided by reference to a different sentencing regime, where the maximum available sentence was one of fourteen years' imprisonment. This case came under the MSA 2015 where the maximum is life imprisonment, and the sentence of four years’ imprisonment after a trial for the totality of this offending was much too low and should be, therefore, significantly increased to reflect the gravity of all that occurred. The sentences in respect of the trafficking offences were increased to two-and-a-half years’ imprisonment, and the forced compulsory labour to seven years’, concurrent.
It is apparent from that case and the present ruling that offending of this nature, involving as it does a very serious interference with the personal autonomy of the victim or victims, calls for severe punishment. As to the level of sentence, although it is common for the courts to have regard to the observations in Attorney-General’s Reference (Nos 2, 3, 4 and 5 of 2013) (Connors), Lord Davies in the present ruling (at [51]) reiterated the principle that in any case the level of sentence must be assessed ‘on [its] own particular facts and circumstances’.
While acknowledging that the instant case had a ‘broad similarity’ to Zielinski (at [50]), his Lordship pithily observed two distinguishing factors. Firstly, the offending in that case was of ‘a significantly lesser scale, in terms of organisation and volumes of those trafficked’ than the present case (at [50]); and secondly, a very significant part of the offending in the present case occurred when the 14-year maximum applied (at [56]).
Relevant Factors When Assessing Seriousness of Offence
In the instant case, the features of the offending which made it necessary for the judge to impose lengthy sentences included the “high level of organisation”, as well as the “extensive and multi-dimensional” nature of the operation (at [52]). The Court of Appeal also considered the non-exhaustive list of factors to be taken into account when assessing the seriousness of an offence in Attorney-General’s Reference (Nos 37, 38 and 65 of 2010) (Khan) [2011] 2 Cr App R (S) 31 (a case decided under s 4(1)A of the AIA 2004, corresponding to s 2 of the MSA 2015) which were approved in Attorney-General’s Reference (Nos 2, 3, 4 and 5 of 2013) (Connors) and Zielinski. These factors included:
the level of organisation and planning behind the scheme;
the deception involved from the outset of persuading the victim to travel to the UK;
the relatively large number of victims involved;
the duration of assistance and persistence of the conspiracy;
the poor standard of accommodation provided;
the methods used to control the victims;
the level of vulnerability of the victims;
the level of harm caused by the offending and the lasting effect on those victims from whom the court had heard; and
whether the offending was for financial gain.
When assessing the level and methods of control exercised over the victims, Lord Davies learned that ‘only few of those trafficked spoke English’ and that ‘most had never been abroad before in their lives’; this made them ‘wholly dependent on the gang members’ (at [23]). His Lordship noted the way in which the offenders would ‘escort the victims to various banks and made to open bank accounts, over which they exercised control’, therefore stealing ‘the financial identity of the victims’ (at [24]). Further, it was noted that the offenders would also claim benefits and take loans out in the victims’ names, and manufacture debts and additional costs in a way that ‘victims were deprived of any financial independence’ (at [24]). His Lordship, however, took care to emphasise that the means of control ‘did not simply depend on the vulnerability of the victims; it was also reinforced by threats and violence’, and ‘encouraging [the victims] to report on others’ in exchange for ‘extra privileges’ (at [25]).
Notwithstanding the Court’s recognition of the vulnerability of the victims, considered alongside the consistent campaign of exploitation and threats, it could be argued that the victims would have, in any event, been reluctant to contact the authorities. As noted in Attorney-General’s Reference (Nos 2, 3, 4 and 5 of 2013) (Connors) at [10], ‘[It] is far from straightforward for [victims] to complain about the way they are being treated, let alone to report their plight to the authorities so that the offenders might be brought to justice’. In fear of their immigration status and possible detainment as illegal entrants, it seems reasonable to assume that this potential risk of detention and prosecution would have deterred the victims from approaching authorities earlier.
Conclusion
Despite the welcome development of the Sentencing Council planning to work in collaboration with the IASC to issue definitive sentencing guidelines, it is disappointing that the present ruling is paradigmatic of the courts having to continue to rely on analogies with previous cases and repealed statutes, and the Sentencing Council’s apparent insouciance in having left the courts to develop existing guidance on a fragmented case-by-case basis. Notwithstanding the extrapolation of cases being indicative of the courts determination to deter persons from engaging in this type of offending, it is arguable that the courts role has been made more difficult by virtue of the Sentencing Council’s sclerotic attitude in producing and/or providing any interim guidelines since the enactment of the MSA 2015. While it is true that the courts have demonstrated a willingness to lay down general guidance in the past, there is a significant risk that their role may become attenuated by failing to impose effective sentences, leaving victims of exploitation to feel that are ‘invisible…[and] beyond the protection of the law’ (Attorney-General’s Reference (Nos 2, 3, 4 and 5 of 2013) (Connors) at [10]). It is therefore imperative that the Sentencing Council to issue and implement comprehensive, offence-specific guidelines as soon as reasonably practicable in order to prevent a cavalcade of similar cases reaching the appellate courts in the interim.