MC, MB, JP & JC [2019] EWCA Crim 1026
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MC, MB, JP and JC [2019] EWCA Crim 1026 concerned a Court of Appeal judgment dealing with an Attorney General’s reference on the ground of undue leniency brought by the Solicitor General in respect of two offenders, MC and MB, as well as applications for leave to appeal against sentence by those same two offenders and two co-accused, JC and JP, all of whom had been convicted after trial in the Crown Court at Birmingham before Her Honour Judge Stacey of various conspiracy offences relating to large-scale human trafficking and modern slavery.
On 22 February 2019, MC (aged 30) was convicted on six counts and sentenced to 11 years’ imprisonment; MB (aged 50) was convicted on all seven counts and sentenced to 9 years; JC (aged 24) was convicted on three counts and sentenced to 7 years; NZ received four-and-a-half years; and JP (aged 48) was convicted on three counts and sentenced to 8 years. The indictment comprised seven conspiracy counts, the first six of which were split into pairs to reflect the coming into force of the Modern Slavery Act 2015 on 31 July 2015. Count 1 charged conspiracy to traffic persons into the United Kingdom for labour exploitation under section 4(1)A of the Asylum and Immigration (Treatment of Claimants etc) Act 2004 between June 2012 and 31 July 2015. Count 2 charged the corresponding conspiracy under section 2(1) of the Modern Slavery Act 2015 between 1 August 2015 and 31 October 2017. Counts 3 and 4 mirrored that structure for trafficking within the United Kingdom, and counts 5 and 6 concerned conspiracy to require another to perform forced or compulsory labour. Count 7 charged conspiracy to acquire criminal property under section 329(1) of the Proceeds of Crime Act 2002 between 1 June 2012 and 31 October 2017. Slavery and Trafficking Prevention Orders were also imposed.
The offenders were part of a family-run organised criminal gang that trafficked vulnerable Polish nationals to and within the United Kingdom between June 2012 and October 2017. Sixty-six victims gave evidence at trial, but evidence suggested that as many as 200 individuals may have been trafficked and exploited by the gang. Recruiters approached homeless and vulnerable individuals in north-eastern Poland, many with drug or alcohol problems and mental health difficulties, offering employment in the United Kingdom at weekly wages of £250 to £400 and accommodation. Victims were transported by coach, car or aeroplane and housed in properties that in many cases were squalid, overcrowded and infested, often lacking hot water, heating, cooking facilities or working lavatories. The victims were escorted to banks to open accounts, which the gang then controlled, and benefits and loans were obtained in their names. They were taken to employment agencies to obtain National Insurance numbers and placed in low-skilled work such as rubbish recycling, parcel sorting, vegetable harvesting and construction. Wages were paid into the controlled bank accounts and the victims received only a small fraction, typically as little as £50 per week out of wages of around £200, with manufactured debts and additional costs used to maintain financial control. The victims were subjected to threats and violence when they challenged the gang, including beatings, sexual violence, threats to harm families in Poland, and warnings that they would be forced to dig their own grave in the woods. The financial exploitation was valued at approximately £380,000, with criminal property generated in the region of £2 million. The operation came to light when organisers of a soup kitchen on which some victims relied for food reported complaints to the police, leading to a thorough investigation and arrests.
The prosecution case was that the operation was centred around the B family and headed by AB, who was awaiting extradition from Poland. MC was a family friend described by the judge as AB’s right-hand man, playing a leading role from at least 2014. He concentrated on trafficking within the United Kingdom and financial exploitation, operating in a very senior management role under AB’s overall direction. He met new arrivals, opened bank accounts, liaised with employment agencies and the benefits system, and was the main contact with a particular agency where JC worked as an insider. MC did not personally engage in violence but relied on others to do so. He directly controlled one of the houses where living conditions were especially squalid and controlled the bankcards. He was arrested twice but continued to participate while on police bail. After his second arrest in June 2015 he returned to Poland but continued his involvement, coordinating activities in the United Kingdom at a strategic level at least until early 2016. MB was AB’s uncle and involved from at least 2014. The judge found that as a senior family member he had an influential, high-level and significant role. He recruited victims in Poland and trafficked them into the United Kingdom both before and after 31 July 2015. He put some trafficked individuals to work decorating his own home, arranged work at a parcel-sorting factory, distributed meagre wages and controlled an unsavoury property and the financial correspondence sent there. He was not personally violent but knew that victims were subjected to violence and threats. His involvement also continued to some extent after 31 July 2015 but there was no evidence of involvement beyond early 2016.
JC was involved between February and November 2015. She was introduced into the conspiracy by MC at the age of 19. She worked for an employment agency and, together with MC, organised jobs for trafficked workers, using her position to circumvent internal systems designed to detect modern slavery. She infiltrated the agency and worked from the inside, registering 24 trafficked workers and receiving a £100 fee for each, with arrangements for her to receive £20 per week from each worker’s wages. The judge found she was an enthusiastic participant motivated by financial gain and that, although not personally cruel to victims, she was contemptuous towards them behind their backs. NZ was MC’s partner for three years and involved until late 2014 and early 2015. She played the least significant role and had no involvement in strategic aspects, but she trafficked workers within the United Kingdom, took them to job centres, housed some at her address in relatively good conditions but took half their wages and controlled their bank accounts. JP was AB’s mother and described by the judge as the matriarch of the family. She played a significant role in the operation, though strategic decisions were left to the men. Her home was used as the head office for the operation. Bankcards were stored there and new recruits were taken there on arrival. She personally withdrew funds from victims’ bank accounts. She was not personally cruel to victims, some of whom spoke well of her, but she knew they were being exploited and that their living conditions were poor. On one occasion when a man died at one of the houses she arranged for all relevant identity documents to be removed.
MC had no previous convictions in England but a conviction for fraud committed in Poland in 2008. He has a major heart condition requiring major surgery and his health is fragile. He has a young child. MB has no relevant previous convictions. JC and JP have no previous convictions. JP has very considerable on-going health issues, both physical and psychological, including major depressive disorder, and she was not in a fit position to give evidence at trial.
The judge set out the background facts with clarity and made clear findings regarding the respective roles and culpability of the offenders. She commended the detailed and thorough police investigation and described the offending as the most extensive, ambitious and prolific network of interlinking, overarching conspiracies to traffic large numbers into the United Kingdom for two forms of exploitation. She noted that the conspiracies extended significantly beyond the 66 complainants who gave evidence. She reviewed the relevant authorities, including Attorney-General’s Reference (Connors) [2013] 2 Cr App R (S) 71, Attorney-General’s Reference (Khan) [2011] 2 Cr App R (S) 31, Attorney-General’s Reference (Zielinski) [2017] EWCA Crim 758, Attorney-General’s Reference (Iyamu) [2019] 1 Cr App R (S) 16, and Rooney [2019] EWCA Crim 689. She observed that the case involved forced labour rather than serfdom or slavery. The judge deducted one year from her original starting point for each offender to reflect the extensive period on bail. She imposed concurrent sentences on all counts, loading the lead counts to reflect the totality of the offending.
Mr Louis Mably QC appeared for the Attorney-General, Mr Martin McCarthy for MC, Mr Anwar Afzal for MB, Mr Alex Rose for JP and Ms Claire Davies for JC. The Solicitor General argued that the sentences on MC and MB were unduly lenient, drawing attention to the high level of organisation and planning, the extensive and multi-dimensional operation, the deception involved, the large number of victims over a long period, the vulnerability of the victims, the high level of control imposed by coercive methods including actual or threatened violence, the squalid living conditions, the significant harm caused and the significant financial gain. He emphasised the scale, sophistication and seriousness of the conspiracy and submitted that exceptionally long sentences were mandated. He accepted that the sentences might have been considered appropriate had the maximum available been 14 years’ imprisonment (the maximum up until 31 July 2015), but contended that the absence of a maximum from that date made a difference. He acknowledged that the judge had expressed no error of principle and had left out no relevant consideration.
The Court of Appeal, comprising Lord Justice Davis, Mrs Justice Simler and the Recorder of London (His Honour Judge Hilliard QC), commended the judge for her thorough, detailed and clear sentencing remarks. Lord Justice Davis held that Mr Mably expressed no criticism of the sentencing remarks in terms of omitting relevant matters, considering irrelevant matters or misassessing the legal position, but submitted only that the judge had got it wrong in terms of the sentence ultimately selected. The Court held that although it was technically correct that the conspiracies both antedated and postdated 31 July 2015, and that for the latter period there was no limit on the maximum sentence available, this did not have the force the Solicitor General ascribed to it. Had the matter been charged as one conspiracy, the maximum would have been limited to 14 years under Hobbs [2002] 2 Cr App R 3. Although the conspiracies were properly separately charged and included conspiracies postdating 31 July 2015, so far as MC and MB were concerned their involvement, though continuing, did not necessarily remain at the same level and on the evidence seemed to have ended in the very early part of 2016. Consequently, a very significant part of the offending occurred when the 14-year maximum applied. In any event, it was plain from the sentencing remarks that the judge had taken a starting point in the case of MC of around 12 to 13 years before making deductions for delay and personal mitigation in the form of health, and overall had not regarded herself as fettered by any 14-year maximum. The same considerations applied to MB. The judge had made careful findings as to the extent of involvement and the respective culpability of the offenders and the Court had no basis for interfering with her assessment, particularly given that she had conducted a trial lasting several months and had a very good grasp of the feel of the case. By reference to the judge’s findings and the required approach, the Court held that it could not be said that the sentences on MC and MB were unduly lenient. The matter was one for the judge’s assessment and the Court saw no proper basis for interfering in the sentences imposed on the ground that they were unduly lenient. The Court refused leave to refer in each case.
Turning to the applications by the defendants for leave to appeal against sentence on the ground that the sentences were manifestly excessive, Mr McCarthy on behalf of MC conceded that he could not pursue an argument that the sentence of 11 years was manifestly excessive. The Court considered that appraisal wholly realistic and refused the application. Mr Anwar on behalf of MB sought to challenge the judge’s appraisal of MB’s role and involvement, but the Court saw no basis for interfering with the judge’s carefully articulated assessment. The Court rejected the submission that certain observations made by the judge at an earlier stage in the proceedings were material, holding that what mattered was the judge’s ultimate appraisal when she came to pass sentence in the light of the totality of the evidence. The judge had found that MB was fully aware of the scope of the conspiracy and had a high-level significant role at least from 2014 to the beginning of 2016, even if he had direct involvement with fewer complainants. The Court did not agree that the case was less serious than Zielinski so far as MB was concerned, given that the scale of the operation was far bigger and that in Zielinski the Court’s conclusion was that the very least sentence appropriate was 7 years’ imprisonment. The Court refused MB’s application for leave to appeal against sentence.
The Court found the position with regard to JC and JP far more difficult and granted leave to appeal against sentence in each case. So far as JC was concerned, the Court had no reason to interfere with the judge’s assessment that she was grasping, manipulative and an enthusiastic participant motivated by gain, or that her role had been crucial and extraordinarily productive in the period in which she was involved. However, the Court took account of other considerations. First and very importantly, her involvement was limited to the period between February and November 2015, a relatively short time compared to the others, and she had very little active involvement in what went on after July 2015. Moreover, whilst aware of the overall scale of the operation, she played no part in the actual trafficking into or within the United Kingdom and no part in the accommodation arrangements. It was not put to her that she was positively aware of threats of violence being made to complainants, even if she may have appreciated that they were not living in particularly good conditions. Her general knowledge of the scale and method of operation of the conspiracies was relatively limited. Furthermore, the actual employment which she secured for the individuals involved proper conditions of employment. In essence, her role was one of dishonesty and deceit of her employers, acting as an insider with a view to gain for the conspirators and for herself, albeit in the context of a conspiracy to require others to perform forced or compulsory labour and to acquire criminal property. She had only been charged on three counts, counts 5, 6 and 7. Furthermore, her involvement only started at the age of 19 and she was barely 20, if 20, at the time her involvement ceased, yet her sentence was only two years less than that of MB, who on any view had had a much longer-standing and much more significant and wider role. The Court held that, looking at matters in the round and bad though her conduct was, her sentence was too long. The Court quashed the sentence and substituted concurrent sentences of 5 years’ imprisonment on counts 5 and 6 and a further concurrent sentence of 4 years’ imprisonment on count 7, achieving an overall sentence of 5 years’ imprisonment. Her appeal was allowed to that extent.
Turning to JP, the Court considered it most surprising that she should receive a sentence of just one year less than that of MB and three-and-a-half years more than the co-accused NZ, who, although having limited involvement, had been convicted