R v Khan, Khan and Khan; Attorney General's Reference Nos 37, 38 and 65 of 2010

JurisdictionEngland & Wales
JudgeLord Justice Pitchford,LORD JUSTICE PITCHFORD
Judgment Date09 December 2010
Neutral Citation[2010] EWCA Crim 3285,[2010] EWCA Crim 2880
Docket NumberCase Nos: 201002998 A3, 201002997 A3, 201005469 A3,No: 201002143/2260/2268/C3
CourtCourt of Appeal (Criminal Division)
Date09 December 2010
Between

REFERENCE BY THE ATTORNEY GENERAL UNDER S.36 CRIMINAL JUSTICE ACT 1988

ATTORNEY GENERAL'S REFERENCE NOS. 37, 38 AND 65 OF 2010

(Shahnawaz Ali Khan, Raza Ali Khan and Perveen Khan)
Regina
and
Shahnawaz Ali Khan, Raza Ali Khan and Perveen Khan

[2010] EWCA Crim 2880

Before: Lord Justice Pitchford

Mr Justice Henriques

and

HHJ Milford Qc

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 7 th May 2010

and 13 th 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

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

Lord Justice Pitchford

Lord Justice Pitchford:

1

On 9 th 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 7 th May 2010 and 13 th 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.

2

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.

3

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.

4

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.

5

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.

6

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 …”

7

The maximum sentence for an offence under section 4 is 14 years imprisonment.

8

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.

9

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...

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