R v Sk
|England & Wales
|MR JUSTICE LINDBLOM
|08 July 2011
| EWCA Crim 1691
|Case No: 201102228 C2
|Court of Appeal (Criminal Division)
|08 July 2011
 EWCA Crim 1691
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM SOUTHWARK CROWN COURT
His Honour Judge Rivlin QC, the Recorder of Westminster
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Toulson
Mr Justice Wyn Williams
Mr Justice Lindblom
Case No: 201102228 C2
Ms C. Haughey (instructed by the Crown Prosecution Service) for the Respondent
Ms E. Smaller (instructed by McCauley, Smith & Co) for the Appellant
Hearing date: 7 July 2011
On the 16 th of March 2011, in the Crown Court at Southwark before His Honour Judge Rivlin QC, the Recorder of Westminster, the appellant was convicted of the offence of trafficking into the United Kingdom for exploitation, contrary to section 4 (1) and (5) of the Asylum and Immigration (Treatment of Claimants) Act 2004. She was sentenced to nine months imprisonment, suspended for 24 months, and was ordered to comply with a residence requirement for a period of six months. She was also ordered to pay compensation of £25,000 to the complainant.
The appellant applied for leave to appeal against conviction, and her application was referred to the full court by the Registrar. At the outset of the hearing we granted leave and proceeded to hear the substantive appeal. At the end of the hearing we allowed the appeal, quashed the appellant's conviction and ordered a retrial. We now give our reasons.
The facts may be briefly stated. The complainant, to whom we shall refer as MM and who is now 47 years old, arrived in the United Kingdom from a country in Africa on the 7 th of October 2006. Her entry into the United Kingdom was arranged and paid for by the appellant. A contract of employment signed by the complainant and the appellant required the complainant to work as a housekeeper for the appellant, in return for payments which would be made into a bank account in the African country opened for this purpose. The complainant was also to be given a monthly allowance while she was in the United Kingdom. The complainant remained with the appellant until February 2010.
The complainant was later to say that she had decided to come to work for the appellant, whom she already knew and for whom she had worked occasionally in the African country, because she had separated from her husband and wanted to put her daughter through school in the African country. The complainant alleged, however, that once she had come to the United Kingdom she was treated badly by the appellant, made to work almost 24 hours a day, was poorly fed, was never allowed out on her own and seldom with others, had little contact with her family in the African country, and such contact as she had with them was listened to and sometimes recorded by the appellant. The complainant seemed not to know how much money had been paid into the bank account in the African country. Of the £10 per month which she was supposed to receive while she was in the United Kingdom, she had in fact been given very little.
On the 10 th of March 2009 the complainant registered with a medical centre in Harrow. Her GP was a Dr M.
On the 1 st of February 2010 the appellant took the complainant to the medical centre for an appointment with Dr M. An interpreter, Ms M, was present. The complainant had not met Dr M or Ms M before. While she was with Dr M the complainant disclosed that she was being ill-treated by the appellant. This was later reported to a charity in the Africa country by Ms M.
On the 11 th of February 2010 police officers, together with Ms M and representatives of the charity, went to the appellant's home and spoke to her and the complainant. The complainant left with them.
On the 22 nd of March 2010 the appellant was arrested, interviewed and released on bail while the police investigation went on.
On the 22 nd of June 2010 the appellant was interviewed again.
On the 1 st of September 2010 the appellant was charged with the offence of which she was eventually convicted.
The appellant's trial
The appellant's trial took place in March 2011. The complainant gave evidence. She said she had worked as a cleaner at the hospital run by the appellant's husband in the African country. After he had died she was made redundant. The appellant then proposed that the complainant should come to the United Kingdom and work for her. The complainant said that when she arrived at the appellant's home she was not given her own room. She was made to sleep on a mattress on the kitchen floor. She had to keep her belongings in a shed outside. Often she was cold at night. The appellant required her to work all day and into the night. She cooked, cleaned, worked in the garden and attended to the appellant's two children, which required her to work at night because both of them suffered from disabilities. She would only be allowed out to do the appellant's shopping or to take the appellant's son for a walk. If the appellant wanted something she would ring a bell to summon the complainant. The complainant was expected to be available to the appellant 24 hours a day. She stated in her evidence that she wanted to go home, but had no money to pay for the trip. She had received a monthly allowance of £10 during the first year of her time with the appellant. After that, however, she was given nothing. The appellant made payments of £27 a month into the bank account in the African country. After she was arrested, further payments were made into that account. The complainant she that she spoke to members of her family on the telephone but did not tell them about her suffering because she did not want them to worry. When she complained to the appellant she was given a warning letter, apparently written by a friend of the appellant in the African country. Being illiterate, she was unable to read the letter. When cross-examined, she acknowledged that she had not complained to anyone other than the appellant for the first three years. and she accepted that she had not been deprived of food.
The evidence of Mrs A, the appellant's friend in the African country, was read. She stated that she often spoke to the appellant. She had understood that the complainant was well treated by the appellant. In August 2007, after the appellant had told Mrs A that the complainant's behaviour and attitude were not to her liking, and asked Mrs A to send the complainant a letter. This Mrs A did. Later she sent another letter, again at the appellant's request. This second letter suggested to the complainant that she should do what she was asked to do by the appellant and reminded her that she was not allowed to get close to outsiders.
Ms M gave evidence. She stated that Dr M had asked her to enquire of the complainant about her working conditions. She denied encouraging the complainant to tell lies about the appellant.
Dr M gave evidence. She had become aware of allegations the complainant had made about her working conditions. These allegations Dr M recorded in her notes.
The jury was told of the appellant's interview by the police, in which she denied the allegations made against her.
The appellant gave evidence. She said that she had been born and brought up in Pakistan. She had moved to the African country when she married a doctor who had a hospital there. The complainant worked at the hospital. It was at the hospital that she and the complainant had met. The appellant's husband had died in 1998. She now lived in the United Kingdom. After her housekeeper had left and she had heard that the complainant was looking for work, she suggested to the complainant that she should come and work for her. The appellant denied that the complainant had been badly treated or made to sleep on a mattress on the kitchen floor. There was no spare bedroom in the house, but the complainant had been invited to share a room with the appellant or with the appellant's daughter. She had declined this offer because she wanted her privacy. She slept on a sofa-bed in the sitting room. The appellant said the complainant was required to work five to six hours a day, six days a week. When not working she would watch television. She often spoke to members of her family on the telephone. She was free to come and go, but only rarely did she choose to go out. The appellant denied knowing anything about a friend of hers in the African country having sent a warning letter to the complainant.
The appellant's evidence was supported by several witnesses called on her behalf, who said that when they visited her while the complainant was with her, they had had no reason to think that the complainant was being ill-treated or was unhappy.
Section 4 (1) of the Asylum and Immigration (Treatment of Claimants etc) Act 2004 provides:
"A person commits an offence if he arranges or facilitates the arrival in or the entry into the United Kingdom of an individual (the "passenger") and –
(a) he intends to exploit the passenger in the United Kingdom or elsewhere,…
Section 4 (4) of the 2004 Act defines exploitation for the purposes of the section. It was only the first of the four forms of exploitation included in that definition that the prosecution relied on in the appellant's case. The relevant provision is this:
"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),…".
We note in passing that a new offence of holding a person in slavery or servitude or requiring...
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