Khan, R. v [2010] EWCA Crim 2880

[2010] EWCA Crim 2880Case Nos: 201002998 A3, 201002997 A3, 201005469 A3
COURT OF APPEAL (CRIMINAL DIVISION)
Date 7 th May 2010
ON APPEAL FROM
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
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Date: 09/12/2010
Before
LORD JUSTICE PITCHFORDMR JUSTICE HENRIQUESHHJ MILFORD QC
REFERENCE BY THE ATTORNEY GENERAL UNDERS.36 CRIMINAL JUSTICE ACT 1988ATTORNEY GENERAL’S REFERENCE NOs. 37, 38 and 65 of 2010(Shahnawaz Ali Khan, Raza Ali Khan and Perveen Khan)
Between
REGINACrownV
Between
SHAHNAWAZ ALI KHAN, RAZA ALI KHAN AND PERVEEN KHAN
Edward Garnier QC, HM Solicitor General, and Edward Brown QC instructed by HM Attorney Genera lMr Nicholas Lumley (instructed by Clarion - Solicitors) for First Respondent/ApplicantMr Balraj Bhatia (instructed by Kamrans - Solicitors) for Second Respondent/ApplicantMr Zarif Khan (instructed by Opus Law - Solicitors) for Third Respondent/ApplicantHearing Hearing date: 9 November 2010
Judgment
[1]On 9th 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 7th May 2010 and 13th 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 ...” (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 ...” (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 title to land. When he questioned Shahnawaz Khan’s conduct Mr Shabir was told that it was the law of the United Kingdom. Mr Shabir shared a room in the bungalow next door at 73 Green Lane. He was required to work up to 13 hours per day commencing at about 2.15 pm and finishing between 2 am and 2.45 am. During busy weekends he would not finish until about 3.15 am. Mr Shabir could not read English. Sums of money were sent to his account in Pakistan for the benefit of his family but he received for himself very small sums of money in cash. He did not receive wage slips. He had to be given money for a haircut and to return with the change. He was never issued with a National Insurance number and none was applied for. In the kitchen he was treated to abuse, being called a donkey, a “bottom boy” and the like. He had never experienced such treatment in over 16 years in Dubai. He told the jury that Mrs Khan treated him like an animal. Mrs Khan would say to him, “May God destroy you and your home and take your wife off the world”. He was told that he was not permitted to chat with others or to visit the town. The staff were encouraged to report on one another. He was discouraged from seeking medical or dental help. On 12 August 2008 he escaped the restaurant with two others and was taken to Halifax. The following day they went to a police station to make a complaint.[10]The other workers described similar treatment although their exposure to one or other of the Khan brothers depended largely upon whether they worked in the kitchen or front of house. Protest or complaint was simply not tolerated. On no account was Mrs Khan to be crossed. Out of the public eye she, with the support of her sons, treated the men with contempt while demanding from them obeisance. If the workers attempted to raise grievances with any of the offenders their complaints would be stalled, deflected or ignored. If anyone persisted he would be met with threats or abuse.[11]At trial the two male defendants gave evidence while their mother did not. In general, their evidence constituted a root and branch denial of the victims’ description of their treatment. Any shortfall between what was promised and what was received was explained as a mistake or inefficiency. The defendants described their good works in the community in which they lived and claimed that they had been utterly misrepresented by the prosecution witnesses.[12]It is the Solicitor General’s submission that this was a bad case of its type. Furthermore, the Solicitor submits that deterrent sentences are required. We have been provided with background information which suggests that economic exploitation of non-EEA nationals is growing and the problem is largely undisclosed. The international background against which these submissions are made is as follows. Section 4 of the 2004 Act was brought into force on 1 December 2004 following ratification by the UK Government of the UN Trafficking Protocol 2000 and in compliance with the United Kingdom’s obligations under International Human Rights law and the European Convention on Human Rights. In December 2008 the United Kingdom Government ratified the Council of Europe Convention on Action Against Trafficking in Human Beings which came into force on 1 April 2009. The International Labour Organisation estimates that only 10% of international trafficking relates to sexual exploitation and that most human trafficking is for economic purposes from developing to developed countries, suggesting that it is primarily related to poverty, lack of education and poor employment opportunities in the country of origin. The International Labour Office, in conjunction with the European Commission, published the results of the “Delphi Survey” in March 2009 in which were identified indicators, compiled by an international team of experts, to assist investigators to identify the victims of trafficking. “Adults for labour exploitation” was one of four categories of victims identified. The indicators are subdivided as follows:(1) Deceptive recruitment;(2) Coercive recruitment;(3) Recruitment by abuse of vulnerability;(4) Exploitation at work;(5) Coercion at destination;(6) Abuse of vulnerability at destination. Many of the indicators are present in the current case.[13]The Serious Organised Crime Agency, including the United Kingdom Human Trafficking Centre, has concluded that the United Kingdom is primarily a destination state. Reliable statistics for the trafficking of people for economic purposes are difficult to obtain by reason of the fact that this is largely an underground phenomenon. The vulnerability of victims and their economic entrapment discourages requests for assistance from the police and other public services. It is noteworthy that in the present case those who escaped did so only with the assistance of a relative. Publicity and encouragement has increased the flow of information which has revealed that the problem in the United Kingdom is increasing, as in most developed western economies.[14]The Solicitor General has described the current offending as a persistent campaign of exploitation involving nine vulnerable men over a prolonged period of time. We agree. The complainants were subjected to threats, coercion, bullying, control, restriction of liberty, excessive working hours, and suffered the theft of significant sums of money. The offenders were the principals, and the only principals involved in a business of economic exploitation. The motivation was financial. Each of the offenders played a different but prominent and complimentary role. Some of the victims were particularly vulnerable and badly affected by their experience. The pattern of offending demonstrated a significant degree of organisation and planning. The method adopted involved the deception not only of the victims but also of the United Kingdom which, on the strength of representations made by the offenders in the applications for work permits, granted both work permits and working visas.[15]Our attention has been drawn to the fact that an offence committed under sections 25, 25A or 25B Immigration Act 1971 (facilitating a breach of UK immigration law, facilitating the arrival in the UK of an asylum seeker, facilitating breach of a deportation order) attracts a maximum sentence of 14 years imprisonment. An offence committed contrary to section 57 Sexual Offences Act 2003 (trafficking to the UK for sexual exploitation) also attracts a maximum sentence of 14 years imprisonment. In the case of section 25(1)(a) Immigration Act 1971 Lord Bingham CJ said in R v Van Binh Le and Rudi Heinrich Stark [1999] 1Cr. App.

(S) 422 at page 425:

“The offence is one which calls very often for deterrent sentences and, as the statistics make plain, the problem of illegal entry is on the increase. Plainly the 7 year maximum sentence [as it was then] must accommodate offences with the most aggravating features. There are indeed a number of features which may aggravate the commission of this offence. One aggravating feature plainly is where the offence has been repeated and the defendant comes before the court with a record of violations of this provision. It is also an aggravating feature where the offence has been committed for financial gain, and it is an aggravating feature where the illegal entry has been facilitated for strangers as opposed to a spouse or a close member of the family. In cases of conspiracy, it is an aggravating feature where the offence has been committed over a period, and, whether or not there is a conspiracy, the offence is aggravated by a high degree of planning, organisation and sophistication. Plainly, the more prominent the role of the defendant the greater the aggravation of the offence. It is further aggravated if it is committed in relation to a large number of illegal entrants as opposed to one or a very small number. Lastly, of course, the maximum must cater for the case in which the defendant has contested the charge and so fail to earn the discount which a plea of guilty would have earned.”
[16]We accept the Solicitor General’s submission that offences under section 25 of the 1971 Act will after trial routinely attract sentences in the range 3–8 years. Where an individual sentence will stand within this range will depend upon features of aggravation such as those identified by Lord Bingham. These offences are, however, committed in breach of immigration control. We also accept that by reason of the humiliation, degradation and gross personal harm which may attend cases of sexual exploitation, they will usually attract heavier sentences than offences committed contrary to section 4 of the 2004 Act. In cases of conspiracy or multiple offences committed contrary to section 57 Sexual Offences Act 2003 total sentences in excess of the maximum have been imposed either by the imposition of consecutive sentences or in consequence of a conviction for conspiracy.[17]It seems to this court that factors which require consideration when assessing the seriousness of an offence under section 4 of the 2004 Act will include the following: “(1) The nature and degree of deception or coercion exercised upon the incoming worker. Coercion will be an unusual aggravating feature in a case of economic exploitation. The gravamen of the offence committed against economic migrants is the deceitful promise of work on favourable terms; (2) The nature and degree of exploitation exercised upon the worker on arrival in the work place. This will involve a consideration both of the degree to which what is promised is in fact denied on arrival and the extent to which treatment in the work place offends common standards within the United Kingdom; (3) The level and methods of control exercised over the worker with a view to ensuring that he remains economically trapped; (4) The level of vulnerability of the incoming worker, usually economic but also physical and psychological; (5) The degree of harm suffered by the worker, physical, psychological and financial; (6) The level of organisation and planning behind the scheme, the gain sought or achieved, and the offender’s status and role within the organisation; (7) The numbers of those exploited; (8) Previous convictions for similar offences. We think it probable that victims of these offences will routinely be strangers rather than family members. In cases of facilitating illegal entry to the United Kingdom, the fact the entrant is a family member and not a stranger may constitute some mitigation of the seriousness of the offence. The fact the victim of economic exploitation is a stranger is not, we consider, an aggravating feature of the basic offence.[18]There are two striking features of the current offending to which we should separately refer. Several of the victims in the present case obtained the return of their passports for the purpose of returning to their country of origin at the expiry of their work permits/visas, or of visiting their families. Those returning to Pakistan left with blandishments from the offenders, asking them to return upon receipt of a further work permit and, on return, to bring with them clothing and objects for which they could expect to be repaid. In evidence, the complainants were asked why they returned to the UK. They said they were promised that their working conditions would be improved and the offenders’ behaviour towards them would change. They were led to believe that they were valued employees. Their experience, however, was that having decided to return to the restaurant conditions did not improve, or did not improve significantly, and the offenders expected the goods delivered to be presented as gifts. The unspoken but clear explanation for the workers’ preparedness to return to the risk of further subjection and helplessness was the contrast between the economic circumstances of the families they left behind and even the degraded expectation of a job in the UK. They would need to borrow money to fund their return to the UK and, in the process, be driven further into dependence upon the goodwill of the offenders. Contrary to submissions made on behalf of the offenders we agree with the Solicitor General that the return of the workers does not constitute evidence that the conditions to which the workers were subjected were acceptable but, in the circumstances of the present case, is evidence of further exploitation by the offenders of personal circumstances of which they knew they could take advantage.[19]Secondly, it is apparent that when police investigations began the offenders used their control over some of their workers and former workers by attempting to persuade them to give untruthful accounts of working conditions and the behaviour of their working colleagues in order to avoid a successful prosecution. In this they were unsuccessful.[20]It is not, in the court’s view, possible to identify in the present judgment ranges of appropriate sentences for offending at different levels of seriousness. The aggravating and mitigating features of the offence will vary considerably. For example, a single migrant worker employed domestically may be subjected not only to psychological coercion but also to physical violence. The individual harm to a single victim may therefore be a prominent feature in the assessment of the seriousness of the offence. In the present case actual violence is not alleged although several of the victims gave evidence that they feared that threats of violence and physical intimidation would lead to actual violence. In our judgment, the seriousness of the present offending is represented primarily by the scale of its planning, organisation, manipulation and deception. Several vulnerable workers were kept in conditions which counsel conceded were close to slavery. The offending took place over an extended period of time, affected many individuals, and was motivated purely by profit. We accept that when assessing sentence for offending of this seriousness an element of general deterrence is appropriate.[21]The sentencing judge took conspicuous care in his identification of prominent features of the evidence which he accepted. He described the evidence of a conspiracy to traffic persons for the purpose of ‘labour exploitation’ as overwhelming. He took account of the fact that the victims were not illegal entrants; each held a work permit. Over four years the offenders had brought into the UK nine men from disadvantaged backgrounds who “were no doubt keen to provide a good standard of living for their families back home”. The offenders had exploited their ambition by luring them with the promise of wages well in excess of what they were earning and good working conditions. The majority spoke little or no English. Their passports and documents had been taken away. They were not prisoners but they were effectively “trapped and controlled, being unable to work legally elsewhere...and being unable to leave the country and return home”. Each of them was to a greater or lesser extent subjected to verbal abuse, long working hours and insufficient payment. Other members of staff were asked to report on behaviour. They were discouraged from speaking with customers and having contact with others. Some were made to swear on the Koran as to their behaviour. Bonds were taken and not returned. Shahnawaz Khan had on two occasions defaced passports. The offenders’ motive was greed and commercial gain. There was not the slightest measure of remorse for the plight of the complainants, some of whom had been deeply affected. The judge concluded that each of the offenders played a principal role in the full knowledge as to how each of the complainants was being treated. The judge described the main features of the evidence of each of the victims. His description included other features of the offending to which we have already made reference. The judge concluded that only immediate terms of imprisonment were appropriate.[22]Shahnawaz Khan had a previous conviction for affray in 2005 in respect of which he was fined. Raza Ali Khan had previous convictions for affray in 1999, when he was sentenced to a community order, and for common assault in 2001, when he was made the subject of a suspended sentence. No convictions were recorded against Mrs Khan. The judge gave no indication that the previous convictions of the male offenders were material to his sentencing task and we concur with that view. The judge was in possession of pre-sentence reports upon each of the offenders. The offenders were continuing to minimise their culpability.[23]In our judgment the starting point, before consideration is given to the personal circumstances of the accused, would be, after a trial, 6 years imprisonment.[24]We shall now turn to the submissions made on behalf of the offenders. We were, most helpfully, provided with a note drafted jointly on behalf of each of the offenders, setting out in summary those submissions which applied to each of the offenders and those which applied to the individuals. It is conceded that the trial judge made an assessment of the evidence which was clearly open to him. Subject to personal factors, custodial sentences were merited. Counsel, however, draw attention to the following factors which, it is submitted, mitigate the gravity of the offending. There was no physical injury caused; no harm was permanent; the victims were not placed in physical danger; they were not illegal immigrants, smuggled into the country; the visa system was by its nature transparent. The Home Office made regular checks at the restaurant and required passports, visas and permits to be produced for each man found working on the premises; several of the victims returned home and renewed their visas; some of the victims recommended the Rajput restaurant to friends as a place to work; the investigation and conviction of the offenders had brought about the closure of the restaurant.[25]It was submitted on behalf of Shahnawaz Ali Khan that he had been at his mother’s side from an early age working within the restaurant environment. He was a capable, intelligent, and industrious young man who, were it not for the incentive for the restaurant, could have made a life for himself elsewhere. A very significant number of character references demonstrated a completely different side to Shahnawaz Khan’s personality. He was highly regarded in the town of Harrogate and beyond. He had, as was confirmed by Mr Shabir, promoted Asian cuisine in the area and in schools, raising several thousands of pounds for charity. In 2002, when Shahnawaz Khan became a partner in the restaurant, he and his brother learned that it was in severe financial difficulty. The brothers were inefficient business people as were their parents. None of the offenders set out to traffic in people. This was a legitimate business which took advantage of the victims. Shahnawaz Khan was married with a young son.[26]Some of the witnesses spoke of Raza Ali Khan as generally a friendly figure in the restaurant. He was not prominently involved in the recruitment of staff, nor in the taking of documents from the victims; his responsibility for the business was to handle the finances for which he had received no formal training. He believed that he may have paid too much money to some employees and not enough to others.[27]Counsel for the male defendants suggested that a suspended sentence order would have provided an adequate reflection of the seriousness of their offending and would take full account of mitigating factors.[28]Perveen Khan is aged 55 years and is a woman of previous good character. She was the person who built up the restaurant from nothing. Her relationship with the local Muslim community was a difficult one by reason of the fact that she had chosen a business role. Mrs Khan maintains that she had no personal involvement with the completion of applications for work permits. The offending behaviour did not begin until the running of the business was effectively handed over to her sons. A large number of character witnesses spoke highly of Mrs Khan’s good nature, humour and hard work. Apart from suffering breast cancer in 2004, Mrs Khan had been referred by her general practitioner for bouts of anxiety, depression, chest pains and the like. She was admitted to a psychiatric unit shortly after her conviction and between 26 March 2010 and 13 September 2010 she was examined by Dr Mendelson, Dr Bloye and Dr King, all three of whom concurred in the opinion that Mrs Khan was suffering from a depressive disorder, a mental disorder within the meaning of the Mental Health Act 1983. They agreed that a hospital order under section 37 of the Act was appropriate. Should such an order be made a restriction order was inappropriate. Dr King gave oral evidence at the sentencing hearing.[29]In his sentencing remarks on 13 September 2010

the judge said [page 7/9-12]:

“There are...two sides to [Mrs Khan]; the public perception and the reality of what, in fact, was going on with some of the employees. And, as I say, in my judgement her culpability is very high.”
The judge considered the medical evidence in Perveen Khan’s case with care. He said [page7/13-9/4]:
“I turn now to the question of [Mrs Khan’s] mental state and the appropriate disposal in what I confess I have found to be a very troubling and difficult case. There are a number of psychiatric reports in this case and I note from the latest report from Dr Bloye that he concludes there is a history of fluctuating depressive and anxiety symptoms and hypochondriacal beliefs. He concludes that her current presentation is consistent with a diagnosis of severe depressive disorder, and indeed Dr King has given evidence to that effect...He concludes [in his latest report] that she is probably self-obsessive, and can express distress in an exaggerated and demonstrative way, and this is exemplified by her numerous self-harm attempts, which appear to lack real suicidal intent, some of which are self-reported...Staff are sceptical that she is truly suicidal. A good deal of her behaviour comes across to them as theatrical and histrionic, and I bear in mind, of course, Dr King’s evidence that this is part of her personality. I observed this lady over the course of the trial, which lasted for almost 3 months. During the course of that trial there was one period when it was said on her behalf that she was physically unfit to attend court. She had reported a number of symptoms and although...she had high blood pressure...there was no underlying physiological reason for any of her claimed symptoms. In his report of the 1st July Dr King says that staff report she sleeps well at night and is reasonably well. “There has been limited engagement with interventions”, which accords with Dr King’s evidence this morning about the pharmacological treatment she receives but otherwise there is little engagement...But “she has enjoyed pampering sessions and appears to be able to concentrate when interested in something”
. That accords with my observations of her during the course of the trial. When witnesses were speaking highly of her she was clearly interested and appeared to be preening herself in the dock, but where witnesses were speaking of her ill treatment [of them] she would scowl and shake her head.”[30]The judge repeated and acknowledged Dr King’s evidence that Mrs Khan’s theatrical and histrionic behaviour was an expression of her distress rather than wilful manipulation. He concluded [page 10/4-7]:
“In my judgment, having observed her during the course of the long trial and knowing what I know about her I am satisfied that a significant part of her behaviour is manipulative, histrionic and exaggerated.”
Nevertheless, the judge accepted that Mrs Khan was suffering from a depressive disorder. He continued, “I am faced with the stark choice of either making a hospital order under section 37 as recommended by the doctors or passing a sentence of imprisonment”. The judge noted [page 10/12] that the treating psychiatrist, Dr Kerr, had expressed the view that while Mrs Khan suffers from a depressive disorder “she likes to portray herself as more unwell than she is”. The judge’s view was that since Dr Kerr was the treating psychiatrist he probably had the closest knowledge of Mrs Khan. The judge himself concurred with Dr Kerr’s opinion. He had given considerable thought to the question whether he should accede to the recommendation for an order under section 37. In reaching his decision he had paid particular attention to Mrs Khan’s culpability, the seriousness of the offence and to Mrs Khan’s present state of mental health. He came to the conclusion that the only sentence which could properly be imposed was a sentence of imprisonment. Should there be a deterioration Mrs Khan could be transferred to a psychiatric ward. Following sentence Mrs Khan was lodged at Holly House, the healthcare wing of HMP New Hall. However, by the date of the hearing before this court she was being re-located to the main prison.[31]It is submitted on Mrs Khan’s behalf that while the judge had a discretion whether or not to accede to the recommendation of the psychiatric experts, they were unanimous both as to diagnosis and appropriate treatment and the judge should have made a hospital order. In Khelifi [2006] 2 Cr App R (S) 650 this court re-iterated that an order under section 37 Mental Health Act 1983 is not the inevitable consequence of satisfaction of the conditions provided by section 37(2). There is no presumption. While the welfare of the offender is an important consideration, the appropriate sentence must be assessed according to the seriousness of the offence.[32]We consider that the judge carried out the task of weighing the relevant factors with conspicuous care. He concluded that while Mrs Khan was suffering from a depressive illness she had exaggerated her symptoms in the past and was exaggerating at the time of sentence. This conclusion was plainly open to him. We note that there were recognised symptoms of a depressive illness which in Mrs Khan’s case were absent or equivocal. She was sleeping well; she could concentrate; she had been fit to give evidence but declined to do so; she was selective in her submission to treatment. These features of Mrs Khan’s illness were relevant to her ability to serve a sentence of imprisonment which, as the judge found, was richly deserved. This was not a case in respect of which it could be argued that Mrs Khan’s mental condition had any causative influence upon her offending (see Nafei [2005] 2 Cr App R (S) 127). In our judgment the judge did not err in principle in reaching the conclusion that a sentence of imprisonment was necessary.[33]None of the offenders could claim to have demonstrated genuine remorse or concern for the complainants. While they enjoyed a favourable reputation within the area served by their restaurant, and for that reason were able to present to the sentencing court many testimonials of good character, it was plain that there was an aspect of the offenders’ characters which was kept hidden by their exploitative conduct towards their victims. In our view there was limited personal mitigation available to these offenders. The judge clearly had in mind that these were the first sentences of imprisonment which the offenders would be required to serve and mitigated their length accordingly. We have concluded that despite the care with which the learned judge approached the assessment of sentence, sentences of 3 years imprisonment for offending of this magnitude were unduly lenient. Giving limited credit for personal mitigation it is our view that sentences of 5 years imprisonment would have been appropriate. We recognise that the male offenders are still comparatively young men for whom sentences of imprisonment will have lasting consequences. They have had to await a second sentencing process and the effect of that process should be reflected in a further reduction from the appropriate sentence to 4 years imprisonment. In Mrs Khan’s case we have concluded that the uncertain and fluctuating state of her mental health should preserve her from the logical consequences of our decision.[34]We therefore grant leave to the Solicitor General for a review of the sentences upon the three offenders. The sentences of 3 years imprisonment in the cases of Shahnawaz Ali Khan and Raza Ali Khan will be quashed and sentences of 4 years imprisonment substituted. The sentence of 3 years imprisonment imposed upon Perveen Khan will take effect unaltered. The applications for leave to appeal sentence will be refused.[35]Following the hearing the court received a letter from Mr AU Khan dated 11 November 2010. We have not employed this letter in our deliberations. Mr Khan was present at the reference and appeal hearing. The offenders made submissions by counsel. A further attempt by Mr Khan to engage the court by letter was not appropriate.

Cited in 3 later judgments