Ali & Ors, R v [2018] EWCA Crim 405

No: 201702782/A4, 201702891/A4,Case No 201702876/A4[2018] EWCA Crim 405
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Wednesday, 21 February 2018
Strand
London, WC2A 2LL
B e f o r e:
LORD JUSTICE IRWIN
MRS JUSTICE McGOWAN DBE
HER HONOUR JUDGE MUNRO QC
(Sitting as a Judge of the CACD)
R E G I N A
v
NOGIB ALI
MOABDUL GAFFAR
NIAM UDDIN
SHAMIM MIAH
Computer Aided Transcript of the Stenograph Notes of WordWave International Ltd trading as DTI, 165 Street London EC4A 2DY, Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court)
Mr J Holland appeared on behalf of Ali
Miss S Ellis appeared on behalf of Gaffar
Mr J Reilly (SA) appeared on behalf of Uddin
Mr P Panayi QC appeared on behalf of Miah
Mr S Shay appeared on behalf of the Crown
J U D G M E N T
This transcript is Crown Copyright. It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority. All rights are reserved.
If this transcript is to be reported or published, there is a requirement to ensure that no reporting restriction will be breached. This is particularly important in relation to any case involving a sexual offence, where the victim is guaranteed lifetime anonymity (Sexual Offences (Amendment) Act 1992), or where an order has been made in relation to a young person.
Between
Ali & OrsDefendantRCrown

LORD JUSTICE IRWIN:

All

[1]four of these applicants or appellants pleaded guilty or were convicted of conspiracy to facilitate the breach of immigration law by non-European Union citizens, contrary to section 1(1) of the Criminal Law Act 1977. There were in total four trials concerning these offenders and others of their associates. Moabdul Gaffar pleaded guilty on 28th July 2016 following an aborted trial in February 2016, and some nine weeks before the relisted date in October 2016. Shamim Miah and Niam Uddin were convicted following a trial before His Honour Judge Moore and a jury on 22nd May 2017. Nogib Ali was convicted the following day.[2]His Honour Judge Moore sentenced all four on 26th May 2017 as follows: Nogib Ali, four-and-a-half years' imprisonment; Shamim Miah, 12 years' imprisonment; Niam Uddin, four-and-a-half years' imprisonment and Moabdul Gaffar nine-and-a-half years' imprisonment.[3]There were co-accused. Kasa Miah pleaded guilty on re-arraignment and received a sentence of 18 months' imprisonment suspended for 24 months. Ansar Ali pleaded guilty on re-arraignment and received a sentence of two years 10 months' imprisonment. Abdul Tafader pleaded guilty on re-arraignment and received six years and 10 months' imprisonment. Juned Ahmed pleaded guilty on re-arraignment and received five-and-a-half years' imprisonment.[4]Nogib Ali, Shamim Miah and Niam Uddin have leave to appeal from the single judge. Gaffar renews his application following refusal by the single judge.[5]The facts can be summarised as follows. An undercover freelance journalist, who went by the name of Paul, working for The Sun Newspaper, was introduced to Gaffar on 16th April 2015 by a third party. The newspaper had had a tip-off. Paul and Gaffar discussed the possibility of secretly smuggling Paul and another male out of the United Kingdom and into the European Union. Paul claimed to be in trouble with the law. Gaffar stated that he did this sort of thing all the time and put himself forward as a competent and professional smuggler of persons. A price of £600 per head was agreed.[6]Paul returned to Gaffar's premises on 27th April with a companion who went under the name of Alec. Alec was also a journalist, posing as a would-be jihadist en route to Syria. They paid £1,200 in cash. Gaffar introduced the males to Tafader who arranged for them to be taken in taxis, along with a large group of South Asian individuals, to a safe house operated by Kasa Miah. The planned trip on that occasion was called off, apparently because Dover was being too closely watched that evening.[7]The two journalists returned to Gaffar's office the next day, 28th April. Tafader put them in taxis alongside 19 other people. All were South Asian nationals, save for one baby who for reasons no one could discern had a British passport.[8]They were all driven to a lorry park in Purfleet, Essex and under the supervision of Tafader placed into a lorry driven by a Romanian man, Vartolomei, who drove them to Dover. They were caught on the French side of the juxtaposed border controls following a tip-off by The Sun Newspaper to the Kent Police.[9]One of the migrants was in regular telephone contact with Shamim Miah in the days leading up to the lorry being stopped on 28th April. Shamim Miah and Tafader are associates. Telephone contact between the migrant and Shamim Miah and between Shamim Miah and Tafader indicates that Miah must have played a role in organising the presence of that migrant on the lorry. Other text messages passing between Miah and Tafader suggested that Miah was involved in the organisation of similar journeys earlier in 2015.[10]The appellants Uddin and Nogib Ali were taxi drivers. They were involved in driving the journalists and the beneficiaries of the scheme to Purfleet on 28th April and the prosecution case was that they had made variously similar journeys earlier during 2015.[11]The prosecution cases focused on the events of April 2015 culminating in the apprehension on the 28th. However, the case all along suggested that the conspiracy to smuggle migrants out of the United Kingdom was in operation from the beginning of the year and possibly earlier.[12]Texts found on a phone download from Tafader, sent by Tafader to Gaffar in October 2014, contained the message "job done" and also, notwithstanding the seizure of the lorry, the conspiracy appears to have continued after 28th April, because there were text messages saying "job done" passing between Tafader and Juned Ahmed up to 30th May 2015.[13]Nogib Ali (aged 60), Niam Uddin (aged 57) and Moabdul Gaffar (aged 44) had no previous convictions. Shamim Miah (aged 47) did have. On 7th December 2012 he was convicted of 11 offences concerning possession or control of false or improperly obtained identity cards or the apparatus for manufacturing identity cards.[14]There were no pre-sentence reports in respect of these men, nor was there a need for such reports.[15]The learned judge sentenced the men sequentially in two groups on 26th May 2017. Beginning with the four more serious offenders (including Gaffar and Shamim Miah) he said this:
"I look at the totality of the conspiracy and the overall gravamen of the offence. It undoubtedly was clearly highly organised. It was a professional operation. As far as I can see, it had the sole motive of considerable financial gain by those concerned. Clearly there would have been a level of apportionment, of which I am unaware and I do not speculate. But it had specifically preyed upon vulnerable individuals, from principally the Bengali community, and when doing so you -- as being principally the organisers, and enforcers to some extent - that you applied a ruthless cynicism and arrogance against your fellow man. You disregarded border controls. And as we are all aware, border controls are not only there to ensure our economic welfare but there to ensure the security and safety of the nation. It is estimated by the prosecution - and I do underline the word here, estimated - that the financial benefit would be in the region of approximately £1.2 million each year. But as I have already said, in reality the Crown can only estimate the benefit. There is a suggestion that there have been other trips, but I only sentence you on what ... that has been placed before me."
In the course of submissions it was made clear to this court that the £1.2 million figure represents in essence an extrapolation from the maximum number of potential passengers exported over a year, and it does not seem to be the case that that figure was the Crown's case as an accurate estimate of the overall profit.[16]It will be clear from those remarks that the judge had observed the operation was sophisticated enough to offer different destinations in Europe for different prices.[17]Shamim Miah was concerned with organising and collecting people. There was anticipated to be a group from Birmingham. He assisted in organising their travel south, and of course in providing a safe house before transit in taxis to Kent, to be collected by lorries driven by various European nationals - that appears to have been the modus operandi. The judge categorised the offenders as main conspirators and organisers, those who assisted in implementation, and then taxi drivers. Amongst the main conspirators were the four principals, including Gaffar and Shamim Miah. In respect of Gaffar the judge noted his boastfulness to the undercover journalists and his expansiveness about the operation. He noted that Gaffar was quite indifferent when told by one of the journalists that he had intended to travel to the Iraq/Syria region as a jihadist. The judge considered that was a significant aggravating feature.[18]The judge in sentencing did not indicate a starting point or specific credit for pleas and this court has been hampered considerably by his failure to do so. It would have been much easier in interpreting the sentences that he applied to the various categories of offender had he set out clearly what were his starting points.[19]It is to be inferred from remarks made to Gaffar that the judge had anticipated, and then must be taken to have given, a 15 per cent discount representing the credit for his plea of guilty. If one extrapolates from the sentence given to Gaffar of nine-and-a-half years upwards allowing for the 15 per cent discount, that would bring us to a starting point of something like 11 years and two months. Those difficulties represented part of the application made on Gaffar's behalf for leave to appeal made by Miss Ellis. We grant leave to appeal.[20]As to Shamim Miah, the judge emphasised how closely he had watched the case with this appellant's role in mind, and he had formed the view that Shamim Miah's "hand" was "always involved in a major way", perhaps to be compared with Gaffar. Shamim Miah's convictions were significant. They showed a determination even then to circumvent border controls and assist illegal migrants. They represented a serious aggravation. Following those remarks the judge sentenced him to 12 years' imprisonment. He has leave to appeal.[21]The judge then turned to offenders lower down the scale, and immediately noted that the co-accused Ansar Ali had pleaded guilty. Nogib Ali and Niam Uddin had fought the case and thus could have no credit for pleas of guilty. He noted the personal mitigation for each in the following terms:
"It is actually rather sad to find you before me, because clearly you have provided an environment to ensure that your children would succeed, and I congratulate you for that."
We should make it clear these remarks were addressed to all three of Uddin, Nogib Ali and Ansar Ali.

The judge went on:

"But the fact of the matter is you have willingly and knowingly been involved in this conspiracy. You knew its potential consequences, and you again disregarded the welfare of ostensibly your fellow man. And this was driven by money, without any hesitation in that conclusion. I think, Mr Nogib Ali did sixteen trips out of twenty. Mr Uddin, twelve out of twenty. And Mr Ansar Ali, I think was almost twenty out of twenty. But as I say, it is the nature of the conspiracy, not the number of trips, that is the important consideration and the duration. Having taken all matters into account, and obviously your good character, I have obviously no hesitation in saying you should be sent to prison."
The judge then proceeded to pass the sentences we have indicated, four-and-a-half years for the two appellants and two years 10 months for Ansar Ali.[22]In the course of considering this case, we have already indicated that reaching a clear view as to the judge's starting point for different roles has been problematic. There are no guidelines set for this offending and it may be that the judge's task would have been made easier had there been in existence a guideline case for this kind of offending. We stress that our judgment in this case is not intended to represent such a guideline case. Such a case requires clearer and fuller facts on which to establish a guideline.[23]If the starting point was around 11 years in respect of Gaffar and Shamim Miah, that would create a starting point very far towards the maximum sentence for any single substantive offence of the kind with which this conspiracy was concerned. We think that the starting point for genuine organisers for offences of this kind and on what we consider to be this scale, having read carefully the material before us, should have been in the region of 10 years.[24]Mr Shay for the Crown has been most helpful in describing how they put the prosecution view of the roles of Gaffar and of Shamim Miah, and it is clear without descending to unnecessary detail that the Crown, as the judge, viewed their roles as being approximately similar. We have borne carefully in mind the rather eloquent observations of Mr Panayi, seeking to suggest that his client should be regarded as lower down the scale than Gaffar, but the Crown's description of these two men as close to the centre, but introducers, seems to us to be an appropriate description of their roles for the purpose of sentence. If the appropriate sentence on a case of this kind for real organisers should start at 10 years, then it is our view that the appropriate starting point for these two should have been around eight years' imprisonment. Careful consideration would need to be given for an appropriate starting point for those with roles lower down than figures such as Shamim Miah and Gaffar, but farther up the organisation than taxi drivers, or those who recruited taxi drivers.[25]The starting point for Ansar Ali reached by the judge of three-and-a-half years for the sentence reflecting his role in all 20 trips and in recruiting drivers to carry out the necessary driving for each trip seems to us appropriate. However it means that the sentences of four-and-a-half years in respect of the appellants Nogib Ali and Niam Uddin are clearly too severe. In our view the appropriate starting point for them would be in the region of two-and-a-half years. Each has personal mitigation, each has no previous convictions and we consider therefore that that would be the appropriate sentence for those two offenders. We quash the sentences of four-and-a-half years and substitute sentences of two-and-a-half years for those two individuals.[26]In relation to Gaffar and Shamim Miah, since the starting point should be at eight years, we must consider the individual circumstances of each. Each has aggravating factors. In the case of Gaffar we accept that there was some aggravation to be drawn from his boasting from his claimed role and from his indifference to such a striking consequence of his activity as was put before him by the man claiming to be travelling to be a jihadist. However that is not a major aggravating factor. We think that an adjustment upward for that to a sentence of 100 months or so would have been appropriate, going up from eight years or 96 months. He then must receive the 15 per cent credit for his plea of guilty which was indicated to him at the time and therefore the appropriate sentence for Gaffar is one of seven years one month's imprisonment. We quash the existing sentence and substitute that sentence in his case.[27]Shamim Miah has a significant aggravation of his sentence from his previous convictions, which were important. There were 11 of them and they were significant. We think that that would properly aggravate his sentence to the extent of lifting the sentence from eight years to one of nine years' imprisonment. Accordingly, he too succeeds to the extent that his existing sentence is quashed and a sentence of nine years is substituted for it.[28]In short, we grant leave to Gaffar and the four appeals succeed to that extent. We grant a representation order to Miss Ellis. We are grateful to all counsel. WordWave International Ltd trading as DTI hereby certify that the above is an accurate and complete record of the proceedings or part thereof. 165 Fleet Street, London EC4A 2DY Tel No: 020 7404 1400

Cited in 2 later judgments