Hotel owner jailed for human trafficking fails in appeal against conviction and sentence

Shamsul Arefin, who was convicted of facilitating the arrival of four men from Bangladesh into the United Kingdom “with intent to exploit” them, claimed that the trial sheriff misdirected the jury in relation to mutual corroboration and that he should have been given a non-custodial sentence, but the Criminal Appeal Court refused the appeal.

The Lord Justice General, Lord Carloway (pictured), sitting with Lord Menzies and Lady Cosgrove, heard that the appellant was sentenced to three years imprisonment in July 2015 after being found guilty of eight offences of human trafficking under theAsylum and Immigration (Treatment of Claimants etc.) Act 2004 following a trial at Fort William Sheriff Court.

The offences occurred between November 2008 and May 2010 while the appellant owned and operated the Stewart Hotel near Appin in Argyll.

The sheriff court was told that the appellant recruited four men, by newspaper advertisement in Bangladesh, who were to work as chefs in a tandoori restaurant at the hotel.

The first three arrived in June, July and October 2009 and the fourth in May 2010, but no tandoori restaurant was ever operated at the hotel.

The offers of employment, which were in writing, included an annual salary of around £18,000 for each man, as well as paid holidays, free food and accommodation.

As a condition of the offer, however, the appellant demanded an initial payment of about £5,000 from each man.

But after the men had secured their visas the appellant demanded more money, with three of the men paying about £18,000, while the fourth negotiated the price down to £15,000.

Once they arrived, they were told that business was bad and that the appellant could only afford to pay them £100 per week with the balance to be provided later, but they did not receive even that amount and the shortfall on the contractual entitlements was never paid.

The men were required to work in the hotel kitchen preparing European food but had a number of other duties, including cleaning rooms, gardening, clearing ground, painting and decorating, snow clearing and labouring for tradesmen.

They spoke to the intensely compelling circumstances in which they found themselves and the pressure that they were under to keep working for the appellant.

They had all left jobs in Bangladesh and had heavy financial obligations to their families and, in one case, to an aggressive moneylender.

The evidence of the appellant had been that he had required some £10,000 from each man, but said that that would have been repaid had they worked for him for five years.

He explained why business had been bad and maintained that he had all along intended to honour the contracts, but it was clear from the jury’s verdict that not all of this was accepted.

The ground of appeal against conviction was that the sheriff had misdirected the jury in relation to mutual corroboration.

It was contented that in directing them that there was a legal sufficiency, the sheriff had failed to leave it to the jury to decide whether mutual corroboration should apply.

However, the judges refused the appeal against conviction.

Delivering the opinion of the court, the Lord Justice General said: “It was the function of the jury, properly directed, to assess the evidence and to decide whether or not the appellant’s employment of the four men was so closely linked in time, character and circumstances as to demonstrate a course of criminal conduct and the appropriate unity of purpose to make it appropriate to apply mutual corroboration.

“The proper course for the sheriff or judge is to direct the jury, first, on whether it is open to them on the evidence to find that there is such an interrelationship and, secondly, that it is for them to decide whether the necessary link has been established on the evidence.

“Reading the charge as a whole, it is apparent that the overall tenor of the sheriff’s directions was to the effect that it was open to the jury to apply mutual corroboration, but that it was for them to decide whether the necessary link had been established. The decision on whether to apply the doctrine was left as one firmly for the jury.”

On the matter of sentence, the submission was that the sheriff had “failed to give sufficient weight” to the circumstances of the offences themselves, the personal circumstances of the appellant and the delay which had occurred between the original investigation by the Home Office in 2010 and the conviction some five years later.

It was said that this had been a “bona fide” business in which the appellant had genuinely thought he would succeed, but had been overcome by events, notably the economic downturn.

There had been “no question of the employees being entrapped in any substantial way” in the hotel and there was evidence that they had been permitted to take English lessons in Fort William, to which the appellant had contributed and, in one case, had been allowed to return to Bangladesh in order to be at the birth of a child.

The movements of the employees were, to that extent, not controlled, as may occur in other situations.

In all these circumstances, it was said that a custodial sentence was “not the only appropriate one” and that a “community disposal” might have been imposed.

Alternatively, it was argued that the length of the sentence was “excessive”.

However, the judges also refused the appeal against sentence.

Lord Carloway said: “The offences here were callous, deliberate and planned for the purposes of gain. As a result, considerable hardship was suffered by the complainers and no doubt their families.

“The jury had held that there had been no intention to pay the men in terms of the offers of employment. The anticipated wages of around £18,000 per annum were simply not realised. There were very substantial deposits, obtained from the men, which were never returned.

“In these circumstances, only a custodial sentence could have been regarded as appropriate. The sheriff’s selection of three years imprisonment cannot be described as excessive.”