Neutral Citation Number: [2014] EWCA Crim 1723
Case No: 2014/1723/a1 
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL

Date: Wednesday, 30 July 2014
 
B e f o r e:

LORD JUSTICE TREACY 

MRS JUSTICE SIMLER DBE 

HIS HONOUR JUDGE BEVAN QC 
(Sitting as a Judge of the CACD)

REFERENCE BY THE ATTORNEY GENERAL UNDER 
S.36 OF THE CRIMINAL JUSTICE ACT 1988 
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ATTORNEY‑GENERAL'S REFERENCE NO 28 OF 2014   

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Computer Aided Transcript of the Stenograph Notes of  
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Mr O Glasgow appeared on behalf of the Attorney General
Mr N Edwards appeared on behalf of the Offender
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J U D G M E N T 
1.	LORD JUSTICE TREACY:  
2.	This is a Reference pursuant to section 36 of the Criminal Justice Act 1988 brought on behalf of the Solicitor General.
3.	The offender was sentenced on 14th March 2014 at Woolwich Crown Court following a three month trial.  The total sentence imposed was four‑and‑a‑half years' imprisonment.  That was made up as follows.  Count 1, conspiracy to facilitate a breach of immigration law, that is a breach of immigration control relating to non EU citizens, four‑and‑a‑half years.  The conspiracy spanned a period between April 2007 and October 2012.  Count 2, using unlicensed security operatives, contrary to section 5 of the Private Security Act 2001, two years' imprisonment concurrent.  In addition the offender was disqualified from being a director of any business for six years.
4.	In broadest outline this offender set up and ran businesses providing security guards to construction sites.  Many of the guards were foreign nationals who either had no right to be in this country or were not entitled to work whilst they were here.  Those guards were not in any position to dispute excessively long hours which they were required to work or the paltry wages which they were paid.  Once this offender was at risk of exposure towards the end of the scheme, he created false documentation designed to deceive anyone who might question the entitlement of his employees to work in this country.  
5.	Dealing with the matters in more detail, the offender ran two businesses, (Blue Feathers), the first of which was incorporated in April 2007.  Those businesses provided security guards to the construction industry.  He was assisted by people related to him and others, some of whom were prosecuted alongside him.  An example of client companies is Castleoak.  It was a requirement that all security staff should be employed by an approved contractor as defined within the Security Industry Approved Contractor Scheme and must carry a valid SIA licence.  This company was assured that all Blue Feathers guards had SIA and CSCS (Construction Skills Certificate Scheme) cards.  They were told that the employees were being paid at rates considerably in excess of the national minimum rate.  Consequently Castleoak had no concerns about the rates quoted or about the employees.  Employees were provided over a two year period.  
6.	A particular concern arose at one site where a guard was arrested and found to have false documentation.  He had been provided with an SIA card in his false name by this applicant's firm.  That person was not allowed to undertake any employment in the United Kingdom.  Investigations showed that during a 15 day period in January 2012 that security guard had worked a total of 247 hours for which he was paid £741, approximating to about £3 per hour.
7.	In mid‑2012 Castleoak received an anonymous letter suggesting that they were being provided with illegal immigrants who had no right to work.  Consequently Castleoak asked for details in relation to the guards who were provided to them at their various sites.  They received assurance along the lines that their officers were highly disciplined and trained to the highest standards.  All had SIA badges.  All had a right to work in this country.  It was a fundamental part of the business run by this offender to acquire evidence of the right of those persons to work in this country.  There was reference to the screening of all employees.  
8.	Speymill is another company which was used.  They employed the offender's business to provide security cover.  Again in 2012 a guard was detained by the police.  It turned out that he had no work permit and that he had a bank account in a different name.  There was a photocopy of a passport.  That document was false.  It had not been issued by the Nigerian authorities and purported UK immigration stamps and Home Office stamps were counterfeit.  There was other fraudulent documentation found in relation to that particular guard.  
9.	In October 2012 the police attended the business premises of this offender and searched them.  A large amount of documentation was recovered, including several USB drives.  Access was gained to a storeroom where a large number of personnel files were found.  The documentation included application forms, copies of passports and SIA cards, time sheets and bank account details for guards (often in different names) and a list recording whether or not a guard's documentation was valid or not.  
10.	On that same date the police attended another site.  There were three security operatives provided by the offender's business.  One had a valid SIA card, another had a card belonging to someone else and a third left the site before his card could be checked.  
11.	The overall picture emerging from seized documentation shows that the offender and those working with him were aware that they were employing unlicensed security guards with no right to work in the United Kingdom.  The material also showed that those working for the business were being exploited because of their illegal status.  Many passports and SIA and CSCS cards were found to have been altered so as to provide the details of someone other than the original holder or else they were documents which had never been issued.  It was clear that this falsification of documents took place at the offender's office so as to deflect anyone who might be minded to make an investigation.  Time sheets and wages records showed that the security guards were paid £3 per hour, well below the minimum wage, and on occasions undertook shift patterns which saw them working for periods of 24 hours without rest.  
12.	The offender was interviewed on more than one occasion.  He put forward what turned out to be false denials about his knowledge of what was going on.  He maintained those denials before the jury, who rejected his account.
13.	 Analysis shows that some 155 security guards or operatives worked for the offender's businesses during the period and between one‑third and one‑half of them had no right to work whilst they were in the United Kingdom.  In the period between April 2007 and October 2012, the offender's businesses received over £6 million.  Over the same period there were transfers into the offender's personal bank accounts of nearly £340,000.  The accounts for the offender's businesses showed annual profits ranging between £45,000 and £278,000.  
14.	 There appeared to the court to be a number of aggravating features.  This was a prolonged course of offending.  The offences were committed for substantial financial gain.  There was a high degree of planning and organisation.  This offender was the ringleader who had recruited others.  A large number of illegal immigrants had been enabled to obtain employment and in doing so they had been exploited.  There was in addition a large scale forgery and falsification of documents exercised designed to throw investigators off the scent.  
15.	 As to mitigation, this offender, who is now 44 and has lived in this country for about 10 years, has no previous convictions apart from one irrelevant caution.  He was not involved in the facilitation of entry into this country of any of the employees concerned, nor did his businesses make any direct false representations to any government department.
16.	 For the Solicitor General, it is submitted that a sentence of four‑and‑a‑half years after a trial simply failed adequately to reflect the gravity of the offences.  In particular, emphasis is laid on the role of this offender in the offending as the organiser, the significant period of time over which it was carried out, the exploitation of those whom he employed and the breaches of immigration control which inevitably resulted.  In the circumstances it is submitted that the sentence was unduly lenient.
17.	 Mr Edwards, who did not appear below, submits to the contrary.  This sentence was not unduly lenient.  The judge had had the benefit of conducting a trial of significant length and was well‑placed to assess the situation.  Moreover the court should have regard to the fact that unlike other cases in this area, this case did not involve the facilitation of entry into the United Kingdom of illegal immigrants.  The court is urged to regard the matter primarily as an offence of deception against the companies with whom the offender's businesses contracted.  The guards were already in the United Kingdom.  The offender had not assisted them in entering either the United Kingdom or the EU.  Nor had any representation been made to the Home Office or any other government department for the purpose of assisting those guards to remain or to work in the United Kingdom.  The court, it was urged, should look behind the description of the offence itself to establish the correct level of criminality and in considering other authorities should bear in mind that this case did not involve the facilitation of illegal entry into the United Kingdom.
18.	 There being no sentencing guideline from the Sentencing Council or its predecessors, we were referred to a number of authorities.  The first authority is Le and Stark [1999] 1 Cr.App.R (S) 422.  That case was the first to give guidance in relation to section 25 offences.  It must be borne in mind however that at that time the maximum sentence was one of seven years and that the offence then was confined to the facilitation of illegal entry into the United Kingdom.  Since that time the legislation has been amended.  
19.	 The maximum is now 14 years and the conduct prohibited has been considerably widened from facilitation of illegal entry.  Nonetheless, the relevant principles determining the gravity of the offence hold good and have been added to in later decisions of this court such as Cina [2012] EWCA Crim. 2279.  
20.	 The following considerations appear to us to arise.  The offence will often call for a deterrent sentence since the problem with immigration control is a substantial one, causing considerable public concern.  The court will have to consider (a) whether the offence is isolated or repeated, (b) the duration of offending, (c) whether the offender had previous similar convictions, (d) whether the offender's motivation was commercial or humanitarian, (e) the number of individuals involved in the breach of immigration law, (f) whether they were strangers or family, (g) the degree of organisation involved, (h) whether the offender recruited others, (i) the offender's role, and (j) whether the offender's conduct involved exploitation of or pressure put upon others.  That list is not intended to be exhaustive as cases are necessarily fact‑specific.  
21.	 We have considered Kao and others [2011] 2 Cr.App.R (S) 4.  That case involved the running of a sham college and through this providing to the Home Office false documentation to enable the granting to students of a right to remain in the United Kingdom.  The college was set up from the outset with this deception in mind.  The principal offenders who had made substantial profits from the enterprise received sentences equating to around nine years after a trial.  It is to be noted that the conspiracy was aimed at extending the time for students to remain lawfully in the United Kingdom rather than facilitating illegal entry.  The court observed that if the case had involved illegal entry the sentence would have been much closer to the maximum.  That business had generated a turnover of around £3 million.  Some 574 fraudulent applications were involved.  
22.	 In Wolanski and Rakovskij [2013] EWCA Crim. 1020, the defendants were involved personally in the bringing into the United Kingdom on lorries of a considerable number of illegal immigrants.  They had been provided with false passports and the offenders had sent documents to Italy and money transfers to Poland.  The principal offender had received a sentence equivalent to 12 years after a trial.  The court dismissed his appeal against sentence.  Unlike this offender, Rakovskij had a previous conviction in France and had been sentenced to 26 months' imprisonment.  The conspiracy in question had run over a period of four months, thus of considerably shorter duration than the present conspiracy.
23.	 In Dhall [2013] EWCA Crim 1610 the defendant worked as a professional immigration adviser.  He prepared false applications to the UKBA to facilitate the granting of visas.  He also transferred money into the applicants' bank accounts so that it would appear to UKBA that the applicants had funds to support themselves in this country when they did not.  On a plea of guilty to the substantive section 25 offence committed over a period of two years, a sentence equivalent to nine years after a trial was upheld.  This case does not involve the facilitation of illegal entry.  The object of the offending was to provide false documentation so as to enhance the applicants' prospects of remaining in the United Kingdom.  
24.	 In Cina the defendant over a 15‑month period recruited five EU nationals for the sole purpose of sham marriages to non‑EU nationals.  He also incited others.  There was evidence that he had pressured those who sought to pull out of the arrangements to continue.  It appears that his activities generated a profit of around £10,000.  The court dismissed an appeal against sentence equivalent to around seven‑and‑a‑half years after a trial.  
25.	 We accept that this present case did not involve illegal entry, nor did it involve the provision of false documentation to government departments whose duty it is to control immigration.  However, we cannot accede to the submission that this offending should primarily be viewed as a fraud perpetrated on the client companies.  What the offender's companies did was clearly designed to circumvent controls which are in place in order to facilitate immigration control.  The mechanisms which the offender subverted are part and parcel of the immigration control process.  The mens rea of the offence includes knowledge or reasonable cause for believing that the activity facilitates the commission of a breach of immigration law.  It follows therefore that although the offender was perpetrating a fraud on his client companies, he was doing so on a large scale and over a considerable period of time with a view to profit and in the knowledge or belief that he was circumventing immigration controls.  
26.	 The creation of false documentation both provided to the client companies and retained by the offender's companies is an additional aggravating feature, particularly where the forgeries involve passports and other documents which could be used for identification purposes.  This type of offending is not only damaging to immigration controls, but also to the UK's economic interests.  The offender was clearly motivated by profit and played a central role in the conspiracy.  He involved a number of other people in these activities and the way in which he worked was exploitative of workers who were not in a position to bargain.  
27.	 In our judgment, these features significantly aggravate the offence and it is wholly insufficient to characterise this as an offence primarily operating as a fraud on the client companies.  Whilst we accept that the case would have been considerably more serious had it involved the facilitation of illegal entry, it is clear from some of the authorities cited above that substantial sentences are to be expected even where that element is not present.  True it is that this offender has the mitigation of no previous convictions and that part of his business was undoubtedly legitimate.  However, a significant part of it was not and sophisticated efforts had been made in pursuit of the substantial unlawful side of the businesses.  In our judgment, the sentence passed below after a trial failed adequately to reflect the nature and aggravating features of this case, nor did it properly reflect the factors emerging from the authorities which we have cited.  
28.	 We are satisfied that the sentence passed was unduly lenient and accordingly we give leave.  We give effect to our conclusion by increasing the sentence in this case from one of four‑and‑a‑half years on count 1 to eight years' imprisonment.  
29.	 There is another matter which we need to deal with.  The judge made a victim surcharge order in the sum of £120.  She was not given the correct information.  The regime in relation to victim surcharge orders changed on 1st October 2012.  A 2007 Order (SI 2007 No 1079) was replaced by a 2012 Order (SI 2012 No 1696).  The effect of this was considered by this court in Bailey and others [2013] EWCA Crim. 1551.  Guidance was given by Leveson LJ at paragraph 5.  The problem which arises is that paragraph 7(2) of the 2012 Order provides: 
"(2) Notwithstanding its revocation by paragraph (1), the 2007 Order continues to apply, and Articles 2 to 6 of this Order do not apply, where after the coming into force of this Order a court deals with a person for— 
 (a) a single offence committed before 1st October 2012; or. 
 (b) more than one offence, at least one of which was committed before 1st October 2012." 
 It will be seen that the statutory instrument does not deal with the situation where an offence straddles the date of 1st October 2012.  There are two counts on the indictment.  Count 2 was committed on 19th October 2012 and so falls out of consideration.  Count 1, conspiracy to breach immigration control, is stated to have been committed between 10th April 2007 and 19th October 2012.  It appears from the judge's remarks that she was satisfied on the facts that this appellant was involved throughout the whole period of the conspiracy.  Whilst one view might be to apply the approach of this court in R v Harries and others [2008] 1 Cr.App.R (S) 47 and treat the applicant as having committed the offence after 1st October 2012, because some of the conduct within the conspiracy took place after that date, it seems to us necessary in fairness to apply the approach adopted by Leveson LJ in Bailey where at paragraph 5 he said by analogy to Harries:
"... in relation to the victim surcharge, without taking undue time, the court should take a view on the evidence so that the appropriate order can be made; in the absence of a clear answer, lengthy analysis is utterly unnecessary and the issue should be resolved in the way least punitive to the offender."
 It seems to us that since the overwhelming majority of the conduct in relation to count 1 took place prior to 1st October 2012 and since paragraph 7(2) of the statutory instrument has not been drafted with clarity in relation to the situation now before the court, we should follow the guidance of Bailey and deal with the matter in the way least punitive to the offender.  This will also follow the approach of this court in the recent decision of Poole.  
30.	 Accordingly, where the indictment alleges a conspiracy, the date identified in the particulars of the count must be the first date on which any relevant act is alleged to have taken place.  Had the prosecution chosen to indict substantive offences rather than a conspiracy, the first offence would have been committed on the date identified as the start of the conspiracy.  Therefore that date should determine the issue of which the victim surcharge regime applies.  Under the 2007 regime, no victim surcharge would have been payable in this case.  Accordingly, we quash the victim surcharge order.