Shamsul Arefin v. Her Majesty’s Advocate [2016] HCJAC 32

Note of appeal against conviction and sentence:- On 3 July 2015, at Fort William Sheriff Court, the appellant was convicted after trial of four contraventions of section 4(1)(a) of the Asylum and Immigration (Treatment of Claimants etc) Act 2004, namely, arranging or facilitating the arrival into the United Kingdom of four men “with intent to exploit” them. He was also convicted of four contraventions of section 4(2)(a) of the Asylum and Immigration (Treatment of Claimants etc) Act 2004, namely, arranging or facilitating travel within the UK for the same men “with intent to exploit” them. On 24 July 2015 the appellant was sentenced to 3 years imprisonment. The appellant appealed against his conviction on the basis of the application of the doctrine of mutual corroboration and the directions of the trial sheriff in relation to it. It was submitted on behalf of the appellant that the sheriff had misdirected the jury in relation to mutual corroboration in that by 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. In addition, it was submitted that the use of the word “rule” on 12 separate occasions in describing mutual corroboration amounted to a misdirection due to the definitive nature of that description. Here the court refused the appeal against conviction. The court considered that it was appropriate for the sheriff to direct the jury on whether it was open to them on the evidence to find that there was such an interrelationship and that it was for them to decide whether the necessary link has been established on the evidence. Here the court considered that the sheriff had made it clear to the jury that it was for them to decide whether to apply the doctrine and it was not the case that the sheriff directed the jury that there was a link in time, character and circumstance. The court did not consider that the use of the word “rule” rather than “doctrine” or “principle” resulted in a miscarriage of justice as the directions given made it clear that it was for the jury to decide whether to apply it or not. In relation to the appeal against sentence it had been submitted on behalf of the appellant that insufficient weight had been given 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 5 years later. It was submitted that a community disposal could have been imposed or, if custody was the only appropriate sentence, the length of the sentence was excessive. Here the court refused the appeal against sentence and stated that only a custodial sentence could have been regarded as appropriate and 3 years imprisonment could not be described as excessive, particularly in light of the circumstances of the case and the nature of the offences which were described by the court as “callous, deliberate and planned for the purposes of gain.”