John Miller v. Her Majesty’s Advocate [2019] HCJAC 7

Note of appeal against conviction and sentence:- On 9 February 2018, at Glasgow High Court, the appellant was convicted after trial, along with his co-accused Robert McPhee, of two charges:- (charge 28) a charge of assault and abduction; and (charge 29) a contravention of section 4(1)(a) of the Human Trafficking and Exploitation (Scotland) Act 2015, namely, holding another person (KDW) in servitude and forcing him to live under his control and forcing him to carry out work for little or no pay. The jury deleted reference to “and lock him in a trailer” in relation to charge 28 and in relation to charge 29 the jury deleted a reference to “refuse to allow him to leave”. Prior to the jury retiring the trial judge had deleted from the libel reference to “slavery” and the words “keep him in squalid conditions”. On 15 March 2018, following the obtaining of Criminal Justice Social Work Report, the judge imposed an extended sentence of 9 years comprising of a custodial element of 6 years in relation to charge 28 and 7 years concurrent in relation to charge 29. The appellant appealed against his conviction and sentence. In relation to the appeal against conviction it was contended that the trial judge had made a number of misdirections in her charge to the jury in that she:- (1) failed to give adequate directions on what constituted servitude in relation to charge 29; and (2) failed to advise that a complainer’s vulnerability, in the form of his mental health difficulties, was a relevant factor whilst omitting to direct the jury that they would have to be satisfied that the appellant had been aware of the vulnerability at the time. It was further submitted on behalf of the appellant that the judge in deleting the word “slavery” and the jury’s deletion of the words “refuse to allow him to leave” were inconsistent with a finding of servitude and were more like forced labour. It was submitted that keeping a person in a state of slavery or servitude or of compulsory or forced labour were subtly but importantly different. Servitude is defined as requiring that a person was coerced into living on another person’s property in order to perform services for him or others in circumstances in which he was made to feel that it was impossible for him to alter his status. It is less restrictive than slavery but more restrictive that compulsory or forced labour. It was submitted that the trial judge had not adequately explained the distinction between slavery and servitude and forced or compulsory labour and the jury received no directions on to how to proceed if they found that the complainer was free to come and go as he pleased which was important as evidence was led during the trial, and not mentioned in the directions to the jury, of the complainer being a regular in a local pub and being free to move around. It was further submitted that the trial judge should have directed the jury that they could only take into account the personal circumstances of the complainer, namely his vulnerabilities, where there was evidence that the appellant knew or ought to have known about them. In relation to the appeal against sentence leave to appeal was granted in relation to the 7 years imposed on charge 29. It was submitted on behalf of the appellant that it was excessive having regard to the duration of the libel being restricted to 2 months. On behalf of the Crown it was submitted that the trial judge had adequately directed the jury on servitude which was less severe then slavery but more severe than compulsory labour. It was submitted that the issue in the appeal had been on the deletion of the part of the libel relating to refusing the complainer to leave, however, that was not determinative of the charge. In relation to the other aspect of the appeal relating to the knowledge by the appellant of the complainer’s vulnerabilities, it was submitted in behalf of the Crown that that was irrelevant as section 4(3) of the 2015 Act set out an objective test about the personal circumstances of the complainer. Here the court refused the appeal against conviction. The court noted that the essence of the charge is whether an accused “holds another person in slavery or servitude”. The terms “slavery”, “servitude” and “forced or compulsory labour” are defined in Article 4 of the European Convention on Human Rights and section 4(2) of the 2015 Act directs that they are to be construed in accordance with Article 4. The question for the jury was whether the appellant deliberately kept the complainer “in servitude”. The Crown relied upon the following:- (1) forced the complainer to live under his control at the Piggery; (2) held him against his will; and (3) forced him to carry out work for little or no pay. The court noted that the trial judge took steps to define the wider meaning of servitude and that “slavery” was deleted form the charge as there was no evidence from which an inference of ownership could be based. The court noted that it had not been disputed that there was sufficient evidence that the appellant had kept the complainer in a state of servitude. The court considered that it was unnecessary for the differences between servitude and forced labour to be explained to the jury given that there was no allegation of forced labour. In relation to the failure of the trial judge to refer to the evidence that the complainer had been free to attend a local pub the court considered that that did not amount to a misdirection given that reference had been made to that in the defence speech and, in any event, the issue was not whether the complainer could or could not leave but, rather, whether they were compelled to return and live at the locus and work for little or no pay. In relation to the appellant’s lack of knowledge of the complainer’s vulnerability the court did not consider the issue relevant as the Crown did not libel that the complainer was vulnerable and as such there was no requirement for there to be a direction on the issue. In relation to the appeal against sentence in relation to charge 29 the appeal was allowed. The court stated that in light of the restricted period of the libel, namely 2 months, and the freedom the appellant had and the absence of evidence that the appellant was aware of the complainer’s vulnerabilities the sentence of 7 years was quashed and substituted with a period of 6 years imprisonment to run concurrently with the sentence on charge 28.