In the Dock

month suspended sentence. This may reflect a lack of understanding on the part of judges as to theseriousness of the offence and the harm caused to the victim. However, this may also be explained bythe lack of specific guidelines accompanying labour trafficking and forced labour offences under s.4 ofthe AI(TC)A and s.71 of the CJA.As a result of an unduly lenient sentence application on the basis of conspiracy to traffick, R v Khan 266was the first case where the Court of Appeal set out factors to be taken into consideration whenassessing the seriousness of the s.4 offence: (1) nature and degree of deception or coercionexercised upon the incoming worker. Coercion will be an “unusual” aggravating feature in a case ofeconomic exploitation except for deceitful promise of work on favourable terms; (2) nature and degreeof exploitation exercised upon the worker on arrival in the workplace. This will involve a considerationboth of the degree to which what is promised is in fact denied on arrival and the extent to whichtreatment in the work place offends common standards within the UK; (3) level and methods of controlexercised ensuring that they remain economically trapped; (4) level of vulnerability of victim includingeconomic, physical and psychological; (5) degree of harm including physical, psychological andfinancial; (6) level of organisation and planning, the gain sought or achieved, and the offender’s statusand role within the organisation; (7) numbers of victims; (8) previous convictions for similar offences.Again the concept of coercion within this judgment is not defined and these factors do not reflect theConvention and Directive in their entirety. In addition, reference is made to the SGC’s OverarchingPrinciples: Seriousness guidelines, 267 which provide that where the victim is particularly vulnerable, orthere is deliberate targeting of vulnerable victims, or the offence is committed by a group or gang, thiswill be an aggravating factor in sentencing. However, these aggravating factors again do not echo theones prescribed by the Convention or Directive. Lenient sentences imposed on labour trafficking maylead traffickers to base their activities in these types of exploitation which can produce the sameprofitable returns, but for which they will receive a shorter sentence. This is especially so as s.4 ands.71 offences are not privy to the unduly lenient sentence regime where sentences can be referred tothe Attorney General for review under the Criminal Justice Act 1988 (Reviews of Sentencing) Order2006. 268 Thus treating types of exploitation differently in sentencing may not act as an overalldeterrent, which is one of the aims of sentencing referred to in the Convention and Directive.Article 25 of the Convention also requires States “to consider the possibility to take into account finalsentences passed by another Party”. The obligation refers to the judge considering similar pastconvictions imposed on the trafficker in other countries. 269 However, law enforcement officers statedthat it is particularly difficult to obtain information on the person’s previous conviction for both EU andnon-EU countries. Although the Schengen Agreement in Europe allows for easier information sharingacross the European States that have signed up to the agreement, the UK is not party to it. Hence, itis generally more difficult to obtain a defendant’s conviction history from other EU States. Also thetrafficker may have committed trafficking offences which are not linked to their country of origin. Suchinformation is only available if requested from the specific country as there is no central Europeaninformation database.Like letters of mutual legal assistance, information on a defendant’s criminal history can be delayedand the information may arrive after the trial has concluded. To overcome this, some police personnelhad formed relationships with their counterparts in other EU countries which had led to more efficientinformation sharing, though such relationships were not the norm. Furthermore, one law enforcement266R v Khan [2010] EWCA Crim 2880.267Sentencing Guidelines Council, Overarching Principles: Seriousness guideline [online]. Available athttp://sentencingcouncil.judiciary.gov.uk/docs/web_seriousness_guideline.pdf [last accessed March 2013].268CPS policy, supra note 210, p.28.269Explanatory Report to the European Convention, supra note 15, para. 269: “To meet these difficulties Article 25 provides for thepossibility to take into account final sentences passed by another Party in assessing a sentence. To comply with the provision Partiesmay provide in their domestic law that previous convictions by foreign courts – like convictions by the domestic courts – are to result ina harsher penalty. They may also provide that, under their general powers to assess the individual’s circumstances in setting thesentence, courts should take convictions into account.”82