Cox & Anor, R v

J U D G M E N T

1. The Vice President: On 16th March 2004 at the Canterbury Crown Court, following a four month trial before Her Honour Judge Williams, these appellants were convicted of the same four offences and were similarly sentenced. The appellant Victor Cox is the father of the appellant Jayson Cox. They were convicted of conspiracy to defraud, conspiracy to use false instruments, and, on counts 3 and 4, conspiracy to facilitate entry into the United Kingdom. Each was sentenced to seven years' imprisonment concurrently on each of the four counts in the indictment and each was disqualified for eight years under section 2 of the Company Directors Disqualification Act 1986.

2. They appeal against sentence by leave of the single judge.

3. There were three co-accused. A man called Putka, who pleaded guilty on rearraignment to a different count in the indictment, providing immigration advice and services when not qualified, was sentenced to nine months' imprisonment. He was acquitted on other counts in the indictment. A woman called Elizabeth El Komy and a man called Tim Cary were both acquitted in relation to some of the counts in the indictment.

4. The appellants, as we have said, were father and son. They ran two companies which supplied temporary staff to agricultural contractors and growers. A term of their contracts with the contractors and growers was that all the workers supplied by the appellants' companies would be legally entitled to work in this country. In fact the workers supplied came almost exclusively from overseas, and, for the most part, were not entitled to work in this country. The consequence was that the growers were exposed to the risk that their customers, who were large supermarkets, might cease to contract with them, causing the agricultural growers considerable loss. The appellants falsely represented that the workers were lawfully employable and entitled to work in this country. That gave rise to count 1.

5. The second count related to forged immigration papers in relation to the workers, those papers being supplied by the appellants to the contractors. Counts 3 and 4 were conspiracies to submit bogus applications for work permits for Lithuanian nationals. Count 3 related to two Lithuanians, in relation to whom there was a concerted attempt to mislead the immigration authorities in order to secure their entry into this country, with a view to them being offered work on a self-employed basis at a fictitious work place in Kent.

6. Count 4 was a similar count in relation to 29 Lithuanians who came into the country under a training and work experience scheme operated by the Home Office. Under the scheme, employment agencies could not apply for permits and the training which was to be provided had to lead to a recognised qualification which reached certain specified standards. What happened was that the appellants sent applications under the scheme claiming, falsely, that one of their companies' principal activities was as agricultural and food packing contractors. That was a deliberate misrepresentation to circumvent the requirement of the scheme that it was not available for employment agencies. In addition, the appellants' companies' accounts were amended, so as to conceal the real nature of their business as employment agencies. None of the contractors, in fact, provided any appropriate training for the workers such as the scheme required.

7. In passing sentence, the learned judge commented on the bold and persistent nature of the fraud. Victor Cox, she said, had exploited workers, who either were here illegally, or were not entitled to work here. He had employed them knowing they were beyond the protection of the law. There was no evidence that the workers had been mistreated, quite the contrary, but the real mischief was that he had helped to create a class of workers who were working outside and beyond the protection of the law. That created obvious and serious problems for society generally.

8. He had, the judge said, used a staggering quantity of forged documents and deliberately and cynically encouraged the use of those forgeries. He had defrauded the agricultural contractors and had put them at risk of losing their contracts with the supermarkets. His conduct was the more serious, because, after arrest and being bailed, he had continued with his activities which were, in fact, stepped up. The judge said he was not unintelligent, but he was manipulative. His arrogance and hypocrisy in the witness box were at times "breath taking". His conduct had continued for some two years and was motivated purely by greed. He and his son had made hundreds of thousands of pounds from the fraud.

9. The judge said, in relation to Jayson Cox, that he was his father's willing and enthusiastic lieutenant and must share equal responsibility for the criminality. He had attempted to give the business an air of respectability by ensuring that tax and national insurance were paid and by employing a solicitor. In relation to counts 3 and 4, they were dishonest schemes to manipulate legitimate schemes in bringing workers into this country.

10. Victor Cox is 57 years of age and of positive previous good character. Jayson Cox is now 35. He has a previous conviction, many years ago, of comparatively minor dishonesty.

11. The submission which is made in the written and oral grounds, as advanced by Mr Sells QC on behalf of Victor Cox, is, first, that there is criticism to be made of at least two aspects of the learned judge's sentencing remarks. We do not accept that.

12. Mr Sells submits that most of the workers had come to this country voluntarily, and that we do accept. He submits that, essentially, the business was a legitimate one and it did not involve the smuggling of illegal entrants because these workers were in this country on forged documentation, before they were dealt with by the appellants in the way which we have described. That we accept. He submits, as the judge pointed out in her sentencing remarks, that the workers were treated properly; that is clearly so. He submits that many workers came from countries which are now members of the European Community. That is so, but it does not seem to us to be relevant.

13. As to the assessment of Victor Cox by the judge, Mr Sells submits that she was unduly harsh in her assessment and failed to have sufficient regard to the good character which Mr Cox had established over the significant number of years of his life.

14. Reference was also made to three authorities, Attorney General's References Nos 87 and 86 of 1999 [2001] 1 Cr App R(S) 505, Palmer [2003] 2 Cr App R(S) 5, and Czyzewski [2003] EWCA Crim 2305. Mr Sells submits that, in the light of the grounds and those authorities, a seven year sentence was manifestly excessive. He also adopted, in anticipation, the submissions made on behalf of Jayson Cox by Miss O'Neill QC in relation to disqualification. She, in turn, adopted Mr Sells' submissions which we have rehearsed.

15. Miss O'Neill's submission really is two-fold, so far as the seven year sentence is concerned. First, that it was excessive for either of these appellants, and, secondly, that, as Jayson was merely his father's son and the father was the leading light in the enterprise, Jayson should have received a lesser sentence. It is to be commented in passing that, as Victor Cox is 22 years older than Jayson Cox, the period of years imposed on both of them will bear more heavily on the older man, who has fewer years of life ahead of him.

16. Miss O'Neill accepted that a deterrent element could properly be taken into account in imposing the sentences in this case. But, she submitted, this was not the worst case of its kind and there are no aggravating features to be found apart from that in the offences themselves. She, too, stressed that the appellants were not involved in the obtaining of the forged documents.

17. Features of personal mitigation in relation to each of the appellants, helpfully set out in the written grounds of appeal, were relied upon by both Mr Sells and Miss O'Neill.

18. So far as the disqualification is concerned, there is no ground of appeal which seeks to challenge that. But Miss O'Neill, by reference to Goodman 14 Cr App R(S) 147, the terms of section 2 of the Act, Edwards [1998] 2 Cr App R(S) 213 and one or two other authorities, submitted that really this was not a case for disqualification at all. She accepted, however, that section 2 does refer to conviction of an indictable offence "in connection with the management of a company", and her preferred submission was that, albeit it may be that disqualification of some length could be justified by reference to the authorities, the period of eight years was too long.

19. So far as the disqualification aspect is concerned, we are not persuaded that the period imposed by the judge in the exercise of her discretion was too long. We, therefore, take no further time on the question arising from the fact that there is no complaint in the ground of appeal in relation to that.

20. So far as the seven year sentence is concerned, each member of the Court, in addition to listening to the submissions of counsel, has read a letter from the wife of each of the appellants. In our judgment, it is apparent that a sentence of seven years was severe. It is equally apparent that deterrence, particularly in relation to activities of this kind in Kent, is an element which was properly present to the mind of the sentencing judge. This is not a case in which there was any mitigation to be found in a plea of guilty. It is of significance that there were several different facets to this criminality reflected by the four counts in the indictment to which we have referred.

21. When all of these circumstances are taken into account, we are unpersuaded that a seven year term was manifestly excessive in relation to either of these appellants. It is true, so far as the interrelationship of the appellants is concerned, that the father was the prime mover. But there were other features of the case to which the learned sentencing judge drew attention in her sentencing remarks which justified her, having had the benefit of a four month trial, in concluding that both appellants should be treated equally.

22. It follows that, despite the attractive submissions of counsel, these appeals are both dismissed.