Morkunas, R. v

Evidence available at trial, but not obtained without a reasonable explanation, will not ordinarily qualify as fresh evidence under the Criminal Appeal Act 1968. An arguable breach of a police identification code does not itself require exclusion under the Police and Criminal Evidence Act 1984; the question remains whether admission would adversely affect trial fairness.

For sentencing an unlicensed gangmaster, sentencing courts may use people-trafficking factors in an appropriately adapted form. Relevant matters include the scale and organisation of labour supply, exploitation and control of workers, their vulnerability, financial gain, false documentation, violence or threats, harm, and relevant previous convictions.

The appellant was convicted at Norwich Crown Court of assault occasioning actual bodily harm and possessing an offensive weapon. He had also pleaded guilty to acting as an unlicensed gangmaster, possessing a forged gangmaster’s licence, and money laundering. The judge imposed concurrent sentences producing a total of seven years’ imprisonment.

On appeal, he challenged the admission of evidence from his asserted alibi witness and the identification evidence of two police officers. He sought to adduce further evidence under section 23 of the Criminal Appeal Act 1968. He also challenged the factual basis and length of the sentence for his unlicensed gangmaster activities.

1. Conviction appeal dismissed. The trial judge was entitled to admit the evidence of the alibi witness. The defence knew the substance of her account before trial, had the opportunity to investigate it, and neither sought an adjournment nor took steps to obtain evidence from the appellant’s partner. After the cross-examination suggested that the witness had altered her account dishonestly, the evidence of the partner’s approach was capable of explaining her earlier reluctance to assist the police. The judge’s earlier ruling had not finally determined that issue.

2. The court declined to receive the proposed statements as fresh evidence under section 23 of the Criminal Appeal Act 1968. The evidence from the partner was available at trial and the defence had no reasonable explanation for not obtaining it. Its reliability was also highly doubtful in light of her conviction for attempting to procure false evidence. The accountant’s statement was likewise available earlier and added nothing material.

3. The arguable breaches of Code D did not require exclusion of the officers’ recognition evidence under section 78 of the Police and Criminal Evidence Act 1984. The breaches fell well short of the level engaging that discretion. The judge gave full and careful directions on identification evidence and on the particular weaknesses relied upon by the defence.

4. Sentence appeal dismissed. The court held that the sentencing factors for people trafficking in Attorney General's Reference Nos 37, 38 and 65 of 2010 [2010] EWCA Crim 2080, suitably adapted, provided relevant guidance for offences under the Gangmasters (Licensing) Act 2004. The judge was entitled to find a leading, organised and profitable operation exploiting vulnerable migrant workers through accommodation, transport, control of documents and bank accounts, threats and violence. A lower starting point with a consecutive assault sentence was possible, but the judge permissibly avoided double counting by imposing concurrent sentences. The overall sentence of seven years was neither manifestly excessive nor wrong in principle.

The renewed application for permission to appeal against conviction was refused.

• Court of Appeal (Criminal Division) — dismissed the appeals against conviction and sentence and refused the renewed application for permission to appeal against conviction: [2014] EWCA Crim 2750.
• Crown Court at Norwich — convicted the appellant of assault occasioning actual bodily harm and possessing an offensive weapon, and sentenced him for those offences and the related guilty pleas to a total of seven years’ imprisonment. No lower-court citation was stated.