Traveller who held man in servitude fails in appeal against conviction

Lord Carloway
Lord Carloway

A man who was convicted along with another of holding a vulnerable 20-year-old man in servitude has failed in an appeal against conviction at the High Court of Justiciary Appeal Court.

The Lord Justice General, Lord Carloway, sitting with Lord Menzies and Lord Drummond Young heard that John Miller, the appellant, ran a business with his father-in-law, co-accused Robert McPhee, both members of the travelling community.

The complainer, KDW, came to work with them at Currieside Piggery, Shotts, after having worked with another member of the travelling community. He was physically abused and locked in a shed if his work was deemed unsatisfactory and the appellant threatened to skin him alive if he attempted to leave.

He was given accommodation in a caravan, from which he escaped in December 2016 to go to York and spend time with a girlfriend.

The appellant and Mr McPhee went to York, found KDW, forced him into a car and took him back to Scotland against his will.

The trial judge described the phone calls between the complainer and appellant as “chilling”, with the appellant again threatening to skin the complainer alive.

KDW ultimately contacted police once back in Scotland.

The trial judge’s direction to the jury under challenge was that of holding a person in servitude, which is contrary to the Human Trafficking and Exploitation (Scotland) Act 2015.

She directed the jury that “there was no evidence upon which they could hold that the complainer had been held in a state of slavery” and, in respect of servitude, cited an example drawn from Siliadin v France (2006) 43 EHRR 16.

For the appellant, it was submitted that the trial judge misdirected the jury by first failing to give adequate directions on what was required to constitute servitude; and secondly, by advising that a vulnerability of the complainer, namely his mental health difficulties, was a relevant factor without directing the jury that they would have to be satisfied that the appellant had been aware of the vulnerability at the time.

It was argued she failed to distinguish between servitude and forced or compulsory labour, a “significant omission” and that she did not mention the absence of an element of control, evidenced by the complainers’ regular attendance at a local pub and freedom to move around as he pleased. The jury were given no directions on how to proceed if they found the complainer could come and go at will.

Counsel for the appellant added that, on the issue of the complainer’s mental health problems, there was no evidence that the appellant was aware of them; that they only came to light when the complainer was in the witness box and that the trial judge should have directed the jury accordingly. Indeed, the Crown had not founded upon any vulnerability.

For the Crown, the advocate depute argued the trial judge had correctly directed the jury on servitude and that the deletion of that part of the libel on refusing to allow the complainer to leave was not destructive of the charge.

Whether the appellant was aware of the vulnerabilities of the complainer was irrelevant, it was argued, with reference to section 4(3) of the 2015 Act whose test about a complainer’s personal circumstances is objective.

Delivering the opinion of the court, the Lord Justice General said: “It was not disputed that there was sufficient evidence that the appellant had kept the complainer in a state of servitude. That would seem clear from the periodic confinement of the complainer and a requirement upon him to work for little reward; all fenced by threats of violence. The trial judge had, as her report reveals, carefully considered the Convention jurisprudence. She directed the jury accordingly, using the guidance and the specific words provided by Siliadin v France (supra), Van Droogenbroeck v Belgium (supra) and CN v France (supra). There was no need for the judge to explain the distinction between servitude and forced labour. That may have served only to confuse. The appellant was not charged with forcing labour on its own.

“The evidence that the complainer was a regular in the local pub and shops was before the jury. The judge did not require to remind the jury of this, as no doubt that had just been done in the defence speech. The jury would have understood this, hence their deletion of the reference to refusing to allow the complainer to leave. The point was not that he could not leave, it was that he was compelled to come back, live on site and perform the required labour. That was presumably the economic motivation behind keeping him in serfdom. His ability to wander about the local village and countryside did not change his servitude status. The jury’s deletion of the words “refuse to allow him to leave” was not fatal in a situation where the person considered that he had no option but to stay or that, if he left, he would, as occurred in this case, be found and brought back. The first ground of appeal accordingly falls to be rejected.”

He added: “Section 4 somewhat unnecessarily expressly requires the accused to be aware that the complainer is being held in a state of servitude, but that is all. The provision relative to taking into account any vulnerabilities of the complainer might be seen as obvious. Equally, whether the appellant was aware of them may have been a consideration which the jury might have had regard to, if the appellant had professed ignorance of them. However, in circumstances in which the Crown were not founding upon an abuse of a vulnerable person (a fact which would have to have been libelled) there was no need for a specific direction on the point. Whether, at the time, the complainer had mental health difficulties was not a material part of the case, although it might be ventured that without the existence of some vulnerabilities it is difficult to conceive of a situation where keeping a person in servitude could persist for long. The second ground of appeal also falls to be rejected.

“The appeal against conviction is according refused.”

© Scottish Legal News Ltd 2021

Other judgments by Lord Carloway