Joseph & Ors, R. v

From 2000, a series of international conventions were agreed to deal with the scourge of trafficking in humans for the purposes of exploitation. These conventions imposed on the United Kingdom obligations in respect of those trafficked. In 2009, on the ratification of one of the Conventions, the Government established a National Referral Mechanism and, within the Home Office, what were named the Competent Authorities to determine whether those who claimed to have been trafficked for the purposes of exploitation had in fact been trafficked. In 2015, Parliament made comprehensive provision in respect of human trafficking by the enactment of the Modern Slavery Act 2015 (the 2015 Act) which was brought into force as regards the material provisions on 31 July 2015.

Until that Act there was no statutory provision which transposed into the law of England and Wales the obligations of the United Kingdom under the international conventions towards those victims of human trafficking for the purposes of exploitation who committed crimes in England and Wales where there was a nexus between the crime committed and the trafficking. In cases where the defence of duress was not likely to be applicable, it was left to the judiciary (utilising the flexible nature of the common law in a series of decisions in 2011-2013) and to the Crown Prosecution Service (CPS) (through the exercise of their independent prosecutorial discretion) to develop a legal regime for England and Wales in which the international obligations as they successively developed were given effect in the domestic law of England and Wales.

For those within the scope of the 2015 Act, the law is clearly set out in s.45 and Schedule 4. S.45 sets out the conditions which have to be satisfied for a defence to arise respectively for adults and children where there is a nexus between the trafficking and the crime committed. The offences to which the defence do not apply are set out in Schedule 4. For the future, the 2015 Act will therefore provide the legal framework.

However, as the Act was not drafted to provide retrospective protection, the regime that has been developed by the courts will, subject to the issue we consider at paragraphs 24 and following, continue to apply to those not within the scope of the Act who face charges, but who claim there is a nexus between the crime with which they are charged and their status as victims of trafficking for the purposes of exploitation.

We understand there is a considerable degree of optimism that the status of a person who claims to be a victim of such trafficking will be resolved through close cooperation between the CPS and the Competent Authority, as we explain at paragraphs 38-40. There will, however, remain cases to be resolved where either the claim to be a victim of such trafficking has only been made after conviction or where there is an issue as to the nexus between the offence and the trafficking or where the crime is so serious that it would nonetheless be in the public interest to prosecute the trafficked person.

In these conjoined appeals and applications the Court has heard together a series of appeals made by applicants who, save in the third appeal, have been designated by the Competent Authority as victims of human trafficking sometime after their convictions for a range of offences. The objective was to enable the court to try and resolve issues on the guidance given in the case law in respect of those who do not have the benefit of the 2015 Act. We would emphasise at the outset that each case is very heavily fact specific.

Anti-Slavery International, a charitable organisation founded in 1839 to combat the different forms of slavery then prevalent, intervened by way of written submissions to argue that this court should reassess the approach in the law developed by the courts and the CPS and should redefine the law of duress to bring it into line with the 2015 Act; we are grateful for the submissions which we consider at paragraphs 24 and following.

It is first necessary to provide a very brief summary of the international conventions.

In 2001, following UN General Assembly Resolution 55/25 of 15 November 2000, the UN Convention against Transnational Organised Crime was agreed at Palermo in December 2000. Annex II to the Convention was the Protocol to prevent, suppress and punish trafficking in persons, especially women and children, usually called the Palermo Protocol. It was ratified by the UK on 9 February 2006.

Its stated purpose was to prevent and combat trafficking in persons and to protect and assist victims of trafficking. A particular importance of the protocol is its definitions in Article 3:

“(a)

“Trafficking in persons” shall mean the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs;

(b)

The consent of a victim of trafficking in persons to the intended exploitation set forth in subparagraph (a) of this article shall be irrelevant where any of the means set forth in subparagraph (a) have been used;

(c)

The recruitment, transportation, transfer, harbouring or receipt of a child for the purpose of exploitation shall be considered "trafficking in persons" even if this does not involve any of the means set forth in subparagraph (a) of this article;

(d)

"Child" shall mean any person under eighteen years of age.”

The Palermo Protocol was complemented in the EU by EU Framework Decision (2002/629/JHA) on combatting trafficking in human beings (replaced in 2011, as set out at paragraph 14, by a Directive).

It was also followed by a Council of Europe Convention on Action against Trafficking in Human Beings which was agreed in Warsaw in May 2005. This convention was ratified by the UK on 17 December 2008 and came into force in respect of the UK on 1 April 2009. It adopted in Article 4 the same definition of trafficking in human beings as the Palermo Protocol. Article 26 entitled “Non-punishment provision” provided:

“Each Party shall, in accordance with the basic principles of its legal system, provide for the possibility of not imposing penalties on victims for their involvement in unlawful activities, to the extent that they have been compelled to do so.”

The Council of Europe Convention was accompanied by an Explanatory Report.

In 2010 the Strasbourg Court decided in Rantsev v Cyprus and Russia (2010) 51 EHHR 1, that Article 4 of the ECHR contained a procedural obligation similar to that in respect of Article 2 and therefore required effective means be in place in States to provide practical and effective protection of the rights of victims of trafficking (see paragraphs 282-289).

On 5 April 2011, the EU promulgated Directive 2011/36/EU on preventing and combatting trafficking in human beings. This has had direct effect from 6 April 2013.

0n 1 April 2009, with the coming into force of the Council of Europe Convention, the UK Government created the National Referral Mechanism with Competent Authorities being responsible for making what are described as conclusive decisions on whether a person has been trafficked for the purposes of exploitation. The Competent Authorities are a Unit within the National Crime Agency and units or hubs within the Home Office Immigration and Visa Section.

Each Competent Authority operates under Guidance issued by the Home Office; the current version, version 3, was issued on 21 March 2016. The guidance is very detailed. It sets out the process by which the Competent Authority first makes a decision that there are reasonable grounds to conclude that the person may be a victim of trafficking and then makes a conclusive decision. Conclusive decisions are made by Executive Officers or Higher Executive Officers on the basis of a balance of probabilities, making every effort to secure all available evidence, including evidence from the police, interviews with the person claiming to be a victim (though these are not always necessary), information from the person or his or her representative, and the general information and intelligence it has available to it in relation to trafficking. Negative decisions are reviewed by a Senior Executive Officer.

The CPS developed its first policy to give effect to the international obligations of the UK, which we have set, out in December 2007; it related to those charged with immigration offences and to the prosecution of young offenders who might be trafficked victims; the policy in respect of the latter highlighted theft and cultivation of cannabis as offences likely to be committed by child trafficked victims.

Detailed guidance implementing this policy was given on 31 January 2008; that was revised on 4 February 2009. A further policy was issued in May 2011. On 31 July 2015, a new policy was introduced to deal with those under the 2015 Act as well as those outside its scope.

In parallel with the development of these policies after the coming into force of the Council of Europe Convention, this court has heard a number of appeals relating to the position of victims of trafficking for the purposes of exploitation who commit crimes. The most significant have been:

The judgments in these cases established the legal regime in domestic law to give effect to the international obligations we have set out:

As a consequence of experience and the decisions of the courts and the successive changes to CPS guidance, the present policy of the CPS, as expressed in 2015, in respect of those not within the scope of the 2015 Act is to require the prosecutor to consider three broad questions on a fact specific basis in each case where the defence of duress does not arise on the evidence:

The policy makes clear that in the case of children the position in relation to the second question is different. As we set out at paragraph 37 below, it is a sufficient nexus if the offence is a direct consequence of the trafficking. It is not necessary to show compulsion.

As we have already mentioned, s.45 of the 2015 Act provides for a substantive defence. It is in these terms:

“

(1)

A person is not guilty of an offence if—

(a)

the person is aged 18 or over when the person does the act which constitutes the offence,

(b)

the person does that act because the person is compelled to do it,

(c)

the compulsion is attributable to slavery or to relevant exploitation, and

(d)

a reasonable person in the same situation as the person and having the person’s relevant characteristics would have no realistic alternative to doing that act.

(2)

A person may be compelled to do something by another person or by the person’s circumstances.

(3)

Compulsion is attributable to slavery or to relevant exploitation only if—

(a)

it is, or is part of, conduct which constitutes an offence under section 1 or conduct which constitutes relevant exploitation, or

(b)

it is a direct consequence of a person being, or having been, a victim of slavery or a victim of relevant exploitation.

(4)

A person is not guilty of an offence if—

(a)

the person is under the age of 18 when the person does the act which constitutes the offence,

(b)

the person does that act as a direct consequence of the person being, or having been, a victim of slavery or a victim of relevant exploitation, and

(c)

a reasonable person in the same situation as the person and having the person’s relevant characteristics would do that act.

(5)For the purposes of this section—

“relevant characteristics” means age, sex and any physical or mental illness or disability;

“relevant exploitation” is exploitation (within the meaning of section 3) that is attributable to the exploited person being, or having been, a victim of human trafficking.

(6)In this section references to an act include an omission.

(7)Subsections (1) and (4) do not apply to an offence listed in Schedule 4.”

In the submission made to the court by Anti-Slavery International, as interveners, it was urged that the court should take the opportunity of these appeals to re-assess the approach the courts have taken to victims of trafficking. It is said that it is no longer appropriate or in compliance with the international obligations of the United Kingdom, in cases where the evidence does not establish duress, to rely on the approach set out in R v M(L), namely what is described as dependency on the use of prosecutorial discretion and the abuse of process jurisdiction.

The court, it was submitted, should develop the common law defence of duress in line with the international obligations of the UK so that it applies to victims of trafficking in a manner consistent with the UK’s international obligations under Article 26 of the Council of Europe Convention, Article 3 of the Palermo Protocol and Article 4 of the ECHR. To achieve that result those who could not avail themselves of the defence under s.45 of the 2015 Act because it was not in force at the material time should be put in the same position as those who can rely on s.45. Such a development of the law of duress should not be a general development but one strictly confined to cases involving victims of trafficking. It was right to do so, because the courts should develop the common law so that it reflected the international obligations of the UK.

Furthermore, it was submitted that the questions which arose in each case as to whether the defendant was a victim, whether there was a nexus and whether there had been compulsion should be determined by a jury. It was no longer appropriate to rely on prosecutorial discretion and a review by the court, as set out in the cases decided in 2010-2013 which we have summarised. The court should therefore develop the common law in relation to duress in relation to victims of trafficking only so that it was aligned with the international conventions. The present law operated in a way which meant that the remedies provided by the court came after the conviction and often after service of the sentence. A detailed and closely argued submission urged the court to redefine the concept of compulsion so that it was sufficiently broad to encompass the means of trafficking set out in the Palermo Protocol and the Convention.

We do not accept the submission. In our judgement the principles in the case law to which we have referred at paragraphs 19-20 were established by the courts in a way which ensured that the domestic law of England and Wales was in accordance with the obligations under the international conventions: see in particular paragraph 7 of R v M(L).

The present law of duress is clear. Its scope and limits are set out in cases of the highest authority. Parliament has considered the position. It enacted s.45 without providing for retrospective protection. In the circumstances it would require instances of clear injustice to justify a court amending the law of duress as applicable to victims of trafficking who were not able to take advantage of the 2015 Act. We have seen no evidence of such instances. The individual cases that were the subject of the decisions in 2010 to 2013 and the appeals and applications being heard by us show that the law operates in practice in a way entirely consistent with the UK’s international obligations. We accept that the cases that the court has to consider are cases where the issue as to trafficking often has arisen after the conviction. Changing the law of duress would not alter that type of case. A court cannot grapple with the issue until it is raised; in some of the cases we are considering it was not raised until after conviction. What has changed is a greater understanding of the position of victims and the need in such cases to investigate. We see no reason to develop the law of duress in the way suggested.

In R v van Doo [2012] EWCA Crim 1717, this court expressed the provisional view that the defence of duress should not be expanded in a case involving the case of a credible victim of trafficking; and that it would not be right to alter the ingredients of the defence so that a threat of false imprisonment would suffice (see paragraph 24(iv), 33, 54-56 of the judgment). As we have set out, our view accords with this provisional view.

As we have rejected the contention that the existing approach should be abandoned and a new approach adopted for cases not covered by the 2015 Act, it is necessary to deal with three general issues that have arisen on these appeals before turning to the facts of the appeals.

As has been made clear in the decisions to which we have referred there will be graves crimes where, taking into account all the circumstances, it is in the public interest to prosecute. The decision is always fact sensitive. The first appeal (see paragraphs 61-66) and the second appeal (see paragraph 98) are cases where the crimes committed were serious drug trafficking offences and prosecution was, in all the circumstances, in the public interest.

In the third case, on a reference from the Criminal Cases Review Commission, one of the issues which arose related to the relevance of compulsion in respect of a child trafficked for the purposes of exploitation. In the judgment of this court in R v L(C), N, N & T, 2013 there is extensive discussion of the position of children and the evidential requirements in relation to trafficking and the nexus between trafficking for the purposes of exploitation and the crime committed. The court had to consider if the crime alleged was consequent upon and integral to the trafficking of which he was a victim.

It was suggested that both the CPS and the court in R v N, R v Le had misunderstood the law on the basis that, at paragraph 90 of the judgment, the Court asked the following question which suggested that in the case of a child compulsion had to be shown:

“whether the circumstances in which this defendant was working at the time of his arrest represented a level of coercion and compulsion that should have led to a decision that he should not be prosecuted.”

This paragraph in the judgment was in the section dealing with the examination of the circumstances of N, the other appellant. It was neither in the section on general principles nor in the section relating to the appeal of the appellant in this further appeal. We shall return to this issue in the course of consideration of the third case at paragraph 124 below.

The law is, in our view, clear. Once it is established that a child is a victim of trafficking for the purposes of exploitation, the relevant consideration is whether there is a sufficient nexus between the trafficking for the purposes of exploitation and the offence; it is not necessary to go so far as to show there was compulsion to commit the offence required in the case of an adult. It is clear from the definitions in the Palermo protocol and the Council of Europe Convention (which we have set out at paragraphs 9 and 12 above) and paragraph 76 of the Report on the Convention (to which we have also referred at paragraph 12 above), that once it is shown that a child had been trafficked for the purpose of exploitation, what has to be shown is that the offence has been committed as a direct result of the trafficking for the purposes of exploitation. It is not necessary to prove compulsion.

The 2009 CPS guidance was not explicit in the passage referring to child trafficked victims involved in theft or the cultivation of cannabis:

“Prosecutors should be alert to the possibility in such circumstances a young offender may actually have been a victim of trafficking and committed the offences under coercion.”

It did not make clear there has been no need to establish coercion in the case of a child who had been trafficked for the purpose of exploitation if a direct nexus could be shown between the offence and such trafficking. The 2011 guidance was more explicit when it stated:

“if new information or evidence supports the fact that the child or youth has been trafficked and had committed the offence whilst in a coerced situation, there is a strong public interest to stop the prosecution. However there must be consideration of whether the criminality is as a direct consequence of their trafficking situation.”

The 2015 guidance sets out more clearly that what has to be established is that the commission of the offence is direct consequence of the trafficking for the purposes of exploitation and that it is not necessary to establish compulsion. The 2015 makes the position clear by simply stating:

“When considering whether to prosecute a child victim of trafficking/slavery, prosecutors will only need to consider whether or not the offence is committed as a direct consequence of, or in the course of trafficking/slavery”

As we have set out at paragraph 20.viii), the decision of the Competent Authority does not bind the court.

Where there is an issue as to whether a person is a victim of trafficking for the purposes of exploitation whilst a prosecution is being considered or is in progress, the CPS and police are able to refer to the Competent Authority the case of a person in respect of whom there may be evidence of that person being a victim of trafficking. Provision is made in the Guidance to the Competent Authority for cooperation with the police and CPS in all cases before the conclusion of the prosecution. We were told that the cooperation has been developed so that during the procedures for considering prosecution every effort is made to reach a common view on whether the evidence points to the person being a victim of trafficking. That is plainly of the greatest importance, as the cogency of the evidence which may be relied on by the Competent Authority must be subject to thorough forensic examination when the CPS is considering the question of nexus and whether it is in the public interest to prosecute.

However, in respect of a person claiming after conviction to be a victim of trafficking, there is no clear guidance on or process in respect of co-operation with the CPS or in obtaining court documents. These appeals have shown that it would desirable for much clearer guidance and processes to be developed between the CPS and the Competent Authorities in cases where the claim to be a victim of trafficking is made after conviction. It is important to appreciate a court will bear the Competent Authority’s conclusion very much in mind but will examine the question of the cogency of the evidence on which the Competent Authority relied and subject the evidence to thorough forensic examination. It does not follow from the fact than an individual ‘fits the profile’ of a victim of trafficking that they are necessarily the victim of trafficking. A careful analysis of the facts is required including close examination of the individual’s account and proper focus on the evidence on the nexus between the trafficking and the offence with which they are charged. The second, third and sixth appeals illustrate the issues that can arise (see in respect of the second appeal paragraphs 87-94 and 96-97, in respect of the third appeal paragraphs 115-116 and 122 and the sixth appeal paragraphs 157 and 160).

We turn to deal with the specific appeals.

R v VERNA SERMANFURE JOSEPH

On 15 September 2005 the applicant was convicted at the Crown Court at Manchester before Poole J and a jury of being knowingly concerned in the fraudulent evasion of the prohibition on the importation of a controlled drug of Class A (cocaine). She was sentenced to 9 years’ imprisonment. An application for leave to appeal against sentence was refused by the Single Judge in 2005 and not renewed. This is her first application to appeal against conviction for which she needs an extension of time of approximately 10 years and 1 month. The applications for leave and an extension have, in accordance with the practice of the court, been referred to the Full Court.

She has served her sentence.

The applicant was a resident of St Lucia. On 8 February 2005 she arrived at Manchester airport on a flight from St Lucia. As she was passing through the green ‘nothing to declare’ channel at customs she was stopped by an official who asked to examine her baggage. She stated she had packed the suitcase herself, that she understood that it was illegal to bring drugs into the UK, and that nobody had asked her to bring anything into the UK for them. The applicant produced a key from her handbag to enable the officer to unlock her suitcase. Amongst the items in the case were four wine bottles. They contained 5.13 kg of liquid in which was dissolved a total of 2.12 kg of cocaine at 100% purity. The estimated street value of the drug was £271,658.

On the same day as the applicant’s flight, two other women, including a Channel Lizell Cornibert (hereafter referred to as Ms Cornibert), were arrested at St Lucia airport and were found to be in possession of large quantities of drugs.

In interview, the applicant claimed that the purpose of her trip to the UK was to confront the father of two of her children. She had decided to come to the UK some months before and was planning on staying with an uncle. She provided an address for the uncle which did not exist. She said that she had been asked to carry the wine bottles by a friend, Ms Cornibert, who was on the same flight but who had exceeded her baggage allowance. She said Ms Cornibert was unreliable and a user of drugs. She claimed to have misunderstood the customs officer’s question when she had denied that she was carrying anything for anyone else. She denied knowing that the bottles contained drugs.

The defence case at trial was duress. Her case was that she was the mother of eight children one of whom, Marcia, was aged fourteen. The father of her youngest two children was Antoine Jean Marie, also known as ‘Stone’. She claimed that on 24 October 2004 armed members of a gang known as the “Graveyard Crew” called at her house looking for Stone. They returned many times. One morning, Stone rang her and told her to meet him. When she was with him, she received a call from a friend who told her that the gang had trashed her house and shop and had kidnapped Marcia. She returned home immediately. She informed the police of the kidnapping and also made a plea for the return of her daughter on a radio broadcast. The gang returned her daughter that evening. The applicant went to stay at a relative’s house where she thought she would be safe but gang members found her, kidnapped her and held her at gunpoint. They drove her to a house where they tied her to a chair and started to torture her in an attempt to get her to reveal Stone’s whereabouts. They stubbed cigarettes out on her and pulled her toes and ears with pliers. They pushed a gun into her mouth. They starved her for sixteen days and raped her.

On the tenth day they captured Stone, brought him to the house, and beat and tortured him whilst she watched. On the sixteenth day they cut off his toes. Later that day Stone escaped. The men panicked and returned her home. They warned her not to do anything stupid and told her that she must not go into town or to any government building or to the police. She was told that they had men watching her.

Subsequently the men contacted her by phone and told her that she was responsible for paying Stone’s debt of $25,000. They threatened to kill her and her children if she did not pay and do as they said. She did not have the money and she reported the threats to the police.

Some time later, the men arranged a meeting. They explained that she had to go to England and that when she got to the airport in St Lucia someone would give her a bag which she had to take to England. She knew that the bag would contain drugs. She had no choice but to agree because she was scared they would kill her and her children. They told her that if she took the drugs to England she and her children would be free.

She was not surprised to see someone called Ms Cornibert at the airport as she knew her to be associated with the gang. Ms Cornibert handed her the bag which had four bottles in it. Ms Cornibert accompanied her to the departure gate and told her not to do anything stupid. Ms Cornibert then turned back to immigration. The applicant believed that Ms Cornibert was on the flight, but she did not see her. At Manchester she did not tell customs about the drugs because she was scared and did not know what the gang would do to her family. She denied that she had concocted her story whilst on remand.

Members of her family and friends provided statements which in summary confirmed that there was a gang in St Lucia known as “the Graveyard Crew” which was capable of serious violence and murder. DC Brett of the Royal St Lucia Police said that on 26 October 2004 information was received that the applicant’s daughter had been kidnapped by a number of men from the Graveyard Crew. The gang consisted of about ten people and were connected mainly with drugs and guns. He had never had any previous dealings with the applicant. Her daughter was released after Stone had made a call to the gang. The applicant appeared frightened and would not leave the police station. He then became aware that both she and her boyfriend had been kidnapped. He only saw her once after that in connection with another matter to which she was a potential witness but she was too fearful to make a statement.

DC Raymond also a St Lucian officer stated that he had been told by the applicant’s former boyfriend, Stone, that the reason she had been kidnapped was because she had gone to Trinidad for some drugs in 2004 which she was meant to bring back to St Lucia. The drugs had gone missing and this had provoked the gang. The applicant’s passport showed that on 14 October 2004 she had entered Trinidad and Tobago.

Although the jury by their verdict rejected the defence of duress, the judge accepted when sentencing that the applicant was used by others much higher up the chain of command and that she was subjected to horrific treatment by the gang members. However, she had been badly treated because she had voluntarily associated with the gang, had become involved in drug smuggling and then fallen out with them. He noted that the applicant had opportunities, which she did not take, to report matters to the authorities both in St Lucia and the UK. He reduced the sentence of twelve years which the offence merited to one of nine years to reflect her lower level of culpability.

Two grounds formed the basis of the application for leave to appeal that:

There were two items of fresh evidence upon which the applicant sought to rely - the decision of the Competent Authority and a psychological report from Dr Amanda Jones.

In a letter dated 3 September 2015, from Angie McIlveen and Sharon Gallagher of the Home Office UK Visas and Immigration Department, the Competent Authority confirmed that, following a decision in August 2014 that there were reasonable grounds to believe that the applicant was a potential victim of human trafficking, the Competent Authority has concluded that, on the balance of probabilities, the applicant was a victim of human trafficking. The Authority stated it had borne in mind objective evidence of the prevalence of human trafficking in St Lucia, the applicant’s own account of her involvement in drugs smuggling, a clinical forensic report on her physical injuries consistent with her account of physical trauma when kidnapped and psychological reports upon her.

In a psychological report dated 10 March 2015 Dr Amanda Jones stated that, from a psychiatric diagnostic point of view, the applicant suffered from post-traumatic stress disorder, panic disorder and recurrent depressive episodes. Dr Jones opined that the Applicant presents as someone who has “endured considerable loss and trauma”.

In submissions made on the applicant’s behalf by Mr Blaxland QC and Mr Wainwright, we were invited to conclude that there was “compelling evidence that the applicant was a credible victim of trafficking” and should not have been prosecuted. Although Mr Blaxland QC, when pressed, conceded there may be some offences which were so serious that even a victim of trafficking must expect to be prosecuted, he did not accept that smuggling a significant quantity of Class A drugs into the United Kingdom was one of them. He dismissed as unreliable the evidence that suggested the applicant willingly involved herself in the gang’s drugs smuggling activities and as unrealistic the Crown’s assertion that the applicant could have sought the help of the authorities in St Lucia. He contended that the level of criminality established was not such as to deprive the applicant, a victim of trafficking, of the protection to which she was entitled, given the severity of the compulsion to which she had been subjected. Had the Crown chosen to proceed with the prosecution despite the evidence which had since become available, the court would have been bound to intervene and stay the proceedings as an abuse of process.

The Crown, acknowledging the decision of the Competent Authority that the applicant was a credible victim of trafficking, made clear that was insufficient and what was required was, as set out in the policy it had developed as summarised at paragraphs 17-18 and 21, the necessary nexus between the trafficking and the offence. There was insufficient evidence of compulsion which would significantly diminish or extinguish the criminality of the applicant, given the high level of criminality involved in smuggling the substantial quantity of cocaine; the decision to prosecute on all the evidence now available was in the public interest and therefore justified.

Although the Council of Europe Convention and Directive were not part of the international obligations of the UK at the time of the offending in 2005, it was rightly accepted by the Crown that the protection afforded to the applicant by the Palermo Protocol, Article 4 of the ECHR and the Code for Crown Prosecutors, should be treated as materially the same as the protection outlined in the passages from the authorities to which we have referred at paragraphs 19 and 20 above and the CPS policy summarised at paragraph 21 above.

We note that Recital 11 of the Directive refers to the exploitation of a person to commit among other crimes, pick-pocketing, shop-lifting, drug trafficking and similar activities which are subject to penalties and imply financial gain. We also note that drug trafficking is not one of the crimes listed in Schedule 4 to the 2015 Act.

However, we cannot dismiss an offence of importing Class A drugs into this country or the applicant’s involvement in drugs smuggling as lightly as Mr Blaxland QC invited us to do. Class A drugs bring death and misery to the streets of the UK and those who involve themselves willingly in the supply chain must face the consequences of their actions. A distinction must be drawn between the individual put under some kind of pressure to become involved in drugs smuggling and the genuine victim of human trafficking. The circumstances of the former can be fairly and adequately reflected in the court’s assessment of their role in the offending and the sentence imposed.

Even if we accepted the fresh evidence without reservation and took fully into account the fact that the applicant had been subjected to serious violence and sustained serious injuries, which was not in dispute at the trial or subsequently, it is important to determine why she was subjected to such violence and sustained such injuries when determining the issue of nexus between the alleged trafficking and the offence. The objective evidence suggests that this applicant did involve herself willingly in smuggling Class A drugs. Her first drugs trip was to Trinidad and Tobago in October 2004; it was only when that operation went wrong that she and Stone faced the wrath of the gang. Several months then passed between the kidnaps and torture (which ended at the latest in mid-November 2004) and her being sent to the UK in February 2005. Although as is made clear in the international and European conventions, it must be appreciated that a victim of trafficking may find it difficult to report what has happened, in the circumstances of this case which we have set out, it was not unrealistic or unreasonable to expect her to report the gang’s demands to the police in the same way as she reported the kidnaps and subsequent threats.

It follows that, in our judgement, the applicant has failed to establish a sufficient nexus between her becoming involved in a very serious offence and her ill treatment to justify not proceeding with the prosecution. The judge properly reflected the reduced culpability by the reduction in sentence he made. The decision to prosecute was justified and fully in accordance with the applicable legal regime.

In the light of those circumstances, the Competent Authority’s decision that the applicant is a credible victim of human trafficking is not such as to “diminish significantly” or “effectively extinguish” the high level of criminality involved in the international smuggling of Class A drugs. Public policy dictated that she be prosecuted.

We add only this. The fresh evidence in the form of the conclusions of the psychologist and the Home Office officials appears to have been based almost entirely on the applicant’s own account. No attempt seems to have been made by any of those involved to test that account. It is not for us to advise officials in the Home Office how to investigate the credibility of a person claiming to be a victim of trafficking; that is a matter for them. However if an expert’s report is relied on for the purposes of an appeal before this court, the expert should remember their duty to the court and not simply proffer an opinion on an applicant’s credibility without exploring areas of possible inconsistency.

For all those reasons, we refuse the applications for an extension of time and for leave to appeal against conviction.

R v ALEXANDRA DORINA CRACIUNESCU

On 13 September 2010 at the Crown Court at Isleworth before HH Judge McDowall and a jury the applicant was convicted of being knowingly concerned in the importation of cocaine and sentenced to ten years’ detention. She did not appeal against conviction; her application for leave to appeal against sentence was refused by the Single Judge on 8 February 2011.

She seeks an extension of time of over 4 years and 11 months to apply for leave to appeal against conviction and applies for leave to appeal. Her applications have been referred to the Full Court by the Registrar. She also seeks leave to renew her application for leave to appeal against sentence and the necessary extension of time.

She was released on licence in 2015.

The applicant was a Romanian national born on 21 September 1989; she had a child in Romania. She arrived in the UK in November 2009. On 30 or 31 March 2010 she travelled by airplane from the UK to Brazil. When she returned to Heathrow airport on 15 April 2010 her luggage was found to contain two packages which, on analysis, contained 1.16 kg of pure cocaine with an approximate street value of £220,000. The notes of the advice of those representing her at the interview with Customs showed that they raised with her the question of whether she had been forced to carry the cocaine. The note records the advice that it was the best time to put such a case and advance such mitigation. A ‘no comment’ interview then took place.

The applicant pleaded not guilty, claiming that she did not know that she was carrying the cocaine. Her case was that after coming from Romania she had worked at two cafes in London and earned approximately £1,000 a month. She had gone to Brazil to visit Adam, a man she had met online on a dating website; she had paid for the ticket herself. He had persuaded her to stay for longer and agreed to pay the extra cost of her ticket home. While she was there he bought her two handbags, each worth about £5, as gifts. He had assisted her with packing them. She maintained that he must have placed the drugs inside. She did not allege she had been trafficked. Despite attempts by those presently representing the applicant in accordance with the practice set out in McCook [2014] EWCA Crim 734, it has not been possible to ascertain anything from her previous legal team who represented her at the trial; her counsel has died and her solicitor is untraceable.

In imposing the sentence of 10 years, the judge stated he took into account her young age, her previous good character and the fact she was the single mother of a child.

In February 2013 the applicant claimed in conversations with the prison authorities that she had been trafficked into the UK. She was referred to the Poppy Project. Acting on her behalf they referred the applicant in May 2013 as a potential victim of trafficking to the Competent Authority. The referral was based on the applicant’s account of her background and the events leading up to the offence.

Her account was that her mother had died when she was 14, that her father had then sexually abused her; she moved in with a friend but had a child by the friend’s brother when she was 18. Her friend’s boyfriend whom she has refused to identify and we therefore identify as RX offered to pay for her travel to London for her to work in a café or as a cleaner. She arrived in Luton airport on 14 November 2009; RX collected her and arranged for her to work in cafes; she earned £300 a week, but was only allowed by RX to keep £20. He also took her passport.

In January 2010 he tried to pressure her to travel to French Guyana to bring drugs back for him, but she refused. In March 2010 he asked her to go to Brazil for the same purpose and, following threats that she would lose her job and never see her son again and physical abuse, she relented.

She was driven to Heathrow airport by her trafficker and another man and was given her passport, plane tickets, $1,000 in cash and the address of a hotel to stay in. While in Brazil an associate of her trafficker took the money from her and acted as her minder until the drugs were delivered. She was told what to say if caught returning through customs, and did so because she was afraid for her safety and that of her family in Romania. The account given at trial was what she had been told to say. She had said nothing about trafficking as she feared RX would carry out the threats he had made.

The Competent Authority determined on 5 August 2013 that there were reasonable grounds to believe that the applicant had been trafficked. The Poppy Project subsequently provided further submissions on 23 August 2013 in the form of an expert report. The content of this report was based on the Project’s general expertise in trafficking and the applicant’s own account of events.

On 11 October 2013 the Competent Authority responded by letter explaining their considerable reservations about the evidence presented that the applicant had been trafficked. These ranged from apparent internal contradictions in the applicant’s account to highlighting reasonable alternative courses of action available to her. The letter noted that the applicant had failed to disclose this information at trial and that no medical evidence had been provided to explain this omission. The Competent Authority also requested documentary evidence to corroborate her account, such as the name of the cafes in London where she claimed to have worked, details of the plane tickets and the hotel in Brazil where she stayed, and information about her alleged trafficker.

On 10 July 2014 the Poppy Project responded on her behalf to these matters, providing details of the applicant’s medical record and prison patient record, and an expert report dated 6 November 2013 from Dr Fleetwood, a criminologist. The latter report described how, in general terms, the applicant’s account conformed to the experiences of other victims of trafficking. No other documentary evidence was provided to corroborate her account.

On 31 October 2014 the Competent Authority made a conclusive determination that the applicant was a victim of trafficking. The letter stated:

“In light of the representations received from the Poppy Project and Dr Fleetwood, and having regard to other factors, including the fact that you were only 20 years of age when you were arrested and that you have (or had) anxiety and fear related mental health issues, it has been accepted that on the balance of probabilities that you have provided a substantially truthful account and that you were a victim of human trafficking.”

However, the letter further concluded that the circumstances of the trafficking no longer existed; the applicant did not qualify for leave to remain in the UK. On 21 April 2015 the Home Office decided to deport the applicant.

In a report dated 28 July 2015 Professor Katona, a psychiatrist, diagnosed the applicant as suffering from PTSD, and concluded that this was consistent with her being a victim of trafficking; he opined that remaining in the UK would improve her prospects of recovery and there would be a worsening of her PTSD if retuned to Romania.

It was contended on the applicant’s behalf that the fresh evidence of the applicant’s trafficking, particularly the conclusive determination by the Competent Authority, should be received, as well as evidence in support from Dr Fleetwood and Professor Katona. She had been trafficked twice – from Romania to the UK and then her trafficker had exploited her by using her to transport cocaine back from Brazil. On the basis of that evidence it was clear that the applicant would not have been prosecuted.

It was submitted in the alternative that, although on the facts before the trial judge no issue could be taken with the sentence, the new evidence did not sufficiently reflect the reduction in culpability that should flow from the new evidence.

We heard evidence de bene esse from Dr Fleetwood and Professor Katona.

Dr Fleetwood was a lecturer in criminology at the University of Leicester who had specialised in research into international drug trafficking and the involvement of women in trafficking cocaine. Her opinion was that the applicant’s account of being a drug mule as a result of being subject to exploitative practices and threats was entirely consistent with her knowledge and research. There was some material to suggest an emerging trend of trafficking women for use as mules. Mules did not report themselves, particularly when subject to threats.

The Crown submitted that the report of Dr Fleetwood was irrelevant to the appeal; it amounted to hearsay which was intended to bolster the credibility of the applicant and to establish, in the opinion of Dr Fleetwood, that the applicant’s account was plausible and credible and should be accepted. We agree. The report was highly speculative and of no relevance to the appeal. It is for the jury (or this court on appeal) to assess the credibility of the account given, not an expert. Speculation has no part to play.

Professor Katona is a very experienced psychiatrist having been Dean of the Royal College between 1998 and 2003 and is currently an Emeritus Professor at the University of Kent and at University College London. He examined the applicant on 22 June 2015.

He rated her mental distress as severe, her depressive symptoms as moderate and her symptoms of trauma as severe. He diagnosed her as suffering from PTSD with depressive symptoms secondary to that. The PTSD was caused by her traumatic childhood experiences in Romania and her more recent experiences of enforced work and trafficking. He considered that her clinical presentation was consistent with her being a victim of trafficking. Her past experiences had made her vulnerable to trafficking and explained why she would not reveal details of trafficking to the police and her lawyers at the time of her arrest and trial; there was therefore a plausible reason why she had not disclosed matters until later. He stressed in his evidence that it was not for him to express a view on credibility.

In the course of his evidence he said that the applicant had told him that she had been diagnosed with PTSD whilst in prison, but he had not cross checked this to the prison records as he had not obtained access to them.

The Crown submitted that the evidence of Professor Katona was irrelevant as it did not assist in the determination of the issue in the appeal to have evidence that the applicant was found to suffer from PTSD years after the offence.

It was submitted on behalf of the applicant that the level of criminality was not so high to deprive the applicant of protection given the severity of the compulsion. The court should take into account her PTSD and her fear of reprisals and should conclude that this explained why she had not raised her trafficking status at the time of arrest and trial. The evidence of Dr Fleetwood and Professor Katona showed her level of vulnerability and the ease with which she could be subject to compulsion. Someone in her position with the relevant characteristics would have had no alternative to offending; her trafficker had used his power over her. The nexus between the trafficking and the offence was established particularly through the continued hold of the trafficker over her and the steps taken by the trafficker to stop her doing anything but comply with his demands. If the Crown wished to rely on the matters raised by the Competent Authority in their letter of 11 October 2013 to which we have referred at paragraph 80, then the Crown should have investigated the matters.

The Crown acknowledged the Competent Authority’s decision, but did not concede that the applicant was a victim of trafficking; she had lied when arrested by customs, she had lied to her lawyers and had lied in her evidence at trial. In any event her status under the determination of the Competent Authority was not such as significantly to diminish or effectively to extinguish the very high level of criminality in smuggling the quantity of cocaine into the UK so that she should not have been prosecuted. Furthermore, the nexus of compulsion was not sufficient to warrant a decision not to prosecute; there was insufficient evidence to show that she was compelled to commit the offence. Public policy dictated she be prosecuted.

The Council of Europe Convention but not the Directive was applicable at the time of the offending in 2010. It was, however, rightly accepted by the Crown that the protection afforded to the applicant was materially the same as the protection outlined in the passages from the authorities to which we have referred at paragraphs 19 and 20 above and the CPS policy reflecting that case law as summarised at paragraph 21 above.

It is clear from the medical records that the applicant had many discussions in the course of mental health reviews in the first three years of her sentence where she discussed issues relating to her health, her time in Romania, her family and son and abuse before the age of 14. In the light of the fact that these records had not been reviewed by Professor Katona, we do not consider it possible to conclude she was suffering from PTSD at the time of the offence.

We therefore approach the issues on the basis that the evidence of Professor Katona was of very limited value in relation to her mental state at the time when she committed the offence and that the evidence of Dr Fleetwood was irrelevant as it was speculative and directed at bolstering the credibility of the applicant which was a matter for the jury or the court.

We have serious doubts as to the credibility of the applicant’s account, but it is not necessary for us to determine the appeal on that basis. The essential question for us is whether the prosecutor (or the court on the consideration of a stay) would have concluded it was in the public interest to prosecute the applicant. We have no doubt that it was. The offence related to a very substantial quantity of Class A drugs where, as we have explained at paragraph 63 in respect of the first applicant, the harm caused is so significant. The evidence did not in our view show a nexus, let alone a sufficient nexus, between the trafficking and the commission of the offence; there was no real evidence of compulsion. The circumstances were not such as to “diminish significantly” or “effectively extinguish” the high level of criminality involved in the international smuggling of Class A drugs. Public policy dictated that she be prosecuted.

We would add that we do not accept the applicant’s submission that it was for the Crown on an appeal where there has been a conviction to investigate all the facts relating to the claim by the applicant in relation to her claim that she was a victim of trafficking and in particular the matters raised by the Competent Authority which cast doubt on her claim. We have set out at paragraph 40 our concerns in respect of the relationship between the Competent Authority and the CPS in cases where the claim to be a victim of trafficking has arisen subsequent to conviction. It is to be hoped that this concern can be addressed, but the court will continue to apply to these appeals and applications the ordinary applicable principles. Nor will this court require the CPS to go beyond what is its ordinary duty in such cases.

As to her application for an extension of time to renew her application for leave to appeal against sentence, nothing in the further information now before us in any way leads us to conclude that the sentence passed was manifestly excessive. We refuse the application.

R v VCL

On 20 August 2009, the appellant and a number of co-accused pleaded guilty at the Crown Court at Peterborough before HH Judge Coleman to producing a Controlled Drug of Class B (cannabis). On 19 January 2010 he was sentenced to 20 months detention in a young offenders’ institution. On 26 May 2011 the Single Judge refused his applications for leave to appeal against conviction and sentence and these were renewed to the Full Court.

On 20 February 2012 the Full Court (Lord Judge CJ, Royce and Globe JJ) in the decision in R v N, R v L to which we have referred at paragraphs 19 and following granted the appellant permission to appeal, but dismissed his appeal against conviction. His appeal against sentence was allowed to the extent of reducing his sentence to 12 months’ detention

The appellant appeals against conviction on this occasion upon a reference by the Criminal Cases Review Commission made in April 2016 under s.9 of the Criminal Appeal Act 1995.

On 6 May 2009 police attended 105 Milton Road, Cambridge, a four bedroom house. They discovered it had been converted into a factory for the cultivation of cannabis plants. The appellant’s fingerprints were found on light bulbs in two of the rooms at the property. The value of the cannabis plants found was estimated at £130,000. The appellant was arrested with others. The others subsequently pleaded guilty either to offences of conspiracy to produce cannabis or producing cannabis; the sentences imposed were 5 and 6 years for the more serious offence and a range of 2 years to 21 months for the less serious offences (see paragraph 95 of the earlier judgment of this court).

The appellant was found to be in possession of £100 in cash and a mobile telephone with credit. The appellant’s role was said by the Crown to be that of “gardener”, tending the cannabis plants. The house had not been secured in such a way he could not leave.

In interview the appellant (who was accompanied by an appropriate adult and a legal representative) declined to answer questions. He gave a prepared statement to the effect that he had been trafficked from Vietnam and arrived in the UK seeking his adoptive father but had lost his contact details. Other Vietnamese nationals found him wandering the streets and took him in. He was aware there were cannabis plants at the address but he did not realise growing cannabis was illegal. He was provided with groceries on a weekly basis.

His claim to be 15 years of age was not accepted. A finding of fact that the appellant was at least 17 years old was made by the District Judge in the Magistrates’ Court and the case sent to the Crown Court. However, the possibility that the appellant was the victim of trafficking was noted by various agencies and by his lawyers. Nonetheless, he decided to plead guilty which he did on 20 August 2009. He declined to apply to withdraw his plea when subsequently advised by counsel to do so. Counsel decided to seek an adjournment in the hope that a report from the Social Services might persuade him to change his mind. The Crown Court judge was also concerned and agreed to await the report.

In the meantime, the CPS reviewed their decision to prosecute and concluded on 14 October 2009 there was no credible evidence he had been trafficked.

The Competent Authority (in this case the UKBA) then issued on 15 October 2009 a reasonable grounds letter to the effect that the appellant may have been trafficked. On 16 October 2009 the case went back before the Crown Court judge who tested the decision to proceed with the prosecution. The case was again adjourned. Negotiations continued. In November 2009 the Crown Prosecution Service and the appellant’s lawyers were informed that the Competent Authority had concluded the appellant was a victim of trafficking. The Chief Crown Prosecutor nonetheless confirmed at a hearing on 15 December 2009 the decision to continue with the prosecution at a hearing on 15 December 2009. The appellant, fully and fairly advised, decided not to make an application to vacate the plea.

At the sentencing hearing on 19 January 2010, the Crown explained why they considered the appellant was not a trafficked person, the circumstances in which the appellant had been arrested and his inconsistent accounts. Although the appellant had developed over the months an account of mild pressure or threats, the assessment by the Competent Authority provided information that the appellant was clear that his family in Vietnam was not under threat, there were no debts owed to anyone in Vietnam and he had not been abused prior to his arrest. There was no reason to revise their assessment that it was in the public interest that the appellant be prosecuted.

The court concluded (see paragraphs 94-113 of the judgment) that the Crown and the judge had taken meticulous care in examining all the available evidence. As to the submission that there should have been an application to vacate the plea and an application to stay, even if the judge had allowed the applications to be made, the court had unhesitatingly concluded that the inevitable outcome would have been that the decision to continue the prosecution was fully justified.

The sentence was reduced to 12 months detention on the basis of the appellant’s age.

On present known facts it was not in the public interest to prosecute the appellant. He should be permitted now to vacate his guilty plea. That would then permit a re-consideration of the decision to prosecute.

The Crown, if it had applied the law correctly, would not have continued with the prosecution. It had misdirected itself in the original proceedings by importing a requirement of force/coercion into the issue of trafficking of a child. The appellant was a child and force or coercion was irrelevant to their consideration. Similarly, as we have already set out at paragraphs 33 and following, it was contended the court had in the earlier appeal misunderstood the law. It was submitted that the appellant’s account that he had been invited to come to the UK by his “foster father” to improve himself was true; on arrival he had no contact with the supposed foster father. It was clear he had been deceived. It followed under the definition in the Council of Europe Convention applicable to a child that he had worked in the cannabis factory as a direct consequence of the trafficking. That was sufficient. It was not necessary to prove that he had been compelled.

There was also an application to call fresh evidence pursuant to s.23 of the Criminal Appeal Act 1968 in respect of the reports of Dr Dene Robertson, a consultant psychiatrist at the Bethlem Royal and Maudsley Hospitals dated 30 October 2013 and 24 June 2016 in which he concluded that for practical purposes the appellant should be considered as suffering from Asperger’s syndrome and, for a variety of reasons, was likely to have been socially naïve and vulnerable to exploitation.

It was contended that had this diagnosis been available to the appellant’s lawyers at the time, it would have affected the advice they gave to the appellant. It would have been admissible in support of his defence. It was relevant to the extent of his vulnerability and to his credibility. It was contended that the fresh evidence from Dr Robertson supported the conclusion reached by the Competent Authority that the appellant was a victim of trafficking.

In addition to the submission made in relation to the issue of compulsion, the appellant has re-asserted the submissions rejected by the court on the last occasion that if an application should have been made to vacate the plea, it should have succeeded and the prosecution abandoned. It was contended that this court had on the previous appeal wrongly focussed on the fairness of the process that took the appellant to the Crown Court and the process at the Crown Court as opposed to the true question of whether it was in the public interest to prosecute.

A challenge was also made to the findings of the court on the last occasion to the effect that the appellant was not a prisoner in the cannabis factory, as such findings were not justified by the evidence. To all intents and purposes the appellant was a prisoner. He had nowhere to go and was isolated. No key to the property was found and police officers had to break in. The fact the appellant was left with a telephone and cash did not bear the significance the court on the previous occasion had thought. It was described by counsel to us as being common place for traffickers to provide equipment so as to keep in touch with their workers.

The Crown maintained that it had been right to continue with the prosecution. Neither it nor the Court had misunderstood the law. The court had been correct in its assessment of the facts. The fresh evidence from Dr Robertson added nothing material to the issue before the court.

This same ground of appeal albeit differently expressed was at the heart of the appeal on the last occasion in 2012. As we have set out, the court held that the decision to prosecute was amply justified. This is not a case therefore where the court or a defendant’s lawyers have missed the opportunity to review an offender’s status as a possible victim of trafficking and the nexus with the offence. This was an issue explored with great care and in great detail at the Crown Court and by this court.

It would require a compelling piece of fresh evidence or line of argument to persuade us to re-tread well-trodden ground. In the appellant’s case, there is in truth very little by the way of fresh evidence or fresh argument. The Home Office’s determination that the appellant has been trafficked was before the Crown Court and the Court of Appeal.

The only “fresh evidence” is the medical report that the appellant is on the Asperger’s spectrum and is socially naïve. The submissions to us have made what can be made of that evidence, but we bear in mind the observations of this court in the earlier appeal at paragraph 86(c) as to the limited assistance given by expert reports that rely so heavily on the account given by the applicant where it differed from earlier accounts. In our judgement, neither the medical report nor its support for the Home Office’s conclusion is enough to undermine the appellant’s plea of guilty or the court’s conclusions on the last occasion that the decision to prosecute in the public interest was amply justified.

The appellant, who was very nearly an adult, stayed in a house as a gardener of cannabis plants. He was not a prisoner, he had a significant quantity of cash (for no obvious reason) and he had access to a telephone. His explanation of his presence at the house was unsatisfactory and his account of how he got there far from consistent. On those facts, it was open to the Crown to decide that the prosecution should continue as the relevant nexus in the case of a child victim of trafficking had not been established.

We reject the assertion that the Court on the last occasion applied the wrong test as to the nexus required in the case of a child. The judgment begins with a clear statement of all the relevant principles in relation to trafficking including the relevant principles as far as child victims are concerned. The court did not proceed on the basis the appellant had to establish compulsion before his plea could be vacated. As we have pointed out at paragraph 33 above, the paragraph in which reference is made to compulsion and which is the subject of criticism did not relate to this appellant. In paragraph 90 of its judgment on the earlier appeal the court was addressing a particular issue in relation to the co-accused as we have explained. The Crown and this court on the last appeal considered the nexus between the trafficking and the offence on the correct basis; it did not suggest that there had to be evidence of compulsion.

We are satisfied therefore that the appellant’s criminality or culpability was not extinguished or significantly reduced to such a level he should not have been prosecuted in the public interest. The appeal is dismissed.

R v NTN

On 21 February 2005 in the Crown Court at Liverpool the applicant pleaded guilty to Producing a Controlled Drug of Class C (namely Cannabis) contrary to s.6(2) of the Misuse of Drugs Act 1971 (Count 2). On 13 May 2005 he was sentenced to 15 months’ detention in a Young Offenders’ Institution.

His applications for an extension of time of approximately 10 years and 9 months in which to apply for leave to appeal against conviction and sentence and to produce fresh evidence, namely the finding of the Immigration and Asylum First Tier Tribunal that he had been a victim of trafficking, have been referred to the full court by the Registrar.

The applicant is a Vietnamese citizen. He first became known to the UK authorities in April 2004 when, accompanied by a Mrs Le Vuong, he attended Bexley Social Services and applied for asylum with Mrs Le Vuong as his sponsor. He was registered with the Refugee Council. His application for asylum was refused, although he was granted discretionary leave to remain in the UK until his 18^th birthday.

On 15 October 2004 the applicant was arrested in a private house in Beechwood, Wirral. The premises had been converted into a cannabis factory. A large hydroponics system had been set up and a number of the rooms contained cannabis plants. A total of 400 plants with a value in excess of £80,000 were found.

On 21 February 2005, the day the case was listed for trial, the applicant pleaded guilty. There was a dispute about his age. He gave his date of birth as 26 October 1988. In reliance upon the evidence of a forensic dental expert, who considered him to be aged between 18 and 21 years, the sentencing Judge found that he was 19 years’ old. He sentenced him on the basis that he had been smuggled into the UK in about April 2004 and had been forced to work in a Chinese restaurant in Kent. He had escaped, reported to the UK authorities and had been refused asylum at the end of June 2004. Thereafter, he had been seized by a gang and brought to the Wirral where he had been made to work in the cannabis factory, his job being to water the plants and make sure the equipment was working properly and for which he was fed in return. He had been “….used and manipulated by an unscrupulous gang…”, acting out of fear of what would happen if he did not, and had made no money. The sentence also took account of his age, lack of previous convictions and low risk of reoffending.

In 2012 the applicant made a fresh application for asylum, in part on the basis that he had been trafficked into the UK. It was refused by the Home Office on 23 January 2014. The Competent Authority had considered and rejected his possible trafficking status. However, on 10 August 2014, the First Tier Tribunal (Immigration and Asylum Chamber) (the Tribunal), after hearing evidence including from the applicant himself, allowed his appeal and made a number of findings of fact to a standard of the balance of probabilities, including that:

The Tribunal specifically addressed the issues that had caused the Competent Authority to find the applicant not to have been a trafficking victim and the apparent inconsistencies in his account. It found that there were no material inconsistencies and the Competent Authority had erroneously found that he was not a victim of trafficking. The Tribunal concluded he was a victim of trafficking.

This finding is the fresh evidence upon which the applicant seeks to rely in support of his application for leave to appeal. The Crown does not oppose the application for the evidence to be admitted.

On behalf of the applicant it is submitted he was the victim of trafficking and there was such a clear nexus between his being trafficked and his employment at the cannabis factory that his culpability was extinguished. Alternatively, the sentence was manifestly excessive in light of the fresh evidence that demonstrates his culpability was significantly diminished.

The Crown accepted that the Tribunal decision supported the assertion that the applicant was the victim of trafficking to China and into the UK, having been transported, transferred, harboured or received for the purpose of exploitation, and that he was exploited through debt bondage. He was a child at the point he was trafficked. Even if he was not, the means of trafficking were present, namely, the threat or use of force, coercion through debt bondage, abduction, the abuse of power and the abuse of a position of vulnerability. Although an element of compulsion was accepted in the Crown Court, he was not recognised as a potential victim of trafficking. The Crown agreed that his culpability, as was recognised in the sentencing remarks, was significantly diminished if not extinguished by the direct nexus between the trafficking and the offence, whereby it would not have been in the public interest to prosecute him or maintain the prosecution against him.

We grant the applications to extend time and admit the fresh evidence. There is powerful evidence that the applicant was both a child victim of trafficking and fell to be treated as such and his offending was committed when he was still a child by reason of the offence being directly connected to his having been trafficked. On the basis of all the facts now known we are satisfied that the prosecution would not have been pursued. We therefore allow his appeal and quash his conviction.

DONG NGUYEN

On 9 July 2014 in the Crown Court at Peterborough the applicant pleaded guilty to a single count of producing a controlled drug of Class B, namely cannabis. On 3 September 2014 he was sentenced to 2 years’ imprisonment and appropriate ancillary orders relating to forfeiture and destruction of the drugs and related paraphernalia and the payment of the statutory surcharge were made.

His applications for an extension of time of 19 months and 2 weeks in which to apply for leave to appeal against conviction and sentence and to produce fresh evidence, namely evidence that he was a credible victim of human trafficking, have been referred to the full court by the Registrar.

The applicant is 46 years of age and a citizen of Vietnam. On 27 June 2014 he was arrested in a raid on a residential address in St Paul’s Road, Peterborough which had been converted into a cannabis factory. 368 cannabis plants and some cuttings were seized. The applicant was the sole occupant and in the loft, which was itself part of the factory. In interview he said that he had paid $23,000 to come “here” and had been at the property for two months. He found out after his arrival that the plants were cannabis and wanted to leave but was told that he would be found and killed. Therefore, he remained at the address. He was told that he would be paid £1,000 per crop. He was paid £300-£400 for food when he first arrived. He had a key to the property but was told he could only leave once a month.

Neither the Police nor his legal adviser took any step to refer him via the National Referral Mechanism to a Competent Authority for his status as a possible victim of trafficking to be explored. He pleaded guilty on 9 July 2014 at the Preliminary Hearing in the Crown Court; he was represented by an ‘in house’ solicitor advocate. Sentence was adjourned. On 28 July 2014 a first responder under the National Referral Mechanism contacted the applicant’s Solicitors who were, thereby, made aware of the National Referral Mechanism being invoked. On 3 September 2014 it was agreed by the applicant’s legal representatives and the Crown that the Crown Court should proceed to sentence. He was sentenced on the basis he was “a gardener” and of previous good character.

On 16 September 2014, the Competent Authority found there were reasonable grounds to believe that he was a credible victim of trafficking. On 15 January 2015, the Competent Authority found the grounds to be conclusive.

The basis of the applicant’s application for leave to appeal his conviction is that in the light of the fresh evidence he was a victim of trafficking, the offence was committed as a result of compulsion arising from being trafficked into the UK and then re-trafficked internally at such a level that his culpability for his offending was extinguished. Had this material been available at the time, either the public interest would have determined that the matter should not have been prosecuted or a submission for the proceedings to be stayed as an abuse of process would have succeeded. Alternatively, leave to appeal against sentence is sought on the basis that the fresh evidence demonstrates his culpability was significantly diminished and his sentence was manifestly excessive.

However, he has failed to maintain contact with his solicitors, who were last in communication with him in January 2016. He did not attend the hearing in this court. We have been provided with no explanation as to why his solicitors have lost contact with him. There is no evidence that he has been re-trafficked. He is a mature man in his mid-40s.

His absence prevents the court from being assisted on a number of key questions in our minds such as whether he came here as an economic migrant, whether he had a key to the house, the extent to which he was ‘imprisoned’ and whether he said he wished to return to Vietnam. Important issues cannot be resolved.

Accordingly, we declined to hear these applications and adjourned them sine die. Should he still be in this country and he comes to the attention of the Police then this court is to be notified forthwith so that these applications may be then heard as speedily as possible.

AA

On 15 January 2010 in the Crown Court at Northampton the applicant, AA, having pleaded guilty to one offence of possession of false identity documents with intent and one offence of fraud, was sentenced to concurrent sentences of 6 months’ imprisonment for each offence. Appropriate forfeiture and destruction orders were made and a recommendation was made that she be deported. She was released from custody on 12 March 2010.

Her applications for an extension of time of approximately 66 months and 27 days in which to apply for leave to appeal against conviction and sentence and to produce fresh evidence comprising documents from her immigration file have been referred to the full court by the Registrar.

On 9 October 2009 police and immigration officers conducted a search of 4 Pemberton Street, Rushden, Northamptonshire in respect of a matter not unrelated to the applicant. They found a counterfeit Zimbabwean passport in the name of “Natasha Khumalo” which bore a photograph of AA. A photocopy of a Ugandan passport in the name of AA was also found.

She was not present at the address but was contacted by telephone and stated that she was in London and that the authorities would not be able to trace her. Enquiries established that she had used the counterfeit Zimbabwean passport together with a false National Insurance card to obtain employment in the name “Natasha Khumalo” at an NHS Care Home for the elderly in Rushden, thereby committing the offence of fraud. The Home Office held a record of the Ugandan passport in the name of AA that they considered to be genuine.

On 11 December 2009 she was arrested and identified herself as AA. She was interviewed the same day and admitted the offences. She stated that she did not know her true identity, she did not want to be returned to Uganda as she did not know anyone there; she had entered the country by lorry in 1999 and had paid for the Ugandan and Zimbabwean passports.

She pleaded guilty to the offences at the Preliminary Hearing in the Crown Court. The sentencing Judge stated the authorities were clear and the custody threshold had been crossed, but a long period of imprisonment was not necessary.

On 21 January 2010, at a time she was being held in immigration detention, AA claimed in an interview that her real name was Alexandra Mimi and she had indefinite leave to remain in the UK. The UKBA found no trace of such an application. On 4 March 2010 she was served with a notice of Liability for Deportation. She responded with a statement, received by the Home Office on 11 March 2010, in which she stated that her first memories were when she was aged 5 or 6 in Holland and that she had been subjected to domestic servitude until she was 13. She was smuggled into the UK in 1999 to work as a slave. She worked under false aliases for up to 14 hours a day, was locked up, provided with one meal a day and was raped.

She extricated herself and, in 2005, went to reside with a friend. Upon the advice of her friend she acquired a false Zimbabwean passport, national insurance number and birth certificate. She frequently changed jobs due to immigration issues. On the advice of her friend she acquired a Ugandan passport for €1200 and an application for indefinite leave to remain was made using the Ugandan passport.

Her claim for asylum was refused in June 2010 on the ground that she was AA, a Ugandan national, born on 5 May 1986. She appealed the Home Office decision. Medical reports from Dr Charmain Goldwyn, a doctor with expertise in interpreting scars and PTSD, referred to the presence of scars consistent with her having been subjected to the violence she had described in her asylum claim. On 20 December 2011 an appeal against the deportation order was allowed on Article 3 and 8 grounds by the First Tier Tribunal. She did not give evidence on account of her fragile mental health. On appeal on 16 April 2012 the Upper Tribunal found that the First Tier Tribunal had erred in law and set aside the original decision; a rehearing before the Upper Tribunal was ordered. On 3 October 2013 she was diagnosed as suffering severe depression with psychotic symptoms. On 18 October 2013 the Upper Tribunal held the rehearing and on 24 October 2013 the Upper Tribunal dismissed her appeals under Articles 3 and 8. AA did not give evidence; the Upper Tribunal found her account to be inconsistent.

AA instructed fresh solicitors who made further representations to the Home Office, submitting medical evidence pertaining to her mental health and a report from a psychotherapist and anti-trafficking consultant, Mirjam Thullesen, dated 20 February 2015. AA gave her an account that was consistent with what she had said in her statement of March 2010. Her account of trafficking was deemed plausible and contained a significant number of trafficking indicators which suggest that she is very likely to have been trafficked. The assessment was based on her verbal account as well as her behaviour during assessment and comparison with other accepted victims. Her failure to disclose that she had been trafficked until after her arrest was said not to render her account unreliable.

The Competent Authority reconsidered the case and concluded, on 15 July 2015, that she was a victim of trafficking and she was no longer liable for removal on the ground that the circumstances which gave rise to her status no longer pertained. Her solicitors are to be instructed to seek revocation of the deportation order and make a fresh claim. She has been granted discretionary leave to remain for 30 months.

The fresh evidence in respect of which leave is sought is the expert trafficking report of Mirjam Thullesen, the letter of Stephen Miller of the Competent Authority dated 26 May 2015 stating that there were reasonable grounds to conclude she had potentially been the victim of trafficking and the letter of Adam Brown of the Competent Authority dated 15 July 2015 concluding that she had been trafficked.

AA’s case is that the indictment ought to have been stayed as an abuse of process as evidence has become available which establishes that, at the time of her arrest and prosecution, she was a victim of trafficking and that the offences with which she was charged were committed under compulsion as a direct consequence of her being a victim of trafficking. Despite there being sufficient indicators at the time, which should have alerted the police, defence, the Crown and the court to the fact that she was a victim of trafficking, no inquiry was made by any party. As a consequence, the Crown failed to take into account relevant considerations in the exercise of its discretion to prosecute and the court failed to consider whether the indictment should be stayed. She has been assessed by an expert, received a positive reasonable grounds decision and a conclusive grounds decision. She has been consistent about her trafficking experiences, expanding on them as she has become more comfortable and there is considerable medical evidence that supports her account.

The Crown acknowledged that there are strong indicators of human trafficking and there is evidence that she was at or before the point of the offences a credible victim of human trafficking. There is also evidence that a nexus of compulsion existed between the alleged trafficking and the alleged offending. The Crown notes the presence of some anomalies and inconsistencies. However, the Competent Authority has, since July 2015, carefully assessed and weighed the evidence, considered the decisions of the First Tier Tribunal and the Upper Tribunal, had the benefit of expert evidence and found there are conclusive grounds to believe the applicant was a credible victim of human trafficking. Her evidence was neither heard not tested at the hearing before the Upper Tribunal. She raised her account at the outset without legal advice. In all these circumstances, the Crown did not oppose the applications or seek to say that the convictions are safe, conceding that had consideration been given to her status, it would or might well have resulted in a decision not to prosecute her.

We have considered the case with great care. We admit the fresh evidence in the form of the letter of the Competent Authority, but not the report of Mirjam Thullesen. We grant the extension of time. Applying the principles to which we have referred earlier, we have concluded, not without very considerable hesitation, that this is a case in which, on a review of all the admissible material now available to us, she should have been treated as a credible victim of human trafficking and there was a sufficient nexus of compulsion between her being trafficked and the commission of the offences to justify the conclusion that, on investigation, the Crown would have decided not to pursue the prosecution. In reaching that conclusion, we have taken into account the present position of the CPS and the principle set out at paragraph 20.viii) above. We therefore allow her appeal and quash the conviction.