N, R. v

On 7 July 2016, in the Crown Court at Birmingham, the applicant pleaded guilty to one count of production of a Class B drug (cannabis). On the same day he was sentenced to four months' imprisonment.

The applicant's applications for an extension of time (635 days) in which to apply for leave to appeal against conviction and to rely on fresh evidence, pursuant to section 23 of the Criminal Appeal Act 1968, have been referred by the single judge to the full court.

Having read the statement of the applicant's solicitor, the extension of time sought is granted.

On 13 March 2019 an order, pursuant to section 11 of the Contempt of Court Act 1981, was made by the court directing that the identity of the applicant not be reported. In the proceedings before the First Tier Tribunal ("FTT") anonymity was also granted to the applicant. We continue the anonymity order granted by this court.

It is submitted that the conviction is unsafe because, as a victim of trafficking, the applicant ought not to have been prosecuted for the offence and, had the issue been raised, it would have been appropriate for the trial judge to stay the proceedings as an abuse of process.

An application pursuant to section 23 of the Criminal Appeal Act 1968 is made to adduce fresh evidence, namely:

We accept that this fresh evidence relates to the broader factual evidence in the case which is relevant to the substantive issue, namely, whether the applicant is a victim of trafficking and whether this undermines the safety of his conviction. The documents emanating from

None of the documents were available at the time of the original hearing. There is nothing to suggest that they are not capable of belief. There is a reasonable explanation for their production for the purpose of this hearing. The documents are relevant and admissible. Accordingly, the documents will be received by the court.

On 6 June 2016, the police executed a search warrant at 72 Brook Meadow Road, Shard End, Birmingham. They discovered 411 cannabis plants being cultivated with the use of equipment in the bedrooms and loft area of the property. The applicant was alone in the house and was found in the loft area. He was arrested and taken to a police station. He declined to comment when interviewed.

On 7 July 2016, the applicant was represented by a solicitor advocate who made an attendance note of the pre-court conference which took place with the use of an interpreter and by video-link. The note contains the following:

The mitigation presented to the court by the applicant's advocate is recorded as follows:

In sentencing the applicant, the judge stated:

On 18 July 2016, the Home Office served on the applicant a decision to deport, which had been made pursuant to section 5(1) of the Immigration Act 1971. The deportation order was signed on 14 September 2016.

The history of the asylum proceedings is as follows:

The consideration concluded that each of the component parts of the definition of modern slavery: recruitment, harbouring and transportation was met. It is recorded that the applicant was

As to the means of human trafficking, it is stated that:

A person is a victim of trafficking ("VOT") if he or she falls within the definition of Article 2 of the EU Directive 2011/36/EU as follows:

This reflects the definition of a victim of trafficking in the Council of Europe Convention on Action against Trafficking in Human Beings (article 4). A victim of trafficking, for the purposes of the Convention against Trafficking, is anyone who was presently or who had been the victim of trafficking: R (Atamewan) v Secretary of State for the Home Department [2014] 1 WLR 1959 (Aitken LJ at [69] to [80]).

The case law has developed in relation to appeals against conviction in respect of victims of trafficking. It was addressed in R v GS [2018] EWCA Crim 1824, [2018] 4 WLR 167 by Gross LJ as follows:

We accept the applicant's summary of the principles to be derived from previous decisions of this court, namely:

“(i)

Neither article 26 of the ECAT, nor article 8 of the Directive confers a blanket immunity from prosecution on VOTs.

(ii)

Instead, the UK's international obligations require the careful and fact sensitive exercise by prosecutors of their discretion as to whether it is in the public interest to prosecute a VOT. That discretion is vested in the prosecutor, not the court.

(iii)

The decisions of the FTT and the Competent Authority as to whether an individual is a VOT do not bind prosecutors or the court but will be respected (subject to submissions as to their basis or limitations) unless there is a good reason not to follow them.

(iv)

There is no closed list of factors bearing on the prosecutor's discretion to proceed against a VOT. Generalisation is best avoided. That said, factors obviously impacting on the discretion to prosecute go to the nexus between the crime committed by the defendant and the trafficking. If there is no reasonable nexus between the offence and the trafficking then, generally, there is no reason why (on trafficking grounds) the prosecution should not proceed. If there is a nexus, in some cases the levels of compulsion will be such that it will not be in the public interest for the prosecution to proceed. In other cases, it will be necessary to consider whether the compulsion was continuing and what, if any, reasonable alternatives were available to the VOT. There will be cases where a decision to prosecute will be justified but due allowance can be made for mitigating factors at the sentencing stage. …”

This provision, effective from 31 July 2015, provides a defence for victims of slavery or trafficking who commit an offence. The relevant subsections state:

The relevant parts of the CPS Legal Guidance on Human Trafficking, Smuggling and Slavery, as at 7 July 2016 were as follows:

The Guidance addresses the approach to be taken by prosecutors where information or evidence comes to light in relation to the victims of trafficking following the charging of a suspect, including where this arises in mitigation, as follows:

The CPS Guidance, updated to encompass section 45, was published after the applicant's conviction. It is the respondent's contention that, in determining the safety of the applicant's conviction, it should take account of the updated Guidance.

The referral of the applicant to the NRM has resulted in the Competent Authority determining conclusively that he was a genuine victim of trafficking at the time of his arrest in June 2016. The facts of the criminal case were such that his victimhood was integral to his involvement in the production of cannabis. The information provided in the applicant's plea of mitigation is consistent with his trafficked status and should have raised concerns at the time. In accordance with the CPS Guidance, the applicant's plea of mitigation should have triggered an application by the prosecution for an adjournment to enable further enquiries and referral to the NRM to be made.

It is the applicant's case that had the clear signs of his being a victim of trafficking been noted and raised, the statutory defence under section 45 would have applied. The facts presented by the applicant provide a clear evidential basis for the offence having been committed as a direct consequence of his situation of trafficking and exploitation, and that he was compelled to commit it. It was also reasonable in all the circumstances, taking into account the applicant's characteristics.

It is acknowledged that the CPS Guidance in force at the time did not address the statutory defence. However, the defence applied and the correct approach would have been for the CPS to reconsider its charging decision based on an assessment of the applicant's status as a victim of trafficking. Further, in accordance with that Guidance, the applicant's case was such that it was not in the public interest to prosecute, as his offence was a direct consequence of, or in the course of, trafficking and he was compelled to commit the offence.

In summary, it is the applicant's case that he would not have been prosecuted for the offence or, alternatively, that he had a viable defence in law that rendered his guilty plea equivocal on the mitigation advanced and that his conviction is consequently unsafe.

Today, Mr Newton, on behalf of the applicant, has realistically accepted that the original charge was appropriately made on the evidence as it presented at the time of the charging.

There being acceptance by the applicant that the original charging was properly made on the evidence then available to the CPS, the focus of this hearing has been directed to this issue: had the original proceedings been adjourned following the mitigation advanced on behalf of the applicant, whether the view would have been taken by the Crown, on receipt of all subsequent information, that the section 45 defence would probably succeed? It is now accepted by Mr Marsland that, on the information before the court, as provided in the applicant's mitigation, there was sufficient information to raise an issue as to the possibility of trafficking and thus proceedings should have been adjourned. This would have been consistent with the Guidance provided by the CPS, current at that time.

The respondent has addressed the issue of whether there is clear evidence of a section 45 defence as follows: the respondent does not concede that there was. The respondent accepts that the applicant was over 18 at the time of the offence. There is evidence that the applicant was compelled to commit the offence and that the compulsion is attributable to relevant exploitation. However, the respondent relies upon section 45(1)(d), namely,

The respondent submits that a reasonable person in the same situation as the applicant, and having the applicant's relevant characteristics, would have had a realistic alternative to committing the offence by engaging with the UK authorities, not least the police. In support of that submission, the respondent relies upon the following:

The further and separate issue addressed by the respondent is: Is it in the public interest to prosecute? The respondent contends that it would have been for the following reasons:

We begin with a fundamental point, namely that this is a fact-sensitive decision. It is one which has focussed evidentially upon the available defence provided by section 45. In making this determination, we do not seek to broaden the scope of this judgment beyond the factual issue which is the defence provided by section 45 on the facts of this applicant’s case.

We commend Mr Newton, on behalf of the applicant, and Mr Marsland, upon behalf of the respondent, upon the quality of their detailed written submissions and their succinct oral submissions.

As the appeal has developed, two grounds of appeal are identified. The first is that the CPS should not have made the original decision to charge or prosecute the applicant. At the time of the police search and his arrest, the applicant was the only person in the property where over 400 cannabis plants were being grown. He was found in the loft.

It is clear that the applicant was not advised by his then advocate as to any possible defence pursuant to section 45. The pre-court conference, conducted via video-link and an interpreter, between the advocate and the applicant occurred immediately before the court hearing, time was limited. There had been no prior consultation between the instructed advocate and the applicant. Had circumstances permitted, more detailed instructions should have been sought and could have been given. This should have led to advice being tendered that the applicant had a section 45 defence available to him. That said, we are not unmindful of the constraints within which the pre-court conference took place.

In the mitigation advanced on behalf of the applicant before the court, the following points were identified: the applicant was brought into the country by an agent; he was taken to the accommodation; the cannabis was already in situ and he was told what to do; the applicant was told that he would have to pay off the cost incurred for his passage to the United Kingdom by feeding the plants; he was not allowed to leave the property; other people visited the property every two or three days to bring him food and to provide him with a mattress upon which to sleep. The applicant was described by his advocate as being exploited and coerced by the telling of stories of what the police might do if they found out about his status.

In sentencing the applicant, the judge stated that he was taken advantage of by the people who brought him to the UK. They used him as a gardener for their cannabis factory.

In our judgment, the information placed before the court was sufficient to raise an issue that the applicant was a possible credible victim of trafficking. This should have been apparent to the applicant's advocate, the representative of the prosecution, and the judge. It would have been open to the judge to raise this issue. He did not do so. However, the Guidance provided by the CPS expressly provides for this situation. Had the Guidance been followed, as we believe it should have been, the prosecutor should have sought an adjournment to ensure that the steps set out in the relevant section of the Guidance, namely, the duty to make proper enquiries and to refer through the NRM, should have taken place. Had this been done, we believe it reasonable to conclude that the referral would have resulted in the Conclusive Grounds Decision (made in January 2017), namely, that the applicant is a victim of human slavery. Our view as to the Conclusive Decision is reinforced by the findings of the FTT which were made available to the court.

It being accepted by the respondent that subsections (1)(a) to (c) of section 45 are met, the court has focussed its attention upon subsection (1)(d). The applicant arrived in the United Kingdom on 15 March 2016. He was captured in Dover by immigration authorities and returned to France. Traffickers returned him to the UK in a lorry. Those facts are set out in the Conclusive Decision. The police raid on the property was on 6 June

It is unclear on what date the applicant was returned to the UK by the traffickers,

There is nothing to dispute the applicant's account that he was locked in the property in Birmingham and was visited every two or three days by his captors. In the same Conclusive Decision, it is noted that the applicant escaped in Germany. However, he was subsequently beaten by the traffickers in France because of the escape from the traffickers. It is noted that his movements were monitored and he was locked into his places of work, where he also lived. We accept that those observations relate to his experience in Russia and Europe, but it is not unreasonable to conclude that, because it was the traffickers who brought the applicant to the UK, his fear of being similarly treated would have been in the applicant's mind when in the property in Birmingham. We note that there was reference to this in the asylum interview contained in the Statement of Evidence Form. All these documents would have been available when the Conclusive Decision was made and could have been available to the CPS in reconsidering this matter.

In applying the section 45(1)(d) test, account has to be taken of the reasonable person in the same situation as the applicant and having the applicant's relevant characteristics, as a result of which he had no realistic alternative but to do the act. The factual position, as found by the Conclusive Decision, was that for the short time that he was in Birmingham, the applicant had no travel documents; he had a history of being beaten by traffickers following his earlier escape in another country; he was in a new country; and he had no contact with any persons other than those involved with the traffickers. We regard the respondent's submission that in those circumstances section 45(1)(d) is not met as failing to appreciate the reality of the applicant's situation, and his circumstances, which include his history at the hands of the traffickers in other countries and resultant fears.

Were appropriate weight to be given to these facts, as contained in the Conclusive Decision, we believe that a decision would or should have been made that the defence pursuant to section 45 would probably succeed. In our judgment, no public interest consideration would outweigh such a determination.

In summary, we conclude that, following the appropriate CPS Guidance at the time, the applicant's case should have been adjourned for referral to the NRM. Following the Conclusive Decision, a fair decision based on the facts of that decision and the evidence upon which it was based would be that a defence pursuant to section 45 would probably succeed. In the circumstances the conviction cannot be regarded as safe.

Accordingly, we grant leave and allow the appeal. For the reasons identified we find that the appellant's conviction is unsafe. It is quashed.