Ben Douglas-Jones KC - BARRISTER

Leading case on abuse of process on appeal after the coming into force of s.45 of the Modern Slavery Act 2015

 

Ben Douglas-Jones KC, instructed by Philippa Southwell of Southwell and Partners, appeared for the appellant in the case of R v AFU [2023] EWCA Crim 23.  The Appellant was a victim of human trafficking who had been kidnapped in Vietnam, trafficked to the UK in debt bondage, tortured and put to work in a cannabis house.

 

The Court agreed with Ben that the prosecution had been an abuse of process and overturned the Appellant’s conviction for conspiracy to produce cannabis.

 

The Court reviewed the principles of the UK’s duty in England and Wales not to prosecute victims of human trafficking and slavery (VOTs) where (1) they have a credible defence under s.45 of the Modern Slavery Act 2015 (so that the evidence limb of the Full Code Test is not made out) or (2) their criminality or culpability has been extinguished or diminished to a point where prosecution is not in the public interest, following R v AAD [2022] EWCA Crim 106; [2022] 1 WLR 4042.

 

Significantly the case confirmed that the usual principle of finality does not apply in guilty plea cases where the defendant is a VOT.

 

An appellant’s conviction may be safe, applying the Dastjerti [2011] EWCA Crim 365 checklist (see [9]) to Boal principles (see R v Tredget [2022] EWCA Crim 108; [2022] 4 WLR 62 at [154] to [180] and Archbold (2023 ed) at 7-43 to 7-46).  I.e. in a case where the criminal act is committed by a VOT, where a defendant (1) has been correctly advised about a possible section 45 defence and (2) pleads guilty voluntarily following that advice, his/her conviction may be safe on traditional principles. 

 

However, even if the conviction is safe on traditional appeal grounds, (1) where the State’s Article 4, ECHR operational measures duties have not been complied with; and (2) an appellant has not been identified as a possible credible VOT when they are a VOT, their conviction will be unsafe if (a) their trafficking circumstances have not been properly investigated; (b) had they been properly investigated the appellant would have been shown to have been a VOT; and (c) the CPS would or might well not have maintained the prosecution on evidential or public interest grounds.

 

 

Anonymity is to be considered by reference to AAD at [3] and [4] and summarised in Human Trafficking and Modern Slavery Law and Practice (2nd ed) (at 8.103-8.108). 

 

R. v Kadir (Abdul) [2022] EWCA Crim 1244 | [2022] 9 WLUK 159 | [2023] 1 Cr. App. R. 4 A judge presiding over a Crown Court trial could permit a witness who was outside the UK to give evidence via WhatsApp video call if satisfied that it was in the interests of justice. That was the case under the Criminal Justice Act 2003 s.51, as temporarily modified during the COVID-19 pandemic, and also under the version of s.51 which had been in force since 28 June 2022.

 

R. v BYA [2022] EWCA Crim 1326 Ben appeared for BYA.  Her conviction, entered following a plea of guilty to possessing a false identity document with intent, was unsafe. Following her conviction, it emerged that there were conclusive grounds for believing that she was a victim of human trafficking.  She had been exploited in three jurisdictions in enforced prostitution - raped daily.  It was clear that she had committed the offence in an attempt to escape her traffickers and that her culpability was therefore considerably diminished. Had the prosecution given adequate consideration to whether she might have been a victim of trafficking, it might well not have prosecuted her.

 

R. v Elmi (Abdihakim) [2022] EWCA Crim 1428 Ben, leading Andrew Johnson, appeared for the Crown in this leading case on the scope of the s.31, Immigration and Asylum Act 1999 “refugee defence” for document offences.  The appellant contended, relying on FA (Iraq) v Secretary of State for the Home Department [2010] EWCA Civ 696, [2010] 1 W.L.R. 2545, [2010] 6 WLUK 421, that s.31 should be construed to include those granted humanitarian protection within the definition of refugees and, relying on Adimi, to include presumptive refugees. However, the Crown correctly argued that s.31(6) defined "refugee" by reference to the Convention and did not allow a more expansive definition, emphasising the distinction between the two concepts in the Immigration Rules para.339C(ii), FA (Iraq) and Adimi considered. It was not possible to construe s.31 as if it applied to persons with either sort of protection. The defence only applied to refugees but, consistent with its statutory purpose, could be advanced at trial by those who were at that time presumptive refugees. It was for the jury to determine whether the defence was made out (see paras 45-49 of judgment).

 

R. v Nguyen (Hanh Tuyet) [2022] EWCA Crim 1444 Barristers’ strike: leading case on approach on sentencing in absence of Counsel.  Ben, leading Emma King, appeared for the Crown in this appeal.  The Appellant’s barristers did not appear at her sentence.  One was on holiday.  The other was taking part in the Criminal Bar Association days of strike action.  Ben urged the Judge to adjourn the sentence of the Appellant.  He declined to do so.  The Court of Appeal held he had erred in doing so.  The Court of Appeal said, “The efforts made by the judge and prosecuting counsel to assist the appellant at [the sentencing] hearing were praiseworthy”.

 

R v BXR [2022] EWCA Crim 1483 Ben appeared for the Appellant, a Nigerian victim of human trafficking, who had used a false passport to obtain employment prior to the coming into force of the Modern Slavery Act 2015.  He had pleaded guilty to using a false instrument and fraud without telling his legal advisers that he had been trafficked.  The Appellant had been persecuted and subjected to extreme violence and abuse for being of gay orientation in Nigeria and subjected to sexual violence and forced labour and servitude in the UK.  He had been subjected to multiple rape and had later been put through a process of gay conversion “deliverance”.

 

The court admitted fresh evidence of the true position and found that the nexus between the trafficking and use of the passport reduced the man’s culpability to a very low level and that had the CPS known the facts, it would very likely not have prosecuted him. His convictions were overturned.

 

 

R v AAD [2022] EWCA Crim 106; [2022] 2 WLUK 48 Court of Appeal gave guidance on trafficking and modern slavery in criminal cases, including on admissibility of Single Competent Authority decisions on appeal, abuse of process arguments for slavery or trafficking victims compelled to commit offences, and circumstances where a victim of trafficking can argue conviction following guilty plea unsafe.

 

R v Bani [2021] EWCA Crim 1958; [2021] 12 WLUK 457 Convictions of four “small boat” asylum seekers for assisting unlawful immigration, crossing the English Channel, overturned because court had not properly considered mental element of offence or whether they had “entered” UK illegally. Court of Appeal clarified mental element under Immigration Act 1971 s.25 and jury direction on illegal entry.

 

R v Hunter and Smith [2021] EWCA Crim 1785; [2021] 11 WLUK 384 Court considered components of fraudulent trading, Companies Act 2006, s.993(1), in the “Ed Sheeran” ticket touting case where profit was made by reselling tickets for sporting and cultural events, in breach of ostensible restrictions imposed by event organisers. The s.993(1) offence was not subject to limitations of conspiracy to defraud; no requirement for prosecution to prove intention to deceive.  Where criminal allegation is founded on breach of civil law, the judge must rule on the breaches before the jury decides the criminal issues. The case involved the “fairness” and enforceability under the Consumer Rights Act 2015 of the event organisers terms and conditions of sale which impose restrictions on the purchase and resale of tickets and the risk of ticket nullity, the status in law of a “ticket” and the scope, effect and operation of the doctrine of “equity’s darling”.

 

R. v Douglas (Jerome) [2021] EWCA Crim 1193; [2021] 4 W.L.R. 126; [2021] 7 WLUK 513; [2022] 1 Cr. App. R. 5 An important appeal considering the doctrine of autrefois convict, where prison governors and adjudicators act unlawfully in prison disciplinary proceedings; nullities of decisions; and the purview of a judge’s power under s.45(4) of the Senior Courts Act 1981. 

 

R v Brecani [2021] EWCA Crim 731; [2021] 1 W.L.R. 5851; [2021] 5 WLUK 221; [2021] 2 Cr. App. R. 12; [2022] Crim. L.R. 69. Leading case before the Lord Chief Justice on the inadmissibility of Single Competent Authority decisions in criminal proceedings; reaffirming the fact that the CACD may receive SCA decisions to assess safety of convictions.

 

R v CS [2021] EWCA Crim 134; [2021] 2 WLUK 68 The Modern Slavery Act 2015 s.45 did not have retrospective effect. There was no factor which positively indicated that Parliament intended the defence under s.45 to be available in respect of offences committed by victims of trafficking before the Act came into force.

 

H v DPP [2021] EWHC 147 (Admin); [2021] 1 W.L.R. 2721; [2021] 1 WLUK 352; [2021] 1 Cr. App. R. 23; [2021] Crim. L.R. 400; [2021] A.C.D. 41 Leading case before the Lord Chief Justice where it was held it was not permissible to use the Magistrates' Courts Act 1980 s.142 to reopen a case where a defendant had pleaded guilty in the magistrates' court and been sentenced in the Crown Court but later discovered a defence could have been advanced. The remedy was a CCRC application.

 

R (on the application of Purvis) v DPP [2020] EWHC 3573 (Admin); [2021] 4 W.L.R. 41; [2020] 12 WLUK 431; [2021] 1 Cr. App. R. 20; [2021] A.C.D. 32. Obligation on DPP where reviewing a case under right VRR scheme.

 

R v Luckhurst [2020] EWCA Crim 1579; [2021] 1 W.L.R. 1807; [2020] 11 WLUK 309; [2021] Lloyd's Rep. F.C. 53; [2021] Crim. L.R. 694 (Supreme Court appeal pending) Leading case on nature of restraint orders; reasonableness of living expenses under s.41(3)(a) of POCA; living expenses incurred on credit; legal expenses under s.41(4) civil proceedings concerning the same subject matter as the criminal proceedings are not “legal expenses related to the offence”.

 

R v A [2020] EWCA Crim 1408; [2021] 4 W.L.R. 16; [2020] 10 WLUK 371 Leading case on the special category of abuse of process in a case where a possible credible victim of trafficking or slavery commits an offence where the defence under s.45 of the Modern Slavery Act 2015 is excluded by Sched.4. Now see AAD 2022.

 

R. (on the application of L) v DPP [2020] EWHC 1815 (Admin); [2020] 7 WLUK 137; [2020] A.C.D. 106 In determining whether to prosecute a couple for domestic servitude offences relating to their treatment of an overseas domestic worker, the Crown Prosecution Service had failed to properly assess whether they had deceived her in order to induce her to come to the UK, contrary to the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 s.4(4)(c).

 

R v Smith (Alec) [2020] EWCA Crim 777; [2020] 4 W.L.R. 128; [2020] 6 WLUK 300; [2020] 2 Cr. App. R. 27 Leading case on multiple hearsay (interplay between ss.115 and 121): a conviction for indecent assault was quashed where highly prejudicial hearsay evidence of an alleged confession was wrongly admitted.  The Court emphasises that the Criminal Procedure Rules are not “decorative”.