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).