O, R. v

Where credible material indicates that a defendant may be a trafficked victim, particularly a child or young person, procedural fairness requires proper investigation of trafficking, coercion, age and any available defence. Prosecutors must consider the relevant trafficking protocols in the Code for Crown Prosecutors, and defence lawyers must make appropriate enquiries.

A court told that such a defendant may be under 18 must make proper age enquiries and ensure the protections appropriate to a child. Failure to provide these safeguards may deny a fair trial contrary to the common law and Article 6 of the European Convention on Human Rights, rendering a conviction unsafe.

The appellant pleaded guilty at Canterbury Crown Court to possessing a false identity card with intent to use it as her own. She was sentenced to eight months’ imprisonment.

Before sentence, material available to those representing her indicated that she might be 16 or 17 and might have been brought to the United Kingdom for sexual exploitation. The court was told that she was 17, but no interpreter was present, no age enquiry was made, and the case proceeded in the Crown Court.

On appeal, the appellant relied on the absence of an interpreter, her possible status as a trafficked child, a possible defence of duress, the failure to investigate her age, and failures by her legal representatives. Fresh evidence from the Poppy Project was admitted.

1. Appeal allowed. The conviction was unsafe because the appellant had not received a fair trial. The court rejected the separate complaint that the absence of an interpreter, viewed alone, had undermined fairness. It found, however, that the cumulative failures concerning trafficking, coercion and age were fundamental.

2. There was credible material before the defence suggesting that the appellant might have been trafficked for prostitution and might have been no more than 16 or 17. Her representatives should have investigated that history and considered whether duress was available. They instead proceeded without obtaining an assessment from the Poppy Project and without addressing the possible consequences of trafficking.

3. The prosecution should also have been alert to the trafficking protocols incorporated in the Code for Crown Prosecutors. Those protocols required consideration of whether it was in the public interest to continue an immigration-related prosecution against a credible trafficked victim, and required particular care where a young person might have acted under coercion.

4. The court had been told that the appellant was 17, and the material allowed for the possibility that she was younger. Under section 99(1) of the Magistrates’ Courts Act 1980, proper enquiries into age were required. If she was under 18, she should not have been tried in the Crown Court; and a sentence of imprisonment as such would have been unlawful. No consideration had been given to the protections owed to her as a child or young person.

5. The common law and Article 6 of the European Convention on Human Rights required substantially greater procedural protection. The fresh evidence supported the need for that protection. The anonymity order made by Cox J was maintained.

• Court of Appeal (Criminal Division): Allowed the appeal against conviction and maintained the appellant’s anonymity order: [2008] EWCA Crim 2835.
• Crown Court at Canterbury: On 17 March 2008, following a guilty plea, convicted the appellant of possessing a false identity card with intent to use it as her own and imposed eight months’ imprisonment.