LM & Ors v R.

Article 26 of the Council of Europe Convention on Action against Trafficking in Human Beings 2005 does not confer blanket immunity from prosecution on trafficked victims. Prosecutors must actively consider trafficking where it is a realistic possibility. They must assess any common-law defence and, even where no such defence is clear, decide whether the public interest permits prosecution of an offence committed under compulsion in the broad sense.

A court may stay proceedings only as a limited safeguard where that assessment was neglected to the defendant’s disadvantage, or where the decision was one no reasonable prosecutor could reach. The court reviews the prosecutorial decision; it does not substitute its own public-interest assessment.

Five appellants relied, to differing degrees, on alleged histories of trafficking. LM, MB and DG pleaded guilty to controlling prostitution after the Crown accepted bases of plea that they had acted under pressure falling short of duress. Tabot pleaded guilty to possessing a false identity document. Tijani pleaded guilty to using a false identity document and fraud.

The appeals came from proceedings in Manchester, Lewes and Southwark Crown Courts. The common issue was the effect of Article 26 of the Council of Europe Convention on Action against Trafficking in Human Beings 2005, the CPS guidance implementing it, and the availability of a stay for abuse of process.

1. The appeals were allowed in part. The convictions of LM, MB and DG were quashed. Tabot was refused leave to appeal against conviction and sentence. Tijani was refused leave to appeal against conviction, but her sentence was reduced from nine to four months and the recommendation for deportation was quashed.

2. Article 26 of the Council of Europe Convention on Action against Trafficking in Human Beings 2005 required a mechanism for considering whether a trafficked victim should be prosecuted and punished for unlawful conduct compelled by trafficking. It did not create a defence for a jury or immunity from prosecution. The CPS guidance required prosecutors to ask whether there was reason to believe that the person had been trafficked; whether a credible common-law defence required discontinuance on evidential grounds; and, if not, whether the public interest nevertheless required discontinuance.

3. There was no special trafficking modification to duress or necessity. The ordinary limitations on those defences remained applicable: see R v Z [2005] 2 AC 467. Article 26 was wider because compulsion under the Convention was not confined to conduct satisfying those defences.

4. The court accepted that a stay for abuse of process was available as a limited safety net. The court’s role was analogous to judicial review. It could intervene where the Article 26 assessment had not properly been undertaken and might well have resulted in no prosecution, or where the decision was one no reasonable prosecutor could reach. The different treaty context in R v Uxbridge Magistrates' Court ex parte Adimi [2001] QB 667 and R v Asfaw [2008] UKHL 31 did not authorise the court to determine the public-interest question afresh.

5. For LM, MB and DG, the Crown had initially made a reasoned decision based on alleged violence and threats. Once it accepted the bases of plea, it failed to reconsider Article 26. On the accepted facts, a reasonable prosecutor could only have discontinued. A stay should have been granted if the Crown had not offered no evidence.

6. A breach of Article 10 concerning identification of victims did not itself make a prosecution unlawful. For Tabot, the trafficking account was not credible. For Tijani, any past trafficking lacked the necessary nexus of compulsion with offences committed after she had been living independently. Her past trafficking history nevertheless materially mitigated sentence.

• Court of Appeal (Criminal Division): In this consolidated appeal, the court quashed the convictions of LM, MB and DG; refused Tabot leave to appeal; and allowed Tijani’s appeal against sentence only.
• Crown Court proceedings: The matters came from Manchester, Lewes and Southwark Crown Courts. No lower-court judgment citation is stated in the judgment.