N, R v (Rev 1)

Article 26 of the Council of Europe Convention on Action Against Trafficking in Human Beings 2005 does not create immunity from prosecution or a jury defence for a trafficked victim. It requires the prosecuting authority to consider conscientiously whether public policy permits prosecution and punishment where the offence was committed under compulsion in the broad sense.

The criminal court does not make that prosecutorial decision. It may stay proceedings only for abuse of process where the relevant discretion was improperly exercised and the stringent conditions for intervention are met. Following conviction, the question is whether the conviction is unsafe. That assessment normally turns on the contemporaneous CPS guidance and evidence, not later guidance or revised factual accounts.

These conjoined, out-of-time appeals concerned two Vietnamese young people who pleaded guilty to producing cannabis as gardeners in sophisticated cannabis factories. Each contended after conviction that he had been trafficked or subjected to forced labour and should not have been prosecuted under Article 26 of the Council of Europe Convention on Action Against Trafficking in Human Beings 2005.

N was treated as a child and sentenced to an 18-month detention and training order. LE was sentenced to 20 months’ detention in a young offender institution. In LE’s case, the CPS, the sentencing judge and the National Referral Mechanism had considered the trafficking issue before sentence. In N’s case, extensive material was obtained only after sentence.

The central issue was whether the prosecutions amounted to an abuse of process, making the convictions unsafe.

1. The appeals against conviction were dismissed. The court held that Article 26 does not provide blanket immunity from prosecution for trafficked victims. It requires careful consideration of public policy where a victim has been compelled, in the broad sense, to commit an offence and cannot establish duress.

2. The ordinary means of implementing Article 26 is the CPS’s established prosecutorial discretion. The court’s role is limited. It may stay proceedings for abuse of process if the prosecutor failed conscientiously to address the Article 26 question and that failure would or might have led to no prosecution, or if the decision was one no reasonable prosecutor could reach. After conviction, the available remedy is an appeal on safety, not judicial review.

3. The court followed the guidance in R v LM and Others [2010] EWCA Crim. 2327. It distinguished R v O [2008] EWCA Crim. 2835, where an exceptional procedural failure had denied the defendant a fair trial. Those circumstances were far removed from the present cases.

4. The Convention’s protection is not confined to persons trafficked across an international border. A person smuggled into the United Kingdom may subsequently become a victim of trafficking, servitude or forced labour. Each case nevertheless requires an individual assessment of the evidence of coercion and compulsion.

5. In N’s case, the contemporaneous material entitled the CPS to regard him as a voluntary migrant who had been smuggled, not trafficked, into the United Kingdom. The evidence of forced labour at the cannabis factory did not show compulsion sufficient to make prosecution an abuse. Later evidence and guidance did not render the earlier decision unsafe.

6. In LE’s case, the prosecution had carefully reviewed the available material. The decision to continue was amply justified. Any application to vacate the guilty plea and seek a stay would have failed.

7. The sentences were varied. N’s detention and training order was reduced to four months. LE’s sentence was reduced to 12 months’ detention.

• Court of Appeal (Criminal Division): The appeals against conviction were dismissed. The sentences were varied, reducing N’s detention and training order to four months and LE’s detention to 12 months.
• Crown Court: N pleaded guilty to being concerned in producing cannabis and received an 18-month detention and training order. LE pleaded guilty to producing cannabis and received 20 months’ detention in a young offender institution.