L & Ors v The Children's Commissioner for England & Anor

A court must protect a trafficked defendant by staying proceedings for abuse of process where the alleged offending was compelled by, and integral to, that person’s exploitation. The court decides that issue for itself on all the evidence; it is not confined to reviewing the prosecutor’s decision on Wednesbury grounds.

Trafficking alone creates neither immunity from prosecution nor a substantive defence. The decisive question is the connection between the offending and the exploitation. If compulsion has extinguished culpability, a stay is likely. If culpability is diminished but remains significant, prosecution may be proper and mitigation addressed on sentence.

Age, trafficking status and exploitation must be investigated fully. Where there is reason to believe a defendant is a child and doubt remains after examination of the evidence, the defendant must be treated as a child.

Four otherwise unconnected appeals concerned convictions of three Vietnamese young people and one Ugandan woman for offences committed after they had been trafficked and exploited. The young appellants had been found in, or connected with, commercial cannabis cultivation. The adult appellant had used a forged Portuguese passport after prolonged forced prostitution and control.

Each had been convicted in the Crown Court. Issues about age, trafficking status, the National Referral Mechanism and the link between the offending and exploitation had either not been properly investigated or had not been available when the prosecution proceeded. The Court of Appeal admitted substantial fresh evidence under Criminal Appeal Act 1968.

The common issue was whether, on the facts now available, the prosecutions should have been stayed as an abuse of process because the offending was a manifestation of trafficking and exploitation.

1. All four appeals were allowed and the convictions quashed. The fresh evidence established powerful cases that each appellant had been trafficked and that the relevant offending was integral to the exploitation.

2. Directive 2011/36/EU and the Anti-Trafficking Convention require protection for victims compelled to commit crime, but permit that protection to be delivered through the basic principles of the domestic legal system. In England and Wales the appropriate protection, once proceedings have begun, is the jurisdiction to stay a prosecution for abuse of process.

3. There is no automatic immunity from prosecution and trafficking itself is not a substantive defence. The court must determine whether the alleged crime was consequent upon and integral to the exploitation. Where a victim had no realistic alternative but to comply with the dominant force of traffickers, culpability may be extinguished and a stay will ordinarily be appropriate. Where culpability is only diminished, prosecution may remain proper, with appropriate mitigation on sentence. Offending unconnected with victimisation will not justify a stay.

4. The court, not the prosecutor, must decide an abuse-of-process application on the material before it. It may stay a prosecution if it disagrees with the decision to prosecute. R v Waya [2012] UKSC 51 was distinguishable because confiscation is an order made by the court, whereas the decision whether to prosecute remains for the prosecution.

5. Age, trafficking and the causal connection between exploitation and offending are distinct factual questions requiring all relevant evidence. A competent authority’s conclusive trafficking decision is not binding, but criminal courts will ordinarily abide by it unless contradictory or significant unconsidered evidence exists. If there is reason to believe that a defendant is a child and doubt persists after proper inquiry, the defendant must be treated as a child.

• Court of Appeal (Criminal Division). The court admitted fresh evidence, allowed the four appeals and quashed the convictions.
• Crown Court proceedings. THN, HVN and L had pleaded guilty in the Crown Court. T had been convicted after a retrial in the Crown Court. The trafficking, age and exploitation issues had not been adequately resolved before conviction.