L and R, R. v

A victim of trafficking has no blanket immunity from prosecution. Prosecutors must assess both the public interest in prosecution and the nexus between the offence and the exploitation. For a child victim, it is unnecessary to prove force: the material question is whether the offending was a direct consequence of, or occurred in the course of, trafficking or slavery.

Reliable fresh evidence establishing that an appellant was a child victim, whose offending was directly connected with trafficking, may render a conviction unsafe where the prosecution would not have proceeded if those facts had been known. Anonymity in criminal appeals remains exceptional and requires strict, case-specific necessity despite the importance of open justice.

Two Vietnamese nationals applied out of time for leave to appeal against convictions for being concerned in the production of cannabis. Each had pleaded guilty after being treated as an adult, although there were indicators of trafficking and uncertainty about age.

Fresh evidence obtained after conviction included age assessments, material from asylum and immigration proceedings, and conclusive grounds decisions recognising trafficking. The Crown accepted that, on the material now available, neither applicant would have been prosecuted in the public interest if his status as a child victim of trafficking had been recognised.

The court considered whether the convictions were unsafe, whether fresh evidence should be received, and whether anonymity was necessary in each appeal.

1. Both appeals were allowed. The court extended time, admitted the fresh evidence, granted leave to appeal, and quashed both convictions as unsafe.
2. There is no blanket immunity from prosecution for trafficked persons. The proper inquiry is whether public policy calls for prosecution and punishment, and whether there is a sufficient nexus between the offence and the exploitation. For a child victim, force need not be established; it is sufficient that the offence was a direct consequence of, or committed in the course of, trafficking or slavery.
3. For the first applicant, the fresh evidence provided a reliable basis for finding that he was a child victim of trafficking when he offended and that the cannabis offence was directly connected with that trafficking. For the second, the evidence was less clear, but sufficient on balance to establish that he was a credible child victim and that a direct nexus existed between the trafficking and the offence. In each case, the prosecution would not have continued had those matters been identified at charge or during the prosecution.
4. A conclusive grounds decision or an expert opinion is not to be accepted automatically. The Crown and the court must assess the substantial body of available material independently.
5. Anonymity orders were granted. Such orders are exceptional and must be strictly necessary. The court declined to issue general guidance for criminal appeals involving asylum or international-protection issues, given open justice, the absence of press representations, and the possibility of less restrictive measures. On the particular facts, the applicants’ accounts created a potential risk of reprisals to them or their families, their rights under Articles 2 and 3 were potentially engaged, and non-anonymisation would undermine related tribunal and public-law anonymity orders.

• Court of Appeal (Criminal Division) — by [2017] EWCA Crim 2129, extended time, admitted fresh evidence, granted leave to appeal, quashed both convictions, and made anonymity orders.
• Croydon Crown Court — the first applicant pleaded guilty on 6 May 2014 and received a one-year conditional discharge on 20 June 2014.
• Sheffield Crown Court — the second applicant pleaded guilty and was sentenced to eight months’ detention in a Young Offender Institution on 29 September 2015.