Joseph & Ors, R. v

For conduct predating Modern Slavery Act 2015, the established common-law, prosecutorial and abuse-of-process regime remains the means by which the United Kingdom’s non-punishment obligations towards trafficked victims are met. The court declined to enlarge duress retrospectively to replicate the statutory defence in section 45.

For an adult, prosecution depends on a fact-sensitive assessment of trafficking, a sufficient nexus between exploitation and offending, compulsion, and the public interest. Serious offending may justify prosecution. For a child victim, the required nexus is that the offence was a direct consequence of trafficking; compulsion need not be proved. A Competent Authority decision is important but does not bind the criminal court.

Six conjoined appeals and applications concerned defendants convicted of drug, document and fraud offences who later relied, save in one case, on findings that they were victims of human trafficking. The court considered the pre-statutory legal regime because the relevant conduct pre-dated the material provisions of the Modern Slavery Act 2015.

Two applicants had imported substantial quantities of cocaine. Two others had been convicted of cultivating cannabis. One applicant had been convicted of producing cannabis after a guilty plea, but her application could not proceed in her absence. The final applicant had pleaded guilty to possessing false identity documents and fraud.

The central issues were whether the existing law should be recast through an expanded defence of duress, how the nexus test applies to child victims, and whether the fresh material showed that prosecution should not have been pursued.

1. The court allowed the appeals of NTN and AA and quashed their convictions. It dismissed VCL’s appeal, refused Joseph’s and Craciunescu’s applications, and adjourned Dong Nguyen’s applications sine die because his absence prevented resolution of important factual issues.
2. Section 45 was not retrospective. The court rejected the submission that it should expand duress for earlier conduct so as to reproduce the defence in Modern Slavery Act 2015, section 45. The pre-existing regime established in R v M(L), B(M) and G(D) [2010] EWCA Crim 2327 and later decisions already gave effect to the international obligations. Clear injustice would be required to justify altering duress, and none was shown.
3. For adult victims, the prosecutor must assess the evidence of trafficking, the nexus between trafficking and the offence, and the public interest. Where there is no credible defence of duress or necessity, prosecution remains possible if culpability is not significantly diminished or effectively extinguished. Gravity, continuing compulsion and realistic alternatives are material. The court may stay proceedings where the State has not properly considered non-prosecution, but does not substitute its own prosecutorial judgment where proper consideration has occurred.
4. For a child victim, compulsion is not an additional requirement. The issue is whether the offence was a direct consequence of trafficking. Applying that rule, VCL had not shown the requisite nexus on the facts. Conversely, the fresh evidence concerning NTN established that he was trafficked as a child and that his cannabis cultivation was directly connected with that exploitation. His prosecution would not have been pursued.
5. A Competent Authority decision is not binding. It will ordinarily carry substantial weight, but the criminal court must examine the cogency of its evidential basis and the nexus with the offence. The positive decisions concerning Joseph and Craciunescu did not establish a sufficient nexus or extinguish culpability for serious cocaine importation. AA’s admissible fresh evidence did establish a sufficient nexus of compulsion; the Crown would have decided not to prosecute.
6. Expert evidence must assist rather than merely vouch for credibility. Speculative reports based substantially on an applicant’s account, without proper testing of inconsistencies, carried little or no weight.

• Court of Appeal (Criminal Division): In this conjoined judgment, the court quashed the convictions of NTN and AA, dismissed VCL’s appeal, refused Joseph’s and Craciunescu’s applications, and adjourned Dong Nguyen’s applications sine die.
• Court of Appeal (Criminal Division): In VCL’s earlier appeal, R v N, R v Le [2012] EWCA Crim 189, the court dismissed his conviction appeal but reduced his sentence from 20 months to 12 months’ detention.
• Crown Court: The underlying convictions were entered at Manchester, Isleworth, Peterborough, Liverpool and Northampton Crown Courts between 2005 and 2014. The present proceedings included applications for extensions of time, leave to appeal, and admission of fresh evidence.
• First-tier Tribunal (Immigration and Asylum Chamber): In NTN’s case, the Tribunal found in 2014 that he was a victim of trafficking. That finding was admitted as fresh evidence in the criminal appeal.