K, R. v

For trafficking by arranging or facilitating travel within the United Kingdom under section 4 of the Asylum and Immigration (Treatment of Claimants etc) Act 2004, the statutory language must receive a purposive and broad construction. The offence is complete when travel is intentionally arranged or facilitated with the required intention or belief concerning future exploitation. Actual exploitation need not be proved.

Where exploitation is alleged because a courier was young, youth and the likelihood that a person without that youth would refuse must each be a more than minimal reason for the choice. Neither need be the sole, principal or but-for reason. Consent, willingness and the absence of the young person’s evidence do not prevent liability. Whether conduct arranged or facilitated travel is a fact-sensitive question which may include directions and practical travel arrangements.

The respondents had previously been convicted, or had pleaded guilty, on a separate indictment concerning conspiracies to supply class A drugs through county drug lines. They were then charged on a further indictment with trafficking five child couriers within the United Kingdom for exploitation, contrary to section 4 of the Asylum and Immigration (Treatment of Claimants etc) Act 2004.

At Woolwich Crown Court, the trial judge ruled that there was no case to answer. The Crown appealed under section 58 of the Criminal Justice Act 2003, having given the required acquittal undertaking. The central issue was whether the Crown’s evidence was capable of proving that each respondent arranged or facilitated a child courier’s travel with a view to exploitation based on youth.

1. Appeal allowed. The judge’s no-case ruling was reversed. The prosecution evidence, taken at its highest, was capable of establishing a prima facie case on each count. A fresh jury was to try counts 1 to 6 before a different judge.

2. Section 4 of the Asylum and Immigration (Treatment of Claimants etc) Act 2004 required a purposive construction, consistent with Parliament’s protective purpose. Following the approach in [K] and GEGA [2018] EWCA Crim 667, it was designed to protect vulnerable persons from trafficking for exploitation.

3. The actus reus under section 4(1A)(b) is intentionally arranging or facilitating the person’s travel. Those ordinary words are broad and no exhaustive definition should be given. Arranging includes transport, procuring transport or buying a ticket. Facilitating includes making travel easier. A direction to travel may suffice in the circumstances, but that is a question of fact.

4. The mens rea is a view to exploitation. The offence is complete when the travel is arranged or facilitated with that mental element. The Crown need not prove that exploitation was actually carried out. It may prove either that the defendant intended exploitation or believed another person was likely to exploit the courier during or after the journey.

5. For youth-based exploitation under section 4(4)(d), the young person’s youth and the likelihood that a person without that youth would refuse are both grounds for the choice. They are not separate elements. Each must be a factor in the relevant thinking and more than minimal, but neither must be the sole, main or but-for cause. Consent, apparent willingness, coercion and the availability of the child’s evidence are not determinative. The word chosen has its natural, broad meaning and is not confined to an initial, once-only act of recruitment.

6. The trial judge had wrongly required youth to be the sole ground, treated willingness as material, placed undue weight on an absence of evidence of initial recruitment, and failed properly to assess the evidence of meetings, communications, taxi arrangements, travel directions and the county-line system. The remaining six rulings were to be determined afresh if necessary at the resumed trial.

• Court of Appeal (Criminal Division): The Crown’s appeal under section 58 of the Criminal Justice Act 2003 was allowed. The no-case ruling was reversed and a fresh trial before a new jury and different judge was ordered.
• Woolwich Crown Court: At the trial on the trafficking indictment, the judge ruled that there was no case to answer. The Crown gave an acquittal undertaking and the jury was discharged.