GS, R. v

A victim of trafficking has no blanket immunity from prosecution. The decisive question is whether the offence was integral to the trafficking and whether compulsion reduced culpability so far that prosecution would not be in the public interest.

In a post-conviction appeal, the court asks whether, on the law now applicable and the admissible facts now known, the trial should have been stayed as an abuse of process. A finding that the defendant was trafficked is the starting point, not the end of that inquiry. The seriousness of the offence, the extent and continuity of compulsion, and any reasonable alternatives remain material.

The applicant was convicted at Isleworth Crown Court in November 2007 of being knowingly concerned in the fraudulent evasion of the prohibition on importing Class A cocaine. Her defence of duress was rejected by the jury, and she received seven years’ imprisonment.

After succeeding in asylum proceedings, she was found by the First-tier Tribunal and the Competent Authority to have been trafficked and to be a victim of trafficking. Nearly ten years after conviction, she sought an extension of time, leave to appeal, and permission to adduce those decisions and later psychological evidence.

The central issue was whether, in light of the subsequent development of the law protecting trafficking victims, the conviction was arguably unsafe because the prosecution should have been stayed as an abuse of process.

1. The court refused an extension of time and leave to appeal. This was a change-in-law case. Exceptional leave therefore required substantial injustice. The risk that the conviction and seven-year sentence could affect the applicant’s immigration status would satisfy that requirement if there were an arguable case that the conviction was unsafe.

2. The court admitted the First-tier Tribunal decision, the Competent Authority decision and the Home Office letter under Criminal Appeal Act 1968, section 23. They were capable of belief, post-dated the trial, and established a matter effectively undisputed by the Crown: that the applicant was a victim of trafficking. The court refused the later psychological evidence. It could have been sought at trial, contained material intruding on the jury’s role, and was too remote and uncertain reliably to describe the applicant’s condition in 2007.

3. Neither article 26 of the Council of Europe Convention nor article 8 of the Directive gives a trafficking victim immunity from prosecution. Prosecutors must exercise a careful, fact-sensitive public-interest discretion. A victim-of-trafficking finding will ordinarily be respected but does not bind the prosecutor or the court. The critical inquiry is the nexus between trafficking and the offence, the level and continuity of compulsion, and whether reasonable alternatives existed. The court followed the framework in R v L(C) and others [2013] EWCA Crim 991 and R v Joseph (Verna) and others [2017] EWCA Crim 36.

4. The appellate question was whether the proceedings should have been stayed as an abuse of process had the applicant’s trafficking status then been known. The serious cocaine importation, the jury’s rejection of duress, and the applicant’s demonstrated ability on two occasions to escape the traffickers meant that her culpability was not arguably extinguished. A properly informed prosecutor could properly prosecute. The conviction was therefore not arguably unsafe, and the requested extension was futile.

• Court of Appeal (Criminal Division) — refused the applicant’s extension of time and application for leave to appeal against conviction: [2018] EWCA Crim 1824.
• Isleworth Crown Court — on 30 November 2007, convicted the applicant of being knowingly concerned in the fraudulent evasion of the prohibition on importing Class A cocaine and sentenced her to seven years’ imprisonment.