JXP, R v

In trafficking cases, the absence of a common-law defence does not remove the prosecutor’s duty to consider whether prosecution is in the public interest. The court may stay proceedings where the State has failed properly to consider its obligation not to penalise a trafficked person.

The decisive inquiry is the extent to which the offence was consequent on, and integral to, the exploitation. It is fact-sensitive. A prosecution will generally proceed where there is no reasonable nexus. Where trafficking compulsion extinguishes culpability, however, a conviction is unsafe. A competent authority’s trafficking decision is not binding, but criminal courts will ordinarily abide by it unless contradicted by evidence or affected by significant unconsidered material.

The applicant, a Vietnamese national, pleaded guilty in the Crown Court at Nottingham in 2012 to producing cannabis and received eight months’ imprisonment, with immediate release for time on remand.

After immigration proceedings, the Competent Authority made reasonable-grounds and conclusive-grounds decisions that he had been a victim of trafficking. He later sought leave to appeal his conviction, relying on those decisions, his witness statements, psychiatric evidence and medical records. He contended that his offending was compelled by trafficking and that he should not have been prosecuted, or that the proceedings should have been stayed as an abuse of process.

The Crown accepted that, if his account were accepted, there was a nexus between the trafficking and the offence. The central issue was whether the fresh evidence established that account and made the conviction unsafe.

1. Appeal allowed. The court extended time, received the fresh evidence under section 23 of the Criminal Appeal Act 1968, granted permission to appeal, and quashed the 2012 conviction as unsafe.

2. The court applied the established trafficking framework, summarised in R v VSJ [2017] EWCA Crim 36. Article 26 of the Council of Europe Convention on Action against Trafficking in Human Beings is given effect through common-law defences, prosecutorial discretion and the court’s abuse-of-process jurisdiction. It does not confer blanket immunity. The material inquiry is whether the charged crime was consequent on and integral to the exploitation, including whether the person had a realistic alternative to compliance with a dominant force.

3. The Competent Authority’s conclusive trafficking decision was not binding. Nevertheless, the court gave it weight because it was a specialist decision, based on a detailed account, and there was no evidence contradicting it. Although one aspect of the account deserved more rigorous analysis in the decision minute, that did not undermine the conclusion.

4. The court accepted that delayed disclosure and inconsistencies did not undermine the totality of the applicant’s evidence. His earlier account partly reflected what traffickers had told him to say. The psychiatric and medical evidence provided objective support for his account of exploitation and its effects.

5. The court found a clear nexus of compulsion. The applicant was at the cannabis property because of traffickers, could not leave, feared violence and the traffickers’ international reach, could not communicate in English, and was geographically isolated. On those facts, the conviction was unsafe and had to be quashed.

• Court of Appeal (Criminal Division): In [2019] EWCA Crim 1280, the court granted an extension of time and permission to appeal, admitted fresh evidence, and quashed the conviction as unsafe.
• Crown Court at Nottingham: In 2012, the applicant pleaded guilty to producing cannabis. He was sentenced to eight months’ imprisonment and released immediately for time spent on remand.