O v R.

Where there is reason to believe that a defendant was trafficked, the court must determine whether the offending resulted from compulsion arising from that trafficking and was sufficiently connected with the exploitation to extinguish culpability. If so, the prosecutor must have considered whether a prosecution was in the public interest under the applicable guidance.

Where that consideration was not given and a trial court would have stayed the indictment for abuse of process, a resulting conviction is unsafe and must be quashed. A substantial and adequately explained delay will not prevent an appeal where refusing an extension would cause significant injustice. An anonymity order may continue where it is strictly necessary to protect Article 3 rights.

The applicant pleaded guilty at Leeds Crown Court in July 2008 to possessing a false identity document and attempting fraud. She received concurrent sentences of 15 months’ imprisonment and had long since completed them.

About nine and a half years later, she sought an extension of time, permission to appeal and permission to adduce fresh evidence. She relied on evidence that she had been trafficked from Nigeria to Italy, then brought to the United Kingdom, and coerced into the offending shortly after arriving in Leeds. Her subsequent asylum appeal had succeeded, with findings of trafficking-related harm, complex PTSD and risk on return.

The central issues were whether the offending was sufficiently connected with trafficking to extinguish culpability, whether the prosecution should have been stayed as an abuse of process, and whether the exceptional delay should be excused.

1. Appeal allowed. The court granted an extension of time, admitted the fresh evidence, granted permission to appeal and quashed both convictions as unsafe. It continued the anonymity order.

2. The evidence established that the applicant was a victim of trafficking. The First-tier Tribunal’s finding was not binding, but there was no evidence undermining it. The evidence before the court consistently supported it.

3. The court applied the established trafficking inquiry. It found a close and sufficient nexus between the trafficking and the offences. The journey from Italy to the United Kingdom was itself trafficking. The applicant was isolated, unable to communicate effectively, without money and under a threat that she would be returned to sex work if she refused. The offences were therefore integral to, and consequent upon, trafficking and exploitation, so that culpability was extinguished.

4. The prosecutor had not considered whether prosecution was in the public interest under the 2007 guidance, despite the credible account in the police interview. Proper consideration would have resulted in a decision not to prosecute. Applying R v VSJ and others [2017] EWCA Crim 36 and R v M(L), B(M) and G(D), the court held that the indictment would have been stayed had an application been made. Quashing the convictions was therefore the proper course.

5. The result was the same whether the case was assessed under later developed trafficking law or under the United Kingdom’s obligations and CPS guidance in force in July 2008. R v GS [2018] EWCA Crim 1824 was materially different because of the seriousness of its offending and the applicant’s culpability.

6. There was good reason for the lengthy delay. The applicant was only alerted to a potential appeal by immigration advice in 2015, after which there were representation difficulties. Refusal would cause significant injustice because the convictions continued to impede employment, volunteering, citizenship and family life.

• Court of Appeal (Criminal Division) — Allowed the appeal, quashed the convictions and continued anonymity: [2019] EWCA Crim 1389.

• Leeds Crown Court — On 29 July 2008, accepted guilty pleas to possession of a false identity document and attempted fraud, and imposed concurrent sentences of 15 months’ imprisonment.