O & N v R. (Rev 1)

Where the statutory defence in section 45 of the Modern Slavery Act 2015 does not apply, a retrospective review of a prosecution of an asserted trafficking victim requires three questions: whether there is credible evidence of trafficking; whether there is a nexus between the trafficking and the crime; and whether prosecution was in the public interest.

Victim status alone does not establish nexus or compulsion. The court must assess the circumstances at the time of the offence, including the person’s autonomy and the influence of any trafficker. Where trafficking, nexus and absence of public interest are established, a conviction may be unsafe. Serious and aggravated offending may nevertheless require prosecution.

These conjoined criminal appeals concerned fresh evidence that each appellant had been a victim of trafficking. N had pleaded guilty at Derby Crown Court to producing cannabis and had served a 16-month sentence. O had been tried at Woolwich Crown Court, acquitted of trafficking one complainant for sexual exploitation, and convicted of two counts of controlling prostitution for gain; she received five years’ imprisonment.

Both appellants later received conclusive grounds decisions through the National Referral Mechanism. N sought an extension of time, permission to adduce fresh evidence and permission to appeal conviction. O sought permission to adduce fresh evidence and to appeal conviction and sentence. The common issue was whether their asserted trafficking status, and its connection with their offending, made prosecution contrary to the public interest and their convictions unsafe.

1. N’s appeal was allowed and his conviction was quashed. The court adopted the established framework, summarised in R v S(G) [2018] Crim 1824, requiring consideration of credible trafficking evidence, nexus between trafficking and crime, and the public interest in prosecution.

2. N was a victim of trafficking. His account had been consistent, was corroborated in material respects, and accorded with the police officer’s contemporaneous assessment and the later conclusive grounds decision. His isolation, inability to speak English, geographical ignorance and fear of immediate reprisals established both nexus and compulsion, notwithstanding that the premises were unlocked and he had telephones and internet access. The public interest did not require prosecution. The court extended time, admitted the fresh evidence, granted permission to appeal and quashed the conviction as unsafe.

3. O’s appeals against conviction and sentence were dismissed. The court gave O the benefit of the doubt that she had been a victim of trafficking, but that status did not establish nexus or compulsion at the time of her offences. She had acted with free will in operating her sex-work business, while her alleged operator was geographically distant and there had been a significant interval since her own arrival in the United Kingdom. The court concluded that she had been complicit in the trafficking of P and A, not coerced into it.

4. In any event, the grave and aggravated nature of O’s offending meant that the public interest required prosecution. Section 45 of the Modern Slavery Act 2015 was unavailable because the offences predated its enactment. Her conviction was safe; the sentencing assessment remained sound and the five-year sentence was not manifestly excessive.

5. The court continued both appellants’ anonymity pending determination of their asylum claims.

• Court of Appeal (Criminal Division) — In O & N v R. [2019] EWCA Crim 752, N’s appeal was allowed and his conviction quashed. O’s appeals against conviction and sentence were dismissed.

• Woolwich Crown Court — O was acquitted of trafficking for sexual exploitation but convicted of two counts of controlling prostitution for gain. She was sentenced to five years’ imprisonment.

• Derby Crown Court — N pleaded guilty to producing a class B controlled drug and was sentenced to 16 months’ imprisonment on 19 February 2015.