N, R. v

Where mitigation gives credible indications that a defendant may be a victim of trafficking, the prosecutor should seek an adjournment so that proper enquiries and a National Referral Mechanism referral can be made. The assessment under Modern Slavery Act 2015, section 45(1)(d), must address the reasonable person in the defendant’s actual situation and with the defendant’s relevant characteristics. A theoretical opportunity to approach the police does not necessarily provide a realistic alternative where trafficking, isolation and fear materially constrain the defendant. If a fair reconsideration would conclude that the statutory defence would probably succeed, and no public-interest consideration outweighs that conclusion, a conviction is unsafe.

The applicant pleaded guilty at Birmingham Crown Court to producing cannabis and received four months’ imprisonment. His mitigation stated that traffickers had brought him to the United Kingdom, confined him in a cannabis factory and compelled him to tend plants to repay the cost of his journey.

After conviction, immigration proceedings produced a positive Conclusive Grounds Decision that he was a victim of trafficking. The First-tier Tribunal also accepted his trafficking history, allowed his asylum appeal and allowed revocation of the deportation order. He sought an extension of time, admission of fresh evidence and leave to appeal against conviction.

The central issue was whether the information advanced in mitigation should have led to an adjournment and referral through the National Referral Mechanism, and whether a defence under section 45 of the Modern Slavery Act 2015 would probably have succeeded.

1. Appeal allowed. The court granted the substantial extension of time, admitted the fresh evidence under section 23 of the Criminal Appeal Act 1968, granted leave, and quashed the conviction as unsafe.
2. The original decision to charge was proper. At arrest the applicant was alone in a house containing more than 400 cannabis plants and gave no explanation in interview. The police and CPS then had no information that should have alerted them to possible trafficking.
3. The position materially changed at the Crown Court. The mitigation described transport by an agent, a debt for the journey, confinement, directions to tend pre-existing plants, and coercion by those controlling the property. That material was sufficient to raise a credible possibility that the applicant was a victim of trafficking. Under the CPS Guidance then in force, the prosecutor should have sought an adjournment for proper enquiries and referral through the National Referral Mechanism.
4. On the information later available, the defence in section 45 of the Modern Slavery Act 2015 would probably have succeeded. Subsections (1)(a) to (c) were accepted. Under section 45(1)(d), the court assessed a reasonable person in the applicant’s actual situation and with his relevant characteristics. He had no travel documents, had recently been returned to the United Kingdom by traffickers, had previously been beaten after escaping, was in a new country, and had no contact beyond those connected with the traffickers. The submission that he had a realistic alternative because he could approach the police failed to confront that reality.
5. A fair reconsideration following a Conclusive Grounds Decision would therefore have concluded that the statutory defence probably succeeded. No public-interest consideration outweighed that conclusion. The conviction could not be regarded as safe and was quashed.

• Court of Appeal (Criminal Division): By [2019] EWCA Crim 984, the court granted an extension of time, received fresh evidence, granted leave to appeal, allowed the appeal against conviction and quashed the conviction.
• Birmingham Crown Court: On 7 July 2016, the applicant pleaded guilty to producing a Class B drug, cannabis, and was sentenced to four months’ imprisonment.