A, R. v (Rev 1)

The enactment of Modern Slavery Act 2015 filled the former gap in domestic protection for trafficking victims who commit offences. It removed the special trafficking-related abuse of process jurisdiction developed before the Act. This remains so where the statutory defence is excluded by Schedule 4. A prosecution applying Parliament’s scheme cannot thereby be an abuse of process.

The CPS Guidance, together with any available defence of duress or necessity, remains a safeguard. In a serious Schedule 4 case, however, non-prosecution will be rare. The greater the seriousness of the offence, the greater the continuing compulsion and lack of realistic alternatives required to reduce culpability so far that prosecution is not in the public interest.

The applicant pleaded guilty at Woolwich Crown Court to aggravated burglary committed when he was 18. He received four years’ detention in a young offenders institution. An earlier appeal against sentence succeeded and reduced the sentence to two years and eight months’ detention.

After his conviction, the Competent Authority made reasonable and conclusive grounds decisions under the National Referral Mechanism that he was a victim of trafficking. He sought leave to appeal against conviction on fresh evidence under section 23 of the Criminal Appeal Act 1968. He contended that his prosecution was an abuse of process because trafficking and exploitation had caused the offending, and because prosecution was not in the public interest.

Aggravated burglary is excluded from the statutory defence in section 45 of the Modern Slavery Act 2015 by Schedule 4. The central issues were whether a special abuse of process jurisdiction survived that exclusion and whether, with the fresh evidence, the CPS might well have decided not to prosecute.

1. The application for leave to appeal against conviction was refused. The court admitted and considered the fresh evidence, but was sure that the conviction was safe. The application for an extension of time was also refused.

2. The special trafficking-related abuse of process jurisdiction developed before the Modern Slavery Act 2015 was intended to fill a lacuna in domestic law. Parliament filled that lacuna by enacting section 45 and deliberately limiting its statutory defence through Schedule 4. The statutory scheme cannot be circumvented by reviving that special jurisdiction. The court respectfully agreed with R v DS [2020] EWCA Crim 285 that cases governed by the Act may be stayed only under the conventional categories of abuse of process.

3. This conclusion also applies where Schedule 4 excludes the section 45 defence. The CPS Guidance and any available common-law defence of duress or necessity provide the relevant safeguards. Non-prosecution of a trafficking victim charged with a Schedule 4 offence will be rare. The offence’s seriousness requires correspondingly strong evidence of continuing compulsion and of the absence of realistic alternatives before culpability is reduced to the point at which prosecution is not in the public interest.

4. Although the applicant was historically a victim of trafficking and had been vulnerable and traumatised, the aggravated burglary was grave, planned and violent in character. The evidence did not establish that it resulted from a dominant force of compulsion by traffickers, or that his culpability had been extinguished or significantly reduced. He had opportunities to disengage from gang activity and had previously exercised autonomy in doing so. His trafficking history was relevant mitigation, but the public interest required prosecution.

5. An indefinite anonymity order was made under section 11 of the Contempt of Court Act 1981. It was necessary and proportionate in light of his recognised trafficking status and ongoing immigration matters.

• Court of Appeal (Criminal Division) — In [2020] EWCA Crim 1408, refused leave to appeal against conviction after admitting fresh evidence of trafficking status and finding the conviction safe.
• Court of Appeal (Criminal Division) — An earlier appeal against sentence was allowed. The sentence was reduced from four years to two years and eight months’ detention.
• Woolwich Crown Court — Following an unequivocal guilty plea to aggravated burglary, sentenced the applicant to four years’ detention in a young offenders institution.