PBL, R. v

An adult victim of trafficking may rely on the statutory defence in section 45 of the Modern Slavery Act 2015 where the offending was compelled by, and attributable to, slavery or relevant exploitation, and there was no realistic alternative. Once evidence raises the defence, the prosecution must disprove it to the criminal standard.

A guilty plea does not prevent an appeal where the defendant was deprived, through no fault of their own, of an available defence which would probably have succeeded and a serious injustice would otherwise result. Prosecutors, advocates and judges must remain alert to a possible trafficking defence. Decisions of specialist trafficking and immigration bodies are not binding on a criminal court, but require appropriate respect and consideration.

The applicant pleaded guilty in the Crown Court at Portsmouth to being concerned in the production of cannabis and received 12 months’ imprisonment. Although he had stated at the police station that he had been trafficked, neither the police nor those conducting the criminal proceedings pursued the possible statutory defence.

In later immigration and asylum proceedings, the Competent Authority made a conclusive finding that he was a victim of human trafficking. The First-tier Tribunal also found that he was a refugee and faced an Article 3 risk if returned to Vietnam. He then sought a substantial extension of time to appeal his conviction and permission to adduce fresh evidence.

The central issue was whether his guilty plea made the conviction safe despite the failure to identify and advise upon the section 45 defence.

1. The court granted an extension of time and leave to appeal, admitted the fresh evidence, allowed the appeal against conviction and quashed the conviction.

2. The applicant had raised a credible indication of trafficking shortly after arrest. The fact that he might have overstayed a visitor’s visa did not justify failing to refer him to the National Referral Mechanism or investigate a possible statutory defence. The prosecution, defence advocate and sentencing judge each missed opportunities to identify it.

3. On the accepted basis of plea, the applicant had been brought to the cannabis operation to work off a trafficking debt. The recorder had accepted that he acted under pressure, coercion and intimidation and had been exploited. The court held that the offending was committed under compulsion in forced labour and was sufficiently closely linked to his trafficking to extinguish culpability under section 45 of the Modern Slavery Act 2015.

4. The applicant had therefore been deprived of a defence which was available and would probably have succeeded. Applying the exceptional guilty-plea jurisdiction described in R v Boal (1992) 95 Cr App R 272, the delay and guilty plea did not prevent relief because refusing it would cause serious injustice.

5. The Competent Authority’s conclusion did not bind the criminal court, but was entitled to weight as that of a specialist body. The First-tier Tribunal’s finding was likewise not binding, but there was no good reason to depart from it. Together with the recorder’s findings, these supported the conclusion that the applicant had been trafficked.

6. The court granted anonymity under section 11 of the Contempt of Court Act 1981. The risk of reprisals to the applicant and his family, and the existing Tribunal anonymity order, made the departure from open justice necessary. It also retrospectively extended the representation order for post-lodging solicitor work, while observing that a prospective application to the Registrar was preferable.

• Court of Appeal (Criminal Division). The court extended time, admitted fresh evidence, allowed the conviction appeal and quashed the conviction.
• Crown Court at Portsmouth. In March 2017, the applicant pleaded guilty to being concerned in the production of cannabis and was sentenced to 12 months’ imprisonment.