GB v R.

Where a conviction is challenged after an intervening change in the law on the non-prosecution of victims of trafficking, the applicant must show substantial injustice if the conviction stands. A material adverse effect on immigration status may satisfy that requirement.

The safety inquiry is whether, on the law now applicable and the facts now known, the prosecution should have been stayed as an abuse of process. A trafficking victim has no blanket immunity. The court must assess the nexus between the offence and the trafficking, the continuing compulsion, and any realistic alternative. If the offence was integral to or consequent on exploitation and compulsion in reality extinguished culpability, prosecution is not in the public interest and the conviction is unsafe.

The appellant pleaded guilty in 2008 to possessing a false identity document with intent, contrary to section 25(1)(a) of the Identity Cards Act 2006, and received 12 months’ imprisonment and a deportation recommendation.

Her earlier out-of-time appeal was refused: R v GB [2012] EWCA Crim 2895. In later immigration proceedings, however, the First-tier Tribunal found that she was a credible victim of trafficking and a refugee. The Home Office granted her leave to remain.

The Criminal Cases Review Commission referred the conviction under section 9 of the Criminal Appeal Act 1995. The central issue was whether, in light of the later evidence and the intervening legal developments identified in R v S(G) [2018] EWCA Crim 1824, the conviction was unsafe and substantial injustice would result if it remained.

1. Appeal allowed. The court admitted the fresh evidence. The First-tier Tribunal’s finding, now accepted by the respondent, established that the appellant was a credible victim of trafficking. Her guilty plea did not preclude consideration of the appeal because it had been entered without due consideration of the principles governing the criminal liability of trafficking victims.

2. This was a change-of-law case within R v S(G) [2018] EWCA Crim 1824. The appellant therefore had to show substantial injustice if her challenge were barred. Her 12-month sentence had a material potential effect on a future application for indefinite leave to remain under rule 322(1C) of the Immigration Rules. That was sufficient substantial injustice.

3. The court applied the current trafficking principles. The decisive inquiry was whether the offence had a sufficient nexus with the trafficking and whether compulsion meant that prosecution was not in the public interest. There was a clear nexus: the false passport was used while the appellant, six months pregnant and highly vulnerable, was escaping serious sexual exploitation through arrangements made by an agent on whom she remained dependent.

4. It was unrealistic to treat her presence at Gatwick as providing a realistic alternative of approaching the authorities or claiming asylum. The level of compulsion, in its broad sense, extinguished her culpability in reality. It was therefore not in the public interest to prosecute. The conviction was unsafe and was quashed.

5. The court also ordered that the appellant’s anonymity be maintained.

• Court of Appeal (Criminal Division): Allowed the appeal, quashed the 2008 conviction, and maintained anonymity: [2020] EWCA Crim 2.

• Court of Appeal (Criminal Division): Refused the appellant’s earlier out-of-time application for leave to appeal against conviction: R v GB [2012] EWCA Crim 2895.

• Crown Court at Lewes: The appellant pleaded guilty and was sentenced to 12 months’ imprisonment for the section 25(1)(a) offence.