DS, R. v ( Rev 1)

For offences within Modern Slavery Act 2015, section 45 assigns the facts relevant to trafficking status and the statutory defence to the jury. The criminal court cannot use an enlarged trafficking-related abuse-of-process jurisdiction to pre-empt that trial. A stay is available only for conventional abuse of process: where a fair trial is impossible, or state misconduct makes it wrong to try the defendant.

A conclusive National Referral Mechanism decision must be considered by the prosecutor, but does not bind the prosecutor or jury. The prosecutor may challenge it on a sound evidential basis. Article 4 does not impose a free-standing duty not to prosecute victims of forced or compulsory labour.

The Crown appealed under section 58 of the Criminal Justice Act 2003 against a Crown Court ruling staying proceedings against DS as an abuse of process.

DS, who was 17 when arrested, faced charges of possessing heroin and crack cocaine with intent to supply. Following a National Referral Mechanism referral, the competent authority made a conclusive grounds decision that he was a victim of modern slavery. DS relied on the statutory defence in section 45(4) of the Modern Slavery Act 2015. The judge accepted the authority’s decision and stayed the indictment without separately considering the public interest.

The central issue was whether section 45 left any wider abuse-of-process jurisdiction to prevent a prosecution of an alleged trafficking victim.

1. Appeal allowed. The stay was wrong in law. The proceedings were directed to continue in the Crown Court.
2. The jurisdiction to stay criminal proceedings for abuse of process is important but limited. Parliament had supplied a statutory defence in section 45 of the Modern Slavery Act 2015. The court’s function was to apply that domestic framework, rather than enlarge abuse of process to meet perceived needs arising from international instruments.
3. Section 45 made the jury responsible for determining the facts relevant to whether DS was, or had been, a victim of trafficking and whether his conduct was a direct consequence of the exploitation. The earlier case-law had expanded abuse of process to fill a lacuna before the statutory defence. That expansion was no longer necessary in a case to which the Act applied.
4. Accordingly, such a prosecution may be stayed only for conventional abuse of process. The recognised categories are where a fair trial is impossible, or where it would be wrong to try the defendant because of state misconduct in bringing the prosecution. Neither category arose here.
5. The CPS must take a conclusive grounds decision under the National Referral Mechanism into account when assessing trafficking status and the nexus with offending. It may nevertheless challenge the decision before the jury where there is a sound evidential basis. If no such basis exists, the issue may instead arise on a submission of no case to answer; trial itself is not thereby an abuse of process.
6. The court did not decide whether the authority’s decision would be admissible before the jury. It also observed that, even if that decision were correct, the judge should have considered whether prosecution remained in the public interest.

• Court of Appeal (Criminal Division): Allowed the Crown’s appeal under section 58 of the Criminal Justice Act 2003 and directed the Crown Court proceedings to continue: [2020] EWCA Crim 285.
• Crown Court at Maidstone: On 14 January 2020, stayed the indictment against DS as an abuse of process.