Wabelua & Ors, R v

A slavery and trafficking prevention order under section 14(2) of the Modern Slavery Act 2015 requires a real, not remote risk of further relevant offending and a separate finding that an order is necessary to protect against likely physical or psychological harm. Necessity means more than desirability. The court must assess the sentence, other controls, the availability of a later police application, rehabilitation, proportionality and the clarity of each prohibition.

A later prosecution is not an abuse merely because an earlier drug conviction involved the use of under-18s as an aggravating feature. It may proceed where it concerns distinct conduct, at a different time, and the separate criminality of arranging a child’s travel for exploitation.

The appellants were convicted at the Crown Court at Inner London of trafficking vulnerable young people within the United Kingdom for exploitation in connection with a county-lines drug operation. Wabelua was convicted after trial of one count. Alford and Karemera pleaded guilty to three counts each. The sentencing judge imposed prison sentences and made 15-year slavery and trafficking prevention orders.

Wabelua renewed applications for permission to appeal against conviction and sentence. He argued that the trafficking prosecution was an abuse because of an earlier prosecution for a drugs conspiracy, and that hearsay evidence from the child should have been admitted. All three appellants challenged the necessity, terms, clarity and duration of the prevention orders.

The central issue was the proper application of sections 14 and 17 of the Modern Slavery Act 2015 to a prevention order imposed on sentencing.

1. The court refused Wabelua’s renewed applications for permission to appeal against conviction and sentence. It allowed the appeals against the slavery and trafficking prevention orders to a limited extent. The orders were necessary, but their original terms and 15-year duration were quashed and replaced.

2. The trafficking prosecution was not an abuse of process. The discretionary protection recognised in Connelly v DPP [1964] AC 1254 concerns a later charge arising from the same or substantially the same facts. Here the earlier indictment concerned Wabelua’s agreement to supply drugs. The later indictment concerned his intentional arrangement of a child’s travel for exploitation. That was different conduct, at a different time, and involved the distinct element of human trafficking. The use of an under-18 as an aggravating feature of the drugs conspiracy did not make the prosecutions the same case.

3. The trial judge correctly excluded the youth’s statement to a police officer. Consent was not an issue the prosecution had to prove. The statement’s apparent display of confidence or maturity could not materially support Wabelua’s asserted belief that the youth was over 18. The disparity challenge to Wabelua’s sentence was also unarguable: his sentence was not challenged as excessive in itself, and the judge had properly assessed the differing criminality and totality issues.

4. Under section 14(2) of the Modern Slavery Act 2015, risk and necessity are distinct preconditions. No particular standard of proof is prescribed, but the risk must be real, rather than remote, and sufficient to justify an order. Necessity requires more than an order being helpful or desirable. The court must consider the sentence, existing controls and the ability of a chief officer of police to seek an order later.

5. Each prohibition must itself be necessary, reasonable, proportionate and clear. The court must consider its effect on rehabilitation and modern electronic communication. A draft order should be supplied in sufficient time for informed consideration.

6. The judge was entitled to find a real risk and a need for an order, given the deliberate exploitation of vulnerable children and adults. However, blanket restrictions on a second phone or computer, contact between the appellants, use of vehicles, and arranging travel for under-18s were not necessary. Several clauses were also unclear. The replacement seven-year orders required registration and prompt notification to police of any phone, SIM card or computer, and notification of home address changes.

• Court of Appeal (Criminal Division). In [2020] EWCA Crim 783, the court refused Wabelua’s renewed applications concerning conviction and sentence. It upheld the need for slavery and trafficking prevention orders, but quashed and replaced their terms.

• Crown Court at Inner London. Wabelua was convicted after trial of one trafficking offence. Alford and Karemera pleaded guilty to three offences each. On 14 May 2019, Judge Karu imposed custodial sentences and 15-year slavery and trafficking prevention orders.

• Crown Court. In 2017, the Recorder refused an abuse-of-process application concerning the later trafficking charges. In 2018, Judge Karu refused to reopen that ruling for want of a material change of circumstances.