Hoai Thi Nguyen, R v

An extension of time for leave to appeal against sentence depends on the interests of justice, including whether refusal would cause significant injustice and whether the proposed grounds have compelling merit. A later conclusive grounds decision recognising trafficking does not itself justify a sentence reduction. The relevant question is whether victimisation caused or materially reduced culpability when the offence was committed. Where offending was willing and unconnected with coercion or exploitation, trafficking may provide no appreciable mitigation. Open justice remains the starting point for anonymity in criminal proceedings. An anonymity order requires strict necessity and an evidential basis for risks such as reprisal.

The applicant pleaded guilty to possessing criminal property, entering into a money laundering arrangement and conspiring to pervert the course of public justice. On 11 December 2018 she received concurrent sentences of four and ten months’ detention and a consecutive sentence of eight months’ detention. She sought a 993-day extension of time to apply for leave to appeal against sentence.

The application relied principally on a February 2021 conclusive grounds decision recognising that she had been a victim of modern slavery. The convictions were not challenged and it was accepted that no statutory defence applied. The applicant argued that the trafficking decision would have led to substantial mitigation, possibly a non-custodial sentence. The central issues were whether the fresh material showed that the sentences were manifestly excessive and whether an extension was in the interests of justice. The court also determined whether the applicant should remain anonymous.

The application for an extension of time to apply for leave to appeal against sentence was refused. The court also refused anonymity.

1. Extension of time. The governing question was whether an extension was in the interests of justice, or whether refusal would cause significant injustice. The court considered both the delay and the substantive merits. The sentences had already been served, and the court was doubtful that refusal caused real injustice, but it considered the proposed grounds on their merits.
2. Fresh evidence. The medical reports were available at the original sentencing hearing. There was no reasonable excuse for failing to rely on them, and they would not have affected sentence. The requirements of Criminal Appeal Act 1968, s.23, were therefore not met. The court did not need to hear evidence from the applicant and proceeded on the basis that the 2021 conclusive grounds decision was well-founded.
3. Trafficking and culpability. The court considered L [2013] 2 Cr App R 23, which recognised that trafficking may extinguish culpability, diminish it while leaving significant culpability, or amount only to a colourable excuse where the criminality is unconnected with victimisation. Although that passage principally concerned whether prosecution was appropriate, the court held that the last category was substantially relevant to sentencing. The judge had left trafficking neutral, had considered the applicant’s age and immaturity, and had made substantial allowance for her young child. The offending occurred after her escape and arose from her sister and her sister’s boyfriend being in custody. There was no apparent coercion or exploitation at the time of the offences. The trafficking evidence would therefore not have produced any appreciable further reduction, and the proposed appeal had no prospect of success.
4. Anonymity. Applying the guidance in R v L and R v N [2017] EWCA Crim 2129, the court treated open justice as the starting point and anonymity as requiring strict necessity. Possible reprisals against trafficking victims were relevant, but there was no evidence of a real risk, no information had been given to police about traffickers, and the offending was not linked to trafficking. The principle of open justice was not overcome.

• Court of Appeal (Criminal Division) — On 28 June 2022, refused the application to extend by 993 days the time for applying for leave to appeal against sentence and refused anonymity.
• Crown Court at Preston — On 11 December 2018, imposed the sentences challenged in the application.