AAD, AAH, AAI v R

For victims of trafficking, the statutory defence requires compulsion, attribution to slavery or relevant exploitation, and the absence of a realistic alternative for a reasonable person with the relevant characteristics. Causation alone is insufficient. The Modern Slavery Act 2015 did not remove the limb-two abuse-of-process jurisdiction. A stay remains available exceptionally where prosecution guidance was ignored or a favourable conclusive grounds decision was irrationally rejected, assessed on public-law grounds. Conclusive grounds decisions may be admitted on appeal under section 23, but they are not binding. Expert evidence at trial must satisfy ordinary requirements of relevance, competence and necessity and cannot decide credibility or the legal definition of trafficking. A guilty plea does not prevent an unsafe-conviction appeal where abuse of process or a vitiating error is established.

Three conjoined appeals concerned convictions of alleged victims of trafficking. AAI had been convicted in 2008 of failing to comply with a notice under section 35 of the Asylum and Immigration (Treatment of Claimants etc.) Act 2004. AAH had pleaded guilty in 2016 to possessing false identity documents to obtain employment. AAD had pleaded guilty in 2018 to producing cannabis.

Each appellant sought to rely on later evidence, including National Referral Mechanism decisions and medical evidence. The court considered the admissibility and weight of conclusive grounds decisions, expert evidence, the continuing availability of abuse-of-process stays, the meaning of compulsion under section 45 of the Modern Slavery Act 2015, and appeals following guilty pleas.

The court granted the necessary extensions of time and gave general guidance on appeals involving victims of trafficking.

1. Fresh evidence. Under section 23 of the Criminal Appeal Act 1968, a conclusive grounds decision may be admitted where necessary or expedient in the interests of justice. The decision is not binding. Unless contradicted by evidence or significant evidence was overlooked, it will generally receive respect. The court may require oral evidence where the account is controversial or insufficiently tested, but oral evidence is not invariably necessary.
2. Expert evidence. The reasoning in Brecani was consistent with earlier authority. SCA caseworkers are not experts whose opinions can determine whether a defendant was trafficked. Expert evidence must be relevant, given by a competent witness, and needed to provide information outside ordinary judicial or jury knowledge. Experts may explain psychiatric, psychological, cultural or societal matters, but may not decide credibility, vulnerability, or whether facts satisfy the legal definition of trafficking.
3. Abuse of process. The limb-two jurisdiction remains available after the 2015 Act, including in Schedule 4 cases. It is not a route to immunity. Mere disagreement with a prosecution decision is insufficient, and disputed factual questions belong to the jury. A stay may nevertheless be available in an exceptional case where the CPS failed to have due regard to its guidance or departed from a favourable conclusive grounds decision without a rational basis. The issue is reviewed on grounds corresponding to public-law principles. The court rejected the contrary dictum in DS and distinguished A to that extent.
4. Compulsion. Section 45 requires compulsion, attribution to slavery or relevant exploitation, and no realistic alternative for the relevant reasonable person. The court refused to replace compulsion with causation.
5. Applications. AAI’s conviction appeal was dismissed, but his sentence was reduced from 18 to 12 months. AAH’s conviction was quashed without a retrial. AAD’s conviction appeal was dismissed. Anonymity orders were made in each case because they were necessary and proportionate.

• Court of Appeal (Criminal Division): in [2022] EWCA Crim 106, AAH’s conviction was quashed without retrial; AAD’s conviction appeal was dismissed; AAI’s conviction appeal was dismissed but his sentence was reduced from 18 to 12 months.
• Crown Court: AAI was convicted at Manchester Minshull Street; AAH pleaded guilty and was sentenced at Snaresbrook; AAD pleaded guilty and was sentenced at Stoke-on-Trent.