BYA v R

Victims of trafficking do not enjoy blanket immunity from prosecution. The court must assess the nexus between the offence and the trafficking, together with the gravity of the offence, continuing compulsion, realistic alternatives and culpability. An offence need not be directly compelled if it is committed in the course of, or as a consequence of, forced exploitation. Where trafficking indicators were not proactively investigated, and the full circumstances would or might well have led to no prosecution in the public interest, a conviction may be unsafe even after a guilty plea. In a change-in-law appeal, current law and fresh evidence govern safety, and substantial injustice may justify a lengthy extension of time.

The appellant had been convicted at Canterbury Crown Court in 2009, following a guilty plea to possessing a false identity document with intent, contrary to the Identity Cards Act 2006. She received 12 months’ immediate imprisonment and was later made subject to deportation proceedings.

After her conviction, immigration authorities and tribunals accepted that she was a victim of trafficking. She sought an extension of approximately ten years and ten months, admission of fresh evidence, and leave to appeal out of time. The central issues were whether her offending was sufficiently connected with her trafficking and compulsion to make the prosecution an abuse of process, whether the guilty plea prevented an appeal, and whether the conviction was unsafe and caused substantial injustice.

Appeal allowed and conviction quashed.

1. The court admitted the fresh evidence under section 23 of the Criminal Appeal Act 1968. It held that a guilty plea does not bar an appeal where the prosecution was an abuse of process, applying R v T [2022] EWCA Crim 108 and R v AAD [2022] EWCA Crim 106.
2. The trafficking framework, derived from R v VSJ [2017] EWCA Crim 36, R v LM [2010] EWCA Crim 2327, R v N, R v Le [2012] EWCA Crim 189 and R v L [2013] EWCA Crim 991, does not confer blanket immunity. Where there is a nexus between the offence and trafficking, the public-interest assessment is fact sensitive and includes the gravity of the offence, continuing compulsion and reasonable alternatives. There is no closed list of relevant factors: R v GS [2018] EWCA Crim 1824.
3. The offence need not be directly compelled. It may have the necessary nexus where it is committed in the course of, or as a consequence of, forced exploitation and is used to escape that exploitation. The appellant’s prolonged sexual exploitation, debt bondage, isolation, threats, vulnerability and lack of realistic alternatives considerably diminished her culpability.
4. There was no evidence that the police or prosecution had adopted the required proactive approach to identifying trafficking indicators or had considered the public interest in prosecuting. If the full circumstances had been known, the prosecution would or might well not have been brought. The offence was relatively minor, involved one use of the document, and the appellant had no previous convictions.
5. This was a change-in-law case. In light of the current law, the fresh evidence and the inadvertent breach of the international protections applicable to the appellant, the conviction caused substantial injustice. The extension of time was therefore granted.
6. Open justice is the normal rule, but anonymity was justified because the appellant was an accepted trafficking victim facing a specific risk of harm and no less restrictive measure was adequate.

• Court of Appeal (Criminal Division): granted an extension of time, admitted fresh evidence, allowed the appeal and quashed the conviction.
• Canterbury Crown Court: convicted the appellant on her guilty plea on 17 November 2009 and sentenced her to 12 months’ immediate imprisonment.