R v BXR

Where trafficking evidence emerges after a conviction for conduct committed before the statutory trafficking defence came into force, the conviction is unsafe if the prosecution would not, or might well not, have been brought had the true facts been known, or if it would have been stayed as an abuse of process. Both limbs turn on the public interest. Trafficking victim status alone is insufficient. The court must assess the fact-specific nexus between trafficking and offending, the degree of compulsion, its effect on culpability, the seriousness of the offence, realistic alternatives, and relevant features of the defendant and crime. A strong nexus that reduces culpability to a very low level or extinguishes it will normally make prosecution contrary to the public interest.

The appellant pleaded guilty in the Crown Court at Snaresbrook in 2017 to possession of false identity documents, fraud and an immigration offence arising from the use of a false passport to obtain factory employment. He was sentenced to concurrent terms of imprisonment.

After conviction, evidence emerged that he had been trafficked and subjected to servitude, forced labour and exploitation. The First-tier Tribunal accepted his account in asylum proceedings, and the Single Competent Authority later made a conclusive grounds decision that he had been trafficked, although it drew a distinction concerning his later employment. The appeal raised whether, under the law before the statutory defence came into force, the convictions were unsafe because the trafficking circumstances would have made prosecution contrary to the public interest.

Appeal allowed. The court granted the extension of time and admitted the fresh evidence.

1. For offending committed before the statutory defence came into force, the governing route was the CPS prosecution decision and the court’s abuse-of-process jurisdiction. Where trafficking evidence was not before the CPS, a conviction was unsafe if the Crown would not, or might well not, have prosecuted had it known the true facts, or if prosecution would have been stayed as an abuse of process. Both questions turned on the public interest. The court was not required to determine the later statutory defence under Modern Slavery Act 2015 s 45.
2. The fact of trafficking did not itself justify quashing a conviction. The court had to make a sensitive, fact-specific assessment of the nexus between trafficking and offending and the degree of compulsion exerted by the trafficking circumstances. A strong nexus which extinguished culpability would normally justify setting aside the conviction. Intermediate cases depended on the reduction in culpability and the wider public interest, including the gravity of the offence, realistic alternatives, the defendant’s history and characteristics, and the features and seriousness of the crime.
3. The appellant’s earlier and continuing exploitation, vulnerability, cognitive and language difficulties, fear of return to Nigeria, homelessness and dependence on those offering accommodation and work created a high degree of compulsion. The trafficking was directly responsible for the use of the false passport and reduced culpability to a very low level, if not extinguishing it. Had the CPS known the true circumstances and applied the 2013 Guidance, it would very likely not have prosecuted. The absence of fault by legal advisers did not bar the application, as illustrated by R v O [2011] EWCA Crim 2226.
4. The convictions on the indictment were quashed. Under paragraph 6(9) of Schedule 3 to the Crime and Disorder Act 1988, the mistakenly substituted summary conviction was also quashed, and no further proceedings were directed in respect of the related summary offence actually sent for trial under s 51 of the Crime and Disorder Act 1998. The anonymity order was continued for the appellant’s lifetime in accordance with the principles in R v L & N [2017] EWCA Crim 2129 and R v AAD [2022] EWCA Crim 106.

• Court of Appeal (Criminal Division): [2022] EWCA Crim 1483. Extension of time granted, fresh evidence admitted, convictions quashed, and no further proceedings directed in respect of the related summary offence actually sent for trial.
• Crown Court at Snaresbrook: On 23 May 2017, the appellant pleaded guilty and received concurrent sentences of nine months on the indictment offences and three months for the summary offence.