REGINA v AGM

Before Modern Slavery Act 2015 section 45 came into force, a victim of trafficking had no blanket immunity from prosecution. The Crown Prosecution Service had to make a sensitive, fact-specific public-interest decision, having regard to the nexus between the offending and the trafficking or exploitation.

Where the prosecuting authorities had not considered whether the defendant was trafficked, an appellate court may determine whether a prosecution should have been stayed as an abuse of process. A failure to establish the direct causal compulsion required by section 45 does not prevent a pre-Act abuse-of-process challenge. The broader public-interest assessment may take account of compulsion in a broad sense, vulnerability, exploitation, the offender’s role and the seriousness of the offence.

AGM, a Vietnamese national, pleaded guilty in the Crown Court at Bournemouth to being concerned in the production of cannabis. The issue at her Newton hearing was her role for sentencing purposes. Her representatives expressly disclaimed trafficking.

After her release, AGM made an asylum claim and gave an account of prolonged trafficking, sexual exploitation and violence. Medical evidence recorded PTSD and major depressive disorder. The competent authority ultimately made a conclusive grounds decision that she was a victim of modern slavery.

AGM sought a substantial extension of time, permission to adduce the later material, and leave to appeal against conviction. The central issue was whether, had the full circumstances been known, she would or might well not have been prosecuted in the public interest, so that the proceedings should have been stayed as an abuse of process.

1. The court granted the extension of time, admitted the fresh evidence, granted leave to appeal and allowed the appeal. AGM’s conviction was unsafe and was quashed.

2. The offence pre-dated section 45 of the Modern Slavery Act 2015. The applicable regime was therefore the exercise of prosecutorial discretion, subject to the court’s exceptional abuse-of-process jurisdiction. Trafficking alone did not confer immunity from prosecution. The material questions included the nexus between the offence and the trafficking, the degree of compulsion, and whether prosecution served the public interest.

3. The court held that, if section 45 had applied, AGM would not have established its defence. An adult must have been compelled to commit the act, and that compulsion must have been a direct consequence of slavery or relevant exploitation. AGM had previously been trafficked, but the evidence did not show the required direct causal nexus between that exploitation and the cannabis offending.

4. That conclusion did not decide the pre-Act abuse-of-process issue. The CPS had not considered whether AGM was trafficked, had not made a referral through the national referral mechanism, and had not assessed the public-interest consequences of her history. The court could therefore decide that question itself.

5. AGM’s severe trauma, vulnerability, isolation, continuing debt and susceptibility to exploitation established a reasonable nexus, when compulsion was considered in the broad sense. Her limited and short-lived role, lack of previous convictions, and the absence of previous unlawful activity were also material. Despite the seriousness and scale of the cannabis operation, the court concluded that prosecution would or might well have been regarded as contrary to the public interest.

6. A guilty plea did not bar an appeal where the proceedings should have been stayed as an abuse of process. The conclusive grounds decision was admissible on appeal and, in the absence of a reason to depart from it, was respected as establishing that AGM was more likely than not a victim of trafficking.

• Court of Appeal (Criminal Division): In [2022] EWCA Crim 920, the court granted an extension of time, admitted fresh evidence, granted leave to appeal, allowed the appeal and quashed the conviction.
• Crown Court at Bournemouth: AGM pleaded guilty in 2014 to being concerned in the production of cannabis. A Newton hearing addressed her sentencing role; trafficking was disclaimed by her counsel.