AFU v R

A guilty plea does not prevent a conviction being unsafe where the prosecution should not have been maintained because of an abuse of process. The statutory defence in Modern Slavery Act 2015, section 45 remains available to victims of trafficking, but a plea will be vitiated for inadequate advice only exceptionally, where a clear injustice deprived the defendant of a defence that would probably have succeeded.

The abuse-of-process jurisdiction remains an additional and exceptional safeguard after section 45. Where police and prosecutors fail to identify clear trafficking indicators, make the required enquiries, refer the person through the NRM, or apply CPS guidance, the court may review whether prosecution was in the public interest. It must assess compulsion, nexus, culpability, seriousness and vulnerability. A voluntary guilty plea does not cure a prosecution that should have been discontinued or stayed.

The appellant, a Vietnamese national, pleaded guilty at Nottingham Crown Court in 2016 to conspiracy to produce cannabis. He was sentenced to 22 months’ imprisonment.

After conviction, a Competent Authority decision and findings of the First-tier Tribunal established that he had been trafficked and forced to work in cannabis factories. He sought to adduce that fresh evidence, extend time by 1,872 days, and appeal his conviction.

He contended that he had not received adequate advice about a defence under section 45 of the Modern Slavery Act 2015. Alternatively, he contended that failures by police and prosecutors to identify him as a possible trafficking victim and apply CPS guidance made the prosecution an abuse of process. The central issue was whether the guilty plea nevertheless left the conviction unsafe.

1. Appeal allowed. The court admitted the fresh evidence, extended time, granted leave, and quashed the conviction as unsafe. Although the delay was substantial, its chronology explained it and refusing the appeal would cause significant injustice.

2. The appellant’s plea was not vitiated by inadequate legal advice. The court preferred trial counsel’s contemporaneous notes and oral evidence. Counsel had identified and explained the possible section 45 defence, taken detailed instructions, considered evidence inconsistent with it, and allowed the appellant time to decide. The appellant freely chose to plead guilty in the hope of substantial credit.

3. The court accepted that, on the First-tier Tribunal’s reliable factual findings, a section 45 defence would quite probably have succeeded. It was nevertheless not a clear injustice under R v Boal [1992] QB 591, because the potential defence had not been missed and counsel could advise only on the instructions provided.

4. The prosecution was, however, an abuse of process. The police and prosecution failed to respond to clear trafficking indicators, make proper enquiries, secure an NRM referral, review whether there was a credible section 45 defence, or consider the public interest under the applicable CPS guidance. Those failures caused material facts to be overlooked.

5. Had the guidance been followed, the prosecution would have discovered the appellant’s trafficking, coercion, repeated exploitation, youth, vulnerability, limited role and lack of previous offending. His compulsion reduced culpability below the level at which prosecution was in the public interest. The prosecution would have been discontinued at the evidential stage, or the trial court would have stayed it. The guilty plea and finality principle did not make safe a conviction resulting from proceedings that should not have continued.

6. The court also made an anonymity order. Applying R v AAD and others [2022] EWCA Crim 106, it held that the real risk of re-trafficking for criminal exploitation made the order strictly necessary.

• Court of Appeal (Criminal Division): In AFU v R [2023] EWCA Crim 23, the court admitted fresh evidence, extended time, granted leave, allowed the appeal and quashed the conviction as unsafe because the proceedings were an abuse of process.
• Nottingham Crown Court: In 2016, the appellant pleaded guilty to conspiracy to produce cannabis and was sentenced to 22 months’ imprisonment.