R v Dineshkumar Thakoraka-Palmer

Victim-of-trafficking status does not create blanket immunity from prosecution or make a conviction unsafe. The prosecution must apply the Full Code Test and a three-stage approach: identify credible trafficking, discontinue where clear evidence establishes duress, and otherwise assess whether trafficking-related compulsion makes prosecution contrary to the public interest. Compulsion requires a direct connection between the trafficking and the offence and consideration of whether the defendant effectively lacked free choice or a realistic alternative. Serious offending and aggravating features remain relevant. Where the prosecution accepts trafficking status, fresh evidence proving that status may be unnecessary. The appellate question remains the safety of the conviction. Immigration consequences do not ordinarily justify reducing a criminal sentence. Anonymity requires strict necessity, with open justice prevailing otherwise.

The applicant was convicted at Southwark Crown Court on 25 May 2017 of conspiracy to conceal, disguise, convert or transfer criminal property, contrary to section 1 of the Criminal Law Act 1977, and was sentenced to five years’ imprisonment.

After conviction, the prosecution accepted that he was a possible credible victim of trafficking. He sought an extension of time, permission to appeal his conviction, and permission under section 23(1)(c) of the Criminal Appeal Act 1968 to rely on fresh evidence. He argued that trafficking-related compulsion made the prosecution an abuse of process and rendered the conviction unsafe. He also sought permission to appeal his sentence because of its immigration consequences. The central issue was whether the accepted trafficking status, viewed with the available evidence, required the prosecution to have been discontinued or the conviction to be quashed.

The applications were refused.

1. The court rejected the submission that international instruments created blanket immunity from prosecution for victims of trafficking. Article 8 of the European Union Directive 2011/36 on preventing and combatting trafficking in human beings connected non-prosecution with criminal activity which the victim had been compelled to commit as a direct consequence of trafficking. Article 2 included a position of vulnerability among the relevant means.
2. The court treated the principles governing pre-July 2015 convictions as settled, referring to R v S(G) [2019] 1 Cr. App. R 7 at [76] and R v AAD (& others) [2022] 1 Cr. App. R 19 at [142]. The applicable CPS Guidance required a three-stage approach in addition to the Full Code Test: identify a reason to believe that the person was a victim; discontinue on evidential grounds where clear evidence supported credible duress; and, even without duress, assess whether trafficking-related compulsion made prosecution contrary to the public interest.
3. Duress required the offence to be the direct result of a threat of death or serious injury directed at the defendant or someone sufficiently close. It was unavailable where reasonable evasive action, including reporting to the authorities, could have been taken, or where the defendant had voluntarily associated with persons in circumstances exposing him to compulsion. Compulsion short of duress required consideration of the means used, the loss of free choice, the nexus with the trafficking, the availability of realistic alternatives, and the seriousness of the offending.
4. It was unnecessary to admit fresh evidence to establish trafficking status because the prosecution accepted that status. The court rejected the applicant’s evidence as unreliable and found no realistic duress and no sufficient nexus between trafficking and the offending to make prosecution contrary to the public interest. The scale, duration and seriousness of the money-laundering conspiracy, together with the applicant’s significant role, meant that there was a clear public interest in prosecution. The conviction was safe and there had been no abuse of process. The court also rejected the submission concerning retrospective restoration of Article 4 rights, referring to LM & Ors [2010] EWCA Crim 2327 at [32].
5. The sentence already reflected the applicant’s vulnerability. The immigration consequences of its length were not a proper consideration for the criminal court. Permission to appeal sentence was therefore refused. In the postscript, applying R v ADD [2022] EWCA Crim 106 at [3] and [4], the court held that anonymity was not strictly necessary, so open justice prevailed and the reporting restrictions were revoked.

• Southwark Crown Court. The applicant was convicted on 25 May 2017 and sentenced to five years’ imprisonment.
• Court of Appeal (Criminal Division). The applications for an extension of time, permission to appeal conviction, admission of fresh evidence and permission to appeal sentence were refused in [2023] EWCA Crim 491.