R v AJW

In a very rare case, a conviction following a jury trial may be unsafe because the defendant should not have been prosecuted. For offending predating the Modern Slavery Act 2015, the abuse-of-process inquiry may be framed by asking whether the defendant would or might not have been prosecuted in the public interest. Where the prosecution itself accepts that the public-interest test was not met, the court may reach the same conclusion without offending the ordinary principle that charging decisions are for prosecutors. Here, the accepted combination of childhood, prior exploitation, proposed marriage to a much older man, absence of legally valid consent and possible sexual offending made prosecution contrary to the public interest. The court therefore extended time, granted leave, permitted fresh evidence to be adduced and quashed the conviction.

The applicant sought renewed leave to appeal against her 2014 conviction, permission to adduce fresh evidence and an extension of time of about eight years. She had been convicted after trial in Cardiff Crown Court and sentenced to two years’ immediate imprisonment.

Later age assessments and trafficking findings accepted that she had been a child at the relevant time and a victim of prior exploitation. The prosecution accepted that, had those matters been known, it would not have prosecuted her on public-interest grounds, although it maintained that the jury had correctly rejected her account of coercion. The central issue was whether the conviction was unsafe and whether the application had to be determined by trafficking-based abuse-of-process principles or solely by reference to the public-interest decision.

1. Disposition. The court extended time, granted leave to appeal and permission to adduce the fresh evidence. It quashed the conviction as unsafe.
2. Applicable approach. Although the conviction predated the Modern Slavery Act 2015, the United Kingdom’s earlier international and regional obligations were relevant. Applying the principles identified in R v AFU [2023] EWCA Crim 23, one way of formulating the abuse-of-process question was whether the applicant would or might not have been prosecuted in the public interest. If so, the proper course was to quash the conviction.
3. The court did not need to resolve the narrower dispute about whether the case had to be assessed by trafficking-based principles or only by public-interest principles. It was accepted that the applicant had been 15 at the beginning of the alleged conspiracy, just 16 at its end and 17 at conviction, against a history of exploitation. The prosecution also accepted that, had the relevant failures not occurred, the public-interest decision would have been not to prosecute.
4. The prosecution decision had been made on the footing that the applicant was an adult. The full picture would have shown a previously exploited child seeking marriage to a 43-year-old man, without the legal requirement for consent to marriage being met. Any sexual activity shortly before the proposed marriage would prima facie have engaged section 9 of the Sexual Offences Act 2003. Prosecution would therefore not have been in the public interest.
5. The ordinary principle that prosecutorial decisions are for the prosecutor remained important, as recognised in R (Barons Pub Ltd) v Staines Magistrates’ Court [2013] EWHC 898 Admin. However, where the prosecution itself accepted that the public-interest test was not met, a judicial conclusion to the same effect did not offend that principle. This was a rare case in which the conviction was unsafe despite having followed a trial.

• Court of Appeal (Criminal Division): extended time, granted leave and permission to adduce fresh evidence, and quashed the conviction as unsafe.
• Cardiff Crown Court: on 9 April 2014, convicted the applicant after trial and sentenced her to two years’ immediate imprisonment.