Aisosa Henkoma v R

A breach of European Convention on Human Rights and Fundamental Freedoms, Article 4 does not itself make a prosecution unlawful or a conviction unsafe. The appellate question remains whether the conviction is safe and whether the prosecution was an abuse of process.

Where a trafficked person’s status and its nexus to offending are established, the prosecutor must assess the public interest. The court ordinarily defers to a conscientious prosecutorial decision made under the applicable guidance. It intervenes only for procedural unfairness or a clearly flawed decision. Serious firearms offending may remain proportionate to prosecute despite reduced culpability, youth, trafficking and failures to safeguard the victim.

The applicant pleaded guilty in 2014 at Woolwich Crown Court to possessing a firearm without a certificate and failing to surrender to custody. In 2017, at Isleworth Crown Court, he pleaded guilty to possessing a prohibited firearm and ammunition.

Following deportation proceedings, two Conclusive Grounds decisions found that he had been a victim of modern slavery for forced criminality during both periods of offending. He sought substantial extensions of time, leave to appeal, admission of fresh evidence and the quashing of his convictions. He contended that trafficking, failures by public authorities to safeguard him under Article 4, and the resulting reduced culpability made the prosecutions abusive and the convictions unsafe.

1. The appeals were dismissed. The court granted the necessary extensions of time and leave, and admitted limited fresh evidence. The convictions for both firearms matters and for failing to surrender were safe.

2. The court accepted that the applicant was a victim of trafficking, that the required nexus with the offending existed, and that there had been multiple failures to refer and safeguard him under Article 4 of the European Convention on Human Rights and Fundamental Freedoms. Those breaches nevertheless did not, without more, render either prosecution unlawful. The issue was whether they made the convictions unsafe through abuse of process.

3. Applying the established authorities on victims of trafficking, including R v S(G) [2018] EWCA Crim 1824 and R v AAD and others [2022] EWCA Crim 106, the court held that the decision to prosecute ordinarily belongs to the prosecution. Once the prosecutor has fairly considered the relevant material and guidance, the court reviews its decision for rationality and procedural fairness. It does not substitute its own public-interest assessment merely because it might disagree with the outcome.

4. The respondent had conscientiously reconsidered whether it would have prosecuted had the trafficking evidence then been known. Its conclusion that prosecution remained in the public interest was not flawed. The prohibited firearm offence was of the utmost seriousness. The firearm, containing a live round, was in a home occupied by very young children, and the applicant attempted to conceal or dispose of it. The earlier firearm offence was also serious. The applicant’s age, reduced culpability, trafficking and the Article 4 failures were material mitigating considerations, but did not make prosecution disproportionate or abusive.

5. Under Modern Slavery Act 2015, section 45 was unavailable for the pre-Act offence. It was also unavailable for possession of a prohibited firearm because of section 45(7) and Schedule 4. The ammunition offence was the only Isleworth count to which the statutory defence might potentially have applied.

6. The separate failure-to-surrender charge was properly maintained. Even taking the later material into account, the applicant’s conduct was deliberate and the charge proceeded alongside the serious firearms allegations.

• Court of Appeal (Criminal Division) Granted extensions of time and leave where required, admitted limited fresh evidence, and dismissed the conviction appeals.
• Crown Court at Isleworth On 14 July 2017, the applicant pleaded guilty to possessing a prohibited firearm and ammunition and received concurrent terms of detention in a young offender institution.
• Crown Court at Woolwich On 9 October 2014, the applicant pleaded guilty to possessing a firearm without a certificate and failing to surrender to custody, receiving concurrent sentences.