FGH v R

For conduct predating section 45 of the Modern Slavery Act 2015, a trafficking-based challenge proceeds through abuse of process. The question is whether, in light of current law and fresh evidence, compulsion reduced culpability below the point at which prosecution was in the public interest, or whether the defendant would or might well not have been prosecuted. A conclusive trafficking decision does not bind the appellate court where it fails to address the criminal trial and conviction. A failed duress defence and conviction for possessing a firearm with intent to endanger life made discontinuance and lack of public interest unarguable. An intermediary requires compelling justification where other adaptations cannot secure effective participation.

The applicant was convicted at the Crown Court at Harrow of possessing a firearm with intent to endanger life and was sentenced to seven years’ imprisonment. He sought an extension of approximately nine years to renew his application for leave to appeal, together with leave to adduce fresh evidence under section 23 of the Criminal Appeal Act 1968.

He argued that his later recognition as a victim of trafficking made the prosecution an abuse of process, that the absence of a defence intermediary made the trial unfair, and that the directions on duress were defective. The central questions were whether the conviction was arguably unsafe in light of the trafficking evidence, the applicant’s learning disability, and the trial judge’s treatment of the evidence.

The application was refused. The court refused an extension of time, would refuse to admit the fresh evidence, and refused leave to appeal.

1. Trafficking and abuse of process. The offence pre-dated section 45 of the Modern Slavery Act 2015, which has no retrospective effect, so the issue was whether the trial should have been stayed as an abuse of process. The court applied the test stated in R v S(G) [2018] EWCA Crim 1824, which had been cited with approval in R v AFU [2023] EWCA Crim 23. The question was whether dominant compulsion reduced culpability below the public-interest threshold, or whether the applicant would or might well not have been prosecuted in the public interest.
2. A conclusive grounds decision by the Single Competent Authority was not binding. It did not address the inconsistent accounts given at the criminal trial or the jury’s rejection of duress. The court was entitled to analyse the criminal proceedings for itself, applying the approach identified in R v AFU [2023] EWCA Crim 23.
3. The applicant had given evidence and relied on independent psychiatric evidence concerning his vulnerability. The jury had nevertheless rejected duress after proper directions. The second stage of the prosecutorial assessment was therefore not met. Given the conviction for possessing a firearm with intent to endanger life, prosecution was plainly in the public interest. Ground 1 was not arguable. The Article 4 argument under the European Convention on Human Rights disclosed no arguable breach and added nothing material.
4. Intermediary. An intermediary should not be appointed unless there are compelling reasons and other adaptations would not sufficiently secure effective participation, as stated in R v Thomas (Dean) [2020] EWCA Crim 117. Even taking the applicant’s difficulties at their highest, modified questioning and regular breaks might have sufficed. The trial judge independently owed a duty to ensure a fair trial and effective participation, but there was no arguable basis for finding that this duty had been breached.
5. Duress directions. The judge indicated that the applicant’s characteristics might be relevant and later summarised the psychiatric evidence before the jury retired. Any initial omission was rectified and did not render the conviction unsafe.

1. Court of Appeal (Criminal Division) — The court refused an extension of time, would refuse to admit the fresh evidence, and refused leave to appeal: [2024] EWCA Crim 1353.
2. Single judge — Leave to appeal was refused on 12 January 2015.
3. Crown Court at Harrow — The applicant was convicted on 22 August 2014 and sentenced to seven years’ imprisonment on 17 October 2014.