R v AEU

An unsolicited judicial indication of sentence, given otherwise than through the appropriate procedure, may vitiate a guilty plea where it was decisive in inducing the plea. A later appellate assessment of an alleged failure to consider modern slavery must address what a properly conducted charging review would have decided on all available material concerning the particular defendant. A procedural failure does not make a conviction unsafe if it caused no injustice.

In applying a sentencing guideline range, the court must adopt a sliding scale. A defendant who was exploited and acted under others’ instructions may require a reduced starting point, even where aspects of the offending indicate a significant role.

AEU, a Vietnamese national, made out-of-time applications concerning two convictions for cannabis offences.

In 2018, at the Crown Court at Bradford, he pleaded guilty to being concerned in the supply of cannabis after the trial judge made an unsolicited observation about the likely sentence if guilty pleas were entered. A co-defendant’s conviction arising from the same incident had later been quashed in BWM [2022] EWCA Crim 921.

In 2022, at the Crown Court at St Albans, AEU pleaded guilty to producing cannabis and received three years and six months’ imprisonment. He contended that the Crown Prosecution Service had failed properly to review the case in light of potential trafficking, the National Referral Mechanism and the statutory defence under Modern Slavery Act 2015. He also appealed his sentence.

1. The 2018 conviction appeal was allowed. The court extended time, granted leave and quashed the conviction. The unsolicited indication that a sentence of about 12 months would follow guilty pleas was not made through the appropriate Goodyear procedure. It was the same improper pressure as in BWM [2022] EWCA Crim 921 and had vitiated the plea. It was therefore unnecessary to determine the proposed trafficking and statutory-defence arguments concerning that conviction.

2. The application concerning the 2022 conviction was refused. The Crown accepted that its April 2022 review had been procedurally flawed. Nevertheless, following the approach in A [2020] EWCA Crim. 1408 and Henkoma [2023] EWCA Crim 808, the court had to determine what a proper review would have produced on all available material.

   The court stressed that evidence of trafficking of Vietnamese citizens was relevant, but the circumstances of the individual were more important. AEU’s accounts contained material inconsistencies. His evidence about the absence of threats to his family for years, and his access to a key, telephone, food, alcohol and cash at the cannabis farm, would have fortified the conclusion that he was a willing participant. A proper review would therefore not have led to discontinuance, and the procedural errors caused no injustice.

3. The sentence appeal was allowed. The late guilty plea properly attracted only a 10 per cent reduction: the outstanding National Referral Mechanism decision did not legitimately explain the delay. Although AEU had features of a significant role because he was apparently in charge of a substantial farm, he was acting on others’ instructions, was not a true manager and had been exploited. The guideline range required a downward sliding-scale assessment. The appropriate post-trial sentence was about three years, reduced to two years and eight months for the plea. The original sentence of three years and six months was manifestly excessive and was quashed and replaced accordingly.

• Court of Appeal (Criminal Division): In [2024] EWCA Crim 1653, time was extended and the appeal against the 2018 conviction was allowed. Time and leave were refused for the proposed appeal against the 2022 conviction. The appeal against the 2022 sentence was allowed and the sentence was substituted with two years and eight months’ imprisonment.

• Crown Court at St Albans: On 12 April 2022, AEU was convicted on a guilty plea of producing cannabis and sentenced to three years and six months’ imprisonment.

• Crown Court at Bradford: On 23 July 2018, AEU pleaded guilty to being concerned in the supply of cannabis. That conviction was quashed by this court.