Joseph & Ors v REGINA

Factual and Procedural Background

This opinion addresses a series of conjoined appeals and applications involving individuals convicted of various offences who were subsequently designated as victims of human trafficking by the Competent Authority after their convictions. The legal context includes international conventions, the establishment of the National Referral Mechanism and the Competent Authority within the Home Office, and the enactment of the Modern Slavery Act 2015 ("the 2015 Act"). The 2015 Act provides a statutory defence for victims of trafficking but is not retrospective, so the court considered the applicable common law regime and prosecutorial discretion for defendants convicted prior to the Act. The court also considered submissions from an intervening charitable organisation advocating for the reassessment of the law to align with the 2015 Act and international obligations.

Legal Issues Presented

1. Whether the common law defence of duress should be redefined or expanded to align with the Modern Slavery Act 2015 and international obligations in cases of victims of trafficking not covered by the Act.
2. The appropriate application of international conventions and EU directives concerning the non-prosecution or non-punishment of victims of trafficking who commit offences as a direct consequence of their trafficking.
3. The evidential and procedural role of the Competent Authority’s determinations in criminal proceedings involving alleged victims of trafficking.
4. The relevance of the gravity of the offence and the public interest in prosecution when considering claims of trafficking.
5. The specific evidential and legal considerations applicable to child victims of trafficking in relation to nexus and compulsion.
6. The relationship and cooperation between the Competent Authority and the Crown Prosecution Service (CPS) in cases involving claims of trafficking, particularly post-conviction claims.

Arguments of the Parties

Appellants' Arguments

• The appellants, represented by counsel, argued that they were victims of human trafficking and that the offences for which they were convicted were committed under compulsion or as a direct consequence of their trafficking, thus their culpability was diminished or extinguished.
• They contended that prosecutorial discretion should have been exercised to avoid prosecution or that proceedings should have been stayed as an abuse of process.
• One appellant sought to rely on fresh evidence including decisions by the Competent Authority and expert psychological or psychiatric reports to support their victim status and diminished culpability.
• It was submitted that the common law defence of duress should be developed to align with the 2015 Act and international obligations, including applying the defence retrospectively to victims not covered by the Act.
• It was argued that in cases involving child victims, compulsion should not be a necessary element and that nexus alone should suffice to bar prosecution.
• Concerns were raised about the lack of clear guidance and cooperation between the Competent Authority and CPS in cases where trafficking claims arise after conviction.

Crown's Arguments

• The Crown acknowledged the decisions of the Competent Authority recognizing the appellants as credible victims of trafficking but maintained that such findings alone were insufficient to prevent prosecution.
• It was submitted that the requisite nexus and evidence of compulsion significantly diminishing or extinguishing criminal culpability were lacking in the appellants’ cases.
• The Crown argued that the public interest justified prosecution, particularly for serious offences such as Class A drug importation and trafficking.
• The Crown rejected the proposition that the common law defence of duress should be expanded or redefined to apply retrospectively or beyond the scope of the 2015 Act.
• The Crown maintained that expert reports that merely bolster credibility without addressing the legal elements were irrelevant.
• The Crown emphasized the role of prosecutorial discretion and the court’s power to stay proceedings, noting that the existing legal framework complied with international obligations.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by outlining the international and domestic legal framework relating to trafficking, including the Palermo Protocol, Council of Europe Convention, EU Directive, and the Modern Slavery Act 2015. It reaffirmed that the 2015 Act provides a statutory defence for victims of trafficking but is not retrospective. For offences committed prior to the Act, the common law regime developed through case law and prosecutorial discretion applies.

The court rejected the submission to expand the common law defence of duress to align retrospectively with the 2015 Act, finding no clear injustice warranting such development. It held that the existing legal framework, as established in the key authorities, adequately implements the UK's international obligations.

Regarding the role of the Competent Authority, the court emphasized that its decisions are not binding on criminal courts but are influential unless contradicted by other evidence. The court stressed the importance of thorough forensic examination of evidence and the necessity of establishing a nexus between trafficking and the offence, as well as the public interest in prosecution.

For child victims, the court clarified that compulsion need not be proven; a sufficient nexus between the trafficking and the offence suffices to consider non-prosecution or staying proceedings.

The court considered the gravity of offences, noting that serious crimes such as Class A drug trafficking may justify prosecution despite trafficking status. It highlighted fact-specific assessments balancing compulsion, nexus, and public interest.

In applying these principles to the individual appeals, the court analyzed the evidence, including fresh evidence such as psychological reports and Competent Authority decisions. It found in some cases that the nexus and compulsion were insufficient to bar prosecution, while in others, especially involving child victims or where fresh evidence was compelling, convictions were quashed or appeals allowed.

The court also recognized deficiencies in cooperation and guidance between the Competent Authority and CPS in cases where trafficking claims arise post-conviction, recommending clearer processes.

Holding and Implications

The court dismissed the proposal to expand or redefine the common law defence of duress to apply retrospectively or beyond the scope of the Modern Slavery Act 2015. It held that the existing legal framework, combining prosecutorial discretion, abuse of process powers, and the common law defences, adequately reflects the UK's international obligations.

Regarding the individual appeals:

• Some appeals were refused where the evidence did not establish a sufficient nexus or compulsion to extinguish or significantly diminish culpability, particularly in serious drug trafficking cases.
• Other appeals, notably those involving child victims or where compelling fresh evidence was presented, were allowed and convictions quashed, recognizing diminished culpability due to trafficking.
• One application was adjourned sine die due to the applicant's failure to maintain contact, preventing resolution of key issues.

The court underscored the importance of fact-specific analysis, the role of the Competent Authority's findings as influential but not determinative, and the necessity of balancing public interest in prosecution against the protection of trafficking victims.

No new legal precedent was established beyond reaffirming and applying existing principles. The decision highlighted the need for improved cooperation between the Competent Authority and CPS, especially in post-conviction trafficking claims.