CS & Anor, R. v

Factual and Procedural Background

This judgment concerns separate applications for permission to rely on fresh evidence and permission to appeal against conviction and sentence, heard together due to similar issues relating to the prosecution of victims of trafficking. The Applicants pleaded guilty after the Modern Slavery Act 2015 ("the 2015 Act") came into force to offences allegedly committed before its commencement. The Applicants argued that the statutory defence under section 45 of the 2015 Act should apply retrospectively to their pre-commencement offences, that prosecutions should not have commenced given prior systems for protecting trafficking victims, and that their sentences were manifestly excessive for failing to adequately mitigate their victim status.

One Applicant ("CS") also raised a separate jurisdictional issue concerning the Court of Appeal (Criminal Division)'s power to hear appeals against convictions imposed by the Magistrates' Court.

CS pleaded guilty in the Magistrates' Court to drug possession and driving offences committed in mid-2015, committed for sentence to the Crown Court, and later pleaded guilty to further drug supply offences. Evidence revealed CS was a victim of trafficking, coerced into offending under financial pressure and control. CS challenged the failure to consider trafficking protections and the section 45 defence at trial.

Another Applicant ("Mr Le") pleaded guilty in late 2015 to producing cannabis. He claimed to have been trafficked and forced to work in a cannabis factory. Initially, the National Referral Mechanism ("NRM") did not find him a victim of trafficking, but following judicial review, the Competent Authority reversed this decision. Mr Le argued his conviction was unsafe due to failure to investigate trafficking and failure to advise him of the section 45 defence.

The court considered the applicability of statutory and common law protections for victims of trafficking before and after the 2015 Act, the retrospective operation of section 45, and whether the prosecutions should have been stayed as an abuse of process.

Legal Issues Presented

1. Whether the statutory defence under section 45 Modern Slavery Act 2015 applies retrospectively to offences committed before 31 July 2015.
2. Whether the Court of Appeal (Criminal Division) has jurisdiction to hear an appeal against conviction imposed by the Magistrates' Court.
3. Whether the prosecutions should have been stayed as an abuse of process in light of victims’ trafficking status and related protections.
4. Whether the sentences imposed were manifestly excessive, failing to adequately mitigate the Applicants' status as victims of trafficking.

Arguments of the Parties

Applicants' Arguments

• The section 45 defence under the Modern Slavery Act 2015 applies from the date it came into force and should be available regardless of when the offence occurred, i.e., it should operate retrospectively.
• The prosecutions should not have been commenced considering the pre-existing systems protecting victims of trafficking.
• The sentences imposed were manifestly excessive, failing to sufficiently account for their status as victims of trafficking.
• CS contended that the Court of Appeal (Criminal Division) should entertain an appeal against her Magistrates' Court conviction or, alternatively, the Court should sit as a Divisional Court to consider judicial review and quash the convictions.
• Both Applicants argued they were deprived of a legal process to which they were entitled, including lack of advice about the section 45 defence and failure to consider trafficking issues at prosecution and sentencing.

Respondent's Arguments

• The Court of Appeal (Criminal Division) lacks jurisdiction to hear appeals against convictions imposed by the Magistrates' Court; remedies lie in appeals to the Crown Court or judicial review.
• The section 45 defence does not have retrospective effect and applies only to offences committed on or after 31 July 2015.
• Prior to the 2015 Act, protection for victims of trafficking was given effect through CPS guidance, common law duress, and abuse of process jurisdiction.
• The Applicants' fresh evidence and trafficking claims do not render their convictions unsafe or amount to an abuse of process.
• The sentences were appropriate and not manifestly excessive given the circumstances and level of culpability.
• CS's evidence contained inconsistencies undermining the credibility of her claims of coercion preventing her from seeking police assistance.
• Mr Le had significant culpability despite trafficking claims, and the original NRM decision not to classify him as a victim supported prosecution.
• Applications for anonymity were justified in CS's case due to potential risk but refused for Mr Le due to lack of evidence of risk.

Table of Precedents Cited

Court's Reasoning and Analysis

The court first addressed the jurisdictional issue regarding CS’s appeal against her Magistrates' Court conviction. It held that because CS was not convicted on indictment, the Court of Appeal (Criminal Division) had no jurisdiction to entertain her appeal against conviction. Her remedy lay in appealing to the Crown Court or seeking judicial review.

On the central issue of whether section 45 of the Modern Slavery Act 2015 applies retrospectively, the court analysed the statutory text, legislative context, and relevant authorities. The presumption against retrospective effect was emphasized, grounded in fairness and legal certainty. The court found no positive indication in the statute or legislative scheme that Parliament intended section 45 to apply to offences committed before 31 July 2015.

The court rejected the Applicants' arguments that the absence of explicit retrospective limitation, the interpretation section 56, and transitional regulations implied a retrospective effect. The court noted that the defence is not universal and that the statute’s structure and schedule 4 exclusions further undermined the Applicants' retrospective interpretation.

The court also considered the Applicants' alternative argument that their prosecutions should have been stayed as an abuse of process given their trafficking victim status. It held that pre-2015 protections applied, but on the evidence, neither Applicant’s culpability was extinguished to the extent that prosecution was an abuse of process. CS’s inconsistencies and lack of credible evidence of coercion negated an abuse of process finding. Mr Le’s significant involvement and initial NRM decision negated unsafe conviction claims.

The court addressed the Applicants’ submissions on sentencing, concluding that the sentences were not manifestly excessive. The sentencing judges had appropriately accounted for mitigating factors, including the Applicants’ circumstances and roles.

Regarding the requirement for CS to give evidence, the court reasoned that establishing a credible defence under section 45 requires satisfying all statutory conditions, including the absence of realistic alternatives to offending, which necessitates evidence from the defendant. The court declined to overturn the direction for CS to testify.

On anonymity, the court balanced open justice principles against potential risks to CS, granting anonymity to her but refusing it for Mr Le due to lack of evidence of risk.

Holding and Implications

The court refused all applications for leave to appeal.

The key holding is that section 45 of the Modern Slavery Act 2015 does not apply retrospectively to offences committed before 31 July 2015. Consequently, the statutory defence under section 45 is unavailable for such offences, and the pre-2015 regime of protections through CPS guidance, common law duress, and abuse of process principles remains applicable.

Neither Applicant's conviction was found to be unsafe, nor were their sentences manifestly excessive. The court confirmed the absence of jurisdiction for the Court of Appeal (Criminal Division) to hear appeals against Magistrates' Court convictions not imposed on indictment.

No new precedent altering the established understanding of the retrospective application of section 45 or the jurisdictional limits of the Court of Appeal was created. The decision reinforces the presumption against retrospective statutory defences and clarifies procedural routes for appeals in Magistrates' Court cases.