AJW, R. v

Factual and Procedural Background

This case concerns a renewed application for leave to appeal against conviction, alongside applications to adduce fresh evidence and for an extension of time of approximately eight years. The applicant was convicted on 9 April 2014 at Cardiff Crown Court for conspiring to secure the avoidance or postponement of enforcement action by deception under the Immigration Act 1971 and the Criminal Law Act 1977, and sentenced to two years' immediate imprisonment.

The applicant arrived in the United Kingdom from Nigeria on a student visa and sought to marry a European national, with the prosecution alleging the marriage was a sham to secure immigration status. The applicant denied this, claiming coercion and that she was a minor at the time. The case has a complex factual and procedural history, including prior failure to conduct an age assessment or identify the applicant as a victim of trafficking, and subsequent findings recognizing her as a victim of modern slavery and trafficking.

Following conviction, the applicant made an asylum claim and was referred to the National Referral Mechanism. Judicial review proceedings succeeded in overturning a prior negative decision on trafficking status. Fresh evidence includes medical reports and witness statements supporting the applicant's claims of exploitation and age.

Legal Issues Presented

1. Whether the applicant's conviction is unsafe in light of new evidence indicating she was a child and a victim of trafficking at the time of the offence.
2. Whether the failure to identify the applicant as a victim of trafficking and to conduct an age assessment constituted an abuse of process.
3. Whether the prosecution would or might not have proceeded in the public interest had the applicant's true status and age been known at the time.
4. The appropriate analytical approach to assess the safety of the conviction, including the relevance of trafficking grounds versus public interest grounds.

Arguments of the Parties

Appellant's Arguments

• The applicant committed the offence against a background of being subjected to female genital mutilation, rape, and violent abuse as a child in Nigeria, followed by trafficking and exploitation in the United Kingdom while still a child.
• The defence failed to secure an age assessment or a referral to the National Referral Mechanism at the time, and the applicant was not advised about trafficking or modern slavery law.
• The applicant was targeted for criminal and child sexual exploitation, and the prosecution of a child victim of trafficking was an abuse of process rendering the conviction unsafe.
• The prosecution of a child as an adult rendered the trial unfair.

Respondent's Arguments

• The prosecution now accepts that the applicant was 16 years old when arrested but disputes that she was a victim of trafficking by the co-defendant.
• The prosecution would not have accepted the applicant's account of coercion but maintained the case that the marriage was sought to regularise immigration status.
• The proceedings do not constitute an abuse of process solely on trafficking grounds; the key question is whether the fresh evidence undermines the jury's verdict.
• Despite maintaining its case, the prosecution concedes that had the applicant's status as a victim of prior exploitation and her age been known, the public interest would have precluded prosecution.

Table of Precedents Cited

Court's Reasoning and Analysis

The court considered the history of the applicant's case, including the failure to identify her as a child and a victim of trafficking at the time of prosecution. It acknowledged the respondent's concession that the applicant was a child victim of prior exploitation and that the prosecution would not have proceeded in the public interest had this been known.

The court noted the complex factual matrix and the jury's rejection of the applicant's denial of the offence at trial, but emphasized that the trial did not provide the safeguards required for a child or victim of trafficking. The court found no need to resolve the narrow legal dispute about the analytical approach, given the respondent's acceptance that the prosecution was not in the public interest.

Applying established principles from relevant case law, the court concluded that the conviction was unsafe because the prosecution decision was based on the incorrect assumption that the applicant was an adult and did not take into account her victim status or age. The failure to conduct an age assessment or investigate trafficking allegations was critical.

Holding and Implications

The court granted the application to extend time, allowed the appeal, permitted the adducing of fresh evidence, and quashed the applicant's conviction on the basis that it was unsafe.

The direct effect is the quashing of the conviction and the recognition of the applicant's status as a child victim of trafficking at the time of the offence. No new precedent was established beyond the application of existing principles to this particular factual context.