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AAB, R. v
Factual and Procedural Background
The Applicant, referred to as AAB, was born in Vietnam in 1965. In 2007, she pleaded guilty to producing a controlled drug (cannabis) and was sentenced to 15 months imprisonment by the Crown Court, with a recommendation for deportation. She was acquitted of money laundering and abstracting electricity charges. The conviction arose after police found cannabis plants and evidence of tampered electricity supply at a premises in Buxton, where the Applicant was arrested. The Applicant claimed she had come to the UK searching for her abducted daughter and had been compelled by traffickers to tend the cannabis plants.
Following sentencing, a Deportation Order was made, and the Applicant’s asylum claims were refused. Subsequent to a complaint of rape and referral to the National Referral Mechanism, she was recognized as a victim of trafficking for forced criminal exploitation through Reasonable Grounds and Conclusive Grounds decisions in 2015 and 2016 respectively. Despite this, she was not granted leave to remain based on trafficking status and remained liable for removal. In 2020, she was granted leave to remain as a stateless person until 2025.
The Applicant seeks leave to appeal her conviction with an extension of time of over 4600 days and to adduce fresh evidence, including decisions recognizing her as a trafficking victim, sentencing remarks, police documents, and psychiatric reports. The Respondent accepts most fresh evidence except the Applicant’s witness statement and psychiatric report, which were considered de bene esse.
Legal Issues Presented
- Whether the Applicant was a victim of trafficking compelled to commit the offence of producing cannabis.
- Whether there is a sufficient nexus between the trafficking and the commission of the offence to render the conviction unsafe.
- Whether fresh evidence should be admitted under s.23 of the Criminal Appeal Act 1968.
- Whether the Applicant’s conviction is unsafe in light of the Modern Slavery Act 2015 and subsequent case law developments.
- Whether an extension of time for appealing the conviction should be granted.
Arguments of the Parties
Appellant's Arguments
- The Applicant was compelled to commit the offence as a victim of trafficking, making the prosecution contrary to the public interest.
- There is a clear nexus between her trafficking status and the offending conduct.
- The Applicant’s limited education, learning disability, and PTSD diminish her credibility but do not undermine the core proposition of compulsion and victimhood.
- The sentencing Judge’s view that she was exploited by sophisticated criminals should be given weight.
- The fresh evidence supports the appeal and justifies the lengthy extension of time, as the Applicant only became aware of her possible defence through immigration solicitors.
- The conviction and sentence expose her to deportation, causing substantial injustice.
Respondent's Arguments
- The Respondent does not accept the Conclusive Grounds decision as determinative and urges careful scrutiny of the Applicant’s credibility given inconsistencies in her account.
- There is insufficient nexus between trafficking and the offence to render the conviction unsafe.
- The prosecution was in the public interest and would be pursued even under current guidelines.
- The Applicant’s inconsistent and unreliable evidence, including possessing keys to the premises, undermines reliance on her trafficking claim.
- There is no risk of substantial injustice warranting overturning the conviction.
- The Respondent is neutral on the extension of time application.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| R v AAD and others [2022] EWCA Crim 106 | Principles governing anonymity orders and admissibility of trafficking decisions as fresh evidence. | Supported the necessity of anonymity order and admissibility of fresh evidence including Conclusive Grounds decision. |
| R v Lee (Bruce George) [1984] 1 W.L.R. 578 | Establishes that a guilty plea does not deprive the court of jurisdiction to hear an appeal. | Confirmed jurisdiction to hear appeal despite guilty plea. |
| R v S(G) [2018] EWCA Crim 1824 | Reviewed change of law in trafficking cases and principles for admitting fresh evidence post-trial. | Guided admission of fresh evidence and recognition of trafficking victim status on appeal. |
| Hollington v Hewthorn [1943] KB 587 | Principles on admissibility of previous decisions as evidence. | Discussed admissibility difficulties of trafficking decisions at trial but accepted their admission on appeal. |
| MA (Pakistan) v SSHD [2019] EWCA Civ 1252 | Considerations of substantial injustice in deportation contexts following convictions. | Supported argument that conviction exposing Applicant to deportation causes substantial injustice. |
| R v Joseph & ors [2017] EWCA Crim 36 | Set out legal regime for trafficking victims including public interest in prosecution and abuse of process principles. | Applied principles to determine nexus between trafficking and offence, and whether conviction should be quashed. |
| R v M(L), B(M) and G(D) [2010] | Guidance on staying prosecutions for victims of trafficking and abuse of process. | Referenced in outlining factors for staying indictments and quashing convictions. |
| R v L(C), N, N & T [2013] | Fact sensitive approach to culpability of trafficked defendants and nexus with offences. | Used to assess degree of compulsion and culpability in this case. |
Court's Reasoning and Analysis
The court began by recognizing the statutory framework created by the Modern Slavery Act 2015, which provides a defence for victims of trafficking compelled to commit offences, but does not operate retrospectively or provide blanket immunity. The court reviewed the factual background and found the Applicant was trafficked for exploitation in cannabis cultivation, accepting the reasoning of the sentencing Judge and the Conclusive Grounds decision as consistent and persuasive.
Although the Applicant gave inconsistent accounts, the court acknowledged that such inconsistencies are common among trafficking victims due to fear and mistrust, and do not negate the core elements of trafficking and compulsion. The court found no realistic alternative was available to the Applicant but to comply with the traffickers’ demands.
Applying the test from R v Joseph and related authorities, the court concluded that if an application to stay the indictment had been made at trial, it would have been granted. The fresh evidence, including the psychiatric report, was admitted as it was capable of belief and relevant to the appeal. The Applicant’s witness statement was not admitted as it added no material value.
The court accepted the necessity of granting the lengthy extension of time due to the Applicant’s late awareness of her defence. Weighing all factors, the court found an arguable ground of appeal and a substantial risk of injustice if the conviction were to stand.
Ultimately, the court concluded that the Applicant was compelled to commit the offence as a victim of trafficking, rendering the conviction unsafe. The appeal was allowed and the conviction quashed.
Holding and Implications
The court’s final decision was to ALLOW THE APPEAL AND QUASH THE CONVICTION.
The direct effect of this decision is the overturning of the Applicant's conviction for producing cannabis. The court recognized the Applicant’s status as a victim of trafficking compelled into criminal activity, applying modern statutory and common law principles developed to protect such victims. No new precedent was set beyond applying established principles to the facts. The decision underscores the importance of considering trafficking victim status in criminal appeals and the admissibility of fresh evidence post-conviction, especially in complex cases involving vulnerability and exploitation.
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