BGV v R.

Factual and Procedural Background

On 11 April 2008, the Appellant appeared in the Crown Court and pleaded guilty to possession of a false identity document with intent, contrary to section 25(1)(b) of the Identity Cards Act 2006, receiving a sentence of 12 months' imprisonment. The Appellant appeals against conviction and sentence, with leave granted by a Single Judge including an extension of time of over 15 years and an order for anonymity.

The Appellant submits that at the time of the offence he was a victim of modern slavery, which if known to the Crown Prosecution Service ("CPS") might have led to no prosecution or a stay of proceedings as an abuse of process, or a significantly reduced sentence. The Full Court ordered the Appellant to attend court to give evidence at the appeal hearing held on 21 January 2025.

The Appellant sought to introduce fresh evidence pursuant to section 23 of the Criminal Evidence Act 1968, relating to the Single Competent Authority's ("SCA") conclusive grounds decision dated 8 March 2022, which found that the Appellant was a victim of modern slavery in the UK from 2003 to 3 April 2008 for forced labour. The court considered this evidence de bene esse.

The court also considered whether to continue the anonymity order under section 11 of the Contempt of Court Act 1981 due to the risk of re-trafficking for criminal exploitation, referencing principles from R v AAD [2022] EWCA Crim 106.

The offence arose when the Appellant was stopped at a UK airport on 3 April 2008 attempting to board a flight to Canada using a British passport belonging to another person. The Appellant was arrested and interviewed but made no comment, stating a wish to claim asylum in the UK. There is no contemporaneous documentation detailing the circumstances of possession of the false passport.

The chronology of events includes the Appellant's journey from Sudan to France and then the UK, interactions with various individuals who facilitated travel and accommodation, and subsequent immigration and asylum proceedings, including refusals of asylum claims, deportation orders, and applications for residence cards and indefinite leave to remain. The Appellant provided multiple accounts over the years, some inconsistent, including details of being forced to work in the construction industry under threat and violence, and suffering physical and psychological harm consistent with trafficking and modern slavery.

The SCA initially gave a negative reasonable grounds decision in April 2020, later revised to a positive reasonable grounds decision in May 2020, and ultimately issued a conclusive grounds decision on 8 March 2022 confirming the Appellant as a victim of modern slavery for forced labour during 2003 to 2008. This decision was based on various reports and evidence including expert psychological assessments and trafficking expert opinions.

At the appeal hearing, the Appellant explained reasons for inconsistent accounts, including fear of retribution and strategic considerations regarding asylum claims. The Appellant contended that his traffickers provided a false passport to facilitate an asylum claim in Canada and that he was coerced and exploited in the UK.

Legal Issues Presented

1. Whether the court should respect the SCA's conclusive grounds decision that the Appellant was a victim of modern slavery during the material period.
2. Whether the Appellant's conviction should be quashed on the basis that, had the CPS known of his trafficking status, it would not have been in the public interest to prosecute him.
3. Whether the prosecution constituted an abuse of process due to failure to consider the Appellant's status as a victim of modern slavery.
4. Whether the anonymity order for the Appellant should continue in light of the risk of re-trafficking.

Arguments of the Parties

Appellant's Arguments

• The SCA's conclusive grounds decision should be respected as it correctly identifies the Appellant as a victim of modern slavery.
• Inconsistent accounts are understandable given the Appellant's status as a trafficking victim and fear of retribution, and explanations have now been provided for these inconsistencies.
• Had the CPS been aware of the trafficking, it would not have prosecuted the Appellant in accordance with its guidance, as there was a sufficient nexus between the compulsion and the offence.
• The conviction should therefore be quashed.

Respondent's Arguments

• The central issue is the Appellant's credibility, which is undermined by inconsistent accounts over many years.
• The court should not accept the SCA's conclusive grounds decision given these inconsistencies and doubts regarding the Appellant's account of trafficking and modern slavery at the material time.
• However, the Respondent concedes that if the SCA's decision is respected, the CPS would have accepted it was not in the public interest to prosecute.

Table of Precedents Cited

Court's Reasoning and Analysis

The court focused on whether to respect the SCA's conclusive grounds decision that the Appellant was a victim of modern slavery. Although the Appellant's evidence was inconsistent and his credibility questioned, the court found a logical framework explaining those inconsistencies, including fear of retribution and strategic asylum considerations.

The court noted that it is common for trafficking victims to provide varying accounts due to their vulnerable circumstances. The court accepted that the Appellant was coerced and forced to work under threat and violence, and that his inconsistent accounts were understandable in that context.

The court acknowledged that the SCA had full material before it, including the inconsistencies, but still concluded on the balance of probabilities that the Appellant was a victim of modern slavery from 2003 to 2008. The expert reports supported the trafficking and modern slavery findings, despite some reliance on the Appellant's account.

The Respondent conceded that if the SCA decision were respected, the CPS guidance would have led to no prosecution as it would not have been in the public interest given the nexus between compulsion and offending.

Accordingly, the court found insufficient justification to reject the SCA's decision and determined that the prosecution was not in the public interest, warranting quashing of the conviction.

Holding and Implications

The court ALLOWED THE APPEAL and QUASHED THE CONVICTION of the Appellant for possession of a false identity document with intent.

No order for a re-trial was made.

The direct effect is that the Appellant's conviction is overturned on the basis that he was a victim of modern slavery at the material time and that prosecution was not in the public interest. No new legal precedent was established beyond the application of existing principles regarding trafficking victims and public interest prosecutions.