Factual and Procedural Background
The Appellant, aged 36, applied for an anonymity order under section 11 of the Contempt of Court Act 1981, citing a conclusive grounds decision by the Single Competent Authority ("SCA") that he was a victim of modern slavery and at risk of re-trafficking for criminal exploitation in the UK. The case involves three sets of offences spanning from 2015 to 2022, including drug possession and supply, possession of a bladed article, failing to surrender to custody, driving offences, and possession of criminal property.
The first set of offences arose from events in March 2015 in South London, leading to guilty pleas and a 2½ year imprisonment sentence. The second set arose from events in October 2017 in Norfolk, resulting in a 9-month sentence. The third set, involving drug supply and driving offences, arose from events in 2019 and 2021 in Norfolk, culminating in a 5-year sentence in April 2022.
The Appellant made multiple applications for extensions of time to appeal convictions and sentences related to these offences. The SCA issued a positive conclusive grounds decision in November 2022, confirming the Appellant as a victim of modern slavery for the purpose of criminal exploitation from approximately 2007/2008 to April 2021.
The Appellant provided multiple witness statements detailing alleged threats, violence, and coercion linked to drug debts and exploitation. The defence criticised the legal advice received, supported by McCook statements from solicitors and counsel involved, which indicated that the Appellant was advised about possible defences including duress and modern slavery but ultimately pled guilty after assessment of the evidence.
The Appellant contended that the prosecution failed to properly investigate or consider his trafficking status in accordance with relevant guidance, rendering his convictions unsafe. The Respondent disputed the victim status and maintained that prosecution was appropriate and in the public interest.
Legal Issues Presented
- Whether the prosecution of the Appellant, who was identified as a victim of modern slavery by the SCA, constituted an abuse of process due to failure to investigate or properly consider his trafficking status under Article 4 of the European Convention on Human Rights and relevant CPS guidance.
- Whether the convictions arising from the first and third sets of offences were unsafe as a result of the alleged failure to apply trafficking and modern slavery defences.
- Whether the sentences imposed for the first, second, and third sets of offences were manifestly excessive for failing to adequately reflect mitigation related to trafficking and debt bondage.
- The appropriateness of granting an anonymity order under section 11 of the Contempt of Court Act 1981 in light of the risks of re-trafficking and principles of open justice.
Arguments of the Parties
Appellant's Arguments
- The police and Crown Prosecution Service ("CPS") failed to identify and investigate the Appellant as a possible victim of trafficking at the time of the first and third sets of offences.
- There was a duty under Article 4 ECHR and CPS guidance to refer the Appellant under the National Referral Mechanism ("NRM") before proceeding with prosecution, which was not fulfilled.
- Had the CPS complied with its guidance, the Appellant's victim status would have been confirmed, potentially negating prosecution or rendering the convictions unsafe.
- The sentences did not sufficiently reflect mitigation for trafficking, coercion, and debt bondage.
- The Appellant sought an anonymity order due to the risk of re-trafficking and criminal exploitation.
Respondent's Arguments
- The Appellant was not a genuine victim of trafficking or modern slavery; inconsistencies in his accounts undermine his credibility.
- At the time of the first set of offences, there was insufficient evidence to trigger police or CPS duties to investigate or refer the Appellant as a victim under the NRM.
- Even if the Appellant was a victim, there was no clear evidence of duress, and prosecution was in the public interest given the seriousness of the offences.
- For the third set of offences, a referral was made to the SCA, but the CPS correctly proceeded with prosecution as there was no statutory defence under section 45 of the Modern Slavery Act 2015.
- The sentences imposed appropriately reflected the offences and any mitigating factors, including any pressure or coercion.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| R v AAD [2022] EWCA Crim 106 |
Principles governing the making of anonymity orders and the assessment of victim status in modern slavery cases. |
Guided the court’s decision to grant an anonymity order due to risk of re-trafficking despite the normal rule of open justice. |
| AFU [2023] EWCA Crim 23 |
Standards for assessing prosecution compliance with CPS guidance concerning victims of trafficking and abuse of process claims. |
Informed the court’s approach to reviewing whether the prosecution decision was clearly flawed or procedurally fair. |
| AH [2023] EWCA Crim 808 |
Requirement to review prosecution decisions for rationality and procedural fairness even when guidance is not fully complied with. |
Supported the court’s careful review of retrospective prosecution decisions and public interest considerations. |
| R v S(G) [2018] EWCA Crim 1824 |
Framework for determining whether compulsion reduces culpability below the public interest threshold for prosecution. |
Used to assess whether the Appellant’s compulsion due to trafficking negated the public interest in prosecution. |
| Brecani [2021] EWCA Crim 731 |
Admissibility and weight of SCA positive conclusive grounds decisions on appeal. |
Guided the court’s treatment of the SCA’s decision as persuasive but not binding. |
| R v LM & Ors [2010] EWCA Crim 2327 |
Consideration of compulsion and trafficking in sentencing decisions. |
Referenced in CPS guidance to assess public interest in prosecution balancing seriousness and compulsion. |
| R v A [2020] EWCA Crim 1408 |
Cases where prosecution would have proceeded despite victim status being established. |
Supported the court’s view that some prosecutions remain appropriate even if the defendant is a trafficking victim. |
Court's Reasoning and Analysis
The court examined the Appellant’s criminal history, the factual circumstances of each set of offences, and the evidence relating to his alleged victim status. It assessed the compliance of the police and CPS with their duties under Article 4 ECHR and relevant CPS guidance in identifying and referring potential victims of trafficking.
Regarding the first set of offences, the court found no sufficient evidence at the time to trigger a trafficking investigation or referral under the NRM. Although the Appellant later gave evidence of coercion during a Newton hearing, he had already pleaded guilty and had been advised about the defence of duress. The court accepted that pressure and coercion could mitigate culpability but did not amount to a credible defence negating prosecution.
For the third set of offences, the court acknowledged the police referral to the SCA and the positive conclusive grounds decision. However, the prosecution had assessed the case under the updated CPS guidance, including the statutory defence under section 45 of the Modern Slavery Act 2015, and concluded prosecution was in the public interest. The court noted the Appellant’s inconsistent and evolving accounts, finding significant credibility concerns.
The court gave weight to McCook statements from the Appellant’s legal representatives, which demonstrated that appropriate advice regarding modern slavery and duress defences had been provided. The Appellant’s decision to plead guilty followed careful consideration of the evidence and legal advice.
In assessing the SCA’s decision, the court found it heavily reliant on the Appellant’s own account, which was internally inconsistent and contradicted by the evidence. While acknowledging that trauma may cause inconsistencies, the court concluded that the Appellant was not a victim of trafficking or modern slavery during the relevant period, and any threats or violence were incidental to voluntary involvement in drug offending.
The court applied established principles from case law emphasizing prosecutorial discretion, the necessity of rationality and procedural fairness in prosecution decisions, and the limited circumstances under which courts intervene. It found no abuse of process in the prosecutions and concluded the convictions were safe.
Regarding sentencing, the court held that the mitigation related to pressure and coercion was adequately considered by the sentencing judges, who applied relevant sentencing guidelines. The sentences were proportionate to the offences and the Appellant’s role, and no grounds for appeal against sentence were found to be arguable.
Holding and Implications
The court REFUSED the Appellant’s applications for extensions of time to appeal against conviction and sentence in respect of all three sets of offences.
The court further granted the requested anonymity order due to the risk of re-trafficking and criminal exploitation, balancing this against the principle of open justice in accordance with the precedent set in R v AAD.
The direct effect of this decision is the finality of the Appellant’s convictions and sentences, with no new precedent established. The court affirmed the prosecutorial discretion and the importance of careful assessment of trafficking claims without undermining the public interest in prosecuting serious offences.