The Court of Appeal directed that proceedings which had been stayed as an abuse of process in the Crown Court should continue. Whether a defendant is a victim of human trafficking or not is a matter solely for the jury and not the judge. The abuse of process power cannot be used to immunise potential defendants from prosecution.
Due to reporting restrictions, the published judgment in R v DS is very short at four paragraphs and does not describe the facts of the case. Instead, it considers the legal processes by which the UK protects victims of human trafficking from punishment for crimes that, in the case of children, are committed as a direct consequence of being, or having been, a victim of modern slavery.
The UK is obliged under international law to prevent human trafficking, to protect victims of the crime and to provide for the possibility of not punishing victims who offend as a consequence of their exploitation.1 The possibility for non-punishment in the UK is purportedly met by the Crown Prosecution Service’s discretion not to prosecute an individual even where, on the evidence, there is a realistic prospect of conviction. However, in a series of Court of Appeal cases between 2010 – 2013, it became clear that courts could and would interfere with the Crown’s decision to prosecute a suspected victim of human trafficking where the defence could show the improper exercise of the prosecutorial discretion and prosecutions could be stayed as an abuse of process.2.
This is what appears to have occurred in R v DS. The judge stopped the prosecution of DS, finding that his or her continued prosecution amounted to an abuse of process, presumably following a finding that they were a victim of human trafficking. The Court of Appeal held that, following the introduction of a statutory defence under the Modern Slavery Act 2015, there was no scope for judges to determine facts as to an individual’s status:
‘the result of the enactment of the 2015 Act and the section 45 statutory defence is that the responsibility for deciding the facts relevant to the status of DS as a Victim of Trafficking is unquestionably that of the jury’ (paragraph 3).
Section 45 of the Modern Slavery Act 2015 provides statutory defence to certain crimes where, in the case of a child, a defendant commits a criminal offence as a direct result of his or her exploitation and a reasonable person in the same situation would have acted accordingly. Children who are groomed to act as runners in county lines drug dealings are a classic example of potential victims. R v DS appears to suggest that, as a consequence of the Act, the abuse of process jurisdiction cannot immunise the defendant from prosecution. The jury (or in the Youth Court, the Magistrates or District Judge) must determine whether the defence applies once the evidence has concluded.
The decision has the potential to drastically reduce the safeguards available to vulnerable defendants who commit crimes as a result of exploitation. Whilst one hopes that the statutory defence is as effective a safeguard as the abuse of process jurisdiction in preventing the punishment of those who offend as a consequence of exploitation, nevertheless victims who may have experienced significant trauma, be deeply mistrustful of the authorities, and suffer from various mental and physical health issues, will now be required to withstand the tribulations of a criminal trial which might otherwise have been avoided.