A conviction for production of cannabis was overturned by Leicester Crown Court following a referral by the Criminal Cases Review Commission (CCRC). This is the first time that the CCRC has referred a case based on S.45 of the Modern Slavery Act 2015.
Mr K, who was only 17 years old at the time, was found working on a cannabis farm having been trafficked to the United Kingdom from Vietnam through Russia in 2016. His legal representative advised him to plead guilty to the offence and he was sentenced to a 12 month Referral Order in the Youth Court.
The CCRC investigation found that his legal representative did not advise him that he may have had a defence under s.45 of the Modern Slavery Act 2015. They considered new evidence that he was in fact a victim of Child Criminal Exploitation (CCE) at the time of the offence and that his offending was a direct consequence of being a victim of exploitation. The CCRC investigation also discovered that the Crown Prosecution Service had ‘clear evidence’ that Mr K was victim of CCE, which was available from the date of his arrest, but the Crown Prosecution Service failed to follow their own guidance.
The Commission on Young Lives released a report on 4 November 2022. They concluded that the systems that are designed to keep our young people safe are not fit for purpose. The Commission identified that children as young as 9 are being exploited into drug dealing and violence and concluded that urgent action and investment is required to keep our young people safe.
Unfortunately, it still remains the case that even where the circumstances of a young person’s arrest give rise to concerns that they may be a victim of CCE, they are often treated as offenders rather than a potential victim by the police. Criminal defence lawyers are therefore often one of the final safeguards for a victim of CCE, and more than ever before, must be alive to the key indicators of CCE and the availability of the s.45 defence; children and young people will not identify themselves as potential victims of CCE.
Victims of CCE are often too afraid of reprisals and/or traumatised to make full disclosures about their experiences. They may not even be able to understand, or accept, that they have been groomed and exploited into criminal activity. It is therefore imperative to consider the circumstances of a young person’s case as a whole and any comments that the young person may make. Adopting a trauma informed approach, and allowing a young person to make disclosures at their own pace, is also important; as is obtaining as much colleterial information about the young person as possible.
The Court of Appeal has been clear that potential victims of trafficking should be identified before any pleas to criminal offences are taken. If there are any concerns that a young person has a committed a criminal offence as a direct consequence of CCE, an application to adjourn should be made at the young person’s first appearance for the issue to be considered further and for a referral to be made to the National Referral Mechanism. If the police refuse to refer a child or young person to the National Referral Mechanism as a first responder, consider using an independent first responder such as the Independent Child Trafficking Guardianship Service which is provided by the children’s charity, Barnardos.
This case also reinforces the importance of making requests to the Crown Prosecution Service for disclosure. In this case, they had clear evidence in their possession which indicated that Mr K was victim of CCE. The Crown have a duty to ensure that a proper investigation is conducted into whether a person may be a victim of trafficking. Criminal defence lawyers should ensure that the Crown are reminded of this duty where necessary and consideration should be given to an application to stay a prosecution as an abuse of process where the Crown do not follow their own guidance.
For further guidance on CCE and trauma informed lawyering see the following YJLC guides:
Written by Sabrina Neves, Solicitor at GT Stewart Solicitors