Court of Appeal judgment – prosecuting victims of trafficking, abuse of process and Schedule 4 offences

R v A [2020] EWCA Crim 1408

It will not be an abuse of process for the CPS to prosecute a victim of trafficking accused of an offence, where the defence under section 45 Modern Slavery Act 2015 is not available, pursuant to schedule 4 of that act, which limits reliance on the defence for serious sexual and violent offences.


In 2016, “A” entered a guilty plea to a single count of aggravated burglary when he was 18 years old. At the time of his conviction, despite his age, no consideration was given to whether he had been exploited as a victim of trafficking, and no pre-sentence report was obtained. He successfully appealed against his sentence of four years, which was reduced on appeal to two years and eight months in detention. In 2018 the Single Competent Authority under the National Referral Mechanism found that A was a victim of trafficking and that his offences were committed as a direct result of his exploitation. The current appeal was brought on the grounds that the conviction is unsafe, as it was an abuse of process for him to be prosecuted as:

  1. he was at the relevant time a victim of human trafficking.
  2. there was a nexus between his exploitation as a victim of trafficking and the commission of the offence.
  3. the circumstances in which he came to commit the offence were such that it was not in the public interest for him to be prosecuted.

Notwithstanding his guilty plea the Court was invited to consider fresh evidence to support the assertion that he was a victim of trafficking at the time of his offending, and that therefore his conviction is unsafe.

A entered the UK in 2009 as an unaccompanied 11-year-old boy, having fled Afghanistan following the murder of his father. He became a “Looked After Child” and was taken into foster care. In the years that followed A was reported missing on a number of occasions. He began associating with a number of gangs and engaged in criminality, which included the commission of burglaries and a robbery. It was agreed by all that A exhibited clear indicators of exploitation and that he was a child victim of trafficking. However, the Crown opposed the application for permission to appeal on the grounds that following the case of R v DS [2020] EWCA Crim 285 and the enactment of the Modern Slavery Act, a victim of trafficking cannot challenge the Crown’s decision to prosecute as an abuse of process. This should apply even in cases such as aggravated burglary, where a defendant cannot rely on the section 45 defence by virtue of its exclusion under schedule 4 of the Act.

In refusing permission, the Court of Appeal found that the 2015 Act was enacted by Parliament to meet its obligations under the European Convention Against Trafficking and the EU Anti-Trafficking Directive. Neither are directly applicable, and neither require blanket immunity from prosecution. Parliament’s decision to limit the scope of the section 45 defence “reflects the balance struck by Parliament between preventing perpetrators of serious criminal offences from evading justice and protecting genuine victims of trafficking (at [62])”. It is therefore not an abuse of process for the CPS to apply the domestic law as enacted by Parliament. Following DS the Court found that the lacuna that existed prior to the enactment of the 2015 Act had been filled.

The Court did however go on to consider whether the CPS may have decided not to prosecute had the evidence of A’s trafficking status been known at the relevant time. They found that despite what is known now of A’s exploitation for criminal activities, his vulnerability and trauma, the prosecution would not have been different. Aggravated burglary is serious, his culpability was high, and therefore required a very high level of compulsion in order to extinguish his criminality to a point where it would not have been in the public interest to prosecute. That was not the case here, where the Court accepted the Crown’s submissions that A had reasonable opportunities to extricate himself from the gangs, and no evidence was provided that this particular offence was committed as a consequence of the dominant force of compulsion from his traffickers. They found that the material showed that he made a conscious and voluntary decision to associate with the gangs in order to make money.


The Court of Appeal still retains a power to decide whether or not it would be in the public interest to proceed with a prosecution where the issue of trafficking was not considered by the CPS or the trial court.

However, as Henry Blaxland QC, who acted for A notes,

“in the case of a schedule 4 offence where trafficking issues arise the CPS does still have to consider whether it is in the public interest to prosecute, but the ability to challenge a decision to prosecute even where there has been a positive conclusive grounds decision is now severely limited. The Court of Appeal has consistently stated that the seriousness of the offence is a relevant consideration and that the more serious the offence the greater the degree of compulsion which has to be shown. It is however difficult to see how this is relevant in the case of children.

The bigger picture is that the protection provided by the anti-trafficking provisions provides an example of the age-old tension between the state’s safe-guarding duties in respect of children and young people and the public interest in deterring serious crime.”

It would be interesting to see whether the Court would have found differently had A committed the offence five months earlier, at the age of 17, as section 45 makes clear that children do not have to show that they were compelled in order to rely on the defence, only that it was a direct consequence.

Written by
Audrey Morgan, Barrister, Garden Court Chambers