This judgment clarifies the Court of Appeal’s approach to victims of modern slavery who have entered guilty pleas in cases where their prosecution amounted to an abuse of process. It emphasises the importance of the non-punishment principle and the weight that must be afforded to National Referral Mechanism (NRM) decisions when determining the safety of a conviction.
Details
The appellant, AFU, was a Vietnamese national discovered by police during a raid on a residential property used as a cannabis factory. He was charged with the production of a controlled drug.
AFU pleaded guilty to the offence on the day of trial and was sentenced to 10 months’ imprisonment. AFU appealed his conviction, arguing that it was unsafe because:
- He had not been advised as to the possibility of a defence under section 45 Modern Slavery Act 2015 (“s45 MSA 2015”); or
- Had the prosecution properly followed their own guidance, they would have concluded that it should have been discontinued. As a result it was an abuse of process.
In relation to the first of those arguments, the Court of Appeal heard evidence from his counsel at trial, and found this evidence credible compared to AFU’s. As a result, they found that he had in fact been advised on the defence under s45 MSA 2015 satisfactorily.
However, the Court agreed with AFU on the second of those arguments. In their judgment, they were scathing towards the police and the CPS, emphasising as follows:
- There were clear indicators of trafficking from the outset
- No proper enquiries were made upon his arrest, nor was there any referral to the NRM
- There being good reason to believe that the applicant was a Victim of Trafficking, there was no review on evidential grounds as to whether there was clear evidence of a credible s. 45 defence;
- There was no consideration in any event of whether or not the public interest lay in proceeding to prosecute/continuing a prosecution or not.
The Court said that had these been done, the prosecution would have been discontinued at the second evidential stage. Alternatively, if an application had been made, the trial court would have stayed the proceedings as an abuse of process.
As a result, the Court concluded that this was a case where there was a clear abuse of process and thus, that the conviction was unsafe.
The Court further rejected the argument that a voluntary guilty plea acts as an absolute bar to an appeal.
Commentary
This case affirms the principle that guilty pleas can be successfully overturned by the Court of Appeal where the original proceedings were an abuse of process. An abuse of process can arise in situations where the prosecution fails to follow the relevant guidance including if they overlook material factors or make the decision based on irrelevant factors.
In this case, this was the guidance in relation to AFU’s status as a victim of trafficking and the obligations owed to him as a result. Although AFU is an adult, children are frequently victims of criminal exploitation and this judgment could be useful for children who have been prosecuted for offences when they were in fact victims, including (but not limited to) where they subsequently receive a positive conclusive grounds decision of the National Referral Mechanism.
This judgment makes it clear that these cases can be appealed to the Court of Appeal. Defence lawyers may also use AFU to make robust representations to the CPS to discontinue proceedings where the SCA has found a child to be a victim.
For children, the statutory defence under section 45(4) of the Modern Slavery Act 2015 is notably broader than the adult equivalent. A child does not need to prove compulsion; they must only show that a reasonable person with the same characteristics would have committed the act and that the offence was a ‘direct consequence’ of their exploitation.
You can read more about Child Criminal Exploitation in our legal guide on the topic.