R v Brecani: A major setback for victims of child criminal exploitation

R v Brecani [2021] EWCA Crim 731 

Details 

On 26 March 2020, the appellant was convicted of conspiracy to supply cocaine, a class A drug. He was 17 at the time and one of 14 defendants: ten pleaded guilty, two were convicted and one acquitted. The appellant relied upon section 45(4) of the Modern Slavery Act 2015 as a defence.

The Court rejected the appellant’s application to sever his case off from the trial of the other defendants while he awaited the Conclusive Grounds Decision (CGD) of the Single Competent Authority (SCA). The CPS, having explored the circumstances in detail, including a full examination of the appellant’s phone, which contained evidence undermining his accounts, decided to press on. Therefore, the trial was underway when the CGD was made. The decision found that forced criminality in Albania and in the UK had occurred and that the appellant is a victim of modern slavery. The CPS declined to make any admissions and the court rejected appellant’s application to admit the CGD as expert evidence.

The Court of Appeal considered:

  1. whether the SCA’s CGD was admissible as expert evidence (as held by the court in DPP v M [2020] EWHC 344 Admin; [2021] 1 WLR 1669;
  2. whether expert evidence from Mr Barlow – an independent forensic social worker and criminologist, commissioned by the appellant- should have been admitted; and
  3. whether the judge should have severed the indictment and delayed the trial of the appellant. The appeal was dismissed.

Is the single competent authority an expert? 

Respectfully disagreeing with DPP v M [2020], the Court of Appeal stated “we do not consider that caseworkers in the Single Competent Authority are experts in human trafficking or modern slavery (whether generally or in respect of specified countries) and for that reason cannot give opinion evidence in a trial on whether an individual was trafficked or exploited”. The Court held that the required level of expertise had not been demonstrated, nor were the rules governing the admissibility of expert evidence complied with.

The Court of Appeal went further still, stating that expertise for the purpose of being accepted as an expert in criminal proceedings cannot be inferred from the fact that a person holds the job of a caseworker. The court similarly concluded that Mr Barlow’s expertise and experience did not make him an expert for the purpose of the case. Notwithstanding the question of expertise, without sight of some of the evidence (in this case the information retrieved from the appellant’s phone, the opinions of the caseworker and Mr Barlow were rendered valueless.

Commentary

Conclusive Grounds Decisions are no longer admissible in criminal proceedings. Many will recognise the disproportionate impact this has on the most vulnerable victims of exploitation and trafficking – those unwilling or unable to speak out against the individuals and/or networks that caused them to be victimised. Without this key piece of information, overcoming the defence of modern slavery will likely be easier. Additionally, practitioners will need to properly consider the level and kind of expert being utilised in respect of modern slavery cases; it may not be sufficient, for example, to commission reports from professionals whose expertise is largely based in academia, and who lack sufficient nexus to the issues about which they write. Where evidence arises that has the potential to alter the factual basis upon which an opinion is based, experts must be updated quickly to avoid rendering an opinion valueless. Further, care should be taken to clearly identify the areas that fall outside of the ordinary experience of the Court (e.g. context of a cultural nature) on which an expert has been asked to speak.

Although not a positive judgement from the perspective of child defendants, it does raise a number of potentially positive points for practitioners:

  • Expert evidence remains admissible in these cases, providing the practical considerations outlined above are taken into account and as long as the expert is giving evidence in relation to relevant matters which are outside the knowledge of the jury;
  • The decision reaffirms the importance of awaiting the outcome of the NRM process: “The CPS will ordinarily wait to know the outcome of a referral to the Competent Authority before deciding to charge or continue proceedings where it is suggested that the offence was committed because of relevant trafficking or coercive behaviour.” (para 9)
  • Some of the points raised in relation to why SCA caseworkers are not experts in human trafficking or modern slavery can be used to challenge the admissibility of so called Prosecution ‘expert evidence’ in other cases. For instance, police officers who hold themselves out to be experts in certain areas by virtue of their experience: “It is not sufficient to assume that because administrators are likely to gain experience in the type of decision-making they routinely undertake that, simply by virtue of that fact, they can be treated as experts in criminal proceedings.”
  • This judgement makes it all the more important to ensure that child defendants who may have been exploited are referred to the NRM at the earliest possible stage in proceedings and that written representations against prosecution are made as soon as practically possible. It will be in the child’s best interest for the CPS to know of a CGD in advance of making a decision to prosecute, so that the issue of admissibility does not present difficulties at trial.

 

Written by
Justin Johnson, in collaboration with YJLC

*Please note that YJLC’s legal guide to Child Criminal Exploitation is being amended in light of this judgement.