Modern Slavery and Prosecutorial Discretion: When Is It in the Public Interest to Prosecute Victims of Trafficking?: R v GS [2018] EWCA Crim 1824

Abstract

On 9 February 2007, a Jamaican national (GS) was stopped at Heathrow airport carrying a large amount of cocaine on her person. Her mobile phone was found to have a missed call from a male (B). A second person, also found to be illegally importing drugs, was intercepted at the airport and claimed that the offence was committed due to threats made by B. GS maintained that she too was forced by B to carry drugs into the UK. At trial, GS’s defence of duress, involving threats of serious injury or death to her and/or her young son, was rejected by the jury. Post-conviction, it became apparent that B had been involved in the use of three British girls to import cocaine from the Bahamas.

On 30 November 2007, GS was convicted of being knowingly concerned in the fraudulent evasion of the prohibition of a controlled drug of Class A. She was sentenced to seven years’ imprisonment and recommended for deportation. Following her release from prison, GS applied for asylum and the First Tier Tribunal (FTT) found her to have been a victim of trafficking (VOT) on the occasion that she had entered the UK carrying drugs. The Competent Authority (CA) decided that, on the balance of probabilities, she was a VOT for the purposes of forced criminality.

The present proceedings concerned an application for an extension of time (EOT) for leave to appeal against conviction and adduce fresh evidence, pursuant to s. 23 Criminal Appeal Act 1968 (The 1968 Act). The fresh evidence application was twofold: first, the conclusion that GS had been a VOT; and secondly, GS’s mental state, as supported by medical evidence, indicating that she was ‘vulnerable to exploitation and less able to resist pressure’ (at [46]). It was submitted that the law should protect VOTs rather than criminalise them. GS argued that her newfound status as a VOT, alongside the medical evidence, rendered the conviction unsafe.

Held, leave to appeal refused, Gross LJ outlined three principal issues for consideration: Is this a ‘change in law’ case so that the grant of leave requires substantial injustice to be shown? Is the fresh evidence admissible? and Was the conviction unsafe? (at [48]). Answering the first question in the affirmative and in response to the second, admitting the fresh evidence relating to the FTT Decision and the CA Minute (though not the medical evidence), the court concluded that the conviction was not unsafe. In the context of the importation of Class A drugs, the court was not satisfied that GS was under such a level of compulsion that her criminality or culpability was reduced to or below a point where it was not in the public interest (on the law in either 2007 or 2018), to prosecute her (at [77]). The court emphasised that the gravity of the offence should not be minimised, and, although GS was no more than a ‘drugs mule’, she committed a serious offence (at [78]).

The overarching question concerned the true level of compulsion affecting GS. GS was a VOT at the time of the offence, however, this fact alone did not render the conviction unsafe (at [80]). VOT status represented a starting point for considering whether the conviction was unsafe. GS’s factual account was tested before the jury and, in rejecting the defence of duress, the jury concluded that the common law threshold was not met. This did not exclude the possibility that what she did was done under some lesser form of compulsion (at [79]).

The court accepted that GS was acting under some level of compulsion, however, her actions leading up to and after the offence committed spoke volumes as to her true resilience. It could not be said that there were no reasonable alternatives available to her, including escaping, as she did on two occasions. Prior to the incident for which she was convicted, GS had used her own money to escape to Miami; and, following her conviction, she assisted the police with regard to four other drug importation prosecutions.

The court could not conclude that GS’s culpability was extinguished such that a prosecutor, properly applying the law in 2018 (let alone in 2007), would or might not continue with a prosecution in the public interest. The application for leave to appeal was refused alongside the EOT.

Commentary

The present case provides an opportunity to consider the fundamental issues that can arise when addressing applications for leave to appeal by VOTs prosecuted for their alleged crimes. Currently, there is no clear Crown Prosecution Service (CPS) guidance regarding the approach to be adopted when a person claims to be a VOT post-conviction. In most cases where VOT status has been determined post-conviction, appeals have been raised on the grounds of an abuse of process at trial. Now, cases concerning convictions predating current obligations to safeguard VOTs may be approached differently owing to material changes in law and practice. Applications to adduce fresh evidence continue to be problematic as medical evidence is often inadmissible since the psychological profile of the accused is often produced subsequent to the offence being committed. Thus the mental and emotional effects of being a VOT are overlooked. Furthermore, whether VOT status is acknowledged at trial, prosecutors may still exercise their discretion to prosecute if it is in the public interest. The court’s conclusion that the conviction was not unsafe, despite GS being recognised as nothing more than a ‘drugs mule’ is, arguably, wanting (see Felicity Gerry et al., ‘Is the Law an Ass When It Comes to Mules? How Indonesia Can Lead a New Global Approach to Treating Drug Traffickers as Human Trafficked Victims’ [2018] Asian JIL 8, 166–188).

Under international and EU law, the UK is obligated to ensure that VOTs are not punished for offences committed during the course, or as a consequence, of being trafficked. Article 2(b) of the Protocol to Prevent, Suppress and Punish Trafficking in Persons 2000 (the Palermo Protocol) requires participating States to ‘protect and assist the victims of…trafficking with full respect of their human rights’. Subsequent instruments, namely Article 26 of The Council of European Convention on Action Against Trafficking in Human Beings 2005 (the Convention) and Article 8 of the Directive 2011/36/EU of the European Parliament and of the Council of 5 April 2011 on preventing and combating trafficking in human beings and protecting its victims (the Directive), developed this requirement further by recognising an obligation of non-punishment for victims. In England and Wales, where the common law defence of duress is unavailable, compliance with Article 26 is achieved through the exercise of prosecutorial discretion or the court intervening in individual cases through a sanction of a stay of proceedings, that is, an abuse of process (R v N, R, LE [2012] EWCA Crim 189; R v M(L) and others [2010] EWCA Crim 2327 at [7]–[12]).

In 2007, the Director of Public Prosecutions published legal guidance on how the CPS should deal with suspects who may be VOTs. Further guidance was announced in 2013 which called for a ‘three-stage approach’ to the prosecution decision. The court considered the 2007 Guidance to be embryonic (though valuable), in clear contrast to the detailed and structured approach of the 2013 Guidance (at [61]).

The protection of victims is now set out in Part 5 of the Modern Slavery Act 2015 (MSA 2015). Building on the international conventions and domestic authorities, s. 45 and Sched. 4 provide two statutory defences for VOTs who commit an offence. Schedule 4 provides a list of 140 (serious) offences to which the defence does not apply. With regard to adult victims:

A person is not guilty of an offence if—the person is aged 18 or over when the person does the act which constitutes the offence, the person does that act because the person is compelled to do it, the compulsion is attributable to slavery or to relevant exploitation and a reasonable person in the same situation as the person and having the person’s relevant characteristics would have no realistic alternative to doing that act. (s. 45(1) (a)–(d))

Modelling the defence upon the ancient common law defence of duress, and the Sched. 4 exclusions, significantly limits its scope. ‘[I]t is troubling that the statutory defences of the [MSA 2015] may not enhance the previous protection offered because of its prescriptive nature’ (Paramjit Ahluwalia, ‘Modern Slavery’ (Counsel Magazine, January 2016) <https://www.counselmagazine.co.uk/articles/modern-slavery> accessed 16 January 2019). The inclusion of the statutory defences neither nullifies the CPS’s discretion to prosecute nor erases the option to raise an abuse of process argument; and the continued over-reliance upon prosecutorial discretion remains problematic (Karl Laird, ‘Evaluating the relationship between section 45 of the Modern Slavery Act 2015 and the defence of duress: an opportunity missed?’ [2016] Crim LR 6, 397).

Section 45 was not drafted to provide retrospective protection and thus offered no assistance to GS. In cases where the defence can be raised, the defendant bears an evidential burden of proof and must provide evidence of every element of the defence. It is then for the prosecution to disprove one or more of those elements beyond reasonable doubt (R v MK; R v Gega [2018] Crim 667 at [45]). Had the offending in the present case not predated the MSA 2015, it remains the case that the defendant would likely have no defence. A raised defence would likely be disproved at the fortitude requirement (s. 45(1)(d)) due to the questionable ‘reasonable person’ test with regard to the avoidance of the threat (Laird (2016) 401). When addressing cases that fall outside the scope of the defence, the courts must continue to follow the safeguards against prosecuting VOTs that already exist, alongside the domestic law regime that has been developed through subsequent common law (R v Joseph (Verna) [2017] EWCA Crim 36 at [4]).

In cases where (a) there was reason to believe the defendant who had committed an offence had been trafficked for the purpose of exploitation, (b) there was no credible common law defence of duress or necessity but (c) there was evidence the offence was committed as a result of compulsion arising from trafficking, the prosecutor has to consider whether it is in the public interest to prosecute. (R v LM at [10])

As the Convention and Directive were not ratified in the UK until 2008 and 2011, respectively, the provisions within them were not in force during GS’s trial in 2007. Following the Palermo Protocol and the CPS Guidance at that time, the Court of Appeal found that the prosecution of GS was lawful and not an abuse of process, thus a successful application (and any appeal) would depend on a change in law (at [64]).

Since 2008, the vast majority of successful appeals have been approached as abuse of process cases, with the Court routinely urging practitioners to consider the possibility of trafficking and familiarise themselves with Article 26 of the Convention (R v O [2008] EWCA Crim 2835; R v LM [2010] EWCA Crim 2327; and Joseph). The law in 2007 was correctly applied, so the appeal hinged on a change in the law. GS’s case is the first VOT conviction appeal to have been treated (in principle) as a change in law case, requiring leave to appeal out of time to be characterised as ‘exceptional’, applying the more stringent ‘substantial injustice’ test as established in Jogee [2017] AC 387 and Johnson [2017] 1 Cr App 12 (at [52]). The Court of Appeal accepted that there had been a material change in the legal recognition of the rights of VOTs between 2007 and the present time which was more than simply a development in the existing law (see Joseph at [8]–[22]). At the time of trial, there was limited awareness of such rights as the provisions of Article 26 and Article 8 were yet to be ratified. The difference between the CPS Guidance in 2007 and 2013 is stark (at [64]).

The Court stressed that where an applicant can demonstrate an arguable case as to the safety of the conviction, they ought not to fail at the hurdle of obtaining exceptional leave. As in most VOT cases, the conviction and sentence impacted upon GS’s immigration status (s. 32 UK Borders Act 2007) which would constitute a substantial injustice where leave was not granted. Despite the Court ultimately rejecting the application due to GS’s culpability, it is an important concession for future VOT cases that where grants of further Leave to Remain in the UK would be at risk, the ‘substantial injustice’ test is satisfied. In contrast with the change in law issue, the application to introduce fresh evidence was met with a mixed response.

The FTT Decision and CA Minute (and Home Office Letter) as to GS’s status as a VOT was accepted, but the medical evidence was refused. Applying s. 23 of the 1968 Act, the FTT and CA decisions were admitted as the Court found that both reports: (a) were capable of belief; (b) could potentially afford a ground for allowing the appeal; and (c) post-dated the trial so could not have been adduced at that time. It would not have been in the interests of justice to proceed without the evidence of victim status (at [68]). Mirroring the decision in Joseph, and declining to admit the medical evidence, however, it was concluded by the Court that there was no good reason why assessments of GS’s mental capacity could not (and arguably more importantly, should not) have been adduced at trial. Several issues were highlighted as to the consideration of medical evidence when presented as fresh evidence in VOT cases; particularly where expert witnesses attempt to provide evidence where there is a long passage of time between the offence being committed and the evidence being obtained. This highlights the need for experts and defence representatives to take greater care in ensuring that medical assessments of potentially vulnerable offenders are carried out at trial and within the proper remit of expertise. A lack of adequate medical evidence leaves the courts detached from the true nature of modern slavery and the traits and characteristics commonly found amongst victims which can influence their motivations for offending.

The court accepted the evidence as to status but refused to acknowledge the psychological implications of being a VOT and, in doing so, neglect to adopt a holistic approach when considering the chronology of events. The recognition of an applicant being a VOT remains a crucial element in securing a successful appeal. The continued willingness by the Court to accept material depicting evidence of such, even where an applicant’s account to the FTT goes essentially untested, is favourable (OSCE, Policy and legislative recommendations towards the effective implementation of the non-punishment provision with regard to victims of trafficking (2013) 33). In refusing the current appeal, however, the Court reiterated that the decisions of the FTT and CA will not automatically bind the court. Both the admissibility of the FTT and CA’s decision, and the inadmissibility of the medical evidence emphasises the need for adequate identification and assessment of VOTs at early stages in proceedings. The mere fact that an applicant is found to have been a VOT at the time of conviction is not enough to render the conviction unsafe. Rather, it is the starting point for considering whether or not it was unsafe (at [80]). This is specifically the case where the offences committed are of a particularly serious nature.

As common law has concluded that neither Article 26 nor Article 8 provides blanket immunity from prosecution for VOTs, it falls to the CPS in exercising their careful and fact-sensitive discretion to determine whether or not it is in the public interest to prosecute. When exercising their discretion, the CPS must accord weight to the gravity of the offence committed and the nexus between the trafficking and the offence so as to extinguish culpability. The Court in Joseph emphasised the gravity of importing Class A drugs as being an offence serious enough to warrant it being in the public interest to secure a conviction, stating at [63] that:

Class A drugs bring death and misery to the streets of the UK and those who involve themselves willingly in the supply chain must face the consequences of their actions. A distinction must be drawn between the individual put under some kind of pressure to become involved in drugs smuggling and the genuine victim of human trafficking.

In the instant case, the court maintained this view finding that the VOT must be under a particularly high level of compulsion so as to reduce their criminality or culpability to such an extent that it would not be in the public interest to prosecute. Under the legal position today, the court concluded that the CPS had properly considered the offender’s position as a VOT in accordance with the law and guidance, thus it would not be an abuse to prosecute and consequently GS’s conviction was not unsafe.

The approach taken by the Court appears to be somewhat misplaced. Drug trafficking was explicitly noted in the Directive (para. 11) as one of the key criminal activities through which someone may be exploited and continues to be recognised as such by the Government and anti-slavery organisations alike (Home Office, County lines: criminal exploitation of children and vulnerable adults (2017); RACE, Victim or Criminal? Trafficking for Forced Criminal Exploitation in Europe. UK chapter (2014)). Furthermore, in the light of s. 45 MSA 2015, specifically the excluded offences within Sched. 4, of which drug trafficking offences do not appear, it is difficult to comprehend the tough stance adopted by the court following the decision by the Government not to prohibit such offences from the ambit of the defence. It is not disputed that importation of Class A drugs possesses grave consequences for the UK, however, VOTs who find themselves in such situations are often blinded as to the gravity of the offence owing to the compulsion experienced and, subjectively, a potentially graver outcome at the hands of their traffickers.

Arguably, it cannot be reasonable to expect a VOT to have ‘any control over the particular offence [they are] compelled to commit’, or expect them to develop a greater resistance or fortitude to a particularly serious crime (Susan Edwards, ‘Coercion and compulsion – re-imagining crimes and defences’ [2016] Crim LR 12, 889). Forced criminality is an umbrella term covering a vast array of crimes, often led by organised crime networks, leaving victims particularly vulnerable. This was acknowledged during various stages of Parliamentary debate on the MSA 2015, and concerns were raised as to the restrictions on the s. 45 defence being potentially unfair to VOTs (Modern Slavery Bill Deb 11 September 2014, col. 386; and HL Deb 17 November 2014, vol. 757, col. 247). A VOT is stripped of their basic humanity, ‘whose will has been overborne, who has been ground down and who is vulnerable and compliant’ (Edwards (2016) 895). The reality of their situation is often incomprehensible to individuals whose life experiences are far from the turmoil of trafficking.

The courts and fact finders, however, continue to apply an objective standard when considering elements of compulsion and fortitude requiring VOTs to behave reasonably and seek out opportunities to resist and escape. Emotions such as stress and fear are overlooked and actions or omissions are judged against that of a reasonable person leading to arguably unjust outcomes (R v van Dao [2012] EWCA Crim 1717). Edwards, in her analysis of compulsion, outlines the cultural factors that the courts may be required to adjudicate on which are usually outside the ambit of their comprehension ((2016) 896–98). Juju and witchcraft are recognised as significant factors in trafficking cases that instil unimaginable fear in victims, arguably making it impossible to assess those individuals against the ‘artificiality of the normative construct of the reasonable person…and the legal construct of…a realistic alternative’ (Edwards (2016) 898; see also Anti-Trafficking Consultants, ‘What is Juju?’ <http://www.antitraffickingconsultants.co.uk/juju/> accessed 16 January 2019).

There is often a fine line between the victim and the criminal when the issue of trafficking is raised post-conviction and, particularly, in the context of serious criminal offences. Where appeals are brought based on fresh evidence of VOT status, and prosecutorial discretion is questioned, close scrutiny must be observed throughout. There is, however, a need for a more humanising approach to be adopted by the courts, particularly in relation to drug offences. In continuing to refuse to acknowledge the psychological effects of trafficking in such cases, and dismissing appeals, the court is arguably favouring the criminalisation of vulnerable individuals over protecting them (Ryszard W Piotrowicz and Liliana Sorrentino, ‘Human Trafficking and the Emergence of the Non-Punishment Principle’ [2016] HRLR 16, 695). An individual may well be a VOT and be compelled to commit a serious crime, but it is ‘wrong to assume from the fact someone has done the acts that fulfil the definition of a serious criminal offence that [they are] necessarily a serious criminal’ (Laird (2016) 397). Taking into consideration the Court of Appeal’s treatment of GS’s case and Class A drug trafficking offences amongst VOTs, further guidance on the issues raised is welcomed.

Bethany Simpson