R v O
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE LAWS |
| Judgment Date | 02 September 2008 |
| Neutral Citation | [2008] EWCA Crim 2835 |
| Court | Court of Appeal (Criminal Division) |
| Date | 02 September 2008 |
| Docket Number | No: 200802952/C1 |
[2008] EWCA Crim 2835
IN THE COURT OF APPEAL CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Lord Justice Laws
Mr Justice Jack
Sir Charles Gray
No: 200802952/C1
Mr P Carter QC & Miss P Chandran appeared on behalf of the Appellant
Mrs N Byrd appeared on behalf of the Crown
This is an unopposed appeal against conviction brought before the court by leave granted by Cox J on 26th June 2008. As will shortly appear the circumstances of the case are very troubling and, we hope, no less unusual.
On 17th March 2008 at the Canterbury Crown Court before Her Honour Judge Adele Williams, this appellant pleaded guilty to an offence of possessing a false identity card with the intention of using it as her own and was sentenced to 8 months' imprisonment less 16 days spent on remand.
The appellant had been arrested shortly after midnight on 29th February 2008 at the Dover Docks. She was on board a coach which was departing the United Kingdom bound for France. At French passport control in Dover she was asked for identification and she handed over a Spanish identity card in the name of Rosalia Majeda Segura, date of birth 10th November 1976. It was plain to the officer that the appellant did not resemble the woman on the photograph in the card. The police were called. The appellant insisted at that time that the identity card was hers. She said her name was Rosalia and she was 31. The arresting officer was to describe her as “a very young small black woman”. On arrest she was taken to Dover police station where she persisted in giving the same details. However, at interview in the morning she admitted that the identity card was not hers. She gave her correct name and stated that she was a Nigerian national and had entered the United Kingdom about 2 months before on her own passport. She said that she was trying to get to France to see her uncle. She had lost her passport when her handbag had been stolen and she had obtained the false identity document from a friend. She gave a birth date in 1985. The Kent police custody record and charge sheet both give 10th December 1985 as her date of birth.
Entries in the custody record show that the officers had great difficulty understanding her, though she apparently stated that English was her first or her only language. There is also a comment at 1.28 am: “She appears to be very young and possibly juvenile.”
Between 29th February 2008 and her plea of guilty in the Crown Court on 17th March 2008, her legal representatives obtained information from her on various occasions. In particular on 12th March 2008 she gave her date of birth as 10th December 1991, which would make her 16 though she said she was 17. She said that she had come to England with her boyfriend to escape from her father, who would kill her if she did not submit to an arranged marriage in Nigeria to a 63-year-old man who had five wives already. Once here she said she was “given to be a prostitute” and she ran away to avoid that. She said that she spoke the Edo language as well as broken English.
Also on 12th March 2008 the appellant's solicitors contacted the Crown Court to notify them that an interpreter would be required. The court officer said that would be difficult to arrange. At all events no interpreter was present at court on 17th March 2008, nor had there been one at the police station nor at any of the meetings between the appellant and her legal advisers.
Again on 12th March 2008 the appellant's solicitor was telephoned by a social worker from what is called “The Poppy Project”. This is part of an organisation known as Eves Housing for Women. It was set up in 2003 and is funded by the Ministry of Justice. It supports vulnerable women who have been trafficked into England and forced into prostitution. The social worker suggested seeking an adjournment of the proceedings so that a member of The Poppy Project's outreach team could visit the prison and make an assessment of the appellant. The appellant remained in custody until bailed by Cox J on 26th June.
The brief that was delivered to counsel for the defence enclosed a letter from the Poppy social worker, and stated in terms that: “The Poppy Foundation allege that the defendant is a victim of a sex trafficking organisation”.
There is an attendance note of what took place at the Crown Court on 17th March 2008. It was presumably prepared by the appellant's solicitor. It records a meeting with the client and counsel in the cells at court. It states that the appellant told her representatives that she discovered that payment for her trip to England was to be made by prostitution. The attendance note also includes this:
“She makes no mention of the Witch Doctor in Nigeria or any of the information provided by the Poppy Project. As such, we are to deal with her on her instructions and her instructions alone.”
At the hearing, after prosecuting counsel had opened the case very shortly, defending counsel first indicated to the judge that the appellant was 17. He then proceeded as follows (transcript page 3E):
“As my learned friend stated, she travelled to this country legally with a passport and Visa, fleeing her village where her father wished for her to partake in an arranged marriage with a 63-year-old man. Her father would then receive some land. She did not wish to go through with that but was threatened by her father if she did not and he said he would kill her.
So she came to this country really on credit, having been told that she would have work available to her when she arrived to repay her travel debt. That work involved prostitution. It was not something that she was prepared to go along with, and having no family in this country but an uncle in Paris, having lost her documentation and being scared that if she went to the police, she would simply be returned to Nigeria, she sought sanctuary in France and foolishly undertook to use a false instrument.
[THE JUDGE]: Was she on the coach going to France?
[COUNSEL]: Yes, and that is where she was stopped. She appreciates that it was wrong, but she had not appreciated the seriousness of these offences. Your Honour, I would ask that the inevitable prison sentence be kept to a minimum and the days so far served count against that sentence.”
The first ground of appeal is the want of an interpreter. It is plain that there were some difficulties in understanding the appellant and she is clearly not literate in English or it seems at all. However, letters from her then solicitor confirmed that having met her on 1st March and 5th March 2008, he “was satisfied that she understood and spoke sufficient English without the necessity of finding an Edo interpreter.” Apparently, she told the solicitor that for bail purposes she could come and live at his address and “be his daughter”. Trial counsel for the defence, for his part, states that at first he had difficulty in following what she was saying but, “taking her account in stages”, as he put it, it was quite possible to do so. At no time did she appear to have any difficulty understanding what he was saying to her. It is clear that the appellant has a strong accent which has presented some difficulty in following what she says. The solicitor's attendance notes, however, apparently record her instructions without any equivocation.
While we acknowledge that the representatives were sufficiently concerned at one stage to inquire of the court as to the availability of an interpreter, we do not consider in all the circumstances that the absence of an interpreter has of itself undermined the fairness of the proceedings or the safety of the conviction. We would not allow the appeal on this ground.
There are, however, much graver matters to consider. The second ground of appeal invokes the Council of Europe Convention on Action against Trafficking in Human Beings (Council of Europe Treaty Series 197/1975). A prime purpose of this Convention is to protect the human rights of the victims of trafficking. Article 10 requires the States Parties to identify and protect victims of trafficking. It is clear that the particular focus of the Convention is the protection of...
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