Abuse of Process and the Modern Slavery Act 2015: R v DS [2020] EWCA Crim 285

Published date01 October 2020
DOI10.1177/0022018320963513
AuthorSean Mennim,Tony Ward
Date01 October 2020
Subject MatterCase Notes
Case Note
Abuse of Process and the
Keywords
Possession with intent to supply, abuse of process, decisions to prosecute, trafficked victims,
prosecution appeals
The proceedings were brought on an indictment containing two counts of possession with intent to
supply a Class A controlled drug between 1 and 14 March 2018. On 31 July 2019, the respondent (DS)
pleaded not guilty and the court directed that a referral should be made to the National Referral
Mechanism (NRM) for a potential child victim of trafficking (VOT).
On 6 November 2019, following an NRM referral and positive Conclusive Grounds (CG) decision by
the Single Competent Authority (SCA), it was decided that DS was a VOT for the purposes of forced
criminality. This decision was based on a statement from him which said that he had been recruited as a
homeless child into a ‘county line’ drug dealing network as a street level dealer, and that he would be
subject to violence and threats if he did not continue. DS was a British citizen and aged 17 at the relevant
time. He had been living with his mother and stepfather and attending full time education until he left
home and subsequently became involved in the supply of Class A drugs.
On 8 November 2019, the CPS (the applicant) reviewed their decision to prosecute in light of the CG
decision but decided to continue proceedings against DS.
On 16 December 2019, DS served a defence statement which admitted that he had carried out the acts
alleged, and was guilty of the offences in the indictment, subject to the statutory defence afforded by s
45(4) of the Modern Slavery Act 2015 (MSA 2015). He relied on the account he had given to the SCA.
DS also submitted an application for an order staying these proceedings on the grounds that there was no
proper basis for going behind the decision of the SCA and that the CPS was wrong to continue their
prosecution of DS.
On 14 January 2020, the judge assessed DS’s application on the basis of the principles set out by the
Lord Chief Justice in L and others [2013] EWCA Crim 991 and decided that there was no evidence to
contradict it and no evidence which had not been considered. That being so, he decided that he should
‘abide by’ the decision of the Authority (at [20]), and ordered the proceedings against DS to be stayed as
an abuse of the process without considering whether it was in the public interest to proceed.
The sole ground of the applicant’s appeal was that the trial judge should not have entertained the
submissions that the indictment should have been stayed as an abuse of process on the basis that the
MSA 2015 had effectively supplanted the abuse of process jurisdiction. The applicant relied on
the ruling of Simon Brown LJ in Uxbridge Magistrates’ Court ex p Adimi [2001] QB 66, where the
Divisional Court had held that the abuse of process jurisdiction could be used as a ‘safety net’ in order to
ensure that the CPS complied with their international obligations under Convention and Protocol relating
to the Status of Refugees, art 31. Now, however, s 45 of the MSA 2015 represented the state’s com-
pliance with its international obligations under art. 26 of the Council of the European Union on Action
against Trafficking in Human Beings 2005 (developing the Palermo protocol of 2000) and art. 8 of
Directive 2011/36/EU, so that the ‘safety net’ was no longer required.
The Journal of Criminal Law
2020, Vol. 84(5) 502–507
ªThe Author(s) 2020
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DOI: 10.1177/0022018320963513
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