Defining the Line Between Victim and Offender: Trafficked Victims and Prosecutorial Discretion: R v O; R v N [2019] EWCA Crim 752
| Published date | 01 October 2019 |
| Date | 01 October 2019 |
| DOI | http://doi.org/10.1177/0022018319878524 |
| Subject Matter | Case Note |
Case Note
Defining the Line Between
Victim and Offender: Trafficked
Victims and Prosecutorial Discretion
RvO;RvN[2019] EWCA Crim 752
Keywords
Controlling prostitution for gain, cultivation of cannabis, unsafe convictions, decisions to
prosecute, trafficked victims, extensions of time
The present conjoined appeals sought a retrospective review of the decisions to prosecute two victims of
humantrafficking (‘O’ & ‘N’) on the questionof whether it had been in the publicinterest to prosecute them.
On 6 November 2014, N, a Vietnamese national, was arrested for an offence of producing a controlled
drug of class B (cannabis), contrary to s 4 of the Misuse of Drugs Act 1971. N raised his trafficking status
at the outset but subsequently pleaded guilty in February 2015. He was sentenced to 16 months’
imprisonment.
On 31 July 2014, O was convicted and sentenced for the offence of conspiracy to control prostitution
for gain, contrary to s 53 of the Sexual Offences Act 2003. Unlike N, O did not raise her trafficking status
until serving her custodial sentence of 5 years’ imprisonment.
N sought permission to appeal against conviction and O sought leave to appeal against conviction and
sentence on the grounds that they had been victims of trafficking (VoTs) and that the prosecution ought
to have been discontinued or stayed as an abuse of process. Both appellants made an application for an
extension of time (EoT) in which to apply for leave to adduce fresh evidence, pursuant to s 23 of the
Criminal Appeal Act 1968, in support of their newfound trafficked status. The Court considered the fresh
evidence de bene esse.
The question for the Court in both appeals concerned the safety of the conviction, considering: (i)
whether there was credible evidence that the applicants fell within the definition of trafficking in the
Palermo Protocol and the Trafficking Directive; (ii ) whether there was a nexus between the crime
committed and the trafficking; and, (iii) whether it was in the public interest to prosecute either N or O.
Held, allowing N’s appeal but dismissing O’s appeal, Lady Justice Marcur, providing the leading
judgment,had no hesitation in findingthat N had been a VoT.The Court entertainedno doubt that the public
interest had notrequired prosecution. The conviction was unsafeand would therefore be quashed ([at35]).
The court reluctantly confirmed O’s VoT status, but explained that this did not establish nexus or
compulsion at the relevant time (at [63]). The conviction was safe. The Court found that O’s culpability
withstood the finding of her VoT status and the sentence imposed was neither manifestly excessive nor
flawed. O’s application for leave to appeal and the application for an EoT were refused accordingly (at
[64]–[65]).
Commentary
In a significant departure from the earlier ruling in RvN[2012] EWCA Crim 189, where the court
indicated that possession of a mobile phone may be taken as indicative that an individual has not been
The Journal of Criminal Law
2019, Vol. 83(5) 410–415
ªThe Author(s) 2019
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DOI: 10.1177/0022018319878524
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