Director of Public Prosecutions v M
| Jurisdiction | England & Wales |
| Judge | Lady Justice Simler,Mr Justice William Davis |
| Judgment Date | 15 December 2020 |
| Neutral Citation | [2020] EWHC 3422 (Admin) |
| Docket Number | Case No: CO/507/2020 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 15 December 2020 |
[2020] EWHC 3422 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lady Justice Simler
and
Mr Justice William Davis
Case No: CO/507/2020
Mr Ben Douglas-Jones QC (instructed by Crown Prosecution Service Appeals and Review Unit) for the Appellant
Ms Brenda Campbell QC and Mr Sam Parham (instructed by Ms Chloe Hartnell of Hodge Jones & Allen Solicitors) for the Respondent
Hearing dates: 24 November 2020
Approved Judgment
Lady Justice Simler and
Introduction
This is an appeal by way of case stated pursuant to section 111 of the Magistrates' Courts Act 1980 and section 28A of the Senior Courts Act 1981. The Director of Public Prosecutions appeals against the decision of District Judge (Magistrates' Court) Susan Holdham sitting at Wimbledon Youth Court on 4 December 2019 to acquit the Respondent, a 15 year old boy to whom we shall refer as M, of charges of possession of a bladed article, possession of a Class A drug (heroin) and possession of a Class A drug (cocaine). The District Judge's decision to acquit M was based on the statutory defence in Section 45(4) of the Modern Slavery Act 2015 (“the 2015 Act”).
The issue of law is whether the Respondent discharged the evidential burden which lay on him in raising the statutory defence. In particular, the Appellant's case is that the District Judge erred in her approach to the admissibility of the conclusive grounds decision of the Single Competent Authority (“SCA”) that M was a victim of modern slavery and in her further conclusions that the offence was a direct consequence of trafficking for the purposes of exploitation, and a reasonable person with the same characteristics in the same situation would have committed the offence.
The facts
On 16 May 2019 M went into a branch of Kentucky Fried Chicken in Tooting. He was with two 15-year-old males (to whom we shall refer as MP and KM) and a young female whose identity is not known. The group was observed by police officers going into the premises. MP and KM were known to the police as gang members and habitual knife carriers. M was not recognised by the officers. The police officers decided to stop and search MP and KM. When they went into the premises M was sitting with MP and KM. As they did so MP threw away a cannabis joint.
All three were searched. KM was found to have a small quantity of cannabis in his possession. Save for the cannabis which he had thrown away, MP had nothing of significance in his possession. M had 5 wraps of cocaine, 2 wraps of diamorphine (heroin) and a hunting knife in his possession.
M was arrested. Either on the way to the police station or on arrival at the police station M initially told police officers that he had the knife with him in order to cut steak. Thereafter he said that he had found the knife and that he had planned to hand it in. When he was interviewed under caution, M made no comment.
As well as the knowledge of the police officers as to the background of MP and KM, each had multiple previous findings of guilt. KM had 15 such findings relating to 33 separate offences including possession of a bladed article and possession of drugs. MP had 4 findings of guilt relating to 8 offences including possession of a bladed article and possession of drugs.
At trial the prosecution relied on the evidence of P.C. Wright, one of the officers who had observed the group going into Kentucky Fried Chicken, and of D.C. Jones, the arresting officer. P.C. Wright's evidence was read. He was the officer who gave evidence of the background of MP and KM. He had dealt with both young men in the past. He gave evidence of their gang connections including the fact that they were in dispute with other gangs.
D.C. Jones had observed M whilst he was in custody. He had no concerns about M at that point. M appeared to be unconcerned about being in a police station. He was laughing and joking with MP and KM who also were in custody. He had the opportunity to raise concerns with D.C. Jones had he wished to do so but M said nothing to the officer. D.C. Jones only became aware of any possibility of exploitation when he later spoke to M's father. D.C. Jones had been working in the local gangs' unit for two years. In that time he had not made any referrals via the National Referral Mechanism (“NRM”). That was something dealt with by an independent police officer.
In addition to the evidence of the police officers, a set of 14 facts was agreed in accordance with section 10 of the Criminal Justice Act 1967. The admitted facts included the following:
i) On the 23 May 2019 M was referred to NRM by Lewisham Children's Social Care.
ii) On 1 July 2019 a senior practitioner with Lewisham Children's Social Care informed the SCA that M regularly went missing from home, that during his missing episodes he had been picked up in Crawley, West Sussex and that he had gone missing again after his arrest on 16 May 2019.
iii) M had no findings of guilt or cautions.
iv) On 21 August 2019 the SCA made a positive conclusive grounds decision that, on a balance of probabilities, M had been recruited, harboured and transported for the purposes of criminal exploitation, the full minute of the decision being exhibited.
The full minute of the SCA decision was a five-page document. It recorded the sources of information on which the decision maker had relied, namely Lewisham Children's Social Care and the Metropolitan Police. It set out in summary form the factual matters taken into account by the decision maker. These were: police information about the behaviour of M when in custody (the evidence of DC Jones); concerns of the authorities about the effect of M's parents' background and history on his development; M having been stabbed in an incident in March 2018; M having gone missing from home since that incident; a social services report in June 2019 to the effect that M did not want to return to live with his mother and that he felt safe when he went missing because his friends looked after him; positive behaviour at home and at school after June 2019 and since being rehoused in local authority care; police confirmation that M was vulnerable due to age and had made no financial gain from gang involvement. The full minute then analysed the effect of those matters on the actions of M. It acknowledged that not all children involved in criminality will have been trafficked. However, taking all matters into account, the decision maker concluded on a balance of probabilities that M had been targeted by gang members for the purposes of criminal exploitation. The decision summary was that M was a victim of modern slavery for the purposes of criminal exploitation.
The decision of the District Judge
The judge considered all of the evidence put before her including the full minute of the SCA decision. She found the following matters of particular relevance in favour of a conclusion that M had been exploited:
i) M, who was of good character, was in the company of MP and KM who were known to the police with previous findings of guilt recorded against them. The judge cited verbatim part of the evidence of P.C. Wright.
ii) MP and KM only had small amounts of cannabis in their possession which raised the real possibility that M was holding the knife and the Class A drugs for them.
iii) M regularly went missing from home. He was a missing person when arrested on 16 May 2019. He had no connection with the Tooting area.
iv) The information provided to the SCA by the Metropolitan Police confirmed that M was vulnerable due to his age and background. There were no signs of any benefit from criminal activity.
The judge also had regard to matters which the prosecution argued were factors tending to suggest that M had not been exploited:
i) His explanations for having the knife were incredible. Having given those explanations to the police, he made no comment in interview and he did not give evidence.
ii) His behaviour at the police station as described by D.C. Jones gave no indication that M had been the subject of exploitation.
In relation to the SCA decision the judge referred to R v Joseph and others [2017] EWCA Crim 36; [2017] 1 Cr. App. R. 33 at [21(viii)]:
“…the decision of the competent authority as to whether a person had been trafficked for the purposes of exploitation is not binding on the court but unless there was evidence to contradict it or significant evidence that had not been considered, it is likely that the criminal courts will abide by the decision (see L(C) at [28]).”
She referred also to the Crown Prosecution Service guidance issued in 2015 which set out that, in relation to those under 18, it was not necessary for compulsion to be demonstrated in order to establish the statutory defence. Rather, it was necessary for the commission of the offence to be a direct consequence of trafficking for the purposes of exploitation. The judge noted the guidance for Home Office staff employed by the SCA in relation to cases of exploitation involving those under 18, guidance which was repeated in the SCA decision.
The judge recorded that the prosecution had not argued that, in order to meet the evidential burden which lay on him in relation to the statutory defence, M had to give evidence. Nor did they suggest that he had to have provided some explanation in his police interview. The judge said that she would have rejected such an argument had it been made. She found that the evidence adduced – the full minute of the SCA decision, the evidence of the police officers and the admitted facts – was sufficient to satisfy the evidential burden.
The judge went on to consider the relevant provisions of the Modern Slavery...
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