Kevin Brecani v R
| Jurisdiction | England & Wales |
| Judge | Lord Burnett of Maldon |
| Judgment Date | 19 May 2021 |
| Neutral Citation | [2021] EWCA Crim 731 |
| Date | 19 May 2021 |
| Docket Number | Case No: 202001346 B1 |
| Court | Court of Appeal (Criminal Division) |
[2021] EWCA Crim 731
THE RT HON THE Lord Burnett of Maldon
LORD CHIEF JUSTICE OF ENGLAND AND WALES
THE RT HON Lord Justice Fulford,
VICE PRESIDENT OF THE COURT OF APPEAL CRIMINAL DIVISION
and
THE HON Mr Justice Jeremy Baker
Case No: 202001346 B1
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT WOOLWICH
His Honour Judge Mann QC
Royal Courts of Justice
Strand, London, WC2A 2LL
Nicholas Lobbenberg QC (instructed by GT Stewart Solicitors and Advocates) for the Applicant
Benjamin Douglas-Jones QC and Rebecca Austin (instructed by The Crown Prosecution Service) for the Respondent
Hearing date: 21 April 2021
Approved Judgment
The Lord Burnett of Maldon CJ:
Is a conclusive decision made for administrative purposes by the Single Competent Authority (part of the Home Office), on written materials applying the balance of probabilities, that a person is a victim of modern slavery admissible in evidence in a criminal trial? The second issue is whether expert evidence of Craig Barlow commissioned by the appellant should have been admitted at trial. The judge excluded both. A further question concerns whether the judge should have severed the indictment and delayed the trial of the appellant.
On 26 March 2020 the appellant was convicted of conspiracy to supply cocaine, a class A drug. He was then aged 17. There were 13 co-defendants, ten of whom pleaded guilty to the same count, two were convicted and one acquitted. The appellant was sentenced to three years' detention. He relied upon section 45(4) of the Modern Slavery Act 2015 (“the 2015 Act”) as a defence, namely that he did the “act as a direct consequence of [his] being, or having been, a victim of slavery or a victim of relevant exploitation” and that “a reasonable person in the same situation … and having [his] relevant characteristics would do that act.” “Relevant characteristics” means “age, sex and any physical or mental illness or disability”; and “relevant exploitation” “is exploitation (within the meaning of section 3) which is attributable to the exploited person being, or having been, a victim of human trafficking”: section 45(5). The criteria for the application of the defence to adults are slightly different: section 45(1).
It is for the prosecution to disprove the section 45 defence to the criminal standard: R v MK [2018] EWCA Crim 667, [2019] QB 86.
The application for leave to appeal against conviction has been referred to the full court by the single judge.
The Modern Slavery Defence and Single Competent Authority
In R v Joseph and others [2017] EWCA Crim 36; [2017] 1 Cr App R 33, this court set out the background of international conventions dealing with the scourge of human trafficking and modern slavery. It summarised the approach in domestic law, before the introduction of a statutory defence by the 2015 Act, to prosecuting those who had been trafficked. The courts had developed the common law of abuse of process in the context of prosecutorial discretion, to satisfy the international obligations of the United Kingdom to refrain from prosecuting some victims of modern slavery in circumstances where there was a sufficient nexus between the commission of the offence and relevant trafficking or exploitation: see the Introduction and General Principles between [1] and [41]. At [3] the court noted that the 2015 Act sets out clearly “the conditions which have to be satisfied respectively for adults and children where there is a nexus between the trafficking and the crime committed.” The defence does not apply to the serious offences specified in schedule 4, but conspiracy to supply Class A drugs is not one of them.
A person who establishes that he or she has been trafficked into the United Kingdom is treated differently for immigration purposes from others and may be entitled to various forms of support. The Home Office has established a National Referrals Mechanism to encourage official and charitable organisations to refer trafficking cases for consideration. The Home Office is charged for administrative purposes with determining whether a person has been trafficked or is a victim of modern slavery. It has established a Single Competent Authority with case workers who consider the question at two stages. The first is to decide whether there are reasonable grounds to suspect that a person may be a victim of modern slavery. Temporary consequences relating to the treatment of the person flow from a positive decision at this stage. The second is to make a “conclusive grounds” decision on the balance of probability whether a person is or is not a victim of modern slavery.
The volume of cases considered by the Competent Authority is large. Official statistics show that in 2016 there were 3,804 referrals; in 2018, 6,986; in 2019, 10,627 and in 2020, 10,613. The Home Office has issued guidance extending to 189 pages covering all aspects of modern slavery: see “Modern Slavery: Statutory Guidance for England and Wales (under s. 49 of the Modern Slavery Act 2015) and Non-Statutory Guidance for Scotland and Northern Ireland Version 2.1” of March 2021. At para 7.1 it indicates that a reasonable grounds decision should be made within five days of a case being referred to the Competent Authority with the conclusive grounds decision following no sooner than 45 days thereafter. At para 14.77 that is explained further as requiring a conclusive grounds decision as soon as possible after 45 calendar days. Annex A sets out details of many kinds of exploitation commonly encountered, including many specific to children. Annex E, starting at page 109, gives guidance to case workers on how to make the decisions.
“ Assessing credibility and other evidence during the decision-making process
14.1. SCA staff need to assess whether a potential victim's account of modern slavery is credible when making a Reasonable Grounds and Conclusive Grounds decision.
14.2. Good practice in working with victims who have experienced trauma should be observed. See the section on working with vulnerable people for more information. However, the need to take into account the impact trauma is likely to have on the individual's ability to recall events does not remove the need to assess all information critically and objectively when considering the credibility of a case.”
What follows is a comprehensive guide on a large range of factors that can inform the assessment of credibility. At 14.93 the balance of probabilities is explained and at 14.94 the possibility of asking written questions of the person concerned, or even conducting an interview, is described. All decisions are checked with a second pair of eyes (para 14.113).
Annex H is concerned with the section 45 defence. It explains how the conclusion of the Competent Authority may affect prosecutorial discretion whether to prosecute, cross refers to the Crown Prosecution Service (“CPS”) prosecutorial guidance in suspected modern slavery cases, notes the different standards of proof and observes that the criteria for the defence are not the same as the factors which inform a conclusive grounds decision. It reminds decision makers to keep the CPS and court abreast of any decision-making concerning someone who is or might be prosecuted.
The Competent Authority has struggled to keep up in the face of the expanding case load and unwelcome delays have developed in the system. In this case, for example, there was a gap of 4 1/2 months between the reasonable grounds and conclusive grounds decisions although part of that delay was caused by the appellant's solicitors seeking an extension of time and being given four extra weeks to provide information. The delays have had an impact on criminal proceedings. The CPS will ordinarily wait to know the outcome of a referral to the Competent Authority before deciding to charge or continue proceedings where it is suggested that the offence was committed because of relevant trafficking or coercive behaviour. Moreover, it is not uncommon for the first intimation that a person has been a victim of modern slavery to arise after being charged with a criminal offence (that is what happened in this case) or after the first appearance at court and for the matter to be referred to the Competent Authority only then. The usual expectation is that the criminal proceedings will then await the outcome of the referral because that outcome will be considered by the CPS in deciding whether to proceed. The CPS is not bound by a decision of the Competent Authority: Joseph at [39]; see also VCL and AN v United Kingdom App. Nos 77587 and 74603/12, 16 February 2021 at [162]. The Fourth Section of the Strasbourg Court confirmed that as a matter of Convention law the prosecuting authority is not bound by such a decision but would need a good reason to disagree with it. The court also indicated that “any decision on whether or not to prosecute a potential victim of trafficking should – insofar as possible – only be taken once a trafficking assessment has been made by a qualified person”. The “qualified person” referred to is an official within a competent authority. The applicants in Strasbourg had been the two appellants in R v N; R v Le [2012] EWCA Crim 189; [2013] Q.B. 379; [2012] 1 Cr. App. R. 35, and VCL, whose case was referred back to the Court of Appeal by the Criminal Cases Review Commission, was one of the appellants in Joseph.
In the case before us the trial was underway before the conclusive grounds decision was made. The CPS was aware of the appellant's likely defence to the conspiracy. The prosecution had explored his circumstances in detail, including a full examination of his phone, and both the specialist prosecutor who dealt with potential modern slavery cases and counsel were confident that the prosecution could...
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