Modern Slavery and Prosecutorial Discretion: When Is It in the Public Interest to Prosecute Victims of Trafficking?: R v GS [2018] EWCA Crim 1824
| Date | 01 February 2019 |
| Published date | 01 February 2019 |
| Author | Bethany Simpson |
| DOI | 10.1177/0022018319829560 |
| Subject Matter | Case Notes |
Case Note
Modern Slavery
and Prosecutorial Discretion:
When Is It in the Public
Interest to Prosecute Victims
of Trafficking?
RvGS [2018] EWCA Crim 1824
On 9 February 2007, a Jamaican national (GS) was stopped at Heathrow airport carrying a large amount
of cocaine on her person. Her mobile phone was found to have a missed call from a male (B). A second
person, also found to be illegally importing drugs, was intercepted at the airport and claimed that the
offence was committed due to threats made by B. GS maintained that she too was forced by B to carry
drugs into the UK. At trial, GS’s defence of duress, involving threats of serious injury or death to her and/
or her young son, was rejected by the jury. Post-conviction, it became apparent that B had been involved
in the use of three British girls to import cocaine from the Bahamas.
On 30 November 2007, GS was convicted of being knowingly concerned in the fraudulent evasion of
the prohibition of a controlled drug of Class A. She was sentenced to seven years’ imprisonment and
recommended for deportation. Following her release from prison, GS applied for asylum and the First
Tier Tribunal (FTT) found her to have been a victim of trafficking (VOT) on the occasion that she had
entered the UK carrying drugs. The Competent Authority (CA) decided that, on the balance of prob-
abilities, she was a VOT for the purposes of forced criminality.
The present proceedings concerned an application for an extension of time (EOT) for leave to appeal
against conviction and adduce fresh evidence, pursuant to s. 23 Criminal Appeal Act 1968 (The 1968
Act). The fresh evidence application was twofold: first, the conclusion that GS had been a VOT; and
secondly, GS’s mental state, as supported by medical evidence, indicating that she was ‘vulnerable to
exploitation and less able to resist pressure’ (at [46]). It was submitted that the law should protect VOTs
rather than criminalise them. GS argued that her newfound status as a VOT, alongside the medical
evidence, rendered the conviction unsafe.
Held, leave to appeal refused, Gross LJ outlined three principal issues for consideration: Is this a
‘change in law’ case so that the grant of leave requires substantial injustice to be shown? Is the fresh
evidence admissible? and Was the conviction unsafe? (at [48]). Answering the first question in the
affirmative and in response to the second, admitting the fresh evidence relating to the FTT Decision and
the CA Minute (though not the medical evidence), the court concluded that the conviction was not
unsafe. In the context of the importation of Class A drugs, the court was not satisfied that GS was under
such a level of compulsion that her criminality or culpability was reduced to or below a point where it
was not in the public interest (on the law in either 2007 or 2018), to prosecute her (at [77]). The court
emphasised that the gravity of the offence should not be minimised, and, although GS was no more than
a ‘drugs mule’, she committed a serious offence (at [78]).
The overarching question concerned the true level of compulsion affecting GS. GS was a VOT at the
time of the offence, however, this fact alone did not render the conviction unsafe (at [80]). VOT status
represented a starting point for considering whether the conviction was unsafe. GS’s factual account was
The Journal of Criminal Law
2019, Vol. 83(1) 14–19
ªThe Author(s) 2019
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DOI: 10.1177/0022018319829560
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