Prosecution of Victims of Trafficking
| Date | 01 June 2022 |
| DOI | 10.1177/00220183221103119 |
| Published date | 01 June 2022 |
| Subject Matter | Case Notes |
Prosecution of Victims
of Trafficking
R v AAD, R v AAH, R v AAI [2021]
EWCA Crim 106
Keywords
Human trafficking, expert evidence, decision to prosecute, abuse of process, appeals
In three conjoined appeals, the Registrar of Criminal Appeals invited the Court of Appeal to give guid-
ance on various matters relating to the prosecution of victims of trafficking (‘VOTs’).
AAI was sentenced to 18 months imprisonment in 2008 for failing to attend an interview at the Sierra
Leonean High Commission in order to obtain and Emergency Travel Document to return to Sierra Leone.
AAH was sentenced to 12 months imprisonment in 2016 for possession of a false identity document.
AAD was sentenced to 8 months imprisonment in 2018 for producing a class B drug, cannabis. Both
AAH and AAD pleaded guilty. In all three cases, the Single Competent Authority (SCA, a unit within
the Home Office which decides who should be treated as a VOT under the National Referral
Mechanism) later issued a Conclusive Grounds Decision, determining on the balance of probabilities
that the appellant was a VOT. In the case of AAH, the decision was issued after he successfully chal-
lenged a previous, negative decision in the First Tier Tribunal.
AAI appealed on the ground that it was an abuse of process to prosecute him because there was a
nexus between his offence and his being a VOT and prosecution was not in the public interest; and
also on the ground that fresh evidence showed he had a reasonable excuse for failing to attend the
High Commission, in that he was suffering from PTSD. He also appealed against his sentence. AAH
appealed on the ground that her conviction was unsafe because she was a VOT, and she had a
defence either under the Modern Slavery Act 2015, s. 45, or under a broader ‘non-punishment principle’
which was argued to be part of English law in line with the UK’s international obligations. AAD appealed
on the ground that as a VOT he had a defence under the 2015 Act and had wrongly been advised to plead
guilty at his trial.
Held, allowing AAH’s appeal against conviction and AAI’s appeal against sentence, and dismiss-
ing the remaining appeals, a Conclusive Grounds Decision of the SCA was admissible evidence in an
appeal (SG [2018] EWCA Crim 1824 and AAJ [2021] EWCA Crim 1278 followed). However ( per
curiam) such evidence was not admissible evidence at trial unless the normal criteria for the admission
of expert evidence were satisfied (Brecani [2021] EWCA Crim 731 approved). Although the decision
was inadmissible at trial it was material that the CPS was required to take into account in deciding
whether to prosecute, and this was sufficient to meet the UK’s obligations under ECHR art 4 (VCL &
AN v UK (2021) 73 EHRR 9 considered). Where the decision was admissible at appeal there would
be some cases, particularly where the decision was based on weak and untested hearsay evidence,
where it would be appropriate for the appellant to give oral evidence and be cross-examined. It was
Case Note
The Journal of Criminal Law
2022, Vol. 86(3) 212–215
© The Author(s) 2022
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DOI: 10.1177/00220183221103119
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