R L v The Director of Public Prosecutions
| Jurisdiction | England & Wales |
| Judge | Lord Justice Hickinbottom,Mr Justice Sweeney |
| Judgment Date | 09 July 2020 |
| Neutral Citation | [2020] EWHC 1815 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/4120/2019 |
| Date | 09 July 2020 |
[2020] EWHC 1815 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Hickinbottom
and
Mr Justice Sweeney
Case No: CO/4120/2019
Benjamin Douglas-Jones QC and Chris Buttler (instructed by Deighton Pierce Glynn) for the Claimant
John McGuinness QC and Andrew Johnson (instructed by CPS Appeals and Review Unit) for the Defendant
Hearing date: 1 July 2020
Approved Judgment
Introduction
Subject to further order, the court directs that nothing shall be published in respect of this claim that might identify the Claimant, directly or indirectly.
The Claimant challenges the decision of the Crown Prosecution Service (“the CPS”) on behalf of the Defendant authority (“the DPP”) not to bring charges against her former employers (to whom I shall refer as “Mr & Mrs Aljaberi”) for arranging her entry into the United Kingdom in circumstances in which they intended to exploit her, contrary to section 4 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 (“the 2004 Act”).
Before us, Benjamin Douglas-Jones QC and Chris Buttler of Counsel appeared for the Claimant, and John McGuinness QC and Andrew Johnson for the DPP. At the outset, I thank them all for their respective contributions.
Background
The Claimant is a national of the Philippines. In March 2012, through an agency, she obtained employment for Mr & Mrs Aljaberi in Abu Dhabi, undertaking domestic and childcare work, from 7am to 10pm each day. Under the terms on which she was employed she was to earn US$400 per month, although she was actually paid about US$200 per month.
In 2013, Mr Aljaberi obtained a diplomatic position at the United Arab Emirates Embassy in London. He wanted the Claimant to accompany his family; and it is the Claimant's case that he promised her that, in London, she would be required to work a 40 hour week for £1,000 per month, to which she agreed. Certainly, a Tier 5 visa was obtained for the Claimant as an overseas domestic worker, on the basis of a Certificate of Sponsorship (“CoS”) from the Embassy which stipulated a salary of £1,000 per month. Without that promise as to hours and pay, she says that she would not have come to the United Kingdom. The visa was tied to her employment with Mr & Mrs Aljaberi in the sense that, if she left that employment, she would have no right to stay in the UK.
In due course, Mr Aljaberi moved to London; and later, on 1 February 2013, his wife, children and the Claimant followed. However, contrary to the promise she had been made and the stipulation in the CoS, the Claimant was required to work 14–15 hours every day and was remunerated only £100 to £200 per month.
Whilst in their employment in London, the Claimant alleges that she was mistreated by Mr & Mrs Aljaberi. For example, in addition to the hours of work (many more than she had been promised) and salary paid (much less than had been promised), she was not allowed to keep her own passport, she was only allowed restricted movement and was sometimes locked in the home when Mrs & Mrs Aljaberi left it and at other times locked in a room with the children, she was not allowed to leave the home without permission and (save in limited circumstances) unless accompanied and, although Mr Aljaberi told her that she was covered by medical insurance, she did not have access to medical care when sick.
The Claimant left her employers on 1 May 2013. Shortly after that date, she was referred by Kalayaan (an organisation that assists migrant domestic workers) through the Metropolitan Police Service (“the MPS”) to the competent authority (i.e. the Home Office) via the National Referral Mechanism (“the NRM”) which is designed to satisfy the UK's obligations under the Trafficking Convention signed at Warsaw on 16 May 2005. Under the NRM, following a referral, the competent authority makes an initial decision as to whether there are reasonable grounds for believing that the individual is a victim of trafficking, within a target time of five days. If that decision is positive then the person receives assistance as required by the Convention. At the end of a target period of 45 days, the competent authority makes a conclusive decision as to whether the person was trafficked which, although a positive decision does not give an automatic right to remain in the UK, may result in discretionary leave being granted. A positive reasonable grounds decision was made by the Home Office as competent authority on 20 September 2013; and, on 19 November 2014, the Home Office concluded that, on the balance of probabilities, the Claimant had been the victim of trafficking. In coming to that decision, it was found that the Claimant had been (i) recruited for the purpose of domestic servitude, and (ii) deceived as to the salary she would receive in the UK and hours she would be required to work.
In parallel with this referral, in January 2014, the Claimant made a report to the MPS, which commenced an investigation into whether Mr & Mrs Aljaberi may have committed any offence in relation to the Claimant. An Achieving Best Evidence (“ABE”) interview was conducted with the Claimant on 30 January 2014. However, on 2 July 2014, the police said that no further action would be taken to investigate Mrs & Mrs Aljaberi because they had diplomatic immunity and therefore could not be prosecuted. Following the threat of judicial review proceedings, on 1 October 2014, the police set aside that decision and agreed to reopen the investigation. A further ABE interview was held with the Claimant on 25 March 2015. However, on 8 July 2015, the police again decided to discontinue the investigation without submitting the matter to the CPS for a charging decision, on the basis that the evidence was of insufficient weight to meet the threshold test for exploitation. That decision was challenged in judicial review proceedings, which were compromised on 9 June 2016 with the police agreeing to set aside and retake the decision.
As a result, the police did refer the case to the CPS for a charging decision on 27 March 2017. Such decisions are made in accordance with the Code for Crown Prosecutors, paragraph 3.4 of which provides that a prosecution of a charge should only start or continue if that charge passes a two-stage test, namely (i) on an objective assessment, the prosecutor is satisfied that there is sufficient evidence to provide a realistic prospect of conviction, and (ii) a prosecution is in the public interest. Each stage is discrete, and so, unless there is a sufficiency of evidence, the relevant decision maker does not proceed to consider the public interest. It is well-established and uncontroversial that, in exercising its judgment in relation to each stage of this test, an independent prosecuting authority has a very wide margin of discretion and a court will only interfere with its assessment in highly exceptional cases (see, e.g., R (Corner House Research) v Serious Fraud Office [2008] UKHL 60; [2009] 1 AC 756 at [30] per Lord Bingham of Cornhill).
Mr Douglas-Jones accepted that, in making such decisions, the prosecuting authority has a wide margin of discretion; but no margin of discretion in making an assessment requiring judgment can save a decision when the approach of the decision maker was wrong. He submitted that a prosecutor could only properly assess whether the first stage of the test was satisfied if he or she had considered the sufficiency of the available evidence having identified the essential elements of the offence(s) which had to be proved and assessed the evidence against that backdrop.
In respect of this case, the Modern Slavery Act 2015, not being retrospective, did not apply: and it was considered that any offence would have been committed under section 71 of the Coroners and Justice Act 2009 and/or section 4 of the 2004 Act, each repealed by the 2015 Act but continuing to apply in respect of pre-2015 conduct. Mr Douglas-Jones has no quarrel with the identification of those as the potential offences.
Under the former, it is an offence knowingly to hold another person in slavery or servitude or knowingly to require another person to perform forced or compulsory labour; but that provision plays no part in this claim, and I need say nothing further about it.
Under section 4(1) of the 2004 Act, a person commits an offence if he arranges or facilitates the arrival in, or entry into, the United Kingdom of a person in circumstances in which he intends to exploit, or he believes that someone else is likely to exploit, that person. Section 4(4) provides that for these purposes a person is exploited if, and only if (so far as relevant to this claim):
(a) he is the victim of behaviour that contravenes article 4 of the Human Rights Convention [“the ECHR”]…
…
(c) he is subjected to force, threats or deception designed to induce him—
(i) to provide services of any kind…”.
Article 4 of the ECHR prohibits slavery and servitude, and proscribes forced or compulsory labour.
On 21 February 2018, the CPS decided not to charge Mr & Mrs Aljaberi, because diplomatic immunity applied and had not been waived. The Claimant's solicitors pressed for a fully reasoned decision, and that was sent to her in a letter dated 17 October 2018 which confirmed that it had been decided not to prosecute because it was considered that there was no realistic prospect of a conviction because of diplomatic immunity. That decision was upheld on 4 December 2018 on a first, local resolution stage review, requested by the Claimant under the Victims' Right to Review Scheme (“the VRR Scheme”). There had, up to that stage, been no consideration...
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