R v AAD
| Jurisdiction | England & Wales |
| Neutral Citation | [2022] EWCA Crim 106 |
| Year | 2022 |
| Court | Court of Appeal (Criminal Division) |
2021 Nov 17, 18; 2022 Feb 3
Crime - Evidence - Fresh evidence - Single Competent Authority finding conclusive grounds to believe convicted defendant victim of trafficking - Whether conclusive grounds decision admissible as fresh evidence on defendant’s appeal against conviction -
In each of three separate cases the defendant appealed against his or her conviction of a criminal offence, relying on the fact that he or she was a victim of human trafficking and applying for leave under section 23 of the Criminal Appeal Act 1968F1 to adduce fresh evidence, including a subsequent conclusive grounds decision by the Single Competent Authority to the effect that he or she was a victim of human trafficking. In the first case the defendant, who had pleaded guilty to producing a controlled drug of class B contrary to section 4(2)(a) of the Misuse of Drugs Act 1971, appealed on the grounds that he had a defence under section 45 of the Modern Slavery Act 2015F2, which was available in respect of certain offences where a victim of trafficking had been compelled to do the acts which constituted the offence and the compulsion was attributable to slavery or to relevant exploitation. In the second case the defendant, who had pleaded guilty to possessing an identity document with improper intention contrary to section 4 of the Identity Documents Act 2010, appealed on the ground that she had a defence under section 45 of the 2015 Act. In the third case the defendant, who had been convicted of failing to take action as required by the Secretary of State contrary to section 35 of the Asylum and Immigration (Treatment of Claimants etc) Act 2004, appealed on the grounds that his prosecution had been an abuse of process and that the fresh evidence showed that he had had a “reasonable excuse” within section 35(3) of the 2004 Act for failing to comply with the Secretary of State’s direction. The three appeals were listed together with a view to the Court of Appeal providing guidance in cases involving victims of trafficking.
On the appeals—
Held, allowing the appeal in the second case but dismissing the appeals in the first and third cases, (1) that a conclusive grounds decision that a defendant was a victim of trafficking could potentially be adduced in evidence in the Court of Appeal on an appeal against conviction or sentence pursuant to section 23 of the Criminal Appeal Act 1968, although the context and the issues would determine whether the decision should in fact be adduced; that if the defendant’s status as a victim of trafficking had not been investigated properly or at all in the Crown Court, the Court of Appeal would need to determine how best to resolve the merits of any application or appeal in that regard; that, thus, the Court of Appeal might require oral evidence to be given, including from the defendant in order to substantiate, for instance, the history relied on, and it might order the production of any relevant documents, including reports and the conclusive grounds decision, if in existence; that this would be a highly fact-specific judgment and it would be unhelpful to attempt to lay down any guidance as to the circumstances in which the court would resolve an application or appeal solely on the basis of written reports, decisions by bodies such as the Single Competent Authority and other relevant materials and, conversely, when it would (additionally) require oral evidence; that although it was likely that the Court of Appeal would respect a conclusive grounds decision by the Single Competent Authority, there might be cases where the court would consider that the defendant’s account required testing by way of appropriate questioning; that although the Court of Appeal would pay due regard to the submissions of the parties as to the course the appeal should take, including as to the need for oral evidence to be given, section 23 of the 1968 Act made it clear that these were ultimately decisions solely for the court, depending on its view as to what was “necessary or expedient in the interests of justice” within the meaning of section 23(1); and that, applying that approach, leave would be granted in each case for the defendant’s conclusive grounds decision to be admitted in evidence pursuant to section 23 but it was not necessary for any oral evidence, including from the defendant, to be given (post, paras 81–84, 108–109, 167, 173, 181–182).
(2) That, following the introduction of the defence for trafficking victims in section 45 of the Modern Slavery Act 2015, it remained possible for a defendant to argue (whether at trial before the judge in the absence of the jury or on appeal) that the prosecution was an abuse of process by reason of the fact that it was unfair and oppressive for the defendant to be prosecuted and tried at all; that that was so whether or not the offence with which the defendant was charged was one to which the defence in section 45 of the 2015 potentially applied; that if the prosecution had failed to have due regard to the Crown Prosecution Service’s guidance on human trafficking cases or if the prosecution had departed from a conclusive grounds decision without any rational basis for doing so then an application to stay the prosecution on the grounds of abuse of process might be available and would be assessed by the court by way of review on grounds corresponding to public law grounds; that, on the other hand, mere disagreement with a decision to prosecute, following due regard being given by the prosecution to the Crown Prosecution Service’s guidance and to any conclusive grounds decision, gave no basis whatsoever for an application for a stay on the grounds of abuse of process; and that the prosecution of the defendant in the third case had not been an abuse of process because there had been no nexus between his exploitation as a victim of trafficking and the offence of which he had been convicted (post, paras 115–120, 125–127, 136–142, 158–159).
(3) That the defence in section 45 of the 2015 Act clearly required that the defendant had been “compelled” to do the act which constituted the offence, that such “compulsion” was attributable to slavery or to relevant exploitation and that a reasonable person in the same situation as the defendant and having the defendant’s relevant characteristics would have no realistic alternative to doing that act; that on its clear terms section 45 aptly reflected the United Kingdom’s obligations under the United Nations Convention against Transnational Organised Crime and the Council of Europe Convention on Action against Trafficking in Human Beings; that, thus, there was no sustainable foundation for the submission that section 45 should be reformulated so as to require instead that the offence had been caused by the traffickers, which would involve the wholesale rewriting of section 45; and that, on the facts, the section 45 defence had been made out in the second case but not in the first case (post, paras 145, 153–154).
(4) That the fresh evidence adduced by the defendant in the third case did not demonstrate that he had had a “reasonable excuse” for failing to comply with the Secretary of State’s direction for the purposes of section 35(3) of the Asylum and Immigration (Treatment of Claimants etc) Act 2004, it being quite clear from his defence statement that his decision not to comply had been a matter of his free choice and that he had not been suffering from some psychiatric illness that prevented him from complying (post, paras 163–165).
Per curiam. During a trial, a trafficking expert cannot express an opinion in evidence before the jury as to the plausibility and consistency of the defendant’s account. Nor can he comment on the vulnerability of the defendant, or express a view as to whether a given set of facts meets the legal definition of trafficking. None of these situations come within the well-known exceptions when an expert is permitted to give evidence on the “ultimate issue”. This is not to overlook those instances in trafficking cases when there may be discrete issues that properly require explanation by way of expert evidence, for instance as to the defendant’s psychiatric or psychological state or the detailed mores of people trafficking gangs operating in countries that are outside the court’s own knowledge and experience. In the latter instance, this does not require any comment by the expert as to the consistency of the account given by the defendant, whereas in the former the psychiatrist or psychologist may express a view as to the detail and content of the defendant’s account as a necessary step to reaching a diagnosis (post, paras 86–87).
The following cases are referred to in the judgment of the court:
Connelly v Director of Public Prosecutions [
Director of Public Prosecutions v A and BC Chewing Gum Ltd [
Director of Public Prosecutions v M
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