R v GS
| Jurisdiction | England & Wales |
| Judge | Lord Justice Gross |
| Judgment Date | 31 July 2018 |
| Neutral Citation | [2018] EWCA Crim 1824 |
| Court | Court of Appeal (Criminal Division) |
| Docket Number | Case No: 201703514 C2 |
| Date | 31 July 2018 |
[2018] EWCA Crim 1824
Lord Justice Gross
Mrs Justice McGowan DBE
Sir Brian Keith
Case No: 201703514 C2
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM ISLEWORTH CROWN COURT
HIS HONOUR JUDGE COLGAN
T20070274
Royal Courts of Justice
Strand, London, WC2A 2LL
Francis FitzGibbon QC (instructed by Laura Janes, Scott Moncrieff and Associates) for the Appellant
Ben Douglas-Jones (instructed by James Boyd and Steve Alvarez) for the Crown Prosecution Service Appeals and Review Unit
Hearing date: 17 July 2018
Judgment Approved
ANONYMISED
REPORTING RESTRICTIONS APPLY
INTRODUCTION
Huge strides have been made, domestically and internationally, in recognising the evil of human trafficking, in protecting victims of trafficking (“VOTs”) and, where appropriate, shielding VOTs from prosecution or penalties. However, as repeatedly made clear, where crimes have been committed by VOTs, even arising from their own trafficking, there is no blanket immunity. Decisions are necessarily fact sensitive, taking into account the public interest both in prosecuting alleged offenders and in protecting VOTs. The present application gives rise to such considerations, made somewhat more complex by (put neutrally for the moment) material developments in the law and practice since the time of the original trial and the very lengthy Extension of Time (“EOT”) sought.
On 30 th November, 2007, in the Crown Court at Isleworth, before HHJ Colgan, the Applicant was convicted of Being Knowingly Concerned in the Fraudulent Evasion of the Prohibition on the Importation of a Controlled Drug of Class A (Cocaine).
On the same date, the Applicant was sentenced to seven years imprisonment and recommended for deportation.
The Applicant's application for an EOT of approximately 9 years and 7 months, for leave to appeal conviction and to rely on fresh evidence, pursuant to s.23 of the Criminal Appeal Act 1968 (“the 1968 Act”), has been referred to the Court by the Single Judge.
The Applicant, through Mr Fitzgibbon QC has sought anonymity for these proceedings and Mr Douglas-Jones QC for the Crown (“the Respondent”) does not oppose it. We have considered this matter anxiously and echo the concerns expressed in R v L; R v N [2017] EWCA Crim 2129, at [9] and following, with regard to anonymity in criminal proceedings. No media representatives were present at the hearing, so we did not have the benefit of any representations from the media. However, given the extent of our consideration of the matter, we are satisfied that no point was missed which might have been raised on behalf of the media. Insofar as the application for anonymity was based on poor mental health and low cognitive function, we would have refused it. That said, there were other particular features of the case which, we are persuaded, renders an anonymity order strictly necessary. Accordingly, we grant the application for anonymity, while underlining that any such application should always be closely scrutinised and should not be granted unless strictly necessary.
As to the EOT application, the matter did not progress until the Applicant instructed fresh representatives in late 2015. It is said on her behalf that she was not in a position to have identified the possibility of an appeal without such assistance. It was first formally acknowledged that the Applicant had been trafficked in a decision of the First Tier Tribunal (“FTT”) in August 2015. Thereafter time was taken obtaining documents, including a delay attributable to the Home Office, counsel was instructed and Grounds were ultimately settled in June 2017 and the appeal lodged soon thereafter.
It may be noted that one of the consequences of the age of the case is that no transcripts are available.
THE FACTS
(1) The facts of the offence: In short summary as to the facts of the offence, the Applicant was a Jamaican national. On 9 th February, 2007, she arrived at London Heathrow airport (“LHR”) on a flight from Trinidad. She was travelling using a British passport in a false name. She was stopped by Customs Officers. She informed them that she was a student, resident in the United Kingdom (“UK”) and that she had been away for a week. She told the officers that she had packed her own bag and denied that she was carrying anything for anyone else. She consented to being x-rayed.
The x-ray revealed that she had foreign objects inside her body. She was arrested. A second x-ray and a medical examination confirmed the findings. In due course, 23 packages were recovered from her; 22 of those packages contained cocaine with a gross weight of 253 grams (221 grams at 100% purity). The drugs had a street-level value of £37,578.40.
A forensic medical examiner saw the Applicant in custody and noted cuts to her left forearm, which she said she had inflicted with a plastic knife. She told him that she was HIV positive and had a child aged seven. She was tearful throughout the examination. The doctor concluded that she was depressed but not suicidal.
Examination of the Applicant's mobile phone showed that she had received a missed call from a number thought to belong to a man to whom we shall refer as B.
Another person intercepted importing drugs alleged that the offence had been committed as a result of threats being made. B was believed to have made those threats and was also believed to have access to firearms and the capacity to use them. Law enforcement agencies had information as to B's identity.
The Applicant's medical records showed that she had attended her GP, both with a complaint of assault resulting in an injury to her left ear and, on a separate occasion, after having been involved in a road traffic accident (“RTA”).
In interview, the Applicant made no comment in answer to the questions put to her.
In the absence of transcripts, it is surmised that the Prosecution case was that the Applicant had been found in possession of drugs she had smuggled into the country and the jury could be sure that she was not acting under duress.
The Defence case was that at all relevant times the Applicant was acting under duress, involving the threat of serious injury or death to her and/or her young son, in the event that she had refused to comply with the demand from another that she smuggle drugs.
As is apparent, the Applicant's defence of duress was rejected by the jury and she was convicted.
(2) The Applicant's evidence at trial: In a little more detail, the Applicant's evidence was to this effect. At the time of the trial, she was 29. She first came to the UK to attend a nursing course which she did not complete. She worked in a hotel. Her son was born in August 2000 and had come to the UK with his paternal grandmother with whom he lived. His father (“G”) lived in Miami.
The Applicant had lived with her cousin (“W”) in Birmingham for a period of about 4 months. W's partner was a Jamaican man, to whom we have already referred as B. Her cousin, B and B's brother (“D”) were all involved in drug dealing. She alleged that D had assaulted her in 2003, after accusing her of informing on his (D's) girlfriend for using a cloned credit card.
In December 2004, W was arrested. B blamed the Applicant for W's arrest and claimed that she owed him money. He told her she had to go to the Bahamas and obtained a false passport for her to do so – in the event, the same false passport that she used on her 2007 flight to the UK from Trinidad when she was arrested. B purchased a flight ticket for the Applicant and she travelled to the Bahamas with a female associate of B (“L”). B told her that she had to bring back drugs hidden in bags of coffee. The Applicant, however, used her own money to escape, with L, from the Bahamas to Miami, where she had an uncle. She stayed in Miami until December 2006, at which point she said that she had to return to the UK for medical treatment for HIV, which she could not obtain in the USA.
In the event and subsequent to her return, she encountered B and one of his associates in Birmingham city centre. He told her to walk with him and that she could not go anywhere because he knew where her son lived. She was taken to a house overnight and kept under constant observation. A ticket to Trinidad was purchased for a flight leaving the next day. She claimed that she saw B had a firearm and believed what he had said about her son's life being in danger.
The next day she was taken to LHR. Both B and an associate (“F”) travelled on the flight with her. On arrival in Trinidad, she was taken to a house where she was again kept under observation. She was ordered to swallow a large number of drugs packages. She could not manage to swallow them all and so placed one inside her vagina and one under her breast. F travelled back to the UK with her. She was due to be collected by another of B's associates at LHR but was arrested on arrival.
(3) Events post-conviction: According to submissions made on the Applicant's behalf in subsequent immigration proceedings following her conviction, she gave assistance to the police as a result of which four other people were prosecuted for drug importation offences, of whom two were convicted. It was an agreed fact at that trial that B was behind the use of three British girls to import cocaine from the Bahamas, hidden in bags of coffee.
Following her release from prison in August 2010, the Applicant applied for asylum in the UK in October 2010. The Secretary of State...
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