The Reasonable Victim of Modern Slavery: R v N [2019] EWCA Crim 984
| DOI | 10.1177/0022018319881875 |
| Author | Bethany Simpson |
| Date | 01 December 2019 |
| Published date | 01 December 2019 |
| Subject Matter | Case Notes |
Case Note
The Reasonable Victim
of Modern Slavery
RvN[2019] EWCA Crim 984
Keywords
Reasonable person, relevant characteristics, realistic alternative, human trafficking, cannabis
cultivation
On 6 June 2016, the Applicant (N), a Vietnamese national, was charged with the production of a Class B
drug (cannabis). He had been discovered alone inside the loft of a Birmingham property in which 411
cannabis plants were being cultivated. At trial it transpired that N had been brought to the UK via an
agent and was instructed to feed the plants in order to repay costs incurred for his passage. He ate and
slept in the property and was not allowed to leave. In mitigation, N’s advocate referred to him as ‘a
relatively naı
¨ve 24-year-old who ...was certainly exploited and coerced’ (at [11]).
On 7 July 2016, following advice from his solicitor, N pleaded guilty and was sentenced to four
months’ imprisonment. In sentencing, the judge acknowledged that N was ‘taken advantage of by the
people who brought [him] here’ and ‘used ...as a gardener for their cannabis factory’ (at [12]). Despite
this, the possibility of N being a victim of trafficking (VOT) was not raised.
Following conviction, N was served with a decision to deport. An application for asylum was made on
the basis that he was a VOT. Asylum proceedings brought to light N’s previous exploitation and it was
discovered that he had a history of being trafficked and enslaved from the age of 13. He received a
positive Reasonable Grounds decision and Conclusive Grounds (CG) decision, but was refused asylum.
An appeal before the First Tier Tribunal (FTT) in N’s favour found him to be a VOT and granted him
limited leave to remain.
N sought an extension of time in whichto apply for leave to appeal againstconviction and adduce fresh
evidence,including the CG decision andFTT report, pursuant to the CriminalAppeal Act 1968, s 23. It was
submittedthat the conviction was unsafe due to the fact that,as a VOT he should not have been prosecuted;
that he would hav e had a viable defence i n law under the Moder nS lavery Act 2015 (MSA 2 015), s 45 had the
clearsigns of his victimisationbeen raised (at [26] and [28]).The grounds of appeal were twofold:(i) the CPS
should not have made the original decision to charge or prosecute N; and (ii) whenthe possible trafficking
concerns were raisedat the Crown Court, proceedings should havebeen adjourned or stayed.
The Crown contended that the decision to prosecute was in the public interest; there was insufficient
evidence to satisfy s 45(1)(d) of the defence, namely that N had no realistic alternative to committing the
offence, citingseveral observations whichwould have justified him engagingwith UK authorities (at [32]).
Held, allowing the appeal, Lady Justice Davies leading, granted the extension of time and accepted
the fresh evidence. With regard to ground (i), there were no grounds to challenge the original decision to
prosecute. N failed on this ground as no information was available to alert the CPS to modern slavery
issues at the time of charge (at [36]).
On ground (ii) however, the information presented at trial ‘was sufficient to raise an issue that the
applicant was a possible credible victim of trafficking’ (at [40]). Had the Crown followed the appropriate
CPS Guidance, N’s case should have been adjourned and referred to the National Referral Mechanism
The Journal of Criminal Law
2019, Vol. 83(6) 508–512
ªThe Author(s) 2019
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DOI: 10.1177/0022018319881875
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