The Wrong Side of the Line? Trafficking Victims Compelled to Commit Offences and Prosecutorial Discretion: R v EK (Kolesnikova) [2018] EWCA Crim 2961
| Author | Sean Mennim |
| Published date | 01 April 2019 |
| Date | 01 April 2019 |
| DOI | http://doi.org/10.1177/0022018319844047 |
| Subject Matter | Case Notes |
Case Note
The Wrong Side of the Line?
Trafficking Victims Compelled
to Commit Offences and
Prosecutorial Discretion
R v EK (Kolesnikova) [2018] EWCA Crim 2961
In June 2011, the Applicant (K) pleaded guilty to a number of offences including conspiracy to control
prostitution for gain and money laundering. The prosecution case was that K’s boyfriend and co-accused
(S) was a ‘lynchpin in a Europe-wide network to traffic women for the purposes of prostitution, which he
controlled in the United Kingdom for financial gain’ (at [18]). He used coercion, where necessary, with
some of the complainants (IN and IZ). For 4 years prior to their arrest, K had assisted S by controlling IN
and IZ’s work, including telling them about their appointments and collecting money from them. It was
clear from police observations that, despite previously working as a prostitute, K had ceased such work
and enjoyed a ‘cash-rich lifestyle’ with S (at [18]).
In September 2011, K’s basis of plea, rejected in a Newton hearing, was that she was a victim of
trafficking (VOT) and a prostitute working under the same conditions as IN and IZ. On 10 October 2011,
K was sentenced to a total of 30 months’ imprisonment.
On 7 June 2012, following a negative Reasonable Grounds decision and National Referral Mechan-
ism (NRM) referral, K’s application for asylum was refused and an order for deportation (OD) was
made. After an unsuccessful appeal to the Upper Tribunal challenging the OD, K was deported on
25 October 2013. On 10 September 2015, the High Court ruled that the decision to certify the OD had
been unlawful; K re-entered the United Kingdom later that same month. In November 2016, a decision
by the first-tier tribunal (FTT) in K’s favour, allowed the appeal against the OD on asylum and art 3
ECHR grounds. The FTT also held, to the applicable lower standard of proof, that K was at all times a
VOT under the control of S.
The sole ground of appeal in the instant case was that the prosecution ought not to have proceeded
with the case against K or that the case should have been stayed as an abuse of process. K made an
application for an extension of time (EOT) in which to apply for leave to appeal against conviction and
adduce fresh evidence, pursuant to s. 23 of the Criminal Appeal Act 1968 (the ‘CAA 1968’). The fresh
evidence application consisted of : (i) the conclusion that K was a VOT; an d (ii) her mental state,
supported by medical evidence, could ‘serve to explain what was otherwise inexplicable and flowed
from the controlling relationship between S and K’ (at [35]).
The question for the Court concerned the safety of the conviction which could be formulated in one of
two ways: was this a case where either (a) the dominant force of compulsion, in the context of a very
serious offence, was sufficient to reduce the applicant’s criminality or culpability to or below a point
where it was not in the public interest for her to be prosecuted, or (b) the applicant would or might not
have been prosecuted in the public interest. If yes, then the proper course would be to quash the
conviction.
Held, dismissing the appeal, Lord Justice Gross, providing the leading judgment, determined that it
was appropriate to grant an EOT and leave to appeal, given the ‘unfortunate chronology of events’ (at
[43]). This was because K’s position at the Newton hearing was essentially to mitigate (the plea of guilty
The Journal of Criminal Law
2019, Vol. 83(2) 111–115
ªThe Author(s) 2019
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DOI: 10.1177/0022018319844047
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