Trafficked Victims and Appeals against Guilty Plea Convictions: R v S [2020] EWCA Crim 765

AuthorSean Mennim
Published date01 February 2021
Date01 February 2021
Subject MatterCase Note
Case Note
Trafficked Victims and
Appeals against Guilty Plea
RvS[2020] EWCA Crim 765
Cultivation of cannabis, conclusive grounds decisions, decisions to prosecute, trafficked
victims, setting aside guilty pleas
On 26 September 2017, the applicant (S), a Vietnamese national, was charged with producing a con-
trolled drug of Class B (cannabis), contrary to s 4 of the Misuse of Drugs Act 1971. He had been
apprehended by police attempting to escape from a Blackpool property in which 203 cannabis plants and
36 bags of plant matter were seized. The property was a three-bedroom house; each room had been set up
to grow cannabis with hydroponics and lighting equipment. The applicant’s fingerprints were found on
the growing equipment. In interview it transpired that he had been brought to the UK in the back of a
lorry and spent a short period of time in a different property with two men. He said that he had been
instructed to stay at the property for five months and assist in the cultivation of cannabis as a ‘gardener’
in order to pay for the costs incurred for his passage. Although the doors to the property were not locked,
he said he was too scared to leave because he feared the two men and had nowhere else to go. He had
been in the property for approximately four-and-a-half months.
On 4 October 2017, the Competent Authority (CA) determined that there were reasonable grounds to
believe that S was a victim of trafficking (VOT). During the Pre-Trial Preparation Hearing, the Crown
had indicated that if the CA’s Conclusive Grounds (CG) decision was positive, they would discontinue
proceedings against S. At the time of his trial, S had received his ‘Conclusive Decision’ from the CA that
there were insufficient grounds to believe that he was a VOT.
On 4 December 2017, following advice from his solicitor who had taken the view that the CA’s
decision was ‘conclusive’ and that S therefore had no defence to the charge, S pleaded guilty and was
sentenced to 12 months’ imprisonment. Following his conviction, the CA subsequently arrived at a
conclusive finding that the appellant had in fact been a VOT.
S sought an extension of time 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 ‘CCA 1968’). The fresh evidence
application consisted of: (i) the conclusive finding of the CA th at S was a VOT; and (ii) witness
statements from S’s solicitor of the advice given to him at the time of the trial.
Held, allowing the appeal, Lord Justice Singh, providing the leading judgment, noted that there were
conflicting witness statements from S’s trial solicitor such that it was not clear whether S fully appre-
ciated that he could mount his defence under s 45 of the of the Modern Slavery Act 2015 (MSA 2015)
before a jury notwithstanding the negative conclusive grounds decision of the CA (at [38]). His Lordship
acknowledged that there was at the very least ambiguity about what was to be regarded as ‘conclusive’
(at [39]). This, however, did not alter the legal position. Referring to the ruling of Thomas CJ in Rv
Joseph [2017] EWCA Crim 36 (at [40]), the court reiterated that a so-called ‘conclusive decision’ of the
The Journal of Criminal Law
2021, Vol. 85(1) 66–70
ªThe Author(s) 2021
Article reuse guidelines:
DOI: 10.1177/0022018321989935

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