By Ben Newton
Victim of trafficking
R v N
 EWCA Crim 984
R v N  EWCA Crim 984 is the latest decision of the Court of Appeal in relation to a victim of trafficking who was allowed to plead guilty in circumstances where their status ought to have extinguished their culpability for the offence.
Prior to the coming into force of the Modern Slavery Act 2015, and in particular the s45 statutory defence for victims of trafficking, the remedy in such circumstances was an application to stay proceedings as an abuse of process. A summary of those principles can be found in R v GS  4 WLR 167. Cases are now beginning to filter through, however, where the new statutory defence was available to the appellant, allowing the Court to consider the facts in that context.
The Appellant in R v N was the ‘gardener’ in a cannabis factory being run at a residential address in Birmingham. His instructions gave a clear indication that he was a victim of trafficking but he was not advised of the defence available to him and pleaded guilty, those instructions being relayed to the Court during the plea of mitigation.
‘In our judgment, the information placed before the court was sufficient to raise an issue that the applicant was a possible credible victim of trafficking. This should have been apparent to the applicant's advocate, the representative of the prosecution, and the judge. It would have been open to the judge to raise this issue. He did not do so. However, the Guidance provided by the CPS expressly provides for this situation. Had the Guidance been followed, as we believe it should have been, the prosecutor should have sought an adjournment to ensure that the steps set out in the relevant section of the Guidance, namely, the duty to make proper enquiries and to refer through the NRM, should have taken place. Had this been done, we believe it reasonable to conclude that the referral would have resulted in the Conclusive Grounds Decision (made in January 2017), namely, that the applicant is a victim of human slavery. Our view as to the Conclusive Decision is reinforced by the findings of the FTT which were made available to the court.’ (Para 40).
In Responding to the appeal the CPS accepted that three of the four elements of the defence were made out, specifically: a) the appellant was over 18, b) he did the act because he was compelled to do so, and c) the compulsion was attributable to slavery or to relevant exploitation. They did not accept, however, that d) a reasonable person in the same situation and having his relevant characteristics would have no realistic alternative to doing the act. This was based on a number of observations as to his circumstances (set out at para 32), placing particular reliance on the fact that he had previously escaped and claimed asylum in Germany before being re-trafficked, and so could have been expected to turn to the authorities again.
The Court rejected this analysis, holding (at para 43): ‘The factual position, as found by the Conclusive Decision, was that for the short time that he was in Birmingham, the applicant had no travel documents; he had a history of being beaten by traffickers following his earlier escape in another country; he was in a new country; and he had no contact with any persons other than those involved with the traffickers. We regard the respondent's submission that in those circumstances section 45(1)(d) is not met as failing to appreciate the reality of the applicant's situation, and his circumstances, which include his history at the hands of the traffickers in other countries and resultant fears.’
The appeal was consequently allowed on the basis that the case should have been adjourned for referral to the NRM, following which a fair decision based on the facts and evidence would have been that a defence pursuant to s45 would probably succeed.
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