By Farrhat Arshad
Victims of trafficking; retrospective challenges to decisions to prosecute; fresh evidence
R v O and N
 EWCA Crim 752
Both N and O sought to retrospectively challenge the respective decisions to prosecute them of offences. Both relied upon fresh evidence relating to their status as Victims of Trafficking (“VOT”), findings made after their prosecution, conviction and sentence.
N was charged in 2014 with an offence of cultivation of cannabis. He raised at the outset the fact that he had been trafficked into the UK and was forced to act as a gardener of the cannabis. At an early stage, the Prosecution made enquiries with the police and the police conceded that it was likely N had been trafficked but were skeptical about elements of his account and whether he was acting under compulsion. Prior to the issue being conclusively resolved, N pleaded guilty to the offence and was sentenced to imprisonment. In 2016, following the refusal of his asylum claim, N asserted that he was a victim of trafficking. He was referred to the National Referral Mechanism (“NRM”). The Home Office acting as the Competent Authority concluded that N had been a victim of trafficking.
N relied on the fresh evidence in his own witness statements, the decisions of the Competent Authority, in the Home Office's file in relation to his proposed deportation and subsequent claim for asylum and the files of his former solicitors and CPS in the proceedings below.
In July 2014, O was convicted after trial of two offences of controlling prostitution for gain. She was sentenced to five years’ imprisonment. In 2015 the Poppy Project referred her to the NRM. In December 2015, the Home Office acting as the Competent Authority concluded that O had been a victim of trafficking. O sought to rely on the fresh evidence in her own witness statements, the NRM referral form, and the decisions of the Competent Authority.
CACD: the legal principles that applied to both cases were, “well-travelled territory” and the questions for the Court were whether: (i) there was credible evidence that the applicant fell within the definition of trafficking in the Palermo protocol and the Directive; (ii) there was a nexus between the crime committed and the trafficking; and (iii) it was in the public interest to prosecute either N or O.
In the case of N, the CACD had no hesitation in finding that he was a VOT, that there was a nexus between that and his offending and that in all the circumstances the public interest did not require prosecution. As such, the conviction was unsafe and his appeal would be allowed.
By contrast, in the case of O, whilst the Court would give O the benefit of the doubt as to whether she was a VOT, this status did not establish nexus or compulsion at the relevant time as there was both a significant time interval between her own arrival, and significant geographical distance of her alleged 'operator', at the time of these offences. The public interest did require prosecution in her case. Nor did her subsequent status as a VOT afford her mitigation for the purposes of sentencing as there was no nexus between her status as a VOT and the offending. Her appeals were dismissed.
Incompetence of counsel; safety test; tactical decisions
R v Scott Goldfinch
 EWCA Crim 878
G was convicted of one offence of indecent assault. The offence had been committed in 1996 when G was aged 16 and the victim was aged four years. G was charged in 2015. G argued that his trial counsel was incompetent in that he had (i) conceded that V had been abused when he should not have; (ii) had failed to cross-examine V as to inconsistencies in the account given when he was aged four; (iii) had failed to cross-examine V in respect of details in the account given by V when aged four.
The CACD stated that the correct approach to appeals based upon the suggestion of incompetence of trial counsel was stated by Buxton LJ in R v Day  EWCA Crim 1060 at  that incompetence of trial counsel did not in itself form a ground of appeal; there was a single test of safety and in order to establish lack of safety in an incompetence case the appellant had to go beyond the incompetence and show that the incompetence led to identifiable errors or irregularities in the trial, which themselves rendered the process unfair or unsafe. In the present case trial counsel’s conduct of the case could not be described as incompetent. He had made justifiable tactical decisions. It was the responsibility of the advocate to make forensic decisions and to devise strategy. Counsel was not merely the defendant's mouthpiece - R v Farooqi  1 Cr. App. R. 8. The conviction was not unsafe.
By Paul Taylor QC
R v Lewis
 EWCA Crim 710
L was convicted of one count of anal rape. The jury were unable to reach a verdict on Counts 2 and 3 (vaginal and oral rape). His application for permission to appeal against conviction was referred by the single judge to the full court. The CACD rejected the application.
The main grounds of appeal related to the following:
i) The jury's verdicts were so inconsistent as to be "logically inexplicable";
ii) The Recorder wrongly referred to his own "Steps to verdict" document as being "a guide" rather than something that the jury was forced to follow.
Inconsistent Verdicts: The CACD stated that L “failed to discharge the heavy burden of demonstrating that his conviction on the count of anal rape was "logically inexplicable" when contrasted with the jury's failure to reach a verdict on the counts of oral and vaginal rape”. Because, inter alia:
- The clear difference in the complainant’s accounts about the anal sex, and the oral and vaginal sex.
- The evidence in support of the different counts was based on the evidence of the complainant and two others.
- The jury were directed to consider each count separately.
The Steps to Verdict: CACD stated that “in contrast to the Recorder's legal directions, which are of course mandatory, the jury was not obliged to use the Steps document. Such documents are routinely provided to assist the jury. They are not obliged to use them and there is no authority which makes them mandatory.”
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