Abstract
Keywords
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 naïve 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 which to apply for leave to appeal against conviction and adduce fresh evidence, including the CG decision and FTT report, pursuant to the Criminal Appeal Act 1968, s 23. It was submitted that the conviction was unsafe due to the fact that, as a VOT he should not have been prosecuted; that he would have had a viable defence in law under the Modern Slavery Act 2015 (MSA 2015), s 45 had the clear signs of his victimisation been 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) when the possible trafficking concerns were raised at the Crown Court, proceedings should have been 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, citing several observations which would have justified him engaging with UK authorities (at [32]).
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 (NRM). That referral would have resulted in N being recognised as a credible VOT (consistent with the CG and FTT decision).
On the facts, the defence provided under s 45 would have availed N and likely succeeded. The Crown’s contention that s 45(1)(d) was not met failed to ‘appreciate the reality of [N’s] situation, and his circumstances’ as a VOT (at [43]). The Court of Appeal concluded that ‘no public interest consideration would outweigh such a determination’, for that reason the conviction could not be considered safe and was quashed (at [45] and [46]).
Commentary
The case provides the latest contribution to the mounting number of Court of Appeal judgments addressing the safety of convictions of victims trafficked to the UK for the purpose of criminal exploitation (forced criminality). Whereas the majority of applications for leave to appeal have concerned adducing fresh evidence for convictions pre-MSA 2015 in order to stay proceedings as an abuse of process, the present case is the first appeal against conviction for production of a Class B drug (cannabis) committed subsequent to the enactment of s 45 MSA 2015. The overarching theme in these cases centres on VOTs being advised to plead guilty in situations where their victim status ought to have extinguished their culpability.
Notwithstanding the fact-sensitive nature of the decision, the ruling shines a spotlight on the application of the statutory defence, with a particular focus on s 45(1)(d). In attaching significant weight to the applicant’s situation, the Court has been liberal in its application of the objective test within the defence. Unfortunately, the progressive approach by the Court in applying the law is marred by the initial failings of other actors within the criminal justice system to adequately identify N as a potential VOT and protect him from further victimisation by the state.
Identifying Victims
Human trafficking of Vietnamese nationals to the UK to work as gardeners in cannabis factories is a well-established trend. The US State Department’s Trafficking in Persons Report has discussed its prevalence every year since first identifying the problem in 2009. That report found that children are often ‘trafficked to the UK and subjected to debt bondage…for forced work on cannabis farms’ (USSD, Trafficking in Persons Report 2009 (2009) 295). In 2012, a joint report by the UK Human Trafficking Centre and the Serious Organised Crime Agency identified that 96 per cent of people reported as potentially trafficked for cannabis cultivation were Vietnamese (UKHTC, A Strategic Assessment on the nature and Scale of Human Trafficking in 2012 (2013) 25). Furthermore, between 2009 and 2016, 58 per cent of Vietnamese nationals identified as VOTs had been forced to cultivate cannabis (IASC, Combating Modern Slavery Experienced by Vietnamese Nationals en route to, and within, the UK (2017) 8).
Given the prevalence of this manifestation of exploitation at the time N was charged, it is concerning that the Court upheld the original decision of the CPS to prosecute and dismissed the first appeal ground. Following the CPS Legal Guidance at the time N was charged, it is arguable that prosecutors should have been alert to particular circumstances of N’s case giving rise to the possibility of him being a VOT from the outset of the proceedings. Indeed, the cultivation of cannabis was offered as an example of an indicator offence in the guidance, albeit for child victims. Nonetheless, referenced guidance published on indicators of trafficking which ‘may also be of help to prosecutors’, expressly recognised ‘drug cultivation’ as being a form of forced criminality (see CPS, Human Trafficking, Smuggling and Slavery (2016) <https://webarchive.nationalarchives.gov.uk/20160701150802>, <https://www.cps.gov.uk/legal/h_to_k/human_trafficking_and_smuggling>; Home Office, Victims of Modern Slavery—Frontline Staff Guidance (2016) 26). The nature under which N was arrested should have been enough to warrant further investigation by both the police and CPS pre-charge.
Notwithstanding this apparent oversight by the Court, the critical treatment of both the counsel and trial judge in their failure to appreciate the potential for N being a VOT, following the advancement of his mitigation, is apposite. The decision stands in stark contrast to the ruling in previous appeals against cannabis cultivation offences, in particular R v N [2012] EWCA Crim 189. In circumstances not dissimilar to the present case, two Vietnamese minors had their appeals dismissed despite being assessed as credible VOTs by social workers and the UK Border Agency (UKBA). Unlike the present case, evidence of several exploitation indicators were present in both cases, yet despite this, the Court found that the CPS decision to prosecute was in the public interest.
In deviating from this stance, the Court of Appeal has been proactive in its power of review and reiterates the necessity for advocates, as well as judges, to engage with modern slavery guidance. Had either of these responders acknowledged the significance of the mitigation evidence placed before the court, N’s case would have been adjourned and, had the CPS proceeded with the prosecution, he would have been afforded protection from conviction pursuant to s 45 MSA 2015 (at [40] and [37]).
Protection from Criminalisation
Under the Council of Europe Convention against Trafficking in Human Beings 2005, Art 26 and the EU Trafficking Directive 2011/36/EU, Art 8, the UK is obligated to provide for the ‘non-punishment’ of VOTs for their involvement in unlawful offences, to the extent that they have been compelled to do so as a direct consequence of being trafficked. In England and Wales, these obligations are met via three safeguards: the common law defence of duress, prosecutorial discretion and the power to stay a prosecution as an abuse of process (R v L(M) [2011] 1 Cr App R 12 at [7], R v Joseph (Verna) [2017] EWCA Crim 36 at [4] and R v GS [2018] EWCA Crim 1824 at [76]). For offences committed by VOTs after 31 July 2015, a fourth mechanism is provided to prevent criminalisation: the s 45 defence(s).
Section 45 of the MSA 2015 provides two separate defences for modern slavery victims over and under the age of 18 (s 45(1) and (4), respectively) who commit offences not excluded by Sch 4. An adult is not guilty of an offence if: they were over 18 when they did the act; they did the act because they were compelled to do so; the compulsion is attributable to slavery or ‘relevant exploitation’ (including trafficking); and a reasonable person in the same situation and sharing the defendant’s relevant characteristics would have no realistic alternative to doing the act (ss 45(1)(a)–(d)).
The defendant bears an evidential burden and must raise evidence of each of the four elements of the defence, the prosecution must then disprove one or more of those elements beyond reasonable doubt (R v MK [2018] EWCA 667 at [45]). The CPS Guidance recognises the objective test within s 45(1)(d) as a safeguard against unscrupulous use of the defence.
Statutory Interpretation
Section 45(1)(d) states that a person is not guilty if: a reasonable person in the same situation as the person and having the person’s relevant characteristics would have no alternative to doing the act.
The standard of the ‘reasonable person’ has shaped various criminal defences (for discussion, see J Gardner, ‘The Many Faces of the reasonable Person’ (2015) 131 LQR 563). Section 45(1)(d) replicates the objective limb of the common law defence of duress set out in Graham (1982) 1 All ER 801 and approved in Howe (1987) 85 Cr App Rep 32, HL at 65–6 that: a sober person of reasonable firmness, sharing the defendant’s characteristics, would have responded in the same way as the defendant.
The reasonableness requirement within duress was justified by the Law Commission so as to not ‘create too wide a defence’ (Law Commission, Criminal Law Report on Defences of General Application (Law Com 83, 1977) para 2.28). Parallel to this was the justification for its inclusion in s 45 as ‘an important safeguard against [the] defence being abused’ (Modern Slavery Bill Debate (11 September 2014) col 368). Despite this, duress has been criticised for setting too high a standard for an excusatory defence and generating ‘problems of unintelligibility and impracticality, [operating] on morally questionable foundations’ (KJM Smith, ‘Must Heroes Behave Heroically’ [1989] Crim LR 622, 627). These criticisms can be transposed to the s 45 defence.
The drafting of s 45(1)(d) was heavily scrutinised during the Modern Slavery Bill’s passage through Parliament (s 39(1)(c) in the draft Bill). The Immigration Law Practitioners’ Association in its written evidence criticised the interspersing of an ‘objective element…with a subjective twist’ for being problematic when directing a jury to the correct approach. The clause was deemed unnecessary given that the tribunal of fact would have already considered the defendant’s personal characteristics and background for the preceding elements. Further to this, it was argued by the anti-trafficking organisation, Hope for Justice, that the ‘reasonable person’ test within the clause went beyond the European and EU ‘non-punishment’ obligations, thus requiring more than the international standard of compulsion (reiterated in S Bird and P Southwell, ‘Does the New ‘Slavery’ Defence Offer Victims of Trafficking any Greater Protection?’ (2015) 9 Archbold Rev 7, 9).
Laird maintains that requiring VOTs ‘to show the same level of fortitude as “normal people” is deeply problematic given the extreme nature of their circumstances’ (Laird, 2016 at p 399). Evidence suggests that VOTs do not behave reasonably; they flee from authorities, refuse assistance and in some cases return to their traffickers through fear and vulnerability. US professor of law and philosophy, JL Hill suggests that exploitation by definition occurs when one takes advantage of another’s vulnerability which in turn renders them unable to make reasonable decisions (JL Hill, ‘Exploitation’ (1994) 79 Cornell LR 631, 636). Undeniably, judging the actions of a VOT against what is normatively acceptable fails to appreciate the severity of the exploitation endured by victims.
Despite this, the defence permits the reasonable person to be placed in the same situation as the defendant, perhaps providing a concession to human frailty that departs from the dogmatic nature of the reasonable man. Rather than holding the defendant to a standard well beyond what they could be expected to meet, the drafting of the provision seemingly allows for a degree of lenience when considering whether they had an alternative to committing the act. The Court’s stance in the instant ruling appears to support this. In attaching significant weight to ‘the applicant’s situation, and his circumstances, which include his history…and resultant fears’ (at [43]), the Court has applied a test beyond the scope of the purely objective test envisaged during the Bill’s drafting. This aligns with the judgment in R v L & Ors [2013] EWCA Crim 991 at [13] and [19] which established that while VOTs should not be granted immunity from prosecution, ‘the extent to which [a VOTs] ability to resist involvement in criminal activities has been undermined is fact specific’ arising from their subjective response to the exploitative situation.
One might argue that N’s situation is consistent with that of ‘learned helplessness’ resulting from repeat and chronic abuse of which many VOTs might suffer from (Laird (2016) 400). This would explain his failure to escape or seek help when in the UK, especially considering his previous attempts and successful escape in Germany (at [14]). If that were the case, it would be appropriate to assume that learned helplessness was considered in the application of s 45(1)(d) to N’s case. This departs significantly from the restrictive approach taken in R v Hurst [1995] 1 Cr App 82 and Bowen in which learned helplessness was deemed not to be a relevant characteristic for the purpose of satisfying a defence of duress.
When considering whether the threshold of ‘no realistic alternative’ had been satisfied, the representative for the CPS meticulously relied on the fact that N had previously been able to escape and engage with authorities in Germany (at [32]). This analysis denotes a significant lack of consideration and understanding among advocates even where unfathomable facts of exploitation are present before the court. The mere fact that a VOT has previously shown courage in the face of extreme adversity does not denote the same level of fortitude throughout the entirety of their trafficking experience. Indeed, the consequences of his previous escape and his subsequent re-trafficking seek to entirely contradict the respondent’s submission.
Conclusion
The instant ruling suggests that the Court is willing to recognise the fragility of human autonomy in certain cases, however, little clarity is offered pertaining to the application of the defence at trial. While attaching appropriate weight to a VOTs history of trafficking and resultant fears is favourable, the law, as confirmed during the Modern Slavery Bill Debate, requires an objective test whereby ‘someone in the same situation as the defendant’ must still remain a reasonable person (Laird (2016) 402). The defence as it stands unduly restricts the ambit of victims to those whereby the extent to which they could resist committing the criminal act or escape is a manifestation of either their age, sex or a medically diagnosable illness/disability (s 45(5)). Fouladvand and Ward argue that ‘the defence should reflect an understanding of human beings as vulnerable subjects, rather than the abstract individuals of traditional criminal law doctrine’. In positing a move away from the reasonable person test, they suggest a more apposite test might be ‘whether the defendant was unable, as a result of slavery or exploitation, to see any reasonable alternative to acting as they did’ (S Fouladvand and T Ward, ‘Human Trafficking, Vulnerability and the State’ (2019) 83(1) JCL 39, 51–2). Directing a jury on such a test would prove far less challenging than leading them through the minefield that is s 45(1)(d).
Since its enactment, the MSA 2015 has opened the floor to discussions about introducing equivalent statutory defences for victims of exploitation beyond the realms of modern slavery, such as victims of domestic violence and child criminal exploitation. While such provisions may, if enacted, fill lacunas in protective frameworks in these areas, care must be taken to recognise the inadequacies of the s 45 defence outlined above. The Prison Reform Trust has proposed a new statutory defence clause modelled on s 45 to be added to the draft Domestic Abuse Bill for persons whose offending is driven by their experience of domestic abuse (PRT, ‘Prison Reform Trust briefing on the Draft Domestic Abuse Bill: Pre-legislative scrutiny’ (April, 2019) 10). Attention is drawn to the ‘pitfalls that currently exist in the defence of duress’ pertaining to the ‘reasonable person’ test and the draft clause omits the parallel sub-section entirely (ibid, 11). The proposal, which is supported by the Criminal Bar Association, has been accepted by the Joint Committee who urge the Government to consider its inclusion (Joint Committee on the Draft Domestic Abuse Bill, Draft Domestic Abuse Bill (first report) (2017–19, HL 378, HC 2075) at [180]). Legislators would be wise to adhere to the Joint Committees recommendations so as to avoid the deficiencies present in the current protective mechanisms for victims of modern slavery.