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

Victim or Criminal? Identification of Trafficked Victims Involved in Forced Criminality

The MSA 2015 was enacted as a tool to assist in the eradication of forced or compulsory labour. Indeed, much of the public interest in modern slavery, and the intersection of victimisation and offending for those caught up in a web of criminality, has focused predominately on forced marriage, domestic servitude, the coerced selling of drugs across counties (‘county lines’ offending), labour exploitation and assisting the movement of adults involved in prostitution within and across borders (D Gadd and R Broad, ‘Troubling Recognitions in British Responses to Modern Slavery’ (2018) 58 Brit J Criminol 1440, 1449). There remains, however, a substantial number of individuals involved in one of the most prevalent and lucrative forms of forced criminal exploitation, namely cannabis cultivation.

The US State Department’s (USSD) Trafficking in Persons Report has discussed the prevalence of this form of exploitation every year since first identifying the problem in 2009. That report found that individuals 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 (UKHTC) and the Serious Organised Crime Agency identified that 96 per cent of people reported as potentially trafficked for cannabis cultivation were Vietnamese nationals (UKHTC, A Strategic Assessment on the Nature and Scale of Human Trafficking in 2012 (2013) 25). Further, 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).

Burland, who has written extensively on this issue, highlighted that the successful identification of people trafficked for cannabis cultivation can be undermined by a stereotype of the ‘ideal’ and ‘innocent’ victim (P Burland, Villains not Victims? An Examination of the Punishment of Vietnamese Nationals Trafficked for Cannabis Cultivation in the United Kingdom (2017) 8). According to Burland, this ‘limited perception of the complexities and scope of the nature of human trafficking’ continues to place undue emphasis on the victim’s consent and ambition to travel to the UK which often overlooks the many ways in which traffickers achieve control over their victims; for example, through debt bondage, actual violence and threats of violence, and by traffickers utilising language barriers and exploiting a victim’s illegal immigration status to ensure compliance (ibid). Notwithstanding the prevalence of this manifestation of exploitation in the UK, a dilemma continues to face the criminal justice system as to how such individuals should be treated—as victims or criminals?

The Non-Punishment Principle

Under art 26 of the Council of the European Union on Action against Trafficking in Human Beings 2005 (developing the Palermo protocol of 2000) and art 8 of Directive 2011/36/EU, Member States must ensure that they ‘take the necessary measures to ensure that competent national authorities are entitled not to prosecute or impose penalties on VOTs for their involvement in criminal activities which they have been compelled to commit as a direct consequence of being subject to [trafficking]’ (the ‘non-punishment principle’). While this overriding principle provides for the possibility of non-punishment, this is not tantamount to ‘immunity from prosecution’ (R v N [2012] EWCA Crim 189 at [18]; L v M(L) [2011] 1 Cr App R 12 at [13]).

Section 45 of the MSA 2015 is the way in which England & Wales (E&W) chose to express its internationally indirectly effective obligations; this introduced separate defences (a hybrid of duress by threats and of circumstances) for victims of human trafficking over and under the age of 18 who commit offences. The defence is not retrospectively applicable, and is subject to a long and somewhat arbitrary list of exclusions in sch 4 (s 45(7)), but it does apply to drug trafficking offences. With regard to adult victims, the section operates where the person performs the criminal act because they were compelled to do so; the compulsion is attributable to slavery or relevant exploitation; and a reasonable person in the same situation as the person and sharing the person’s relevant characteristics would have no realistic alternative to doing the act (s 45(1)(a)-(d)). ‘Relevant exploitation’ is exploitation within s 3, which is attributable to the defendant being a victim of human trafficking. As s 56(2) makes clear, any victim of the offence defined in s 2 is a victim of human trafficking for the purposes of the s 45 defence. Relevant characteristics to be considered include age, sex and any physical or mental illness or disability (s 45(5)).

The question whether the s 45 defence is made out, or more accurately whether the prosecution have proved that it is not made out (since the burden of proof rests on the prosecution: R. v MK [2018] EWCA Crim at [45]), is a question of fact for the jury to decide (DS at [40]) (For further commentary on the statutory defence, see K. Laird, “Evaluating the Relationship Between Section 45 of the Modern Slavery Act 2015 and the Defence of Duress: An Opportunity Missed?” [2016] Crim. L.R. 395).

Notwithstanding erroneous advice of S’s solicitor, the facts presented in the present case provided a clear evidential basis for the offence having been committed as a direct consequence of S’s exploitation, and that he was compelled to commit it (s 45(1)(a)-(c)). When interpreting s 45(1)(d), the court in R v N [2019] EWCA Crim 984 (not referred to in the instant case) attached significant weight to ‘the applicant’s situation, and his circumstances, which include his history…and resultant fears’ (at [43]).

It was noted that the door to the property in which S was based was unlocked but that he was too scared to leave because he feared his traffickers and had nowhere else to go (at [6]). It is arguable that S’s circumstances are consistent with that of what Hallett LJ in GAC [2013] EWCA Crim 1472 at [26] defined as ‘learned helplessness’. While that case concerned domestic abuse, Laird noted that the principle can be of particular relevance to the circumstances of a VOT which may be the result of repeat and chronic abuse from their traffickers (Laird, 400). Although there was no evidence to suggest that S had been subjected to any explicit psychological coercion, there are many other reasons why he may not have attempted to escape; for example, his illegal immigration status; his inability to speak English; fear of reprisals (for self or family) from his traffickers; not knowing how or where to seek help, etc. (see Home Office, Victims of Modern Slavery—Competent Authority Guidance, Version 7.0 (2019) 23). In their recent study concerning law-enforcement responses to trafficked victims, Ramiz et al highlighted that the abuses to freedom in trafficking cases are not ‘necessarily consistent with traditional or binary explanations; victims may be held against their will, forced to work and be unable to leave, despite an unlocked door' (A. Ramiz, P. Rock & H. Strang, ‘Detecting Modern Slavery on Cannabis Farms: The Challenges of Evidence' (2020) 4 Camb J Evid Based Polic 202, 215).

Although the s 45 statutory defence was introduced with the specific consideration of protecting individuals being trafficked for cannabis cultivation (Modern Slavery Bill Factsheet: Defence for Victims (Clause 45) Home Office (2014)), the instant case is paradigmatic of trafficked victims becoming enmeshed in this type of exploitation and being criminalised as a result of law enforcement failing to recognise their trafficked status (see, for example, R v N [2019] EWCA 752; R v N [2019] EWCA Crim 984). As the present case aptly demonstrates, there is an inherent risk that these failures will continue to impact on the full and effective implantation of the non-punishment provision and have a potentially deleterious impact on VOTs protection of rights and their ability to receive redress—especially when we consider the existing jurisprudence in relation to appeals of convictions by guilty pleas in this context.

The Guilty Plea Regime and Restrictions on the Ability to Appeal

Following the substitution of sub-s (1) by the Criminal Appeals Act 1995, s 2(1) of the CAA 1968 now concentrates the court’s attention on one question: whether, in the light of any arguments raised or evidence adduced on appeal, it considers a conviction ‘unsafe’ (Graham (Hemamali Krishna) [1997] 1 Cr App R 302, 307).

Notwithstanding the apparent simplicity of the test in s 2(1) of the CCA 1968, there remains a ‘theme of judicial reluctance’ towards allowing appeals against guilty plea convictions (R Nobles and D Schiff, ‘Criminal Justice Unhinged: The Challenge of Guilty Pleas’ (2019) 39(1) OJLS 100, 104). In Wilford [2007] EWCA Crim 2175, while acknowledging the court’s ‘unrestricted jurisdiction’ under s 2(1) of the CCA 1968 to entertain an appeal against a plea of guilty, Underhill J made clear (at [20]) that ‘cases where such appeals are brought and succeed are extremely rare’ and that ‘the court is, rightly and for obvious reasons, very reluctant to allow a defendant to go back on a plea of guilty’. Although these obvious reasons were not clarified, this circumspect approach to appealing convictions by guilty plea was justified in R v Asiedu [2015] 2 Cr App R 8, where Lord Hughes stated emphatically that:

a defendant who has admitted such facts by an unambiguous and deliberately intended plea of guilty, there cannot then be an appeal against his conviction, for the simple reason that there is nothing unsafe about a conviction based on the defendant’s own voluntary confession in open court. (at [19], emphasis added)

On the facts presented, there was no suggestion in the instant case that S was subjected to pressure to plead guilty by his solicitor (or the court); it is, however, not difficult to envisage circumstances in which a VOT may feel compelled to plead guilty as a result of their exploitation or a combination of factors. It is reasonable to suggest that there may be other incentives operating coercively against trafficked victims even in the absence of large charge and sentence reductions; for example, pleading guilty in order to protect the identity of their traffickers and avoid the risk of intimidation and reprisals.

Notwithstanding the myriad potential issues that may arise when attempting to ascertain whether a VOT’s plea can reasonably be construed as an unequivocal confession of guilt, the issue of central importance in the present case was whether S had pleaded on ‘an informed basis’ (at [15]). When considering this question, the respondent made the following observations. Firstly, that S had been ‘wrongly advised’ by his solicitor that the negative CG decision of the CA was, in fact, ‘conclusive’, which, for the purposes of criminal proceedings it was not (at [15]); ‘the availability of the statutory defence was not for the Competent Authority to determine, but for the jury’ (at [15]). Secondly, referring to the ruling of Simon-Brown LJ in R v Boal (at 278), they submitted that S’s solicitor had ‘erred’ in his approach to the s 45 statutory defence and conceded that if the defence had been deployed at trial it ‘would have probably succeeded’ (at [15]).

The court concluded that there was ‘at the very least some ambiguity’ with regard as to whether S was told that, despite the initial negative conclusion of the CA that he was a VOT, he could advance the s 45 defence (at [38]). The court was reinforced in its view by the fact that both the defence and prosecution at the time regarded the view of the CA as being of ‘critical importance’ (at [40]). When reflecting on the nuances about whether a document which describes itself as a ‘Conclusive Grounds Decision’ is indeed conclusive against a defendant, the court acknowledged that the distinction ‘may be lost even on well-educated lay people in this country who are fluent in English, let alone a recently arrived foreign national who is not familiar with the language and who…has been the victim of trafficking’ (at [39]). When addressing the issue of S’s guilty plea conviction, Singh LJ (at [41]) made clear that this was not a case where, to use the phrase used by Lord Hughes in Asiedu, the defendant was attempting to treat the criminal justice system as a ‘tactical game’. His Lordship, however, took care to echo the sentiments of Simon Browne LJ in Boal, stating that ‘it is only the most exceptional cases that such a course will be taken and that this should not be a licence to others to seek to go behind a guilty plea’ (at [42]).