UK Court of Appeal dismisses appeal by teenage victim of human trafficking against his conviction of aggravated burglary
The UK Court of Appeal has dismissed an appeal by a teenage victim of human trafficking against his conviction of aggravated burglary. The court was satisfied that the appellant’s personal circumstances had been properly weighed up and were reflected by way of mitigation of sentence.
The case concerned a victim of trafficking who, in 2016, pleaded guilty to aggravated burglary that was found to be premeditated and serious. The appellant was sentenced without consideration of what caused the appellant to commit the offence. In 2018, it was concluded that the appellant was a victim of trafficking and the offence was committed as a direct result of this exploitation.
While section 45 of the Modern Slavery Act 2015 provides a statutory defence for some victims of trafficking to some offences, it excludes the offence of aggravated burglary under Schedule 4. The 2015 Act implemented the UK’s international obligations under Council of Europe Convention on Action against Trafficking in Human Beings 2005 and the EU Directive on Preventing and Combating Trafficking in Human Beings and Protecting its Victims 2011/36/EU. Prior to enactment there was a gap in domestic law in relation to these international obligations. This led to case law where a stay of proceedings on grounds of abuse of process was available in certain limited circumstances to protect victims of trafficking who commit criminal offences.
The appellant therefore argued that it was an abuse of the process for him to be prosecuted in the first place. He argued that as the Crown Prosecution Service retains discretion not to prosecute offences captured by Schedule 4, so too does the Court to prevent a prosecution from proceeding by staying the proceedings as an abuse of the process and to quash a conviction where the prosecution had failed to apply the relevant test. The appellant claimed that that the proper test had not been applied in relation to the decision to charge and prosecute, as it was not in the public interest to prosecute.
In dismissing the appeal, the Court was of the view that the exclusion of serious and violent offences from the 2015 Act “reflects the balance struck by Parliament between preventing perpetrators of serious criminal offences from evading justice and protecting genuine victims of trafficking from prosecution. An absolute defence for all offences was not required by the UK’s international obligations and was not adopted in the domestic legislation introduced. The CPS must, as a prosecution service independent of the executive, apply the domestic law enacted by Parliament and there can be no abuse of process when it does that.”
The Court thought it rare the case wherein neither duress nor the Section 24 defence would be available, and yet where it would not be in the public interest to prosecute on the basis of a victim of trafficking’s status. In these cases, the “seriousness of the offence will […] require an even greater degree of continuing compulsion and the absence of any reasonably available alternatives to the defendant before it is likely to be in the public interest not to prosecute an individual suspected of an offence regarded by Parliament as serious enough to be included in Schedule 4.”
Given the high degree of culpability of the appellant, a high degree of compulsion would have been involved, and on the fact this threshold had not been reached.
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