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Court of Appeal quash trafficking victim’s 2009 conviction


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The Court of Appeal has granted an application made by a woman who was trafficked for the purposes of sexual exploitation, to quash her conviction from November 2009. She was convicted for using a false identity document when attempting to travel to the Netherlands after she had fled her traffickers. The case is BYA v R [2022] EWCA Crim 1326.

The judgment contains a helpful account of the principles to be applied in the context of out of time appeals by victims of trafficking and modern slavery. The main interest of the decision is how these principles were applied to the facts.

BYA is from Ghana and left because she feared FGM. The men who smuggled her from Ghana to the Netherlands put her in a position of debt bondage. She was trafficked in the Netherlands and forced to work as a prostitute. She was then re-trafficked to Spain to work as a prostitute after she gave birth to a child whom the traffickers separated her from. She was later re-trafficked again, from Spain to the UK, where she was also forced to work as a prostitute.

She eventually managed to escape with the Dutch identity card the traffickers had used to smuggle her to the UK. She decided to try to travel to the Netherlands and search for her child, but she was stopped by French immigration officers at the Channel Tunnel and arrested by British police. During her police interview, she admitted the elements of the offence under section 25(1)(c) of the Identity Cards Act 2006. On 17 November 2009 she was convicted at Canterbury Crown Court on her own guilty plea. She was sentenced to 12 months’ imprisonment.

Subsequently, she claimed asylum and her trafficking claim was referred to the National Referral Mechanism. She received positive reasonable and conclusive grounds decisions and was granted discretionary leave to remain. You can read more about the reasonable and conclusive grounds for victims of trafficking here. Her account of trafficking was accepted by two First-tier Tribunal judges in subsequent appeals. Her account was not disputed by the prosecution for the purposes of this appeal.

Contemporaneous records relating to the legal advice she had received and the conduct of the prosecution at the time of her conviction were not available. Nor were the records relating to the consideration of her trafficking claim.

BYA argued, and the court accepted, that she has experienced ongoing prejudice as a result of her conviction; including in her employment, and in the potential impact of the conviction on future immigration applications.

BYA waived privilege and provided a written statement and gave oral evidence about the conduct of the prosecution against her. The court accepted her evidence, including that she had not been advised about human trafficking or modern slavery law at the time of her guilty plea.

At the time of her conviction, the defence under section 45 of the Modern Slavery Act 2015 was not available. However, the UK was a party to the Council of Europe Convention on Action against Trafficking against Human Beings 2005. This meant that the prosecution had to consider the situation of victims of trafficking where there was a connection (“nexus”) between the trafficking and criminal offending in the context of whether it was in the public interest to prosecute. And the criminal courts could similarly decide that the prosecution was an abuse of process.

The factors relevant to whether a prosecution would be in the public interest were identified in CPS guidance, which the court summarised as including:

“14. …whether there was a credible suspicion that the suspect might be a trafficked victim; the nature and extent of his or her role in the criminal offence; whether the offence was committed as a direct consequence of their trafficked situation; whether there was violence, threats or coercion used on the trafficked victim to procure the commission of the offence; and whether the suspect/victim was in a vulnerable situation or put in considerable fear.

15. …in cases where there is some nexus with the trafficking, then prosecution will generally depend on factors including the gravity of the offence, the degree of continuing compulsion and the alternatives reasonably available to the defendant. Each case is inevitably fact specific and these questions are to be approached with the greatest sensitivity.”

The prosecution resisted the appeal essentially on the basis that “[w]hile the nexus of compulsion to flee her traffickers was strong… the nexus of compulsion to leave the UK was not” and there was “no evidence to suggest that she would have been safer in the Netherlands… than in the UK”.

The court accepted that BYA had been trafficked and that she had been acting under significant compulsion when she used the false identity document:

“50. …she was physically abused, threatened and compelled to stay at the house [the traffickers] maintained for prostitution. The effect of these experiences upon her must have been to cause significant trauma. When she came to this country she knew nobody save for her traffickers, to whom she was in debt bondage. She spoke no English and had very little understanding of English. She must have felt isolated and alone. She was obviously vulnerable. She knew nobody in the UK to whom she could turn for help. The traffickers told her that if she went to the police, she was the one who would be arrested.

51. This is not a paradigm case in the sense of the compulsion the applicant was under did not lead directly to the offending. On any view however, the offence was committed in the course of her forced prostitution and was a consequence of it…”

The court also accepted that BYA’s “vulnerability and isolation meant that she had little or no realistic options for seeking help”, and so could not be criticised for trying to travel to the Netherlands after she had escaped her traffickers. There was a strong nexus between the crime and the trafficking which considerably diminished her culpability. Considering the issue of public interest for itself, the court observed that the offence was “relatively minor”, she had no previous convictions and if the prosecution had been aware of the circumstances of her trafficking they might well not have prosecuted her because her culpability, or criminality, was significantly diminished.

BYA’s lawyers demonstrated impressive skill and determination in getting this case to court and persuading the court to quash the conviction. It is a decision by an all-female court which focussed on the situation faced by the victim and the limited choices available to her. It is a progressive decision and will hopefully encourage other victims of trafficking to challenge convictions where there is a connection between trafficking and criminal offending.

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Jed Pennington

Jed Pennington is a public law and human rights specialist at Wilson Solicitors, with a particular focus on judicial reviews and civil actions concerning immigration detention and migrant rights.