In BSG v R [2023] EWCA Crim 1041, the Court of Appeal quashed the convictions of a young Somali citizen, who suffered ‘a clear injustice’ after being ‘groomed, exploited and threatened’ [para 57] by a human trafficking gang in the UK.

Background

The applicant, “BSG”, had been convicted of possession with intent to supply Class A drugs. He was under 18 when the offences took place, in 2016. The court ruled that the convictions were unsafe because BSG had pleaded guilty without receiving any advice from his former criminal defence solicitors about modern slavery or human trafficking.

There were contemporaneous indicators of a potential ‘modern slavery defence’ (s45 Modern Slavery Act 2015), and the defence would probably have succeeded. This issue was only investigated years later, after BSG was assisted by immigration solicitors to respond to deportation proceedings.

The appeal

BSG sought to appeal in reliance on new evidence including a conclusive grounds decision made by the single competent authority in July 2021. This conclusive grounds decision deemed BSG’s trafficking claim to be true based on a ‘balance of probabilities’ standard of proof. More information regarding conclusive grounds decisions is available here. BSG also relied on a subsequent decision of the First-tier Tribunal made in 2022, which also confirmed, after testing BSG’s live evidence via cross-examination, that he was a victim of trafficking.

The Crown Prosecution Service asked the court to direct that BSG be cross-examined again because the credibility of his trafficking claim was disputed. They argued that BSG had offended voluntarily and that his later offending, which took place while he was an adult, was evidence to this effect. The court was asked to consider and apply guidance in AAD v R [2022] EWCA Crim 2022 at [108], that: ‘if the suggested trafficking is based, for instance, on unsatisfactory and untested hearsay evidence from the appellant, the court may express the view that it would be preferable for the appellant to give evidence’.

The Crown Prosecution Service added, relying on BRP v R [2023] EWCA Crim 40 at [63-68], that less weight ought to be given to BSG’s conclusive grounds decision because it concerned domestic trafficking. They contended that there was less need for the court to defer to the single competent authority here than there was in cases involving trafficking outside the UK.

The court’s judgment

The court ruled that it was desirable for BSG to give evidence but it was not necessary because: (i) there was no significant evidence to contradict the conclusive grounds decision and the decision was consistent with the First-tier Tribunal’s subsequent determination, which was itself ‘an important test of the applicant’s credibility’ [para 55]; and (ii) the court accepted, after considering a detailed medical report that there would be a risk of harm to BSG’s mental health if he were required to give evidence [para 52]. The court determined that BSG had already given a consistent and credible account, so it was not necessary for him to face cross-examination.

The court was clear that BSG had not been properly advised by his former criminal defence solicitors. He should have been advised about the modern slavery defence as it applies to children. The court noted that the modern slavery defence operates less strictly for children than for adults. Adults must demonstrate that they were ‘compelled’ to offend (s45(1) Modern Slavery Act 2015), whereas children must show that their offending was a ‘direct consequence’ of having been a victim of modern slavery or human trafficking (s45(4) Modern Slavery Act 2015).

The court concluded: ‘a clear injustice has been done: the applicant has put forward a credible account to the effect that he offended as a direct consequence of his having been groomed, exploited and threatened … we accept that a reasonable person in the applicant’s situation would have done the same as he did’.

Comment

Anyone who has a client in this situation should read this article which provides guidance on how people with a positive conclusive grounds decision can appeal an earlier criminal conviction.

This judgment serves as another reminder of the injustice that can ensue if modern slavery is not identified by the police or criminal defence solicitors, as it should have been in this case. It shows the continuing importance of conclusive grounds decisions in criminal appeals, even though they remain inadmissible as expert evidence at trial following Brecani v R [2021] EWCA Crim 731.

It also shows that a First-tier Tribunal determination may be significant too and that the court will assess the cogency of both such decisions against the wider circumstances. It may be that oral evidence is required from a trafficking victim but this will usually be unnecessary unless there is significant evidence to counter a positive conclusive grounds decision.

What all this also shows is how potentially damaging recent legislation is, in so far as it seeks to prevent trafficking victims who have been convicted of crimes from remaining in the UK and obtaining conclusive grounds decisions (s63 Nationality and Borders Act; s29 Illegal Migration Act; Modern Slavery Statutory Guidance).

BSG may not have been able to obtain justice from the court if these ‘public order disqualification’ provisions had been in force when the single competent authority considered his case. The related policy on public order disqualifications is subject to a judicial review to be heard in October 2023. This policy explains, at Annex E, that for anyone who has been convicted and received a prison sentence of 12 months or more: ‘Where a Conclusive Grounds decision has not yet been made, a Conclusive Grounds decision will not be made’.

This would have prevented BSG from obtaining the conclusive grounds decision which underpinned his successful appeal. The recent provisions seriously undermine protections for trafficking victims and risk making the modern slavery defence more difficult to access and therefore less effective.

Colin Gregory of Bhatt Murphy and Stephen Knight of One Pump Court acted for BSG.