In R v AAD, AAH, and AAI [2022] EWCA Crim 106, handed down on Thursday 3 February 2022, the Court of Appeal (Criminal Division) has outlined avenues to appeal against criminal convictions for victims of trafficking who are confirmed as such after conviction. Immigration practitioners should be aware of these appeal options when working with trafficked clients.

The two avenues to appeal are as follows:

1. Arguing that a conviction following a guilty plea is unsafe

The Court of Appeal confirmed that a victim of trafficking can submit that a conviction following a guilty plea is unsafe (see paragraphs 155-157).

The court allowed the appeal of AAH, who had received a positive conclusive grounds decision (i.e. recognising her as a confirmed trafficking victim) after entering a guilty plea. It outlined the three categories of cases where a court may overturn a conviction following a guilty plea:

1. where the defendant was deprived of a defence that was good in law;
2. in cases of abuse of process, where it was not just to try the defendant at all; and
3. where the admission of guilt was not true.

Practitioners should be aware of the defence available under section 45 of the Modern Slavery Act 2015 which applies to those who have been compelled to commit an offence due to being trafficked or enslaved.

2. Arguing that the prosecution was an abuse of process

The court also reopened the abuse of process jurisdiction for victims of trafficking issued with a conclusive grounds decision (see paragraphs 110-143).

The abuse of process jurisdiction provides a route for a trial that is unjust to be stayed. It is available in cases where

1. it would be impossible for the accused to receive a fair trial, or
2. it would be unjust to try the accused.

Where the Crown Prosecution Service ought not to have prosecuted in the first place, a victim of trafficking can appeal against a conviction resulting from the prosecution.

This is crucial in ensuring that the CPS complies with its duty of non-prosecution of trafficking victims. But following the decisions in R v DS [2020] EWCA Crim 285 and R v A [2020] EWCA Crim 1408, it had appeared that the abuse of process protection was no longer available in trafficking cases.

In AAD, AAH and AAI, the court confirmed that the CPS can prosecute a victim of trafficking despite a positive conclusive grounds decision. But “what if the CPS has failed unjustifiably to take into account the CPS Guidance or… has no rational basis for departing from a favourable conclusive grounds decision?”

In principle such a scenario would, on ordinary public law grounds, seem to operate to vitiate that prosecution decision: whether by reason of a failure to take a material matter (viz. the CPS prosecution guidance) into account or by making a decision to prosecute which is properly to be styled as irrational. Consequently, such a prosecution may, in an appropriate case, be stayed.

The court accepted that DS has been superseded by the 2021 European Court of Human Rights decision in VCL and AN v United Kingdom (application nos. 77587/12 and 74603/12), reported on Free Movement as Human rights court criticises CPS for prosecuting trafficking victims.

In that case, the Strasbourg court stated that the prosecution of trafficking victims “may be at odds with the state’s duty to take operational measures to protect them”. As such, a prosecutor must have “clear reasons which are consistent with the definition of trafficking contained in the Palermo Protocol and the Anti-Trafficking Convention” to depart from an official decision that the person is a victim.

This led the Court of Appeal bench to reject the observation in DS that if there is no sound evidential (rational) basis on which to challenge the conclusive grounds decision, then “it will still not be an abuse of process, but the judge will consider any submission that there is no case to answer”. That, the Court of Appeal in AAD said, is clearly wrong: the abuse of process jurisdiction should be available as legal redress in the event that the CPS fails to follow its own guidance (paragraph 140)

For more detailed commentary on the judgment, see this article.