O v R [2019] EWCA Crim 1389 is the latest of a series of appeals brought by victims of trafficking against historic convictions. In this case the Court of Appeal (Criminal Division) decided to quash a 2008 conviction because the prosecution had not even considered whether bringing O to court was in the public interest — despite it being obvious to everyone that she had been trafficked into the UK.

Lady Justice Thirlwall noted that “awareness of the law and procedure in relation to the rights of people who had been trafficked was limited at that time” but “those rights existed, irrespective of the level of awareness of them”. The outcome is a great result for O and will instil confidence in other trafficking victims who are seeking to challenge historic convictions on the same basis.

Trafficking victims had rights before the Modern Slavery Act

O had been convicted of a false documents offence in 2008. The offence had occurred only a few days after she had been trafficked into the UK and she had consistently told police and the court that she was ordered to commit the offence by her traffickers. Regrettably, no-one in the criminal justice system seems to have realised that this undermined the public interest in prosecuting her for the offence.

O was not able to rely on the new statutory defence available to victims of trafficking in section 45 of the Modern Slavery Act 2015 because it does not have retrospective effect. But the court confirmed that even before the statutory defence came into existence, the United Kingdom’s obligations towards trafficking victims under the European Convention on Human Rights and the Trafficking Convention were given effect through the common law and Crown Prosecution Guidance.

Thirlwall LJ identified three questions to assess whether the law had been followed at the original trial:

1. Is there reason to believe that the applicant has been trafficked?
2. Is there evidence that the offences were committed as a result of compulsion arising from trafficking? Put another way, is there sufficient nexus between the trafficking and the offending? Whichever way it is put, does it extinguish culpability?
3. Assuming the answer to each of those questions is yes, did the prosecutor consider whether it was in the public interest to prosecute, in accordance with the 2007 guidance?

Questions 1 and 2 were straightforwardly resolved in O’s favour. She had consistently given the same account to all the officials she came into contact with, to the First-tier Tribunal at her successful asylum appeal and in fresh evidence before the Court of Appeal. The fact that the offence occurred mere days after she was trafficked into the UK and under the instructions of the traffickers meant the nexus requirement was easily satisfied.

The court went on to rule that the prosecution had not given proper consideration to whether it was in the public interest to prosecute O:

In light of the clear and credible evidence that was available at the time, namely the transcript of her interview, and in the light of the CPS guidance, consideration should have been given to that question. Proper consideration would have led to a decision that it was not in the public interest to prosecute…. Unlike the court in GS we are satisfied that the facts of this case are such that on the law post the ratification of the European Convention on trafficking (ignoring the Modern Slavery Act) this prosecution would have been stayed as an abuse of the process of the court. We also consider that the outcome would have been the same on these facts had the position been considered as it should have been in accordance with the 2007 CPS guidance and the attenuated obligations upon the United Kingdom as at July 2008.

Perhaps unsurprisingly, given the shocking injustice which O had suffered by being convicted, the Court of Appeal granted her an extension of time of almost ten years and allowed her appeal.

Hope for other victims convicted of historic offences

This case is significant because it demonstrates that it is possible to succeed on challenging a historic conviction by relying on the law stated in R v GS [2018] EWCA Crim 1824, an unsuccessful challenge to historic convictions which nonetheless laid down helpful principles for future challenges). The key ingredients are a determination from immigration proceedings that the appellant is a victim of trafficking (like a conclusive grounds decision or First-tier Tribunal determination) and a clear account of the connection between being trafficked and the offence. The Court of Appeal is willing to grant long extensions of time where it can rely on the findings made in immigration proceedings to correct serious injustice.