LM & Ors v R. [2010] EWCA Crim 2327

[2010] EWCA Crim 2327Case No 2O1002367 B2 201002368 B2 201002369 B2 200905815 B1 200905493 C4IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CRIMINAL DIVISION)
Venue ON APPEAL FROM MANCHESTER CROWN COURT LEWES CROWNCOURT
SOUTHWARK CROWN COURT
HIS HONOUR JUDGE HAMMOND HIS HONOUR JUDGE PRICE
MR RECORDER GERALD
T20087696 T20077100 T20077423
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 21/10/2010
Before
LORD JUSTICE HUGHES VICE PRESIDENT OF THE COURT OF APPEAL CRIMINAL DIVISIONMR JUSTICE OWENMRS JUSTICE THIRLWALL DBE
Between
LM, MB, DG, Betti Tabot and Yutunde TijaniAppellantsThe QueenRespondent
Mr C H Blaxland QC and Miss M Brewer (instructed by Registrar of Criminal Appeals) for Appellants LM, DG & MBMr J Lamb (instructed by Registrar of Criminal Appeals) for AppellantsTabot and TijaniMr P Wright QC and Mr T J Storrie (instructed by The Crown Prosecution Service for CrownHearing Hearing dates : 6 th October 2010
Judgment
[1]The five cases before us have in common the assertion that the defendants were, or had been, victims of people trafficking. They have provided the opportunity to consider the obligations of this country under the Council of Europe Convention on Action against Trafficking in Human Beings 2005 (CETS No 197), parts of the substantive criminal law which may be in issue, and the impact of particular guidelines for prosecutors which have been promulgated as a result of the convention.[2]There is no doubt that trafficking people is a signally unpleasant crime, although sadly it is by no means alone in the criminal calendar in justifying that description. Because it is often (but not always) conducted across international borders, it is particularly appropriate for inter-state agreement as to steps to be taken to attempt to deal with it. Rantsev v Cyprus and Russia (Application 25965/04) in the European Court of Human Rights, demonstrates that trafficking may fall within the scope of the prohibition on servitude contained in Article 4 of the ECHR. But the principal current international instrument, which contains specific and positive obligations upon States, is the 2005 Council of Europe Treaty. Its provisions, agreed between States, cover (1) steps to prevent and combat trafficking, (2) measures to protect the rights of victims and assist them and (3) the promotion of international co-operation. The United Kingdom is bound by this treaty. At the time of R v O [2008] EWCA Crim. 2835, it had signed but not ratified the treaty and was thus subject to the attenuated obligation under Article 18 of the Vienna Convention on the Law of Treaties to refrain from acts which would defeat its object and purpose. Now, however, this country has ratified the Convention (on 17 December 2008) and it is fully bound by it.[3]The commonplace use of the expression trafficking is probably the transportation of people across boundaries. But under this convention, trafficking is somewhat differently defined. For the purposes of the convention trafficking does not include those who provide the frequently unpleasant service of assisting voluntary illegal immigration, often at exorbitant charges. As a result the various guidelines helpfully distinguish between this kind of offence, for which they use the convenient non-statutory term "smuggling" and, on the other hand, “trafficking” in the sense used by the convention. The key to the definition of trafficking under the convention is that the act is done for the purpose of exploitation. If that is the purpose, and there is the necessary element of compulsion, fraud, abuse of power or similar means, then trafficking extends beyond transportation. Article 4 provides:
"For the purposes of this convention- (a) trafficking in human beings shall mean the recruitment, transportation, transfer, harbouring or receipt of persons by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include at a minimum the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs; (b) the consent of a victim of trafficking in human beings to the intended exploitation...shall be irrelevant where any of the means set forth in subparagraph (a) have been used. ……."
[4]The convention goes on to provide for obligations of Member States in respect of co-operation, research, efforts to discourage or alternatively to detect trafficking, the criminalisation of trafficking and the treatment of victims. Amongst those and other obligations are two provisions directly relevant to these cases for criminal courts: i) Article 10 requires States to provide means by which trained personnel are made available to identify and assist victims. It creates a positive duty to adopt measures to this end. ii) Further, and most importantly for present purposes, Article 26 provides as follows under the heading "Non-punishment Provision":
"Each party shall, in accordance with the basic principles of its legal system, provide for the possibility of not imposing penalties on victims for their involvement in unlawful activities to the extent that they have been compelled to do so."
[5]The United Kingdom has taken extensive steps to discharge its obligations under this convention. There are in existence criminal offences of trafficking. So far as Article 10 is concerned, a number of bodies, whose purpose is the identification and assistance of victims, have been established. The United Kingdom Human Trafficking Centre (UKHTC) is a multi-agency centre, one of whose functions is the identification of those who are or may be trafficked victims. A National Referral Mechanism (NRM) also exists as a mechanism through which public bodies, including criminal justice bodies, can refer individual's cases for consideration. In addition there are a number of third sector organisations whose object is the identification of those who are or may be victims of trafficking. One such is the Poppy Project, a charity largely funded by the government substantially for this purpose. There now exist also the Gangmaster's Licensing Authority and a number of other bodies.[6]These agencies are charged with the identification of persons who have "reasonable grounds for being treated as a victim of trafficking". That test is derived directly from Article 10. When a person is identified as meeting that threshold test, he or she will be eligible for a number of forms of assistance, including a period of not less than 30 days for recovery and reflection during which no steps may be taken to repatriate or remove him. Because it is the trigger for the assistance to victim provisions, the test of reasonable grounds establishes a comparatively low threshold. If it is met, that does not mean that it has been determined that the person concerned actually is a victim of trafficking, but rather that there are reasonable grounds to believe that they may be.

The application of Article 26

[7]In England and Wales the implementation of Article 26 is achieved through three mechanisms. First, English law recognises the common law defences of duress and necessity ("duress of circumstances"). Second, specific rules have been made for the guidance of prosecutors in considering whether charges should be brought against those who are or may have been victims of trafficking. Thirdly, in the event that the duty laid on the prosecutor to exercise judgment is not properly discharged, the ultimate sanction is the power of the court to stay the prosecution for what is conveniently, if not very accurately, termed "abuse of process".[8]The defences of duress and/or necessity (“duress of circumstances”) may be in question where an offence has been committed by a trafficked victim whose case is that she was coerced into committing it. There is no special modification of the general law relating to these defences. There are important limitations to both defences. Duress is a defence (except to murder and attempted murder) if the offence has been committed as the direct (not indirect) result of a threat of death or serious injury aimed at the defendant or someone sufficiently close to him. But the defence is not established if there was evasive action which the defendant could reasonably be expected to take, including report to the authorities, and nor can it be established if the defendant has voluntarily associated with people in circumstances which amount to laying himself open to the compulsion to commit offences. For these broad propositions see R v Z [2005] 2 AC 467. The separate but allied defence of necessity or ‘duress of circumstances’ is available only where the commission of a crime was necessary or was reasonably believed to be necessary to avoid or prevent death or serious injury where, objectively viewed, commission of the crime was reasonable and proportionate having regard to the evil to be avoided or prevented and the crime would not have been committed without that necessity: see the cases discussed at Archbold2010, at paragraph 17.127ff.[9]The special guidance to prosecutors issued by the CPS in order to comply with the convention imposes on them a duty which includes but is wider than consideration of these common law defences. At the time material to these cases the relevant guidance contained the following:
"Victims of human trafficking may commit offences whilst they are being coerced by another. When reviewing such a case it may come to the notice of the prosecutor that the suspect is a 'credible' trafficked victim. For these purposes 'credible' means that the investigating officers have reason to believe that the person has been trafficked. In these circumstances prosecutors must consider whether the public interest is best served in continuing the prosecution in respect of the offence. Where there is evidence that a suspect is a credible trafficked victim, prosecutors should consider the public interest in proceeding. Where there is clear evidence that the defendant has a credible defence of duress, the case should be discontinued on evidential grounds."
[10]The effect of that is to require of prosecutors a three-stage exercise of judgment. The first is: (1) is there a reason to believe that the person has been trafficked? If so, then (2) if there is clear evidence of a credible common law defence the case will be discontinued in the ordinary way on evidential grounds, but, importantly, (3) even where there is not, but the offence may have been committed as a result of compulsion arising from the trafficking, prosecutors should consider whether the public interest lies in proceeding to prosecute or not.[11]The first step is not limited to reacting to any assertion of trafficking. Article 10 makes clear that States must take active steps to consider the question whenever it is a realistic possibility. For obvious reasons, one of the consequences of trafficking, especially far from home, may be to inhibit the victim from complaining. The vital additional third obligation is consistent with the requirements of Article 26, which, it is clear, uses the word “compelled” in a general sense appropriate to an international instrument, and is not limited to circumstances in which the English common law defences would be established.[12]We observe that the latest edition of these Crown Prosecution Service Guidelines give the same advice, but couched in slightly different terms and in the context of consideration of immigration offences. Whilst immigration offences such as using false identity documents and the like are of course offences which may very commonly be committed by trafficked victims, the obligation under Article 26 is, as the earlier edition more obviously recognised, one which extends to any offence where it may have been committed by a trafficked victim who has been compelled to commit it. One of the commonest forms of trafficking is for the purpose of forced prostitution; persons trafficked for that purpose may clearly commit, under compulsion in the broad sense, offences connected with prostitution; soliciting is an obvious example. There have been cases of persons (especially youngsters) trafficked in order to be put to exploited labour in unlawful cannabis factories. There are clearly other possibilities also.[13]It is necessary to focus upon what Article 26 does and does not say. It does not say that no trafficked victim should be prosecuted, whatever offence has been committed. It does not say that no trafficked victim should be prosecuted when the offence is in some way connected with or arises out of trafficking. It does not provide a defence which may be advanced before a jury. What it says is no more, but no less, than that careful consideration must be given to whether public policy calls for a prosecution and punishment when the defendant is a trafficked victim and the crime has been committed when he or she was in some manner compelled (in the broad sense) to commit it. Article 26 does not require a blanket immunity from prosecution for trafficked victims.[14]It follows that the application of Article 26 is fact-sensitive in every case. We attempt no exhaustive analysis of the factual scenarios which may arise in future. Some general propositions can perhaps be ventured. i) If there is evidence on which a common law defence of duress or necessity is likely to succeed, the case will no doubt not be proceeded with on ordinary evidential grounds independent of the convention, but additionally there are likely to be public policy grounds under the convention leading to the same conclusion. ii) But cases in which it is not in the public interest to prosecute are not limited to these: see above. iii) It may be reasonable to prosecute if the defendant’s assertion that she was trafficked meets the reasonable grounds test, but has been properly considered and rejected by the Crown for good evidential reason. The fact that a person passes the threshold test as a person of whom there are reasonable grounds to believe she has been trafficked is not conclusive that she has. Conversely, it may well be that in other cases that the real possibility of trafficking and a nexus of compulsion (in the broad sense) means that public policy points against prosecution. iv) There is normally no reason not to prosecute, even if the defendant has previously been a trafficked victim, if the offence appears to have been committed outwith any reasonable nexus of compulsion (in the broad sense) occasioned by the trafficking, and hence is outside Article 26. v) A more difficult judgment is involved if the victim has been a trafficked victim and retains some nexus with the trafficking, but has committed an offence which arguably calls, in the public interest, for prosecution in court. Some of these may be cases of a cycle of abuse. It is well known that one tool of those in charge of trafficking operations is to turn those who were trafficked and exploited in the past into assistants in the exploitation of others. Such a cycle of abuse is not uncommon in this field, as in other fields, for example that of abuse of children. In such a case, the question which must be actively confronted by the prosecutor is whether or not the offence committed is serious enough, despite any nexus with trafficking, to call for prosecution. That will depend on all the circumstances of the case, and normally no doubt particularly on the gravity of the offence alleged, the degree of continuing compulsion, and the alternatives reasonably available to the defendant. The case of M and others, which we consider below, is an example.

Stay for ‘abuse’

[15]The availability of the ultimate sanction of a stay of proceedings on grounds of abuse was common ground before us, and is thus accepted by the Director of Public Prosecutions. We do not disagree that it is, in certain limited circumstances, available, but the limitations upon the jurisdiction must be understood. Criminal courts in England and Wales do not decide whether a person ought to be prosecuted or not. They decide whether an offence has been committed. They may, however, also have to decide whether a legal process to which a person is entitled, or to which he has a legitimate expectation, has been neglected to his disadvantage.[16]In R v Uxbridge Magistrates' Court ex parte Adimi [2001] QB 667 the Divisional Court had to consider the position where a treaty provision bound the UK not to impose a penalty, but defendants had nevertheless been prosecuted. The convention provision concerned was Article 31(1) of the Convention and Protocol Relating to the Status of Refugees which prohibits the imposition of penalties for illegal entry or presence upon illegal entrants coming from a place of persecution as refugees where they have presented themselves without delay to the authorities. At that time the UK had done nothing to implement the convention and prosecution decisions were made without regard to it. The position as to that convention has now changed because the new section 31 of the Immigration and Asylum Act 1999, inserted by the Identity Cards Act 2006, provides a statutory defence mirroring the treaty obligation. In Adimi it was held that the treaty obligation, accepted by the State by ratification of the convention, created a legitimate expectation in a defendant that the immunity given by the convention would be applied to him if he was within the Article (Simon Brown LJ at 686 and Newman J at 690 and see R v SSHD ex p Ahmed [1998] INLR 570, 583 per Lord Woolf MR). By the time of the hearing, the imminent creation of the statutory defence made it unnecessary to grant relief beyond declaratory judgments. Simon Brown LJ made passing reference at page 684E to his provisional view that “…I am inclined to conclude that, even without enacting a substantive defence under English law, the abuse of process jurisdiction is able to provide a sufficient safety net for those wrongly prosecuted.” For his part, Newman J made it clear that the power to stay could exist where proper consideration had not been given to whether the convention immunity existed or not, but not to decide a contested question of whether the defendant qualified or not: see 694F-695E.[17]R v Asfaw [2008] UKHL 31, [2008] 1 AC 1061 concerned the same Article 31 of the Status of Refugees Convention, but after the enactment of the statutory defence provided by s 31 Immigration and Asylum Act 1999. The defendant was prosecuted on two counts. The first was using a forged passport. The second was an attempt to obtain air services by deception arising out of precisely the same facts. The first offence is within the scope of the statutory defence under section 31 (see s 31(3)), but the second is not. The House of Lords held that there was no canon of construction by which section 31 could be interpreted as extending to count 2 (Lord Bingham at paragraph 28 and Lord Hope at paragraph 69). Nor could the defendant have any legitimate expectation that there would be no prosecution under count 2 since the convention did not stand alone and Parliament had explicitly limited the application of Article 31 to the offences listed in s 31(3) (paragraphs 30 and 69). Nor was it an abuse of process to prosecute in the first place, since the Crown was entitled to put to the test the defendant’s assertion that she was a refugee (paragraph 31). It was however an abuse either to use the addition of count 2 as a device to evade the limitations of section 31(3) or at least to continue to conviction after the jury had acquitted on count 1. What ought to have happened, it was held, was for count 2 to be stayed pending a decision of the jury on count 1, and for the stay to become permanent if there was acquittal on count 1. Thus the existence of the abuse of process jurisdiction was recognised to a limited extent and in effect for the purpose of ensuring that the UK’s international obligation under the convention was not infringed.[18]It is to be noted that the treaty obligation under the convention in question in these two cases was an obligation to give immunity (in respect of certain kinds of offence and on certain conditions). The treaty obligation which we are considering under Article 26 is not an obligation to grant immunity, but rather an obligation to put in place a means by which active consideration is given to whether it is in the public interest to prosecute. We accept that the power to stay for ‘abuse’ exists as a safety net to ensure that this obligation is not wrongly neglected in an individual case to the disadvantage of the defendant.[19]We make it clear that the occasions for the exercise of this jurisdiction to stay ought to be very limited once the provisions of the convention are generally known, as by now they should be becoming known. Moreover, the jurisdiction to stay does not mean that the court is entitled to substitute its own view for that of the prosecutor upon the assessment of the public policy question whether a prosecution is justified or not. The power to stay is a power to ensure that the convention obligation under Article 26 is met. The convention obligation is to provide for the possibility of not imposing penalties on victims for their involvement in unlawful activities to the extent that they have been compelled to do so. Thus the convention obligation is that a prosecuting authority must apply its mind conscientiously to the question of public policy and reach an informed decision. If it follows the advice in the earlier version of the guidance, set out above, then it will do so. If however this exercise of judgment has not properly been carried out and would or might well have resulted in a decision not to prosecute, then there will be a breach of the convention and hence grounds for a stay. Likewise, if a decision has been reached at which no reasonable prosecutor could arrive, there will be grounds for a stay. Thus in effect the role of the court is one of review. The test is akin to that upon judicial review. To the extent that Mr Blaxland QC submitted that there was a different test, derived from the proportionality test to be applied where there is an infringement of the primary requirements of one of the qualified articles of the European Convention on Human Rights (R v Home Secretary ex p Daly [2001] UKHL 26; [2001] 2 AC 532), we disagree since the question here is not of proportionality in that special sense, but as Lord Steyn observed in that case (at paragraph 27) the two tests will in most cases yield the same result.

Awareness of the Convention

[20]It is apparent that at present the provisions of the convention, and particularly of Article 26, are not sufficiently known generally amongst the profession. In R~v O [2008] EWCA Crim. 2835 this court drew attention to the importance of the terms of the convention. In that case a defendant, who appears to have been only 17 years of age, had been dealt with in the Crown Court for an offence of possessing a false identity card. Her case was that she had come to this country aged 16 to avoid an arranged marriage in her home country to a 63-year-old man who had five wives already. Her case was that on arrival she was exploited as a prostitute and that she had committed the offence in the course of an effort to escape to France. She had been assessed by the Poppy Project as a credible victim of sex trafficking. Nevertheless, there had been no consideration given to the question of whether it was in the public interest to prosecute her, no thought had been given to whether she might have a defence of duress and indeed nobody addressed themselves to the fact that if she was under eighteen, as she appeared to be, she should not have been dealt with in the Crown Court at all. We echo the concern there expressed as to general awareness of the convention. Two of the cases before us were also cases where the convention was either not considered or misunderstood. There is now a brief note of R v O in the current (third) supplement to the 2010 edition of Archbold at paragraph 17-119 in the context of the treatment of duress. Consideration might usefully be given by the editors to whether a clearer reference to the convention and its effect might appear both there and perhaps elsewhere in this work – for example in the section relating to abuse of process, and maybe in relation to prostitution offences.[21]We make it clear, however, that R v O is not authority for the broad proposition adopted in some of the correspondence which we have seen, and particularly at some points in reports of the Poppy Project, where it is asserted that that decision establishes "that a person thought to be trafficked should not be prosecuted for crimes committed as a result of the trafficking situation." That, for the reasons which we have explained, is too wide a proposition.[22]Also too wide, at least if taken out of the context of a longer discussion with which we respectfully agree, is the following proposition which appears in the Equal Treatment Bench Book issued by the Judicial Studies Board in October 2009, also said to be based on R v O:
"The courts have made it clear that victims must not be punished for breaches of the law where they arise as a consequence of their trafficked status."
[23]We come accordingly to the particular cases before us.

LM, DG & MB

[24]These three women defendants have been convicted of offences of controlling prostitution, for the gain of themselves or another, contrary to s 53 Sexual Offences Act 2003.[25]On two successive days in October 2008 police officers rescued two women (MN and MM) who were working as prostitutes in two linked brothels in Manchester and Birmingham, apparently under coercion. Those two women (“the complainants”) had come from an Eastern European EU country and were treated throughout as exploited trafficked victims. At or about the same time, the police arrested the three women defendants, who were found apparently in a position of control in one or other of those brothels or, in one case, in yet a third. It has always been the Crown case that the principals responsible for running the brothels, and for bringing the complainants and other women to this country, were two or three men, none of whom was in evidence at the time of the police visits to the premises. We do not name them since some of them have yet to face trial themselves.[26]The present three defendants were interviewed under caution. None suggested that she had herself been trafficked, and one of them said that she had originally come voluntarily to the UK to work as a prostitute. Nevertheless they came from the same EU country and, on the day of their interviews only a day after their arrests, a CPS pre-charging note recorded that although none had asserted it, “the police believe that they were probably trafficked into the UK themselves.”[27]The Crown case against these three defendants was, and remained until a late stage of their appearance in the Crown Court, that although they had originally been trafficked victims, they had assumed the role of controllers of prostitution by others. There was some evidence that they had not merely acted as more experienced prostitutes than the more recently arrived complainants, but had taken a leading part in introducing them to what was required, and had themselves used threats, violence and sexual abuse in order to achieve the compliance of the later arrivals. This evidence was not entirely one way. It was arguably qualified by evidence from the complainants to the effect that the defendants had little choice. The CPS decision, however, was that the evidence of active threats and/or violence was such as to justify prosecution even though the defendants had arrived here as trafficked victims and had themselves been exploited in the past.[28]In due course, although not for some months, the defendants made it clear by defence statements and otherwise that their case was that they were in essence in no different a position from that of the complainants except that they had been here longer. They denied any active threats, violence or sexual abuse and asserted that they had done whatever they had done by way of encouraging the prostitution of others, or helping to collect their earnings, only under the coercion of the men.[29]At a late stage in the Crown Court proceedings, and when trial was imminent but no jury had yet been sworn, the Crown decided to accept pleas of guilty from these three defendants upon a basis. The basis was reduced into writing on behalf of two of the defendants, and although it was not in the third case, as it should have been, it is plain that everyone proceeded on the footing that the same applied to her. The basis was that there had been no violence, threats or sexual abuse, that they had been trafficked, beaten and coerced into prostitution themselves, and that anything which had amounted to controlling prostitution had been done under pressure, albeit falling short of the defence of duress. The Crown in effect accepted these bases of plea. The acceptance was not as clear as it ought to have been, and it was not satisfactory to assert simply that where there was any disagreement no trial was sought. But the effect was clear: the defendants were henceforth to be dealt with on the basis which we have set out.[30]Up until then it is clear to us from the internal CPS papers disclosed that the provisions of the convention and of the CPS guidance had been fully in mind and a reasoned decision arrived at that notwithstanding Article 26 the defendants ought to be prosecuted because they had moved from being simply victims to being exploiters of others by force and threats. It is also clear that at the Crown court the legal representatives of the defendants were alive to the convention and guidance. However, there was a fundamental change in the situation when once their cases as set out in the bases of plea were accepted. At that stage it is plain that no-one on behalf of the Crown applied their mind to the question whether in the changed circumstances there was a public interest in continuing prosecution. As a matter of history that may be in part because a key prosecution officer was elsewhere, but whatever the reason, the question was never considered. For the Crown before us, Mr Wright QC and Mr Storrie, who did not appear below, has now considered the case in no little detail, together it is clear with senior lawyers within the CPS. His submission to us is that if the Article 26 question had been confronted afresh, as it should have been, when the new factual basis was accepted, there could only have been one conclusion, which was that the prosecution should be abandoned by the offering of no evidence. On the facts of this case, we agree. Either the Crown should have offered no evidence or, if it had not, an application for a stay of proceedings on the basis which we have explained above ought to have succeeded on the grounds that any Crown decision to proceed was one which no reasonable prosecutor could make.[31]For the defendants, Mr Blaxland QC advances the additional contention that there was a breach of the convention in ever prosecuting these women in the first place. He contends that that there was a breach of Article 10 because no one on the prosecution side referred any of these women to the UKHTC, or the Poppy Project, so that they could be assessed with a view to identification as credible victims of trafficking who satisfied the reasonable grounds test to which we have referred at paragraph 6 above. Alternatively, he contends, at least the prosecution should have advised the solicitors for the defendants of the availability of these referral agencies. Those failures themselves, he contends, render the decision to prosecute unlawful and justify the quashing of the convictions in this court.[32]We reject that extended submission. First, a breach of Article 10, if it occurs, is certainly to be deplored, as this court did deplore it in R v O. But a breach of Article 10 does not, by itself, render a prosecution unlawful, or amenable to a stay on the basis which we have explained. It is a breach of the duty properly to consider the Article 26 question which may do so. We agree that in a case where trafficking is an obvious possibility, the police should enquire into it. Here they did, by raising it with the defendants in interview and by forming the view, notwithstanding the denials of the women, that they probably had been trafficked. We agree that the defendants ought to have been referred to the identification agencies, because other possible measures apart from decisions about prosecution might follow. That is the more important where the immigration status of the person concerned is perilous, which it is particularly likely to be if the country of origin is a non-EU State. Where a defendant has solicitors acting for her, it seems to us, however, that unless there is something unusual about the case the obligation of the police is met by reminding the solicitors of the availability of the identification agencies. It does not appear to us desirable that the police should be required to refer such persons against their own opposition, informed by legal advice. The situation of an unrepresented defendant may well be different.[33]Second, on the facts of this case, we are entirely satisfied that whilst it remained the Crown case, on a fair assessment of the evidence available, that the defendants had, although previously victims of trafficking, become voluntary abusers of others through violence and threats, that justified a decision to prosecute. That case might or might not be made out, but it was in no sense unreasonable to decide to assert it.[34]The reason why this appeal must be allowed is thus not on the extended basis elegantly advanced by Mr Blaxland, but because the Article 26 duty was simply ignored at the point where the factual basis changed, and if it had been discharged it could have produced only one answer. For that more limited reason, we allow the appeals of all defendants, as we are invited to do by the Crown, and we quash their convictions.

Tabot

[35]This defendant was convicted on her plea of guilty of an offence of possessing a false identity document with intent contrary to section 25 Identity Cards Act 2006. She had been arrested at Waterloo station en route for France, presenting a French identity card belonging to someone else to the Eurostar exit barrier. When she was interviewed she said that she came originally from the Cameroon, but had lived in France since 2004. She had crossed to England in order to collect the belongings of a friend of hers called Lucy, who had returned to Nigeria leaving possessions in Reading. She had been here only a few days for that purpose. She was carrying four suitcases of personal possessions. She said that she had found the identity card in the street in France a few days before making the trip. The card was in the name of Ashu Mbengi, stated to be the spouse of a man called Dominguez. She gave much the same account to her solicitor a few weeks later in prison.[36]By the time of her appearance at the Crown court, but not significantly before, she had written a handwritten letter for the Judge. In it she said that she had been tricked into being brought from the Cameroon to France and made to work as a prostitute for nearly three years, being beaten when she tried to escape. The man responsible had then brought her to London to continue. She stated that “my involvement in false document was a desperate measure to escape for safety.”[37]There is no sign that anyone representing the defendant adverted at any stage, including at court when presented with this letter, to the possible application of the convention. Nor had the police or CPS, but they had no reason to do so. But what is now clear from documents supplied under waiver of privilege is that counsel instructed to appear for the defendant explored her account in some detail. When he asked her to tell him about her trafficking and experience of enforced prostitution she was unable to give him any account at all. When he asked her to tell him about her escape and beating, she could tell him nothing, including whether or not she had been in hospital in a position to tell someone about her situation. She said that she had been in Manchester (not Reading) during her few days in England but was unable to say whether she had done any work as a prostitute there. She was unable to say where the four suitcases came from. It transpired that her account was that although she had been brought from France to the UK by her trafficker under compulsion, she had travelled inwards on the same identity card, and that she had found on the floor of the outbound terminal on leaving. The ticket on which she was travelling was nevertheless in the name of Mrs Dominguez, that is to say it conformed to the false card.[38]It is true that since her conviction the defendant has been assessed by the Poppy Project as meeting the reasonable grounds test. It is also true that subsequently, before an Immigration Tribunal, her status as a trafficked person was accepted by the Home Office, and accordingly a finding to that effect was made by the Tribunal. But neither of those bodies had available the information which is now to hand about her first account to counsel, and both dealt with the matter on her unchallenged assertion.[39]If she were indeed a trafficked person making an attempt to escape, and was using the false document for that purpose, Article 26 would apply. In that event there would be a clear breach in that nobody considered whether or not the public interest lay in her being prosecuted, and on those facts it almost inevitably would not. But on examination of her assertion we are satisfied that it is not credible. Her inability to give any circumstantial history whatever after several years, fundamental inconsistencies in her accounts, and the rank implausibility of her trafficker bringing her to England under compulsion but leaving it to the chance finding of an identity card on the terminal floor to provide her with identification for the journey, never mind her assertion that he had also provided her with a ticket for return, together mean that we are satisfied that no breach of the convention has occurred. In those circumstances Mr Lamb on her behalf rightly acknowledged that there could be no legitimate complaint about the sentence either.[40]For those reasons we refuse leave to appeal both conviction and sentence.

Tijani

[41]This defendant pleaded guilty to two offences. The first was of using a false identity document (a forged Nigerian passport) with intent, contrary to section 25 Identity Cards Act 2006. The second was of fraud by producing a false national insurance card on the same occasion. She had produced both documents when applying for a full time job in a care home in Sussex. She had been working at the home for about 3-4 months as a temporary worker supplied through an employment agency.[42]When the falsity of the documents was appreciated and she was arrested, she said in interview that she had come from Nigeria on a valid passport, having paid a woman to bring her here and find her a job. She had lived with that woman in London for two years from 2005 to 2007, but the other had then left the country, leaving the defendant with the false documents.[43]However, by the time of her impending appearance in the Crown Court her account to her solicitors was that she had run away in her native Nigeria to escape an abusive husband, leaving her two children. In a church she had been befriended and introduced to a woman, whom she had paid £1000 on account to bring her to the UK, with a further debt due. Once in the UK, she had been imprisoned by the woman who had assisted in bringing her here, and forced to prostitute herself over a period of more than a year. About two months after arrival she had been drugged by being given a glass of water and when she came to found that a man was having sexual intercourse with her. After that she was similarly drugged and thus subjected to sexual abuse several times each day. She was beaten or left without food if she objected or tried to leave. She came to be working at the care home because the time came when her controller suddenly packed up and left, saying that she was going to America. She drove her out into the country somewhere and dumped her, but gave her the false passport and national insurance card as she left. She “found the number of a Nigerian lawyer” who put her in touch with someone with whom she stayed initially, then found her way to Hove, registered with an employment agency and worked at the Care Home for some months before applying for the full time job.[44]Her solicitor was alive to the convention. The defendant was assessed by the Poppy Project as a credible victim of trafficking. Her solicitor addressed the question of possible discontinuance under the convention but concluded, and advised the defendant, that that would not be appropriate because she was in possession of the passport herself, rather than it being in the hands of a trafficker. For the reasons which we have set out above, that by itself would not take the case outside Article 26 providing the defendant committed the offence as result of the trafficking and when compelled to do so.[45]The Crown submits that the defendant’s account is not credible. It points to the implausibility of the account of daily drugging, and of the assertion that the defendant should be dumped but given false documents. We agree that there are no small difficulties in the way of the detail of the defendant’s account, but it remains possible that the underlying assertion of trafficking is true, even if embellished. What however is clearly fatal to any reliance upon the convention is the fact that for some months before the offences were committed the defendant had been entirely free of any exploitation which she may have suffered and had been living a wholly independent life. Certainly she was living as an illegal immigrant, but that is quite different from remaining a trafficked victim, or being in the course of flight from such a position. It cannot be said that she committed the offences in an effort to escape her trafficked exploitation, because she had long been free of it. The reality is that she committed the offences because she wished to continue to live, unlawfully, in this country, and to work here when she was not entitled to do so. It may be understandable that she should do this, but so it is for many illegal immigrants. The offences were not committed under the necessary nexus of compulsion (in the broad sense) with her trafficking.[46]There were some procedural irregularities which attached to the progress of her case through the magistrates’ court and Crown Court, but those would not affect the ability of this court to see justice done if the convention applied, if necessary by reconstituting ourselves as a Divisional Court to allow the defendant to vacate a plea entered in the magistrates’ court to the second charge. But that does not, in the circumstances, arise. For the reasons given, there are no arguable grounds for challenging the convictions and leave to appeal them must be refused.[47]The Judge, however, was ready to accept the real possibility that the defendant had been trafficked in the past. We have concluded that fairness requires that she be dealt with on that basis. That provides substantial mitigation and a reason against passing the tariff sentence of 9 months which was imposed. We give leave to appeal against sentence, quash that sentence and replace it with one of 4 months. In the same circumstances, the recommendation for deportation was also inappropriate; her immigration affairs should be left to the relevant authorities. Accordingly we quash the recommendation for deportation. To that extent the appeal against sentence is allowed.

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