Case Commentary – R v O [2019] EWCA 1389

Introduction

1. In R v O [2019] EWCA Crim 1389, the Court of Appeal gave further guidance on when a conviction may be unsafe where the defendant was a Victim of Trafficking (“VOT”). The Court concluded that there is a “settled approach to these cases”. This approach requires three questions to be posed:

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?

2. The Court referred to the 2007 guidance because this was the relevant published CPS guidance at the time the applicant in O was charged.
3. This article will set out the facts and the decision of O. It will then argue that the judgment has cemented a distinctive test under the abuse of process doctrine but fails to clarify the Court’s approach to interfering with a considered decision to prosecute.

The facts

4. The applicant applied for an extension of time and permission to appeal in respect of two convictions in July 2008 after guilty pleas. Namely, possession of a false identity document with intent contrary to section 25(1)(a) of the Identity Cards Act 2006 and attempting to commit fraud contrary to section 1(1) of the Criminal Attempts Act 1981.

5. The offences arose out of the same circumstances, after the applicant attempted to cash travelers’ cheques with a modified passport. She was sentenced to 15 months’ imprisonment and was released some years before the appeal.

6. The applicant successfully introduced fresh evidence which established that she was a VOT when the offences were committed. The Court accepted that she was subjected to repeated trafficking and forced prostitution. The
offences were found to have been carried out after her traffickers threatened a return to sex work if she did not comply.

7. The Court analysed the case law as well as the UK’s international obligations relating to trafficking. As noted in paragraph 1 above, the Court discerned that three questions should be asked in this kind of case.

8. On the accepted facts, the first two questions were answered in the affirmative and the last in the negative. The Crown agreed that no consideration was given by the prosecutor as to whether it was in the public interest to prosecute. The Court found that proper consideration would have militated against a prosecution and the convictions were accordingly quashed as the trial court would have stayed the indictment.

9. Importantly, O deals with offences committed before the Modern Slavery Act 2015 came into force. Section 45 provides a defence for victims of slavery or trafficking who commit an offence. However, this statutory defence does not have retrospective effect. The common law principles will therefore continue to be the guide for convictions outside the scope of the Act.

Abuse of process and VOTs

10. In order to overturn such convictions, the Court utilises a relatively recent common law creation; the doctrine of abuse of process. In R v Maxwell [2010] UKSC 48, Lord Dyson stated that a court can stay proceedings in two categories of case. Firstly, where it will be impossible to give the accused a fair trial. Secondly, where it offends the court’s sense of justice and propriety to try the accused in the particular circumstances of the case. In R v L(C) [2013] EWCA Crim 991, it was made clear that this second limb affords protection to VOTs who are wrongly prosecuted.

11. It appears that there is now a clear approach to VOTs as a discrete category under the abuse of process doctrine. The direct consequence of O is that when an application is made to stay a prosecution or quash a conviction because the offence is linked to trafficking, the three-stage test will be applied.

Prosecutorial discretion

12. A remaining live issue in relation to VOTs is the willingness of courts to reverse considered decisions to prosecute, meaning decisions which have evaluated the public interest to prosecute in accordance with the CPS guidance. In R v VSJ [2017] EWCA Crim 36 it was held that where proper consideration had been given, the Court should not substitute its own judgment for that of the prosecutor.

13. L(C), however, supports a different attitude. The Court said that in the context of trafficking it “will reach its own decision on the basis of the material advanced in support of and against the continuation of the prosecution.” This led the Court to say that “the prosecution will be stayed if the court disagrees with the decision to prosecute.” This disparity is compounded by the fact that both O and VSJ seem to endorse L(C).

14. In O itself, it was not in dispute that no consideration was given by the prosecutor. Therefore, although the third question posed in the O test asks whether consideration was given to the public interest in accordance with the relevant guidance, O does not clarify the correct approach where consideration was given by the prosecutor. VSJ and L(C) conflict on this point.

Conclusion

15. O represents the latest instalment in the line of cases addressing criminal prosecutions and convictions of VOTs. It gives us a three-stage test when confronted with a case falling outside the Modern Slavery Act 2015. The case law has been simplified into asking whether there is a sufficient nexus between the trafficking and offending to extinguish culpability. We also have to ask whether the prosecutor considered the public interest to prosecute. Further clarification is needed on the approach to be taken when the answer to this latter question is “yes”.

Oliver Foy