Prosecution of trafficking victim not an abuse of process

2 November 2020 by

Image: Wikipedia

R v A [2020] EWCA Crim 1408

On 29/10/2020, the Court of Appeal dismissed an appeal against an aggravated burglary conviction brought by a teenage victim of human trafficking.

The applicant’s personal circumstances, including as a victim of trafficking, were properly reflected by way of mitigation of sentence. But his culpability and criminality were not extinguished or so diminished as to lead to the conclusion that he would or might not have been prosecuted.


The Appellant was a victim of trafficking. In August 2016 he tendered an unequivocal guilty plea to a single count of aggravated burglary. This was a serious, planned, and premeditated offence involving weapons (an axe and a hammer) committed when the Appellant was 18.

In February 2017, the Appellant was sentenced without a pre-sentence report, and without any relevant information being provided concerning how he had come to commit the offence. At that time, neither the prosecution, the defence nor the court gave any consideration to the question of whether the applicant had committed offences as a result of exploitation as a victim of trafficking.

In August 2018, the Competent Authority under the National Referral Mechanism concluded that the Appellant was a victim of trafficking and that his offences were committed as a direct result of his exploitation.

Citing this decision amongst other evidence, the defendant appealed against his conviction.


Section 45 of the Modern Slavery Act 2015 (“the 2015 Act”) provides a statutory defence for some victims of trafficking to some offences. However aggravated burglary is one of a number of offences in Schedule 4 of the Act for which the s.45 defence is not available.

This appeal was not, therefore, concerned with the s.45 defence. Instead, the Appellant submitted that it was an abuse of process for him to have been prosecuted.

The enactment of the 2015 Act domestically implemented the UK’s international law obligations in relation to the treatment of victims of trafficking and modern slavery. These derive from  the Council of Europe Convention on Action against Trafficking in Human Beings 2005 and the EU Directive on Preventing and Combating Trafficking in Human Beings and Protecting its Victims 2011/36/EU.

Prior to the enactment of the 2015 Act, there was considered to be a lacuna in domestic law in relation to these international obligations. In response to this, a special abuse of process jurisdiction developed to protect victims of trafficking who commit criminal offences: in R v LM [2011] 1 Cr App R 12, a stay of proceedings on grounds of abuse was available in certain limited circumstances.  

The Appellant contended that if the CPS retains a discretion not to prosecute offences within Schedule 4 of the 2015 Act, then the court should retain the power both to prevent a prosecution from proceeding by staying the proceedings as an abuse of the process and to quash a conviction where the prosecution has failed to apply its mind to the relevant test. The Appellant submitted that there had been a failure to apply the proper tests in relation to the charging decision and the decision to prosecute. It was submitted that had the CPS guidance been properly applied, it would not have been in the public interest to prosecute at all, or alternatively, a different charging decision would have been made.

The Court of Appeal’s decision

Dismissing the appeal, Simler LJ concluded that the 2015 Act has changed the legal landscape in relation to the protection available to victims of trafficking who commit criminal offences. At [61-62] she considered that

Parliament has now considered the position and determined how those [international law] obligations in relation to criminal law should be implemented. It has done so by enacting the 2015 Act. In other words, the lacuna has been filled by legislation the scope of which cannot be circumvented.

Parliament’s decision to legislate by Schedule 4 of the 2015 Act to limit the scope of the s.45 defence (by excluding its application to serious sexual and violent offences) reflects the balance struck by Parliament between preventing perpetrators of serious criminal offences from evading justice and protecting genuine victims of trafficking from prosecution. An absolute defence for all offences was not required by the UK’s international obligations and was not adopted in the domestic legislation introduced. The CPS must, as a prosecution service independent of the executive, apply the domestic law enacted by Parliament and there can be no abuse of process when it does that.

The UK’s international law commitments did not require states to provide blanket immunity from prosecution for victims of trafficking who commit criminal offences, nor did they require that a statutory defence be available, still less in all cases.

The court considered at [64] that it would be ‘rare’ that a case would arise for which neither duress nor the s.45 defence would be available, and yet where it would not be in the public interest to prosecute on the basis of a victim of trafficking’s status. In such rare circumstances

The seriousness of the offence will […] require an even greater degree of continuing compulsion and the absence of any reasonably available alternatives to the defendant before it is likely to be in the public interest not to prosecute an individual suspected of an offence regarded by Parliament as serious enough to be included in Schedule 4.

Considering the Defendant’s high degree of culpability on the facts, a very high level of compulsion would have been necessary, and the factual circumstances of the case were not such that this threshold had been reached.

Samuel March is a pupil at 5 Paper Buildings. He tweets at @Sam_Oscar_March

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