In a pro bono case earlier this year, Chambers successfully applied to remove the previous convictions of a victim of human trafficking from her record. At Thames Magistrates’ Court it was ruled that it was in the interests of justice for her convictions of prostitution to be reopened because she was a victim of slavery and coercion. The victim had previously given evidence against her enslavers at trial resulting in their convictions. On re-opening of her eight-year-old offences, the CPS offered no evidence.

The case therefore raises the important question of how many other vulnerable individuals have been exploited and convicted, have then challenged their abusers in courts, and yet their convictions remain? 

How do we correctly acknowledge victimhood in our criminal justice system?

It is asserted that it is paradoxical to have the trafficking/slavery convictions of defendants stand alongside the convictions of exploited individuals. The two sets are mutually exclusive: an individual cannot both have been a victim of sexual exploitation through forced prostitution and a perpetrator (ie a defendant) of such conduct. It is illogical that for many individuals, the CPS has two differing characterisations of their conduct on record. In my view, the convictions are therefore erroneous in law.

The case highlights the growing concern that our criminal justice system (CJS) needs to be doing more to acknowledge victimhood and restore complainants’ ‘good’ character. It should not be the case that those subject to abuse and/or those that then go on to challenge their abusers in the courts, are onerously required to apply to the CJS under s 142 of the Magistrates’ Court Act 1980, an application which, given the delay, may not attract legal aid.

Under the current system, it is possible to apply to the police to delete some records under the Record Deletion Process. Nevertheless, as outlined in the National Police Chiefs' Council guidance, chief officers can only exercise their discretion in ‘exceptional circumstances’, and specifically those relating to non-court disposals; court convictions are not eligible.

The issue must also be seen in the context of R (QSA and others) v NPCC (1) and SSHD (2) [2021] EWHC 272 (Admin), the recent Divisional Court judgment which, troublingly for campaigners for women’s justice, found that individuals who were ‘pimped’ into prostitution as teenagers and thus have convictions for soliciting and loitering, could not prevent their criminal records from being retained (for 100 years) and being disclosed within the CJS and/or for a range of other purposes.

Complainants give evidence at criminal trials at tremendous personal sacrifice for the benefit of the UK CJS. They often lack the resources, knowledge or skills to manoeuvre a s 142 application. Moreover, many trafficking victims return to home countries where access to the UK courts, and legal advice, is almost impossible. 

Why then should the burden fall on complainants/defendants to have their previous convictions removed?

Should not our system therefore have an automatic review of previous convictions for those complainants in trials to see whether they are eligible for re-opening? Alternatively, should there be more of a discretion to expunge those convictions from the record? Similarly, should not our system be asking itself whether it is still valid to have the historic convictions of those pushed into sex work held on record? 

Only by asking these questions can we work towards properly acknowledging victimhood within our criminal justice system.