Today, there is a growing tension between the public interest in prosecuting alleged offenders and protecting defendants who are themselves victims of trafficking (VOTs). This is particularly acute for defendants under 18 at the time of an offence.
The UK media regularly features the use of youths by sophisticated criminal gangs in ‘county lines’ cases. This in turn has resulted in a comparative increase in litigation involving the national referral process (NRM) where a young defendant, who is thought to be a VOT, is referred to the Single Competent Authority (SCA) for a decision as to their status. Such is the present volume of individuals in the system that the SCA now has a considerable backlog.
In some instances, there can be a further interplay involving a defence raised by s 45 of the Modern Slavery Act 2015, which, in tightly prescribed circumstances, seeks to provide a statutory defence for a VOT to a limited number of offences. The Act makes critical distinctions between those under or over 18 at the time of the offence.
National referral mechanism
The NRM is a two-stage civil process. Within five days of any referral by a ‘first responder’ the SCA aims to provide a ‘reasonable grounds’ decision, where it ‘suspects but cannot prove’ a defendant is a victim. The next stage is a minimum period of 45 days before any ‘conclusive grounds’ decision is made. This will involve the SCA seeking to obtain more information from the various agencies involved. It should be noted that the SCA will only make a decision when it is satisfied it is in receipt of sufficient information. In practice, the parties can expect the process to involve a period far longer than the 45 days.
Step 1: Disclosure
Once an NRM referral is under way, the police have a duty to treat that individual as a potential victim of crime and to log the ongoing investigation. During the course of any parallel prosecution of the same defendant, duties as to the disclosure of information that may assist the defence will arise. In O & N v R  EWCA Crim 752, the Court of Appeal was ‘particularly struck by the candid assessment’ in a police officer’s memorandum as to whether a defendant had been trafficked and had ‘… no doubt that this would have to have been disclosed in any contested hearing…’ [9, 33].
As the NRM process evolves, defence practitioners should ensure that timely requests are made for the following:
- Verification that the prosecution has fully considered internal police/prosecution records regarding the VOT status of a defendant.
- An index to all of the information supplied to the SCA by the police and other agencies.
- The SCA Minute to any reasonable and/or conclusive grounds decision, which sets out its rationale.
Step 2: Defence engagement
In addition, careful consideration should also be given to what additional defence background material and information may be provided to the SCA to assist the conclusive grounds process, such as: (i) VOT reports and key worker contact details; (ii) school reports, documentation and education summary; (iii) details as to any foster care or other agencies involved in the defendant’s welfare; (iv) GP and medical records; (v) immigration records.
Where appropriate, due consideration should also be given to obtaining further expert reports, such as a clinical psychologist to address any pertinent issues as to mental and physical disability and inherent vulnerabilities to exploitation.
The Court of Appeal stated in R v L & Ors  EWCA Crim 991: ‘…The Crown is under an obligation to disclose all the material bearing on this issue which is available to it. The defendant is not so obliged, but if any such material exists, it would be remarkably foolish for the investigating authority to be deprived of it…’ .
Of note, and as regards any caution in providing material containing defence accounts, courts should assess any internal inconsistencies in such accounts provided by a defendant with a keen eye on the realities of similar situations in the criminal courts and VOTs, as was shown for example in R v JXP  EWCA Crim 1280 .
Step 3: Delay in criminal proceedings
There is an obvious importance for all involved in an SCA decision to ensure that the ‘conclusive decision’ comes before any actual trial of the defendant. As was pointed out by the Court of Appeal in R v EK  EWCA Crim 2961 the decision of the SCA should inform the trial process rather than the other way round.
This may give rise to a tension where, in the case of young defendants, there is (under BCM) a parallel obligation for a court to have the criminal matter determined with alacrity. As was stated in R v L & Ors: ‘… the investigation and the decision whether there should be a prosecution, and, if so, any subsequent proceedings, require to be approached with the greatest sensitivity…’ .
Gross LJ in R v S(G)  EWCA Crim 1824 further highlighted that: ‘the UK’s international obligations require the careful and fact sensitive exercise by prosecutors of their discretion as to whether it is in the public interest to prosecute a VOT’ [76 ii)]. And as was made clear in R v L: ‘the ultimate responsibility cannot be abdicated by the Court’ .
A continuing prosecution
Any assessment of the correctness of a decision to prosecute is likely to have as its backbone the CPS’ own updated guidance on the matter (CPS Guidance on Human Trafficking, Smuggling and Slavery 2018).
This guidance makes specific reference to the key international obligations as comprising: (i) Article 4 of the European Convention on Human Rights; (ii) Article 26 of the Council of Europe Anti-Trafficking Convention; and (iii) Article 8 of EU Anti-Trafficking Directive 2011/36/EU. Where there has been a positive decision from the SCA, practitioners will consider making representations to the prosecution with this document as their central plank.
The detailed guidance sets out a four-stage test. Of note, stages 2-3 are evidential stages, which (at stage 3) specify consideration of any ‘clear evidence’ of s 45 of the Modern Slavery Act. Where it is determined that there are evidential grounds to prosecute, stage 4 is a public interest test, where prosecutors should: ‘… consider all the circumstances of the case, including the seriousness of the offence and any direct or indirect compulsion arising from their trafficking situation…’
The guidance refers to the prosecution discretion as an exercise in applying scrutiny to the SCA decision and assessing its cogency ‘… to see to what extent the evidence has been analysed, weighed and tested by the CA and to assess the quality of any expert evidence relied upon…’
Abuse of process: five key principles
Where there has been a positive decision that a defendant is a VOT, and yet the CPS determines that the prosecution should continue, this may give rise to an application to stay the proceedings as an abuse of process. In R v EK Gross LJ referred to such principles as now being ‘well-travelled territory’, being those as he had earlier set out in R v S(G) [75-76], which itself emphasises parts of the ruling in R v VSJ  EWCA Crim 36 :
- A prosecutorial discretion: First, and as the court was keen to point out in R v S(G), it is important to appreciate that the decision to prosecute is a ‘discretion vested in the prosecutor and not the Court’ [76.ii]. As was made clear in R v VSJ: ‘the Court’s power to stay is a power to ensure that the State complied with its international obligations and properly applied its mind to the possibility of not imposing penalties on victims. If proper consideration had not been given, then a stay should be granted but where proper consideration had been given, the Court should not substitute its own judgement for that of the prosecutor’ [20 iii].
- No blanket immunity: Secondly, any positive decision by the SCA that a defendant is a VOT does not confer any ‘blanket immunity’ from any on-going prosecution, even where it arises from their own trafficking.
- A fact sensitive exercise: Thirdly, assessment of whether the court should permit any continuing prosecution will be an individual fact sensitive exercise: there is no ‘closed list of factors bearing on a… decision to proceed against a VOT…’
- The importance of a nexus: Fourthly, that fact sensitive exercise will primarily involve an analysis as to the degree of any interplay between the crime committed and the trafficking. As was stated by Lord Judge CJ in R v L(C)  and then re-emphasised by Gross LJ in R v S(G): ‘the distinct question for decision, once it is found that the defendant is a victim of trafficking is the extent to which the offences with which he is charged, or of which he has been found guilty, are integral to or consequent on the exploitation of which he was the victim’.
- Gravity of offences: Fifthly, the prosecutorial exercise therefore involves an assessment of culpability and to what extent it can be diminished or extinguished. In this regard, a critical question is the gravity of the offence[s]. In addition, and as regards culpability generally, issues as to a defendant’s age and medical evidence as to mental and physical disorder may also find some bite here.
Steps: Abuse of process
- Overall, whilst a positive decision from the SCA does not bind prosecutors or the court, it should nevertheless be respected, ‘unless there is a good reason not to follow’ it: R v SG [76 iii)].
- The prosecution will therefore need to be in a position to clearly demonstrate to the court a robust basis for their questioning of any positive NRM finding. R v VSJ  [re-stating a principle from R v L[C]] said that: ‘The decision of the competent authority as to whether a person had been trafficked… is not binding on the Court but, unless there was evidence to contradict it or significant evidence that had not been considered, it is likely that the criminal Courts will abide by the decision…’
- The defence should accordingly invite the prosecution to provide a document that clearly sets out: (i) the reasoning behind any decision to prosecute; (ii) what significant material is said to undermine the SCA decision; (iii) what significant material had not been considered by them.