Commission refers the conviction of human trafficking victim E

The Criminal Cases Review Commission has referred the cannabis cultivation conviction of E for appeal at the Crown Court.

Mr E was convicted of cultivating cannabis at Warrington Youth Court in January 2012 and was sentenced to a six month Detention and Training Order.

Mr E is a Vietnamese national who entered the UK illegally in 2010 or 2011 by lorry. He was first arrested in July 2011 while working illegally in a nail bar in Scotland. At the time social services’ assessment was that he was 15 years old. They suspected that he was a victim of human trafficking and he was taken into foster care. When he disappeared from foster care soon after,  police suspected he had been trafficked again.

Mr E was arrested again at a property in Cheshire where cannabis was being grown commercially. He pleaded guilty to the production of a controlled drug of class B contrary to of section 4(1) of the Misuse of Drugs Act 1971.

Following Mr E being recognised as a victim of trafficking, an attempt was made to appeal against Mr E’s conviction on the basis of a defence of duress.  However, the CPS opposed on the grounds that Mr E had not been compelled or coerced into cultivating cannabis as a result of being trafficked.   The appeal was withdrawn in August 2012 on the basis that there was no evidence of duress or compulsion or coercion to cultivate cannabis.

Mr E applied to the Commission for a review of his conviction in November 2013.

Having reviewed the case in detail, the Commission has decided to refer E’s conviction for appeal at the Crown Court. The referral is based on new evidence available (in addition to the evidence that was available at the time of conviction and sentence) to show that E was a credible child victim of trafficking. As a child victim of trafficking, the Commission considers that the CPS applied the incorrect test by focusing on whether Mr E was compelled or coerced into cultivating cannabis.  The CPS guidance on this matter, which reflects international law, is clear – in cases of (possible) child victims of human trafficking, whether a victim has been compelled to commit the offence does not apply.  The correct test is whether Mr E committed the criminal offence (of cultivating cannabis) as a direct consequence of his trafficked situation.  In the Commission’s view, there was before the CPS ample evidence that Mr E had committed the offence as a direct result of being trafficked.

In those circumstances, there is a real possibility that the Crown Court will vacate his guilty plea, find that it was an abuse of process to prosecute Mr E without due regard to the UK’s obligations under Article 26 of the Trafficking Convention, and not uphold the conviction

The Commission has anonymised E’s true identity because of concerns that he remains at risk of being trafficked again.

He was represented by Bhatt Murphy Solicitors, 27 Hoxton Square London N1 6NN.

This case is one of several human trafficking cases that have so far been referred to the appeal courts by the Criminal Cases Review Commission. Other cases raising similar issues are currently being investigated by the Commission. An article written by the Commission explaining the issues and the law can be seen on the Law Society Gazette website at:

www.lawgazette.co.uk/in-practice/practice-points/victims-human-trafficking-and-ccrc

This press release was issued by Justin Hawkins, Head of Communication, Criminal Cases Review Commission, on 0121 633 1806 or e-mail press@ccrc.gov.uk

Notes for editors

A referral by the Commission of a summary conviction (i.e. from a Youth Court or Magistrates’ Court) results in an appeal by way of a re-hearing at the Crown Court.

 

  1. The Criminal Cases Review Commission is an independent body set up under the Criminal Appeal Act 1995. It is responsible for reviewing suspected and alleged miscarriages of criminal justice in England, Wales and Northern Ireland. It is based in Birmingham and is funded by the Ministry of Justice.

 

  1. There are currently 12 Commissioners who bring to the Commission considerable experience from a wide variety of backgrounds. Commissioners are appointed by the Queen on the recommendation of the Prime Minister in accordance with the Office for the Commissioner for Public Appointments’ Code of Practice.

 

  1. The Commission currently receives around 1,500 applications for reviews (convictions and/or sentences) each year. Typically, around 3.5% of all applications are referred to the appeal courts.

 

  1. The Commission considers whether, as a result of new evidence or argument, there is a real possibility that the conviction would not be upheld were a reference to be made. New evidence or argument is argument or evidence which has not been raised during the trial or on appeal.  Applicants should usually have appealed first. A case can be referred in the absence of new evidence or argument or an earlier appeal only if there are “exceptional circumstances”.

 

  1. If a case is referred, it is then for the appeal court to decide whether the conviction is unsafe or the sentence unfair.