In R v GS [2018] EWCA Crim 1824 the Court of Appeal (Criminal Division) has ruled that victims of trafficking should be allowed to rely on changes to the law and new evidence about their trafficking history when seeking to appeal criminal convictions.
The appellant, GS, was convicted in 2007 of smuggling a large amount of cocaine into the United Kingdom and sentenced to nine years and seven months imprisonment. In a subsequent asylum appeal the First-tier Tribunal found that she was a victim of trafficking and the Competent Authority, which is the Home Office body charged with recognising victims of trafficking, came to the same conclusion. GS sought to appeal her conviction and asked for a time extension of nine years for leave (permission) to appeal. Importantly, she was not able to rely on the statutory trafficking defence (contained in section 45 of the Modern Slavery Act 2015) because it does not have retrospective effect.
The Court of Appeal noted that there has been a significant change in the law on bringing criminal charges against victims of trafficking because of human rights treaties, particularly the Council of Europe anti-trafficking convention ratified by the UK in 2008. This means that even where the evidence is not sufficient for a trafficking victim to rely on the traditional common law defence of duress, prosecutors are required to show that the prosecution of a victim of trafficking is in the public interest.
The court went on to make two helpful rulings on how the change of law will affect how appeals proceed in practice. Firstly, trafficking victims meet the test for relying on a post-conviction change in the criminal law to appeal because the conviction will impact on the individual’s immigration status. There is a risk of “substantial injustice” if the conviction goes unchallenged. Lord Justice Gross commented that the risk of justice would have been sufficient to justify a nine-year time extension for granting leave to appeal if this conviction had been found to be unsafe. Secondly, First-tier Tribunal determinations and conclusive grounds decisions can be admitted as fresh evidence that the person is a victim of trafficking.
Unfortunately, having allowed GS to present her appeal fully, the Court of Appeal declined the quash the conviction. It concluded that, on the facts, even today a prosecutor could reasonably conclude this prosecution was in the public interest. Nonetheless, this judgment suggests that there is merit in out-of-time criminal appeals made by people who are recognised as trafficking victims after conviction.
