Mr K’s conviction for the production of cannabis was quashed on the grounds of abuse of process, in accordance with the decision of R v AAD, AAH, and AAI  EWCA Crim 106, despite his guilty plea and being substantially out of time.
The case demonstrates the importance of analysing with care any bad character application launched by the Crown.
Ms Bald was instructed for Mr K, a Vietnamese national, around July 2022. He was charged with the production of cannabis. The case displayed the hallmarks of modern slavery – Mr K, along with two other Vietnamese men, was found in a locked premises that had been converted into a cannabis factory. Due to these features, the Crown dropped the case against Mr K’s co-defendants. However, they chose to proceed against Mr K because he had a previous conviction for producing cannabis, for which he had pleaded guilty.
Mr K confirmed that he had only pleaded guilty because he was told that he would be released that same day. He instructed Ms Bald to review appealing that conviction.
On his eventual release from immigration detention, the Salvation Army had assisted the appellant and referred him to the NRM. He then received a Reasonable Grounds decision in 2021.
Ms Bald chased the Conclusive Grounds decision to assist her defence of the appellant for the new proceedings and challenge his previous conviction. Eventually, the NRM confirmed that Mr K was a victim of trafficking for a period that encompassed both his previous conviction AND the new proceedings.
Bound by their own guidance, the CPS reviewed the case against Mr K and despite his previous guilty plea to an extremely similar offence, offered no evidence.
Miss Bald then appealed his previous conviction on two grounds, ineffective representation (failure to run a s45 defence) and abuse of process, seeking to introduce the fresh evidence of the NRM decisions.
The Court of Appeal allowed the introduction of the fresh evidence and were persuaded by Ms Bald’s second ground – abuse of process. Despite glaring indications that he was a potential VOT, the police had failed to refer his case to the NRM. The Crown then failed to review the case against Mr K as a potential VOT. Macur LJ found there to be a ‘depressing chime’ with the factual scenario in R v AFU  EWCA Crim 23.
It is important for practitioners to note the decision of R v AAD  EWCA Crim 106, in which the court confirmed that victims of trafficking who had received a Conclusive Grounds decision could still rely on abuse of process in both trial and on appeal. Though victims of trafficking with a Conclusive Grounds decision can still be prosecuted, R v AAD set out that if the CPS had ‘failed unjustifiably to take into account the CPS Guidance’ or had ‘no rational basis for departing from a favourable Conclusive Grounds decision’, then ‘in principle such a scenario would, on ordinary public law grounds, seem to operate to vitiate that prosecution decision’ .
Mr K’s appeal emphasises the importance of practitioner’s awareness of the case law surrounding VOT’s and the duties of the police and the prosecution to be pro-active in identifying potential VOT’s.
Lisa was assisted by Finsbury Law.