Issue 151  18th July 2020

As this Court explained in Joseph, at paras. 15-16, the National Referral Mechanism ("NRM") was established in 2009 in order to give effect to this country's international obligations in relation to trafficked persons. As part of that mechanism, the Competent Authority was established in the Home Office. The terminology used by the Competent Authority is of some significance because, as noted by this Court in Joseph at para. 16, it operates under guidance issued by the Home Office, which describes the process whereby the Competent Authority first makes a decision that there are reasonable grounds to believe that a person may be the victim of trafficking; but later makes what is described as a "conclusive decision". That terminology may be the origin of some of the confusion that has arisen in the present case...

In any event, the decisions of the Competent Authority are not in truth conclusive if an issue arises in the context of criminal proceedings. The question whether a person is the victim of human trafficking is one on which the view of the Competent Authority is entitled to be borne in mind but it is not conclusive...

On the basis of that evidence, it is, to say the least, not clear to this Court that the Applicant fully appreciated that he could mount his defence under section 45 before a jury notwithstanding the negative view of the Competent Authority. There is at the very least ambiguity about what was regarded as "conclusive". The origin of the confusion may lie in the description which the Competent Authority itself gives such decisions: they are called "Conclusive Decisions" or "Conclusive Grounds Decisions" by way of contrast to the earlier stage of the process, which leads to a "Reasonable Grounds Decision". We also have to bear in mind that this Applicant was unable to speak English and needed the benefit of an interpreter. Nuances about whether a document which describes itself as a "Conclusive Grounds Decision" is indeed conclusive against a defendant may be lost even on well-educated lay people in this country who are fluent in English, let alone a recently arrived foreign national who is not familiar with the language and who (as we now know) has been the victim of trafficking...

This case concerns the use in a criminal trial of evidence obtained by members of the public acting as so-called “paedophile hunter” (“PH”) groups, and whether this is compatible with the accused person’s rights under article 8 of the European Convention on Human Rights (“the ECHR”). PH groups impersonate children online to lure persons into making inappropriate or sexualised communications with them over the internet, and then provide the material generated by such contact to the police...

For the reasons given above, I would dismiss the appeal. In relation to the first compatibility issue, I would answer that in this case there was no interference with the appellant’s right to respect for his private life and correspondence under article 8(1) by reason of the use by the respondent of the evidence obtained from the decoy in the public prosecution of the appellant. In relation to the second compatibility issue, I would answer that there was no incompatibility between the obligation on the state to protect rights arising under article 8 and the use by the respondent in this case of the evidence provided by the decoy in support of the prosecution of the appellant.

This is the judgment of the Court. The Claimant is in custody on remand, awaiting trial before the Crown Court at Leeds on an indictment alleging offences of attempted murder, wounding with intent and damaging property. His trial (with an estimated length of hearing of four days, which was scheduled to commence on 27 April 2020), was adjourned because of severe disruption to the safe operation to the Crown Court caused by the coronavirus pandemic.

We are entirely satisfied that the listing decision of the Lord Chief Justice is lawful. It is limited to the listing of jury trials, on a temporary basis, in respect of the period when it is unsafe for them to continue. We agree with Sir James Eadie QC, who appears for the Lord Chancellor and the Lord Chief Justice, that the position adopted by the Claimant is unrealistic. His trial could not have taken place any sooner without exposing all persons concerned to unacceptable health risks...

The judge's reasoning did not depend on any decision by any other person, whether the Lord Chief Justice or those who promulgated the Protocol, or anyone else. The judge considered the very specific situation that he was deciding, namely whether the trial of this defendant in Leeds could proceed at that time. Paragraph 11 of the judgment, Sir James submits, makes clear that the judge exercised his discretion carefully by ensuring that there was a review date set in the not too distant future, with a provisional trial date designated "to secure the defendant's position so far as I am able". We agree with this analysis...