Issue 168  14th November 2020

This application for leave to appeal against conviction based on fresh evidence, concerns a young man who, it is now accepted, was a victim of trafficking. A "reasonable grounds to believe" decision was made by the Competent Authority under the National Referral Mechanism ("the NRM") in his case on 2 July 2018 and on 13 August 2018, a "conclusive grounds" decision (on the balance of probabilities) was made to the effect that he was a victim of trafficking... Before those decisions and his referral to the NRM, the applicant tendered an unequivocal guilty plea (in August 2016) to a single count of aggravated burglary...

...In serious criminal cases to which Schedule 4 of the 2015 Act applies, the common law defence of duress/necessity and the four stage approach to prosecution decisions set out in the Guidance (that has express regard at stage four for the public interest) provide appropriate safeguards. Cases in which duress and the s.45 defence are not available, but where it would not be in the public interest to prosecute on the basis of a victim of trafficking's status will, we think, be rare. The seriousness of the offence will in such circumstances require an even greater degree of continuing compulsion and the absence of any reasonably available alternatives to the defendant before it is likely to be in the public interest not to prosecute an individual suspected of an offence regarded by Parliament as serious enough to be included in Schedule 4...

It seems to us that this is a case where the applicant's personal circumstances including as a victim of trafficking, were and are properly to be reflected by way of mitigation of sentence. His culpability and criminality were not however extinguished or so diminished as to lead to the conclusion that he would or might not have been prosecuted. To the contrary, the public interest dictated that the prosecution for this serious aggravated burglary should proceed. For all these reasons we are sure that his conviction is safe and accordingly we refuse the application for leave and the extension of time sought...

This application for leave to appeal against conviction has been referred to the Full Court by the Registrar. The applicant's trial for historic offences of indecent assault concluded on Friday 20 March 2020, the last working day before the Prime Minister's announcement of the Covid-19 lockdown. The sole ground of appeal is that the jury may have felt under pressure to return a verdict when they did owing to the developing public health emergency and that the convictions are therefore unsafe.

We have considered all these submissions carefully. We are not remotely persuaded that these convictions are unsafe. This was a short trial, unlike the murder trial in the adjoining court. It is no more than speculation to suggest that the jury in the applicant's trial would have thought it of any significance for their case that the other jury had been discharged... The reality here is that the jury had a full day of deliberations available to them, with no restriction on further time after that, if necessary. As it turned out, they needed only half-a-day. They required no further assistance from the judge. They plainly analysed the evidence carefully because they returned mixed verdicts. On five counts they were unanimous in convicting; on the sixth they were unanimous in acquitting. From the material placed before us , all the indications are that this was a diligent and conscientious jury. There is no reason whatsoever to think that any member of the jury was doing other than adhering fully and conscientiously to the oath they had taken at the start of the trial.

If we may say so, the experience of members of this court sitting at first instance in the Crown Court during that week in March, and indeed during the whole pandemic crisis, is that jurors have invariably treated their public duty with enormous conscientiousness and have stepped up to the mark by ensuring that justice is properly and fairly done.