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CRIMINAL DIVISION
Strand London, WC2A 2LL |
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B e f o r e :
MR JUSTICE PHILLIPS
MR JUSTICE JULIAN KNOWLES
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R E G I N A | ||
v | ||
JXP |
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Mr A Johnson appeared on behalf of the Crown
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Crown Copyright ©
This transcript is Crown Copyright. It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority. All rights are reserved.
WARNING: Reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice.
LADY JUSTICE NICOLA DAVIES DBE:
i. He is a victim of trafficking ("VoT").
ii. There was a clear nexus between his trafficking and the commission of the offence.
iii. If his status as a victim of human trafficking had been known at the time of the proceedings below a decision would have been made not to prosecute him.
iv. Alternatively, had such a decision not been made there would have been grounds for the Crown Court to stay the proceedings as an abuse of process.
The applicant's immigration proceedings
The criminal appeal proceedings
Extension of time
Fresh evidence
i. Two witness statements made by the applicant dated 11 May 2015 and 13 February 2018;
ii. The decisions of the Competent Authority;
iii. A psychiatric report by Dr Obuaya dated 13 November 2015 and medical records from immigration detention and from his NHS general practitioner.
Background
The Crown Court proceedings
"I [JXP] have decided to plead guilty to count 1. I know by this guilty plea, I am admitting to being involved in the production of cannabis at the factory where I was staying. I know that the prosecution will accept that I played a lesser role in the enterprise and the Judge has indicated that I would receive a suspended sentence order if I plead guilty. I wish to plead guilty on the basis that I was only there and involved between 8th and 16th November. I do not put forward any other basis. I have made this decision of my own free will and no pressure has been applied."
The applicant's statements made subsequent to the Crown Court proceedings
i. The applicant stated that he "hadn't given a full account of [his] experiences to the Home Office before" because he was ashamed as to how he had been "deceived by a group who brought me to China and then Russia". He had to draft previous witness statements in connection with his immigration proceedings himself. He told his girlfriend what he wanted to say and she wrote it in English.
ii. In 2008, a man who had previously hired the applicant offered him a job in China. The applicant and another male travelled in a truck to their destination, which was in a remote area. They worked long hours at a dying factory. After a month they asked about their salary and were told they had been sold to China to work for no salary. As punishment for asking, they were beaten and deprived of food. They decided to escape but were caught by guards. The applicant did not see the man again but he heard the guards talking of throwing him off a mountain. He was hit and injured by the guards. His injuries became infected and he was injected.
iii. After ten days the applicant was transferred to another place, where he was injected every day. When the injections stopped he felt uncomfortable, tired and nauseous. When he told the guards about this, they injected him again and he felt better. He was told that if he wanted to be "happy" he had to follow instructions. The applicant was forced to have sex with men three to four times a week, for which he received no payment. He was put in a room, injected with drugs and not allowed out. He did not ask to be paid as he was dependent on the drugs.
iv. In May 2009, the applicant was taken on a train with a Chinese man. He was later told he was in St. Petersburg, Russia. He did not try to escape because he was dependent on drugs. When he arrived he was placed in various flats where he was expected to engage in sex with men. He was always guarded. He was given food. He was not paid but he was given drugs.
v. After more than a year in Russia the authorities raided the flat and the applicant was taken to a police station. He was interviewed. He explained that he had been forced to do sex work. The Russian authorities contacted the Vietnamese embassy and the applicant was sent back to Vietnam. When he arrived in Hanoi he was arrested by the police and detained. He suffered heroin withdrawal symptoms in detention. On his release he returned to his father's area and was again detained by the police.
vi. As a result of his sexual exploitation the applicant suffers from hepatitis B and C and severe haemorrhoids.
vii. Following his release from police detention the applicant's aunt made arrangements for him to leave Vietnam. She told him to follow the instruction of those he was travelling with. He was taken to the Chinese border in a lorry. He entered China by foot. He flew to Russia. He entered Russia using a passport that was not in his name. The people he was travelling with kept his passport. He was taken to a house. The people he was with promised they would arrange his journey for him and they would arrange work for him so he could repay them.
viii. The applicant travelled with others by truck, lorry and on foot. He did not know the places he travelled through. He arrived in the UK in or around August 2011. He and about five others were taken to a service station. A man was waiting there. He took them in the car to a house.
ix. At the house was a man named Mr Vu and two guards.
x. The applicant was told that he would be found a job. The applicant stayed in a room with two other men. One night the applicant managed to escape while the guards were drunk.
xi. The day after the applicant escaped he met another Vietnamese male to whom he told his story. The male said he could stay temporarily at his house. He stayed for about two weeks, helping with housework and cleaning. He met a woman who subsequently became his partner. She was an acquaintance of the man who helped him. They became friends. In October 2011, they moved in together.
xii. In November 2011, the applicant had an argument with his then partner and moved out. The applicant did not know that she had become pregnant. She gave birth to their child in July 2012. He telephoned a friend with whom he had travelled to the UK: HVN. HVN told the applicant to travel to him in Nottingham. On the journey the applicant became lost and arrived at Long Eaton station. He called HVN, who said that his friend would collect the applicant and bring him to Nottingham.
xiii. A Vietnamese lady approached the applicant. She asked if was lost or waiting for someone. He called HVN. The lady spoke with HVN. HVN told the applicant to go with the lady for the night. She took him to a house and said that he could stay for a few days before meeting HVN. At the house the applicant saw Mr Vu again. The applicant was told that the lady would contact HVN for him. His mobile phone was taken away.
xiv. The applicant was asked to help get water into a tank. He did so. He was then asked to go and water plants. He entered a room. He saw "a lot of lighting and plants and a complicated electricity system. It appeared to be cannabis". The room was hot and there was a strong smell. He refused to water the plants but was told that if he did not do so he would be killed. The applicant was punched. His arm was burnt with a lightbulb. He was told not to tell anyone. He was not permitted to leave the house. He was locked in a room in the warehouse. The western boss had locked all the doors, the applicant could not leave.
xv. Three "western men" were present during the day but not the night. One of the men was in charge. Mr Vu told the applicant that they had spent £30,000 in bringing him to the UK. He "had to work for them in order to pay that off". The traffickers told the applicant that if he returned to Vietnam they would find him and kill him.
xvi. Mr Vu was not the "big boss". The applicant did not know him from Vietnam. Mr Vu had told the applicant that if he was arrested he should say that he knew Mr Vu from Vietnam and was only staying in the house.
xvii. The applicant had his own phone when he arrived at the house. He tried to use it to call friends but it was taken away. The phone on his person when he was arrested did not belong to him. He had picked it up when leaving the property to try to call someone after he had fled. He did not know who it belonged to.
xviii. The applicant was allowed to use the laptop that was taken from him for one to two hours a day to play computer games. Mr Vu allowed him to use it as he was upset. It was not connected to the internet.
xix. He was scared to speak to the police when arrested as there is a lot of police corruption in Vietnam. He had been threatened by the traffickers and was cautious of the police. He was afraid that the traffickers may find and kill him. The applicant was not sure if the police were connected to his traffickers.
xx. The applicant did not provide the full picture in his asylum interview. He was threatened by Mr Vu not to reveal what had happened to him. He was told by Mr Vu that the western men "have connections everywhere, even in Vietnam" and was worried about repercussions.
xxi. The applicant entered a plea on the advice of his solicitor to reduce his sentence. He did not want to plead guilty.
Psychiatric report
The medical records
Conclusive Grounds Decision
The law
"... the recruitment, transportation, transfer harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs."
"i) The obligation under Article 26 of the Council of Europe Convention is given effect in England and Wales through (1) the common law defences of duress and necessity or (2) guidance for prosecutors on the exercise of the discretion to prosecute (which has been revised from time to time) or (3) the power of the court to stay a prosecution for abuse of process (see R v M(L), B(M) and G(D), 2010 at paragraphs 7–12)
ii) In a case where (a) there was reason to believe the defendant who had committed an offence had been trafficked for the purpose of exploitation, (b) there was no credible common law defence of duress or necessity but (c) there was evidence the offence was committed as a result of compulsion arising from trafficking, the prosecutor has to consider whether it is in the public interest to prosecute. (See: R v M(L), B(M) and G(D), 2010 at paragraph 10.)
iii) The court's power to stay is a power to ensure that the State complied with its international obligations and properly applied its mind to the possibility of not imposing penalties on victims. If proper consideration had not been given, then a stay should be granted, but where proper consideration had been given, the court should not substitute its own judgment for that of the prosecutor (see R v M(L), B(M) and G(D), 2010) at paragraph 19).
iv) Where this court concludes that the trial court would have stayed the indictment had an application been made, the proper course is to quash the conviction, (see R v M(L), B(M) and G(D), 2010) at paragraph 17).
v) The obligation under Article 26 does not require a blanket immunity from prosecution for victims of trafficking. Various factors should be taken into account in deciding whether to prosecute; if there is no reasonable nexus of connection between the offence and the trafficking, generally a prosecution should proceed. If some nexus remained, then prosecution would depend on various factors including the gravity of the offence, the degree of continuing compulsion and the alternatives reasonably available to the defendant. Each case was fact specific. (See R v M(L), B(M) and G(D), 2010 at paragraph 13–14).
vi) The distinct question for decision in the case of a trafficked defendant is the extent to which the offences with which he is charged (or of which he has been found guilty) are integral to or consequent on the exploitation of which the person was a victim (see R v L(C), N, N & T, 2013, at paragraph 33). The court made clear such a decision is a fact sensitive one:
'We cannot be prescriptive. In some cases the facts will indeed show that he was under levels of compulsion which mean that, in reality, culpability was extinguished. If so, when such cases are prosecuted, an abuse of process submission is likely to succeed. That is the test we have applied in these appeals. In other cases, more likely in the case of a defendant who is no longer a child, culpability may be diminished but nevertheless be significant. For these individuals prosecution may well be appropriate, with due allowance to be made in the sentencing decision for their diminished culpability. In yet other cases, the fact that the defendant was a victim of trafficking will provide no more than a colourable excuse for criminality which is unconnected to and does not arise from their victimisation. In such cases an abuse of process submission would fail.'
vii) The reason why the criminality or culpability of a trafficked person is diminished or extinguished does not result merely from age but in circumstances where there has been no realistic alternative available to the person but to comply with the dominant force of another individual or group of individuals (see R v L(C), N, N & T, 2013 at paragraph 13).
viii) The decision of the competent authority as to whether a person had been trafficked for the purposes of exploitation is not binding on the court but, unless there was evidence to contradict it or significant evidence that had not been considered, it is likely that the criminal courts will abide by the decision (see R v L(C), N, N & T, 2013 at paragraph 28)."
i. Is there credible evidence that the applicant falls within the definition of the trafficking in the Palermo Protocol and the Directive?
ii. Is there a nexus between the crimes committed by the applicant and the trafficking?
iii. Is it in the public interest to prosecute?
Grounds of appeal
"The extent to which the crime alleged against him was consequent on and integral to the exploitation of which he was the victim."
The definition of human trafficking encompasses threats of violence within the means amounting to coercion. There is strong evidence that the applicant was subjected to threats of violence which gave him no choice but to help cultivate the cannabis. His traffickers used violence against him, burnt him with a lightbulb and locked the door so he could not leave. They took his phone. They also told him they would find him and kill him if he left. The definition of human trafficking encompasses fraud and debt bondage as part of the same list of means amounting to coercion. There is good evidence that the applicant was subjected to both. He was lied to by the woman who said he would only have to stay in the house for a few days before his friend, HVN, would pick him up. Mr Vu later told him that he had to work in order to pay off the money his traffickers had paid in bringing him to the UK.
The respondent's case
i. The applicant seeks to rely on assertions as to the basis of his offending which he did not advance below;
ii. There is no credible evidence that the applicant is a VoT;
i. He did not state that he been taken to a house after his arrival in the UK, from which he had escaped. He stated he was taken to Kings Cross station and thereafter trained as a manicurist;
ii. The applicant did not identify any link between any persons who brought him to the UK and those in the house in Nottingham. Mr Vu was a person he said he knew from his home town in Vietnam;
iii. The applicant did not state that he had been threatened when in the house in Nottingham nor that he had been beaten or looked in a room.
i. That the applicant stated that the western men in charge of the factory were present during the day;
ii. The fire occurred at 4.50 pm and only the applicant and Mr Vu were encountered leaving the property;
iii. When he left the property, the applicant was in possession of a mobile phone and a laptop.
The respondent, relying upon the chronology provided by the applicant, notes that he had been involved in proceedings before the First-tier Tribunal and the Upper Tribunal but did not raise the issue of his trafficking in these proceedings.
Discussion and conclusion
a. the lack of a credible explanation by the applicant as to how he came to arrive at Long Eaton and thereafter find himself in a cannabis factory in the Long Eaton area; and
b. the failure by the Competent Authority to properly analyse this aspect of the appellant's evidence.
"46. I contacted my friend who I had got to know during the journey to the UK. During the journey from Russia to here he was travelling with me so he had given me his telephone number. He also arrived in the UK on the same day with me. He stayed with me for a day in the same house where I was held at first, before he was taken somewhere else. He was given a mobile but I wasn't, I don't know why. His name was [HVN].
47. I called him and he gave me an address that I could go to. He said that I should arrive at Nottingham station. I got on a train and I got lost and I arrived in Long Eaton station. I called him when I arrived and told him I had arrived in Long Eaton and I didn't know how to get to Nottingham. He then said he would get his friend to pick me up. He told me either his friend or he would take me back to Nottingham.
48. It was raining and getting darker and darker. Two Western men and a Vietnamese woman approached the station. She came over straight away and approached me, and asked me whether I was lost or waiting for someone. I phoned [HVN] back and the Vietnamese woman was listening to my conversation with him.
49. [HVN] told me to pass her the phone. After they spoke she told me that I should come to stay with her until the next morning as it was too late. She passed the phone back and I spoke to [HVN]. He also said I should go with her. I don't know whether that woman was sent by [HVN] or not. Neither of them told me that she was sent but they both said I should go with her."
"In early November 2011, he had an argument with his girlfriend and left the house. He contacted a friend that he had known from the journey that he undertook from Russia to the United Kingdom and who was at the first house with him for a day before he left to go somewhere else. His name was [HVN] and he was given a mobile while the claimant was not. [HVN] stated that he could help him with work and gave him an address in Nottingham. The claimant got a train and became lost and was overheard by a lady who was known as Sister Hai, when he was calling his friend. She stated that he could stay with her until the morning. She was with two western men. She stated she would contact his friend. The claimant was taken to the house and he recognised a man called Vu that had been at the first house."
"The decision of the competent authority as to whether a person had been trafficked for the purpose of exploitation is not binding on the court but, unless there was evidence to contradict it or significant evidence that had been not considered, it is likely that the criminal courts will abide by the decision (see R v L(C) at [28])."
MS SIKAND: Thank you very much, my Lady.
My Lady, Ms Southwell asks me to raise with you that in fact his leave to remain expires on 16 February 2021 because you may have misheard me: I said 30 months but you may have heard that as 13 months.
LADY JUSTICE NICOLA DAVIES DBE: My apologies, I will correct it in the judgment.
MS SIKAND: My Lady, you also made mention of R v VCL paragraph 20(8) but you meant VSJ, because that is the correct citation of VSJ, paragraph 20(8).
LADY JUSTICE NICOLA DAVIES DBE: I will go back and double check it.
MS SIKAND: Thank you, my Lady.
My Lady, just one ancillary matter. I make an application, if I may, for a representation order to cover Ms Southwell's work post lodging. I am told, and this has happened in this past, that this court can make a retrospective representation order to cover the work post lodging. So at the time of lodging the appeal she was covered by a different funding regime but post lodging there is no funding for my solicitor. My Lady, there is a great deal of work in these cases, as you will have seen, certainly after the decision of the single judge there was a great deal of evidence sought and of course Ms Southwell had to take instructions, which requires an interpreter, and then putting before the court various documents. So I make the application simply to cover the work she did post lodging.
LADY JUSTICE NICOLA DAVIES DBE: Very well, it is granted.
MS SIKAND: Thank you.
LADY JUSTICE NICOLA DAVIES DBE: Is that it?
MS SIKAND: That is it, my Lady, thank you very much.
LADY JUSTICE NICOLA DAVIES DBE: My thanks to you both for the considerable work which I know each of you has put into the preparation of this case and for the written and oral arguments. Thank you very much.
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