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England and Wales Court of Appeal (Criminal Division) Decisions


You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Rahman, R. v [2024] EWCA Crim 1719 (19 December 2024)
URL: http://www.bailii.org/ew/cases/EWCA/Crim/2024/1719.html
Cite as: [2024] EWCA Crim 1719

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Neutral Citation Number: [2024] EWCA Crim 1719
CASE NO 202400061/B3-202400745/B3

IN THE COURT OF APPEAL
CRIMINAL DIVISION
ON APPEAL FROM THE CROWN COURT AT CAMBRIDGE
HHJ BISHOP 35NT1217020

Royal Courts of Justice
Strand
London
WC2A 2LL
19 December 2024

B e f o r e :

VICE-PRESIDENT OF THE COURT OF APPEAL, CRIMINAL DIVISION
(LORD JUSTICE HOLROYDE)
MR JUSTICE WALL
MR JUSTICE SHELDON

____________________

REX

- v -

JADE MELINA RAHMAN

____________________

Computer Aided Transcript of Epiq Europe Ltd,
Lower Ground, 46 Chancery Lane, London WC2A 1JE
Tel No: 020 7404 1400; Email: rcj@epiqglobal.co.uk (Official Shorthand Writers to the Court)

____________________

MR D BELL appeared on behalf of the Applicant.
MR B DOUGLAS-JONES KC & MR G FLEMING appeared on behalf of the Crown.

____________________

HTML VERSION OF JUDGMENT (APPROVED)
____________________

Crown Copyright ©

    THE VICE-PRESIDENT:

  1. This applicant was convicted of two offences of being concerned in the making of an offer to supply a controlled drug. She was sentenced to a total of 2 years' imprisonment, suspended for 12 months. She now applies for extensions of time and for leave to appeal against her convictions and her sentence. The applications have been referred to the full court by the Registrar.
  2. The applicant was for a time in a relationship with Shemsi Hasani, an Albanian national who was unlawfully in the United Kingdom. When he was deported to Albania in February 2019, the applicant travelled to France to meet him and tried to assist him to re-enter the UK. That attempt failed, but by June 2019 Hasani had succeeded in returning to this country and had resumed cohabitation with the applicant. At the end of 2019, she assisted him by providing an untruthful statement to the police, purporting to explain a large sum of cash which had been found in Hasani's car.
  3. The prosecution alleged that Hasani was dealing in drugs and that the applicant assisted him to launder the proceeds of his offending. Between January 2019 and January 2020, the applicant made cash payments into her bank account, received other cash sums from associates of Hasani, made withdrawals of cash and transferred money to persons in Albania.
  4. The applicant was arrested in March 2020. In interview, she denied any involvement in money laundering. She said that she had made some payments to Hasani, and he had used her bank account, in relation to his gambling. She said she had not suspected him of any unlawful activity.
  5. Examination of the applicant's mobile phone showed exchanges of messages between the applicant and Hasani. In one such exchange on 1 June 2019, the messages were as follows:
  6. "Applicant: 'What's the lowest you sell a box for with you making profit? Dad thinks he can push a box with cash not tick.'
    HASANI: 'I give him 4.5 because the box can go 5.8.'
    Applicant: 'I think he will have one next week. I've said 4.8.'
    HASANI: 'He want to sell it 4.8?'
    Applicant: 'I've told him a box is 4.8. He wants to sell it for bits his mate sells so he can get rid of it quickly.'
    HASANI: 'With cash or tick?'
    Applicant: 'Cash.'
    HASANI: 'OK. Say nothing.'
    Applicant: 'I'm the boss baby.'
    HASANI: 'U are the boss.'"

  7. It was common ground at trial that "a box" meant 1 kilogram of cannabis and that the figures 4.5, 4.8 and 5.8 were references to £4,500, £4,800 and £5,800.
  8. On 31 August 2019, there was the following exchange of messages:
  9. "Applicant: 'I've booked a taxi, Paula wants to come back to ours for a min to get her some coke can you sort anything? She will pay and go lol.'
    HASANI: '£1000 I don't do small lol.'
    Applicant: 'Do small for tonight babes.'
    HASANI: 'I don't think I can lol.'
    Applicant: 'I'm bringing her home anyway you can deal with her wanting 50 quids worth.'
    HASANI: 'Good luck.'
    Applicant: 'She said if she likes it she will buy bigger bits from now on.'
    HASANI: 'Good luck.'"

    In relation to that exchange it was common ground that "coke" was a reference to cocaine.

  10. Hasani was arrested in March 2021 and was remanded in custody. The applicant subsequently told the police that she had suffered domestic abuse from Hasani.
  11. The applicant, Hasani and a number of others were charged on an indictment containing ten counts. Count 1 (referred to at trial as "the money laundering count") charged the applicant and Hasani with conspiracy to convert and transfer criminal property. Count 2 charged Hasani and others with a separate money laundering conspiracy. Count 3 charged the applicant and Hasani with being concerned in making an offer to supply cocaine to another on 31 August 2019. Count 4 charged them both with being concerned in making an offer to supply cannabis to another on 1 June 2019. Those two counts were, of course, based upon the exchanges of messages to which we have referred.
  12. Hasani pleaded guilty to counts 1 and 2. The other charges against him were not pursued. He was later sentenced to a total of 59 months' imprisonment.
  13. The applicant stood trial in the Crown Court at Cambridge, before HHJ Bishop and a jury, on counts 1, 3 and 4. She gave evidence in her own defence. She gave an account of serious domestic abuse by Hasani. It included the following features. In mid-2019 she had become pregnant with Hasani's child but had terminated the pregnancy, against her own wishes, because he had told her to and had hit her. Thereafter, she had been subjected to non-consensual sexual activities including occasions when Hasani strangled her. He had filmed their sexual activity and had made threats to upload the film to a pornography site. Hasani had also threatened to kill both the applicant and her mother. He had refused to allow the applicant's friend Paula to visit their home. The applicant had tried to leave him in November 2019 but he had attacked her and issued further threats.
  14. The applicant further stated in her evidence that after Hasani had been arrested in December 2019, she had provided an explanation for the money found in his car because Hasani's brother had directed her what to say and she was frightened.
  15. In relation to count 1, the applicant's evidence was that she had received money for Hasani and transferred it to him in the belief that it came from his family and friends and would be used for gambling. Hasani had sometimes driven her to and from the bank, on other occasions she had travelled alone. As time went by, she had begun to suspect that the money may be the proceeds of crime, but she was scared of Hasani and his brother. When cross-examined about a number of text messages, which appeared to be inconsistent with her account, she said she had just been trying to keep Hasani happy and to give the impression of trying to help him when she did not really want to do so.
  16. Expert evidence was adduced to the effect that the applicant was suffering from PTSD as a result of domestic abuse, and that victims of domestic abuse often modify their behaviour to appease the perpetrator.
  17. As to count 4, the applicant gave evidence that the exchange of messages was another attempt to appease Hasani. It was not a genuine request for cannabis but a joke, based on her father having said to Hasani that all Albanians were drug dealers.
  18. As to count 3, her evidence was that the messages were again a joke, based upon Hasani having previously threatened to plant cocaine in her flat, and sent in the hope she might persuade him to get on with her friend Paula. She had not in fact taken Paula to her flat on that occasion, and she and Hasani had argued about it.
  19. At the conclusion of the evidence Mr Bell – then, as now, representing the applicant – submitted that she was entitled to rely both on a defence of duress and on a statutory defence under section 45 of the Modern Slavery Act 2015. The judge ruled the latter defence was not available to her, because she could not discharge the burden of identifying evidence to support one of the essential ingredients of the defence. The submissions and ruling on that application were directed entirely to the offence charged in count 1. In due course, the judge, without objection by Mr Bell, gave directions and a Route to Verdict which left duress to the jury only on count 1.
  20. The jury acquitted the applicant of count 1 but convicted her of counts 3 and 4. At a subsequent sentencing hearing, the judge accepted that the applicant had been in an abusive relationship with Hasani and was suffering from PTSD. With reference to the Sentencing Council's definitive guideline for offences of making an offer to supply a controlled drug, the judge placed the count 3 offence into category 3 as a low-level supply of £50 worth of cocaine to an end user, namely Paula. He assessed the count 4 offence as falling between categories 3 and 4, involving an offer relating to several thousand pounds worth of cannabis, but not involving supply to an end user.
  21. The judge found no aggravating features and a number of mitigating factors. He took into account the applicant's previous good character, her excellent work record as a skilled social worker, her childcare responsibilities and references which spoke highly of her. He considered a pre-sentence report which suggested a conditional order of discharge would be the appropriate disposal. He did not accept Mr Bell's submission that he should depart from the guideline. He imposed concurrent sentences of 2 years' imprisonment on count 3 and 3 months' imprisonment on count 4. Those sentences were suspended for 12 months. No additional requirement was imposed.
  22. In his grounds of appeal against conviction, Mr Bell submits that the convictions on counts 3 and 4 are unsafe for two related reasons: first, that the judge was wrong to withdraw from the jury any defence under section 45 of the Modern Slavery Act 2015; and secondly, that the judge in his summing-up did not properly put the applicant's case to the jury.
  23. As to the first of those grounds, Mr Bell submits that the applicant was entitled to advance the statutory defence, on the basis that she initiated the exchanges of text messages referred to in counts 3 and 4 because she was compelled and that compulsion was attributable to slavery or relevant exploitation. He submits that the evidence relating to the three counts (counts 1, 3 and 4) was inextricably intertwined and could not easily be separated. He submitted that the evidence showed that the applicant was indeed a victim of modern slavery, whose will had been overborne, and that the jury should have been permitted to consider that the sending of the relevant text messages was both an indication and a consequence of that status of servitude.
  24. Mr Bell submits that the jury, by their verdict on count 1, accepted that the applicant had been controlled, coerced, intimidated, sexually abused, beaten and threatened by Hasani and was a modern slave. The jury, he argues, should therefore have been allowed to consider the defence which Parliament has provided "to those who carry out criminal acts".
  25. As to the second ground, Mr Bell submits that the judge in his summing-up said that the applicant's case was simply that the relevant text messages did not contain any offer to supply drugs. He argues that the judge wrongly failed to put before the jury the wider aspect of the applicant's defence, namely that the sending of the messages was indicative of her attempts to please Hasani and therefore symptomatic of the abuse and duress to which she had been subjected.
  26. Opposing the application, Mr Douglas-Jones KC submits on behalf of the respondent that the statutory defence could not properly be left to the jury because there was no evidence that the applicant had been compelled to send the text messages and no evidence that a reasonable person, in her situation, would have done so. Accordingly, even if it could be said that the applicant had discharged the evidential burden in respect of other necessary ingredients of the defence, the respondent submits that she could not discharge that burden fully. Mr Douglas-Jones further submits that the judge adequately summarised for the jury the applicant's case, namely that the messages referred to in count 3 were sent as a means of introducing Paula to Hasani and that those referred to in count 4 were a joke. Moreover, and in any event, Mr Douglas-Jones submits that the evidence against the applicant on those counts was overwhelming and the convictions are safe.
  27. Mr Douglas-Jones goes on to suggest that an error of law was made in the prosecution submissions at trial as to the correct approach to the statutory defence and that the judge was thereby led into a minor error in his ruling that the defence was not available; but, he submits, the error was not material and the convictions remain safe. Mr Douglas-Jones invites this court to take the opportunity to give some guidance as to the ambit and certain features of the statutory defence. He readily acknowledges, however, that any such guidance would be no more than obiter dicta.
  28. We have reflected on the written and oral submissions. We can address the grounds of appeal against conviction quite briefly.
  29. It is sufficient for present purposes to cite only subsection (1) of section 45 of the 2015 Act. It is in these terms:
  30. "Defence for slavery or trafficking victims who commit an offence

    (1)A person is not guilty of an offence if—
    (a)the person is aged 18 or over when the person does the act which constitutes the offence
    (b)the person does that act because the person is compelled to do it
    (c)the compulsion is attributable to slavery or to relevant exploitation, and
    (d)a reasonable person in the same situation as the person and having the person's relevant characteristics would have no realistic alternative to doing that act."

  31. The following subsections contain a number of definitions and explanations of the terms used in subsection (1).
  32. In R v MK; R v Gega [2018] QB 86, this court made clear that a defendant who seeks to rely on the statutory defence must raise evidence of each of the elements of it. If he does so, the burden is then on the prosecution to disprove one or more of the elements to the criminal standard of proof.
  33. In relation to counts 3 and 4, the applicant did not give evidence that she had been compelled to do acts which, but for the statutory defence, would make her guilty of the offences charged. On the contrary, her case was that she had not committed either of the offences charged. In choosing to send and exchange the messages she did, she had not been concerned in the making of an offer to supply a controlled drug, and had simply been engaged in a joke or in an attempt to foster better relations between Hasani and her friend Paula. The domestic abuse to which she had been subject may have provided some explanation for why she wanted to keep Hasani happy, but there was no evidence that she had been compelled to act as she did, and no evidence that she had been compelled to act in a way which amounted to the offences charged. Nor was there any evidence which could support a conclusion by a jury that a reasonable person, in the same situation as the applicant and having her relevant characteristics, would have had no realistic alternative other than to engage in the exchange of messages which we have quoted. We assume it was for that reason that the submissions to the judge about the availability of statutory defence were focused on count 1, in relation to which the applicant did say that she had been compelled to act as she did.
  34. We are bound to say that it is not at all clear to us that the judge was in fact invited to rule whether the statutory defence was available on counts 3 and 4. Although he made fleeting reference to those counts in the course of his written ruling, it does not seem to us that he ever did give any ruling about the availability of the statutory defence in relation to them. But in any event, for the reasons which we have briefly indicated, the applicant was unable to discharge the evidential burden which lay upon her, and there was no basis on which the statutory defence could have been left to the jury on those counts.
  35. Next, we are satisfied that the judge's summing-up of the defence case on counts 3 and 4 was sufficient in the circumstances of this case. On each of those counts, the prosecution had to make the jury sure that the applicant's text messages were not, as she asserted, sent as a joke, or as a means to persuade Hasani to be more friendly towards Paula. Given the overall evidence, the applicant can have no legitimate complaint that on each count the jury were so satisfied. We agree with Mr Douglas-Jones that the prosecution evidence on those counts was overwhelming.
  36. We would add that the verdict on count 1 cannot and does not assist the applicant in her grounds of appeal. The issues raised by count 1 were very different. It is not right to say that the not guilty verdict on that count must mean that the jury positively accepted that the applicant was under duress. We therefore see no basis on which it could be argued that the convictions are unsafe.
  37. We do not accede to the respondent's invitation to give some general guidance about the ambit of the statutory defence under section 45 of the 2015 Act. As we indicated to Mr Douglas-Jones in the course of his submissions, we are not immediately persuaded that the respondent's submissions on the point are correct. In any event, we do not think it appropriate to embark on a detailed analysis of the ambit of the defence when anything we might say on that topic would be obiter dicta. The respondent's submissions on the point raised must await full analysis in a case in which the issue directly arises.
  38. We turn to the application for leave to appeal against sentence. Mr Bell submits that the count 3 offence was wrongly placed in to category 3, that the offending did not pass the custody threshold and that the judge should have accepted the submission that it would be contrary to the interests of justice for him to follow the guideline. The last of those three submissions lies at the heart of Mr Bell's submissions in relation to sentence.
  39. We have already referred to the issue which the jury had to decide on each of counts 3 and 4. By their verdicts they rejected the assertion that the applicant had merely been joking or trying to promote a better relationship between her partner and her friend. Thus, the judge had to sentence for criminal conduct, not for a joke or other innocuous and lawful conduct. By section 59 of the Sentencing Code, the general duty of every court is expressed as follows:
  40. "(1)Every court—
    (a)must, in sentencing an offender, follow any sentencing guidelines which are relevant to the offender's case, and
    (b)must, in exercising any other function relating to the sentencing of offenders, follow any sentencing guidelines which are relevant to the exercise of the function
    unless the court is satisfied that it would be contrary to the interests of justice to do so."
  41. The reference to it being contrary to the interests of justice to follow a guideline which is intended to cover the great majority of criminal cases plainly sets a high hurdle. Moreover, in order to make good his principal ground of appeal, it is not enough for Mr Bell to say that another judge might have taken a different view. He has to argue that it was simply not open to the judge to follow the guideline and the judge was bound to conclude that it would be contrary to the interests of justice to follow it. That will always be a difficult argument to make good and, in the circumstances of this case, the argument has no prospect of success. The judge was right to conclude that he must follow the guideline. In doing so, he gave full weight to the applicant's mitigation. There is therefore no basis on which the sentence can be said to be wrong in principle or manifestly excessive.
  42. Mr Bell has provided a sufficient explanation for the short delay in filing the notices of appeal. If there were merit in the grounds of appeal, we would readily grant the necessary extension of time. As it is, no purpose would be served by extending time, because neither the appeal against conviction nor the appeal against sentence could succeed. The applications for extension of time and for leave to appeal are accordingly refused.

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