Scottish High Court of Justiciary Decisons

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2015] HCJAC 79

HCA/2015-001560-XJ

Lady Paton

Lord Menzies

Lord Matthews

OPINION OF THE COURT

delivered by LORD MENZIES

in

BILL OF SUSPENSION

by

IYANU ADEBAYO

Complainer;

against

PROCURATOR FISCAL, PAISLEY

Respondent:

Complainer:  Party

Respondent:  J Farquharson;  Crown Agent

29 July 2015

[1]        The complainer in this Bill of suspension appeared before the sheriff at Paisley on 13 March 2008 in answer to a complaint that on the previous day, 12 March 2008, she did have in her possession or under her control without reasonable excuse an identity document namely, a Canadian Passport in a false name contrary to the Identity Cards Act 2006 section 25(5)(a). 

[2]        She was legally represented.  She pled guilty to the charge as libelled.  The matter was continued to enable a social enquiry report to be obtained until 3 April 2008.  A social enquiry report was prepared on 31 March 2008 on the basis of an interview with the complainer on 26 March 2008 and liaison with prison health and social work staff.  It appears from this report that the complainer made no complaint or suggestion that she was the victim of trafficking. 

[3]        She told the social worker that she came into the UK from Nigeria on a visitor’s visa at the age of 18 in about 2000.  She came with her mother who told her that she would be expected to remain in the UK and advised her to keep a low profile once her visitor’s visa had expired.  She obtained casual employment in the London area for seven years, only moving to Glasgow in 2007 where she continued to find casual employment as a cleaner in bars and for private households.  Shortly after arriving in Glasgow she formed a relationship with a man and became pregnant.  Her partner threatened her with violence and that he would abort the foetus.  For this reason she obtained a false passport with a view to fleeing to Canada. 

[4]        When the complainer appeared before a different sheriff for sentence on 3 April 2008 she was again legally represented and this social enquiry report was before the court.  It does not appear that the court was provided with any information to the effect that the complainer was a victim of trafficking.  In his report to us the sentencing sheriff states as follows: 

            “I do have some memory of the case and considered then that I needed to impose a sentence, not as punishment but to allow the complainer an opportunity to consider her position in relative security and to make an application for asylum were she to consider that to be appropriate.  I was also mindful of her health and advanced pregnancy.  I have not recorded that she was the subject of trafficking.  Had this been pled in mitigation I would like to think I would have had some enquiry undertaken by the Crown and requested that the plea of guilty be withdrawn.  I relied solely on the information provided within the social enquiry report in passing sentence.”

[5]        In this Bill of suspension the complainer applies to this court to quash the conviction of the High Court at Glasgow dated 17 April 2008 (as stated earlier the conviction was in fact in the Sheriff Court at Paisley on 13 March 2008) on the basis first that her plea of guilty was equivocal in that it asserted the false identity document was being used to escape abuse from the traffickers.  Second, that the plea raised the question of the court’s and prosecution’s obligation under international treaties and third, that the prosecution and punishment of the complainer was an abuse of process. 

[6]        In the Bill the complainer accepts that she did not raise a defence of trafficking because she was not aware of it.  However, she goes on to aver that the defence of trafficking as set down in the plea-in-law was available to her but was not taken account of though the facts were known to High Court or ought to have been known.  Despite her acceptance that she did not tell the court of her claim that she had been the victim of trafficking she gives no explanation as to how the court was or ought to have been aware of such a claim. 

[7]        The first occasion that any department or organ of the state appears to have become aware that the complainer was stating that she had been a victim of trafficking was at a hearing by the UK Border Agency on 8 March 2012.  That agency issued a reasonable grounds consideration minute on 18 September 2012.  The account which the complainer gave to the UK Border Agency as to the circumstances of her travelling from Nigeria to the United Kingdom and her life in the United Kingdom thereafter was quite different from the account which she gave to the social work department in March 2008 and which was before the court in April 2008, as can be seen from a brief reading of a few of the paragraphs in that minute: 

“12.      You state that your journey to the UK was facilitated by an agency and an agent.  The agency had told you that for a sum of money you would be able to travel to the UK for a better life and your journey from Nigeria to the UK was led by an agent. 

14.       You claim that once in the UK you were forced into prostitution.  The social work consultant’s report of 7 March 2012 also states that you were forced to work as a prostitute for a period of two years in order to repay your debt – the cost of travel from Nigeria. 

15.       Although minimal, if accepted the details provided above appear to demonstrate that the third constituent element of trafficking has been satisfied:  for the purposes of exploitation.

16.       Given the above it can be seen that the brief details of your account conformed to the three constituent elements of the definition of trafficking.  However, it is noted that the UK Border Agency were not made aware of your account of having being trafficked until the hearing of 8 March 2012. 

17.       You first appeared within an application for leave to remain as a dependant in November 2010.  Prior to this you had been imprisoned for use of a false travel instrument in 2007.  At no point had you made your account to have being trafficked into the UK known. 

18.       Notwithstanding this, having considered the trafficking grounds on their own merits it appears that you were free from your trafficking situation after a period of two years.  Indeed you state to have been in a position to form a relationship in the UK in 2002.  You went on to have a five year relationship before engaging in a relationship with your current partner Paul in 2007. 

19.       Since this time you have gone on to have two children with Paul and currently reside with him and your children. 

20.       Whether accepted or not your account is of a trafficking situation distant in time, 12 years since being trafficked and 10 years since being in a position of forced prostitution.”

[8]        In these circumstances it does not appear that the complainer raised the issue of her being a victim of trafficking when she appeared before the court either when she tendered her plea of guilty on 13 March 2008 or when she was sentenced on 3 April 2008.  The version of events which she gave to the social worker in March 2008 was inconsistent with her present position.  If the issue was not raised we do not consider that the sheriff can be criticised for not having taken account of it.  It is not clear to us how the sheriff can be said to have known of this issue or that he ought to have known of it on the information presented to him. 

[9]        In any event, it is clear from the sequence of events set out in the UK Border Agency’s minute dated 18 September 2012 that even if the complainer was a victim of trafficking (and we note that the Border Agency expresses no view on this matter - a position echoed by this court) she was free from her trafficking situation and forced prostitution by 2002 at the latest.  Thereafter, she went on to form a five year relationship before engaging in a relationship with her current partner Paul in 2007.  Since then she has gone on to have two children with Paul and resides with him and their children. 

[10]      The offence to which the complainer pled guilty occurred on 12 March 2008.  Issues about possible trafficking and forced prostitution in the period up to 2002 have no relevance to this charge and could not possibly form any defence to it. 

[11]      This court has observed repeatedly that it will be slow to overturn or quash a conviction based on a plea of guilty, particularly when that plea has been submitted by a person with the benefit of legal advice and representation, except in the most exceptional circumstances.  There are no such circumstances in this case.  This Bill must be refused. 

SLR