R v Jordan Jarron Essien

MRS JUSTICE CHEEMA-GRUBB: Preliminaries

1. In this case applications for an extension of time (2,058 days and 1,320 days) in which to appeal against conviction, in two cases concerning the same applicant, have been referred to the full court by the Registrar for Criminal Appeals. The applicant also seeks leave pursuant to section 23 of the Criminal Appeal Act 1968 to introduce fresh evidence to show that he was a victim of trafficking. The proposed evidence comes from the single competent authority ("SCA"), from the applicant himself, as well as his medical records, from his solicitor and from a psychologist, Dr Cordwell.

2. An application for anonymity under section 11 of the Contempt of Court Act 1981 is made and the case has been listed anonymously to preserve the position. Anonymity in criminal cases is exceptional. The principle of open justice is at the heart of the administration of justice. Applications for anonymity are considered on a case specific basis and the approach to such applications in cases of human trafficking has been considered on a number of occasions by this court, most particularly in R v L: R v N [2017] EWCA Crim 2129 and AAD [2022] EWCA Crim

106. We give our decision later in this judgment. Introduction

3. On 20 October 2017 the applicant, who was then aged 18 having been born on 29 May 1999, pleaded guilty to possessing a controlled drug of Class A, heroin, with intent to supply (count 1), and possession of criminal property (count 2). Subsequently, he submitted a basis of plea which was eventually accepted by the Crown and on 18 August 2018 he was sentenced in the Crown Court at Winchester by Her Honour Judge S Evans on each count concurrently to a suspended sentence order comprising two years' detention suspended for two years, with 200 hours of unpaid work and rehabilitation activity requirements.

4. On 25 October 2018 a confiscation order in the sum of £1,430 under section 6 of the Proceeds of Crime Act 2002 was made against him, to be paid within 28 days, with two months' imprisonment in default. A co-defendant Craig James Wood was sentenced to 20 months suspended for 18 months with a rehabilitation activity requirement for 20 days on his plea of guilty to count

1.

5. On 28 October 2019 before His Honour Judge A J Barnett, The Recorder of Salisbury, at Salisbury Crown Court the applicant, who was by then aged 20, changed his plea to guilty to being concerned in the supply of Class A drugs to another (counts 1 and 2) on a basis. No evidence was offered against him on count 3, which concerned arranging or facilitating the travel of another person with a view to exploitation, and a not guilty verdict was entered pursuant to section 17 of the Criminal Justice Act 1967. His basis of plea was not challenged and he was sentenced to 38 months' imprisonment on each count concurrently. The suspended sentence imposed at Winchester Crown Court was activated with a reduced term of 16 months to run consecutively, making a total sentence of four years six months' imprisonment.

6. On 7 October 2022 the applicant was arrested at his home address and he provided a series of prepared statements in interview. The following day he appeared before Southampton Magistrates' Court charged with further allegations of being concerned in the supply of Class A drugs. He was referred through the National Referral Mechanism ("NRM") to the Single Competent Authority ("SCA"). On 18 October 2022 the SCA determined that there were reasonable grounds to suspect that the applicant was a victim of trafficking. On 13 March 2023 the SCA made a conclusive grounds decision that the applicant was a victim of trafficking. The 2022 criminal proceedings have been adjourned pending the outcome of this hearing.

7. The grounds of appeal are that the 2018 and 2019 convictions are each unsafe because the applicant has been a victim of trafficking and debt bondage from the date of the first offence and he had a defence under section 45 of the Modern Slavery Act 2015 ("MSA") of which he was not advised but which would have been likely to succeed. Having tendered his plea in ignorance of the lawful defence, his pleas of guilty were vitiated. He relies on the fresh evidence as confirmation.

8. The Respondent resists the applications. Whilst it is accepted that the applicant might properly be treated as a credible victim of trafficking and debt bondage, and that he should have been advised of the section 45 defence, such a defence was bound to have failed. Furthermore, neither prosecution was an abuse of process and the proceedings would have continued even if the Crown had known what is now known about the applicant's status because prosecution of Class A drug dealing was in the public interest and the applicant's culpability was not significantly reduced because of his position as a victim of trafficking ("VOT") and debt bondage. Facts: The Winchester case

9. The appellant was 17 years old when, on 26 November 2016, Craig James Wood (an adult) was arrested having left his own home address in Amesbury, Wiltshire to conduct a drug supply to a known drug user. He was found to be in possession of £20 and two wraps of cocaine. He was asked if there was anyone else at his address and he said: "Just my mate Ralph, he's a young, coloured lad." At the address police found the applicant, whom an officer noted looked 'petrified' coming down the stairs as the police entered. He was searched and found in possession of 18 wraps of heroin, £930 cash and a couple of mobile phones. In response to his arrest he said: "The phone's mine and the blue Nokia is mine. I came here just to buy some smoke." He made no comment in interview.

10. The heroin in the applicant's possession weighed 1.76 grams, was of 38% purity, worth £180. One of the phones in his possession was for the 'Ralph' drugs line which had sent out bulk messages advertising drugs for sale between 29 October and 21 November 2016.

11. The basis of plea stated that he was merely the holder of the 'Ralph' phone on the day of his arrest. He was in debt to someone who had been supplying him with cannabis in Lewisham in London (his home area) and that person had taken him to Amesbury and given him the phone, the drugs and the bag of money to hold. This account was not accepted initially and the case was listed for a Newton hearing. When the defence provided evidence that the applicant had attended youth justice supervision and accommodation appointments in London throughout November 2016 and indeed on the morning of his arrest, the prosecution withdrew their opposition.

12. A pre-sentence report was prepared. The applicant told the author of the report that he had been using cannabis and became indebted to a local drug dealer who "forced" more cannabis on him, ostensibly for free but which caused him to become further indebted. The dealer threatened him that he would be harmed if he did not go with him on the day of arrest. He was driven to the address in Amesbury and left in the property where he was given the drugs, the money and the phone. He was arrested there some 10 minutes later. The report writer assessed that at the time the applicant "may have been vulnerable … and at risk of criminal exploitation". The applicant said he had given up using cannabis since his arrest. Facts: The Salisbury case

13. On 27 March 2019 police officers entered a property at 7 Sandringham Close in Salisbury. They found signs of Class A drug preparation and two users of Class A drugs were present. One of them Mitchell Hodge-Walsh was in possession of £1,980, train tickets from London and two telephones (an iPhone and a burner phone). A telephone number ending in 0457 appeared within the phone traffic for both devices. Text messages on the iPhone showed discussion of travel plans, quantities and cash held.

14. The applicant was arrested in London on 13 May 2019 for unrelated matters. He was in possession of an iPhone for his personal use and a Nokia handset which had two SIM cards in it. By the unique identification number of the Nokia handset he was linked to the 0457 number which had sent messages to Hodge-Walsh.

15. The allegation against the applicant was that he would send out bulk messages advertising drugs for sale and then dispatch Hodge-Walsh to supply customers in the Salisbury area. Substantial telephone evidence, including cell site analysis, suggested that the dealer was told who to meet and when and that his progress in respect of the transactions was monitored. There were 1,558 contacts between the 0457 number and Hodge-Walsh's iPhone number ending in

583. These included 46 on the day of Hodge-Walsh's arrest. The applicant had been involved in this drugs supply for three to four months, on the basis of the telephone evidence.

16. The applicant made no comment in police interview. On 12 July 2019 he entered not guilty pleas and no evidence was offered on count

3. On the first day of his trial, 28 October 2019, he was re-arraigned, pleaded guilty and submitted a basis of plea in which he confirmed his account of the circumstances leading up to his arrest in 2016. In respect of the subsequent offending he said that the dealer who had pressured him remained in contact after the sentencing hearing and reiterated the existence of the debt he had owed already, which was aggravated by further debt arising from the drugs and money seized by the police on his arrest in Amesbury. The applicant was instructed to hold the 0457 phone and direct the runners selling to drug users, but he did not handle the drugs or collect money personally. The basis of plea also made reference to the applicant having previously been stabbed. He said that he operated on a shift basis and because of his work and study commitments he mainly covered the night shift. He accepted that he had had other options.

17. During the course of mitigation his counsel relied on the basis of plea and exploitation of the applicant over a debt as a mitigating feature. The judge plainly accepted this and sentenced accordingly. Fresh evidence

18. The applicant relies upon fresh evidence including documents relating to the positive conclusive grounds decision from the SCA that he was a VOT. Following receipt of the applications, the Registrar granted a representation order for leading counsel and solicitors. The new solicitor, Phillipa Southwell, who is experienced at dealing with such cases, has provided a Gogana statement dated 7 May 2023 setting out the chronology of work undertaken following the instructions, confirming that the solicitors carried out case preparation and lodged the applications expeditiously. We accept her evidence. As there is no dispute that the section 45 Modern Slavery Act 2015 defence would have been open to the applicant but was not brought to his attention, we grant the extensions of time and leave to appeal.

19. The conclusive grounds decision states that on the balance of probabilities the appellant was the victim of modern slavery in the United Kingdom during 2015 to 2022 for the purpose of forced criminality. The SCA accepted that the appellant had a dysfunctional childhood and a poor relationship with his parents. He was placed into care aged

15. Around that time he began to use cannabis and local dealers supplied him with more than he could afford to buy. Eventually they said he owed them a financial debt and he was forced to sell drugs to repay it. He was taken to other areas and placed in properties to do this. This resumed upon his release from detention after the sentence at Winchester Crown Court and continued into adulthood. As an adult he was stabbed in the leg by the dealers to ensure his compliance and he still feared them due to the violence he had experienced and ongoing threats and intimidation he received whilst in custody.

20. The appellant told the SCA that after his arrest for the Winchester matters he told his legal representative and the police, outside of his interview, about his exploitation. The police found no evidence of this, but the SCA placed minimal weight on there being no support for the account or on the details of the allegations concerning his further arrest and on-going Crown Court proceedings in 2022. By contrast the SCA placed considerable weight on a psychological report (summarised below) and accepted that the appellant was targeted by older males to be criminally exploited. The SCA concluded that it was more probable than not that the appellant had been recruited, harboured and transported for the purposes of criminal exploitation, that he could not give informed consent when this began as he was aged 15 or 16 years and that as an adult he was subjected to violence and intimidation.

21. The appellant has provided a witness statement in which he sets out the circumstances in which he became indebted through drug use aged 16 and his subsequent recruitment by individuals through threats and the use of violence. He describes being trafficked from London to Salisbury, put up in a house and forced to sell drugs to clear the debt. He described how he became further in debt when the drugs and money he had in Salisbury were seized by the police and states that when he tried to stop selling drugs he was stabbed. He puts his age at the stabbing as 17 or 18 and says that when the police were called to the hospital he told them what he could, but he was confused due to the pain and medication. He told his solicitors that he had been forced to sell the drugs in Salisbury. He was not told about any defence under the MSA. He confirms that he continued to receive pressure from the drug dealers concerned and this is why he committed subsequent offences. He says he told his solicitors that he had been forced to commit the offences on his arrest in 2019 too.

22. Medical records from Lewisham and Greenwich NHS Trust state that the applicant was seen in the emergency department on 29 August 2015 with a small stab wound to his left thigh. He refused to say how or by whom it had been inflicted and maintained this reluctance to the police who attended. The wound was sutured, and he was prescribed antibiotics.

23. Having read the witness statement and in light of the conclusive finding by the CSA, the respondent accepts that the appellant was a victim of debt-bondage and neither party has required the appellant to give evidence. The court is content to proceed on the basis of the witness statement and the other material.

24. In a report dated 7 February 2023 prepared for the purpose of these applications, Dr John Cordwell, a chartered forensic psychologist, reports the appellant's narrative account and assesses it as credible. The appellant told him that although his family was normal until he was aged 13, his father was made redundant and after that financial pressures caused conflict and argument between his parents and violence from his father to his mother as well as to him. When his parents separated when he was 14, his mother struggled to look after the home and pay bills, so they lost their family home when he was aged

15. Thereafter he stayed with her in a one-bedroom flat but also with friends, sofa-surfing. He was taken into social services care, being homeless, aged

16. From then until 18, he had little contact with his parents. He passed 10 GCSEs (mainly with grade Cs) and went to college to study information technology, although he dropped out after about three months. When he was aged 17 he worked for three months for the council and then from September 2021 he worked for a year as a delivery driver for a supermarket until his arrest in October 2022.

25. His first conviction was for possession of cannabis and a weapon in October 2016 at the Juvenile Court following a police stop and search. The appellant said this was the result of being forced to sell drugs for the gang that he was exploited by and he had not carried the cannabis and the weapon voluntarily but because of pressure from three adult men who had intimidated and threatened him when he built up a drug debt of £800 to them. He received a Referral Order. This was a month before he was arrested in Amesbury.

26. He was convicted of possession of cannabis again in May 2017 also at the Juvenile Court and in May 2018 at the Magistrates' Court. His account in respect of both of these was similar in that he said he was in possession of cannabis which he was being forced to hold and sell for the gang when he was stopped and searched. In June 2018 he was convicted of driving a vehicle under the influence of drugs in the Magistrates' Court. The appellant explained that he was smoking a lot of cannabis at this time and was addicted to it. This arrest arose after he was stopped driving his own car and failed a drug test. He was then sentenced to the suspended sentence order at Winchester Crown Court. Following his second sentence at Salisbury Crown Court, he acquired one further arrest for possession of cannabis in May 2022 which was dealt with by a community resolution. The appellant told Dr Cordwell that he was stabbed in the leg by one of the gang exploiting him when he was released on bail having been charged after his arrest in October 2017 and this was because they were angry as he had been arrested with their drugs and their money which they told him he had to pay back.

27. In Dr Cordwell's view the appellant meets the criteria for classification as a victim of trafficking (VOT) in line with the Palermo Protocol (2000) and the MSA. The expert also concluded that the appellant met the diagnostic threshold for a recurrent depression of a mild to moderate severity. He did not meet the thresholds for diagnosis of PTSD or anxiety, but he displayed some symptoms consistent with those conditions. He was assessed as being markedly more compliant and suggestible than his peers. Neither party required the attendance of the expert witness whose report was accompanied by a Form W.

28. Privilege having been waived, the appellant's previous solicitors state that he did not provide any instructions that he was in debt to or had been exploited by others, that he was forced to sell drugs or that he had previously been stabbed. The confiscation proceedings concerned sums paid into the appellant's NatWest bank account which he could not explain. Counsel for the appellant at Winchester has moved abroad and is not contactable. The basis of plea states that the appellant had been supplied cannabis by a person called 'Ralph' and as the appellant was in debt to Ralph he had been asked to help him out. He had travelled to the house on the day he was arrested for the first time, in order to help sell drugs and he was due to be returned to London also that day. We have the benefit of a transcript of the sentencing hearing. Defence counsel mitigated on the basis that the appellant had arrived in the house just 10 minutes before the arrest and he may have been being groomed for a bigger role. Counsel argued that the arrest was likely to be to his benefit in the future. The sentencing judge noted that the appellant had been convicted of two further offences concerning cannabis since his arrest, despite telling the writer of the pre-sentence report that he had given it up.

29. Counsel who represented the applicant in the Salisbury case, Mr Jemi Akin-Olugbade has responded to the grounds of appeal. As well as a note on his involvement with the appellant, he has provided a draft proof of evidence and other documentation. His recollection is that the appellant maintained until the day of trial that although he used the name 'G-Face' for his Facebook account he was not the person using the title 'G-Face' supplying drugs in Salisbury and he was not using phone numbers credibly attributed to him. He denied that he was living at the address where he was arrested (which belonged to his mother) and which was the subject of telephone cell site analysis, and that phone handsets he was arrested with were accessible to him. Having been advised on the strength of the evidence against him he changed his pleas and said he felt compelled to commit the offences because he owed a drug debt to others who had 'seduced him' into thinking they were his friends.

30. Counsel was not told, he says, of any overt threat or that the appellant had been stabbed or forced to commit any offence. He had been told about the stabbing incident but understood it to be unconnected to the appellant's involvement in drug dealing. By the time of the offending dealt with at Winchester Crown Court the appellant was 19 years old, had previously pleaded guilty to supplying drugs for the same people, had voluntarily associated himself with them, even if naively, and once asked to resume operating on their behalf he had chosen to do so, although there were other options open to him. The most obvious of these being to ask his parents for the money he owed or reduce his cannabis habit to enable him to pay off the debt. Other contra-indications in counsel's mind at the time he was advising the appellant were the prosecution evidence demonstrating the appellant's recruitment of others to sell the drugs, his sourcing of locations and evidence of his making demands to customers for payment with menaces.

31. Counsel confirms that the basis of plea was consistent with the appellant's instructions. The relevant terms were: (i) The appellant was a cannabis addict who owed a debt of a few hundred pounds to someone he was afraid to name. (ii) He was driven to Salisbury on 22 November 2016 where he was arrested the same day. Following his release on bail the person he owed money to was very friendly. However, a few months after he was made the subject of a suspended sentence, he was told the debt was still outstanding and he now also owed for the drugs and money seized by the police. (iii) The appellant agreed to hold the phone line known as Ralph, take orders and direct sales on a shift basis. He naively thought this was his only option at the time and that he was getting a good deal. He had previously been stabbed. (iv) The appellant understood (at the time of his plea) that he had had other options.

32. Again, we have the benefit of a transcript of the sentencing hearing. The judge described the offending as: "… a tragic story of somebody who becomes involved in drugs because of the debt they owe to the drugs orchestrators. You say, in your basis of plea, and this explains the previous conviction as well, you got into debt, [were] unable to pay the debt, [and] you ended up working, effectively, for the people involved in drugs, who I accept were higher up the chain than you. But it is quite obvious that you lent yourself to the enterprise by orchestrating the supply locally of … The Class A drugs. You had, for a period of about three or four months, use of the phone which orchestrated that supply, sending out bulk texts with the usual messages."

33. It is accepted for the purposes of this appeal that the appellant was not advised, in either of the earlier cases, of any defence open to him under section 45 of the MSA. Submissions on the appeal

34. Mr Benjamin Newton KC for the appellant submits that both convictions are unsafe because the appellant had a defence pursuant to section 45 of the MSA of which he was not advised but which would have been likely to succeed. Having been trafficked for a third time and facing charges to which he asserts a section 45 defence, the status of the two earlier convictions will have a significant impact on his prospects at trial. The prosecution has served a bad character notice pursuant to the Criminal Justice Act 2003 in respect of the previous convictions. Mr Newton draws attention to the significant body of case law which developed in relation to appeals against conviction by victims of trafficking before the coming into force of the Modern Slavery Act 2015. The obligation of the state towards victims of trafficking in all the various guises in which they can present is undoubted. The pre-2015 principles thereto were summarised by Gross LJ in R v S(G) [2019] 1 Cr App R 7 at paragraph 76: "Against this background, we venture to summarise below the relevant principles (for present purposes) in the light of the decisions and guidance of this Court in R v M(L) and others [2010] EWCA Crim 2327; [2011] 1 Cr App R 12; R v N(A) and others [2012] EWCA Crim 189; [2012] 1 Cr App R 35; R v L(C) and others [2013] EWCA Crim 991; [2013] 2 Cr App R 23; R v Joseph (Verna) and others [2017] EWCA Crim 36; [2017] 1 Cr App R

33. i) Neither Art. 26 of ECAT nor Art. 8 of the Directive confers a blanket immunity from prosecution on VOTs. ii) Instead, the UK's international obligations require the careful and fact sensitive exercise by prosecutors of their discretion as to whether it is in the public interest to prosecute a VOT. That discretion is vested in the prosecutor, not the Court. iii) The decisions of the FTT and CA as to whether an individual is a VOT do not bind prosecutors or the Court but will be respected (subject to submissions as to their basis or limitations) unless there is a good reason not to follow them. iv) There is no closed list of factors bearing on the prosecutor's discretion to proceed against a VOT. Generalisation is best avoided. That said, factors obviously impacting on the discretion to prosecute go to the nexus between the crime committed by the defendant and the trafficking. If there is no reasonable nexus between the offence and the trafficking then, generally, there is no reason why (on trafficking grounds) the prosecution should not proceed. If there is a nexus, in some cases the levels of compulsion will be such that it will not be in the public interest for the prosecution to proceed. In other cases, it will be necessary to consider whether the compulsion was continuing and what, if any, reasonable alternatives were available to the VOT. There will be cases where a decision to prosecute will be justified but due allowance can be made for mitigating factors at the sentencing stage. The matter was most helpfully summarised by Lord Judge CJ, in LC, at [33], as follows: ' … the distinct question for decision, once it is found that the defendant is a victim of trafficking 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 he was the victim. 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 … In other cases … 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 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.' v) As always, the question for this Court goes to the safety of the conviction. However, in the present context, that inquiry translates into a question of whether in the light of the law as it now is (this being a rare change in law case) and the facts now known as to the Applicant (having regard to the admission of fresh evidence) the trial court should have stayed the proceedings as an abuse of process had an application been made. This question can be formulated indistinguishably in one of two ways which emerge from the authorities: was this a case where either: (1) the dominant force of compulsion, in the context of a very serious offence, was sufficient to reduce the Applicant's criminality or culpability to or below a point where it was not in the Public Interest for her to be prosecuted? or (2) the Applicant would or might well not have been prosecuted in the Public Interest? If yes, then the proper course would be to quash the conviction. As explained in Joseph (Verna) at [20 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'."

35. Mr Newton relies on the guidance provided by this court on the working out of the statutory defence in section 45 of the 2015 Act and the correct approach to an appeal by a victim of trafficking in R v AAD, AAI and AAI [2022] EWCA Crim

106. In particular he observes that the SCA conclusive grounds decision is admissible on appeal, subject to the decision of the court on the application of section 23 of the Criminal Appeal Act 1968 in the individual case. The categories of case in which a conviction can be overturned following a guilty plea by a victim of trafficking include where the plea is vitiated by being based upon incorrect or inadequate legal advice or where the prosecution would be stayed on the grounds of abuse of process. In respect of the fresh evidence he submits that the test in section 23 is met as the evidence is clearly capable of belief, it supports the ground of appeal advanced, it would have been admissible before the Crown Court in a support of a section 45 defence and there is a reasonable explanation for the failure to adduce it at first instance.

36. We can encapsulate the written and oral submissions thus: (i) The bases of plea in both the Winchester and Salisbury cases were such as to put all those involved on notice that the appellant may have been exploited as a victim of human trafficking and modern slavery. (ii) The Winchester case was brought against the appellant when he was only 17 at the time of the offending, and he could have sought to rely upon the less onerous statutory defence in section 45(4) MSA. If the appellant had been identified as a victim of trafficking at that time then there is every likelihood that he would not have been prosecuted, being a child, and the support he was likely to have received would have been able to prevent his subsequent further involvement in offending. Mr Newton acknowledges that the appellant pleaded guilty on a basis which may appear unrealistic and observes that his current position is not that he was arrested within 10 minutes or even a few hours of first arriving in the house at Amesbury. Realistically it is conceded that his role was greater than that and also covered other dates. But it is submitted that the extent of his involvement at the most is that he was involved for a few weeks acting as a runner and merely 17 years old at the time. On the facts, Mr Newton says, his is a 'classic' illustration of a young person having been exploited in a county lines drugs supply operation. Given the lower bar under section 45(4) for someone of his age, the defence would have been a strong one. (iii) The convictions are unsafe because the appellant, who is highly suggestible and thus vulnerable, has been continually targeted and exploited by more sophisticated criminals.

37. Mr Douglas-Jones KC for the respondent accepts, as we have noted, that the appellant was the victim of exploitation at the time of his arrest for the Winchester case but submits that the appeals should be refused because, if what is now known about the appellant had been known at the time of his prosecution, both prosecutions would still have proceeded and that decision would not have been an abuse of process of the court because prosecutions for offences of Class A drug dealing in his case were in the public interest. He also submits that when the facts are examined carefully (and some of the detail he has collated is set out later in this judgment) it is apparent that the section 45 defence was not likely to have succeeded in either case.

38. He draws on the inconsistencies in the dates given for the stabbing and invites the court to proceed on the basis that the stabling was not connected to the appellant being a VOT. He points out that the appellant was able to access assistance from the local authority from at least 2015 and was in frequent contact throughout the relevant period with adults in authority, including before and after his arrest in November 2016. He was regularly in contact with Youth workers and social services. He submits that the evidence reveals the appellant threw himself into the life-style of drug dealing with its jeopardy and its illicit rewards. Analysis

39. We are grateful for the submissions and material provided by counsel, which have been of great assistance. The legal framework for resolution of the appeal is well-settled and we add no new principles. In addition to R v S(G) and R v AAD & others (supra) we have considered in particular R v AFU [2023] 1 Cr App R

16.

40. The defence provided by section 45 of the MSA is available to adults who have committed a criminal offence because they were compelled to do so by virtue of slavery or relevant exploitation. Younger defendants have a lower hurdle to overcome in pursuing the defence. Section 45 of the Modern Slavery Act 2015 provides: "45 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. (2) A person may be compelled to do something by another person or by the person's circumstances. (3) Compulsion is attributable to slavery or to relevant exploitation only if— (a) it is, or is part of, conduct which constitutes an offence under section 1 or conduct which constitutes relevant exploitation, or (b) it is a direct consequence of a person being, or having been, a victim of slavery or a victim of relevant exploitation. (4) A person is not guilty of an offence if— (a) the person is under the age of 18 when the person does the act which constitutes the offence (b) the person does that act as a direct consequence of the person being, or having been, a victim of slavery or a victim of relevant exploitation, and (c) a reasonable person in the same situation as the person and having the person's relevant characteristics would do that act. (5) For the purposes of this section— 'relevant characteristics' means age, sex and any physical or mental illness or disability; 'relevant exploitation' is exploitation (within the meaning of section 3) that is attributable to the exploited person being, or having been, a victim of human trafficking. (6) In this section references to an act include an omission. (7) Subsections (1) and (4) do not apply to an offence listed in Schedule

4. (8) The Secretary of State may by regulations amend Schedule 4."

41. This is the means by which the UK provides protection for victims of trafficking who offend against the criminal law because they have been compelled. It is for the defendant to raise evidence of each of the elements in section 45 applicable to his case and for the prosecution to disprove one or more of them to the criminal standard. The defence is not available for all offences. Schedule 4 of the MSA lists the particularly serious offences which are excluded from the defence and they include murder and kidnapping.

42. As a first step to pursing a section 45 defence engagement is expected with the NRM via a first responder such as the police or local authorities. The NRM referral is made to the SCA to consider the facts of the case and assess whether or not they find conclusive grounds that the individual was a victim of modern-day slavery. A conclusive grounds decision is made after considering whether 'on the balance of probabilities' there are sufficient grounds to decide that the individual is a victim.

43. Following a conclusive grounds finding the Crown Prosecution Service ("CPS") guidance expects a review to take place as to continuation of the prosecution. The CPS may accept or (with good reason) disagree with the SCA's findings in an individual's case. However prosecution of that same individual could amount to an abuse of process under the second limb defined in R v Horseferry Road Magistrates' Court ex parte Bennett (1994) 1 AC 42, if it would be unfair for that defendant to be tried in the circumstances.

44. The respondent concedes that the statutory defence was not considered by any of the appellant's lawyers in terms with the appellant before 2022 and we proceed on that basis although, as we have noted, we discern in the response of counsel who represented the applicant on 28 October 2019 that he did have section 45 in mind.

45. Decisions of the SCA are not admissible at trial but they are admissible on appeal when it is contended that a person's trafficked or enslaved status has been overlooked or inadequately considered. In R v Brecani [2021] EWCA Crim 731 the Lord Chief Justice held that the SCA worker who made the conclusion is not an expert witness who could give evidence of it at trial. Whilst not binding on this court, the decisions will usually be respected. Where there may be good reason to reject the decision it may be necessary for the appellant's account to be tested independently in order to resolve the issues on the appeal. For example where a finding of trafficking or enslavement is based on unsatisfactory evidence (see AAD & others at paragraph 108]. This is not the situation in this case.

46. The test on appeal is the safety of the convictions. On the basis that this is a case in which the appellant's status as a VOT has been investigated properly so far as the SCA decision is concerned, the Court proceeds as we have set out. The court directed that the appellant make himself available to give evidence and that the expert Dr Cornwell would not be required. The court is required to decide whether it is necessary or expedient in the interests of justice within the meaning of section 23(1) of the Criminal Appeal Act whether to receive the evidence. We have considered all the material sought to be admitted in the appeal de bene esse. We consider it expedient to admit it in the interests of justice to this extent: the SCA decisions and the contemporaneous NHS records as well as the appellant's witness statement are admitted. The remainder does not satisfy the full requirements of section 23(2) of the Act in that it does not, of itself, afford any ground for allowing the appeal.

47. There is no doubt that in certain circumstances the convictions of victims of trafficking maybe unsafe even following guilty pleas, although the court should always be cautious when overturning convictions in such circumstances. The three categories in which a guilty plea may be vitiated were summarised in R v Tredget (Peter) [2022] EWCA Crim 108:

1. First, where incorrect legal advice has deprived a defendant of a defence which quite probably would have succeeded such that a clear injustice has been done, where the appellant is under the influence of a substance, or compelled by improper pressure or an incorrect ruling of the law.

2. Second where there is a legal obstacle to the defendant being tried such as the prosecution would be stayed as an abuse of process.

3. Third where it is established that the plea is false because the appellant did not commit the offence.

48. The appellant does not rely in this case on the second or third category. In the circumstances either conviction will be unsafe if, on the basis of the evidence this court accepts, by the failure to advise on the statutory defence for slavery or trafficking victims who commit an offence provided by section 45 of the MSA 2015 the appellant has been deprived of a reasonable prospect of acquittal, there being the necessary nexus between the appellant's status as a victim of trafficking and the commission of the offences. The full requirements of section 45 differ between the two convictions because of the appellant's age. A fact-specific analysis is required and the decision is particular to the detail of the case before the court.

49. Mr Douglas-Jones has provided a chronology of the evidence against the appellant. We must touch on some of the detail. Having been arrested for possession of cannabis and a knife in May 2016, in August he updated his Facebook page in the name of 'Go'Getter Griefsz (G'Face)' with a photograph apparently of his blue Nokia 105 DS mobile phone taking a photograph of batches of £50 and £20 notes which had expensive-looking watches on top. From 29 October to 21 November that year messages were sent out in bulk inviting Class A drug users to purchase heroin and crack cocaine. These were sent on the Ralph drugs line from the number ending in 0705 which is associated with a Nokia phone seized from the appellant on his arrest in Amesbury on 22 November 2016. As is common in county lines drug supply cases, phones are used on a temporary basis before being replaced and on 15 November 2016, one week before his arrest, the Ralph drugs line using the Nokia phone number sent a bulk message in the name of 'Gee', a derivative of G'Face. The message was: "Im about got both banging stuff top quality fat shots – Gee". The form of the message, the use of 'Im' (with no apostrophe), 'banging' and 'top quality' in particular, were consistent with the other messages sent on the Ralph line in that period. Mr Douglas-Jones makes the observation that by this date rather than a foot-soldier working under close direction of others, the appellant was sufficiently autonomous to be sending out bulk messages to customers of a drug line apparently in his own name.

50. The address in which he was arrested on 22 November 2016 was that of a vulnerable heroin addict whose home had been cuckooed. Telephone analysis demonstrated that the appellant was directing Craig Wood to supply drugs to a user before his arrest.

51. From 11 June 2018 the Ralph line continued to be engaged in county lines drug supply in Wiltshire directed from London until 27 March 2019. On that day there were the arrests of a number of people from London who had, on the face of the evidence, been trafficked by the appellant to a cuckooed home in Salisbury from which they were preparing and selling Class A drugs.

52. Cell site co-location evidence demonstrates that from 28 August 2018 to 27 March 2019 (the date of the arrests at 7 Sandringham close in Salisbury), the applicant's iPhone with the number 9431 and the drug line used to contact users over this, namely 2457, were together throughout the seven months.

53. The 0457 number attributed to the appellant was in contact on 505 occasions with a drug user in Salisbury called Timothy Thomas between the dates of 13 June 2018 and 20 March 2019. Of note the appellants' personal iPhone was also in contact with Mr Thomas' landline number on nine occasions in February and March 2019.

54. From 25 November 2018 to 25 March 2019, Hodge-Walsh's phones travelled to Wiltshire on 32 occasions and there were 2,534 contacts between the appellant's drug line 0257 and Hodge-Walsh's first telephone, and 1,558 contacts between the drug line and Hodge-Walsh's second number. This evidence supports the prosecution's contention that Hodge-Walsh was a Ralph line drug runner who, on the face of it, was exploited by the appellant via the Ralph line number. This began three months after he had been sentenced at Winchester Crown Court to a suspended sentence order. The engagements included the appellant directing where and by whom the runner was to be picked up and taken to Wiltshire to cut and distribute drugs. In the first two months of 2019 messages show Hodge-Walsh accounting to the appellant in 14 messages on six separate dates as to the amount of cash held or spent by him. Hodge-Walsh's saved contact for the Ralph line (2457) was "GFace". The prosecution had available, albeit not admissible against this appellant in a trial, the account given by Hodge-Walsh after arrest which was that "Gee" had threatened him with violence and sent him to Salisbury to pay off a debt. The debt was incurred after he damaged a motorbike. There is also evidence that Hodge-Walsh himself exploited the Salisbury drug user Timothy Thomas in turn. On 11 February 2019, Hodge-Walsh had a photograph of a bank card and the address of Mr Thomas.

55. There can be little doubt on the evidence that the appellant held the 2457 number. What is known as "a bed and breakfast" cell site analysis of that phone's location throughout the month of March 2019 showed that on 11 of the 12 occasions when the data provided an indication, the phone was at the appellant's home address. Mr Newton argues that this evidence is not inconsistent with the appellant's case that he was doing night shift work on the Ralph line under the forceful direction of others.

56. However, that the appellant was directing the Ralph line rather than simply acting on the instructions of others is indicated, the respondent submits, through messages such as one on 20 March 2019 sent to a drug user in Wiltshire in which the appellant stated that Ralph would be about in town later and the user should block any "Gary" imposters. The Gary line was a rival county line to Ralph.

57. The day after Hodge-Walsh was arrested the applicant stopped using the 0457 number and from 29 March began to use 0101 as the new Ralph drugs line number. The SIM for that number was used in the appellant's Nokia handset until 5 May 2019 and there is co-location evidence between the appellant's iPhone and the 0101 number between 31 March and 3 May.

58. There is also evidence that the appellant demanded money from those apparently working for him and threatened them. Between 8 May and 10 May 2019 the appellant used another SIM in his Nokia phone, on the face of the evidence, to threaten someone who apparently owed him £600. The appellant told that person: "My boys are going to come."

59. Mr Newton points out that the co-location records do not coincide with the sending of the threatening messages and so that evidence, and the evidence of someone acting under the appellant's direction, is not inconsistent with his account that he had the Ralph line phone for shifts only. Counsel accepts however that there is no positive evidence in the cell site data to indicate that the appellant did not have the phone at the time the hostile messages were sent.

60. Following the arrests, including that of Hodge-Walsh, the appellant continued to send out bulk messages in his own nickname of "Gee".

61. In light of this evidence, which we have summarised only briefly and selectively, Mr Douglas-Jones submits that there was a strong basis for the prosecution to proceed to try the appellant even if he were to have obtained the CSA decision prior to trial. The CPS guidance would not have mandated the offering of no evidence because the defence would not have been considered a credible one in either case, it being reasonable to argue that the appellant's culpability had not been extinguished or significantly reduced in the Winchester case and, at the very least, there being realistic alternatives to the offending in the Salisbury case (the appellant being by then an adult). This seems to us an entirely sustainable submission despite the concessions made in the Crown Court in the acceptance of the bases of plea. We also accept the submission that in all the circumstances, particularly the appellant's apparent role in the exploitation of others, the various inconsistencies in the appellant's accounts as to how he came to be involved in drug supply and what his roles were, it would have been reasonable for the prosecution to conclude that any compulsion present would not have deemed the prosecutions not to be in the public interest.

62. The SCA was not provided with the evidence available on the Digital Case System for the two convictions. It follows that the decision of the SCA worker was based on incomplete information. This is no criticism of the role of the SCA which is one of identification and there is no dispute that in the kind of county lines drugs supply operation the court has before it, young participants are almost invariably recruited by exploitation. The court proceeds on the basis that this appellant is one such victim.

63. Turning to the checklist adopted by the court in R v AFU (at paragraph 70):

1. Should the appellant have been advised about the possibility of availing himself of a section 45 defence? The answer is "yes".

2. Was he so advised? The answer is "no".

3. Was it open to the applicant, had he been so advised, to advance the defence? We see no reason why, on the account he now gives, he would not have been able to advance the defence.

4. Was it (at least) quite probable that the appellant would have been able successfully to advance such a defence? That is to say, in the Winchester case could the prosecution have disproved any of the following to the criminal standard, namely that: (i) he did the act as a direct consequence of being, or having been the victim of slavery or a victim of relevant exploitation?: and (ii) a reasonable person in the same situation as the appellant and having his relevant characteristics (age, sex and any physical or mental illness or disability) would do the act he did. In the Salisbury case could the prosecution have disproved any of the following to the criminal standard, namely that: (i) He did the act because he was compelled to do it?; and (ii) The compulsion was, or was part of, conduct which constitutes relevant exploitation, or the compulsion was a direct consequence of the appellant being, or having been, a victim of relevant exploitation (ie exploitation that was attributable to the exploited person being, or having been, a victim of trafficking?; and (iii) A reasonable person in the same situation as the appellant and having the appellant's relevant characteristics (age, sex and any physical or mental illness or disability) would have no realistic alternative to doing that act?

64. The answer to (iv) is that the appellant could satisfy the evidential burden in relation to the limbs of the defence in both cases. But in our judgment, given the evidence available to the Crown, there are strong grounds to doubt the appellant's claim that he was in Amesbury on 22 November 2017 as a direct consequence of being a victim of exploitation. But if it were accepted, it is unlikely that a jury would accept that even at the age of 17 years six months, someone with the appellant's age, sex and other relevant characteristics would have done what he did. It is questionable therefore whether a defence based on section 45(4) would have been successful. Even more firmly, given the evidential picture, the prospect of effectively deploying a section 45 MSA defence in the Salisbury case was virtually non-existent, as in our judgment, counsel then representing him correctly and reasonably realised. Conclusions

65. We dismiss the appeal on the merits. The convictions are safe. While the Winchester case may well have resulted in a section 45(4) MSA defence being left to the jury, we are not persuaded that it had a chance of success such that allowing the conviction to stand would be unjust. In the Salisbury case counsel did consider the elements of the section 45 MSA defence but did not advise the appellant of it. This was with good reason. He advised on the instructions the appellant gave him which were inconsistent with the defence such as acknowledging that he had other options than to accede to the demands of those he says were exploiting him and the advice offered was, of course, against the whole background of the prosecution's evidence of which it is clear counsel had knowledge. Taking a view of the case against the appellant as a whole, both Winchester and Salisbury, there was no realistic prospect of a successful defence under the Modern Slavery Act 2015 and in all the circumstances there is no proper basis for going behind the prosecution's retrospective assertion that it would have maintained the prosecutions. Anonymity

66. The practice of providing anonymity protection in cases of exploitation is well-established. However, this is not a case in which the appellant is at risk of trafficking across national borders and there are no concomitant immigration proceedings. He is an adult. In light of our conclusions on the appeal we make no order for anonymity and the decision may be reported in the usual way. (There followed a discussion regarding expediting the transcript) LORD JUSTICE WILLIAM DAVIS: There is no problem about reporting this? There is no Contempt of Court Act order you are seeking? MR NEWTON: I thought about that, in relation to the other matter. The reality is that if the matter were to go to trial, which it may or may not, the facts of what has taken place in the past will all be within the ambit of the evidence anyway. I do not think there is huge prejudice. I am aware of the fact that this is not a case where the court has directed a retrial and the case is connected. Administratively I can see it might be slightly complicated to attach the publication of this judgment to a completely unrelated case in Winchester. Whilst I did think about whether or not there should be a restriction on reporting until the Winchester case is resolved, we do not have a trial date on it and I am not sure there is a huge amount of prejudice involved. I do not know if my learned friend has any thoughts on that. Certainly for my part I do not think — LORD JUSTICE WILLIAM DAVIS: I had assumed that the Winchester jury would hear all about what had happened so it really did not make any difference. MR NEWTON: Exactly. Mr Douglas-Jones is not instructed on the first instance case, only the appeal case, but unless he takes the view from the Crown's perspective that there is any reason for an order to be made, as I say I cannot see any compelling reason for it. LORD JUSTICE WILLIAM DAVIS: No. MR DOUGLAS-JONES: It is a matter for my learned friend in the circumstances. He has to decide on a strategy in relation to the case below. LORD JUSTICE WILLIAM DAVIS: Yes. Thank you both very much indeed. Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground Floor, 46 Chancery Lane, London, WC2A 1JE Tel No: 020 7404 1400 Email: [email protected]