Charges were brought against the then 21 year-old male Defendant in 2022 for possession of an offensive weapon and possession of cannabis. After the Defendant’s referral under the National Referral Mechanism and a positive Reasonable Grounds Decision from the Single Competent Authority, the Defendant ultimately pleaded not guilty to both charges in December 2023, represented by Isabella Kirwan. The defence raised was Section 45 of the Modern Slavery Act 2015.
Despite a positive Conclusive Grounds decision in February 2024, and representations on the lack of public interest in the continued prosecution of the case by Isabella Kirwan to the CPS in light of the SCA’s findings, and expert evidence supporting this conclusion, the CPS indicated they would continue with the prosecution.
Anna Rubbi advised on the application of the CPS’ 4-stage test for cases invoking a modern slavery defence, the CPS guidance on Modern Slavery, and the Code for Crown Prosecutors which, in conjunction, require the Crown to provide reasons when they decide to maintain a prosecution despite evidence of modern slavery from the SCA, as there was in this case. While the prosecutor might not be bound by the findings of the SCA, they are obliged to take them into account and the CPS “would need to have clear reasons which are consistent with the definition of trafficking contained in the Palermo Protocol and the Anti-Trafficking Convention for disagreeing with it”: VCL and AN v United Kingdom (2021) 73 E.H.R.R. 9 (CPS Modern Slavery and human trafficking offences and defences policy 2020 as amended, 26 Jan 2024)
Having not received a reasoned decision for the CPS continuing the prosecution – in spite of judicial direction – Muin Boase made an application for a stay, invoking the court’s residual abuse of process jurisdiction, relying on R v AAD [2022] EWCA Crim 106. The CPS did not respond to the application in time, and before it could be decided, the CPS discontinued the matter.
Comment
The case serves a reminder that practitioners must be alive to the issue of modern slavery, and the statutory defence. It further underlines the need for CPS to closely abide by the Code for Crown for Prosecutors, and its own Guidance regarding Modern Slavery. The abuse of process jurisdiction in instances where the CPS has failed to abide by its own guidance should be at the forefront of practitioners’ minds, conscious of the ruling in R v AAD [2022] EWCA Crim 106:
125. We have to say, however, that we are, with respect, rather puzzled by some of the observations in [42] of the judgment. We wholly agree with the proposition that if there is a sound evidential basis for the CPS to depart from a conclusive grounds decision, it will not be an abuse of process for the case to be tried. Indeed so. What we find altogether more difficult is the following proposition that "if there is not, it will still not be an abuse of process but the judge will consider any submission that there is no case to answer." But there is no necessary logical connection between an application to stay on the basis of limb two abuse and a submission of no case to answer. Indeed, the application for a stay is essentially on the basis that it is unfair and oppressive for the defendant to be prosecuted and tried at all.
126. Moreover, this dictum does not seem fully to reflect the preceding statement (cited above) in [41] of the judgment in DS to the effect that if CPS guidance is properly applied the CPS will comply with its legal obligations. The implied corollary surely then must be that if the CPS guidance in a VOT case is not properly applied it will not comply with its legal obligations. And if that is indeed the scenario, legal redress, in the form of an opportunity at least to make an application for a stay, should be available: which a Crown Court judge can then appraise by way of review on public law grounds. Moreover, so to conclude does not in any way involve a Crown Court judge entering into the arena of making improperly decisions of fact or usurping the functions of CPS and jury.