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Victim of trafficking successfully overturns historic conviction, representing a ‘lack of awareness of the law and procedure in relation to the rights of people who had been trafficked’

Lady Justice Thirwall’s judgement on O v R [2019] EWCA Crim 1389 in the Court of Appeal has contributed to a recent series of successful appeals brought by victims of trafficking against historical criminal convictions.

In 2008, O, a Nigerian national, was convicted for the use of false travel documents only days after she had been trafficked into the UK. O gave consistent testimony at the time of her arrest that, being a victim of trafficking, enslaved into domestic labour across Europe and subjected to sexual exploitation, she had been forced to commit the offence by her traffickers. At trial O’s account of trafficking was accepted, however, those charging O failed to recognise that the circumstances in which she committed the offence undermined the public interest in bringing her prosecution.

Following conviction and upon commencement of her prison sentence, O applied for asylum in the UK. Subsequently, she was assisted by the Human Trafficking Centre support agency and released to a Women’s Refuge. Having secured asylum, O sought for her criminal conviction to be quashed.

At the time of her conviction O had not been able to rely upon the defence available to victims of trafficking in Section 45 of the Modern Day Slavery Act 2015. However, in O’s appeal the Court confirmed that, even before such statutory provisions came into existence, the UK had the same obligations towards victims of slavery under the European Convention on Human Rights, which had been given effect through the common law and Crown Prosecution Guidance.

Lady Justice Thirwall asked three questions of the Court during the appeal, to determine whether the law had been followed in the original trial: -

  1. Is there reason to believe that the person has been trafficked?
  2. Is there evidence that the offences were committed as a result of compulsion arising from trafficking?
  3. Assuming the answer to each question is yes, did the prosecutor consider whether it was in the public interest to prosecute?

All three above questions were found in O’s favour. Her consistent account of having been trafficked and subsequently forced to commit the offence by her traffickers was accepted. In relation to the third question, the Court held that ‘proper consideration (by the prosecution at the time) would have led to a decision that it was not in the public interest to prosecute’ and subsequently quashed O’s conviction.

This case is significant as it demonstrates that historic miscarriages of justice and unlawful imprisonment of victims of trafficking can be successfully overturned. The case has also laid down the relevant questions to be asked by the Court in these circumstances.

If you, a friend or a family member, have experienced an unlawful conviction that has been successfully overturned, you may have a civil claim. Please do not hesitate to contact our Civil Liberties team to discuss this further on 0207 632 4300.

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