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November 4, 2022

Earlier this week, the Court of Appeal handed down judgment in the case of AUL v R [2022] EWCA Crim 1435. In this case the applicant (AUL) was seeking to have his convictions set aside on the basis that his acknowledged status as a victim of trafficking (VoT) meant that he should never have been prosecuted.


It was not in dispute that AUL was trafficked from North Africa to Spain as a child, then moved to the UK in the back of a lorry in 2011 at the age of 15. Very soon after arrival in the UK he became a “looked after” child and was fostered. Later he lived independently, with support from the local authority. He attended college and gained qualifications. He was not involved in any criminal activity during those years.


In early 2016, at the age of 20, five years after his arrival in the UK, he left his accommodation and went to Bournemouth. He had unsuccessfully applied for asylum on the basis that as a gay man he was afraid for his safety were he to return to Morocco. He told the Court that he then lived for a short time on the streets, had begun to use drugs and had got into debt.


In time he became involved in drug dealing: storing and delivering packages to people in different parts of Bournemouth, under direction by an established drug trafficker. He asserted that when he wanted to stop doing this he was threatened and so continued to deal in drugs until he was arrested in the summer of 2016.


AUL pleaded guilty to a range of drug offences – at no stage did he advance a defence under s45 of the Modern Slavery Act 2015 (the 2015 Act). However, on his release from prison he was referred to the SCA, who returned a positive conclusive grounds decision that he was a VoT.


It was the applicant’s case that his drug dealing was connected to being trafficked and he should not have been prosecuted in light of the principles incorporated in the 2015 Act.


Edd Hetherington represented the Respondent (prosecution), and argued that the appeal was bound to fail due to the lack of connection between the movements which qualified AUL as a VoT and the offending.


The definitive statement of the approach to such appeals is set out in the judgment of Thomas CJ in R v Joseph and Others [2017] EWCA Crim 36 [2017] 1 Cr App R 33, as follows;


i) Is there credible evidence that D falls within the definition of trafficking in the Palermo Protocol and the Directive?

ii) Is there a nexus between the crime committed by the defendant and the trafficking?

iii) Is it in the public interest to prosecute?


The Court rejected the applicant’s arguments and found there to be no nexus whatsoever. In doing so, the Court expressly deprecated the uncritical approach of the SCA, which had entirely accepted a version of events which did not survive testing under cross-examination.


For the full judgment, please click here: https://www.bailii.org/ew/cases/EWCA/Crim/2022/1435.html 


If you would like to discuss instructing a member of the Albion Crime Team, or would like any training in this area, please contact a member of the clerking team.


Edd Hetherington