BLOG: The times, they are a-changin’ (again)

James Tilbury gives his first thoughts on the decision of the Court of Appeal in Brecani [2021] EWCA Crim 731.

For those practitioners who thought that a positive decision from the Single Competent Authority as to whether a defendant was a victim of trafficking is admissible, having been settled since early 2020 with the Divisional Court decision in DPP v M [2020] EWHC 344 Admin, well…think again.

In Brecani, the Court of Appeal in a strong Court headed up by the LCJ, with Fulford VP and Jeremy Baker J concluded, “in respectful disagreement” with the Admin Court [Simler LJ and William Davis J] that it was not.

Brecani concerned a 17 year old convicted of conspiracy to supply class A drugs who had sought to run the modern slavery defence under s.45 of the Modern Slavery Act 2015 [HHJ Jonathan Mann KC and jury at Woolwich CC]. The trial judge had refused to sever the defendant off to await the outcome of the SCA process and the conclusive grounds decision of the SCA emerged mid-trial.

The prosecution, having reviewed the matter, in particular the contents of a phone download which was unhelpful to the defence, decided to press on.

The prosecution refused to make any admissions. The trial judge refused to admit the positive decision from the SCA [who notably had not considered the phone download], and its annexe, nor would he allow the defence to rely on separate reports from an “expert” on the subject of trafficking.

This CoA decision has multiple significant ramifications in practice and recasts the balance between prosecution and defence.

SCA decision makers: expert status?

The CoA held a very different view as to the real level of relevant expertise of the caseworker from the SCA making any such decision. Where the Admin Court had found that “the decision maker had expertise in relation to the question as to whether M had been trafficked and exploited”, the CoA were “unable to agree that expertise for the purpose of being accepted as an expert in criminal proceedings can be inferred from the fact that a person holds the job of case worker” [cf. para.59].

The CoA found that there had not been any evidence advanced of the decision makers’ relevant expertise, and that they were rather more “junior civil servants performing an administrative function” [cf. para. 53].

Significant preconditions for expert evidence in criminal trials were absent. Nowhere in the Home Office guidance is it suggested that the decision maker might be called to give evidence in a criminal trial [and be cross examined for example], and that s/he might be acting in any “expert” capacity. None of the basic requirements under CrimPR 19, such as confirmation they understood their obligations when acting as an expert, had been complied with.

Other reasoning:

The CoA observed that much of the material that formed the basis for the SCA decision was in fact hearsay, where no application had been made, and none would have succeeded.

Of particular significance was the fact that the SCA decision maker had not considered the adverse contents of the mobile phone download, and as such, was wholly reliant on “misinformation” about the facts. As such it was “valueless and inadmissible”.

Reliance on the jury

The Admin Court in DPP v M had determined that the factual issue of whether a defendant was or was not a victim of trafficking was “not something which is immediately identifiable such as the colour of a person’s hair. Therefore the fact finder will require evidence to assist in determining this fact” [cf. para. 45].

In contra-distinction, in Brecani the prosecution had contended that the evaluation of the evidence was within the ordinary knowledge of the jury, essentially determining credibility, and the CoA agreed. They found that “the conclusion on whether the prosecution has disproved the section 45 defence will call for an assessment of all the relevant evidence which the jury is well-placed to make” [cf para. 58].

What room for “experts” now ?

Unless individual SCA decision makers can be persuaded to i) set out their relevant expertise and ii) assist the Court as an expert witness in the manner envisaged by CrimPR 19, the days of an agreed admission between the parties at trial of a positive SCA decision seem to be over.

In Brecani the author of the additional defence expert reports was also found on the facts to have insufficient relevant expertise. That difficulty was further compounded by the fact that in his first report he had not met the defendant, and in both reports he had not considered core information, the phone downloads.

The CoA clearly noted that the door to expert evidence was not shut. Expert evidence might still be admissible on the question of trafficking and exploitation, but that was likely to be confined to contextual and societal factors truly outside the ordinary experience of the jury.

Defence practitioners will need to ensure that any such experts have i) clear relevant experience, ii) a good understanding of their obligations to the Court, and iii) all the relevant material before them.

Conclusion:

Prosecutions in cases where an admission had been made as to a positive SCA decision have often struggled to counter such admissions in the eyes of the jury, particularly where the author was not available for cross examination, and it was the prosecution who bore the brunt of then disproving a modern slavery defence. That struggle may be over, but arguably an imbalance the other way now exists.

Any “bite” of a positive decision seems now to be lost to the exercise of a prosecutorial discretion to review a case and determine whether to proceed or not in light of it. Provided there is a “good reason” to disagree with such a decision, the prosecution is not bound by it [cf the Strasbourg Court in VCL at para. 162, explored in greater detail here].

It is now commonplace for prosecutions to continue irrespective of positive SCA decisions.  Furthermore, it now also seems that lengthy delays to multi-handed trials in order to await the outcome of the decision-making process may also be difficult to justify. For defence practitioners and vulnerable defendants, it was nice while it lasted.

James Tilbury is a highly regarded leading junior, regularly instructed in complex cases of serious commercial fraud and organised crime. Recent instructions have included payroll fraud, conspiracy to kidnap, perverting the course of justice, gang-related violence and large-scale drugs conspiracies.