Brecani- Road Tested and Refined

Jim Tilbury, who has previously written on modern slavery and people trafficking here and here, considers the latest important decision of the Court of Appeal on this vexed issue.

Context

In R v AAD, AAH and AAI [2022] EWCA Crim 106 a “special court” was  convened by the Registrar to test some of the principal issues arising from R v Brecani [2021] EWCA Crim 731.

The judgment deals with a variety of generic issues which have “general and immediate relevance in the in the conduct of VOT cases…at first instance and on appeal” [78]. The Registrar formulated nine specific questions, the majority of which were also directly relevant to the determination of the three appeals before the court.

This article explores what further degree of clarity the decision provides on the more immediate issues facing practitioners preparing and conducting criminal trials in the Crown Court.

Admissibility [1]: Decisions from the SCA:

[(79-100) and Questions 1-2]

The main headline to emerge from Brecani was arguably the view that decisions from the Single Competent Authority [‘SCA’] – and accompanying minutes – are broadly inadmissible. This position was unsuccessfully revisited by AAD, who had submitted that the rationale in the Brecani decision was a “global” one [85]. The Court of Appeal determined however that this principle had already been “conclusively and clearly answered in earlier decisions”.

A question for the Court of Appeal here was how to reconcile that stark principle with a variety of cases that had come before it. The court answered this with a further refinement of Brecani and a neat alignment with previous authority. It highlighted the distinction between the courts at first instance and the admission of “fresh evidence” in the Court of Appeal, in cases such as R v S(G) [2018] EWCA Crim 1824, and R v AAJ [2021] EWCA Crim 1278.

This refinement means that SCA decisions are still inadmissible in the Crown Court, but may – depending on the context and issues in any particular case – “potentially” be adduced in the Court of Appeal in an appeal against conviction or sentence under the wide ambit of s.23 CAA 1968 and as “fresh evidence”. In leave to appeal or an application to appeal in the Court of Appeal, much may therefore depend on the extent to which an appellant’s background and status as a victim of trafficking [‘VOT’] was dealt with at the original trial. In the Crown Court however, Brecani still holds.

Of additional interest, the Court also noted that the treatment for positive decisions of the SCA should be identical to that of negative decisions.

There was further refinement of the question as to whether the decision makers at the SCA were experts. The Court highlighted salient points from Brecani [85] including that “junior civil servants performing an administrative function … cannot give opinion evidence in a trial on the question of whether an individual was trafficked or exploited”, and whilst they may have gained experience, they are “not experts in the sense understood in domestic criminal procedure”. It further noted [97] “it is not the organisation that is the expert but the proposed witness”.

The Court reiterated the point made in Brecani that any SCA decision is in any event dependent upon hearsay accounts provided by a defendant in the NRM process, in relation to which any hearsay application would have been unsuccessful.  The real issues in any s.45 modern slavery case arise from the jury assessing the account given by the defendant in his or her own evidence, and whether the prosecution had negated that defence.

Admissibility [2]: Experts:

[(86-87) and Question 4]

A particular observation in Brecani had led the Registrar to formulate a particular question for the Court:

“…Question 4- Is the Court able to give further guidance vis a vis the observation in Brecani ([58]) that expert evidence on the question of trafficking and exploitation may be admissible at trial, “particularly to provide context of a cultural nature…of societal and contextual factors outside the ordinary experience of the jury”…”

The Court stated that it had already answered that question earlier in its judgement. It had sought to deal with the question of the defence deploying an expert opinion in trafficking as part of the evidence in a criminal trial, rejecting the admissibility of such expert views as to:

1. The plausibility and consistency of a defendant’s account;
2. A defendant’s vulnerability;
3. Whether a given set of facts meets the legal definition of trafficking.

The Court noted that none of these aspects would come into the well-known exceptions where an expert is permitted to comment upon “the ultimate issue”, such as in cases of diminished responsibility or the question of secondary transfer in DNA.

The Court highlighted the three-stage test as stated at paragraph 44 of Brecani:

1. Is the evidence relevant to a matter in issue in the proceedings?
2. Is the witness competent to give that opinion?
3. Is it needed to provide the court with information outside the court’s own knowledge and experience?

It also highlighted once again the need to follow the provisions of Part 19 of the Criminal Procedure Rules and the Practice Direction, such as to ensure any expert does have all the relevant material [this may include for example phone downloads that may undermine an account].

This decision solidifies the role of the jury in this regard, narrows the ambit for any expert in the field of trafficking, whilst firmly endorsing the points from Brecani.

The Court observed that “it does not matter that the members of the jury have not shared the suggested experiences described by the defendant in a human trafficking or modern slavery case” [86].  The Court illustrated this point with the absence of first-hand jury experience in an armed robbery involving issues of duress or somebody caught up in a riot.  That “does not require a witness to express a view as to whether the account of the defendant is consistent with how someone would behave” in that situation. Jurors were “well placed to form their own conclusions”.

The Court confined the question of experts to explanation of “discrete issues” such as “the defendant’s psychiatric or psychological state or the detailed mores of people trafficking gangs operating in countries that are outside the court’s own knowledge and experience” [87].

Abuse of process:

The question then arose as to whether there was still any place for [second limb] abuse of process applications in the light of the Modern Slavery Act 2015.

Rejecting the prosecution’s assertion that there was not, the Court found the judgment by the LCJ in R v DS [2020] EWCA Crim 285 “rather puzzling” in this regard, and equally that R v A [2020] EWCA Crim 1408 was obiter. The Court would in any event depart from such decisions in light of VCL and AN v UK [77587/12 and 74603/12] [discussed here].

The Court determined, with regard to its international obligations on matters of unfairness, oppression and legality, that the door was still ajar.

However, its application in practice would be very limited indeed. It would be confined to the rare instances where [120]:

1. The CPS had failed to have regard to the CPS guidance, or
2. There was a wholesale lack of any rational basis to depart from a SCA decision.

The Court reinforced the point that there could be no application to stay merely because there was a disagreement with the CPS decision. The decision to prosecute is a matter for the CPS.

Where there had been a proper process and regard had to the guidance, there was no remedy [118]:

“… It would be fruitless for a defendant to seek to avoid prosecution by alleging [truthfully or not] status as a VoT or [even where such status of VoT is admitted] by disputing the asserted lack of nexus between that status and the criminality in question.  It will be fruitless just because those matters will be jury matters…”

The Court observed that a practical alternative option would be to invite a judge to first ask that the case is adjourned for the CPS to reconsider a decision to prosecute.

Conclusion:

Brecani has been road tested and shown to have fared well.  Its key principles for practitioners have now been further refined:

1. SCA decisions have no place in the Crown Court, but are potentially admissible as fresh evidence in the CoA;
2. The status of SCA decision makers remains as “non-experts”;
3. The arena for true expert assistance and opinion in a Crown Court trial in matters of VoT and s.45 is a very narrow one.

Furthermore, whilst abuse of process applications are no longer perhaps technically dead in the water, the heartbeat is but a very faint one.

Jim Tilbury, who undertakes a range of serious criminal and financial crime defence work, has considerable expertise in cases involving people trafficking and modern slavery. He has written extensively on this topic.

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