Ms. GB was convicted for using false documentation in 2008 and despite evidence that she was a victim of trafficking and at real risk of persecution, she was not properly advised of her rights or provided support as a victim of trafficking. We were instructed to represent Ms. GB in her asylum and trafficking matter in 2009.
Ms GB travelled to Italy via the United Kingdom. Upon arrival it became apparent that she had been trafficked to the country and was forced to work as a prostitute in order to pay her trafficker for bringing her to Italy. In 2007, she became pregnant and was attacked by her ‘manager’ and told she would be killed if she did not have an abortion. A sympathetic client helped Ms GB escape through Naples and in May 2008 she arrived in the UK.
Ms GB’s trafficking and asylum claim were refused by the Secretary of State for the Home Department (SSHD) despite overwhelming evidence that her claim was plausible.
Following years of uncertainties and pursuing appeals, in 2016 the Upper Tribunal determined that, based on the evidence available, Ms GB was a victim of trafficking and at risk of being re-trafficked. The SSHD eventually conceded the case and granted Ms GB leave to remain in the UK and recognised her as a refugee. Following the decision of the Upper Tribunal and subsequent decision of the SSHD to grant our client refugee status, we made representations to the Competent Authority to recognise Ms GB as a victim of trafficking.
Following her receipt of positive conclusive grounds decision, we reviewed the client’s criminal convictions and determined that in light of the evidence in this case and the findings made by the Upper Tribunal, a referral should be made to the Criminal Cases Review Commission (CCRC) to see if her conviction could be appealed out of time to the Court of Appeal. This is despite the fact that the Court of Appeal had dismissed an appeal against her conviction back in 2012. We made the referral to the CCRC and on 1 March 2019 the CCRC referred her case to the Court of Appeal citing changes in the law regarding treatment of victims of trafficking.
Alongside Henry Blaxland QC, we submitted that Ms GB committed the offence as a direct consequence of her experience as a victim of trafficking. She committed the offence because she had no realistic alternative in order to escape from those who had abused or exploited her and that she would suffer a substantial injustice if the time in which to apply for leave was not extended.
Our main argument was that as a victim of trafficking, Ms GB’s conviction was unsafe and this was a change-of-law case. This is because section 45 of the Modern Slavery Act 2015 was not in force at the time of Ms GB’s conviction, which now provides a defence in cases where criminal acts are committed under compulsion attributable to slavery or certain kinds of exploitation.
Furthermore there has been significant change in the approach to victims of trafficking between 2007 and 2013. This is reflected in a series of Court of Appeal decisions underlining the power to quash a conviction as an abuse of the process if identification of a person as a victim of trafficking did not occur until after conviction.
CPS Guidance has also changed very substantially between the first Guidance in 2007 and the 2015 Act, to include a specific provision on the non-prosecution of victims of trafficking.
These material changes in law all post-dated Ms GB’s conviction in the present appeal. Thus in light of this change, the CPS could conclude that pursuing prosecution is not in the public interest and also that Ms. GB would suffer grave injustice if her conviction is upheld.
Following this referral the case was considered by the Court of Appeal. It was determined that there would be substantial injustice if Ms GB’s conviction was not quashed, and by way of judgement handed down on 16 January 2020, decided that Ms. GB’s conviction was unsafe.
Henry Blaxland QC and Irena Sabic of Garden Court Chambers were instructed in this case by Bahar Ata of the Luton based public law department. Bahar Ata has been representing the client since 2013. Bahar is one of very few experienced lawyers that deal with referrals to CCRC.