202403821 B2 - [2025] EWCA Crim 1205

Analysis – the grounds of appeal:

We have found this a troubling case, and have hesitated as to whether we are able to accept the submissions on behalf of the applicant as to an extension of time, and as to the merits of the appeal.

The statement helpfully provided by the applicant’s solicitor provides a clear and sufficient account of the chronology of relevant matters since she was instructed in January 2024. But it is silent as to why the applicant took no action to initiate an appeal until some 17 months after her conviction in August 2022, and silent as to what prompted the applicant to instruct solicitors in January 2024. The applicant herself has provided no explanation.

A convicted defendant who wishes to appeal against conviction must give notice of application for leave to appeal (in the prescribed form, “form NG”) within 28 days after the conviction: see s18 of the Criminal Appeal Act 1968 and r39.2(1) of the Criminal Procedure Rules. If notice is not given within that period, an application for an extension of time must be served at the same time as the form NG, and reasons must be given why the extension should be granted: see Crim PR r36.4 and the Guide to Proceedings in the Court of Appeal, Criminal Division paragraph B.4.1.

As this court has repeatedly emphasised, a sufficient explanation must be given for the whole of the period which has elapsed between the expiration of the 28-day time limit and the serving of the form NG. This court will always wish to consider the merits of a proposed appeal before refusing an application for an extension of time; but applicants and their advisers must understand that an extension of time may be refused if only part of the relevant period has been sufficiently explained. Here, the applicant has failed to explain her delay until January 2024. Ms Ahluwalia has made submissions, but it is not for the court to make good any deficiency by guessing at possible reasons.

The applicant may therefore consider herself fortunate that we are persuaded that the merits of her appeal are sufficiently strong to justify our granting the necessary extension of time.

Turning to the merits, the respondent rightly accepts that there was a failure by both the police and the CPS. We are not, however, persuaded that the convictions are unsafe simply because those failures occurred. The effect of the failures was to deprive the applicant of an opportunity for a decision to be taken not to prosecute her, or to discontinue the proceedings against her, on the ground that she was a VOT/VMS. The failures did not, however, deny the applicant any opportunity to advance her case on the basis that she was a VOT/VMS. On the contrary, the information provided by trial counsel shows that he specifically considered whether to do so, although he decided to focus on the defence of duress. There is nothing to suggest that, if the police and the CPS had carried out the reviews which were required of them, they would have produced evidence supportive of the applicant which was not in any event available to her.

We consider next whether the failures of the police and the CPS would have provided a strong basis for an application to stay the applicant’s prosecution as an abuse of the process, such that the convictions cannot be regarded as safe.

It is appropriate to begin with some general observations as to the abuse of process jurisdiction in cases in which a defendant claims to be a VOT/VMS.

There are two well-established categories of case in which criminal proceedings may be stayed as an abuse of the process of the court: where the defendant cannot receive a fair trial (“limb 1”); and where it would be unfair to try the defendant (“limb 2”). A stay for abuse is an exceptional remedy, rarely granted. A defendant who applies under limb 2 faces a particularly high hurdle, because the premise of the application is that a fair trial is possible.

Prior to the MSA 2015 coming into force, case law had somewhat expanded the abuse jurisdiction to allow a stay of proceedings where a defendant was found to have been a victim of human trafficking. However, in R v DS [2020] EWCA Crim 285, [2021] 1 WLR 303 the court explained that such expansion had been designed to fill what was then a lacuna, but that the 2015 Act had ended the need to do so. At [40], Lord Burnett CJ stated unequivocally that:

“… cases to which the 2015 Act applies should proceed on the basis that they will be stayed if, but only if, an abuse of process as conventionally defined is found.”

In R v AAD [2022] EWCA Crim 106, [2022] 1 WLR 4042 the court held that it was possible for a defendant who could potentially rely on a defence under s45 to apply for his prosecution to be stayed as an abuse if it was unfair and oppressive for him to be prosecuted and tried at all. At [120] Fulford LJ stated that a case in which the CPS had unjustifiably failed to take into account its own guidance might in appropriate circumstances be stayed. At [127] he stated that the basis of such an application to stay would be unfairness, oppression and illegality, consistent with the conventional limb 2 type of abuse. He continued:

“And if there has been an unjustified and material failure to have regard to CPS guidance in this kind of context or an irrational and perverse departure from a conclusive grounds decision in this kind of context then an arguable case of unfairness and oppression and illegality would potentially be there.”

In R vAFU [2023] EWCA Crim 23, [2023] 1 Cr. App. R. 16 the court found on the facts that the appellant had been properly advised about the availability of a s45 defence. However, the prosecution was an abuse of the process because the prosecution had failed to follow guidance which would clearly have resulted in the prosecution being discontinued. Carr LJ (as she then was) said at [139] that it was an exceptional case, where there was a clear abuse of process such that the conviction was unsafe, notwithstanding that the appellant had pleaded guilty At [141] she stated that if the prosecution had complied with its duties:

“the prosecution would not have proceeded in the first place and/or would not have been pursued and/or the applicant would have had a proper opportunity to apply for a stay”.

The latter two decisions do not depart from Lord Burnett’s clear statement that, in cases of this nature, the jurisdiction to apply for a stay is limited to the conventional two categories to which we have referred. Where a limb 2 abuse is alleged, the applicant must show that to allow the prosecution to continue would be an affront to the conscience of the court.

In the circumstances of the present case, we accept the respondent’s submission that, if an abuse application had been made, it is by no means certain that it would have succeeded. Serious though the failures of the police and the CPS were, they could have been remedied. If the applicant had made an abuse application in the Crown Court, it would have been incumbent upon her legal representatives to notify the court and the respondent of that application at an early stage. The judge would then have been entitled to adjourn the application so that the police and the CPS could carry out, belatedly, the reviews which they had neglected. It could not then be said that the circumstances demanded the exceptional remedy of a stay of proceedings.

On the evidence as it stood pre-trial, it is in our view impossible to say that the result of the belated reviews would probably have been a decision not to prosecute; and if the reviews concluded that it was appropriate to continue the prosecution, then the application to stay the proceedings as an abuse would inevitably have failed. In those circumstances, trial counsel cannot be criticised for not advising the applicant to pursue an abuse application.

It follows that the applicant cannot succeed on the basis of her grounds 1 and 2 alone, or on the basis of a combination of her grounds 1, 2 and 3.

The strength of the applicant’s case lies in the combination of her grounds 1, 2 and 4. The consequence of the failures by the police and the CPS was that arguments and a statutory defence based upon the applicant’s being a VOT/VMS would not be considered by the court unless she raised them at trial. Counsel representing a defendant in such circumstances has to consider the tactical emphasis to be given to particular arguments We can understand why trial counsel in this case felt that the question of whether the applicant acted under compulsion would be a difficulty for her whether considered in the context of duress or of the statutory defence. Viewed in that way, the decision to focus only on the defence of duress may be understandable.

The key point, however, is that it was not a decision taken by the applicant. The defence of duress and the statutory defence are not identical, and in some circumstances the latter may succeed even though the former fails. The CPS Guidance therefore requires consideration of both. Here, the statutory defence had been raised by the applicant’s initial instructions, and had been mentioned in the BCM form when the criminal proceedings began. As is apparent from the information now before this court, the applicant was in a position – had she been asked – to give more detailed instructions about matters which could support that defence. In those circumstances, the possibility of advancing that defence as well as the defence of duress needed careful consideration by the applicant, based on advice from her counsel.

We are grateful to trial counsel for his acceptance that he did not advise the applicant about the possibility of advancing a s45 defence. That has enabled us to accept that this appeal is not an attempt by the applicant to put forward on appeal a defence which she had chosen not to rely on at trial. We regard that as a very important point.

We are also grateful to Mr Ray for his very fair assessment of the merits of a s45 defence if it had been put forward at trial, and if more detailed instructions had therefore been taken from the applicant in relation to that defence. It does not appear that the respondent would have been able to adduce evidence to rebut any of the points now advanced by Ms Ahluwalia in support of a s45 defence; and the comparison with Baldwin’s position would have been a strong jury point in the applicant’s favour.

In those circumstances, we are persuaded that the failure to advise the applicant about the statutory defence had the effect of denying her the opportunity to put forward a defence which quite probably would have succeeded, and that the applicant thereby suffered a clear injustice. It follows that the appeal must succeed.

We do not think that ground 5 adds anything of substance to the applicant’s appeal: no substantial criticism is made of the judge’s directions in respect of the issues which were before the jury; and it is trite to say that if an additional and different issue had been raised, the appropriate directions of law would necessarily have been different.

In reaching our conclusion as to the merits, we have focused on the evidence which was adduced or available at trial. We think it right formally receive the proposed fresh evidence, and have taken it into account as providing support for our conclusion.

We turn to the applications in respect of anonymity.