[2023] UKUT 239 (AAC)

The FtT ultimately found it had not been established either way whether there was a direct causal link between the applicant’s status as a victim and her offending or whether her offending was wholly unrelated to her status as a victim. As such the FtT did not find the applicant was a “nexus offender”. As the Applicant did not fall within this category the issue on differential treatment in this context did not arise.

This was a factual finding or at least an evaluative judgement. The argument was made before the FtT who had the benefit of hearing from the Applicant and her legal representative and had sight of a significant portion of the applicant’s medical records. Counsel for the Applicant submitted it may have been the case that the CSA the applicant suffered as a child caused or made her more likely to offend as an adult.

This point was also argued before me. Counsel for the applicant referred to, inter alia, evidence contained in the REA (The Impact of Child Sexual Abuse Rapid Evidence Assessment, July 2017) which found studies showing that victims and survivors were found to be 1.4 times more likely to have contact with the police and almost five times more likely to be charged with a criminal offence than those who have not experienced child sexual abuse. I note this evidence refers to the victims of CSA in general. Counsel also referred to the applicant’s own written evidence of the impact this event had had on her and referred to mental health difficulties which were documented in her medical records.

Counsel for the Secretary of State argued the vast majority of CSA victims do not go on to commit further offences. It was also argued there was no evidence specifically linking the particular offence committed in 2017 to the assault in 1990 but that there were a number of other potential factors, unfortunately, including ,inter alia, violence in a domestic context which may have explained any existing condition aside from the assault in 1990.He argued the appellant had not established she was a “nexus offender” and the FtT were correct in relation to their findings on this issue.

I am satisfied there was no error of law in the FtT’s conclusion on this point. The threshold for interfering with the FtT’s factual findings or evaluative judgements is high. I would have to conclude that it was a finding or judgment that no reasonable tribunal properly instructed could have come to on the evidence available (see for example Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 or Edwards (Inspector of Taxes) v Bairstow [1956] AC 14) . Having considered this issue and the evidence in relation to it carefully, I conclude that the FtT was entitled, on the evidence, to conclude that the applicant had not established either way whether there was a direct causal link between her status as a victim and her offending or that her offending was wholly unrelated to her status as a victim. As such she had not established, she came within the category of nexus offenders.

The FtT also agreed with the reasoning of the Supreme Court (paragraph 75) that nexus offenders cannot provide a basis for requiring differential treatment for all victims (of trafficking) who have committed offences including non-nexus offenders. The FtT considered the same reasoning applied to victims of CSA. I consider they were correct to do so.