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The Appellant in in Henkoma [2023] EWCA Crim 808 had pleaded guilty to two firearms offences three years apart, one when a child, one when an adult. He had been recruited by gang members and exploited as such from an early age. It was argued that, in spite of the seriousness of the offences, failings by different branches of the state, including the local authority, amounted to breaches of the state’s international law duties to identify, protect and recover victims of trafficking. There were therefore breaches of Art. 4 of the European Convention on Action against Trafficking and Art.4, ECHR.

Lady Justice Carr, the Lady Chief Justice-designate, acknowledged the exploitation and failures in the process that should have protected him. It was acknowledged that there had been Art.4 failures. Nevertheless, the seriousness of his offending was such that to prosecute him was not an abuse of process.

The judgment is significant as, for the first time, the Court emphasised that deference is due to the Crown’s position on the public interest in a prosecution, even where the consideration of the public interest in light of the full factual picture only occurs retrospectively at the appellate stage. The prosecution stance would need to be “clearly flawed” before a conviction will be unsafe.

Following the leading cases of AAD [2022] 1 WLR 4042 and AFU [2023] 1 Cr. App. R. 16, this case and AJW [2023] EWCA Crim 803 provide the bookends to the principles to be applied when considering whether a conviction will be unsafe when elements of exploitation are overlooked in the Crown Court.

Andrew Johnson acted for the CPS Appeals and Review Unit. Ben Douglas-Jones KC, leading James Robottom of Matrix, acted for the Appellant, instructed by Philippa Southwell of Southwell and Partners.

Ben Douglas-Jones KC and Andrew Johnson appeared in all four cases (AAD, AFU, AJW and Henkoma).