Overturned conviction in trafficking case in the Court of Appeal
The Court (Carr LJ, Jay J and Sir Nigel Davis) overturned the conviction of a woman who had been a child at the time, but who was convicted as an adult, alleged to have entered into a sham marriage to secure immigration status in the UK.
The case confirms that the roots of AAD [2022] 1 WLR 4042 abuse of process are vested in second limb ex parte Bennett abuse. The protection ensures that even where there has been a jury trial a conviction may be unsafe if it was unfair to try a defendant.
The Appellant was a victim of Female Genital Mutilation who fled her home at the age of nine so that she was not further “cut” and forced to marry a much older man. She had been taken in and educated by a man who sexually abused her until she was 15. He trafficked her into sex work in the UK before there was an attempt to traffic her to Italy for further sexual exploitation. The Appellant then agreed to marry a man in his 40s when she was still only 15. She alleged, and some seven years later, the Single Competent Authority agreed that she had been a victim of trafficking in Nigeria and the UK and had been compelled to enter the sham marriage by the putative husband.
The Crown contended that the marriage was sham but nevertheless accepted the conviction was unsafe because it had been unfair to try her as a 15 year old victim of trafficking and had the proper safeguards been applied by the authorities and those representing her she would not have been prosecuted. The Court accepted the prosecution’s concession that if what was known now had been known at the time of the prosecution, the Appellant would not have been prosecuted, and that the conviction was accordingly unsafe and should be quashed.