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England and Wales Court of Appeal (Criminal Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Nguyen, R. v [2023] EWCA Crim 1376 (09 June 2023) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2023/1376.html Cite as: [2023] EWCA Crim 1376 |
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CRIMINAL DIVISION
Strand London WC2A 2LL |
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B e f o r e :
MR JUSTICE CHOUDHURY
MR JUSTICE CONSTABLE
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REX |
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TAUN VAN NGUYEN |
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Lower Ground, 18-22 Furnival Street, London EC4A 1JS
Tel No: 020 7404 1400; Email: [email protected] (Official Shorthand Writers to the Court)
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Crown Copyright ©
i. "Forced to undertake work - defence under section 45 of the Modern Slavery Act and duress. No intention to supply."
i. "You explained that you had been forced to stay at the address and tend to the plants as payment to people smugglers. They have made veiled threats to you and your family. Mr Renteurs went on to explain the defence of duress. You stated however that you did not want to pursue the matter to trial and that you wanted to plead guilty. You explained that you basically just wanted to get the shortest sentence as possible so that you can see your family."
i. "It is noted that you addressed this inconsistency in your witness statement, in which you stated that your criminal solicitors advised you to plead guilty to decrease your sentence. You added that you did not realise that you could raise trafficking and modern slavery as a defence. It is considered that you have offered inadequate explanation as to the reason for your delay in disclosure as such for this inconsistency".
i. "I cannot recall what advice I was given regarding entering a guilty plea, it has been a significant period of time that has passed, and I also suffer from mental health problems and I am still on medication which includes Fluoxetine and Quetipine. I am also on medication for my eye post-acid attack which includes Doxycycline and Maxidex. I have been on this medication for two years."
Grounds of Appeal
i. "I have considered the papers in your case and your grounds of appeal.
ii. The applicant pleaded guilty to cultivation of cannabis. He was represented by solicitors and counsel. To have an arguable appeal against conviction he must bring himself within one of the three categories of case identified at [155] to [157] of AAD and others. The grounds of appeal assert that his plea was equivocal. In strict terms that is not correct. The applicant's real submission is that he was not properly advised about a defence which probably would have succeeded and/or that there was a legal obstacle to him being tried in that the prosecution would have been stayed as an abuse of process had the full position been known.
iii. The applicant made a statement in 2019 in which he said that his solicitors advised him to plead guilty to decrease his sentence. He also said that his solicitors never spoke to him about trafficking or modern slavery so he did not realise that he could raise it as a defence. In a statement made in 2022 the applicant said that he did not recall at any stage being advised on a Section 45 defence or an [National Referral Mechanism] referral. If there were any prospect of those propositions being established, it would be necessary to consider whether it is arguable that a defence based on trafficking probably would have succeeded. In fact, the contemporaneous documentary evidence supported by the recollection of solicitors and counsel contradicts what the applicant has said.
iv. Even at the magistrates' court there was discussion about the possibility of a defence based on duress or on trafficked status. This appears from the solicitors' attendance note. At the PTPH the applicant was not arraigned because the prosecution wished to consider their position in relation to the applicant's status. There had already been a reasonable grounds decision from the Single Competent Authority in the applicant's favour. Counsel noted on the PTPH form that the issues in the case were defence under S.45 of the Modern Slavery Act and duress. Counsel's clear recollection is that there was discussion with the applicant in relation to those issues. The contemporaneous material is clear and unequivocal.
v. The adjourned case management hearing took place about 6 weeks later. There is some disparity between the recollection of the solicitor who attended and instructed counsel. The solicitor's attendance note refers to advice in relation to the defence of duress. Counsel considers that this must be taken as shorthand for duress plus trafficking given the overlap between the two and given the reason why arraignment had been postponed. In any event, there is agreement that the impetus for the plea came from the applicant. He did not wish to run any available defence. Rather, he wished to plead guilty in order to reduce his sentence. The judge at the PTPH had indicated that whatever credit was available at that point would be preserved until the adjourned hearing so there was a real benefit to be obtained from a plea at the adjourned hearing.
vi. By the time of sentence the issue of plea was no longer immediately relevant. However, counsel who appeared for the applicant explained to him that, whilst the defences of trafficking and duress no longer were in issue, she could use the matters relevant to the potential defences in mitigation. This is recorded in a contemporaneous attendance note. There was an exchange with the sentencing judge which confirms the accuracy of the note.
vii. Given all those matters, the proposition that the applicant was not advised about his defence is untenable. It also is not sensibly arguable that the applicant was advised to plead guilty to reduce his sentence. All of the contemporaneous material supports the proposition that it was his decision to take that course in order to obtain the benefit of a plea of guilty.
viii. This is not a case in which the position was not appreciated by the prosecution. They considered the issue of whether the applicant was trafficked and how this might affect the proceedings. It is not arguable that there was or is any obstacle to the applicant being tried. It is to be noted that he had a co-accused who pleaded not guilty and who was convicted. The co-accused's personal position was similar to that of the applicant.
ix. In those circumstances, the proposed appeal is not arguable. It falls at the first hurdle with the applicant's plea of guilty."
"153. Given the clear terms of section 45 which aptly reflect the United Kingdom's international obligations in this context (as summarised above), there is no sustainable foundation for the submission that this legislative provision should be reformulated in the manner suggested, substituting the 'compulsion' element of the defence with that of 'causation'. That would involve the wholesale rewriting of a statutory defence without any, or any material, justification. At least since the Council of Europe Convention came into force domestically on 1 April 2009, the United Kingdom has subscribed to and implemented a binding international approach, now reflected in section 45, which provides a defence to certain crimes for trafficked individuals if the prosecution is unable to make the court sure the 'compulsion' defence does not apply."