Nicholas Hall, working alongside Hogan Lovells Pro-Bono, has successfully removed the previous convictions of a victim of human-trafficking (‘AB’) from her record. At Thames Magistrates’ Court it was ruled that it was in the interests of justice for AB’s convictions of prostitution to be reopened because she was a victim and had given evidence against her enslavers at trial resulting in their convictions. The case raises questions about whether our criminal justice system needs to do more to acknowledge victimhood and restore complainants ‘good’ character.
In three occasions during 2012, AB pleaded guilty and was subsequently convicted of persistently loitering for the purposes of prostitution contrary to section 1 of the Street Offences Act 1959 and failure to surrender contrary to section 6 of the Bail Act 1976. In 2015, it was discovered that AB had been trafficked from Romania and subject to modern slavery and imprisonment in the UK.
In April 2018 at Southwark Crown Court, AB gave live evidence in the trial of three defendants resulting in successful convictions of trafficking and conspiracy to control prostitution. The defendants received substantial sentences. In December 2018, AB gave further evidence against another of her traffickers, although this trial resulted in his acquittal. AB was the principal complainant in both cases and the Crown advanced that she was a forced into prostitution, including for the period during which she received her convictions in 2012.
In order to remove the convictions, the Defence argued that it was in the interests of justice to re-open all of the previous convictions under section 142 of the Magistrates’ Court Act 1980. It was submitted that it was paradoxical to have the trafficking convictions of the three defendants stand alongside the convictions of AB. The two sets were mutually exclusive; AB cannot both have been a victim of sexual exploitation through forced prostitution and a perpetrator (i.e. a defendant) of such conduct. It was illogical that the CPS had formally two differing characterisations of her conduct on record. The convictions were therefore erroneous in law.
Furthermore, at the time of entering her pleas in 2012, AB had the available defence of duress (for the prostitution offence) and reasonable excuse (for the bail act offence) available to her. She was not able to exercise these defences given her servitude.
The District Judge granted the application and re-opened all of AB’s convictions. The Crown Prosecution Service then formally offered no evidence. On conclusion of the hearing, the District Judge remarked that this will enable AB to put the events behind her, move on with her life and reclaim her good name. All convictions have subsequently been removed from AB’s record and that impact on her life, both psychologically and practically, is profound.
Nevertheless, the case raises the question of why should the burden fall on complainants/defendants to have their previous convictions removed. Complainants give evidence at criminal trials at tremendous personal sacrifice for the benefit of the UK Criminal Justice System. They often lack the resources, knowledge or skills to manoeuvre a s.142 Application. Moreover many trafficking victims return to home countries (such as AB) where access to the UK courts is almost impossible. Fortunately in this case, the issue was taken up by the OIC of the trafficking trials who found it unjust that the convictions should be allowed to stand.
Should our system therefore not have an automatic review of previous convictions for those complainants in trials to see whether they are eligible for re-opening? Alternatively should there be more of a discretion to expunge those convictions from the record?
A system which does so would properly acknowledge victimhood, and recognise those individuals, such as AB, who through their tenacity and courage bring their traffickers and those who enslave them to justice.