Our 17 year old client faced charges of possession of Class A drugs with intent to supply to another and being concerned in the supply of Class B drugs. He was arrested in Aylesbury in March 2023, aged 16, an area to which he had no connection. At the time of his arrest he was already the subject of one positive conclusive grounds decision from a referral to the Single Competent Authority in  2020 and had been referred again under the National Referral Mechanism in 2022 with a positive reasonable grounds decision having been reached. He had been removed from the family home by Social Services in November 2022 due to safety concerns after he was been stabbed on the London Overground. He was therefore already in the care of the Local Authority when he was arrested. The client had already spent the entirety of his life in temporary accommodation.  He pleaded Not Guilty relying on the statutory defence contained within s45 (4)  of the Modern Slavery Act 2015 and the court granted our application for a certificate for counsel. Upon receipt of the second positive conclusive grounds decision we wrote representations to the Crown asking them to review the prosecution in line with their four stage test. We sought to persuade them that the conclusive grounds decisions were well rounded and informed as they had considered information submitted by two police forces, Social Services, the Youth Justice Service and the CPS.  In addition to the minutes of both decision making processes, the full files were obtained from the Single Competent Authority and a psychological report was completed to identify the client’s “relevant characteristics” as defined by s45(5) of the Modern Slavery Act 2015. Notwithstanding this material, the Crown stated that they were satisfied that the prosecution should go ahead as they did not find any evidence of a modern slavery defence.

Upon receipt of that correspondence, with the assistance of Lambeth Youth Justice Service, we obtained copies of the original documents that had been submitted as part of the National Referral Mechanism and sent them as exhibited evidence to the Crown. By this time the Crown Prosecution Service had updated its guidance in relation to the prosecution of children and the public interest considerations including the circumstances of the child, the physical and mental health of the child and children who are looked after. This was especially pertinent in this case as the CPS guidance acknowledges that children who are looked after by the Local Authority are vulnerable and at high risk of offending because they are in a different geographical location, away from friends and family. We therefore asked the Crown to conduct a further review of the case in light of this and they declined. We asked for the case to be listed for an abuse of process argument as we believed that the CPS had failed unjustifiably to take into account their own guidance and had no rational basis for departing from the positive conclusive grounds decisions; it was therefore, in our view,  one of the rare cases that could properly be considered to be an abuse of process in line with the judgement of  R v AAD [2022]EWCA Crim106.

After considering the submissions made by both parties, the court found that it was a case where abuse of process could be considered on the basis that it was not fair to try the defendant in all of the circumstances. It concluded that it was a wholly exceptional case where the court should step in to stay proceedings as it was not fair to try the young defendant in circumstances where the Crown could not demonstrate that it had followed its own guidance. The case will therefore not proceed to trial.

Mel Stooks had conduct of this case throughout assisted by Jamie Shorter