Kolesnikova [2018] EWCA Crim 2961
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R v Kolesnikova [2018] EWCA Crim 2961 concerned an appeal by a woman convicted of prostitution-control offences who sought to argue that, as a victim of trafficking, she should never have been prosecuted or the proceedings should have been stayed as an abuse of process.
In 2011 the applicant, then aged 32, pleaded guilty in the Crown Court at Southwark to conspiracy to control prostitution for gain, possession of false identity documents and removing criminal property under section 327(1)(e) of the Proceeds of Crime Act 2002. She was sentenced to 30 months’ imprisonment, comprising 30 months concurrent on count three, 12 months concurrent on each of counts five, six and eight, and 18 months concurrent on count thirteen. The applicant had tendered a basis of plea asserting that she was a victim of trafficking and a prostitute working under the same conditions as the complainants, subordinate to her co-accused Sergey Konart. The Crown rejected that basis and a Newton hearing took place over ten days in September 2011. On 10 October 2011 the judge (His Honour Judge Price) handed down judgment rejecting the basis of plea. The judge accepted that the applicant had previously been a victim of trafficking for sexual exploitation but did not accept that she continued to be one in the United Kingdom. He found that she and Konart worked as a team, with the applicant at the lower end. Konart was sentenced to ten years’ imprisonment for conspiracy to traffic into and within the United Kingdom, conspiracy to control prostitution for gain, and offences of possessing and removing criminal property.
The case arose from a police investigation initiated in June 2009 when a complainant, IZ, flagged down a police car and reported that she had escaped from a violent pimp. She told police she had been trafficked from Russia to the United Kingdom in October 2007 and met by Konart, who introduced her to the applicant Kolesnikova and told her she would be working as a prostitute. IZ said she was told she owed £80,000 and that her family would be in danger if she failed to comply. She described being forced to work, physically assaulted, raped and made to give all income to Konart. She said Konart forced her to take drugs and that she had a termination after becoming pregnant by a client. She said the applicant was Konart’s girlfriend and complicit in his operation. A further complainant, IN, gave similar evidence. Both said the applicant was Konart’s girlfriend and business partner. The prosecution case was that Konart was a linchpin in a European-wide network trafficking women for prostitution and that the applicant, while initially working as a prostitute herself, had ceased that work but continued to enjoy a cash-rich lifestyle with Konart. The Crown relied on evidence from the complainants, properties rented by the defendants to accommodate the women, websites advertising their services, computers detailing travel arrangements, false documents, large cash holdings in the defendants’ bank accounts, and text messages from the applicant’s phone giving the women information about bookings.
At the Newton hearing both defendants gave evidence in line with their bases of plea, asserting that none of the women were coerced. In closing submissions the defence submitted that the applicant had been a victim of trafficking from a young age and a prostitute on arrival in the United Kingdom from 2007 until at least late 2008. Although the applicant insisted that Konart was not involved in her own trafficking or controlling her prostitution, counsel invited the judge to reflect her status as a victim of trafficking by passing an absolute discharge or a sentence commensurate with the ten months spent on remand.
Following the convictions, immigration proceedings ensued. On 6 February 2012 the National Referral Mechanism found the applicant had not been a victim of trafficking. An asylum application was refused on 7 June 2012 and a deportation order made. Appeals to the Upper Tribunal were dismissed on 22 July 2013 and the applicant was deported on 25 October 2013. On 10 September 2015 the High Court ruled that the decision to certify the claim had been unlawful. The applicant re-entered the United Kingdom on 18 September 2015. In November 2015 she applied to the Criminal Cases Review Commission, which advised on 10 October 2016 that she should first apply to the Court of Appeal. On 6 November 2016 the First-tier Tribunal allowed the appeal against deportation on asylum and Article 3 grounds, finding to the lower standard of proof that the applicant was a victim of trafficking who was at all times under Konart’s control. She was granted asylum.
The applicant sought an extension of time of approximately seven years and five months in which to apply for leave to appeal against conviction, together with leave to adduce fresh evidence under section 23 of the Criminal Appeal Act 1968. Both applications were referred to the full court. The applicant sought to rely on the First-tier Tribunal decision, statements made by her in 2014, 2015 and 2017, a report by a trafficking expert (Ms Stepnitz) dated 25 May 2013, and a report and addendum report by a complex trauma specialist (Ms Kralj) dated 24 April and 16 December 2014. The parties reached an agreement that Ms Stepnitz’s evidence would be admitted only as to generic matters concerning Uzbekistan and trafficking experiences in the United Kingdom. Ms Kralj’s report was admitted subject to concessions that she could not specify the factual cause of the applicant’s complex post-traumatic stress disorder, that the nature and degree of Konart’s control was not accepted by the Crown, that the freeze response identified would not of itself fully explain the applicant’s failure to remove herself from her association with Konart, and that neither expert was required to attend for cross-examination.
The sole ground of appeal was that, as a victim of trafficking, the applicant ought not to have been prosecuted or the proceedings should have been stayed as an abuse of process. The Crown accepted that the applicant was a victim of trafficking but submitted that the decision to prosecute remained justified, leave should be refused and in any event the conviction was safe. The Crown argued that the offences were serious, the level of compulsion necessary to extinguish or significantly diminish culpability was not present, the applicant was represented by experienced counsel at the Newton hearing who was aware of CPS guidance on non-prosecution of victims of trafficking, the applicant had sufficient autonomy to work as a nail technician and had not taken repeated opportunities to remove herself from the trafficking situation, and there was insufficient nexus between the trafficking and the offending to have extinguished or reduced her culpability. The Crown submitted that even had it possessed the fresh evidence at the point of charge or during the proceedings, it would not have decided not to prosecute the applicant.
Counsel for the applicant submitted that the case presented the worst of all possible worlds, with the Newton hearing proceeding before the NRM process had concluded, and that the trafficking issue had only surfaced towards the end of the Newton hearing. He emphasised that the controlling relationship between Konart and the applicant explained both her actions at the time and her failure to escape, as well as her false evidence at the Newton hearing supporting Konart. Counsel did not press the evidence of Ms Stepnitz but sought to rely on Ms Kralj’s evidence to explain the applicant’s conduct by reference to a psychological freeze response flowing from the controlling relationship. Counsel for the Crown emphasised that the nexus and level of compulsion were far from extinguishing the applicant’s culpability. She was involved in significant money laundering and in Konart’s business, and significantly involved in the exploitation of IZ, who was forced to take drugs to render her compliant. The applicant had given evidence at the Newton hearing which was disbelieved, including a false account of having met IN only twice. The Crown pointed to a telling observation by the applicant that IN had been a fool if she had not expected to work as a prostitute, significant as to the applicant’s knowledge and involvement in the business. The Crown noted that the applicant had stopped working to complete two nail courses while IZ continued to be exploited and abused, and that the applicant made two trips to Uzbekistan, the second in 2010 for some six months. The prosecution at the time was justified and nothing learned since called it into question.
Lord Justice Gross, giving the judgment of the court, set out the legal framework applicable to cases involving victims of trafficking, summarising the principles stated in R v S(G) [2018] EWCA Crim 1824 at paragraphs [75] to [76]. The court emphasised that the United Kingdom’s international obligations in this area are not confined to cases where a common law defence of duress or necessity is available, and that in cases involving victims of trafficking it may be in the public interest not to prosecute even where no such common law defence is available. The role of the court is one of review of the decision reached by the prosecutor to proceed. The court noted that scepticism has consistently been expressed as to the value of expert evidence in such cases, and that when it comes to the credibility of accounts given by an applicant, it is for a jury or the court to evaluate them, not for experts. When it comes to the correctness of a decision to prosecute, expert evidence is ordinarily unlikely to assist.
The court stated that it was prepared to give leave to appeal on four grounds: first, because of the unfortunate chronological order of events from 2011 to 2012; secondly, because at the Newton hearing the defence position was essentially to mitigate rather than to seek a stay; thirdly, because the Crown’s position at the time that the applicant was only a victim of trafficking at the outset was a position to which it no longer adhered; and fourthly, because of the First-tier Tribunal 2016 decision, which should properly be taken into account. The court emphasised that it would have been preferable had the NRM and other decisions as to the applicant’s victim of trafficking status been made before the court proceedings, so that the decision to prosecute would have been informed by those decisions. However, by the conclusion of the Newton hearing the court was very much alive to the question of whether the applicant had been a victim of trafficking, and this was not a case where that issue had gone by default.
The court was content to admit under section 23 of the Criminal Appeal Act 1968 all the items of fresh evidence sought to be introduced, including the First-tier Tribunal decision, save for the two expert reports. The court declined to admit Ms Stepnitz’s report, noting that there was no issue before it as to conditions in Uzbekistan, that it was common ground the applicant was previously trafficked and at all material times a victim of trafficking, and that the generalised evidence concerning trafficking experiences in the United Kingdom did not provide material assistance in considering the specific facts of the case. It was purely generic and did not afford any ground for allowing any appeal. There was no good reason why such evidence could not have been obtained for use at the time of the Newton hearing. As to Ms Kralj’s psychological evidence, once the limitations agreed between the parties were taken into account, there was again no good reason for admitting the evidence. De bene esse the court was prepared to accept by reference to this evidence that the applicant was suffering from a freeze response, but beyond that the court was not persuaded that the 96-page report afforded any ground for allowing any appeal. There was in any event no good reason why such a report was not obtained for the purposes of the 2011 criminal proceedings.
The court held that knowing what it now knew, and even accepting that the applicant was a victim of trafficking at all material times and that she suffered from a freeze response, it was quite unable to conclude that the decision to prosecute the applicant was flawed. The offences, in particular conspiracy to control prostitution for gain and the money laundering offences, were serious and the applicant’s culpability was significant. A very high level of compulsion would be necessary to extinguish the applicant’s culpability or diminish it to a point where it would not have been in the public interest to proceed with the prosecution. The judge by the time he came to his conclusion was well aware of the victim of trafficking issue, formed a view of the applicant’s role in the operation, and concluded that the applicant and her co-accused comprised a team. In that regard he had the advantage over the First-tier Tribunal in so far as he heard the applicant give evidence and was unimpressed. The court emphasised it could not say that the judge’s conclusion was unsafe, notwithstanding the change in both the nature of the applicant’s application and the Crown’s case since then. On the position taken by the applicant and the Crown at the time, it was entirely open to the judge to have reached a far more favourable conclusion as to the applicant had he thought it right to do so. Though the applicant sought to resile from the evidence she gave at the time, nothing in the more recent evidence cast doubt on the evidence of IZ and IN which the judge accepted and which contributed significantly to his decision.
The court held that though the applicant was a victim of trafficking and under the control of her co-accused, she had reasonable opportunities to extricate herself, which bore on the relevant nexus. Notably, she travelled to Uzbekistan twice some three years apart in 2007 and 2010, and on the latter occasion was away for months on end. Moreover, she had sufficient autonomy to cease working as a prostitute for a time at least and to study and work as a nail technician. In all the circumstances this was a case where the applicant’s misfortunes as a victim of trafficking were and are properly to be reflected by way of mitigation of sentence. The court was entirely satisfied that the applicant’s culpability was reduced, that she played a subservient or junior role in the conspiracy, and accordingly merited a reduction in sentence which she received. Her culpability was not, however, extinguished or so diminished as to cast doubt on the decision to prosecute. The court observed that it is unfortunately not infrequent that those convicted of criminal offences have been subjected to a malign, sometimes controlling influence, but ordinarily that does not absolve them from criminal responsibility, a decision not lightly taken, though it may be reflected in a reduction of sentence. In the victim of trafficking context it is important that the law is not devoid of sympathy or understanding, but it is also necessary in the public interest that there neither is, nor ought to be, any blanket immunity. Unfortunately for the applicant, she fell and falls on the wrong side of that line.
The court entertained no doubt as to the correctness of the decision to prosecute and consequently as to the safety of the conviction. An application for anonymisation was refused. The court stated that the normal rule is open justice and anonymisation is only granted where necessary. Although it was fair to say the applicant was herself a victim, matters moved on from there and she committed serious offences. The judgment made clear she herself suffered misfortunes as a victim of trafficking, so anyone reading it would appreciate that. Future embarrassment cannot be a ground for anonymisation; that flows from the commission of crime. In so far as any reliance was placed on physical risks to the applicant, there was no evidence to that effect, nothing said in the judgment would give rise to or amplify those risks, and there had been a considerable passage of time, so there was no reason to suppose that any factors which led to an assault back in 2010 remained applicable.
In short, leave to appeal was
S(G) [2018] EWCA Crim 1824; [2019] 1 Cr App R 7
M(L) [2010] EWCA Crim 2327; [2011] 1 Cr App R 12
R v N and R v Le [2012] EWCA Crim 189; [2012] 1 Cr App R 35
Joseph (Verna) [2017] EWCA Crim 36; [2017] 1 Cr App R 33
L and Others v The Children’s Commissioner for England and Another [2013] EWCA Crim 991, [2013] 2 Cr App R 23
L, HVN, THN, T v R [2013] EWCA Crim 991