Nguyen, Tran & Nguyen [2019] EWCA Crim 670

R v Nguyen, Tran & Nguyen [2019] EWCA Crim 670 concerned applications for permission to appeal against conviction by three defendants found guilty of conspiracy to require forced or compulsory labour, which the Court of Appeal (Lord Justice Bean, Mr Justice Nicol and Mr Justice Popplewell) refused.

Thu Huong Nguyen (known as Jenny) ran Nail Deluxe in Bath. Viet Hoang Nguyen (Ken) and Giang Huong Tran (Susan) ran Gorgeous Nails in Burton-on-Trent. All three were convicted after trial before His Honour Judge Michael Chambers QC and a jury at Stafford Crown Court in October and November 2017 of conspiracy to require others to perform forced or compulsory labour. Ken and Susan also faced conspiracy to arrange or facilitate travel within the United Kingdom with a view to exploitation. A fourth alleged conspirator, Van Than Nguyen (Jimmy), absconded before charge.

On 22 February 2016 police visited Nail Deluxe during a day of action concerning welfare of persons employed in nail bars. They found two young Vietnamese women called Sen and Lily at workstations. Neither had documentation nor spoke English. Jenny arrived shortly after and said the girls had arrived looking for work and somewhere to stay. She believed they were 15 or 16 years old. When Jenny spoke to them in Vietnamese an interpreter overheard her ask whether they had told police they were not working. Both young women were staying at Jenny’s address in poor conditions. In interview Jenny denied they were working and said they were in training. The two were taken into local authority care but absconded. When Sen was interviewed at Croydon Immigration Centre Jenny was present and appeared to try to add to the answers given.

On 16 March 2016 officers attended Gorgeous Nails and found three young Vietnamese women apparently working there. Susan was present as manager. Ken soon arrived. Phones recovered from Ken showed text messages reflecting a network of nail bars and regular enquiries for workers. One of the young women, Banh, told police she had been brought to the United Kingdom, moved between addresses, beaten and made to work hard. The women were placed in care but absconded. Ken confirmed he managed the nail bar and Susan was his partner but made no comment about the women. Susan said Ken ran the business and her role was to collect money. She denied the girls had worked, stayed at the address or were staff, and said Banh’s account was a lie.

The prosecution case was that the young women were illegal immigrants and that the defendants had conspired in two groups with Jimmy to traffic and exploit them by taking advantage of their vulnerability. The indictment originally alleged a single conspiracy but the judge ruled at the close of the prosecution case that the evidence did not support such a count. The case proceeded before the jury as two separate conspiracies, one in Bath involving Jenny and one in Burton involving Ken and Susan. A submission of no case to answer succeeded on a money laundering count but was rejected on the counts that formed the subject of the present applications.

Although a number of points were raised before the single judge, the sole ground pursued in the Court of Appeal was that the judge’s ruling and directions on what the prosecution had to prove in respect of the offences charged were deficient. The court set out the material provisions of the Modern Slavery Act 2015. Section 1(1)(b) makes it an offence to require another person to perform forced or compulsory labour in circumstances such that the person knows or ought to know the other is being required to perform it. Section 1(2) provides that the references in section 1(1) are to be construed in accordance with Article 4 of the European Convention on Human Rights. Section 1(5) provides that the consent of a person to the acts alleged to constitute requiring forced or compulsory labour does not preclude a determination that the person is being required to perform such labour.

The court referred to Van der Mussele v Belgium [1983] ECHR 23 and Siliadin v France [2006] 43 EHRR 16, in which the Strasbourg Court held that forced or compulsory labour is work performed involuntarily under the threat of a penalty. In Siliadin a trafficked minor made to perform unpaid domestic work for 15 hours a day seven days a week was held to be in servitude contrary to Article 4. Among the means by which she was compelled to work was manipulation of her vulnerability, isolation, inability to sustain herself independently and fear of the police because of her unlawful immigration status. The court also referred to R v K(S) [2011] 2 Cr.App.R 34, in which this court held that the essence of forced or compulsory labour is work exacted under the menace of a penalty and performed against the will of the person, and that the menace can be direct or indirect, with constraint mental or physical and imposed by force of circumstances. The level of pay may have evidential importance but on its own a derisory wage is not tantamount to coercion.

Mr William Clegg QC, appearing for the second and third applicants, submitted that section 1(5) of the 2015 Act made no literal sense because if the alleged victim consents labour cannot be forced or compulsory. He submitted that Parliament must have meant that the fact that the complainant physically does the work does not preclude a finding that it was done involuntarily, and that the judge should have directed the jury accordingly. The court rejected the submission that the statute should be rewritten in that way. The court observed that section 1(2) requires the references to forced or compulsory labour to be construed in accordance with Article 4, that K(S) remained good law after the 2015 Act, and that section 1(5) was inserted for the avoidance of doubt and was not inconsistent with Article 4 as interpreted in Siliadin and K(S).

The judge had directed the jury that a person is required to do forced or compulsory labour if required to perform work involuntarily, not out of free choice, and under threat of penalty. He explained that the threat could be exacted in various ways, directly or indirectly, by mental or physical constraint and by force of circumstances, and that the level of pay and ability to escape may be relevant but a derisory wage is not on its own coercion. He told the jury that simply employing an illegal immigrant by itself is insufficient. He reproduced section 1(5) verbatim and added that a person may consent to perform work in the sense of simply agreeing to do it without necessarily doing it voluntarily, that is out of free choice. The court held there was nothing wrong with the judge using the phrase “out of free choice” as an informal definition of what voluntarily means and similarly defining involuntarily as not out of free choice. It correctly summarised the difference between true consent and coerced consent.

Mr Kivdeh for the first applicant submitted that the judge should have told the jury that consent in section 1(5) means ostensible or apparent consent, or at any rate that one of those adjectives should have been used. The court accepted that the judge could have used that phraseology but considered the wording he used entirely satisfactory. The court observed that if the addition of the word ostensible or apparent was thought essential the time to say so was when the judge circulated his draft directions to counsel, but in any event it was not a point of substance that was missed.

Mr Clegg also complained that in the summing-up the jury were directed that the essence of the prosecution case was that the complainants had little choice but to agree to the work. He submitted that the jury should have been told the defendants could only be found guilty if the defendants had no choice rather than little choice. The court rejected this as hair-splitting in the context of full and careful written directions. Viewing the written directions and the summing-up as a whole, the judge had put the defence case entirely fairly. The court agreed with the single judge that the prosecution case was strong and it was unsurprising the defendants were convicted.

In short, the court held that the directions on forced or compulsory labour and the meaning of consent were correct in law and clear, and refused permission to appeal against conviction in all three cases.