A man who claimed "mafia guards" coerced him into running a cannabis farm had an appeal thrown out by judges even after the Home Office concluded he had been trafficked.
The Vietnamese national, who was granted anonymity by the courts, was arrested outside a house in Haydock in early 2017, while police were conducting a search warrant. The house was discovered to be a "cannabis factory" and officers found three mobile phones and £700 cash on a table inside.
The man was in a car outside the address, and found to have £100 in his wallet and a key to the house on him, as well as a knife in the car. The man later told police he had entered the UK illegally and had been sleeping rough for around five months, until he met people who offered to pay him £200 a week to look after the plants.
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He said they also provided him with the car, which he used to drive to a McDonald's restaurant once a week to meet his paymasters. The cannabis gardener claimed he was only 16 at the time, although it later emerged he was really at least 19 when he was arrested.
He was jailed for 24 months on April 24, 2017, at Liverpool Crown Court, by Judge Clement Goldstone, QC, after pleading guilty to production of cannabis and possession of a knife.
In May 2017, the Home Office served him with notice it intended to deport him back to Vietnam, but in response he launched a bid to claim asylum as a victim of trafficking. As part of the process, he underwent a screening interview, where he told officials he had been trafficked across Europe and into the UK.
The Court of Appeal heard he denied he had been enslaved by the cannabis gang, but said "the mafia are after me" because his father owed them a large amount of money back in Vietnam. He said he had agreed to work in the UK for five years to pay off the debt.
In April 2018, he was referred via the National Referral Mechanism (NRM) as a potential victim of trafficking or slavery, and a trafficking interview was conducted. In that interview he said: "I have never claimed to having been trafficked or of being a slave. I agree that I could come and go as I pleased….. but I did get paid and have food and drink provided."
The Single Competent Authority (SCA), a part of the Home Office which deals with NRM referrals, twice concluded there was no evidence he had been trafficked. However, in February 2020, an Immigration Tribunal judge granted his asylum claim, and then in April 2020 the SCA reconsidered its decision and confirmed he was, in fact, a victim of trafficking.
According to a written judgment from the Court of Appeal, after the SCA and asylum decisions went in his favour his lawyers launched an appeal against his criminal conviction on the grounds he should never have been prosecuted, and would have had a defence under Section 45 of the Modern Slavery Act 2015.
The Section 45 defence succeeds for adult defendants if they can prove that "another reasonable person" in the same situation would have had "no realistic alternative" to committing the crime. Ben Douglas-Jones, QC, representing the man, told the Court of Appeal that Merseyside Police, the Crown Prosecution Service (CPS), defence lawyers and the courts "failed to see the obvious red-flags" of trafficking.
The man also gave evidence, and in a written judgment, Mrs Justice McGowan stated: "The applicant told us that he was taken to the property by 'mafia guards'; that he was obliged to work to pay off his father's debt and was given instructions on what to say if arrested.
"He was told he should tell the police that he was under 18, that he went to the house to work and was paid for working. He said that he had tried to escape on one occasion but that the guards had found him and brought him back."
However the court heard he accepted he was allowed to come and go as he pleased, had a key to the property, access to a vehicle and had money. He was also "unclear" when asked about where his father lived or what had happened to him.
Mr Douglas-Jones said he accepted there were difficulties in this case because of "inconsistencies", but these were due to his client's "mistrust of authorities". Andrew Johnson, representing the CPS, argued that even if the man had been trafficked into the UK he was not being compelled or coerced into producing cannabis at the house, from where he could leave any time he wished.
The Court of Appeal judges sided with the CPS, saying on the facts of this case a Section 45 defence would likely not have succeeded. Judge McGowan wrote: "Even if we were to accept the applicant's case about being trafficked from Vietnam (and it is not necessary to come to a final conclusion on that), we have no hesitation in finding that there was no nexus between the applicant's being trafficked into the UK and his carrying out his function as a cannabis gardener.
"This is because at the time of his arrest the applicant had £100 on his person; on the day of his arrest he also had access to at least £600-700 in cash found in the house; he had a key to the house and could come and go as he pleased; he had a car which he could drive in which he kept a knife, and he was not under supervision.
"These facts are not consistent with a person being compelled to act for the purposes of trafficking or slavery. Whatever the history of the applicant's journey to the UK (and as indicated it is not necessary to make findings about that), it is apparent that by the time of his arrest the applicant was not the subject of compulsion.
"He could have left at any time. He gave an account of events which was not credible and did not discharge any evidential burden on him."
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