Amin, R. v

A conviction following a guilty plea may be unsafe where the defendant was deprived, through no fault of his own, of a statutory defence which would probably have succeeded and where upholding the plea would cause serious injustice.

A court must be alert to a possible defence under section 45 of the Modern Slavery Act 2015 where the material suggests that an adult trafficking victim was compelled to offend. Decisions of the Competent Authority and the First-tier Tribunal do not bind the criminal court, but they must be given appropriate respect. Anonymity may exceptionally be necessary where identification would expose a trafficking victim or close family members to reprisals.

The applicant pleaded guilty in the Crown Court at Portsmouth to being concerned in the production of cannabis and received 12 months’ imprisonment. Although he stated on arrest that he had been trafficked, no National Referral Mechanism referral was made and no party identified a possible defence under section 45 of the Modern Slavery Act 2015.

Subsequent immigration proceedings produced fuller evidence of trafficking, forced labour, psychological harm and risk on return. The Competent Authority made a conclusive trafficking decision, and the First-tier Tribunal allowed his protection appeal. The applicant then sought a substantial extension of time, leave to appeal against conviction, and admission of fresh evidence. The central issue was whether his guilty plea rendered the conviction safe despite the unconsidered statutory defence.

1. The appeal was allowed and the conviction was quashed. The court granted the extension of time and leave to appeal, and admitted the fresh evidence. Although the applicant had pleaded guilty and applied more than two years late, allowing the conviction to stand would cause a serious injustice.

2. The applicant’s accepted basis of plea and sentence amounted in substance to an assertion of the defence in section 45 of the Modern Slavery Act 2015. The offence was not excluded by Schedule 4. The court accepted that the applicant was an adult trafficking victim who offended under compulsion in forced labour, and that the offending was sufficiently closely connected to his trafficking to extinguish culpability. The statutory defence was available and would probably have succeeded.

3. The prosecution, defence and sentencing judge had each failed to identify the issue when the available material required it to be considered. The applicant’s initial account did not remove the need to consider the defence, particularly once the accepted basis of plea described trafficking, coercion and debt bondage. A judge must also be alert to a possible modern slavery or trafficking defence, even if it is not expressly raised.

4. The court applied the exceptional principle in R v Boal (1992) 95 Cr App R 272. A guilty plea ordinarily admits guilt, as recognised in R v Asiedu [2015] 2 Cr App R 8, but an appeal may succeed where a defendant was deprived of a defence likely to have succeeded.

5. The Competent Authority’s decision did not bind the criminal court, but it had to be borne in mind. The First-tier Tribunal’s trafficking finding was likewise non-binding but should be respected absent good reason. There was no reason to depart from the recorder’s, Competent Authority’s and Tribunal’s conclusions that the applicant was trafficked. The court also ordered anonymity under section 11 of the Contempt of Court Act 1981 and retrospectively extended the representation order for post-lodging solicitors’ work.

• Court of Appeal (Criminal Division): In this judgment, [2020] EWCA Crim 1447, the court allowed the appeal against conviction and quashed the conviction.
• Crown Court at Portsmouth: On 28 March 2017 the applicant pleaded guilty to being concerned in the production of cannabis. On 29 March 2017 he was sentenced to 12 months’ imprisonment.
• First-tier Tribunal: In separate immigration and asylum proceedings, the applicant’s protection appeal was allowed in August 2019. Its findings were relevant but did not bind the criminal court.