S, R. v

A conclusion by the Competent Authority under the National Referral Mechanism is relevant but is not conclusive in criminal proceedings. A statutory defence under section 45 of the Modern Slavery Act 2015 remains a factual issue for the jury, and trafficking alone does not establish every element of that defence.

An unequivocal guilty plea will ordinarily found a safe conviction. Exceptionally, however, an appellate court must allow an appeal where, through no fault of the defendant, a defence likely to have succeeded was not properly available or understood, so that a clear injustice would otherwise result. This jurisdiction is not a means of reopening a plea for tactical reasons.

The applicant pleaded guilty in the Crown Court at Preston to producing cannabis, contrary to section 4 of the Misuse of Drugs Act 1971, and was sentenced to 12 months’ imprisonment.

He sought an extension of time and leave to appeal against conviction after the Competent Authority subsequently decided that he was a victim of human trafficking. At the time of the plea, both his representatives and the prosecution had treated an earlier negative Conclusive Grounds Decision as critically important. The applicant contended that he had not understood that he could nevertheless advance a section 45 defence before a jury.

The central issue was whether the guilty plea could safely stand in those circumstances.

1. Appeal allowed. The court granted an extension of time and permission to adduce the Competent Authority’s later decision under section 23 of the Criminal Appeal Act 1968. The evidence was fresh, independent and capable of belief, and was material to the merits of the appeal.

2. The Competent Authority’s conclusion was not conclusive for criminal proceedings. Applying R v Joseph [2017] EWCA Crim 36, the court held that its view must be considered but that the evidence, including the nexus between trafficking and the offence, requires forensic examination. Under section 45 of the Modern Slavery Act 2015, the jury determines whether the prosecution has disproved the defence. Victim status alone does not automatically establish the defence; its further elements must also be met.

3. The principles in R v Asiedu [2015] EWCA Crim 714 did not exhaust the court’s jurisdiction. Consistently with R v Boal [1992] QB 591, the court must consider whether the conviction is unsafe under section 2(1) of the Criminal Appeal Act 1968. Intervention after a guilty plea is exceptional. It is justified where a defendant, without fault, was deprived of a defence likely to have succeeded and a clear injustice has resulted.

4. The solicitor’s evidence did not clearly establish that the applicant understood that the section 45 defence remained open despite the negative decision. The confusion was compounded by the Competent Authority’s use of the word “conclusive”, the applicant’s need for an interpreter, and the prosecution’s own earlier treatment of the decision as critical. This was not a tactical attempt to reopen a voluntary plea. The applicant had been deprived of a defence which would probably have succeeded, and the conviction was unsafe.

5. The conviction was quashed. The anonymity order made at the hearing was confirmed indefinitely.

• Court of Appeal (Criminal Division): In [2020] EWCA Crim 765, the court granted an extension of time, granted leave to appeal, allowed the appeal against conviction and quashed the conviction.
• Crown Court at Preston: The applicant pleaded guilty on 4 December 2017 to producing cannabis and received 12 months’ imprisonment.