BTT v R

Where a convicted defendant seeks to advance a wholly different factual account on appeal, leave will be granted only exceptionally. The new account must be credible, with a cogent explanation for the change, and must demonstrate a defence that would quite probably have succeeded at trial. A positive trafficking decision is not conclusive in criminal proceedings. The court must examine the evidence forensically, including the nexus between trafficking and the offence. Under Modern Slavery Act 2015, section 45, an adult must show compulsion attributable to exploitation and that there was no realistic alternative. An admission that the defendant could have walked away prevents a viable section 45 defence.

The applicant was convicted by a jury at the Crown Court at Bolton of producing cannabis and sentenced to three years’ imprisonment. Nearly four years later, he sought an extension of time and leave to appeal against conviction. He also sought to rely on fresh evidence.

At trial, the applicant denied knowing that the plants were cannabis and denied any threats or compulsion. On appeal, he advanced a different account. He said that traffickers had forced him to tend the plants by threatening his family. He relied on decisions of the Competent Authority and the Upper Tribunal, expert material, and his own later statements.

The central issues were whether the fresh account was credible and whether it could found a section 45 defence under the Modern Slavery Act 2015 with a real prospect of success.

1. The applications were dismissed. The Court refused an extension of time and leave to appeal. The conviction was safe.

2. A defendant who seeks to replace the factual account advanced at trial must satisfy a stringent, exceptional threshold. The new account must be credible, there must be a cogent and convincing explanation for the change, and the proposed defence must be one which would quite probably have succeeded. That approach followed R v Boal [1992] QB 591 and N and L [2012] EWCA Crim 189.

3. The applicant’s new account was not credible. His claim that his wife and daughter had been kidnapped could not have compelled the offending, since his evidence established that he did not learn of any kidnapping until after conviction. His oral evidence also materially conflicted with his later witness statements. His explanation for not disclosing compulsion at trial was unconvincing, particularly as trafficking had been raised by counsel and the trial judge.

4. The proposed defence under section 45 of the Modern Slavery Act 2015 had no realistic prospect of success. Promises of money, food and accommodation, and complaints that those promises had been broken, did not establish compulsion. The applicant accepted that he could have walked away from the premises. That was fatal to the requirement that a reasonable person in his situation would have had no realistic alternative.

5. The Court admitted the Competent Authority and Upper Tribunal decisions de bene esse under section 23 of the Criminal Appeal Act 1968. However, neither a positive trafficking decision nor expert evidence could establish the credibility of an account which had failed under cross-examination. The applicant’s own later evidence was not capable of belief for the purposes of section 23(2)(a).

• Court of Appeal (Criminal Division) — refused the applicant’s extension-of-time application and application for leave to appeal against conviction: [2021] EWCA Crim 4.
• Crown Court at Bolton — following a jury trial, convicted the applicant on 22 April 2016 of producing cannabis and imposed a sentence of three years’ imprisonment.