Brecani v R. (Rev1)

A conclusive grounds decision of the Single Competent Authority is an administrative assessment. It is not, merely because of the decision-maker’s role, admissible expert opinion at a criminal trial. Expert evidence must be relevant, given by a competent expert, necessary to assist the jury, and sufficiently reliable.

A decision based on hearsay, incomplete factual premises, or an untested account will not assist a jury deciding whether the prosecution has disproved a defence under Modern Slavery Act 2015, section 45. A suitably qualified expert may nevertheless give genuinely expert cultural or contextual evidence outside ordinary jury knowledge. The ordinary course is to await a conclusive grounds decision, but a trial judge may refuse severance or delay where competing factors justify that course.

The applicant, aged 17, was convicted at Woolwich Crown Court of conspiracy to supply cocaine and sentenced to three years’ detention. He accepted acting as a runner but relied on the statutory defence in section 45(4) of the Modern Slavery Act 2015, alleging that his involvement resulted directly from trafficking and forced criminality.

During the trial, the Single Competent Authority made a conclusive grounds decision accepting that he had been a victim of modern slavery. The trial judge excluded that decision and its annex, and also excluded reports from Craig Barlow, an independent forensic social worker and criminologist. The judge refused to sever or delay the applicant’s trial pending the decision.

The appeal concerned whether the administrative decision and Mr Barlow’s opinions were admissible, and whether the refusal to sever rendered the conviction unsafe.

1. Appeal dismissed. Leave was granted on the evidential grounds, but the conviction was safe. Leave was refused on the severance ground.

2. The jury had to decide whether the prosecution had disproved the section 45 defence to the criminal standard. The conclusive grounds decision was an opinion formed by a case worker for administrative purposes on the balance of probabilities. It was relevant to the issue, but it did not satisfy the remaining conditions for expert evidence.

3. Case workers in the Single Competent Authority are not, simply by virtue of that role and assumed training, experts in trafficking or modern slavery for criminal-trial purposes. The court respectfully disagreed with DPP v M [2020] EWHC 344 Admin insofar as it treated such a decision-maker as an expert. The procedural safeguards in Part 19 of the Criminal Procedure Rules had not been met.

4. The decision and annex also depended on hearsay accounts and omitted critical phone and cell-site evidence. An opinion based on misinformation or without relevant material was valueless. More fundamentally, the jury could assess the applicant’s credibility and the section 45 defence without assistance from the case worker.

5. Mr Barlow had not demonstrated sufficient specialised knowledge of modern slavery to assist the jury. His opinions also depended on untested accounts and did not consider the critical digital material. A suitably qualified expert may give evidence of cultural or societal context outside ordinary jury knowledge, but may not present a personal assessment of credibility as expert evidence.

6. Although criminal proceedings should normally await a conclusive grounds decision, that is not inflexible. The judge properly balanced the desirability of a joint and timely trial, including the custody of a child defendant, against the pending decision. The prosecution reviewed the decision and was not bound by it.

• Court of Appeal (Criminal Division): Leave was granted on the evidential grounds, but the appeal against conviction was dismissed. Leave was refused on the severance ground.
• Crown Court at Woolwich: On 26 March 2020, the applicant was convicted of conspiracy to supply cocaine. The trial judge excluded the Single Competent Authority decision, its annex, and Craig Barlow’s evidence, and refused severance.