B.L.S. v REGINA

An adult relying on section 45(1) of the Modern Slavery Act 2015 must establish more than trafficking-victim status. The offending must have been committed under compulsion attributable to slavery or trafficking, and a reasonable person with the relevant characteristics must have had no reasonable alternative. A tribunal or National Referral Mechanism finding may assist that assessment, but does not establish the statutory defence. A factual nexus is required between the alleged compulsion and the offending. Evidence that the person could leave, move freely and was not supervised may show that no such compulsion existed.

B.L.S. pleaded guilty at Liverpool Crown Court to producing cannabis and possessing a bladed article. He received 22 months’ imprisonment for the drugs offence and a consecutive two months for the bladed article.

After immigration and trafficking proceedings produced positive findings that he was a trafficking victim, he applied out of time for leave to appeal his conviction. He contended that he had not been advised of a defence under section 45(1) of the Modern Slavery Act 2015, that the prosecution should not have proceeded, and that the prosecution was an abuse of process. The court admitted his fresh evidence and addressed first whether the statutory defence would probably have succeeded.

1. The application for an extension of time and for leave to appeal conviction was refused. The court held that a defence under section 45(1) of the Modern Slavery Act 2015 would probably not have succeeded.
2. The statutory defence required more than proof that the applicant had been trafficked. He had to show that he acted under compulsion attributable to trafficking or slavery, and that a reasonable adult with his characteristics would have had no reasonable alternative to committing the offences.
3. The court accepted the First-tier Tribunal and National Referral Mechanism material as evidential tools and admitted the applicant’s fresh evidence de bene esse. Those findings did not, however, resolve the statutory issue. The court could assess independently whether the required compulsion existed at the time of the offending.
4. Even assuming that the applicant had been trafficked into the United Kingdom, there was no nexus between that history and his work as a cannabis gardener when arrested. He had cash, access to further cash, a key to the property, use of a car, freedom to come and go, and no supervision. Those circumstances were inconsistent with continuing compulsion. His account was not credible and did not discharge the evidential burden upon him.
5. The court also found that a reasonable adult sharing his characteristics would not have had no reasonable alternative but to act as he did. The absence of compulsion meant that there was no failure of the police duty under section 52 of the Modern Slavery Act 2015, and no basis to pursue the associated prosecution or abuse-of-process grounds. Although R v AAD & Ors [2022] EWCA Crim 106 recognised that abuse of process may exceptionally remain available after the statutory defence came into force, that route could not assist this applicant.

• Court of Appeal (Criminal Division): Refused the applicant’s out-of-time application for leave to appeal conviction and the required extension of time.
• Liverpool Crown Court: On 24 April 2017, the applicant pleaded guilty to producing cannabis and possessing a bladed article. He received 22 months’ imprisonment on the drugs count and a consecutive two months on the bladed-article count.