REGINA v BWM

A guilty plea may be unsafe where it was materially influenced by an improper judicial indication of sentence and the defendant misunderstood the practical consequences of pleading guilty. An unsolicited indication that a custodial sentence has effectively been served can create inappropriate pressure and narrow freedom of choice. On an appeal involving section 45 of the Modern Slavery Act 2015, a competent authority’s conclusive grounds decision is admissible on appeal but is not binding. The court must still assess compulsion, which is an essential element of the defence. The appeal was allowed and the conviction quashed.

The appellant pleaded guilty in the Crown Court at Bradford to being concerned in the production of cannabis and received a sentence of 13 months’ imprisonment. After a later positive conclusive grounds decision identified him as a victim of modern slavery, he sought an extension of time, admission of fresh evidence and leave to appeal.

He argued that he had not been properly advised about the defence under section 45 of the Modern Slavery Act 2015. He later added that the prosecution had been an abuse of process. The central issues were whether the fresh evidence should be admitted and whether the guilty plea could be vacated so that the conviction could be challenged.

Appeal allowed. The court granted the extension of time, admitted the fresh evidence subject to excluding the psychiatrist’s opinion that the appellant had been trafficked, granted anonymity and quashed the conviction.

1. Fresh evidence. Under section 23 of the Criminal Appeal Act 1968, the court considered whether it was necessary or expedient in the interests of justice to receive the evidence, including its apparent credibility, its potential to afford a ground of appeal, its admissibility below and the explanation for not adducing it earlier. A conclusive grounds decision is admissible on appeal in a section 45 case even though it would not have been admissible at trial: see R v Brecani [2021] EWCA Crim 731 and R v AAD [2022] EWCA Crim 106. The decision is not binding, but will generally be respected unless contradicted or materially incomplete. The applicant’s latest account was capable of belief, and the prosecution had not cross-examined him on it.
2. Section 45 defence. Compulsion is an essential element of the statutory defence. The court distinguished the position in R v AAD, where the accepted victim of trafficking had not been forced to cultivate cannabis and therefore lacked compulsion. On the evidence now available, the prosecution could not disprove that this appellant acted under compulsion. If that evidence had been known earlier, he probably would not have been prosecuted; if prosecuted, the defence would probably have succeeded.
3. Guilty plea. A guilty plea ordinarily constitutes a formal admission of guilt, as explained in R v Asiedu [2015] EWCA Crim 714. The authorities identify broad, non-exclusive categories in which a conviction may nevertheless be overturned, including a plea vitiated by improper pressure or erroneous legal advice, prosecution that ought not to have been brought, and the residual case where the appellant did not commit the offence.
4. Judicial sentence indication. The judge’s unsolicited indication that the appellant had effectively served the likely sentence was improper. Such indications risk placing pressure on defendants and narrowing their freedom of choice. They are unnecessary because sentencing guidelines enable lawyers to advise on likely sentence, as explained in R v Nightingale [2013] EWCA Crim 405. The appellant had not been told that a guilty plea would probably lead to immigration detention and deportation. His plea was therefore vitiated by the combination of judicial pressure and misunderstanding of its consequences. The proposed abuse-of-process ground did not require determination.

Leave to appeal was granted. The appeal was allowed and the conviction was quashed.

• Court of Appeal (Criminal Division) — On 5 July 2022, the court granted an extension of time, granted leave to appeal, allowed the appeal and quashed the conviction: [2022] EWCA Crim 924.
• Crown Court at Bradford — On 23 July 2018, following a guilty plea to being concerned in the production of cannabis, the appellant was sentenced to 13 months’ imprisonment.