BSG v R

A child victim of modern slavery may rely on the statutory defence in section 45(4) of the Modern Slavery Act 2015 where the offending was a direct consequence of the exploitation and a reasonable person in the same situation would have acted similarly. The child defence does not require proof of compulsion, unlike the adult defence in section 45(1). A guilty plea may be challenged where incorrect legal advice deprived the defendant of a defence that would probably have succeeded, causing clear injustice. A decision of the Single Competent Authority is not binding, but will usually be respected unless significant evidence contradicts it.

The applicant pleaded guilty as a teenager to drug offences committed in Aylesbury and Canterbury. He was sentenced to detention for the Aylesbury offences and later to detention in a young offender institution for the Canterbury offences. Years later, the Single Competent Authority recognised him as a victim of modern slavery for forced criminality during the relevant period. The First-tier Tribunal also accepted his account and found that he had committed the offences while a victim of modern slavery.

He sought extensions of time, leave to appeal against the Canterbury convictions and sentences, leave to appeal against the Aylesbury sentences, and permission to adduce fresh evidence. The central issues were whether he had been deprived of a statutory defence under section 45(4) of the Modern Slavery Act 2015, whether his convictions were unsafe, and what sentence was lawfully available for a defendant aged 17.

1. Anonymity. Applying the principles in R v L [2017] EWCA Crim 2129, the court made an anonymity order under section 11 of the Contempt of Court Act 1981. Open justice was important, but there was a real risk of reprisals or further trafficking if the applicant were identified.
2. Statutory defence. Section 45(4) of the Modern Slavery Act 2015 provides a defence for a person under 18 who acts as a direct consequence of being or having been a victim of slavery or relevant exploitation, where a reasonable person in the same situation and with the person’s relevant characteristics would have done the same. Unlike section 45(1), the child defence does not require proof that the defendant was compelled. Once the defence is raised, the prosecution must disprove it to the criminal standard.
3. Fresh evidence and credibility. Decisions of the Single Competent Authority are admissible on appeal, although not binding. They will usually be respected unless significant evidence contradicts them. The court retained responsibility for deciding whether the convictions were unsafe. It accepted the Authority’s decision and the First-tier Tribunal’s assessment of credibility. The applicant’s failure to give oral evidence did not prevent determination of the appeal because the documentary evidence was sufficient and giving evidence posed a risk to his mental health.
4. Expert evidence. Much of the trafficking report was inadmissible under the principles explained in R v AAD [2022] EWCA Crim 2022. An expert may assist on psychiatric matters or specialised trafficking practices, but should not give an opinion on the plausibility or consistency of the applicant’s account.
5. Disposition. The court accepted that the applicant had not been advised of the section 45(4) defence and that, if advanced, it would probably have succeeded. A clear injustice had therefore occurred. Extensions of time were granted, the Canterbury convictions were quashed, and the related sentence appeal fell away. The unlawful Aylesbury sentences were quashed and replaced by concurrent detention and training orders of 24 months on each count. The court admitted all proposed fresh evidence except the trafficking report.

• Court of Appeal (Criminal Division) — Applications granted; the Canterbury convictions were quashed and the Aylesbury sentences were replaced. [2023] EWCA Crim 1041
• Crown Court at Canterbury — The applicant pleaded guilty to drug offences and was sentenced to 24 months’ detention in a young offender institution.
• Crown Court at Aylesbury — The applicant pleaded guilty to drug offences and was sentenced to 28 months’ detention. The sentence was later held unlawful because of his age.
• Youth court — The applicant pleaded guilty to the Aylesbury offences and was committed to the Crown Court for sentence.