BRP v R

A defence under the Modern Slavery Act 2015, section 45 is not established merely because the defendant was a victim of forced labour. The court must examine whether the defendant was compelled to commit the offence and whether a reasonable person in the same situation, with the relevant characteristics, would have had no realistic alternative. The defendant raises evidence of each element; the prosecution must disprove one or more beyond reasonable doubt. On an appeal after a guilty plea, failure to advise about the defence makes the conviction unsafe only where the defence would probably have succeeded and clear injustice resulted. Threats may be insufficient where the defendant could leave, contact others or obtain help.

BRP pleaded guilty in the Crown Court at Birmingham to conspiracy to supply Class B drugs and was sentenced to 18 months’ imprisonment. Nearly three years later, he sought leave to appeal out of time, arguing that his lawyers had failed to advise him about a possible defence under section 45 of the Modern Slavery Act 2015.

The Court of Appeal extended time and admitted fresh evidence, including positive trafficking decisions and psychiatric evidence. BRP contended that he had been subjected to forced labour and that the defence would probably have succeeded. The central issue was whether, even accepting his account, a reasonable person in his situation would have had no realistic alternative to involvement in the conspiracy.

The court granted the extension of time and leave to appeal. It admitted the fresh evidence and tested BRP’s account independently. Trafficking decisions by the Single Competent Authority are generally respected on appeal, but independent testing may be necessary where the evidence requires it, applying R v Brecani [2021] EWCA Crim 731 and R v AAD and others [2022] EWCA Crim 106.

1. Section 45 defence. The statutory requirements include compulsion attributable to slavery or relevant exploitation and the absence of any realistic alternative for a reasonable person with the defendant’s relevant characteristics. Victim status alone does not automatically establish the defence. The degree of compulsion and the available alternatives are critical.
2. Guilty plea. A conviction following a guilty plea may be quashed for failure to advise about a defence only where the defendant was deprived of a defence that would probably have succeeded, causing clear injustice. The court applied the principles in R v Boal [1992] QB 591 and the checklist derived from R v Dastjerdi [2011] EWCA Crim 365.
3. Application. Even accepting BRP’s account, he was an adult with no relevant illness or disability, some English, experience of the police and Home Office, a telephone, a partner in settled accommodation and a wider network of contacts. The threats were made on one occasion, he was not forcibly confined, and he could have left or sought help. The prosecution would probably have proved that the objective test in section 45(1)(d) was not satisfied.
4. Disposition. Although BRP should have been advised about section 45, he was not deprived of a good defence. There was no clear injustice and the conviction was not unsafe. The appeal was dismissed.

• Court of Appeal (Criminal Division): Granted an extension of time and leave to appeal, but dismissed the appeal under [2023] EWCA Crim 40.
• Crown Court at Birmingham: BRP pleaded guilty to conspiracy to supply Class B drugs on 10 June 2019 and was sentenced to 18 months’ imprisonment on 16 August 2019.