R v BNN

A guilty plea is not equivocal merely because the defendant maintains an account of coercion in mitigation or was advised that a section 45 defence was being explored. The plea must be assessed objectively. An unsolicited and potentially excessive sentence indication may amount to improper pressure, but the appellant must establish a causal link with the plea and show that it narrowed the proper ambit of the freedom of choice. Where CPS guidance concerning possible trafficking victims has been disregarded, the court may review the prosecution decision more readily. It must review that decision for rationality and procedural fairness, rather than substitute its own view. A trafficking finding does not automatically establish the statutory defence. The conviction remained safe.

The applicant, a Vietnamese national and recognised victim of modern slavery, pleaded guilty in the Crown Court at Leicester to producing a commercial quantity of cannabis and received nine months’ imprisonment. He later obtained a further positive Conclusive Grounds Decision concerning his account that he had been trafficked and coerced into cultivating the plants.

He sought an extension of time, admission of fresh evidence and permission to appeal. He argued that his plea was equivocal, was entered as a result of improper pressure, or followed a failure by the Crown Prosecution Service to apply its guidance on prosecuting potential victims of trafficking. The central issues were whether the plea was unsafe and whether the prosecution decision amounted to an abuse of process.

1. Extension, fresh evidence and plea grounds. The court examined the merits before determining the application for an extension of time and considered the fresh evidence. The applicant declined to give oral evidence. The transcripts did not establish an equivocal plea. He entered an unqualified guilty plea, signed an endorsement stating that the decision was his, and counsel expressly advanced coercion as mitigation which fell short of a defence. Maintaining that account in mitigation, and receiving a reduced sentence, did not make the plea equivocal. The applicant retained the freedom to continue to trial. The first ground failed.
2. An unsolicited sentence indication at the plea and trial preparation hearing was inappropriate and appeared wide of the Sentencing Guidelines. Pressure was at least arguable. However, the applicant did not plead guilty then or shortly afterwards, and the court could not establish a causal link between the indication and the plea entered months later. The second ground was unarguable.
3. Prosecution decision. The CPS Guidance on Modern Slavery, Human Trafficking and Smuggling required the potential trafficking issue to be identified and independently assessed. The police should have referred the applicant through the National Referral Mechanism under section 52 of the Modern Slavery Act 2015. The reviewing prosecutor initially focused on whether a section 45 defence had been raised, and the later reviews did not expressly follow the stepped approach required by the Guidance. This made the abuse-of-process ground arguable and permission to appeal was granted.
4. Where relevant CPS guidance has been disregarded, the court may intervene more readily because the prosecution decision may not have been properly considered. The appellate court must nevertheless review the decision by reference to rationality and procedural fairness, rather than substitute its own view. An ambiguous factual position does not entitle a prosecutor to avoid making the public-interest decision.
5. On the evidence, the offence was serious, the applicant had opportunities to seek help, had lived independently, could travel and use telephones, and had declined to pursue a section 45 defence. His lack of co-operation with the police while in a place of safety was relevant. A trafficking finding did not automatically establish the statutory defence: the degree of compulsion, realistic alternatives, the connection between the offence and the trafficking, and the effect on culpability remained factual questions. A decision to prosecute, properly applying the CPS Guidance and considering all relevant factors, would have been reasonable. The conviction was safe and the appeal was dismissed. The applicant’s anonymity was preserved under section 11 of the Contempt of Court Act 1981.

• Court of Appeal (Criminal Division): the court granted permission on the abuse-of-process ground, considered the fresh evidence and dismissed the appeal, holding that the conviction was safe: [2024] EWCA Crim 991.
• Crown Court at Leicester: on 3 November 2021, the applicant pleaded guilty to producing a Class B controlled drug and was sentenced to nine months’ imprisonment.