Lurdita Baniulyte v R

A failure by police or prosecutors to identify a potential victim of modern slavery and review whether prosecution is appropriate does not, without more, render a conviction unsafe. The critical question is whether the defendant lost a realistic opportunity to advance a defence that would probably have succeeded.

The statutory defence under section 45 of the Modern Slavery Act 2015 is distinct from duress. A defendant must receive advice enabling an informed decision whether to rely on it.

An alleged victim has no automatic right to anonymity. Derogation from open justice requires clear and cogent evidence establishing strict necessity and proportionality.

The applicant was convicted at the Crown Court at Aylesbury of four drugs offences and received concurrent sentences of 40 months’ imprisonment. At trial she relied on duress but was not advised about, or permitted to advance, the statutory defence under section 45 of the Modern Slavery Act 2015.

More than two years later, she sought an extension of time, leave to appeal, admission of fresh evidence, and orders preserving her anonymity. The police accepted that they should have referred her to the National Referral Mechanism, and the prosecution accepted that it should have reviewed the case under its modern slavery guidance. The central issues were whether those failures, together with the absence of advice about section 45, made the convictions unsafe, and whether anonymity was strictly necessary.

The court granted the extension of time, granted leave to appeal, formally received the fresh evidence, allowed the appeal and quashed the convictions. It refused the applications for a withholding order and reporting restrictions.

1. The applicant had not explained the whole period of delay after the 28-day appeal period. The court nevertheless considered the merits and granted an extension because the proposed appeal was sufficiently strong.
2. The police had failed to investigate the applicant as a potential victim of trafficking and to refer her to the National Referral Mechanism. The prosecution had also failed to apply its own modern slavery guidance. Those failures alone did not make the convictions unsafe because the applicant remained able to advance her case at trial and there was no reason to think that the omitted reviews would have produced supportive evidence unavailable to her.
3. The statutory abuse-of-process jurisdiction remained confined to the conventional two limbs: inability to receive a fair trial, and unfairness in trying the defendant. A limb 2 stay was exceptional and required circumstances making continuation an affront to the conscience of the court. A potential section 45 defence did not exclude such an application, but the neglected reviews could have been carried out belatedly and a stay was therefore not inevitable.
4. The section 45 defence was not identical to duress and could succeed although duress failed. Since the defence had been raised in the applicant’s initial instructions, she should have received advice allowing her to make an informed tactical decision. The failure to advise deprived her of the opportunity to advance a defence which quite probably would have succeeded, causing a clear injustice.
5. Anonymity required a fact-specific assessment of the competing Convention rights, with very substantial weight given to open justice. An accused who was or might be a victim of trafficking had no automatic entitlement to anonymity. The applicant had not shown a credible risk of harm or any meaningful additional protection from anonymity, particularly since she had been identified at trial.

• Court of Appeal (Criminal Division): granted an extension of time and leave to appeal, received fresh evidence, allowed the appeal and quashed the convictions. Applications for a withholding order and reporting restrictions were refused: [2025] EWCA Crim 1205.
• Crown Court at Aylesbury: the applicant was convicted after trial of four drugs offences and sentenced to concurrent terms of 40 months’ imprisonment.