R v BZP

An adult relying on section 45 of the Modern Slavery Act 2015 must show that the offending was caused by compulsion attributable to slavery or relevant exploitation, and that a reasonable person with the relevant characteristics had no realistic alternative. Vulnerability arising from insecure immigration status and prior trafficking does not itself establish those elements.

A Single Competent Authority decision is not binding in criminal proceedings. It receives due deference according to the cogency of its evidential basis. Where the defendant had realistic alternatives to criminal conduct, the statutory defence has no realistic prospect, a guilty plea is not vitiated, and an abuse-of-process challenge to the prosecution will fail.

The applicant pleaded guilty in the Crown Court at Stoke on Trent to producing cannabis, contrary to section 4(1) of the Misuse of Drugs Act 1971, and received 16 months’ imprisonment. He was found in a cannabis factory after having entered the United Kingdom from Vietnam and alleged that he had been recruited, threatened and compelled to cultivate cannabis.

After his conviction, the Single Competent Authority made positive reasonable and conclusive grounds decisions that he had been a victim of modern slavery for forced criminality. His later asylum appeal also succeeded after a concession that he had been trafficked and criminally exploited.

He sought a 975-day extension of time and permission to appeal against conviction. He contended that he had a likely defence under section 45 of the Modern Slavery Act 2015, that his advice before pleading guilty was inadequate, or that the prosecution would have been an abuse of process. The central issue was the nexus between trafficking and his criminality.

1. The Court refused both the extension of time and permission to appeal. The proposed grounds were unarguable and there was no basis to vitiate the guilty plea.

2. Section 45 of the Modern Slavery Act 2015 required proof that the applicant acted because of compulsion attributable to slavery or relevant exploitation and that a reasonable person in his position, with the statutory relevant characteristics, would have had no realistic alternative. The Court accepted that his unlawful entry, lack of documentation and financial position made him vulnerable to exploitation. Those matters did not establish compulsion or remove realistic alternatives.

3. The Court rejected the assertion that he had received no advice about a modern-slavery defence. The contemporaneous material showed that the possibility had been identified. The reasonable-grounds decision contained no new information that undermined the advice. Further, an SCA decision would not have been admissible at trial: Brecani [2021] EWCA Crim 731.

4. The SCA’s reasonable and conclusive grounds decisions did not bind the criminal court. They were entitled to due deference, assessed by reference to the cogency of the evidence relied upon: AFU [2023] EWCA Crim 23. The First-tier Tribunal concession on trafficking did not determine the criminal issue, since that tribunal had not addressed the section 45 defence and the applicant had not given oral evidence there.

5. Applying the approach in VSJ [2017] EWCA Crim 36, the Court closely examined the nexus between trafficking and the offence. It held that cross-examination was necessary, consistently with AAD [2022] EWCA Crim 106. The applicant’s account was materially inconsistent and implausible. He had keys, money, contact with others, internet access, local knowledge and practical means of leaving. There was no circumstantial evidence of compulsion and he had realistic alternatives to continuing the cultivation.

6. There was therefore little, if any, realistic prospect of a section 45 defence. The solicitor-advocate was right to advise on the sentencing benefit of a guilty plea and to rely on the exploitation as mitigation. For the same reasons, the CPS was entitled to prosecute despite the National Referral Mechanism referral. Neither the SCA decisions nor the First-tier Tribunal decision supplied a proper basis for a stay for abuse of process.

• Court of Appeal (Criminal Division) — refused the application for permission to appeal against conviction and the application for an extension of time in [2025] EWCA Crim 267.
• Crown Court at Stoke on Trent — on 8 February 2021, the applicant pleaded guilty to producing a controlled Class B drug and was sentenced to 16 months’ imprisonment.

In separate asylum proceedings, the First-tier Tribunal allowed the applicant’s appeal against refusal of his protection and human-rights claim on 16 October 2023.