R v BKM

A conclusive grounds trafficking decision is not binding on a criminal appellate court. The court will ordinarily respect it unless contrary evidence exists or the decision overlooked significant evidence. It may hear oral evidence where the decision is properly challenged.

A defendant seeking to impugn guilty pleas for lack of advice about section 45(1) of the Modern Slavery Act 2015 must show that proper advice would have enabled a defence with a good prospect of success. Failures to investigate trafficking circumstances or to give that advice do not render convictions unsafe where credible evidence does not establish compulsion attributable to slavery or relevant exploitation.

The applicant pleaded guilty at Southwark Crown Court in September 2018 to two offences of possessing Class A drugs with intent to supply and an offence of possessing a bladed article. He received concurrent sentences of two years’ imprisonment for the drugs offences and a consecutive two-month sentence for the knife offence.

After a delay of 1,939 days, he sought an extension of time and leave to appeal against conviction and sentence. He relied on later positive trafficking decisions by the Single Competent Authority and alleged both an abuse of process through failure to follow CPS trafficking guidance and deficient advice about a defence under section 45(1) of the Modern Slavery Act 2015. The central issues were whether the new material established exploitation connected to the offences and whether either proposed ground rendered the pleas or sentence unsafe.

1. The applications were refused. The court considered the proposed fresh evidence de bene esse, but held that it could not afford a ground for allowing an appeal under section 23(2) of the Criminal Appeal Act 1968.

2. The court applied the guidance in AAD [2022] EWCA Crim 106. A positive conclusive grounds decision was not binding. Although it would normally be respected in the absence of contrary or materially omitted evidence, the accompanying decision had not analysed major inconsistencies in the applicant’s accounts. The court was therefore entitled to hear his oral evidence and assess credibility for itself.

3. Applying the checklist in ARU [2023] EWCA Crim 23, the court accepted that the trafficking circumstances had not been sufficiently investigated in 2018 and that the applicant had not been advised about section 45(1). Those failures were not decisive. The applicant had to show that proper investigation would have demonstrated trafficking relevant to the offences, or that proper advice would have given him a defence with a good prospect of success.

4. His account of recruitment into drug dealing and of the events immediately before arrest was incredible. It materially conflicted with his contemporaneous prepared and defence statements and was inconsistent with his asserted fear and compulsion. The court found no reliable evidence that any trafficking status was connected with the offending or that he had been compelled to commit it. Had the prosecution known the matters now relied upon, it would properly have maintained the prosecution. A jury would inevitably have rejected a section 45(1) defence.

5. The sentence appeal also lacked merit. Trafficked status can be relevant to sentence, but here the original sentence was already very lenient and that status was too remote from the criminality to mitigate it. No extension of time was granted, and the fresh evidence was not received.

• Court of Appeal (Criminal Division): In R v BKM [2025] EWCA Crim 389, the court refused an extension of time and leave to appeal against conviction and sentence.
• Southwark Crown Court: The applicant pleaded guilty in September 2018 to two drug-possession-with-intent offences and possessing a bladed article. He received concurrent two-year sentences for the drug offences and a consecutive two-month sentence for the bladed article offence.