BNA v R

A later conclusive grounds decision that an accused was a victim of modern slavery does not, by itself, make a prosecution an abuse of process. The court must examine compliance with applicable prosecution guidance and review the prosecutorial decision for rationality and procedural fairness. Proper compliance normally requires a clearly flawed decision before intervention, while failure to follow the guidance makes closer scrutiny appropriate but is not decisive. The court may assess retrospectively whether prosecution remained in the public interest, including the seriousness of the offending, culpability and compulsion. A positive trafficking decision may be received on appeal and will usually be respected unless there are clear reasons to reject it. The section 45 defence under the Modern Slavery Act 2015 is unavailable for the section 16A offence under the Firearms Act 1968.

The applicant pleaded guilty in the Inner London Crown Court to possessing an imitation firearm with intent to cause fear of violence and was sentenced to 16 months’ imprisonment. The Single Competent Authority later made a conclusive grounds decision that he had been a victim of modern slavery for forced labour.

He applied for an extension of 2,142 days to appeal and for leave to rely on fresh evidence. He initially alleged abuse of process, an unsafe guilty plea and failure to advise him about the statutory modern slavery defence. The latter two grounds were abandoned. The central issue was whether the prosecution had failed to apply the CPS guidance sufficiently to make the prosecution an abuse of process and the conviction unsafe.

1. The court made an anonymity order under section 11 of the Contempt of Court Act 1981. It considered the fresh evidence application under section 23 of the Criminal Evidence Act 1968 de bene esse. Grounds concerning the guilty plea and the statutory defence were not pursued.
2. The governing approach was drawn from AFU [2023] EWCA Crim 23 and AH [2023] EWCA Crim 808. The decision to prosecute remains for the prosecution. Where the CPS guidance has been followed, intervention will generally require a clearly flawed decision. Where the guidance has been disregarded, the court may scrutinise the public-interest decision more readily, while reviewing it for rationality and procedural fairness.
3. The CPS guidance required a four-stage assessment: whether there was reason to believe that the suspect was a trafficking or slavery victim; whether there was clear evidence of common-law duress; whether there was clear evidence of the statutory defence under section 45 of the Modern Slavery Act 2015; and, if not, whether prosecution was in the public interest, having regard to all the circumstances, including seriousness and direct or indirect compulsion.
4. The positive conclusive grounds decision could be received on appeal under the approach in Brecani [2021] EWCA Crim 731. Although not binding, such a decision would ordinarily be respected under AAD [2022] EWCA Crim 106 unless there were clear reasons for rejecting it. The court found clear reasons here: the applicant’s accounts shifted materially, contained significant omissions and were contradicted by other evidence. His account of being enslaved and of handling the imitation firearm was manifestly implausible.
5. The CPS appeared not to have followed stage 1 after the Defence Statement was filed on 9 May 2018. That failure was relevant but not decisive. On the evidence available retrospectively, the prosecution would have remained justified in the public interest. The prosecution was therefore not an abuse of process, and there were no arguable grounds affecting the safety of the conviction.
6. As an alternative legal conclusion, the court held that section 16A of the Firearms Act 1968 creates one offence capable of being committed with either a firearm or an imitation firearm. Schedule 4, paragraph 13 of the Modern Slavery Act 2015 therefore excluded the section 45 defence. Johnson [2023] EWCA Crim 1609 was distinguishable because the relevant burglary subsections created separate offences.
7. The application for the extension of time was refused.

• Inner London Crown Court: The applicant pleaded guilty on 26 June 2018 to the section 16A offence under the Firearms Act 1968 and was sentenced to 16 months’ imprisonment on 3 August 2018.
• Court of Appeal (Criminal Division): The court considered the applications for an extension of time and fresh evidence, rejected the abuse of process argument and refused the extension: [2025] EWCA Crim 496.