R v Tinh Van Nguyen

A guilty plea does not prevent an appeal where the plea was equivocal, a viable statutory defence was overlooked, or prosecution was legally barred. The appellant must nevertheless show that the conviction is unsafe. A Modern Slavery Act 2015 defence depends on compulsion linked to the particular offence and on the objective absence of a realistic alternative. Trafficking status or a positive Conclusive Grounds decision is not enough. The defence can apply to omissions. Alleged failures to investigate trafficking must be assessed on public-law grounds, but prosecution is not abusive merely because trafficking indicators exist.

The applicant sought substantial extensions of time to challenge two guilty-plea convictions. At Bradford Crown Court he was convicted of failing to surrender to custody under the Bail Act 1976 and sentenced to four weeks’ imprisonment. At Wolverhampton Crown Court he was convicted of producing cannabis and sentenced to twelve months’ imprisonment.

He relied on alleged trafficking and exploitation, the statutory defence under the Modern Slavery Act 2015, reasonable cause for failing to surrender, abuse of process, and rights under Article 4 of the European Convention of Human Rights. He also sought to adduce fresh evidence. The central issues were whether either conviction was unsafe, whether the prosecution was abusive, and whether the applications should be allowed despite the delay.

The Court dismissed both applications, refused the extensions of time and leave required in the Wolverhampton matter, and declined to admit the proposed fresh evidence.

1. Guilty pleas and unsafe convictions. A voluntary and unequivocal guilty plea is a strong indicator that the conviction is safe. The single question remains whether the conviction is unsafe. The recognised exceptions include an equivocal plea, ignorance of a viable defence which would quite probably have succeeded, and a legal obstacle amounting to abuse of process. The Court applied the principles identified in R v Tredget [2022] EWCA Crim 108.
2. Section 45 defence. The defence requires a nexus between exploitation-related compulsion and the specific offending, together with the objective no-realistic-alternative test. A positive Conclusive Grounds decision does not determine criminal liability. Where the defence is raised, the Crown must disprove it to the usual criminal standard, as stated in R v MK [2018] EWCA Crim 667. Section 45(6) confirms that an act includes an omission, so the defence can apply to failure to surrender. Where raised for the first time after a guilty plea, the Court must be satisfied that it would quite probably have succeeded, applying BTE [2022] EWCA Crim 1597.
3. Bradford appeal. There was no evidence that trafficking prevented attendance at court in March 2021. The judge’s acceptance that the applicant had been exploited was mitigation, not a finding of compulsion at the material time. The reasonable-cause defence under section 6(3) of the Bail Act 1976 required an objective assessment, and the evidence did not establish a reasonable excuse. The proposed appeal therefore had no prospect of success.
4. Wolverhampton appeal and abuse of process. The Court afforded respect to the Conclusive Grounds decision but treated it as non-determinative. The evidence contained substantial inconsistencies and no independent or contemporaneous support for compulsion. The applicant had been advised about section 45 and made an informed decision to plead guilty. Under R v AFU [2023] EWCA Crim 23, the prosecution had to consider trafficking indicators and review its decision, with appellate review on grounds corresponding to public-law grounds. The decision to continue was properly open to the Crown. Previous trafficking findings did not confer blanket immunity, and the high abuse-of-process threshold was not met.
5. Fresh evidence. Following R v AAD [2022] EWCA Crim 106, the decision whether to hear oral evidence was fact-sensitive and for the Court. Taking the applicant’s statement at its highest, it was unsupported and inconsistent with contemporaneous material. It was not sufficiently credible or weighty to justify admission or either appeal. The applications were accordingly dismissed.

• Court of Appeal (Criminal Division) — In [2026] EWCA Crim 388, dismissed the applications and refused to extend time or admit the fresh evidence.
• Bradford Crown Court — Convicted the applicant on 1 December 2021 of failing to surrender to custody and imposed four weeks’ imprisonment.
• Wolverhampton Crown Court — Convicted the applicant on 9 March 2022 of producing cannabis and imposed twelve months’ imprisonment.