R v Maria Kwiatkowska

After the commencement of the Modern Slavery Act 2015, the abuse of process jurisdiction remains available where fresh evidence shows that a defendant may have been trafficked or exploited. A conviction should be quashed if dominant compulsion reduced culpability below the public-interest threshold, or if the defendant would or might well not have been prosecuted in the public interest. Prosecutorial decisions remain fact-specific. Repeated serious offending may justify leaving the issue to a jury. Failure to advise on the statutory defence does not automatically invalidate a guilty plea. The court must ask whether the lack of advice made a difference to the plea. A vulnerable defendant may nevertheless make a rational decision to plead guilty to obtain safety or avoid a longer sentence.

The applicant sought an extension of time, leave to appeal five sets of convictions, and permission to rely on fresh evidence under section 23 of the Criminal Appeal Act 1968. The convictions followed guilty pleas to burglaries, fraud and battery committed between 2011 and 2020. The applications relied on alleged trafficking and modern slavery, abuse of process, failure to advise on the section 45 defence, and the applicant’s intellectual and psychological vulnerabilities. The evidence included social-service records, expert reports, positive conclusive grounds decisions and a tribunal judgment. The central questions were whether the prosecutions should have been stayed as an abuse of process and whether any failure to advise on the statutory defence affected the applicant’s guilty pleas.

Disposition. The Court extended time and granted leave. The appeals against the 2011 and 2015 convictions were allowed. The appeals against the 2017, 2019 and 2020 convictions were dismissed.

1. Fresh evidence and abuse of process. Evidence not adduced below was received because that was necessary or expedient in the interests of justice under section 23(1)(c) of the Criminal Appeal Act 1968. The section 45 regime did not displace the pre-existing abuse of process jurisdiction. Following R v AFU [2023] EWCA Crim 23 and R v AAD [2022] EWCA Crim 106, the court applied the approach stated in R v GS [2018] EWCA Crim 1824. The safety inquiry asks whether dominant compulsion reduced culpability below the public-interest threshold, or whether the defendant would or might well not have been prosecuted in the public interest. If so, the conviction should be quashed.
2. 2011 and 2015 convictions. The 2011 prosecution of a child for the relatively minor burglary was exceptionally contrary to the public interest and amounted to an abuse of process. In 2015, the available information should have alerted the authorities to the applicant’s status as a victim of trafficking or modern slavery. The respondent’s concession that the prosecution probably would not have been commenced or maintained was not clearly flawed and carried considerable weight.
3. 2017 to 2020 convictions. The applicant’s background and evidence were significant, but repeated serious offending, the continuing exploitation of her position, and the public interest in allowing a jury to determine the section 45 defence meant that the prosecutions were not abusive. A line could properly be drawn in the public-interest assessment. The court rejected the submission that alleged failures under ECAT necessarily altered that conclusion.
4. Advice and capacity. In 2017 there was an evidential basis for the section 45 defence and it would probably have succeeded, but general compulsion had been discussed and the applicant pleaded guilty to obtain safety. The lack of specific section 45 advice therefore made no difference. In 2019 she received careful advice and understood the effect of her decision. In 2020 she refused to engage with advice, but her decision to plead guilty to avoid a longer sentence was rational. Under section 1 of the Mental Capacity Act 2005, vulnerability and an unwise decision did not establish incapacity.

• Court of Appeal (Criminal Division): applications for extension of time, leave to appeal and fresh evidence considered; appeals against the 2011 and 2015 convictions allowed, and appeals against the 2017, 2019 and 2020 convictions dismissed, in [2026] EWCA Crim 45.
• Crown Courts at Basildon and Snaresbrook: the applicant was convicted following guilty pleas to the offences committed between 2011 and 2020.