“The BMJ Principle” – Judicial Limits on Positive Conclusive Grounds Decisions and the Public-Interest Test in Modern-Slavery Related Prosecutions

Introduction

BMJ v Rex ([2025] EWCA Crim 716) is a landmark Court of Appeal (Criminal Division) decision clarifying how English courts should deal with post-conviction claims that a defendant was, or is, a victim of modern slavery. The Applicant (“BMJ”) had amassed three sets of convictions between 2015 and 2022 for Class A and Class B drug trafficking, possession of criminal property, possession of a bladed article, and road-traffic offences. After a conclusive grounds decision by the Single Competent Authority (SCA) in November 2022 confirmed that BMJ was “a victim of modern slavery … for the specific purpose of criminal exploitation”, he sought:

• Retrospective anonymity under s.11 Contempt of Court Act 1981;
• Massive extensions of time (5–8 years) to appeal against his convictions and sentences;
• Leave to adduce fresh evidence under s.23 Criminal Appeal Act 1968.

BMJ’s core argument was that the Crown Prosecution Service (CPS) and the police had breached their obligations under Article 4 European Convention on Human Rights (ECHR) by prosecuting him when, he said, they should have identified him as a potential trafficking victim. As such, his prosecutions were allegedly an abuse of process and his convictions unsafe.

Summary of the Judgment

The Court (Lord Justice Jeremy Baker with two concurring Lord Justices) granted anonymity owing to a genuine risk of re-trafficking, but dismissed every substantive ground of appeal. In doing so it formulated what may now be termed “the BMJ Principle”:

Key holdings include:

• The SCA decision can be rejected where the applicant’s evolving account is inconsistent or incredible (paras 74-85).
• Failure by police/CPS to refer a suspect to the National Referral Mechanism (NRM) can be relevant but is not decisive: the court examines rationality and procedural fairness (paras 60-66).
• The seriousness of Class A drug trafficking, especially repeat offending, will usually tip the public-interest test towards prosecution even where some coercion exists (paras 69-70, 86).
• Sentencing judges had properly considered coercion/pressure within the Sentencing Council guidelines, and custodial terms were not manifestly excessive (paras 88-96).
• Anonymity was nonetheless granted, reinforcing AAD [2022] on balancing open justice and trafficking-related risks (para 1).

Detailed Analysis

1. Precedents Cited and Their Influence

• R v AAD [2022] EWCA Crim 106 – Set the template for anonymity orders for trafficking victims and confirmed courts may grant such orders in the appellate sphere. BMJ applies AAD directly in granting anonymity (para 1).
• AFU [2023] EWCA Crim 23 – Emphasised that CPS compliance with its own trafficking guidance is usually determinative unless “clearly flawed.” BMJ quotes AFU extensively (paras 61-63) as the primary authority on deference to prosecutorial decision-making.
• AH [2023] EWCA Crim 808 – Clarified that retrospective CPS assessments deserve due deference and that gravity of offending is crucial to public-interest decisions. BMJ relies on AH (paras 36-40) to uphold CPS decisions despite earlier procedural missteps.
• R v S(G) [2018] EWCA Crim 1824 – Provided the “dominant force of compulsion” test for deciding whether prosecution of a trafficking victim was in the public interest. Gross LJ’s formulation is expressly adopted (para 63).
• Brecani [2021] EWCA Crim 731 – Established that SCA decisions are inadmissible at trial but may be considered on appeal. BMJ follows Brecani yet explains why it rejected the SCA decision factually (para 64 & 84-85).
• Sentencing cases: references to section 313 of the Sentencing Act 2020 (mandatory minimum for third-strike Class A suppliers) and guideline cases on Newton hearings illustrate sentencing methodology but do not create new law.

2. The Court’s Legal Reasoning

The judgment unfolds in three logical stages:

1. Threshold Inquiry – Is the Applicant a Victim of Trafficking?
   • Despite the SCA’s positive decision, the Court found BMJ “not credible” (paras 74-85). It listed inconsistencies (identity of intimidators, chronology, location shifts, contradictory Defence Statements, implausible denial of phone attribution, etc.).
   • The Court reaffirmed that the SCA decision is persuasive but rebuttable; where new evidence and live testimony undermine credibility, the court is entitled to reject it.
2. Procedural Fairness & CPS Guidance Compliance
   • For the 1st set of offences (2015-16) there was no “triggering evidence” necessitating an NRM referral (para 67). Pressure to repay a drug debt, without more, did not itself signify trafficking.
   • For the 3rd set of offences (2021-22) the CPS arguably skipped parts of its four-stage post-2015 guidance, but the Court held that any non-compliance was cured by an objective review of seriousness, culpability and public interest (paras 70-73).
3. Public-Interest Balancing & Abuse of Process
   • Even if BMJ had been trafficked, the gravity of repeat Class A supply (mandatory-minimum territory) would still make prosecution proportionate.
   • Following AFU and AH, only a “clearly flawed” decision to prosecute warrants judicial intervention; this threshold was not met (para 87).

3. Likely Impact of the Decision

BMJ will shape modern-slavery litigation in several ways:

• Restricting Over-Reliance on SCA Decisions. Defence teams can no longer assume that a positive conclusive-grounds decision will automatically trigger an abuse-of-process finding; courts will interrogate credibility rigorously.
• Elevating Seriousness in the Public-Interest Calculus. BMJ emphasises that repeat Class A supply, even if coerced, is unlikely to escape prosecution. This may narrow the practical utility of the section 45 MSA 2015 defence for serious drug offences.
• Guidance for CPS and Police. The judgment tacitly endorses retrospective justification where initial guidance mis-steps occur, but simultaneously signals that clear, well-documented decision-making will be scrutinised less harshly.
• Anonymity Jurisprudence Extended. BMJ confirms that the AAD anonymity approach applies alike on appeal, even where the applicant ultimately fails to prove trafficking–the risk of re-trafficking is sufficient.
• Sentencing Approach Confirmed. Judges may continue to treat coercion as mitigating within drug-supply guidelines without necessarily re-categorising role; Newton hearings remain the vehicle to resolve “pressure” disputes.

Complex Concepts Simplified

• Single Competent Authority (SCA) – The Home Office body that decides, under the National Referral Mechanism, whether someone is a potential or confirmed victim of modern slavery.
• Positive “Conclusive Grounds” Decision – The SCA’s second-stage (final) confirmation that a person is a victim; persuasive in criminal courts but not legally binding.
• Section 45 MSA 2015 Defence – Provides a statutory defence where a victim of slavery/trafficking was compelled to commit certain offences; subject to limitations (does not cover all serious offences).
• Article 4 ECHR Obligations – States must protect individuals from slavery/forced labour, investigate potential trafficking, and avoid penalising victims for offences directly attributable to their exploitation.
• Abuse of Process (Criminal) – A doctrine allowing courts to halt a prosecution if continuation would offend justice—e.g., because of State misconduct or oppression.
• Newton Hearing – A fact-finding mini-trial after a guilty plea where prosecution and defence disagree on material facts affecting sentence.
• Mandatory Minimum (s.313 Sentencing Act 2020) – A legislated minimum of 7 years’ custody for a third conviction of Class A drug supply unless unjust.
• NRM Referral – A “first responder” (often police) lodges a referral where indicators of trafficking exist; triggers the SCA process.

Conclusion

BMJ v Rex crystallises a pragmatic, evidence-driven approach to modern-slavery claims in criminal appeals. The Court of Appeal will:

1. Respect but not rubber-stamp SCA findings;
2. Scrutinise credibility and consistency rigorously, taking live evidence where necessary;
3. Uphold prosecutions for serious offences unless the decision to prosecute is demonstrably “clearly flawed”; and
4. Ensure any trafficking-related mitigation is absorbed through sentencing guidelines rather than serving as a retrospective shield to liability.

For practitioners, the case underscores the need for contemporaneous, detailed instructions and early NRM referrals where trafficking indicators exist. For the CPS, it validates that post-hoc public-interest assessments may salvage earlier procedural oversights, provided they are thorough and transparent. Finally, for the judiciary, BMJ establishes a balanced template—protecting genuine victims without allowing unsubstantiated slavery claims to unravel meritorious prosecutions.

© 2024-2025 | This commentary is for academic and professional reference; it does not constitute legal advice.