Baniulyte v R: No Routine Anonymity for Adult Trafficking Victims in Criminal Appeals; Convictions Unsafe Where s45 MSA Defence Was Not Put Despite Clear Indicators

Introduction

In Baniulyte v R [2025] EWCA Crim 1205 (Holroyde LJ), the England and Wales Court of Appeal (Criminal Division) allowed an out-of-time appeal against convictions for Class A drug supply offenses, quashing the convictions on the ground that the defendant—a potential victim of modern slavery (VMS) and trafficking victim (VOT)—had not been advised about the statutory defence under section 45 of the Modern Slavery Act 2015 (MSA 2015). The court held that she had been deprived of a defence that quite probably would have succeeded, satisfying the “clear injustice” threshold.

The court also refused anonymity, delivering a significant, structured guidance for future anonymity applications by adult trafficking victims in criminal appeals. The judgment therefore addresses two interlocking but distinct areas: (1) the relationship between the MSA 2015 s45 defence and the common law defence of duress, as well as the consequences of police/CPS failures to identify and review trafficking indicators; and (2) the correct approach to derogations from open justice (withholding and reporting restriction orders) in the appellate criminal context.

Summary of the Judgment

Extension of time was granted despite over two years’ unexplained delay, because the merits were sufficiently strong to justify it (¶¶62–67, 119).
Police and CPS failures were accepted (no NRM referral; no CPS review per Guidance), but those failures alone did not render the conviction unsafe, nor would an abuse of process application necessarily have succeeded (¶¶67–77).
The convictions were quashed because the applicant was not advised about the distinct s45 MSA defence; she was deprived of a defence that quite probably would have succeeded, constituting a clear injustice (¶¶78–83). Fresh evidence (psychological report; IECA conclusive grounds) was admitted as supportive (¶84).
Anonymity applications (withholding order and reporting restrictions) were refused. The court emphasised the primacy of open justice and issued a nine-point framework for future anonymity applications by trafficking victims in appellate criminal proceedings (¶¶86–118, esp. ¶111; orders refused at ¶119).

Factual and Procedural Background

The applicant was observed supplying drugs at a “cuckooed” address and arrested with heroin and cash; further wraps and a dealing phone were found in the flat (¶5). She had previous convictions for Class A supply from 2014 (¶7). Sent for trial on supply and possession with intent (¶8), her defence case flagged potential modern slavery and duress from the outset in the BCM form (¶9). A co-accused pleaded to supply offenses; a count alleging he required the occupier to perform forced labour under MSA 2015 s1(1)(b) was left on the file (¶14).

At trial (August 2022), her sole defence was duress (¶18). The judge gave standard duress directions including the “voluntary association” question (Question 5) (¶21). She was convicted on all counts and sentenced to 40 months concurrent (¶23). No appeal was brought at the time (¶24). Later, new representatives sought to appeal relying on Article 4 failures (no NRM referral; no CPS review), the prospective s45 defence, and requesting anonymity orders (¶¶25–27, 58–61). Fresh evidence included a psychological diagnosis and an IECA conclusive grounds decision (¶26).

Analysis

Precedents Cited and Their Influence

R v BTE [2022] EWCA Crim 1597: The court reiterates the “clear injustice” test—an appellant must show they were deprived of a defence that quite probably would have succeeded (¶40). This standard becomes decisive in Baniulyte, where failure to advise on s45 is found to have denied such a defence (¶82).
R v BXR [2022] EWCA Crim 1483: Cited to support that appeals may succeed even absent fault by previous lawyers (¶52). The focus is on the effect of non-advice on the fairness of the conviction rather than blame.
R v DS [2020] EWCA Crim 285, [2021] 1 WLR 303: Clarifies that abuse of process in trafficking cases remains confined to the conventional limbs (fair trial impossible; or unfair to try) post-MSA 2015, i.e., no special third category (¶71). This frames the court’s approach to limb 2 abuse in Baniulyte (¶¶70–77).
R v AAD [2022] EWCA Crim 106, [2022] 1 WLR 4042: Confirms that despite the availability of s45, limb 2 abuse can apply in trafficking cases where CPS Guidance is unjustifiably not followed; unfairness/oppression may justify a stay (¶72). The court in Baniulyte distinguishes, concluding a stay was not inevitable here because a belated CPS/police review could have been ordered (¶¶75–76).
R v AFU [2023] EWCA Crim 23, [2023] 1 Cr App R 16: Demonstrates exceptional circumstances where CPS failures were determinative (prosecution would not have proceeded or would have been discontinued) (¶73). In Baniulyte, the court finds that while failures occurred, their remedial potential meant abuse was not established; instead the s45 non-advice point carries the day (¶¶75–82).
Khuja v Times Newspapers Ltd [2017] UKSC 44, [2019] AC 161: Reaffirms the limits of inherent powers to restrain publication in criminal cases—reporting restrictions must be found in statute; collateral impact is part of open justice (¶¶87, 102).
In re Trinity Mirror plc [2008] QB 770: Canonical statement of the open justice principle and the limits/necessity of departures (¶86). Applied rigorously to refuse anonymity.
Abbasi v Newcastle upon Tyne Hospitals NHS Foundation Trust [2025] UKSC 15: Recent Supreme Court guidance on balancing qualified rights (Articles 8 and 10), emphasizing structured necessity and proportionality (¶¶89–93).
JIH v News Group [2011] 1 WLR 1645; R v Sarker [2018] 1 WLR 6023; R (Marandi) v Westminster Magistrates’ Court [2023] EWHC 587 (Admin): The “clear and cogent evidence” standard and strict necessity for derogations from open justice (¶88).
R v CS [2021] EWCA Crim 134: Fact-specific anonymity assessment—anonymity may be justified in one case and refused in another on the evidence (¶110), reinforcing that there is no routine approach.
R (Press Association) v Cambridge Crown Court [2013] 1 WLR 1979; R v Arundel Justices ex p Westminster Press Ltd [1985] 1 WLR 708: Reporting restrictions cannot be applied retrospectively (¶103).

Legal Reasoning

1) Extension of Time

Although the court was critical of the lack of any explanation for the 17-month period post-conviction (¶¶63–66), it emphasised that it will consider merits before refusing extensions. Given the strength of the non-advice/s45 ground, the extension was granted (¶66).

2) Police/CPS Failures, Article 4 ECHR and the NRM

The court accepted that both police and CPS failed in their duties: the police should have referred the applicant to the NRM (Article 4 procedural obligation to investigate potential trafficking), and the CPS should have applied its published four-stage Guidance to review the case (¶¶42–46). However, these failures alone did not render the convictions unsafe because they did not prevent the defence from advancing trafficking arguments at trial; counsel had considered them and chose to run duress only (¶67).

3) Abuse of Process

Reinforcing DS and AAD, the court reaffirmed that abuse remains confined to the two conventional limbs (¶70–75). On the facts, a limb 2 stay was not inevitable: the Crown Court could have ordered a belated NRM/CPS review if the issue had been raised, reducing the justification for the “exceptional remedy” of a stay (¶¶75–76). Accordingly, failures under Article 4/CPS Guidance did not themselves undermine the safety of the convictions (¶77).

4) The s45 Defence and Duress—Distinct Doctrines

The critical reasoning is at ¶¶78–83. The court held that s45 is not the same as duress: while both concern compulsion, s45 includes statutory elements that can succeed even if duress fails, partly due to s1(5) MSA 2015 and the different structure of the s45 test (¶¶50–53, 78–82).

The judge’s duress directions included “voluntary association” (Question 5)—placing oneself in a situation where threats to compel crime are foreseeable (¶21).
By contrast, s1(5) MSA 2015 provides that a person’s consent to acts of forced labour does not preclude a finding of slavery/servitude/forced labour (¶36). Under s45, the test includes whether a reasonable person with the defendant’s “relevant characteristics” would have had no realistic alternative (¶39) and whether the compulsion is attributable to slavery/relevant exploitation (¶39).
The court accepted that a jury could convict on duress while acquitting on s45, because the “voluntary association” bar in duress does not map onto s45’s elements (¶50), and the statutory scheme allows for consent or prior involvement to be viewed differently where exploitation is ongoing or causally linked.

Trial counsel acknowledged not advising on s45 because he thought the compulsion question would fail in any event (¶51). The Court of Appeal concluded the choice between duress and s45 was not for counsel alone: it was essential that the applicant be advised so she could elect whether to plead both or focus on one (¶¶78–80). Because she was never advised about s45, this was not a strategic waiver but a deprivation of a viable defence (¶80).

Applying BTE’s standard, the court held the applicant was “deprived of a defence that quite probably would have succeeded,” causing a “clear injustice” (¶82). That conclusion was fortified by the parity point with Baldwin’s victim status and the absence of rebuttal evidence to the s45 case, as the respondent fairly accepted (¶81).

5) Fresh Evidence

The court admitted and considered the psychologist’s report and IECA conclusive grounds decision (¶26, ¶84). Although not determinative, these materials supported the conclusion that the s45 defence would probably have succeeded if run at trial.

6) Open Justice and Anonymity—A Structured Framework

The court refused anonymisation and issued detailed guidance for future applications (¶¶86–118, ¶119). Core principles include:

Open justice has very substantial weight; derogations are exceptional and must be strictly necessary, supported by clear and cogent evidence (¶¶86–93).
The court reiterated Khuja: in criminal cases, reporting restrictions require statutory authority; s11 Contempt of Court Act 1981 is the principal vehicle but is ancillary to a prior lawful withholding of the name (¶¶102–103).
The phrase “a court (having power to do so)” in s11 refers to the court currently seised; the Court of Appeal can make a withholding order even if none was made below, but must consider the impact of prior publicity and non-retrospectivity (¶¶105–106).
Anonymity is not routine in trafficking cases for adult defendants; there is no automatic statutory anonymity (¶¶108–111(i)).
Applications must be made early, identify the jurisdictional basis, be evidence-backed (including details of prior reporting), address “jigsaw identification,” and will be assessed case-by-case (¶111(ii)–(ix)).

On the facts, the applicant did not establish a current credible risk of harm or any pressing Article 8 need that outweighed open justice. She had been publicly identified at trial years earlier; there was no asylum/immigration anonymity to protect; and no evidence of reprisals risk or Article 2/3 engagement (¶¶115–118). The applications were therefore refused.

Impact and Significance

A. Defence Practice: Advising on s45 Is Imperative Where Indicators Exist

Where modern slavery/trafficking indicators exist, defence practitioners must actively consider and advise on s45, not just duress. Failure to do so risks convictions being quashed if the omission deprived the defendant of a defence likely to succeed (¶¶78–83).
Advice should be recorded, and where appropriate, both defences may be advanced—even if they overlap—given their distinct legal elements (¶¶50–53, 78–83).
Evidence-gathering (medical/psychological, NRM decisions, background exploitation proof) is integral and can be adduced fresh if supportive, but the core question is what was available or could have been available at trial (¶84).

B. Prosecution and Police Duties: Article 4 and CPS Guidance Are Real Obligations

Police must refer suspected VOT/VMS cases to the NRM; CPS must apply the four-stage trafficking review, even where s45 is not formally pleaded (¶¶35, 42–46).
However, failures will not automatically vitiate convictions—courts will ask whether the failure would have altered the course of prosecution or denied a fair trial; belated remedial reviews may be ordered (¶¶67–77).

C. Abuse of Process in Trafficking Cases

DS remains the anchor: the abuse jurisdiction is confined to the two conventional limbs. AFU and AAD are applied as exceptional cases; limb 2 stays require a very high threshold (¶¶70–75).
In practice, defendants should raise CPS/police failures promptly so that a trial judge can direct a belated review if needed; this will often defeat a limb 2 application (¶¶75–76).

D. Open Justice and Anonymity—A New, Practical Appellate Framework

The nine-point framework at ¶111 is likely to be the leading practical roadmap for anonymity applications by adult trafficking victims in criminal appeals.
Key clarifications include the ancillary nature of s11, the Court of Appeal’s jurisdiction to withhold names even absent trial-stage anonymisation, and the importance of prior publicity and non-retrospectivity (¶¶102–106).
Routine anonymisation is expressly discouraged; proof of necessity is required, with specific evidence of risk and of any “jigsaw” dangers, and with early, properly particularised applications (¶¶108–111).
The reference to forthcoming CrimPR 6.4 changes (effective 6 October 2025) signals a harmonised procedural discipline for such applications (¶111(iii)).

Complex Concepts Simplified

Victim of Modern Slavery/Trafficking (VMS/VOT): A person subjected to slavery, servitude, forced or compulsory labour (MSA 2015 s1) or trafficked for exploitation (s2). Early identification triggers a duty to investigate and consider referral to the National Referral Mechanism (NRM) (¶¶35–37).
National Referral Mechanism (NRM) and IECA: The UK framework for identifying victims; a Competent Authority (currently IECA in some cases) issues decisions: “reasonable grounds” and then “conclusive grounds.” These do not determine the criminal case but can be persuasive or supportive evidence (¶¶26–27, 84).
Section 45 MSA 2015 Defence: For adults, a defence where the act was done because of compulsion attributable to slavery or relevant exploitation and a reasonable person with the defendant’s characteristics would have had no realistic alternative (¶39). It is different from duress and can succeed even if duress would fail, for example in relation to consent or prior involvement (¶¶50, 78–82).
Duress v s45: Duress requires immediacy and includes a “voluntary association” bar; s45 focuses on exploitation-related compulsion and “no realistic alternative,” considering age/sex/mental illness/disability as relevant characteristics (¶¶21, 39, 50–53).
Abuse of Process: Two limbs—(1) fair trial impossible; (2) unfair to try at all. In trafficking cases post-MSA 2015, courts apply these conventional limbs; limb 2 requires exceptional unfairness/oppression (¶¶70–75).
Withholding Order vs Reporting Restriction Order: A withholding order allows a name to be omitted in court documents/hearings; a reporting restriction order prohibits the press/public from publishing identifying details. In criminal cases, reporting restrictions generally require statutory authority—commonly s11 Contempt of Court Act 1981, which operates only where the court has first lawfully withheld the name and is not retrospective (¶¶97–103).
Jigsaw Identification: Where non-identifying information, combined with other publicly available information, can lead to identification. Applicants must explain concretely why this risk arises and how restrictions would mitigate it (¶¶106–107, 111(v)).

Practice Notes

For Defence Practitioners

Screen every drugs or similar case for trafficking indicators; secure NRM referral where appropriate and gather supporting evidence (medical, expert, background exploitation proof).
Advise in writing on both duress and s45 where indicators exist; record the client’s informed choice. Consider running both defences given their distinct elements and prospects (¶¶50–53, 78–83).
If CPS/police fail to comply with Article 4 duties or CPS Guidance, raise this promptly and consider applying for a belated review or, exceptionally, a stay; but recognise that a belated review may defeat limb 2 abuse (¶¶72–77).
When seeking anonymity, apply early with full particulars: jurisdictional basis, evidence of risk, prior publicity, and any interplay with other anonymised proceedings; anticipate the high threshold (¶111).

For Prosecutors and Police

Operationalise Article 4: refer suspected VOT/VMS to the NRM; record reasons if not referred. Apply the CPS four-stage Guidance rigorously (¶¶42–46).
Where defence raises s45 or there are indicators, conduct and document reviews; engage with any abuse applications with evidence of compliance or remedial steps (¶¶75–76).
On anonymity, be prepared to assist the court on the s11 framework, prior publicity, and the proportionality of any restrictions.

Conclusion

Baniulyte v R delivers two durable messages. First, in modern slavery cases, a conviction can be unsafe where the defendant was not advised about the s45 defence and was thereby deprived of a defence that quite probably would have succeeded. Duress and s45 are distinct, and failing to run s45 cannot be justified simply because duress is run. Police/CPS failures will matter, but they are not in themselves determinative; the decisive question is often whether a viable statutory defence was unfairly withheld from the jury.

Second, the Court of Appeal has now provided a structured, nine-point framework for anonymity applications by adult trafficking victims in criminal appeals, reaffirming the centrality of open justice, clarifying the limits of s11, and insisting on early, evidence-based, necessity-driven applications. There is no routine anonymisation in these cases; applicants must persuade the court that a derogation is strictly necessary on the facts.

The judgment thus deepens the jurisprudence on s45’s distinctiveness and stakes out clear, practical terrain for future anonymity applications in the criminal appellate courts. Its combined effect will shape defence advisory practice, prosecutorial decision-making under the CPS Guidance, and the media’s and courts’ approach to reporting and open justice in trafficking-related appeals.

Key Takeaways

Advisory duty: Where trafficking indicators exist, failure to advise on s45 can render convictions unsafe (¶¶78–83).
Duress ≠ s45: They overlap but are legally distinct; s45 can succeed even where duress fails (¶¶50, 78–82).
Abuse of process: Exceptional and confined to conventional limbs; belated remedial reviews may preclude a stay (¶¶70–77).
Anonymity: No automatic or routine anonymity for adult trafficking victims in criminal appeals; nine-point framework applies (¶111).
s11 CCA 1981: Ancillary, not retrospective; the appellate court can withhold, but must weigh prior publicity and necessity (¶¶102–106).
Fresh evidence: IECA and psychological evidence can support s45 viability but will be considered alongside the trial record (¶84).