Beyond Conclusive Grounds: BMJ v R and the Limits of Modern-Slavery Defences in Serious Drug Cases

1. Introduction

BMJ v R ([2025] EWCA Crim 716) is the latest Court of Appeal decision to grapple with the interface between (i) the criminal liability of defendants engaged in serious drug-supply offences and (ii) the emerging statutory and policy framework that protects genuine victims of trafficking and modern slavery.

The applicant (“BMJ”), a 36-year-old repeat Class A drug-trafficker, sought:
• to overturn three separate sets of convictions and sentences (2015–2022);
• to rely on fresh evidence – a 2022 Single Competent Authority (SCA) conclusive grounds decision finding that he had been a victim of modern slavery from 2007/08 to 2021;
• to argue that each prosecution constituted an abuse of process because the police and CPS had allegedly ignored their ECHR Art 4 duties and their own modern-slavery guidance; and
• to secure anonymity under s.11 Contempt of Court Act 1981 (an order which the court granted).

2. Summary of the Judgment

The Court (Lord Justice Jeremy Baker, giving the sole judgment) refused every substantive application: extensions of time, leave to appeal against convictions, and leave to appeal against sentence. In robust terms the Court held that:

• BMJ was not, on the balance of probabilities, a victim of trafficking during the periods relevant to the three indictments; the SCA’s contrary conclusion was rejected.
• Even had trafficking been established, the gravity of the drug-supply offending meant prosecution would have been in the public interest; hence there was no abuse of process.
• Sentences (including a reduced five-year term under the “third-strike” provisions of s.313 Sentencing Act 2020) appropriately reflected any limited mitigation arising from pressure or intimidation.

The appeal therefore clarifies that a positive SCA decision will not invariably trump the court’s own assessment of credibility and public interest, especially where the offending is grave and the defendant’s account is inconsistent.

3. Analytical Commentary

3.1 Precedents Cited and Their Influence

• R v AAD [2022] EWCA Crim 106 – recognised that SCA decisions are persuasive but not binding; the court must decide for itself whether a defendant is a victim of trafficking and, if so, whether prosecution is an abuse.
  ↳ BMJ applied AAD to scrutinise – and ultimately reject – the SCA’s findings.
• AFU [2023] EWCA Crim 23 – stressed that compliance with CPS modern-slavery guidance is central; where guidance is followed, courts intervene only if the decision is “clearly flawed”.
  ↳ BMJ restated that principle but demonstrated that even apparent non-compliance will not assist a defendant if the evidence ultimately shows he was not trafficked.
• AH [2023] EWCA Crim 808 – emphasised a rationality/procedural-fairness review of CPS decisions and accorded deference to retrospective CPS reasoning.
  ↳ BMJ relied heavily on AH to accept CPS submissions that – had all evidence been available – prosecution would still have occurred.
• S(G) [2018] EWCA Crim 1824 – formulated the “dominant force of compulsion” test for public-interest stays.
  ↳ BMJ adopted that formulation, holding the compulsion alleged fell far short.
• Other authorities referenced (AGM, BYA, N/L, LM, Brecani) collectively map the development of trafficking jurisprudence and emphasise proportionality, seriousness of offending, and the autonomy of prosecutorial discretion.

3.2 The Court’s Legal Reasoning

(a) Evidential Assessment & Credibility

The Court undertook a painstaking review of BMJ’s shifting narratives (plea bases, Defence Statements, referral forms, witness statements, live testimony) and identified multiple irreconcilable inconsistencies:

• The alleged mastermind “X” appeared nowhere in BMJ’s account until 2021, despite claims of historic exploitation;
• Divergent explanations for the 2017 knife-possession incident;
• Cell-site data conclusively tying BMJ to the “[B] line” drug phone, contrary to his denials;
• Pre-sentence report (2019) stating he was free from Class A drugs and had no contact with dealers – incompatible with claims of ongoing enslavement.

Finding BMJ an “unreliable witness”, Baker LJ held that any threats or violence were “incidental to voluntary drug offending” rather than indicative of trafficking.

(b) Weight to be Given to SCA Decisions

Applying AAD, the Court accepted that SCA findings are normally respected but noted that the SCA’s reasoning here rested “almost wholly” on BMJ’s own account and contained logical flaws (e.g., concluding forced criminality while BMJ denied criminal involvement). Those flaws, combined with the Court’s direct credibility assessment, justified departing from the SCA conclusion.

(c) Abuse of Process & CPS Guidance

1. Was there reason to suspect trafficking? – For the 2015 and 2018 indictments the Court said “no”; the circumstances (possession of cash and heroin; knife possession) did not by themselves trigger the NRM.
2. CPS compliance – For the 2022 indictment the CPS arguably failed to complete the step-by-step analysis once an NRM referral was made. Yet because BMJ was not in truth trafficked, and because seriousness trumped any residual compulsion, the Court found no abuse.
3. Public-interest limb – Even on the hypothesis of trafficking, Class A supply offending attracted such gravity that prosecution was plainly justified.

(d) Sentencing

The Court audited each sentence against the applicable Guidelines:

• 2016 sentence: Newton hearing expressly examined pressure/coercion; judge reduced starting point from 4½ yrs to 3½ yrs and then applied plea discount – manifestly fair.
• 2018 knife sentence: category A2 offence; no credible mitigation of coercion; 10-month post-trial figure reduced to 9 months for plea – proper.
• 2022 sentence: mandatory minimum of 7 yrs under s.313 SA 2020 was itself disapplied; judge imposed only 5 yrs. Court found this already generous.

3.3 Impact of the Decision

BMJ v R consolidates – and in some respects extends – modern slavery case-law:

• SCA Decisions under Stricter Scrutiny – Appellate courts can, after hearing oral evidence, depart from positive conclusive-grounds findings where credibility concerns are stark. Defence practitioners can no longer assume that an SCA decision will suffice to tilt the balance on appeal.
• Serious Drug Supply Offences Remain Prosecution-Worthy – Even genuine victims will not be immune where offending is grave. This reinforces CPS “gravity trumps” reasoning and will likely influence future public-interest assessments.
• Guidance Non-Compliance Not Automatically Fatal – Procedural mis-steps by the CPS will not compel a stay if, on a full evidential review, prosecution remains rational and fair.
• Anonymity Orders – The Court repeated (per AAD) that real and ongoing risk of re-trafficking can justify anonymity, balancing it against open-justice principles.

4. Complex Concepts Simplified

• Single Competent Authority (SCA) – The UK body deciding whether someone is a victim of modern slavery under the National Referral Mechanism. A “positive conclusive grounds” decision is a formal recognition.
• Section 45 MSA 2015 Defence – A statutory defence for victims compelled to commit certain offences due to slavery/trafficking. It does not apply to the most serious offences or where culpability is high.
• National Referral Mechanism (NRM) – The framework whereby “first responders” such as police, immigration or NGOs refer potential victims to the SCA.
• Abuse of Process – A judicial power to halt proceedings that are unfair or oppressive. In trafficking cases, abuse is argued where prosecution violates the State’s Art 4 ECHR obligations.
• Newton Hearing – A mini-trial post-plea to resolve a factual dispute affecting sentence.
• McCook Statement – A practice where previous lawyers provide privileged communications (after waiver) explaining advice given to a defendant, often to rebut allegations of ineffective assistance.
• Section 313 Sentencing Act 2020 – Imposes a 7-year “third-strike” minimum for repeat Class A traffickers, unless unjust to do so.

5. Conclusion

BMJ v R illustrates the Court of Appeal’s readiness to interrogate the factual substrate of trafficking claims, to interrogate SCA reasoning, and – where necessary – to reject both. The decision underscores that:

• Evidential consistency and credibility are decisive; contradictory or late-shifting narratives will unravel a trafficking defence.
• SCA conclusive grounds decisions are powerful but not determinative; they must withstand forensic judicial scrutiny.
• The public-interest in prosecuting serious, repeat Class A suppliers will often prevail, even where some coercion exists.
• Sentencing judges can and do mitigate for pressure or intimidation under existing guidelines; appellate intervention is exceptional.

Consequently, while the modern-slavery framework remains a vital safeguard for genuine victims, BMJ v R confirms that the courts will robustly police its boundaries, ensuring it does not become a carte blanche for avoiding accountability in high-harm drug operations.