Modern Slavery Appeals After Guilty Pleas: The “Line in the Sand” Limiting Abuse of Process and the Materiality of Section 45 Advice

1. Introduction

Kwiatkowska, R. ([2026] EWCA Crim 45) concerned five sets of convictions for burglary (and associated fraud and battery) obtained largely by guilty pleas between 2011 and 2020. The applicant—an intellectually impaired Roma woman with extensive childhood abuse and later exploitation—advanced two principal grounds: (i) that the prosecutions were an abuse of process because she was a Victim of Trafficking/Victim of Modern Slavery (“VOT/VMS”) and relevant authorities failed to identify and protect her, and (ii) that her pleas were unsafe because she was not properly advised about the statutory defence under section 45 of the Modern Slavery Act 2015.

The Court received substantial fresh evidence (social services records, psychiatric/psychological material, two Positive Conclusive Grounds Decisions (“PCGD”) of the SCA, and a First-tier Tribunal immigration decision). The respondent conceded (or did not oppose) relief for the 2011 and 2015 convictions, but resisted the later convictions. The Court also made a reporting restriction protecting the identity of the person authorised under section 44A of the Criminal Appeal Act 1968 to continue the appeal after the applicant’s death.

2. Summary of the Judgment

  • Fresh evidence: admitted under section 23(1)(c) Criminal Appeal Act 1968 as “necessary or expedient in the interests of justice”.
  • 2011 conviction: appeal allowed; prosecution was (exceptionally) not required in the public interest and amounted to an abuse of process.
  • 2015 convictions: appeal allowed; pre-section 45, but respondent accepted that a properly-informed prosecutor would probably not have maintained the prosecution.
  • 2017, 2019 and 2020 convictions: appeals dismissed; no abuse of process, and the guilty pleas were not rendered unsafe by section 45 issues (2017: lack of explicit section 45 advice not shown to be causative; 2019 and 2020: advice given/attempted and pleas were rationally chosen).

3. Analysis

3.1 Precedents Cited

R v LM & Ors [2010] EWCA 2327

The Court treated LM as the foundational trafficking-abuse-of-process authority: if VOT/VMS material had been known, the prosecution “would” or “might well” not have been maintained. In Kwiatkowska, that framework underpinned the approach to the earlier convictions (especially 2015), where the respondent accepted that proper application of trafficking guidance would likely have altered the prosecutorial decision.

R v McCook [2014] EWCA Crim 734 ("McCook")

McCook supplies the procedural mechanism by which the Court obtains evidence from former legal representatives about advice and instructions (attendance notes, recollections, endorsements). Here, McCook material was central to the Court’s conclusions on whether section 45 advice was given and, critically, whether any deficiency affected the decision to plead guilty (particularly for 2017, 2019 and 2020).

R v Brecani [2021] EWCA Crim 731 and R v AAD [2022] EWCA Crim 106 ("AAD")

These cases governed how the criminal courts treat NRM/SCA decisions. The Court reiterated that SCA minutes/decisions would not be admissible at trial, but may be considered on appeal for context (as reflected at AAD [81]). The Court therefore took “due regard” of PCGDs while remaining alert to their limitations—especially where findings rest heavily on self-report.

R v AFU [2023] EWCA Crim 23 ("AFU")

AFU was treated as the modern consolidation of (i) the post-section 45 landscape, and (ii) the continuing role of abuse of process. The Court used AFU both to confirm that abuse of process survives section 45, and for the proposition that a conviction following a guilty plea is as unsafe as one following trial if there was an abuse of process (AFU [141]). The Court also drew on AFU for the correct allocation of responsibility: the decision to prosecute (or not) is for the prosecution, and appellate intervention is limited.

R v GS [2018] EWCA Crim 1824 ("GS")

The Court adopted GS [76(v)] as the controlling formulation for abuse-of-process appeals in trafficking/modern slavery contexts: the question becomes whether, in light of law and facts now known, the trial court should have stayed proceedings had an application been made—often expressed as whether the applicant “would or might well not have been prosecuted” in the public interest, or whether compulsion reduced culpability so far that prosecution was not in the public interest.

Joseph (Verna)

Cited (via GS) for the rationale of the stay power: ensuring the State complies with international obligations and properly considers non-punishment of victims. The Court used this to frame—yet ultimately reject in the later convictions—the proposition that alleged systemic failures must themselves tip the balance to a stay.

R v AJW [2023] EWCA Crim 803

Used to support the possibility that even where compulsion is not “dominant”, truly exceptional vulnerability/background may reduce culpability to the point where prosecution is not in the public interest. This aided the Court’s conclusion on the 2011 conviction (a youth case with limited seriousness and profound safeguarding indicators).

R v L(C) [2013] EWCA Crim 991

Cited (as referenced in AFU [111]) to caution against treating trafficking considerations as an automatic bar to prosecution. In Kwiatkowska, this underpinned the Court’s “line in the sand” approach: repeated serious offending may make it reasonable, in the public interest, to proceed and leave section 45 to be tested.

R v Tredget [2022] EWCA Crim 108

Provided the general modern statement of principles governing appeals following guilty pleas. The Court located the applicant’s arguments about intellectual limitations and vulnerability within Tredget’s well-established test: the focus remains on safety of the conviction, not on a generalised retrospective merits assessment.

R v PK [2017] EWCA Crim 486 and R v Dastjerdi [2011] EWCA Crim 365

The applicant relied (as in PK) on Dastjerdi’s “checklist” for cases where specific advice on a defence was not given. The Court accepted the relevance of the framework, but emphasised the key causation question: would proper advice have made a difference to the plea decision?

3.2 Legal Reasoning

(A) Fresh evidence and its use

The Court admitted substantial new material under section 23(1)(c) Criminal Appeal Act 1968. It treated this evidence as crucial to assessing (i) whether an abuse-of-process stay would have been appropriate, and (ii) whether a section 45 defence had sufficient evidential foundation and prospects. But it also distinguished between different evidential qualities: contemporaneous social services records and professional reports were weighed more heavily than untested self-report embedded in SCA material.

(B) Abuse of process: early convictions versus repeated later offending

The Court’s reasoning draws a structured distinction:

  • 2011 (youth) and 2015 (pre-section 45): exceptionally, prosecution was not required in the public interest. For 2015, the respondent’s conclusion that prosecution would “quite probably” not have been maintained carried “considerable weight” and was not “clearly flawed”, aligning with AFU on deference to prosecutorial judgment.
  • 2017–2020 (post-section 45, repeated serious offending): the Court rejected the proposition that the applicant’s background necessarily compelled a stay. Instead, it held that where there is repeated serious offending (here, distraction burglaries targeting vulnerable elderly victims), it may be reasonable for the public interest to favour prosecution so that a jury can determine whether section 45 is made out. The Court framed this as a “line in the sand” concept: modern slavery status is not a perpetual immunity from prosecution, particularly where continuation of offending and exploitation risks being incentivised by an expectation of non-prosecution.

Importantly, the Court refused to treat alleged systemic failures under ECAT/Article 4 ECHR as a decisive factor compelling a stay, especially where the applicant herself had not substantiated allegations or engaged consistently with protective mechanisms. The judgment thereby narrows the circumstances in which “state failure” arguments will, by themselves, convert a prosecution into an abuse of process.

(C) Section 45 advice and guilty pleas: materiality and causation

For the post-2015 convictions, section 45 was central, but the Court separated (i) whether the defence had merit, from (ii) whether lack of advice rendered the plea unsafe.

  • 2017: counsel did not advise on section 45 (and candidly accepted she should have). The Court accepted there was an evidential basis and that the defence would “probably have succeeded” on the fresh evidence. Nevertheless, it held the conviction safe because the applicant was advised on duress (a conceptually similar compulsion-based defence) and chose to plead guilty for reasons unrelated to fine legal distinctions—namely her stated desire for “safety” and “a break”. The Court concluded that expressly naming section 45 would not have changed that decision.
  • 2019: the applicant received careful advice, and signed an endorsement acknowledging “reasonable alternatives” (even if couched in legalese). The Court treated the endorsement, read with the McCook material, as demonstrating a competent and informed choice to plead guilty and deploy background in mitigation rather than litigate section 45.
  • 2020: the applicant was unwilling to engage with advice and remained focused on resolving the matter quickly to avoid sentence consequences. The Court characterised this as rational decision-making rather than incapacity.

(D) Capacity and vulnerability

While acknowledging the applicant’s learning disability and mental disorder history, the Court emphasised the presumption of capacity and the principle that unwise decisions do not equate to incapacity (section 1 Mental Capacity Act 2005). It noted no evidence of unfitness to plead in these historical proceedings. This operates as a limiting principle: vulnerability and intellectual impairment inform the “relevant characteristics” in section 45 and public-interest decisions, but do not automatically invalidate pleas absent a demonstrated impact on understanding and voluntariness.

3.3 Impact

(A) A practical boundary for abuse-of-process arguments in repeat-offending modern slavery cases

The judgment’s most significant forward-looking contribution is its explicit articulation of a “line in the sand” approach: even where compelling evidence exists of exploitation and compulsion, repeated serious offending can justify prosecution in the public interest, leaving the section 45 defence to be tested before a jury rather than resolved through a stay. This is particularly salient where non-prosecution risks creating perverse incentives for exploiters to continue using victims as instruments of crime.

(B) Section 45 advice: deficiency is not enough—materiality is decisive

For defence practitioners and post-conviction litigation, Kwiatkowska underscores that establishing (i) failure to advise on section 45 and (ii) good prospects of success does not, without more, secure a quashing following a guilty plea. The applicant must show that the absence of advice made a difference to the decision to plead.

(C) Evidential handling of NRM/SCA decisions

Reinforcing R v Brecani and R v AAD, the Court’s approach illustrates how SCA outcomes may influence appellate evaluation without becoming substitutes for admissible trial evidence. This remains important for both prosecution and defence when calibrating reliance on PCGDs.

(D) Prosecutorial concessions

The Court’s treatment of the respondent’s position on 2015 highlights that where the prosecution accepts it would probably not have prosecuted if properly informed, that assessment will carry “considerable weight” on appeal unless clearly flawed. This increases the practical significance of early, careful CPS review in VMS/VOT fact patterns.

4. Complex Concepts Simplified

  • Abuse of process (stay): a court power to halt proceedings where it would be unfair or improper for the state to prosecute—here, because trafficking/modern slavery status and the public interest may require non-prosecution.
  • “Dominant force of compulsion”: a way of expressing that coercion/exploitation so overwhelms choice that culpability is drastically reduced.
  • Section 45 Modern Slavery Act 2015: a statutory defence for victims compelled to commit offences because of slavery/exploitation, where (for adults) a reasonable person with the defendant’s relevant characteristics would have “no realistic alternative”.
  • NRM/SCA/PCGD: the National Referral Mechanism and the Single Competent Authority process for identifying victims; a “Positive Conclusive Grounds Decision” means the SCA found victim status on the balance of probabilities, but it is not, by itself, determinative evidence at a criminal trial.
  • Section 23 Criminal Appeal Act 1968 (fresh evidence): allows the Court of Appeal to receive evidence not used at trial if necessary/expedient in the interests of justice.
  • McCook inquiries: the Court’s practice of obtaining evidence from previous lawyers on what advice was given when plea safety is challenged.
  • Appeals after guilty plea: the Court focuses on whether the conviction is “unsafe”; a guilty plea is usually conclusive unless shown to be equivocal, uninformed in a material way, or otherwise unreliable.
  • Section 11 Contempt of Court Act 1981 reporting restriction: used here to prevent identification of the person continuing the appeal under section 44A after the applicant’s death.

5. Conclusion

Kwiatkowska is a fact-specific modern slavery decision with broader doctrinal importance in two respects. First, it confirms—consistently with AFU, AAD and GS—that abuse of process remains available post-section 45, but it also emphasises a pragmatic boundary: in cases of repeated serious offending, it may be entirely proper in the public interest to prosecute and leave section 45 to be adjudicated rather than staying proceedings. Second, the case illustrates the stringent approach to guilty-plea safety: even where section 45 would probably have succeeded, a conviction may remain safe if the defendant would have pleaded guilty anyway (for example, seeking “safety” or finality) and had sufficient understanding of the choice being made.

The result—allowing appeals for 2011 and 2015 but dismissing those for 2017, 2019 and 2020—reflects a calibrated response: robust protection where the public interest plainly did not require prosecution, but firm insistence that modern slavery status does not create blanket immunity, and that plea-based convictions will not be quashed absent demonstrated material impact on the decision to plead.