BTT v R

Factual and Procedural Background

The Applicant was convicted on 22 April 2016 at the Crown Court at Bolton of producing a Class B drug, cannabis, following a trial before HHJ Clayson and a jury. The conviction resulted in a sentence of three years' imprisonment. The Applicant entered the United Kingdom on 13 October 2014, was arrested and released on immigration bail but failed to report to the UK Border Agency as directed. On 6 November 2015, police found the Applicant at a premises in Bolton where a cannabis cultivation operation was discovered, with 223 plants recovered. The Applicant admitted maintaining the plants but denied knowledge that they were cannabis or illegal. The prosecution contended that the Applicant knew the plants were cannabis and was involved in their cultivation for profit.

The Applicant’s defence was that he was unaware the plants were cannabis and had been misled about the nature of the work. The issue of potential human trafficking was raised during trial preparations, but the Applicant denied being trafficked. The trial judge considered the trafficking issue, concluding the Applicant was not trafficked based on the evidence, including the circumstances of his arrival in the UK and his own statements. The Applicant gave evidence at trial supporting his lack of knowledge of the illegality of the plants and denied threats or coercion.

Post-conviction, the Applicant claimed asylum and alleged for the first time that he had been trafficked and forced to grow cannabis. The Home Office’s Competent Authority found the Applicant a victim of human trafficking for forced labour, but did not accept forced criminality within the UK. The Applicant’s asylum appeal was allowed by the Upper Tribunal, which accepted the Applicant was trafficked and coerced, relying on expert evidence and the Applicant’s witness statements, although the Applicant did not give live evidence or undergo cross-examination before the Tribunal.

The Applicant sought leave to appeal against conviction nearly four years after conviction, relying on fresh evidence including decisions of the Competent Authority and Upper Tribunal, expert reports, psychiatric evidence, and his own changed account given in evidence before this Court. The fresh evidence was admitted de bene esse for consideration.

Legal Issues Presented

1. Whether the Applicant’s fresh evidence, including a changed account of being trafficked and compelled to commit the offence, is credible and satisfies the criteria for admission under section 23(2) of the Criminal Appeal Act 1968.
2. Whether the Applicant’s changed account establishes a defence under section 45 of the Modern Slavery Act 2015, which would render the conviction unsafe.
3. Whether the Applicant’s appeal against conviction should be granted despite the significant delay and change in account post-trial.

Arguments of the Parties

Appellant's Arguments

• The Applicant contended that he was a victim of human trafficking and was compelled to commit the offence of cannabis cultivation.
• He relied on fresh evidence including decisions of the Competent Authority and Upper Tribunal, expert reports, psychiatric evidence, and his own witness statements to support his claim of coercion and trafficking.
• The Applicant argued that his changed account was credible and explained inconsistencies by reference to trauma and coercive control inhibiting his ability to give a truthful account at trial.
• He submitted that this case was exceptional and that the conviction was unsafe because the defence under section 45 of the Modern Slavery Act 2015 was likely to succeed if advanced at trial.

Respondent's Arguments

• The prosecution emphasized that the Applicant was convicted after a full trial where he gave evidence denying trafficking or coercion.
• The issue of trafficking was considered at trial, with the judge concluding the Applicant was not trafficked based on the evidence, including his own statements and conduct.
• The prosecution submitted that the fresh evidence did not meet the statutory criteria for admission as it was inconsistent, not credible, and did not demonstrate a real prospect of success on appeal.
• They argued that the Applicant’s own evidence admitted he had a realistic alternative to committing the offence, undermining any defence of compulsion under section 45.
• The prosecution noted the discrepancy between the Competent Authority’s and Upper Tribunal’s findings and the evidence heard by this Court, which included cross-examination of the Applicant.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court carefully considered the fresh evidence admitted de bene esse, including the Applicant’s changed account of being trafficked and compelled to commit the offence, expert reports, and decisions of the Competent Authority and Upper Tribunal. The Court reiterated the well-established legal principles that fresh evidence and new defences on appeal are only admissible in exceptional circumstances where the new account is credible and would probably have succeeded at trial.

The Court found the Applicant’s changed account was inconsistent and lacked credibility, particularly as the key element of compulsion—his wife and child’s kidnapping—was undermined by his admission that he only learned of the kidnapping after conviction, negating any causal compulsion at the time of offending. The explanation for the change of account was unconvincing.

The Court noted that the issue of trafficking and compulsion had been raised and considered at trial, with the Applicant himself denying coercion and trafficking. The Applicant’s evidence before this Court did not correspond with his prior witness statements and was inconsistent internally. His admission that he could have walked away from the offending was fatal to any defence of compulsion under section 45 of the Modern Slavery Act 2015.

The Court gave limited weight to the decisions of the Competent Authority and Upper Tribunal, particularly as the Applicant did not give evidence or undergo cross-examination before those bodies. The Court emphasized that expert evidence and decisions of administrative bodies do not determine credibility in criminal proceedings, which remains the function of the jury.

Accordingly, the Court concluded that the Applicant failed to satisfy the stringent test for admission of fresh evidence and the evidential burden for a compulsion defence. The conviction was found to be safe and the application for leave to appeal was refused.

Holding and Implications

The Court REFUSED the application for leave to appeal against conviction and dismissed the application for an extension of time.

The direct effect of this decision is that the Applicant’s conviction and sentence remain undisturbed. No new precedent was established, and the decision reinforces the established principles that fresh evidence and changed defences on appeal are only allowed in the most exceptional cases where the new account is credible and would likely have led to a different outcome at trial.