BKM, R. v

Factual and Procedural Background

On 6 September 2018, at the Crown Court at Southwark, the Defendant pleaded guilty to possessing a bladed article and two offences of possession of Class A drugs with intent. Sentences of two years' imprisonment concurrently were imposed for the drug offences, with a consecutive two-month sentence for the bladed article. The Defendant applied for an extension of time of 1,939 days for leave to appeal against conviction and sentence, including an application to adduce fresh evidence. The full Court heard the applications on 1 April 2025 and refused both the extension of time and leave to appeal, reserving reasons which are set out in this opinion.

The offending occurred on 24 April 2018 in Pimlico, central London. A local resident observed three black men allegedly supplying drugs and a man of Arabic appearance approaching them aggressively while holding an unknown object. The man was then seen running away, chased by two men who were police officers. The Defendant discarded a knife and a container with cocaine and heroin wraps before being arrested. The Defendant declined to answer police questions but provided a prepared statement claiming he was forced to deliver drugs under threat and had disarmed one of the men. At trial preparation, the Defendant pleaded not guilty, intending to rely on duress and self-defence, and mentioned threats from an Afghan male linked to the black men. However, on the day of trial, with the key witness unavailable and after the judge expressed doubts about the defence, the Defendant pleaded guilty following discussions with defence counsel.

After sentencing, the Defendant was released in December 2019 but was arrested again in August 2020 for drug supply allegations, which were later dropped. During this period, the Defendant was referred to the Single Competent Authority (SCA) for trafficking status assessment. The SCA initially gave a positive reasonable grounds decision in March 2021, then a negative conclusive grounds decision in September 2022, which was reopened and replaced by a positive conclusive grounds decision in November 2022.

The Defendant sought to appeal his convictions on grounds that the prosecution failed to apply CPS guidance on victims of trafficking properly, constituting an abuse of process, and that he did not receive proper advice about a possible defence under the Modern Slavery Act 2015. The Court considered fresh evidence related to the trafficking decisions and the Defendant’s witness statements in assessing the merits of the appeal and extension of time application.

Legal Issues Presented

1. Whether the prosecution properly applied the CPS guidance regarding suspects who might be victims of trafficking or slavery, and if failure to do so rendered the convictions unsafe due to abuse of process.
2. Whether the Defendant received proper legal advice concerning a defence under section 45(1) of the Modern Slavery Act 2015, and if failure to advise rendered the guilty pleas a nullity.
3. Whether fresh evidence relating to the Defendant’s trafficking status justified an extension of time and leave to appeal against conviction and sentence.

Arguments of the Parties

Appellant's Arguments

• The prosecution failed to properly investigate and apply CPS guidance on victims of trafficking, leading to an abuse of process and unsafe convictions.
• The Defendant did not receive proper advice about a defence under the Modern Slavery Act 2015, which had good prospects of success, making the guilty pleas invalid.
• Fresh evidence, including positive trafficking decisions by the SCA and witness statements, supported the appeal and justified extension of time.

Respondent's Arguments

• The prosecution did not sufficiently investigate trafficking circumstances in 2018, but the Defendant would not have been shown to be a victim to the extent that the prosecution would have discontinued the case.
• The Defendant was not advised about the section 45 defence, but there was no prospect of success for such a defence based on the facts as now known.
• The Defendant’s accounts were inconsistent and not credible, undermining the basis for the trafficking defence and appeal.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court carefully analyzed the Defendant’s accounts and the fresh evidence concerning his trafficking status and involvement in drug dealing. It noted significant inconsistencies between the Defendant’s statements over time, particularly regarding the events of 24 April 2018, undermining his credibility. The Court found the Defendant’s narrative of being compelled to supply drugs inconsistent with his actions on that day, including his aggressive pursuit of the black men and disarming one of them without serious injury.

The Court considered the SCA’s positive conclusive grounds decision but found it lacked critical engagement with discrepancies in the Defendant’s accounts and gave insufficient justification for dismissing inconsistencies. Consequently, the Court did not accept the SCA decision at face value and heard oral evidence from the Defendant, which failed to resolve credibility issues satisfactorily.

Applying the ARU checklist, the Court acknowledged the Defendant was not advised about the section 45 defence but concluded that, on the known facts, the defence would have failed before a jury due to the Defendant’s lack of credibility and inconsistent evidence. The Court also determined that the prosecution would have proceeded even if fully aware of the trafficking-related matters, as they bore no relevance to the offences committed.

Regarding sentencing, the Court observed that the original sentence was lenient and that the Defendant’s trafficking status did not materially mitigate the sentence. Therefore, there was no basis to interfere with the sentence or extend time to appeal it.

Holding and Implications

The Court DISMISSED the Defendant’s applications for extension of time and leave to appeal against conviction and sentence. The fresh evidence was not admitted as it did not meet the statutory test. The convictions and sentence stand.

The decision confirms that failure to advise a defendant about a potential trafficking defence will not automatically invalidate guilty pleas if the defence lacks a realistic prospect of success. It also underscores the necessity for credible, consistent evidence to support claims of trafficking-related compulsion. No new precedent was established; the ruling primarily affects the parties by affirming the safety of the convictions and sentence in this case.