BNA v R.

Factual and Procedural Background

The Applicant, aged 44, pleaded guilty on 26 June 2018 to possession of an imitation firearm with intent to cause fear of violence under section 16A of the Firearms Act 1968 and was sentenced to 16 months' imprisonment on 3 August 2018. The offence arose from a police raid on a residential property in south-west London suspected of operating as a brothel, where imitation firearms and evidence linking the Applicant to the premises were found. The Applicant claimed to have been a victim of modern slavery and forced labour between November 2017 and January 2018, a status confirmed by a conclusive grounds decision of the Single Competent Authority ("SCA") in June 2021. The Applicant sought an extension of time (2142 days) to appeal his conviction and leave to introduce fresh evidence related to his trafficking status and circumstances surrounding his guilty plea. The prosecution opposed these applications, contending the prosecution was justified and the conviction safe.

Legal Issues Presented

1. Whether the prosecution of the Applicant for the section 16A offence was an abuse of process given his status as a victim of modern slavery and whether the Crown Prosecution Service ("CPS") properly applied its guidance in identifying victims of trafficking and slavery.
2. Whether the Applicant's guilty plea was vitiated by improper pressure, including language barriers, fear for his and his daughter's safety, and legal advice.
3. Whether the Applicant was improperly denied advice on the availability of the modern slavery defence under section 45 of the Modern Slavery Act 2015, particularly regarding offences involving imitation firearms.

Arguments of the Parties

Applicant's Arguments

• The prosecution constituted an abuse of process because the CPS failed to apply its guidance properly, ignoring the Applicant's trafficking status and the compulsion he faced, which should have negated or reduced his culpability.
• The guilty plea was unsafe due to the Applicant's limited English, fear for his and his daughter's life, and the advice of his lawyers, which allegedly pressured him to plead guilty.
• The Applicant was not advised of the modern slavery defence under section 45 of the 2015 Act, which he argued should apply despite the offence involving an imitation firearm, relying on analogy with recent case law.

Respondent's Arguments

• The modern slavery defence does not apply to offences listed in schedule 4 of the 2015 Act, including the section 16A offence involving imitation firearms.
• There was no improper pressure influencing the Applicant's guilty plea; the plea was made voluntarily and with understanding of the offence.
• The CPS decision to prosecute was justified; retrospective review of evidence suggested the Applicant was not a genuine victim of modern slavery at the time of prosecution.
• The CPS did not comply with all stages of its guidance, particularly identification of trafficking victims, but this failure was not decisive as the prosecution was still in the public interest.

Table of Precedents Cited

Court's Reasoning and Analysis

The court carefully examined the Applicant's evidence, including his evolving accounts, medical reports, and the SCA's conclusive grounds decision. It acknowledged the CPS guidance requiring a four-stage assessment when prosecuting suspected victims of trafficking or slavery. The court found that the CPS failed to comply with the guidance from May 2018 onward by not investigating the Applicant's trafficking status or referring him to the National Referral Mechanism. Despite this procedural failure, the court accepted the Respondent's retrospective assessment that the Applicant was not a genuine victim of modern slavery at the time and that prosecution was justified in the public interest.

The court analysed the statutory construction of schedule 4 of the Modern Slavery Act 2015, concluding that the modern slavery defence under section 45 does not apply to the section 16A offence involving imitation firearms. It distinguished this from other offences where defences may apply.

Evaluating the credibility of the Applicant, the court identified numerous inconsistencies and implausibilities in his accounts, including contradictions regarding his movements, relationships, and the circumstances of his arrest and plea. The court gave some weight to the psychiatric evidence of trauma but noted it did not confirm the truth of the Applicant's narrative. The court also considered the evidence seized by police, including CCTV and forensic findings, which conflicted with the Applicant's version of events.

Ultimately, the court rejected the Applicant's claim that he was a victim of modern slavery at the material time and found no abuse of process or unsafe conviction. It emphasized the deference owed to prosecutorial discretion, the seriousness of the offence, and the lack of evidence of improper pressure on the Applicant's plea.

Holding and Implications

The court REFUSED the Applicant's application for an extension of time to appeal and leave to introduce fresh evidence.

The decision confirms that failure to follow CPS guidance on victims of trafficking, while relevant, does not automatically render a prosecution abusive if the evidence supports prosecution in the public interest. It also clarifies that the modern slavery defence under section 45 of the 2015 Act does not extend to the offence of possession of an imitation firearm with intent to cause fear of violence under section 16A of the Firearms Act 1968. The ruling upholds the safety of the Applicant's conviction and does not set new precedent beyond affirming established principles regarding prosecutorial discretion and statutory interpretation.