BMJ v R.

Factual and Procedural Background

The Appellant, aged 36, made an application for an anonymity order under section 11 of the Contempt of Court Act 1981, based on a conclusive grounds decision by the Single Competent Authority ("SCA") that he was a victim of modern slavery and at risk of re-trafficking for criminal exploitation in the UK. The court considered the application, balancing the principle of open justice with the risk involved, and deemed the order necessary.

The Appellant has a significant criminal history involving multiple sets of offences:

• 1st set of offences (2015-2016): Possession with intent to supply Class A and Class B drugs, and possession of criminal property, resulting in a total sentence of 2½ years' imprisonment.
• 2nd set of offences (2017-2018): Possession of a bladed article and failure to surrender to custody, resulting in a total sentence of 9 months' imprisonment.
• 3rd set of offences (2021-2022): Drug offences related to operating a county line, driving while disqualified, and uninsured driving, resulting in a total sentence of 5 years' imprisonment.

Applications were made by the Appellant for extensions of time to appeal convictions and sentences for these offences, as well as to introduce fresh evidence related to the SCA's conclusive grounds decision that he was a victim of modern slavery from approximately 2007/2008 to April 2021 for criminal exploitation.

The Appellant's prior convictions include attempted robbery, theft, and drug supply offences. The factual background to the offences involves drug debts, threats, violence, and coercion. The Appellant provided witness statements and Defence Statements describing his involvement and the circumstances surrounding the offences, including allegations of threats and assaults by a group involved in drug dealing. The Appellant also raised concerns about the adequacy of legal advice he received during his criminal proceedings.

The prosecution resisted the applications, disputing the Appellant's victim status and asserting that the prosecutions were in the public interest. The court heard evidence and considered McCook statements from the solicitors and counsel involved in the Appellant's representation.

Legal Issues Presented

1. Whether the prosecution of the Appellant, who was identified post-conviction as a victim of modern slavery, constituted an abuse of process.
2. Whether the police and Crown Prosecution Service ("CPS") complied with their duties under Article 4 of the European Convention on Human Rights and relevant CPS guidance concerning suspects who may be victims of trafficking or slavery.
3. Whether the sentences imposed were manifestly excessive by failing to sufficiently reflect mitigation related to trafficking and debt bondage.
4. Whether an anonymity order was necessary to protect the Appellant from risk of re-trafficking and exploitation.

Arguments of the Parties

Appellant's Arguments

• The police should have identified the Appellant as a possible victim of trafficking at the time of the 1st set of offences and referred him under the National Referral Mechanism ("NRM") to the SCA.
• The CPS had a duty to comply with guidance to investigate and potentially adjourn proceedings until the Appellant's victim status was resolved.
• Had the CPS complied, the Appellant's victim status would have been confirmed, potentially negating public interest in prosecution, rendering the convictions unsafe.
• Similar arguments were made regarding the 3rd set of offences, with reference to the statutory defence under section 45 of the Modern Slavery Act 2015.
• The sentences imposed did not adequately reflect the mitigation arising from trafficking and debt bondage.

Respondent's Arguments

• The Appellant was not a genuine victim of trafficking or modern slavery; inconsistencies in his account undermine his credibility.
• There was no sufficient evidence at the time of the 1st or 3rd set of offences to trigger referral or further investigation under the NRM.
• Even if the Appellant was a victim, the seriousness of the offences justified prosecution in the public interest.
• The CPS acted in accordance with its guidance, and the decision to prosecute was not clearly flawed.
• The sentences appropriately reflected the facts, including any pressure or coercion the Appellant may have experienced.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
R v AAD [2022] EWCA Crim 106	Principles concerning anonymity orders and respect for conclusive grounds decisions of the SCA.	Guided the court's decision to grant an anonymity order balancing open justice with risk of re-trafficking.
AFU [2023] EWCA Crim 23	Standards for assessing prosecution's compliance with CPS guidance on victims of trafficking and abuse of process.	Informed the court's approach to reviewing the CPS's decision to prosecute and the level of scrutiny applied.
AH [2023] EWCA Crim 808	Review of prosecutorial decisions for rationality and procedural fairness, even retrospectively.	Supported the court's deference to CPS's considered decisions despite subsequent victim status findings.
R v S(G) [2018] EWCA Crim 1824	Framework for assessing public interest in prosecution where compulsion or trafficking is alleged.	Provided guidance on when a conviction should be quashed due to trafficking-related compulsion.
Brecani [2021] EWCA Crim 731	Admissibility and weight of SCA conclusive grounds decisions on appeal.	Clarified that SCA decisions are not binding but are usually respected unless good reason exists.
R v LM & Ors [2010] EWCA Crim 2327	Consideration of compulsion and trafficking in sentencing for drug offences.	Referenced in CPS guidance on public interest considerations in prosecution of trafficking victims.
R v A [2020] EWCA Crim 1408	Cases where prosecution would proceed despite victim status due to gravity of offending.	Supported the proposition that serious offences may justify prosecution even if victim status is established.

Court's Reasoning and Analysis

The court carefully examined the chronology of offences, the Appellant's changing accounts, and the evidence including Defence Statements, witness statements, and McCook statements from legal representatives. It considered the relevant CPS guidance and statutory provisions, including the Modern Slavery Act 2015 and sentencing guidelines for drug offences.

The court acknowledged that the Appellant was identified as a victim of modern slavery by the SCA, but found his account to be inconsistent and lacking credibility, particularly regarding the timing and nature of his involvement with key individuals and the drugs operations. The court noted that the Appellant's explanations evolved over time and were often contradicted by contemporaneous evidence and his own prior statements.

In assessing whether the prosecution was an abuse of process, the court applied recent authoritative case law emphasizing deference to prosecutorial decisions made in accordance with CPS guidance, unless clearly flawed. It found no compelling evidence that the police or CPS failed to act appropriately in the 1st set of offences, and although a referral was made in respect of the 3rd set, the prosecution was justified given the seriousness of the offences and lack of clear evidence of duress or statutory defence.

The court further analyzed sentencing, concluding that the mitigating factors related to pressure, coercion, or trafficking were properly considered by the sentencing judges, including reductions for guilty pleas and recognition of lesser roles where appropriate.

Overall, the court concluded that the Appellant was not a victim of trafficking or modern slavery during the relevant periods in a manner that would negate the public interest in prosecution or render the convictions unsafe.

Holding and Implications

The court REFUSED the application for an extension of time to appeal against conviction and sentence, and GRANTED the anonymity order under section 11 of the Contempt of Court Act 1981 to protect the Appellant from risk of re-trafficking.

The direct effect is that the Appellant's convictions and sentences stand, and no abuse of process was found. The court emphasized that the seriousness of the offences justified prosecution despite the Appellant's alleged victim status. No new precedent was established; the decision reaffirms existing principles regarding prosecutorial discretion, victim status, and sentencing mitigation in trafficking-related cases.