Summary of Judgment — Court of Appeal (Criminal Division)

Reporting judge: Judge Holroyde

Factual and Procedural Background

The Appellant was convicted at trial in the Crown Court of multiple class A drug offences arising from events in September 2021. On that date the Appellant was observed supplying wraps of class A drugs and was arrested at a flat that had been used for drug dealing. Police discovered controlled drugs, cash and a mobile phone used for dealing. The Appellant made no comment when interviewed under caution. The Appellant had earlier (in 2014) pleaded guilty to offences of possession with intent to supply cocaine and heroin, committed when she was 19.

The Appellant was charged with two counts of being concerned in the supply of controlled drugs (counts 1 and 2) and two counts of possession with intent to supply (counts 3 and 4). A co-accused (referred to in the trial material and below) pleaded guilty to certain supply offences and maintained a not-guilty plea on a charge under section 1(1)(b) of the Modern Slavery Act 2015 (an order in relation to that count was made to lie on the file).

Pre-trial, the Appellant's representatives indicated that she might be a victim of modern slavery/human trafficking (VMS/VOT) and that duress and other points might arise; a Better Case Management (BCM) form recorded that potential. At trial the Appellant advanced a defence of duress, accepted the underlying facts but asserted she had acted under compulsion. The jury were directed on duress and on the relevance of previous convictions. The jury convicted the Appellant on all counts and the Court sentenced her to concurrent terms of imprisonment. No appeal was lodged within time.

Subsequently the Appellant instructed new representatives and applied for: (a) an extension of time to seek leave to appeal against conviction (the application was more than two years after conviction), (b) leave to appeal on various grounds including that she had been a victim of modern slavery and that the statutory defence under s45 of the Modern Slavery Act 2015 should have been advanced, (c) permission to adduce fresh evidence (including a psychologist's report and a conclusive grounds decision by the Immigration Enforcement Competent Authority), and (d) anonymity (a withholding order and/or reporting restriction). The applications were referred to the full Court by the Registrar.

Legal Issues Presented

1. Whether an extension of time should be granted to permit an out-of-time application for leave to appeal against conviction.
2. Whether the convictions are unsafe because the police and the Crown Prosecution Service failed to identify, investigate or refer the Appellant as a potential victim of modern slavery/human trafficking, and failed to review the prosecution in accordance with CPS guidance (including consideration of the statutory defence under s45 MSA 2015).
3. Whether the prosecution should have been stayed as an abuse of process because it was unfair to prosecute a person who had been exploited (limb 2 stay) and because the Appellant was not advised about available avenues (including a s45 defence).
4. Whether a statutory defence under s45 MSA 2015, if advanced at trial, would "probably" have succeeded such that a clear injustice was done by its omission.
5. Whether the judge's directions at trial (in particular on counts 3 and 4 and on bad character/propensity) were deficient.
6. Whether the Appellant is entitled to anonymity (a withholding order and/or reporting restriction) on Article 8 grounds, balancing that right against the principle of open justice and Article 10 rights.

Arguments of the Parties

Appellant's Arguments (summarised)

• The police failed to comply with their Article 4 Convention duty to investigate potential trafficking and to refer the Appellant to the National Referral Mechanism (NRM).
• The CPS failed to follow its own Modern Slavery Guidance: it did not carry out the required four-step review process as to whether the person was a VMS, whether duress or s45 defences applied, and whether prosecution was in the public interest.
• The prosecution was an abuse of process (limb 2) because it was unfair to try someone whose offending was directly related to exploitation; the Appellant was not advised that she could seek a stay on that basis.
• The statutory defence under s45 MSA 2015 is distinct from duress; had it been advanced, it probably would have succeeded because s1(5) MSA 2015 permits consideration of consent differently and the jury might have found facts favourable to the Appellant that would have supported s45 even if duress failed.
• The judge's directions were inadequate in failing to address sexual abuse and the relationship between earlier convictions and a cycle of re-exploitation (propensity issue).
• On anonymity, publication of the Appellant's name would unjustifiably interfere with Article 8 and the Court should grant withholding/reporting restriction orders; the fresh evidence (psychologist's report and the IECA conclusive grounds decision) supports that need.

Respondent's Arguments (summarised)

• The Respondent (prosecution) accepted there had been failures by the police and CPS (they conceded those omissions) but contended those failures did not, of themselves, render the convictions unsafe because they could have been remedied and the Appellant had the opportunity to raise relevant points at trial.
• Even if a CPS review had occurred earlier, a reasonable prosecutor could have concluded the prosecution should continue; a belated review would have allowed the matter to be considered without requiring a stay.
• The Respondent did not oppose the appeal on the merits at the substantive hearing and informed the Court that, if the appeal were allowed, it would not seek a retrial.
• On anonymity, the Respondent opposed reporting restrictions and withholding orders on the basis that the Appellant had not demonstrated necessity by clear and cogent evidence: there was no evidence of a present risk to life or serious harm and the Appellant had not been anonymised in other proceedings or immigration tribunals.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court proceeded by addressing first whether an extension of time should be granted and then the merits of the proposed appeal and the anonymity applications.

Extension of time: The Appellant had not given any explanation for delay between conviction (August 2022) and the instruction of new solicitors in January 2024. The Court emphasised the strict requirement to explain the whole period of delay. Despite the absence of explanation for the delay to January 2024, the Court was persuaded that the merits of the proposed appeal were sufficiently strong to justify granting the necessary extension of time. The Court stressed, however, that it would not make up for unexplained gaps by speculation.

Police and CPS failings: The Court accepted that both the police and the CPS had failed to carry out steps required by Article 4 (investigation and NRM referral) and by CPS Modern Slavery guidance (the four-stage review). The Court analysed whether those failures alone rendered the convictions unsafe. It concluded they did not, because the failures deprived the Appellant only of an opportunity for the authorities to decide not to prosecute or to discontinue; they did not prevent the Appellant from advancing VMS-related defences at trial. Trial counsel had considered the relevant defences and chose to focus on duress. The Court found no suggestion that belated reviews would necessarily have produced evidence not available to the defence at trial.

Abuse of process (stay) analysis: The Court reiterated the traditional two-limb test for stays (limb 1: unfair to have a fair trial; limb 2: unfairness/oppression making it unjust to try at all). It reviewed authority explaining that the 2015 Act curtailed prior expansions of the abuse jurisdiction and that stays remain exceptional. The Court considered whether the CPS/police failings would have made a limb 2 stay probable. Although recognising the seriousness of failures, the Court concluded that in this case belated reviews could have remedied the situation and a stay would not necessarily have been required; accordingly, the Court could not find that the convictions were unsafe on grounds 1–3 alone.

Statutory defence under s45 MSA 2015: The Court turned to the central issue of whether the omission of advice about the statutory defence under s45 produced a clear injustice. The Court emphasised that the statutory defence and the common law defence of duress are not identical — notably because s1(5) MSA 2015 treats "consent" differently and s45 requires consideration of "relevant characteristics" and whether a reasonable person in the same situation would have had no realistic alternative. The Court accepted trial counsel's explanation that, having concluded the duress defence was unlikely to succeed, he had not advanced s45; but crucially the Court accepted that trial counsel did not advise the Appellant about s45. The Court was persuaded that the failure to advise deprived the Appellant of an opportunity to put forward a statutory defence that quite probably would have succeeded: (a) the Appellant had earlier raised VMS indicators and the BCM form recorded potential trafficking; (b) comparative evidence (the position of a co-accused/co-occupant who had been treated as a victim) would have been a strong jury point; and (c) the Respondent had not been able to identify evidence that would have rebutted the points now advanced. Consequently, the Court concluded there was a clear injustice from the omission and that the convictions were unsafe on this combined basis (grounds 1, 2 and 4 considered cumulatively with the omission to advise on s45).

Fresh evidence: The Court formally received the proposed fresh evidence (the forensic psychologist's report diagnosing PTSD, depressive disorder and anxiety disorder; and the IECA conclusive grounds decision that the Appellant was a victim of forced criminality on the balance of probabilities for 2020–21). The Court took that evidence into account as supportive of its conclusion that the statutory defence, if advanced, quite probably would have succeeded.

Judge's directions (ground 5): The Court found that ground 5 did not add materially to the appeal given that the principal injustice arose from the failure to advise on the statutory defence; had that defence been raised, directions would necessarily have been different, but no substantive criticism was made of the directions on the issues before the jury.

Anonymity applications: The Court undertook a structured, fact-specific analysis of the request for withholding and reporting restriction orders. It emphasised the heavy presumption in favour of open justice and that any derogation must be strictly necessary, supported by clear and cogent evidence, and proportionate. The Court considered (i) that the Appellant had not been anonymised at trial and therefore earlier lawful reporting meant it might be too late to grant effective reporting restrictions; (ii) that there was no evidence of a present risk to life or serious reprisals (Articles 2 or 3) arising from identification by this Court; (iii) that there were no parallel immigration or tribunal anonymity orders that would be frustrated by refusal; and (iv) that the psychologist's report and IECA decision did not on their face explain why anonymity in this appeal was strictly necessary or how it would mitigate a specific risk. The Court concluded the Appellant had not discharged the burden of showing strict necessity and clear cogent evidence; accordingly the anonymity applications were refused.

Holding and Implications

Holding: The Court made the following dispositive orders:

• The Court granted the extension of time for applying for leave to appeal.
• The Court granted leave to appeal.
• The Court formally received the fresh evidence.
• The Court allowed the appeal and quashed the Appellant's convictions.
• The Court refused the applications for a withholding order and for reporting restrictions; this judgment is therefore not subject to reporting restrictions.

Implications for the parties:

• The Appellant's convictions were quashed. The Respondent informed the Court it would not seek a retrial.
• The refusal of anonymity means the Appellant is named in the published judgment and there are no reporting restrictions imposed by this Court in respect of the appeal.
• The case illustrates that (a) failures by investigative or prosecuting authorities to follow trafficking-related duties do not automatically render convictions unsafe, but (b) where such failures combine with a failure by trial counsel to advise on a statutory defence which quite probably would have succeeded, a clear injustice may be established and an appeal will succeed.
• The judgment sets out procedural guidance for anonymity applications in trafficking/modern slavery appeals: applications must be fact-specific, made at lodging and supported by cogent evidence explaining necessity, explain prior reporting and any other anonymisation orders, and address the jurisdictional basis for any withholding order and any ancillary reporting restriction under s11 Contempt of Court Act 1981.

Implications for broader practice: The Court reiterated that the CPS Modern Slavery guidance requires careful consideration of whether a person is a possible victim and whether statutory defences exist; compliance with those processes is important though omission alone is not determinative. The decision reinforces the established test from R v BTE concerning deprivation of a defence that "quite probably would have succeeded" and provides practical direction on anonymity requests in this category of cases.

Note: All personal names appearing in the source opinion have been replaced with neutral role descriptors (e.g. "Appellant", "Co-Defendant", "Attorney Ahluwalia", "Attorney Ray", "Judge [Last Name]") for anonymisation and consistency with the summary requirements.