Modern Slavery – A Legal Minefield

Image credit: West Midlands Police

The issue of modern slavery and legal defences that might be available to those suspected of crime has occupied a great deal of judicial time over the last five years.

The latest case to come before the court, AFU [2023] EWCA Crim 23, resulted in the conviction being quashed, despite guilty pleas having been entered to drugs offences.

It was argued that the applicant was not advised adequately, or at all, as to the availability of his defence under s. 45 of the Modern Slavery Act 2015. It was said that the extreme nature and full circumstances of the trafficking and compulsion operating on the applicant only emerged from a conclusive grounds decision made by the Competent Authority on 5 March 2018 (some 18 months or so after the plea was entered).

It was further argued that there were multiple failures on the part of the authorities in identifying the applicant as a victim of trafficking and reviewing his prosecution. The prosecution is said to have been an abuse of process such as to render the conviction unsafe.

The first ground of appeal was robustly rejected by the Court of Appeal. The court held:

“The applicant’s version of events is unsustainable in the face of Counsel’s lengthy manuscript notes, which the applicant accepted in the witness box were made contemporaneously. Counsel took instructions, showed the applicant the evidence against him and gave advice. Counsel’s notes make it clear, amongst other things, that he was fully alive to the possibility of a s. 45 defence. Counsel explained in the witness box that this was the first time that he, and indeed all the other counsel in the case, were having to grapple with s. 45. There is no good reason to doubt that Counsel, an experienced criminal practitioner, did not take the applicant through the essential elements of a s. 45 defence.”

The court did however accept the second ground of appeal (abuse of process). The court held:

“…the unjustifiable failure on the part of the prosecution to take into account the Guidance led to material factors being overlooked. Added to this is the Respondent’s acknowledgement that a s. 45 defence would “quite probably” have succeeded. We are confident that the prosecution would have been discontinued at the second evidential stage. Alternatively, the trial court would have stayed the proceedings as an abuse of process, had an application been made.

Armed with the fresh evidence it can be seen that the dominant force of compulsion was sufficient to reduce the applicant’s criminality or culpability to or below a point where it was not in the public interest for him to be prosecuted and the applicant would or might well not have been prosecuted in the public interest. Further the applicant’s involvement in the cannabis cultivation operation was limited in time and he was operating at the bottom of the chain. He was very young, damaged and vulnerable, with no previous record of offending. That there would have been no impropriety in leaving the facts to be evaluated by a jury, the submission relied upon by the Respondent, misses the point. The prosecution would not have been pursued with full knowledge of the relevant facts after proper enquiry.

Taking all of the above into account and standing back, we conclude that, on the present combination of very unfortunate facts, this is one of those exceptional cases where there was a clear abuse of process such that the conviction is unsafe.”

You can be confident that all of our solicitors and any counsel we use for trials are highly experienced in this area of law and track new developments very closely. Appeals are challenging to win; therefore, you must enlist specialist solicitors’ help at the earliest possible opportunity.

How can we help?

We ensure we keep up to date with any changes in legislation and case law so that we are always best placed to advise you properly. If you would like to discuss any aspect of your case, please contact any member of our vastly experienced Criminal Defence team, for assistance with any criminal law related matter.

Mr John Stokes (,
Miss Sarah Turland (,
Mr Anthony Pearce ( or
Mr Daniel Woodman (

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