R v Bwm
| Jurisdiction | England & Wales |
| Neutral Citation | [2022] EWCA Crim 924 |
| Year | 2022 |
| Court | Court of Appeal (Criminal Division) |
2022 June 23;July 6
Crime - Appeal - Guilty plea - Defendant claiming to be victim of trafficking charged with cannabis production but receiving negative conclusive grounds decision by time of trial - Judge giving unsolicited observation as to sentence if defendant pleading guilty and stating custodial element substantially served - Counsel advising defendant defence based on assertion of trafficking unlikely to succeed - Defendant pleading guilty - Defendant subsequently found to be victim of trafficking - Whether conviction safe -
The defendant, who was Vietnamese, was charged with an offence of cannabis production. At interview, and in his defence case statement, he gave an account of having been trafficked which might have amounted to a defence under section 45 of the Modern Slavery Act 2015, although by the time of his trial a negative conclusive grounds decision on his claim to have been a victim of trafficking had been given by the competent authority. On the day of trial, before the jury was empanelled, the judge gave an unsolicited observation that the defendant’s sentence would be about 12 months or the equivalent to having served on remand all or the custodial element of the sentence he would receive if he pleaded guilty. Defence counsel advised the defendant of the defence under section 45 of the 2015 Act but that it was unlikely to succeed because of the conclusive grounds decision, his previous conviction for the supply of cannabis and inconsistencies in the accounts of his history. The defendant pleaded guilty and was sentenced to 13 months’ imprisonment. On completion of his sentence, he was held in immigration detention. Subsequently, the competent authority issued a positive conclusive grounds decision stating the defendant had been a victim of modern slavery in Vietnam, Russia, Poland, France and the United Kingdom. The defendant appealed against conviction on the ground that since he had not properly been advised about the defence under section 45 of the 2015 Act when it would probably have succeeded, his conviction was unsafe.
On the appeal—
Held, allowing the appeal, that the decisive factor in the defendant’s decision to plead guilty was the fact, confirmed by the judge’s unsolicited indication, that he had served all or almost all the sentence he would receive if he pleaded guilty; that such indications should not be given, since they risked putting inappropriate pressure on a defendant and narrowed the proper ambit of his freedom of choice; that, moreover, such indications were unnecessary since the Sentencing Council guidelines indicated the credit which should be given for a guilty plea and made it straightforward for a defendant’s lawyers to advise as to the likely sentence in a case like the present; that the judge’s indication in the present case was particularly ill-advised since it would have conveyed the impression that if the defendant pleaded guilty he would shortly have been released, whereas in fact the judge had no control and probably no knowledge over the defendant’s status as an illegal immigrant; that the defendant was advised, in the light of the judge’s comments, that his sentence had effectively been served, but there was no indication he had been advised as to what would happen to him next, namely that he would probably be held in immigration detention until he was deported; that the real choice the defendant faced was between pleading guilty and being held in immigration detention then deported, or pleading not guilty and applying for an adjournment before being held in custody until trial with the prospect of improving his immigration position in the event of an acquittal; that since none of this was explained to him, the defendant’s guilty plea could properly be regarded as vitiated by a combination of the pressure placed upon him by the judge’s comments and a lack of understanding of the consequences of the decision he was being asked to make; and that, accordingly, the defendant had a good defence under section 45 of the Modern Slavery Act 2015 which would quite probably have succeeded if the evidence which was now available had been available at the time and the conviction would be quashed (post, paras 46–48, 50).
APPLICATION for extension of time to apply for permission to appeal against conviction
On 23 July 2018 in the Crown Court at Bradford, before Judge Burn, the defendant, BWM, pleaded guilty to being concerned in the production of cannabis and was sentenced to 13 months’ imprisonment. His application for an extension of time of 1,217 days to apply for permission to appeal against conviction was referred to the full court by the single judge (May J).
The facts are stated in the judgment of the court, post, paras 6–8.
Ben Douglas-Jones QC (assigned by the Registrar of Criminal Appeals) for the defendant.
Nick Adlington (instructed by Crown Prosecution Service, Appeals Unit, Special Crime Division) for the Crown.
The court took time for consideration.
5 July 2022. MALES LJ handed down the following judgment of the court.
1 On 23 July 2018 in the Crown Court at Bradford before His Honour Judge Burn the applicant, a Vietnamese national then aged 24, pleaded guilty to being concerned in the production of cannabis. On the same day he was sentenced to 13 months’ imprisonment. His application for an extension of time (1,217 days) in which to seek leave to appeal against conviction and leave to call fresh evidence has been referred to the full court by the single judge.
2 There was initially a single ground of appeal, namely that the applicant’s conviction on his own plea is unsafe because he was not advised (or not properly advised) of the defence available to him under section 45 of the Modern Slavery Act 2015, when that defence would probably have succeeded. Following the decision of this court in R v AAD [2022] EWCA Crim 106; [
3 There is now a conclusive grounds decision dated 28 June 2021, in which the Home Office, as the competent authority under the 2005 Council of Europe Convention on Action against Trafficking in Human Beings, determined that the applicant is a victim of modern slavery. Previously, and in particular at the date of the applicant’s plea of guilty, there was a conclusive grounds decision that the applicant was not a victim of trafficking. In the light of the more recent decision it is appropriate (applying the principles summarised in R v L [2017] EWCA Crim 2129 at [7] to [13]) to grant the applicant anonymity, as ordered provisionally by the single judge. Accordingly we direct that he should be referred to as “BWM”. It is appropriate also to grant the extension of time as the application for leave to appeal was made promptly once the positive conclusive grounds decision was issued.
Section 454 Section 45 of the Modern Slavery Act provides a defence for victims of slavery or trafficking who commit certain offences under compulsion attributable to slavery or relevant exploitation. Subsection (1) provides:
“(1) A person is not guilty of an offence if— (a) the person is aged 18 or over when the person does the act which constitutes the offence, (b) the person does that act because the person is compelled to do it, (c) the compulsion is attributable to slavery or to relevant exploitation, and (d) a reasonable person in the same situation as the person and having the person’s relevant characteristics would have no realistic alternative to doing that act.”
5 AAD provides authoritative guidance on a number of topics relating to the defence under section 45, some of which we shall have to consider.
The basic facts6 On 30 January 2018 police officers went to a large three storey commercial property at an address in Bradford which was divided into retail and business premises. In the lower ground and basement area of the building they found a significant cannabis farm. Four rooms contained a total of 412 flowering plants, while three other rooms contained 557 less established plants. The final room contained nine propagators which held 720 cannabis plants.
7 The estimated yield of the 412 flowering plants was approximately 24.7 kilograms of “skunk” type cannabis. The remaining plants could be used to restock the rooms in which the flowering plants were being grown. According to a forensic drugs report, the four flowering grow rooms were each capable of producing at least four crops a year. As a result, the total annual yield was estimated at 1,648 plants yielding 98.9 kilograms.
8 As police officers entered the property, the applicant and three other men, his co-accused, who were also from Vietnam, escaped via a crawl space into an enclosed courtyard at the rear of the building. They forced their way into a neighbouring building, two of the men smashing a window with garden furniture. They then smashed another window to escape into the road. However, they were subsequently detained and arrested. They were remanded in custody.
The proceedings9 In interview, the applicant denied any involvement in the production of drugs and insisted that he was in the building to help with cooking, cleaning and tidying. He said that two other men were responsible for the watering and cutting of the plants and denied causing...
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Upper Tribunal (Immigration and asylum chamber), 2023-03-10, DA/00791/2018
...plead guilty having not been properly advised of the statutory defence under section 45 of the Modern Slavery Act 2015 (R v BWM [2022] EWCA Crim 924). Overall we consider that the judge was entitled to take into account the NRM decision as part of the overall threat As to (iv), it is self-e......