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	England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> BKM, R. v [2025] EWCA Crim 389 (11 April 2025) URL: https://www.bailii.org/ew/cases/EWCA/Crim/2025/389.html Cite as: [2025] EWCA Crim 389

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IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM SOUTHWARK CROWN COURT
HIS HONOUR JUDGE HEHIR
T20180154

		Royal Courts of Justice Strand, London, WC2A 2LL
		11/04/2025

This judgment was handed down remotely at 10.30am on 11 April 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives (see eg https://www.bailii.org/ew/cases/EWCA/Civ/2022/1169.html). .............................

WARNING: reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice.

LORD JUSTICE WILLIAM DAVIS :

1. On 6 September 2018 in the Crown Court at Southwark BKM pleaded guilty to having an article with a blade or point and to two offences of possession of a Class A drug with intent. His pleas were entered on the day his case was listed for trial. In respect of the offences of possession of a Class A drug, the sentence was two years' imprisonment on each count concurrently. A consecutive sentence of 2 months' imprisonment was imposed in relation to the bladed article offence.
2. BKM applied for an extension of time of 1,939 days for leave to appeal against conviction and sentence. His application was referred to the full Court by the Registrar. It involved an application to adduce fresh evidence. We heard the applications on 1 April 2025. At the conclusion of the hearing we announced that the application for the extension of time and for leave to appeal was refused. We reserved our reasons for refusing the application. These are our reasons.
3. The facts of the offending were straightforward. On 24 April 2018 a local resident in Pimlico near Victoria in central London saw from her window three black men in the street. So far as she could gather, they were supplying drugs to people who had the appearance of drug users. The local resident then saw a man of Arabic appearance approach the three men. He was holding something but she could not see what it was. He was walking in a way which indicated that he wanted to fight the three black men. The next thing that this resident and others in the neighbourhood saw was the man of Arabic appearance running in the opposite direction. He was chased by two other men. These men were police officers who had been on duty nearby. They saw the applicant chasing three men. He was brandishing a knife. The police officers set off after the applicant. He changed direction and tried to escape on foot. As he did so he discarded a small white tub as well as the knife he had been brandishing. The applicant was caught by the police officers and was arrested. The white tub was recovered. It contained 10 wraps of cocaine and 2 wraps of heroin.
4. When he was interviewed the applicant declined to answer questions. He provided a lengthy prepared statement. In summary, the statement said as follows. The applicant had been in Barking when he was approached by three black males. They grabbed him and forced him with threats of violence to get into a car. The males drove the applicant to Victoria. There the applicant was forced to take the white tub, one of the males putting it into his pocket. That person was threatening him with a knife. He told the applicant to deliver the tub to some people standing nearby. The applicant was able to grab hold of the knife and to disarm the male. All three males ran off when they saw that the applicant had the knife. He chased them for a short distance. This was in order to frighten them and to get them away from the applicant. He then noticed people chasing him. He did not know who they were. He ran and threw the tub and the knife away as he did so. The applicant thought that the people chasing him were part of the group from the car. He was afraid that he would be overpowered. That was the context in which he threw the knife away. He threw away the tub because he thought that the chasing group would stop to retrieve it. There came a point at which the people chasing him shouted "police stop". The applicant stopped running at this point. He was punched and kicked by the police.
5. In due course the applicant was sent for trial at the Crown Court. At the PTPH hearing on 25 May 2018 he pleaded not guilty. He said that he would advance duress and self-defence at his trial. In short form he repeated what he had said in his prepared statement. In his defence statement the applicant said that, prior to getting into the car with the three black males, he had been spoken to by an Afghan male for whom the black males worked. The Afghan male made threats against the applicant's family in Afghanistan. He said that he had not mentioned this male in his prepared statement due to his fear of reprisals.
6. When the case was listed for trial, the local resident was not available to give evidence. The prosecution indicated that they regarded her attendance as essential. Her evidence could not be agreed. Apparently unprompted, the judge offered his view of the case. He said that he considered that the defence as set out in the defence statement would be difficult to sustain before a jury. He stated that, for the purposes of sentence, he would place the applicant into a lesser role with his offending being between Categories 3 and 4 in the relevant sentencing guideline. He also said that he would be more generous in relation to reduction for plea than permitted under the guideline in respect of reduction for a plea of guilty. Those observations having been made, defence counsel spoke to the applicant in the cells at court. According to counsel it "took some time to persuade (the applicant) that the Judge was bending over backwards to be lenient". He told the applicant that he believed that the sentence for the drugs offences would be in the range 2 ½ to 3 years with a short consecutive sentence in respect of the knife. On condition that counsel mentioned his age, mental health problems and the violence used by the police on his arrest, the applicant agreed to plead guilty. It is apparent that all of these issues in due course were raised in the course of counsel's mitigation.
7. This account of events on the day of trial and prior to sentence comes from a note prepared by defence counsel on the same day. It was a note sent to his instructing solicitors to inform them of what happened at court. We have no reason to believe that this contemporaneous account is anything other than accurate.
8. In a statement in 2022 the applicant said that he had told his lawyers that he had been forced to deal the drugs but that it did not make any difference so in the end he pleaded guilty. He stated that a solicitor told him that he had a choice to make: if he pleaded guilty, they would give him a lesser sentence, whereas if he did not plead guilty, they would probably find him guilty and he would get a much longer sentence. The solicitor said that he could not win the case. The applicant said that he was really scared so he pleaded guilty. His perception of his discussion with counsel does not contradict counsel's note.
9. In sentencing the judge rehearsed the facts of the offences. He concluded that the applicant had played a lesser role in street dealing of Class A drugs. The Sentencing Council guideline provided a starting point of 3 years before mitigating factors. The judge found that the applicant was a young man seeking refugee status with some mental health difficulties. Before reduction for plea the sentence for the drugs offences would have been 2 ½ years. Despite the plea having been tendered on the day of trial, the judge reduced the sentence by 20%. The judge did not refer to any sentencing guideline in respect of the bladed article offence. He observed that the carrying of a knife in public was highly dangerous.
10. The applicant was released from custody on 27 December 2019. In August 2020 he was arrested in respect of allegations that he had been involved in the supply of drugs to undercover police officers. He was charged with offences of supplying drugs and sent for trial in the Crown Court. His account to the police was that he had been involved with the same people with whom he had dealt in 2018. In the context of his arrest in 2020 the applicant was referred to the Single Competent Authority ("SCA") via the National Referral Mechanism. In March 2021 the SCA determined that there were reasonable ground to suspect that the applicant was a victim of trafficking. In September 2022 the SCA made a negative conclusive grounds decision. That decision was reopened. On 22 November 2022 the SCA made a positive conclusive grounds decision. By this point the prosecution had offered no evidence in relation to the allegations dating from 2020. This had not been connected with any issue relating to the applicant's trafficked status.
11. The applicant put forward two grounds of appeal against his convictions. First, had the prosecution applied the CPS guidance "Suspects in a Criminal Case who might be Victims of Trafficking or Slavery" properly, the applicant would not or might well not have been prosecuted. Instead, the Prosecution proceeded as though the Applicant was not a victim of trafficking and/or debt bondage. They failed to apply the CPS guidance. The prosecution was an abuse of process. In those circumstances, his convictions were unsafe. Second, the applicant did not receive proper advice in relation to his possible defence under the Modern Slavery Act 2015. The prospects of success for such a defence were good. In the absence of proper advice, the pleas of guilty were a nullity.
12. In support of the grounds of appeal, the applicant sought leave to rely on fresh evidence: the SCA positive reasonable grounds decision in March 2021; the SCA positive conclusive grounds decision in November 2022 and the accompanying minute; the applicant's witness statement dated 14 February 2022 made in the course of immigration proceedings; the applicant's witness statement dated 9 January 2024 made in these proceedings. We considered that evidence de bene esse. The issue to be determined under section 23(2) of the Criminal Appeal Act 1968 was whether the evidence may afford any ground for allowing the appeal. In relation to the application to extend time, we considered the application for leave to appeal on its substantive merits. If the appeals had merit, we would extent time.
13. There have been differing views as to the applicant's age. On 9 December 2016 in the context of immigration control processes, the applicant was the subject of a Merton compliant age assessment. That gave his date of birth as 1 January 1996. On that basis he was 22 at the time of the offending in April 2018. The applicant's own assertion as to his age when being interviewed by the immigration authorities was that he had left Afghanistan when he was 14. That would have meant that he was 15 or 16 at the time of the relevant offending. On his behalf in these proceedings it is not asserted that he was a child at that time. Rather, he was an adult. Section 45(1) of the Modern Slavery Act 2015 was the relevant provision vis-à-vis any defence. Had the applicant raised the defence at his trial in 2018 the issue would have been whether he had been compelled to commit the offence and whether the compulsion was attributable to slavery or to relevant exploitation. We are not in a position to go behind the age assessment. The judge in the Crown Court at Southwark sentenced the applicant as an adult. We must deal with him on the same basis.
14. Although the grounds of appeal are distinct, there is substantial overlap in terms of the relevant issues. The CPS guidance in relation to those who might be victims of trafficking requires investigation of the status of the person concerned. This court will be concerned with three factors where it is said that the guidance has not been followed:

Were the trafficking circumstances of the person properly investigated?

Had they been properly investigated would the appellant have been shown to have been a victim?

Would or might well the CPS not have maintained the prosecution on evidential or public interest grounds?

15. In ARU [2023] EWCA Crim 23 at [99] this court set out the checklist appropriate in a case of alleged trafficking or criminal exploitation where a defendant had pleaded guilty and now sought to impugn his conviction because he had not received proper advice. The questions to be posed were as follows:

(1) should the applicant have been advised about the possibility of availing himself of the section 45 defence;

(2) was the applicant so advised;

(3) had the applicant been so advised, was it open to him to advance the defence;

(4) was there a good prospect that the applicant would have been able to advance such a defence.

16. The applicant sought to rely on evidence not adduced in 2018, namely the positive conclusive grounds decision of November 2022 and accompanying minute and the applicant's 2022 statement. On the basis of that evidence, he argued that proper investigation would have shown that he was a victim of trafficking in which event the CPS would not have maintained the prosecution on public interest grounds. Alternatively, the applicant submitted that, had he been properly advised, it would have been open to him to advance a defence under section 45(1) of the 2015 Act and that the prospects of the defence succeeding were good.
17. The respondent did not suggest that there was a sufficient investigation in 2018 of the applicant's trafficking circumstances. The issue of duress was considered but his trafficking circumstances were not considered in the context of section 45(1). The respondent further accepted that the applicant was not advised about the defence under section 45(1). The respondent's contention was that, on the facts as they are now known, the applicant would not have been shown to be a victim, at least not to the extent of the prosecution concluding that he ought not to be prosecuted. Further, the submission was that there was no prospect that the defence under section 45(1) would have succeeded.
18. The conclusive grounds decision of the SCA is not binding on the court. However, in the absence of evidence to contradict it or unless it is apparent that the SCA did not consider significant evidence, it is likely that this court will respect the decision: AAD [2022] EWCA Crim 106 at [83]. Where it is said that the decision of the SCA should not be followed, the court may require oral evidence to be given, including from the applicant, in order to substantiate, for instance, the history relied on: AAD at [82].
19. We begin with the applicant's 2022 witness statement. This was the evidential foundation of the SCA decision. The statement set out an account of how the applicant came to be in the UK. He said that his family lived in a village in Afghanistan. His father was often away from home. He was a member of a Taliban group. In the middle of 2015 after his father had paid a brief visit to the family home in the company of other Taliban members, Afghan police had arrived at the house. They demanded to know from the applicant where the weapons and bombs were. They alleged that he had been working with the Taliban and that he had helped his father to hide weapons and ammunition. The police left when an elder of the village intervened on the applicant's behalf. They returned later and continued to accuse the applicant of hiding weapons. After an hour the police left again. The elders then were informed that the applicant's father had been killed. His body was at the local police station. People from the village went to fetch the body.
20. After the funeral of the applicant's father, the police came again on several occasions over the following days. After that members of the Taliban came to the family home. They said that it was the applicant's duty to join them to take revenge for his father. The applicant's mother persuaded them to come back the following day when the applicant would go with them. In fact, this was a ruse on the part of the mother. She arranged there and then for the applicant to leave Afghanistan. Within a few hours a car arrived. The applicant was told to go in the car. He was told that he would be taken to London.
21. The applicant travelled first to Kabul and then to a town near the Pakistan border. From there he went into Pakistan and on into Iran. The journey took him with a variety of agents through Turkey, Bulgaria, Serbia and onwards through Europe. Sometimes he travelled in a car. At other times he was on a train or in a lorry. Eventually he reached Calais. The applicant believed that he stayed in Calais for around four to five months. Eventually he was put onto a lorry. The lorry dropped him off in London. Once he had arrived, the applicant said that he went to the Home Office. Home Office records show that he was first interviewed in May 2016. Initially he was treated as a child and was placed with a family in Croydon. After the age assessment was carried out, he moved into a hostel in Croydon. Later he was sent to a hostel in Barking. During his time in Croydon the applicant saw a man named Bakhtayar from time to time. He did not speak to him. He understood him to be involved in drugs and smuggling and he believed him to be dangerous. Once he was in Barking, the applicant met Bakhtayar. They became friendly. Bakhtayar came from Jalalabad which was close to the applicant's village. He asked about the applicant's family. He was kind to the applicant. Things then changed. He told the applicant that he sold drugs and that, if the applicant helped him, he would give the applicant lots of money. The applicant said that he was not interested. Bakhtayar was angry. Two days later he spoke again to the applicant. On this occasion he had four black men with him. He told the applicant that, if he did not do as he was told, the black men would kill him then and there. He also said he would go after the applicant's family.
22. From that point the applicant would go with the black men in a car to Victoria. They would take orders by phone. The applicant would deliver the drugs and would collect the money which he would give to the black men. The applicant was scared when he was doing this. The men knew where he lived and they knew where his family lived. After he had done this a few times, the applicant decided that he had had enough. When he got out of the car on the last occasion, the applicant said that he would not do it. One of the black men pointed a Rambo knife at him and said that he would stab the applicant if he did not sell the drugs. Another of the men pushed a container of drugs into his pocket. The applicant was able to grab the knife. He ran towards the black men. They ran away. Then another car arrived and men got out. The applicant ran off because he thought that they were men from the same gang. He assumed they wanted the drugs and the knife which is why he threw them away. When the men shouted "stop police", he did stop. He was kicked and punched by the police officers.
23. The minute accompanying the SCA positive conclusive grounds decision set out the account contained in the witness statement. It also set out an alternative account, namely what the applicant said in his defence statement. The defence statement did not suggest that there had been any occasion other than 24 April 2018 on which the applicant had been approached by an Afghan male. Nothing was said in the defence statement about the Afghan male directly requiring the applicant to sell drugs. Moreover, the only time when the applicant was involved in any way in a planned supply of drugs was on 24 April 2018.
24. The SCA concluded that the applicant had given a generally detailed plausible account in relation to his exploitation. Particular reference was made to the defence statement and the witness statement from 2022. The minute of the SCA decision made no reference to the obvious inconsistencies between the two accounts. It did not engage in any critical analysis of the applicant's account of the events of 24 April 2018. Having acknowledged what it described as discrepancies, the SCA said that little weight would be given to them. It did not explain the reasoning for this conclusion. It asserted without justification that the applicant's account involved "no significant credibility issues".
25. These features led us to conclude that we could not take the SCA decision at face value. Thus, we heard evidence from the applicant. We were concerned not only with the applicant's account of how he came to be involved in the supply of drugs but also with his explanation of the events leading up to his arrest.
26. In his evidence the applicant confirmed as true and adopted his 2022 witness statement. He gave oral evidence about his involvement in drug dealing in 2018. In relation to the events of 24 April 2018 he said that he had been collected from the Barking area by four black men, namely the men whom he associated with Bakhtayar. When they got to Victoria, he said that he no longer wanted to supply drugs. He was by the car when he said this. One of the black men got out of the car and asked him to continue with supplying drugs as he had been doing. Another black man threatened him with a knife. The applicant said that he was holding the container of drugs in his right hand. He tried to give the container to one of the black men who pushed the container in the applicant's pocket. He was told that, unless he supplied the drugs, he would be stabbed. With that, the applicant grabbed the knife. He suffered an injury to the top of his index finger in doing so though, as he was to explain in cross-examination, it was not a deep or serious injury. The applicant went on to describe the chase of the black men and the arrival of the other men who turned out to be police officers.
27. The applicant was cross-examined about the prepared statement he made on his arrest. This indicated that the first time he was involved in drug dealing was on the day of his arrest. Moreover, it made no mention of Bakhtayar whether by name or by reference to him as an Afghan male. The applicant was asked to explain the inconsistency. His account was that he had told his solicitor the full story when they were in the police station. He was not able to say why the statement written out by the solicitor did not provide an accurate picture. The applicant was also asked about his defence statement. Although this did mention an Afghan male, it otherwise was at odds with the account he now had given. Again the applicant said that he had told his lawyers everything. He could not explain the apparent discrepancies.
28. The circumstances in which the applicant came to be in the UK are not in issue for the purposes of this application. Mr Douglas-Jones KC argued on his behalf that, when he arrived in the UK, he properly was to be considered a victim of trafficking. He was thereby vulnerable. That was not a proposition which was contested by the respondent. The issue is whether he was a victim of trafficking in April 2018, namely being exploited for criminal purposes. To determine that issue involves consideration of the credibility of the applicant's evidence in relation to his recruitment to drug dealing and, in particular, the events of 24 April 2018. The fact that the applicant gave accounts of his drug dealing to the police and in his defence statement which were at odds with what he said in his 2022 statement as adopted and expanded before us is not fatal to his credibility. We acknowledge that in 2018 the applicant was a relatively young man albeit not a child. He was someone who had not been in the UK for a long time though, as at the date of his arrest, he had been living here for nearly two years. English is not his first language. All of those factors mean that due allowance must be made when assessing the significance of the inconsistencies. However, the applicant's case is not that he was confused due to his unfamiliarity with the process or the language barrier. Rather, he says that he has been consistent throughout. He cannot explain why statements produced on his behalf did not set out his full account. We consider that the inconsistencies are of significance. Because the SCA decision did not analyse the position properly, we do not agree with their conclusion that little weight should be given to them.
29. However, the critical factor in assessing the credibility of the applicant is our consideration of his account of the events of 24 April 2018. His evidence was that he had engaged in drug dealing up to that date because he was in fear. In the context of the defence in section 45(1) of the 2015 Act, he said that he was compelled to do what he did. Yet on 24 April 2018 he felt able to announce that he did not wish to continue supplying drugs even though he was on his own with four men by whom previously he had been threatened and assaulted. Having said what he did, he continued to say it even though he was threatened with a large knife. He was able to disarm the man who had the knife without suffering any significant injury. Having done so, he went after the men rather than run away. None of this was consistent with the applicant being someone who had been compelled to supply drugs. He explained that the exchanges between him and the black men took place beside the car in which they all had arrived. On his account, two of men were still in the car during those exchanges and when the applicant took hold of the knife. Not only did the two men outside the car not get back in to get away from the applicant but also those who were in the car got out even though the applicant now was armed with a knife. For no reason we can fathom, the black men escaped on foot rather than in their car.
30. In our judgment the account given by the applicant of events up to the point at which the police arrived is incredible. The evidence of the local resident was that a group of black men had been supplying drugs to users when the applicant came onto the scene with a knife. The applicant chased off the black men. That is consistent with the applicant being someone involved in drug dealing in the area who was concerned to chase off rival drug dealers. His possession of drugs (before he threw them away) supports that scenario. The fact that he had no money in his possession merely shows that the applicant had yet to supply drugs on the day in question. It is a reasonable inference that the people being supplied by the black men were his intended customers. The fact that the black men ran away indicates that they had no other means of escape and that they were frightened by the threats from the applicant. Were the applicant's account correct, that would not have been the position.
31. When the police arrived, the applicant tried to run off. His account is that he believed them to be associated with the black men. Since he had had no hesitation in pursuing a group of four men, it is not clear why he felt threatened by two men. It is far more likely that, contrary to his assertion, the applicant was well aware that they were police officers. As he was running from the police officers, he threw away the drugs and the knife. He said that he disposed of the knife because he thought that the men wanted the knife. We found that evidence impossible to accept as true. On his account he was running from the two men because he believed that they were associated with the black men i.e. the group that had threatened and assaulted him and forced him to sell drugs. He had been using the knife to threaten the black men. We could not understand why he did not do the same in relation to the two men. More to the point, we concluded that the proposition that he disposed of the knife because he thought that this would lead to the two men ceasing their pursuit of him was nonsense. The applicant was lying when he said that.
32. Whether the applicant was supplying drugs on behalf of others and, if so, on whose behalf is impossible to say with any certainty. We accept that it is very likely that he was involved with others. Since he has provided a completely false account of the events of 24 April, there is no evidence that his involvement was connected to any status he may have had as a trafficked person or that he was in any way compelled to commit the offences he did.
33. We are satisfied that, had the prosecution been aware of all of the matters of which we now are aware, the applicant would have been prosecuted. The CPS rightly would have concluded that the applicant's trafficked status had no relevance to the offences committed by him. We also are sure that, had the applicant been advised of the defence in section 45(1) of the 2015 Act and had he advanced the defence before a jury, it inevitably would have failed. The jury would have been persuaded by the evidential matters which we have set out above that the applicant's account was untrue. The jury would have found that the applicant was not in Victoria at the behest of the black men or any Afghan male whether identified by name or not.
34. In those circumstances, the basis of the application for leave to appeal against conviction has no merit. Given the absence of any substantive merit in the application, it is not appropriate to extend time. The proposed appeal against sentence principally is based on the fact that the applicant was a young trafficked individual. Even though his status has not led to a quashing of his convictions, it was and is a relevant consideration vis-à-vis sentence. There are two arguments which militate against that proposition. First, the sentence imposed without any reference to his status was very lenient. The sentence before reduction for plea was as low as it properly could have been. The reduction for plea was greater than it should have been. Second, the applicant's status was so far removed from his criminality that it did not serve to mitigate the sentence at all. It follows that there is no arguable ground for interfering with the sentence. We will not extend time in relation to the application for leave to appeal against sentence.
35. We dismiss the applications made by the applicant. We considered the fresh evidence de bene esse. It did not meet the test in section 23(2) of the Criminal Appeal Act 1968. Therefore, we do not receive that evidence.