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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 >> BNA v R. [2025] EWCA Crim 496 (25 April 2025) URL: https://www.bailii.org/ew/cases/EWCA/Crim/2025/496.html Cite as: [2025] EWCA Crim 496

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IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM INNER LONDON CROWN COURT
HHJ NEWBERY
T20187023

		Royal Courts of Justice Strand, London, WC2A 2LL
		25 April 2025

This judgment was handed down remotely at 2.00 pm on Friday 25 April 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives. .............................

Lord Justice Jeremy Baker:

1. This is the judgment of the court to which we have all contributed.
2. The applicant, who is 44 years of age, has made an application for an anonymity order under section 11 of the Contempt of Court Act 1981 on the basis that, the Single Competent Authority ("SCA") having made a conclusive grounds decision that he was a victim of modern slavery, the risk to the applicant of being re-trafficked for criminal exploitation in the United Kingdom ("UK") is such that in accordance with the principles identified in R v AAD [2022] EWCA Crim 106 ("AAD"), it is necessary for such an order to be made. We have considered the application and bear in mind the normal rule of open justice. However, we consider that having regard to the risk involved in this case it is necessary to make such an order.

Introduction

3. On 26 June 2018 the applicant appeared in the Crown Court and pleaded guilty to an offence of possession of an imitation firearm with intent to cause fear of violence, contrary to section 16A of the Firearms Act 1968, ("the section 16A offence") in respect of which, on 3 August 2018, he was sentenced to 16 months' imprisonment.
4. The applicant's application for an extension of time (2142 days) in which to appeal against conviction has been referred to the Full Court by the Registrar, as has his application for leave to introduce fresh evidence, pursuant to section 23 of the Criminal Evidence Act 1968, concerning the circumstances leading up to and since the SCA's conclusive grounds decision, dated 17 June 2021, that the applicant was a victim of modern slavery in the United Kingdom during November 2017 to January 2018 for the specific purpose of forced labour.
5. We have considered the evidence for the purposes of this application de bene esse.

Chronology

6. On 13 January 2018, police officers searched a property in south-west London which they suspected was being operated as a brothel. The property was a residential apartment, situated behind a High Street restaurant.
7. Inside the property the police located a room which appeared to be used as a control room, in that it had a monitor upon which live CCTV footage from around the property could be viewed. Next to the monitor the police found an 8mm blank firing imitation firearm which resembled an Austrian Glock self-loading pistol. Another revolver style firearm was situated on a bed. The police also found a holdall containing a bank account statement in the applicant's name, together with a bank transfer slip for £300.00 made out to a female in Brazil for the purposes of "family support." There was also a notebook which contained the names of a number of females with what appeared to be a statement of their hours and/or earnings.
8. Three women were in the property who were not arrested. However, two males sought to escape by climbing over the roof, but were apprehended and arrested. These were the applicant and his co-accused, the latter of whom was subsequently acquitted after trial of the offence to which the applicant had pleaded guilty.
9. On his arrest the applicant stated to the arresting officer that the firearm belonged to the owner of the premises, who also owned the adjacent restaurant. During the course of his subsequent interview the applicant, who had been provided with a solicitor from the duty solicitor scheme, made no comment. He was charged and sent by the Magistrates' Court to the Crown Court, and remained in custody throughout the proceedings.
10. Subsequent forensic examination of the imitation firearm revealed DNA on the grip plates, the trigger and/or trigger guard and magazine, which matched that of the applicant, and which could be accounted for by his handling of the weapon.
11. Moreover, when the applicant's mobile phone was examined, three photographs were found on it which appeared to show the applicant, wearing a party hat, attending a Christmas party, with others, in the adjacent restaurant. This matched some CCTV footage seized from the restaurant, which showed that those in attendance at the party included a number of females, and the owner of the restaurant.
12. The applicant's first appearance at the Magistrates' Court took place on 15 January 2018, and the plea and trial preparation hearing took place in the Crown Court on 12 February 2018.
13. On 2 March 2018, the applicant made an application to transfer his representation order on the basis that he had,

"…told the Duty Solicitor that I was being threatened by two men but I was told to go no comment. I feel this should have been put forward on my behalf as this is important to my defence as I was not controlling this brothel neither did I purchase the firearms. Not putting this forward will affect my case negatively."

14. In a letter in support of the application to transfer, dated 18 March 2018, the applicant went on to state that,

"When she finally came to see me there was only 3 days left before the hearing. I have also seen the barrister just once, for 10 minutes before the hearing via video link and without a translator. I don't speak English and they are aware of that. But worst of all the problems is that they advised me to say 'no comment' …… even after I had told the solicitor…at the police [station] that the owners of the [property]….had taken my passport and were holding me in a semi-slavery regime, making threats they were going to kill me and my daughter as well.

I beg this court to grant me this. I have been receiving threatening messages from other inmates here in prison all the time; they say my daughter will be killed in Brazil if I tell the truth."

15. From a subsequent examination of the solicitors' file, it would appear that the applicant provided them with a letter addressed to the "Chief of Police" dated 18 March 2018, which does not appear to have been sent on to the police, in which the applicant stated that:

i. He had come to the UK and met up with his co-accused, who was a friend of his from Brazil, who told him of a job vacancy as a chef at the restaurant where he was working. The applicant had applied for the job in November 2017, and was told by [X] and his partner that the only job vacancy they had available was as a cleaner which the applicant took in the adjoining property which operated as a brothel. This type of operation is legal in Brazil and he was assured it was legal in the UK as well. The applicant had provided [X] with his identity documents and information about his ex-partner in Brazil who was pregnant at the time with their daughter. About a week later, the applicant had seen one of the girls who worked at the property was injured and he asked her what had happened. As a result of this he was threatened with a gun by one of the security guards who worked there. Subsequently [X] had told him not to say anything, otherwise his ex-partner in Brazil would be shot and killed, and he was shown a photograph of her outside her home.

ii. In December 2017, following a burglary at the property, his co-accused told him that [X] had brought two replica guns to the premises for the security guards to use, and he was instructed simply to pick them up and put them down again if he was cleaning in the room where they were kept. When his co-accused had objected to the weapons being at the property, [X's] partner had threatened him with a real gun and told him that they would kill his child. The applicant saw a number of the girls working at the property subjected to abuse, and he was told to make notes as to how long customers spent with the girls. He believed that the business run by [X] and his partner, was part of the PCC in Brazil, a Brazilian organised crime syndicate.

iii. In early January 2018, the applicant had opened the door of the property, because the security guards were not present, and he had been beaten up and injured. As a result, [X] and his partner had taken him to hospital for treatment, where he was told to give a false name and explanation for his injuries.

iv. On the 13 January 2018, the security guards had left shortly before the police arrived at the property, and he and his co-accused had tried to escape out of the window as they had been instructed to do by [X] and his partner.

v. In February 2018, whilst he was being held in prison, he had been visited by a friend of his who told him that she had been asked by [X] and his partner to inform him that they had been watching his newly born daughter in Brazil.

16. At a hearing in the Crown Court on 28 March 2018 the applicant's representation order was transferred to new solicitors, who uploaded the applicant's Defence Statement on 9 May 2018. In his Defence Statement, the applicant denied the offence and stated that:

i. He had suffered physical and psychological abuse while working in the property. He stated that his passport and identity documents were taken from him. He had received death threats, and the lives of his ex-partner and their daughter in Brazil were also threatened. The applicant stated that the only time that he had handled the imitation firearm was in order to move it aside whilst cleaning the property.

ii. The Defence Statement also asserted that the applicant had acted under duress and that he would, "say that he is not guilty of any offence by reason of section 45 of the Modern Slavery Act 2015."

17. On 31 May 2018 the applicant had a conference with his counsel, and as a result of McCook enquiries, we have a copy of counsel's written attendance note of that conference. The applicant stated that he had been told that the purpose of the imitation firearm being at the property was to intimidate anyone who might carry out a robbery at the property and that he had sent an image of the weapon to his ex-partner in Brazil to see whether it was legal as she was a lawyer.
18. The applicant stated that he wished to cooperate with the police, and counsel advised him that this could result in some reduction in his sentence, if he pleaded guilty, depending on the value of the information he provided. He was advised that there were risks in following this course of action both to himself and his family and that it could lead to additional charges.
19. Counsel stated that he could only advise the applicant as to the various options open to him, as he "couldn't advise him to plead guilty" because on the basis of his instructions, he had not committed a criminal offence. However, if he pleaded guilty and cooperated with the police, he may receive a sentence of 12 months or less, depending on the value of the information he provided to the police, but that if he was convicted after a trial he may receive a sentence of between 12 – 24 months, possibly more. In any event he would serve half of the period of custody and might thereafter be deported. In the event that he decided to cooperate with the police, he should do so sooner rather than later as it would affect the extent of the reduction in his sentence.
20. On 31 May 2018, the applicant sent a letter to his solicitors in which he stated that he wanted to cooperate with the police as soon as possible, as, "I am not guilty but I do not see any other way to protect my life and my daughter's life." On the following day, the applicant sent a further letter to his solicitors asking them to confirm or otherwise the advice he had received from counsel as to the likely sentence he would receive if he pleaded guilty.
21. On 18 June 2018, the applicant wrote to his solicitors informing them that he had been assaulted by his co-accused, who had apparently been smoking cannabis and spice. He said that his co-accused, who had acted as a security guard at the property, wanted the applicant to plead guilty.
22. On 25 June 2018, a further hearing took place at the Crown Court, and new counsel was instructed to attend due to the unavailability of the applicant's former counsel. On that occasion, no interpreter was present and much of the discussion with the applicant had to be adjourned to the following day. In the meantime, counsel had researched whether there were any lesser alternatives to the offence on the indictment. Moreover, following discussions with the prosecution it was ascertained that the prosecution's case was that the applicant's possession of the weapon was in order to quell any further incidents of violence at the property. On this basis counsel was of the view that this would place the offence towards the lower end of the scale of seriousness which would be likely to result in a sentence of less than 2 years' imprisonment.
23. According to his McCook statement, on 26 June 2018 counsel was able to,

"advise him fully in relation to the count on the indictment; the elements of the offence (including mens rea) and the basis of the prosecution case. Having given this advice he instructed me that he wanted to change his plea to one of guilty and signed an endorsement to that effect."

24. The endorsement which the applicant signed was in the following terms,

"I…..instruct that I want to plead guilty to possession of an imitation firearm with intent to cause fear of violence, I make this plea of my own free will having had the elements of the offence explained to me."

25. On 26 June 2018, the applicant pleaded guilty to the section 16A offence and sentence was adjourned to the conclusion of the trial of his co-accused.
26. On 3 August 2018, following the trial of his co-accused who was acquitted, the applicant was sentenced to 16 months' imprisonment. In the course of mitigation the applicant's counsel had stated that the applicant had pleaded guilty on the basis put forward by the prosecution.
27. On 7 August 2018, the Secretary of State for the Home Department gave notice of his decision to deport the applicant.
28. On 18 September 2018, the applicant claimed asylum, and on 1 November 2018 he was referred through the National Referral Mechanism ("NRM") to the SCA.
29. On 17 November 2018, the SCA made a positive reasonable grounds decision, which was followed by a conclusive grounds decision on 17 June 2021.
30. The latter decision found that on the balance of probabilities the applicant was a victim of modern slavery for the specific purpose of forced labour during November 2017 to January 2018. The SCA accepted that the applicant had entered the UK in 2017 and was given a cleaning job at the property by two individuals. It was accepted that the applicant had had his passport removed from him and that thereafter he had worked for those individuals at the premises without breaks for a period of about 2 months and been paid in cash. It was accepted that the applicant believed that at least one of those two individuals was part of a mafia type organisation in Brazil and that both he and his ex-partner in Brazil would be killed. Moreover, that following his arrest he was assaulted by his co-accused whom he believed was also associated with the mafia in Brazil.
31. The SCA considered that the applicant's account had been generally consistent. Moreover, the United States Department of State recognised that forced labour was the most common form of exploitation of victims of trafficking in the UK and that the psychiatric reports from Dr Miguel Montenegro, dated 10 August 2020 and 12 March 2021, stated that the applicant had severe PTSD, anxiety and depression, which were consistent with the trauma caused by the exploitation which he had described.
32. In more recent correspondence with his current solicitors in 2023, the applicant asserted that whilst working at the property in 2018, he had been sexually abused, and this has formed part of the basis of two further witness statement from the applicant dated 14 March 2024 and 28 May 2024.
33. In the first of these statements, dated 14 March 2024, the applicant stated that after a couple of weeks whilst he was working at the property as a cleaner,

"I started working in the brothel. I was forced to have sex with people. I struggle to talk about this time."

He went on to state, in relation to his change of plea, that,

"The barrister came to visit me. He said if this goes to trial I will have to talk about [the two individuals]. He said they have no power to protect my family. He said it would be better if I withdrew my statement and plead guilty because I have time served. If I did that then maybe the police would stop their investigation and the [mafia] would leave my family alone. I told him that this would never happen now. But I was desperate so I followed his advice and changed my plea. This was a mistake."

34. In the second of these statements, dated 28 May 2024, the applicant stated that he was "violated with a gun to [my] head" and was, "made to use the firearm during the course of [my] sexual exploitation."
35. He stated that,

"Men that came to the brothel would have different sexual fantasies and would have the firearms used on them. The imitation firearms regularly needed cleaning as they would have urine and stool on them. Some of the things that happened are difficult to talk about them. The men that came to the brothel would have fetishes, some would bring used condoms and drink from them.

This is the most difficult part for me to talk about, and which I am only able to speak of after therapy and being able to accept what happened. After a while of cleaning they started taking photos of me and putting them on websites and forcing me to have sex with people.

….The sexual and physical violence started the same month. The sexual exploitation was occurring practically every day. This was as well as physical and verbal violence.

The reason for the late change in plea was because there were a lot of changes in solicitors, though they are all in the same firm. When I spoke to the barrister he said that I should change the plea, as there was no evidence of modern slavery…..

There is no mention of sexual exploitation in the defence statement even though I told the lawyers. They told me the defence was only a summary and that we could explore this aspect of sexual exploitation during the trial. They advised me to plead guilty. At the time, there was nothing I could do to change what they were advising me. I was in their hands and did what they said."

Submissions

36. There were originally three grounds of appeal pursued on behalf of the applicant.
37. Firstly, that the prosecution of the applicant for the section 16A offence was an abuse of the process of the court. It is submitted that this was a case where had the prosecution applied the Crown Prosecution Service ("CPS") guidance properly, the applicant would or might well not have been prosecuted on the ground that the dominant force of compulsion from his circumstances of trafficking and forced and compulsory labour extinguished or significantly reduced his criminality or culpability so that he should not have been prosecuted in the public interest. Instead, the prosecution proceeded as though the applicant was not a victim of modern slavery, overlooking its identification duties at Stage 1 of the guidance and proceeded to fail to apply Stages 2 – 4 of the guidance. The prosecution was an abuse of process under the principles set out by Hughes LJ (as he then was) in R v LM [2011] 1 Cr App R 12 on the ground that if the guidance had been properly applied this is a prosecution which would or might well not have been maintained on the ground the prosecution was not in the public interest.
38. Secondly, that the circumstances giving rise to the applicant's decision to plead guilty to the section 16A offence, including his lack of English, his fear for his own life and that of his daughter, the advice received from his lawyers and the assault on him by his co-accused, was such that it vitiated his plea of guilty and the conviction is unsafe, Dastjerti [2011] EWCA Crim 365.
39. Thirdly, that the applicant was not advised as to the availability of the modern slavery defence, under section 45 of the Modern Slavery Act 2015, ("the 2015 Act") in circumstances where he had been compelled to handle the firearm whilst cleaning the property. The applicant argued that paragraph 3 of schedule 4, did not preclude the application of the defence to imitation firearm offences, relying by analogy on R v Johnson [2023] EWCA Crim 1609 ("Johnson") at [45].
40. In its response, the respondent pointed out that although the modern slavery defence applies to criminal offences in general, section 45(7) of the 2015 Act makes it clear that it does not apply to an offence listed in schedule 4, and that the section 16A offence is listed in schedule 4 of the 2015 Act.
41. Moreover, that there is no evidence of any improper pressure having been exerted on the applicant to plead guilty either by the judge or his lawyers. Instead, the applicant decided to plead guilty of his own free will albeit in the type of circumstances which confront many accused facing criminal charges.
42. In so far as ground 1 is concerned, it is pointed out that the extension of time in this case is long, and that in the meantime, the respondent's files have been destroyed in accordance with its data retention policy. However, it is submitted that this is a case where the decision to prosecute the applicant was justified. It is pointed out that the decision by the SCA was not based upon the account upon which the applicant now relies. Moreover, it is submitted that the SCA decision, based upon the consistency of the applicant's account with the United States Department of State report and the psychiatrist's diagnosis, was otherwise founded upon the untested account of the applicant. It is pointed out that the section 16A offence is a serious offence, and that it was in any event in the public interest to prosecute the applicant.
43. In the light of the respondent's submissions, Mr Douglas-Jones KC, who appears on behalf of the applicant, provided a written note to the court, dated 30 October 2024, to the effect that he would not be pursuing grounds 2 and 3, as he conceded the court was likely to find that the section 16A offence, involving an imitation firearm, is nevertheless an offence listed in schedule 4 of the 2015 Act, and there was insufficient evidence of improper pressure to vitiate the applicant's plea of guilty. Instead, he indicated that the focus of the application would be upon ground 1, and in particular the submission that the respondent did not apply stages 1, 2 and 4 of the CPS guidance. In this regard it was submitted that the circumstances giving rise to the section 16A offence were such that the applicant's criminality was relatively low as compared to the very significant compulsion which was exerted upon him by those operating the property.
44. This matter was first listed before the court on 7 November 2024 when, due at least in part to the applicant's health difficulties, the application was not able to proceed and directions were given for the adjourned hearing.
45. We have now been provided with an amended respondent's notice dated 28 November 2024, in which Mr Marsland has helpfully set out the response to ground 1, to which Mr Douglas-Jones KC has responded by way of a written skeleton argument dated 21 January 2025.
46. In summary, it is submitted on behalf of the applicant that the respondent failed to follow the CPS guidance, in that it failed to advise the police to investigate the evidence that the applicant was a victim of modern slavery, and that had the respondent known about the applicant's current status as a victim of modern slavery, it would or might well not have prosecuted him.
47. In response, although it is conceded that the respondent may not have advised the police to investigate the position of the applicant, had it done so, then based upon the evidence currently available it is submitted that it would have concluded that the applicant was not a genuine victim of modern slavery and he would have been prosecuted.

Discussion

48. The proper approach to the court's consideration of a submission that the prosecution of an individual who is alleged to have been a victim of trafficking is an abuse of process has been usefully summarised in the recent case of AFU [2023] EWCA Crim 23, ("AFU"), in particular at [112 – 113], which emphasised the relevance of the degree to which the prosecution complied with its own guidance, in the following terms,

"112. The degree to which the prosecution complied with CPS guidance in identifying the applicant as a VOT will be relevant, in that it affects the standard of scrutiny which the court can apply. Unless it is argued that the guidance is in some way inadequate, it should normally be assumed that the contemporaneous guidance will have taken account of all the guidance offered by the relevant authorities with responsibilities in the context of Convention obligations. Therefore, when assessing compliance with article 26, the guidance can provide the starting point and, in the overwhelming majority of cases, the finishing point for that assessment (see R v N/L at [86(b)]).

113. The authorities emphasise that the decision to prosecute is ultimately for the prosecution, and not the court. Where the prosecution has applied its mind to the relevant questions in accordance with the applicable CPS guidance, it will not generally be an abuse of process to prosecute unless the decision to do so is "clearly flawed" (see AGM at [12] and R v BYA [2022] EWCA Crim 1326 at [20]). The court does not intervene merely because it disagrees with the ultimate decision to prosecute: see AAD at [119]. However, if CPS guidance has been disregarded, such that the question of whether to prosecute has not been properly considered (or considered at all), the court can intervene more readily: see AGM at [13] and [56]. It will then be open to the court to consider the public interest question without trespassing on ground which has been appropriately considered by the prosecution authorities."

49. In the present case, because of the passage of time, it is not known to what extent the respondent did comply with its own guidance, albeit it seems apparent that it did not comply with stage 1 and its duty to identify victims of trafficking. However, as was made clear in AH [2023] EWCA Crim 808, ("AH") although such a failure will be of relevance, this will not be decisive and it is still necessary to review the decision by reference to rationality as well as procedural fairness. Moreover, in doing so, appropriately considered submissions on behalf of the respondent, based upon a retrospective review of the evidence, will need to be considered with care, including those relating to the public interest. As Carr LJ (as she then was) explained,


"36. In this case the exercise involves reviewing the respondent's decision to oppose these applications on the basis of its retrospective review of the evidence and assessment of the public interest in prosecution of the applicant whom they now know and accept to be a VOT.


37. The context for that review is the important general principle that decisions to prosecute are ordinarily for the prosecutor (see for example R (Barons Pub Company Limited) [2013] EWHC 898 (Admin) at [51(i)]). As was stated in AFU at [113] and [117], the decision to prosecute is ultimately for the prosecution, and not the court. Where the prosecution has applied its mind to the relevant questions in accordance with the applicable CPS guidance, it will not generally be an abuse of process to prosecute unless the decision to do so is clearly flawed. The court does not intervene merely because it disagrees with the ultimate decision to prosecute. It will review the decision by reference to rationality and procedural fairness.


38. Although on the present facts we are considering retrospective, hypothetical statements by the respondent as to whether the prosecutions would have been pursued, those statements are still to be accorded appropriate deference. We are satisfied that they have been made only after full, fair and careful consideration by the respondent.


39. There are undoubtedly cases where, even where an applicant has been identified post-conviction as a VOT and vulnerable, the decision to prosecute would have been the same – see for example R v A [2020] EWCA Crim 1408 at [68].


40. The gravity of the offending is clearly a material factor. So much is clear from the Code for Crown Prosecutors in place at the material time for the purpose of addressing the public interest stage of the prosecutorial decision-making process. It required prosecutors to consider each of the following questions (in what was a non-exhaustive list):


i) How serious is the offence committed?


ii) What is the level of culpability of the suspect?


iii) What are the circumstances of and the harm caused to the victim?


iv) Was the suspect under the age of 18 at the time of the offence?


v) What is the impact on the community?


vi) Is prosecution a proportionate response?


vii) Do sources of information require protecting?"

50. Furthermore, when considering the public interest for these purposes, Gross LJ in R v S(G) [2018] EWCA Crim 1824; [2018] 4 WLR 167, formulated the test for the court as follows, at [76],

"….This question can be formulated indistinguishably in one of two ways which emerge from the authorities: was this a case where either: (1) the dominant force of compulsion, in the context of a very serious offence, was sufficient to reduce the applicant's criminality or culpability to or below a point where it was not in the public interest for her to be prosecuted? Or (2) the applicant would or might well not have been prosecuted in the public interest? If yes, then the proper course would be to quash the conviction…."

51. In so far as the evidential status of the positive conclusive grounds decisions are concerned, although they are not admissible at trial, they may be received on appeal when it is considered that the individual's trafficking status has been overlooked or inadequately considered (Brecani [2021] EWCA Crim 731). Moreover, although it is not binding, the decision will usually be respected unless there is sufficient justification for not doing so (AAD [2022] EWCA Crim 106).
52. As will be seen, it is of relevance to the four-stage decision making process which was required to be made by the CPS in accordance with its guidance in relation to suspects who might be victims of trafficking or slavery, as to whether or not the section 16A offence, which involved an imitation firearm, was an offence listed in schedule 4 of the 2015 Act, which provides that,

"SCHEDULE 4

OFFENCES TO WHICH DEFENCE IN SECTION 45 DOES NOT APPLY

……

Firearms Act 1968 (c. 27)

13 An offence under any of the following provisions of the Firearms Act 1968—

…..

section 16A (possession of firearm with intent to cause fear of violence)

….."

53. Section 16A of the 1968 Act sets out the offence as follows,

"It is an offence for a person to have in his possession any firearm or imitation firearm with intent—

(a)by means thereof to cause, or

(b)to enable another person by means thereof to cause,

any person to believe that unlawful violence will be used against him or another person."

54. On behalf of the applicant, Mr Douglas-Jones KC in his earlier written note, brought to our attention the recent decision in Johnson, in which the court was considering whether an offence of burglary contrary to section 9(1)(b) of the Theft Act 1968, was a specified offence for the purposes of the availability of an extended sentence, under section 280 of the Sentencing Act 2020.
55. In that case it was pointed out that section 9(1)(a) and section 9(1)(b) of the Theft Act 1968 create different offences of burglary, and that the reference to burglary in paragraph 10 of schedule 18 to the Sentencing Act 2020, which lists those offences which are specified for the purposes of section 280 and 306 of the Sentencing Act 2020, was a reference only to burglary contrary to section 9(1)(a) of the Theft Act 1968.
56. Although we are grateful to have this authority brought to our attention, we consider that the wording of schedule 4 to the 2015 Act is clear, namely that the offence which is listed at paragraph 13 of schedule 4, is the single offence of possession of a firearm with intent to cause fear of violence contrary to section 16A of the 1968 Act.
57. The fact that the offence can be committed by an individual with either a firearm or imitation firearm does not create two different offences, in contradistinction to section 9 of the Theft Act 1968, which does create two different offences, as provided for by section 9(1)(a) and section 9(1)(b), where both the mens rea and actus reus required to be proved under each subsection is distinct from one another.
58. Therefore, we are satisfied that as a matter of construction, the defence of modern slavery provided for by section 45 of the 2015 Act is not available to the section 16A offence of possession of a firearm with intent to cause fear of violence, whether the accused is in possession of a firearm or imitation firearm; albeit the fact that an accused is in possession of a firearm as opposed to an imitation firearm may have relevance as to the extent of their relative culpability, as reflected in the Sentencing Council's guideline for this offence, which provides for two different tables of appropriate starting points and category ranges, depending upon whether the offence involves a firearm or imitation firearm.
59. Turning to the CPS guidance which applied in 2018 in relation to suspects who might be victims of trafficking or slavery, this sets out a four-stage approach to the prosecution decision. Firstly, to decide whether there is reason to believe that the individual is a victim of trafficking or slavery. If not, no further assessment is required. Secondly, if so, whether there is clear evidence of a credible common law defence of duress. If so, the case should not be charged. Thirdly, if not, whether there is clear evidence of a statutory defence under section 45 of the Modern Slavery Act 2015. If so, the case should not be charged. Fourthly, if not, whether it is in the public interest to prosecute the individual, and in doing so,

"Prosecutors should consider all the circumstances of the case, including the seriousness of the offence and any direct or indirect compulsion arising from their trafficking situation; see R v LM & Ors [2010] EWCA Crim 2327."

60. In relation to the first of these questions, it seems to us that as at 13 January 2018, there was nothing either inherent in the nature of the offence, or from the information which was available at that time, to have given the police and/or CPS reason to believe that the applicant was a victim of trafficking or slavery, a situation which continued during the initial stages of the prosecution, as there is no evidence that the CPS were necessarily aware of the basis upon which the applicant was seeking to transfer the representation order from those originally instructed under the duty solicitor scheme. Moreover, there is no evidence that the letter from the applicant to the "Chief of Police" dated 18 March 2018 was ever sent by his solicitors to the police and/or CPS.
61. However, we consider that this situation altered, as from 9 May 2018, when the applicant's newly instructed solicitors uploaded the applicant's Defence Statement, in which this issue was raised and was sought to be relied upon by the applicant in furtherance of a defence of duress and/or modern slavery.
62. Although we appreciate the difficulties which arise in cases such as this, due to the period of time which has elapsed since these matters first arose in 2018, with the consequential loss of files, as the respondent has properly conceded, it would appear that no investigation took place at that time as to whether there was evidence that the applicant was a victim of trafficking or slavery, and in particular no referral under the NRM was instigated. In these circumstances, we are satisfied that as from 9 May 2018, there was a failure by the CPS to follow their guidance in this case.
63. However, as we have already set out, this is not a case in which the respondent concedes that on the basis of further information, the applicant was a victim of trafficking or slavery at that time. On the contrary, the respondent argues that had such an investigation taken place and revealed all of the evidence which is currently available on this issue, it would have concluded that the applicant was not a victim of trafficking and would have been prosecuted for the offence.
64. It is for this reason that we heard evidence both from the applicant, and from the Consultant Forensic Psychiatrist, Dr Galappathie, who had provided a report dated 6 November 2024, in which he provided his opinion that the applicant was suffering from a moderate episode of depression and complex post-traumatic stress disorder, which was consistent with his account of having been assaulted and sexually abused whilst working at the brothel.
65. There are a number of aspects to a consideration of the applicant's credibility, and we have had the benefit not only of hearing evidence from the applicant but of comparing this with the various accounts and explanations of these events, and the facts surrounding the offence to which he entered his guilty plea.
66. In cross examination of the applicant Mr Marsland made a number of points:

i. The co-accused is a significant figure in these events, as not only was he arrested at the brothel with the applicant, but he subsequently became his cell mate during his remand in custody. In the letter drafted to be sent to the police, dated 26 March 2018, the applicant referred to his co-accused as living in Dublin and visiting London at the same time as himself. Whilst in his evidence before us, the applicant initially said that his co-accused had been resident in London. When challenged by Mr Marsland, the applicant said the 2018 letter must have been poorly translated.

ii. In his written statements for his asylum claim and for these proceedings, dated 14 March 2024 and 28 May 2024 respectively, the applicant described his time in the building in Edgeley Lane, in terms of his being a prisoner there. Moreover, in his evidence to us he said, at one stage, "from the day I began I never left there". However, in cross examination, Mr Marsland pointed out that when in conference with his then-counsel in the criminal proceedings he had, in May 2018, spoken of "living near Queen Street, about 4 blocks from the brothel". When confronted with this, the applicant said there had been a second brothel where he had also been kept and obliged to work from time to time. This suggestion does not appear in his written accounts of these events.

67. As we have already set out the written material before the Court included accounts given by the applicant from shortly after his arrest in 2018 until as recently as May 2024. A comparison of those accounts as they relate to significant parts of his narrative throws up a number of inconsistencies:

i. In the course of his police interview the applicant failed to provide any details of the account which he now relies upon.

ii. In his account to counsel preparing for the criminal trial, as mentioned above, the applicant was asked what he had been doing in Ireland in the period immediately before his arrival in London. No doubt those questions were prompted by the police's seizure of Irish bank statements in the applicant's name that showed significant movement of funds. The answer given at that stage was that he and his then-partner ran a Brazilian bistro in Dublin between January and October or November 2017, which ended when they spilt up and she, by then pregnant with their child, returned to Brazil. In his statement for asylum his time in Ireland was described in terms of, "I visited Dublin on a few occasions. At one point I worked there for two months as a chef". The latter account would not seem to explain the banking evidence that he would, no doubt, have been asked about had he stood trial for the offence before us.

iii. There was an incident when the co-accused is said to have attacked the applicant in the cell they shared when on remand. In his account before his guilty plea, the applicant described the attack as motivated by an argument about who would be blamed for what in their forthcoming trial, made worse by the co-accused having consumed some drugs in prison. The applicant gave a further account within days of receiving his prison sentence. That sentence was of a length that made him liable to automatic deportation. On 11 August 2018, thus three days after sentence, the applicant reported the co-accused's attack to the prison authorities, but now the attack was said to include threats to the applicant's family back in Brazil, explicitly made on behalf of the notorious Brazilian gang, the PCC. The allegations of threats by the PCC were to form the centrepiece of the applicant's asylum claim.

iv. In further accounts about the PCC, the applicant has spoken of a named woman who visited him in prison to pass on threats from the gang. In an account in March 2018 the Applicant wrote of the woman as a friend who visited him, scared and in a panic, and later disappeared. In his statement for these proceedings in 2024, the applicant wrote of the visit of the woman in terms of, "[the co-accused]…was visited by one of the people who exploited us…we were visited by a woman….the woman who visited us worked for the criminal organisation…..I think her name was…… I was in deep depression at the time and I accepted the visit because I was not thinking clearly".

v. The applicant's written accounts also sought to blame his decision to plead guilty to the one count he faced on direct advice to do so from his then-lawyers. As we have already set out, that claim was subject to the required McCook procedure. The responses from trial Counsel and Solicitors flatly contradicts that claim, and did so with the assistance of notes and an endorsement from the time of plea. That claim by the applicant has now been abandoned, but it having been advanced, then disproved, is not irrelevant to our considerations.

vi. It was not until 2023, that the applicant asserted that whilst working at the property in 2018, he had been sexually abused, and his assertion that he had informed his then solicitors of this fact who omitted to place this in his Defence Statement, is not borne out by the results of the McCook enquiries.

68. The evidence discovered by the police is also material that we have to consider. In particular:

i. While the applicant denies his marriage to a Romanian national in or around November 2017 was done for immigration purposes rather than through reasons of affection and a planned future together, the timings are striking. His former partner and he split up and she returned to Brazil in around October or November 2017. Thus, extremely shortly afterwards, the applicant married someone else, the possessor of an EU passport, and came to the UK. His new wife then, almost immediately returned to Romania and has hardly featured in the applicant's accounts of his life since. The applicant, in evidence and in his statements avers that the marriage was genuine and the return to Romania was caused by his mother-in-law's ill health.

ii. When the police raided the brothel, the only two men there, apart from a client of a sex worker, were the applicant and the co-accused which might suggest they were running the establishment at that time. The applicant's account was that the real supervisors may have seen the police assembling via CCTV cameras and been able to escape shortly before the raid.

iii. Notes recovered by the police were accepted to be records of money paid by men using the sex workers, and were accepted as being in the applicant's handwriting. His account was that this was a task he was directed to carry out.

iv. The applicant's mobile phone had an image of the imitation firearm within it. The applicant's account was that he had taken the image to send to his former partner, apparently a lawyer, to seek her views as to whether or not the item was unlawful. On the face of it, seeking the view of an ex-partner, abandoned when pregnant, and legally qualified in Brazil is not an obvious mechanism for acquiring advice about the firearms laws of England and Wales.

v. The police also recovered phone images of what seemed to be a Christmas dinner at the Edgeley Lane premises, which showed the applicant smiling and holding a bottle of beer. The applicant testified that this was an event staged by those who had enslaved him to give the appearance that he was there voluntarily.

69. Mr Douglas-Jones KC accepted there were inconsistencies in the Applicant's accounts but made a number of submissions as to why we should be slow to find his account unworthy of belief:

i. In evidence Dr Galappathie, spoke of his diagnosis of the applicant as suffering from complex post traumatic disorder. The points made in reliance on that diagnosis are that it suggests the applicant must have suffered some serious trauma and such mental ill health may result in varying and inconsistent memories. Dr Galappathie agreed with Mr Marsland that he had not been asked to assess if the applicant's account was true. In fairness to the applicant, the doctor said at an earlier stage of his evidence before us that whilst a patient can always fabricate symptoms, he had found no evidence of that in the applicant's case.

ii. There is a body of learning and guidance that cautions a Court against assuming that any inconsistencies in the account of a person who may have been the victim of modern slavery are due to dishonesty rather than the trauma they have suffered (see, for example, Annexe D of the Modern Slavery: Statutory Guidance for England and Wales, made under section 49 of the Modern Slavery Act).

iii. We are here dealing with an applicant who the SCA have found, in a conclusive decision, to be a victim of modern slavery. He submits that there is no sufficient justification for not accepting this decision.

70. As we have already observed, although it is not binding upon us, the decision of the SCA will usually be respected, unless there are clear reasons for not doing so (AAD). We have considered the decision of the SCA with care, and note that the decision was very largely based upon an unanalysed acceptance of the applicant's own account of events. The SCA considered that it gained support from the evidence of Dr Montenegro. However, we would observe that just as Dr Galappathie conceded before us, he had not been asked to assess if the applicant's account was true, and his opinion was largely based upon an acceptance as to the veracity of the applicant's account.
71. We have carefully considered the evidence which the applicant gave to us, together with the material which has been placed before us, as a result of which we are left in no doubt that the account advanced by the applicant is manifestly implausible. We are unable to accept his account of his being kept as a slave, of his actions within the brothel, of his reasons for handling the imitation firearm, and of the threats later supposedly made by the Brazilian criminal gang.
72. We have made every allowance for the matters set out, very properly, by Mr Douglas-Jones. Nonetheless, the applicant's shifting accounts and the circumstances surrounding his arrest simply cannot be accurate or truthful. In submissions to us on this topic, Mr Marsland argued that, "Whenever his account comes into contact with other evidence, his account is undermined". We agree, and we consider that the various inconsistencies and omissions cannot be realistically or objectively rationalised by the evolving account of a trafficked victim as he gained confidence in the safety of his surroundings. On the contrary, in our judgment, they undermine the applicant's account of being a victim of modern slavery to such an extent that we consider that it is untrue.

Conclusion

73. In these circumstances and having rejected the applicant's account that he was a victim of modern slavery at the material time, we are satisfied that the prosecution of the applicant for the offence to which he pleaded guilty was not an abuse of the process of the court, and that there are no arguable grounds affecting the safety of his conviction. Accordingly, we refuse the application for the extension of time.