202403821 B2 - [2025] EWCA Crim 1205

“45 Defence for slavery or trafficking victims who commit an offence

A person is not guilty of an offence if –

the person is aged 18 or over when the person does the act which constitutes the offence,

the person does that act because the person is compelled to do it,

the compulsion is attributable to slavery or relevant exploitation, and

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.

A person may be compelled to do something by another person or by the person’s circumstances.

Compulsion is attributable to slavery or relevant exploitation only if –

it is, or is part of, conduct which constitutes an offence under section 1 or conduct which constitutes relevant exploitation, or

it is a direct consequence of a person being, or having been, a victim of slavery or a victim of relevant exploitation.

…

For the purposes of this section –

‘relevant characteristics’ means age, sex and any physical or mental illness or disability;

‘relevant exploitation’ is exploitation (within the meaning of section 3) that is attributable to the exploited person being, or having been, a victim of human trafficking.

… ”

This court has in recent years considered a number of appeals in which an appellant has challenged a conviction on the ground that, through incorrect advice or a lack of advice, the statutory defence under s45 of the MSA 2015 was not advanced at trial. In R v BTE [2022] EWCA Crim 1597 (a case in which the appellant had pleaded guilty), this court at [24] confirmed earlier decisions to the effect that an appellant must show he or she was:

“… deprived of a defence that quite probably would have succeeded, such that a clear injustice has been done.”