202403821 B2 - [2025] EWCA Crim 1205

Ground 3:

Ms Ahluwalia relies on case law which establishes that the availability or potential availability of the statutory defence under s45 of the MSA 2015 does not prevent a defendant from making an application to stay a prosecution as an abuse of the process of the court on one of the two well-established grounds for such an application. The present case, she submits, falls under the second of those grounds: it was not fair for the applicant to be prosecuted, because her offending was directly related to the exploitation of her by those whom she feared. She submits that, if that argument had been raised in the Crown Court, the judge would have stayed the prosecution.

From that starting point, Ms Ahluwalia submits that the convictions are unsafe because the applicant was not advised that it was open to her to make an abuse application.

Mr Ray submits that an abuse application could not have succeeded: had the issue been raised, the failings of the police and the CPS could have been remedied by a belated review of the applicant’s case.

Ground 4: Ms Ahluwalia submits that if the statutory defence under s45 of the MSA 2015 had been advanced, it would probably have succeeded. She argues that that is so, even though the defence of duress failed before the jury, because the s45 defence is not the same in all respects as the common law defence of duress. In particular, the effect of s1(5) of the MSA 2015 is that the statutory defence may succeed even if the applicant consented to any of the acts said to constitute her forced or compulsory labour. Ms Ahluwalia submits that the fifth of the questions which the judge directed the jury to consider (see paragraph 21 above) would therefore not have been expressed in the same terms in relation to a s45 defence. She submits that the verdicts could have been reached on the basis that the jury answered the first four questions favourably to the applicant, but found that she had voluntarily placed herself in the position she was in. On those findings, it is submitted, the defence of duress failed, but the statutory defence could have succeeded.

In his response to the further enquiries made after the hearing on 18 March 2025, trial counsel explained that he took the view that both potential defences would require the jury to consider whether the applicant had acted under compulsion; and if the jury rejected that claim in relation to duress (as, in the event, they did), he felt that they would inevitably have rejected it in relation to the s45 defence. His approach had therefore been to advise the applicant in relation to duress but not in relation to a s45 defence.

Ms Ahluwalia accepts that, if the applicant had been fully advised and had then taken a strategic decision to advance only one of what she knew to be two possible defences, this court would have to take those features into account in considering the abuse argument. But, she submits, the applicant was not advised about the possible s45 defence, and is not now seeking to advance an argument which she knew she could have advanced at an earlier stage. Ms Ahluwalia does not criticise trial counsel for taking the approach he did; but she points to R v BXR [2022] EWCA Crim 1483 at [10] as authority that an appeal against conviction in circumstances such as these may succeed even though no fault can be shown on the part of the previous legal representatives.

Mr Ray accepts that it is possible for a defence under s45 of the MSA 2015 to succeed even though a defence of duress fails. He also accepts that, as the entry on the BCM form shows, the applicant’s case has throughout been that she was compelled through fear to move to Aylesbury, and forced to sell drugs on behalf of an organised crime group. He does not suggest that the applicant herself was at fault in failing to advance a s45 defence.

Ground 5: Ms Ahluwalia submits that the convictions are unsafe because the judge’s directions were deficient in two broad respects. First, she submits that in respect of counts 3 and 4, the judge failed to address the relevance of the applicant’s evidence that the ongoing coercion to which she was subject included sexual abuse and rape. Secondly, she submits that a consequence of the failure to advance a defence under s45 of the MSA 2015 was that the jury could not consider whether the 2014 convictions were part of a cycle of re-exploitation rather than evidence of a propensity to supply drugs.

Mr Ray suggests that this ground is of less significance than the applicant’s other grounds of appeal. He accepts, however, that the judge’s directions would have been different, in the two respects identified, if the applicant had advanced a statutory defence as well as the defence of duress.

The respondent, having carefully considered the cumulative effect of the applicant’s grounds, including the further information provided by the applicant does not oppose the appeal. Mr Ray explains this is because:

the applicant’s instructions were arguably sufficient to require consideration of the availability of a s45 defence;

it does not appear that she was advised that such a defence was available;

whilst there is an overlap between duress and the s45 defence, they are not the same;

there are therefore grounds for the court to conclude that the convictions are unsafe.

Mr Ray helpfully informs us that, if the appeal is allowed, the respondent will not seek an order for a retrial.