The distinction between duress and the modern slavery defences

The Court of Appeal’s decision in Lurdita Baniulyte v R [2025] EWCA Crim 1205, brings into focus the importance of examining all aspects of a client’s defence, even where omissions by those responsible for investigating offences have occurred which seemingly curtail an avenue of defence.

The appellant Lurdita Baniulyte (LB) was accused of being concerned in the supply of Class A controlled drugs (crack cocaine – count 1, and diamorphine – count 2), and two offences of possessing a controlled drug of class A with intent to supply (crack cocaine – count 3, and diamorphine – count 4).

The facts surrounding the allegations were that September 2021, in Aylesbury, LB (then aged 27) was seen to supply three wraps of class A drugs to a known drug user. She was arrested as she made her way to a flat which was occupied by Michael Baldwin, an alcoholic, but had been taken over by other persons and used to deal drugs. She was found to be in possession of wraps of heroin and cash. Inside the flat, police found her belongings; 40 wraps of crack cocaine; 22 wraps of heroin; and a mobile phone which was evidently used for drug dealing. When interviewed under caution, she made no comment.

LB had previous convictions from February 2014 for offences of possession with intent to supply cocaine and diamorphine, when she was 19 years old.

On being sent for trial by Magistrates’, her representative completed the Better Case Management form (BCM) indicating that she was:

“potentially the victim of modern slavery, there is also a possible duress defence in relation to the supply of drugs. She has been forced to sell drugs to pay off a debt owed to dealers. She has been the victim of serious violence and threats.”

In the same proceedings, a co-accused Jamie O’Connor was charged with offences of being concerned in the supply of drugs from Baldwin’s flat and with requiring Baldwin to perform acts of forced or compulsory labour contrary to Section 191(b) of the Modern Slavery Act 2015 (MSA 2015).

In November 2021, LB submitted a defence statement that she had acted under duress: she was a drug user, in debt, and believed that threats towards her or her family would be carried out if she did not supply drugs to others. Her statement said that she had been escorted to Baldwin’s flat by two men, and the presence of weapons in the flat reinforced her fears.

Subsequently, in January 2022 LB’s representatives invited the prosecution to review whether prosecuting was in the public interest in view of the MSA 2015 offences faced by O’Connor which may have supported LB’s defence.

In the same month LB submitted a supplementary Defence Statement referring to Baldwin’s account that he had been forced to do acts against his will, and once again the prosecution was invited to consider if the prosecution was in the public interest.

O’Connor subsequently pleaded guilty to being concerned in the supply of diamorphine and crack cocaine, and the MSA 2015 matter was allowed to ‘lie on file’.

There was no complaint made by LB’s representatives that the police should have made a referral under the National Referral Mechanism a framework for identifying and referring potential victims of modern slavery, and accordingly no application for abuse of process.

As part of the trial in August 2022, Baldwin gave evidence for the prosecution. He stated that LB was doing what she was told and seemed “all right with it”: she chopped up drugs and had a say in whether she worked or not. The prosecution alleged that the applicant was knowingly involved in the supply of class A drugs. They relied on the 2014 convictions as showing a propensity to become involved in supplying class A drugs to others.

LB did not seek to rely on the statutory defence provided by Section 45 of the MSA 2015. Her defence was one of duress and accepted that but for duress she would be guilty of the offences charged. In evidence, LB explained that having been born in Lithuania she came to the UK aged 11 and began using Class A drugs at 17 or 18 and committed the offences sentenced in 2014, because she was an addict, and was forced to supply drugs to repay her drug debt. She feared she would be killed or her family hurt if she failed to comply. She gave evidence that she had been taken from her address in Bognor Regis to Baldwin’s flat in Aylesbury, and forced to supply drugs, by males who were related to those that she had been threatened as regards the 2014 offences. She stated that the men had threatened and sexually abused her; they had weapons in the flat, and she feared death or serious injury to herself, her mother and her sister if she did not comply.

In his summing up the trial judge directed the jury as to the defence of duress, making clear that it was for the prosecution to disprove that defence, and provided a route to verdict which required the jury to consider five questions: (1) was the defendant threatened in the way she said she was? (2) did she do what she did because she genuinely and reasonably believed that if she did not do it, she would be killed or seriously injured either immediately or almost immediately? (3) before the defendant acted as she did, did she have an opportunity to escape from/avoid the threats without death or serious injury to herself which a reasonable person in her situation would have taken? (4) would a reasonable person in the defendant’s situation, and believing what the defendant did, have been caused to do what the defendant did? (5) had the defendant voluntarily put herself in a position in which she knew or ought to have known she might be compelled to commit crime by threats of violence made by other people?

The judge also directed the jury as to the previous offences, and the defendant’s alleged propensity to commit offences of the kind charged.

The jury subsequently returned guilty verdicts on all counts. At a later hearing, LB was sentenced on each count to concurrent terms of 40 months’ imprisonment.

LB later instructed new solicitors and appealed out of time. This meant that the Court of Appeal had to consider whether an extension of the 28-day time limit for appealing LB’s conviction should be extended. This is not considered for the purpose of this article, save to say that the Court narrowly granted the application for an extension of time.

LB’s representatives also made an application for an anonymity order which also is not addressed in this blog, which was not granted.

Turning to the appeal it is necessary to examine the law underpinning the MSA 2015.

Article 4 of the European Convention on Human Rights (incorporated into domestic law by the Human Rights Act 1988) provides that:

No one shall be held in slavery or servitude.
No one shall be required to perform forced or compulsory labour

Article 8 of the same convention provides that :

Everyone has the right to respect for his private and family life, his home and his correspondence.
There shall be no interference with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

European jurisprudence establishes that Article 4 creates a procedural obligation to investigate situations of potential trafficking, emphasising the importance of early identification of actual or potential victims of trafficking (VOTs) in order to respect their Article 4 rights.

In compliance with this, the UK established the National Referral Mechanism (NRM) to which police officers should refer the case of a person whom they suspect may be a VOT.

Section 45 of the Modern Slavery Act 2015 provides that :

“(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 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.

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

(3) Compulsion is attributable to slavery or relevant exploitation only if –

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

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

…

(5) 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.”

The appeal was distilled into five submissions set out as follows:

Ground 1

That the convictions were unsafe because the police failed to comply with their Article 4 duty to investigate LB’s case and to refer her to the NRM despite having done so for Baldwin, and despite considering O’Connor as a perpetrator of modern slavery.

Counsel for the Crown accepted that the police should have referred LB via the NRM procedure but failed to do so.

Ground 2

Crown Prosecution Service (CPS) published guidance on Modern Slavery and Human Trafficking requires a four-stage approach on the decision to prosecute. It was submitted that the CPS should have reviewed LB’s case in accordance with that guidance and the potential defence under section 45 of the MSA 2015 given that it had been raised as a defence on the BCM form and was raised in Baldwin’s evidence.

Counsel for the Crown accepted that the CPS should have reviewed the case in accordance with its own guidance, however, he did not accept that such a review would inevitably have led to a decision that it would not be fair to try LB. He asserted that a reasonable prosecutor applying the guidance could have concluded that it remained appropriate to continue the prosecution.

Ground 3

It was submitted that the convictions were unsafe because the applicant was not advised that it was open to her to make an application for a stay of proceedings as an abuse of the process of the court. In this case, it was submitted that 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. Accordingly, if that argument had been raised in the Crown Court, the judge would have stayed the prosecution.

Counsel for the Crown suggested that had it been made, an abuse application could not have succeeded as the failings by the police and CPS could have been remedied by a belated review of LB’s case.

Ground 4

It was submitted that had the statutory defence under section 45 of MSA 2015 been advanced, it would probably have succeeded, even where the defence of duress failed because the section 45 defence is not the same in all aspects as the common law defence of duress.

It was pointed out that the statutory defence may succeed even if the applicant consented to any of the acts said to constitute her forced or compulsory labour. In support of this assertion defence counsel further referred to the trial judge’s question 5 to the jury, that being, “had the applicant voluntarily put herself in a position in which she knew or ought to have known she might be compelled to commit crime by threats of violence made by other people?” which she asserted would not been expressed as regards a Section 45 MSA2015 defence.

Original 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 section 45 defence. His approach had therefore been to advise the applicant in relation to duress but not in relation to a section 45 MSA 2015 defence.

Trial Counsel approach was not criticised, but it was apparent that LB was not advised as to the section 45 defence, and that an appeal in such circumstances.

Counsel for the Crown accepted that a section 45 defence could be successful even though a defence of duress fails. He also accepted that as per the BCM form, LB’s case had always been that she was compelled through fear to move to Aylesbury and forced to sell drugs on behalf of an organised crime group. He accepted that LB was not at fault in failing to advance a Section 45 defence.

Ground 5

It was submitted that the trial judge’s directions were deficient in respect of Counts 3 and 4 as 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, and that a consequence of the failure to advance a defence under section 45 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.

Counsel for the Crown accepted that the trial judge’s directions would have been different in the two aspects identified if the section 45 defence had been advanced in addition to duress but suggested that this ground was of less significance than the others advanced.

Nevertheless, he considered that the cumulative effect of the grounds advanced on LB’s behalf meant that the Crown did not oppose the appeal because:

LB’s instructions were arguably sufficient to require consideration of the availability of a section 45 defence;
it does not appear that she was advised that such a defence was available;
whilst there is an overlap between duress and the section 45 defence, they are not the same;
there are therefore grounds for the court to conclude that the convictions are unsafe.

In formulating its judgment, the Court of Appeal found that there were failures by the police and the CPS, however the Court found that the effect of the failures was only to deprive LB of an opportunity for a decision to be made not to prosecute her or discontinue proceedings on the basis that she was a modern slavery victim. It did not deny the applicant any opportunity to advance her case on the basis that she was a victim of trafficking or a modern slave.

The Court went on to consider whether the failures of the police and the CPS would have provided a strong basis for an application to stay the applicant’s prosecution as an abuse of the process, such that the convictions cannot be regarded as safe.

The Court accepted the submissions of Prosecuting Counsel that if an abuse application had been made, it is by no means certain that it would have succeeded. Serious though the failures of the police and the CPS were, they could have been remedied. If LB had made an abuse application in the Crown Court, it would have been incumbent upon her legal representatives to notify the court and the respondent of that application at an early stage. The judge would then have been entitled to adjourn the application so that the police and the CPS could carry out, belatedly, the reviews which they had neglected. It could not then be said that the circumstances demanded the exceptional remedy of a stay of proceedings.

The Court therefore concluded that it was impossible to say that the result of the belated reviews would probably have been a decision not to prosecute; and if the reviews concluded that it was appropriate to continue the prosecution, then the application to stay the proceedings as an abuse would inevitably have failed. In those circumstances, trial counsel could not be criticised for not advising the applicant to pursue an abuse application.

The Court found that LB’s appeal could not succeed on Ground 1 and 2 alone, or even on a combination of Grounds 1, 2 and 3.

Nevertheless, the Court considered that there was strength in the argument as regards to a combination of Grounds 1, 2 and 4, in that the consequences of failures by the police and CPS was that the arguments and statutory defence based upon the applicant being a victim of modern slavery would not be considered by the court unless she raised them at trial. In coming to this conclusion, the Court did not seek to criticise trial counsel for choosing to focus solely on the defence of duress, but iterated that it was key that this was not a decision made by LB.

In quashing the convictions the Court of Appeal expressed gratitude to trial counsel for his acceptance that he did not advise LB as to the possibility of advancing a defence under Section 45 MSA 2015. It was noted that the Crown would unlikely be able to rebut the points raised by the defendant’s counsel in support of a Section 45 defence and that the comparison between LB and Baldwin would have been a strong point in her favour.

The Court concluded, “that the failure to advise the applicant about the statutory defence had the effect of denying her the opportunity to put forward a defence which quite probably would have succeeded, and that the applicant thereby suffered a clear injustice”.

Comment

The common law defence of duress and the statutory defence under section 45 of the MSA 2015 are not identical, and in some circumstances the latter may succeed even though the former fails.

In this case the statutory defence had been raised by LB’S initial instructions as had been recorded in the BCM form, and it appeared that neither the police by virtue of failing to refer the case via the NRM, nor the CPS by failing to consider their own guidance had considered the section 45 defence. Had they done so, this may have prompted LB to have been asked to give more detailed instructions on matters that could support a section 45 defence and the possibility of advancing that defence as well as duress,

The Court of Appeal noted that the decision as to whether to pursue the Section 45 defence required careful consideration by her, based on advice from counsel, though it was not a decision for counsel.

Practitioners may wish to note the importance that was attached to LB’s instructions on the BCM form, which clearly enabled their Lordships to take the view that those instructions as detailed on that form could be capable of amounting to defence under section 45 of the MSA2015.

Original trial counsel and solicitors were spared censure for not adequately appearing to advise as regards the availability of the section 45 defence, though practitioners evidently need to take heed of the defendant’s representatives’ shortcomings.