The Court of Appeal has quashed serious drug dealing convictions admitted by a Somalian immigrant after his legal team failed to advise him about a modern slavery defence.
The man, now aged 24, was jailed in 2017 after pleading guilty to a number of counts of possession of heroin and cocaine with intent to supply.
The court heard that on one occasion, he was arrested as part of a County Lines gang that took over the home of a vulnerable drug user where Class A drugs were being stored and prepared.
Known only as “BSG” due to an anonymity order, he applied to the court that at the time of the offending, he was a victim of modern slavery.
The Crown Prosecution Service (CPS) had disputed his claim, saying they did not accept the credibility of his account.
The court heard he was under the age of 18 when the offences were carried out and after serving his sentence, a decision was made to deport him from the UK.
It was only on receiving advice from immigration lawyers over the deportation order, the court heard, that BSG discovered that he had grounds for a modern slavery defence to the drug charges.
Cuckooing Operation
According to court documents, the Somalian national came to Britain as a child along with his mother, who claimed asylum for herself and her son.He was initially granted leave to remain as a refugee, with indefinite leave to remain granted in 2013.
In March 2016, aged 17, he was arrested in possession of Class A drugs with intent to supply heroin and cocaine.
He was interviewed under caution by police and gave a no-comment interview before being released on bail.
In July 2016, the applicant was arrested, again in possession of heroin and cocaine and involved with others in a “cuckooing” operation—where a gang takes over a premises with the intention of storing and preparing drugs—in the home of a vulnerable drug user.
This arrest resulted in a further two charges of possession with intent to supply a Class A controlled drug. He again made no comment in an interview and was again released on bail.
The applicant was further interviewed about the initial drug offences.
The court heard that for the most part, he made no comment, but did say that he had been “forced” to do what he did and had received a threatening text message.
Following two court cases where he pleaded guilty to the offences, he was sentenced to serve two terms at a young offenders centre.
After being released on licence in 2018, he was informed a few months later that the Secretary of State was revoking his protection status and refused his claim for asylum, and he was served with a deportation order.
He was then recalled to prison in 2019 after breaching the terms of his licence.
Further Arrests
Around November 2019, the Salvation Army referred the man through the National Referral Mechanism, a framework for identifying modern slavery victims, to the Single Competent Authority (SCA).The SCA—a government agency responsible for identifying and supporting potential victims—assessed his case and made a favourable reasonable grounds decision in his favour.
However, in the spring of 2020, he was arrested again—this time at a property where Class A drugs were found.
The court heard that the matter remains under investigation, and no charges have yet been brought.
In July 2020, he was once again arrested and charged with conspiracy to supply controlled drugs of Class A.
He was convicted of those offences in a Crown Court in 2021 after pleading guilty.
The Court of Appeal heard the sentencing was adjourned to “await the outcome of prosecutions of other alleged conspirators.”
The same year the SCA made a conclusive grounds decision that, “on the balance of probabilities”, the applicant was a victim of modern slavery in the UK during the period between March and July 2016 “for the specific purposes of forced criminality.”
He later successfully appealed the secretary of state’s decision to revoke his refugee status.
Thrill-Seeking
The CPS opposed BSG’s appeal, with a prosecutor telling the court that it did not accept the credibility of his account.The prosecutor mentioned a pre-sentence report prepared following guilty pleas to his first offences which records the applicant as saying that he was “not pressured into selling drugs, and ticks boxes categorising his motives as money and thrill-seeking.”
The CPS added that less weight ought to be given to BSG’s conclusive grounds decision because it concerned “domestic trafficking.”
They contended that there was less need for the court to defer to the SCA here than there was in cases involving trafficking outside the UK.
They had also asked that BSG be cross-examined in court, which he refused.
The court determined that BSG had previously given a “consistent and credible” account to the First-Tier Tribunal on his refugee status, so it was not necessary for him to face cross-examination again.
Making his ruling, Lord Justice Holroyde said BSG had not been adequately advised by his former criminal defence solicitors.
He should have been advised about the modern slavery defence as it applies to children, the judge said.
The court noted that the modern slavery defence operates less strictly for children than for adults, who must demonstrate that they were “compelled” to offend whereas children must show that their offending was a “direct consequence” of having been a victim of modern slavery or human trafficking.
The court concluded that “a clear injustice has been done: the applicant has put forward a credible account to the effect that he offended as a direct consequence of his having been groomed, exploited and threatened […] we accept that a reasonable person in the applicant’s situation would have done the same as he did”.
Under the new Illegal Migration Act, trafficking or modern slavery victims convicted of crimes will be prevented from remaining in the UK and obtaining conclusive grounds for decisions.
Campaigners say the provisions seriously undermine protections for trafficking victims and risk making the modern slavery defence more difficult to access.
