Baniulyte – Modern Slavery Defence and the Limits of Anonymity

Fatima Jama evaluates the Court of Appeal’s ruling in Lurdita Baniulyte [2025] EWCA Crim 1205.

Introduction

The Court of Appeal’s decision in Lurdita Baniulyte [2025] EWCA Crim 1205 presents two interesting outcomes: a woman trafficked, exploited, and forced into drug dealing successfully overturns her conviction, yet is denied the anonymity she sought to protect her privacy. This judgment explores two distinct but interrelated issues: the circumstances in which convictions may be overturned when the statutory defence under section 45 of the Modern Slavery Act (“MSA 2015”) is not properly considered, and the exceptionally high threshold for victims of modern slavery to secure anonymity in criminal proceedings.

The Facts

Lurdita Baniulyte, a Lithuanian national who came to Britain aged 11, began using class A drugs in her late teens. Her first conviction in 2014, when she was 19, involved supplying cocaine and heroin, offences she committed, she claimed, because her drug addiction had placed her in debt to dealers who threatened violence.

In September 2021, the cycle of exploitation continued. Baniulyte was arrested in Aylesbury after supplying drugs to a known user. Police found her at a “cuckooed” flat, premises taken over by drug dealers from a vulnerable occupant, himself later recognised as a victim of modern slavery. The flat contained substantial quantities of class A drugs, along with a phone used for class A dealing. Baniulyte was charged with two offences of being concerned in the supply of class A, and two offences of possession of class A with intent to supply. It was indicated on four separate occasions during the pre-trial stage by the defence that Baniulyte was a victim of modern slavery, duress and exploitation.  

At her trial, Baniulyte’s defence relied solely on duress rather than modern slavery provisions. Baniulyte’s evidence was that “she had been taken from Bognor Regis to Baldwin’s flat in Aylesbury, and made to supply drugs to others, by men related to those of whom she had been in fear in 2013”. 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.” Baniulyte was ultimately convicted of all four counts.

Baniulyte sought an extension of time of more than two years to apply for leave to appeal against her convictions, principally on the grounds that she was a victim of modern slavery and human trafficking (“VMS”/ “VOT”) and entitled to put forward the statutory defence under section 45 MSA 2015. She also applied to adduce fresh evidence, and a reporting restriction and/or a withholding order so that she remained anonymous.

Systemic Failures

The Court of Appeal identified multiple critical failures by investigating and prosecuting authorities. Despite the magistrates’ court Better Case Management form explicitly stating that Baniulyte 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,” police never referred her to the National Referral Mechanism—the UK’s framework for identifying and supporting trafficking victims.

As the Court observed, the respondent “realistically accepts that the police should have referred the applicant into the NRM, but failed to do so. He has not been able to identify why that failure occurred.” R v AFU [2023] EWCA Crim 23, “emphasised the importance of early identification of actual or potential VOTs in order to respect their Article 4 rights.”

The Crown Prosecution Service committed an equally serious error. Their own published guidance requires prosecutors to follow a four-stage assessment when a defendant may be a victim of modern slavery. Yet “the CPS did not review the applicant’s case in relation to the potential statutory defence even though it had been raised in the BCM form and was in any event raised by Baldwin’s evidence.” The respondent, “again realistically, accepts that the CPS should have reviewed the case in accordance with its Guidance.”

An Abuse of Process?

Baniulyte’s appeal raised whether systemic failures by police and prosecutors rendered her prosecution an abuse of process. It was submitted that it was not fair for Baniulyte to be prosecuted, because her offending was directly related to the exploitation of her by those whom she feared. If that argument had been raised in the Crown Court, the judge would have stayed the prosecution and that from the starting point, the convictions are unsafe because Baniulyte was not advised that it was open to her to make an abuse application.

The respondent argued 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 Baniulyte’s case.

The Court analysed this issue, noting that in R v DS [2020] EWCA Crim 285, Lord Burnett CJ had stated unequivocally that “cases to which the 2015 Act applies should proceed on the basis that they will be stayed if, but only if, an abuse of process as conventionally defined is found.”

The Court accepted that a prosecution might be stayed where the CPS unjustifiably fails to apply its own guidance. In R v AAD [2022] EWCA Crim 106 at [120], Fulford LJ stated that “a case in which the CPS had unjustifiably failed to take into account its own guidance might in appropriate circumstances be stayed.” At [127], he elaborated: “if there has been an unjustified and material failure to have regard to CPS guidance in this kind of context… then an arguable case of unfairness and oppression and illegality would potentially be there.”

However, the Court concluded that in Baniulyte’s case, “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.” The Court reasoned: “If the applicant 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.” And that “On the evidence as it stood pre-trial, it is in our view 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 cannot be criticised for not advising the applicant to pursue an abuse application.”

This analysis underscores an important principle: even serious systemic failures do not automatically render a prosecution abusive where those failures can be rectified before trial proceeds.

The Section 45 Defence: Distinct from Duress

At trial, Baniulyte’s defence focused exclusively on duress. The judge directed the jury to consider five questions, including the critical fifth: “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?”

The jury convicted on all counts. However, the statutory defence under section 45 MSA 2015 differs materially from duress. As the Court explained, section 1(5) of the Act explicitly provides that a person’s “consent to any of the acts alleged to constitute holding the person in slavery or servitude, or requiring the person to perform forced or compulsory labour, does not preclude a determination that the person is being held in slavery or servitude, or required to perform forced or compulsory labour.”

It was the applicant’s submission 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.”

Trial counsel explained he considered both defences but believed that if the jury rejected compulsion in the duress context, they would inevitably reject it for section 45. However, the Court found this tactical assessment flawed because the defences are “not identical, and in some circumstances the latter may succeed even though the former fails.” The Court emphasised: “The key point, however, is that it was not a decision taken by the applicant. The defence of duress and the statutory defence are not identical… Here, the statutory defence had been raised by the applicant’s initial instructions, and had been mentioned in the BCM form when the criminal proceedings began.” The Court concluded: “We are persuaded 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. It follows that the appeal must succeed.” … In reaching our conclusion as to the merits, we have focused on the evidence which was adduced or available at trial. We think it right formally receive the proposed fresh evidence, and have taken it into account as providing support for our conclusion.”

The critical flaw was that Baniulyte was never advised about the distinct statutory defence under section 45 MSA 2015 rendering her conviction unsafe. “In those circumstances, we are persuaded 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. It follows that the appeal must succeed.”

Fresh Evidence

Baniulyte further relied on fresh evidence to support her appeal. Firstly, in a report dated 06 December 2023, a forensic psychologist opined that Baniulyte met the criteria for a diagnosis of post-traumatic stress disorder (“PTSD”), depressive disorder and anxiety disorder. Secondly, on 09 January 2024, the Immigration Enforcement Competent Authority (“IECA”) made a conclusive grounds decision in Baniulyte’s favour, that on the balance of probabilities she was a VMS in 2020-21 for the specific purposes of forced criminality.

Anonymity Denied

Baniulyte also sought anonymity through a withholding order and reporting restrictions. The Court refused, providing a comprehensive guidance on anonymity applications by trafficking victims in criminal proceedings.

The Court emphasised that “any derogation from, or restriction upon, open justice is exceptional and must be based on strict necessity. The derogation or restriction must be shown by “clear and cogent evidence” to fulfil a legitimate aim and to be both necessary and proportionate.”

Drawing on recent Supreme Court authority in Abbasi v Newcastle upon Tyne Hospitals NHS Foundation Trust [2025] UKSC 15, the Court outlined a structured three-stage approach, “The court must ask, first, whether there is an interference with a right prescribed by law; secondly, whether the interference pursues a legitimate aim, i.e. an aim which can be justified by reference to one or more of the matters mentioned in Article 8(2) or Article 10(2); and thirdly, whether the interference is necessary in a democratic society.” Noting particularly that “in answering the last of those questions in relation to article 10, the need for any restriction of freedom of expression must be established convincingly. It must be justified by a pressing social need, and must be proportionate to the legitimate aim pursued.”

While noting that the applicant “submits that this court generally does grant anonymity in human trafficking/modern slavery cases,” the Court emphasised that in R v L and N [2017] EWCA Crim 2129, frequently cited for this practice, “the court… at [15] expressly declined an invitation to give general guidance, and made clear that it was deciding the anonymity applications in the two cases before it on a fact-specific basis.” The Court stated firmly: “Although issues as to anonymity arise more frequently in such cases than in other applications and appeals, a VOT/VMS has no automatic right to anonymity… An order derogating from open justice should therefore not be made on a routine basis.”

The Court specified: “Any application for an anonymity order (and reporting restrictions) must be supported by evidence which establishes convincingly the need for the derogation(s) sought. Where it is contended that, if anonymity is not granted, there is a credible risk of physical harm or death, the nature of the threat and why an order for anonymity would avoid or reduce that risk must be explained. And that “The evidence submitted in support of the application must explain the extent to which there has been reporting of the identity of the person seeking anonymity and reporting restrictions as a result of the proceedings at first instance. Such evidence is necessary to assist this court to decide whether it is too late to impose an anonymity order.”

Applying a fact-specific assessment, the Court found Baniulyte had not established necessity: “This is not a case in which the applicant suggests that there is evidence of a threat which would engage her rights under Articles 2 (right to life) or 3 (prohibition of torture and of inhuman or degrading treatment) of the Convention.”

Although Baniulyte’s name was disclosed during the Crown Court proceedings, the appeal court still retained the power to make a reporting restriction order, as that power lies with the court currently handling the matter. However, the fact that Baniulyte’s identity was previously made public was a significant consideration, especially regarding the practical impact on past and future reporting. Anonymity applications often cite protection in other proceedings, such as asylum cases, as support, but even then, anonymity is not automatic and must be strictly justified to avoid undermining open justice. In this case, Baniulyte had no asylum claim or related tribunal proceedings. While courts have previously granted anonymity in human trafficking and modern slavery cases, those decisions were fact-specific and did not create a general presumption in favour of anonymisation.

The Court concluded: “In accordance with the principles which we have explained, a person seeking a derogation from open justice must put forward cogent evidence as to why the derogation is necessary. We are satisfied that the applicant has not been able to do so.”

Extension of Time

While granting the necessary extension of time (over two years), the Court expressed concern about unexplained delay. The Court noted that “the applicant has failed to explain her delay until January 2024. The applicant has made submissions, but it is not for the court to make good any deficiency by guessing at possible reasons.”

The Court emphasised procedural rigour: “As this court has repeatedly emphasised, a sufficient explanation must be given for the whole of the period which has elapsed between the expiration of the 28-day time limit and the serving of the form NG.” Nevertheless: “The applicant may therefore consider herself fortunate that we are persuaded that the merits of her appeal are sufficiently strong to justify our granting the necessary extension of time.”

Implications and Conclusion

Baniulyte establishes several important principles. First, where indicators of modern slavery exist, legal advisers must consider both duress and the section 45 statutory defence. As the Court emphasised, “the CPS Guidance… requires consideration of both,” and failure to advise clients on all available defences may render convictions unsafe.

Second, systemic failures by police and prosecutors, while serious, do not automatically establish abuse of process where remedial action remains possible. The Court was clear: “We are not, however, persuaded that the convictions are unsafe simply because those failures occurred. The effect of the failures was to deprive the applicant of an opportunity for a decision to be taken not to prosecute her… The failures did not, however, deny the applicant any opportunity to advance her case on the basis that she was a VOT/VMS.”

Third, the Court’s detailed guidance on applications for anonymity in criminal proceedings makes clear that each application must establish strict necessity through clear and cogent evidence, with very substantial weight accorded to open justice. For practitioners, the message is clear: identify potential trafficking victims early, consider all available defences comprehensively, and recognise that while substantive justice may be achieved through appeal, procedural protections like anonymity require demonstrable necessity.