R v Kwiatkowska 2026
K, born 8 March 1996, was a member of the Roma community with significantly reduced intellect and severe mental health issues including complex post-traumatic stress disorder, personality disorder and learning disability. Social service records documented significant physical, sexual and emotional abuse throughout her childhood within her extended family and Roma community. She began offending at the behest of an older brother from age six, with her first conviction for shoplifting aged 13. In 2014, she alleged historic rape by her elder male cousin who pimped her out. This brought "shame" on the Roma community and she was summonsed to see the "Gypsy King" to learn her punishment. In February 2015, police removed her to a safe place due to serious concerns for her safety.
K pleaded guilty to: one burglary in August 2011 aged 15 (sentenced to Youth Rehabilitation Order); three burglaries in May 2015 in Leeds (876 days' detention); five burglaries in April 2017 (sentenced with mandatory minimum term); eleven offences including nine burglaries in December 2018/January 2019; and two burglaries in October 2018 sentenced in 2020. All offences were distraction burglaries targeting vulnerable elderly victims in care homes, stealing jewellery and cash. She received Positive Conclusive Grounds Decisions from the Single Competent Authority in January 2016 and February 2022 confirming victim of trafficking status.
K was deported in September 2016 and April 2018 but repeatedly re-entered the United Kingdom illegally. The First Tier Tribunal allowed her deportation appeal in May 2023, finding her account of exploitation in Poland and trafficking to the United Kingdom credible. She applied for extension of time and leave to appeal all convictions, arguing abuse of process and inadequate legal advice on section 45 Modern Slavery Act 2015 defence. The Registrar referred applications to the full Court.
K contended that all the convictions were unsafe due to abuse of process: K was subjected to intra-community and intra-familial human trafficking since age five or six and compelled to commit offences for her traffickers. Police failed to discharge duties as National Referral Mechanism first responders and to investigate traffickers in breach of Article 4 European Convention Against Trafficking in Human Beings and Article 4 European Convention on Human Rights. The CPS had failed to identify K as a victim of modern slavery and failed to apply Crown Prosecution Service Guidance on suspects who might be victims of trafficking when considering prosecution. If her status had been known, the respondent "would" or "might well" not have maintained the prosecutions. Alternatively, it was not in the public interest to prosecute a victim of intra-familial and intra-community sexual and criminal abuse. K was given no or inadequate advice in all cases regarding the section 45 defence when prospects were good and it would probably have succeeded. She had significantly limited intellect and could not understand the gravity and consequences of guilty pleas. Her pleas were vitiated by vulnerability and pressure during proceedings.
The respondent did not oppose applications for 2011 and 2015 convictions but opposed remaining convictions, arguing lack of evidence for the later period, that accounts had not been tested, and that in 2019 she accepted "reasonable alternatives" existed. Extensive support had been provided but not utilised. The analysis of public interest must account for numerous repeat offences.
Held
Appeal allowed.
The Court extended time and granted leave to appeal the 2011 and 2015 convictions, which were allowed and quashed. The Court granted leave to appeal but dismissed the appeals in respect of the 2017, 2019 and 2020 convictions. Those convictions remained.
For the 2011 conviction, the Court agreed with the respondent's assessment that in the circumstances the public interest did not require prosecution of a 15-year-old and to proceed would exceptionally amount to abuse of process. "A conviction on a guilty plea in a case involving an abuse of process is as unsafe as one following trial."
For 2015, whilst normally prosecution of an adult committing burglaries against vulnerable victims would be in the public interest, sufficient information existed which should have alerted police to her victim status and required prosecution to assess culpability accordingly. The respondent's concession that prosecution would probably not have been commenced or maintained was not "clearly flawed" and carried considerable weight.
For 2017, 2019 and 2020, the Court rejected submission that a "line in the sand" had not been reached. All victims of modern slavery have "exceptional" backgrounds. Repeated serious offending against vulnerable victims was of greater significance. A decision in the public interest to prosecute in 2017 with full knowledge would have been finely balanced but not fatally flawed.
Regarding section 45 advice in 2017, whilst not specifically advised, K discussed compulsion with counsel and received advice on duress. The differences between duress and section 45 defence are modest and would have been lost on K. Her own evidence showed she pleaded guilty to obtain sanctuary, not because of inadequate advice.
For 2019 and 2020, the Court accepted counsel's evidence that comprehensive advice on section 45 was given. The 2019 endorsement demonstrated she received careful advice and understood the impact of her decision. In 2020, her decision to plead guilty to avoid extension of sentence was rational and reasoned, not indicative of lack of capacity under section 1 Mental Capacity Act 2005.
Reproduced with permission of Reed Elsevier (UK) Limited, trading as LexisNexis.
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