R v Maria Kwiatkowska: Court of Appeal examines modern slavery defence and trafficking victim convictions

The Court of Appeal has delivered an important judgement examining the boundaries of modern slavery protections where trafficking victims commit repeated criminal offences. In Kwiatkowska, Dame Julia Macur DBE, sitting with Mr Justice Lavender and Sir Nigel Davis, allowed appeals against early convictions whilst dismissing challenges to later prosecutions, establishing crucial guidance on when jury determination becomes appropriate despite ongoing exploitation.

Maria Kwiatkowska, a Polish national, pleaded guilty to five sets of burglary convictions between 2011 and 2020. All offences involved distraction burglaries targeting vulnerable elderly persons in care homes, where she posed as a social or care worker before stealing jewellery and cash. Later sentences attracted the mandatory minimum term under section 111 of the Powers of Criminal Courts (Sentencing) Act 2000.

Kwiatkowska's background revealed extensive childhood abuse within her extended family and Roma community. Psychological assessments identified impaired intellectual functioning, complex PTSD, personality disorder and learning disabilities, with her IQ falling well below average. Experts noted she had "likely learned not to fight coercive control".

She asserted that all offences were committed under compulsion from a 'Gypsy King' based in Poland who controlled her through threats, violence and sexual exploitation. The Single Competent Authority issued two Positive Conclusive Grounds Decisions in 2016 and 2022, confirming her trafficking victim status. The First Tier Tribunal allowed her deportation appeal in 2023, finding her exploitation account credible.

The appeals advanced two grounds: that prosecution constituted an abuse of process given her modern slavery victim status and the Crown Prosecution Service's failure to apply relevant guidance; and that she received inadequate advice regarding the statutory defence under section 45 of the Modern Slavery Act 2015.

Regarding the 2011 conviction, the respondent conceded that had all currently known facts been available, prosecution would have been highly unlikely. The Court agreed that the public interest did not require prosecution of a 15-year-old with such a background, finding the proceedings constituted an abuse of process. The conviction was quashed.

For the 2015 convictions, information available should have alerted authorities to Kwiatkowska's trafficking status. The respondent accepted that proper consideration would probably have resulted in no prosecution. The Court found this concession was not "clearly flawed" and allowed these appeals.

The Court adopted a markedly different approach to the 2017, 2019 and 2020 convictions. By this stage, Kwiatkowska's pattern of repeated serious offending against vulnerable victims had become established. The Court rejected submissions that authorities' alleged failure to disrupt her trafficking should favour the defence, noting her own refusal to substantiate complaints against family members.

The Court articulated an important principle: whilst all trafficking victims have "exceptional" backgrounds warranting protection, there comes a point where a "line must be drawn in the sand". Continued exploitation by traffickers who recognised that circumstances might prevent prosecution reinforced the public interest in allowing jury determination of whether the section 45 defence applied.

On legal advice, the Court found that whilst 2017 advice addressed duress rather than specifically section 45, the differences are modest and compulsion had been discussed. Crucially, Kwiatkowska's evidence indicated she pleaded guilty because she "needed the safety" of custody, not through lack of knowledge of potential defences. In 2019 and 2020, detailed section 45 advice was provided, which she elected not to pursue.

The judgement provides essential guidance on when repeated offending by trafficking victims crosses the threshold where jury determination becomes appropriate, notwithstanding perpetual exploitation and control.

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