s45: Relevant Authorities
Section 45 of the Act introduces a statutory defence for victims of trafficking or slavery forced to commit a criminal offence. The current dominance of County Lines-type exploitation of children and vulnerable adults in the discourse of criminal exploitation believes that the fact that the defence is relevant for many crime types by potential victims outside modern slavery and human trafficking offences, awareness is required in Crown Court and magistrates’ courts casework as well as advocates at court.
This is a rapidly developing area of knowledge and practice. Unfortunately, organised criminal groups and networks are constantly adapting and refining their means of exploiting the vulnerable, meaning that the defence also is constantly being tested through our Criminal Justice System.
The Legal Framework:
Click on each to view item;
The Defence:
The Statutory Defence came into force on July 31st 2015.
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 they were compelled to do it.
(c) the compulsion is attributable to slavery or relevant exploitation.
(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 to 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.
(b) it is a direct consequence of a person being, or having been, a victim of slavery or a victim of relevant exploitation.
4) A person is not guilty of an offence if –
(a) the person is under the age of 18 when the person does the act which constitutes the offence.
(b) the person does that act as a direct consequence of the person being, or having been, a victim of slavery or a victim of relevant exploitation.
(c) a reasonable person in the same situation and having the person's relevant characteristics would do that act.
5) For the purposes of this section, "relevant characteristics" mean 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.
6) In this section references to an act include an omission.
7) Subsections (1) and (4) do not apply to an offence listed in Schedule 4 (which includes serious sexual or violent offences).
Prosecution 4-Stage Test:
In addition to applying the Full Code Test in the Code for Crown Prosecutors, prosecutors should adopt the following 4-stage test:
Stage 1: Is there reason to believe the person is a victim of trafficking/slavery?
Indicators of trafficking and slavery:
Prosecutors should be alert to particular circumstances or situations where someone suspected of committing a criminal offence might also be a victim of trafficking or slavery.
The duty to make proper inquiries and to refer through the National Referral Mechanism (NRM):
In considering whether a suspect might be a victim of trafficking or slavery, as required in the first stage of the assessment, prosecutors should have regard to their duty to make proper inquiries in criminal prosecutions involving individuals who may be victims of trafficking or slavery.
The inquiries should be made by:
Advising the law enforcement agency who investigated the original offence that it must investigate the suspect's trafficking/slavery situation, if it has not already done so.
Advising the law enforcement agency to consider referring the suspect through the NRM for victim identification, if this has not already been done.
All law enforcement officers can refer potential victims of trafficking/slavery to the NRM. An NRM referral should always be made unless the law enforcement agency is in possession of clear and sufficient evidence to prove that the suspect is not a victim of trafficking/slavery.
Adults must consent to the referral to the NRM. If an adult suspect does not consent to their referral, the charging decision should be made on whatever other information might be available, without the benefit of an NRM decision on their victim status.
These steps must be carried out even where there is an indication of a guilty plea by the suspect's legal representative.
There will be cases where a threshold test charging decision needs to be made before the competent authority decision is known. Guidance on the application of the threshold test can be found in the 8th edition of the Code for Crown Prosecutors.
Referral to the NRM and NRM decisions:
Following the NRM referral, the Single Competent Authority (SCA) will first make a ‘reasonable grounds’ decision. A positive reasonable grounds decision is made when there are reasonable grounds to believe the individual is a potential victim of human trafficking/slavery. This means "I suspect, but cannot prove" that the individual is a victim.
The SCA aims to make this decision within 5 working days whenever possible. The potential trafficking/slavery victim will then be eligible for government funded support during a recovery and reflection period for a minimum of 45 days.
During this period, the SCA gathers further information about the victim. This additional information is used to make a conclusive grounds decision on whether the referred person is a victim of human trafficking/slavery.
A conclusive grounds decision is whether, on the balance of probabilities, it is more likely than not that the individual is a victim of human trafficking/slavery.
Prosecutors should:
Take into account an NRM decision.
Consider a conclusive grounds decision to be of more weight than a reasonable grounds decision.
Make inquiries, where there is a reasonable grounds decision only, about when a conclusive decision is likely to be made.
Examine the cogency of the evidence on which the Competent Authority (CA) relied.
The decision of the CA as to whether a person had been trafficked for the purposes of exploitation is not binding on the Crown Court or the CPS. Unless there was evidence to contradict it or significant evidence that had not been considered, it is likely that the criminal courts will abide by the decision; see R v L(C) [2014] 1 All ER 113 at 28 and R v VSJ [2017] 1 WLR 3153 at sect; 20(viii). The decision should be scrutinised by the prosecutor to assess the extent to which the evidence has been analysed, weighed and tested by the CA and to assess the quality of any expert evidence relied upon.
Stage 2: Is there clear evidence of duress?
There is no definitive statement of the scope of the common law defence of duress. However, a distillation of various authorities has led to the following definition being widely accepted:
“A threat of physical harm to the person (including, possibly, of imprisonment) made, which was of such gravity that it might well have caused a sober person of reasonable firmness sharing the defendant’s characteristics and placed in the same situation to act in the same way as the defendant acted.”
All of the authorities recognising duress as a defence have involved threats of death or grievous bodily harm.
The threat may relate to the defendant or a member of his immediate family or alternatively to “a person for whose safety the defendant would reasonably regard himself as responsible”: R v Wright [2000] Crim .L.R. 510, CA.
A defendant cannot rely on the defence of duress if he has voluntarily, by association with others, exposed himself to the risk of such duress (e.g. by joining a criminal organisation or gang): R v Sharp [1987] QB 853.
Stage 3: Is there clear evidence of a Section 45 defence?
Burden and Standard of Proof:
Section 45 places an evidential burden upon the Defendant. Therefore, in order to avail himself of the defence, the Defendant will only have to adduce sufficient evidence to ‘pass the judge’ so as to allow the defence to be considered by the jury.
If a Defendant succeeds in discharging the evidential burden, then the legal burden falls upon the prosecution to disprove the defence beyond reasonable doubt. Where the Defendant puts age in issue, it is for the prosecution to prove beyond reasonable doubt that the defendant is over 18.
The safeguard against "unscrupulous" use of the defence lies within the application of the objective tests set out in Section 45(1)(d) (for persons over 18) and Section 45(4)(c); for persons under 18, see MK v R and Gega v R [2018] EWCA Crim 667.
When deciding whether to bring or continue a prosecution, careful consideration should be given to the availability of the Section 45 defence and whether there is sufficient evidence to disprove the defence beyond reasonable doubt.
No charges should be brought if there is sufficient evidence that suggests that:
The suspect is a genuine victim of trafficking or slavery.
The other conditions in Section 45 are met (relevant to whether the suspect is an adult or child).
The offence is not an excluded offence under Schedule 4 to the Act.
In R v DS [2020] EWCA Crim 285 the Court of Appeal held that:
The prosecutor must take a Conclusive Grounds decision into account in deciding whether a defendant is a victim of trafficking and whether the offending has a very close nexus with the exploitation.
The prosecutor is entitled to challenge that Conclusive Grounds decision before the jury in seeking to rebut the statutory defence and to invite the jury to come to a different decision.
If there is a sound evidential basis on which to do this, it will not be an abuse of process to try. If there is not, it will still not be an abuse of process, but the judge will consider any submission that there is no case to answer.
Whether or not a defendant is in fact a victim of trafficking is a matter for the jury. This is an issue which they will have to consider on all properly admissible evidence, which may include the evidence of the defendant or, if he does not give evidence, may, if appropriate, include an adverse inference.
Stage 4: Is it in the public interest to prosecute?
The Public Interest and Compulsion:
‘Compulsion’ includes all the means of trafficking defined by the United Nations Protocol on Trafficking (The United Nations Convention against Transnational Organised Crime (2000) supplemented by the Protocol to Prevent, Suppress and Punish Trafficking in Persons): threats, use of force, fraud and deception, inducement, abuse of power or of a position of vulnerability, or use of debt bondage. It does not require physical force or constraint.
For a child to be a victim of trafficking, the means of trafficking are irrelevant. Where a child is recruited, transported, transferred, harboured or received for the purpose of exploitation, they are a victim of trafficking.
Compulsion is irrelevant insofar as a child’s status as is a victim of trafficking is concerned. However, compulsion will be a relevant consideration when considering whether the public interest in prosecuting a child is satisfied, (see Code for Crown Prosecutors, paragraph 4.14 b. for further guidance).
The means of trafficking/slavery (i.e. the level of compulsion) may not be sufficient to give rise to defences of duress or under Section 45, but will be relevant when considering the public interest test.
In considering whether a trafficking/slavery victim has been compelled to commit a crime, Prosecutors should consider whether a suspect’s criminality or culpability has been effectively extinguished or diminished to a point where it is not in the public interest to prosecute.
A suspect’s criminality or culpability should be considered in light of the seriousness of the offence. The more serious the offence, the greater the dominant force needed to reduce the criminality or culpability to the point where it is not in the public interest to prosecute; see R v VSJ & Ors [2017] EWCA Crim 36, see also R v GS [2018] EWCA Crim 1824.
Early Guilty Plea:
Where there is an indication of an early guilty plea, a full investigation has not been carried out, and the circumstances are such that there is suspicion of trafficking/slavery, at the first hearing Prosecutors should:
In view of the timescales prescribed by the Transforming Summary Justice (TSJ) and the Better Case Management (BCM) initiatives, the Court may be unwilling to grant an adjournment.
Furthermore, despite being put on notice of the issue, the defence may still insist on indicating or entering an early guilty plea.
In these circumstances, the Prosecutor will have discharged their obligations to the defence and to the Court and the case should then proceed to sentence.
Post-charge Trafficking/Slavery Evidence:
In cases where a decision has already been taken to charge and prosecute a suspect but further credible evidence comes to light, or the status of a suspect as a possible victim of trafficking/slavery is raised post-conviction (for example in mitigation or through a pre-sentence report), then Prosecutors should seek an adjournment and ensure that the suspect is referred through the NRM and that the steps outlined in Stage 4 above are carried out.
Practice Discussions:
This is a rapidly developing area of law and practice. The dynamics of trafficking and modern slavery in general, and forced criminality in particular, are complex and challenging for investigators, prosecutors and defence lawyers. Below are links to commentaries and blogs by a number of practitioners working in this area. If you have an article or blog or would like to suggest one for inclusion on this page, please get in touch.
To view each article, click on the author.
|
The Golden Thread Survives Under the Modern Slavery Act (April 2018) |
|
|---|---|
|
R V MK: Clarifying the Defense in Section 45 of the Modern Slavery Act. (7 September 2018) |
|
|
Prosecuting Victims of Trafficking in the UK: The Difference between Law and Practice. (February 2019) |
|
|
Essential but Underused: The Modern Slavery Act and Child Criminal Exploitation. (February 2019) |
|
|
Section 45: Loophole or Lifeline? (October 2019) |
|
|
“Mind the Gap”: S.45 Modern Slavery Act and Abuse of Process – Where are we now? (1st December 2020) |
|
|
Modern Slavery, the Section 45 Defence and The National Referral Mechanism: Clarity at Last. (December 2020) |