The Modern Slavery Defence: Is It Worth Running?
Recently I defended in a trial which lasted for over four months. The case involved a county lines operation in which four defendants were charged with possessing Class A drugs with intent to supply (‘PWITS’) and trafficking offences under s. 2 of the Modern Slavery Act 2015.
Two of the six counts were the subject of successful submissions of no case to answer – these were the counts containing the trafficking offences. The remaining counts related to separate but adjacent periods time – there were two blocks of time each containing two allegations of PWITS (each specific to the particular drug, heroin and crack cocaine).
Our client maintained in his defence that the reason he had committed the PWITs offences was that he was the victim of modern slavery and as such relied on the Statutory defence under s. 45 of the Modern Slavery Act 2015 (‘the Act’). In essence his defence was that he had continually been the victim of modern slavery since having incurred a drug-related debt some years before the indictment period.
The jury acquitted our client of the PWITS offences relating to the first period of time but convicted him of those relating to the second. The purpose of this article is to reflect on some of the practical issues encountered during the trial and things to watch out for when running the s.45 Defence.
S. 45 Defence.
The Act provides different defences depending on the age of the Defendant at the time of the alleged offences. They are:
If Over 18:
S. 45 (1) to (3) can be summarised as follows:
For someone 18 or over the defence applies where the defendant;
A) Does the act constituting the offence(s) because he is compelled to by another person or by the defendant’s circumstances AND
B) The Compulsion is attributable to slavery and/or to relevant exploitation or is a direct consequence of a person being, or having been, a victim of slavery and/or of relevant exploitation AND
A reasonable person in the same situation as the defendant and having the defendant’s relevant characteristics would have had no realistic alternative to doing the act.
If Under 18:
S. 45(4) can be summarised as follows:
A) The defendant does the act constituting the offence(s) as a direct consequence of being, or having been, the victim of slavery and/or relevant exploitation AND
B) A reasonable person in the same situation as the defendant and sharing the Defendant’s relevant characteristics would do that act.
Definitions:
S. 45(5) outlines:
‘relevant characteristics’ means 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.
S. 45(6) states that:
References to an act include an omission.
In our case what became particularly relevant were the terms ‘victim of slavery’, ‘relevant exploitation’ and ‘relevant characteristics’.
Victim of Slavery
Although not defined in the Act, ‘slavery’ in the context of our case meant ‘the use of threat, force or deception designed to induce a person to deal drugs’. This was a definition tailored to the particular facts of the case. However if the position is not clear, it may be necessary to consider further definitions found in Article 4 ECHR, existing case law and international conventions.
It is worth noting at this stage that when assessing a client’s defence in such circumstances the ‘duress trap’ should be avoided– wrongly applying the principles pertaining to duress to a modern slavery situation. Although there are similarities with duress, a defence under the Act should not be ruled out just because it would fail the duress test. Having said that there are some principles relevant to duress to be considered (see below).
Relevant Exploitation
Under s.45 (as set out above) the Act defines ‘relevant exploitation’ as exploitation (within the meaning of section 3) that is attributable to the exploited person being, or having been, a victim of human trafficking.
In the context of our case ‘relevant exploitation’ meant ‘the movement of a person to different locations for the purpose of drug dealing and a) that person having been chosen for that purpose on the basis that they were a child (i.e. under 18 years of age) and/or b) that person being subjected to force, threats or deception designed to induce him to deal drugs’.
It is also worth noting that the consent of the Defendant to any of the acts alleged to constitute slavery, or his travel, does not of itself preclude the jury finding that he is being forced to perform the acts and/or being exploited.
Relevant Characteristics
The definition within s45 states ‘relevant characteristics’ means age, sex and any physical or mental illness or disability.
This is an area which needs careful examination as the categories of ‘relevant characteristics’ is narrowly defined in s. 45 and it will almost certainly be necessary to consider expert evidence to support a physical or mental illness or disability.
The ‘relevant characteristics’ identified in s. 45(5) mirror the common-law position in relation to duress and Bowen [1996] 2 Cr App R 157. However an issue may arise as to whether a ‘reasonable person in the same situation’ as the defendant should be assessed in the context of the defendant’s experience of slavery or having been a victim of human trafficking.
In addition, reference to s. 1(3) and 1(4) of the Act can also offer assistance when looking at ‘relevant characteristics’. This says that:
1(3) In determining whether a person is being held in slavery or servitude or required to perform forced or compulsory labour, regard may be had to all the circumstances.
1(4) For example, regard may be had—
(a) to any of the person’s personal circumstances (such as the person being a child, the person’s family relationships, and any mental or physical illness) which may make the person more vulnerable than other persons;
(b) to any work or services provided by the person, including work or services provided in circumstances which constitute exploitation within section 3(3) to (6).
So for example in our case the Judge permitted as ‘relevant characteristics’, the Defendant’s family situation in Nigeria, him having been a victim of human trafficking (an admission made by the Crown) and his age which may have made him more vulnerable than others. This additional factor of our client’s family situation in Nigeria was critical in my view in successfully running the s. 45 defence.
Procedure
For the s. 45 defence to apply, the first requirement is that the person has done ‘the act which constitutes the offence’. If the defence is raised on the evidence, it is for the prosecution to prove that it does not apply. In MK [2018] EWCA Crim 667, [2019] QB 86 the Court of Appeal stated (at [45]):
[Section 45] does not implicitly require the defendant to bear the legal or persuasive burden of proof of any element of the defence. The burden on a defendant is evidential. It is for the defendant to raise evidence of each of those elements and for the prosecution to disprove one or more of them to the criminal standard in the usual way.
Thus in practical terms the Crown has to disprove the defence to the criminal standard. However as can be seen from s. 45 the defence has two (or three) limbs defending on whether the defendant was an adult or under eighteen at the time of the alleged offence.
This means that in weighing up the evidence in support of the s. 45 defence it is critical to give careful attention to each limb of the defence and to consider whether there is evidence supportive of the defendant’s account.
It is worth noting at this point that one consideration will be whether there has been a referral to the National Referral Mechanism (the ‘NRM’). If there has not been such a referral it could be important to seek such a referral as the findings can be persuasive even if the prosecution do not discontinue the case on the grounds of public interest (the process by which this happens is too long for this article).
However, a referral needs to be made by a ‘first responder’ and defence lawyers are not within this specified group. In our case we sought a referral by way of a request in the Defence Statement which the Judge then encouraged the prosecution to proceed with. The findings of the NRM as regards our client formed the basis of a helpful section 10 admission about prior exploitation. Without the NRM decision the Crown would not have been willing to commit to this agreed fact.
A route to verdict in the case of an adult might therefore look like this:
• Question 1
• Has the prosecution made you sure that the Defendant was not compelled to commit the offence(s) as he told you was the case?
• If the prosecution has made you sure that he was not compelled to do so, return a verdict of ‘Guilty’ and disregard the following questions.
• Question 2
• Has the prosecution made you sure that the compulsion was not attributable to slavery and/or to relevant exploitation or was not as a direct consequence of him being or having been a victim of exploitation and/or slavery as he told you was the case?
• If you are sure that his compulsion was not attributable to, or not as a direct consequence of him being or having been a victim of exploitation and/or slavery then your verdict would be ‘guilty’.
• If you think that his compulsion was or may have been attributable to, or as a direct consequence of him being or having been a victim of exploitation and/or slavery go on to consider question 3.
• Question 3
• Has the prosecution made you sure that a reasonable person in the same situation as the defendant and having the defendant’s relevant characteristics would have had no realistic alternative to doing the act?
• If the prosecution has made you sure that a reasonable person in the same situation as the defendant and having the defendant’s relevant characteristics would have had a realistic alternative, return a verdict of ‘Guilty’
• If you are not sure, then your verdict will be ‘Not Guilty’.
For those under eighteen the route to verdict might look like this:
• Question 1
• Has the prosecution made you sure that the Defendant did not commit the offence(s) as a direct consequence of being or having been a victim of slavery and/or relevant exploitation as he told you was the case?
• If you are sure that the Defendant did not commit the offence(s) as a direct consequence of having been a victim of slavery and/or relevant exploitation then your verdict would be ‘Guilty’.
• If you think that the Defendant did or may have committed the offences as a direct consequence of being or having been a victim of slavery and/or relevant exploitation as he told you, go on to consider the next question
• Question 2
• Has the prosecution made you sure that a reasonable person in the same situation as the Defendant and sharing the Defendant’s relevant characteristics would not have committed the offences as he admits he did?
• If the prosecution has made you sure that a reasonable person in the same situation as the Defendant and sharing the Defendant’s relevant characteristics would not have committed the offence(s), then your verdict would be ‘Guilty’.
• If the prosecution has not made you sure, then your verdict will be ‘Not Guilty’.
This perhaps exemplifies the greatest pitfall in running the s. 45 defence, namely, that a finding of guilt by the jury could either be as a result of the prosecution disproving the compulsion/direct consequence element or as a result of the jury finding against the defendant in respect of the reasonable person test. The two different positions reflect different levels of culpability and it will therefore be important during the sentencing exercise to make representations where possible about the jury’s decision so as to distinguish between a complete failure of the defence, as opposed to a failure of the reasonable person test.
This perhaps demonstrates the necessity of looking at any potential s.45 defence from all angles before your client commits to such a course of action.
Adrian Rohard is a partner of Tuckers Kent Branch and regularly appears in the crown court as a Solicitor-Advocate.
