“County-lines” cases and stopping the prosecution of low-hanging fruit

When it comes to so-called “county-lines” cases, advocates within the Criminal Justice System must not allow the safeguards in our law to be overlooked simply because others in the system are overlooking them. There are ways to defend the vulnerable when they are picked off like low-hanging fruit, writes Benjamin Knight.

As I write this article, I see news that the number of children charged with drug offences has increased for the first time in a decade (up 2% on 2018) and police claim that over 10,000 children are involved in so-called “county-lines” drug operations nationally.

That news is followed by the news that a six-year-old has been used by groomers in a county-lines case in Teesside. The child was one of a group recruited from a school where disabled children and one temporarily excluded child were also recruited.

These kids were under the age of criminal responsibility and so must be treated as victims. But sadly, were they over that age, the odds appear to be that they would be charged. That cannot be right. It certainly doesn’t lead to the destruction of gangs. It simply destroys the lives of the vulnerable people whose lives were already damaged.

It is staggering that the Modern Slavery Act 2015 (‘the Act’) is not better known by lawyers in the Criminal Justice System. When a defence lawyer in particular hears the term “county-lines” in a suspect interview briefing or reads it on an MG5, alarm bells ought to be ringing as the system may already have failed.

County-lines drug operations are something of a trend in the world of organised crime these days. The press like the terms as it sounds a bit like something from an American television show. It’s all a bit reminiscent of when Tony Blair announced the now-defunct Serious Organised Crime Agency (SOCA) and called it “the British FBI”.

Put simply, a “county-lines” operation is when a drug trafficker in Location A has his lieutenants recruit a group of vulnerable people in Location A or B and then moves them into a user’s home (“cuckooing”) in Location C and uses that a base for dealing in that location.

Location A is usually somewhere urban. Location B can be either urban or otherwise. Location C is usually suburbs, market towns, and coastal areas with poor economies.

The grooming process in drug trafficking

Rather disappointingly, by April 2018, the CPS had only managed to secure a couple of convictions against main players in county-lines cases. The DPP crowed about a “total sentence of 19 years imprisonment between them” – a sure sign that the sentences received separately were not impressive enough for media consumption.

Comparing 2010/2011 to 2017/2018, twice as many instances of suspected modern slavery have been NFA’d at the investigation stage. Impressive until you consider that the numbers are just 31 and 67 respectively.

Even if you imagine 67 to be impressive, consider how many cases of so-called “county-lines” are now passing through your local courts.

The reality is that those grooming vulnerable young men and boys (generally) to deal drugs know exactly where to shop for victims. In the past year, I have seen cases where the street dealers were originally picked up from social services premises, immigration reporting centres, foster carers, special schools, exclusion centres at mainstream schools, parks, and shopping centres.  Do you see why I call it “grooming”?

The vulnerabilities of these people are exploited just as by a sexual predator. Everything from pretending to be their friends, a person to listen to them, a provider of anything from a box of KFC through to clothes and shoes or, at the more blatant end, the use and threats of violence and helping them to become dependant on drugs.

Again, do you see why this is grooming? These recruiters are really no different from sexual predators in their modus operandi.

The Cuckooing process in drug trafficking

This process takes a drug user, often with other vulnerabilities either in the form of poverty, mental health problems, and/or drug debts and uses these vulnerabilities to move a small group of street dealers into their home with threats of violence and supply of drugs. There is often an “Artful Dodger-type” dealer or, in some cases, one of the lieutenants of the groomer in residence to ensure that everyone is working flat-out.

The victim’s home is used as a warehouse for drugs and a venue for supply. The victim’s home is also used to extract social security benefits with fraudulent claims until the address is metaphorically burnt out. A benefits tribunal judge recently told me that this is a growing problem and marks the extent to which these organisers of crime will broaden their exploitation.

What has this got to do with “slavery”?

One must understand that the definition of “slavery” for these purposes is not limited to the historic sense. The DPP’s office published a very useful guide to this under Alison Saunders, but it appears to have been removed since her departure.

The National Crime Agency has loose guidance on the subject on its own website, but it is not rich with examples.

The myth is that modern slavery means being locked in a location, deprived of any money, being forced to undertake work whilst being isolated from the outside world. This sure would amount to modern slavery but so might a person being forced to sell drugs at the of the street, receiving a small quantity of drugs themselves. They may have their own mobile telephone still. They may seem free to come and go for short periods of time. But they might still have been compelled to act as they have.

The distinction, it is submitted, between a drug dealer who is a modern slave and one who is not is the degree of vulnerability at the point of their engagement and throughout rather than whether they have an ostensible choice to get out of the operation. It is a question of degree.

The problem is that we have become so used to considering characteristics of modern slavery as mere mitigation in drug supply cases: Involved by threat/coercion falling short of duress. Not motivated by financial advantage. Youth or immaturity. Supplying drugs that he is addicted to himself. Limited or no influence on those above him in the chain. These are the trappings of a “Lesser Role” drug dealer. They are also, the hallmarks of just about every modern slavery victim involved in drug supply.

I am not positing that all vulnerable people involved in street supply of drugs are victims of modern slavery. I would pause here to argue that the gap between Lesser Role and Significant Role offenders ought to be wider and that sentencing judges ought to be reminded that financial reward is not an automatic trigger to classification as Significant Role in the sentencing guidelines, but I digress.

Is the law failing?

It may be becoming clear that the identification of victims of modern slavery and distinguishing them from low-level drug dealers of the conventional sort is tricky.

There is no definitive guidance on this. There is no transparency as to what has and has not been accepted as “passing the test”.

Prosecuting teenagers for selling drugs is never going to cause much of a scandal. The public antipathy towards young people involved in crime is disheartening, at best. The public glee at ASBOs, CrASBOs and the like – not to mention the right-wing press’s roars of approval at every headline-grabbing measure introduced by successive Home Secretaries – has shown that.

What is really hard is rehabilitating these victims. Protecting them when they are brave enough to point to those above them in the chain is hard. Preventing their recruitment in the first place through mental health service, better quality youth opportunities, and reducing child poverty all cost money.

Harder still is the proper and thorough investigation of the big guys in these operations. That involves the sorts of resources that the police and NCA do not have in this age of austerity. Some progress has been made into these “kingpins” and a few successful prosecutions have resulted, but they are drops in an ocean of county-lines operations, if the police/NCA/press are to be believed.

We are left, regrettably, with the target culture of the investigating and prosecuting authorities meaning that they settle for the low-hanging fruit. They are results. They are easy collars and nobody’s conscience is troubled because nobody forces them to re-examine the facts and refer the matter to the National Referral Mechanism to see whether they have a real criminal or a victim of modern slavery.

This is where defence lawyers need to step up. Just because a defendant is charged already, doesn’t mean that you simply have to accept that on their behalf. You can apply pressure in a number of ways and force those required to be vigilant for this exploitation to be true to that duty. More on this below. But don’t expect to get an easy ride. There is resistance everywhere.

What is the process?

The purpose of this article is not to explain the statutory process, but the short version is below, for ease of reference.

Where an investigating authority identifies a person suspected of a crime but where they might also be the victim of modern slavery (or human trafficking), they must investigate and refer the matter to the Competent Authority (CA). This is called the National Referral Mechanism (NRM) and the competent authority where immigration is not an issue is the UK Modern Slavery Human Trafficking Unit (UKMSHTU).

Within 5 day, the CA should reach a “reasonable grounds” decision. That is to say, the CA “suspects but cannot prove” that the person is a victim. There follows a period of 45 days “recovery and reflection” during the which the victim will also be eligible for government-funded support. 

During that 45-day period, the CA may interview the suspected victim and otherwise gather information about them. It is this additional information that allows the CA to reach the “conclusive grounds decision” as to whether, on the balance of probabilities, the person is the victim of modern slavery/human trafficking.

The decision by the CA is not binding upon the CPS or the Crown Court but it is persuasive. It must be taken into consideration by those entities. Most importantly, unless there is evidence to the contrary (or if there is evidence that had not been considered by the CA), the criminal courts are to abide by the decision. For details of the courts’ approach, see R v L(C) [2014] 1 All ER 113 at 28 and R v VSJ [2017] 1 WLR 3153 at sect; 20(viii).

Moreover, those of you who have been met with shrugs by prosecuting advocates when raising the issue, the CPS’s own guidance states that the prosecutor must scrutinise the decision and the evidence relied upon in reaching it. Of course, in practice, the evidence relied upon often does not reach the prosecutor.

Sadly, things are going wrong here. I have encountered three cases in the past three months where cases had reached the Crown Courts but no referral to the NRM had been made despite the circumstances clearly requiring it. I have been told by two judges and two prosecution counsel that it was “nothing to do with [them]” whether a referral was made.

That is not so. The CPS guidance (and judicial training) both require them to be alive to the issue and to “advise” the investigators to make a referral to the CA. After some argument, this action was taken in those cases. At the time of writing, one of three cases have been terminated by the CPS following an NRM decision. The other two are still awaiting a decision but are, at least, in the NRM process.

It should be noted that adult suspected victims must consent to the NRM process. Those under 18 years of age do not have to consent. In my experience of these cases, all have consented and cooperated.

It does not stop with the NRM

Before the prosecution can secure a conviction, there are other hurdles to clear. The first will be familiar to lawyers. The second, less so.

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  • Duress

The Prosecutor must consider if there is “clear evidence of duress”. To be frank, this is not likely to take many county-lines defendants very far because of the traditional authorities on this. Specifically, the trite law that 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 by, for example, joining a criminal gang/group. See R v Sharp [1987] QB 853 (cited over Hasan [2005] for level of criminality).

The next stage is the one that is being overlooked by many defence lawyers at present.

  • A defence under section 45 of the Modern Slavery Act 2015

Section 45 of the Modern Slavery Act 2015 created a defence for victims who commit certain offences when they are compelled to do so (in the case of adults) or when they commit them as a direct consequence of being a victim of slavery / exploitation, if a reasonable person, in the same situation with the same “relevant characteristics” would do the relevant act (in the case of children), on or after 31 July 2015.

It should be noted that “relevant characteristics” means age, sex, and any physical or mental illness or disability.

The burden of proof for section 45 is on the defendant and it is an evidential burden. In other words, the defendant will only have to adduce sufficient evidence to allow the defence to be left to the jury and, if he does so, there is then a legal burden on the prosecution to disprove the defence beyond reasonable doubt.

It is clear that there is scope for misuse of this defence. There are different tests and guidance for cases involving adult suspects and child suspects.

For adults, the objective test exists in the 2015 Act itself, at section 45(1)(d).

For children, the equivalent test is found in section 45(4)(c).

There is further guidance found in R v Gega [2018] EWCA Crim 667 but it is limited.

At paragraph 39:

“Moreover, the defence under section 45 is not established solely on the basis of evidence about that the defendant did and why the defendant did it. There is an objective element, set out in section 45(1)(d) (or section 45(4)(c) as applies to a child). The prosecution is likely to have less difficulty in establishing to the criminal standard that an adult offender in the defendant’s position had a realistic alternative to committing the offence, than the defendant would have in establishing on the balance of probabilities that a reasonable person in his or her position would have had no realistic alternative but to do what was done. That final element of the defence is the safeguard against a defendant being absolved from liability for what otherwise would be a serious criminal offence simply because the jury cannot be sure that his or her account of being exploited and victimised is untruthful. It also serves to safeguard against the twin dangers that (i) the defence under section 45 will be perceived as affording an easy means for an unscrupulous defendant to avoid liability by making up a story about being trafficked or enslaved, and (ii) the apparent ease with which defendants can set up a defence under the section will result in their controllers being encouraged, rather than discouraged, to continue their exploitation, and through them commit offences.” – per The Lord Burnett of Maldon

In practice, therefore, the characteristics of the suspect in a county-lines case are going to be as important as the operation that has recruited him or her.

Abuse of process

Of course, before you get to the point of deploying section 45 in defence of your lay client, you should probably push as hard as you can to have the NRM utilised. Push for disclosure around it having been considered. Remind the court and prosecution of the fact that a defendant who is a victim of modern slavery ought not be arraigned until that issue has been addressed at the preliminary stages.

Thereafter, if the defence has been raised and you are post-Stage 2, it’s time for an application to stay for abuse of process. The only possible way or the Crown to respond to that is to have the CA consider the suspect.

If the case for the suspect being a victim of modern slavery is strong enough, write to the DPP.

Then and only then should the question be left to a jury.

Central Chambers has a criminal team with experience in all types of drug trafficking matters including those involving “county-lines” operations.

If you would like to instruct Benjamin Knight or another member of the criminal team, please do not hesitate in contacting the criminal clerks by clicking here or by calling on 0161 236 1133