Following on from my last article on the MSA, it is time for an update as the independent review into the legislation and a Court of Appeal authority were both published this week. Things are a little bleak and there are things you should know. Ben Knight brings you up to date.
Those who regularly read updates from Central Chambers will perhaps know that I have something of a bee in my bonnet about modern slavery and the prosecution of victims who are made to commit offences. I am also horrified by how few police, lawyers, and judges understand the effect of the legislation upon criminal prosecutions.
This week has seen two important publications on the MSA and both yield important lessons for prosecution and defence lawyers. Practitioners really cannot afford not to know this material anymore.
I do not propose to rehearse what I have already written about the statutory regime as it is contained in my previous article. It’s a long read but you will find it worthwhile if you ever deal with county lines cases or cultivation cases.
The Independent Review of the Modern Slavery Act 2015
This document was established to look into the operations and effectiveness of the Act and to suggest potential improvements. In particular, the authors focused on four topics: transparency in supply chains, the role of the Independent Anti-Slavery Commissioner, the Act’s legal application, and the safeguarding of child victims of Modern Slavery. For the purposes of this article, I am only going to look at the Act’s legal application in the CJS.
It is convenient to separate the new observations into two parts, as I do below.
The decision to prosecute
It is well-established in international and domestic law that states must not prosecute those who are the victims of people trafficking or modern slavery where it has a direct causal link to the guilty acts/offences that they go on to commit. The protection of the victims is more important than the punishment of their crimes, in many cases.
Since the 2015 Act was passed, the number of potential victims identified in the UK each year has doubled from 3266 in 2015 to nearly 7000 last year. That number is now made of around 45% children. That is attributed almost entirely to the rise in the “county-lines” model of drug trafficking.
Moreover, UK nationals now represent by far the highest proportion of potential victims identified at almost a quarter of all those recorded, while in 2015 they were only the fifth most represented nationality behind Albania, Vietnam, Nigeria and Romania. This is again due to the rising number of children identified as being involved in county lines, most of whom are UK nationals.
In that same time, however, there has been an increase in the number of children and young people prosecuted for their roles at the lowest rung of county lines operations and, as troubling, a tiny number of convictions for modern slavery offences and a pitiful number of Slavery and Trafficking Prevention Orders have even been applied for. Don’t take my word for it, however. These observations accord with the findings of Rt Hon Frank Field MP, Baroness Elizabeth Butler-Sloss, and Maria Miller MP in their Home Office-commissioned report.
It is against this backdrop that the recent Court of Appeal decisions in this area must be seen.
In the recent case of O & N v R. (Rev 1)  EWCA Crim 752 (09 May 2019), the Court of Appeal considered two appeals from Woolwich Crown Court and Derby Crown Court. In each case, the court was being asked to overturn convictions where the public interest in prosecuting was fundamentally undermined.
The first of the appellants, N, had even raised the modern slavery defence but, as is perfectly clear from the judgement, he was represented poorly at the Crown Court and prosecuted just as poorly. It was not until the appeal stage that any real consideration was given as to the law. At that stage, ably represented by counsel and prosecuted by an advocate who departed from the CPS’s written response to the appeal notice, the Court was able to reverse the conviction of a man who had been a victim of slavery. But not before he had spent considerable time in prison and had been effectively “obliged” to plead guilty to something for which he had a complete defence.
The CPS still had not understood the law and took a blinkered and inappropriate approach to the account provided by the defendant. They have done in almost every such case I have defended. They continue to do so. They contradict the National Crime Agency (the Competent Authority for the purposes of the NRM). Indeed, often the NCA is not passed anything like the information it requires to make a proper assessment of the potential victim in question.
I cannot stress how typical an example of the failings of the CJS the case on N actually is. And I would hope that you would take the time, right now, to read paragraphs 1-35 of that decision. It will be familiar to many practitioners and will also show the angle that you and your counsel of choice should take to defending such matters.
You need to have this in mind from the very earliest stage. The police station, ideally. I say that because, the earlier the defence is raised, the greater chance that the NRM system will eventually kick-in.
Very few judges seem to have their heads around the full breadth of modern slavery and I have personally experienced judges chuckling at the idea that a young, white man from one area of England was a modern slave “just because” he was recruited outside his children’s home and made to sell drugs. He could, after all, have left the cuckooed house where he had been placed. He wasn’t locked in and had been given a mobile phone. That observation demonstrates perfect ignorance of the law and was echoed by more than one prosecutor.
In case you are wondering about the appellant “O”, she was less successful in the Court of Appeal in part because she did not raise her trafficking status before or even at trial. It was after trial that she made her disclosures about being a victim of trafficking. The Home Office, acting as Competent Authority, concluded at both test stages that O was the victim of trafficking. But that decision was lacking detail and analysis. The evidence of O’s offending at trial was not before the Competent Authority either.
On appeal, the Court of Appeal expressed a little scepticism about her status as a victim but “gave her the benefit of the doubt” over it. O failed on appeal because of the total lack of compulsion to commit the offences charged. She was complicit in trafficking others and was acting as a manager of other prostitutes with a considerable lack of oversight or control being placed upon her.
The statutory defence
By now, many of you will have read MK v R  EWCA Crim 667 and will appreciate the operation of the statutory defence created by the Act. In short, once raised, it is for the prosecution to defeat an assertion of modern slavery or human trafficking to the criminal standard of proof.
The Report notes the scepticism (maybe cynicism?) on the part of the police and CPS – arguably judges too – as to the statutory defence of modern slavery.
The truth of the matter is, as I wrote previously on this website, the prosecution of “low-hanging fruit” is better for statistics. It has the appearance of “doing something” about drug dealing. Actually, there is an almost endless supply of vulnerable young people available to those who run county lines organised crime groups.
What the authorities fail to observe is that to pick off of these young and/or vulnerable people is adopting the vile mentality that is at the core of trafficking and slavery. The commoditisation of people. Dehumanise them and then they just become “things”. Then it’s “ok” for journalists and social media keyboard-warriors to talk about “locking them up” and calling them “scrotes” and “scum”.
Whilst that is going on, the real villains are relaxing, safe in the knowledge that their human chattels will not name names, speak-up, and disrupt their gangs because they will not be listened to. They will simply be locked-up – increasingly on the VPU of prisons where they are old enough. Anecdotally, this is being done to break these young people yet further by making the lowest of the low in the prisoner hierarchy. This despite the obvious risk in which that places them.
The Report’s authors dismissed the scepticism in this way:
“While some stakeholders reported concerns that the statutory defence could be used as a ‘loophole’ for defendants and that disproving a claim of slavery and trafficking beyond reasonable doubt could be challenging, the Review concluded that the current legislation, case-law and the system of trial by jury achieves the right balance. We recommend that law enforcement and prosecutors should conduct thorough investigations to gather sufficient evidence to demonstrate whether an individual using the statutory defence is a victim.”
Of course, this is pretty rare and there is not often any investigation after charge pursuant to the CPIA, let alone this “new” legislation.
The Review also found misunderstanding about the interaction between the criminal justice process and National Referral Mechanism (NRM) process in respect of identifying victims of modern slavery.
In particular, the Report notes that:
“The NRM process will provide a decision, on the balance of probabilities, advising whether an individual has been a victim of trafficking or modern slavery. The NRM decision has no official status in a criminal court, which makes decisions based on the criminal standard of proof ‘beyond reasonable doubt’. We recommend clarifying the relationship between the NRM and criminal justice processes via guidance.”
That is to say, the mere fact of a negative NRM decision does not in any sense preclude the leaving of the defence to a jury. It is a matter for them. I respectfully submit that there can be no s.10 admissions of negative NRM findings. That is because there is usually no investigation behind that decision. Get the decision-maker to court as a witness and don’t let the Crown off the hook.
The Report on the lawyers failing the victims, their clients
This is rather damning, I’m afraid.
“For all potential victims of modern slavery, it is essential that defence lawyers are aware of the statutory defence and advise their clients to disclose at the earliest possible stage if they are a victim of trafficking or modern slavery. This is even more important in the cases of children. Where it has not already been raised by the defence and there are indicators that modern slavery might be a factor, training and guidance from the Judicial College ought to prompt Judges and Magistrates to question at the pre-trial hearing whether the statutory defence is applicable. The statutory defence should be considered by Judges and Magistrates at the pre-trial hearing in all cases relating to children.”
The recommendation in that paragraph and the subsequent one is for training for everybody! It is, of course, unlikely that this will be free training for any defence lawyers. It never seems to be, does it?
Instead, there will be training for the judges, magistrates, police, and others. You will need to get your own head around it or attend a course at chambers, such as ours.
You may well think it implausible to imagine that judges and magistrates will be watching out for possible defences for defendants before them. It must not be left to them. Raise it in police stations. Raise it on BCM forms. Raise it when instructing counsel. Make sure that they understand it because counsel in 2019 have no excuse not to understand it.
Make sure that, before the recommendation within the report, for “consistent and clear government guidance” on the use of the defence. If successive governments move away from the lofty ambitions of the 2015 Act, it will only be because it has not been used properly. We are all responsible for making sure that it is.
If you are interested in attending a CPD talk on the workings of this legislation from a defence lawyer’s point-of-view, please drop me an email to express and interest and I will ensure that you are invited when it takes place. Please contact firstname.lastname@example.org
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