Legal update: What is the state of the Modern Slavery Act 2015 following the recent Court of Appeal decisions?

Benjamin Ramsey

On 3rd February 2022, the Court of Appeal in R v AAD, AAH and AAI [2022] EWCA Crim 106 sought to redress the imbalances within the law of Modern Slavery and Human Trafficking and provide guidance on how victims of trafficking, who are confirmed to be such victims after conviction, can appeal against their convictions.

Royal Courts of Justice

Members of Central Chambers have covered the law in this area in extensive and thought-provoking articles which can be found here and here. I don’t propose to recite the law here. This article intends to consider the recent legal updates and postulate how the updated guidance will be used.

Briefly, Section 45 of The Modern Slavery Act 2015 provides a defence to an individual who pleads that they have committed a criminal offence because they were compelled to do it, (in the case of adults) and that compulsion is attributable to slavery or relevant exploitation.

In the case of children, the defence is available when they commit a criminal offence 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.

The evidential burden of proof for this rests on the defendant. Therefore, should the defendant provide sufficient evidence to allow for such a defence to be left to the jury, the burden then shifts to the prosecution to disprove the defence beyond reasonable doubt. It must be noted that section 45 is not available to offences listed in Schedule 4 of the same Act.

Until recently, a decision by the Single Competent Authority – the decision-maker of the National Referral Mechanism (NRM) – that an individual was a victim of trafficking or modern slavery was enough for the defendant to discharge the evidential burden. This is called a conclusive grounds decision. The expected practice would be that, if the investigating authority (this would usually be the police, Local Authority, or Youth Offending Team) identifies a person suspected of a crime but also suspects that same person of being a victim of human trafficking, they must refer the matter the Single Competent Authority. Their decision, while not binding on the CPS or a court, is persuasive and admissible as expert evidence in any subsequent trial of that individual.

However, the case of Brecani [2021] EWCA Crim 731 overturned DDP v M [2020] EWHC 3422 (Admin). The Court of Appeal found that Conclusive Grounds Decisions are no longer admissible as “expert evidence”. This was based upon two arguments:

  • Caseworkers in the Single Competent Authority cannot properly be considered “experts” to the required standard; and
  • Conclusive Grounds Decisions are not issued per CrimPR r19.

Furthermore, it was found that the relevant facts as to whether any defendant is a victim of trafficking are solely and “unquestionably” matters for the jury [para 40].

Finally, the Court ordered that any cases which had been stayed on the ground of an abuse of process due to the failure by the CPS to utilise the NRM be restarted.

For practitioners, in light of the the above, it is crucial to be able to distinguish from Brecani. The most obvious way to do this is to instruct an expert who has expertise in the specific area of slavery and/or human trafficking. They would then be able to give evidence relevant to the questions posed from a section 45 defence. This would also deal with any potential issues in complying with CrimPR  r19. The only stumbling block would be that expert’s opinions are only admissible to “furnish the Court with scientific information which is likely to be outside the experience and knowledge of a judge or jury”.[ R v Turner [1975] QB 834, LJ Lawton at 44].

That brings us back to the most recent decision: R v AAD, AAH and AAI [2022] EWCA Crim 106. This case upheld the decision in Brecani, but it did provide further guidance on how victims of trafficking may appeal against criminal convictions. Moreover, the Court made it clear that abuse of process arguments are still a viable option.  While the CPS are not bound by the Positive Conclusive Grounds Decision and can still prosecute a victim of trafficking, they must consider the CPS guidance and have a rational basis for departing from the positive decision [para 120]. The Court went on to find that “the prosecution of victims… may in certain circumstances, be at odds with the State’s duty to take operational measures to protect them” [ VCL & AN v UK [77587/12 and 74603/12], para 159].

The practical consequence of these decisions is that the section 45 defence has become more difficult to run because the Defendant may now struggle to discharge their evidential burden. However, the caselaw also makes clear that the CPS must always co-operate and engage with the NRM process. Any claims or suspicions that the defendant is a victim of human trafficking or exploitation must be referred using the NRM. Any criminal defence lawyer will be aware that this was not always the case.

Only after that process has been completed, and a Competent Decision had been reached, should the CPS decide whether to prosecute or not. Should they depart from a positive decision, there should be a good reason for doing so. A failure in that regard may result in a successful appeal. Theoretically, it may also be the case that such arguments can be raised at first instance through legal argument at preliminary stages of proceedings, for example, as if such a case is brought with either:

  • No referral having been made/ the decision having not yet been reached; or
  • A Positive Decision having simply not been fully considered or rebutted.

Such failures by the CPS could result in the case having to be stayed for such a time until a decision is provided following a referral, or such a decision being thoroughly considered. The likely result of which could be that the Crown offers no evidence in relation to that defendant. This is basically what happens already, in cases where proactive solicitors and counsel are acting with proper diligence.

I have emphasised the word must on two occasions in this article to illustrate that this “new” guidance from the Court of Appeal as to how the CPS should decide as to whether to prosecute a victim of trafficking or not, is not, in fact, new. Prosecutors have – and always have had – a duty to follow the guidance as laid out. The Independent Review of the Modern Slavery Act was published as far back as May 2019. That report recommended 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.”

While the decisions are now no longer admissible at first instance, it is now clear that there are some likely consequences for failures to consider these crucial mechanisms. It is interesting to read that many journalists, politicians, and even lawyers are viewing the recent authorities as “clamping down” on the defence whereas, properly wielded and with proper consideration in the police station and lower courts, the authorities are a call to heel for the CPS and a reassertion of the rules as many lawyers knew them to be.

Benjamin Ramsey is in his First-Six of pupillage at Central Chambers, under the supervision of Benjamin Knight. Upon completion of his non-practising period, he will be available to accept instructions in criminal work, including matters touching upon the Modern Slavery Act 2015.