It is wise to know what duties and policies are in place within the CPS with regard to the decision to prosecute potential/suspected victims of Modern Slavery. The following case law deals with the CPS’s policies, the UK’s approach, the international view on the UK’s approach, and the Court of Appeal’s response to challenges of such decisions. In addition, the case law below deals with the evidential considerations for defence and prosecution lawyers in relation to s.45 defences and SCA decisions.
It is hard to see how a defence lawyer dealing with those scenarios could appropriately discharge their professional duty without challenging the CPS’s decisions in writing at the earliest stage.
On the decision to prosecute:
Is it in the public interest to prosecute? This must be considered even where there is no clear evidence of duress and no clear evidence of all of the elements of a section 45 defence or where section 45 does not apply (because the offence is excluded under Schedule 4). Prosecutors should consider all the circumstances of the case, including the seriousness of the offence and any direct or indirect compulsion arising from their trafficking situation.
Expert evidence, which even if it may be inadmissible at trial, should be considered by the prosecutor when considering whether D is likely to have been a victim of MS or Trafficking. However, it should be assessed for its credibility and consistency of a trafficking account by a trafficking expert and/or medical expert. The decisions of the SCA are made for administrative purposes on the basis of written materials by case work officers applying a balance of probabilities test. The case work officer is not an expert and therefore their decision, which is an opinion, in inadmissible in criminal proceedings.
When assessing credibility, prosecutors should be aware that VOTs and VOSs will frequently make late disclosure about their trafficking circumstances and may give an untrue account, often because they are told what to say by traffickers.
The ECtHR has stated that, once a person has been identified as a suspected VOT/VOS, a decision on whether to prosecute them should, so far as possible, be taken after a SCA decision has been taken. This is particularly important where the suspect is a child. The ECtHR held that “… in the absence of any assessment of whether they were trafficked and, if so, whether that fact could have any impact on their criminal liability, … pleas [made before such as assessment] were not made “in full awareness of the facts”.
R v D  EWCA Crim 2995 (only accessible online with subscription service)
If a person has been charged and a decision is awaited from the SCA, the court should be invited by the prosecution to alter the usual stage timetables for case progression under Better Case Management in the Crown Court and Transforming Summary Justice in the Magistrates’ Court, as they cannot apply and stage dates will need to be altered to accommodate the referral R v D  EWCA Crim 2995. However, this does not affect the operation of custody time limits (CTLs). When necessary, applications for CTL extensions will need to be made in the normal way.
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 accordance with the case of R v D  EWCA Crim 2995.
- ensure the defence representative is aware of the possibility of a section 45 defence;
- request that a plea is not formally entered; and
- apply for an adjournment for further investigation into the defendant’s possible status as a victim of slavery or trafficking.
When the CPS proceeds, despite the RG/CG decisions:
The SCA decision is not in itself determinative of trafficking status. As such, prosecutors should examine the SCA decision and the basis upon which it was made as if it is in dispute it is an issue for the court to determine (R v Brecani  EWCA Crim 731, R v VSJ  EWCA Crim 36, R v DS  EWCA Crim 285. This is crucially important as this may well generate disclosable materials. Where the CPS is challenged on this, we have found that it is often unable to be specific about why it is proceeding. See below for why this is important.
Once a trafficking assessment has been made by the SCA any subsequent prosecutorial decision has to take that assessment into account. While the prosecutor might not be bound by the findings made in the course of such a trafficking assessment, the prosecutor would need to have clear reasons for disagreeing with it.
Prosecutors should not base a decision to disagree with a SCA positive grounds decision on peripheral issues. The prosecutor should set out clear reasons for disagreeing based on either why the statutory definition of trafficking does not apply to the individual; and/or why there was no nexus between the trafficking and the offence.
On Abuse of Process Arguments over the Decision to Proceed:
The judgment of AAD, AAH and AAI  EWCA Crim 106 confirmed the circumstances when abuse of process is still possible. The Court reinforced that it is the duty of the CPS to consider the trafficking status of a possible credible VOT, notwithstanding that they had committed an offence under schedule 4 MSA (offences to which the s.45 defence does not apply).
In AAD, AAH and AAI Lord Justice Fulford VP stated at paragraph 142:
- “(1) The limb two abuse of process jurisdiction [i.e. where it would be unfair to try the defendant] remains available in principle in all VOT cases following the 2015 Act, and whether or not they are Schedule 4 cases.
“(2) Such jurisdiction is “special” only in the sense that it falls to be exercised in the context of a particular sensitivity required to be applied to VOT prosecutions, having regard to international obligations and specific CPS guidance. The core requirements of unfairness and oppression and illegality (inherent in almost every limb two case) remain central to applications for a stay in a VOT context.
“(3) Mere disagreement with a decision to prosecute, following due regard given by the prosecution to the CPS guidance and to any conclusive grounds decision, gives no basis whatsoever for an application for a stay. Decisions to prosecute are for the CPS. Decisions on disputed facts or evaluations of fact are for the jury.
“(4) If (in what will be likely to be a most exceptional case) there has been a failure to have due regard to CPS guidance or if there has been a lack of rational basis for departure by the prosecution from a conclusive grounds decision, then a stay application may be available”.
The Court also noted (at paragraph 141) that “on an application to stay the proceedings, for instance on the basis that the Crown had unjustifiably failed to take into account the CPS Guidance when deciding to prosecute, one option available to the judge prior to making a decision would be to adjourn the application to afford the CPS the opportunity to reconsider/remake its decision in light of its own guidance. This approach may be less appropriate, however, if the contention is that the decision was simply unsustainable or perverse.”
The judgment upheld Brecani  EWCA Crim 731 in confirming that SCA decision makers are not experts but did confirm that the SCA’s decision on conclusive grounds is potentially admissible in appeal matters. The judgment also confirmed the limitations on when expert evidence could be introduced and confirmed that there may be cases when the CACD will consider whether the appellant needs to give evidence on appeal.
And, from CPS Internal Guidance:
What to do if there is a positive CG decision but decision to continue prosecution:
Take into account the SCA finding (VCL and AN v UK (Applications nos. 77587/12 and 74603/12).
Ensure that the case has been fully investigated and focused on the circumstances of the PV/suspect. This will include investigation of all reasons on the SCA minute sheet which accompanies the SCA decision. Brecani does not change the requirement for information and evidence to disprove section 45 beyond reasonable doubt.
Give full and proper consideration as to whether each reason on the SCA minute sheet is investigated and evidenced. Ensure that the decision making is properly and clearly explained and endorsed in accordance with this guidance. Clear reasons for disagreeing with SCA decisions and reaching a different conclusion must be endorsed. This applies equally to adult and children suspects. The prosecutor should not base a decision to disagree on peripheral issues. The prosecutor should set out reasons: why the statutory definition of trafficking does not apply to the individual; or why there was no nexus between the trafficking and the offence.
The decision made by a prosecutor as to whether the defendant has satisfied the evidential burden and whether the prosecution can disprove the statutory defence will depend on an assessment of all of the available material.
The CG decision and underlying material on which it is based will be unused material. The material should be reviewed in accordance with the CPIA. Any positive SCA finding regarding an individual is very likely to be material which may either undermine the prosecution or assist the defence. Prosecutors should consider early disclosure of such material to the defence. The underlying material may contain personal details which need to be redacted and may consider sensitive material which will need consideration in accordance with the guidance in the Disclosure Manual.
On section 45 defences:
This clarifies how the burden of evidential proof and legal burden operate where s.45 is pleaded at trial. This case is not new but courts are still getting this wrong and CPS seem to struggle with the concept. The most useful quotation on the point is this:
‘In our judgment, section 45 of the 2015 Act does not bear the interpretation urged by the prosecution upon, and accepted by, the judges below. It 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.’
On the admissibility of RG and CG decisions, this case caused quite a stir and has been misunderstood by many. It provides nothing more than confirmation that the decisions themselves are not admissible in evidence as proof of victim status for the purposes of s.45. It is perfectly clear that the items listed in the disclosure requests section of this MSA Toolkit are likely to admissible subject to relevance. This was treated as an important case but, in fact, it is no different from any other opinion evidence that falls short of “expert” evidence.
Section 45 does not apply to offences committed before 31 July 2015; Prosecutors should take particular care when dealing with cases in which the offending behaviour covers a period that straddles this implementation date.
On Case Management and Pleas in MSA Cases:
R v D  EWCA Crim 2995 (unavailable online without subscription service)
The Court of Appeal held that:
It is important that wherever possible, those who may be victims of trafficking are identified before any plea is taken at court.
Should the matter be raised at the first hearing the judge will need to determine, as a matter of judgment on the facts of the individual case, whether a defendant is a potential credible victim of trafficking. If they so determine, the case should be adjourned for an NRM referral to be made. This should take 45 days but in practice may be considerably longer.
In such cases, the usual stage timetable for case progression in the Crown Court and the Magistrates’ Court cannot apply and stage dates will need to be altered to accommodate the referral.
This judgment does not affect the operation of custody time limits (CTLs). When necessary, applications for CTL extensions will need to be made in the normal way.
On 22 July 2019 a revised PTPH form (PTPH2) for use by prosecutors, defence practitioners and judges came into effect with a specific section relating to suspects who may be potential victims of MSHT. The form asks the defence to highlight whether it is alleged that a defendant is a victim of modern slavery. This is important so that consideration can be given to whether the prosecution should continue and/or whether the defendant is alleging a defence under section 45 of 2015 Act (see below).