Practitioners must be alive to the possibility of a s45 Defence
Reflections from the Coalface
In September 2020, I was instructed to represent a 17-year-old who was accused of conspiracy to supply class A drugs alongside others connected with a county lines operation. My client, then represented by different counsel, had pleaded guilty at PTPH and the case had been adjourned for the preparation of a PSR. I was instructed the night before the sentencing hearing, original counsel not being available.
Today, approximately five months later, she was acquitted of all charges, upon the CPS formally offering no evidence. Why? She had a defence, pursuant to Modern Slavery Act 2015 s 45(4): my client was a victim of child criminal exploitation. She did not present as a victim: intelligent and articulate, this was a young person who just wanted the process to be over so that she would ‘know her fate’. When I raised the issue of exploitation, she categorically denied that she was a victim, expressing the concern that if exploitation was raised it may impact upon the sentence of her (older) ‘boyfriend’ who was one of the co-conspirators. Her refusal to prioritise her own best interests over those of the man she described as her boyfriend, served only to amplify my concerns about the exploitative nature of this case.
Somewhat frenzied enquiries via the Youth Offending Team (YOT) while at Court revealed that Children’s Services had similar concerns and had intended (but failed) to refer my client for consideration by the Single Competent Authority (SCA) through the National Referral Mechanism (NRM). YOT agreed to make the referral that same day. Faced with a direct conflict between my client’s instructions (to proceed to sentence) and my assessment of her best interests, I explained to the Court my client’s wishes and invited the Judge to ignore them and to adjourn the case in the interests of justice. My grateful thanks to prosecution counsel, Mr Dharmi, who quite rightly supported my application to adjourn in the interests of justice and in the best tradition of the independent Criminal Bar. The case was adjourned.
Procedure: National Referral Mechanism (NRM)
Practitioners will be aware that many designated organisations (known as first responders) can refer individuals through the NRM. Designated organisations include Health and Social Care Trusts and many charities operating in relevant sectors. Certain specified public authorities have a duty to notify the Secretary of State via the NRM: these include the Police, Local Authorities, the National Crime Agency and the Gangmasters and Labour Abuse Authority. UK Visas and Immigration, Border Force and Immigration Enforcement must also comply with the duty as a matter of Home Office policy.
Once a referral is made, the SCA are required to make a ‘reasonable grounds’ decision (reasonable grounds to suspect) within five working days. Thereafter, there is a ‘recovery and reflection’ period of 45 days, during which further evidence will be gathered by the SCA from agencies that have had contact with the individual concerned. This may include an interview with the individual themselves. Thereafter, a conclusive grounds decision (on the balance of probabilities) should be made as soon as possible. In all cases where the individual is involved in criminal proceedings, the case should be treated by the SCA as a matter of urgency.
Law: Modern Slavery Act 2015
Modern Slavery Act 2015 s 45 provides a statutory defence for victims of slavery and relevant exploitation who:
- In the case of an adult (over 18), was compelled to commit the offence and the compulsion was attributable to the slavery or relevant exploitation; or
- In the case of a child (under 18), committed the offence as a consequence of being, or having been, a victim of slavery or relevant exploitation.
The test is subjective and in common with many defences, only the evidential burden falls to the accused, with the prosecution thereafter charged with discharging the legal burden to the usual criminal standard. For an adult, the defence requires that a reasonable person in the same situation with the same relevant characteristics would have ‘no realistic alternative’ to doing the criminal act. In the case of a child, it simply requires that a reasonable person in the same situation and with the child’s relevant characteristics would do what the child did.
Three weeks ago, armed with a positive conclusive grounds decision from the SCA in respect of my client, I successfully applied to vacate the original plea and had the satisfaction of seeing the smile on the face of my client as she was re-arraigned, and pleaded ‘not guilty’. The CPS requested time to consider their decision to prosecute.
Last Friday, those magic words for defence counsel appeared on the Court list for today’s hearing: “For CPS to offer no evidence”. The SCA decision is, of course, not binding on the Courts. No doubt there will be cases where there is no nexus whatsoever between exploitation/trafficking and subsequent offending; I suspect that these will be few and far between, especially where children are concerned. In the majority of cases, it is difficult to see how the evidential or indeed public interest tests for continued prosecution could be met, where an independent government body has assessed that there are conclusive grounds to believe that an individual is a victim of trafficking / exploitation. Arguably, even a reasonable grounds decision may well be sufficient to defeat the evidential test for prosecution in many cases.
Identifying Modern Slavery Cases
Some cases will be easy to identify. By way of example, when another of my clients, who spoke no English, was arrested in a ‘cannabis factory’ raid in circumstances where all the doors to the building were locked from the outside, the case was clearly crying out for a Modern Slavery Act defence. Astonishingly, that case made it to PTPH before an NRM referral was made. It was subsequently abandoned following a positive conclusive grounds decision.
Practitioners should be careful to remember, however, that the Modern Slavery Act does not only apply to foreign nationals who have been trafficked across borders: there are many UK nationals who may fall within the remit of the Act. For Archers fans, the recent and ‘shocking’ events, revealing modern day slavery in the heart of Ambridge, may have helped to raise awareness of this uncomfortable reality. Crucially, these individuals may not see themselves as victims at all: they are just as deserving of the protection that s45 provides. Especially in the case of children under 18 years of age, where the element of compulsion need not be proved, it is essential practitioners are alive to the possibility of a s45 defence, even when it is not raised by our instructions.
A Happy Ending
Since I first met her, my client has benefitted from substantial support from a number of agencies. With their input, her life is getting back on track. I was especially delighted to discover that a few weeks ago she spoke at a training event for professionals concerning child exploitation in County Lines. Today was a welcome reminder of why I continue to do this job, despite the many and significant barriers to continued practice at the Criminal Bar: it is the opportunity, occasionally, to make a real difference.
Mrs J Needham
Related barristers: Julia Needham
Related practice areas: Crime