Section 45: Loophole or Lifeline

The Modern Slavery Act 2015 introduced a defence for individuals who are victims of slavery, trafficking or exploitation. Theresa May, then Home Secretary, stated that it was Britain leading the way in “defeating modern slavery and preserving freedoms and values”. However, four years on the legislation remains not widely understood, despite the number of potential victims being identified doubling from 2015 to 2018. This lack of understanding was illustrated by the comments of the Magistrates Court association that some “never see it being used” and others raising concern about “appropriate use”.

The Meaning of Modern Slavery

The definition of Modern Slavery, widely used as a catch-all, is not clearly defined as an over-arching legal concept.

It should be considered in two parts. The first of these, Human Trafficking, is defined pursuant to the Palermo protocol as being the “recruitment, transportation, transfer, harbouring or receipt of persons” through “the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control of another person, for the purpose of exploitation.” In respect of Section 45 itself, there is no specific definition, however it can be inferred as those who are victims of the acts set out in the Palermo Protocol.

Section 45 also includes victims of slavery, without necessarily being trafficked. This is defined within Section 1 of the Modern Slavery Act as “holding another person in slavery or servitude” or “requiring them to perform forced or compulsory labour”.

Interestingly, NHS England likely has the clearest definition of Modern Slavery and one which may well be adopted by other organisations in due course. Namely “the recruitment, movement, harbouring or receiving of children, women or men through the use of force, coercion, abuse of vulnerability, deception or other means for the purpose of exploitation.” It would be unsurprising if this, or a similar form, were to find its way into Bench Books in the near future.

Early Intervention

The majority of cases involving Section 45 are first dealt with by the National Referral Mechanism (“NRM”). This is a specific project set up by the National Crime Agency to deal with referrals from both victims and potential suspects.

The initial stage following a referral is for a ‘reasonable grounds’ decision, this is to be provided within 5 days. The test is whether there are reasonable grounds to believe that the individual is the victim of modern slavery. This is a low initial test, and if it is met then the NRM moves to the next stage. The aim of the project is that once identified, the ‘victim’ is then offered support by the NRM.

Once there are reasonable grounds, there is then a ‘conclusive grounds’ consideration. This is meant to only take 45 days to consider, but in reality this takes much longer. This inevitably results in delays to legal proceedings, which can run into months. The lack of resources and lack of clear guidance means that decision are not made in a consistent or efficient manner.

In our recent case before Woolwich CC, the trial was adjourned for a period of 5 months and yet the NRM decision was only communicated 14 days prior to the commencement of the adjourned trial.

The Impact on the Decision to Prosecute

If there is a conclusive grounds decision that supports the defendant/victim’s account of being the subject of modern slavery, it is then a matter for the CPS to decide whether or not the Code for Crown Prosecutors is met. The CPS have drafted specific guidance to reach a determination in respect of this:

• Whether there is reason to belief an individual is the victim of trafficking or slavery (this will be met where there is a positive conclusive ground decision);
• Whether there is clear evidence of duress (likely intrinsic to a positive conclusive ground);
• Whether there is clear evidence of a Section 45 defence;
• Whether it is in the public interest to prosecute.

The public interest test is well known, and if there is a conclusive grounds decision the only matter that remains is whether or not there is clear evidence of a Section 45 defence.

The Section 45 Defence

The defence itself raises different criteria between Adults and Children. In respect of Adults, i.e. those over 18 at the time that the offence was committed, they are required to show that:

1. They committed the offence as they were compelled to do so;
2. The compulsion is attributable to slavery or relevant exploitation; and
3. A reasonable person in the same situation as the person and having the person’s relevant characteristics would have no realistic alternative to doing that act.

In respect of a child, i.e. under 18 at the time the offence was committed, it is necessary to show that:

1. The offence was committed as a direct consequence of the person being, or having been, a victim of slavery or a victim of relevant exploitation, and
2. a reasonable person in the same situation as the person and having the person’s relevant characteristics would do that act.

The legislation itself, at first reading, appears relatively straight forward. The burden of proof is simply on the Defendant to raise sufficient evidence, it is then for the Prosecution to disprove to the criminal standard (R v MK [2018] EWCA Crim 667). This creates the same burden in effect as that of self-defence.

The legislation is not clear on a number of matters, most strikingly the issues of consent in respect of children. In respect of the substantive Section 2 offence, the child cannot consent, the same is not reflected in the Section 45 defence and so the Courts are left to infer this. This is one matter that the Law Commission identified as in need of clarification in their recent report.

Is the use appropriate?

The Law Commission are not in agreement with the Magistrates Association. They found that the use was appropriate and that an appropriate balance had been met. This was partly due to the case law clarifying the burden of proof. However, the Law Commission has raised several issues that warrant further consideration.

One key area is the interaction between the NRM scheme, which of itself is problematic, with the Court system. The NRM decision is not admissible before the Court, it has is no official status. It may be appropriate for this to change., This is because there is a substantial amount of analysis that takes place and so where a positive conclusive grounds decision is reached, the NRM could be viewed as expert evidence, were it to be drafted into a CPR 33 compliant format. This would further assist the CPS in making prosecution decisions in line with the guidelines set out above.

One area in which development has already begun is earlier engagement of the defence pursuant to Section 45 and a more expedient involvement of the NRM. This will involve certain stakeholders, such as the Police; YOT and Social services, receiving further training in respect of this. There is currently a lack of knowledge of the referral scheme, which has led to delays in trial proceedings.

The Law Commission went further to suggest that training should be given to the Judiciary and that the statutory defence should be considered at all hearings. This has already been implemented, and is working effectively, as part of the updated PTPH form in use in the Crown Court which requires the s45 defence to be considered.

The Law Commission were not asked to consider the NRM, which is potentially the area which is the least effective in of the prevention and detection of modern slavery in the criminal justice system.

Measuring the Effectiveness of the NRM

The statistics demonstrate a gradual increase in the number of referrals being made. 2018 saw a 36% increase in the number of referrals being made and for the first quarter of 2019, there was a 10% increase on the previous quarter. At first glance, this would suggest that the system is working in a positive manner.

The reality is different There were three times as many referrals in 2018 as there were in 2014. However, the number of Positive Conclusive Grounds rose by only 10%, with the number of negative decisions increasing by 50%. The remaining referrals fall into a category of ‘Pending Decision’. There were 69 pending referrals in 2014, there are now 3,867.

Loophole or Lifeline

The increase in negative referrals would suggest that there are individuals claiming to be the victims of modern slavery that are not deemed to be so. This demonstrates that the loophole that some critics claim to exist is effectively closed at an early stage. Whilst it is not impossible to utilise a Section 45 defence without a positive grounds decision, it is more difficult. It is important to note that the change in burden (from balance of probabilities for the NRM to the Crown needing to disprove) does mean that there are instances, such as in the recent Woolwich case, where an individual can successfully raise the defence without the support of the NRM.

What is most concerning is the number of pending enquiries. Whilst the Modern Slavery framework remains fit for purpose, there are clearly limitations on the effectiveness of the referral scheme that underpins the overall detection and prevention scheme. The NRM, in a fully funded and operational state, would offer the lifeline that is needed. For now, at least, the Courts are left to follow the limited guidance available in order to try and detect where proper cases are made out. The reality of this is that it is fact specific and certainly not one that can be described as a loophole and in many cases it is far from it.