Trafficking victims compelled to commit offences: Increasing the protection available in England and Wales and New Zealand
The UK government introduced substantive criminal law defence(s) for individuals compelled to commit a criminal offence because of slavery and/ or exploitation under section 45 of the UK’s Modern Slavery Act 2015 (section 45).
The approach adopted has operated as a catalyst for reform initiatives elsewhere. In Australia, the Joint Standing Committee on Foreign Affairs, Defence and Trade recommended (in “Hidden in Plain Sight”, December 2017) that the Australian government introduce defence(s) for modern day slavery victims compelled to commit offences due to exploitation similar to, but improving upon, section 45.
New Zealand, like the UK and Australia, retains “Tier 1” status as it “fully meets the minimum standards for the elimination of trafficking” (US DoS, “Trafficking in Person’s Report” (TIP), 2017).
The TIP acknowledged the “serious and sustained efforts” of the New Zealand government to combat human trafficking, but considered that only “moderate efforts” were being maintained in relation to victim protection, compared with the increase in “protection efforts” identified in the report on the United Kingdom. The New Zealand government was also encouraged to consider whether defence(s) similar to section 45 ought to be introduced.
This article looks at section 45, highlighting some of the problems that have arisen in terms of the operation and ambit of the defence, and which ought to be considered in the context of any future reform initiatives.
Trafficking victims’ defences
Section 45 introduced two defences for trafficking victims. The first applies to adults, and operates where:
- the defendant performed the act as a result of compulsion (section 45(1)(a-b));
- the compulsion is attributable to slavery/relevant exploitation (section 45(1)(c); and
- a reasonable person in the same situation and sharing the person’s relevant characteristics would have no realistic alternative to doing the act (section 45(1)(d)).
The legislation recognises that compulsion may arise from a third party or from circumstances (section 45(2)). Compulsion is attributable to slavery or exploitation if it is a direct consequence of the person being, or having been, a victim of slavery or relevant exploitation (section 45(3)).
Relevant characteristics include age, sex, and any physical or mental illness or disability (section 45(5)). For those under 18, compulsion and the availability of a realistic alternative are irrelevant, though the performance of the act must be a direct consequence of slavery/relevant exploitation (section 45(4)).
The defence has been heavily criticised for arbitrarily excluding offences from the parameters of the defence (considered below), and for failing to cogently align with extant common law provisions (for more on this and on some of the other points discussed below, see Karl Laird, “Evaluating the relationship between section 45 of the Modern Slavery Act 2015 and the defence of duress: an opportunity missed?”  Criminal Law Review 6, 395-404, 396).
Burden of proof issues
The burden of proof for the purposes of section 45 has resulted in recent litigation (R v MK; R v Gega (also known as Maione)  Crim 667 (CA (Crim Div))). Extant Crown Prosecution Service (CPS) guidance provides that the defendant bears the burden of proof for all aspects of the defence, other than whether the defendant was trafficked (https://www.cps.gov.uk/legal-guidance/human-traffickingsmuggling-and-slavery).
The Court of Appeal of England and Wales rejected the CPS approach in the conjoined appeal of R v MK; R v Gega, and confirmed that an evidential (persuasive) burden applies to the defence, and it is for the prosecution to disprove one or more elements of the defence to the usual criminal standard, once the defence’s duty has been discharged. (For further discussion see the forthcoming article by Sean Mennim and Nicola Wake, “R v MK; R v Gega:  Crim 667 Burden of proof in trafficking and modern slavery cases”, (2018) Journal of Criminal Law.)
During the Bill’s passage through the UK Parliament, Minister Diana Johnson recommended that the defence be amended to stipulate that the burden of proof is on the prosecution, but the proposal was not implemented (Hansard, Public Bill Committee Debates, Modern Slavery Bill, col 382 (11 September 2014)). The adoption of an explicit clause should be explored in jurisdictions seeking to introduce comparable iterations of the defence(s).
Schedule 4 exclusions
Section 45 is unavailable to 140 offences by virtue of schedule 4. Commentators have noted that the list of excluded offences is arbitrary. For example, a number of serious offences, such as conspiracy to supply a Class A drug (cocaine), contrary to section 1(1) of the UK Criminal Law Act 1977, are not excluded, whilst less serious offences, such as assisting in unlawful immigration, contrary to section 21 of the UK Immigration Act 1971 and conspiracy offences related to slavery trafficking, are excluded.
The lottery of this exclusion means that some vulnerable individuals compelled to commit a criminal offence through exploitation will be able to rely on section 45, whereas others will have to rely on extant provisions (considered further below).
What happens when section 45 does not apply?
Article 26 of the Council of European Convention on Action against Trafficking in Human Beings requires “the possibility of not imposing penalties on victims for their involvement in unlawful activities, to the extent that they have been compelled to do so”. Accordingly, the schedule 4 exclusion, though problematic, does not (necessarily) breach international guidelines, provided that other measures are in place to satisfy Article 26.
In the case of Joseph and Others  EWCA Crim 36 before the Court of Appeal of England of Wales, Lord Thomas CJ noted that international standards may still be met in a variety of ways. For example, the common law duress/necessity defences, prosecutorial discretion guidelines, and the power of the court to stay a prosecution provide alternative approaches (for further discussion, see Nicola Wake, “Human Trafficking and Modern Day Slavery: When Victims Kill”  Criminal Law Review 9, 658-678).
This position is arguably unnecessarily convoluted in requiring different approaches to apply to victims of trafficking/exploitation who are compelled to commit an offence. It is also overly restrictive in relation to certain offences, for example, murder, to which the duress defence is unavailable.
An alternative approach
An alternative approach operates in Scotland. Section 8 of the Human Trafficking and Exploitation (Scotland) Act 2015 provides that the Lord Advocate “must issue and publish instructions about the prosecution” of trafficking/slavery victims compelled to commit an offence, where that compulsion is “directly attributable” to being a victim of trafficking/slavery (section 8(3)). Where child victims are concerned, the act need not be “directly attributable”, but rather a “consequence of” the child’s victimhood (section 8(4)).
The guidelines recognise that the “list of trafficking offences which victims of trafficking or exploitation may commit is constantly evolving” and, as such, extends (unlike schedule 4) to “any criminal offence” (see http://www.copfs.gov.uk/images/Documents/Victims_and_Witnesses/HumanTrafficking/Lord%20Advocates%20Instructions%20for%20Prosecutors%20when%20considering%20Prosecution%20of%20Victims%20of%20Human%20Trafficking%20and%20Exploitation.pdf).
In the writer’s view, the guidelines are preferable to the schedule 4 exclusion, and were commended by the Joint Standing Committee on Foreign Affairs, Defence and Trade in “Hidden in Plain Sight”. The Committee acknowledged, however, that non-legislative guidelines should be in addition to, and not (as is the case in Scotland) instead of, defence(s) equivalent to section 45.
Section 45 of the UK Modern Slavery Act 2015 provides a helpful starting point for jurisdictions considering implementing similar defence(s) for trafficking/ slavery victims compelled to commit criminal offences. Any decision to exclude offences from the ambit of such a defence, however, ought to be carefully considered and justified, given recognition that the list of offences victims may be vulnerable to continues to expand.
The approach adopted in the Scottish guidelines is indicative of a preferable approach but, as the Joint Standing Committee in Australia has concluded, guidelines alone are unlikely to be sufficient.
Associate Professor Dr Nicola Wake is the Kayes Fletcher Walker Visiting Scholar for 2018 at AUT. She is delivering a public lecture at AUT, on the subject “Trafficking victims compelled to commit offences: Increasing the protection available in England and Wales and New Zealand”. The lecture is being hosted by the Centre for Non-Adversarial Justice with the partners of Kayes Fletcher Walker, and will be given in Te Iringa The Wave Room, WG 308, AUT, Auckland, at 5.00pm on Monday 23 July 2018.