Modern slavery and the section 45 defence have been in the spotlight within the last year or two, with the Court of Appeal having considered the defence but most importantly, having considered the National Referral Mechanism (NRM) and the applicability of the decisions of the Single Competent Authority (SCA) being used as evidence in criminal proceedings.
By Angelina Nurse, Pupil Barrister at 2BR
The NRM referral process involves the SCA making a two-stage decision. The first stage is known as a “reasonable grounds” decision whereby the authority would investigate whether there are reasonable grounds to believe that the defendant is a victim of modern slavery. The second stage is where the authority will consider whether they can make a “conclusive grounds” decision. There are, probably unsurprisingly, significant delays in obtaining a conclusive decision but nevertheless, where these decisions were made by the SCA, up until recently, it was properly used as expert evidence to support the defendant in raising the defence. It is important at this stage to note that adults have to consent to this process, but it is in fact mandatory for youth defendants to be referred to the SCA.
The Court of Appeal in R v Brecani [2021] EWCA Crim 731 considered the admissibility of the SCA’s decisions in criminal proceedings. The Court of Appeal stated the following: “we do not consider that caseworkers in the Single Competent Authority are experts in human trafficking or modern slavery (whether generally or in respect of specified countries) and for that reason cannot give opinion evidence in a trial on whether an individual was trafficked or exploited” and even went one step further to say that the SCA caseworker in the case of Brecani, Mr. Barlow, and his opinions “were rendered valueless”.
The Court of Appeal in their comments, essentially, made the decisions of the SCA inadmissible. The principle arising out of the case of Brecani was revisited in R v AAD, AAH, AAI [2022] EWCA Crim 206 just last year and was unsuccessful. Therefore, using the decisions of the SCA as evidence in criminal proceedings appear to be a thing of the past.
The judgment is however explicit that the Crown still have an obligation to investigate modern slavery, and, to that end, the judgement does not frustrate the NRM process. Referrals can still be made, and investigations can be undertaken. However, the concern is that whilst these decisions can be made by the SCA and then raised with the Crown and Court, the SCA are no longer able to come to Court to give expert evidence as to the possibility that the defendant is a victim of modern slavery.
As a result, there are very limited ways in which to put the decision of the SCA into evidence, without being able to call the caseworker to give live evidence. The sensible solution may be to put the findings to the defendant in evidence. This is simple enough for an adult defendant who made the decision to engage with the process themselves and has already disclosed the nature of their defence to the police and or another professional. This is clearly, however, not as effective as if there had been evidence from the defendant AND a caseworker from the SCA confirming their opinion that they are a victim of modern slavery. Consequently, the defence is now more likely to be overcome by the Crown in the absence of the admissibility of this evidence.
However, if we consider youth defendants who are victims of modern slavery, the inadmissibility of this evidence becomes more concerning. As a reminder, youth defendants do not have to consent to the NRM process, this means that the police and prosecution will make enquiries and investigate whether a youth is a victim of modern slavery without any engagement from that youth. This can make the process more complicated, and it may mean that the process is ineffective. However, it is still possible that the SCA will make a conclusive grounds decision without their engagement.
Furthermore, youth defendants are notorious for not wanting to talk to professionals, but even more so where they are victims of modern slavery. Therefore, we may now have circumstances whereby the SCA have concluded, conclusively, that the youth defendant is a victim of modern slavery, but they are unwilling, through fear, to give evidence in open court. In these circumstances, without being able to call the caseworker to provide their opinion, it really seems that there is no effective way in which to advance the defence. The concern therefore is that for youth defendants, the inadmissibility of this evidence is bound to have a significant, detrimental impact to them in succeeding with the section 45 defence.
That is not to suggest that all is lost and that the section 45 offence is obsolete. I do not think that we are there yet, it is however becoming an increasingly hard defence to run. What then can we do to ensure that we run the defence to the best of our abilities as practitioners? First and foremost, as practitioners it is important that the defendant has been adequately advised as to the section 45 defence. In addition, it should be raised at the earliest opportunity, ideally at the police station, and an NRM referral made as early as possible. Whilst the decisions of the SCA are no longer admissible as expert evidence, it still plays an important role in ensuring that the CPS follow the relevant guidance in investigating the possibility of the defendant being a victim modern slavery and, subsequently, a review being undertaken of the prosecution. Persuading the Crown to review the case is likely to be more persuasive with a positive decision from the SCA and so, embarking on the process remains worthwhile.
The Court of Appeal in R v AFU [2023] ECA Crim 23 quashed a conviction where guilty pleas were previously entered to conspiracy to produce Class B drugs, finding that proper enquiries were not made, as they should have been as per the CPS guidance, as to whether the applicant was a victim of human trafficking. Interestingly, there was also a conclusive grounds decision by the SCA in this case, a finding made after the applicant entered his guilty plea. The Court of Appeal were persuaded however, with reference to that conclusive grounds decision, of the Crown’s failings in investigating the defendants status as a victim of trafficking which was held to have amounted to an abuse of process. This is a clear position from the Court of Appeal that, despite any changes in the admissibility of NRM referrals in criminal proceedings, the Crown are still under a duty to keep all cases where modern slavery is in issue under strict review. In addition, it is just as important that defence practitioners be alert to this issue and encourage reviews at every stage where appropriate.
In addition, whilst the SCA may not be deemed experts, it would be perfectly proper in these types of cases to instruct other experts to deal with psychological issues and or vulnerabilities of a defendant that may well make them more susceptible to exploitation. In these circumstances, where a defendant may not want to give evidence, as is there right, the expert can be called to explain the effects of the defendant’s psychological issues and this can be properly used as evidence to support the notion that the defendant, due to their vulnerabilities, may be a victim of modern slavery. Therefore, there are ways in which practitioners can work around the limitations of the defence.
Moreover, the current position with regards to modern slavery and the section 45 defence is one in which many practitioners do not favour. Its impact makes it difficult for defendants who, in their own right, are victims, in running an important defence. It appears likely that the defence will continue to find itself in the spotlight, being considered once again by the Court of Appeal, but in the meantime, it appears of the utmost importance that reviews of cases within which modern slavery is in issue are undertaken; it is no doubt paramount to ensure justice is properly carried out in these cases concerning vulnerable defendants.
Angelina Nurse, Pupil Barrister at 2BR
