The London I grew up in during the early 2000s was very different from what it is now—or so the narrative goes. Still, nearly everyone I knew was impacted by crime. Victim or perpetrator. Acutely aware of our lack of street credentials, some friends and I attended a local kickboxing gym after school. That first session, our coach gave sage advice:

 “You win 100% of the fights you don’t have.”

By Nathan Toms, Barrister, 5SAH

As I write this, I have aged out of the demographic most likely to be a victim or perpetrator of crime. Yet crime involving young people carries on, more febrile than in my sepia-toned youth. The law, too, has matured. What started as a reaction to the county line phenomenon has blossomed into the widely recognised truism: exploitation and youth crime go hand in hand.

As counsel, in cases where the facts of the offence are accepted, the trial is our focus. We reason—the defendant must tread the boards, and the jury makes of it what they will. In the Youth Court, with defendants alleging exploitation, that is not so. Resolving matters before trial is not a battle to abandon easily. Representations, judicial review (JR), and abuse of process applications may well prevail.

The UK is a party to the Palermo Protocol, a UN instrument that gave birth to the ‘non-punishment principle.’[1] In simple terms, signatory states pledge not to punish victims of exploitation who have committed crimes because they are victims of exploitation. If that sounds familiar, it should. That is the basis for what came to be section 45 of the Modern Slavery Act 2015. The protocol and its progeny exist alongside sister obligations under Article 4 of the ECHR and Article 3 of the Universal Declaration of the Rights of the Child.

The UK upholds its obligations not just via the section 45 defence but by making it mandatory for the CPS to consider the four-stage test before bringing any prosecution against children alleging exploitation:

4. Is there a reason to believe that the person is a victim of trafficking or slavery?
5. Is there clear evidence of a credible common law defence of duress?
6. Is there clear evidence of a statutory defence?
7. Is it in the public interest to prosecute? [2]

A National Referral Mechanism (NRM) referral is unnecessary to run a section 45 argument at trial. However, without a Single Competent Authority decision any representations, JR application, and abuse of process argument are almost assured to be stillborn. Just because section 45 does not apply to the charge does not mean an NRM cannot be made, or that the CPS is excused from their mandatory considerations. NRM decisions are generally favourable to the defence, and the defence can write to the NRM asking for reconsideration or challenge an adverse finding via JR.

Any representations must speak directly to the test to be successful but that is not all that needs to be addressed. There are multiple pieces of guidance that representations should incorporate. The Child Gravity Matrix[3] guides decision-makers when considering whether to refer a young person’s case for prosecution. It lists mandatory considerations, such as the young person’s age, the offence’s circumstances, whether they are a first-time entrant to the justice system, and a list of vulnerability factors. The fact that counsel is instructed and the matter has already been referred does not neutralise the document’s effectiveness. The points in the Matrix are echoed further in the NCA Guidance on trafficking.[4] The considerations and phrasing are intelligible to the police and, therefore, equally intelligible to the CPS. If you want someone to understand you, speaking their language is a good start.

If an NRM referral is ongoing, the CPS cannot proceed to trial without the decision. The CPS must apply the material from the decision to the test above. The CPS is permitted to prosecute despite a conclusive decision, where there are good reasons to do so, but they need to tell you why.

When the CPS gives its written response, it is usually brief and reads ‘there is some evidence of exploitation but no nexus with offending, and the public interest is in prosecuting’. Given that this decision is the hill we are about to fight on, it is often worth asking for a properly reasoned response. Sometimes the response is so short that one could argue there is no evidence that the CPS has carried out the test at all.

Once the decision has been fully reasoned, and the decision to continue to trial is baffling, consider sending a Pre-Action Protocol Letter and the Administrative Court. The CPS’s decision to prosecute in the Youth Court is not related to a trial on indictment. A JR application can be made on the limited grounds of irrationality, use of the wrong test, or procedural unfairness. The question is how the decision was made rather than its quality, though the two are hard to separate.

Alternatively, where representations have failed despite overwhelming evidence that your client should not be prosecuted, consider raising an abuse of process under the second limb, as a final tactical option before trial. It is available even if the offence is contained in Schedule 4, but the chances of a successful application in Schedule 4 cases are more remote.  Simply disagreeing with a decision to prosecute is not enough. The Defence needs to show that the CPS has reached its decision to prosecute contrary to its own guidance and benightedly indifferent to international obligations. [5] If the court disagrees with the decision to prosecute, the matter will be stayed.[6] To reach that outcome, you must have all possible evidence available.

The starting point with evidence is knowing your young people—their background and life story. Young people in the system are usually the focal point of overlapping agencies. This sidesteps issues around dragging the whole narrative out of the client and provides the evidence you need. Social services, YOS, school, parents, and CAMHS all potentially have relevant information, much of which can be requested if the young person gives endorsed prior authority. Gathering evidence can be outsourced to the CPS via a defence statement or a written request. The issue is that makes you a hostage to what they find and the defence will have to rely on the CPS to forward the relevant materials once gathered.

It is essential not to overlook the details of the exploitation. Find out the street names of the individuals and groups involved. Gangs often are associated with specific areas and can be divided on racial, cultural, and religious lines as much as geographic ones. Many newer gangs are cadet branches of older organisations. This information will be relevant to Section 8 applications and representations. This is especially so if the police and CPS deny that any exploitation occurred, or, as once happened, that the gang itself even exists. I am still astonished that the CPS adopted claims by the police that a local gang was a figment of a client’s imagination when YOS, social services, and long-toothed solicitors seemed to know volumes about the group. Consider also when the issue of exploitation was raised. If raised in the interview or at the police station, the police should have opened a separate investigation and invited your young person for an ABE interview. This means a separate Crime Report, which should enter the defence team’s possession as part of stage 1 disclosure.

Expert reports are not just for trial but also pre-trial submissions and applications. Psychiatrists and psychologists are almost always needed. Post Brecani[7] the CPS, and some judges, have adopted the erroneous rule of thumb that modern slavery experts are inadmissible and unpersuasive. What a slavery expert cannot do, in section 45 cases, is say definitively whether a young person is the victim of exploitation. That is a trial issue. The expert can give evidence about hallmarks of exploitation and methods by which young people are drawn into exploitation. I recall arguing with a senior district judge that no matter how much the value of the phones my client had allegedly stolen was, the amount he ‘owed’ would never go down. What I would have given for a report that day and what I could have done with a report before trial, I will never know.

So, there you have it. Against all criminal counsels’ instincts, the pre-trial phase and applications can be decisive. Once the evidence is gathered fully, send the representations and establish a beachhead. You may find you do not need to fight the rest of the war.  To close, if I may rework my instructor’s maxim a little:

You win 100% of the fights you don’t have… at trial.

Nathan Toms, Barrister, 5SAH

[1] Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime; General Assembly resolution 55/25; 15 November 2000

[2] CPS Legal Guidance – ‘Modern Slavery and human trafficking: offences and defences, including the section 45 defence’, updated 22 October 2024

[3] The National Police Chief’s Child Gravity Matrix, v2.3, 26 February 2025

[4]  NCA guidance for Councils on how to identify and support victims of Criminal Exploitation

[5] AAD, AAH & AAI [2022] EWCA Crim 106 at [141-142]

[6]  L, HVN, THN, T v R [2013] EWCA Crim 991 at [17]

[7] Brecani [2021] EWCA Crim 731