HUM0069

Written evidence submitted by Professor Tony Ward (Northumbria University) and Dr Shahrzad Fouladvand (University of Sussex)

This submission focuses on question 5 which the Inquiry into Human Trafficking invites written evidence- how can legislation, including Modern Slavery Act (MSA) 2015, policy and criminal justice system practice be improved to prevent and address human trafficking. We write as academics with a long-standing interest in human trafficking, and in particular the evidential issues that arise in trafficking cases.

The submission falls into two parts. The first, without attempting to provide a detailed proposal, outlines the direction we think should be taken in improving defence under MSA s. 45. The second calls for a specific legal reform on a relatively narrow point: to reverse the effect of the Court of Appeal’s decision in R v Brecani (2021) that decisions of the Competent Authority as to whether someone is a victim of human trafficking or modern slavery are inadmissible as evidence in a criminal trial.

1. The Section 45 defence and its problems

1.1.  Legal safeguards in England and Wales concerning the ‘non-punishment’ and ‘non-prosecution’ of such victims of human trafficking who are forced to commit criminal offences as a result of their victimisation, stem from Article 26 of the Council of Europe Convention on Action against Trafficking in Human Beings (ECAT), ratified by the UK in 2008. Furthermore, the UK’s Modern Slavery Act 2015 (MSA), s. 45 introduced a defence which protects victims of modern slavery who are compelled to commit a criminal offence. However, a number of recent reports, such as the 2020 HM Inspectorate of Constabulary and Fire and Rescue Service (HMICFRS)report[1] on the application of s.45 in county line cases, the 2019 Independent Review of the Modern Slavery Act 2015[2], and a 2017 HM Inspectorate of Constabulary’s report[3] have all noted the problem of low awareness amongst investigators of the s.45 defence. They each raised concerns regarding the mistreatment of victims of human trafficking and the low number of successful prosecutions of human trafficking offences. The application of the statutory defence has proved problematic, sometimes as a result of defective advice at an early stage and sometimes through the inappropriate use of the prosecutorial discretion whether or not to proceed in the interests of justice.

1.2.  In our research, including our recent work (with Professor Richard Vogler) reviewing human-trafficking-related cases at the Criminal Cases Review Commission, we have become aware of two major problems with the section 45 defence. First, the definition of human trafficking in Sections 2-3 of the Act is broad and somewhat artificial, in the sense that it does not always correspond to what a layperson would take ‘human trafficking’ to be. It is also ambiguous, especially (as the Centre for Social Justice has highlighted)[4] in relation to ‘cuckooing’. If drug dealers take over the home of a mentally vulnerable person, it is arguable (though unclear) that they are ‘using him to provide a service’ but the element of ‘arranging travel’ is absent. But suppose (as has happened in at least one case) that the dealers regularly send the tenant of the flat out takeaways to buy food for them. They are now ‘arranging travel’, albeit over a short distance, he is clearly ‘providing a service’ by collecting and delivering food, and the dealers may well be ‘using’ him for this purpose because someone without his disability would be less likely to agree to provide the service. So they could be prosecuted for human trafficking under MSA s. 3(6), and he might have a defence to crimes that he committed at their behest, since he is subject to ‘relevant exploitation’ under s. 45(5). But then the – quite absurd – question arises whether the compulsion to commit the offence (e.g. of drug possession) has to be directly related to the provision of takeaway food, or whether the whole ‘cuckooing’ relationship is now one of trafficker and victim, as each time the vulnerable tenant returns from the chicken shop his travel has been arranged ‘with a view’ to his continuing to provide the dealers with access to his flat. The availability of the defence depends on questions that are both ambiguous and arbitrary.

1.3.  A more serious problem is that particularly where young or disabled people are concerned the defence does not distinguish between those who are subject to coercion and those who are simply exploited. In ‘county lines’ cases, there is no doubt that many of the young people used as drug dealers or drug runners are subject to brutal coercion and are in a condition amounting to servitude (typically in the form of debt bondage) or at least forced labour. But the definition of trafficking also extends to the situation which, in the trial judge’s view, obtained in the leading case of R v Karemara [2018] EWCA Crim 1432, where a number of boys aged under 18 had voluntarily entered into a lucrative arrangement to transport drugs for money. The Court of Appeal in that case was concerned with whether the dealers could be convicted of trafficking, and did not consider the implications of the decision for the s. 45 defence which was not in force at the material time. In a jurisdiction where the age of criminal responsibility is 10, it is difficult to see why 16-17 drug couriers should have a blanket defence simply on the ground of their youth. No doubt there are cases wherenaivety of those concerned or the emotional pressures to which they are subject make prosecuting them undesirable – and under ECAT art. 26, the possibility of non-prosecution must be considered. But this could be done by prosecutorial discretion, applying the public interest test.

1.4.  The other major problem with the defence is the difficulty of determining whether an adult had a ‘realistic alternative’ to committing the offence, or in the case of a child whether a ‘reasonable person’ with the same ‘relevant characteristics’ would have done so. The ‘relevant characteristics’ include age, sex and illness or disability, but not the effects of prolonged coercion and psychological manipulation by traffickers. For example in R v AAD [2022] EWCA Crim 106, a Vietnamese ‘cannabis gardener’ who was undoubtedly trafficked succeeded in leaving the premises where he had been tending cannabis plants, but when he failed to find another Vietnamese-speaking person who could help him, he gave up and returned to his traffickers. Though this could easily be interpreted as a sad indication of the helplessness to which he had been reduced, it was held that he had not been compelled to commit the offence and had a reasonable alternative to doing so. 

1.5.  In view of these difficulties, it is easy to see the attraction of the view which was advanced by one of AAD’s co-appellants and rejected by the Court of Appeal: that the defence should be based simply on a ‘causal nexus’ with trafficking, rather than on compulsion. This would also meet the objection raised by GRETA in its Third Round Evaluation Report on the UK that the ‘reasonable person’ test introduced an element of compulsion that should not have to be proved in children’s cases.[5] The Court of Appeal was clearly right to regard the proposed defence as incompatible with the current wording of the Act. But any proposal to change the Act to a causation-based defence has to deal with the fact that this would create a remarkably broad immunity for young people recruited to provide illegal services.

1.6.  The solution, we suggest, lies in changing the defence to one that is based on causation, not compulsion, but is confined to victims of slavery, servitude or forced and compulsory labour. The principle underlying this proposal is a broadly Kantian one:[6] the primary purpose of the criminal law is to protect freedom, and those whose freedom it protects must accept the obligation to respect the freedoms of others, and are liable to punishment by the state if they do not. Where the state so far fails to protect freedom that a person falls into a condition of slavery, servitude or forced labour (contrary to ECHR article 4), the basis for holding that person liable to punishment no longer applies.

1.7.  We recognise the difficulties of drafting such a defence and of drawing the line between forced labour and lesser forms of exploitation where any decision not to prosecute would be an exercise of discretion. In the limited time available to us we have not attempted to address these issues.

2. Evidence of victimhood: reversing R v Brecani

2.1.  In the process of deciding whether to prosecute someone who may be a victim of trafficking, an important part is played by the decisions of the Single Competent Authority within the Home Office (the name is under review as it now shares the role with Immigration Enforcement Competent Authority). The CPS will take a reasonable or conclusive grounds decision into account, and failure to do so would breach its obligations under ECHR Article 4 and the non-punishment principle. Should the CPS decide, as it is entitled to do, either that it disagrees with the Competent Authority’s decision that an individual is a victim of trafficking, or that they are a victim but do not satisfy the other elements of the s. 45 defence, the defendant may raise the s. 45 defence at trial but cannot rely on the Competent Authority’s decision as evidence that they are a victim of trafficking or modern slavery. They may, however, be able to rely on the decision in an appeal.

2.2.  This is the result of the Court of Appeal’s decision in the case of R v Brecani [2021] EWCA Crim 731, followed by R v AAJ [2021] EWCA Crim 1278 and the AAD case discussed above. The Court in Brecani stated that ‘caseworkers in the Single Competent Authority are [not] experts in human trafficking or modern slavery and for that reason cannot give opinion evidence in a trial on whether an individual was trafficking or exploited’. This dramatically changed the previous ruling in the case of DPP v M [2020] where the court held that the Single Competent Authority’s Conclusive Grounds decisions are admissible.

2.3.  We accept that the caseworkers who make decisions for the competent authority do not have a very high level of expertise. English law, however, takes a very broad and pragmatic view of who is an ‘expert’. For instance police officers are often treated as ‘experts’ on such matters as the habits of local drug dealers and even the meaning of rap music lyrics. The decision in DPP v M was consistent with this pragmatism. [7]

2.4.  On the facts of Brecani the report was of very little evidential value because it relied on hearsay evidence from the defendant who himself gave evidence. Thus it was essentially evidence that the Authority believed the defendant, and that kind of ‘oath helping’ evidence, as it is sometimes called, is generally inadmissible. The actual decision in Brecani is justifiable on the grounds that it was hearsay evidence of credibility, but there was no need for the Court of Appeal to overrule Brecani.

2.5.  Brecani applies to the Single Competent Authority and presumably also applies to the Immigration Enforcement Competent Authority. It is unclear whether it applies to decisions taken by multi-agency panels under the ‘Devolving Child Decision Making Pilot Programme’ announced in July 2022.[8] These panels of social work, police and health authority representatives have a stronger claim to expertise than the competent authority’s caseworkers and it would be consistent with other cases where police officers and social workers are treated as expert witnesses to admit their evidence. The result would be that children who claimed to be victims of trafficking would face a ‘postcode lottery’ to determine whether expert evidence of their victimization was admissible.

2.6.  The ruling that the competent authority’s decision is inadmissible in court is anomalous because the evidence that can be taken into account by the CPS and the Court of Appeal cannot be taken into account by the jury. It is unfair because it deprives defendants who are in fear of testifying against their traffickers of the means they are mostly likely to have of meeting the evidential burden that arises when the defence is raised – that is, the burden not of proving that they are victims of trafficking but of adducing sufficient evidence to raise the issue. It is also, we submit, contrary to the UK’s obligations under the ECHR articles 4 and 6, as interpreted by the European Court of Human Rights in VCL v UK (2021) 73 EHRR 9.

2.7.  It is clear from that decision that the UK has an obligation to establish an authority to determine who is a victim of trafficking or modern slavery. ‘Evidence concerning an accused’s status as a victim of trafficking is … a “fundamental aspect” of the defence which he or she should be able to secure without restriction’ (para 196) and that a timely assessment by the competent authority of whether someone is a victim is essential because it may provide that evidence. Since the UK is obliged to provide an assessment by the competent authority that the defendant can use to raise a defence, it makes a mockery of that obligation of the defendant is then prevented from using that evidence in court.

2.8.  As we have argued elsewhere, it will not do to argue as the Court of Appeal does in AAD that the evidence afforded by the competent authority’s decision will be sufficiently considered by the CPS in deciding whether to prosecute, and if it fails to do so this can be challenged as an abuse of process.[9] According to VCL the prosecution must have ‘clear reasons which are consistent with the definition of trafficking contained in the Palermo Protocol and the Anti-Trafficking Convention’ for departing the conclusions of the competent authority (para. 162). This a more stringent test than whether the CPS has acted irrationally and abused the process of the court; and to respect the defendant’s right to a fair trial the ‘clear reasons’ for rejecting a ‘fundamental aspect’ of the defence should be demonstrated in open court.

2.9.  We recommend that any reform of the s. 45 defence should include a clause stating that decisions of a competent authority (including multi-disciplinary panels etc.) should be admissible in evidence. There is no need to specify that they would be treated as expert evidence. The fact that they are likely to rely on hearsay evidence from the defendant should not be a bar to admissibility – such evidence is commonly admitted in psychiatric reports, for example. A more difficult question is whether the report should be admitted in a case like Brecani itself, where it merely shows that the authority believed the defendant’s story which was substantially the same story that the defendant gives in evidence. General principles regarding evidence of credibility suggest that it should not be admissible, but this could have the perverse effect of deterring defendants from telling their own story in the witness-box where they would not otherwise be afraid to do so. On balance, therefore, it does not appear desirable to create an exception to the admissibility of the decision in these circumstances.

March 2023