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Statutory defence for child victims of trafficking and slavery – section 45 Modern Slavery Act 2015

The Modern Slavery Act 2015 provides a statutory defence for victims of child trafficking and slavery accused of certain offences.

Details

Section 45 Modern Slavery Act 2015 came into force on 31 July 2015 and introduces a defence for victims who are compelled to commit criminal offences.

Where a child commits an offence and they do so as a direct consequence of being or having been a victim of slavery or trafficking, then section 45 Modern Slavery Act 2015 provides a defence.

It states that a child will be not guilty of an offence if:

“…(a)the person is under the age of 18 when the person does the act which constitutes the offence,

(b) the person does that act as a direct consequence of the person being, or having been, a victim of slavery or a victim of relevant exploitation, and 

(c) a reasonable person in the same situation as the person and having the person’s relevant characteristics would do that act.”

[emphasis added]

Offences subject to this defence include the theft (pick pocketing), cultivation of cannabis, offences related to prostitution and immigration offences. However, schedule 4 of Modern Slavery Act 2015 lists 140 offences which are exempt from the statutory defence, many of which are common in child trafficking cases, for example arson. Other offences excluded include murder, kidnap and false imprisonment.

“Where an offence is not covered by the defence, the CPS should still consider whether it is in the public interest to prosecute or not, considering the Director of Public Prosecutions guidance on modern slavery cases. In serious cases (such as rape or where someone had been killed), it is essential that prosecutors can look at all the circumstances of the case and consider both the victim of the offence and position of the modern slavery victim when determining whether it is in the interests of justice, that a prosecution should proceed.” [Modern Slavery Bill, Factsheet: Defence for victims (Clause 45) Home Office, November 2014]

The section 45 defence reflects the international principle of non-prosecution of trafficked children arising in a number of international instruments1 and the UK’s obligations under the Council of Europe Convention on Action against Trafficking in Human Beings 2005 and the EU Directive on Trafficking.

    • Human trafficking is defined as a person “arranges or facilitates the travel of another person (“V”) with a view to V being exploited.”2 Travel can be within the UK.
    • Slavery includes servitude, forced labour, sexual exploitation, securing services by force, threats or deception, securing services from children and vulnerable adults.3
    • Where the police believe a person to be a victim of trafficking they should make a referral to the National Referral Mechanism (NRM) directly.
    • Presumption that a victim is a child – in cases where the police or court have reasonable grounds to believe a person is a victim of trafficking and their age is uncertain, but they may be under 18, the court must presume they are a child.4

 

Helpful guidance includes:

 

Commentary

Defence practitioners should be alert to this defence where they suspect or know that a child suspect or defendant has been or may have been a victim of trafficking or slavery. These cases must be handled sensitively and with care. Child victims of trafficking, slavery and exploitation are extremely vulnerable and may not perceive themselves as ‘victims’. They are often still under the ‘control’ of their traffickers while criminal proceedings are ongoing and attempts may be made to coerce or abduct the child.

Arguably, the section 45 defence does not adequately protect victims of trafficking or slavery, the ‘reasonable person test’ requires vulnerable child victims to go through the ordeal of a criminal trial and the exclusion of certain criminal offences affords other victims no protection. Practitioners may want to argue that the protection from prosecution should be far broader.

The CPS legal guidance on Human Trafficking, Smuggling and Slavery states

“..Where there may be consideration of charge and prosecution of vulnerable children or adults, prosecutors should consider applying the statutory defence or CPS policy on the non-prosecution of suspects who may be victims of trafficking.”

“When considering whether to prosecute a child victim of trafficking/slavery, prosecutors will only need to consider whether or not the offence is committed as a direct consequence of, or in the course of trafficking/slavery.”

Defence practitioners should also be aware of the cases of L, HVN, THN and T [2013] EWCA Crim 991 and LM & Ors [2010] EWCA Crim 2327.

  1. UN Trafficking Protocol, Articles 35 and 36 UN Convention on the Rights of the Child (UNCRC) and its Optional Protocol on the Sale of Children, Child Prostitution and Child Pornography  (back)
  2. Section 2(1) Modern Slavery Act 2015  (back)
  3. Section 3 Modern Slavery Act 2015  (back)
  4. Section 51 Modern Slavery Act 2015  (back)