Give us feedback
X

Court of Appeal judgment on the relevance of a child’s willingness to be trafficked

R v K,W,A [2018] EWCA Crim 1432

The Court of Appeal allowed an appeal by the Crown against a ruling of no case to answer.  The trial judge had  wrongly considered that it was relevant to consider whether the children who had been exploited into carrying drugs in a county lines case were willing volunteers.

Details

The Crown appealed a ruling of no case to answer in a case in which the respondents had been prosecuted for trafficking children as part of a county lines operation under section 4 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004.

For the purpose of the offence for which the respondents were originally prosecuted, a person is exploited if someone uses or attempts to use him:

  • to provide services of any kind, or
  • to provide another person with benefits of any kind, or
  • to enable another person to acquire benefits of any kind, and

having chosen him for that purpose on the grounds that he is mentally or physically ill or disabled, he is young or he has a family relationship with a person, and a person without the illness, disability, youth or family relationship would be likely to refuse to be used for that purpose.1

The Court of Appeal held that the trial judge had been wrong to conclude that the youth (or one of the other identified characteristics) must be the sole ground for the choice of person to exploit.

In addition, the prosecution did not need to prove a lack of consent on the part of the young courier or any element of coercion. Any such suggestion must have been be defeated by:

  1. the agreed position of all defendants that consent is no defence (as now made express in section 2(3) the Modern Slavery Act 2015);
  2. the protective purpose of the legislation; and
  3. the fact that the concept of ‘choice’ assumes the willingness of the chosen.

‘Indeed, standing back, when the provision is viewed as a whole it is clear that the mischief it seeks to address is the very fact that a vulnerable person has consented; the Act is seeking to protect the young and the vulnerable from their own decision making’.

Commentary

This is an important case for any criminal practitioner as, unlike the legal test in relation to ‘duress,’ the legal defence and other protections now afforded by the Modern Slavery Act 2015  do not require children to consent to their exploitation.

  1. interpretation of section 4 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 as amended  (back)