The Court of Appeal considered aspects of the defence of duress under section 45 of the Modern Slavery Act 2015. The judgment restates the law concerning child victims of trafficking, confirming that once it had been established that the child was a victim of trafficking for the purposes of exploitation, the relevant consideration was whether there was a sufficient nexus between the trafficking and the offence; it was not necessary to show there was compulsion to commit the offence, as required for an adult. The court ruled that the provisions did not have retrospective effect.
On 31 July 2015, section 45 of the Modern Slavery Act 2015 introduced a statutory defence of duress for victims of trafficking who had been forced to commit offences. Prior to this, there had been no statutory provision which incorporated the UK’s obligations under the international conventions towards trafficking victims where there was a nexus between the crime and the trafficking.
In conjoined appeals and applications, the court considered the approach to prosecution of victims of human trafficking for the purposes of exploitation who had committed crimes. Amongst its finding, the court held that section 45 had been enacted without retrospective protection and that this was consistent with the UK’s international obligations (para. 28). Amongst the other issues that were considered was the position of children and the evidential requirements in relation to trafficking and the nexus between trafficking for the purposes of exploitation and the crime committed.
The judgment stated: ‘The law is, in our view, clear. Once it is established that a child is a victim of trafficking for the purposes of exploitation, the relevant consideration is whether there is a sufficient nexus between the trafficking for the purposes of exploitation and the offence; it is not necessary to go so far as to show there was compulsion to commit the offence required in the case of an adult’ [para. 35].
Advocates should be alert to the possibility that child defendants may be the victims of human trafficking and of their duties to make relevant enquiries in this regard. In R v O  EWCA Crim 2835 the Court of Appeal emphasised the duty of both prosecutors and defence lawyers to make proper enquiries in criminal prosecutions involving individuals who may be victims of trafficking. The Court of Appeal further emphasised this duty in L, HVN, THN and T v R  EWCA Crim 991. The definition of trafficking is wide and a child could be the victim of trafficking even if they have never been out of the United Kingdom (see section 2 Modern Slavery Act 2015).
A recently published report (November 2016) considered the steps lawyers (and guardians) can take to better identify and protect trafficked children, using evidence from five European countries, including the UK. The report stated that duty solicitors at the Magistrates Court level in the UK have little knowledge or experience of child trafficking and the principle of non-prosecution. Amongst the report’s recommendations was a call for law societies, bar associations and/or the Ministry of Justice to arrange comprehensive training for all lawyers who will might advise and represent trafficked children, including in criminal proceedings. The report emphasised that all lawyers should be aware of the need to advocate for special measures in court to protect trafficked children against retraumatisation and duress.
For more information on section 45 of the Modern Slavery Act 2015, please click here.