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This guide will assist criminal practitioners representing children who have been exploited and are charged with offences arising out of that exploitation.
Published December 2020
Updated March 2021
Children who have been the subject of criminal exploitation should be recognised as victims, not perpetrators. Practitioners must know how to identify when child suspects are potential victims of Child Criminal Exploitation (CCE) and know what steps to take next.
CCE ‘occurs where an individual or group takes advantage of an imbalance of power to coerce, control, manipulate or deceive a child ... The victim may have been criminally exploited even if the activity appears consensual. Child Criminal Exploitation does not always involve physical contact; it can also occur through the use of technology’.1
‘Child trafficking’ is defined as the recruitment, transportation, transfer, harbouring or receipt of a child for the purpose of exploitation.2 Therefore, victims of CCE can be also be defined as victims of trafficking (VoTs).
CCE often occurs within ‘county lines’ drug-dealing operations. ‘County lines’ is a term used to describe gangs involved in exporting illegal drugs within the UK, using dedicated mobile phone lines. They are likely to exploit children to move and store the drugs, and will often use coercion, intimidation and violence.3
This guide will:
This guide provides an overview of the two systems that you will need to be aware of when preparing an exploited child’s defence:
1. The National Referral Mechanism (NRM) – in which the Single Competent Authority (SCA), a division of the Home Office, determines whether a child has been the victim of modern slavery.4 The NRM will issue either a negative or positive Conclusive Grounds (CG) decision as to whether a child is a victim of modern slavery.5
2. The criminal justice system – in which a child, prosecuted for crimes arising directly from CCE, may raise a defence relating to their experience of exploitation. These systems run alongside one-another. Please see page 6 of the guide as to the relevance of a CG decision to the prosecution of an exploited child. The type of defence a child can run will depend on the type of offence that they have been charged with. There are two categories of offences:
Section 45(4) MSA 2015 states:
(4) A person is 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.
Outcomes in the table below may be pursued:
However, in practice, a positive NRM determination will be very helpful for securing a better outcome.
*Please note that the footnotes in this table are visible in the table image and do not appear in the footnotes at the end of the document.
Recognised background features of criminal exploitation include:6
Recognised signs of criminal exploitation include:6
Other features of exploitation include:
Ask for the views of caregivers and professionals to be documented in writing. Ensure that this information is recorded formally so it can be used in the making of representations and for the court.
The NRM is the process by which a division of the Home Office, the SCA, receives and investigates referrals where it is suspected that an individual is a VoT. The SCA is empowered to determine whether a child is a victim of modern slavery. There are two stages to the decision-making process:
The procedure to be followed in the decision-making process and the time frames within which decisions should be made are set out in statutory guidance.5
A positive CG decision has several advantages in the defence of an exploited child. As a determination by a statutory body, it:
A First Responder will make the referral: this is a statutory body or non-governmental organisation (NGO) empowered to make a NRM referral. Making a referral in all potential CCE cases is essential, irrespective of whether a child is able to advance a defence pursuant to s45(4) MSA 2015.
*Please note that the footnotes in these tables are visible in the table images and do not appear in the footnotes at the end of the document.
A negative RG or CG decision may be challenged in two ways:
If at the police station a child client discloses that they are a victim of exploitation:
In an interview under caution, a child can disclose their status as a victim of exploitation.
There are three options available to the child suspect. Two of these involve making admissions of the criminality alleged. All the options are case-specific and careful thought will need to be given as to which is the most suitable.
There are many reasons why a child might choose to exercise their right to silence in relation to the issue of exploitation (and other questions), including:
Bear in mind the possible adverse effects, including:
If matters progress to trial and a s45(4) defence is advanced in which the child defendant gives evidence, the Crown may seek an adverse inference arising from the failure to disclose exploitation in
Nonetheless, there is recognition from a variety of sources that there are many genuine reasons which may account for the failure to disclose exploitation, including:
All of this material may be used as the basis for resisting an adverse inference being drawn.
A prepared statement should address the following matters:
Be alive to the following potential post-arrest outcomes:
Inviting the police/YOS to consider an OOCD is an option available to the police/CPS, provided the criteria for the OOCD envisaged are met.
This is a potentially controversial outcome, as it may involve accepting criminality despite the presence of a defence. Ultimately, it involves weighing principled and pragmatic considerations and focussing on what is in the best interests of the child. Entertaining an OOCD as a possibility is necessary in the light of the decision in DS,23 which acts as a disincentive to the Crown discontinuing proceedings or offering no evidence, even with a positive CG decision.
Defence representations are essential in advocating for any outcome that involves: (1) charges not being brought, (2) a prosecution not being pursued, or (3) a deferral of decision-making.
Receipt of a RG or CG decision is not necessary for representations to be made. A positive determination can be used to bolster existing representations once received.
Representations should set out a chronology of incidents indicating exploitation and the child suspect’s characteristics which make them vulnerable to grooming:
Factors to consider when preparing representations:
Representations should address the CPS four-stage test for the review of a prosecution involving a victim of trafficking.
Prosecutors should adopt the following four-stage assessment when applying the Full Code Test in the Code for Crown Prosecutors:
Key submissions will be:
Public interest considerations:
Where a positive CG determination forms the basis of the review, representations should address the cogency of the evidence on which the CG was based:
Key principles that should be cited in representations include:
The key objective of the representations is to encourage the CPS to adopt an approach that is consistent with guidance relating to the prosecution of children and victims of criminal exploitation. Broadly, this guidance emphasises the following:
Particular standards must be met by the Crown when they review the case of a victim of exploitation:
Practitioners may wish to:
There are often lengthy delays in the SCA reaching a CG determination. Practitioners should be aware of the following matters:
In R v HHD38 the Court of Appeal laid down the following guidance for the progression of cases where the SCA has not reached a CG decision:
The following practical guidance emerges from the decision in R v HHD:38
Before February 2019, practitioners would routinely apply to stay prosecutions against exploited children as an abuse of process. The judgment of the Court of Appeal in DS40 means that the issue is now ‘unquestionably’ for the jury to resolve.
In summary, the Court of Appeal (the Lord Chief Justice giving judgment) set down the following principles:
The decision in DS40 was approved in relation to an eighteen year old appellant in the case of A,41 where the Court of Appeal rejected an argument that despite the decision in DS there remained scope for an abuse of process argument to be advanced, particularly in circumstances where the offence does not engage the s45 defence.
This is not a comprehensive summary of the elements of the s45 defence. Rather, distilled below are key matters to be aware of.
The common law defence of duress (a defence to all crimes except murder, attempted murder and treason) may be advanced where the offence is excluded by Sch4 MSA 2015.
The Court of Appeal has decided that ‘it is not necessary’ to adapt the law of duress so that it matches s45 MSA 2015 for those not entitled to its protection.45
The traditional elements of the duress defence therefore apply. There will need to be a:
As regards ‘relevant characteristics’, the following principles from R v Bowen apply:47
Expert psychiatric and psychological evidence, addressing any relevant characteristics, is likely to assist the court in understanding the nexus between the characteristic and the child’s conduct.
In the event that an exploited child (a) insists on entering an informed guilty plea, or (b) has a defence relating to their exploitation rejected by a court or jury, the following principles emerge from the authorities:
The route of appeal will be determined by the mode of trial and/or plea.
Practitioners should also remember that a case can be referred to the CCRC where the conventional avenues of appeal have been exhausted.
Typically, a post-conviction CG decision will provide the fresh evidence on which appeals are brought.
The Court of Appeal has the power to quash a conviction as unsafe where identification of a child’s exploitation occurs after conviction.50 In their analysis of whether a conviction is unsafe, the Court of Appeal will:
In practical terms this means that the Court of Appeal will scrutinise the following issues:
There is child-specific guidance and forms for making referrals:
Written by Claire Mawer and Rabah Kherbane (Doughty Street Chambers) in collaboration with Katya Moran and Laura Cooper at the Youth Justice Legal Centre. With thanks to Maya Sikand QC (Doughty Street Chambers) and Philippa Southwell (Southwell & Partners).
This guide was produced by the Youth Justice Legal Centre, part of Just for Kids Law, in collaboration with The Children’s Rights Group at Doughty Street Chambers, and funded by Paul Hastings LLP.