ADG: Court of Appeal case highlights continued failure to protect child victims of exploitation

ADG & Another [2023EWCA Crim 1309

The recent judgement in R v ADG BIJ 2023 demonstrates that 8 years after the enactment of the Modern Slavery Act 2015, children and young people continue to be failed in relation to their defence to offending as victims of trafficking.


ADG and BIJ were only 14 at the start of the indictment period and 16 years old at the end. Both were in care. ADJ had a learning disability of which evidence was before the court.

Both defendants were relying on s.45 of the Modern Slavery Act  2015 in their defence against allegations of Class A drug supply.  ADG served a defence statement setting out that he was targeted, utilised and exploited by others. BIJ’s case was that he was pressured to pay off  drugs and cash. Both gave evidence that they were forced to do various acts.

The judge circulated a draft of his legal directions to prosecution counsel and both defence counsel before they went to the jury. No one for the Crown or the defendants or the judge himself realised the draft directions included compulsion as an element of the defence.

The jury was directed that if they were sure the defendants were not operating only by reason of compulsion, they should find the defendants guilty.

Section 45(4) of the Modern Slavery Act 2015 provides:

(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.

This mirrors Article 4(c ) of the Council of Europe Convention on Action against Trafficking in Human Beings (the Convention) which provides that:

The recruitment, transportation, transfer, harbouring or receipt of a child for the purpose of exploitation shall be considered "trafficking in human beings…”

Therefore it is plain that compulsion is not an element of the defence for youths.  

In quashing the convictions, the Court of Appeal noted that with R v NHF, this is the second case in which it is apparent that the critical difference between the section 45 defence for those aged 18 years and over, and those aged under 18 years, has been missed


With very young defendants, who were in care and with police intelligence reports supporting their exploitation and threats, it is alarming that these vulnerable children were prosecuted at all, let alone convicted. There is clearly much to be done in terms of effective representation of children in the Crown Court and in the protection of their Article 4 ECHR rights.

Written by Elena Papamichael, Barrister at Garden Court Chambers