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s.45 Modern Slavery Act 2015 – a case on the burden of proof

R v MK: R v Persida Gega (aka Anna Maione) [2018] EWCA Crim 667

In this case the Court of Appeal considered whether, when a defence under section 45 of the Modern Slavery Act 2015 (the Act) was raised, the legal burden of proof rested on the defendant . Or, whether the defendant had only the evidential burden with the prosecution having to disprove the one or more elements of the defence to the criminal standard.


One of the appellants, MK, had been convicted of possession with intent to supply class A drugs and possession of a false identity document with improper intention. The other (un-related) appellant, Persida Gega (a.k.a. Anna Maione), had also been convicted of the latter offence.

The applicants were both Albanian nationals who claimed to have been a victims of trafficking and who sought to rely on the statutory defence afforded to such victims under section 45 of the Act.

The trial Judges directed:

  1. the defendant had an evidential burden to raise the issue whether she was a victim of trafficking or slavery;
  2. having successfully done so, it was for the prosecution to prove, beyond reasonable doubt, that she was not;
  3. if the prosecution failed to do so, the defendant had to prove the other elements of the defence on the balance of probabilities.

The applicants argued that the trial judges had misdirected the jury as to the burden and standard of proof where a defendant raises a defence under section 45 of the Act.

The court concluded “section 45 of the 2015 Act…does not implicitly require the defendant to bear the legal or persuasive burden of proof of any element of the defence. The burden on a defendant is evidential. It is for the defendant to raise evidence of each of those elements and for the prosecution to disprove one or more of them to the criminal standard in the usual way.”

As a result, MK’s conviction was quashed. Ms Gega’s conviction was dismissed as the court found that despite the trial judge’s error in directing the jury, the conviction was safe.


An increase in the number of county lines cases means children and young people are relying on the section 45 defence more regularly and  the judgment provides important clarification of the law.