Human Trafficking, Smuggling and Slavery

05/11/2018 - updated|Legal Guidance, International and organised crime

This guidance applies to suspects in a criminal case who might be victims of trafficking or slavery. When dealing with cases involving a child, Prosecutors must consider the additional requirements set out below in the section 'Suspects who may be children'

Prosecutor's obligations

Prosecutors should be aware of the obligations imposed upon them when deciding whether to prosecute a suspect who might be a victim of trafficking or slavery and who:

  • In the case of an adult, has been compelled to commit a criminal offence as a direct consequence of their situation.
  • In the case of a child under 18, has done the act as a direct consequence of being a victim of slavery or exploitation.

These obligations arise under:

  • Article 4 of the European Convention on Human Rights (ECHR) which prohibits slavery and forced labour.
  • Article 26 of the Council of Europe Anti-Trafficking Convention which requires the United Kingdom to: "... provide for the possibility of not imposing penalties on victims [of trafficking] for their involvement in unlawful activities, to the extent that they have been compelled to do so".
  • Article 8 of EU Anti-Trafficking Directive 2011/36/EU, whereby "national authorities are entitled not to prosecute or impose penalties on victims of trafficking human beings for their involvement in criminal activities which they have been compelled to commit as a direct consequence of being subjected to trafficking".

A four-stage approach to the prosecution decision

When applying the Full Code Test in the Code for Crown Prosecutors, Prosecutors should adopt the following four-stage assessment:

  1. Is there a reason to believe that the person is a victim of trafficking or slavery?
    • If yes, move to Question 2.
    • If not, you do not need to consider this assessment further.
  2. Is there clear evidence of a credible common law defence of duress?
    • If yes, then the case should not be charged or should be discontinued on evidential grounds.
    • If not, move to Question 3.
  3. Is there clear evidence of a statutory defence under Section 45 of the Modern Slavery Act 2015?
    • If yes, then the case should not be charged or should be discontinued on evidential grounds
    • If not, move to Question 4.
  4. Is it in the public interest to prosecute? Even where there is no clear evidence of duress and no clear evidence of a s.45 defence or where s.45 does not apply (because the offence is excluded under Schedule 4) this must be considered. In considering the public interest, Prosecutors should consider all the circumstances of the case, including the seriousness of the offence and any direct or indirect compulsion arising from their trafficking situation; see R v LM Ors [2010] EWCA Crim 2327.

Stage 1: Is there reason to believe the person is a victim of trafficking/slavery?

Indicators of trafficking and slavery

Prosecutors should be alert to particular circumstances or situations where someone suspected of committing a criminal offence might also be a victim of trafficking or slavery. The most common offences include an unaccompanied foreign national child committing offences, such as pickpocketing or cultivation of cannabis or in the case of adults, committing offences such as those involving immigration documents or controlling prostitution. Guidance is published to investigators on indicators of trafficking and this may also be of help to prosecutors.

The duty to make proper enquiries and to refer through the National Referral Mechanism (NRM)

In considering whether a suspect might be a victim of trafficking or slavery, as required in the first stage of the assessment, Prosecutors should have regard to their duty to make proper enquiries in criminal prosecutions involving individuals who may be victims of trafficking or slavery.

The enquiries should be made by:

  • Advising the law enforcement agency who investigated the original offence that it must investigate the suspect's trafficking/slavery situation; and
  • Advising that the suspect is referred through the NRM for victim identification, if this has not already occurred. All law enforcement officers are able to refer potential victims of trafficking/slavery to the NRM. Referral forms can be found here. Further information concerning the NRM can be found on the Council of Europe Convention on Action against Trafficking in Human Beings and in this guidance.

If an adult suspect does not consent to their referral, the charging decision should be made on whatever other information might be available, without the benefit of an NRM decision on their victim status (see below)

These steps must be carried out, regardless of what has been advised by the investigator or whether there is an indication of a guilty plea by the suspect's legal representative (see the section on Early guilty plea below). It should be noted that adults must consent to be referred to the NRM.

Referral to the NRM and NRM decisions

  • Following the NRM referral, the Competent Authority (CA) will first make a reasonable grounds decision. In the United Kingdom, the CA is either the Home Office (through a team in UKVI) or the UK Modern Slavery Human Trafficking Unit (UKMSHTU), depending on the victim's immigration status. A positive reasonable grounds decision is made when there are reasonable grounds to believe the individual is a potential victim of human trafficking/slavery. This means "I suspect, but cannot prove" that the individual is a victim. This decision should take 5 days. The potential trafficking/slavery victim will then be eligible for government funded support during a recovery and reflection period for 45 days.
  • During the 45 day period, the CA gathers further information about the victim. This additional information is used to make a conclusive grounds decision on whether the referred person is a victim of human trafficking/slavery.
  • A conclusive grounds decision is whether, on the balance of probabilities, it is more likely than not that the individual is a victim of human trafficking/slavery.
  • Prosecutors should:
    • Take into account an NRM decision;
    • Consider a conclusive grounds decision to be of more weight than a reasonable grounds decision;
    • Make enquiries, where there is a reasonable grounds decision only, about when a conclusive decision is likely to be made; and
    • Examine the cogency of the evidence on which the Competent Authority relied.

Stage 2: Is their clear evidence of duress?

There is no definitive statement of the scope of the common law defence of duress. However, a distillation of various authorities has led to the following definition being widely accepted:

"A threat of physical harm to the person (including, possibly, of imprisonment) made, which was of such gravity that it might well have caused a sober person of reasonable firmness sharing the defendants characteristics and placed in the same situation to act in the same way as the defendant acted."

All of the authorities recognising duress as a defence have involved threats of death or grievous bodily harm.

The threat may relate to the defendant or a member of his immediate family or alternatively to a person for whose safety the defendant would reasonably regard himself as responsible: R v Wright [2000] Crim .L.R. 510, CA.

A defendant cannot rely on the defence of duress if he has voluntarily, by association with others, exposed himself to the risk of such duress (e.g. by joining a criminal organisation or gang): R v Sharp [1987] QB 853.

Duress is not available as a defence to murder or attempted murder: R v Gotts [1992] 2 AC 412.

Stage 3: Is there clear evidence of a Section 45 defence?

Section 45 of the Modern Slavery Act 2015 created a defence for victims who are compelled to commit certain criminal offences, on or after 31 July 2015. For offences committed by victims before this date, Stages 1, 2 and 4 of the Four-Stage Approach to the Prosecution Decision (above) will apply.

Under Section 45:

  1. A person is not guilty of an offence if -
    • The person is aged 18 or over when the person does the act which constitutes the offence;
    • The person does that act because they were compelled to do it;
    • The compulsion is attributable to slavery or relevant exploitation, and
    • A reasonable person in the same situation as the person and having the person's relevant characteristics would have no realistic alternative to doing that act.
  2. A person may be compelled to do something by another person or by the person's circumstances.
  3. Compulsion is attributable to slavery or to relevant exploitation only if -
    • It is, or is part of, conduct which constitutes an offence under Section 1 (MSA) or conduct which constitutes relevant exploitation, or
    • It is a direct consequence of a person being, or having been, a victim of slavery or a victim of relevant exploitation.
  4. A person is not guilty of an offence if -
    • The person is under the age of 18 when the person does the act which constitutes the offence,
    • 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
    • A reasonable person in the same situation and having the person's relevant characteristics would do that act.
  5. For the purposes of this section
    • relevant characteristics mean age, sex and any physical or mental illness or disability;
    • relevant exploitation is exploitation (within the meaning of Section 3) that is attributable to the exploited person being or having been, a victim of human trafficking.
  6. In this section references to an act include an omission.
  7. Subsections (1) and (4) do not apply to an offence listed in Schedule 4 (which includes serious sexual or violent offences).

Burden and standard of proof

Section 45 places a mere evidential burden upon the Defendant. Therefore, in order to avail himself of the defence, the Defendant will only have to adduce sufficient evidence to pass the judge so as to allow the defence to be considered by the jury.

If a Defendant succeeds in discharging the evidential burden, then the legal burden falls upon the prosecution to disprove the defence beyond reasonable doubt.

Where the Defendant puts age in issue, it is for the prosecution to prove beyond reasonable doubt that the defendant is over 18.

The safeguard against scrupulous use of the defence lies within the application of the objective tests set out in Section 45(1)(d) (for persons over 18) and Section 45(4)(c) (for persons under 18); see R v Kreka and R v Gega [2018].

When deciding whether to bring or continue a prosecution, careful consideration should be given to the availability of the Section 45 defence and whether there is sufficient evidence to disprove the defence beyond reasonable doubt.

Evidential Stage and the NRM

No charges should be brought if there is sufficient evidence that suggests that:

  • The suspect is a genuine victim of trafficking or slavery; and that
  • The other conditions in Section 45 are met (relevant to whether the suspect is an adult or child); and
  • The offence is not an excluded offence under Schedule 4 to the Act,

However, it does not follow from the mere fact that an individual fits the profile of a victim of trafficking that they necessarily are a victim of trafficking.

Where there is a conclusive grounds decision under the NRM, Prosecutors should:

  • Consider the conclusive grounds decision;
  • Examine the cogency of the evidence on which the Competent Authority relied; see R v VSJ & Ors [2017] EWCA Crim 36.

Stage 4: Is it in the public interest to prosecute?

The Public Interest and Compulsion

Compulsion includes all the means of trafficking defined by the United Nations Protocol on Trafficking (The United Nations Convention against Transnational Organised Crime 2000 supplemented by the Protocol to Prevent, Suppress and Punish Trafficking in Persons): threats, use of force, fraud and deception, inducement, abuse of power or of a position of vulnerability, or use of debt bondage. It does not require physical force or constraint.

For a child to be a victim of trafficking, the means of trafficking are irrelevant. Where a child is recruited, transported, transferred, harboured or received for the purpose of exploitation, s/he is a victim of trafficking.

Compulsion is irrelevant insofar as a childs status as is a victim of trafficking is concerned. However, compulsion will be a relevant consideration when considering whether the public interest in prosecuting a child is satisfied.

The means of trafficking/slavery (i.e. the level of compulsion) may not be sufficient to give rise to defences of duress or under Section 45 but will be relevant when considering the public interest test.

In considering whether a trafficking/slavery victim has been compelled to commit a crime, Prosecutors should consider whether a suspects criminality or culpability has been effectively extinguished or diminished to a point where it is not in the public interest to prosecute.

A suspects criminality or culpability should be considered in light of the seriousness of the offence. The more serious the offence, the greater the dominant force needed to reduce the criminality or culpability to the point where it is not in the public interest to prosecute; see R v VSJ Ors [2017] EWCA Crim 36.

Early guilty plea

Where there is an indication of an early guilty plea, a full investigation has not been carried out and the circumstances are such that there is suspicion of trafficking/slavery, at the first hearing Prosecutors should:

  1. Ensure that the Defendants legal representatives are aware of the possibility of there being a defence under Section 45;
  2. Request that a plea is not formally entered; and
  3. Apply for an adjournment for further investigation into the defendants possible status as a victim of slavery or trafficking.

In view of the timescales prescribed by the Transforming Summary Justice (TSJ) and the Better Case Management (BCM) initiatives, the Court may be unwilling to grant an adjournment. Furthermore, despite being put on notice of the issue, the defence may still insist on indicating or entering an early guilty plea. In these circumstances, the Prosecutor will have discharged his/her obligations to the defence and to the Court and the case should then proceed to sentence.

Post-charge trafficking/slavery evidence

In cases where a decision has already been taken to charge and prosecute a suspect, but further credible evidence comes to light, or the status of a suspect as a possible victim of trafficking/slavery is raised post-conviction, for example in mitigation or through a pre-sentence report, then Prosecutors should seek an adjournment and ensure that the suspect is referred through the NRM and that the steps outlined in Stage 4 above are carried out.

Suspects who may be children - Additional requirements

Due inquiry as to age

Section 99(1) of the Children and Young Persons Act 1933 directs the Court to "make due inquiry" about the Defendant's age and "take such evidence as may be forthcoming at the hearing of the case" for this purpose. Similar provisions require the Court addressing the age question to consider "any available evidence" (Section 150 of the Magistrates Court Act 1980; Section 1(6) of the Criminal Justice Act 1982; and Section 305(2) of the Criminal Justice Act 2003).

Where any issue as to the age of a Defendant arises, it must be addressed at the first Court appearance. The documentation accompanying the defendant to Court should record his date of birth, whether as asserted by him, or as best known to the prosecution, or indeed both.

If age becomes or remains an issue at the Plea and Trial Preparation Hearing (PTPH) in Court, Prosecutors should ensure that the appropriate age-assessment enquiries are carried out. This may require an application to the Court for an adjournment.

Prosecutors should consider the separate CPS guidance concerning age assessment. See paragraphs 31 and 32 of L, HVN, THN and T v R [2013] EWCA Crim 991.

Presumption that a victim is a child

Article 10(3) of the Council of Europe Anti-Trafficking Convention provides: "When the age of the victim is uncertain and there are reasons to believe that the victim is a child, he or she shall presume to be a child and shall be accorded special protection measures pending verification of his/her age".

If at the end of a "due inquiry" the age of the Defendant remains in doubt s/he must be treated as a child. See paragraph 25 of L, HVN, THN and T v R. Section 51 Modern Slavery Act 2015 enshrines this in legislation.

Referring children through the NRM

In the case of suspects who are, or appear to be, children, the NRM referral should be made through the relevant social services department.

Further reading