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Modern Slavery, Human Trafficking and Smuggling

Updated: 30 April 2020; Updated: 2 December 2021; Updated 6 July 2022|Legal Guidance, International and organised crime

Introduction

This guidance provides practical and legal guidance to prosecutors dealing with cases of modern slavery, human trafficking and smuggling. This guidance also deals (below) with the application of the statutory defence set out in section 45 of the Modern Slavery Act 2015 and its interplay with other non-punishment principles.

Key points:

  • Victims and witnesses in human trafficking and slavery cases will often be vulnerable and/or intimidated. Prosecutors should therefore consider the range of measures available to support and protect trafficked victims giving evidence and make appropriate applications to the court.
  • The Modern Slavery Act 2015 ("the 2015 Act") consolidates existing offences of human trafficking and slavery and encompasses trafficking for all forms of exploitation. It does not apply to offences committed before 31 July 2015.
  • The offences arising under the 2015 Act are:
    • Section 1 - Slavery, Servitude, Forced and Compulsory Behaviour
    • Section 2 - Arranging or facilitating the travel of another person with a view to exploitation
    • Section 4 - Committing an offence with intent to commit an offence under section 2 of the Act
  • People trafficking and people smuggling are different concepts in law and different offences exist to deal with each of these respectively. Offences relating to people smuggling are generally found in the Immigration Act 1971. This includes:
    • Section 25 - Assisting unlawful immigration (known as facilitation).
    • Section 25A - Facilitating entry by asylum seekers to the UK for gain.
    • Section 25B - Assisting entry to the UK in breach of deportation or exclusion order.
    • Section 25B (3) - Assisting entry / remaining of excluded person.
  • Suspects and defendants may sometimes claim that they themselves have been trafficked and that this was a reason why they committed criminal offences under investigation. Such cases require a careful review of both the evidential and public interest stages of the Full Code Tests (below).

The 2015 Act consolidated offences of human trafficking and slavery and encompasses trafficking for all forms of exploitation. It came into force on 31 July 2015 and does not apply to offences committed before then.

For offences that pre-date 31 July 2015, links to relevant legislation are included. In cases where the offence is a continuing offence (such as slavery or forced labour) and straddles the date of commencement, the case should be prosecuted under the offence in force at that time. This may necessitate a number of offences arising from similar conduct being included in the indictment under the relevant legislation in force at the time.

Human Trafficking

Definition

The UN Protocol to Prevent, Suppress and Punish Trafficking in Persons (‘Palermo Protocol’) provided (Article 3) the first internationally recognised definition of human trafficking:

  1. "Trafficking in persons shall mean the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control of another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or removal of organs."

Legislation

Human Trafficking - Section 2 Modern Slavery Act 2015

  1. A person commits an offence if the person arranges or facilitates the travel of another person (V) with a view to V being exploited.
  2. It is irrelevant whether the victim consents to the travel (whether V is an adult or child).
  3. A person may in particular arrange or facilitate V's travel by recruiting V, transporting or transferring V, harbouring or receiving V, or transferring or exchanging control over V.
  4. A person arranges or a person arranges or facilitates V's travel with a view to V being exploited only if:
    1. the person intends to exploit V in any part of the world during or after travel; or
    2. the person knows or ought to know that another person is likely to exploit V in any part of the world during or after travel.
  5. Travel is defined as:
    1. Arriving in, or entering, any country
    2. Departing from any country, or
    3. Travelling within any country.
  6. A person who is a United Kingdom (UK) national commits an offence regardless of where the arranging or facilitating takes place, or where the travel takes place. In other words, this offence may be committed by a UK national anywhere in the world and no matter where V is travelling.
  7. A person who is not a UK national commits an offence if any part of the arranging or facilitating takes place in the UK, or the travel consists of arrival or entry into, departure from, or travel within the UK.
Meaning of Exploitation

Section 3 defines the meaning of exploitation for the purposes of section 2. A person is exploited only if one or more of the following apply:

  1. Slavery servitude and forced or compulsory labour, where a person is the victim of an offence under section 1 of the 2015 Act or which would involve the commission of an offence if it took place in England and Wales (section 3(2)) (see Slavery, Servitude, Forced and Compulsory Labour below).
  2. Sexual exploitation, under section 3(3)
    • Section 3(3)(a) which involves the commission of an offence under:
      • Section 1(1)(a) of the Protection of Children's Act 1978 (indecent photographs of children), or
      • Part 1 Sexual Offences Act 2003 Sexual exploitation, as it has effect in England and Wales; or
    • Section 3(3)(b) which would involve the commission of such an offence if it were done in England and Wales (section 3(3).
    • Removal of organs in circumstances where a person is encouraged required or expected to do anything which involves the commission of an offence under section 32 or 33 of the Human Tissue Act 2004 (prohibition of commercial dealings in organs and restrictions on use of live donors) as it has effect in England and Wales, or which would involve the commission of such an offence if it took place in England and Wales (section 3(4)).
    • Securing services etc. by force, threats or deception, where the person is subjected to force, threats or deception designed to induce him or her:
      1. to provide services of any kind,
      2. to provide another person with benefits of any kind, or
      3. to enable another person to acquire benefits of any kind (section 3(5)).
    • Securing services etc. from children and vulnerable persons in circumstances where another person uses or attempts to use the person for a purpose within subsections (5) (a), (b) or (c), having chosen him or her for that purpose on the grounds that -
      1. he or she is a child, is mentally or physically ill or disabled, or has a family relationship with a particular person, and
      2. an adult, or a person without the illness, disability, or family relationship, would be likely to refuse to be used for that purpose (section 3(6)).

Benefits could include any advantage derived by the trafficker (or another person) such as financial gain, profit, personal benefit or privilege as well as state financial assistance.

This is an either-way offence and on summary conviction is subject to twelve months' imprisonment and / or unlimited fine. On conviction on indictment, it is life imprisonment. The offence is also a "lifestyle offence" for the purposes of the Proceeds of Crime Act 2002 (‘POCA’). As the offence is likely to lead to a significant sentence on conviction cases will ordinarily require allocation to the Crown Court for trial.

Section 4 Modern Slavery Act 2015 - Committing an offence with intent to commit an offence under section 2 of the Act

Section 4 creates an offence of committing any offence with the intention to commit an offence of human trafficking under section 2. This includes an offence committed by aiding, abetting, counselling or procuring an offence under section 2. The offence will also capture activity such as supplying false documents to be used to facilitate trafficking. The offence is drawn widely enough to encompass any offence committed by aiding, abetting, counselling or procuring an offence of trafficking.

Section 4 was introduced to reflect section 62 of the Sexual Offences Act 2003 (committing an offence with intent to commit a sexual offence) which could be used in cases of trafficking for sexual exploitation, to ensure parity in cases of trafficking for non-sexual exploitation.

Prosecutors should note that this provision cannot be used for section 1 of the 2015 Act.

In its application to human trafficking under section 2, it should be used in circumstances where the act committed is:

  • a criminal offence; and
  • where the evidence supports the commission of a lesser offence with intent to commit a more serious offence but there is insufficient evidence to prosecute the more serious offence in its own right.

The offence of attempting to commit the substantive offence will often not be an available option to prosecutors, as the acts involved will not be “more than merely preparatory” to the commission of the substantive offence.

It will be a matter for prosecutors, when reviewing the evidence against each suspect or defendant to give consideration to all criminal offences that might be disclosed.

This is an either-way offence and on summary conviction is subject to twelve months' imprisonment and / or unlimited fine. On conviction on indictment, the maximum sentence is ten years' imprisonment. However, where the offence involves false imprisonment or kidnapping, it is life imprisonment.

Offences of human trafficking which pre-date the Modern Slavery Act 2015

For offences of trafficking for sexual exploitation which occurred before 31 July 2015, but after 13 April 2013, see: Trafficking people for sexual exploitation - section 59A Sexual Offences Act 2003.

For offences of trafficking for sexual exploitation which occurred before 13 April 2013, see: Trafficking into the UK for sexual exploitation - section 57, 58 and 59 Sexual Offences Act 2003.

For offences of trafficking for all other forms of exploitation (non-sexual exploitation) which occurred before 31 July 2015, see: Trafficking people for labour and other exploitation - section 4 of the Asylum and Immigration (Treatment of Claimants etc.) Act 2004 as amended.

In circumstances where the victim was not trafficked, or the trafficking element cannot be proved to the criminal standard, prosecutors should consider the offence of "holding another person in slavery or servitude" or "requiring them to perform forced or compulsory labour" under section 1 of the 2015 Act or, if before 31 July 2015, section 71 of the Coroners and Justice Act 2009. See the section below on Slavery, Servitude, Forced or Compulsory Labour.

Supporting Victims

Victims and witnesses in these cases are likely to be extremely vulnerable and this can present challenges in managing and supporting them before and during the trial. They are often deliberately targeted for their vulnerabilities; they may be homeless, addicted to alcohol or drugs, friendless, isolated and destitute. When they have been controlled by discipline, threats and violence, they may effectively become institutionalised. In such cases, it is good practice for the victims to be removed to a private reception centre, where their needs can be assessed and referral made to appropriate support agencies. In such cases, the police have worked with social services for the co-ordination of support services to provide on-going accommodation and retain regular contact leading up to trial. The CPS should liaise with the police in advance of the trial to agree costs of accommodation and transport for the duration of the trial.

Good practice has been to limit the number of third party contacts with the victims, to help them and reduce defence cross examination intended to undermine the victim's credibility by allegations of coaching.

Consideration should be given to the use of expert evidence such as medical evidence and psychologists - particularly where there are extreme vulnerabilities. It is important to select an expert whose expertise is tailored to the particular condition and needs of the victim, is capable of providing support to the victim as well as giving evidence, and advising advocates in understanding how best to communicate with the victim.

In some cases the use of intermediaries and ground rule hearings should be considered (see Special Measures).

If a victim of forced labour or slavery is also a suspect in a criminal offence, please refer to the section below on Suspects in a criminal case who might be victims of trafficking or slavery

Many victims take significant risks in giving evidence. Prosecutors should consider the range of measures available to support and protect trafficked victims giving evidence and make appropriate applications to the court.

Achieving Best Evidence (ABE) – Virtual recorded interviews

The published edition of Achieving Best Evidence in Criminal Proceedings: Guidance for Vulnerable or Intimidated Witnesses (ABE) provides full guidance on virtual recorded interviews for vulnerable or intimidated witnesses.

Good practice has highlighted the importance of having focus on what offences might have been committed when planning the interview with a victim, particularly in cases involving numerous vulnerable victims. Better planning of interviews with victims who have extreme vulnerabilities is advisable, not only for the conduct of the interview but for presentational purposes at court.

Whilst the ABE is advisory and is not a legally enforceable code of conduct, significant departures from the good practice advocated in the ABE guidance may have to be justified in the courts. The failures to follow the ABE guidance came to be considered in detail by the Court of Appeal (Civil Division) in JB (A Child), Re (Sexual Abuse Allegations) [2021] EWCA Civ 46. There, the Court of Appeal expressed serious concerns about the failure of investigators to follow the ABE guidance.

Although this arose in a family case, the points made by the Court of Appeal have equal application in respect of criminal proceedings. Ultimately serious failings in the following of the ABE guidance may lead to arguments around the exclusion of evidence.

Special Measures

Under section 17(4) of the Youth Justice and Criminal Evidence Act 1999 (YJCEA) a victim of a sexual offence or victims of offences under section 1 and 2 of the 2015 Act (victims of forced labour and trafficking for sexual and non-sexual exploitation) are automatically eligible for assistance unless they wish to opt out.

The investigating officer should discuss Special Measures with the victim to assess what would assist them to give their best evidence. For further information see the Special Measures legal guidance.

Section 28 YJCEA

Under section 28 YJCEA victims can pre-record their cross-examination before trial. They may also be used alongside other special measures such as giving evidence over a live link, using privacy screens so victims will not see the defendant while they give their evidence and clearing the court of all non-essential personnel. Section 28 may be a particularly useful special measure for victims of MSHT who want to return to their home country or otherwise seek to rebuild their lives.

These cases should be identified early by the investigator and prosecutor.  Victims must meet the criteria of section s17(4) of the YJCEA. Their evidence in chief must have also been visually pre-recorded. There should be early disclosure of unused material and resolution of evidential issues. The case should be flagged at the Magistrates Courts for the setting of a timetable in the Crown Court including a ‘grounds rules hearing’. There needs to be continuity of trial counsel and judge. The victim should be in the UK for the section 28 hearing.

The use of section 28 is currently limited to pilot court centres and CPS updates on eligible court centres and good practice should be referenced.

For updates on section 28 see separate guidance.

Victims who wish to return to their home country

Where a victim has chosen to be repatriated to their home country and they do not wish to return to the UK, there is provision for evidence to be given through television link from their country. Prosecutors should note that the provision set out in section 32 of the Criminal Justice Act 1988 has been temporarily omitted by the Coronavirus Act 2020 until 25 March 2022. For the duration of this period, the provisions in section 51 of the Criminal Justice Act 2003 and Part 3A of the Crime and Disorder Act 1998 may be used instead.

For further information on the provision of live links see Live Links – witness or defendant located abroad guidance. Many countries may require a request for live link to be made formally by Mutual Legal Assistance. They may also require the link be conducted form a court room in the overseas country. The court should be notified of this requirement at PTPH and it may be grounds to have the trial date fixed. The court should be advised that most countries usually require a minimum of six to eight weeks to make these arrangements.

Reporting Restrictions

Prosecutors should consider court reporting restrictions to victims and witnesses in MSHT offences. These should be considered as part of the charging decision and strategy to support victims and witnesses. See “Reporting Restrictions – Children and Young People” for guidance. The court may impose reporting restrictions that during the victim’s lifetime no details may be included in any publication if it is likely to lead members of the public to identify that person as the person against whom the offence is likely to have been committed. This includes their name, address, identity of any education establishment or place of work, or any picture of them:

  • Automatic lifetime reporting restrictions for a victim under section 1 Sexual Offences (Amendment) Act 1992 – this applies to the victims of any offence listed in section 2 of that Act including human trafficking , rape and other serious sexual offences. This is automatic.
  • Discretionary lifetime reporting restrictions under special measures provisions - vulnerability (section 46 YJCEA). This is a discretionary power. The court may impose the restriction if it considers the witness is a vulnerable witness and the reporting restrictions are likely to improve the quality of evidence give by the witness or the level of their cooperation with proceedings.
  • Discretionary lifetime reporting restrictions under special measures provisions – fear or distress (section section 45 YJCEA). This is a discretionary power.  The court may impose the restrictions if it consider the preparation of the case is likely to be diminished by reason of fear or distress of the person in connection with being identified by members of the public as a person concerned in the proceedings.

There are separate restrictions on the reporting of offences when the victim, witness or defendant is under 18 years. Section 45 of the YJCEA provides a discretionary power to restrict reporting the identity of victims, witnesses and defendants under the age of 18 who appear in magistrates' courts and the Crown Court.

Whilst the media can be useful in raising awareness of human trafficking, media interest in specific cases can be unhelpful during the investigation and prosecution phase. Media coverage of cases can reveal the identity of witnesses and create safety issues both within the UK and the country of origin as national media often pick up the story from international news networks. Be aware though that there can be no guarantee of restricting press reporting in other jurisdictions as there may be no mutual recognition of court orders made in England and Wales.

Witness Protection and Anonymity

If the prosecutor is informed by the police or other source (for example, witness care unit) that a witness is fearful of giving evidence the prosecutor should liaise closely with the police to consider the range of options available to them. The CPS guidance on “Witness Protection and Anonymity” should be considered. These measures include:

Interpreters & Intermediaries

Where appropriate, issues such as gender, political orientation or affiliation, regional origins and cultural background of the interpreter should be taken into account in selecting an appropriate individual. Any reasonable requirements expressed by the witness, should also be taken into account. Arrangements for the selection and engagement of appropriately qualified interpreters can be found in the Revised Agreement on the Arrangements for the Attendance of Interpreters in Investigations and Proceedings within the Criminal Justice System. Further guidance is available on the use of Interpreters.

Victims of trafficking and slavery are frequently targeted because of their vulnerabilities, such as them being deaf, mute or with learning disabilities. In these cases, prosecutors should consider examination of the witness through an intermediary to assist the witness in giving their evidence at court. They can also provide communication assistance in the investigation stage. The intermediary is allowed to explain questions or answers so far as is necessary to enable them to be understood by the witness or the questioner but without changing the substance of the evidence, (s.29 YJCEA). For further information see the Registered Intermediary section contained in the Special Measures Legal Guidance.

International Inquiries

Prosecutors should consider their strategy regarding the obtaining of material from overseas at the earliest stage. If the CPS has a Liaison Prosecutor for a specific country then the prosecutor should contact them as soon as possible to assist.

For further information on the obtaining of evidence from abroad, including mutual legal assistance, see International Enquires guidance and any relevant county specific guidance.

The case strategy should consider the potential for co-operation with overseas partners informally or, particularly if they have commenced their own investigation into related offending, through formal mechanisms such as Eurojust or Joint Investigation Teams.

Where there are issues of nationality bar restrictions on the prosecution of suspects the appropriateness of alternatives to extradition such as transfer of proceedings should be identified early and guidance considered.

The obligations under the Criminal Procedure and Investigations Act 1996 to pursue all reasonable lines of inquiry applies to overseas material, see guidance in Chapter 35 of the Disclosure Manual on International Disclosure Issues for further details.

Victims of trafficking

Definition

There is no definitive definition of a trafficked victim. Trafficked victims are identified as those persons who are exploited at the hands of their traffickers and are victims of the criminality as defined by the Palermo Protocol as set out above. This definition is reflected in sections 2 and 3 of the 2015 Act.

Loss of freedom is a defining feature of trafficking, which does not necessarily involve obvious physical constraint. For example, trafficked victims are often not allowed to leave the premises where they are held or if they do, they are accompanied by a trafficker. Victims suffer frequent and severe abuse, both physical and psychological. Violence and physical harm are the hallmarks of trafficked women, in particular.  Further information can be found in the Evidential Considerations under Slavery or Servitude later in this guidance.

From a prosecution perspective it is important to adhere to the standards set out in the Code of Practice for Victims of Crime which places the needs of victims at the heart of the criminal justice system.

Convention on Action against Trafficking in Human Beings

The Council of Europe Convention on Action against Trafficking in Human Beings (the “Anti-Trafficking Convention”) entered into force in the UK on 1 April 2009. Implementation introduced a number of provisions to improve the ability to identify victims, refer them to appropriate support and bring more cases to justice. The provisions include mechanisms for early identification of victims, national referral schemes, and the granting of recovery and reflection periods and renewable residence permits to victims.

National Referral Mechanism (NRM)

The National Referral Mechanism (NRM) is a single framework centred on a multi-agency approach to victim identification and referral to appropriate support. Certain specified public authorities (including the police and local authorities) are under a statutory duty pursuant to the 2015 Act, to refer or notify the Home Office about any potential victims of modern slavery they encounter in England and Wales. Others are required to do the same as a matter of Home Office policy (including UK Visas and Immigration and Border Force). ‘First Responder’ organisations are those authorised to refer individuals into the NRM. The Single Competent Authority (SCA, part of the Home Office) then makes a decision to be made on whether the individual is a victim of modern slavery, human trafficking and / or slavery, servitude and forced or compulsory labour (MSHT).

Consent is required to refer an adult into the NRM. However, where an adult does not consent, public organisations have a ‘Duty to Notify’ the Home Office that they have encountered a potential victim. For children and young people under 18, consent to go through the NRM process is not required.

Statutory guidance is published by the Home Office, which provides advice on how to identify and support victims, the NRM process and the criteria used to determine whether someone is a victim. Of particular relevance, Annex E contains guidance for SCA staff on the NRM decision-making process and Annex H sets out details of the Section 45 Modern Slavery Act 2015 statutory defence (see later).

Single Competent Authority

The SCA is responsible for identification and support for potential and confirmed victims of modern slavery through the Modern Slavery Victim Care Contract (VCC).

The SCA does not have any criminal or other prescribed investigative powers. It can request further information from an individual or their legal representative or from the different parties involved in a case. Where appropriate the SCA will contact the police (OIC/SIO) for further information from a relevant/linked investigation.

NRM decisions are therefore heavily dependent on the information provided by external parties over which the SCA has no control. It will take a decision whether there are Reasonable or Conclusive Grounds that a person is a victim of modern slavery.

Referrals to the SCA for an NRM decision by the police

The CPS is not a first responder and cannot make referrals to the SCA. Where a prosecutor concludes that a suspect should be referred to the SCA for an NRM decision this must be done through the police.

The police, as a First Responder will complete an online referral form recording their encounter with the potential victim. All relevant information should be included to enable the SCA to consider whether the subject should be treated as a potential victim of MSHT.

All correspondence / liaison with the SCA should be conducted through the police. If an NRM decision is outstanding in a case where the CTL is approaching, this should be brought to the attention of the CPS unit head for escalation within the police.

In all cases involving criminal proceedings, the investigator should ensure that the following information is provided to the SCA, together with the relevant factors of each case:

  • Defendant’s full name;
  • Date of birth;
  • Nationality if known;
  • NRM reference number;
  • Court and next hearing date;
  • CTL expiry date;
  • If the defendant is a youth.

This will enable the SCA to prioritise cases effectively for early decision. The SCA should be updated immediately, by the investigator, as the case develops (for example, if someone is later remanded into custody, or if a trial date is set / brought forward).

Reasonable Grounds Decision

The SCA will first decide if there are reasonable grounds to believe that the person is a victim (the reasonable grounds decision). The test for a reasonable grounds decision is whether the statement: "I suspect but cannot prove" is true; or a reasonable person having regard to the information in the mind of the decision maker, would think there are Reasonable Grounds to believe the individual is a victim of modern slavery. The credibility of the victim’s account will be assessed, with an understanding of mitigating reasons due to trauma that may impact on the information provided. General indicators of a potential victim's behaviour, circumstances and responses to questions are taken into account in reaching the decision.

Conclusive Grounds Decision

The second stage involves a further inquiry.  The test used for the conclusive grounds decision is whether, ‘on the balance of probabilities’, there are sufficient grounds to decide that the individual being considered is a victim of human trafficking or slavery, servitude, and forced or compulsory labour. 

Timescales

The SCA aims to make reasonable grounds decisions within 5 working days of receiving a referral wherever possible and there is sufficient information for it to do so. Emergency support is available for potential victims who would otherwise be destitute during this time.

A positive reasonable grounds decision entitles the potential victim to a recovery and reflection period for a minimum of 45 days, and until the conclusive grounds decision is made.

The SCA has agreed to prioritise cases wherever possible that are listed for plea or trial, or where CTLs are getting closer to expiry.  However, this is contingent on sufficient notice to ensure decisions can be made on time and compliance with the obligations for that process set out in the statutory guidance.

During the process, the risks and needs of victims are assessed at various points. Support for potential and confirmed victims is provided through a mixture of mainstream and/or specialist support services. It can included access to government-funded support through the VCC (including accommodation, material assistance, financial support, translation and interpretation services, information and advice; outreach support if already in safe, secure and appropriate accommodation; specialist support including counselling, access to physical and mental health care; signposting to services including legal aid; and assistance to return to their home country if not a UK national. Child victims are supported by local authorities under their statutory safeguarding duties. The recovery and reflection period is intended, in part, to aid a victim's recovery from their immediate physical or psychological trauma before deciding whether to support an investigation / prosecution. However, this does not preclude the victim from speaking with law enforcement to provide intelligence or information or make a statement if they wish to assist an investigation.

During the recovery and reflection period, further information and evidence will be collected to enable a conclusive grounds decision to be made. When the conclusive grounds decision is made, those adults with a positive decision receive a further period of move-on support, the length of which is based upon the individual victim's needs. This move-on support period is in place to help victims to safely transition out of NRM support. Those with a negative decision receive support for a further 9 days.

Following a positive conclusive grounds decision, victims may be eligible for discretionary leave, a form of leave to remain that is granted outside the Immigration Rules in accordance with Home Office policy. This may be granted where a victim is assisting the police with their enquiries; where the victim is seeking compensation from their exploiters in UK courts, and it would be unreasonable for them to pursue the claim from outside of the UK; or it is deemed necessary owing to their personal circumstances.

Case Management and the NRM

In R v D [2018] EWCA Crim 2995, the Court of Appeal held that:

  • It is important that wherever possible, those who may be victims of trafficking are identified before any plea is taken at court.
  • Should the matter be raised at the first hearing the judge will need to determine, as a matter of judgment on the facts of the individual case, whether a defendant is a potential credible victim of trafficking. If they so determine, the case should be adjourned for an NRM referral to be made. This should take 45 days but in practice may be considerably longer.
  • In such cases, the usual stage timetable for case progression in the Crown Court and the Magistrates' Court cannot apply and stage dates will need to be altered to accommodate the referral.

This judgment does not affect the operation of custody time limits (CTLs). When necessary, applications for CTL extensions will need to be made in the normal way.

On 22 July 2019 a revised PTPH form (PTPH2) for use by prosecutors, defence practitioners and judges came into effect with a specific section relating to suspects who may be potential victims of MSHT. The form asks the defence to highlight whether it is alleged that a defendant is a victim of modern slavery. This is important so that consideration can be given to whether the prosecution should continue and/or whether the defendant is alleging a defence under section 45 of 2015 Act (see below).

Disclosure and the NRM

In all cases of MSHT, where a referral has been made to the SCA, the record of the referral completed by a first responder recording their encounter with the individual may be relevant to the investigation and fall to be disclosed to the defence. Any notification without formal referral in to the NRM, may also be relevant but it will not identify the person unless they have consented to the inclusion of that information.

Similarly, other material created or gathered by the SCA may be relevant to the investigation and should be obtained and assessed for disclosure if appropriate. For example, minutes of any meetings between the individual and the SCA decision maker or information gathered from other relevant parties may be relevant. SCA policy is to ensure all modern slavery records are, at a minimum, given the government marking of ‘official-sensitive’.

The police are responsible for requesting relevant material which should be supplied to them by the SCA. The Disclosure Officer will then consider it, redact where necessary and schedule it on the MG6 C, D and E as appropriate. Only in exceptional circumstances will the CPS directly request information or material from the SCA.

The prosecutor must apply the disclosure tests set out in the Criminal Procedure and Investigations Act 1996 and disclose any material to the defence if it is capable of undermining the case for the prosecution or of assisting the defence case.

Material gathered during the course of the NRM process might be relevant to the credibility of the potential victim or other prosecution witnesses. Alternatively, it may assist or undermine a suspect/defendant who claims to be a victim of trafficking and who wishes to rely upon the statutory defence in section 45 2015 Act. For example, there may be inconsistencies in the answers given by the individual to the SCA when compared to what is contained in the individual statement to the police or police interview. Inconsistencies which are capable of assisting the defence in cross examination must be disclosed. Inconsistencies which contradict the account given by a suspect/defendant who claims to be a victim of trafficking may be used as evidence by the prosecution to rebut the s.45 defence.

Where material gathered during the course of the NRM process needs to be disclosed or served as evidence, the police will be responsible for carrying out any necessary redactions.

Any material which is sensitive material should be considered in accordance with the CPIA and the guidance in Chapters 8 and 32 of the Disclosure Manual. The material supplied by the SCA to the police will also contain a generic section 9 statement which sets out, in uncontroversial terms, the role and function of the SCA. In most cases the position of the SCA will not be part of the prosecution case and this statement should be considered as unused material. If it is required as part of the prosecution case it should, whenever possible, be agreed with the defence. Its purpose is to contextualise the NRM decision by informing the defence, magistrates, judges and juries of how the NRM operates and the evidential standard that SCA decision makers apply when reaching reasonable grounds and conclusive grounds decisions.

Cross-examination of the victim on grounds of inducement

There may be benefits to victims in claiming they have been trafficked: they are able to access accommodation and support and are eligible for discretionary leave to remain in the UK. Prosecuting advocates will need to be alert to possible cross-examination of the victim at court on the grounds of inducement and that their claim to be a trafficked victim has been made in order to acquire discretionary leave to remain.

Slavery, Servitude, Forced and Compulsory Labour

Article 4 of the European Convention on Human Rights (‘ECHR’) states that no one shall be held in slavery or servitude and no one shall be required to perform forced or compulsory labour.

Section 1 of 2015 Act sets out that:

  1. A person commits an offence if -
    • (a) the person holds another person in slavery or servitude and the circumstances are such that the person knows or ought to know that the other person is held in slavery or servitude, or
    • (b) the person requires another person to perform forced or compulsory labour and the circumstances are such that the person knows or ought to know that the other person is being required to perform forced or compulsory labour.
  2. In subsection (1) the references to holding a person in slavery or servitude or requiring a person to perform forced or compulsory labour are to be construed in accordance with Article 4 ECHR.
  3. In determining whether a person is being held in slavery or servitude or required to perform forced or compulsory labour, regard may be had to all the circumstances.
  4. For example, regard may be had:
    • (a) to any of the person's personal circumstances (such as the person being a child, the person's family relationships, and any mental or physical illness) which may make the person more vulnerable than other persons;
    • (b) to any work or services provided by the person, including work or services provided in circumstances which constitute exploitation within s. 3(3) to (6) of the Act (see above)
  5. The consent of a person (whether adult or child) to any of the acts alleged to constitute holding the person in slavery or servitude or requiring the person to perform forced or compulsory labour, does not preclude a determination that the person is being held in slavery or servitude or required to perform forced or compulsory labour.

This offence can be used in cases where the victim has been exploited in accordance with the ECHR definition but was not trafficked, or the trafficking element cannot be proved to the criminal standard. The offence under section 1 of 2015 Act has been extended to cover all forms of exploitation relevant to human trafficking. This means that prosecutors should consider any work or services provided in circumstances amounting to exploitation within the meaning of section 3 of the 2015 Act. This may include, for example, children involved in pickpocketing or begging. However, the circumstances must still be interpreted in accordance with Article 4 ECHR.

Sections 1(3), (4) and (5) of the 2015 Act provide that all the circumstances should be considered when determining whether a person is a victim of slavery servitude or forced labour. This can include their age, family relationship and any mental or physical illness which may make the person more vulnerable.

A person guilty of an offence under this section is liable: on summary conviction, to imprisonment for term not exceeding 12 months or a fine or both; and on conviction on indictment, to imprisonment for life.

For offences of Slavery, Servitude, Forced and Compulsory Labour which occurred before 31 July 2015 see Section 71 of the Coroners and Justice Act 2009.

Exceptions to the offence

Article 4(3) of the ECHR sets out exceptions (below) which are applicable to this offence and states that:

For the purpose of this Article the term "forced or compulsory labour" shall not include the following exceptions:

  • any work required to be done in the ordinary course of detention imposed according to the provisions of Article 5 of this Convention or during conditional release from such detention;
  • any service of a military character or, in case of conscientious objectors in countries where they are recognised, service exacted instead of compulsory military service;
  • any service exacted in case of an emergency or calamity threatening the life or well-being of the community;
  • any work or service which forms part of normal civic obligations. This might include obligations to conduct free medical examinations or participate in medical emergency service.

Whilst there is a range of pre-existing legislation which could cover behaviour relating to servitude and forced or compulsory labour, such as offences of false imprisonment, fraud, blackmail and assault, this offence allows prosecutors to present the full extent of the behaviour, rather than relying on these offences which may not fully reflect the nature of the offending.

Notwithstanding this, prosecutors should also consider charging other offences in addition to the section 1 offence where appropriate (for example where the person has been physically assaulted while subjected to forced labour).

Elements of the Offence

Slavery, servitude and forced or compulsory labour are not specifically defined in the Act. In interpreting the offence therefore, police, prosecutors and the courts will need to have regard to existing case-law on Article 4 ECHR and international conventions.

Slavery or Servitude

The 1926 Slavery Convention defines slavery as ”the status or condition of a person over whom any or all of the powers attaching the right of ownership are exercised.” In essence, characteristics of ownership need to be present for a state of slavery to exist.

Servitude is a linked but much broader term than slavery. In Siliadin v France [2005] EHRLR 660 Case No: 73316/01 (European Court of Human Rights) the European Court of Human Rights (ECtHR) reaffirmed that servitude "prohibits a particularly serious form of denial of freedom. It includes, in addition to the obligation to provide certain services to another, the obligation on the "serf" to live on the other's property and the impossibility of changing his status". The evidence showed the applicant, an alien who arrived in France at the age of sixteen, had worked for several years for the respondents carrying out household tasks and looking after their three, and subsequently four, children for seven days a week, from 7AM to 10PM, without receiving any remuneration. She was obliged to follow instructions regarding her working hours and the work to be done, and was not free to come and go as she pleased, though she was allowed out on her own with permission of her employers. The Court unanimously held that there has been a violation of Article 4 ECHR.

Forced or compulsory labour

The ECtHR, in the case of Van Der Mussele v Belgium [1983] ECHR 13 Case No: 8919/80 (European Court of Human Rights), affirmed that the International Labour Organisation (ILO) conventions were the starting point for interpreting Article 4 ECHR. The conventions defined forced or compulsory labour as being "all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily".

Domestic case law

The case of William Connors and others [2013] EWCA Crim 324 offers some further guidance on the distinction between slavery, servitude and forced labour. This case involved a family who, cajoled, bullied and through deception, recruited vulnerable men to work for them. The men worked long hours in very poor conditions 7 days a week, whilst being subjected to violence, threats and abuse. A manifestation of this control was that many of the victims were deprived of the will to leave; others were too demoralised to do so. All five defendants were convicted of a single count of conspiracy to require a person to perform forced or compulsory labour. During the course of the trial, the judge directed the jury to acquit the defendants of conspiracy to hold a person in slavery or servitude. The trial judge had commented that in order for servitude to be established, a court must find that it was impossible for the workers to change their status.

See also the case of Rooney [2019] EWCA Crim 681where the Court of Appeal emphasised that all circumstances must be considered, with “low pay being a relevant factor but not in itself sufficient to amount to forced compulsory labour.” The Court stated that there will be circumstances of exploitation of workers which do not amount to this offence: for example, where an employer merely pays very low wages or flouts health and safety requirements.

The case of Khan, Khan and Khan [2010] EWCA Crim 2880 which concerns trafficking for labour exploitation provides some further useful guidelines on forced labour.

Evidential Considerations

Whether there is evidence that a person was subject to servitude or forced or compulsory labour will depend on the circumstances of the individual case. However, there are a number of factors which may, depending on the circumstances, indicate that an individual might be held in servitude or subjected to forced or compulsory labour. The essential elements are those of coercion or deception, which may be demonstrated in a number of ways. Chapter 3 of the Home Office statutory guidance sets out a comprehensive list of signs (general, physical, psychological, mental health, situational and environmental indicators) that can indicate a person is being exploited and is a victim of modern slavery.

The kind of behaviour that would normally, of itself, be evidence of coercion includes (but is not limited to):

  • violence or threats of violence against the victim or the victim’s family by the employer or the employer's representative;
  • threats to expose the worker to the authorities, for example because of the worker's immigration status or offences they may have committed in the past;
  • the person's documents, such as a passports or other identification, being withheld by the employer;
  • restriction of movement;
  • debt bondage;
  • withholding of wages.

Other factors that may be indicators of forced labour include (but are not limited to):

  • the worker being given no information, or false information, about the law and their employment rights;
  • excessive working hours being imposed by the employer;
  • hazardous working conditions being imposed by the employer;
  • unwarranted and perhaps unexplained deductions from wages;
  • the employer not paying the full tax or national insurance contributions for the worker;
  • the absence of any formal or implied contract of employment;
  • poor accommodation provided by the employer;
  • misleading information having been given about the nature of the employment;
  • the person being isolated from contact with others;
  • money having been exchanged with other employers/traffickers etc. for the person's services in an arrangement which has not been agreed with the person concerned or which is not reflected in his remuneration.

In practice, conditions of servitude and forced labour often involve physical and sexual assaults, restriction of liberty or violence. However, in establishing that a person was held in servitude or required to undertake forced labour does not require the prosecution to prove actual physical force was used or that the victim was physically detained or imprisoned. There may be situations where no physical violence is used or there are no restrictions on movement, but psychological or coercive means are used to effect control, including confiscating the victim's passport, or keeping them in isolation. Requiring someone to work long hours with few breaks and in poor conditions which are contrary to human dignity might reflect the circumstances in which exploited victims are compelled to work, where they are deprived of essential needs and subject to humiliation, threats and insults.

Accommodation may have been made a condition of employment, for which a high rent is paid, comparative to earnings, and which creates a debt bondage relationship. The victim may be told that if they leave the accommodation, they will lose their employment or have to continue to pay for accommodation. Whilst they may be physically free to leave, they are effectively a prisoner of their circumstances.

The CPS signed a Joint Working Agreement between the Association of Chief Police Officers, the UK Border Agency and the Gangmasters Licensing Authority outlining best practice for investigation of forced labour and trafficking for forced labour offences. This agreement remains in force despite the changes in the signatory organisations.

Case Management

The following are examples of good practice identified through developing knowledge and experience.

The Indictment

  • Decision whether to charge offences of servitude or forced labour: In Siliadin v France (2006) it was determined that, in order for servitude to be established, a court must find that it was impossible for the workers to change their status. In Connors (x4) and R [2013] the judge considered that this element could not be established as he didn't believe that it was impossible for them to leave. In some cases the issue of establishing the impossibility of changing status has led to the judge’s ruling that the case should not go to the jury. Prosecutors should consider including the fall back offence of forced labour in these circumstances.
  • Charging conspiracy: in recent cases a number of defendants have been charged with offences of conspiracy relating to "requiring vulnerable victims to perform forced labour" where it could not be established that one person had controlled a single victim. Despite the defendants taking different roles it was possible to establish sufficient group activity, which captured the wider extent of criminal conduct by a greater number of defendants, than charging separate substantive offences. It remains important to consider whether each individual defendant is a party to the conspiracy, particularly in relation to minor defendants.

Bad Character Evidence

In a case involving forced labour, the judge ruled that bad character evidence from witnesses who had worked for / been exploited by the defendants at a time that pre-dated the indictment period (and pre-dated the enactment of the legislation) could not be admitted. An application to admit such evidence should be considered on its merits in each case.

Digital Presentation of Evidence

Prosecutors should consider electronic case presentation in these cases to enable vulnerable and/or intimidated witnesses to give evidence via video link. This can be from a link room in the court itself, from another court building, a remote link site or from another location agreed by the judge. Exhibits can be shared over the electronic video link using “Evidence Presentation Case” (formerly Clickshare). Additional hardware can be installed in the court room if required to better present the witness or exhibits to the participants.

Alternative Offences

Conspiracy to Traffic

A "conspiracy to traffic" may involve the commission of an act by one or more of the parties, or the happening of an event, in a place outside England and Wales. This situation is covered by section 1A of the Criminal Law Act 1977 which provides that where (a) that act or event would be an offence by the law of that place and (b) it would also be an offence here (but for the fact that it takes place outside the jurisdiction), then a person in England and Wales who becomes a party to the agreement or, being a party, does anything in pursuance of the agreement (even before its formation) can be charged with conspiracy contrary to section 1(1) of the Criminal Law Act 1977. Note, however, prior consent of the Attorney General is required to prosecute offences to which Section 1A applies.

For further guidance on obtaining the consent of the Law Officers see guidance on Consents to Prosecute.

Participating in the Criminal Activities of an Organised Crime Group

Section 45 of the Serious Crime Act 2015 provides that it is an offence to participate "in the criminal activities of an organised crime group (OCG)".

A person participates in the criminal activities of an OCG if they take part in any activities that they know or reasonably suspect are criminal activities of an OCG, or that they will help an OCG to carry on criminal activities. This includes a deliberate omission which helps an OCG. See guidance on the Organised Crime Groups for more information.

Fraud by Abuse of Position

Section 4 of the Fraud Act 2006 creates an offence of fraud by abuse of position. In such cases the defendant will occupy a position in which he was expected to safeguard, or not to act against, the financial interests of another person; they abused that position dishonestly intending by that abuse to make a gain/cause a loss. In cases of labour exploitation which may not meet the threshold required for an offence under section 1 or 2 of the 2015 Act, for example where the exploitation is one of terms and conditions of employment only, and where no other indicators are present or harm is caused to the victim, this offence may be considered.

In R v Valujevs and Mezals [2014] EWCA Crim 2888 the defendants were accused of defrauding migrants who had travelled to the UK voluntarily, and had signed up under the promise of well-paid work. Instead, the defendants charged grossly inflated rent for their accommodation, earnings were withheld and financial penalties were imposed. The defendants used fear and debt to exploit the agricultural workers. They were indicted with fraud by abuse of position contrary to sections 1 and 4 of the Fraud Act 2006. It was contended that the defendants, who were gangmasters were in a position where they could be expected to have safeguarded the financial interests of the workers or not act against those interests.

Alternative Strategies

Evidence gathered during an investigation into trafficking or forced labour, such as surveillance or financial enquiries may reveal other criminality which can support offences instead of, or in addition to offences of slavery or forced labour or trafficking. Other disruptive tactics and strategies might include consideration of benefit offences, money laundering offences, mortgage, benefits or other fraud, tax offences, Gangmasters Licensing Act regulatory offences, or inchoate offences. These disruptive tactics can lead to consideration of ancillary orders including restraint and confiscation, serious crime prevention orders, financial reporting orders or director's disqualification orders. For further information on ancillary orders, please see the Sentencing - Ancillary Orders Legal Guidance

Sentencing

Key authorities from which sentencing guidelines can be derived have been included in the section of this guidance dealing with the relevant statutory offences.

The Definitive Guideline for modern slavery offences under the 2015 Act has been published by The Sentencing Council on the Council’s website www.sentencingcouncil.org.uk and will apply to adult offenders sentenced on or after 1 October 2021 in the Crown Court and magistrates’ courts.

For further cases referred to the Court of Appeal which provide guidelines on sentencing and reflect the degree of coercion, force and violence used in the exploitation of their victims, please also see this guidance.

Deportation

Procedures in relation to deportation are dealt with in Sentencing - Ancillary Orders.

Compensation

Prosecutors must consider applying for compensation on conviction. Victims of trafficking and slavery have effectively been used as slaves while their traffickers and exploiters have benefited from their exploitation. Further guidance on compensation can be found in Sentencing - Ancillary Orders.

Slavery and Trafficking Reparation Orders

Section 8 of 2015 Act introduces Reparation Orders against defendants convicted of an offence under sections 1, 2 or 4 of the Act and where a Confiscation Order is made. A Reparation Order requires the defendant to pay compensation to the victim for any harm resulting from the offence but must not be made if a compensation order has been made under section 130 Powers of Criminal Courts Act.

Proceeds of Crime

Section 7 of 2015 Act inserts section 1 and 2 of the Act (slavery and trafficking) to fall within the definition of "lifestyle offences" under POCA. In these cases, the court assumes that all assets acquired in the previous six years are the proceeds of crime and are available to be confiscated. For further information, please see Proceeds of Crime guidance and forfeiture (below).

Forfeiture

If a person is convicted on indictment of an offence under section 2 of 2015 Act (human trafficking), the court may order the forfeiture of a vehicle, ship or aircraft used or intended to be used in connection with the offence, as detailed under section 11 of the 2015 Act.

Detention

Section 12 of 2015 Act enables a constable, or a senior immigration officer, to detain a vehicle, ship or aircraft of a person arrested for an offence under section 2 of the 2015 Act (human trafficking) if there are reasonable grounds to believe that an order for forfeiture could be made under section 11 of the Act if they were convicted of the offence.

Slavery and Trafficking Prevention Orders and Risk Orders

These are civil orders introduced under sections 14, 15 and 23 of the 2015 Act. Both types of orders require evidence to the criminal standard (similar to existing sexual harm prevention orders and risk orders). They are retrospective in terms of criminal conduct; therefore information or evidence before the date on which they came into force (31 July 2015) can be relied upon. Examples of Prevention and Risk Orders which have been granted can be found here.

Prosecutors should provide advice to the police before they seek a Prevention or Risk Order:

  • to establish whether the evidence might otherwise support a criminal offence; and
  • to ensure the activities described are capable of being prosecuted in event of breach.

In the case of both types of Orders, an interim Order may be applied for where a main application has not yet been determined, to prohibit the defendant from doing anything described in the Order.

A defendant may appeal to the Crown Court against the making of either a Slavery and Trafficking Prevention Orders (STPOs) or Slavery and Trafficking Risk Orders (STROs), or an interim Order.

STPOs were introduced under sections 14 and 15 of the 2015 Act. An Order can only be made if a defendant is a “relevant offender” which includes whether they have been convicted of or cautioned for a trafficking or slavery offence or equivalent offence outside the United Kingdom.  The court also needs to be satisfied that there is a risk the defendant may commit another slavery or trafficking offence and it is necessary to protect others from likely physical or psychological harm if the defendant committed such an offence.

An STPO can be made in one of the following ways:

  • By the court on conviction, as part of the sentence, to protect the public by preventing or restricting a defendant's activities, e.g. travel to specified countries, arranging travel of anyone other than themselves or a family member, and requiring notification of name and address to the police. Evidence for the offences on which each defendant is convicted is likely to support the application, together with previous convictions and assessment of risk contained within the pre-sentence report. No application is necessary for the court to make an STPO on conviction although the prosecutor may wish to invite the court to consider making an order in appropriate cases.
  • By a magistrates' court on application by the police, National Crime Agency (NCA) or Immigration Officer (IO) or the Gangmasters and Labour Abuse Authority, where there is a risk that a defendant may commit a trafficking or slavery offence. The court must be satisfied that the defendant has acted in a way to demonstrate that risk and is necessary to protect others from harm by prohibiting the defendant from doing anything described in the order.

STROs were introduced under section 23 of the 2015 Act, they do not require a person to be a “relevant offender”. A STRO can be made by a magistrates’ court upon the application of the same named entities as above. A defendant does not need to meet the criteria of a “relevant offender” for an STRO to be made. The court may make an STRO if there is a risk that the defendant has acted in a way which means that there is a risk that a trafficking or slavery offence will be committed; and it it necessary to protect persons from physical or psychological harm likely to occur if the defendant committed such an offence. The court can impose prohibitions it considers necessary to protect that harm from occurring.

Breach of a STPO or STRO is punishable with up to 5 years' imprisonment on indictment or six months or a fine or both on summary conviction.

When considering the terms of the Order the following should be considered:

  • Would the proposed restrictions minimise the risk of harm to the public or to any particular members of the public?
  • Are the restrictions necessary and proportionate?
  • Can they be policed effectively?

Children

Child Trafficking /Exploitation/Slavery and Forced Labour

Child trafficking is the practice of transporting children into, within and out of the UK or any other country for the purposes of exploitation. The exploitation can be varied and include:

  • domestic servitude;
  • labour exploitation;
  • criminal activity (e.g. cannabis cultivation, drug supply through county lines, petty street crime, illegal street trade, etc.);
  • sexual exploitation (child abuse, closed community, child abuse images);
  • application of residence;
  • benefit fraud;
  • forced begging;
  • illegal adoption; and
  • sham marriage.

Where there is an arrangement made to travel, or to facilitate travel with a view to child exploitation, section 2 of the 2015 Act should be used. In these circumstances, regard should be had to the victim's age in determining their vulnerability.

If the victim states they are a child, they should be viewed as such until their age can be verified by identification or an independent age assessment carried out by the local authority or a court determination. Section 51 of the 2015 Act provides for presumption about age. Until an assessment is made of the person's age by the local authority, there is an assumption that the person is under 18.

Child Exploitation

Non–sexual exploitation

In cases where there is no evidence of trafficking, but there is non-sexual exploitation, prosecutors should consider charging under section 1 of the 2015 Act (slavery, servitude, forced or compulsory labour). The consent to any of the acts of exploitation does not preclude a determination that the child is being held in slavery or forced labour.

In determining whether a child is held in slavery or forced labour, regard may be had to all of the circumstances, for example, any work or services which constitute exploitation described in section 3 of the 2015 Act (for human trafficking) can be taken into account. The vulnerability of the child should also be considered, for example the fact that they are a child, their family relationships and any mental or physical illness or disability.

Where the evidence of exploitation does not reach the thresholds required for these offences, other legislation should be considered. Children can be exploited, for example, through forced begging. In addition to a safeguarding response, prosecutors should consider offences under the Children and Young Persons Act 1933 of cruelty to persons under sixteen (section 1), as well as the specific offence of causing or allowing persons under sixteen to be used for begging under section 4 of the Act.

If exploitation of a child involves benefit fraud and trafficking for exploitation could not be evidenced, offences under the Social Security Administration Act 1992, the Fraud Act 2006 and the Theft Act 1978 could be considered.

Where a child has been inappropriately removed from their family and held elsewhere, depending on the facts of the individual case, offences of child abduction (sections 1 and 2 of the Child Abduction Act 1984), false imprisonment or kidnapping may be appropriate.

Child Sexual Exploitation

Where there is no evidence of movement (for trafficking) for child sexual exploitation, there are a wide range of offences to tackle sexual exploitation of children under the Sexual Offences Act 2003. Attempts to shoehorn conduct into related offences of human trafficking or slavery can sometimes derail cases, particularly in cases of child sexual exploitation. Although the trafficking offences can be used, they are not necessarily central to the case. Other alternative serious sexual offences involving the exploitation of children may be more accurate to actual offending and be easier to explain - particularly to juries. These offences allow for substantial penalties. See Child Abuse and Sexual Offences.

Child trafficking and exploitation is often accompanied by various types of control such as violence, the threat of violence, sexual abuse, alcohol and drug abuse, emotional abuse, manipulation through cultural practices and imprisonment to suppress victims and ensure their compliance. For that reason, victims may not fully cooperate with an investigation or prosecution for fear of reprisals. Offenders may also attempt to abduct or coerce the child whilst criminal proceedings are on-going and while the child is being cared for by the local authority.

Children are also exploited by committing criminal acts on behalf of their trafficker / exploiter. Examples include cannabis cultivation, organised street crime, drug supply through county lines and begging. Where it is found that the child committed an offence as a direct result of their situation, prosecutors should follow the CPS guidance below and consider the statutory defence for slavery or trafficking victims.

Modern Slavery and Drug Offences

Offending through "County Lines" is a national issue involving the exploitation of vulnerable children and adults by violent gang members in order to move and sell crack and heroin across the country, often associated with city-based organised crime gangs. For further information, see the Gang related offences Legal Guidance

The victims are often children, aged 14 to 17 years, who are groomed with money, gifts or through relationships and forced to carry out day to day dealing. Children as young as 11 years of age have been reported as being recruited. Violence is used against drug users to coerce them to become runners, enforce debts, and use their accommodation as an operating base.

All available charges should be considered when considering a prosecution in connection with County Lines offending, including the 2015 Act in circumstances where there has been deliberate targeting, recruitment and significant exploitation of young and vulnerable people. Prosecutors should, however, be alert to the challenge of securing a conviction for a 2015 Act offence.

The Court of Appeal handed down judgment following an appeal against a terminating ruling in R v KWA [2018] EWCA Crim 1432 in which the exploitation involved the use of child (drug) couriers. The prosecution case was that the couriers were chosen because of their youth and because someone older would have been likely to refuse. None of the child couriers attended court to give evidence. Instead, a police expert witness gave evidence explaining how a county drug line works and the advantages of using child couriers.  The Court considered the interpretation of the offence of trafficking a person within the UK for exploitation contrary to Section 4(1A)(b) Asylum and Immigration Act 2004 (which is now replicated in Section 2 of the 2015 Act) and held that:

  • A prosecution for this offence does not depend upon the ability to call the individual said to have been exploited or the target of exploitation.
  • It is not necessary for the prosecution to establish that the defendant (and/or another person) has actually exploited the victim. The offence requires no more than a ‘view to exploitation’.
  • The prosecution does not have to prove that the victim was chosen solely because of their youth and that an adult would be likely to refuse. The fact that the victim may have been chosen for other reasons as well is not fatal to the prosecution case.
  • The prosecution does not have to prove a lack of consent on the part of the victim or any element of coercion.
  • The word ‘chosen’ is not synonymous with ‘being recruited’ and is not a once and for all act that cannot be repeated. A victim might be ‘chosen’ by various people in a drugs hierarchy on a number of occasions.

In such cases, victims should be referred through the NRM to establish their trafficking status. Where there may be consideration of charge and prosecution of vulnerable children or adults, prosecutors should consider applying the statutory defence or CPS policy on the non-prosecution of suspects who may be victims of trafficking.

However, if a person, by joining an illegal organisation or a similar group of people with criminal objectives and coercive methods, voluntarily exposes and submits himself to illegal compulsion, he cannot rely on the duress to which he has voluntarily exposed himself as an excuse either in respect of the crimes he commits against his will or in respect of his continued but unwilling association with those capable of exercising upon him the duress which he calls in aid: R v Fitzpatrick [1977] N.I.L.R. 20.

In the meantime, prosecutors are alerted to the case of Mohammed (Zakaria) [2019] EWCA Crim 1881. There, the Court of Appeal found an overall sentence of 12 years was appropriate in relation to a drug dealer who exploited children in county lines activity (seven years for five counts of human trafficking contrary to the Modern Slavery Act, section 2 and five years consecutive for conspiracy to supply).

The Court of Appeal indicated that it was not for the Court to set a sentencing guideline but provided (at paragraph 37) relevant sentencing considerations:

  • Where the person whose travel was arranged with a view to exploitation was a child the offence inevitably would be more serious than a case where the person was an adult.
  • Where the exploitation involved the commission of serious criminal offences the exploitation offence would be especially grave.
  • The number of children whose travel was facilitated or arranged would be of importance.
  • The offence would be aggravated if the same child was the subject of travel with a view to exploitation more than once.

In R v Nixon (Omorie Tevon-Te) [2021] EWCA Crim 575, the Court of Appeal found that sentence was unduly lenient and sentencing for the drugs conspiracy on the one hand and the counts of trafficking on the other hand should be reached in isolation from each other, although at the end it is possible to look at the question of totality.

Confirming the findings in Mohammed (Zakaria), the Court additionally held that four children were exploited in the course of this trafficking, the youngest being 15 years old at the time, and that they were used not only as drug runners, but as drug vessels: that is to say, they had drugs in their anuses, which poses a particular danger to the drug carrier and is an aggravating factor over and above that of the exploitation of teenage children simply as drug runners.

Suspects in a Criminal Case who might be Victims of Trafficking or Slavery

Introduction

This guidance applies to suspects in a criminal case who might be victims of trafficking (‘VOT’) or victims of slavery (‘VOS’). It is important that prosecutors fully endorse their rationale in all case decisions and provide clear reasons for them.

Key points:

  • In all cases where a suspect in a criminal case is a potential victim (‘PV’) of trafficking and/or slavery, prosecutors should adopt a four-stage assessment to ensure that they properly apply the Full Code Test in the Code for Crown Prosecutors.
  • Identifying whether a PV is a credible VOT or VOS, or neither, occurs in Stage 1.
  • Section 45 is the statutory defence for VOT/VOS under the 2015 Act. Schedule 4 of the 2015 Act lists serious offences to which the defence in section 45 does not apply.
  • Identification of a suspect as a VOT or VOS may amount to (1) a reason not to prosecute; (2) mitigation; or (3) a mere excuse; R v L [2013] EWCA Crim 991; [2013] 2 Cr. App. R. 23.
  • Stage 1 applies whenever possible indicators of trafficking and/or slavery are present. The onus is on prosecutors (as well as the Police, defence and court) to identify indicators of trafficking whether or not the suspect makes any disclosure that they are a PV and whether or not they make any admissions concerning the offence.
  • At stage 3 of the four-stage assessment, prosecutors are asked to consider if there is clear evidence of a statutory defence under section 45 of the 2015 Act. Guidance on section 45 is set out here.
  • Offences for which section 45 does not provide a defence, prosecutors must still apply Stages 1, 2 and 4 of the assessment.
  • Section 45 does not provide a defence to certain serious offences specified in Sched.4 to the 2015 Act.
  • Section 45 does not apply to offences committed before 31 July 2015; R v CS and Le [2021] EWCA Crim 134. Prosecutors should take particular care when dealing with cases in which the offending behaviour covers a period that straddles this implementation date.
  • If a suspect is identified as a credible VOT or VOS, prosecutors must go on to consider Stages 2, 3 (if section 45 applies) and 4 in all cases.

Prosecutors are reminded of the detailed training that the CPS has developed on the approach to take when dealing with suspects in a criminal case who might be victims of trafficking or slavery. Further information about the training material can be obtained from regional trainers. This includes:

  • The application of the statutory defence set out in section 45 of the 2015 Act and its interplay with other non-punishment principles;
  • The role of the Single Competent Authority (SCA) and the National Referral Mechanism (NRM);
  • The NRM is a single framework centred on a multi-agency approach to victim identification and referral to appropriate support; and
  • The four-stage approach that should be taken when prosecutors are making decisions to prosecute.

There are a number of significant authorities that prosecutors should be aware of. This includes R v LM Ors [2010] EWCA Crim 2327; R v VSJ [2017] EWCA Crim 36; R v D [2018] EWCA Crim 2995, R v DS [2020] EWCA Crim 285; R v Brecani [2021] EWCA Crim 731 and VCL and AN v United Kingdom(Applications 77587/12 and 74603/12) [5 July 2021] details of which can be found later on in this guidance.

Prosecutor’s Obligations

When deciding whether to prosecute a suspect who might be a VOT or VOS and who may meet the criteria for non-punishment principles, prosecutors are reminded of their obligations under:

  • Article 4 of the ECHR which prohibits slavery and forced labour. NOTE: in Stage 1 below, the task of working out whether a suspect or defendant is a credible VOT/VOS is conducted by reference to the definition of trafficking in the international and regional instruments.  Trafficking will include slavery, servitude and forced or compulsory labour through this definition as movement is not required and the exploitation purpose of trafficking will include conduct amounting to slavery, servitude and forced or compulsory labour. Prosecutors must be aware of what the indicators of slavery, servitude and forced or compulsory labour are.
  • Article 26 of the Anti-Trafficking Convention which requires the UK 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 3 of the Palermo Protocol.

The Four-Stage Approach to the Prosecution Decision

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

1. Is there a reason to believe that the person is a VOT or VOS?
•    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 2015 Act?
•    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? This must be considered even where there is no clear evidence of duress and no clear evidence of all of the elements of a section 45 defence or where section 45 does not apply (because the offence is excluded under Schedule 4). 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; R v VSJ [2017] EWCA Crim 36

Stage 1: Is there Reason to Believe the Person is a Victim of Trafficking/Slavery?

Prosecutors are required to consider whether the suspect or defendant is a PV and 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 the exploitation of UK children in ‘County Lines’ offending; or in the case of adults, committing offences such as those involving immigration documents or controlling prostitution. Gangs and organised criminal networks involved in exporting illegal drugs into one or more importing areas (within the UK) have also been exploiting children and vulnerable adults by using them to carry out illegal activity on their behalf. This includes moving and storing drugs and money and these criminal networks often use coercion, intimidation, violence (including sexual violence) or weapons against them. For further information, see 'County Lines' guidance.

Definition of VOT (including VOS)

The Court of Appeal has endorsed the appropriateness of considering whether or not someone is a PV by reference to international instruments; R v D [2018] EWCA Crim 2995. This is consistent with the approach adopted by the Supreme Court in MS (Pakistan) v Secretary of State for the Home Department [2020] UKSC 9.

The indicators of trafficking are published in the Statutory Guidance. UNODC Human Trafficking Indicators may also assist.

The prosecutor is required to consider the circumstances of the PV, the alleged offending and anything said by the PV to assess whether there is reason to believe the person is a VOT or VOS.

Factors to consider include, but are not restricted to:

  • Was the PV exploited? Consider sexual exploitation including prostitution, slavery, servitude, or forced or compulsory labour, services including begging, the exploitation of criminal activities or the removal of organs.
  • Was there an ‘act’ of trafficking? This includes recruitment, transportation, and transfer of the PV; no movement is necessary.
  • If the PV is 18 or over, prosecutors must also consider whether the ‘means’ of trafficking were present? This includes threats, force, deception, abuse of power or abuse of vulnerability.
  • SCA decisions (see more detail below).
  • Expert evidence, which whilst it may be inadmissible at trial, should be considered by the prosecutor. However, it should be assessed for its credibility and consistency of a trafficking account by a trafficking expert and/or medical expert: R v Brecani [2021] EWCA Crim 731
  • Decisions of the FTT or Upper Tribunal (IAC) or other tribunals (employment) or courts (family and civil) should be considered; R v DS [2020] EWCA Crim 285; R v S(G) [2018] EWCA Crim 1824; MS (Pakistan) v Secretary of State for the Home Department [2020] UKSC 9. Decisions of courts and tribunals should be afforded more weight than SCA decisions.
  • Section 9 statement from the SCA; this explains how decisions are made, their purpose and function.

Credibility assessment

When assessing credibility, prosecutors should be aware that VOTs and VOSs will frequently make late disclosure about their trafficking circumstances and may give an untrue account, often because they are told what to say by traffickers. See R v JXP [2019] EWCA Crim 1280.

Prosecutors should additionally consider the Home Office Statutory Guidance on credibility.

The Single Competent Authority decisions and the decision to prosecute

When considering if a person is a PV:

  • The SCA decision is not in itself determinative of trafficking status. As such, prosecutors should examine the SCA decision and the basis upon which it was made as if it is in dispute it is an issue for the court to determine (R v Brecani [2021] EWCA Crim 731, R v VSJ [2017] EWCA Crim 36, R v DS [2020] EWCA Crim 285;
  • However, once a trafficking assessment has been made by the SCA any subsequent prosecutorial decision has to take that assessment into account. While the prosecutor might not be bound by the findings made in the course of such a trafficking assessment, the prosecutor would need to have clear reasons for disagreeing with it. (R v L(C) [2014] 1 All ER 113 at 28 and R v VSJ [2017] EWCA Crim 36 at 20(viii); MS (Pakistan) v Secretary of State for the Home Department [2020] UKSC 9; R v DS [2020] EWCA Crim 285; R v S(G) [2018] EWCA Crim 1824; VCL and AN v United Kingdom (Applications 77587/12 and 74603/12) [5 July 2021] and R v Brecani [2021] EWCA Crim 731).
  • Consider a conclusive grounds decision to be of more weight than a reasonable grounds decision
  • Prosecutors should not base a decision to disagree with a SCA positive grounds decision on peripheral issues.  The prosecutor should set out clear reasons for disagreeing based on either why the statutory definition of trafficking does not apply to the individual; and/or why there was no nexus between the trafficking and the offence. (VCL and AN v United Kingdom (Applications 77587/12 and 74603/12) [5 July 2021])
  • In addition, if the offence is listed under Schedule 4 of the 2015 Act (list of offences for which section 45 does not apply) and is so serious, whilst prosecutors may not disagree with the finding of the SCA, the decision to prosecute must be considered in accordance with the public interest test (see stage 4 below).
  • Prosecutors must ensure that their decision to disagree or agree with a SCA positive decision is properly and clearly explained and endorsed in accordance with this guidance (VCL and AN v United Kingdom (Applications 77587/12 and 74603/12) [5 July 2021]).
  • Prosecutors should consider whether the SCA decision considered all core relevant material in making its decision such as the existence of digital evidence revealing a different history put forward by the defendant or materially inconsistent accounts provided by the defendant to the SCA to that given  to the police under caution. In the case of R v Brecani [2021] EWCA Crim 731 the Court of Appeal decided on the facts that the SCA decision could be departed from as it was made without considering material. Ultimately, each case must be considered in accordance with the Code for Crown Prosecutors on its own facts.
  • If the prosecutor proceeds to prosecute the case then the Court of Appeal (in (R v Brecani [2021] EWCA Crim 731) held that a CG decision that a person is a victim of modern slavery is not admissible as evidence in a criminal trial. This is a departure from the decision in DPP v M [2020] EWHC 3422 (Admin). The decisions of the SCA are made for administrative purposes on the basis of written materials by case work officers applying a balance of probabilities test. The case work officer is not an expert and therefore their decision, which is an opinion, in inadmissible in criminal proceedings.
  • Prosecutors should consider the SCA decision and underlying material on which it is based as unused material (See above). The material should be reviewed in accordance with the CPIA.  Any positive SCA finding regarding an individual is very likely to be material which may either undermine the prosecution or assist the defence. Prosecutors should consider early disclosure of such material to the defence. The underlying material on which the decision was based should also be considered as part of unused material including considerations of sensitive material contained within it. The prosecutor may consider it appropriate to agree at trial an admission of facts based on material which has formed the SCA decision whether it is formally served as evidence or not. As with other admissions the prosecution should be satisfied of the evidential basis.
  • However, the Court of Appeal challenged the practice of prosecutors agreeing an admission that a positive CG decision had been made by an SCA when this was a trial issue. The court considered this was an admission based on non-admissible expert opinion on an issue to which the jury needed to determine to the criminal standard based on admissible evidence (R v Brecani [2021] EWCA Crim 731).

Decisions to prosecute whilst awaiting an SCA decision

The ECtHR has stated that, once a person has been identified as a suspected VOT/VOS, a decision on whether to prosecute them should, so far as possible, be taken after a SCA decision has been taken. This is particularly important where the suspect is a child. The ECtHR held that “… in the absence of any assessment of whether they were trafficked and, if so, whether that fact could have any impact on their criminal liability, … pleas [made before such as assessment] were not made “in full awareness of the facts” (VCL and AN v United Kingdom (Applications 77587/12 and 74603/12).

Whilst Courts and prosecutors must ensure that trafficking and slavery issues are not missed, prosecutors and courts should guard against unfounded attempts to raise a VOT/VOS point to cause delay and disruption; R v D [2018] EWCA Crim 2995 at [23] and [24].

This general position applies to all prosecution decision making including the decision to charge. Prosecutors should apply the Code for Prosecutors. If an SCA decision on a suspected VOT/VOS is pending they should apply Paragraph 4.3 of the Code and consider if this is a reasonable line of enquiry likely to affect the application of the Full Code Test whether in favour or against prosecution. Each case must be considered on its merits. In making this decision prosecutors should consider all relevant material including any separate investigations into the trafficked status of the person or nexus to the crime and other material provided as part of the investigation.

In the limited circumstances when the Threshold Test is applied there should be a rigorous examination of all five conditions in Paragraph 5 of the Code. The Threshold Test should only be applied if the seriousness or circumstances of the case justify the making of an immediate charging decision and should only be applied when necessary so that cases are not charged prematurely. This decision must be kept under review. The Full Code Test must be applied as soon as the anticipated further material is received.

If the issue of a suspect being a potential VOT/VOS is raised after charge, the Court of Appeal has said that courts should be alive to the duties of the prosecution to comply with guidance to assess if the person is potential credible VOT/VOS. As such the court should be asked to adjourn for a referral to the SCA. In such cases, the usual stage timetable for case progression “cannot apply and stage dates will need to be altered to accommodate the referral” R v D [2018] EWCA Crim 2995.

If a person has been charged and a decision is awaited from the SCA, the court should be invited by the prosecution to alter the usual stage timetables for case progression under Better Case Management in the Crown Court and Transforming Summary Justice in the Magistrates' Court, as they cannot apply and stage dates will need to be altered to accommodate the referral R v D [2018] EWCA Crim 2995. However, this does not affect the operation of custody time limits (CTLs). When necessary, applications for CTL extensions will need to be made in the normal way.

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, in accordance with the case of R v D [2018] EWCA Crim 2995.

  • ensure the defence representative is aware of the possibility of a section 45 defence;
  • request that a plea is not formally entered; and
  • apply for an adjournment for further investigation into the defendant’s possible status as a victim of slavery or trafficking.

Duty to make proper inquiries and to refer through the 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 inquiries in criminal prosecutions involving individuals who may be victims of trafficking or slavery.

The inquiries should be made by:

  • Advising the investigator who investigated the original offence that the suspect's trafficking/slavery situation must be investigated at an early stage if it has not already been done. Note in VCL the ECtHR said that “… the potential scope of [the obligation positive obligation to take operational measures to protect the PVs] extends beyond their identification as victims of trafficking”
  • Prosecutors should satisfy themselves that the investigation has been sufficiently thorough and focussed on the circumstances of the PV/suspect to ensure that the PV/suspects’ possible rights as a VOT are recognised and protected. However, if there is reliable and admissible evidence which confirms that the suspect is not a victim of trafficking/slavery there is no requirement to do so; and
  • Advising the investigator to consider referring the suspect to the NRM for victim identification if this has not already been done in the circumstances set out below. All law enforcement officers can refer potential victims of trafficking/slavery to the NRM.

An NRM referral should always be made:

  • unless the law enforcement agency is in possession of clear and sufficient evidence to prove that the suspect is not a victim of trafficking/slavery; or
  • unless the prosecutor agrees that the suspect is a VOT/VOS. Where the prosecution agrees that someone is a VOT that concession should be made and there is then no procedural reason to wait for a SCA decision. Prosecutors should make that admission where appropriate.

NRM Referral forms can be found here.

Adults must consent to the referral to the NRM. 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 even where there is an indication of a guilty plea by the suspect's legal representative.

There will be cases where a threshold test charging decision needs to be made before the competent authority decision is known. Guidance on the application of the threshold test can be found in the Code for Crown Prosecutors.

Referral to the NRM and NRM decisions

  • Following the NRM referral, the SCA will first make a ‘reasonable grounds’ decision. 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. The SCA aims to make this decision within 5 working days whenever possible. The potential trafficking/slavery victim will then be eligible for government funded support during a recovery and reflection period for a minimum of 45 days.
  • During this period, the SCA 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.

Stage 2: Is there Clear Evidence of Duress?

At this stage the prosecutor should assess whether evidence of duress means that there is no realistic prospect of conviction.

Duress provides a common law protection for VOT who commit offences. Prosecutors should be aware that the elements which must be established by a defendant are:

  • The defendant believed that there was a threat of death or serious injury;
  • This belief was reasonable, as well as genuinely held;
  • The threat was to the defendant, a member of his immediate family, or to a person for whose safety he reasonably regarded himself as responsible: R v Wright [2000] Crim.L.R. 510, CA; R v Hasan [2005] UKHL 22;
  • The defendant’s criminal conduct was directly caused by the threat; and a sober person of reasonable firmness, having the same characteristics as the defendant, would have responded in the same way; R v Graham (1982) 74 Cr App R 235, CA at 241. The characteristics which may be taken into account are only those which realistically make a person less able to resist threats: age and sex may be relevant, as are pregnancy and physical or mental disabilities; other factors are not; R v Bowen [1996] 2 Cr App R 157, CA.

Duress is not available:

  • As a defence to murder, attempted murder (and perhaps to treason involving the death of the sovereign): R v Gotts [1992] 2 AC 412; R v Hasan [2005] UKHL 22 at [21];
  • If there were some evasive action that the defendant could reasonably have been expected to take, in order to avoid the threat without committing the offence; or
  • Where the defendant voluntarily associated with people engaged in criminality, in circumstances where he foresaw or ought reasonably to have foreseen the risk of being subject to violent compulsion: the ‘gang exception’: R v Sharp [1987] QB 853.

Stage 3: Is there Clear Evidence of a Section 45 Defence?

At this stage the prosecutor should assess whether evidence of a section 45 defence means that there is no realistic prospect of conviction.

Section 45 of the 2015 Act applies to offences committed from 31 July 2015.  It creates separate statutory defences for adults and children who are VOT / VOS who commit certain criminal offences. The section 45 defence does not apply to the serious offences detailed in Sched. 4 to the 2015 Act.

Adults

Under section 45(1) a suspect aged 18 or over at the time of the alleged offending has a defence if they can adduce some evidence of all three of the following limbs of the defence:

  1. they did that act (or omission) because they were compelled to do it (whether by another person or by their circumstances): section 45(2)): section 45(1)(b) and section 45(3);
  2. the compulsion was attributable to slavery or trafficking: section 45(1)(c) and section 45(5); and
  3. a reasonable person in the same situation as the suspect and having the suspect’s relevant characteristics (age, sex and any physical or mental illness or disability: section 45(5)) would have no realistic alternative to doing that act: section 45(1)(d).

If the Prosecution can disprove any one of those limbs of the defence, section 45 will not be made out. See section on Burden and Standard of Proof below and R v MK and Gega [2018] EWCA Crim 667.

Children

Under section 45(4) a suspect who is under 18 at the time of the alleged offending has a defence if they can adduce some evidence of all three of the following limbs of the defence:

  1. the suspect was or had been a victim of slavery or trafficking (section 45(4)(b));
  2. they did the act (or omission) as a direct consequence of being or having been a victim of slavery or trafficking (section 45(4)(b));
  3. a reasonable person in the same situation as the suspect and having the suspect’s relevant characteristics (age, sex and any physical or mental illness or disability: section 45(5)) would have done the act (section 45(4)(c))

If the Prosecution can disprove any one of those limbs of the defence, section 45 will not be made out.

The evidence considered in Stage 1 under the heading “Single Competent Authority decisions and other identification tools” will be relevant in assessing the likely strength of the evidence relevant to all limbs of the defences, even if it would be inadmissible in a criminal court, as it may be useful in assessing what admissible evidence might be adduced into evidence.

Burden and Standard of Proof - Evidential burden on the defendant

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

Prosecutors should be mindful that each case depends on its own facts and the weight to be afforded to the SCA decision will depend on the particular circumstances of each case and will need to be considered with the surrounding evidence. The seriousness of the offences will be a significant consideration when determining what a reasonable person would have done where the defendant is an adult.

Burden and Standard of Proof - Legal Burden on the Prosecution

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 "unscrupulous" 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 below R v MK and Gega [2018] EWCA Crim 667. The Court of Appeal [at paragraph 39] observed that “the prosecution is likely to have less difficulty in establishing to the criminal standard that an adult offender in the defendant's position had a realistic alternative to committing the offence, than the defendant would have in establishing on the balance of probabilities that a reasonable person in his or her position would have had no realistic alternative but to do what was done.”

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

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

Stage 4: Is it in the Public Interest to Prosecute?

The Public Interest and Compulsion

Prosecutors should consider the factors in the Code for Crown Prosecutors with specific consideration of the following:

  • The seriousness of the offence.
  • The level of culpability of the VOT/VOS.
  • The harm caused to the victim.
  • The suspects age and maturity.

Additionally, Prosecutors should consider the following (see paragraph 20 of VSJ [2017] EWCA Crim 36 and paragraph 76 of GS [2018] EWCA Crim 1824):

  • Whether there is a nexus between the trafficking/slavery or past trafficking/slavery and the alleged offending; and, if so,
  • Whether the dominant force of compulsion from the trafficking/slavery or past trafficking/slavery acting on the suspect is sufficient to extinguish their culpability/criminality or reduce their culpability/criminality to a point where it is not in the public interest to prosecute them.

This approach was approved by the ECtHR in the 2021 decision of GS v the UK, Application no. 7604/19, in which GS unsuccessfully applied to challenge the decision of the Court of Appeal in GS [2018] EWCA Crim 1824.

‘Compulsion’ includes all the means of trafficking defined by the Palermo Protocol: 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.

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.

A suspect’s criminality or culpability should be considered in light of the seriousness of the offence. The more serious the offence, the greater the compulsion needed to reduce the criminality or culpability to the point where it is not in the public interest to prosecute; see paragraph 31 of VSJ.

When assessing the public interest in respect of a child VOT/VOS, it is not necessary for there to have been compulsion (VSJ, paragraph 35). Accordingly, if Stage 4 is reached for a child, prosecutors should consider:

  • Whether there is a nexus between the trafficking/slavery or past trafficking/slavery and the alleged offending; and, if so,
  • Whether the circumstances extinguish the child’s culpability/criminality or reduce it to a point where it is not in the public interest to prosecute them. If there was compulsion, then this will reduce the public interest, but it is not a necessary element. As for an adult, the more serious the offence, the stronger the countervailing factors will need to be before it is not in the public interest to prosecute.

Abuse of process

In cases where the criminal offence was committed before 31 July 2015 Stages 1, 2 and 4 above will apply. The sole protection for suspects is the exercise of prosecutorial discretion in assessing evidence in each of the stages as part of the Full Code Test. It had been held that, for cases considered pre-31 July 2015, a special category of abuse of process exists in the criminal courts where it is arguable that the prosecutor’s discretion to prosecute has been exercised unlawfully. It had also been held that that category of abuse of process did not apply to offences committed on or after 31 July 2015; see DS [2020] EWCA Crim 285 for cases where a section 45 defence applies; and A [2020] EWCA Crim 1408 for offences where Sched. 4 of the 2015 Act excludes the application of section 45. However, it has since been held in AAD, AAH, AAI [2022] EWCA Crim 106 that DS and A were not binding on the abuse of process point, and that abuse of process could still be raised in such cases. Significant points from the cases of DS, A and AAD, AAH, AAI are set out below.

In DS [2020] EWCA Crim 285 the Court of Appeal held that:

  • The prosecutor must take a Conclusive Grounds decision into account in deciding whether a defendant is a victim of trafficking and whether the offending has a very close nexus with the exploitation;
  • The prosecutor is entitled to challenge that Conclusive Grounds decision before the jury in seeking to rebut the statutory defence and to invite the jury to come to a different decision;
  • If there is a sound evidential basis on which to do this, it will not be an abuse of process to try. If there is not, it will still not be an abuse of process, but the judge will consider any submission that there is no case to answer; and
  • Whether or not a defendant is in fact a victim of trafficking is a matter for the jury. This is an issue which they will have to consider on all properly admissible evidence, which may include the evidence of the defendant or, if he does not give evidence, may, if appropriate, include an adverse inference.

The Court of Appeal in A [2020] EWCA Crim 1408 agreed with the approach taken in DS. The Court of Appeal held that:

  • The 2015 Act has changed the legal landscape in relation to the protection available to victims of trafficking who commit criminal offences. The reason for the previous development of a special abuse of process jurisdiction in cases of this kind was because there was a lacuna in domestic law in relation to the UK's international obligations owed to victims of trafficking. The lacuna has now been filled;
  • Schedule 4 to the 2015 Act which excludes certain offences from the scope of the section 45 defence is not in conflict with our international obligations;
  • Cases in which duress and section 45 are not available, but where it would not be in the public interest to prosecute on the basis of a victim’s trafficking status will be rare; and
  • The seriousness of the offence requires a greater degree of continuing compulsion and the absence of any reasonably available alternatives to the defendant before it is likely to be in the public interest not to prosecute.

The judgment of AAD, AAH and AAI [2022] EWCA Crim 106 confirmed the circumstances when abuse of process is still possible. The Court reinforced that it is the duty of the CPS to consider the trafficking status of a possible credible VOT, notwithstanding that they had committed an offence under schedule 4 MSA (offences to which the s.45 defence does not apply).

In AAD, AAH and AAI Lord Justice Fulford VP stated at paragraph 142:

  1. "(1) The limb two abuse of process jurisdiction [i.e. where it would be unfair to try the defendant] remains available in principle in all VOT cases following the 2015 Act, and whether or not they are Schedule 4 cases.
    "(2) Such jurisdiction is "special" only in the sense that it falls to be exercised in the context of a particular sensitivity required to be applied to VOT prosecutions, having regard to international obligations and specific CPS guidance. The core requirements of unfairness and oppression and illegality (inherent in almost every limb two case) remain central to applications for a stay in a VOT context.
    "(3) Mere disagreement with a decision to prosecute, following due regard given by the prosecution to the CPS guidance and to any conclusive grounds decision, gives no basis whatsoever for an application for a stay. Decisions to prosecute are for the CPS. Decisions on disputed facts or evaluations of fact are for the jury. 
    "(4) If (in what will be likely to be a most exceptional case) there has been a failure to have due regard to CPS guidance or if there has been a lack of rational basis for departure by the prosecution from a conclusive grounds decision, then a stay application may be available”.

The Court also noted (at paragraph 141) that “on an application to stay the proceedings, for instance on the basis that the Crown had unjustifiably failed to take into account the CPS Guidance when deciding to prosecute, one option available to the judge prior to making a decision would be to adjourn the application to afford the CPS the opportunity to reconsider/remake its decision in light of its own guidance. This approach may be less appropriate, however, if the contention is that the decision was simply unsustainable or perverse.”

The judgment upheld Brecani [2021] EWCA Crim 731 in confirming that SCA decision makers are not experts but did confirm that the SCA’s decision on conclusive grounds is potentially admissible in appeal matters. The judgment also confirmed the limitations on when expert evidence could be introduced and confirmed that there may be cases when the CACD will consider whether the appellant needs to give evidence on appeal.

What to do if there is a positive CG decision but decision to continue prosecution

Prosecutors should:

  • Take into account the SCA finding (VCL and AN v UK (Applications nos. 77587/12 and 74603/12).
  • Ensure that the case has been fully investigated and focused on the circumstances of the PV/suspect. This will include investigation of all reasons on the SCA minute sheet which accompanies the SCA decision. Brecani does not change the requirement for information and evidence to disprove section 45 beyond reasonable doubt.
  • Give full and proper consideration as to whether each reason on the SCA minute sheet is investigated and evidenced. Ensure that the decision making is properly and clearly explained and endorsed in accordance with this guidance. Clear reasons for disagreeing with SCA decisions and reaching a different conclusion must be endorsed. This applies equally to adult and children suspects. The prosecutor should not base a decision to disagree on peripheral issues.  The prosecutor should set out reasons: why the statutory definition of trafficking does not apply to the individual; or why there was no nexus between the trafficking and the offence.
  • The decision made by a prosecutor as to whether the defendant has satisfied the evidential burden and whether the prosecution can disprove the statutory defence will depend on an assessment of all of the available material.
  • The CG decision and underlying material on which it is based will be unused material. The material should be reviewed in accordance with the CPIA.  Any positive SCA finding regarding an individual is very likely to be material which may either undermine the prosecution or assist the defence.  Prosecutors should consider early disclosure of such material to the defence.  The underlying material may contain personal details which need to be redacted and may consider sensitive material which will need consideration in accordance with the guidance in the Disclosure Manual.

Children - 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 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 they must be treated as a child. See paragraph 25 of L, HVN, THN and T v R. Section 51 of the 2015 Act implements this in domestic legislation.

Where the criminal court determines for the purposes of procedure that a reputed child defendant is an adult, this will not prevent the defendant from raising evidence that s/he is under 18 in the context of a section 45 defence. It will then be for the Prosecutor to prove to the criminal standard that they were not under 18 at the date of the offence.

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. With children, consent is not required to make a referral.

  1. Ensure that the Defendant’s 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 defendant’s possible status as a victim of slavery or trafficking.

Smuggling

It is important to understand the difference between persons who are smuggled and those who are trafficked; in some cases the distinction between a smuggled and trafficked person will be blurred and both definitions could easily be applied. It is important to examine the end situation when the victim is recovered to determine whether someone has been smuggled or trafficked.

Smuggling is characterised by illegal entry only and international movement only, either secretly or by deception (whether for profit or otherwise).

Definition

The UN Protocol against the Smuggling of Migrants by Land, Sea and Air defines human smuggling as "... the procurement, in order to obtain, directly or indirectly, a financial or other material benefit, of the illegal entry of a person into a state party of which the person is not a national".

Legislation and Sentencing

Assisting unlawful immigration (facilitation) - section 25 of the Immigration Act 1971

Further to the European Union (Withdrawal Act) 2020, this provision was amended to cover any act facilitating a breach of immigration law by an individual who is not a national of the UK. This came into effect at 11pm on 31 December 2020. Under section 25(1) a person commits an offence if he:

  • Does an act which facilitates the commission of a breach or attempted breach of immigration law by an individual who is not a national of the United Kingdom;
  • Knows or has reasonable cause for believing that the act facilitates the commission of a breach or attempted breach of immigration law by the individual; and
  • Knows or has reasonable cause for believing that the individual is not a national of the United Kingdom.

The offence is defined broadly enough to encompass offences of assisting illegal entry (whether by smuggling someone in a vehicle or by providing false documents for presentation at a port) or assisting someone to remain by deception (for example by entering into a sham marriage) and other forms of assistance which facilitate a breach of the immigration laws.

Section 25(2) of the Act defines an immigration law as a law which has effect in a member State and which controls, in respect of some or all persons who are not nationals of that State, entitlement to enter, transit or be in the State. From 31 December 2020, this is defined as the entitlement to enter, transit or be in the UK.

The offence is an either-way offence and the maximum sentence on indictment is up to 14 years' imprisonment. It is also a "lifestyle offence" under schedule 2 of the POCA.

Facilitating entry by asylum seekers to the UK for gain - section 25A Immigration Act 1971

Under section 25(A) (1) a person commits an offence if he:

  • Knowingly and for gain facilitates the arrival or attempted arrival, in or the entry or attempted entry into, into the United Kingdom of an individual, and
  • Knows or has reasonable cause to believe that the individual is an asylum-seeker.

Under section 25A (2) Immigration Act 1971, an "asylum-seeker" means a person who intends to claim that to remove him from or require him to leave the UK would be contrary to the UK's obligations under the Refugee Convention (within the meaning given by section 167(1) of the Immigration and Asylum Act 1999 (interpretation)), or the ECHR (within the meaning given by that section).

The offence covers any actions done whether inside or outside the UK, regardless of the nationality of the perpetrator. No element of smuggling is required to make out the offence; the asylum seekers do not need to be illegal entrants. The offence is aimed at those who, for gain, bring asylum seekers to the UK to enable them to claim asylum. This does not apply to anything done by a person acting on behalf of an organisation, which aims to assist asylum-seekers, and does not charge for its services: section 25A(3) Immigration Act 1971.

The offence is an either-way offence and the maximum sentence on indictment is up to 14 years' imprisonment, a fine or both. Reported sentences range from six months imprisonment for smuggling a spouse (Ozdemir [1996] 2 Cr App Rep (S) 64 to 30 months for bringing a family member in on a passport which did not belong to them (Toor [2003] EWCA Crim 185. It is also a "lifestyle offence" under schedule 2 of the POCA.

Bearing in mind the nature of the offences and the sentences that can be imposed, it is likely that most such cases will not be suitable for summary trial unless there are significant and exceptional circumstances to justify this course of action. The factors in R v Le and Stark [1999] 1 Cr. App. R. (S.) 422 would appear to apply equally here.

Assisting entry to the UK in breach of deportation or exclusion order - section 25B Immigration Act 1971

Under section 25(B)(1) a person commits an offence if he:

  • Does an act which facilitates a breach or attempted breach of a deportation order in force against an individual who is a citizen of the European Union, and
  • Knows or has reasonable cause for believing that the act facilitates a breach or attempted breach of the deportation order.

However, with effect from 31 December 2020, section 25(B) will only apply where a deportation or exclusion order is made against an EU citizen prior to 31 December 2020.

In cases where the Secretary of State personally directs that the exclusion from the UK of an individual who is an EU citizen is conducive to the public good, subsection (3) below applies.

Assisting entry / remaining of excluded person - section 25B (3) Immigration Act 1971

Under section 25B (3) a person commits an offence if he:

  • Does an act which assists the individual to arrive in, enter or remain, or attempt to arrive in, enter or remain, in the UK;
  • Knows or has reasonable cause for believing that the act assists the individual to arrive in, enter or remain, or attempt to arrive in, enter or remain, in the UK; and
  • Knows or has reasonable cause for believing that the Secretary of State has personally directed that the individual's exclusion from the UK is conducive to the public good.

The offences cover any actions done whether inside or outside the UK. It is an either-way offence and the maximum sentence on indictment is up to 14 years' imprisonment, a fine or both. It is also a "lifestyle offence" under schedule 2 of the POCA.

Bearing in mind the nature of the offences and the sentences that can be imposed, it is likely that many cases will not be suitable for summary trial unless there are significant and exceptional circumstances to justify this course of action. The factors in R v Le and Stark [1999] 1 Cr. App. R. (S.) 422 would appear to apply equally here.

Detention and forfeiture of vehicles etc.

Under section 25C Immigration Act 1971, where a person is convicted on indictment of an offence under sections 25, 25A or 25B, the court may order the forfeiture of a vehicle, ship or aircraft used or intended to be used in connection with the offence if the convicted person owned, was in possession of or was driving it at the time.

Under section 25D Immigration Act 1971, if a person has been arrested for an offence under sections 25, 25A or 25B, a senior officer or a constable may detain a relevant ship, aircraft or vehicle.

Please refer to Immigration Offences and the Organised Facilitation – Vehicles and Boats guidance for further information.

Further reading

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