What Is Modern Slavery?
Modern slavery is an exploitative crime. Victims of modern slavery are extremely vulnerable, and have often been subjected to threats, physical violence and sexual exploitation. There is an increasing amount of victims of modern slavery in the UK.
It is a complex crime. Many victims will not be aware that they have been trafficked or exploited. It can be difficult to spot the signs that someone may be a victim. Legal professionals and those working with members of the public should be aware of the physical and psychological indicators.
Victims of modern slavery can become involved in the criminal justice system due to the nature of their exploitation. In 2015, the Modern Slavery Act (“the Act”) was introduced. Within this Act, a defence was outlined for victims of Modern Slavery, namely under Section 45 of the Act which allowed victims of slavery and trafficking to advance a statutory defence in criminal proceedings, providing they were charged with an offence not listed in Schedule 4 to the Act.
The National Referral Mechanism (“the NRM”)
Many of the cases where victims rely on the Section 45 defence in criminal proceedings will also involve the NRM. The NRM is one of the ways in which victims of modern slavery can be identified. It ensures those subjected to modern slavery conditions receive appropriate support. It can also assist in ensuring those subjected to exploitation are not prosecuted or, if they are, it can assist in advancing the Section 45 defence.
If victims of modern slavery are arrested, the police, as a first responder organisation, have the power to refer the case to the NRM. The police are not the only first responder organisations. Local authorities, some charities and government agencies are able to refer cases to the NRM and in some cases have a duty to do so. As legal representatives, we also have the ability to alert these organisations if we have any concerns.
Once a NRM referral has been issued, the case will be determined by the Single Competent Authority (“the SCA”), a division of the Home Office. Two decisions will be made by the SCA: a Reasonable Grounds Decision (“RGD”) and then a Conclusive Grounds Decision (“CGD”). The former means the SCA have reasonable grounds to suspect someone is a victim of trafficking. The case will then progress to the second stage to determine whether, on the balance of probabilities, there are sufficient grounds to decide that an individual is a victim of trafficking. If there are sufficient grounds, the decision becomes known as a positive CGD.
A positive CGD is important. It is a persuasive authority for the police and Crown Prosecution Service (“CPS”) in deciding whether to proceed with criminal prosecutions. The police may decide to take no further action, and the CPS may offer no evidence in a criminal case, if a positive CGD is made.
If the CPS decide to continue with criminal proceedings despite a positive CGD, it can still be of assistance in advancing a successful Section 45 defence. In addition, if there is evidence that the CPS have failed to regard the relevant prosecutorial guidance and decide to proceed with a case despite a positive CGD, an abuse of process argument could be open as a means of legal redress.
Whilst there are various advantages to obtaining a positive CGD, recent case law has proved there are still barriers to overcome in relying on positive decision in trials. The Court in R v AAD, AAH and AAI  EWCA Crim 106 (“AAD”) upheld the decision in R v Brecani  EWCA Crim 731. Positive CGDs can no longer be admitted as expert evidence in criminal trials. The Court held that experts cannot express opinions in evidence before the jury as to the plausibility and consistency of the defendant’s account, the vulnerability of the defendant, or whether a given set of facts meets the legal definition of trafficking. This was a real setback for victims of trafficking whom are some of the most vulnerable in our society.
Despite the difficulty in admitting positive CGDs in criminal proceedings, referring cases to the NRM is still essential. It is an important mechanism to ensure that those who have been trafficked are not wrongly prosecuted for criminal behaviour that arises from trafficking. The police and CPS can and have ceased proceedings when positive CGDs are obtained.
Most importantly, throughout the NRM process and especially once a positive CGD is obtained, victims can access further legal, psychological and practical support to assist with managing the consequences of being a victim of trafficking.
At Hodge Jones & Allen, we are a team of experienced criminal practitioners with an awareness of the complexities posed by victims of modern slavery who become involved in the criminal justice system.