Section 45 Modern Slavery Act 2015 gives rise to a statutory defence for children under 18 charged with certain criminal offences. It states that a child will not be guilty of an offence if:
“…(a)the person is under the age of 18 when the person does the act which constitutes the offence,
(b) the person does that act as a direct consequence of the person being, or having been, a victim of slavery or a victim of relevant exploitation, and
(c) a reasonable person in the same situation as the person and having the person’s relevant characteristics would do that act.”
The defence is often used in cases involving cultivation of cannabis and drug dealing however certain serious offences are exempt from relying on the defence such as murder, arson and most sexual offences.
Once the defence has been raised, it is for the Crown Prosecution Service (CPS) to disprove it.
Whilst there is a similar defence for adults, children don’t need show that they were compelled to do the act due to slavery or exploitation, only that they did the act as a direct consequence of being a victim of slavery or exploitation.
Children Trafficked into the UK
In recent years, there has been an increase in child trafficking in the UK, including those being trafficked into the UK and exploited to commit criminal offences. These children often have no identity documents or use false identity documents making it difficult to determine their exact age. Subsequently age disputes in the criminal justice system can arise when the CPS challenge a defendant’s age.
The Law on Age Assessments
Age is fundamental in criminal cases as it not only affects the way an individual is treated, both in court and with regards to bail, but it also impacts the defence under the Modern Slavery Act – the defence for children is easier to establish than that for an adult. Furthermore, a potential child victim of trafficking has rights and entitlements such as access to specialist trauma care, specialist legal advice and safe accommodation.
The Association of Chief Police Officers (ACPO) guidance states that ‘no decision to progress charges against such individuals should be made until all relevant assessments have been undertaken’, and that ‘where official records, or other reliable evidence, are not available to confirm age, a Merton compliant age assessment should be carried out by the local authority’. Unfortunately many children whose age is in dispute still end up in the court without a lawful assessment being undertaken.
Section 99 of the Children and Young Persons Act 1993 provides that where a defendant is brought before the court and it appears that they are a child or young person, the case should be adjourned for the court to ‘make due inquiry as to their age’, and the age presumed or declared by the court will be deemed to be their true age. The court should consider any available evidence and may seek an age assessment from the relevant local authority.
Section 51 of the Modern Slavery Act 2015 states that where the police or court have reasonable grounds to believe a person is a victim of trafficking and their age is uncertain, but believe they may be under 18, the court must presume they are a child until an age assessment is carried out or the person’s age is otherwise determined.
Best practice guidance from the Association of Directors of Children Service (ADCS) makes it clear that age assessments should only be carried out where there is significant reason to doubt that the claimant is a child, they should not be a routine part of a local authority’s assessment of trafficked children.
If an age assessment is required, it should be conducted by the relevant local authority and the ‘Merton guidelines’ must be followed, with particular attention paid to the following:
- The assessment must be a holistic one and must start with an open mind, with no imposition on the child to prove his age.
- Assessments of age should normally be carried out by 2 assessors.
- The assessment may need to be undertaken over a period of time because it is important for the assessors to first establish a rapport with the putative young person.
- Physical appearance and demeanour are notoriously unreliable factors not determinative of age. Thus except in clear cases, age cannot be determined solely from appearance.
- Cultural, ethnic and racial context of the young person being assessed must be considered as these may reflect in their presentation as well as their descriptions of their lives.
- General credibility is not to be determinative of age. It is more likely that a young person who tells a consistent account of his life which supports his claimed age will be the age he claims to be. Conversely, young people may lie for reasons unrelated to age but related to their claims for protection or for reasons they had to leave their country of origin.
- The child should be afforded the benefit of the doubt where evidence can tip one way or the other.
- Local authority decision makers, as well as courts, should take everything material into account.
- Safeguards should be in place to ensure the young person understands the purpose of the interview.
- If the decision maker forms the view that the young person may be lying, the young person should be given the opportunity to address the matters that may lead to that view.
- The local authority is obliged to give reasons for its decision, although these need not be long or elaborate.
If, following an age assessment, new evidence as to a person’s age arises, this evidence should be presented to the local authority and a fresh assessment should be requested.
If the assessment is not conducted lawfully then the process can be challenged by way of judicial review. Where there is a dispute between the individual’s claimed age and the local authority’s assessed age, the High Court can come to its own conclusion following an age determination hearing.
Age determination is an inexact science but it is vital that defence solicitors ensure that age disputes are dealt with properly as the impact can be far reaching.
Freya Colvin is a solicitor in the Criminal Litigation Department. She is a Higher Rights Advocate and specialises in offences involving Children and Young People as well as dealing with Serious Crime.