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High Court victory for victims of trafficking

On 15 December, the judgement in DPP v M was given – an important case which builds further understanding regarding what evidence is admissible and the burden of proof in Modern Day Slavery Act 2015 criminal cases.

Chloe Hartnell, Senior Associate at Hodge Jones & Allen Solicitors and counsel Brenda Campbell QC and Sam Parham of Garden Court Chambers secured an important victory for victims of trafficking and modern day slavery.

M was a teenage boy with no convictions who was missing for long periods of time. He was arrested in an area in which he had no connection. He was in the company of others who habitually carried knives but on this occasion just had a small amount of cannabis. He, in comparison had a knife and class A drugs. There was a referral to the Single Competent Authority (SCA) who found, on the balance of probabilities that M was the victim of Modern Day Slavery and that he was subject to criminal exploitation at the time of his arrest. The CPS stated that they were going to prosecute him despite this decision.

At the trial, Chloe Hartnell, criminal defence solicitor argued that he was not guilty as he committed the act as a consequence of the trafficking, that there was a nexus between the trafficking and the act and a reasonable person bearing his characteristics would have done the same. The evidence before the court included the decision from the SCA and the information that they had relied upon to make that decision. Social Services and the police had informed this decision making process. The District Judge rightly stated that the evidential burden on the defendant had been discharged and the Crown had failed to disprove the defence beyond reasonable doubt.

After the acquittal the Crown sought to appeal by way of Case Stated to the Administrative Court stating that the evidential burden had to be discharged by the defendant giving evidence. They stated that the SCA decision had no weight and should therefore be inadmissible. Brenda Campbell QC and Sam Parham joined the defence team and successfully argued that the SCA decision was admissible and that the court could decide the weight it should be given; the evidential burden can be discharged from a number of sources not just the defendant.

Commenting on the outcome and its significance, Chloe said:

“Modern Day Slavery is a principle that has developed through international obligations. A European directive defines ‘human trafficking’, a form of modern day slavery, as:  “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 the 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 over another person, for the purpose of exploitation”

Children cannot consent to being trafficked. They are often too fearful to name the traffickers or lack insight to understand their trafficking. Courts have agreed that there needs to be forensic examination of all the evidence as to whether the defendant is a victim of trafficking and whether there is a nexus with the offence. Depriving the court of the SCA decision would have severely reduced the evidence on which to make this decision.

Case law from the High Court spanned before and after the enactment of the Modern Day Slavery Act 2015. Prior to the defence being available under s45, victims of trafficking were able to use the decision of the SCA to argue that their prosecution for offences as a consequence of their trafficking if they were a child or as a compulsion if they were an adult, was an abuse of process. More recently the High Court stated that once the defence was available the Crown were not bound by the decision of the SCA and could choose to prosecute despite a positive decision. What was not decided in any of these cases was whether the SCA decision was admissible until DPP v M. Ultimately, each case will be decided on its facts and often those facts will come from different sources but lawyers need to be live to the issues”.

Full judgment available here.