The Crown Prosecution Service (CPS) guidance on Human Trafficking, Smuggling and Slavery sets out clear and explicit guidance to prosecutors on how to approach human trafficking and modern slavery cases, both when prosecuting perpetrators and prosecuting victims of forced criminality who are raising a Section 45 Slavery Defence. The relevant important guidance is set out below:

Statutory defence for slavery or trafficking victims who commit an offence

Section 45 of the Modern Slavery Act 2015 introduces a defence for victims who are compelled to commit criminal offences. This came into force on 31 July 2015; for offences committed by victims before this date, prosecutors should refer to the CPS guidance on suspects in a criminal case who might be victims of trafficking or slavery.

Under section 45

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

The statutory defence applies only to criminal offences committed on or after 31 July 2015 and will operate in parallel to CPS guidance on suspects who might be trafficked victims.

How will it apply?

Where an adult suspect is apprehended for committing a criminal offence and it is clear from their circumstances that they are a victim of trafficking or slavery, the offence has been committed as a direct consequence of their situation and they were compelled to commit it, the police or Immigration Officer may decide not to arrest but to remove them to a place of safety. In the case of a suspect under 18, it is irrelevant whether they were compelled to commit the offence.

In cases where the suspect is arrested for a minor criminal offence and there is evidence to show that they may be a victim of trafficking, if they are an adult and agree to a referral, the police can refer them through the National Referral Mechanism (NRM) to confirm their trafficking status. If the victim is an adult and does not agree, the police must complete the duty to notify process (see above). Where the suspect is a child, the police can refer them through the NRM without their consent. If after investigation, there is clear evidence that a defence might apply, the custody officer may decide not to charge.

In all other cases, the CPS will make the decision. In cases referred to the CPS for a charging decision and for which a defence under section 45 could apply, a prosecutor will require proper information to inform a decision on charge and make an assessment on the availability of the defence.

Information and evidence relevant to an assessment of whether a section 45 defence may apply should include any credible evidence to support all the elements of the defence, including:

• whether the suspect is a victim of trafficking or slavery. This could include a conclusive grounds decision on their trafficking /slavery status under the NRM or, where an adult victim does not consent to being referred into the NRM, any other available evidence of trafficking or slavery.
• for adult suspects, evidence of compulsion (for further guidance on compulsion see Has the victim been compelled to commit an offence). (Whether the criminality is significantly diminished or effectively extinguished because no realistic alternative was available but to comply with the dominant force of another.)
• evidence of relevant characteristics of the suspect. For children, evidence of age; for adults, evidence of age, gender, and any mental or physical illness which will be considered for the reasonable person test (see below).

If there is no such evidence to support the trafficking / slavery status of the suspect or other elements of the statutory defence are not met, prosecutors can still consider the CPS guidance on suspects in a criminal case who might be victims of trafficking or slavery to decide whether it is in the public interest to prosecute.

For the offences excluded from the defence in Schedule 4 prosecutors can use their wider discretion in applying the CPS guidance to decide not to prosecute.

Burden and standard of proof

In order to avail himself of a section 45 defence, the defendant will need:

• to adduce evidence to raise the issue of whether he was a victim of trafficking or slavery. It will then be for the Crown to prove beyond reasonable doubt that he was not a victim, if this is not accepted.
• for adults, to prove on a balance of probabilities that he was compelled to commit the offence (Whether the criminality is significantly diminished or effectively extinguished because no realistic alternative was available but to comply with the dominant force of another.); and;
• for adults, to prove on a balance of probabilities that the compulsion was as a direct consequence of his trafficking or slavery situation; and
• for adults, to prove on a balance of probabilities that a reasonable person with the same characteristics of the defendant and in the same position would have no realistic alternative but to commit the offence.
• for children, to prove on the balance of probabilities that a reasonable person in the same situation and with the same characteristics of the defendant, would do that act.

Evidential Stage

If there is a conclusive grounds decision under the NRM that a suspect is a victim of trafficking or slavery; and there is evidence that proves on a balance of probabilities that the other conditions in section 45 are met, relevant to whether the suspect is an adult or child; and the offence is not an excluded offence under schedule 4 of the Act, then no charges should be brought.

If there is no NRM conclusive grounds decision but other available evidence shows that on the balance of probabilities the suspect is a victim; that is, it is more likely than not that they are a victim of trafficking or slavery, this will satisfy the evidential stage of victim status. Where there is a reasonable grounds decision only, prosecutors should make enquiries about when a conclusive decision is likely to be made. If there is to be a delay, then prosecutors can take account of the reasonable grounds decision of the suspect but should additionally consider other evidence and the seriousness of the offence when considering the decision to prosecute.

If the suspect is not a victim of trafficking or slavery, it is immaterial whether he fulfils the other conditions; the defence is not then available.

It is Parliament’s intention that all conditions under section 45 be complied with in order to afford a suspect a statutory defence. If any of the conditions are not complied with, the statutory defence is not available. In these circumstances, prosecutors should go on to consider the CPS guidance (below).

Public Interest Stage

Prosecutors must, as with every case, assess the public interest in accordance with the Code for Crown Prosecutors. Information regarding the personal circumstances or characteristics of the suspect may be relevant factors when deciding if a prosecution is required in the public interest. However, it is likely that such factors will already have been considered in the “relevant characteristics” as part of the evidential test of the reasonable person.

CPS guidance on suspects in a criminal case who might be victims of trafficking or slavery

This part of the guidance will apply:

• after prosecutors have already considered the statutory defence under section 45 Modern Slavery Act 2015, and it has been rejected;
• where the criminal offence is excluded from the defence in Schedule 4 Modern Slavery Act or
• where criminal offences have been committed by a victim of trafficking or slavery before the date on which the statutory defence came into force (31 July 2015).

The guidance applies to victims of trafficking and slavery who are also suspects in a criminal offence. When dealing with cases involving a child, prosecutors must consider the additional requirements set out below in the section Suspects who may be children.

Indicators of trafficking and slavery

Prosecutors should be alert to particular circumstances or situations where someone suspected of committing a criminal offence might also be a victim of trafficking or slavery, e.g. an unaccompanied foreign national child committing offences such as pickpocketing or cultivation of cannabis or in the case of adults, committing offences such as those involving immigration documents, or controlling prostitution (these are examples of offences most frequently committed, not an exhaustive list). Guidance is published to investigators on indicators of trafficking and this may also be of help to prosecutors.

Prosecutor’s obligations

When considering whether to proceed with prosecuting a suspect who might be a victim of trafficking or slavery and who has been compelled to commit a criminal offence as a direct consequence of their situation, prosecutors should be aware of the clear obligations imposed upon them.

These obligations arise under:

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

A three-stage approach to the prosecution decision

In addition to applying the Full Code Test in the Code for Crown Prosecutors, prosecutors should adopt the following three stage assessment:

1. is there a reason to believe that the person is a victim of trafficking or slavery? If so,
2. if there is clear evidence of a credible common law defence of duress, the case should be discontinued on evidential grounds; but
3. even where there is no clear evidence of duress, but the offence may have been committed as a result of compulsion arising from the person’s trafficking or slavery situation, prosecutors should consider whether the public interest lies in proceeding to prosecute or not. (See the judgment in LM & Ors [2010] EWCA Crim 2327).

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

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

The enquiries should be made by:

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

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 for further explanation).

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

Referral to the NRM and NRM decisions

• Following the NRM referral, the Competent Authority (CA) will first make a “reasonable grounds” decision. In the United Kingdom, the CA is either the Home Office (through a team in UKVI) or the UK Human Trafficking Centre (UKHTC) depending on the victim’s immigration status. A positive reasonable grounds decision is made when there are reasonable grounds to believe the individual is a potential victim of human trafficking/slavery. This means ‘I suspect but cannot prove’ that the individual is a victim. This decision should take 5 days. The potential trafficking/slavery victim will then be eligible for government funded support during a recovery and reflection period for 45 days.
• During the 45 day period, the CA gathers further information about the victim; and this additional information is used to make a conclusive grounds decision on whether the referred person is a victim of human trafficking/slavery.
• A conclusive grounds decision is whether, on the balance of probabilities, it is more likely than not that the individual is a victim of human trafficking/slavery.
• Prosecutors should take account of an NRM decision (reasonable grounds or conclusive grounds) regarding the status, or potential status, of the suspect as a victim of trafficking/slavery when considering the decision to prosecute; however a conclusive decision will carry more weight.
• Where there is a reasonable grounds decision only, prosecutors should make enquiries about when a conclusive decision is likely to be made. If there is to be a delay, then prosecutors can take account of the reasonable grounds decision of the suspect but should additionally consider other evidence and the seriousness of the offence when considering the decision to prosecute.

Where there is credible evidence of trafficking/slavery (a positive CA decision)

• Prosecutors should consider whether or not there is clear evidence of a credible common law defence of duress, as required in the second stage of the assessment. If so the case should not be charged / be discontinued on evidential grounds.
• If not consider whether or not the trafficking/slavery victim was compelled to commit the offence.

Has the victim been compelled to commit an offence?

The following guidance on considering whether a victim has been compelled, as required in the third stage of the assessment, applies to adults only and does not apply to child victims of trafficking/slavery (see the section below “Children and “the means of trafficking”“).

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

In considering whether a trafficking/slavery victim has been compelled to commit a crime, prosecutors should consider whether any of these means has been employed so that the victim has effectively lost the ability to consent to his / her actions or to act with free will.

The means of trafficking/slavery used in an individual case may not be sufficient to give rise to a defence of duress, but will be relevant when considering whether the public interest is met in deciding to prosecute or proceed with a prosecution.

In assessing whether the victim was compelled to commit the offence, prosecutors should consider whether:

• the offence committed was a direct consequence of, or in the course of trafficking/slavery and whether the criminality is significantly diminished or effectively extinguished because no realistic alternative was available but to comply with the dominant force of another.

Where a victim has been compelled to commit the offence, but not to a degree where duress is made out, it will generally not be in the public interest to prosecute unless the offence is serious or there are other aggravating factors.

If the defendant is a trafficking/slavery victim but the offence has been committed without reasonable compulsion occasioned by the trafficking/slavery, and there are no particular trafficking/slavery related public interest considerations, then the Full Code Test should be applied in the usual way.

Early guilty plea indicated

Where there is (1) an indication of an early guilty plea, (2) a full investigation has not been carried out and (3) the circumstances are such that there is suspicion of trafficking/slavery: at the first hearing prosecutors should request an adjournment for further investigation and ask that a plea is not formally entered.

Credible evidence of trafficking/slavery post-charge

In cases where a decision has already been taken to charge and prosecute a suspect, but further credible information or evidence comes to light, or the status of a suspect as a possible victim of trafficking/slavery is raised post-conviction, for example in mitigation or through a pre-sentence report, then prosecutors should seek an adjournment and ensure that the steps outlined in the section “The duty to make proper enquiries and to refer through the National Referral Mechanism (NRM)” above are carried out.

Suspects who may be children – Additional requirements

Assessing age and trafficking/slavery status

In cases where the defendant may be a child victim of trafficking/slavery, two linked questions must be addressed:

1. what is the defendant’s age?
2. what evidence is there to suggest that the defendant is a victim of trafficking/slavery?

If the defendant is a child victim of trafficking/slavery, the extent to which the crime alleged against the child was consequent on and integral to his / her being a victim of trafficking / slavery must be considered. In some cases the criminal offence is a manifestation of the exploitation. This might also arise in the case of an adult victim: see paragraph 20 of L, HVN, THN and T [2013] EWCA Crim 991.

For the Crown Prosecution Service (CPS) on Human Trafficking, Smuggling and Slavery, read here.