Abstract
The first (ADG) and second appellants (BIJ) were 17 years old at the time of the appeal. They were granted anonymity pursuant to s.45 of the Youth Justice and Criminal Evidence Act 1999. At the time of the events to which their trials related, they had been between 14 and 16 years of age. Both had been convicted of two counts of conspiracy to supply class A drugs (contrary to s.4(3)(b) of the Misuse of Drugs Act 1971), one count relating to cocaine and the other to diamorphine, and had each been sentenced to a 3-year Youth Rehabilitation Order (YRO). ADG had also been convicted on his own plea of two counts of being concerned in the supply of class A drugs, and BIJ had been convicted on his own plea of three counts of being concerned in the supply of class A drugs and two counts of possession with intent to supply class A drugs. In respect of these additional offences, they were both sentenced to further 3-year YROs to run concurrently.
The appellants’ convictions had arisen out of a police investigation into a ‘County Line’ drug dealing operation which had involved the supply of drugs from Liverpool to users in Devon. Both accepted that their roles in the conspiracy to supply class A drugs had involved being at the end of a telephone line used for supplying drugs, sending messages advertising drugs for sale, and collecting and delivering drugs. It was submitted on their behalf that they were entitled to rely on the statutory defence to be found in s.45(4) of the Modern Slavery Act 2015. This provides that a person does not commit an offence where they were under 18 at the relevant time, where they did the act alleged to constitute the offence as a direct consequence of being, or having been, a victim of slavery or a victim of relevant exploitation, and where a reasonable person in the same situation as the accused, and having the accused's characteristics, would do the act in question. In their evidence, both appellants explained that they had been threatened whilst being involved in the supply of drugs and that they had been compelled to do various acts.
The trial judge provided counsel with a draft of his proposed directions and agreed to remove one to the effect that trafficking had not arisen in the present case given that the appellants had made journeys from care homes to sell drugs which had been arranged by others. In his direction to the jury as to ‘what is modern slavery’, the trial judge made reference to ‘compulsion’ on a number of occasions. In so doing, it was argued on behalf of ADG and BIJ that the trial judge had wrongly directed the jury that it needed to be established that there was, or may have been, compulsion in order for the appellants to be able to rely on the s.45(4) defence.
Commentary
Introduction
The present appeal was concerned with what Dingemans LJ described as an ‘important issue’ relating to the elements of the statutory defence to be found in s.45 of the Modern Slavery Act 2015 which applies where the defendant is under 18 at the material time. The provision as a whole was enacted in order to meet the UK's international obligations under art 26 of the Council of Europe Convention on Action Against Trafficking in Human Beings 2005, and art 8 of Directive 2011/36/EU on preventing and combating trafficking in human beings and protecting its victims. The underlying purpose of s.45 has been explained thus:
‘Section 45 provides for a defence for slavery or trafficking victims. This is intended to provide further encouragement to victims to come forward and give evidence without fear of being convicted for offences connected to their slavery or trafficking situation’ (Explanatory Notes, para.218).
Prior to the enactment of s.45, the UK's international obligations were complied with by a combination of CPS guidance, the common law defence of duress and the abuse of process jurisdiction enjoyed by the courts. In R v K (M) [2019] QB 86, the then Lord Chief Justice, Lord Burnett, commented on the ‘unusual’ nature of the s.45 defence given that it applies to all criminal offences (other than the hundred or so specified in Sch.4 to the 2015 Act), rather than simply those offences provided for in the Act itself. Thus, whilst common law offences such as kidnapping, manslaughter and murder are expressly excluded from the s.45 defence, as are statutory offences such as robbery, burglary and arson, suppling or conspiring to supply class A drugs are offences which are not excluded. The fact that the Sch.4 exclusions relate to serious offences is arguably a flaw in the 2015 Act since as Heys contends, ‘just because the crime is a serious one does not exclude it from being a direct consequence of slavery’: see ‘The UK's Statutory Defence for Victims of Modern Slavery and its Narrow Understanding of Victimhood’ (2023) 87 J Crim L 237 at 248.
Since its enactment, s.45 has been the subject of several appeals heard by the Court of Appeal including R v CS [2021] EWCA Crim 134, where it was held that the provision does not have retrospective effect. The present appeal is the second occasion on which the s.45(4) defence has been at issue before the appeal courts (see further below).
Past Authority
In R v NHF [2022] EWCA Crim 859, one of three defendants charged and convicted of being concerned in the supply of class A drugs was 17 at the time that the alleged offences were committed. Like the appellants in ADG and BIJ, he had been involved in a ‘County Line’ drug dealing operation, although in this instance the drugs were being sold in Brighton on behalf of a gang which was based in the Waltham Forest area of London. Since each of the three defendants being tried had relied on the s.45 defence, the judge had to issue carefully nuanced directions to the jury reflecting the important distinctions between the statutory defence as it applies to those over or under 18. In giving judgment in NHF, Fulford LJ explained these as follows:
‘In the case of an individual under 18, it is equally necessary that there was a direct causal link between the criminal act and the individual being (or having been) a victim of slavery or human trafficking, but there is no requirement for compulsion. Moreover, whereas in the case of an individual over 18 the defence requires that a reasonable person in the same situation with the same relevant characteristics would have “no realistic alternative” to doing the criminal act, in the case of an individual under 18, it simply requires that a reasonable person in the same situation and with the child's relevant characteristics would do what the child did’ (at [15]).
The problem which had arisen in NHF was that the trial judge had conflated what Fulford LJ referred to as these ‘two markedly different regimes’. As a result, whilst he had made it clear that compulsion did not apply in relation to the s.45(4) defence, he nevertheless informed the jury that they would need to be satisfied that the defendant had no realistic alternative to drug dealing for the defence to be available. As Fulford LJ further explained, the words ‘“no realistic alternative” act to limit, potentially significantly, the circumstances in which the defence can apply’, since they represent ‘a clear and unavoidable reference back to the requirement of compulsion for those over 18’ (at [22]). Accordingly, given that the trial judge had failed to properly explain the ingredients of the s.45(4) defence, and since there was no way of knowing the extent to which his error had influenced the jury's decision to convict, the Court of Appeal in NHF had no option but to quash the defendant's convictions.
Before moving away from the judgment in this earlier case, two further points are worth noting. The first concerns the fact that in both NHF and the present appeal, regret was expressed by differently constituted Courts of Appeal that the mistakes made by both trial judges were not picked up by counsel when the relevant directions were circulated in draft: see [2022] EWCA Crim 859 at [24] and [2023] EWCA Crim 1309 at [38]. The implied criticism of the legal teams in this regard is in stark contrast to the express praise which is reserved for the trial judges themselves. Thus, despite the fact that it was his error which led to convictions being ruled unsafe, the Court of Appeal in NHF wished ‘to pay tribute to the care the Recorder took over formulating the written directions and the Route to Verdict’, and noted that with the exception of his mistake, he had ‘otherwise approached the summing up with commendable care and diligence’ ([2022] EWCA Crim 859 at [12]). Similarly, in the present appeal, having set out that part of the judge's summing up which contained the material error, Dingemans LJ noted that the remainder of it had been ‘conspicuously fair and accurate’ ([2023] EWCA Crim 1309 at [24]).
The second point relates to the reference in NHF to the ‘Crown Court Compendium Part 1: Jury Trial Management and Summing Up 2021’, paragraph 18.6 of which was specifically concerned with ‘defences available to people subject to slavery or other relevant exploitation’. Under the sub-heading ‘Legal Summary’, it was clearly stated in the opening passage that the s.45 defence ‘differs depending on whether the defendant is under or over 18’. Later, under the sub-heading ‘Directions’, the Compendium pointed out that ‘the differences between the defences depending on whether D is over or under 18 are significant and will result in very different directions being given to the jury’. Present between these two observations was a detailed explanation as to when the s.45 defence applies. Once again, it drew a clear distinction between the application of the defence in the case of a defendant who was over or under 18.
The June 2023 version of the Compendium contains all of the warnings/advice referred to above. Additionally, it provides further advice which has been included as a direct consequence of the decision in NHF. Thus, it observes: ‘It is important not to conflate the separate and distinct elements of the defence for those aged 18 and older and those under the age of 18 at the time of the acts alleged’. Since the appellants’ trial took place on 16 November 2022, this additional advice was not available to the trial judge. Had it been, perhaps he may not have fallen into the trap which it seeks to guard against.
The Statutory Words
Section 45, which is the first provision in Part 5 of the 2015 Act (headed ‘Protection of victims’), consists of eight subsections of varying lengths. The first three subsections are concerned with the nature and scope of the statutory defence as it applies to persons aged 18 or over. It is not until subsection (4), therefore, that attention focuses on the statutory defence which is applicable to persons who were under 18 at the material time. Whilst there is no reason to take exception to the wording of s.45, it was tentatively suggested by Dingemans LJ in the present appeal that the order of the subsections may explain why the distinction between the over 18 and under 18 defences has been overlooked on two separate occasions, resulting in unsafe convictions being quashed on appeal. Whilst he was of course right to think that this ‘highlights the importance of reading carefully the relevant statutory provisions’ (at [39]), if further errors were to occur in the future, despite the combined effect of the decisions in NHF and the present appeal, they might make the case for amending the 2015 Act so as to place the defences in separate provisions. It is worth noting that when the Modern Slavery Bill was originally introduced in the House of Commons, the clause (39) which provided for a defence for slavery or trafficking victims treated adult and under 18 offenders in the same way in terms of the elements of the defence. Had it become law, under 18 s would also have had to have been compelled to do the act in question, and the compulsion would have needed to be attributable to slavery or exploitation, in order for them to be able to rely on the defence. It is something of an irony, therefore, that in both NHF and the present appeal, the trial judges’ approach when issuing directions to the juries was more in tune with what clause 39 formerly said rather than with what s.45(4) actually says.
Conclusion
In the Explanatory Notes to the 2015 Act it is stated in relation to s.45(4) that, ‘the lack of the test of compulsion and the lower threshold for meeting the reasonable person test is in recognition of the unique vulnerabilities of children’ (at para.222). It is unfortunate, therefore, that in both the present appeal and the earlier case of NHF, significant errors made during the trials meant that the elements of the defence were not correctly explained to the jury. Whilst separating the statutory defences in s.45 into different provisions might increase the chances of the same mistake not being repeated in the future, and despite the fact that the announcement of yet more criminal justice legislation in the recent King's Speech confirms that there will be the means at hand by which this may be accomplished, in truth the solution lies in closer attention being paid to the wording of s.45, and to the guidance provided in the latest version of the Compendium. The onus ought to be on a trial judge not to make the mistake in the first place, rather than on legal teams to have to identify an error and draw it to the judge's attention.