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Jim Tilbury discusses the High Court’s judgment on the admissibility of conclusive grounds decisions in cases involving modern day slavery and the s.45 Modern Day Slavery Act defence.
In my recent article for the Carmelite Briefing, I highlighted that the vexed question as to admissibility of a conclusive grounds decision from the Single Competent Authority (“SCA”) before a jury had yet to be tackled by the Courts.
The High Court has now determined this issue in DPP v M, heard on 24th November, with judgment handed down on 15th December.
The prosecution sought to appeal by way of case stated a District Judge’s decision to find that the defence had met the evidential burden under s.45(4) of the Modern Slavery Act 2015, where the defendant had not given evidence and had not provided an explanation in interview.
The positive conclusive grounds decision from the SCA together with the full 5-page minute had formed part of the evidence at trial by way of admissions under s.10 of the Criminal Justice Act 1967.
Despite submissions to the contrary, the High Court felt obliged to deal with the question of admissibility of that SCA decision as part of the appeal.
The prosecution contended that no SCA decision can be admissible in a criminal trial. The SCA decision (and the minute) amounted to “…non expert opinion evidence and was hearsay…”. The material it was based on was “…untested and equivocal…” and it was merely “…the product of a review of extraneous material by a Home Office employee who was not an expert…”.
The High Court disagreed.
Basis for the judgment
The principle reasoning behind the judgment was to unpick the central prosecution submission that the SCA decision was not expert evidence.
The Court highlighted that the SCA decision was one made by individuals with specialist experience and knowledge of factors relevant to exploitation.[Fn 1] Such experience and knowledge was likely to be outside the scope of knowledge for the ordinary person.
A key question for the jury or other tribunal at first instance was whether a defendant was a victim of trafficking or exploitation (“VOT”).
“[…] It is not something that is immediately identifiable such as the colour of a person’s hair. Therefore, the fact finder in a criminal case will require evidence to assist in determining the fact.” [Fn 2]
Evidence as to which factors may be relevant to this issue helps the jury or other tribunal assess this question and is admissible. [Fn 3]
Equally, an assessment of the significance of any such factors is admissible. Evidence drawn from a wider experience in other such cases can be given, as it provides relevant context. [Fn 4]
Even where such evidence includes opinion on an “ultimate issue” – i.e. whether a defendant was or was not a VOT – that is no bar to admissibility. A parallel was drawn with the admission of psychiatric evidence in homicide cases of diminished responsibility.
Practical issues and guidance
As for the practicalities, there are a number of points to bear in mind, including the following:
1) The judgment states that the SCA decision and minute will be introduced by an agreed fact (reinforcing comments made in some earlier cases such as Gross LJ in R v S(G));
2) Once the SCA decision is admitted, it will be a matter for the jury or tribunal of fact, having examined the extent to which such findings are actually supported by evidence, as to what weight should be attached to it;
3) The case further demonstrates that where a positive SCA decision is admitted before the jury, a defendant does not necessarily need to give evidence to discharge the evidential burden under s.45, even where that defendant’s interview provides no explanation;
4) Further, it is then for the prosecution to disprove the statutory defence;
5) The judgment also illustrates that practitioners on both sides need to exercise utmost care when drafting the s.10 admissions dealing with an SCA decision, as to what precisely is being agreed. There seems to have been some confusion as to what had occurred in the lower court – whether the parties were admitting the facts behind the decision or just the fact that the decision had been made, or both.
A final thought for defence practitioners is whether they might further bolster an SCA decision and minute, admitted under s.10 before a jury, with the testimony of a suitably skilled and experienced social or youth worker who has had solid experience in trafficking and also direct dealings with the defendant.
Jim Tilbury is a defence barrister at Carmelite Chambers regularly instructed in complex cases of serious commercial fraud and organised crime. Recent instructions have included payroll fraud, conspiracy to kidnap, perverting the course of justice, gang-related violence and large scale drugs conspiracies.
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