BLOG: “Mind the Gap”: S.45 Modern Slavery Act and abuse of process – where are we now?

Jim Tilbury discusses recent developments from the Court of Appeal relating to s.45 of the Modern Slavery Act 2015, arising since his piece in Counsel Magazine in January 2020.

I last wrote about s.45 of the Modern Slavery Act 2015 (“the Act”) in conjunction with decisions by the Single Competent Authority (“SCA”) as to victim of trafficking status (“VOT”) and the doctrine of abuse of process for Counsel Magazine in January 2020.

What has changed since?

Much of any perceived and expanding “gap” – a jurisdiction enabling applications to trial judges to stay proceedings as an abuse of process in the light of positive decisions from the SCA that a defendant is a VOT, and ongoing prosecutorial decisions – has now been filled.

Filling the gap: R v DS

The mortar largely arrived at the end of February with R v DS [2020] EWCA Crim 285. Many will already be familiar with the principles that emerged from the judgment of Lord Burnett of Maldon CJ.[1]

The key points are:

1. The enactment and statutory defence under s.45 mean that the factual question as to whether a defendant is, or is not, a VOT is an ultimate question for the fact-finding tribunal, the jury.
2. Where the Act applies,[2] applications to the trial judge to stay an on-going prosecution as an abuse of process on the basis of a positive VOT decision by the SCA, had involved that judge making relevant decisions as to the status of a defendant as a victim and were no longer to be pursued.
3. The existence of the defence of duress found in the common law, s.45 of the Act and the CPS guidance[3] meant that Article 4 ECHR was not infringed, and there was no basis for deriving any positive obligation not to prosecute a VOT.
4. The traditional limited abuse of process doctrine continues to apply.

Residual cracks: special categories

The decision in R v DS, however, left a residual discretion to find abuse of process in a special category of cases which arose before the Act came into force. Further questions arose.

Schedule 4 of the Act specifically placed a number of serious offences outside the scope of the s.45 defence. The CPS entertain further discretion to prosecute such matters within their own four-step guidance. Arguably, there existed a further ‘special’ abuse of process category for those Schedule 4 offences and related prosecutorial decisions.

R v A

At the end of October, in R v A [2020] EWCA Crim 1408, the Court of Appeal sought to cover the remaining residual cracks, affirming that, as highlighted in R v DS:

 “…The 2015 Act has changed the legal landscape in relation to the protection available to victims of trafficking who commit criminal offences…”.

Any previous abuse of process jurisdiction was therefore limited to those cases prior to enactment, where there had been a lacuna between domestic law and the UK’s international obligations.[4] The 2015 Act had effectively put a stop to any wider scope.

There is no obligation on the UK to provide a defence for all offending VOT’s. The more serious offences, which remain out of the reach of the s.45 defence, reflect the balance which has been struck.

The four-step CPS guidance on prosecutorial decisions and public interest concerns, together with the common law defence of duress provided any necessary safeguards for such cases, commensurate with the UK’s international obligations.

The Court noted that, in reaching his judgment, the LCJ in R v DS had specifically recognised that there were offences to which the statutory defence did not apply.

Instances of cases of a VOT that fell outside s.45, and beyond the defence of duress, that were likely to engage the public interest test under the CPS guidance would be rare.

Such cases would require an examination of the relationship between the seriousness of the offence and the comparative need for continuing compulsion; the more serious the offence the greater the need for on going compulsion. This itself requires a factual analysis of any reasonably available alternatives open to a defendant other than committing an offence.

SCA (and related VOT) decisions: admissibility of VOT status at trial

In R v GS [2018] EWCA Crim 1824, the Court referred to positive VOT decisions from the FTT and a Minute from the SCA as being [no higher than] “in question,” with the decisions themselves and their reasoning as being “unlikely” as to be technically admissible. They referred to admissibility issues as “loosely” arising from the Hollington v Hewthorn [1943] KB 587 grounds, namely that the opinion of one tribunal is irrelevant in the subsequent litigation of that issue by another.

However, they also stated that had such SCA/FTT decisions been available at trial, on the facts of this case, it was:

“…overwhelmingly likely that, in the interests of justice and fairness, the Crown would have been required to make admissions as to their recognition of the applicant as a VOT- so that in practical terms, any admissibility difficulties at trial would have been resolved…”

The Court in R v DS did not specifically address any questions arising as to the admissibility of any decision by the SCA within the trial process.

A prosecutor who remains unconvinced by a positive decision from the SCA may well resist admission on the basis of (arguably) self-serving, untested, non-expert opinion; a paper exercise founded on hearsay. Much may depend on any examination of the available underlying material forming the basis of the SCA decision-making process.

Even where a positive SCA decision (and reasoning) is admitted, for example as part of the trial process, that is of itself no automatic ticket to a s.45 defence. That remains a matter for the jury. Or rather, to put it more accurately, once it has been raised in evidence, it remains for the prosecution to disprove such a defence to the jury.

In R v S [2020] EWCA Crim 765, the Court reflected on whether to admit as fresh evidence the decision of the Competent Authority, concluding that:

“…the decision […] is clearly fresh evidence. […] it is capable of belief, coming as it does from the official authority which deals with human trafficking issues in this country and is independent of the applicant...”

The Court, however, went on to clarify that:

“…the decisions of the Competent Authority are not in truth conclusive if an issue arises in the context of criminal proceedings. The question whether a person is the victim of human trafficking is one on which the view of the Competent Authority is entitled to be borne in mind but it is not conclusive...”

In R v V [2020] EWCA Crim 1355, the Court stated that:

“…while the Competent Authority’s decision as to victim status is very much to be borne in mind, this is a question for the jury and will involve examining the cogency of the evidence on which the Competent Authority relied and subjecting that evidence to forensic examination…”

The Court noted that the admissibility of a positive conclusive grounds decision, in that case from the SCA, was not an issue that they had to determine as part of that appeal, but remarked:

 “…the question of admissibility raises difficult issues in our judgement…”

It is anticipated that the Divisional Court may well tackle some of these difficult admissibility issues in a case due to be heard in late November 2020. 

Finally, it is worth considering the views of some involved in cases where there has been an issue in a criminal trial over the status of a SCA decision: the SCA itself should provide a further “level” of decision as to a defendant’s VOT; one that is designed for such use in criminal courts.

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. He is often instructed in cases with modern slavery issues.

[1] And there is detailed analysis aplenty elsewhere.

[2] Post 31/7/15 – when it came into force.

[3] CPS Guidance on Human Trafficking, Smuggling and Slavery.

[4] Under Article 26 of the Council of Europe Convention on Action against Trafficking in Human Beings [“ECAT”] and Article 8 of the EU Directive on Preventing and Combatting Trafficking in Human Beings and protecting its Victims 2011/36/EU (5/4/11).