Abstract
The present conjoined appeal engaged the following question: does the legal (persuasive) burden of proof rest on a defendant (D) when a defence is raised under s. 45 of the Modern Slavery Act 2015 (MSA 2015) or does an evidential burden apply with the prosecution required to disprove one or more elements of the defence to the usual criminal standard?
On 19 June 2017, MK was convicted of two offences: conspiracy to supply a Class A drug (cocaine), contrary to the Criminal Law Act 1977, s. 1(1) and being in possession of an identity document with improper intention, contrary to ss 4(1) and 4(2) of the Identity Documents Act 2010 (IDA 2010). MK was sentenced to terms of eight years’ and five months’ imprisonment for the respective offences, to be served concurrently.
On 9 June 2017, Persida Gega (PG), using the alias Anna Maione, was convicted of possession of a false identity document with improper intention, contrary to the aforementioned provisions of the IDA 2010. PG was sentenced to 15 months’ imprisonment.
At both trials, the applicants stated they were trafficking victims and attempted to rely on s. 45 of the MSA 2015.
Section 45 introduced two different defences for trafficking victims over and under the age of 18 (s. 45(1) and (4)). The defence for adults provides that a person
At first instance, HH Judge Lucas QC (in MK) and Recorder Rajah QC (in PG) directed the jury in accordance with current Crown Prosecution Service (CPS) guidelines. The guidelines state that when a defence is raised under s. 45 of the MSA 2015, D bears an evidential burden of asserting that they were a victim of trafficking/slavery. Having successfully done so, it is for the prosecution to prove, beyond reasonable doubt, that D was not. If the prosecution succeeds, s. 45 will not avail D. If the prosecution fails, the legal (persuasive) burden of proof regarding the remaining elements of the defence will fall to D (at [11]) (see CPS, Human Trafficking, Smuggling and Slavery. Available at: https://www.cps.gov.uk/legal-guidance/human-trafficking-smuggling-and-slavery (accessed 22 May 2018)).
MK appealed against conviction and sentence, and PG appealed against conviction.
The applicants submitted that the trial judge in each case misdirected the jury as to the burden and standard of proof (at [12]). The applicants argued:
Section 45 does not (despite the prosecution’s assertions) fall within the third category of provisions identified by Lord Hope in R v DPP ex parte Kebilene [2000] 2 AC 326 (at [379F-H]) as reversing the burden of proof; namely, an exemption or proviso which D must establish to avoid conviction, but which is not an essential element of the offence.
There was no justification for a finding that Parliament intended that one element of the statutory defence (i.e. whether D was a trafficking victim) was the subject of the usual legal burden but that a reverse burden applied to all remaining elements.
It would be odd to interpret a provision aimed at furthering protection for trafficked individuals as more onerous than the existing common law defence of duress, to which it bears a close resemblance.
The finding that the burden ought to rest upon a trafficking victim because she/he is best placed to provide evidence of her/his personal situation rests on a fundamental misunderstanding of such situations.
Reversal of the burden of proof is contrary to the clear intention expressed in parliamentary debates.
The Court of Appeal explained that although it is correct that the defence is only available to slavery/trafficking victims, the structure of s. 45 introduces that issue at a later stage of analysis to that proposed by the CPS (at [26]). In cases involving adults, after it has been established that the person is aged over 18 (s. 45(1)(a)), the court must first assess whether D did the act which constituted the offence under compulsion (s. 45(1)(b)). Following this assessment, D’s victim status becomes relevant in determining whether the act done under compulsion was a direct consequence of the person being or having been a victim of slavery or human trafficking. This engages two questions: ‘(i) is or was the defendant a victim of slavery or human trafficking? And, (ii) if so, is there a direct causal link between the defendant’s status as a victim and the act done under compulsion?’ (at [27]).
There was no suggestion by the prosecution that MK’s conviction had been safe if the Judge’s direction on the burden and standard of proof was wrong. Therefore, MK’s appeal would be allowed and the conviction quashed.
Despite the error in the jury direction regarding the burden of proof, the evidence against PG was overwhelming, and the conviction deemed safe (at [56]).
Commentary
The present ruling is the first to address the question of where the legal burden of proof lies when a defence is raised under s. 45 of the MSA 2015. The ruling clarifies that D bears an evidential burden, that is, D must provide evidence of every element of the defence, but it is for the prosecution to disprove one or more of those elements beyond reasonable doubt. Where D’s age is in issue, it is for the prosecution to prove that D is an adult to the usual criminal standard for the adult version of the defence to be considered (at [41]). This is consistent with the UK’s positive obligations under art. 4 of the ECHR and the Council of Europe Convention on Action against Trafficking in Human Beings. The approach to be adopted in future cases is clear, but the ruling highlights ongoing confusion regarding the operation and ambit of the new defence.
The prosecution argument, as accepted by HH Judge Lucas QC (in MK) and Recorder Rajah QC (in PG), was based upon CPS guidance, which remains, at the time of writing, unexpurgated. As noted, the CPS guidance stipulates that in respect of all elements of the defence, other than as to victim status, a reverse burden of proof applies (at [11]). Given the absence of case law on the issue to date, the CPS guidance has also been included in a number of early academic commentaries on the defence (see, for example, N. Wake, ‘Human Trafficking and Modern Day Slavery: When Victims Kill’ (2017) Crim LR 658–77 and J. Haynes, ‘The Modern Slavery Act (2015): A Legislative Commentary’ (2016) 37(1) Statute Law Review 33).
Lord Burnett noted, it is ‘not difficult to see why the CPS guidance was drafted to replicate the approach under the 1999 Act’ (Immigration and Asylum Act 1999, s. 31(7)), which engages a reverse burden (beyond disproving refugee status) with respect to the defence therein (at [31]). According to the Court of Appeal, a fundamental difference applies across s. 31 of the 1999 Act, which includes an express provision (namely, ‘the defendant must show’) placing the burden of proof on D, and s. 45 of the MSA 2015, which remains silent on the issue. Lord Burnett explained that there is no ‘true analogy’ across s. 31 of the 1999 Act and the s. 45 defence, before pointing out the similarities between duress and s. 45 of the MSA 2015 (at [31] and [38]). The Court of Appeal, however, acknowledged significant differences between s. 45 and duress, for example, the broader ambit of s. 45 (at [38]).
With regard to the relationship between duress and s. 45, the Court of Appeal accepted that in some instances the prosecution may have ‘real difficulty in disproving to the criminal standard the defendant’s account’ (at [37] and [38]), but suggested that it is unlikely to significantly differ from the task faced in duress cases (at [38]). Section 45 is not established solely on the grounds of what D did and why. An objective test applies requiring the prosecution to disprove that an adult in D’s position and sharing D’s relevant characteristics would have had no realistic alternative to committing the act. For under 18s, the objective test is the same with the exception that the availability or otherwise of a realistic alternative is irrelevant. The objective test is designed to operate against the ‘twin dangers’ that D might easily concoct a false claim and that this may operate to encourage traffickers to continue with their exploitation (at [39]).
Where the burden of proof should lie in the context of coercion-based defences, however, is far from straightforward and has been the subject of considerable debate. The Law Commission previously recommended the introduction of a reverse burden should duress be introduced as a full defence to the offences (proposed within the same report) of first degree, second degree and attempted murder (Law Commission, Murder, Manslaughter and Infanticide, Law Com. No. 304, (2006) at [6.101]) (hereinafter, ‘The Commission’). The Commission also proposed a reverse burden for duress generally in Law Commission, Legislating the Criminal Code: Offences Against the Person and General Principles, Law Com. No. 218, (1993) at [3.16]). (See also R v Z [2005] 2 AC 467 at [20]). Reasons for departing from the common law approach included, inter alia, difficulty in disproving the defence, the potential for serious criminals to concoct false claims and the serious nature of the offences under consideration (Law Com. No. 304, at [6.101]–[6.111]). All judicial respondents were of the view that a reverse burden in such a context would not offend against ECHR, art. 6(2) (ibid., at [6.94]).
Notwithstanding differing views regarding the ambit and framing of coercion-based defences, the present ruling has been described as ‘complementing the rationale of protecting, rather than criminalising trafficked victims’ (see New case on s. 45 burden of proof will help trafficking victims convicted of criminal offences. Available at: https://ukhumantraffickinglaw.wordpress.com/2018/03/31/s-45-burden-of-proof-mk-v-r-2018/ (accessed 18 May 2018)). The Court of Appeal acknowledged that a reverse burden would potentially frustrate Parliament’s objective to protect trafficking victims from double victimisation through criminalisation and suggested that it undermines the protection s. 45 is designed to provide those who are likely to remain traumatised by their experiences (at [36]). The suggestion that a child ought to establish his/her age on the balance of probabilities is also counter-intuitive to the protections afforded under art. 13(2) of the Directive (EU) 2011/36 (at [42]), and at odds with the lower threshold defence applicable to under 18s, specifically designed in ‘recognition of the unique vulnerabilities of children’ (at [44]) (see Hansard, Public Bill Committee Debates, Modern Slavery Bill, col. 376 (11 September 2014)).
Ultimately, the prosecution have more resources available than a D, particularly a young D, and accordingly, only in exceptional circumstances, and principally based upon statutory exception should a reverse burden apply (at [15]) (See Woolmington v DPP [1935] AC 462 at [481] (although cf. insanity and reverse burdens by statutory implication; R v Hunt (Richard) [1987] AC 352). Even with a statutory clause, the court may still be required to discern whether Parliament intended that the burden should be legal or evidential (at [13]). (See, for example, Lambert [2001] UKHL 37, [2002] 2 AC 545).
It is difficult to avoid the conclusion that this situation might have been avoided with a carefully drafted express legislative provision specifying that the prosecution bear the burden of proof. During Parliamentary debate, Minister Diana Johnson advanced such a proposal (Hansard, Public Bill Committee Debates, Modern Slavery Bill, col. 382 (11 September 2014), but the amendment was withdrawn as unnecessary (ibid., col. 384–5). Perhaps it should have been superfluous, given the well-established golden thread principle; namely, that it is the duty of the prosecution to establish guilt beyond reasonable doubt, save in the context of insanity and any statutory exception. It ought to have been unnecessary on the basis that s. 45 explicitly states that a ‘person is not guilty’ where the defence applies. Accordingly, a reverse burden would be equivalent to requiring D to prove D’s innocence (at [25]).
The Court of Appeal, however, acknowledged that ‘at first sight’, the defence under s. 45 may appear to fall within the third ‘exemption’ or ‘excuse’ category, outlined in R v DPP ex parte Kebilene [2000] 2 AC 326, thereby justifying a reverse burden, and sympathised with the CPS decision to model its guidelines on the 1999 Act, considered above. The Court of Appeal also explained the ‘unusual’ nature of s. 45 in applying to all criminal offences except those excluded under schedule 4 (at [23]). For that reason, Minister Diana Johnson’s proposal, replicated below, might have provided a welcome addition to the defence. (9) Once the defence set out in subsection (1) is raised by the accused or on his or her behalf, or the court of its own volition or on hearing submissions from any party decides that such a defence should be considered by the court, the burden of proving that the offence was not committed as a direct and immediate response of him or her being a victim as set out in subsection (1) shall lie upon the prosecution. (Hansard, Public Bill Committee Debates, Modern Slavery Bill (11 September 2014) col.382))
Law reformers (including The Australian Joint Standing Committee (‘The Committee’) on Foreign Affairs, Defence and Trade’s Report, Hidden in Plain Sight (2017) at [6.101]) currently considering introducing an improved version of the s. 45 defence would do well to reflect on the problems caused by the absence of an express statutory clause on the burden of proof issue in England and Wales. The ruling also supports the Committee’s view that non-legislative guidelines per se, akin to those issued by the Attorney-General in Scotland, may not be sufficient to ensure the non-criminalisation of trafficking victims (see COPFS, ‘Lord Advocate’s Instructions for Prosecutors when considering Prosecution of Victims of Human Trafficking and Exploitation’). Note that the Committee regard the Scottish guidelines an example of best practice (Committee Report at [6.95]), but the present case illustrates the important role the judiciary play in addressing inaccurate, unclear and/or out-of-date guidelines.
Since the ruling was delivered, the CPS issued a bulletin to prosecutors on 5 April 2018 alerting them to the outcome of the case and confirming that CPS guidance will be updated shortly to reflect the clarification of the operation of the s.45 defence provided by this judgment. We suggest the following wording as a potential update: Burden and standard of proof It is for the defendant to raise evidence of each element of the defence under section 45 of the Modern Slavery Act 2015. The burden of proof remains with the prosecution when the defence is raised. Once raised, it is for the prosecution to disprove one or more elements of the defence beyond reasonable doubt. If the prosecution discharge this burden, the defence will fail (see the judgment in MK v R [2018] EWCA Crim 667 [45]). In the case of adults, the prosecution must adduce sufficient evidence to satisfy a jury beyond reasonable doubt that the defendant was either:
not a victim of slavery or exploitation
not compelled to commit the offence; or, if he was so acting,
the compulsion was not as a direct consequence of the defendant’s slavery or exploitation; or, if he was so acting,
that a reasonable person with the same characteristics of the defendant and in the same position would have had a realistic alternative to committing the offence.
Where any issue as to the age of the defendant arises, the prosecution must adduce sufficient evidence to prove beyond reasonable doubt that the defendant was an adult (18 years-old) at the time the offence was committed. If the prosecution are unable to discharge this burden, then the defendant must be treated as a child for the purposes of section 45 of the Modern Slavery Act 2015 (see the judgment in MK v R [2018] EWCA Crim 667 [44]). In the case of children, the prosecution must adduce sufficient evidence to satisfy a jury beyond reasonable doubt that a reasonable person in the same situation and with the same characteristics of the defendant, would not have done that act.