Protecting Victims of Human Trafficking from Liability: An Evaluation of Section 45 of the Modern Slavery Act

Introduction

Although there are vast difficulties in estimating the scale of human trafficking at a European or global level, it is undeniably a serious offence, which violates the human rights of many persons. Victims can be sexually exploited, exploited in economic activities, or be forced to commit crimes or donate organs. A number of trafficking victims end up fined, detained, prosecuted, convicted and summarily deported without being given due consideration to their victim status. Consequently, the risk of being punished is one of the reasons why victims of human trafficking are wary of coming forward to the authorities and is one of the main tools used by traffickers to keep them in control. ¹

Yet a trafficked victim who commits an offence should not necessarily be held liable because his/her trafficking situation may provide an excuse to the crime. An excuse ‘tries to show that the actor is not morally culpable for his wrongful conduct’. ² The law excuses committed crimes when the person lacks a capacity or fair opportunity to choose the actions. ³ ‘An excused defendant has committed a crime but is not punishable’. ⁴ By providing trafficked persons with an excuse, we are not saying that the act committed was lawful. Instead, we recognise that the trafficked person was not culpable. Importantly, we are making room for the trafficked persons’ vulnerability and, rightly, take into account the compulsion they faced. The excuse is a hallmark of our moral virtue.

It has been advocated that in Scotland for instance there are more detained victims than there are traffickers. ⁵ One of the more famous cases in England, is that of R v L and Others (The Children’s Commissioner for England and Equality and Human Rights Commission intervening), ⁶ which concerned Vietnamese children found working in cannabis farms. The minors were subsequently prosecuted under the Misuse of Drugs Act 1971 for the production of a controlled drug. One of the defendants had been prosecuted as an adult despite being a child. On hearing all the facts the Court of Appeal found that the criminal activities undertaken were integral to the status of a trafficked child and the children should not have been prosecuted. Consequently the Court overturned the convictions. There are also numerous less known cases and when working in the space of human trafficking, as this author does, one hears many stories. Some make it to the papers, public domain or are even overturned, and some other cases are not as fortunate. In a 2012 case in Bradford, England, a judge acknowledged that the defendant had been exploited and brought to the country under false pretences. Nevertheless, the defendant was sentenced to eight months in prison for being involved in the production of cannabis. ⁷

Regionally measures have been proposed and implemented to address the problem of trafficked persons being prosecuted and punished. The Council of Europe adopted Article 26 of the 2005 Council of Europe Convention on Action Against Trafficking in Human Beings and six years later the European Union (EU) included Article 8 in Directive 2011/36 on preventing and combating trafficking in human beings and protecting its victims. Article 26 of the 2005 Council of Europe Convention states:

Each Party shall, in accordance with the basic principles of its legal system, provide for the possibility of not imposing penalties on victims for their involvement in unlawful activities, to the extent that they have been compelled to do so. ⁸

The discussion is a timely one. It isn’t too far-fetched to speculate that other countries will follow England and Wales, and will too look at adopting a human trafficking, or they may call it Modern Slavery, legislation. Indeed, Australia is doing just that, ¹⁰ and as part of establishing the new legislation the State is currently considering the manner in which to guard trafficked persons against punishment. Thus, it is important to have critical reflection on what has been achieved in England and Wales, and where there is room for further development that other countries can lead on.

A note on terminology: the wording of the principle, which seeks to protect trafficked persons who were compelled to commit crimes, varies across different legal instruments and discourses. We come across language such as ‘non-criminalisation’, ‘non-prosecution’, ‘non-punishment’, ‘non-application of penalties’ and ‘exemption’, to name some of the more common examples. This article predominantly relies on the phrase ‘non-liability’. This phrase is favoured because of its breadth and applicability beyond the criminal law sphere, this is particularly important as victims may also commit civil wrongdoings. However, when referring to specific legislation the article uses the language of that law.

Obligations Arising Out of Regional Instruments

Previous international instruments addressing human trafficking, such as the United Nation’s Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children, ¹¹ mainly focused on prosecuting traffickers. The Protocol defined human trafficking, for which it is applauded, however, beyond that it predominantly concerned combating organised crime. It turned attention away from the human being in favour of the State. ¹² No provision on non-liability exists in the Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children. In fact, countries were encouraged to include a non-liability clause within the Protocol but they opted not to. According to Gallagher, this renders any claim that non-liability is implied in the document rather weak. ¹³ Yet there is a need for a law that protect trafficked persons who are compelled to commit crimes because this is a common occurrence.

As stated in the introduction, the purposes for which victims of human trafficking are exploited include forced criminality. Victims may be compelled to commit theft, cultivate cannabis or may engage in prostitution-related activities which could be qualified as criminal offences in some jurisdictions (eg, Croatia ¹⁴ ). In addition, trafficked persons may commit other crimes that are not part of the exploitation element but are related to their human trafficking experience; for example, breaches of migration laws or violence against their traffickers. Research and case law show that many victims are held liable for those crimes. As eloquently summarised by the OHCHR: ‘the criminalization of trafficked persons is commonplace, even in situations where it would appear obvious that the victim was an unwilling participant in the illegal act’. ¹⁵ Against this realisation of a deficiency in terms of hard law and binding responsibility, regional instruments, propelled by lobbying activists (eg, La Strada International, Church’s Commission for Migrants in Europe, Amnesty International), rectified the gap. Moving beyond traditional perspectives of protecting trafficked persons—provide for the physical, psychological and social recovery—regional obligations directly call on states to, in accordance with the basic principles of their legal systems, ensure that there is some avenue for national authorities to refrain from imposing penalties or prosecuting on victims of trafficking in human beings for their involvement in criminal activities which they have been compelled to commit. Article 26 of the 2005 Council of Europe Convention on Action Against Trafficking in Human Beings and Article 8 of Directive 2011/36 on preventing and combating trafficking in human beings were cited in the introduction and will not be repeated here.

To an extent they are similar, although the Convention only mentions imposing penalties, the Directive goes further and also regards not prosecuting. The ‘Anti-Trafficking Directive shifts the attention to earlier stages in the criminal law chain thereby involving different actors (such as police and public prosecutor service)’. ¹⁶ Regrettably neither the Council of Europe nor the EU have provided clear guidelines as to the scope of the obligation and how the principle ought to be implemented at national level. Importantly however, even in these human rights-inspired documents, the approach seems to be motivated by a state-centric approach and the obligations provided are not a panacea to the existing problem of holding victims liable. Both articles are phrased in such a way that the principle of non-liability appears to be more of a suggestion rather than a hard duty. Words such as ‘ensure’ (Article 8 of the Directive 2011/36 on preventing and combating trafficking in human beings) and ‘provide for the possibility’ (Article 26 of the 2005 Council of Europe Convention on Action Against Trafficking in Human Beings) water down responsibilities. Indeed, with respect to the Directive, the High Court of Ireland stated that: ‘all that is required is that there must be a discretion on the part of the prosecution authorities not to prosecute. The Directive does not seek to interfere with the exercise of that discretion’. ¹⁷ The High Court then goes onto emphasise this point: ‘The Directive enjoins the state to provide for prosecutorial discretion but does not require a particular outcome. It does not, therefore, confer an enforceable right on a victim of trafficking not to be prosecuted’. ¹⁸ To summarise, absent is an outright obligation that if a trafficked person is found to have been compelled to commit a crime as a result of their trafficking situation they will be protected. In particular, missing is a request to take active steps to introduce a non-liability provision into state legislation or at least policy. In essence the Articles only ask states to ensure that in national law there are options to allow for non-prosecution or non-application of penalties. As summarised in literature: ‘Article 8 does not mandate or propose amendments to substantive criminal laws but merely calls for the adoption of measures that entitle relevant authorities to exercise discretion as they see appropriate in the circumstances’. ¹⁹ The same is true of Article 26.

In international law, there are fascinating examples of further reaching obligation with respect to protecting vulnerable persons. These could have been mirrored in the trafficking legislations. For example, better safeguard could have been afforded to trafficked persons by using the wording contained in Article 31(1) of Refugee Convention. Namely: ‘States shall not impose penalties….’ ²⁰ Alternatively, the EU and the Council of Europe could have followed the UN Model Law against Trafficking in Persons which states ‘trafficked persons shall not be detained, charged or prosecuted….’ ²¹ In both these examples, the vulnerable person is the focus. In contrast, the EU and the Council put the state at the heart, while the trafficked person’s rights are not fully integrated.

It is important to also ask whom does the Articles seek to protect, and thus to whom states such as England and Wales have an obligation. Importantly, the principle of non-liability is not an immunisation, not all trafficked persons are excused on the sole virtually that they were trafficked. Some victims however should be, but under what circumstances ought the victim not be prosecuted and punished. Here there is a disparity. Directive 2011/36 on preventing and combating trafficking in human beings and protecting its victims concerns victims compelled to commit a crime as a direct consequence of being subjected to human trafficking. While the 2005 Council of Europe Convention concerns victims involved in unlawful activities, to the extent that they have been compelled to do so. Two things are of note. First, the Convention is broader because it looks beyond criminal law. Secondly, it does not require, unlike the Directive, that the victim committed the crime as a direct consequence. What does ‘direct consequence’ mean? Reason dictates that it is linked to the proximity of the crime to the trafficking situation. The use of the word direct seems to imply that the proximity needs to be very close; there is a need for imminence. A trafficked person who is transported by their trafficker into a country and overstays a visa is evidently committing a crime through direct consequence. There is a close connection between the offence and being subjected to human trafficking. Unambiguous examples of direct consequence also include when the purpose of exploitation is a criminal activity. Things become more complicated in cases of victims who have escaped the trafficking situation and then some time later go onto commit crimes, for example, stealing clothes or using false ID in order to move to a new country for safety. Discussing the limitations of the phrase ‘direct consequence’ is continued below, and this author discusses it in her forthcoming book. However, it is important for now to note that both articles from both regional documents require the facts to show that the trafficked person was, as a minimum, under compulsion. When a victim is compelled to commit a crime, they are the subjects of someone’s command. On compulsion Leiser writes: ‘One who is compelled to act in a certain way has no choice, but because of some physical or psychological force over which he has no control, must behave as he does’. ²²

Indeed, it is the presence of compulsion that rationalises why trafficked persons ought to be excused. As stated by Dubber and Hörnle: ‘[p]raise is indeed not bestowed, but pardon is, when one does a wrongful act under pressure which, in the words of Aristotle in The Nicomachean Ethics, overstrains human nature and which no one could withstand’. ²³ We also must remember that ‘in the criminal law of the current era, the classic exemplar of ascription of criminal responsibility is capacity, with its hallmarks of individual agency, choice and autonomy’. ²⁴ In other words, for one to be liable they must be responsible; persons, who act because of the actions of a third person, are not responsible because they did not act on their own volition. To put differently, there is lack of voluntariness among the trafficked persons who are compelled to commit a crime; thus, because the behaviour was involuntary the defendant should not be held to account for it. Such contextualisation is related to key liberal ideas such as autonomy.

The above justifications for a provision on non-liability regarded criminal law. Interestingly, Directive 2011/36 on preventing and combating trafficking in human beings and protecting its victims in validating the inclusion of Article 8 focuses more on human rights concepts. The Recital says: The aim of such protection is to safeguard the human rights of victims. Likewise, the 2005 Council of Europe Convention’s ethos is one aligned to human rights. The preamble mentions human rights several times stating that respect for victims’ rights, protection of victims and action to combat trafficking in human beings must be the paramount objective.

Section 45 of the Modern Slavery Act

England and Wales are predominantly considered as destination areas for victims of human trafficking, with some exceptional cases, and thus witness the end result of the crime, exploitation. The Centre for Social Justice found that ‘adult victims are exploited through forced labour, in the sex industry, through domestic servitude in the home and through forced criminal activity’. ²⁵ The organisation RACE (Response Against Trafficking for Forced Criminal Exploitation) frequently publishes that trafficking for exploitation in criminal activities in England and Wales is prevalent. ²⁶ The criminal activities include drug cultivation, theft, pickpocketing, counterfeit DVD selling and benefit fraud. Undeniably, victims of human trafficking in England and Wales need protection against being held liable.

The debate on a non-liability clause gained momentum in England and Wales around the time of deliberations on the Modern Slavery Act. A report by Frank Field MP, which was requested by the Home Secretary and which considered the evidence on modern slavery, aimed to underpin the new legislation. As stated in the introduction to the report:

[i]t sets out the basis for certain clauses which are a prerequisite for a world class Bill, and it details the many policy changes (that do not require new primary legislation) we believe the Government should make to help maintain the impetus of its drive against modern slavery. ²⁷

Prior to the Act there was no statutory provision which transposed regional obligations into English and Welsh law with respect to trafficked persons who broke the law, criminal or civil, where there was a nexus between the breach and their trafficking situation. Instead the obligations were met by way of a three pronged approach:

The common law defence of duress.

While these avenues still exist, the Modern Slavery Act sets out in s 45 the new law applicable to victims of slavery or of relevant exploitation who have been compelled to commit a crime. For adults, a person is not guilty of an offence if they commit the unlawful act because they were compelled to do it, where the compulsion is attributable to slavery or to relevant exploitation, and 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. A person may be compelled to do something by another person or by the person’s circumstances. For minors, a child is not guilty of an offence if they commit a crime as a direct consequence of the minor being, or having been, a victim of slavery or a victim of relevant exploitation, and a reasonable person in the same situation as the minor and having the minor’s relevant characteristics would do that act. In order for the defence to be successful, the victim will need to satisfy the evidential burden (ie, produce enough evidence to be permitted to raise the defence at trial), after which it is then up to the prosecution to disprove the defence beyond reasonable doubt.

Does Section 45 Fulfil Regional Obligations—An Analysis of the Defence Clause

Countries or even future regional and international instruments can look to the Modern Slavery Act for some encouraging approaches. This author finds that in particular three positive things are of note and can be seen as advancement beyond the state of the art. First, a progressive element of s 45 is s 45(4), which specifically concerns children. A holistic approach to human trafficking necessitates a consideration of the particular vulnerabilities faced by children. The defence in the Modern Slavery Act does not require children to have been compelled to commit the crime, instead it will be enough for them to prove that the act was a direct consequence of the person being, or having been, a victim. By specifying different requirements for minors, the Act is showing awareness that children may need more protection and are specifically recognised within all international documents on human trafficking. As highlighted by Bird and Southwell, ‘a child should not have to prove compulsion to achieve protection because they are in a position of particular vulnerability and cannot consent to the exploitation’. ³¹

Secondly, the link between the criminal act and the victimisation is better framed in the Modern Slavery Act as it moves beyond what regional instruments require. The Act states that compulsion is attributable to slavery or to relevant exploitation only if—

it is, or is part of, conduct which constitutes an offence under section 1 or conduct which constitutes relevant exploitation, or

The phrase ‘or having been, a victim…’ is progressive. Afore sections criticised Directive 2011/36 on preventing and combating trafficking in human beings and protecting its victims for requiring the act to be a direct consequence of human trafficking. Although the phrase is not elaborated on by the EU legislator, a strict construction approach to reading law leaves us with little room for understanding the phrase with anything other than almost on par to duress. Indeed, such a strong degree of immediacy has led literature to parallel direct consequence with duress. ³² Both duress and direct consequence offer inadequate protection; the manner in which compulsion is exercised is often more nuanced. ‘The circumstances in which trafficking victims have committed offences may not have involved an immediate threat of death or serious bodily harm’. ³³ A complex, yet common, situation arises when a trafficked person has escaped the trafficker and commits a crime that is related to the trafficking situation but is not direct per se. For example, they commit a crime in trying to escape from their oppressor (eg, use of false documents). This is what Schloenhardt and Markey-Towler call ‘liberation offences’. ³⁴ Here the victim’s trafficking situation is still the underlying cause of the offence, yet we cannot speak of a direct consequence as the proximity or nexus is no longer close enough to equate to ‘direct’. Yet such victims should in all likelihood be protected even if at that exact moment in time they are no longer a victim. It is naive and simplistic to assume crimes by trafficked persons will always be caused due to direct consequence. Moreover, we have to be aware that the boundaries between direct consequence and not direct consequence are too blurry, and so a better phraseology/approach is needed in EU law. Section 45 of the Modern Slavery Act is, and rightly so, broader and protects where there is a nexus of compulsion. Undeniably, the legislators in drafting the Modern Slavery Act considered case law from the highest courts, which prior to the Act favoured determining causation rather than establishing direct consequence, where the offence is connected to the victim status but does not necessarily have to be a direct consequence thereof. In English criminal law, causation is understood as the causal relationship between conduct and result. Interestingly, traditionally causation is used to determine if a person is guilty of an offence. The basic test for establishing causation is the ‘but-for’ test in which the question is asked ‘but for the actions of the defendant, would the result have occurred?’ In the case of non-liability of victims of human trafficking, this is turned around and we ask ‘but for the trafficking situation of the defendant, would the result have occurred?’ If the answer is no, then the trafficked person ought to be granted an excuse.

Such an approach was adopted by the English courts in R v L and Others (The Children’s Commissioner for England and Equality and Human Rights Commission intervening). ³⁵ L was from Uganda and was an adult. She had been trafficked for the purposes of sexual exploitation. After several years of forced prostitution, she was released by her trafficker and was given a forged passport. Following her arrest, L had been convicted of possessing a false identity document. At the Court of Appeal, L’s conviction was quashed; the judges held that her prolonged exposure to forced prostitution and enforced control meant that the offence she actually committed arose out of being a victim of human trafficking. It is interesting to note that this is contrary to what took place a few years earlier in a similar case of YT, thus showing us the progress of the law in this domain. YT was a victim of human trafficking from Nigeria, who endured sexual exploitation for two years. Like L she relied on false documents to survive after she had escaped her traffickers and for this she was prosecuted and convicted. However, unlike in L, the Court of Appeal upheld YT’s conviction because she did not pass the threshold of compulsion and proximity.

A further positive attribute of the Act is that it goes further than the regional obligations as it refers to ‘slavery or to relevant exploitation’. In other words, the s 45 goes beyond just protecting trafficked persons, which is what both Article 26 of the 2005 Council of Europe Convention on Action Against Trafficking in Human Beings and Article 8 in Directive 2011/36 on preventing and combating trafficking in human beings and protecting its victims do. The wording in the Modern Slavery Act performs as an umbrella for all those persons who were exploited, and disregards how their status came about. Aptly this approach addresses the criticisms against the human trafficking definition, which is that this definition fosters gaps where persons who were exploited but not necessarily trafficked remain outside the sphere of protection. ³⁶ In fact, the encompassing s 45 tackles this by trying to ensure that no victim remains undetected and beyond the protection of the law. On the other hand, this positive feature can be seen as a negative; by requiring that compulsion be attributed to slavery or exploitation the defence excludes those persons who did not reach the exploitation stage. For instance, those who were in the process of being transported, and for instance may have committed an immigration offence, are presumably not entitled to the defence. Yet we must recall that human trafficking is a crime of intent, and so even persons who are ‘on route’ to exploitation should be protected. For Jovanovic ‘this is a serious oversight of the MSA [Modern Slavery Act] because, on its face, it prevents the application of the defence to victims who have been trafficked but not yet exploited’. ³⁷ Thus the defence gives with one hand but takes away with another, and here there is possibly non-compliance with the requirements of the two regional articles.

A further break away from the Article 26 of the 2005 Council of Europe Convention on Action Against Trafficking in Human Beings and Article 8 in Directive 2011/36 on preventing and combating trafficking in human beings and protecting its victims is that s 45 does not apply to a victim who committed an offence listed in Schedule 4. Schedule 4 is made up of 37 paragraphs and includes crimes such as robbery, burglary, manslaughter, murder, offences against the person (eg, threats to kill, wounding with intent to cause grievous bodily harm, abandoning children, etc.), assisting unlawful immigration to Member States and sexual offences, to name but a few examples. Noting the length of the Schedule, it can be argued that the defence clause in many instances will not be applicable. This is contrary to the rationalisation of having a principle of non-liability, which seeks to protect all trafficked persons who were compelled to break the law. The US Trafficking in Persons Report (a resource of governmental anti-human trafficking efforts and summary of the situation of human trafficking) states that trafficked persons are forced to ‘transport drugs, commit extortion, or commit acts of violence, including murder’. ³⁸ Schedule 4 excludes these persons. Likewise, empirical research in Spain showed that crimes committed by trafficked women included, among others, drug trafficking offence, theft and document and bank card forgery. The women were compelled to commit the crimes, yet having an exclusion element such as that in Schedule 4 would mean that despite an available defence some of these women would remain outside the spectrum of assistance. ³⁹ Importantly, no exclusions are provided in any of the regional documents or in any recommendations. This supposedly is because the regional legislators recognise that the defence is part of an excuse. Let us remember that an excuse is not the representation of ‘I did something wrong, but it’s not too bad so I should be excused’, instead it is a theory that presupposes the notion ‘I committed an offence, even if serious, but it was not my fault so I should be excused’.

In answer to the criticism concerning the Schedule, of note is the response to the Report from the Joint Committee on the Draft Modern Slavery Bill, that where ‘the defence does not apply because the offence is too serious, the Crown Prosecution Service will still be able to decide not to prosecute if it would not be in the public interest to do so’. ⁴⁰ However, noting past failures with regard to using the Crown Prosecution Service discretion, ⁴¹ one ought to remain cautious of developing too much enthusiasm. Furthermore, having so many exemptions reinforces the requirement for the victim to be an ideal victim. Someone pure. As presented by Nils Christie there is a typecast of the ‘ideal victim’ ⁴² and in order for society to accept a person as a victim, and thus subsequently grant them relevant protection, they should be as innocent, vulnerable and as passive as possible. Van Dijk’s work is also relevant here. Relying on historical accounts—where Jesus Christ was the first victim identified in literature—Van Dijk states that for the public to accept someone as a victim they should be a forgiving, passive individual who endures their suffering in silence. ⁴³ It is argued in this article that a trafficked person who commits a serious crime will not stand up to these and other expectations, which are embedded in society. In other words, committing minor crimes may be tolerable but those listed in Schedule 4 interfere with our ability to accept someone as a victim. The crimes taint the victims and somehow weakens the exploitations these persons experience, and in turn the compulsion. Of course in law they are victims, but there is a disparity with how society wants to view victims of trafficking and the legal parameters; the latter produce a more diverse range of victims than that of societies’ ideal victim image. ⁴⁴ Yet it is precisely because of the prevalence of the ideal victim theory and societies struggle to accept anyone short of the ideal victim, that the law should have broken away from this and provided clear, uncomplicated by exemptions, protection for vulnerable persons that may not fit the ideal victim image. This includes those who committed crimes listed in Schedule 4, for they are also worthy of an excuse even when they have done something that society regards as undesirable or un-victim like.

Moving on from the Schedule, another shortcoming is found in s 45(1)(d). This subsection states 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. The reasonable person is an established element of common criminal law, often used in defences. ⁴⁵ Gardner notes that the reasonable person has made around 50 appearances in ‘primary legislation in the United Kingdom, helping the law out with topics as diverse as alcohol sales, patents, sunbeds, asset-freezing, and stalking’. ⁴⁶ In her analysis of s 45, Pham pays close attention to s 45(1)(d) and notes that this is similar to the requirement found in the defence of duress, which necessitates that the threat would overcome a sober person of reasonable firmness. ⁴⁷

On the surface the idea of including a reasonable person within the defence is acceptable, however this particular wording raises some concern. In this expression, the law is reining in the jury/magistrate more so than usual by specifically limiting the characteristics. In s 45(5), relevant characteristics are explained as age, sex and any physical or mental illness or disability. This list is not a true picture of the vulnerabilities that traffickers exploit to compel victims into committing crimes. A person’s migration status for instance is not listed but certainly can contribute to making a person commit a crime. Other characteristics could include religious beliefs, especially in cases of trafficking undertaken through the use of juju. Including a closed list of characteristics means that other, potentially crucial features of the trafficked person, may be ignored. In literature, we can also find critique that the reasonable person element ‘goes beyond that envisaged by the Convention or the Directive’. ⁴⁸ Thus, again we see a break away from the regional obligations. A critique was also raised by the Immigration Law Practitioners’ Association in the written submissions to the draft (where s 45 was then s 39). The Association took issue with the reasonable person element:

This is an unusual approach, and appears highly problematic—we suggest that Ministers be asked whether there are other examples in legislation and how these have worked. We are concerned that a judge would have real difficulty in directing a jury as to the correct approach. Moreover, clause 39(1)(c) [now 45(1)(d)] is unnecessary; the jury will already have had to consider the personal circumstances and background of the person when considering the first part of the defence, that is, whether the person chose to do the act, or whether they were compelled to do so. Personal characteristics and background are highly relevant to this analysis. ⁴⁹

Lastly, s 45(1)(d) also expects that the trafficked person had no realistic alternative when performing the act. In some cases, this will be easy to prove; for example, in the case of traffickers who use violence or threats of violence and compel their victims. However, other cases may be more nuanced, for example, when traffickers leave their targets in a basement for days to make counterfeit goods. On one hand, there is nothing from stopping the trafficked person from running away (unless they are locked in) but on the other hand, the fear embedded in them may be so great that they are paralysed and unable to escape. Like with cases of domestic violence it is too simplistic to imagine that victims would leave or call the police. The victim may see no realistic alternative. It is easy to expect victims to run away from their traffickers or their trafficking situation, but we must pay attention to how they perceive possibilities of running to safety. If they believe that on running away they will be deported or harmed by the authorities or that they will become injured due to a juju curse, then is it so realistic to expect them to run away? In addition, we have to also take into account that there may be practical obstacles; not knowing where they are, language barriers, lack of information sources and questions of how to survive economically. Furthermore, some victims may fear that the traffickers know where their families live and would harm them. The expectation of a realistic alternative may be alien to trafficked persons, and if the jury only consider the characteristics of age, sex and any physical or mental illness or disability they may fail to understand that the victim really had no alternative.

Conclusion

The statutory defence in the Modern Slavery Act came at a time when victims of trafficking were regularly prosecuted and convicted for offences connected to their status. For Bird and Southwell ‘these cases are genuine and serious miscarriages of justice and risk bringing the UK criminal justice system [sic] into disrepute’. ⁵⁰ To rectify this, and in line with its regional obligations, the national legislator created a new defence contained in s 45. The question afore us is: does the Modern Slavery Act 2015 fulfil its obligations with respect to protecting trafficked persons from prosecution and punishment? The answer really pivots on whether we accept that the regional obligations place any hard obligations on states. This article argues that no, all that is required is that there must be a choice for the law enforcement authorities not to prosecute and punish or in the case of the 2005 Council of Europe Convention just not to punish. No regional instrument seeks to interfere with the exercise of that discretion. That discretion in England and Wales is there, both through the new defence clause in the Modern Slavery Act 2015 and through the old existing measures of:

The common law defence of duress.

As the obligation is not about the degree of protection or its efficiency, just that there is some method for not prosecuting or punishing, it is possible to conclude that English and Welsh law is in conformity with 2005 Council of Europe Convention on Action Against Trafficking in Human Beings and Article 8 in Directive 2011/36 on preventing and combating trafficking in human beings and protecting its victims. However, perhaps less so with the human rights and victim-centred spirit of those instruments.

The article has shown that protection offered to victims in England and Wales is complex, filled with many conditions and exclusions. ‘The complex nature of the defence reveals the fact that it was controversial, and did not reach the statute book without difficulty’. ⁵¹ In practice, magistrates or juries will have to be guided through the various components that make up the defence as well as take into account whether a reasonable person in the same situation as the person and having the person’s relevant characteristics would have no realistic alternative in carrying out that act. This will be a difficult task and one that moves away from the 2005 Convention and Directive 2011/36 on preventing and combating trafficking in human beings and protecting its victims; neither document has the same threshold that the victim is expected to pass. We can thus conclude that while having a non-liability provision is favourable, the one contained in the Modern Slavery Act is not a model example. Too many victims will continue to be left behind and endure being held liable. It is concluded that the human dignity of trafficked persons, despite the law, remains ill protected. A clearer and far-reaching provision ought to have been drafted, one that better reflect societies’ core values when it comes to criminal law and protecting trafficked persons. Values that state that a person should not be held liable for crimes they committed when their free will and agency were extinguished. Legislators developing laws on non-liability should consider lessons learnt in this article, moreover they should alongside the legislation provide clear guidance for prosecutors, other judicial officers, lawyers and non-lawyers that are easily understood.