Admissibility of Conclusive Grounds Decisions and s 45 of the Modern Slavery Act 2015: Director of Public Prosecutions v M [2020] EWHC 3422 (Admin)

Abstract

Keywords

Admissibility defences evidential burden expert evidence trafficked victims

On 16 May 2019, the respondent (M), a 15-year-old boy with no history of offending, was at a KFC in Tooting, an area of London to which he had no connection, along with two other boys (MP and KM) who were known by police to be gang members and habitual knife carriers. When the group were searched by police officers, M had five wraps of cocaine, two wraps of diamorphine (heroin) and a hunting knife in his possession.

On 23 May 2019, M was referred to the National Referral Mechanism (‘NRM’) by Lewisham Children’s Social Care. On 21 August 2019, the Single Competent Authority (‘SCA’) made a positive Conclusive Grounds decision (‘CG decision’) that, on a balance of probabilities, M had been recruited, harboured and transported for the purposes of criminal exploitation.

On 4 December 2019, M was tried at Wimbledon Youth Court for possession of a bladed article, possession of a Class A drug (heroin) and possession of a Class A drug (cocaine).

At trial M adduced both the CGD itself and the reasons for the SCA’s decision, made upon receipt and investigation of an NRM referral by M’s child social worker at Lambeth Social Services. The fact of the decision was adduced by way of an admission and the reasons for it as an exhibit.

M relied on the two-limb statutory defence in s 45(4) MSA 2015, that: (i) he was a child who had done the act as a direct consequence of having been a victim of slavery or relevant exploitation; and (ii) a reasonable person in the same situation as the person and having his relevant characteristics would do that act.

The statutory defence under s 45 MSA 2015 places an evidential burden on the defendant. In the instant case, M did not give evidence in support of this defence and had made a ‘no comment’ interview at the police station. The District Judge nevertheless acquitted M, finding that the evidence adduced (the full minute of the SCA decision, the evidence of the police officers and the admitted facts) was sufficient to satisfy the evidential burden.

The Applicant (‘DPP’) appealed to the High Court by way of case stated arguing that the District Judge who acquitted the respondent had erred in relying on the SCA decision in criminal proceedings. M submitted that the admissibility of the SCA decision did not arise in the appeal because it had been admitted as a fact pursuant to s 10 of the Criminal Justice Act 1967 (CJA 1967) and that the circumstantial evidence was in any event sufficient to discharge the evidential burden which lay on M to establish the statutory defence under s 45 MSA 2015.

Held, dismissing the appeal, the District Judge had been entitled to receive and admit the conclusive grounds decision of the SCA that M had been trafficked within the meaning of the MSA 2015 (at [54]). Whether a person is a victim of exploitation for the purposes of the defence under s 45 of the MSA 2015 is a question of fact (at [45]). The court took care to highlight that the factors relevant to trafficking or exploitation are ‘not necessarily within the knowledge of the ordinary person’, and therefore ‘expert evidence on which factors are relevant must be admissible’ (at [45]). It was held that the SCA decision-maker had the necessary expertise (at [54]). The court, however, went on to clarify that the weight of a CG decision will vary and ‘will not be determinative in the criminal context any more than it is in tribunal proceedings’ (at [55]). Further, the fact that an SCA decision-maker will not have prepared a minute of their CG decision with a view to its being used as expert evidence does not of itself prevent its admission in criminal proceedings (at [53]). In practical terms, the minute of the SCA decision will be introduced by an agreed fact (at [53]).

The defence under s 45(4) MSA 2015 can only apply if the defendant is under the age of 18. Considering the defendant in this case’s age in isolation would not have been sufficient (at [61]). While age is significant, it must be considered in the light of the other available evidence (at [61]). Their Lordships highlighted that the seriousness of the offence will be a significant consideration when determining what a reasonable person would have done where the defendant is an adult (in respect of the defence under subs (1)), but of less significance where the defendant is a child, as a child is more likely to ‘behave without a proper understanding of the nature and consequences of his actions’ (at [62]). The court concluded that in this instance, the evidence before the District Judge was sufficient to justify her conclusion that the statutory defence had not been disproved (at [64]).

Commentary

Where a defendant is relying on the statutory defence afforded under s 45 of the MSA 2015, one frequent issue between the prosecution and the defence is whether the decision of the SCA is admissible at trial. In the recent case of DS [2020] EWCA Crim 285, the Court of Appeal refused to decide this very issue and it seemed inevitable that it was likely to arise again. Although the present case provides some much needed clarity on this vexed question, it has inadvertently raised some new ones and left others unanswered. Moreover, the ruling also raises some important practical implications which will need to be addressed in the future.

Identification of trafficked victims and the ‘non-punishment principle’

There has been a notable trend in criminal trials for both the prosecution and the defence to adduce evidence to explain certain patterns of criminal activity, so that the jury can appreciate how the evidence called in the particular case fits the pattern (for further discussion on this topic, see T. Ward & S. Fouladvand, ‘Bodies of Knowledge and Robes of Expertise: Expert Evidence about Drugs, Gangs, and Human Trafficking’ (2021) Crim.L.R (forthcoming)). The defence will often seek to admit expert evidence which may concern, inter alia, expert testimony about the patterns of trafficking in a particular country and/or the psychological effects of the methods of control utilised by traffickers in order to control their victims (EK [2018] EWCA Crim 2961; O [2019] EWCA Crim 1389). Evidence of specific methods of control such as juju rituals and other cultural forms of coercion have also been admitted in such cases (Iyamu [2018] EWCA Crim 1266; Harrison (T20117086) 7 July 2011 (unreported)).

Another form of evidence which the defence commonly rely on is the CG decision of the Competent Authority (now ‘Single Competent Authority’). The Competent Authority was established under the NRM to consider cases where someone is referred to the NRM as a possible victim of trafficking (VOT). The purpose of this evidence from the defence point of view is the same as that of calling an expert: to show that in the light of expert knowledge of human trafficking and modern slavery, the defendant has a credible claim to be considered a victim of such practices. Through the NRM, possible VOTs are referred to the Competent Authority, a unit within the Serious and Organised Crime Division of the Home Office. Their case is then examined by an official within the relevant unit would make a ‘reasonable grounds’ decision, the threshold for which is that they ‘suspect but cannot prove’ that the person concerned is a victim of modern slavery. After gathering more evidence, the caseworker makes a CG decision on the balance of probabilities. The purpose of the Competent Authority’s consideration of this issue, however, is not to provide evidence for the criminal courts but to comply with Council of Europe Convention on Action Against Trafficking in Human Beings (2005) (‘ECAT’), art 10, by identifying victims of trafficking and offering them certain assistance. Additionally, any positive decision from the Competent Authority will serve to support the defence’s contention that the defendant was a VOT and should therefore fall within the protective ambit of the ‘non-punishment’ provision contained within art 26 of ECAT.

The ‘non-punishment principle’ requires States to ‘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’. M would be a VOT in the sense defined by the Convention if he was recruited by the ‘abuse of a position of vulnerability’ for the purposes of exploitation. The ‘minimum’ definition of exploitation in art 4 includes ‘forced labour or services, slavery or practices similar to slavery, [or] servitude’. The statutory definition of trafficking under the MSA 2015 is significantly broader. Under s 3(6), it includes any case where a person provides services for another, having been chosen for that purpose on the grounds that they are a child and that an adult would be likely to refuse to provide the same service. Many young (under-18) members in ‘county lines’ gangs and other criminal groups qualify as victims under this category, whether or not they are subject to forced labour which would bring them within the ECAT definition. The ECAT definition, however, is the one applied by the SCA. The breadth of the definition of a victim under the MSA 2015 (s 56(2)) is offset by restrictions contained in the statutory defence under s 45.

Section 45 of the MSA 2015 introduced separate defences for victims of human trafficking over and under the age of 18. For adults, the statutory defence operates only where the person performs the criminal act because they were compelled to do so; the compulsion is attributable to slavery or relevant exploitation; and a reasonable person in the same situation as the person and sharing the person’s relevant characteristics would have no realistic alternative to doing the act (s 45(1)(a)-(d)). ‘Relevant exploitation’ is exploitation within s 3, which is attributable to the defendant being a victim of human trafficking. The defence for under-18s is similar except there is no need to establish compulsion or the absence of a realistic alternative providing the criminal conduct was a direct consequence of being, or having been, a victim of slavery or relevant exploitation (s 45(4)(b)). What does need to be established is that ‘a reasonable person in the same situation as the person and having the person’s relevant characteristics would do that act’ (s 45(4)(c)). Relevant characteristics include age, sex, and any physical or mental illness or disability (s 45(5)). The s 45 defence does not apply to every crime committed by a VOT. The defence is not retrospectively applicable and is subject to a long and somewhat arbitrary list of exclusions in sch 4 (s 45(7)).

Thus, s 45 makes it relatively easy for a person in the position of M to raise a defence which the prosecution has to disprove. In order to rebut the defence, the prosecution would have to show either that the defendant’s youth was not a reason for recruiting them (though it is not obvious why this should affect the defendant’s culpability) or that the offence was not one which a reasonable person of the defendant’s age and in the same situation would have committed. Although no evidence of coercion is required to establish that the defendant was a victim of trafficking, coercion may well be relevant to the reasonableness of the defendant’s action.

The policy of the Crown Prosecution Service (CPS) since the enactment of the MSA 2015 sets out a four-stage test, where the prosecutor must first consider (i) whether there is reason to believe that the person is a victim of trafficking/slavery; (ii) whether there is clear evidence of a credible common-law defence; (iii) whether there is clear evidence of a s 45 defence; and (iv) where there is no such evidence, but the offence may have been committed as a result of compulsion arising from the trafficking, whether the public interest requires a prosecution (Human Trafficking, Smuggling and Slavery (2015) https://www.cps.gov.uk/legal-guidance/human-trafficking-smuggling-and-slavery)

Prior to s 45 of the MSA 2015 being enacted, there was no statutory provision which transposed into the law of England and Wales (E&W) international obligations under Article 26 of ECAT. Adherence in E&W to the ‘non-punishment principle’ was given effect by a series of decisions of the Court of Appeal (Criminal Division) and the proper exercise of prosecutorial discretion by the CPS. This was backed by a judicially created remedy, by which the defence could apply to stay the proceedings as abuse of process on the ground that the defendant was a victim who acted under compulsion. Under this system, great deference was accorded to the decisions of the Competent Authority (see L(C) [2013] 2 Cr. App. R. 23 at [28]).

Admissibility of conclusive ground decisions in trafficking cases

In the instant case, M sought to rely on the positive CG decision together with the full five-page minute that formed part of the evidence at trial by way of admissions under s 10 of the CJA 1967. Despite submissions to the contrary (at [23]), the court felt obliged to deal with the question of admissibility of the SCA decision as part of the appeal (at [44]).

Referring to the pre-MSA 2015 ruling in L(C) at [28], the court reiterated the sentiments of Lord Judge CJ who considered the status of the Authority’s decisions:

Whether the concluded decision of the competent authority is favourable or adverse to the individual it will have been made by an authority vested with the responsibility for investigating these issues, and although the court is not bound by the decision, unless there is evidence to contradict it, or significant evidence that was not considered, it is likely that the criminal courts will abide by it.

This passage was subsequently expanded upon in Joseph & Ors [2017] EWCA Crim 36 (at [20.vii]) where Lord Thomas CJ stated:

The decision of the competent authority as to whether a person had been trafficked for the purposes of exploitation is not binding on the court but, unless there was evidence to contradict it or significant evidence that had not been considered, it is likely that the criminal courts will abide by the decision…

The court in the present case made clear, however, that ‘the context of what was said about a CG decision in those earlier authorities was the exercise by a judge of their abuse of process jurisdiction’ and that ‘the court in each case was not considering admissibility in the context of a jury trial’ (at [31]). It followed that the admissibility in a trial of a CG decision of the Competent Authority had not been clearly and finally determined in the authorities concerned with cases prior and since the enactment of the MSA 2015 and the s 45 statutory defence (at [34]).

The most recent appellate consideration of a CG decision in the context of the s 45 statutory defence came in DS. In that case, Lord Burnett CJ (at [40]) held that that as a result of the enactment of s 45, there is no abuse of process in the CPS seeking to contest a defence in court, but to do so it must adduce sufficient evidence to prove to the criminal standard either that the defendant was not a VOT, or that despite being a victim they did not meet the other requirements of the defence (since the burden of proof rests on the prosecution: MK [2018] EWCA Crim at [45]). As to the admissibility of the CG decision, the court declined to express a view as to whether the CG decision of the Competent Authority may be admissible before the jury, as it was not an issue put properly before them (at [43]).

In the instant case, the applicant contended that no SCA decision can be admissible in a criminal trial (at [19]). In their submission (at [18]), they argued that the SCA decision (and the minute) amounted to ‘non expert opinion evidence and was hearsay’. Further, they asserted that the material that the CG decision was based on was ‘equivocal and untested’ evidence and it was merely ‘the product of a review of extraneous material by a Home Office employee who was not an expert…’ (at [18]). This reflects the orthodox view, epitomised by Hollington v Hewthorn [1943] KB 587, that the decision even of another court, let alone a Home Office caseworker, is inadmissible opinion evidence; and in this case it is not even relevant, as it adds nothing to the hearsay account of the facts.

Notwithstanding the prevailing orthodox position in Hollington v Hewthorn, positive (and negative) CG decisions are routinely admitted as fresh evidence by the Court of Appeal, predominantly in cases predating the inception of the MSA 2015. Many convictions have been overturned precisely because of the failure by the police or CPS to refer a person into the NRM and because, post-conviction, they have been so referred by other entities and received a positive CG decision. Further, as pointed out in the instant case (at [40]), CG decisions are routinely admitted in immigration proceedings, in both the First-tier Tribunal and the Upper Tribunal, not least because a positive CG decision will point strongly in the claimant’s favour in a protection claim.

Acknowledging that expert evidence is admissible per se in relation to the issue of exploitation (at [45-46]), the court stated unequivocally that ‘whether a person is a victim of exploitation [for the purposes of the defence under s. 45 of the MSA 2015] is a question of fact' (at [45]). The court took care to highlight that the factors relevant to trafficking or exploitation are ‘not necessarily within the knowledge of the ordinary person’, and therefore ‘expert evidence on which factors are relevant must be admissible’ (at [45]). The court therefore concluded that the District Judge did not err in her reliance upon it (at [54]).

It is noteworthy that the applicant (at [55]) sought to argue that if the Competent Authority’s decision were to be admissible in a criminal trial (in relation the s. 45 statutory defence) this would have ‘significant implications in terms of prosecutorial practice’. The court, however, rejected this argument (at [55]). Indeed, if the defence was precluded from adducing the SCA decision as evidence, ‘the effect of the statutory defence would be to put defendants in a much worse position than they were in when there was no defence in cases falling short of duress’ (Ward and Fouladvand, 15). As the court pointed out in the present case, the CG decision is just one aspect of the evidence that may support a s 45 defence. Nonetheless, it is important and relevant evidence. The court had to find a legal gateway, and it chose to apply a broad definition of expert, in a similar way that it does with police constables with significant experience of drug arrests who are permitted to give evidence on drug quantities, and commercial and street values (Hodges [2003] 2 Cr. App. R. 15). It would appear, however, that the court in the present case was more attracted to the analogy with social workers’ age assessments as similar expert evidence (at [47-51]).

Having ruled the CG decision admissible, the court then turned its attention to whether the evidential burden had been discharged in respect of both limbs of the s 45(4) defence (at [56-64]). On the facts, there was relevant direct evidence available to the District Judge to assist in determining that was a victim of exploitation and that his offending was a direct consequence of that status. The court took cognisance of the following evidence: M was a missing child; he was in an area with which he had no connection; he had no previous convictions; he was with two boys with a significant criminal history involving drugs and knives (at [58]). The court stated emphatically that this was ‘not hearsay evidence’, and that the evidence described M’s ‘troubled background by reference to local authority and police records’ which were admissible under s 117 of the Criminal Justice Act 2003 (at [58]).

Notwithstanding the ruling of the court in the instant case being logical and fair, the status of the SCA decision and minute once admitted still remains unclear. This identifies three key unresolved issues. Firstly, while the court noted that the SCA decision-maker had expertise to come to a decision (at [54]), it also stated that ‘the SCA decision maker will not have prepared their minute of decision with a view to its being used as expert evidence’, and ‘will not have anticipated giving evidence in relation to their conclusive grounds decision’ (at [53]). Accordingly, the language used here would suggest that the SCA decision cannot be treated as expert evidence; however, as the decision is only likely to be relied upon where the defendant’s victimhood is central to the case (for example, where s 45 defence is raised), it is difficult to see how a jury would not give greater weight to a decision by the SCA, a branch of the Home Office, and therefore a part of the State, than other non-expert evidence. Thus, in jury cases carefully crafted directions will be needed, an aspect which the present case did not have to consider.

Secondly, although the court stated that the fact that the decision and minute would not have been prepared as expert evidence did not prevent them from being admissible (at [53]), the court did not explain the basis for admissibility beyond endorsing the obiter remarks of Gross LJ in S(G) [2018] EWCA Crim 1824 that the SCA minute be adduced by agreed fact. Interestingly, in that case, Gross LJ noted (at [69]) that the admissibility of the decision and the underlying reasons at trial were ‘unlikely’; nevertheless, the Court of Appeal regarded it ‘as overwhelmingly likely that, in the interests of justice and fairness, the Crown would have been required to make admissions’, thereby highlighting the underlying difficulty. Despite the court in the instant case determining the issue of admissibility, it has regretfully failed to resolve the difficulty as noted by Gross LJ in S(G).

Thirdly, the court’s decision to deem the full minute admissible is interesting, as to the extent the minute is comparable to an expert report, an expert report would not be exhibited. There is no analogous kind of routinely exhibited evidence: interviews do not contain the analysis of an SCA minute and at the other end of the scale, medical records are more empirical in nature, perhaps more readily justifying their admission.

Although it was not one of the defining issues, the ruling in the present case (at [44]) also demonstrates that both the prosecution and the defence need to exercise utmost care when drafting admissions under s 10 of the CJA 1967 when dealing with an SCA decision, as to what is being precisely agreed. On the facts presented, it appears that there was a degree of ambiguity as what had occurred in the lower court—whether the parties admitting the facts behind the decision or just the fact that the decision had been made, or both (at [44]). It has been suggested that defence practitioners could help bolster a 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 the requisite experience in trafficking and also direct dealings with the defendant (<https://www.carmelitechambers.co.uk/blog/blog-dpp-v-m-2020-ewhc-3422-common-sense-prevails> accessed 28 February 2021)

Conclusion

At the time of writing, it is understood that the Crown intends to seek leave to appeal to the Supreme Court, meaning that further clarification on those outstanding issues outlined above will potentially be resolved. In the meantime, advocates and the judiciary will have to grapple with the issue of how to explain the significance of SCA decisions and minutes to juries, but at least for the time being their admissibility in criminal trials is no longer in doubt.

Sean Mennim