MK and Gega v R [2018] EWCA Crim 667 is about who should face the burden of proof when a criminal defendant relies on the new “victim of slavery/trafficking” defence in the Modern Slavery Act 2015. In the first appellate judgment on this issue, the Court of Appeal has ruled that the burden is on the prosecution to disprove all the elements of the defence beyond a reasonable doubt. It had been held in the court below that it would be up to the defendant to prove the defence on the balance of probabilities. This result will make it easier for victims of trafficking and/or slavery to rely on the defence successfully.

A get out of jail free card?

Section 45 of the Modern Slavery Act 2015 provides a defence to any criminal offence (apart from excluded offences listed in Schedule 4 to the Act) if the following elements exist:

• Status – The person is a victim of slavery or relevant exploitation (i.e. trafficking).
• Compulsion – The person is compelled to commit a criminal act
• Attribution – The compulsion is a direct consequence of being a victim of slavery.
• Objective safeguard – There was no realistic alternative to committing the criminal act, taking into account the person’s relevant characteristics.

The legislation is silent on where the burden of proof lies once the defence is raised. Raising the defence only requires the defendant to meet a modest, evidential threshold. A similar defence exists for minors without the compulsion requirement (section 45(4)).

New defence, traditional approach

Both appellants had been convicted of offences despite claiming to have been victims of trafficking forced to commit crime.

The trial judges decided to differentiate the status element from the other elements when considering the burden of proof. They ruled that it was for the prosecution to disprove that the defendant was a victim of trafficking. But if they failed to do so and the defendant was accepted as a victim of trafficking, then the defendant would still have to prove the other elements of the defence on the balance of probabilities.

Those rulings were contrary to the traditional common law position that it is for the prosecution to prove their case and disprove all elements of any defences raised beyond a reasonable doubt. Both judges were following Crown Prosecution Service guidance (still online) on how the defence should be interpreted.

The prosecution defended this interpretation of the legislation by comparing it to section 31 of the Immigration and Asylum Act 1999, which created a defence to the offence of illegal entry based on being a refugee. In R v Makuwa [2006] EWCA Crim 175, the Court of Appeal held that even if the prosecution failed to disprove that the defendant was entitled to refugee status it would still be up to the defendant to prove that she met the other requirements of the defence.

The Lord Chief Justice rejected that view in strident terms:

the central difficulty with the Respondent’s submission is that there is nothing in the language of the statute to support the contention that this one element of the defence should be singled out for different treatment as regards the legal burden.  The approach of the prosecution in truth requires a re-writing of section 45, whose structure is very different from that of section 31 of the 1999 Act.

The court went on to hold that Article 4 ECHR and the Trafficking Directive are a consideration in favour of imposing the burden of proof on the prosecution uniformly across the various elements of the defence. Finally, the Court of Appeal held that any other interpretation of section 45 risked undermining the objective of the Act:

if the legal burden of proof is reversed, there is a danger of frustrating Parliament’s objective that victims (including children) of trafficking or slavery should be protected against the further stigma of a criminal conviction for an offence committed in consequence of their initial victimisation.

The court noted that this interpretation meant that the defence could be used in a similar way to the defence of duress, with which it shares some characteristics. Any concerns about abuse of the defence had already been accounted for by Parliament through the inclusion of an “objective safeguard” element.

Better protection for trafficking victims

Unfortunately, success on this narrow point of statutory construction was of limited benefit to the appellants. MK faces a retrial and Ms Gega’s conviction was not quashed because the evidence against her was so overwhelming that the misdirection by the trial judge made no difference.

But the judgment will be of great benefit to many victims of trafficking and modern slavery. Many, if not most, victims of exploitation have little corroborating evidence of how they were treated and rely heavily on their own account. To succeed, they need to receive a sympathetic hearing. By taking a traditional approach to interpreting this new defence, the Court of Appeal has ensured that victims of trafficking will be given the high level of protection from criminal sanctions intended by Parliament.