On Thursday 24th February 2022, the Daily Mail published a particularly egregious article on the issue of the ‘modern slavery defence’ in criminal trials.

Section 45 of the Modern Slavery Act 2015 introduced a statutory defence in criminal trials for the victims of trafficking and modern slavery. This provision reflects the commitment of the UK to tackling modern slavery.

The article cites an anonymous Government source, who complains that ‘[m]odern slavery has become the de facto excuse in all kinds of criminal cases’. The source goes on to explain that ‘[w]e now expect the legislation to be reformed’.

The article is a seriously confused piece of writing. It concedes that there may be ‘genuine victims’, before in the same breath whipping up a moral panic about excusing criminals. Black Box decided to put together this piece in response to the misleading content of the article. Three issues leapt out at us.

Causation

The keystone of the UK’s anti-slavery strategy is the National Referral Mechanism (“NRM”). Suspected victims are referred to the NRM by the relevant local authority, youth offending team, or the police. The Single Competent Authority (part of the Home Office) first issues a Reasonable Grounds Decision. This is then followed by a Conclusive Grounds Decision as to the victim status of the individual in question. A positive decision opens the door to various forms of support.

The article presents, without critical comment or analysis, a set of statistics that are clearly intended to alarm its readers. It notes that in 2020 there were 10,613 NRM referrals, up from 6,982 in 2018. These numbers are set against the thrust of the piece: ‘criminals using modern slavery defence as an excuse’. The implication we are meant to draw is that NRM referrals are rising because more dangerous criminals are having their criminality excused by this ‘bleeding-heart’ liberal scheme.

What is striking about this is the complete lack of intellectual curiosity as to why NRM referrals might be rising and credulity towards an anonymous source’s characterisation of the regime. The article does not consider, for instance, the possibility that referrals are rising because: (a) more police forces and public authorities are familiar with the mechanism; and (b) knowledge and recognition of the signs of modern slavery and trafficking are more widely known now than they were at the start of the decade. Put more simply, if the Government creates a mechanism for solving a social problem, and that mechanism includes a means of identifying and quantifying that problem (and the scale of that problem was not previously fully known) – then, yes, you will see increased reporting of the issue.

Stigmatising Victims of Modern Slavery

Besides this issue, the Daily Mail’s article represents a threat to the efforts that have been made to de-stigmatise victims of modern slavery. Victims of modern slavery are, too often, victims with considerable trauma and histories of physical, sexual, and psychological abuse.

Our CEO, Dr Grace Robinson, has conducted research around modern slavery. Her findings are stark. Children are disproportionately victims of criminal exploitation, as are vulnerable adults. The latter group include those who have drug dependencies, mental health issues, disabilities, the elderly, and those struggling financially and emotionally. Criminal organisations have developed tactics to exploit such individuals, such as encouraging the purchase of drugs on credit to trap drug users in debt bondage. Dr Robinson has found that, in almost all criminal exploitation cases she has come across, young people are either exploited due to having a debt for cannabis or were introduced to exploiters through their dependency on cannabis. In the case of females, perpretators of criminal exploitation often enter into intimate relationships with victims, controlling them through emotional abuse, sexual violence, and allowing other perpetrators to sexually abuse them. The research is clear: in criminal organisations, sexual abuse and criminal exploitation often go hand in hand.

Victims in such circumstances are, unsurprisingly, all too often coerced into committing acts that amount to criminal offences. This is part and parcel of their exploitation. The task of modern slavery professionals, and the criminal justice system, is to identify those who have entered the system as exploited victims as opposed to exploiters. This is not always easy. The victims of criminal exploitation might themselves be involved in the exploitation of other victims. This is compounded by the fact that there is no such thing as the ‘perfect victim’. Potential victims of modern slavery can be uncooperative or hostile to authorities, often due to a fear of being perceived as a ‘snitch’ or not being believed and protected. Again, such reluctance to engage with public authorities accompanies the coercion and exploitation of such individuals. For all the clear cut cases, there are many shades of grey.

What is clear, however, is that the populist panic-mongering seen in this Daily Mail article does not help. The criminal justice system, which has had its funding slashed in the last decade, needs proper resourcing. The Government needs to increase the density of public and NGO support surrounding modern slavery, identifying victims before they fall through the net, and effectively caring for and protecting them when they have been exploited. What victims do not need is a knee-jerk tightening of the s.45 modern slavery defence, the effect of which would see the criminalisation and punishing of victims for the circumstances of their exploitation. If anything else, it is a profoundly inhumane view of the problem.

Getting the Law Wrong

Sadly, Black Box is unsurprised to see poor journalistic coverage of the British criminal justice system. Such misreporting is all too common. Nonetheless, it is still striking to come across an article that fails to provide any independent corroboration or challenge to the Government line, and that fails to conduct the bare modicum of legal research. A basic and cursory glance at the current state of the law would have revealed to the Mail Online the important recent cases of Brecani and DS.

In Brecani v R [2021] EWCA Civ 731 (19 May 2021), the Court of Appeal reduced the practical use of the s.45 ‘modern slavery’ defence by changing the status of the Conclusive Grounds Decision in criminal trials. The Conclusive Grounds Decision is no longer admissible as expert evidence ([54]). Defendants may seek to rely on the materials underpinning the Conclusive Grounds Decision, or otherwise engage a suitably qualified expert to give evidence. But the change in criminal procedure in Brecani reduces the evidence available for the s.45(4) defence and makes it a more impractical defence to run.

In DS [2020] EWCA Crim 285 (28 February 2020), the Court of Appeal also confirmed that deciding the facts as to the status of an individual as a victim of trafficking was “unquestionably”, and solely, for the jury ([40]). The trial judge had stayed the proceedings as an abuse of process in response to the Single Competent Authority reaching a positive Conclusive Grounds Decision. The Court of Appeal held that in doing so the trial judge had erred, and ordered that the proceedings be continued.

The Daily Mail’s article, however, conspicuously fails to mention any of this detail – a serious error, since its inclusion, even in basic form, would have provided nuance and balance to the anonymous Government source. Citing an unnamed source, whilst failing to provide any form of independent research, is an inexcusable lapse, which risks misleading the public about the operation of the criminal justice system. The Daily Mail’s readers, and the public more generally, deserve to read fact-based and fair-minded commentary and analysis of the legal system.