IASC Call for Evidence: Use of the Modern Slavery Act's Section 45 statutory defence
The Independent Anti-Slavery Commissioner, Dame Sara Thornton, has today (17 January 2020) launched a call for written evidence inviting anyone with practical experience and knowledge of cases involving use of the Modern Slavery Act’s Section 45 statutory defence.
In her Strategic Plan 2019-2021, the Independent Anti-Slavery Commissioner has committed to working with criminal justice agencies to gain a better understanding of what is happening on the ground in respect of the use of the Section 45 statutory defence.
The Modern Slavery Act 2015 introduced new measures to support and protect victims of modern slavery and human trafficking and give law enforcement the tools to ensure perpetrators are brought to justice.
In particular, the Act introduced a Section 45 statutory defence which can be raised by those who, in the case of adults, have been compelled to commit an offence as a direct result of their being a victim of modern slavery, or in the case of a child, have committed an offence as a direct result of being the victim of modern slavery. This is a very important protection for victims of modern slavery and relies on the international principle of non-punishment.
The Commissioner is interested in the broadest range of cases which could include:
- Cases where police encounter a person who has committed a crime, but before arrest, recognises they are a potential victim of trafficking;
- Cases where a person is recognised as a potential victim post arrest, but before charge;
- Cases where a person is recognised as a potential victim post charge, but before trial;
- Cases where a person raises Section 45 at trial.
There is no quantitative data available with which to assess the scale and impact of the Section 45 statutory defence. A number of issues have been raised by prosecuting and defence parties in the criminal justice sector as to the use of this defence and the processes in place to address this once raised.
As outlined in the Independent Anti-Slavery Commissioner’s Strategic Plan 2019-2021 (pp. 14-15):
"There are cases where victims have not used this defence and been imprisoned and there are cases where criminals have attempted to abuse this defence. There is little clarity about the use of this defence which makes it harder to know that victims are being protected and the system is being protected from those who seek to abuse the defence."
The ruling in R v MK shifted the burden of proof on the prosecution to prove that an individual is not a victim of modern slavery once the defence is raised by that individual. Concerns have been raised about the ability of the prosecution to disprove accounts which often lack detail.
Conversely, there are concerns that genuine victims of modern slavery are failing to be identified and are incorrectly being prosecuted for crimes committed as a result of their exploitation.
Call for Evidence
In order to better understand the exercise of a Section 45 defence, experts, stakeholders and those with practical experience and knowledge of cases are invited to submit written evidence.
The Commissioner is interested in cases where the statutory defence has been raised, and in your view addressed satisfactorily. She is also interested in those cases where the defence has been raised, and in your view has not been dealt with appropriately. She is also interested in cases where, with the benefit of hindsight, the statutory defence should or could have been raised.
The Commissioner will hold a roundtable in late April to discuss issues raised in the call for evidence. The call for evidence and roundtable will inform a publication highlighting issues and trends identified, with policy recommendations.
Please email Dame Sara Thornton’s office at: firstname.lastname@example.org with the title ‘Call for Evidence: Section 45’
or write to:
Office of the Independent Anti-Slavery Commissioner
5th Floor, Globe House
89 Eccleston Square
This call for evidence closes at 11:45 pm on Monday 2 March 2020