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New Defence: Modern Slavery and Forced Labour

25 June 2019

Royal Courts of Justice

Section 45 of the Modern Slavery Act 2015 – a new defence for victims of modern slavery and forced labour

Article by: Zaki Hashmi.

The preamble to the Modern Slavery Act 2015 declares it to be “an Act to make provision about slavery, servitude and forced or compulsory labour, including provision for the protection of victims.” Section 45 of this Act introduces an important new statutory defence for victims accused of committing criminal offences of modern slavery and forced labour.

The nature of the defence differs slightly depending on whether the person seeking to rely on it is over or under the age of 18.

For an adult it must be demonstrated that the offence was committed through compulsion, and that the compulsion was attributable to slavery or exploitation; for a young person it must more simply be shown that the act was done as a direct consequence of being a victim of slavery or recent exploitation.

In both cases it must be established that a reasonable person with the same relevant characteristics would have acted the same; again there is a slight difference in the terms of this requirement depending on the age of the defendant.

This generic defence does not apply to a wide range of serious offences including murder, manslaughter, false imprisonment, kidnap, GBH, robbery, burglary and all sexual and terrorist offences. But the defence does apply to drugs offences, including offences concerning the importation and supply of class A and B drugs, and is therefore available to those persons (particularly the young and vulnerable) who find themselves exploited and coerced into supplying drugs through “county lines”. It would also be available to persons, brought into this country as victims of human trafficking, who have committed transit-related offences such as illegal entry or possession of false identification documents.

The defence has some similarities with the defence of duress, which in principle is available against all criminal offences except murder, but which is much harder to rely on because of the need to demonstrate both an immediate threat of serious violence and that the defendant was in genuine fear of death or serious physical injury.

The Court of Appeal confirmed in the case of MK, Gega [2018] EWCA Crim 667 that when seeking to rely on a section 45 defence it is for the defendant to raise evidence of the nature of their defence, following which the burden of proof is on the prosecution to prove guilt to the usual criminal standard.

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