The Modern Slavery Act 2015 Defence: Offender or Victim?
The Modern Slavery Act 2015 was introduced to consolidate the legislation dealing with prohibitions on slavery, servitude and human trafficking.
Whilst the initial sections of the act set out the offences of modern slavery and the approach to sentencing it is section 45 of the Act that we at Emery Johnson Astills are most alert to. This section makes specific provision for the defence of modern slavery. It is therefore imperative that consideration be given at an early stage as to whether a client is an offender or a victim.
It is of note that this defence does not apply to all offences, but the most common that are likely to give rise to a modern slavery defence are cannabis cultivation, drugs importation, false documentation offences, and prostitution.
In identifying possible victims consideration should be given to where the client is from, their identity documentation, any signs of anxiety or distrust, evidence of abuse or violence and control being exerted over them, a failure to disclose their immigration status, lack of knowledge of local area and addresses, use of different names and dates of birth.
To make use of section 45 defence evidence is required to confirm that the defendant is a victim of trafficking or slavery. If this evidence is not accepted it is for the Crown to prove beyond reasonable doubt that the defendant is not a victim. In respect of an adult defendant (a section 45(1) defence) it is for the defendant to prove on the balance of probabilities that they were compelled to commit the offence; that the compulsion was as a direct consequence of trafficking or slavery, and that a reasonable person with the same characteristics and in the same position would have no realistic alternative but to commit the offence. For those under 18 years of age (section 45(4) defence) it is for the defendant to prove on the balance of probabilities that a reasonable person in the same situation and with the same characteristics would do that act.
In support of the section 45 defence we at Emery Johnson Astills advise to make use of the National Referral Mechanism, a process funded by central government, which will assist in providing independent evidence that the client is a victim of slavery or trafficking in order to successfully pursue the Modern Slavery Act defence.