R v Brecani - the end of s.45 modern slavery defences?.

Since the inception of the Modern Slavery Act 2015 the defence of modern slavery (s45) has been on the rise.

For those not familiar with s45, a brief summary is provided:

S45 is a defence available for a person (both adults and youths) who plead that they have committed a criminal offence, because they were compelled to do so by virtue of slavery or relevant exploitation. Adult defendants have a further hurdle to overcome in running such a defence, in that the jury are entitled to consider whether a reasonable person in the same situation and having the person’s relevant characteristics would have no realistic alternative but to do the act. There is no such qualification when it comes to youths.

The defence is not available for all offences. Schedule 4 of the Modern Slavery Act 2015 lists offences that do not have a s45 defence available (murder; kidnapping and possession of a firearm – to name but three)

Those who wish to run a s45 defence are encouraged to engage with the National Referral Mechanism (NRM) via a first responder (police/local authorities etc) The NRM referral is made to a Single Competent Authority. This Competent Authority can then consider the facts of the case and assess whether or not they find conclusive grounds that the individual was a victim of modern-day slavery.

Following a conclusive grounds finding, it is best practice for the Crown to review whether they consider the prosecution should continue as a result.

The Crown are not compelled to agree with the Competent Authority’s findings, however prosecution of that same individual could amount to an abuse of process under limb two of R v Horseferry Road Magistrates’ Court ex p Bennett (1994) 1 AC 42, (it would be unfair for that defendant to be tried)

Should the Crown consider a trial still meets the public interest test and it is not an abuse of process to try him/her, it has been known that the defence seek to admit evidence of the conclusive grounds finding as support for the s45 defence that is being run within a trial.

The National Referral Mechanism has been engaged with rising popularity over the years. In 2016 - 3,804 referrals; 2018 - 6,986 referrals; in 2019 - 10,627 referrals and in 2020 - 10,613.

R v Brecani [2021] EWCA Crim 731 is a judgment that was handed down on 19th May 2021 by the Lord Chief Justice of England and Wales.

The judgment has sent shockwaves through the profession. In summary the Court of Appeal has held the following:

1. A competent authority case worker’s finding of conclusive grounds, is not admissible in evidence in a criminal trial and;
2. A case worker cannot give expert evidence of their findings [of conclusive grounds] as they are not experts.

It could reasonably be interpreted that this judgement is an attempt to quell the tsunami of NRM referrals.

It may also give the Crown a sense of hubris. It must be made clear, that this judgment neither prevents an individual running a s45 defence, nor does it give the Crown licence to ignore the NRM process. As part of the Brecani judgment the Court reminded itself of our Article 4 obligations in investigating claims of modern day slavery thoroughly. Paragraphs 64 and 65 read as follows:

64. The Strasbourg Court is not generally concerned with rules of evidence but, in any event, the issues considered by the court were different. The first issue was whether there was a breach of article 4 of the European Convention on Human Rights (“ECHR”) (the anti-slavery provision) by reason of the way the Vietnamese applicants had been prosecuted for involvement in cannabis farming. The issue for the court arose from the difference of view taken by the CPS from that of the Competent Authority on the question of trafficking in a context where both applicants had originally pleaded guilty but subsequently sought to appeal: [113]. At [156] the court summarised the positive obligations that arise under article 4:

“It follows from the above that the general framework of positive obligations under Article 4 includes: (1) the duty to put in place a legislative and administrative framework to prohibit and punish trafficking; (2) the duty, in certain circumstances, to take operational measures to protect victims, or potential victims, of trafficking; and (3) a procedural obligation to investigate situations of potential trafficking. In general, the first two aspects of the positive obligations can be denoted as substantive, whereas the third aspect designates the States’ (positive) procedural obligation (see S.M. v. Croatia, cited above, § 306).”

65. It continued by emphasising the need for assessments to be made about the question whether someone has been trafficked and, in a passage to which we have already referred, said that a prosecuting authority must consider the conclusions that flowed from those assessments, that the prosecuting authority was not bound by them but needed a good reason to disagree [162]. The Strasbourg Court went on to hold that there had been a breach of the state’s positive obligations under article 4 in both cases before it. The critical feature was that the CPS had disagreed with the conclusion of the Competent Authority but for no substantial reason. The court went on to consider various aspects of article 6 and the overall fairness of the relevant proceedings and found them wanting on the factual circumstances that had developed.

Practitioners must not be deterred from exercising a defendant’s right to run a lawful defence under s45.

This judgement doesn’t affect the application of the law in appropriate circumstances, and indeed reminds the Crown of their positive obligations under Article 4 – to only prosecute those who are not a victim of modern-day slavery.