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Section 45 of the Modern Slavery Act 2015 provides a defence for human trafficking victims charged with some criminal offences. According to section 45(1)(b), the person who committed the offence must have been ‘compelled’ to do so, in order for the defence to succeed. It is not immediately obvious whether the meaning of ‘compelled’ is limited to circumstances giving rise to the English common law defence of duress, or whether it is more broadly construed.
Although one of the leading cases on duress in English law appears to treat the defence and compulsion as synonymous[1], it is undesirable for compulsion in the context of trafficking victims in section 45(1)(b) to be limited to the long-standing and general criminal law defence of duress. It is respectfully suggested that academics depart from the use of the word ‘duress’ in the current literature on non-prosecution of trafficking victims since section 45 ‘replaces’[2] the three-pronged mechanism for exonerating trafficking victims that was formerly available.[3]
Why should a distinction be drawn between the general criminal law defence of duress and human trafficking law’s compulsion requirement?
The general duress defence has multiple requirements that are inapposite for cases involving victims of trafficking who are charged with criminal offences. The requirements include showing a threat to inflict death or serious bodily harm has been made[4], a sufficient degree of immediacy (imminence appears to be insufficient[5]) and that the threat was unavoidable (no viable alternatives[6]). The circumstances in which trafficking victims have committed offences may not have involved an immediate threat of death or serious bodily harm.
The case of R. v N (trafficking) compared to R. v Hasan (duress proper)
For instance, in R. v N[7], the defendant had been convicted of production of a controlled drug in a cannabis factory on residential premises. After he had served his sentence, the UK Borders Agency found that he had been trafficked from Vietnam.[8] The Court of Appeal, hearing the appeal against conviction, noted that on one occasion the defendant left the factory for three days and while absent, made a telephone call to the man who had offered him the job at the cannabis factory, informing him that he no longer wished to work there. The recruiter threatened the defendant to the effect that if he stopped working, he might be killed.[9] Such a threat appears far less immediate than that in the leading duress case of R. v Hasan, where the defendant claimed in defence to aggravated burglary that he had been ambushed by two men with a reputation for violence and was demanded to burgle a house; one of the men said he had a gun and the other said that if the defendant did not carry out the burglary, he and his family would be harmed.[10] As trafficking victims may be ordered by their traffickers to carry out criminal offences, such as theft or the production of controlled drugs, without direct supervision, the legal requirement of an immediate threat of death or serious bodily harm in order to invoke the defence appears inappropriate.
Signs that ‘compelled’ will be construed more broadly than in the general criminal law defence of duress
Fortunately, it appears likely that the word ‘compelled’ in section 45(1)(b) will be construed more broadly than the circumstances giving rise to the defence of duress, for two reasons. First, in R. v LM[11], the Court of Appeal accepted that even if the defence of duress was not made out, there may nonetheless be public policy grounds against prosecution. The fact that the former three-pronged mechanism for the non-prosecution of trafficking victims was broader than the defence of duress (which constitutes only the first prong) suggests that section 45 will be interpreted to reflect this.
Second, the same Court of Appeal recognised that the meaning of the term ‘compelled’ in Article 26 of the Trafficking Convention was indeed broader than the English common law defence of duress. [12] Although section 45 and its Explanatory Notes do not elaborate on the meaning of ‘compelled’, it is hoped that on the basis of the foregoing, it shall be accorded a broad meaning in the courts.
What about ‘voluntary’ victims of trafficking?
A further important distinction between the section 45 defence and the pre-existing defence of duress should be noted: in R. v Hasan, Lord Bingham asserted that it is the policy of the law to discourage association with known criminals; if a person voluntarily becomes or remains associated with others engaged in criminal activity where he knows, or ought to know, that he may be the subject of compulsion, he cannot rely on the defence of duress.[13]
If this policy is to apply to a trafficking situation, the term ‘voluntarily’ must be read in light of Article 4(b) of the Trafficking Convention, which provides that the consent of a victim of trafficking shall be irrelevant where any of the means set forth in subparagraph (a) [which includes threat or use of force, abduction, fraud, deception etc.] have been used. Thus, a Romanian male who was offered employment in the UK as an interpreter through a contact in Romania, who was then made to commit theft on a daily basis in busy areas of London, cannot be said to have voluntarily become associated with the traffickers.[14] Similarly, it would be unreasonable if the defendant in R. v N could not rely on duress, when he allegedly realised only after ten days of working in the cannabis factories that the plants were cannabis and not herbal medicine.[15]
What if the defendant was voluntarily smuggled into the UK in the hopes of achieving a better life?
Similarly, as the Court of Appeal has properly recognised, protection against non-prosecution extends to individuals who have not been trafficked into the country but have become victims of trafficking after their arrival.[16] Where individuals are lured into the UK on the promise of achieving better life prospects[17], only to be subjected to forced labour constituting a criminal offence thereafter, it must still be considered whether the individual was ‘compelled’ to act. This broad reading of section 45(1)(b) constitutes an improvement to the former guidance for prosecutors which involved a ‘three-stage exercise of judgment: (1) is there reason to believe that the person has been trafficked? If so, then (2) if there is clear evidence of a credible common law defence the case will be discontinued in the ordinary way on evidential grounds, but, importantly, (3) even where there is not, but the offence may have been committed as a result of compulsion arising from the trafficking, prosecutors should consider whether the public interest lies in proceeding to prosecute or not.’[18] As the first stage directs prosecutors to consider the question of whether the person has been trafficked, the Guidance may distract prosecutors from addressing the question of whether the individual was in servitude even if he was voluntarily ‘smuggled’ and not trafficked.[19]
The above commentary contains updated extracts from a prize-winning essay that I wrote in 2015, before the Act (which was then a bill in Parliament) was in force.
[1] Para. 17, R. v Hasan (2005) 2 A.C. 467 per Lord Bingham
[2] See the blog post on the law prior to the Modern Slavery Act
[3] Carter and Chandran, for example, argue that where there are circumstances giving rise to reasonable suspicion that an individual is a victim of trafficking, this will ‘confirm duress’, which should inform a prosecutorial decision to discontinue proceedings (p. 415, in the Human Trafficking Handbook: Recognising Trafficking and Modern-Day Slavery in the UK by Parosha Chandran); Bowen writes of the ‘defence of duress’ (p. 395)
[4] Simester and Sullivan’s Criminal Law – Fifth Edition, at p. 741
[5] Ibid., p. 742
[6] R. v Sharp (1987) 1 Q.B. 353, per Lord Lane CJ at para. 857.
[8] Ibid., at para. 80
[9] Ibid., at para. 39.
[10] Ibid.
[11] At para. 14.
[12] Ibid. at para. 11
[13] R. v Hasan, at para. 38
[14] Serious Crime Directorate 9 – The Work of Human Exploitation and Organised Crime Command, Richard Martin and Nick Sumner. In the Human Trafficking Handbook.
[15] R. v N (2012) Q.B. 379, at para. 44
[16] R. v LM (2010) EWCA Crim 2327, at para. 87
[17] R. v N, at para. 41.
[18] R. v LM, at para. 10
[19] This unfortunate situation arose in R. v N. See para. 85, although the Court of Appeal dismissed the appeal against conviction on the facts of the case (at para. 91).
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