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A defence to growing cannabis?- Section 45 of the Modern Slavery Act 2015 and the admissibility of the SCA finding by David McGonigal

Wed 24th Mar 2021

A defence to growing cannabis?

Section 45 of the Modern Slavery Act 2015 and the admissibility of the SCA finding.

The defence, under section 45 of the Modern Slavery Act 2015, afforded to those who have been trafficked into the UK and compelled to work in cannabis farms, is regularly raised in the courts. Such a defence might be bolstered by a ‘conclusive finding’ by the Single Competent Authority (SCA) under the National Referral Mechanism (NRM) that the defendant ‘on the balance of probabilities….is the victim of modern slavery in the UK during unknown period for the specific purposes of forced criminality.’ Is such a finding admissible?

Section 45 MSA 2015 reads:

45   Defence for slavery or trafficking victims who commit an offence

(1)A person is not guilty of an offence if—

(a)the person is aged 18 or over when the person does the act which constitutes the offence,

(b)the person does that act because the person is compelled to do it,

(c)the compulsion is attributable to slavery or to relevant exploitation, and

(d)a reasonable person in the same situation as the person and having the person’s relevant characteristics would have no realistic alternative to doing that act.

(2)A person may be compelled to do something by another person or by the person’s circumstances.

(3)Compulsion is attributable to slavery or to relevant exploitation only if—

(a)it is, or is part of, conduct which constitutes an offence under section 1 or conduct which constitutes relevant exploitation, or

(b)it is a direct consequence of a person being, or having been, a victim of slavery or a victim of relevant exploitation.

(4)A person is not guilty of an offence if—

(a)the person is under the age of 18 when the person does the act which constitutes the offence,

(b)the person does that act as a direct consequence of the person being, or having been, a victim of slavery or a victim of relevant exploitation, and

(c)a reasonable person in the same situation as the person and having the person’s relevant characteristics would do that act.

[Many offences are excluded from the operation of this section, they are set out in schedule 4 to the Act, cultivation of cannabis is not excluded.
It is important to note the distinction between those over 18 (s.45 (1)) and those under (s.45 (4))– those under do not have to be compelled to carry out the work.
The burden is on the prosecution to make a jury sure a person does not fall within this section MK [2018]EWCA Crim 667.]

 

The usual case before the courts involves a cannabis farm in a converted house or disused factory. The police, by chance, through neighbours or intelligence, raid the building and the gardeners, if unable to run quick enough, are arrested. Invariably they are illegal immigrants. When interviewed they tell the police, often in a prepared statement, that they have been trafficked from their country of birth and they owe thousands of pounds which they are being forced to pay off by tending cannabis plants. They indicate they or their families back home have been threatened.

Those apprehended then apply or are referred to the NRM, a framework for identifying and referring potential victims of modern slavery and ensuring they receive the appropriate support. The SCA then considers each case. They collate evidence from many sources and make an initial decision called a ‘reasonable grounds decision’. If this is in the applicant’s favour further investigations are carried out and a ‘conclusive grounds decision’ is reached ‘on the balance of probabilities.

The information forming the basis of the decision will included witness statements, information from the police, Home Office records, evidence from the authorities from the relevant countries and from other authorities who may have information on the applicant.

On reading sections s.45 (1) (b) and (c) one can see the value to the defence of a positive decision that the defendant “is the victim of modern slavery in the UK during unknown period for the specific purposes of forced criminality.” It is difficult for the prosecution, in effect, to make a jury sure such a finding was wrong, even allowing for the fact it was made ‘on the balance of probabilities.

Presently there is no authority from the Court of Appeal on this issue of admissibility. There is authority from the Divisional Court in DPP  v M [2020] EWHC 3422 (Admin) that the decision is admissible.

The question posed for the court was:

“in the circumstances of this case, where the Respondent did not give evidence and did not provide an explanation in interview, had the Respondent sufficiently discharged the evidential burden in respect of Section 45 (4) (b) and (c) of the Modern Slavery Act 2015?”

The case involved the proper approach of a District Judge to the criteria for a section 45 defence and whether the District Judge could take into account the finding of the SCA (in the defendant’s favour) – albeit that was not directly the question asked of the court.

In that case Lady Justice Simler set out the history of the NRM and described the training for those who make the decision (paragraphs 25 – 27). In that case the court found that the decision makers could be described as experts:

as the factors relevant to trafficking or exploitation are not necessarily within the knowledge of the ordinary person. Expert evidence on which factors are relevant must be admissible. Moreover, assessment of the significance of a given set of factors present in a particular case may properly be the subject of expert evidence. A person with the necessary expertise can give context to the factors by reference to their wider experience of other cases” (paragraphs 45-46).

 

The District Judge had also taken into account the reasoning of the SCA which was set out in a minute (paragraph 11). Lady Justice Simler said:

“We consider that the District Judge was entitled to receive and admit the findings of the SCA as evidence that M had been recruited and harboured such that he had been trafficked within the meaning of the 2015 Act and that he was a victim of criminal exploitation. The SCA decision maker had expertise in relation to those issues” (paragraph 54).

 

In my view the following are some of the issues which would arise in a criminal trial where the defence seek to adduce the decision:

i) there is no statute or rule of evidence making a decision of the SCA admissible in a criminal trial. It is therefore subject to the normal rules governing the admissibility of evidence;

ii)if admitted in evidence the finding of the SCA would usurp the jury’s responsibility in considering two of the 4 criteria. Parliament cannot have intended a decision of the SCA to take away from a jury’s consideration the important issues of whether the defendant was trafficked and for what purpose. Lord Burnett of Maldon in (R v DS [2020] EWCA Crim 285) said at paragraph 40:

“in our judgment, the result of …..section 45 statutory defence is that the responsibility for deciding the facts relevant to the status of DS as a Victim of Trafficking is unquestionably that of the jury.”

iii) in DPP v M (above) the prosecution did not appear to be challenging the SCA decision or at least the basis on which it was made (paragraph 44). Where the prosecution does challenge the decision as being correct, as they are entitled to do R v DS (above – paragraph 42), the decision maker would presumably, have to give evidence and be cross examined. However, some of the information taken into account by the decision maker would be likely to be inadmissible hearsay;

iv) is the decision maker really an expert? Can the admissible facts and information on which the decision maker relies not be put before a jury for their judgement? Clearly Parliament thought they could be, otherwise those particular criteria would not have been inserted into the Act.

v) if a finding was not in the applicant’s favour, might the prosecution apply to adduce the result of the application or the evidence on which it was based?

The Court of Appeal has been careful not to indicate that a SCA decision is or is not admissible, not having been directly asked to rule on the issue. However, some dicta might indicate it would not be admissible:

i) In R v GS [2018] EWCA Crim 1824 Lord Justice Gross, when referring to decisions made by a First Tier Tribunal and by a Competent Authority in relation to a victim of trafficking said (paragraph 69):

no question arises as to the admissibility of these materials as such. That is not the case as to their admissibility at trial, where, to put it no higher, the admissibility of both the decisions in question and the underlying reasoning must be regarded as unlikely on what may be broadly described as Hollington v Hewthorn [1943] KB 587 grounds.”

 

ii) Lord Justice Flaux in BTT v The Queen [2021] EWCA Crim 4 while referring to R v GS said “However like the court in that case we are not to be taken as determining that the decisions of the Competent Authority or the Upper Tribunal would be admissible in any trial….”

iii) In R v DS (above) the court was concerned with the decision of the SCA and the court specifically did not think it right to express any view of whether the decision might be admissible in a trial (paragraph 43).

It will not be long before the Court of Appeal has a chance to determine the issue. However even if they find the SCA’s decision inadmissible, the prosecution still must make a jury sure the illegal gardener was not trafficked and working under compulsion. Often the only evidence available will be the circumstances in which the defendant was found. Relevant matters might be whether he had freedom to leave the house and return, the possession of cash, the availability of a phone and first response to the police. As against these features a jury’s concept of a trafficker is someone who works outside the law, threatens people and demands money from innocent and vulnerable people. The inadmissibility of the SCA’s decision may make little difference to a jury’s verdict!

David McGonigal
Barrister
Broadway House Chambers
24th March 2021

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