Modern Day Slavery – Where Are We Now?

Modern Day Slavery has had a fast-paced evolution. Recognition of Modern Day Slavery and Human Trafficking is an international obligation that the UK must comply with. Government should ensure as much as possible that Victims of Trafficking should be identified and protected.

The Single Competent Authority is the expert body endowed with the power to decide whether the Government will treat a person as a Victim of Trafficking. Help is available for those with a positive Conclusive Grounds decision. Often Victims of Trafficking find it difficult to access this support and therefore changes have been made. A Modern Slavery Victim Care Contract should be offered to adult Victims of Trafficking who are given a positive Conclusive Grounds Decision after 4th January 2021, which should assess their risk and determine whether they need to be accommodated or referred to an Outreach Service.

If they consent, Victims should receive a support worker to help access this support and bridge the gap to other services. This support could be medical or financial; help with accommodation, translation or legal aid. The Salvation Army’s Modern Slavery Victim Care Contract team can be contacted directly on 0800 808 3733 or via mstsupport@salvationarmy.org.uk for more information. Similarly for child victims of trafficking the programme for Independent Child Trafficking Guardians (ICGT) is being rolled out across the country and is currently available in places including Croydon.

s45 Modern Day Slavery Act provides that Victims of Trafficking should not be prosecuted for crimes that they have committed as a consequence of being trafficked in the case of children or in the case of adults as a result of compulsion and when someone else with their characteristics would have reasonably done the same. It is not available for offences involving sex or serious violence.

Brecani v R. [2021] EWCA Crim 731

The decision of the Single Competent Authority and its use in criminal trials has been considered in the High Court. In DPP v M 2020 the Admin Court stated that the report, called the Conclusive Grounds, was admissible in criminal trials however, this was then overturned in the case of Brecani [2021] EWCA Crim 731. The Court of Appeal in the latter case stated that as the report does not comply with CPR 19.4 by stating the expertise of the decision maker it should not be admitted as expert evidence. Further, doubt was placed on the expertise of the defence expert witnesses in light of the Crown’s evidence that contradicted the defendant’s account. The issue is whether the topic is within the ordinary knowledge of the jury.

One might think that the workings of an organised crime ring or the psychological impact of being trafficked for years may well be outside the knowledge of the jury. The role of the SCA is important, it is the independent body with access to confidential information and intelligence, especially when it is accepted that many professionals fail to spot the signs of trafficking.

The decision in Brecani should not detract from the duty of all professionals including solicitors to try to identify and protect victims of trafficking. The referral to the Single Competent Authority ensures that the crime of the trafficking is recorded and a police officer is then allocated to investigate that crime. Many professionals contribute to the investigation who may well unearth relevant evidence. The Crown have a duty to consider whether it is in the Public Interest to prosecute in all cases but especially if there is clear evidence of Modern Day Slavery or duress. The Crown’s failure to cooperate with an investigation into whether Modern Day Slavery has occurred or to comply with their disclosure obligations as a result of this defence being raised may be an Abuse of Process.

Ultimately, part of the criticism in Brecani of the admissibility of the SCA decision was that the decision maker’s expertise was unknown. As the SCA and their staff gain experience, their expertise may no longer be an issue.

If you wish to obtain advice on Modern Day Slavery, in the context of the criminal justice system, please call us on 0330 822 3451 to speak to one of our crime experts.