Admissibility of Conclusive Grounds Decisions and s 45 of the Modern Slavery Act 2015: Director of Public Prosecutions v M [2020] EWHC 3422 (Admin)

AuthorSean Mennim
Published date01 June 2021
Date01 June 2021
Subject MatterCase Notes
Case Note
Admissibility of Conclusive
Grounds Decisions and s 45
of the Modern Slavery
Act 2015
Director of Public Prosecutions v M [2020]
EWHC 3422 (Admin)
Admissibility, defences, evidential burden, expert evidence, trafficked victims
On 16 May 2019, the respondent (M), a 15-year-old boy with no history of offending, was at a KFC in
Tooting, an area of London to which he had no connection, along with two other boys (MP and KM) who
were known by police to be gang members and habitual knife carriers. When the group were searched by
police officers, M had five wraps of cocaine, two wraps of diamorphine (heroin) and a hunting knife in
his possession.
On 23 May 2019, M was referred to the National Referral Mechanism (‘NRM’) by Lewisham
Children’s Social Care. On 21 August 2019, the Single Competent Authority (‘SCA’) made a positive
Conclusive Grounds decision (‘CG decision’) that, on a balance of probabilities, M had been recruited,
harboured and transported for the purposes of criminal exploitation.
On 4 December 2019, M was tried at Wimbledon Youth Court for possession of a bladed article,
possession of a Class A drug (heroin) and possession of a Class A drug (cocaine).
At trial M adduced both the CGD itself and the reasons for the SCA’s decision, made upon receipt and
investigation of an NRM referral by M’s child social worker at Lambeth Social Services. The fact of the
decision was adduced by way of an admission and the reasons for it as an exhibit.
M relied on the two-limb statutory defence in s 45(4) MSA 2015, that: (i) he was a child who had done
the act as a direct consequence of having been a victim of slavery or relevant exploitation; and (ii) a
reasonable person in the same situation as the person and having his relevant characteristics would do
that act.
The statutory defence under s 45 MSA 2015 places an evidential burden on the defendant. In the
instant case, M did not give evidence in support of this defence and had made a ‘no comment’ interview
at the police station. The District Judge nevertheless acquitted M, finding that the evidence adduced (the
full minute of the SCA decision, the evidence of the police officers and the admitted facts) was sufficient
to satisfy the evidential burden.
The Applicant (‘DPP’) appealed to the High Court by way of case stated arguing that the District
Judge who acquitted the respondent had erred in relying on the SCA decision in criminal proceedings. M
submitted that the admissibility of the SCA decision did not arise in the appeal because it had been
admitted as a fact pursuant to s 10 of the Criminal Justice Act 1967 (CJA 1967) and that the circum-
stantial evidence was in any event sufficient to discharge the evidential burden which lay on M to
establish the statutory defence under s 45 MSA 2015.
The Journal of Criminal Law
2021, Vol. 85(3) 244–249
ªThe Author(s) 2021
Article reuse guidelines:
DOI: 10.1177/00220183211008680

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