Court of Appeal

Published date01 August 2018
Date01 August 2018
DOIhttp://doi.org/10.1177/0022018318788949
Subject MatterCase Notes
Case Note
Court of Appeal
Burden of Proof in Trafficking and Modern
Slavery Cases: R v MK; R v Gega [2018]
Crim 667
The present conjoined appeal engaged the following question: does the legal (persuasive) burden of
proof rest on a defendant (D) when a defence is raised under s. 45 of the Modern Slavery Act 2015 (MSA
2015) or does an evidential burden apply with the prosecution required to disprove one or more elements
of the defence to the usual criminal standard?
On 19 June 2017, MK was convicted of two offences: conspiracy to supply a Class A drug (cocaine),
contrary to the Criminal Law Act 1977, s. 1(1) and being in possession of an identity document with
improper intention, contrary to ss 4(1) and 4(2) of the Identity Documents Act 2010 (IDA 2010). MK
was sentenced to terms of eight years’ and five months’ imprisonment for the respective offences, to be
served concurrently.
On 9 June 2017, Persida Gega (PG), using the alias Anna Maione, was convicted of possession of a
false identity document with improper intention, contrary to the aforementioned provisions of the IDA
2010. PG was sentenced to 15 months’ imprisonment.
At both trials, the applicants stated they were trafficking victims and attempted to rely on s. 45 of the
MSA 2015.
Section 45 introduced two different defences for trafficking victims over and under the age of 18 (s.
45(1) and (4)). The defence for adults provides that a person is not guilty of an offence if: they
performed the act because they were compelled to do so (s. 45(1)(a-b)); the compulsion was attributable
to slavery or relevant exploitation (s. 45(1)(c)); and a reasonable person in the same situation and sharing
the person’s relevant characteristics would have no realistic alternative to doing the act (s. 45(1)(d)).
Compulsion may arise from a third party or from circumstances (s. 45(2)) and is attributable to slavery/
exploitation if it is a direct consequence of the person being, or having been, a victim of slavery or
relevant exploitation (s. 45(3)). Exploitation is defined in s. 3 of the MSA 2015 and includes, inter alia,
slavery, servitude, forced or compulsory labour and human trafficking; ss 1 and 2 define those terms,
respectively. Relevant characteristics include age, sex and any physical or mental illness or disability (s.
45(5)). Schedule 4 of the MSA 2015 excludes 140 offences from the parameters of the defence but not
those with which MK and PG were convicted (s. 45(7)). The defence for those under the age of 18 omits
the compulsion and realistic alternative requirements (s. 45(4)).
At first instance, HH Judge Lucas QC (in MK) and Recorder Rajah QC (in PG) directed the jury in
accordance with current Crown Prosecution Service (CPS) guidelines. The guidelines state that when a
defence is raised under s. 45 of the MSA 2015, D bears an evidential burden of asserting that they were a
victim of trafficking/slavery. Having successfully done so, it is for the prosecution to prove, beyond
reasonable doubt, that D was not. If the prosecution succeeds, s. 45 will not avail D. If the prosecution
fails, the legal (persuasive) burden of proof regarding the remaining elements of the defence will fall to
The Journal of Criminal Law
2018, Vol. 82(4) 282–286
ªThe Author(s) 2018
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DOI: 10.1177/0022018318788949
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