MK v R
| Jurisdiction | England & Wales |
| Judge | The Lord Burnett of Maldon |
| Judgment Date | 28 March 2018 |
| Neutral Citation | [2018] EWCA Crim 667 |
| Court | Court of Appeal (Criminal Division) |
| Docket Number | Case Nos: 2017 03094, 03096 and 02942 |
| Date | 28 March 2018 |
[2018] EWCA Crim 667
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CENTRAL CRIMINAL COURT
HIS HONOUR JUDGE LUCAS QC
AND ON APPEAL FROM WOOD GREEN CROWN COURT
MR RECORDER RAJAH QC
Royal Courts of Justice
Strand, London, WC2A 2LL
THE LORD CHIEF JUSTICE OF ENGLAND AND WALES
THE RT HON THE Lord Burnett of Maldon
THE HON Mrs Justice Andrews DBE
and
THE HON Mr Justice Martin Spencer
Case Nos: 2017 03094, 03096 and 02942
Mr Amjad Malik QC (who did not appear in the Crown Court) and Mr Glenn Harris for the appellant MK
Mr Andreas O'Shea for the appellant Persida Gega
Mr John McGuinness QC and Mr Ben Douglas-Jones QC for the Respondent
Hearing date: 7 March 2018
The common issue raised in both these otherwise unrelated appeals is whether the legal (or persuasive) burden of proof rests on the defendant when a defence is raised under section 45 of the Modern Slavery Act 2015 (“the 2015 Act”), or whether the defendant bears only an evidential burden with the prosecution having to disprove to the criminal standard one or more of the elements of the defence. The applications for leave to appeal have been referred to the full court by the Registrar.
The Convictions
On 19 June 2017 in the Central Criminal Court, MK, who used the alias D, was convicted of two offences. First, conspiracy to supply a Class A drug (cocaine), contrary to section 1(1) of the Criminal Law Act 1977; and secondly, of being in possession of an identity document with improper intention, contrary to sections 4(1) and 4(2) of the Identity Documents Act 2010. On 26 June 2017 she was sentenced by HH Judge Lucas QC to 8 years' imprisonment on the offence of conspiracy and 5 months' imprisonment on the second count, to run concurrently. Her co-defendant, a man named AM, had pleaded guilty to the same offences at a much earlier stage. He received a sentence of 6 years and 9 months imprisonment on the count of conspiracy, with full credit for his early plea, and 5 months' imprisonment on the second count to run concurrently. MK seeks leave to appeal against her conviction and her sentence.
On 9 June 2017 in the Crown Court at Wood Green, Persida Gega, who used the alias Anna Maione, was convicted of a single count of possession of an identity document with improper intention. On the same date, she was sentenced by Mr Recorder Rajah QC to 15 months' imprisonment. Her expedited application for leave to appeal against that sentence was refused by this court on 19 July 2017. She seeks leave to appeal against her conviction.
In each of these cases, the applicant is an Albanian national who claimed to have been a victim of trafficking and who sought to rely on the statutory defence afforded to such victims under section 45 of the 2015 Act.
Section 45 of the 2015 Act provides:
“ 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.
(5) For the purposes of this section —
“Relevant characteristics” means age, sex and any physical or mental illness or disability
“Relevant exploitation” is exploitation (within the meaning of section 3) that is attributable to the exploited person being, or having been, a victim of human trafficking.
(6) In this section references to an act include an omission.
(7) Subsections (1) and (4) do not apply to an offence listed in Schedule 4.
(8) The Secretary of State may by regulations amend Schedule 4.”
Sections 1 to 3 of the 2015 Act set out what constitutes respectively slavery, servitude and forced or compulsory labour, human trafficking, and the meaning of “exploitation”. Section 1 provides that:
“(1) A person commits an offence if —
(a) The person holds another person in slavery or servitude and the circumstances are such that the person knows or ought to know that the other person is held in slavery or servitude, or
(b) The person requires another person to perform forced or compulsory labour and the circumstances are such that the person knows or ought to know that the other person is being required to perform forced or compulsory labour.
(2) In subsection (1) the references to holding a person in slavery or servitude or requiring a person to perform forced or compulsory labour are to be construed in accordance with Article 4 of the Human Rights Convention.”
By Section 2, human trafficking constitutes an offence if a person arranges or facilitates the travel of another person with a view to that other person being exploited. Section 3 defines “exploitation” as including circumstances where a person is the victim of behaviour which involves the commission of an offence under section 1, (section 3(2)(a)); or where something is done to or in respect of the person which involves the commission of an offence under Part 1 of the Sexual Offences Act 2003 (section 3(3)(a)(ii)); or where the person is subjected to force, threats or deception designed to induce him or her to provide services of any kind, to provide another person with benefits of any kind, or to enable another person to acquire benefits of any kind (section 3(5)).
Schedule 4 sets out those offences that are excluded from the defence under section 45. The long list of excluded offences includes murder, manslaughter, piracy, false imprisonment, kidnapping and perverting the course of justice, the most serious offences of violence under the Offences Against the Person Act 1861 (including offences under sections 18 and 20), sexual offences, offences under the Domestic Violence, Crime and Victims Act 2004, cruelty to children, female genital mutilation, certain firearms offences, robbery, burglary, blackmail, hostage-taking, hijacking and other offences endangering the safety of aircraft, offences under the Explosive Substances Act 1883, and terrorism offences.
Whilst Schedule 4 excludes many serious offences, including offences of violence, it does not exclude other serious offences which may result in the imposition of long sentences of imprisonment on a convicted defendant, such as the supply of, or conspiracy to supply, Class A drugs, or their importation.
The ruling of the judges on this issue
Following written and oral submissions, HH Judge Lucas QC gave a careful and detailed written ruling in MK's case, a copy of which was provided to Recorder Rajah QC in Ms Gega's case. The Recorder considered various arguments that had not been raised on behalf of MK but came to the same conclusion as Judge Lucas QC.
The effect of the rulings may be summarised in this way:
(i) The defendant bears an evidential burden to raise the issue whether she was a victim of trafficking or slavery;
(ii) Having successfully done so, it is for the prosecution to prove, beyond reasonable doubt, that she was not;
(iii) If the prosecution succeeds in that, the section 45 defence will not avail the defendant;
(iv) However, if the prosecution fails in this respect, the legal or persuasive burden of proof in respect of the other elements of the defence falls on the defendant. Therefore, if the defendant is over 18 years old, she must prove on the balance of probabilities:
(a) That she was compelled to commit the offence;
(b) That the compulsion was as a direct consequence of her being or having been a victim of slavery or relevant exploitation; and
(c) That a reasonable person in the same situation as her and having her relevant characteristics would have no realistic alternative to doing the act which constitutes the offence.
The legal submissions
The applicants submit that the trial judge in each case misdirected the jury as to the burden and standard of proof where a defendant raises a defence under section 45 of the 2015 Act. The Act itself is silent on the question of who bears the burden of proof. They contend that:
i) Section 45 of the 2015 Act does not fall within the third category of provisions identified by Lord Hope in R v DPP ex parte Kebilene [2000] 2 AC 326 at 379F-H as reversing the burden of proof. Properly construed, it does not relate to an exemption or proviso which the accused must establish if he wishes to avoid conviction but is not an essential element of the offence. It absolves the defendant of criminal responsibility;
ii) There is no justification for a finding that Parliament intended that one element of the statutory defence (i.e. whether the defendant was a victim of trafficking) was the subject of the usual legal burden, but that all the other...
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