The Trafficking Defence in Criminal Law: Nexus and Compulsion
| Published date | 01 June 2023 |
| DOI | http://doi.org/10.1177/00220183231151920 |
| Author | Stephen Knight |
| Date | 01 June 2023 |
The Trafficking Defence in Criminal
Law: Nexus and Compulsion
Stephen Knight
Centre for Socio-Legal Studies, Oxford University, Oxford, UK
Abstract
The United Kingdom has accepted international obligations under the Palermo Protocol, the
Council of Europe Trafficking Convention, and the EU Trafficking Directive, in relation to the
non-prosecution and non-punishment of victims of trafficking for offences they commit which
are linked to their trafficking. The obligations are given effect by the Crown Prosecution
Service (CPS) discretion not to prosecute, the abuse of process jurisdiction, the common
law defence of duress, and the statutory defences under s 45 Modern Slavery Act 2015. In rela-
tion to adult victims of trafficking, in each case the question arises of whether they were com-
pelled to commit the offence with which they are charged. This article shows how the English
& Welsh courts and the CPS have had insufficient regard to the United Kingdom’s international
obligations in interpreting ‘compulsion’, and that improvements are necessary to prevent
breaches of the United Kingdom’s obligations and the re-traumatisation of victims of
trafficking.
Keywords
Compulsion, forced labour, modern slavery, nexus, trafficking
Introduction
The United Kingdom’s international legal obligations require that it allows for the non-prosecution and
non-punishment of certain victims of trafficking (VoTs) when they are accused of criminal offences. The
prosecution of VoTs, often in violation of these international legal obligations, happens all too often when
victims are trafficked for the purposes of exploitation through forced criminality, or when they commit
offences to escape their traffickers.
The United Kingdom seeks to give effect to its international legal obligations through (i) prosecutorial
discretion not to prosecute, in line with the Crown Prosecution Service (CPS) guidance on Modern
Slavery, Human Trafficking and Smuggling; (ii) the abuse of process jurisdiction; (iii) the defence of
duress; and (iv) statutory defences to some offences, contained in s 45 Modern Slavery Act 2015. In
order to benefit from each of these ways by which the United Kingdom gives effect to its international
obligations, a defendant may need to prove a nexus between their offending and their status as a VoT. For
Corresponding author:
Stephen Knight, Centre for Socio-Legal Studies, Oxford University, Oxford, UK.
E-mail: stephen.knight@wolfson.ox.ac.uk
Article
The Journal of Criminal Law
2023, Vol. 87(3) 192–206
© The Author(s) 2023
Article reuse guidelines:
sagepub.com/journals-permissions
DOI: 10.1177/00220183231151920
journals.sagepub.com/home/clj
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