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Victims of Modern Slavery and Human Trafficking: Recent Legal Updates and Guidance on Appeals against Criminal Convictions

This week’s blog is brought to you by Grace Atkinson – pupil to Frazer McDermott


The number of potential modern slavery victims referred to the National Referral Mechanism (NRM) has risen from 2,340 in 2014 to over 10,000 in 2020. Labour and criminal exploitation are the most prevalent forms of modern slavery identified in the UK (2021 UK Annual Report on Modern Slavery). The North East in particular has seen a large increase in the number of potential victims, causing the charity Changing Lives to launch a 3 year project aimed at tackling modern slavery across the Northumbria area ( This post will examine two recent cases concerning the prosecution of victims of trafficking (VoT) and modern slavery.

S45 of The Modern Slavery Act 2015

Section 45 of The Modern Slavery Act 2015 provides a defence to an individual who pleads that they have committed a criminal offence because they were compelled to do it, and that compulsion is attributable to slavery or to relevant exploitation. If the defendant is an adult, then the jury may also consider whether 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. It should be noted that the s45 defence does not apply to a number of offences listed at Schedule 4 of the Act.

R v Brecani [2021] EWCA Crim 731

By way of some background, a conclusive grounds decision is the decision made by the Competent Authority (the decision maker of the NRM) that an individual is definitely a victim of modern slavery.

In Brecani, the High Court overturned the decision in DPP v M [2020] EWCH 3422 (Admin) which held that a conclusive grounds decision was admissible as evidence in criminal proceedings. They stated that:

case workers in the Competent Authority cannot be considered experts in human trafficking or modern slavery and as such cannot give opinion evidence in a trial on the question whether an individual was trafficked or exploited” [54].

Therefore, the question of whether an individual is a VoT is a matter for the jury alone; the evaluation of such evidence being deemed to be within their ordinary knowledge [40].

The decision was somewhat controversial, with many questioning to what extent details of the organised crime of human trafficking and modern slavery can really be said to be within the knowledge of a jury. Whilst the judgment did not at all prevent individuals from running the s45 defence, there was some concern that the CPS may now see less of a need to engage with the NRM process fully.

R v AAD, AAH and AAI [2022] EWCA Crim 106

The recent Court of Appeal case R v AAD, AAH and AAI upheld the decision in Brecani. It did, however, provide some further guidance as to how VoT, who are confirmed to be such victims after conviction, may appeal against criminal convictions. The judgment confirmed the availability of the abuse of process jurisdiction to victims issued with a conclusive grounds decision.

Abuse of process is “a use of the court process for a purpose or in a way which is significantly different from the ordinary and proper use of the court process” (AG v Barker [2000] EWCH 453 (Admin)). This includes the situation where it was not just or in the public interest to try the defendant in the first place.

The court made clear that the CPS can prosecute a VoT despite being aware of a positive conclusive grounds decision. But they did go on to ask the following question:

what if the CPS has failed unjustifiably to take into account the CPS Guidance… or had no rational basis for departing from a favourable conclusive grounds decision?” [120].

The ECtHR’s ruling in VCL & AN v UK [77587/12 and 74603/12] was considered by the Court of Appeal [129]. Here, the court accepted that whilst the prosecution of a VoT was not prohibited,

the prosecution of victims… may in certain circumstances, be at odds with the state’s duty to take operational measures to protect them” [159].

They held that it is possible for proceedings to be stayed in such an instance. The Court of Appeal did not depart from this decision and held that where it is thought the CPS should not have prosecuted in the first place, a VoT may appeal against a conviction that arises from that prosecution. The process would, in practice, be confined to rare instances where [120]:

  • The CPS had failed to have regard to the CPS guidance, or
  • There was a wholesale lack of any rational basis to depart from a SCA decision.

Where the CPS has followed the proper process, with regard to the guidance of the SCA, the Court of Appeal stated that:

it would be fruitless for a defendant to seek to avoid prosecution by alleging… status as a VoT… or by disputing the asserted lack of nexus between that status and the criminality in question. It will be fruitless just because those matters will be jury matters…” [118].

What this judgment does provide is the effect of reaffirming the clear guidance that the CPS must always co-operate and engage with the NRM process, investigating any claims of modern slavery fully when considering whether or not to prosecute.





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