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England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> MK v R  EWCA Crim 667 (28 March 2018)
Cite as:  3 All ER 566,  WLR(D) 203,  EWCA Crim 667,  QB 86,  3 WLR 895,  2 Cr App R 14,  Crim LR 922
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ON APPEAL FROM THE CENTRAL CRIMINAL COURT
HIS HONOUR JUDGE LUCAS QC
AND ON APPEAL FROM WOOD GREEN CROWN COURT
MR RECORDER RAJAH QC
Strand, London, WC2A 2LL
B e f o r e :
THE RT HON THE LORD BURNETT OF MALDON
THE HON MRS JUSTICE ANDREWS DBE
THE HON MR JUSTICE MARTIN SPENCER
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|- and -
|PERSIDA GEGA (a.k.a. ANNA MAIONE)
|- and -
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
Crown Copyright ©
The Lord Burnett of Maldon:
The Modern Slavery Act 2015
"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."
"(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."
The ruling of the judges on this issue
(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
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  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 elements had a reverse burden;
iii) It would be very odd to interpret a provision aimed at furthering protection for trafficked individuals as more onerous than the existing common law defence of duress, to which it bears a close resemblance. That is so especially as in many cases of this nature both defences will be raised and depend on the same alleged facts, with the consequent difficulties for juries in applying a different test in respect of each defence;
iv) The judges' finding that the burden should rest on the defendant because she is best placed to identify the circumstances of her personal situation betrays a fundamental misunderstanding of the situation in which a victim of trafficking or slavery will find herself. It deprives victims of the protection that the section was designed to provide.
v) The reversal of the burden of proof is contrary to the clear intention of Parliament as expressed in Parliamentary debates.
The last of these points was not developed orally.
i) The judges below rightly held that it is for a defendant to raise the evidential burden that she has been subjected to trafficking, slavery or servitude, and that once raised, it falls to the prosecution to disprove such a claim to the criminal standard.
ii) If the prosecution cannot disprove that claim, then section 45 of the 2015 Act operates independently of any statute creating an offence. It does not comprise any essential element of an offence, but operates as an exception, exemption, excuse, proviso or qualification, providing a defence to defendants who are otherwise guilty of non-exempted offences. It therefore falls within the third category of statutory provisions identified by Lord Hope in Kebilene as placing a persuasive burden on the defendant.
iii) There is no analogy with duress, which is a much narrower defence and easier for the prosecution to disprove. Under section 45, there is no need to establish a threat of violence or any need for a belief on the part of the defendant that such threats would be carried out immediately or almost immediately if she did not do what she was told. There is no absurdity in placing a more onerous burden on the defendant who raises the defence under section 45, given that the statutory defence is far wider in scope and relates to a multitude of criminal offences of varying degrees of seriousness. The defendant is far better placed than the prosecution to establish the relevant elements.
iv) The reversal of the burden of proof would be consistent with the approach adopted in relation to the statutory defence under Section 31 of the Immigration and Asylum Act 1999 ("the 1999 Act") when raised as a defence to one or more offences under the Forgery and Counterfeiting Act 1981, which was considered in R v Makuwa  EWCA Crim 175,  2 Cr App R 11.
v) The scope of the rule in Pepper (Inspector of Taxes) v Hart  UKHL 2,  AC 593 relating to the circumstances in which the court can consider Parliamentary debates as an aid to construction of an ambiguous statute has been significantly limited by subsequent decisions. Even if it were legitimate for the court to consider the Parliamentary debates, they provide no assistance.
The authorities on reverse burdens of proof
"Throughout the web of the English Criminal Law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner's guilt subject to what I have already said as to the defence of insanity and subject also to any statutory exception… No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained."
"It is a defence for a refugee charged with an offence to which this section applies to show that, having come to the United Kingdom directly from a country where his life or freedom was threatened (within the meaning of the Refugee Convention), he
(a) Presented himself to the authorities in the United Kingdom without delay
(b) Showed good cause for his illegal entry or presence; and
(c) Made a claim for asylum as soon as was reasonably practicable after his arrival in the United Kingdom."
Section 31(7) provides that:
"If the Secretary of State has refused to grant a claim for asylum made by a person who claims that he has a defence under subsection (1), that person is to be taken not to be a refugee unless he shows that he is."
"I regard this last consideration as one of great importance, for surely Parliament can never lightly be taken to have intended to impose an onerous duty on a defendant to prove his innocence in a criminal case, and a court should be very slow to draw any such inference from the language of a statute."
We note that although Lord Griffiths refers to the difficulty in discharging the burden in relation to both parties, the difficulty has particular significance where it relates to a defendant because of the general principle of the "golden thread" (see Woolmington above) and, now, Art 6(2) ECHR.
The construction of Section 45
"if an accused is required to prove some fact on the balance of probabilities to avoid conviction, the provision violates the presumption of innocence because it permits a conviction in spite of a reasonable doubt in the mind of the trier of fact as to the guilt of the accused."
"Victims of trafficking in human beings should… be protected from prosecution or punishment for criminal activities such as the use of false documents, or offences under legislation on prostitution or immigration, that they have been compelled to commit as a direct consequence of being subject to trafficking. The aim of such protection is to safeguard the human rights of victims, to avoid further victimisation and to encourage them to act as witnesses in criminal proceedings against the perpetrators. This safeguard should not exclude prosecution or punishment for offences that a person has voluntarily committed or participated in."
"Member States shall ensure that, where the age of a person subject to trafficking in human beings is uncertain and there are reasons to believe that the person is a child, that person is presumed to be a child in order to receive immediate access to assistance, support and protection in accordance with Articles 14 and 15."
Article 15 specifies certain types of measures to be taken by Member States to protect child victims of trafficking in criminal investigations and proceedings, but they are likely to be of little avail if the child bears the onus of proving his or her age, let alone each element of a defence in such proceedings.
The Individual Appeals
R v MK (or D)
R v Gega (or Maione)