Modern Slavery Act - a defence for drug dealing and other crimes.

When the terms ‘modern slavery’ and ‘human trafficking’ for most it will conjure up images of people being trafficked into the country by Gangmasters to work in the sex industry or being forced to work in a factory for long hours often in a dangerous environment and living in terrible conditions.

Here our Jonathan Wall explains the Modern Slavery Act and how this relatively new law is being used to prosecute drugs gangs but also how drug runners and dealers may be found not guilty or not prosecuted at all due to the statutory defence in circumstances where it is deemed that the individual has been ‘exploited’.

Human trafficking and what has been termed as ‘modern slavery’ has been a concern in many European countries which has led to UK parliament bringing the Modern Slavery Act 2015 into effect. The act sets out a number of very serious offences which include

  • Section 1 - Slavery, servitude and forced or compulsory labour – maximum sentence life imprisonment.
  • Section 2 – Human trafficking – Maximum sentence 10 years imprisonment.
  • Section 4 – committing any (other) offence with the intention of human trafficking – maximum sentence life imprisonment.

In addition to the penalties imposed for the conviction, for any of the offences above it is also likely that the defendant will be the subject of confiscation proceedings under the Proceeds of Crime Act meaning that a thorough financial investigation is conducted with a view to confiscation and asset recovery in relation to any asset held or controlled by the defendant where there has been a financial benefit. In my experience I have never come across a drug supply offence case where the court has determined that there was no financial benefit.

It was reported recently that the act was also used to prosecute three defendants Wabela, Alford and Keremera, who had already been convicted of conspiracy to supply drugs. Up until May 2019 the act had only ever been used to prosecute those who were brought or trafficked from foreign countries in order to work, usually in the sex industry.

The case against Wabela, Alford and Keremera, was that they had recruited, groomed and trafficked 5 children and a man of 19 years or age who suffered with autism in what is now commonly known as a ‘county lines’ drugs operation.

What is county lines drug dealing?

The term is used where drugs gangs usually from cities travel across ‘county lines’ into another town or city in order to deal in drugs. The National Crime Agency (NCA) says that they often use tactics such as “violence to drive out local dealers and exploiting children and vulnerable people”. As the gang are based in a different city to the drugs user or customer so ‘drug runners’ are used to move drugs or cash from one area to another and to distribute drugs and collect payments from addicts.

The Wabela and others case was that they controlled their travel by instructing them exploited individuals to travel to Portsmouth from London in order to deliver drugs and harboured them in the homes of drugs customers, restricted their movements and gave orders via mobile phone who to supply drugs and where to deliver them.

Defences in drug dealing and supply prosecutions and other offences

Defendants have always been able to rely on a defence of duress in circumstances where they have been compelled to commit an unlawful act because they were in immediate fear of serious harm or their life and where a person with a reasonable mind would have acted in the same way.

This act now provides a defence in circumstances where the individual has been the subject of ‘exploitation’ thereby decreases what needs to be found by a court by way of adverse treatment of the defendant in order to find him or her not guilty.

Save for the exceptions below, the defence is available for a number of offences and we are aware that there are many defendants who have raised this defence and have either not been charged or have subsequently been found not guilty in relation to various different offences.

What is the defence under S45 Modern Slavery Act 2015?

The defence is easier to establish for children rather than adults as clearly they are more susceptible to grooming and exploitation. The act requires them to demonstrate that they committed the offence as a result of exploitation or slavery and a reasonable person in the same situation would have committed the offence. What is an important factor is that the reasonable person test must take into account the defendants age and their ‘relevant characteristics’. So the fact that a child has learning difficulties or some other mental health impairment will be an important matter for the jury to consider.

For adults over the age of 18 years the defence is slightly more difficult to establish as it also requires that the defendant committed the offence because he or she were compelled to do so.

Once a defendant raises this defence, the burden is then on the prosecution to prove beyond reasonable doubt that the defendant did not:

  1. Commit the offence as a result of exploitation or slavery
  2. A reasonable person would not have committed the offence, and;

In the case of an adult the prosecution would also have to prove that they were not compelled to do so.

What is a relevant characteristic?

Relevant characteristic is defined in Section 45(5) of the act as ‘age, sex and any physical or mental illness or disability’. So learning disabilities, low IQ or even conditions such as ADHD or autism may be relevant to the offence, particularly where the subject suffers symptoms such as impulsiveness and poor planning. Foetal Alcohol Spectrum Disorder (FASD) is a condition that many people have but are yet to be diagnosed with and has symptoms which would be significant as many sufferers are highly suggestible and have real difficulties in recognising the consequences of their actions meaning that they are often easier to coerce.

When can a defence under S45 Modern Slavery Act 2015 not be used?

As in the defence of duress there are restrictions on the offences that the defence is available for, for example it cannot be used in offences such as murder, manslaughter, inflicting grievous bodily harm or firearms offences. A full list of the offences is contained within Schedule 4.

What’s the definition of exploitation?

Exploitation is defined within Section 3 of the act and there are many ways that parliament deemed that a person is said to have been exploited, namely if one or more of the following circumstances applies:

1. They are the victim of slavery, servitude and forced or compulsory labour.

2. They are the victim of behaviour which would involve the commission of an offence in England in Wales.

3. Something is done to or in respect of a person which involves the commission of a sexual offence

4. The person is encouraged, required or expected to do anything which is an offence contrary to section 32 or 33 of the Human Tissue Act 2004 for example female genital mutilation.

5. The person is subjected to force, threats or deception designed to induce him or her to:

a. Provide services

b. Provide benefits, or;

c. Enable another person to acquire benefits of any kind.

6. Another person uses or attempts to use the person for a purpose of either a, b or c above, having chosen him or her for that purpose on the grounds that—

a) he or she is a child, is mentally or physically ill or disabled, or has a family relationship with a particular person, and

b) an adult, or a person without the illness, disability, or family relationship, would be likely to refuse to be used for that purpose

Anybody involved in an offence who has been the subject of exploitation may have a defence providing the offence that they have committed is not one of those which is exempt. This is a complicated area of law and if you feel that you have been exploited into committing and offence then you should ensure that you seek representation from lawyers who have experience in this area of law.

Jonathan Wall - Burton Copeland

Jonathan has over 25 years experience in defending and advising at the police station, individuals accused of a whole range of criminal offences. He now concentrates on serious and organised crime, appeals and miscarriages of justice, public inquiries, Proceeds of Crime Act Proceedings and Inquests. To read more about Jonathan and the work that he does, see his profile or if you need advice then please contact us now.