The Golden Thread Survives Under the Modern Slavery Act
In R v MK and Persida Gega  EWCA Crim 667, the Court of Appeal has unanimously found that the legal burden of proof rests wholly on the prosecution where a defendant raises a defence under section 45 of the Modern Slavery Act 2015 (‘the MSA’).
In summary, section 45 gives a defence to adults who are compelled to commit a crime because they have been enslaved, trafficked or exploited, as defined in the MSA, and a reasonable person in the same situation would have no realistic alternative to acting as the defendant did. Section 45 constitutes a full defence for any crime other than those listed in Schedule 4, which constitutes a fairly extensive list covering serious violence, sexual offences, robbery, burglary and terrorism offences. Appropriately, in the cases under consideration, the offences related to supply of drugs and possession of false ID, in which context section 45 is most frequently invoked.
Given the wording of the MSA, “A person is not guilty of an offence if …”, the Act did not expressly provide for any burden upon the defendant. However, the CPS in their Guidance, and two different judges had come to the conclusion that whilst the burden was on the prosecution to prove that the defendant was not a victim of trafficking or slavery, it then shifted to the defendant to prove that he or she was compelled to commit the offence in consequence of that trafficking/slavery, and that a reasonable person would have acted in the same way. In this way the burdens fell in a similar way to those under section 31(1) of the Immigration and Asylum Act 1999 (‘the IAA’), which provides a defence for refugees to illegal entry offences.
The problem, as Lord Justice Burnett identified in a judgment with which all of the court, including the Lord Chief Justice, agreed, was that the IAA’s language specifically provided for that mixed burden, whereas there was nothing to indicate that approach in the MSA. Similarly, the prosecution argument that section 45 constituted an “excuse or proviso” within the third category of provisions identified by Lord Hope in R v Kebilene  2 AC 326 as placing a persuasive burden on defendants, failed because the statutory language specifically suggested a defence, rather than an excuse or proviso.
Other factors considered included that duress would inevitably often be raised at the same time as section 45, and it is illogical and confusing for the burdens to be different. It was also pointed out that the prosecution will often be able to point to the objective part of the defence as not fulfilled, and therefore the burden placed upon them is not too onerous.
While the use of reverse burdens continues to rise, MK is a helpful reminder of the importance of specific analysis of the statutory language in every case. Whilst welcome overall, it is perhaps worrying that in dismissing Ms Gega’s appeal due to the overwhelming evidence, the Court of Appeal said that “in her case… the niceties of the legal burden of proof could [not] have made any difference”. In a judgment which otherwise places Woolmington v DPP  AC 462 front and centre, it is worrying that the burden of proof is referred to as a nicety. As anyone who defends will know, it is often the greatest weapon in a limited arsenal.