Below, Philip Beardwell discusses modern slavery and NRM decisions.
In common with many aspects of the criminal justice system there is a significant backlog in NRM decision making at present. For those unfamiliar with the process, it is essentially this: If a defendant’s circumstances suggest that s/he may be the victim of modern slavery a submission is made to the Single Competent Authority (SCA) at the Home Office, using the National Referral Mechanism (NRM). Submissions are made by the police, immigration authorities, local authorities etc. and can be based on representations made by the defendant or merely background circumstances. Consent of the defendant is required when they are 18 or older. It is not required when the defendant is a child.
The decision is twofold. First, a provisional grounds decision is made, where the standard of proof is low (suspicion rather than proof). Turnaround time is meant to be 5 days and there does not seem to be a significant issue with delay in this regard. If the decision is positive then the case progresses for a definitive grounds decision. Throughout the process the police or other reporting authority will continue to pass on new information to the SCA as and when it is received. A 45-day period of “recovery and reflection” takes place after the provisional decision, designed to offer assistance to the potential victim of slavery.
The definitive grounds decision is made, during or after that period, on the balance of probabilities. It is these decisions that are being delayed at the moment, with some taking over four months to determine. Delays in progressing cases at the Crown Court are becoming frequent. In R v D [2018] EWCA 2995 the Court of Appeal held that such NRM decisions should, if possible, be made before plea is entered and that stage dates should be adapted to encompass delays. Practitioners will be aware how closely this Judgment is being followed…
The CPS is under an obligation to review a case to see if a defence under s.45 of the Modern Slavery Act 2015 is available to the defendant and whether, therefore, there is sufficient evidence to provide a realistic prospect of conviction and whether it is in the public interest to pursue the prosecution. Detailed legal guidance for the decision making appears on their website. The submission documents may fall to be disclosed to the defence.
Practitioners need to be live to the fact that a positive definitive grounds decision will not necessarily bring a case to a halt. All decisions are specific to the individual defendant and there is no clear guidance from the appellate courts. For instance, in R v Brecani [2021] EWCA Crim 731 the Court of Appeal held that evidence of a positive grounds decision could not go before the jury as expert evidence as it was an opinion based on matters of fact the jury could assess in the normal way. It also pointed out that the CPS was not bound by the decision of the SCA. Therefore, if Brecani wished to rely on s.45 he should have advanced admissible evidence and the prosecution would have had the opportunity to challenge that evidence, the burden being on them to disprove it beyond reasonable doubt (R v MK [2018] EWCA Crim 667).
In R v AAJ [2021] EWCA Crim 1278 the Court of Appeal held that “there is no blanket immunity from prosecution for victims of trafficking. Thus, if there is no reasonable nexus of connection between the offence and the trafficking, generally a prosecution should proceed. If some nexus remains, then whether or not to prosecute depends on various factors, including the gravity of the offence, the degree of continuing compulsion and the alternatives reasonably available to the defendant. Each case is fact specific.”
They went on to highlight that it was “the extent to which the offences charged, or of which the defendant has been found guilty, are integral to or consequent upon the exploitation of which the person was a victim, a truly fact-sensitive decision.”
They also made clear it was not just the age of the defendant that could affect their level of culpability and then held the following: “The decision of the competent authority as to whether or not a person has been trafficked for the purpose of exploitation is not binding on the court, but, unless there is evidence to contradict it or significant evidence that has not been considered, it is likely that the courts will respect the decision”.
Those considering advancing a s.45 defence on behalf of their client should also note Schedule 4 to the Modern Slavery Act 2015 as this lists the very many offences to which s.45 cannot be used as a defence. It contains offences frequently encountered (robbery, criminal damage, sexual offences, s.20 GBH, s.18 GBH with intent, violent disorder, all racially aggravated assaults and public order matters, stalking and harassment) and some rarities; apparently it’s not a defence when accused of hijacking a spacecraft, contrary to paragraph 1 of Schedule 4 to the Space Industry Act 2018!
