Dr Alicia Kidd
Lecturer in Modern Slavery
Wilberforce Institute, University of Hull
In this blog, produced for the Modern Slavery Policy and Evidence Centre [PEC], Dr Kidd looks at the defence for those who face criminal liability as a result of modern slavery under Section 45 of the Modern Slavery Act 2015.
What do we know about how we protect those who experience criminal exploitation from further harm? People forced into criminal exploitation by their traffickers should be protected from the further harm of being charged for crimes they had no choice but to commit. The UK Modern Slavery Act offers protection for such cases, however, we don’t know if it’s doing its job effectively.
Criminal exploitation is a growing problem. In the UK in 2021, 6,100 people were identified as potential victims of criminal exploitation, 4,155 of whom had experienced only this form of exploitation (figures are collated from the data tables accessible via the End of Year Summary). This accounts for 48% of all potential cases of modern slavery identified in that year.
People who experience criminal exploitation inhabit an unusual position of being both a victim of modern slavery and a perpetrator of the crimes they were made to commit. This means that there can be confusion amongst professionals around how to best respond to such situations.
Section 45 of the Modern Slavery Act offers a statutory defence for those who face criminal liability for a criminal act that they committed as a consequence of their modern slavery or human trafficking experience. It was designed to reassure people that they could give evidence without fear of being convicted for offences they had committed as part of their exploitation.
For people aged 18 or over, the Act states that a person is not guilty of an offence if they were compelled to commit it, if that compulsion is attributable to their exploitative situation, and if a reasonable person in the same situation with relevant characteristics would have no realistic alternative to committing it. Children are not guilty if the criminal act was a direct consequence of their exploitation and a reasonable person in the same situation with relevant characteristics would have also committed the act.
However, even seven years after the implementation of Section 45 with the Modern Slavery Act of 2015, it is difficult to gather an accurate picture of how the defence is understood and used in practice. The Modern Slavery PEC and the Wilberforce Institute are publishing a review of how this defence has been used so far.
Our review has shown that, to date, there is very limited information available on the use of Section 45. There have been two independent reviews of the Modern Slavery Act which make reference to Section 45, and one report from the Office of the Independent Anti-Slavery Commissioner which was based on a call for evidence about Section 45 specifically. However, there is a lack of information regarding the commissioning process and methodologies of these reports.
Further, no quantitative data is collected on the use of Section 45, academic involvement in the reviews has been limited, and no one with lived experience was consulted for the reviews. These factors combined mean that producing accurate insights and robust generalisations about how Section 45 is used is impossible. We can’t currently generate a true picture of who is using the defence, what crimes they are using it for, or identify and rectify any barriers to success.
There is also a lack of legal clarity regarding how closely the offence should be connected to the modern slavery experience for the defence to be justified, with no clear definition offered within the Modern Slavery Act. Case law continues to develop and challenge how the defence should be implemented in practice. However, without adequate and consistent training for professionals, those who experience criminal exploitation could have truly differing experiences of using the defence, based entirely on the levels of knowledge that the lawyers and judges associated with their cases have on modern slavery and Section 45.
If used suitably, the statutory defence holds real potential to be able to support victims of modern slavery without punishing them for crimes they had no choice but to commit. However, much remains to be done to make sure that becomes a reality.
Based on available evidence, in order to improve both the use and understanding of Section 45 of the Modern Slavery Act, reviews of the legislation should offer clarity regarding the commissioning process and methodologies used, so that the reviews can accurately be recreated for future comparisons. They should also incorporate insights from academics working in relevant fields, and always seek the input of people with lived experience.
We need more data to be able to make informed decisions about improving Section 45. As a priority, the Government needs to collect quantitative data on the use and outcomes of the defence in order to understand the types of cases in which it is used, barriers to success, and how it might be vulnerable to misuse.
Finally, it’s clear that adequate training for police, lawyers and the judiciary is fundamental if Section 45 is to be used in the way it was intended: to serve the best interests of victims of modern slavery. This training should include insights into potential bias based on notions of the ‘ideal’ victim, so that people who were forced to commit crimes as a result of slavery or trafficking can be fully protected from further harm.