MK and Persida Gega [2018] EWCA Crim 667; [2018] 2 Cr.App.R. 14

MK v Regina and Gega v Regina [2018] EWCA Crim 667 concerned whether the burden of proof under section 45 of the Modern Slavery Act 2015, which provides a defence to victims of slavery or trafficking, is merely evidential or whether once the prosecution disproves the defendant’s status as a victim the defendant must prove the remaining elements of the defence on the balance of probabilities.

MK was convicted of conspiracy to supply cocaine and possession of an identity document with improper intention and sentenced to eight years’ imprisonment. Persida Gega, also known as Anna Maione, was convicted of possession of an identity document with improper intention and sentenced to 15 months’ imprisonment. Both defendants, who were Albanian nationals, had sought to rely on the statutory defence under section 45 of the Modern Slavery Act 2015, asserting they were victims of trafficking.

The facts in MK’s case were not detailed in the judgment. In Gega’s case, police found her using a false Italian identity card when they raided an address where she worked. At trial she accepted possession and knowledge of falsity but said she had been trafficked from Albania from the age of 16 and obtained false identification through fear of being returned to Albania or re-trafficked. The prosecution contended she was simply an illegal immigrant.

At trial, both judges, HHJ Lucas QC in MK’s case and Mr Recorder Rajah QC in Gega’s case, directed the jury that the prosecution must disprove beyond reasonable doubt that the defendant was a victim of trafficking or slavery, but that if the prosecution failed in this, the defendant bore the legal burden of proving the remaining elements of the defence on the balance of probabilities. Those remaining elements for an adult defendant under section 45(1) were that the defendant did the act because compelled to do so, that the compulsion was attributable to slavery or relevant exploitation, and that a reasonable person in the same situation and having the defendant’s relevant characteristics would have no realistic alternative.

The applicants submitted that section 45 does not fall within the third category of provisions identified by Lord Hope in R v DPP ex parte Kebilene [2000] 2 AC 326 at 379F-H as reversing the burden of proof, that it relates to a defence absolving the defendant of criminal responsibility rather than an exemption or proviso, that there was no justification for treating one element differently from the others as regards the burden of proof, and that it would be anomalous to interpret a provision aimed at protecting trafficked persons as more onerous than the common law defence of duress. They also contended that the judges’ reasoning that the defendant was best placed to identify the circumstances of her situation betrayed a fundamental misunderstanding of the vulnerability of victims.

The Crown submitted that section 45 operates independently of any statute creating an offence and provides a defence to defendants who are otherwise guilty, so falls within the third category in Kebilene placing a persuasive burden on the defendant. The prosecution argued that section 45 is far wider in scope than duress and there was no absurdity in placing a more onerous burden on the defendant, who was far better placed than the prosecution to establish the relevant elements. The Crown sought to characterise the defence as an “immunity” available only to persons falling within specified groups, with status to be established as a preliminary matter before considering the specific elements, by analogy with the approach in R v Makuwa [2006] EWCA Crim 175, [2006] 2 Cr App R 11 under section 31 of the Immigration and Asylum Act 1999.

The Lord Chief Justice, giving the judgment of the Court, noted that the defence under section 45 is unusual in that it applies to all criminal offences other than those excepted by Schedule 4, and that the elements differ depending on whether the person is over or under 18. The Court held that at first sight the defence may appear to fall within the third category in Kebilene because it only arises after the prosecution has proved all the elements of the underlying offence, but it was not a provision of the type described by Lawton LJ in R v Edwards [1975] QB 27. The section states that a person “is not guilty” if all the specified elements are established, which is the language of a defence, not an excuse or proviso, and a strong indication that imposing a reverse legal burden would be tantamount to requiring a defendant to prove specific elements establishing innocence.

The Court rejected the Crown’s submission that the defendant’s status as a victim of slavery or trafficking should be singled out for different treatment. The structure of section 45 only introduced that issue after it had been established that the person was aged over 18 and did the act under compulsion. Section 45(1)(c) raised two issues: whether the defendant was a victim and whether there was a direct causal link between that status and the act done under compulsion. There was nothing in the language of the statute to support the contention that this one element should be singled out for different treatment. The prosecution’s approach required a re-writing of section 45, whose structure was very different from section 31 of the 1999 Act, and there was no provision analogous to section 31(7).

The Court held that if the need to protect victims of trafficking and slavery required the burden of proof to remain with the prosecution in respect of the status element, the same considerations supported an interpretation which rests the legal burden on the prosecution for the remaining elements. A reverse burden would undermine the protection that section 45 was designed to afford to vulnerable and traumatised people. The Court accepted the submission that if the legal burden lay on the defendant, some victims would be found criminally liable in circumstances where there was reasonable doubt as to their guilt, which could not have been Parliament’s intention in a statute aimed at protecting them from further victimisation. The prosecution would have no greater difficulty disproving the defence under section 45 than disproving duress.

The Court also rejected the Crown’s submission that the objective element in section 45(1)(d) was insufficient safeguard, holding that the prosecution was likely to have less difficulty establishing to the criminal standard that an adult offender had a realistic alternative than the defendant would have in establishing on the balance of probabilities that a reasonable person would have had no realistic alternative. This final element was the safeguard against a defendant being absolved from liability simply because the jury could not be sure the account of exploitation was untruthful.

The Court further held that the legal burden of proof in respect of age must rest on the prosecution, noting the practical difficulties that reversing the burden could pose for a teenage defendant separated from family and the potential to impose on a child defendant the more onerous elements of the defence that Parliament intended should only apply to adults. The Court referred to Article 13(2) of Directive 2011/36/EU which provides that where age is uncertain and there are reasons to believe the person is a child, that person is presumed to be a child. This was yet another indication that Parliament did not intend to shift the burden of proof of the elements of the defence.

The Court concluded that section 45 of the 2015 Act does not implicitly require the defendant to bear the legal or persuasive burden of proof of any element of the defence. The burden on a defendant is evidential. It is for the defendant to raise evidence of each of those elements and for the prosecution to disprove one or more of them to the criminal standard in the usual way.

In MK’s case, there was no suggestion by the prosecution that the conviction was safe if the direction was wrong. The Court granted leave to appeal against conviction, allowed the appeal and quashed the conviction, and ordered a retrial. In Gega’s case, the Court held that despite the error in the direction, the evidence was overwhelming and the conviction was safe. The Court granted leave to appeal but dismissed the appeal. The Court also gave guidance that where it becomes apparent that a defendant’s name is false, the indictment and court records should refer to the defendant by the correct name if known, and directed that the record of Gega’s conviction should be amended to record her true name and date of birth.

In short, the Court held that under section 45 of the Modern Slavery Act 2015 the defendant bears only an evidential burden in respect of all elements of the defence, and it is for the prosecution to disprove one or more of those elements to the criminal standard.

Director of Public Prosecution Ex Parte Kebeline [2000] 2 AC 326
Makuwa [2006] EWCA Crim 175
Woolmington [1935] UKHL 1, [1935] AC 462, 25 Cr App R 72
Lambert [2001] UKHL 37; [2001] 2 Cr App R 28, [2002] 2 AC 545
Nimmo v Alexander Cowan & Sons Ltd [1968] AC 107
R v Edwards [1975] QB 27
Hunt [1987] AC 352
Pepper v Hart [1993] AC 593, [1992] 3 WLR 1032, [1993] 1 All ER 42, [1993] ICR 291

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