Modern Slavery and Evidential Burden
Evidential Burden – A Grounds for Defence.
There is a defence under section 45 of the Modern Slavery Act 2015 for a person who is compelled to do an act, where that compulsion is as a result of slavery or exploitation, and a reasonable person in the same position with the same characteristics would have no realistic alternative.
In a recent case, a 15-year-old boy (M) was acquitted as a result of this defence.
He had been charged with possession of a bladed article, and possession of cocaine and heroin.
There was an appeal raising an issue of law; did the accused discharge the evidential burden on him in raising the defence?
What is an evidential burden?
It is for the prosecution to prove that the offence has been committed by the accused. An evidential burden arises here for the accused to properly raise the issue that he has the defence set out in the Act.
What Happened With “M”
It was submitted that the District Judge erred in her approach to the admissibility of the decision of the Single Competent Authority (SCA) that M was a victim of modern slavery.
Also, she was wrong in concluding that the offence was a direct consequence of trafficking for exploitation purposes and that a reasonable person of the same characteristics would have committed the offence.
M was seen to go into KFC with two known young gang members, who were known to carry knives.
All three of them were searched, and M was found to have a hunting knife, and wraps of cocaine and heroin.
He initially said he used the knife to cut steak and later said that he had found it and was going to hand it in.
The arresting officer commented that M had been laughing with the other two males and had not raised any concerns.
The officer was only made aware of a potential issue when he spoke to M’s father.
The following facts were admitted at the trial
• M had been referred to Social Care
• The SCA had been informed that M regularly went missing from home
• M had no convictions or cautions
• The SCA had made a decision, on the balance of probabilities, that M had been recruited, harboured and transported for the purposes of criminal exploitation.
M did not comment in his police interview and did not give evidence at trial.
The District Judge noted that the prosecution had not argued that he had to give evidence in order to meet the evidential burden for the defence, nor that he had to have provided some explanation in interview.
The issue surrounding evidential burden
The issue raised afterwards was whether M had discharged the burden since he had not given evidence or provided an explanation.
It was also argued that the District Judge had been wrong to rely on the decision of the SCA as this was opinion evidence and therefore inadmissible.
The prosecution argued that all the judge had to rely on was hearsay evidence that M was a victim of trafficking.
The Court decided that irrespective of the decision of the SCA, the question to be answered was whether the burden had been discharged.
It was not accepted that the evidence that could be relied upon was general.
The direct evidence was that M was a missing child, in an area with which he had no connection, he had no convictions, and was with two boys with a significant criminal history involving drugs and knives.
The fact that he had the very items the other two would usually have gave rise to an inference that his offending was as a direct consequence of his exploitation by them.
The prosecution did not displace the inference.
The District Judge was entitled to conclude on the evidence that M was a victim of exploitation and that his offending was in direct consequence.
The seriousness of the offences is a significant consideration when determining whether a reasonable person would have done what the accused did.
Although it is not irrelevant when considering a child, it is of less significance. A child is more likely to behave without a proper understanding of the nature and consequences of his actions.
The Court was satisfied that M had satisfied the evidential burden and that the evidence was sufficient to justify the conclusion reached by the District Judge.