MK v R

A defendant relying on section 45 of the Modern Slavery Act 2015 bears an evidential burden only. Once evidence raises any element of the defence, the prosecution must disprove one or more elements beyond reasonable doubt. The section does not impliedly require the defendant to prove compulsion, the causal connection with slavery or trafficking, or the absence of a realistic alternative.

The statutory language that a person is not guilty is inconsistent with treating the defence as a mere exemption or proviso. Where age is in issue, the prosecution also bears the legal burden of proving that the defendant was an adult.

These conjoined appeals concerned Albanian nationals who relied on the statutory defence in section 45 of the Modern Slavery Act 2015. MK was convicted at the Central Criminal Court of conspiracy to supply cocaine and possessing an identity document with improper intention. Persida Gega was convicted at Wood Green Crown Court of possessing an identity document with improper intention.

In each trial, the judge directed that, after the prosecution failed to disprove trafficking or slavery, the defendant had to prove the remaining elements of the section 45 defence on the balance of probabilities. The common issue was whether section 45 imposed that legal burden or only an evidential burden.

1. The court granted MK leave to appeal, allowed her conviction appeal, quashed her convictions and ordered a retrial. It granted Gega leave to appeal but dismissed her conviction appeal because the evidence against her was overwhelming and the misdirection could not have affected the safety of the verdict.

2. Section 45 of the Modern Slavery Act 2015 imposes no implied legal or persuasive burden on a defendant. The defendant need only adduce evidence capable of raising each element of the statutory defence. The prosecution must then disprove one or more of those elements to the criminal standard.

3. The wording that a person is not guilty when the statutory conditions are met indicates a defence which negates criminal liability, rather than an exemption or proviso outside the elements of guilt. The court explained the narrow exemption category discussed in R v DPP ex parte Kebilene [2000] 2 AC 326, but held that section 45 was not analogous to it.

4. The two-stage approach in R v Makuwa [2006] EWCA Crim 175 could not be transposed to section 45. The different structure of section 31 of the Immigration and Asylum Act 1999, including its express provision concerning refugee status, supplied no true analogy.

5. The protective purpose of the legislation, the objective requirement that an adult have no realistic alternative, and the ordinary presumption that the prosecution proves guilt all supported this construction. Where age is disputed, the prosecution bears the legal burden of proving adulthood. A child must receive the benefit of reasonable doubt on that issue.

6. The court also directed that criminal records should use a defendant’s true name and date of birth where known. If a false name has been used in an indictment, the prosecution should seek amendment. Gega’s court record was directed to be amended to record her true identity and alias.

• Court of Appeal (Criminal Division): In [2018] EWCA Crim 667, MK’s conviction appeal was allowed, her convictions were quashed and a retrial was ordered. Gega’s conviction appeal was dismissed as her conviction remained safe.

• Central Criminal Court and Wood Green Crown Court: The trial judges had directed juries that the defendants bore a legal burden on elements of the section 45 defence after trafficking or slavery had not been disproved. That direction was held erroneous.