CS & Anor, R. v

Section 45 of the Modern Slavery Act 2015 is not retrospective. The statutory defence is available only for offences committed after it came into force on 31 July 2015. The ordinary presumption against retrospectivity applies even where a new provision creates a defence. It is not displaced by the definition of a trafficking victim, the transitional regulations, or the absence of an express temporal restriction.

For earlier offending, protection for trafficking victims remains governed by the pre-statutory regime of prosecutorial discretion, duress and abuse of process. A victim’s status and a nexus with the offending do not alone extinguish culpability. The court must assess compulsion, realistic alternatives and the public interest in prosecution.

Two otherwise unrelated applications were heard together. Each applicant had pleaded guilty after 31 July 2015 to drug offences committed before that date. Both were subsequently found through the National Referral Mechanism to have been victims of trafficking or forced criminality.

CS had been convicted in the Magistrates’ Court of drugs and driving offences and committed to the Crown Court at Manchester for sentence. She also pleaded guilty there to further drugs offences. Mr Le pleaded guilty in the Crown Court at Wolverhampton to producing cannabis.

The applicants sought to rely on fresh evidence and to appeal their convictions and sentences. They contended principally that section 45 of the Modern Slavery Act 2015 applied to their earlier offending. Alternatively, they submitted that their prosecutions should have been stayed as abuses of process under the pre-2015 protection regime.

1. All applications for leave to appeal were refused. The court also held that it had no jurisdiction to entertain CS’s proposed appeal against her Magistrates’ Court convictions. A committal to the Crown Court for sentence conferred sentencing powers but did not make her a person convicted on indictment for the purpose of section 1 of the Criminal Appeal Act 1968.

2. Section 45 of the Modern Slavery Act 2015 did not apply to offences committed before 31 July 2015. Applying the presumption against retrospective legislation, the court found no positive indication that Parliament intended a later statutory defence to alter the legal consequences of earlier conduct. Section 56 permitted a person trafficked before commencement to rely on the defence for an offence committed after commencement. It did not make the defence available for pre-commencement offending. The transitional provisions and the structure of Schedule 4 supported that conclusion.

3. The pre-2015 regime therefore governed both cases. It was necessary to consider whether the trafficking, its nexus with the offending, the degree of compulsion and any realistic alternatives reduced culpability so far that prosecution was contrary to the public interest and an abuse of process. Neither applicant reached that threshold. CS had committed repeated offences and could have sought police assistance. Even taking Mr Le’s account at its highest, his choices, financial reward and ability to leave the premises showed substantial culpability.

4. The later trafficking findings did not render either sentence arguably manifestly excessive. CS’s already lenient sentence amply reflected the mitigation available from compulsion. Mr Le’s sentence properly reflected the scale of the cannabis operation and his continuing culpability.

5. The court granted CS anonymity because her evidence identifying those involved in trafficking created a sufficient potential risk. It refused anonymity to Mr Le because no evidence established a corresponding risk. The starting point remained open justice.

• Court of Appeal (Criminal Division) — By [2021] EWCA Crim 134, refused both applicants leave to appeal against conviction and sentence. It held that section 45 of the Modern Slavery Act 2015 was unavailable for their pre-commencement offences.
• Crown Court at Manchester — CS pleaded guilty to further drugs offences and was sentenced to two years’ imprisonment concurrent with the offences for which she had been committed for sentence.
• Magistrates’ Court — CS pleaded guilty to drugs and driving offences and was committed to the Crown Court for sentence.
• Crown Court at Wolverhampton — Mr Le pleaded guilty to producing cannabis and was sentenced to 16 months’ detention in a young offender institution.