R v Nevada Horatio Farrel

For a child defendant, the defence in section 45(4) of the Modern Slavery Act 2015 does not require compulsion or proof that a reasonable person would have had no realistic alternative. The jury must instead consider whether the criminal act was the direct consequence of slavery or relevant exploitation and whether a reasonable person in the child’s situation, with the child’s relevant characteristics, would do the act.

A direction which imports the adult requirement of having no realistic alternative into a child’s defence materially narrows the statutory protection. It is logically inconsistent with the absence of a compulsion requirement and renders a conviction unsafe where the effect on the verdict cannot be determined.

The applicant, who was aged 16 when the offences were committed, was convicted at the Crown Court at Lewes of two counts of being concerned in the supply of Class A drugs. He relied on the statutory defence for child victims of modern slavery, contending that he had been forced by a gang to travel to Brighton and sell drugs.

The Recorder directed the jury that, although compulsion was not a separate requirement for the applicant, a reasonable person in his position would need to have had no realistic alternative to drug dealing. Following sentence, the applicant sought leave, out of time, to appeal against conviction. The Court of Appeal considered the direction under section 45 of the Modern Slavery Act 2015 and the resulting safety of the convictions.

1. The court granted leave to appeal, allowed the appeal and quashed both convictions. It refused the Crown’s application for a retrial because, in the particular circumstances, a retrial was not in the interests of justice.

2. Section 45 of the Modern Slavery Act 2015 creates materially different defences for adults and children. Under section 45(1), an adult must have acted because of compulsion attributable to slavery or relevant exploitation, and a reasonable person with the defendant’s relevant characteristics must have had no realistic alternative. Under section 45(4), a child must have acted as a direct consequence of being, or having been, a victim of slavery or relevant exploitation; a reasonable person in the same situation and with the child’s relevant characteristics must would do the act. Compulsion and the absence of a realistic alternative are not requirements for a child.

3. The Recorder correctly recognised that the applicant was subject to the child regime, but directed the jury to apply the adult requirement that a reasonable person would have had no realistic alternative. That requirement potentially and significantly limits the circumstances in which the child defence can apply.

4. The direction was also logically unworkable. It stated that compulsion was not required, while effectively reintroducing it through the requirement of no realistic alternative. The court could not know whether the jury would have reached a different verdict if properly directed. The misdirection therefore rendered the convictions unsafe. It was unnecessary to consider the remaining grounds of appeal.

• Court of Appeal (Criminal Division)—by judgment dated 26 May 2022, [2022] EWCA Crim 859, granted leave to appeal, allowed the appeal against conviction, quashed both convictions and refused a retrial.
• Crown Court at Lewes—on 26 March 2021, the applicant was convicted by a jury of two counts of being concerned in the supply of Class A drugs. On 19 May 2021, he received a concurrent 12-month Youth Rehabilitation Order.