ADG & Anor v R

For a defendant under 18, the defence in section 45(4) of the Modern Slavery Act 2015 does not require proof of compulsion. The act must instead be a direct consequence of the child being, or having been, a victim of slavery or relevant exploitation, and the statutory objective test must be met.

A direction which imports the adult requirement of compulsion adds a more onerous and unlawful element to the child defence. Where the jury may have been influenced by that additional step, the conviction is unsafe.

ADG and BIJ, then aged 14 to 16, were convicted at Exeter Crown Court of conspiring to supply cocaine and diamorphine. They admitted substantial involvement in drug supply but relied on the child defence in section 45 of the Modern Slavery Act 2015, asserting that they had been exploited and compelled by others.

The trial judge directed the jury that each appellant had first to establish, or raise the possibility, that he had acted only because of compulsion. The appellants appealed against conviction on the ground that compulsion is not an element of the statutory defence for a person under 18. ADG also complained of the absence of a further direction on relevant exploitation.

1. The appeals were allowed. The convictions for conspiracy to supply class A drugs were unsafe and were quashed. No retrial was ordered.

2. Section 45 draws a deliberate distinction between adult and child defendants. Under section 45(1), an adult must have committed the offence because of compulsion attributable to slavery or relevant exploitation. Under section 45(4), a child need not prove compulsion. The required causal connection is that the act was a direct consequence of the child being, or having been, a victim of slavery or relevant exploitation.

3. The objective tests in the two provisions are similar, but that similarity does not transfer the adult compulsion requirement into the child defence. The judge's route to verdict required each appellant to surmount an additional and more onerous stage which the statute did not impose.

4. It could not safely be said that the jury had not been influenced by that erroneous additional stage. The convictions were therefore unsafe. The court noted that this was the second case, after R v NHF, in which the critical age-based distinction in section 45 had been missed, underlining the need to read the statutory provisions carefully.

5. A retrial was not in the interests of justice. The appellants were close to adulthood, the events occurred when they were 14 to 16, and each remained subject to a concurrent Youth Rehabilitation Order for separate drug offending to which he had pleaded guilty.

• Court of Appeal (Criminal Division): By judgment dated 8 November 2023, [2023] EWCA Crim 1309, allowed the appeals against conviction, quashed the conspiracy convictions, and declined to order a retrial.
• Exeter Crown Court: On 16 November 2022, following trial before HHJ Rose and a jury, convicted both appellants of two conspiracies to supply class A drugs.