Two police officers observed the defendant, a 15-year-old boy who was unknown to the police at the time, going into a takeaway premises with two other 15-year-old males who were known to the police as gang members and habitual knife carriers. All three were stopped and searched and the defendant was charged with possession of a bladed article and possession of class A drugs (heroin and cocaine). At the defendant’s trial the district judge considered the evidence of the police officers and a set of agreed facts which included a “conclusive grounds” decision made by the single competent authority, under the National Referral Mechanism which had been created in order to implement the United Kingdom’s obligations under article 10 of the Council of Europe Convention on Action against Trafficking in Human Beings, that on the balance of probabilities the defendant had been recruited, harboured and transported for the purposes of criminal exploitation. The judge acquitted the defendant after finding that the statutory defence in section 45(4) of the Modern Slavery Act 2015 had been made out, namely that the defendant, being a person under the age of 18 when he did the act in question, had done that act as a direct consequence of being, or having been, a victim of slavery or a victim of relevant exploitation, and that a reasonable person in the same situation as the person and having the person's relevant characteristics would have done that act. The prosecutor appealed by way of case stated on the issue of whether a conclusive grounds decision of the single competent authority was admissible in a trial where the defendant sought to raise the statutory defence in section 45 of the 2015 Act. The prosecutor contended that such a decision was inadmissible either as non-expert opinion evidence or as depending on facts which could only have been established had the defendant given evidence, which he had not done.
On the appeal—
Held, appeal dismissed. (1) There was no authoritative guidance as to the admissibility of a conclusive grounds decision of the single competent authority in a trial where the defendant sought to raise the statutory defence in section 45 of the Modern Slavery Act 2015. Whether a person was a victim of exploitation was a question of fact but it was not something which was immediately identifiable, such as the colour of a person’s hair. Therefore, the fact-finder in a criminal case would require evidence to assist in determining the fact. Expert evidence was admissible when the subject matter was something on which the ordinary person, without particular experience in the relevant area, could not form a sound judgment without the assistance of a witness with such experience. The factors relevant to trafficking or exploitation were not necessarily within the knowledge of the ordinary person and could properly be the subject of expert evidence. Whilst the single competent authority decision-maker would not have prepared their minute of decision with a view to its being used as expert evidence, that did not, of itself, prevent its admission in criminal proceedings. The decision-maker was always acting under a duty and would be aware of the likelihood that the conclusive grounds decision would be used in proceedings of some kind, whether in a court or a tribunal. The minute of the decision would be introduced by an agreed fact, as had happened in the present case, and that route involved an acceptance that the decision was admissible (paras 39, 45, 46, 53, 54).
(2) The district judge had been entitled to receive and admit the findings of the single competent authority as evidence that the defendant had been recruited and harboured, such that he had been trafficked within the meaning of the 2015 Act and that he had been a victim of criminal exploitation. The authority decision-maker had expertise in relation to those issues. The judge had been entitled to consider the findings and assess the extent to which they were supported by evidence. In so far as was appropriate she could have reduced the weight she gave to the findings although that was a question of weight rather than admissibility. The single competent authority decision had been based on a proper evidential foundation and it had not been contradicted by other material available to the judge (paras 54, 55).
(3) The district judge had been entitled to conclude on the basis of the evidence that the first element of the statutory defence was made out in that the defendant had been a victim of exploitation and that his offending had been a direct consequence of that status. The single competent authority decision could not and did not address the second element of the defence, namely, whether a reasonable person in the same situation as the person and having the person's relevant characteristics would have done that act at all, nor did it reach any direct conclusion as to whether the offences had been a direct consequence of the defendant being a victim of exploitation. It was not the function of the single competent authority to consider the consequences of a person being a victim of exploitation. However, the district judge, having in mind all relevant matters appertaining to the defendant’s situation when making her decision as to what a reasonable person would have done, had been entitled to find that the defendant had sufficiently discharged the evidential burden in relation to both elements of the statutory defence (paras 56, 58, 60, 61, 64).
Per curiam. The question whether a “Merton compliant” age assessment is admissible in a criminal trial does not arise in these proceedings. However, while age is usually is an issue which arises pre-trial, there are cases where age is a relevant fact to be proved as one of the elements of the offence charged. Where the person concerned was born in, and has been domiciled at all times in, the UK, proof by a variety of documentary means will be possible. That will not apply if the person originates from a country with poor or non-existent public record keeping. In those cases, it would be perverse for the fact-finder to be deprived of the outcome of a detailed assessment prepared by those with expertise when it may be impossible for the fact-finder to form a sound judgment without such evidence (para 51).
Ben Douglas-Jones QC (instructed by Crown Prosecution Service Appeals and Review Unit) for the prosecutor.
Brenda Campbell QC and Sam Parham (instructed by Hodge Jones & Allen Solicitors) for the defendant.