Admissibility of Single Competent Authority Decisions in Modern Slavery Defenses: Analysis of Brecani v. R. ([2021] EWCA Crim 731)

Introduction

Brecani v. R. is a landmark case adjudicated by the England and Wales Court of Appeal (Criminal Division) on May 19, 2021. The appellant, aged 17 at the time of conviction, was found guilty of conspiracy to supply cocaine, a Class A drug. He was among 13 co-defendants, with others facing varying outcomes including convictions and acquittals. The appellant sought to invoke section 45(4) of the Modern Slavery Act 2015 as a defense, asserting that his criminal actions were a direct consequence of being a victim of modern slavery. Central to the appeal were three pivotal issues:

The admissibility of a conclusive decision by the Single Competent Authority (SCA) as evidence in court.
The admissibility of expert evidence provided by Craig Barlow, commissioned by the appellant.
The appropriateness of severing the appellant's indictment from that of his co-defendants and delaying his trial pending the SCA's decision.

Summary of the Judgment

The Court of Appeal meticulously examined the appellant's contention that the SCA's conclusive grounds decision and Mr. Craig Barlow's expert testimony should have been admissible in his defense. Both forms of evidence were excluded by the trial judge. The appellate court affirmed this exclusion, emphasizing that the SCA's decisions do not constitute expert evidence admissible under the current legal framework. Additionally, the court upheld the trial judge's decision not to sever the indictment, noting the logistical and practical challenges of delaying the trial for an individual defendant within a larger conspiracy.

Furthermore, the court delved into the intricate procedures of the National Referrals Mechanism established under the Modern Slavery Act, evaluating the operational delays and their implications on the criminal proceedings. The concluding grounds decision, which deemed the appellant a victim of modern slavery, was scrutinized for admissibility and found wanting due to its nature as a non-expert opinion and reliance on incomplete evidence. Mr. Barlow's expert reports were similarly rejected for lacking sufficient demonstrable expertise and relying on inconsistent and hearsay evidence.

Analysis

Precedents Cited

The judgment extensively referenced several precedents to shape its reasoning:

R v Joseph and others [2017]: Provided the foundational background on international conventions against human trafficking and the evolution of domestic law prior to the Modern Slavery Act 2015.
R v MK [2018]: Established that the prosecution bears the burden to disprove the section 45 defense.
DPP v M [2020]: Addressed the admissibility of Conclusive Grounds decisions, ultimately conflicting with the current judgment by advocating admissibility under certain conditions.
R v Turner [1975]: Outlined the standards for expert evidence admissibility, emphasizing that expert opinions should provide information beyond the court's knowledge.
R v Bonython (1984): Defined the criteria for determining whether a witness qualifies as an expert based on study or experience.
VCL and AN v United Kingdom [2021]: Highlighted the Strasbourg Court's stance that prosecuting authorities are not bound by the Competent Authority's decisions unless there’s a substantial reason to disagree.

Legal Reasoning

The court's reasoning centered on the admissibility criteria for expert evidence. According to the Criminal Procedure Rules (CrimPR) Part 19 and relevant case law, expert evidence must:

Be relevant to a matter in issue.
Be provided by a competent individual with demonstrable expertise.
Offer information outside the court's inherent knowledge.

The SCA's conclusive grounds decision was deemed inadmissible as it did not align with these criteria. The decision was an administrative determination, not an expert opinion. Additionally, Mr. Barlow’s testimony failed to establish him as a qualified expert in modern slavery, rendering his evidence non-admissible. The court emphasized that mere possession of experience or involvement in related administrative functions does not suffice for expert witness status.

Furthermore, the judgment scrutinized the reliance on hearsay and inconsistent accounts within the SCA's decision and Mr. Barlow's reports. The court held that evidence must be based on verified facts, and any opinion should be grounded in accurate and comprehensive information, neither of which was adequately demonstrated in this case.

Impact

This judgment significantly impacts how modern slavery defenses are approached in criminal trials. Key implications include:

Exclusion of Administrative Decisions: Decisions by the Single Competent Authority are not admissible as expert evidence, ensuring that administrative bodies do not overstep into judicial determinations.
Stricter Expert Evidence Standards: Expert witnesses must unequivocally demonstrate specialized knowledge and reliability, particularly in sensitive areas like modern slavery.
Prosecution Confidence: The ruling bolsters the prosecution's position by limiting defenses based on administrative conclusions unless robustly supported by admissible evidence.
Operational Delays: Highlighting the inefficiency within the National Referrals Mechanism may prompt reviews aimed at reducing case backlogs and improving decision timelines.

Future cases will likely reference Brecani v. R. when addressing the admissibility of evidence stemming from administrative authorities or involving alleged experts in similar defense claims.

Complex Concepts Simplified

Single Competent Authority (SCA)

The SCA refers to a designated body within the Home Office responsible for assessing and determining whether an individual is a victim of modern slavery. Their decisions can influence both criminal and immigration proceedings but, as established in this case, cannot serve as expert evidence in court.

Section 45 Defence

Under the Modern Slavery Act 2015, section 45 provides a defense for defendants who commit offenses as a direct consequence of being victims of slavery or relevant exploitation. It requires the defendant to prove that their actions were influenced by their victimization.

Conclusive Grounds Decision

This is a definitive determination made by the SCA on whether an individual is a victim of modern slavery based on available evidence. While pivotal for administrative and prosecutorial decisions, such as whether to charge or continue proceedings, it does not qualify as admissible expert evidence in trial courts.

Expert Evidence

Expert evidence involves specialized knowledge provided by individuals with expertise in specific fields to assist the court in understanding complex matters beyond common knowledge. For such evidence to be admissible, the expert must demonstrate relevant qualifications and reliability.

Conclusion

The Court of Appeal's decision in Brecani v. R. underscores the judiciary's commitment to maintaining stringent standards for evidence admissibility, particularly concerning defenses rooted in modern slavery claims. By excluding the SCA's conclusive grounds decision and Mr. Barlow's expert testimony, the court reaffirmed that administrative determinations and inadequately supported expert opinions do not hold sway in criminal trials. This judgment reinforces the necessity for defendants to present robust, independently verifiable evidence when invoking the section 45 defense and clarifies the boundaries between administrative authorities and judicial processes. Consequently, the ruling ensures that convictions remain grounded in admissible and reliable evidence, preserving the integrity of the criminal justice system.

Legal practitioners must take heed of this precedent, ensuring that modern slavery defenses are substantiated with appropriate expert testimony and not solely reliant on administrative decisions. Moreover, the judgment may prompt a reevaluation of the operational procedures within the National Referrals Mechanism to mitigate delays and enhance the efficiency of handling such sensitive cases.