Child Modern Slavery Defence (MSA 2015 s 45(4)): “Menace of Penalty” Language Discouraged, but Convictions May Remain Safe Where the “Reasonable Person” Limb Defeats the Defence

1) Introduction

In Finch v R [2026] EWCA Crim 477, the Court of Appeal (Criminal Division) considered how a trial judge should direct a jury on the Modern Slavery Act 2015 (“MSA 2015”) section 45(4) defence as it applies to a defendant treated as a child for the material period. The appellant had been convicted, after a multi-handed trial, of conspiracies involving the conveyance of “spice” into prison, conspiracies to supply heroin and “spice”, and an offence concerning unauthorised transmission of images/sound from within a prison.

The central issue on appeal was the correctness (and safety consequences) of a direction that, to establish “forced or compulsory labour” for the purposes of the child defence under MSA 2015 s 45(4), there had to be evidence that the appellant was “menaced by any penalty”. The appellant also sought (without leave) to add a further ground arguing that the judge had over-emphasised travel in the trafficking limb of the defence rather than recruitment.

2) Summary of the Judgment

  • The Court held that the phrase “menace of penalty”, while legally orthodox in describing forced labour in its international-law lineage, is not a useful expression for directing juries on the child version of the MSA 2015 s 45 defence; it is apt to confuse and may appear to set the bar too high.
  • Nonetheless, the convictions were safe. Reading the directions as a whole, the judge’s additional guidance (including vulnerability, psychological coercion, perceived risk, and the irrelevance of consent) sufficiently explained the relevant concepts.
  • On the evidence, there was limited material about pressure applied by the alleged exploiter. The real battleground was the statutory “reasonable person” limb: the jury were sure that a reasonable person with the appellant’s relevant characteristics would not have committed the acts.
  • Leave to add the further trafficking-ground was refused: the summing-up correctly reflected the statutory language (including “recruitment”), there was no evidential basis connecting recruitment to arranged/facilitated travel on these facts, and in any event the jury’s conclusion on the reasonable-person limb was fatal to both variants of the defence.

Outcome: appeal dismissed; application to add a new ground refused.

3) Analysis

3.1 Precedents and Materials Cited

(a) Basfar v Wong [2022] UKSC 20; [2023] AC 33

The Court relied on Basfar v Wong primarily for the historical and definitional pedigree of “menace of penalty” in forced labour: it appears in the Forced Labour Convention 1930 (No 29) and has been used to express the notion that labour is exacted under threat of penalty and without free choice. The Court accepted that the phrase is legally sound, but distinguished legal correctness from effective jury communication in the specific statutory setting of MSA 2015 s 45(4).

(b) Van der Mussele v Belgium (1983) 6 EHRR 163

Cited (via the dissent in Basfar) as authority explaining that forced labour requires (in that jurisprudential context) both a threatened penalty and an absence of real consent/free choice. Its significance here lay in demonstrating the international-law vocabulary feeding into domestic concepts, and hence why trial directions can drift into terminology (like “menace of penalty”) that may not map neatly onto the child defence in s 45(4).

(c) R v. Moon Swee How & Xiaoxia Yang [2026] EWCA Crim 476

Decided by the same constitution the day before the hearing and handed down the same day, How addressed construction of MSA 2015 s 2 (trafficking) and noted potential “tension” with s 45. In Finch, the Court treated that tension as not determinative because: (i) the granted ground concerned forced or compulsory labour rather than trafficking; and (ii) the potential mayhem is “most acute” for adult defendants under s 45(1), whereas the child defence in s 45(4) is structured differently.

(d) Judicial College Crown Court Compendium (modern specimen direction)

The Court used the Compendium to illustrate best practice: for child defendants, directions should avoid implying that “compulsion” is a necessary element of the defence. The Compendium’s emphasis—“Specify any relevant circumstances but doing so in a way that does not imply ‘compulsion’ as being a necessary element of the defence”—was treated as aligned with the statutory design of s 45(4).

3.2 Legal Reasoning

(a) The statutory architecture: adult vs child defence

The Court emphasised the difference between:

  • Adult defence (s 45(1)): requires compulsion and “no realistic alternative” (s 45(1)(b)–(d)).
  • Child defence (s 45(4)): does not require compulsion or “no realistic alternative”; it asks whether the offence was a direct consequence of slavery/relevant exploitation and whether a reasonable person in the same situation with relevant characteristics would do that act (s 45(4)(b)–(c)).

(b) “Slavery” in s 45 includes section 1 forced/compulsory labour

Although s 45(4)(b) uses the term “slavery”, the Court accepted (as the judge had done, and as the Compendium reflects) that, for s 45 purposes, “slavery” is used as an umbrella label that encompasses the three modalities in MSA 2015 s 1, including “forced or compulsory labour”. This matters because it requires directions that are coherent: the jury must understand what kind of exploitation counts without inadvertently importing adult-style “compulsion” thresholds into the child defence.

(c) Why “menace of penalty” is discouraged in child-defence directions

The Court’s key guidance is practical and jury-facing:

  • “Menace of penalty” is not self-evident in modern English and risks confusing jurors.
  • In the child defence, framing the first limb in terms of “menace” may imply a requirement of threats/compulsion inconsistent with the statutory design (where compulsion is not an element).
  • The better approach is to explain, in ordinary language, that the relevant question is whether the child offended because they were put under pressure, recognising that the pressure may fall short of eliminating all alternatives.

(d) Why the misdirection did not render the convictions unsafe

Despite criticising the language, the Court held the summing-up was safe overall because:

  • The judge gave expansive explanatory guidance (psychological coercion, intimidation including unspoken, perceived risk even absent explicit threats, vulnerability factors, and that consent is irrelevant).
  • There was little evidence of specific pressure by the alleged exploiter; the appellant did not give evidence and the psychiatric evidence did not directly identify inducements or pressure tactics as the operative cause of offending.
  • The “real disputed ground” was s 45(4)(c)—whether a reasonable person with the appellant’s relevant characteristics (age, sex, and mental illness) would do the acts. The jury’s guilty verdicts entailed that they were sure the reasonable-person test was not met, which defeated the defence regardless of the phrasing used in the first limb.

(e) Refusal of leave on the proposed trafficking ground

The Court refused leave because the judge’s directions did refer to recruitment, but the statutory definition still requires arranging or facilitating travel (s 2; and by s 45(5), relevant exploitation is exploitation attributable to being a trafficking victim). On the facts as presented, the appellant’s limited movement (e.g., going to the Post Office) was better characterised as incidental activity while already engaged in offending, not evidence of travel arranged/facilitated as part of recruitment into exploitation. Moreover, the reasonable-person conclusion defeated either variant of the s 45(4) defence.

(f) An unresolved interpretive pressure-point (flagged but not decided)

The Court acknowledged a conceptual difficulty created by the ECAT-derived language: it could be argued that “recruitment” into exploitation might be treated as “trafficking” even with minimal or no travel. The Court did not resolve the boundary because it was unnecessary on the case’s dispositive facts and the jury’s conclusion on s 45(4)(c).

3.3 Impact and Significance

(a) Direction-writing in child modern slavery cases

The decision offers appellate endorsement of a drafting principle: in child cases under s 45(4), judges should avoid presenting the defence through an adult-forced-labour idiom that suggests a requirement of explicit threats or compulsion. Even when legally traceable, “menace of penalty” risks being taken as a threshold that Parliament did not impose on children.

(b) The “reasonable person” limb as the practical fulcrum

Finch underscores that s 45(4)(c) can be decisive. The Court treated the reasonable-person inquiry—fact-sensitive and informed by “relevant characteristics” (including mental illness)—as the key filter that prevents the child defence becoming automatic.

(c) Safety analysis: misdirection vs overall summing-up

The judgment is also an example of the Court’s approach where a direction is criticised as suboptimal: it asks whether, in context, the direction likely caused the jury to apply the wrong legal test, and whether the evidence shows the verdict turned on a point unaffected by the complained-of wording.

(d) Trafficking limb: travel remains a statutory anchor (for now)

While not conclusively deciding the recruitment/travel boundary, the Court’s refusal of leave signals that appellate intervention is unlikely where the evidence does not link recruitment to arranged/facilitated travel and where the reasonable-person limb independently defeats the defence.

4) Complex Concepts Simplified

MSA 2015 s 45 defence (children)
A child is not guilty if the offence was a direct consequence of being a victim of slavery or relevant exploitation, and if a reasonable person of the same age/sex, with the same mental/physical illness or disability, in the same situation, would do the act. It is not necessary to prove the child was compelled or had “no realistic alternative”.
“Menace of penalty”
A term used in international materials on forced labour. It can include obvious threats (violence) and subtler psychological pressures, including perceived risks. The Court said it is not user-friendly language for juries and may wrongly suggest a high threshold in child cases.
“Direct consequence”
A causal link: the exploitation must be a real reason why the offence happened, not merely background vulnerability. The link is assessed count-by-count.
“Relevant characteristics”
Defined in s 45(5): age, sex, and any physical or mental illness or disability. These characteristics shape what the “reasonable person” would do.
Trafficking and “travel”
Under s 2, trafficking involves arranging or facilitating travel with a view to exploitation; travel includes movement within the UK. The Act also recognises “recruitment” as one way of arranging/facilitating travel, but the precise boundary where recruitment alone suffices (if ever) was not decided here.

5) Conclusion

Finch v R confirms that, in directing juries on the child modern slavery defence under MSA 2015 s 45(4), trial judges should avoid “menace of penalty” as a framing device because it may obscure the statutory distinction between child and adult defences and risks implying an unduly high threshold. However, the Court also makes clear that a less-than-ideal phrase will not necessarily make convictions unsafe where the directions, read as a whole, accurately convey the substance of the defence and where the jury’s verdict demonstrates rejection on a separate, determinative limb—particularly the reasonable person test in s 45(4)(c).