Factual and Procedural Background
The opinion concerns two appeals involving defendants convicted of offences related to possession and conspiracy involving identity documents and Class A drugs. The first appellant, referred to as MK, was convicted at the Central Criminal Court in June 2017 of conspiracy to supply cocaine and possession of an identity document with improper intention. MK was sentenced to 8 years imprisonment (conspiracy) and 5 months concurrently (identity document offence). The co-defendant pleaded guilty earlier and received a shorter sentence. MK seeks leave to appeal both conviction and sentence.
The second appellant, referred to as Gega, was convicted at the Crown Court at Wood Green in June 2017 of possession of a false identity document with improper intention and sentenced to 15 months imprisonment. Gega’s expedited application to appeal the sentence was refused, and she seeks leave to appeal the conviction.
Both appellants are Albanian nationals who claimed to be victims of trafficking and sought to rely on the statutory defence under section 45 of the Modern Slavery Act 2015 (“the 2015 Act”). The appeals raise the common issue of the burden of proof in relation to that defence.
Legal Issues Presented
- Whether the legal (or persuasive) burden of proof rests on the defendant when raising a defence under section 45 of the Modern Slavery Act 2015, or whether the defendant bears only an evidential burden with the prosecution required to disprove elements of the defence beyond reasonable doubt.
Arguments of the Parties
Appellants' Arguments
- The 2015 Act is silent on burden of proof, but the defence does not reverse the burden of proof; it absolves the defendant of criminal responsibility rather than being an exemption or proviso.
- It is unjustified to impose a reverse burden on some elements of the defence and not others.
- Interpreting the burden as reversed would be more onerous than the common law defence of duress, which is closely related and often raised alongside the section 45 defence.
- The reasoning that the defendant is best placed to prove her circumstances misunderstands the vulnerability of trafficking victims and deprives them of intended protection.
- The reversal of the burden contradicts Parliamentary intention as expressed in debates.
Respondent's Arguments
- The defendant bears an evidential burden to raise the defence, after which the prosecution must disprove the trafficking or slavery claim beyond reasonable doubt.
- Section 45 operates as an exception or exemption, not an essential element of the offence, placing a persuasive burden on the defendant consistent with established categories of statutory provisions.
- There is no analogy with duress, which is narrower and easier to disprove; the section 45 defence is broader and relates to various offences.
- The approach aligns with the burden of proof structure under section 31 of the Immigration and Asylum Act 1999 as considered in R v Makuwa.
- Parliamentary debates provide no assistance on the issue, and the prosecution’s approach follows Crown Prosecution Service Guidelines.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Woolmington v DPP [1935] AC 462 |
Establishes the fundamental principle that the prosecution bears the burden of proving the defendant's guilt beyond reasonable doubt. |
Affirmed as the "golden thread" of English criminal law guiding the presumption of innocence. |
| R v DPP ex parte Kebilene [2000] 2 AC 326 |
Identifies three categories of statutory provisions that may reverse the burden of proof, including exemptions or provisos not essential to the offence. |
Used to analyze whether section 45 imposes a reverse burden on defendants. |
| R v Makuwa [2006] EWCA Crim 175 |
Clarifies the evidential and persuasive burden structure in statutory defences, particularly under section 31 of the Immigration and Asylum Act 1999. |
Referenced to compare the burden of proof approach under section 45 of the 2015 Act. |
| Pepper (Inspector of Taxes) v Hart [1992] UKHL 2 |
Sets out the limited circumstances in which Parliamentary debates may be used as an aid in statutory interpretation. |
Considered but found unnecessary and unhelpful to resolve burden of proof issue. |
| R v Lambert [2001] UKHL 37 |
Discusses compatibility of reverse burden provisions with the presumption of innocence under ECHR Article 6(2). |
Used to assess whether section 45's burden on defendants is compatible with human rights. |
| R v Hunt (Richard) [1987] AC 352 |
Addresses statutory construction where burden of proof is not expressly stated, emphasizing Parliament’s intention and practical considerations. |
Guided the court in interpreting section 45’s burden of proof. |
| Nimmo v Alexander Cowan & Sons Ltd [1968] AC 107 |
Considerations for determining burden of proof in absence of express statutory language. |
Supported Hunt’s approach to statutory interpretation. |
| R v Edwards [1975] QB 27 |
Example of a statutory provision imposing a burden of proof on a defendant for a licence defence. |
Distinguished from section 45 as it applies to specific classes or permissions. |
| R v Whyte (1988) 51 DLR (4th) 481 |
Canadian authority on the presumption of innocence and the effect of reverse burdens. |
Quoted to illustrate that requiring a defendant to prove facts on balance of probabilities violates presumption of innocence. |
Court's Reasoning and Analysis
The court began by outlining the statutory framework of the Modern Slavery Act 2015, particularly section 45, which provides a defence for victims of slavery or trafficking who commit offences under compulsion. The defence applies broadly to all offences except those excluded by Schedule 4.
The court considered the burden of proof issue in light of established principles that the prosecution generally bears the burden to prove guilt beyond reasonable doubt, with limited exceptions. It examined the categories of statutory provisions that may reverse burdens as identified in Kebilene and related authorities.
The court rejected the prosecution’s approach that the prosecution must disprove beyond reasonable doubt that the defendant was a victim of trafficking or slavery before the defendant bears a legal burden on other elements. It found no statutory language or structure in section 45 to support imposing a legal or persuasive burden on the defendant for any element of the defence beyond an evidential burden.
The court emphasized that the defence under section 45 is an absolute defence of innocence, not merely an exemption or proviso. It noted that the prosecution’s approach effectively rewrites section 45 and lacks analogy with the Immigration and Asylum Act 1999.
The court acknowledged the practical difficulties in proving elements of the defence but concluded that these do not justify reversing the burden of proof. It recognized the objective element of the defence requiring that a reasonable person in the defendant’s situation would have no realistic alternative, which safeguards against abuse of the defence.
Regarding the issue of the defendant’s age, the court held that the prosecution must prove beyond reasonable doubt that the defendant is an adult, consistent with the Directive’s protections for children victims of trafficking.
Overall, the court held that the defendant bears only an evidential burden to raise the defence, and the prosecution must disprove one or more elements beyond reasonable doubt in the usual way.
Holding and Implications
The court holds that section 45 of the Modern Slavery Act 2015 does not impose a legal or persuasive burden of proof on the defendant for any element of the defence. The defendant bears only an evidential burden, and the prosecution must disprove the defence elements beyond reasonable doubt.
This decision clarifies the burden of proof framework for statutory defences under the 2015 Act, ensuring that victims of trafficking or slavery are not unjustly required to prove their innocence on the balance of probabilities. The ruling aligns with fundamental principles of criminal law and human rights protections under the European Convention on Human Rights.
In the individual appeals, the court allowed MK’s appeal against conviction and ordered a retrial, while dismissing Gega’s appeal, finding her conviction safe notwithstanding the misdirection on burden of proof. The court also directed corrections to the record to reflect Gega’s true identity rather than her alias.