- Bookmark
- Share
- CaseIQ
Finch v R.
Factual and Procedural Background
The Appellant turned 18 on 14 October 2019 and was tried with five adult co-defendants in the Crown Court at The City. The jury were directed to treat the Appellant as if she "was under 18 at all material times". She did not give evidence. On 16 February 2024 the Appellant was convicted by a jury of two counts of conspiracy to convey list A articles into prison (synthetic cannabis) (counts 3, 9), one count of conspiracy to supply a Class A controlled drug (heroin) (count 4), one count of conspiracy to supply a Class B controlled drug (spice) (count 8), and one count of unauthorised transmission of image or sound by electronic communication from within a prison (count 17). She was acquitted of a number of other counts (counts 10, 11, 12, 13, 14, 15, 16). On 29 August 2024 Judge Hiddleston sentenced the Appellant to a total community order of three years. The Appellant obtained leave to appeal; one ground was abandoned and one ground of appeal remained: that the judge erred in directing the jury that to "establish forced and compulsory labour for the purposes of section 45(4) of the MSA 2015 there had to be evidence of a menace of penalty in the circumstances of the appellant's case". The Appellant sought leave to add a further ground relating to the way the trafficking limb of the section 45 defence was left to the jury (emphasis on "travel" rather than "recruitment"). The appeal was heard in the Court of Appeal (Criminal Division) sitting with Judge Edis, Judge Turner and Judge Picken. The appeal is against conviction only.
Legal Issues Presented
- Whether the judge erred in directing the jury that the Appellant had to have been "menaced by any penalty" for forced or compulsory labour to be established for the purposes of section 45(4) of the Modern Slavery Act 2015.
- Whether the judge was wrong to limit the trafficking limb of the section 45(5) defence to a finding that "another person arranged or facilitated her travel within the UK" (emphasising travel) rather than focusing on the recruitment element of trafficking.
Arguments of the Parties
Appellant's Arguments
- Attorney Wilcock and Attorney Munir argued that the phrase "menace of penalty" is inappropriate when addressing the section 45(4) defence for children because section 45(4) does not require compulsion; using the phrase risks setting an unduly high threshold for children.
- They submitted that for children used for illicit activities the defence will often be engaged and the real limiting safeguard is the section 45(4)(c) "reasonable person in the same situation and having the person's relevant characteristics" test, not a requirement of menace.
- They sought leave to add a ground that the jury direction on the trafficking limb over-emphasised "travel" and should have focussed on "recruitment" where travel was minimal or absent.
- They relied on psychiatric evidence of the Appellant's vulnerabilities (anxiety, depression, PTSD) as central to the section 45(4)(c) assessment.
Respondent's Arguments
- Attorney Dent submitted that the judge's use of "menace of penalty" reflected established legal history and that the judge's wider explanatory directions made the test broader than compulsion and therefore legally correct.
- He argued that, even if the first ground succeeded, the proposed second ground could not succeed because the statute includes travel in its definition and the judge did refer to recruitment; moreover the factual evidence showed minimal travel and no evidence of recruitment linked to travel, so the outcome would be the same.
- He analysed the factual evidence to show limited travel and no evidence of how the Appellant was recruited, arguing that the conviction remained safe.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| R v. Moon Swee How & Xiaoxia Yang [2026] EWCA Crim 476 | Construction of section 2 of the MSA 2015 and its relation to trafficking definitions. | The court noted that that decision, handed down the day before, interpreted section 2 as not requiring proof of the Article 4 "means" and observed that any tension with section 45 would be better resolved where section 45 is directly in issue; this case did not require further consideration of that tension because it concerned a child and the current appeal was focused on forced/compulsory labour rather than trafficking. |
| Basfar v Wong [2022] UKSC 20; [2023] AC 33 | Historical and authoritative explanation of the phrase "menace of any penalty" in the context of forced labour. | The court accepted the legal soundness of the phrase as shown in Basfar but held that the expression is apt to confuse jurors and is not a helpful way to explain the section 45 defence to a jury in cases involving children; the case was used to show the phrase's pedigree but not to justify its use here. |
| Van der Mussele v Belgium (1983) 6 EHRR 163 | Authority on forced labour requiring demonstration of a threat of penalty and absence of consent. | The court referenced the decision (via Basfar) for the proposition that forced labour involves a threat of penalty and absence of free choice; the court nevertheless emphasised that, for children under section 45(4), explanations that do not foreground "menace of penalty" are preferable. |
Court's Reasoning and Analysis
The court analysed the statutory scheme in sections 1, 2, 3 and 45 of the MSA 2015 and relevant international definitions (ECAT Article 4) as framed in the trial directions. It accepted that "menace of penalty" is legally sound (citing Basfar and the authorities referenced therein) but held that the phrase is not a useful or felicitous way to explain the section 45(4) defence to a jury in a child case because its modern meaning is not self-evident and it risks setting the bar too high. The court observed that the judge's written directions (sub-paragraphs (a)-(h) addressing indicators of forced or compulsory labour) sufficiently and properly explained the factors relevant to a finding of slavery/forced or compulsory labour in the section 45 sense and that those factors alone would have sufficed.
The court emphasised that, for children, compulsion is not a statutory element of the defence under section 45(4) and that the essence of the forced/compulsory labour concept in that context is pressure that need not amount to the absence of any realistic alternative. The court considered the completeness and balance of the judge's directions overall, including the Route to Verdict and detailed guidance on trafficking and the reasonable person assessment in section 45(4)(c).
On the facts, the court noted limited evidence that the Appellant was put under pressure by Person A; the Appellant did not give evidence and psychiatric evidence was relevant primarily to the reasonable person limb. The jury concluded that a reasonable person with the Appellant's relevant characteristics would not have committed the acts; the court considered that conclusion safe given the directions and the evidence. Concerning the proposed new ground on trafficking, the court held that the judge correctly identified the statutory terms (including "recruitment") and that, given the minimal travel evidence and absence of evidence linking recruitment to travel, the proposed ground did not merit leave.
Holding and Implications
APPEAL DISMISSED
Holding: The court dismissed the Appellant's appeal against conviction and refused leave to pursue the proposed additional ground.
Implications: The convictions and the sentence (a three-year community order imposed on 29 August 2024) stand. The court criticised use of the phrase "menace of penalty" as potentially misleading in child cases but found the judge's overall directions adequate and the jury's verdict safe. The judgment does not purport to establish a new precedent displacing existing authorities; it affirms that while "menace of penalty" is legally correct it is an unhelpful formulation for directing juries in child section 45(4) cases and that careful explanatory material (as given here) is preferable.
Alert