A specially convened Court of Appeal recently gave judgment in R v Joseph & Others [2017] EWCA Crim 36, which concerns the criminal liability of victims of trafficking who commit offences in the course of their exploitation. The Court was called upon to determined the interplay between the pre-existing law and the Modern Slavery Act 2015, the effect of the UK’s international obligations on the common law defence of duress and the relationship between the Crown Prosecution Service and the Competent Authority.

Although the Modern Slavery Act 2015 now clearly sets out the circumstances in which a criminal defence may arise, the appellants in this case did not fall within the scope of the Act because they had variously not raised the issue prior to their conviction or had been prosecuted prior to the enactment of the 2015 Act. However, they argued that in light of that Act, they should be placed in the same position as those who could avail themselves of the defence contained therein. The Appellants therefore proposed that the common law defence of duress be expanded so as to make it sufficiently broad to encompass the means of trafficking set out in the Palermo Protocol and the UN Convention.

The Court rejected this approach, holding that there was no evidence of injustice sufficient to justify amending the parameters of the defence of duress in human trafficking cases.

The Court went on to confirm that when deciding whether a prosecution should proceed notwithstanding the direct causality of human trafficking/exploitation, the gravity of the offence committed was relevant but fact-sensitive in each case. Furthermore, it was reaffirmed that in the case of trafficked children who could demonstrate a direct link with their exploitation and offence, it was not necessary to demonstrate compulsion as it would be in the case of an adult.

Finally, the Court noted the lack of guidance on co-operation between the Competent Authorities and the CPS on dealing with claims after conviction and observed that the development of such guidance was desirable as the Court will always bear the findings of the Competent Authorities very much in mind.

Jessica Russell-Mitra acted for the second appellant.