The Independent Anti-Slavery Commissioner, Dame Sara Thornton, will today publish her review: The Modern Slavery Act 2015 statutory defence: A call for evidence.  A link to the report is immediately below.

In her first Strategic Plan 2019-2021, the Commissioner set out her commitment to work with criminal justice agencies to gain a better understanding of what was happening on the ground in respect of the use of the statutory defence provided by s.45 of the Modern Slavery Act 2015. A call for evidence was launched in January 2020 and received over 100 responses and 200 cases.  The cases were analysed and a number of experts interviewed.  Two round table discussions were held, one on criminal justice processes the other on the child protection issues that had emerged.

Dame Sara Thornton, Independent Anti-Slavery Commissioner, said:
“The evidence submitted to this review revealed the significant extent to which the statutory defence under the Modern Slavery Act is being used, predominantly in drug trafficking cases. Many of the cases were raised by contributors because they were seen as problematic and I have concluded that there is considerable concern. On the one hand, failure to consider the possibility of criminal exploitation at the start of an investigation is risking victims being wrongly prosecuted. On the other hand, over-reliance on the trafficking decisions made by the Home Office Single Competent Authority and failure to consider properly the legal components of the defence is risking prosecutions being discontinued when the matter could have been put before a jury. Furthermore when victims are correctly identified that identification is not triggering effective protection from the considerable harm posed by the traffickers. Non-prosecution alone will not protect a child or vulnerable adult; it must be supported by effective safeguarding. The operation of the statutory defence is neither adequately protecting victims of trafficking nor adequately protecting the public.”

"I am very grateful to those who have contributed their time and expertise to this review but the review would have been greatly assisted by data on the use of this defence. However there is none. It is essential that the police, CPS and courts collaborate to identify a way in which this area of significant public interest can be monitored both qualitatively and quantitatively and reviewed again in due course."

This review makes ten practical recommendations which are aimed at making the current system work better:

  1. The CPS legal guidance should clarify precisely what requirements there are on defendants and prosecutors when considering and deploying the statutory defence.
  2. Training in the statutory defence needs to be prioritised by the police, CPS, defence lawyers, magistrates and judiciary.
  3. The CPS should in all cases request the full trafficking consideration minute from the SCA in order to weigh and test the evidence in line with Home Office statutory guidance and CPS guidance.
  4. The SCA should develop and implement information sharing protocols with a range of bodies.
  5. The police, together with other criminal justice partners, should consider adopting Northumbria Police good practice of a national disclosure document to prompt consideration of the statutory defence.
  6. Every child within the NRM should be referred to the relevant local authority Children’s Social Care who should convene a Strategy Discussion under Section 47 of the Children Act 1989.
  7. The Department for Education should review and update ‘Working Together to safeguard Children’ as recommended by the Child Safeguarding Practice Panel Review.
  8. The Home Secretary should write to all local authorities to ensure that they understand what the NRM means in the context of children.
  9. The SCA should provide clear guidance to First Responders about the circumstances in which a separate NRM referral should be submitted.
  10. The SCA should improve the recording and monitoring of repeat referrals to the NRM to better understand the scale of continued trafficking and re-trafficking.