Court of Appeal holds modern slavery conclusive grounds decisions are NOT admissible as expert evidence
21 May 2021
R v Brecani [2021] EWCA Crim 731 — judgment here
On 19 May 2021 the Court of Appeal was asked to determine whether a Conclusive Grounds Decision made by the Single Competent Authority (“SCA”) that a person is a victim of modern slavery is admissible evidence in a criminal trial.
Respectfully disagreeing with the decision of the Administrative Court in DPP v M [2020] EWHC 3422 (Admin) (discussed on the Blog here), the Lord Chief Justice held that SCA caseworkers are not experts in human trafficking or modern slavery, further noting that their reports do not comply with the expert evidence requirements set out in CrimPR 19. Therefore, a decision by the SCA is not admissible in a criminal trial.
BACKGROUND
On 26 March 2020, the appellant was convicted of conspiracy to supply cocaine and was sentenced to three years’ imprisonment. The trial concerned the activities of an organised crime group which, over the course of about six months between February and August 2019, was involved in the supply of over £660,000 worth of cocaine in Southend.
The Defendant was aged 17 at the time and was charged alongside 13 co-defendants, ten of whom pleaded guilty to the same count, two were convicted and one acquitted. He relied upon the two limb statutory defence under s.45(4) of the Modern Slavery Act 2015 (“MSA 2015”), contending that:
- he was a child who had done the act as a direct consequence of having been a victim of slavery or relevant exploitation; and
- a reasonable person in the same situation as the person and having his relevant characteristics would do that act.
On 03 March 2020, a Conclusive Grounds Decision was reached by the SCA which, despite a number of inconsistencies, found the following types of exploitation occurred:
- Forced Criminality in Albania from 2016 – 2019
- Forced Criminality in Albania and the UK in 2019
Accepting his overall account, the SCA found that he was a victim of modern slavery. He had been recruited in Albania and transported to the UK during 2019 for the specific purpose of forced criminality. He was kept in houses in both Birmingham and Southend/Dartford. It was further accepted that he was forced into criminality against his will and was not paid.
In his evidence at trial the appellant explained that whilst he was attending school in Albania he had been first groomed and then coerced by two young males, who had initially offered him cannabis and then subsequently beaten him up and forced him to sell cannabis. In order to escape the situation, he had fled to the UK illegally. Upon arrival he was told that he owed his traffickers £15,000 for the cost of his travel to the UK and would have to work this off, cultivating cannabis in a house in Birmingham. From there he was taken to Dartford and told to take cocaine to Southend and bring the money back to Dartford.
He was, however, cross-examined on a number of inconsistencies in his account, and on mobile phone and cell-site evidence (that had not been before the SCA) which undermined this defence. The Court of Appeal stated that the “reality was that the content of the appellant’s phone coupled with cell site evidence completely undermined his defence under section 45 of the 2015 Act.” (paragraph [48]). He was convicted.
THE APPEAL
The question on appeal was simple: was the SCA’s Conclusive Grounds Decision admissible expert evidence, as it was held to be by the administrative court in DPP v M? The Defence relied heavily upon that case, and the Prosecution argued that it had been wrongly decided.
Dismissing the appeal, the Lord Chief Justice (giving the judgment of the Court) disagreed at paragraph [53] with the decision of the High Court in DPP v M:
In respectful disagreement with the Divisional Court in DPP v M we do not consider that case workers in the Competent Authority are experts in human trafficking or modern slavery (whether generally or in respect of specified countries) and for that fundamental reason cannot give opinion evidence in a trial on the question whether an individual was trafficked or exploited. It is not sufficient to assume that because administrators are likely to gain experience in the type of decision-making they routinely undertake that, simply by virtue of that fact, they can be treated as experts in criminal proceedings. The position of these decision-makers is far removed, for example, from experts who produce reports into air crashes for the Air Accident Investigation Branch of the Department of Transport which are admissible in evidence in civil proceedings: see Rogers v Hoyle [2015] 1 QB 265. Moreover, none of the requirements of CrimPR 19, designed in part to ensure that the person giving evidence is an expert, understands he or she is acting as such and understands the obligations of an expert to the court, were complied with.
The Court further stressed at paragraph [58], that
we are unable to agree [with the High Court] that expertise for the purpose of being accepted as an expert in criminal proceedings can be inferred from the fact that a person holds the job of case worker.
And, specifically on the facts of this case, the Court at paragraph [77] was
unpersuaded that [the SCA decision maker] had demonstrated sufficient knowledge of modern slavery in the context of the present case or that he had considered the range of facts necessary for reaching an informed opinion.
The Lord Chief Justice concluded by saying not only that the judge was right to exclude the Conclusive Grounds Decision, but that there was no question as to the safety of the conviction as the s.45 defence “was comprehensively demolished by the prosecution”.
COMMENTARY
One interesting strand of the Crown Prosecution Service’s argument was that the Conclusive Grounds Decision was inadmissible, using Gross LJ’s language in S(G) [2018] EWCA Crim 1828, on “… what may be broadly (if very loosely) described as Hollington v F Hewthorn & Co Ltd [1943] KB 587 grounds”. Hollington v F Hewthorn, although now reversed by statute in the specific context in which it arose, established a long-standing rule that findings of tribunals and inquiries are generally not admissible in subsequent proceedings before a different court. At paragraph [54], the SCA’s decisions were briefly distinguished from, for instance, the reports into air crashes for the Air Accident Investigation Branch of the Department of Transport discussed in Rogers v Hoyle [2015] 1 QB 265 (these are admissible in civil proceedings and an exception to the Hollington v F Hewthorn principle). A passing reference is also made to Gross LJ’s ruling in S(G) at paragraph [41], but it is interesting that the Court of Appeal omitted to directly address the Hollington v F Hewthorn argument.
Nevertheless, it is now clear that SCA Conclusive Grounds Decisions are not admissible expert evidence. Writing on this Blog following DPP v M I suggested that the ruling had set an important precedent, and one which was welcomed at the time as a “significant victory for victims of trafficking”. It appears that precedent has not withstood the test of time.
Whilst the legal reasons for the Court of Appeal’s decision are clear, those who defend alleged victims of modern slavery may have practical concerns. Depriving the courts of the possibility to consider SCA decisions in criminal trials will significantly reduce the evidence many courts will have before them on which to make these difficult decisions.
This ruling will bite particularly hard in cases where defendants, potential trafficking victims, are too scared to give evidence in court. DPP v M, for instance, concerned a 15-year-old boy who had given a no-comment interview and, for undisclosed reasons, did not give evidence in support of his defence at trial. It is easy to imagine the plethora of reasons why genuine human trafficking victims may not give evidence at trial as to how and by whom they were exploited. In the absence of the admission of the SCA decision in DPP v M, there would have been almost no evidence of the Defendant’s defence, and a human trafficking victim would have been criminalised.
Despite the obvious constraints that this ruling places on the usefulness of SCA decisions at trial, it should nevertheless be stressed that:
- SCA decisions may still be placed before courts considering abuse of process, or the safety of convictions when the defence was not raised (paragraph [40]); and
- there will still be circumstances in which a suitably qualified expert will able to give evidence relevant to human trafficking issues which are outside the knowledge of the jury, for instance to provide context of a cultural nature (paragraph [58]).
Samuel March is a pupil at 5 Paper Buildings. He tweets at @Sam_Oscar_March
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