The Non-Punishment of Human Trafficking Survivors: Impact of Recent Decisions

 

Section 45 of the Modern Slavery Act 2015 provides a defence to adult victims of human trafficking if they can show that: (a) they were compelled to commit the offence; (b) that the compulsion can be attributed to slavery or to relevant exploitation; and (c) that a reasonable person in the same situation and having the accused person’s characteristics would have no realistic alternative to doing that act. In the case of children, it must be established that their action was a direct consequence of their exploitation and that a reasonable person in the same circumstances and with the same characteristics would do this act. 

 

The European Court of Human Rights held that the UK had breached its obligations under articles 4 (prohibition of slavery, servitude and forced or compulsory labour) and 6 (fair trial rights) of the European Convention on Human Rights V.C.L. & A.N. v. The United Kingdom 77587/12 (16 February 2021). While UK law and policy have moved on since the events took place in 2009, establishing a defence under s45 of the Act has been made very difficult by a recent Court of Appeal decision Brecani v R

Nicholas Lobbenberg QC is a practising barrister at 4BB Chambers London and at 1 High Pavement Nottingham. He studied law at Magdalen College, Oxford, and was called to the bar in 1987. His areas of expertise include serious fraud, police law, serious sexual and violent crime, homicide, and proceeds of crime. Notably, he was counsel for Mr Brecani in Brecani v R 

Dr Marija Jovanovic is a Lecturer at the Essex Law School with a research focus on human trafficking and modern slavery, and the protection of human rights in the private sphere, especially in the context of international business, trade and global value chains. Her book on State Responsibility for Modern Slavery in Human Rights Law is forthcoming with the Oxford University Press in 2022. Her other publications examine the concept of exploitation that underpins the various manifestations of modern slavery, the ways in which regional regimes in Southeast Asia and Europe have redefined global anti-trafficking action to further their discreet regional agendas, the principle of non-punishment of victims for crimes they commit in the course of being trafficked and exploited, and the role of businesses in upholding the rights to work and just and favourable conditions of work. Marija holds a DPhil in Law, MPhil in Law, and Magister Juris degrees from the University of Oxford, and a law degree from Serbia. She previously worked as Postdoctoral Fellow in ASEAN Law and Policy at the Centre for International Law, National University of Singapore. Beyond academia, she regularly consults a range of international and non-governmental organizations including the Council of Europe, UNODC, USAID, CIDA, and the AIRE Centre.