Director of Public Prosecutions v M

This is an appeal by way of case stated pursuant to section 111 of the Magistrates’ Courts Act 1980 and section 28A of the Senior Courts Act 1981. The Director of

The issue of law is whether the Respondent discharged the evidential burden which lay on him in raising the statutory defence. In particular, the Appellant’s case is that the District Judge erred in her approach to the admissibility of the conclusive grounds decision of the Single Competent Authority (“SCA”) that M was a victim of modern slavery and in her further conclusions that the offence was a direct consequence of trafficking for the purposes of exploitation, and a reasonable person with the same characteristics in the same situation would have committed the offence.

On 16 May 2019 M went into a branch of Kentucky Fried Chicken in Tooting. He was with two 15-year-old males (to whom we shall refer as MP and KM) and a young female whose identity is not known. The group was observed by police officers going into the premises. MP and KM were known to the police as gang members and habitual knife carriers. M was not recognised by the officers. The police officers decided to stop and search MP and KM. When they went into the premises M was sitting with MP and KM. As they did so MP threw away a cannabis joint.

All three were searched. KM was found to have a small quantity of cannabis in his possession. Save for the cannabis which he had thrown away, MP had nothing of significance in his possession. M had 5 wraps of cocaine, 2 wraps of diamorphine (heroin) and a hunting knife in his possession.

M was arrested. Either on the way to the police station or on arrival at the police station M initially told police officers that he had the knife with him in order to cut steak. Thereafter he said that he had found the knife and that he had planned to hand it in. When he was interviewed under caution, M made no comment.

As well as the knowledge of the police officers as to the background of MP and KM, each had multiple previous findings of guilt. KM had 15 such findings relating to 33 separate offences including possession of a bladed article and possession of drugs. MP had 4 findings of guilt relating to 8 offences including possession of a bladed article and possession of drugs.

At trial the prosecution relied on the evidence of P.C. Wright, one of the officers who had observed the group going into Kentucky Fried Chicken, and of D.C. Jones, the arresting officer. P.C. Wright’s evidence was read. He was the officer who gave evidence of the background of MP and KM. He had dealt with both young men in the

D.C. Jones had observed M whilst he was in custody. He had no concerns about M at that point. M appeared to be unconcerned about being in a police station. He was laughing and joking with MP and KM who also were in custody. He had the opportunity to raise concerns with D.C. Jones had he wished to do so but M said nothing to the officer. D.C. Jones only became aware of any possibility of exploitation when he later spoke to M’s father. D.C. Jones had been working in the local gangs’ unit for two years. In that time he had not made any referrals via the National Referral Mechanism (“NRM”). That was something dealt with by an independent police officer.

In addition to the evidence of the police officers, a set of 14 facts was agreed in accordance with section 10 of the Criminal Justice Act 1967. The admitted facts included the following:

The full minute of the SCA decision was a five-page document. It recorded the sources of information on which the decision maker had relied, namely Lewisham Children’s Social Care and the Metropolitan Police. It set out in summary form the factual matters taken into account by the decision maker. These were: police information about the behaviour of M when in custody (the evidence of DC Jones); concerns of the authorities about the effect of M’s parents’ background and history on his development; M having been stabbed in an incident in March 2018; M having gone missing from home since that incident; a social services report in June 2019 to the effect that M did not want to return to live with his mother and that he felt safe when he went missing because his friends looked after him; positive behaviour at home and at school after June 2019 and since being rehoused in local authority care; police confirmation that M was vulnerable due to age and had made no financial gain from gang involvement. The full minute then analysed the effect of those matters on the actions of M. It acknowledged that not all children involved in criminality will have been trafficked. However, taking all matters into account, the decision maker concluded on a balance of probabilities that M had been targeted by gang members for the purposes of criminal exploitation. The decision summary was that M was a victim of modern slavery for the purposes of criminal exploitation.

The judge considered all of the evidence put before her including the full minute of the SCA decision. She found the following matters of particular relevance in favour of a conclusion that M had been exploited:

The judge also had regard to matters which the prosecution argued were factors tending to suggest that M had not been exploited:

In relation to the SCA decision the judge referred to R v Joseph and others [2017] EWCA Crim 36; [2017] 1 Cr. App. R. 33 at [21(viii)]:

“…the decision of the competent authority as to whether a person had been trafficked for the purposes of exploitation is not binding on the court but unless there was evidence to contradict it or significant evidence that had not been considered, it is likely that the criminal courts will abide by the decision {see L(C) at [28]).”

She referred also to the Crown Prosecution Service guidance issued in 2015 which set out that, in relation to those under 18, it was not necessary for compulsion to be demonstrated in order to establish the statutory defence. Rather, it was necessary for the commission of the offence to be a direct consequence of trafficking for the purposes of exploitation. The judge noted the guidance for Home Office staff employed by the SCA in relation to cases of exploitation involving those under 18, guidance which was repeated in the SCA decision.

The judge recorded that the prosecution had not argued that, in order to meet the evidential burden which lay on him in relation to the statutory defence, M had to give evidence. Nor did they suggest that he had to have provided some explanation in his

The judge went on to consider the relevant provisions of the Modern Slavery Act 2015. We shall return to the detail of these provisions hereafter. It is appropriate to set out here the terms of section 45(4) of the 2015 Act i.e. the sub-section applicable to M:

The question posed on the 30 January 2019 for the opinion of the court is:

The grounds of appeal dated 7 February 2020, state that the District Judge made an error of law because she relied on the SCA decision which was opinion evidence on

In his skeleton argument and in oral submissions before us Mr Ben Douglas-Jones QC on behalf of the Appellant said that the SCA decision was inadmissible. It was nonexpert opinion evidence and was hearsay. The decision was the product of a review of extraneous material by a Home Office employee who was not an expert. Insofar as the decision contained evidence of fact rather than opinion, that evidence was equivocal and untested. Mr Douglas-Jones argued that the validity of the SCA decision was further undermined because at one point when dealing with M’s lack of financial gain it failed to apply the correct standard of proof (balance of probabilities). Rather, the decision stated that “it is suspected” that M was committing offences on behalf of third parties.

Mr Douglas-Jones accepted that a conclusive grounds decision of the SCA can and will be admitted by a court when considering an application to stay a case as an abuse of process by reference to a review of the prosecutorial process. He said that in fact such an application would be most unlikely in any proceedings to which the statutory defence applied. It will also be admissible when the Court of Appeal Criminal Division is considering the safety of a conviction in a case where it is said that a person’s trafficking status has not been considered at trial either properly or at all. However, no SCA decision can be admissible in a criminal trial. The function of any SCA decision is to meet the Convention obligations of the UK (to which we shall refer hereafter), namely to have a procedure which can identify victims of trafficking so that the person concerned is not removed before their status is confirmed. It was never intended to be used as evidence in criminal proceedings. In M’s case the prosecution agreed to the SCA decision being placed before the judge. This was limited to treating the factual basis for the decision as agreed facts. The decision itself was not agreed.

Mr Douglas-Jones submitted that those responsible for making SCA decisions were not experts. He observed that no SCA decision complied with the requirements of Part 19 of the Criminal Procedure Rules. He said that a tribunal of fact in criminal proceedings – whether the jury in the Crown Court or a District Judge or lay justices in the magistrates’ court or the youth court – was well suited to making the decisions of fact required in relation to the statutory defence in the 2015 Act. Expert evidence might assist the fact finder in making the decisions of fact. But expert evidence in that context can only be of value if the facts are established by evidence from the defendant. Mr Douglas-Jones drew a parallel with psychiatric or psychological evidence.

In relation to the conclusion of the District Judge on the facts of this case, Mr Douglas-Jones argued that all the judge had was hearsay evidence that, in general terms, M may have been a victim of trafficking. There was no evidence of any material weight to show that M’s criminal acts were a direct consequence of his status or that a reasonable person of his age would have carried out those acts. He said that, before the introduction of the 2015 Act, when any issue of trafficking fell to be dealt with by an application to stay proceedings as an abuse of process, the more serious the criminality, the greater the level of compulsion would be required for a prosecution not to be justified. Thus, where the issue was whether a defendant had satisfied the evidential burden to raise the statutory defence under section 45 of the 2015 Act, that burden will be higher in cases of serious criminality. In the context of the offences with which M was charged, the evidence did not satisfy the burden which lay on him.

On behalf of M Ms Brenda Campbell QC and Mr Sam Parham provided a skeleton argument and made oral submissions before us. They argued that the judge’s decision that M had discharged the evidential burden was justified given the circumstantial evidence available to her. For instance, the judge was entitled to take into account the incongruity of two known gang members having no incriminating items whereas a vulnerable child in their company did. There was no requirement upon M to give evidence or to have provided an explanation in interview. Such a requirement would leave the most vulnerable trafficked child who was too frightened to give a positive account without the protection afforded by the 2015 Act. Ms Campbell submitted that the prosecution in M’s case was able to challenge the proposition that there was a nexus between the exploitation and the offence and that a reasonable person in M’s position would have acted as he did. The judge considered the evidence relied on by the prosecution. Having carried out a reasoned review of the law and the facts, she concluded that the evidential burden had been discharged and that the prosecution had failed to disprove the statutory defence. Ms Campbell argued that this court should be loath to overturn a robust assessment of the evidence as made in this case.

Ms Campbell submitted that the admissibility of the SCA decision does not arise in the appeal. Pursuant to section 10 of the Criminal Justice Act 1967 it was admitted as a fact that the SCA had made a conclusive grounds decision in M’s favour, the minute of the decision being exhibited. It is said that it is not open now for the Appellant to dispute its admissibility. Moreover, insofar as the judge relied on the decision, it was only one factor in her decision. The circumstantial evidence available to her was more than sufficient to discharge the evidential burden. Thus, it is unnecessary to resolve the question of the admissibility of the SCA decision.

Ms Campbell argued in the alternative that, if it is necessary for the court to determine the issue of admissibility of the SCA decision, the correct conclusion is that the decision was and is admissible. She relied on these matters. First, the SCA is the agency vested with the responsibility of determining whether a person has been trafficked. The agency is an expert case-working unit staffed by trained officials with access to multi-agency sources. Second, in the abuse jurisdiction SCA decisions are admitted and afforded weight. It would be an affront to withhold a decision of the SCA from a factfinder when the prosecution is challenging the conclusion reached by the SCA. Third, SCA decisions are admitted by the Court of Appeal Criminal Division and various statutory tribunals in the context of a factual decision in relation to a person’s trafficked status. There is no reason why they should not similarly be admissible in a criminal trial when that status is in issue. Fourth, expert evidence can be based on a body of experience of the kind available to an SCA decision maker. Ms Campbell submitted that police officers who provide evidence about methods of drug dealing or the organisation of gangs provide expert evidence. The SCA decision maker falls into the same general category of expertise. Finally, Ms Campbell argued that the consequence of the SCA decision being inadmissible would be delay and diversion of resources. Disclosure from third parties would be required. Other evidence would have to be called. This would be avoided by the admission of the SCA decision.

In December 2008 the United Kingdom ratified the Council of Europe Convention on Action against Trafficking in Human Beings (“ECAT”) with a view to its implementation with effect from 1 April 2009. Article 10.1 of ECAT provides as follows:

The organisational position changed in April 2019 as described in the Home Office guidance issued in May 2019.

Section 49(1) of the 2015 Act requires the Secretary of State to issue statutory guidance as follows:

This appeal concerns the application of the statutory defence in section 45 of the 2015 Act as follows:

The 2015 Act came into force on 31 July 2015. Prior to that there was no statutory provision which transposed into the law of England and Wales the obligations of the UK under international conventions relating to human trafficking where there was a nexus between the commission of a crime and the trafficking. Those obligations were given effect by a series of decisions of the Court of Appeal Criminal Division and the proper exercise of prosecutorial discretion by the Crown Prosecution Service. The legal regime established thereby is summarised in Joseph and others at [20].

It is not necessary for us to rehearse the regime in any detail, not least because it has been replaced by the 2015 Act. In brief, the criminal court’s role was to police the exercise of prosecutorial discretion when a defendant had been trafficked for the purpose of exploitation and there was a nexus between the trafficking and the commission of the crime. Where the Crown Prosecution Service failed to give proper consideration to the effect of trafficking, the court would exercise its power to stay the proceedings. The power would not be exercised in the absence of a nexus between the offence and the trafficking. Even if there were a nexus, the appropriateness of prosecution would depend on factors such as the gravity of the offence and the degree of continuing compulsion.

The starting point for any consideration by a court of whether proceedings should be stayed would be whether the defendant had been trafficked for the purposes of exploitation. The status of a conclusive grounds decision was discussed in R v L(C) [2013] 2 Cr. App. R. 23 at [28]:

In relation to the position as it applied prior to the 2015 Act the most recent authority of the Court of Appeal Criminal Division is R v S(G) [2018] EWCA Crim 1828; [2019] 1 Cr. App. R. 7. S had been convicted in November 2007 of importing a Class A drug and had been sentenced to 7 years’ imprisonment. She appealed some 9 ½ years out of time on the basis that no consideration was given at the time of her trial to her status as a trafficked person and its effect on her criminal liability. One limb of her case was that a Competent Authority in 2015 had made a conclusive grounds decision that she had been trafficked and that she was a victim of forced labour. This decision had followed a First-tier Tribunal (FTT) judgment to the same effect in immigration proceedings.

The court in S(G) was asked to admit the FTT judgment and the conclusive grounds decision as fresh evidence pursuant to section 23 of the Criminal Appeal Act 1968. The evidence was so admitted. Gross LJ said this at [68]-[69]:

It follows that the admissibility in a trial of a conclusive grounds decision of the SCA was not clearly and finally determined in the authorities concerned with cases prior to the introduction of the statutory defence. Those authorities concerned the exercise of the power to stay proceedings. By definition that exercise could not involve a jury considering any evidence. In S(G) it was regarded as unlikely that either the conclusive grounds decision or its underlying reasoning would be admissible at trial despite the fact that the decision had been received as fresh evidence which may afford a ground for allowing the appeal. It was said that the issue of admissibility in practical terms would not have arisen because the prosecution would have been required to make admissions as to their recognition of the appellant as a victim of trafficking. Arguably it is not clear how the prosecution could have been so required were their case to have been that the appellant was not a victim of trafficking though this was put forward as the means by which to admit the Competent Authority’s decision at trial. In the result the court in S(G) found that the appellant had not been subjected to such a degree of compulsion as to excuse her from criminal liability. That was the point argued by the prosecution notwithstanding its acceptance of the content of the conclusive grounds decision in relation to the trafficked status of S. The conclusive grounds decision did not purport to determine the issue of whether the status of the trafficked person absolved them from criminal responsibility.

The first appellate consideration of a conclusive grounds decision in the context of the statutory defence under the 2015 Act came in R v N [2019] EWCA Crim 984. N was an adult. He had pleaded guilty in July 2016 at the Crown Court to an offence of production of cannabis. He was sentenced to a short period of imprisonment. Following sentence he was given notice of deportation. He appealed approximately 22 months out of time. By then N had made an asylum claim which had been allowed by the First-tier Tribunal. The Tribunal’s decision included a finding that N was a victim of trafficking, that finding being based on a conclusive grounds decision of the Competent Authority. In his appeal N applied to adduce the conclusive grounds decision as fresh evidence supporting a statutory defence under the 2015 Act. In his case the defence was said to arise under section 45(1), N being an adult. Pursuant to section 23 of the Criminal Appeal Act 1968 the Court of Appeal received that decision together with the Tribunal decision. The judgment at [8] states simply “….The documents are relevant and admissible.”

The court in R v N allowed the appeal. The reasoning was as follows: there was no dispute but that N was a victim of trafficking at the time of his offence; this was not recognised by anyone at the time of conviction and sentence; had the matter been properly investigated there would have been a referral under the National Referral Mechanism which would have led to a conclusive grounds decision in N’s favour; on receipt of that decision the prosecution would have decided that they could not defeat the statutory defence and they would have offered no evidence. Thus, the court did not have to consider how the material would have been admissible at trial. It was admissible in the appeal to show how the case would have proceeded had it been available at the time of the conviction. It was unnecessary to consider how the conclusive grounds decision might have been admitted before the jury because the case never would have proceeded that far.

The only other appellate consideration of section 45 which is of any possible assistance is R v DS [2020] EWCA Crim 285. DS was 17 in July 2018 when allegedly he was in possession of drugs with intent to supply. The 2015 Act was in force. The statutory defence applicable to him, like M, was as set out in section 45(4). However, in the Crown Court DS applied prior to the trial to stay the proceedings as an abuse of process. His case was that he was a homeless young person who was exploited by a “county line” drug dealing network. The SCA had made a conclusive grounds decision that he was a victim of trafficking. N argued that he should not have been prosecuted. The judge in the Crown Court acceded to the defence application and stayed the proceedings by reference to the regime summarised in Joseph and others. The prosecution appealed this terminating ruling.

The court allowed the prosecution’s appeal for the reasons summarised at [40].

As to the admissibility of the conclusive grounds decision at trial the court in DS said this at [43]:

A positive conclusive grounds decision of the Competent Authority may be relevant in immigration proceedings in the Immigration and Asylum Chamber whether in the First Tier Tribunal or in the Upper Tribunal e.g. where a protection claim under the Nationality, Immigration and Asylum Act 2002 is in issue. The proper approach to such a decision in the Immigration and Asylum Chamber was considered by the President of the Chamber sitting with two Upper Tribunal judges in DC(Albania) [2019] UKUT 00351 (IAC) at [36]:

In MS (Pakistan) v Secretary of State for Home Department [2020] UKSC 9 the

Before the Supreme Court the Secretary of State did not support the conclusion of the Court of Appeal. As Lady Hale observed at [11]:

“…it is now common ground that the tribunal is in no way bound by the decision reached under the NRM, nor does it have to look for public law reasons why that decision was flawed.”

For the reasons set out at paragraph 23 above Ms Campbell argued that it is not necessary for us on the facts of this case to determine the issue of admissibility of the SCA decision. We are not persuaded by the second limb of Ms Campbell’s argument. The case stated makes it clear that the District Judge took account of the SCA decision. Moreover, immediately before she set out her final determination, she recited the decision’s core finding i.e. that M was a victim of criminal exploitation. It may be that the judge’s determination would have been the same irrespective of her consideration of the SCA decision. That is a question to which we shall return. However, the issue of admissibility does arise given the terms of the judge’s decision making process as revealed in the case stated.

The point made by Ms Campbell in relation to the section 10 admission is problematic. Section 10(1) of the 1967 Act is in these terms:

The core submission of the Appellant is that the SCA decision is non-expert opinion evidence. As such it is not admissible. We do not understand Mr Douglas-Jones to have argued that expert evidence is inadmissible per se on the question of trafficking or exploitation. Whether a person is a victim of exploitation is a question of fact. It is not something which is immediately identifiable such as the colour of a person’s hair. Therefore, the fact finder in a criminal case will require evidence to assist in determining the fact. Expert evidence is admissible when the subject matter is something on which the ordinary person without particular experience in the relevant area could not form a sound judgment without the assistance of a witness with such experience. The factors relevant to trafficking or exploitation are not necessarily within the knowledge of the ordinary person. Expert evidence on which factors are relevant must be admissible.

Moreover, assessment of the significance of a given set of factors present in a particular case may properly be the subject of expert evidence. A person with the necessary expertise can give context to the factors by reference to their wider experience of other cases. This may involve the expert giving evidence on one of the issues in the case i.e. is the defendant a victim of trafficking or exploitation? Even if it is the ultimate issue – which in most instances it will not be given the other limbs of the statutory defence – the expert will be entitled to give the evidence. That occurs in many cases of homicide where the issue is diminished responsibility. A psychiatric expert will give an opinion on whether the defendant’s responsibility was substantially diminished by his abnormal mental functioning and whether this was a significant cause of the defendant acting as he did.

In the course of the hearing we asked whether an SCA decision that a person was or was not a victim of trafficking or exploitation could be treated as analogous to a

Where age is in issue in relation to anyone brought before a criminal court, the court is obliged to make “due inquiry” as to the age of the person: section 99 Children and Young Persons Act 1933. In practical terms the “due inquiry” in any criminal proceedings very often will be to commission a Merton compliant age assessment. An age assessment of this kind will be admissible in a court as evidence of age when the court is determining the proper venue for the proceedings and venue is to be determined by the age of the defendant: M v Hammersmith Youth Court [2017] EWHC 1359 (Admin). The age assessment will not necessarily be determinative but it is nonetheless admissible. Where the age of a defendant is in issue in the Crown Court, this will usually be in the context of sentencing. The issue of age will be determined by the judge. The judge will admit the evidence of a Merton compliant age assessment.

Mr Douglas-Jones and Ms Campbell each provided helpful written submissions in relation to the status of age assessment evidence. Mr Douglas-Jones argued that such evidence will only be admitted before any trial in order to resolve the question of age. There is an analogy to be drawn with SCA decisions but that is because SCA decisions similarly will only be admitted pre-trial when considering issues of abuse. He submitted that age assessments are not admissible before a jury or other tribunal of fact. If age is relevant in the fact finding exercise, it must be dealt with by the calling of relevant and admissible evidence. This may be the same evidence as was considered in the Merton compliant age assessment but the assessment itself is not admissible.

Ms Campbell also argued caution in drawing any parallel between age assessment evidence and SCA decisions albeit for different reasons. She invited us to conclude that social workers conducting Merton compliant age assessments have significantly less expertise than decision makers responsible for SCA decisions. Thus, such assessments do not amount to expert evidence on the issue of age. She also agreed with Mr Douglas-Jones when he argued that age assessments have a part to play in pre-trial proceedings but not in any trial.

Neither Mr Douglas-Jones nor Ms Campbell pointed us to any authority where age had been in issue at the trial and the admissibility of a Merton compliant age assessment had been considered. Clearly it is not for us to determine whether a Merton compliant age assessment is admissible in a criminal trial. The question does not arise in these proceedings. Nonetheless, we consider it appropriate to observe that, although age usually is an issue which arises pre-trial, there are cases where age is a relevant fact to be proved as one of the elements of the offence charged. Where the person concerned was born in and has been domiciled at all times in the UK, proof

One objection Mr Douglas-Jones raised to the SCA decision was that, even if it could be regarded as expert evidence, it depended on facts which could only be established by M giving evidence. He drew a parallel with psychological or psychiatric evidence. We do not consider that this parallel was apposite other than to demonstrate that his objection was erroneous. In Bradshaw (1986) 82 Cr App R 79 the position was explained thus:

We acknowledge that the SCA decision maker will not have prepared their minute of decision with a view to its being used as expert evidence. That does not of itself prevent its admission in criminal proceedings. The decision maker is always acting under a duty and will be aware of the likelihood that the conclusive grounds decision will be used in proceedings of some kind, whether in a court or a tribunal. We further acknowledge that the SCA decision maker will not have anticipated giving evidence in relation to their conclusive grounds decision. In that context we see the force in the observations of Gross LJ in S(G) as cited above. In practical terms the minute of the SCA decision will be introduced by an agreed fact – which of course is what apparently happened in this case. That route involves an acceptance that the decision is admissible.

We consider that the District Judge was entitled to receive and admit the findings of the SCA as evidence that M had been recruited and harboured such that he had been trafficked within the meaning of the 2015 Act and that he was a victim of criminal exploitation. The SCA decision maker had expertise in relation to those issues. The judge was entitled to consider the findings and assess the extent to which they were supported by evidence. Insofar as appropriate, she would have been able to reduce the weight she gave to the findings. However, that is a question of weight rather than admissibility. In fact, the SCA decision was based on a proper evidential foundation and it was not contradicted by other material available to the judge.

In his skeleton argument Mr Douglas-Jones stated that, if an SCA decision were to be admissible in a trial in relation to the application of the statutory defence in any given cases, this would have “significant implications in terms of prosecutorial practice”. We do not agree. The weight of a conclusive grounds SCA decision will vary. The prosecutor will be in a position to assess the weight of the decision just as the prosecutor can assess the weight of other evidence relevant to the issue of a defendant’s status as a victim of trafficking or exploitation. The decision made by a prosecutor as to whether the defendant has satisfied the evidential burden and, if so, whether the prosecution can disprove the statutory defence will depend on an assessment of all of the available material. As the facts of this case amply demonstrate, a conclusive grounds decision will not be determinative in the criminal context any more than it is in tribunal proceedings.

Irrespective of the admissibility of the SCA decision, the question posed in the case stated is whether M had sufficiently discharged the evidential burden in relation to the two elements of the statutory defence: whether he committed the offences as a direct consequence of being a victim of exploitation; whether a reasonable person in his position would have committed the offences. It should be noted that the SCA decision could not and did not address the second element at all. The decision did not reach any direct conclusion as to whether the offences were a direct consequence of M being a victim of exploitation. It is not the function of the SCA to consider the consequences of a person being a victim of exploitation.

Mr Douglas-Jones contended that the District Judge had no more than generalised hearsay evidence which did not go to M’s specific circumstances. There was no satisfactory evidence of the offending being the consequence of any exploitation or of the offences being ones which a reasonable person in M’s position would have committed. In respect of the latter point, the Appellant argues that the evidential burden is particularly high where “the acts comprise the possession of a perniciously dangerous knife in a public place (a family restaurant) and perniciously dangerous drugs for the purposes of supply (again in a family restaurant).”

We do not accept that the evidence available to the District Judge on the two issues where it is said that M could not satisfy the evidential burden was purely general in nature. The relevant direct evidence was as follows: M was a missing child; he was in an area with which he had no connection; he had no previous convictions; he was with two boys with a significant criminal history involving drugs and knives. This was not hearsay evidence. The hearsay evidence described M’s troubled background by reference to local authority and police records. The records were admissible under section 117 of the Criminal Justice Act 2003.

The evidence showed that M travelled to Tooting when he had no apparent reason for doing so. As a matter of fact he was in company with two boys with a history of criminal behaviour. There was sufficient to allow the inference that M’s presence in Tooting had been facilitated by them with a view to him being exploited. The fact that M was in possession of the very kind of item which might be expected to be in

Having determined that M had discharged the evidential burden in relation to the statutory defence the District Judge was entitled to conclude on the basis of the evidence she had that M was a victim of exploitation and that his offending was a direct consequence of that status. Her conclusion that the prosecution had failed to prove the contrary was fully justified.

The District Judge concluded that the evidence was sufficient to discharge the evidential burden as to whether a reasonable 15-year-old in the same situation as M would have had possession of the knife and the drugs. As set out in the case stated the basis on which she did so was that M was only just 15 at the time of the offences. The Appellant argues that this was a slender basis on which to reach that conclusion given the seriousness of the offences. We accept that considering M’s age in isolation would not be sufficient. Section 45(4) of the 2015 Act can only apply if the defendant is under the age of 18. Whilst age is significant, it must be considered in the light of the other available evidence. One could envisage a case involving a 15 year old of maturity and intelligence from a settled background where, even though there was evidence of exploitation, a person of that age in his situation would not commit criminal offences. In fact, the judge in this case took into account the entirety of the evidence of M’s background. She may not have set it out again in the case stated when dealing with the question of the reasonable person. We are satisfied that the judge had in mind all relevant matters appertaining to M’s situation when making her decision in relation to what a reasonable person would have done.

We accept that the seriousness of the offences will be a significant consideration when determining what a reasonable person would have done where the defendant is an adult. The statutory defence in the case of an adult as set out in section 45(1) of the 2015 Act involves compulsion. Moreover, the reasonable person in section 45(1) (d) would have “no realistic alternative” to committing the crime. Those factors are substantially a carry-over from the common law abuse jurisdiction where the seriousness of the offence was of substantial relevance. Although the seriousness of the offence is not irrelevant where the defendant is a child, it is of less significance. Even if he is a victim of exploitation, an adult is likely to have an appreciation of the consequences of his actions whereas a child is more likely to behave without a proper understanding of the nature and consequences of his actions. The Sentencing Council Guideline Sentencing Children and Young People provides a full exposition of the

Mr Douglas-Jones’s description of the offences with which M was charged overstates the case. He did not have possession of Class A drugs with intent to supply, at least that it is not the offence with which he was charged. The knife was undoubtedly dangerous. Whether the use of the term “perniciously” adds to the case we doubt. Sadly the carrying of knives by young men in South London is very widespread. It is a serious offence to carry a knife. But the context in which M as a victim of exploitation had possession of the knife was rather different in terms of his culpability.

The question posed in the case stated asks if M had sufficiently discharged the evidential burden. We are satisfied that the answer to that question is yes. The Appellant invites us to go on to say that, even if the evidential burden on M was discharged, the evidence was sufficient to discharge the legal burden on the prosecution to disprove the statutory defence. That is not a matter raised by the case stated. Nor is it raised in the grounds of appeal. Nonetheless we are satisfied that the evidence before the District Judge was sufficient to justify her conclusion that the statutory defence had not been disproved.

Finally, Ms Campbell invited us to make an order anonymising the proceedings on an indefinite basis under s. 11 of the Contempt of Court Act 1981, given M’s age and the fact that the current order under s.45 of the Youth Justice and Criminal Evidence Act 1999 will cease to apply in 15 months.

We bear in mind the importance of the principle of open justice. We have concluded that such an order should be made as being both necessary and proportionate. In reaching that conclusion we have regard to M’s current circumstances as a recognised victim of trafficking who has been acquitted of the criminal charges brought against him. He is vulnerable and we accept that certain aspects of the information referred to in the case papers, in the SCA’s decision and alluded to above, raise sensitive, personal issues bearing on his Article 8 rights. Having regard to the considerations identified in the authorities we have concluded that it is necessary in the interests of justice for anonymity to be maintained indefinitely in all the circumstances of this case, and make the order sought.