Crime

Modern Slavery and Drug Offences

Can Modern Slavery be a defence to drug dealing offences?

The short answer is, ‘it depends’ - read on!

Section 45 of the Modern Slavery Act 2015 provides a defence to specific criminal charges where it is shown that they were committed under a compulsion due to slavery or exploitation (for over-18s) or as a direct consequence of slavery or exploitation (for under-18s).

The latter test, for children, is less difficult to establish. It is a defence similar to duress.

It can, for example, be used for drugs offences committed as part of a ‘County Lines’ drugs ring. The government’s guidance on this can be found here.

What else is Modern Slavery a defence to?

The Modern Slavery defence can be used for any criminal offence not listed in Schedule 4 of the Modern Slavery Act 2015.

It can’t be used for serious crimes like murder, manslaughter, kidnapping, piracy, serious violence, firearms offences, robbery, burglary, arson, criminal damage, most sexual offences, or modern slavery offences themselves. There are other offences to which the defence does not apply.

 It can be used as a defence to any other crime. It is used for victims of ‘County Lines’ drugs offences but also applies to most immigration offences, minor assaults, theft, or conspiracy to do any of these things. Anyone who is trafficked or exploited can potentially benefit from it.

Children may be exploited for a variety of reasons by gangs and used to carry and supply drugs. Children who are particularly vulnerable are often targeted, and they may feel that they can't tell anyone in case they are arrested and punished.

 What needs to be proved?

The defence requires several things, depending on a person's age. In both cases, they need to be a victim of slavery or exploitation.

 Those over 18 rely on s.45(1), where they are not guilty if:

 1) The crime is committed because they are made to do it

 2) They are made to do it for some reason connected to the slavery or exploitation

 3) A reasonable person, with the same characteristics, would not have had a realistic alternative in that situation.

A person under 18 relies on s.45(4), where they are not guilty if:

1) The crime is committed as a result of the person being or having been in the past, a victim of slavery or exploitation, and

2) A reasonable person, with the same characteristics, would have done the same.

The defence for under-18s is less difficult to establish, reflecting the increased vulnerability of children. 

A person has to raise enough evidence for it to be possible that they are a victim of slavery of exploitation within the meaning of the Act. The prosecution will have to disprove that beyond a reasonable doubt.

 If they cannot, a person then has to show it’s possible that the offence was carried out either under a compulsion relevant to (over-18) or as a direct consequence of (under-18), that slavery or exploitation. This, again, will have to be disproven beyond a reasonable doubt.

 If the prosecution cannot disprove either of these things, then the defence should succeed.

 How can I help?

Modern slavery cases are important and sensitive cases to deal with. I can advise you on whether you have a defence, and help you put that defence forward, advising on prospects of success and instructing experts to help along the way.

This is only a general overview of the law. For in-depth advice, contact me via contact@crimelawyer.co.uk.

The Risks of "doing lifts"

The risks of “doing lifts”

The Times as recently highlighted the dangers of “doing lifts” , a social media trend where people with cars are connected to those looking for a lift somewhere - for an agreed fee. Sound familiar? Yes - it’s effectively a cab service.

The report can be found here.

The Times’ reported, that “18 Facebook groups with a total of more than 50,000 members where people advertised or sought “lifts” for cash from drivers without taxi or private hire licenses. Many lifts drivers are students and others are in their teens or twenties. They ferry people to and from clubs and house parties, taking their highest earnings on New Year’s Eve…Drivers and passengers often claim that licensed taxis are too expensive or are unavailable on busy nights but the police warn that clients risk travelling in unsafe or uninsured cars with drivers who could be sexual predators”.

There is some discourse around whether payment is for petrol and running costs, or whether it represents profits. Where a profit is made, there is a question of whether the driver is taxi touting / plying for hire. Where a driver is generating a profit from the trip this may also invalidate the car insurance policy.

But is it legal?

It is likely that the practice of “doing lifts” in the way described is unlawful. The question here is whether there is an illegal taxi service in operation.

There is no law against taking payment for fuel used - but you must be properly licensed to drive passengers in return for a fare.

The big issue here is public safety given the traveling public are getting lifts from strangers who are completely unscreened.

Drivers caught providing “lifts” in return for a fare are likely to be prosecuted and face a hefty fine and criminal record.

If you have any queries arising from this article, you can get in touch via contact@crimelawyer.co.uk.

The Death Penalty and Extradition

Here in the UK, we have not had the death penalty for over 50 years. In fact, the last hanging in England took place in 1964 when Peter Allen and Gwynne Evans were hanged for the murder of John West, 15 months before the death penalty was abolished.

Since then, there has been a long-held opposition to the death penalty which has been applied in extradition cases.

What is extradition

Extradition means legal proceedings for the return of a person in the UK to another country to face criminal proceedings (or proceedings abroad to return a person to the UK).

How is the death penalty relevant?

When the requesting country has the death penalty available, and it could apply to the criminal proceedings in question, the UK would usually seek an assurance that the person will not face the death penalty if extradited. If an assurance is not given, then UK law would prohibit the removal from the UK of that person. The death penalty is forbidden under the European Convention of Human Rights.

Why is it in the news now?

Alexander Kotey and El Shafee Elsheikh are alleged to have been involved in the torture and beheading of more than 27 victims as members of a cell of Isis executioners in Syria and Iraq. They are not subject to extradition as they were not arrested in the UK. They have been stripped of their British citizenship, and discussions have been taking place as to whether they should be returned to the UK for trial or taken to the USA. Victims have been both UK and US citizens.

In an unusual move, Sajid Javid, the UK Home Secretary, has told the USA that he would not seek an assurance over the use of the death penalty and agrees to the US request for mutual legal assistance ("MLA").

What is mutual legal assistance?

MLA is a method of co-operation between states for assistance in investigating or prosecuting criminal offences. The guidelines for MLA are similar to the law in extradition outlined above, in saying that if the death penalty is a possible sentence, an assurance will be sought that such a sentence will not be carried out, in the event of a conviction.

What are the implications?

Commentators are questioning whether this is a relaxation of the policy of opposition to the death penalty in the UK. Javid apparently stated in his letter that this does not alter the stance of the UK, but it certainly raises questions as to whether assurances would not be sought in the future and in what circumstances.  This stance has caused Ken Macdonald QC, a former director of public prosecutions ("DPP"), to comment that the Home Secretary has “abandoned a moral policy” and that he has "shoved the door of the death chamber ajar" (The Guardian, 24 July 2018). 

The Howard League for Penal Reform has already indicated that it may bring legal proceedings to challenge the decision of the Home Secretary.

 

If you would like to discuss any aspect of this article, or your individual case, please contact me on 07766001774 or via email (contact@crimelawyer.co.uk). 

Health & Safety

The Health and Safety Executive ("HSE") is the national regulator for workplace health and safety.

Interestingly, on its website, there is a page for debunking health and safety myths (click here), such as the one where flags were banned from civic cars for “health and safety”, or the removal of alcohol from a workplace Christmas party.

So, what do they do?

 The HSE “mission” is to prevent work-related death, injury and ill-health. They concentrate on the most serious risks, targeting industries with the greatest hazards and sectors with the worst risk management records. They provide free guidance and advice, inspect premises and investigate when things go wrong.

What powers do they have?

They can inspect premises, speak to relevant people, observe workplace activities, check whether risk controls are effective and identify any breaches. In doing so, they can consider taking enforcement action and investigate any potential offences.

What is enforcement action?

They can provide advice, serve notices, withdraw approval or vary licences, conditions or exemptions. More seriously they can issue cautions or prosecute. If you do breach any regulations you can be made to pay for the time it takes the HSE to help you to put the breach right.

Investigations

The HSE will investigate serious work-related incidents, injuries or cases of ill-health, in line with its incident selection criteria, as they do not investigate everything that is reported to them. Cases can be brought against corporate bodies and in some cases individuals as well.

What sentence could you get?

There aren’t any specific sentencing guidelines for health and safety offences other than corporate manslaughter although they are likely to come under general offence guidelines that are currently being consulted upon.

Recent cases

Air Liquide (UK) Ltd was fined £160,000 after pleading guilty to breaching section 2(1) of the Health and Safety at Work etc. Act 1974. Members of their emergency response team were appropriately dressed to dispose of redundant gas bottles; however, one was dropped spilling highly hazardous fluid to the floor. Vapour drifted to 2 unprotected workers affecting one so severely he collapsed to the floor.

Bartram Manufacturing Ltd pleaded guilty to breaching section 2 of the Health and Safety at Work etc. Act 1974 and was fined £82,000. A forklift truck reversed into a stack of roof trusses which fell onto an employee causing multiple fractures.

WE Rawson Ltd was fined £600,000 for breaching section 2(1) of the Health and Safety at Work etc. Act 1974. An employee died following crush injuries received when he attempted to free a stuck package from a packaging machine. The HSE found the company failed to take measures to prevent access to the danger zone between the moving conveyers.

Simon Thomerson of Clearview Design and Construction Ltd was jailed for eight months following the death of two labourers employed by him when they were involved in an explosive fire within a work unit. He pleaded guilty to breaching section 2(1) of the Health and Safety at Work etc. Act 1974.

How can I help?

Even though a case may be investigated by the HSE rather than the police, you can still be under investigation for criminal offences that can lead to imprisonment or very substantial fines for companies.

You need expert advice from the outset which we can provide. To discuss any aspect of your case, please contact me on 07766001774 or via email (contact@crimelawyer.co.uk). 

 

The Defence of Necessity

"But I had no choice!"

There is a defence in law known as "Necessity" or "Duress of Circumstances". It can be very difficult to demonstrate and will only apply in unusual and extreme circumstances. It is used to describe a situation where someone is forced by the demands of the situation to act unlawfully, and where a worse situation was avoided by acting in this way. This defence is not a reference to self-defence which is a quite separate defence.

What must be demonstrated?

You will need to show that you only acted for as long as was necessary. In a driving case where you need to escape a dangerous situation, for example, when you are over the alcohol limit, you must stop as soon as the danger has been averted. If you carried on driving, you would not have a defence.

You must be able to demonstrate that no other action could be taken, that there was genuinely a greater evil that was being avoided by behaving in the way that you did, and that your behaviour did not go beyond what was absolutely necessary.

What if I have been threatened?

Sometimes a person will say that he committed an offence out of fear for his personal safety or that of someone else, because of threats that have been made.

The key point is for there to be clear and close danger, and the threat of serious injury or death. Threats to cause damage to property is unlikely to constitute a threat serious enough to provide a defence.

If there is a large gap in time between threat and offence, where a person could have gone to the police but did not, that would not be acceptable.

Gangs and Criminality

The defence will often occur in the context of gang violence or owing money to loan sharks due to drugs. The suggestion here is that the defence would be unavailable to those who, having entered those worlds voluntarily, understood how violence was used as a means of securing objectives.

In relation to gang membership the court of appeal has ruled (Sharp [1987] QB 853):

“… where a person has voluntarily, and with knowledge of its nature, joined a criminal organisation or gang which he knew might bring pressure on him to commit an offence and was an active member when he was put under such pressure, he cannot avail himself of the defence of duress”.

As always though, the law on this point is very complex, so always seek legal advice.

In Howe [1987] AC 417 the Court expressed the test in the following terms:

“Was the defendant, or may he have been, impelled to act as he did because, as a result of what he reasonably believed [the threatener] had said or done, he had good cause to fear that if he did not so act [the threatener] would kill him or … cause him serious physical injury? (2) If so, have the prosecution made the jury sure that a sober person of reasonable firmness, sharing the characteristics of the defendant, would not have responded to whatever he reasonably believed [the threatener] said or did by taking part [in the offence].”

Does it apply to all offences?

Duress can never be a defence to murder or attempted murder but, strangely, it may be a defence to conspiracy to murder (Ness [2011] Crim LR 645).

The potential harshness of this rule can be illustrated by the case of Wilson [2007] 2 Cr App R 411, where a 13-year-old boy, powerless to ignore the instruction of his father, was unable to advance the defence at trial.

It is thought to potentially apply to all other offences.

What about using cannabis for medicinal purposes?

There is no defence of necessity or duress available for using cannabis for medicinal purposes. There have been many cases on this point, and in 2005 the Courts comprehensively rejected any such argument, stating that it fell well outside of the ambit of duress. It may, however, amount to mitigation.

How can I help?

The defence of duress and necessity is complicated, this article is a basic overview only. It is vital, therefore, to obtain expert legal advice and representation. Please contact me on 07766001774 or email me (contact@crimelawyer.co.uk) to discuss any related matters.