Commentary on Sections Part 5:  Protection of Victims Section 45 and Schedule 4:  Defence for slavery or trafficking victims who commit an offence
218.Section 45 provides for a defence for slavery or trafficking victims. This is intended to provide further encouragement to victims to come forward and give evidence without fear of being convicted for offences connected to their slavery or trafficking situation. The defence will not apply in the case of certain serious offences. Currently, in cases where a slavery or trafficking victim may have committed an offence as a direct consequence of their trafficking or slavery situation, the Crown Prosecution Service apply specific guidance as to whether or not to bring a prosecution. There is a different test in the defence for persons aged 18 or over and those under the age of 18.
219.Subsection (1) provides that a person, aged 18 or over at the time of the act which constitutes an offence, is not guilty of that offence if they commit the offence because they are compelled to do so; they were compelled as a result of slavery or relevant exploitation; and a reasonable person with relevant characteristics in the same position as the person would have no realistic alternative to committing the offence.
220.Subsection (2) provides that a person may be compelled to commit an offence by another person or by the person’s circumstances.
221.Subsection (3) explains that compulsion is only attributable to slavery or relevant exploitation if it is part of conduct which constitutes an offence under section 1 or conduct which constitutes relevant exploitation, or it is a direct consequence of a person being, or having been, a victim of slavery or relevant exploitation.
222.Subsection (4) provides that a person under the age of 18 at the time of an act which constitutes an offence is not guilty of that offence if they commit the offence as a direct result of their being a victim of slavery or relevant exploitation, and a reasonable person in the same situation and having the person’s relevant characteristics (including their age) would have committed the offence. The lack of the test of compulsion and the lower threshold for meeting the reasonable person test is in recognition of the unique vulnerabilities of children.
223.Subsection (5) provides that the relevant characteristics of the victim claiming the defence that will be considered for the purposes of the reasonable person test in subsection (1)(d) and subsection (4)(c) are age, sex, and any mental or physical illness or disability. Subsection (5) also sets out that ‘relevant exploitation’ is exploitation which is attributable to the person being or having been a victim of trafficking.
224.Subsection (6) provides that any reference to an act also includes an omission.
225.Subsection (7) introduces Schedule 4, which sets out those offences to which the defence (for both those under the age of 18 and those over the age of 18) will not apply. The defence will not apply to certain serious offences, mainly serious sexual or violent offences, to avoid creating a legal loophole for serious criminals to escape justice. Where the defence does not apply because the offence is too serious, the Crown Prosecution Service will still be able to decide not to prosecute if it would not be in the public interest to do so.
226.Subsection (8) enables the Secretary of State to amend Schedule 4 through regulations.