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R v MK: Clarifying the Defence in Section 45 of the Modern Slavery Act

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About The Author

Angelina Nicolaou (Guest Contributor)

Angelina Nicolaou is a pupil barrister at One Pump Court, specialising in crime, immigration and prison law. A law graduate from the University of Manchester, Angelina is a coffee and chocolate enthusiast.

Just as it was Britain that took an historic stand to ban slavery two centuries ago, so Britain will once again lead the way in defeating modern slavery and preserving the freedoms and values that have defined our country for generations.

Theresa May

Human trafficking and modern slavery is one of the greatest human rights concerns of this generation. There has been an ever growing awareness of the phenomenon in recent times, and an emerging realisation of the extent to which it permeates a number of different industries that ordinary people legitimately use on a daily basis. Indeed, as the National Crime Agency has indicated, the number of trafficking victims in the UK is ‘likely in the tens of thousands’. It is a problem of huge global concern, due to its scale and international dimension.

Criminal courts need to be alive to considerations of whether defendants are potential victims of trafficking in order to ensure that those who need protection and support are not being unfairly punished through the criminal justice system. This would clearly be in breach of the UK’s obligations under Article 26 of the Council of Europe’s Convention against Trafficking in Beings 2005 which explicitly provides that States are obliged to:

[P]rovide for the possibility of not imposing penalties on victims for their involvement in unlawful activities, to the extent that they have been compelled to do so.

The need for such an obligation is clear and the UK has sought to comply with this obligation by creating such a possibility via a statutory defence, which is contained within Section 45 of the Modern Slavery Act 2015 (MSA 2015), for a number of criminal offences. For example, many victims of trafficking who are forced into sexual or labour exploitation are given false identity documents by their traffickers, the possession of which is a criminal offence. Other common examples of modern slavery in the UK that involve potential criminal offences include the trafficking of young Vietnamese boys who are put into forced labour in cannabis cultivation farms, and are later arrested and charged with the production of drugs. There is also now an emerging awareness of the trafficking of young and vulnerable boys from UK cities into coastal and rural areas to act as runners in large scale drug dealing operations.

While the creation of the Section 45 of the MSA 2015 defence has recognised that it would be unjust and in breach of the UK’s international obligations to punish such individuals,  little light was shed about the correct approach to the burden of proof when bringing such a defence. As this article examines, it was therefore welcome that this confusion has been addressed by the Court of Appeal in the recent case of R v MK and R v Gega [2018].

The Defence in Section 45 of the MSA 2015

Section 45 of the MSA 2015 holds that a defendant, when faced with criminal liability, can raise a defence that they were a victim of trafficking (the Defence). This does not apply to every criminal offence; there is a list of offences in Schedule 4 of the MSA 2015 in which the Defence cannot be raised. This includes murder, manslaughter, firearms offences and offences causing grievous bodily harm.

The Defence works slightly differently for adults and children, as children do not have to show the same degree of compulsion when raising it. For an adult (an individual over 18) to be able to rely on the Defence,  Section 45(1) of the MSA 2015 requires them to show that:

  1. They committed the offence because they were compelled to do so
  2. They were compelled as a result of slavery or relevant exploitation; and
  3. A reasonable person with relevant characteristics in the same position as the person would have no realistic alternative to committing the offence.

Less is required for children, presumably owing to Parliament’s acceptance of their inherent vulnerability. Here, the Defence will succeed under Section 45(4) of the MSA 2015 if the child is are able to show that:

  1. They committed an offence as a direct consequence of their being a victim of slavery or relevant exploitation; and
  2. A reasonable person in the same situation and having the person’s relevant characteristics (including their age) would have committed the offence.

The Defence is tailored to the particular factual scenarios that can be commonly present in cases of human trafficking. This makes it more applicable, and therefore potentially easier in principle for defendants to rely upon, than the common law defence of duress (though it may often be the case that both defences are brought simultaneously).

For example, in trafficking cases, the defence of duress could potentially fall short where a traumatised victim is compelled to commit an act without the specific threat of immediate danger. One example of such cases are those that have been documented by The Guardian, whereby Nigerian victims of human trafficking are subjugated through the use of ‘voodoo’ or ‘juju’ rituals. These rituals operate to make a victim feel completely bound to and controlled by their trafficker and extremely afraid of being cursed.

It is thus welcome that the Defence has been drafted in a way to accommodate the different methods of compulsion which may be present in human trafficking cases. A person’s relevant characteristics (for example, their sincere and engrained cultural belief in the existence of voodoo) may mean that they feel that they have no realistic alternative to committing an offence that they are compelled to commit.

Crucially, it should be noted that the operation of Section 45 of the MSA 2015 does not provide a blanket defence for victims of trafficking. There must be a sufficient nexus between the fact of having been trafficked and the alleged offence in order for an individual to avail themselves of the defence. If an individual happens to be a victim of human trafficking but has committed an offence completely separately and independently of this, the Defence would not be successful.

The Decision in R v MK and R v Gega

The Facts

In MK [2018], MK sought to appeal against her conviction for conspiracy to supply a Class A drug (cocaine) and being in possession of an identity document with improper intention. Persida Gega, meanwhile, sought to appeal her conviction for the possession of an identity document with improper intention. Both appellants were Albanian nationals who claimed to have been a victim of trafficking and sought to rely on Section 45 of the MSA 2015 during their trials.

The Prior Judgments

In both trials, the trial judges had made rulings based on what they felt to be the correct operation of the Defence - specifically, on whom the burden of proof lies. It was these conclusions on the burden of proof that were the subject of the appeal in MK [2018]. In both rulings, the trial judges had argued that the best approach should see:

  1. The defendant bear an evidential burden to raise the issue of whether they were a victim of trafficking or slavery.
  2. Once the defendant has successfully done so, the prosecution must prove beyond reasonable doubt that they were not a victim of trafficking.
  3. If the prosecution succeeds in doing that, then the Defence will fail.
  4. If the prosecution fails to prove beyond reasonable doubt that the defendant is not a victim of trafficking, then the burden once more falls on the defendant to prove the following on the balance of probabilities:
    1. That they were compelled to commit the offence
    2. That the compulsion was as a direct consequence of them being or having been a victim of slavery or relevant exploitation; and
    3. That a reasonable person in the same situation and having their relevant characteristics would have no realistic alternative. 

The Court of Appeal’s Judgment

In a judgment handed down in March 2018, the Court of Appeal in MK [2018] found that the interpretation of Section 45 of the MSA 2015 taken by the trial judges was incorrect. While it agreed that the burden on a defendant is evidential, it concluded that it applied in a different way: the defendant must raise evidence of each of the elements of the Defence, which the prosecution must then disprove (whether it be one or more than one) in the usual way.

In deciding that the trial judges had misdirected the jury as to the burden and standard of proof, the Court of Appeal in MK [2018] found that there was nothing in the language of the MSA 2015, nor any logical basis, to support the approach that different elements of the defence should have different burdens.

As a starting point, the Court of Appeal recognised that the principle has long been established that the “golden thread” seen throughout English criminal law is that the prosecution must establish guilt beyond reasonable doubt. It considered that there is a category of statutory presumptions which operate to transfer the burden to the defendant: these can be categorised as ‘exemptions’, under which the accused must establish that they are exempt from the offence if they wish to avoid conviction, but this is not an essential element of the offence.

The example given by Lord Burnett CJ, who delivered the unanimous judgment in MK [2018], was a case where the burden of proof is on the defendant to establish on the balance of probabilities that he had a necessary licence or qualification in the context of an offence which prohibits behaviour save in circumstances where such licence or qualification is held. However, it was held that Section 45 of the MSA 2015 contains the language of a defence, and not an exemption, as it necessarily implies that a person does not have the requisite mens rea to have committed the offence.  The section is clear that those who can avail themselves of the Defence will be “not guilty”. 

The Court of Appeal also found that a reverse burden would frustrate Parliament’s objective and undermine the protection that Section 45 of the MSA 2015 was designed to afford to vulnerable people who are likely to be traumatised by their experiences and potentially still under the hold of their traffickers.

Analysis of the Decision

The analysis and reasoning used by Lord Burnett CJ in MK [2018] is in keeping with the judiciary’s approach to reverse burdens in other cases. Take, for example, the House of Lords’ decision in R v Lambert [2001]: here, it was held that – looked at in terms of compatibility with Article 6 of the European Convention on Human Rights (the ECHR) – the  express provisions of the Misuse of Drugs Acts 1971, which appeared to place a legal burden on the defendant, could be “read down” in accordance with Section 3 of the Human Rights Act 1998 (HRA), so that it could be interpreted as placing an evidential burden instead. This ensured that this piece of legislation complied with Article 6(2) of the ECHR, which provides that:

Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.

In R v Lambert [2001], reference was also made to the importance of the presumption of innocence in operating to both protect individuals on trial and maintain public confidence in the integrity and security of the legal system. At the forefront of the House of Lords’ mind was a concern that where a legal burden is imposed an accused could potentially be convicted even while reasonable doubt exists. Thus, it was observed that:

A transfer of a legal burden amounts to a far more drastic interference with the presumption of innocence than the creation of an evidential burden of the accused. The former requires the accused to establish his innocence. It necessarily involves the risk that, if the jury are faithful to the judge’s direction, they may convict where the accused has not discharged the legal burden resting on him but left them unsure on the point. This risk is not present if only an evidential burden is created.


In keeping with the logic in R v Lambert [2001], the Court of Appeal’s decision in the case of MK [2018] has sought to preserve the presumption of innocence in the context of cases where a defendant brings a defence under Section 45 of the MSA 2015. A victim of trafficking therefore does not need to undertake the arduous task of proving their defence, they simply need to provide an evidential basis for asserting the defence that operates to cast reasonable doubt upon the prosecution’s case.

The Court of Appeal’s confirmation of this approach is to be welcomed: as well as adding certainty to the law, it will also ensure that victims of human trafficking are properly protected in our criminal courts, in accordance with the UK’s international obligations.

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Tagged: Criminal Law, Employment Law, Human Rights, Immigration, International Law

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