Riel Karmy-Jones QC and Nicholas Hall write for the Archbold Review Issue 4 2021

DPP v M: what weight should be given to the decision of the SCA?

By Riel Karmy-Jones QC and Nicholas Hall, Red Lion Chambers

The recent case of DDP v M[1] has been welcomed by victims of modern slavery and their lawyers,[2] and hailed as representing a significant milestone for defendants seeking to rely upon the statutory defence provided in s.45 of the Mod- ern Slavery Act 2015 [MSA 2015], claiming that it solidifies the UK’s obligations under Art.10 of the Council of Europe Trafficking Convention [2005]. But whilst M might appear to clarify the role of Single Competent Authority [SCA] decisions in criminal proceedings it is highly problematic, giving too much force to what previously would have been considered as inadmissible “opinion” evidence. In our view, it was wrongly decided.
M was a 15-year-old boy who was arrested at a Tooting branch of KFC in May 2019 along with two other boys. All three were searched, and M was found in possession of Class A drugs and a knife. A week after his arrest M was referred to the National Referral Mechanism [NRM] by the local authority and, prior to his trial, the SCA made a positive conclusive grounds decision that M had been recruited, harboured and transported, for the purposes of criminal exploitation.[3] In doing so, the SCA considered: M’s behaviour in custody (which had raised no concerns); M’s parents’ background and the effect on his history on his development; the fact that M had been stabbed in an incident in March 2018 and had subsequently gone missing from home; a social services report in June 2019 that reported that M did not want to return home, but had felt safe when missing because his friends looked after him; his positive behaviour at home and school since being rehoused in local authority care; and police confirmation that M was by reason of his age vulnerable, and had made no financial gain from his gang involvement. The SCA acknowledged that not all children involved in criminality will have been trafficked, but taking all matters into account, decided that M had been targeted by gang members for the purposes of criminal exploitation, and that he was therefore a victim of modern slavery.
At his subsequent trial in the youth court, M’s case was that the SCA’s conclusive grounds decision was sufficient to show that (a) his presence in Tooting had been facilitated by the other boys with the view to him being exploited; and (b) his offending was a direct consequence of that exploitation.[4] The Prosecution did not agree that the SCA’s decision was correct, but the fact of the decision was nonetheless admit- ted as an agreed fact, and the full minute of the SCA decision adduced. The District Judge concluded that despite M having given no account in interview, nor any evidence at trial, the SCA decision was sufficient to satisfy the evidential burden under s.45 MCA 2015, and M was duly acquitted.
The Crown subsequently appealed to the Divisional Court by way of case stated, arguing that in the absence of any positive account, M had failed to discharge that evidential burden, and that the District Judge had made an error of law in relying on the SCA’s decision. That decision, they argued, was opinion evidence and hearsay, so inadmissible in criminal proceedings.

The Divisional Court disagreed, holding that the District Judge had been entitled to admit and rely upon the SCA’s findings as evidence that the defendant had been recruited and harboured, and was a victim of criminal exploitation. In the judgment handed down in December 2020, Lady Justice Simler and Mr Justice William Davis stated that:[5]
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.

The Court also addressed the prosecution concern that if an SCA decision were to be admissible in a trial in relation to the application of the statutory defence in any given case, then this would have significant implications in terms of prosecutorial practice, stating:[6]

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.[7]

The Court thus held that a judge in a criminal trial is entitled to consider the findings of the SCA, to assess the extent to which they are supported by other evidence, and that this is a question of weight rather than admissibility. The prosecution can also assess the weight of the decision in their determination of whether they can disprove the statutory defence. The seriousness of the offence committed will be a significant consideration in determining what a reasonable person would have done, particularly in the case where the offender is an adult, who may be likely to have greater appreciation of the consequences of their actions than a child.

Why the Court’s Approach is problematic

While it may appear that the court’s comments on the weight to be given to the evidence serve to balance the significance of a conclusive grounds decision at trial, its approach flies in the face of long-standing authority and practice. A fundamental principle of criminal trials in the Crown Court is that the ultimate questions of fact are for the jury.[8] Where an SCA decision forms part of the evidence raised, it is likely that the jury would give it significant, and perhaps unwarranted and improper weight, it speaking directly to the issue in the jury’s province, namely whether the defend- ant is or is not a victim of modern slavery.
In order to reach its decision, and to overcome the objection that the SCA’s conclusive grounds decision was inadmissible opinion evidence, the Divisional Court found that the SCA’s decision was on a par with expert evidence. It concluded that the question of whether a person is a victim of exploitation is a question of fact, i.e. is he/she a victim or not, is often not a simple exercise to determine, but requires an evaluation and contextualisation of information from a variety of sources which “are not necessarily within the knowledge of an ordinary person”.[9]
In effect, the Court was saying that as most of us spend our lives oblivious to the complex circumstances at play,[10] and are not familiar with the signs of exploitation, we would be ill-placed to recognise them without a guide to point them out, reasoning that:

…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.[11]

Accordingly, it concluded that the “SCA decision-maker had expertise in relation to those issues,”[12] so its decision must be admissible at trial.
The Court in M sought to draw an analogy between the decision-maker and the clinical forensic psychiatrists or psychologists often relied upon in criminal trials. Here, however, it must be remembered that while the SCA certainly has both expertise and experience, it is a government body, established by the Home Office to investigate and safeguard victims of trafficking and modern slavery, and there is no specific experience requirement to make an NRM decision. Notwithstanding the relevant expertise of the SCA,[13] the Court in M acknowledged that the statutory guidance aimed at the decision-makers within the NRM “is not a substitute for the experience of someone dealing with such decisions regularly”,[14] but reasoned that “a person with the necessary expertise can give context to the factors by reference to their wider experience and other cases.”[15] This ignores the fact that a decision-maker may well have less practical experience then say a long-standing and experienced police officer who has worked in the field of modern slavery for many years, and whose “opinion” as to the ultimate issue in the case would plainly be inadmissible.
The SCA decision-maker, whose individual details and experience may not be known or recorded on the minutes, also pursues a different agenda and purpose to the criminal court, its thinking around the question of whether the individual is a victim of exploitation being geared solely to the purpose of providing support.[16] Home Office guidance produced for NRM decision-makers, makes it clear that if the SCA “has sufficient evidence to make a positive decision it should do so immediately”,[17] and even at the conclusive grounds stage, it is possible for the SCA to make a finding without all available evidence.[18] Thus the decision-maker will not have access to all the evidence, will not hear oral evidence (including that of the defendant) contested and challenged, or examine the factual matrix of the case with the same rigour as a criminal investigation and trial. Rather, the decision-maker will make decisions applying the lower civil standard of proof, usually on the basis of a limited file of material, largely paper summaries which are often poor. The decision itself will frequently contain no information on the decision-maker, his or her ‘expertise’, or their rationale in reaching the decision. Further, it is only negative conclusive grounds decisions that are ever subjected to a review.[19] The next problematic issue is the manner in which the SCA’s decision would be presented in a criminal trial. As Gross LJ’s observed in S(G)[20]it is likely that the conclusive grounds decision would be dealt with by way of admissions. Whilst these might be supplemented by the minutes of the decision, as the Court in M acknowledged, that document is not prepared with a view to its being used as “expert” evidence.[21] The written decision would not, for example, include the declarations of adherence to the code of conduct for experts, nor would it be clearly set out and argued so as to withstand scrutiny. The Divisional Court in M was also silent as to how a prosecutor would in practice challenge a conclusive grounds decision. In reality, they are unlikely to be able to produce an alternative expert report that would be admissible, and the jury is unlikely to hear the decision-maker (who, as indicated above may not be identified) give oral evidence and be cross-examined, leaving the decision, and the basis for it, largely untested. The Crown in M was alive to these issues in their arguments.[22] In rejecting its submissions, the Divisional Court failed to consider the practicality of disproving the statutory defence to the criminal standard.
The Court in M gave no guidance as to what directions to give to the jury about the SCA’s conclusive grounds decision, for example in respect of what weight to give it. In all the circumstances, the Divisional Court’s conclusion that once admitted “a conclusive grounds decision will not be de- terminative in the criminal context any more than it is in the tribunal proceedings” is unrealistic.[23]
The admissibility of decisions of the SCA and the Upper Tribunal was also considered by the Court of Appeal in BTT.[24] In that case, the Court admitted such decisions as fresh evidence under s.23 of the Criminal Appeal Act 1968; however the CA made it clear that this was not to be taken as determining that these decisions would necessarily be admissible at any trial. Although it briefly considered M, the Court sidestepped the issue, deciding that as it had already refused the application for leave to appeal, it did not need to determine whether the decision in M was correct.[25]

The Home Office’s Modern Slavery: Statutory Guidance for England and Wales, 2021[26] provides:

17.52 The decision of the SCA as to whether a person had been trafficked for the purposes of exploitation is not binding on the Crown Court or the CPS. 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 R v L(C) [2014] 1 All ER 113 at 28 and R v VSJ [2017] 1 WLR 3153 at sect; 20(viii). The decision should be scrutinised by the prosecutor to see the evidence that was available to the SCA, to what extent the evidence has been analysed, weighed and tested by the SCA and to assess the quality of any expert evidence relied upon.

17.53. A positive Reasonable Grounds or Conclusive Grounds decision may support the suspect/defendant’s argument that they have been forced, threatened or deceived into committing the crime(s) for which they are accused. However, a positive decision does not automatically establish the statutory defence is applicable. The other criteria provided by the Act must still be met and, given the different standards of proof required in criminal proceedings, courts are not bound to accept NRM decisions.

17.54. Conversely, a section 45 defence may be established even if a suspect/defendant has not been referred into the NRM or has had a negative decision.
17.55. Whilst the NRM and the criminal justice system are distinct and separate processes, a decision by the SCA to recognise a suspect/defend- ant as a victim of modern slavery may still have a bearing on a criminal case. As such the SCA must update the police, Crown Prosecution Service and the Court hearing the case (if relevant) at the Reasonable Grounds and the Conclusive Grounds stages as soon as a decision is made.

Conclusion

Conclusive grounds decisions are a far cry from the expert reports criminal courts are used to. The absence of an experience requirement to qualify the decision-maker, and the inability of the prosecution to properly challenge the decision, not only undermines the court’s approach in M, but raises serious concerns of an SCA decision being used to discharge a defendant’s evidential burden under s.45. The decision in M is clearly wrong, and should be approached with caution pending the outcome of an appeal. The case should certainly not be considered conclusive authority for the proposition that SCA decisions will always be admissible in criminal trials.

Editor’s Note

We understand that the Crown are seeking leave to appeal this decision to the Supreme Court on point of law.