Charlotte Finch v R

The appellant turned 18 on the 14th October 2019. She was convicted by the jury, after a trial with five adult co-defendants, of the offences described at [2] below. Although the appellant turned 18 just before the end of the indicted period, the jury were directed that they should treat her as if she “was under 18 at all material times”. She did not give evidence but the issue at trial was, assuming that the jury could be sure that she was a party to the conspiracies alleged against her, whether she had a defence under section 45(4) of the Modern Slavery Act 2015 (“MSA 2015”). To that end the jury heard evidence as to her mental state and vulnerabilities during the indictment period. This appeal concerns the way in which that defence was left to the jury. The terms of section 45(4) mean that the defence is in a different form for a child than it would be for an adult, where the defence is set out in section 45(1).

On the 16th February 2024 in the Crown Court at Southwark (His Honour Judge Adam Hiddleston) the appellant was convicted of two counts of conspiracy to convey list A articles into prison, namely ‘spice’, or synthetic cannabis (counts 3, 9), of one count of conspiracy to supply a controlled drug of class A (heroin) (count 4), of one count of conspiracy to supply a controlled drug of class B (‘spice’) (count 8), and of one count of unauthorised transmission of image or sound by electronic communication from within a prison (count 17). 

She was acquitted of four counts of conspiracy to supply a controlled drug of class A (heroin / ‘crack’ cocaine / ‘U-47,700’/ furanylfentanyl) (counts 10, 12, 13, 14), of two counts of conspiracy to produce a controlled drug of class A (‘crack’ cocaine / fentanyl) (counts 11, 15), and of one count of converting or transferring criminal property (count 16).

On the 29th August 2024 the judge sentenced the appellant in total to a community order for a period of three years.

She now appeals against conviction by leave of the single judge. That leave was granted in respect of two grounds, but one has been abandoned. The ground which remains for which leave has been granted is:-

This concerns the first way in which the defence was left to the jury, on the basis that the appellant was required to perform forced or compulsory labour and her offending was a direct consequence of this.

Mr Wilcock KC and Mx Munir, who did not appear below, have argued this appeal on behalf of the appellant, and Mr Dent KC has responded on behalf of the prosecution. We are extremely grateful to all counsel for their help.

Mr Wilcock KC and Mx Munir, have sought leave to add a further ground. We have heard submissions about the merits of this ground and will deal with it in this judgment. It concerns the second way in which the defence was left to the jury, on the basis that the appellant was a victim of trafficking, which is “relevant exploitation” for the purposes of section 45(5) of the MSA 2015 and her offending was a direct consequence of this. This proposed ground is expressed in this way:-

Sections 1, 2, 3 and 45 of this Act create a highly complex statutory scheme. It is connected with long-standing international obligations undertaken by the United Kingdom in connection with the suppression of slavery, trafficking and exploitation. In R v. Moon Swee How & Xiaoxia Yang [2026] EWCA Crim 476, the present constitution of this court heard an appeal concerning the construction of section 2 on the day before the hearing in this case. Both judgments have been handed down on the same day. In How we decided that the offence of arranging or facilitation the travel of a person with a view to their exploitation under section 2 did not require proof that the “means” identified in Article 4 of The Council of Europe Convention on Action against Trafficking in Human Beings (“ECAT”)

had been used. This was said to create a tension with the section 45 defence because it might mean that a person who had been a victim of trafficking for the purposes of section 2 could not avail themselves of that defence because they had not been trafficked for the purposes of section 45. We held that our decision was the consequence of the words used by Parliament. Parliament, in enacting section 2 of the MSA 2015, had gone beyond the creation of an offence which would criminalise conduct described in ECAT Article 4, and created a wider offence which would catch other misconduct as well. However, it did not follow from that that all persons who were victims of that wider offence should be able to avoid conviction for crimes they committed by relying on section 45. We held that any “mayhem” which may result from the interaction of sections 2 and 45 would be better addressed in a case where section 45 was directly in issue. That problem arises most acutely, if it is a problem at all, in the case of adults seeking to rely on the section 45 defence which does, in effect, require that the offender was subject to the “means” described in Article 4 of ECAT. That is not so in the case of a child, and this case does not, therefore, require further consideration of it. In any event, the ground on which leave has been granted involves an allegation of forced or compulsory labour and not trafficking.

Section 45(4) of the Act provides a defence to child victims of slavery or trafficking to certain offences, namely all offences except those listed in Schedule 4 to the Act. This is the principal focus of attention in this case, given the issues. The section which contains that sub-section is in these terms:-

Section 1 creates a set of offences. It provides:-

Section 2 creates the offence which is called “human trafficking” in the title, but which is actually committed by the conduct described in section 2(1). This is defined further by section 3, below.

Section 3 defines “exploitation” in these terms:-

This international instrument contains the following definition provision:-

The directions of law given to the jury were agreed by all counsel in the case, in particular by counsel then appearing for the appellant. He made a positive contribution to their drafting and his suggestions were adopted by the judge. In a case such as this, where the suggested error is a pure point of law, the fact that defence counsel may have agreed with a misdirection may, perhaps, be relevant to consideration of the safety of the conviction, but does not absolve the court from considering the legal accuracy of the direction.

In his legal directions, which were complex because of the number of defendants on trial and the multiple different issues which arose in each case, the judge identified the issues in the case of the appellant in this way:-

The judge then dealt with the defence under section 45(4) of the MSA 2015 in these terms:-

The judge provided a model Route to Verdict to the jury which was also agreed by counsel. He set out the questions which had to be answered in the appellant’s case were set out in respect of count 3. In respect of the other 11 counts she faced, the judge asked the jury to refer back to these questions and to answer them in the case of those counts. The Route to Verdict for count 3 was in these terms:-

We received no submissions or complaint about the purpose and effect of Question 8, and nothing we say in this judgment bears on it. It is designed to address section 3(6) of the MSA 2015.

The judge left the first form of the defence as available if the appellant had been the victim of “forced or compulsory labour”. This is one of three ways of committing an offence under section 1 of the MSA 2015. We are content to assume that it is sufficient to amount to “slavery” for the purposes of section 45(4)(b). The judge directed the jury that for this purpose, they were required to consider whether the appellant may have participated throughout as a direct consequence of her being or having been “menaced by any penalty”, see Route to Verdict Q3. That question was the subject of important further guidance by the judge in sub-paragraphs (a)-(h) of the written directions set out above at [17]. It was, therefore, necessary to direct the jury on what that phrase means.

Basfar v Wong [2022] UKSC 20; [2023] AC 33 was an appeal from the Employment Appeal Tribunal. The issue was whether a claim by a person who alleged that she had been trafficked and required to perform forced labour by a person entitled to diplomatic immunity should be struck out because of that immunity. In the dissenting judgment of Lord Hamblen and Lady Rose at [127] this convenient history of the phrase “menace of penalty” appears:-

The modern version of the Crown Court Compendium published by the Judicial College does not use the phrase “menace of penalties”. This version was not available to the judge at the time of the trial. In relation to defendants under the age of 18 one of its specimen directions about the section 45 defence is in these terms (we have emphasised one particular passage):-

How does the judge identify what forced or compulsory labour is without implying that “compulsion” is a necessary element of the defence? The question for us on ground 1 is whether the judge achieved that difficult objective by repeatedly using the phrase “menace of penalty”.

Mr Wilcock began by making submissions to emphasise the factual strength of the appellant’s defence. He reminded us of what the judge said in sentencing her following conviction and of the evidence given about her mental state by the psychiatrist. The judge said, in sentencing,

Mr Wilcock addressed the three limbs of section 45(4), but submitted that if a child has been used for illicit activities they will almost invariably be the victim of slavery. “Menaces of penalty” is an inappropriate element for children, because the Act makes it clear that compulsion is not an element of the defence for children. “Menace of penalty” is legalistic language, which inherently introduces an inappropriately high level of what may justify the statutory defence being available to a child. The phrase “menace of penalty” introduces the compulsion which is not required in section 45(4).

To construe the terms “forced or compulsory labour” and “victim of trafficking” in a sense appropriate to a child does not mean that they always have the defence. The test in 45(4)(c) is, he submits, the real filter which limits the defence in the case of children to appropriate cases, rather than a requirement for “menaces of penalty” to have been deployed as a threshold eligibility test before the defence comes to be considered against the probable conduct of a reasonable person in the same position:-

Here, it is accepted that there was no evidence of specific threats from Mullings to the appellant. Unpleasant words were said, but not threats of violence. Mr Wilcock accepts that the judge did direct the jury as to the meaning of “menace of penalty” in quite widely drawn terms in the directions: see the directions set out at [17] above. He asks whether a juror would understand these complex concepts and highlights how, even with this ameliorating guidance, the directions were still framed in terms of menace.

Mr Wilcock’s proposed new ground is intended to address the position which may arise if his first ground succeeds. The judge only required the jury to consider the section 45 defence on the basis that the appellant was a victim of trafficking if they were sure that the defence on the basis of slavery failed. The second ground is only therefore relevant if we conclude that the first defence, slavery, was not properly left to the jury. In that event, he submits that the amount of travel which was arranged or facilitated in this case was minimal. Much of the offending was committed remotely from her home. It involved the supply of drugs into prisons by impregnating paper with them and then posting it into the prison. The search of her home illustrates what she was doing. Various items of evidential importance were seized: a laptop computer, printer, a box containing 100 pre-paid envelopes, a handwritten list of chemicals and equipment relating to applying spice to paper, a face mask/respirator, scales, gloves, a Zanco phone box and a large machete, and part of a press for drugs. Three mobile phones (two of which had IMEI numbers removed) were seized. The appellant’s fingerprints were found on items in prison which had got there in the post. There was evidence of messaging from phones which showed her involvement in this activity. Some of it involved travel, in that, for example, she had to go to the Post Office from time to time, but travel was hardly the essence of this offending. It would be very hard to see how her commission of these crimes could have been “a direct consequence of the person being, or having been, a victim of slavery or a victim of relevant exploitation” where the relevant exploitation was being a victim of trafficking as defined in section 3 of the MSA 2015. This is why Mr Wilcock seeks leave to contend that the judge should have focussed on the recruitment element of the definition of “travel” rather than the travel itself.

Mr Dent responds that there have been a number of shifts of position in the way the appellant puts her case. He says that if ground 1 is well-founded it would become impossible to direct the jury. He relies on the long history of the phrase “menace of penalties” and contends that its use followed from a correct understanding of the law. He says that in the formulation adopted by the judge the test for the defence is significantly broader than that for “compulsion” and that, therefore, it did satisfy the requirement we have emphasised in the extract from the Compendium at [21] above.

Replying to the new ground, Mr Dent submitted that the logic of the defence submission would be that the definition for trafficking in section 45 would be satisfied without the need for any travel at all, such that recruitment plus exploitation would qualify, which he says could not be correct. In any event, given the direction which referred to the word “recruitment” in terms and the nature of the case against the appellant, the conviction is sound. Mr Dent helpfully analysed the evidence in the appellant’s case and showed that there is very little evidence of any travel except to the Post Office at Seven Sisters in respect of count 7, at least until the later stages of the conspiracy in 2019. He pointed out that there is no evidence about how the appellant was recruited into the conspiracy. The only evidence is of her conduct during her participation in it. He submitted that in truth whether the criticism of the manner in which the jury was directed on the second way of putting the defence is well-founded or not, the outcome must inevitably have been the same.

In convicting the appellant of the offences where they did, the jury rejected both of the ways in which the section 45 defence was put. They acquitted of seven other offences and it is impossible to know for certain whether that was because they did not accept that she had participated in those conspiracies or whether they drew some other distinction between them and the five counts on which they convicted. It has not been suggested that there was any way in which the defence might operate differently between the different counts, and so the former route to acquittal seems more likely.

In our view the expression “menaces of penalty” is not a useful phrase when directing a jury about the section 45 defence in cases where it is said to be “slavery” (in the broader sense we shall explain below) which is the matter of which the offending was a direct consequence. It is legally sound, as the reference to Basfar v Wong reveals, but is apt to confuse and mislead jurors because its meaning is not self-evident in modern English. The factors which the judge used in his written directions under “Forced or Compulsory Labour” at sub-paragraphs (a)-(h) at [17] above to qualify and explain it would have sufficed on their own to show what “slavery”, in the section 45 sense and so including “forced or compulsory labour”, means. We use that form of words because “slavery” and “forced or compulsory labour” mean different things in section 1 of the MSA 2015, and it is only the word “slavery” which appears in section 45(4)(b). Compulsion is attributable to slavery for the purposes of section 45(1) if it results from any of the three offences created by section 1 (see section 45(3)(a)), but we read that provision as extending to all places in section 45 where the word “slavery” appears. The judge took that course and is not criticised for doing so. The Compendium does also, and we agree with it.

This means that, at least in the case of a child, where compulsion is not a necessary element of the defence, the expression “forced or compulsory labour” must be understood so that there is no inconsistency in the way in which the defence is explained to the jury.

The essence of the definition of this aspect of slavery, forced or compulsory labour, is that the child who committed the offence did so because they were put under pressure, although that pressure need not have been so powerful that they were compelled to do it in the sense that they had no realistic alternative.

We therefore agree with the Compendium, and Mr Wilcock, that other ways of explaining the defence are better than “menaces of penalty” since this may appear to set the bar too high in the case of children.

However, it does not follow that these convictions are unsafe. The judge’s directions, taken overall, were very fair and balanced. The points at (a)-(h) at [17] above under the heading “Forced/Compulsory Labour” do properly set out the factors which the jury should consider in deciding whether the prosecution has proved that the second limb of the defence, in section 45(4)(b), is excluded.

In truth, there was very limited evidence about whether or to what extent the appellant was put under pressure by Mullings to commit these offences. We have summarised Mr Wilcock’s submission on this question at [26] above. The appellant did not herself give evidence and the only evidence on which she relied was the expert psychiatric evidence which was relevant to the third part of the test, whether a reasonable person in the same situation as the person and having the person's relevant characteristics would do the relevant act. “Relevant characteristics”  means age, sex and any physical or mental illness or disability. Therefore, the psychiatric evidence was highly relevant at that stage and it was there that the real disputed ground at trial lay. The evidence of the psychiatrist was that the appellant suffered from anxiety, depression and PTSD and was vulnerable for these reasons. He did not identify any pressure applied by Mullings to induce her to assist him or offer any view about whether the psychiatric diagnoses may be relevant to the reasons why she succumbed to any such pressure.

The jury was sure, after considering it, that a reasonable person having the appellant’s relevant characteristics would not commit the acts which amounted to the offences of which she was convicted. Given the directions they had received, and the evidence which they had considered we consider that this was a safe conclusion.

We do not give leave to the appellant to argue the new ground. In our judgment, the summing up correctly identified the terms of the statute, which include the word “recruitment” in dealing with the second way in which the section 45 defence was raised. If, as was the case, she had lost on the first line of defence, forced or compulsory labour, there was nothing really left on which she might succeed on the second way in which it was raised. As we have explained at [28] above in summarising Mr Wilcock’s submissions, the facts here did not allow a conclusion that the appellant was recruited into the allegedly exploitative scheme in a way which involved any travel being arranged or facilitated. On the contrary, she travelled to the very limited extent she did in order to carry out her instructions as a participant in the scheme. There was no direct evidence about how she had been recruited into the scheme, and no evidence either that her recruitment had any connection at all with any travel. The adoption of language from Article 4 of ECAT in a British domestic penal statute creates a difficulty in that it might appear that it is enough to amount to “trafficking” if a person is recruited into any criminal enterprise and never leaves there home during its currency. This seems unlikely, but the required connection between “recruitment” and “trafficking” is not spelt out. We do not have to decide this question because, as we have said, the jury in this case was sure that the prosecution had proved that a reasonable person in the same situation as the person and having the person's relevant characteristics would not commit the offences of which the appellant was convicted. That is equally fatal to both ways in which the statutory defence might arise.

For these reasons, the appeal is dismissed and leave to pursue the proposed new ground is refused.