Ongoing Project

The Legal Enforcement of Modern Slavery

Phase 1: Modern Slavery Act (UK) 2015 - A Review of Section 45

Project summary

The Challenge

There was a need to review the impact of some areas of legislation to fight human trafficking and modern slavery abuse.

The Approach

Phase 1 of this research focused on Section 45, the statutory defence for those compelled to commit a crime though their experience of modern slavery.

The Outcome

The research produced a wide range of findings and recommendations to improve the use and understanding of Section 45 of the Modern Slavery Act.

Lead academics

Funded by

The Challenge

While there is no universally agreed definition of modern slavery, it is a form of extreme exploitation that reduces a victim’s liberty in order to generate profit or benefit for the perpetrator.

Researchers at the Wilberforce Institute have examined the impact of legislation to fight human trafficking and modern slavery abuse.

Section 45 of the Modern Slavery Act 2015 relates to:

Legal enforcement.
Modern slavery defence or 'statutory defence' for individuals who were compelled to commit a criminal offence as part of their slavery experience.
Prevention orders.
Penalties and sentencing.

The Act received Royal Assent on 26th March 2015. The intention was to 'give law enforcement the tools to fight modern slavery and to ensure that perpetrators can receive suitably severe punishments for these appalling crimes and enhance support and protection for victims' (Home Office, 2018). Along with consolidating existing, related offences into a single act and introducing the Section 45 defence the Modern Slavery Act introduced certain new duties and enforcement measures including increased sentences, reparation orders, prevention orders and risk orders.

To be a victim of modern slavery means suffering from extreme exploitation for the profit or gain of other people including:

Labour exploitation
Sexual exploitation
Criminal exploitation
Domestic servitude
Organ harvesting

The Approach

Phase 1 of this research project analysed the evidence base to understand how Section 45 of the Modern Slavery Act has played out in practice since its introduction.

The Modern Slavery and Human Rights Policy and Evidence Centre (Modern Slavery PEC) was established in 2019 with £10 million in government funding. The Centre brings together a consortium of universities and independent research organisations with a track record in world-class work on modern slavery, including the Wilberforce Institute. Dr Alicia Heys, Lecturer in Modern Slavery at the Wilberforce Institute, leads one of the Modern Slavery PEC's priority research strands, looking into the legal enforcement of modern slavery.

The research focused specifically on Section 45 of the Modern Slavery Act. This is the statutory defence for individuals who were compelled to commit a criminal offence as part of their slavery experience.

By scrutinising the available information from government and non-governmental organsiation reports, as well as relevant academic literature, this project provided insight not only into how effective the statutory defence is in practice, but also on the reliability and robustness of the evidence base.

Key findings of the Section 45 review

The evidence regarding the implementation of Section 45 is extremely limited and much more research is required to understand how it is used in practice and whether it is fit for purpose. Nearly all the evidence on Section 45 comes from two government-commissioned reviews of the Modern Slavery Act and one report on Section 45 by the Independent Anti-Slavery Commissioner's Office. The quality of the evidence available regarding Section 45 is rated red, which means that there is very little robust evidence on this issue.¹
There is a lack of engagement of people with lived experience in the production of available evidence.¹
There is no quantitative data collected on the use of Section 45, meaning that there is no accurate insight into the outcomes of its use, barriers to success, or the types of crimes it is used to defend. However, a call for evidence by the Independent Anti-Slavery Commissioner indicated that Section 45 is predominantly used in cases relating to drug trafficking.
Adequate training for police, lawyers and the judiciary is fundamental if Section 45 is to be used in the way it was intended: to serve the best interests of victims of modern slavery. This should include insights into potential bias based on notions of the 'ideal victim'. The importance of training is highlighted in both the 2016 and 2019 reviews of the Modern Slavery Act and the 2020 report by the office of the UK's Independent Anti-Slavery Commissioner.
Section 45 refers to crimes committed as a 'direct consequence' of modern slavery or human trafficking, but the Modern Slavery Act does not define the term 'direct consequence'. This means there is a lack of clarity within the legislation around how closely the offence should be associated with the modern slavery situation for the defence to be applicable.
The Modern Slavery Act lists over 100 crimes that the defence cannot be used for, yet some of these are recognised as crimes that victims of modern slavery are known to be coerced into through their exploitative situations, such as the possession of a prohibited firearm, or modern slavery itself.

The Impact

This research has analysed case law, independent reviews and academic literature to generate an understanding of how Section 45 is currently used and understood. It offers key findings, looking at gaps in knowledge and areas for improvement around the use of the statutory defence. The research highlights strengths and weaknesses in the evidence base, and provides recommendations so that changes can be made in policy and practice to better meet the goals of the Modern Slavery Act of punishing perpetrators and protecting victims.

Recommendations

From this evidence review, there are a number of key recommendations that could improve both the use and the understanding of Section 45 of the Modern Slavery Act.

Collection of quantitative data on the use and outcomes of the Section 45 defence should be a priority in order to understand the types of cases in which it is used, barriers to success, and how it might be vulnerable to misuse.
Adequate training for police, lawyers and the judiciary is fundamental if Section 45 is to be used in the way it was intended: to serve the best interests of victims of modern slavery. This should include insights into potential bias based on notions of the 'ideal victim'.

Reviews of any legislation should offer clarity regarding the commissioning process and methodologies used.

Reviews into the practical use of the Modern Slavery Act should involve insights from academics working in relevant fields, and should always seek the input of survivors who have lived experience.

More information can be found on the Modern Slavery and Human Rights Policy and Evidence Centre website.

Read the full review

Read the appendices

Read a blog by Dr Alicia Heys

¹ The Modern Slavery Policy and Evidence Centre uses a traffic light system to rate the quality of available evidence. Green: evidence base is robust and well-established. Amber: there is some robust evidence but there remain gaps in understanding. Red: there is very little robust evidence.

Dr Heys is project managing the next phase of work on the legal enforcement of modern slavery. This phase will have two workstreams:

Prosecution of Modern Slavery Cases in the UK (Workstream 1- led by Dr Heys).
Understanding Child Exploitation by Analysing Perpetrator Characteristics (Workstream 2 - led by Dr Craig Barlow).