Human Trafficking and Modern Day Slavery: When Victims Kill

Wake, Nicola (2017) Human Trafficking and Modern Day Slavery: When Victims Kill. Criminal Law Review, 9. pp. 658-677. ISSN 0011-135X

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Abstract

The Modern Slavery Act 2015 s.45 provides a defence for individuals compelled to commit a criminal offence because of slavery and/or exploitation. Many offences, including murder, are excluded from the ambit of this defence. In cases where s.45 does not apply, reliance must be placed on duress and necessity, prosecutorial discretion, and the power to stay a prosecution. These approaches are heavily circumscribed in murder cases where duress and necessity are inapplicable, the fact that there has been a killing tends towards prosecution and the power to stay is invoked in exceptional circumstances. The introduction of s.45 and the approaches to be adopted where the defence does not apply provides an opportunity to consider afresh whether a (partial) defence to murder based upon compulsion ought to be available. A review of domestic law suggests that failure to provide a (partial) defence is based on policy and possibly confusion regarding the excusatory nature of duress. This article advances a bespoke partial defence for slavery/human trafficking victims who kill based upon compulsion, which would sit cogently alongside the Modern Slavery Act 2015 s.45.

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