The Trafficking Defence in Criminal Law: Nexus and Compulsion

The United Kingdom has accepted international obligations under the Palermo Protocol, the Council of Europe Trafficking Convention, and the EU Trafficking Directive, in relation to the non-prosecution and non-punishment of victims of trafficking for offences they commit which are linked to their trafficking. The obligations are given effect by the Crown Prosecution Service (CPS) discretion not to prosecute, the abuse of process jurisdiction, the common law defence of duress, and the statutory defences under s 45 Modern Slavery Act 2015. In relation to adult victims of trafficking, in each case the question arises of whether they were compelled to commit the offence with which they are charged. This article shows how the English & Welsh courts and the CPS have had insufficient regard to the United Kingdom's international obligations in interpreting 'compulsion', and that improvements are necessary to prevent breaches of the United Kingdom's obligations and the re-traumatisation of victims of trafficking.