My Lords, I thank noble Lords for their contributions to the debate, and I am grateful that they felt able to welcome the government amendments.
I turn to the amendments tabled by the noble Baroness, Lady Kennedy of Cradley. As she set out, Amendments 80A and 82 would remove the “reasonable person” test for children and adults. Whenever any statutory defence is created, we must be very careful to ensure that the line is drawn in the right place so that the people who need it can access it, but also to avoid unfairness or injustice to potential victims of serious crime and to prevent the defence being abused by those seeking to escape justice.
The noble Baroness raised concerns that the reasonable person test would breach EU directive requirements, which would make it difficult for us to work in cross-border operations. However, it does not place the UK in breach of the directive. As the pre-legislative scrutiny committee identified, the UK is already compliant with all its international obligations. The test will have no impact on cross-border operations. However, I note what she said, and the comments of my noble friend Lady Hamwee and the noble Lord, Lord Rosser. Perhaps we can agree to discuss this again before Report.
The reasonable person test is an objective test. The “no realistic alternative” formulation in the reasonable person test came directly from the case law that the
noble Baroness mentioned. In response to the noble Lord, Lord Rosser, on whether the reasonable person would be someone who has suffered the same sort of experiences, that is indeed how that would be applied in these cases. People who have been enslaved or trafficked may commit criminal offences in a wide variety of circumstances. Such a defence may not be justified in every case. For example, the courts have consistently ruled that the defence of duress can never apply in cases of murder. We must not create a defence so wide that it amounts to a loophole in the law. It is important that we protect not just victims but society. An objective test plays a crucial role here: allowing a prosecutor or jury to consider all the circumstances, while also considering the accused’s characteristics, such as age and the other characteristics set out. We consider that removing the objective test would leave the defence dangerously broad.
Turning to Amendment 84A, which deals with Director of Public Prosecutions’ guidance on non-prosecution of victims, the Code for Crown Prosecutors is issued by the Director of Public Prosecutions. It gives guidance to prosecutors on general principles to be applied when making decisions about prosecutions. The code requires the prosecutor to complete two stages: is there sufficient evidence to provide a realistic prospect of conviction, and is a prosecution required in the public interest? It is not the case, and never has been, that just because there is sufficient evidence to bring a prosecution the public interest will require one. That discretion is a vital protection and helps avoid unnecessary or unjust prosecutions. The code is supplemented by a body of legal and policy guidance on specific offences and procedures, which includes guidance on suspects in a criminal case who might be victims of trafficking or slavery. This is updated on a regular basis to reflect case law or any other changes and is published on the CPS website.
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The new clause would place the guidance on a statutory footing, require it to be published only after consultation with the Independent Anti-slavery Commissioner, and require the Director of Public Prosecutions to review any prosecution involving a victim of slavery, trafficking or exploitation. The DPP has already revised the relevant guidance this year, so there is no need for a statutory duty to ensure that this important guidance remains in place or is updated. I am sure that, after the passage of the Bill, the DPP will in due course review the guidance again to make sure that it remains up to date.
I understand why the Opposition have included in their amendment a requirement to consult with the Independent Anti-slavery Commissioner on the guidance. It will be vital for the Anti-slavery Commissioner to work closely with the CPS to ensure that all agencies can improve their response to modern slavery. However, it would be most unusual for the Director of Public Prosecutions to have a statutory duty to consult with a particular person before developing or issuing guidance. It is unnecessary to legislate in this way. The Director of Public Prosecutions operates independently under the superintendence of the Attorney-General, who is accountable to Parliament for the work of the CPS.
The DPP will invariably consult with stakeholders and interested parties as to the content of any guidance that she issues. However, the final shape and effect of any guidance published will, of necessity, need to be determined by the DPP alone and not by others, no matter how expert in the field they may be.
The amendment also suggests that cases involving prosecutions of victims of slavery or trafficking should have to be reviewed by the DPP personally. The CPS already has procedures in place to ensure the careful review of cases involving trafficking victims. In all cases where there is evidence or information that suggests that a suspect might be the victim of trafficking, the case will be reviewed by a suitably senior and experienced prosecutor in light of that information. However, in nearly all cases that have been referred to the Court of Appeal, information about the defendant’s trafficking status has not come to light until they are already serving sentence, as the noble Lord said. That is why the commissioner has a key role to play in ensuring that all agencies and organisations can identify victims effectively and promptly.
The new clause seeks to set out how the CPS should identify a potential victim. We have some concerns about this. The evidence that the CPS bases a decision on is not the same as evidence adduced at court, which is ultimately a matter for the judge and jury, having regard to all the evidence. Proposed new subsections (5)(b) and (c) relate to court proceedings and do not appear relevant to what we want to see: early identification of victims before prosecutions are brought.
We all want this defence to apply when vulnerable, abused and exploited individuals are forced into criminality, while at the same time ensuring that criminals acting of their own volition cannot use a protection intended for the most vulnerable to get away with their crimes. That is why we tabled the government amendments, which, importantly, remove the test that requires children to be compelled to commit an offence. I believe we now have the right balance between providing additional protection for victims and avoiding creating a loophole in the law that would allow wrongdoers to go free. With those assurances and the commitment that we will discuss this again before Report, I hope that noble Lords will feel able not to press their amendments and to support the amendments in the name of my noble friend Lord Bates.