Victims who kill: Improving section 45 of the Modern Slavery Act 2015 (E and W)

In Hidden in Plain Sight, the Joint Standing Committee on Foreign Affairs, Defence and Trade recommended that the Australian government introduce defence(s) for modern day slavery victims compelled to commit offences due to exploitation similar to, but improving upon, section 45 of the UK Modern Slavery Act 2015 (recommendation 6.101). 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 is 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 serious nature of the offence 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 paper 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.

Dr Nicola Wake is Associate Professor in Law at Northumbria University, Newcastle-Upon-Tyne, UK. She is Programme Leader for the LL.B (Hons) Direct Entrants Programme, Deputy Director for the Centre for Evidence and Criminal Justice Studies, and a member of the Society of Legal Scholars Executive Committee. Nicola research focusses on mental condition defences, partial defences to murder, and, more recently, victims of human trafficking who commit offences.

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