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The modern slavery defence: section 45 and the National Referral Mechanism

Updated 2026-11-05 · Checked against sources 2026-11-05 · England & Wales

Victims of slavery or trafficking have a defence to most offences under Modern Slavery Act 2015 s.45, but not to the serious offences listed in Schedule 4. Drug supply and theft are not excluded, and once the defence is raised the prosecution must disprove it beyond reasonable doubt.

The defence

Section 45 of the Modern Slavery Act 2015 is a complete defence for victims of slavery or trafficking. It covers most offences, from 31 July 2015.

Excluded offences (Schedule 4)

The excluded offences include murder, manslaughter, kidnapping, false imprisonment, perverting the course of justice, threats to kill, wounding or GBH (Offences Against the Person Act 1861 ss.18, 20), robbery, blackmail, arson, serious firearms offences, violent disorder, most sexual offences, terrorism and trafficking offences. Drug supply, cultivation, theft, actual bodily harm, knife possession and fraud are not excluded. This matters in county lines cases (see Drug offences: possession, intent to supply and supply).

Burden of proof

The defendant only has to raise the defence with evidence. The prosecution must then disprove it beyond reasonable doubt (R v MK and Gega [2018] EWCA Crim 667). If age is disputed, the prosecution must prove the defendant was 18 or over.

The National Referral Mechanism

The duty to consider prosecution

The CPS uses a four-stage test:

Prosecutors must record clear reasons if they prosecute despite a positive conclusive grounds decision (VCL and AN v UK (2021) 73 EHRR 9). A court can stay an unfair prosecution as an abuse of process (R v L [2013] EWCA Crim 991).

In practice

Signs of exploitation should be raised early, ideally before charge, so a referral can be made. For under-18s, see Children and young people in the criminal justice system. Early advice matters.

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Authorities: Modern Slavery Act 2015 ss.45, 49, 52 and Sch.4 (as amended to 29 September 2026); Nationality and Borders Act 2022 s.63 (in force 30 January 2023); Illegal Migration Act 2023 ss.22-28 (repealed 2 December 2025 by Border Security, Asylum and Immigration Act 2025 s.41(1)(d)) and s.29 (not in force); R v L and others [2013] EWCA Crim 991; R v MK and Gega [2018] EWCA Crim 667; R v Brecani [2021] EWCA Crim 731; R v CS and Le [2021] EWCA Crim 134; R v ADG [2023] EWCA Crim 1309; VCL and AN v United Kingdom (2021) 73 EHRR 9; CPS prosecution guidance, Modern slavery and human trafficking: offences and defences, including the section 45 defence; Home Office, Modern slavery statutory guidance for England and Wales v4.9 (3 November 2026)

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