The European Commission have suggested that between 100,000 and 800,000 people are trafficked into the EU every year. The breadth of the estimate reveals the difficulty encountered when attempting to quantify the scale of human trafficking. Part of the reason for the difficulty derives from the fact that this international offence lacks a universally implemented common legal definition. Across borders there is inconsistent legislative understanding and practical enforcement of the phenomenon.

Within Western Europe the UK is one of the most frequently reported destinations of trafficking out of African, Eastern European and Asian countries. Sexual and labour exploitation are the most common reasons accounting for trafficking. London police are said to estimate that 70 per cent of the 88,000 women involved in prostitution in England and Wales are under the control of traffickers (according to the US Department of State, Trafficking in Persons Report (2009)).

The UK’s prosecution record

Despite the estimated scale of human trafficking, by spring 2008 in England and Wales there had been no prosecutions for the trafficking of migrant domestic workers, no prosecution for forced labour (in the four years since a specific offence was introduced), and no successful conviction of anyone for trafficking an African child. Between March 2008 and March 2009, 23 trafficking offenders were convicted; 4 of whom were prosecuted for forced labour offences.

The poor prosecution and conviction rate is undoubtedly due, in part, to the surreptitious nature of human trafficking. Ghanaian chief police officers confirmed to me that gangs delivering victims to the UK from Africa are diverse and diffuse in nature; made up of, for example, holding house owners, drivers and forgers. The consequence is that solicitors and counsel do not see the same perpetrator twice. The crime is driven by money which each trafficker in a given network profits from. Surely there is more scope for involving financial investigators with proactive policing to trace the network of the crime.

Public authorities are most likely to come across those trafficked as a result of criminal activity, such as off-street prostitution, cannabis production or benefit fraud. Furthermore victims of trafficking are often transported with false documentation – or have their passports taken from them. Conscious of their immigration status and their engagement in illegal activity, victims may be unwilling to identify themselves in the first instance because they fear sanction from the authorities.

In England and Wales it appears the concerns of victims have been well-founded. Amnesty International UK have reported prosecutions of victims for begging, benefit fraud, financial and credit card fraud, pick-pocketing and other petty crime which they had been forced to commit by traffickers.

There are no central records kept on juvenile offenders who may have been victims of trafficking. It is not therefore possible to give a reliable estimate of trafficked victims who are prosecuted. However there remains anecdotal concern, not least from my own experience in training Ghanaian police, that there is a gap between the mechanism of protection provided by anti-trafficking guidelines and the reality on the ground, that often authorities do not investigate the possibility of trafficking being behind offences committed by victims.

In cases of human trafficking, counsel have a crucial role in identifying victims of trafficking as victims in their own right and not as illegal immigrants or offenders. Victims of trafficking are commonly subjected to a prolonged period of sustained physical and psychological torment at the behest of their traffickers. As a consequence victims will often develop a twisted dependency on their subjugators and become extremely nervous about testifying against them. The imperative to secure the victim’s cooperation is heightened by the axiom that their testimony is instrumental if not decisive in the eventual prosecution of human traffickers. Victims require special protection and support; the Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children (“the UN Trafficking Protocol”) provides that victims should be properly protected and securely sheltered to ensure they are not re-trafficked and that a victim’s immigration status be normalised for at least the duration of the proceedings. Only proper treatment can secure the cooperation of victims and improving our record on prosecuting trafficking offences.

Prosecuting related offences

In cases of human trafficking, the police and CPS often charge rape, blackmail, coercion, false documentation and money laundering etc instead because there is not enough evidence to prove every element of human trafficking. It must be stressed that while using trafficking related offences can provide some recourse to justice for victims, applying legislation that is not specifically in line with the UN Trafficking Protocol raises the difficult issue of victim protection, which is not considered within the context of trafficking-related offences.

Tackling the problem

It is important that in any case of suspected trafficking, provisions for victim support (such as temporary residence permits, secure shelter, psychological help, assistance with repatriation and subsequent compensation against their traffickers) should be guaranteed by domestic law. Training should be provided to ensure law enforcers correctly identify and protect trafficking victims and there should be statutory involvement of relevant NGOs in the process. Since trafficking is mostly a cross-border phenomenon, no one State can tackle it alone and inter-State cooperation and full adherence to the UN Trafficking Protocol is therefore imperative.

Clearly this age old crisis requires modern solutions and as our justice system awakens to a new form of slavery a message from Ghana asks that we recall that enduring principle once taught in the harshest manner; never again.

William Hotham was funded in this project by a scholarship from the Inner Temple.  He was called to the Bar in 2009 and is a visiting fellow of the Indiana University Faculty of Law programme in human rights.  He currently works in the International Assistance Department at the Serious Fraud Office.

A message from Ghana

For many, the slave trade, outlawed by the British Empire in 1807, was humanity’s last and most recent encounter with organised human enslavement. However, on an internship in Ghana I saw that over 200 years since those dark days, human slavery has not been eradicated but has spread across the world. Slavery has taken on a new, sophisticated and clandestine form; human trafficking. Britain must understand and address slavery in its current form.

Under the auspices of the Legal Resources Centre (“LRC”) based in Accra, I worked alongside Ghanaian lawyers to create a training program designed to sensitise law enforcers to human trafficking and the legal mechanisms available to them when tackling the phenomenon. I then presented components of the program in workshops attended by Ghanaian Chief police and border personnel. I also worked to research and submit trends in human trafficking to interested bodies in order to support the development of anti-human trafficking jurisprudence and policies.

Before their training, few Ghanaian law enforcers could define the difference between human trafficking and human smuggling, and this deficiency is not unique to Ghanaian law enforcers. Anecdotally in England and Wales there is a tendency to view trafficking as an immigration crime, coupling it with people smuggling, which is completely different. Smuggling ends with the migrants’ arrival at their destination and profit is made by the smugglers through their transportation fee alone. Conversely trafficking can be cross border or domestic. Trafficked victims either never consent, or if they initially consented to being transported to greener pastures, that consent is vitiated by coercise, deceptive or abusive actions of the traffickers. Trafficking then involves ongoing labour or sexual exploitation of victims to illicit profit.

Prosecuting human trafficking in the UK

In the UK human trafficking is legislated against in the Sexual Offences Act 2003 (“SOA 2003”) and the Asylum and Immigration (Treatment of Claimants etc) Act 2004, which is considered to be in line with the international benchmark provided in the UN Trafficking Protocol. To convict a case of human trafficking, it has to be shown that a person (A) intentionally facilitates or arranges for a person (B) to travel within or through the UK where A intends—or knows that another person (C) is likely—to exploit B. Exploitation encompasses slavery or forced labour, organ removal or the commission of a “relevant offence” (as defined in s 60(1) of SOA 2003). Exploitation does not actually have to happen for the offence to be complete.

Under art 26 of the Council of Europe Convention on Action Against Trafficking in Human Beings (CETS No 197), the UK is obliged to make sure that trafficked persons are not prosecuted for involvement in unlawful activities to the extent that they have been compelled to do so. As the criminal activity is the evident element of crime, rather than the fact that the person might have been trafficked, it is of utmost importance that this clause is applied until the process of identification is finished, to do otherwise would be totally against the words and spirit of the Convention.

The UN Trafficking Protocol is the first global legally binding instrument with an agreed defi­nition on trafficking in persons. The intention behind this Protocol is to facilitate conver­gence in national approaches with regard to the establishment of domestic criminal offences that would support efficient interna­tional cooperation in investigat­ing and prosecuting trafficking in persons cases.