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Paramjit Ahluwalia examines the Modern Slavery Act 2015 and asks whether it will work to abolish today’s trade in human capital
Presenting his first Abolitionist Bill to the House of Commons in 1789, William Wilberforce concluded his speech with the words: ‘Having heard all of this, you may choose to look the other way but you can never again say that you did not know.’
Yet more than 200 years later, the trade in human capital remains a global problem, albeit in modern-day manifestations. The term ‘modern slavery’ captures a wide range of types of illegal exploitation of people for personal or commercial gain. Victims are trapped in servitude, into which they were deceived or coerced, and feel they cannot leave. Many victims are ‘hidden in plain sight’, working on construction sites, farms, car washes and nail bars. The Modern Slavery Act 2015 is an ambitious piece of legislation which came into force on 31 July. It is the first Act of its kind in Europe, aiming to prevent, protect and prosecute those within this multifaceted web.
Theresa May described the Act as sending ‘the strongest possible signal to criminals that if you are involved in this vile trade you will be arrested, you will be prosecuted and you will be locked up. And it says to victims, you are not alone – we are here to help you … we as a nation can be proud that today we are closer to consigning slavery to the history books where it belongs.’
In October last year, Kevin Hyland, the UK’s first Independent Anti-Slavery Commissioner and tasked with driving improvements in law enforcement, said he wanted more victims identified, more prosecutions of traffickers and slave masters, and better support for victims, whose treatment by the UK authorities was in some instances ‘morally unacceptable’. Hyland’s action plan included police officer training to make sure that officers know how to handle the victims of sexual exploitation and forced labour, as well as the perpetrators.
Regardless of its good intentions and cross-party support, do the practical solutions offered by the Act achieve its aims?
The Act consolidates the offences of both modern slavery and trafficking under the umbrella of a single Act. Section 1 of the Act at first blush transposes the definition of slavery and servitude from s 71 of the Coroners and Justice Act 2009 into the Modern Slavery Act 2015. Section 1 provides that a person is guilty of holding a person in slavery and servitude if the circumstances are that they ‘know or ought to know the other person is held in slavery/servitude’, or if they require another person to perform forced or compulsory labour and they ‘know or ought to know that the other person is being required to perform forced or compulsory labour’.
Importantly, European jurisprudence remains key, with the definition of an offence under s 1 to be construed in accordance with Art 4 of the European Convention on Human Rights (ECHR). Article 4 of the ECHR states:
1. No one shall be held in slavery or servitude.
2. No one shall be required to perform forced or compulsory labour.
3. For the purpose of this article. the term ‘forced or compulsory labour’ shall not include:
a. any work required to be done in the ordinary course of detention imposed according to the provisions of Article 5 of this Convention or during conditional release from such detention;
b. any service of a military character or, in the case of conscientious objectors in countries where they are recognised, service exacted instead of compulsory military service;
c. any service exacted in the case of an emergency or calamity threatening the life or well-being of the community; and
d. any work or service which forms part of normal civic obligations.
Institutionalised victims
A past hindrance in policing and combatting this crime has been the complex relationship that exists between defendants and those held in servitude or slavery. CPS guidance recognises that ‘often individuals are deliberately targeted for their vulnerabilities; usually they are homeless, addicted to alcohol or drugs, friendless, isolated and destitute. When they have been controlled by discipline, threats and violence, they effectively become institutionalised’.
Section 1(4) does its best to tackle this by highlighting particular vulnerabilities which may be considered; these include an individual being a child, their family relationships, and any mental or physical illnesses which make them more vulnerable. It is yet to be seen, however, how listing these vulnerabilities will increase the efficacy of identification of victims of the crime.
Section 1(5), in the author’s view, does not offer greater protection than previous legislation, but it does explicitly highlight that the consent of a victim does not necessarily provide a blanket defence. Therefore, a person consenting to carry out the performance of acts would not prevent a finding that they are in fact being held in slavery or servitude, or forced labour. This does reflect the institutionalisation of victims that can occur.
Defining trafficking
Section 2 of the Modern Slavery Act 2015 sets out the definition of trafficking. It includes that a person may arrange or facilitate the travel of another person (V), with a view to V being exploited through various methods, including by: ‘recruiting V, transporting or transferring V, harbouring or receiving V, or transferring or exchanging control over V’.
This is a broader definition than previously under s 4 of the Asylum and Immigration (Treatment of Claimants) Act 2004 and recognises the roles of recruiting, harbouring or receiving – and thus better reflects the Palermo Protocol (one of three Protocols, this one being the Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children).
Akin to the definitions within s1 for slavery and servitude, consent by a victim to travel is ‘irrelevant’ for the purpose of the Act. This may be what is provided for within the Act, but realistically could a jury ever extricate questions of consent by a complainant from considering the guilt of a defendant?
Trafficking is not simply the cross-border movement of individuals. The definition of travel itself (s 2(5)) includes internal travel within the UK; this is a key feature to note when looking at the statutory defences of s 45. This will mean that UK nationals who have been trafficked internally are not precluded from relying on the statutory defence of being a victim of trafficking.
Travel, trafficking and exploitation
For there to be trafficking, the travel of someone has to be done with a view to them being exploited. So what is the definition of exploitation?
Section 3 of the Act defines exploitation as covering:
Penalties and sentencing
In relation to sentencing powers, the maximum penalty for those convicted of either ss 1 or 2 offences is imprisonment for life (s 5).
Slavery and trafficking reparation orders
The award of financial compensation to victims in general for serious offences is not often considered post trial. However, s 8(7) provides that a court must (at least) consider a slavery and trafficking reparation order where there are convictions for ss 1, 2 or 4 of the Act.
Trafficking ASBOs
Part 2 of the Act brings into force slavery and trafficking prevention orders (STPOs), which appear to resonate with the terminology of the old style anti-social behavioural orders (ASBOs). What is troubling is that these STPOs do not simply apply to those convicted of a slavery or human trafficking offence (s 14(1)), but also to those who have been found not guilty by reason of insanity, in addition to those who have been found to be under a disability, but to have done the act.
The rationale behind these new civil orders is to enable law enforcement bodies and courts to take tougher action on those involved in trafficking, but it is difficult to see how it can be fair or workable to impose such an order on an individual who, by reason of their disability or mental health, may not be able to comply with it.
A court would only go on to impose an STPO if satisfied that: ‘it is necessary to make the order for the purpose of protecting persons generally, or particular persons, from the physical or psychological harm which would be likely to occur if the defendant committed such an offence’. Perhaps the hurdle of ‘necessary’ could be used as a means of preventing the vulnerable from the imposition of such orders.
Given that the legislation has only just been passed, it remains to be seen how often the courts choose to use such ammunition in combatting this type of crime.
Slavery and trafficking risk orders
In addition, the Act brings into force slavery and trafficking risk orders (s 23), where there is no requirement for the person to have even been convicted in relation to a criminal offence; and interim slavery and trafficking risk orders (s 28), which can be provided where the main application for a risk order has not yet been determined. No actual conviction of a criminal offence is required, yet the powers and types of prohibited conduct are wide – they are not merely limited to a prohibition on foreign travel, a requirement to provide name and address and the surrendering of passports.
Section 24(2) sets out that that the only prohibitions which may be included are those which the court considers are ‘necessary to protect persons generally or particularly from the physical or psychological harm likely to occur if the defendant committed a slavery or human trafficking offence’. It leaves far too wide a discretion to the courts as to what can be prohibited, and particularly when there has not even been a conviction.
Statutory defence
Part 5 of the Act deals with the protection of victims and sets out in s 45 the statutory defence for slavery or trafficking victims who commit an offence as follows:
45(1) A person is not guilty of an offence if:
(a) the person is aged 18 or over when the person does the act which constitutes the offence;
(b) the person does that act because the person is compelled to do it;
(c) the compulsion is attributable to slavery or to relevant exploitation; and
(d) a reasonable person in the same situation as the person and having the person’s relevant characteristics would have no realistic alternative to doing that act.
Article 26 of the Council of Europe Convention on Action Against Trafficking in Human Beings requires that the UK ‘in accordance with the basic principles of its legal system, provides for the possibility of not imposing penalties on victims (of trafficking) for their involvement in unlawful activities to the extent that they have been compelled to do so’.
Prior to the Modern Slavery Act being in force, the UK’s obligations in relation to Art 26 were met (para 21 of the judgment in R v N, R v LE [2012] EWCA Crim 189) either by:
(i) the CPS’s discretion to prosecute; or
(ii) abuse of process: the court intervening in individual cases through a sanction of a stay of the proceedings.
The introduction of the s 45 statutory defence does not nullify or erase the CPS guidance and prosecutorial discretion in these cases. Nor does it erase the option of using abuse of process arguments. However, it is troubling that the statutory defences of the Modern Slavery Act may not enhance the previous protection offered because of its prescriptive nature.
Certain language within s 45 parallels the terminology of duress: a person is not guilty of an offence if a ‘reasonable person in the same situation as the person and having the person’s relevant characteristics would have no realistic alternative to doing that act’. Relevant characteristics for the purposes of this section are later defined as ‘age, sex and any physical or mental illness or disability’. Despite the tests set out above, together with the compulsion needing to be a ‘direct consequence’ of a person being a victim of slavery/relevant exploitation, this Act has restrained the usage of the statutory defences to only certain offences.
Schedule 4 and the offences to which the statutory defence does not apply amounts to some six pages. A person charged with a s 20 or s 18 grievous bodily harm cannot rely on a statutory defence, but someone charged with s 47 actual bodily harm can. The potential for injustice and difficulties presented in summing up a case is vast.
First fruits of our efforts?
The Modern Slavery Act 2015 provides a real opportunity for the justice system to tackle the multifaceted arena of trafficking and modern slavery. The ethos and drive are there. However, we will have to wait and see if the Act results in greater clarity and efficacy in prosecutions, without diminishing the rights of defendants, particularly those whom themselves at one stage were victims of trafficking and modern slavery.
Perhaps an interesting analogy can be drawn with the later speech of William Wilberforce before the House of Commons on 18 April 1791 in which he stated:
‘This is the first fruits of our efforts; let us persevere and our triumph will be complete. Never, never will we desist till we have wiped away this scandal from the Christian name, released ourselves from the load of guilt, under which we at present labour, and extinguished every trace of this bloody traffic, of which our posterity, looking back to the history of these enlightened times, will scarce believe that it has been suffered to exist so long a disgrace and dishonour to this country.’
Contributor Paramjit Ahluwalia, Garden Court Chambers
Yet more than 200 years later, the trade in human capital remains a global problem, albeit in modern-day manifestations. The term ‘modern slavery’ captures a wide range of types of illegal exploitation of people for personal or commercial gain. Victims are trapped in servitude, into which they were deceived or coerced, and feel they cannot leave. Many victims are ‘hidden in plain sight’, working on construction sites, farms, car washes and nail bars. The Modern Slavery Act 2015 is an ambitious piece of legislation which came into force on 31 July. It is the first Act of its kind in Europe, aiming to prevent, protect and prosecute those within this multifaceted web.
Theresa May described the Act as sending ‘the strongest possible signal to criminals that if you are involved in this vile trade you will be arrested, you will be prosecuted and you will be locked up. And it says to victims, you are not alone – we are here to help you … we as a nation can be proud that today we are closer to consigning slavery to the history books where it belongs.’
In October last year, Kevin Hyland, the UK’s first Independent Anti-Slavery Commissioner and tasked with driving improvements in law enforcement, said he wanted more victims identified, more prosecutions of traffickers and slave masters, and better support for victims, whose treatment by the UK authorities was in some instances ‘morally unacceptable’. Hyland’s action plan included police officer training to make sure that officers know how to handle the victims of sexual exploitation and forced labour, as well as the perpetrators.
Regardless of its good intentions and cross-party support, do the practical solutions offered by the Act achieve its aims?
The Act consolidates the offences of both modern slavery and trafficking under the umbrella of a single Act. Section 1 of the Act at first blush transposes the definition of slavery and servitude from s 71 of the Coroners and Justice Act 2009 into the Modern Slavery Act 2015. Section 1 provides that a person is guilty of holding a person in slavery and servitude if the circumstances are that they ‘know or ought to know the other person is held in slavery/servitude’, or if they require another person to perform forced or compulsory labour and they ‘know or ought to know that the other person is being required to perform forced or compulsory labour’.
Importantly, European jurisprudence remains key, with the definition of an offence under s 1 to be construed in accordance with Art 4 of the European Convention on Human Rights (ECHR). Article 4 of the ECHR states:
1. No one shall be held in slavery or servitude.
2. No one shall be required to perform forced or compulsory labour.
3. For the purpose of this article. the term ‘forced or compulsory labour’ shall not include:
a. any work required to be done in the ordinary course of detention imposed according to the provisions of Article 5 of this Convention or during conditional release from such detention;
b. any service of a military character or, in the case of conscientious objectors in countries where they are recognised, service exacted instead of compulsory military service;
c. any service exacted in the case of an emergency or calamity threatening the life or well-being of the community; and
d. any work or service which forms part of normal civic obligations.
Institutionalised victims
A past hindrance in policing and combatting this crime has been the complex relationship that exists between defendants and those held in servitude or slavery. CPS guidance recognises that ‘often individuals are deliberately targeted for their vulnerabilities; usually they are homeless, addicted to alcohol or drugs, friendless, isolated and destitute. When they have been controlled by discipline, threats and violence, they effectively become institutionalised’.
Section 1(4) does its best to tackle this by highlighting particular vulnerabilities which may be considered; these include an individual being a child, their family relationships, and any mental or physical illnesses which make them more vulnerable. It is yet to be seen, however, how listing these vulnerabilities will increase the efficacy of identification of victims of the crime.
Section 1(5), in the author’s view, does not offer greater protection than previous legislation, but it does explicitly highlight that the consent of a victim does not necessarily provide a blanket defence. Therefore, a person consenting to carry out the performance of acts would not prevent a finding that they are in fact being held in slavery or servitude, or forced labour. This does reflect the institutionalisation of victims that can occur.
Defining trafficking
Section 2 of the Modern Slavery Act 2015 sets out the definition of trafficking. It includes that a person may arrange or facilitate the travel of another person (V), with a view to V being exploited through various methods, including by: ‘recruiting V, transporting or transferring V, harbouring or receiving V, or transferring or exchanging control over V’.
This is a broader definition than previously under s 4 of the Asylum and Immigration (Treatment of Claimants) Act 2004 and recognises the roles of recruiting, harbouring or receiving – and thus better reflects the Palermo Protocol (one of three Protocols, this one being the Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children).
Akin to the definitions within s1 for slavery and servitude, consent by a victim to travel is ‘irrelevant’ for the purpose of the Act. This may be what is provided for within the Act, but realistically could a jury ever extricate questions of consent by a complainant from considering the guilt of a defendant?
Trafficking is not simply the cross-border movement of individuals. The definition of travel itself (s 2(5)) includes internal travel within the UK; this is a key feature to note when looking at the statutory defences of s 45. This will mean that UK nationals who have been trafficked internally are not precluded from relying on the statutory defence of being a victim of trafficking.
Travel, trafficking and exploitation
For there to be trafficking, the travel of someone has to be done with a view to them being exploited. So what is the definition of exploitation?
Section 3 of the Act defines exploitation as covering:
Penalties and sentencing
In relation to sentencing powers, the maximum penalty for those convicted of either ss 1 or 2 offences is imprisonment for life (s 5).
Slavery and trafficking reparation orders
The award of financial compensation to victims in general for serious offences is not often considered post trial. However, s 8(7) provides that a court must (at least) consider a slavery and trafficking reparation order where there are convictions for ss 1, 2 or 4 of the Act.
Trafficking ASBOs
Part 2 of the Act brings into force slavery and trafficking prevention orders (STPOs), which appear to resonate with the terminology of the old style anti-social behavioural orders (ASBOs). What is troubling is that these STPOs do not simply apply to those convicted of a slavery or human trafficking offence (s 14(1)), but also to those who have been found not guilty by reason of insanity, in addition to those who have been found to be under a disability, but to have done the act.
The rationale behind these new civil orders is to enable law enforcement bodies and courts to take tougher action on those involved in trafficking, but it is difficult to see how it can be fair or workable to impose such an order on an individual who, by reason of their disability or mental health, may not be able to comply with it.
A court would only go on to impose an STPO if satisfied that: ‘it is necessary to make the order for the purpose of protecting persons generally, or particular persons, from the physical or psychological harm which would be likely to occur if the defendant committed such an offence’. Perhaps the hurdle of ‘necessary’ could be used as a means of preventing the vulnerable from the imposition of such orders.
Given that the legislation has only just been passed, it remains to be seen how often the courts choose to use such ammunition in combatting this type of crime.
Slavery and trafficking risk orders
In addition, the Act brings into force slavery and trafficking risk orders (s 23), where there is no requirement for the person to have even been convicted in relation to a criminal offence; and interim slavery and trafficking risk orders (s 28), which can be provided where the main application for a risk order has not yet been determined. No actual conviction of a criminal offence is required, yet the powers and types of prohibited conduct are wide – they are not merely limited to a prohibition on foreign travel, a requirement to provide name and address and the surrendering of passports.
Section 24(2) sets out that that the only prohibitions which may be included are those which the court considers are ‘necessary to protect persons generally or particularly from the physical or psychological harm likely to occur if the defendant committed a slavery or human trafficking offence’. It leaves far too wide a discretion to the courts as to what can be prohibited, and particularly when there has not even been a conviction.
Statutory defence
Part 5 of the Act deals with the protection of victims and sets out in s 45 the statutory defence for slavery or trafficking victims who commit an offence as follows:
45(1) A person is not guilty of an offence if:
(a) the person is aged 18 or over when the person does the act which constitutes the offence;
(b) the person does that act because the person is compelled to do it;
(c) the compulsion is attributable to slavery or to relevant exploitation; and
(d) a reasonable person in the same situation as the person and having the person’s relevant characteristics would have no realistic alternative to doing that act.
Article 26 of the Council of Europe Convention on Action Against Trafficking in Human Beings requires that the UK ‘in accordance with the basic principles of its legal system, provides for the possibility of not imposing penalties on victims (of trafficking) for their involvement in unlawful activities to the extent that they have been compelled to do so’.
Prior to the Modern Slavery Act being in force, the UK’s obligations in relation to Art 26 were met (para 21 of the judgment in R v N, R v LE [2012] EWCA Crim 189) either by:
(i) the CPS’s discretion to prosecute; or
(ii) abuse of process: the court intervening in individual cases through a sanction of a stay of the proceedings.
The introduction of the s 45 statutory defence does not nullify or erase the CPS guidance and prosecutorial discretion in these cases. Nor does it erase the option of using abuse of process arguments. However, it is troubling that the statutory defences of the Modern Slavery Act may not enhance the previous protection offered because of its prescriptive nature.
Certain language within s 45 parallels the terminology of duress: a person is not guilty of an offence if a ‘reasonable person in the same situation as the person and having the person’s relevant characteristics would have no realistic alternative to doing that act’. Relevant characteristics for the purposes of this section are later defined as ‘age, sex and any physical or mental illness or disability’. Despite the tests set out above, together with the compulsion needing to be a ‘direct consequence’ of a person being a victim of slavery/relevant exploitation, this Act has restrained the usage of the statutory defences to only certain offences.
Schedule 4 and the offences to which the statutory defence does not apply amounts to some six pages. A person charged with a s 20 or s 18 grievous bodily harm cannot rely on a statutory defence, but someone charged with s 47 actual bodily harm can. The potential for injustice and difficulties presented in summing up a case is vast.
First fruits of our efforts?
The Modern Slavery Act 2015 provides a real opportunity for the justice system to tackle the multifaceted arena of trafficking and modern slavery. The ethos and drive are there. However, we will have to wait and see if the Act results in greater clarity and efficacy in prosecutions, without diminishing the rights of defendants, particularly those whom themselves at one stage were victims of trafficking and modern slavery.
Perhaps an interesting analogy can be drawn with the later speech of William Wilberforce before the House of Commons on 18 April 1791 in which he stated:
‘This is the first fruits of our efforts; let us persevere and our triumph will be complete. Never, never will we desist till we have wiped away this scandal from the Christian name, released ourselves from the load of guilt, under which we at present labour, and extinguished every trace of this bloody traffic, of which our posterity, looking back to the history of these enlightened times, will scarce believe that it has been suffered to exist so long a disgrace and dishonour to this country.’
Contributor Paramjit Ahluwalia, Garden Court Chambers
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