Human Trafficking, Slavery and Forced Labour

Human Trafficking, Slavery and Forced Labour

Criminal defence lawyer sheffieldAdam Law Solicitors offer expert legal advice for anyone facing, or worried about facing, prosecution for offences under Human Trafficking, Slavery or Forced Labour. We have a dedicated criminal defence team who have many years experience of all charges of criminal activity.

If you are concerned you may be facing charges for offences under Human Trafficking, Slavery or Forced Labour, or are already facing charges, it is essential you contact us as quickly as possible.  Phone us now on  0114 256 0111, or email us or use the form on this page.

Offences of Human Trafficking, Slavery and Forced Labour

The Modern Slavery Act 2015 (“the 2015 Act”) consolidates existing offences of human trafficking and slavery and encompasses trafficking for all forms of exploitation. It came into force on 31 July 2015.

Human Trafficking

Definition

“Trafficking in persons shall mean the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control of another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or removal of organs.”

Legislation

Arranging or facilitating the travel of another person with a view to exploitation – Section 2 Modern Slavery Act 2015

  1. A person commits an offence if the person arranges or facilitates the travel of another person (V) with a view to V being exploited.
  2. It is irrelevant whether the victim consents to the travel (whether V is an adult or child).
  3. A person may in particular arrange or facilitate V’s travel by recruiting V, transporting or transferring V, harbouring or receiving V, or transferring or exchanging control over V.
  4. A person arranges or a person arranges or facilitates V’s travel with a view to V being exploited only if 
    1. the person intends to exploit V in any part of the world during or after travel; or
    2. the person knows or ought to know that another person is likely to exploit V in any part of the world during or after travel.
  5. Travel is defined as:
    1. Arriving in, or entering, any country
    2. Departing from any country, or
    3. Travelling within any country.
  6. A person who is a United Kingdom (UK) national commits an offence regardless of where the arranging or facilitating takes place, or where the travel takes place.
  7. A person who is not a UK national commits an offence if any part of the arranging or facilitating takes place in the UK, or the travel consists of arrival or entry into, departure from, or travel within the UK.

Section 3 defines the meaning of exploitation for the purposes of section 2. A person is exploited only if one or more of the following apply:

  1. Slavery servitude and forced or compulsory labour, where a person is the victim of an offence under section 1 Modern Slavery Act 2015
  2. Sexual exploitation, which involves the commission of an offence under
    • Section 1(1)(a) of the Protection of Children’s Act 1978 (indecent photographs of children), or
    • Part 1 Sexual Offences Act 2003

which would involve the commission of such an offence if it were done in England and Wales.

  1. Removal of organs in circumstances where a person is encouraged required or expected to do anything which involves the commission of an offence under section 32 or 33 of the Human Tissue Act 2004 (prohibition of commercial dealings in organs and restrictions on use of live donors).
  2. Securing services etc. by force, threats or deception, where the person is subjected to force, threats or deception designed to induce him or her – 
    1. to provide services of any kind,
    2. to provide another person with benefits of any kind, or
    3. to enable another person to acquire benefits of any kind.

Securing services etc. from children and vulnerable persons in circumstances where another person uses or attempts to use the person for a purpose within section (5) (a), (b) or (c), having chosen him or her for that purpose on the grounds that;

  • he or she is a child, is mentally or physically ill or disabled, or has a family relationship with a particular person, and
  • an adult, or a person without the illness, disability, or family relationship, would be likely to refuse to be used for that purpose.

Under sections 3(5) and 3(6) “benefits” is defined as any advantage derived by the trafficker, which could include financial gain, profit, personal benefit or privilege as well as state financial assistance.

This is an either-way offence and on summary conviction is subject to twelve months’ imprisonment and / or unlimited fine. On conviction on indictment, it is life imprisonment. The offence is also a “lifestyle offence” for the purposes of the Proceeds of Crime Act 2002. As the offence is likely to lead to a significant sentence on conviction all cases should be tried in the Crown Court.

Section 4 Modern Slavery Act 2015 – Committing an offence with intent to commit an offence under section 2 of the Act

Section 4 creates an offence of committing any offence with the intention to commit an offence of human trafficking under section 2. This includes an offence committed by aiding, abetting, counselling or procuring an offence under section 2. The offence will also capture activity such as supplying false documents to be used to facilitate trafficking. The offence is drawn widely enough to encompass any offence committed by aiding, abetting, counselling or procuring an offence of trafficking.

This is an either-way offence and on summary conviction is subject to twelve months’ imprisonment and / or unlimited fine. On conviction on indictment, the maximum sentence is ten years’ imprisonment. However, where the offence involves false imprisonment or kidnapping, it is life imprisonment.

Slavery, Servitude, Forced and Compulsory Labour

Section 1 Modern Slavery Act 2015

  1. A person commits an offence if:
    1. the person holds another person in slavery or servitude and the circumstances are such that the person knows or ought to know that the other person is held in slavery or servitude, or
    2. the person requires another person to perform forced or compulsory labour and the circumstances are such that the person knows or ought to know that the other person is being required to perform forced or compulsory labour.
  2. In subsection (1) the references to holding a person in slavery or servitude or requiring a person to perform forced or compulsory labour are to be construed in accordance with Article 4 of the Human Rights Convention (which prohibits a person from being held in slavery or servitude or being required to perform forced or compulsory labour).
  3. In determining whether a person is being held in slavery or servitude or required to perform forced or compulsory labour, regard may be had to all the circumstances.
  4. For example, regards may be had – 
    1. to any of the person’s personal circumstances (such as the person being a child, the person’s family relationships, and any mental or physical illness) which may make the person more vulnerable than other persons;
    2. to any work or services provided by the person, including work or services provided in circumstances which constitute exploitation within s. 3(3) to (6) of the Act (for human trafficking for exploitation)
  5. The consent of a person (whether adult or child) to any of the acts alleged to constitute holding the person in slavery or servitude, or requiring the person to perform forced or compulsory labour, does not preclude a determination that the person is being held in slavery or servitude or required to perform forced or compulsory labour.

A person guilty of an offence under this section is liable: on summary conviction, to imprisonment for term not exceeding 12 months or a fine or both; and on conviction on indictment, to imprisonment for life.

In this section, “Human Rights Convention” means the Convention for the Protection of Human Rights and Fundamental Freedoms agreed by the Council of Europe at Rome on 4 November 1950. Article 4 states that no one shall be held in slavery or servitude and no one shall be required to perform forced or compulsory labour. The definition of each element of the offence is described below.

This offence can be used in cases where the victim has been exploited in accordance with the ECHR definition but was not trafficked, or the trafficking element cannot be proved to the criminal standard. The offence under s. 1 Modern Slavery Act 2015 has been extended to cover all forms of exploitation relevant to human trafficking.

Exceptions to the offence

Article 4(3) of the ECHR sets out exceptions (below) which are applicable to this offence. For the purpose of this offence the term “forced or compulsory labour” shall not include the following exceptions:

  • 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;
  • any service of a military character or, in case of conscientious objectors in countries where they are recognised, service exacted instead of compulsory military service;
  • any service exacted in case of an emergency or calamity threatening the life or well-being of the community;
  • any work or service which forms part of normal civic obligations. This might include obligations to conduct free medical examinations or participate in medical emergency service.

Slavery or Servitude

Slavery is described as the status or condition of a person over whom any or all of the powers attaching the right of ownership are exercised. In essence, characteristics of ownership need to be present for a state of slavery to exist.

Servitude is a linked but much broader term than slavery. In Siliadin v France [2005] EHRLR 660 (paragraph 123), the ECHR reaffirmed that servitude “prohibits a particularly serious form of denial of freedom. It includes, in addition to the obligation to provide certain services to another, the obligation on the “serf” to live on the other’s property and the impossibility of changing his status”. The evidence showed the applicant, an alien who arrived in France at the age of sixteen, had worked for several years for the respondents carrying out household tasks and looking after their three, and subsequently four, children for seven days a week, from 7 am to 10 pm, without receiving any remuneration. She was obliged to follow instructions regarding her working hours and the work to be done, and was not free to come and go as she pleased, though she was allowed out on her own with permission of her employers. The Court unanimously held that there has been a violation of Article 4 of the Convention.

Forced or compulsory labour

The ECHR, in the case of Van der Mussele 8919/80, affirmed that the International Labour Organisation (ILO) conventions were the starting point for interpreting Article 4. The conventions defined forced or compulsory labour as being “all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily”.

Domestic case law

The case of William Connors and others [2013] EWCA Crim 324 offers some further guidance on the distinction between these 3 elements. This case involved a family who, cajoled, bullied and through deception, recruited vulnerable men to work for them. The men worked long hours in very poor conditions 7 days a week, whilst being subjected to violence, threats and abuse. A manifestation of this control was that many of the victims were deprived of the will to leave; others were too demoralised to do so. All five defendants were convicted of a single count of conspiracy to require a person to perform forced or compulsory labour. During the course of the trial, the judge directed the jury to acquit the defendants of conspiracy to hold a person in slavery or servitude. The trial judge had commented that in order for servitude to be established, a court must find that it was impossible for the workers to change their status.

Evidential considerations

Whether there is evidence that a person was subject to servitude or forced or compulsory labour will depend on the circumstances of the individual case. However, there are a number of factors which may, depending on the circumstances, indicate that an individual might be held in servitude or subjected to forced or compulsory labour. The essential elements are those of coercion or deception, which may be demonstrated in a number of ways. The kind of behaviour that would normally, of itself, be evidence of coercion includes (but is not limited to):

  • violence or threats of violence by the employer or the employer’s representative;
  • threats against the worker’s family;
  • threats to expose the worker to the authorities, for example because of the worker’s immigration status or offences they may have committed in the past;
  • the person’s documents, such as a passports or other identification, being withheld by the employer;
  • restriction of movement;
  • debt bondage;
  • withholding of wages.

Other factors that may be indicators of forced labour include (but are not limited to):

  • the worker being given no information, or false information, about the law and their employment rights;
  • excessive working hours being imposed by the employer;
  • hazardous working conditions being imposed by the employer;
  • unwarranted and perhaps unexplained deductions from wages;
  • the employer not paying the full tax or national insurance contributions for the worker;
  • the absence of any formal or implied contract of employment;
  • poor accommodation provided by the employer;
  • misleading information having been given about the nature of the employment;
  • the person being isolated from contact with others;
  • money having been exchanged with other employers/traffickers etc. for the person’s services in an arrangement which has not been agreed with the person concerned or which is not reflected in his remuneration.

These factors have been further supplemented by s. 1(3), (4) and (5) of the Modern Slavery Act 2015 which advise that regard may be had to all the circumstances when determining whether a person is a victim of slavery servitude or forced labour. This can include their age, family relationship and any mental or physical illness which may make the person more vulnerable.

In practice, conditions of servitude and forced labour often involve physical and sexual assaults, restriction of liberty or violence. However, in establishing that a person was held in servitude or required to undertake forced labour does not require the prosecution to prove actual physical force was used or that the victim was physically detained or imprisoned. There may be situations where no physical violence is used or there are no restrictions on movement, but psychological or coercive means are used to effect control, including confiscating the victim’s passport, or keeping them in isolation. Requiring someone to work long hours with few breaks and in poor conditions which are contrary to human dignity might reflect the circumstances in which exploited victims are compelled to work, where they are deprived of essential needs and subject to humiliation, threats and insults.

Accommodation may have been made a condition of employment, for which a high rent is paid, comparative to earnings, and which creates a debt bondage relationship. The victim may be told that if they leave the accommodation they will lose their employment or have to continue to pay for accommodation. Whilst they may be physically free to leave, they are effectively a prisoner of their circumstances.

The indictment

  • In Siliadin v France (2006) it was determined that, in order for servitude to be established, a court must find that it was impossible for the workers to change their status. In Connors (x4) and R [2013] the judge considered that this element could not be established as he didn’t believe that it was impossible for them to leave. The issue of establishing the impossibility of changing status is one that can arise and in some cases it has led to judge’s ruling that the case should not go to the jury.

Bad character evidence

In a case involving forced labour, the judge ruled that bad character evidence from witnesses who had worked for / been exploited by the defendants at a time that pre-dated the indictment period (and pre-dated the enactment of the legislation) could not be admitted.

If you are concerned you may be facing charges for offences under Human Trafficking, Slavery or Forced Labour, or are already facing charges, it is essential you contact us as quickly as possible.  Phone us now on  0114 256 0111, or email us or use the form on this page.

This article is based on public sector information licensed under the Open Government Licence v2.0. The original information can be found here; https://www.cps.gov.uk/legal-guidance/public-order-offences-incorporating-charging-standard