FOUNDRY CHAMBERS LECTURE SERIES
MODERN SLAVERY & TRAFFICING OFFENCES OVERVIEW

SLIDE 1: INTRODUCTION
Whether you prosecute or defend trafficking cases, thinking about taking out a class action against the LAA or your CPS employer for exploiting you, or just want to understand the direction of legal travel in this area, then this lecture is for you.

We have organised it into the respective roles:

PROSECUTION:
Thinking about charging, which offences, substantive counts, conspiracies and post-conviction orders, penalties and remedies

DEFENCE:
Thinking about the application of referrals under the National Referral Mechanism, section 45 defences and the use of expert evidence of exploitation in mitigation of sentence, particularly when dealing with YOUTH OFFENDERS.

**Threat of force and/or coercion is not required where the individual is a child and (as in R. v. O [2008] EWCA Crim 2835 para 26) there cannot be a fair trial where neither the defence nor the prosecution take steps to investigate an account of trafficking.

**Violations of ECHR article 4 and 6 provide a basis for an abuse of process argument.

DEVELOPMENTS IN POLICING & EVIDENCE GATHERING:
Thinking about applied Artificial Intelligence forensic tools and the advancements in intelligence analysis.

SLIDE 2: WHAT IS HUMAN TRAFFICKING
It’s a process in which ACT/MEANS/PURPOSE of Exploiting

Traffickers ACT:

This includes

• Recruiting victims
• transporting them to the place where they will be exploited
• hiding them from authorities and
• receiving victims from other traffickers

So why don’t the victims run away or say no?

Because traffickers use different means to compel compliance and get victims to do what they want.

This includes:

• threatening or forcing victims to do what they want
• abducting or deceiving the victims and abusing power
• sometimes traffickers promise small payments or benefits to get the victim

And why are the Traffickers doing this?

The purpose of trafficking is exploitation.  Traffickers take advantage of victims for their own profit or benefit.  This is human trafficking.

**$3b profit from criminal exploitation

**1m people living in slavery worldwide

The misery is exponential

SLIDE 3: FORMS OF EXPLOITATION

1. Commercial / labour exploitation
   • Public facing: nail bars, restaurants, car washes
   • Supply chain: agriculture, food processing & packaging, garment sector
2. Domestic servitude / slavery (s. 1 of MSA 2015)
   • Childcare and domestic services
3. Sexual exploitation (Sexual Offences Act 2003 / Protection for Children Act 1978)
   • Controlling sexual service (brothels, closed community)
   • Trafficking for child sexual service (child abuse images)
4. Criminal exploitation
   • Cannabis cultivation, drug supply, petty street crime
5. Organ removal
   • Organ theft (defined in the Human Tissue Act 2004)
6. Securing service by force/threats or deception
   • False or sham marriage
7. Securing services from children and vulnerable people
   • Child begging

BUT there are an ever evolving number of emerging forms of exploitation: (see slide and consider also)

• Australian Case Study into Orphanage Fraud
• Application of residence; benefit fraud; forced begging; illegal adoption; serious violent offending; **terrorism

Where there are human beings, there are new and creative ways of taking advance, benefiting from and exploiting the vulnerable ones!

MSA 2015 – Commencement date: 01 AUG 2015

SLIDE 4: SLAVERY, SERVITUDE & FORCED OR COMPULSORY LABOUR

To commit this offence

Slavery/Servitude:

Forced or compulsory labour:

• you have to be holding another person in slavery or servitude
• require them to perform forced labour
• or compulsory labour
• in circumstances in which it is known to the person compelling that this person is being required to perform forced/compulsory labout

CIRCUMSTANCES of enslavement/servitude or forced labour:

Have regard to:

• believe they must work / unable to leave
• movement is controlled; fear; isolation; act under instruction; vulnerable; poor medical/living conditions

SECTION 1
Slavery, servitude, force labour MUST actually have taken place

SECTION 2
Human trafficking can be committed with a view to exploitation EVEN where NO exploitation has taken place

SLIDE 5: HUMAN TRAFFICKING FOR THE PURPOSE OF EXPLOITATION
Trafficking is slightly different.  These offences are concerned with the movement of people for the purpose of exploiting them.

This is about the commoditisation of human beings:

If the commodity is a person, and the facilitation of the movement of that person is with a view, or with the intention of exploiting that person, then it will be caught by this section, whether or not the trafficker is the exploiter, or simply part of the agency of exploitation.

• Arranged or facilitates travel
• Consent is irrelevant (willing victims in most case) – think of the Romanian prostitute who services men on the roadside in Sofia for £5, but can charge £50 in London for the same service – she may be a willing victim, even an enthusiastic one
• You can arrange or facilitate travel in any number of ways, by:
  • Recruiting
  • Transporting
  • Transferring
  • Harbouring
  • Receiving
  • Transferring or exchanging control over the person
• Any part of the world
• And travel can be arriving / departing / or going from hotel to hotel or factory to factory within a country

SLIDE 6: DEFINING EXPLOITATION
Slavery, servitude and compulsory labour

**note: no standalone offence for exploitation

Typology of modern slavery:

1. Its work without payment or proper basic remuneration
2. Seasonal cold work that few would seek
3. Long-hours, poor work or dangerous work conditions, squalid living accommodation or debt bondage

Sexual exploitation
This is the area where those accused have the least self-awareness about the criminal nature of their behaviour and actions

1. IIOC – these are victims of modern slavery exploited for the profit made from indecent images of them
2. Operating a brothel, controlling someone’s prostitution, all acts, that no matter how willing the other person, exploits the sex worker

SLIDE 7: STATUTORY PENALTIES
The common denominator in trafficking cases is exploitation and the criminal profit that is generated from an individual’s exploitation. Pre-MSA 2015 (14 years) // now life

Although the three forms of this offence fall into a HIERARCHY OF PERSONAL AUTONOMY:

1. SLAVERY: most severe (akin to a right of ownership)
2. SERVITUDE: provide service under coercion
3. FORCED LABOUR:

It does not follow that the maximum sentence for servitude must always be lower than that for slavery (AG Ref Connors)

Slavery and human trafficking carry life terms //
6 months summarily // s.226A extended & s.224A life for a second offence:

• Currently no sentencing guidelines
• Court should consider the legislative maximum then sentencing authorities (SO definitive guide and CA cases)
• Trafficking for sexual exploitation – heavier sentence than trafficking for other exploitation (AG Ref Khan)
• v. Connors (11 years for holding a person in servitude
• v. Khan (3 years for employing 9 men under false promise and threat with violence to work 13 hr days)
• v. Radu (control child prostitution)

Section 4: ie. committing an offence with the intention of committing human trafficking (max: 10 years unless offence committed is kidnapping/false imprisonment, then life)

But includes aiding, abetting, counselling and procuring

SECURING ASSETS // REPARATION ORDERS //
PROCEEDS OF CRIME // CIVIL ORDERS // CRIMINAL
BEHAVIOUR ORDERS // FORFEITURE //

**Penalties aimed at disrupting offending networks and prevent further exploitation / trafficking

POST-CONVICTION RISK ORDERS:

• Place restrictions on individuals suspected of involvement in modern slavery offending
• 35 Risk Orders were made between July 2015 – June 2018

THE PROSECUTION OF SLAVERY & EXPLOITATIVE OFFENDING
SLIDE 8: CHARGING UNDER THE MSA 2015
If there is clear & compelling evidence of involvement in the trafficking and exploitation of vulnerable nationals then charge

Often the absence of evidence that can be as compelling as the direct evidence

The conduct alleged often traverses the coming into force of the Modern Slavery Act on 01/08/2015 and multiple charges are usually appropriate:

• activities pre-dating the 1st August 2015 should be prosecuted under the relevant legislation (e.g. Immigration Act, Sexual Offences Act etc.)
• those post-dating the Modern Slavery Act should be indicted accordingly

Where there is particular and specific offending outside of that which could be encompassed as conduct that forms part of the exploitation (theft of accounts, DWP fraud, general violence, death threats, etc.) should be separately indicted e.g. sham marriages, rapes, other sexual offending, other serious violence e.g. GBH, false imprisonment,  kidnapping etc. – however the counts on the indictment should reflect that criminal behaviour which occurred but bearing in mind complexity of presentation to the jury with totality of sentence

NEUTRAL GROUND: THE PALERMO PROTOCOL
SLIDE 9: PRINCIPLES OF THE CRIMINAL VICTIM

There is no general prohibition on the prosecution of victims of trafficking that can be construed from:

1. the Council of Europe Convention on Action against Trafficking in Human Beings (the Anti-trafficking convention) or
2. the European Parliament and Council Directive 2011/36/EU on preventing and combating trafficking in human beings and protecting its victims,
3. or any other international instrument,
4. nor can prosecuting child trafficking victims be precluded in all circumstances

However, when a case concerning the prosecution of a victim, or potential victim, of trafficking it might raise an issue under Article 4 of the European Convention on Human Rights.

That is because the prosecution of victims, or potential victims, of trafficking may, in certain circumstances, be at odds with a state’s duty to take operational measures to protect victims of trafficking where the authorities are aware, or ought to be aware, of circumstances giving rise to a credible suspicion that an individual has been trafficked or exploited.

The criteria identified in the Palermo Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women and Children, and the Anti-trafficking Convention,

***Threat of force and/or coercion is not required where the individual is a child. ***Both the Palermo Protocol and the EU Directive make it clear that the MEANS element of human trafficking does not apply for children as a child cannot consent to being exploited even if he or she agrees to the ACT element. 

SLIDE 10: MODERN SLAVERY CASELAW
Formative Caselaw (not covered)

• R v M(L) and others [2010] EWCA Crim 2327
• R v N(A) and others [2012] EWCA Crim 189
• v L(C) [2013] EWCA Crim 991, [2013] 2 Cr. App. R. 23
• v Joseph (Verna Sermanfure) [2017] 1 W.L.R. 3153 [2017] 1 Cr. App. R. 33  [2017] Crim. L.R. 817
• v MK [2019] Q.B. 86  [2018] 3 W.L.R. 895  [2018] 2 Cr. App. R. 14  [2018] Crim. L.R. 922

SLIDE 11:

• R v EK [2018] EWCA Crim 2961
• R-v- JXP [2019] EWCA Crim 1280, 2019 WL 03290240
• R-v-A [2020] EWCA Crim 1408
• R -v- DS [2020 EWCA Crim 285
• DPP v M, 2020 WL 07356619 (2020)
• VCL and A.N v The UK 74603/12 and 77587/12 Judgment 16.2.2021 [Section IV]

SLIDE 12:
MODERN SLAVERY ACT SECTION 45: SLAVERY/TRAFFICKING AS A DEFENCE

Being exploited by an organised criminal network can offer a defence to certain charges.

THE NATIONAL REFERRAL MECHANISM
Expert assessment of PVOT by a Single Competent Authority:

• Timing: the decision should be taken within 5 days of receipt of referral where the person is in detention;
• Or as soon as there is sufficient information
• Consequence: where positive no reasons for that decision // where negative CA must send a reasoned decision to the victim and notify the first responder
• Negative decision must be reviewed by a second appropriately trained caseworker

CHALLENGING NEGATIVE DECISIONS

Legal challenge to negative reasonable/conclusive grounds decisions are brought in the Administrative Court by way of judicial review.

If the reasonable or conclusive grounds test is not met, a reasons challenge can be mounted:

• Review/reconsideration of the negative decision can be made by the first responder; safeguarding services; legal advisers;
• If the competent authority fails to provide robust reasons for rejecting the conclusions of the medical/social services etc. evidence
• Refusal to review is potentially incompatible with requirement to identify victims of trafficking;

Where there is a failure to investigate an allegation of trafficking: provides a basis for an abuse of process argument.

SECTION 45 OF THE MODERN SLAVERY ACT 2015 PROVIDES A STATUTORY DEFENCE FOR VICTIMS OF MODERN SLAVERY:

a. In the case of a person over 18, was compelled to commit the offence and the compulsion was attributable to the slavery or relevant exploitation;
or
b. In the case of a person under 18, committed the offence as a direct consequence of being, or having been, a victim of slavery or relevant exploitation.

In both instances the defence is established if a reasonable person in the same situation as the defendant and with the defendant’s relevant characteristics would (for a defendant over 18) have no realistic alternative to committing the offence or (for a defendant under 18) would have committed the offence: Section 45(1)(d) and Section 45(4)(c).

The defence does not apply to certain serious offences (ie. serious violent and sexual offences listed in Schedule 4 of the Act). It does apply to drug trafficking and money laundering offences, and places the evidential burden on defendants: i.e. the defendant only has to adduce sufficient evidence to allow the defence to be considered by the jury. If the defendant succeeds in discharging the evidential burden, the legal burden falls on the Prosecution to disprove the defence beyond reasonable doubt.

There are safeguards against unmeritorious deployment of the statutory defence, constrained by the objective tests contained in Section 45(1)(d) (for persons over 18) and section 45(4)(c) (for persons under 18).  See MK v R [2018] EWCA Crim 667 for these limitations.

However, such a defence requires the person to have been “compelled to commit the offence”, and that the compulsion was attributable to “slavery” or “relevant exploitation”.

Although the section provides a statutory defence for victims of slavery, it has been used for other ‘relevant exploitation’, including children and vulnerable adults used by county lines drug dealers to carry drugs and firearms.

SLIDE 13: OCT 2020 REPORT ON MODERN SLAVERY
Makes several recommendations:

• Section 1(5) and Section 2(2) should be amended to reflect more clearly that a child is not able to consent to any element of their trafficking
• Wider awareness of REPARATION ORDERS, payment to their victim in respect of the exploitation and degradation they have suffered and that the Sentencing Council should include this in the forthcoming MSA Sentencing Guidelines
• Asset seizure, freezing orders, unexplained wealth orders, confiscation and compensation should be a priority
• It would be use if Crown Court judges could make Risk Orders on application from the CPS rather than police to magistrates

**Disrupt modern slavery and human trafficking networks

SLIDE 14: EFFECTIVE DEFENCE ENGAGEMENT

CPS’s Inadequate Reasons for Disagreeing with the Single Competent Authority (SCA)

Take the case of a Vietnamese migrant found in a cannabis factory

CPS must provide adequate reasons for disagreeing with the SCA assessment that the defendant is or may be a victim of human trafficking.

They would need to have set our clear reasons that are consistent with the definition of trafficking contained in the Polermo protocol and the Anti-trafficking convention for disagreeing with it.

VCL and AN v. UK 16 February 2021 ECHR.

The two (unconnected) applicants, both Vietnamese nationals and minors at the relevant time, were discovered by police to be working in cannabis factories and charged with being concerned in the production of a controlled drug.

The first applicant was not initially referred for assessment as a potential victim of trafficking, the relevant competent authority subsequently determined that he had been trafficked. However, the CPS disagreed with that assessment and pursued his prosecution.

Both pleaded guilty to the charges and were convicted.

The NRM positive finding came AFTER the conviction of the second applicant, and he unsuccessfully appealed his conviction.

Given that an individual’s status as a victim of trafficking may affect whether there is sufficient evidence to prosecute and whether it is in the public interest to do so, any decision on whether or not to prosecute a potential victim of trafficking should – insofar as possible – only be taken once a trafficking assessment has been made by a qualified person.

***The Strasburg Court particularly emphasised that this is particularly important where children are concerned.

Article 4 Implications
While the prosecutor might not be bound by the findings made in the course of such a trafficking assessment, the prosecutor would need to:

• have clear reasons
• that are consistent with the definition of trafficking contained in the Palermo protocol and the Anti-trafficking convention for disagreeing with it. In the instant case,
• having regard in particular to that fact that the first applicant had been discovered in circumstances that themselves had given rise to a credible suspicion that he had been a victim of trafficking
• and that, while the second applicant had been considered an adult when first discovered by the police, a credible suspicion had existed at the very latest nine days after, once the authorities had accepted that he was a minor,
• that both applicants were charged with criminal offences
• instead of being referred to the competent authority for a trafficking assessment,
• and that thereafter the CPS did not provide adequate reasons for disagreeing with the later assessments of the competent authorities

This is a clear example of a case in which the UK had not fulfilled its duty under Article 4 to take operational measures to protect the applicants, either initially, as potential victims of trafficking, or subsequently, as persons recognised by the competent authority to be victims of trafficking.

Article 6 Implications
Having regard to Article 6, while both applicants had been legally represented from the outset, the state cannot rely on any failings by a legal representative or indeed of a defendant – especially a minor defendant – to tell the police or his representatives that he is a victim of trafficking.

The lack of a timely assessment of whether the applicants had in fact been trafficked prevented them from securing evidence that may have constituted a fundamental aspect of their defence

The point is:

1. Pleas may be unequivocal
2. But absence of an assessment as to whether they had been trafficked
3. And whether there is **a direct connection between the criminal act and being a victim of human trafficking (back to slide 10 and the PALERMO PROTOCOL)
4. Those pleas had not been made in full awareness of the facts.

***IN EFFECT PENALISES VICTIMS OF TRAFFICKING FOR NOT INITIALLY IDENTIFYING THEMSELVES AS SUCH AND ALLOWS THE AUTHORITIES TO RELY ON THEIR OWN FAILURE TO FULFIL THEIR DUTY UNDER ARTICLE 4.***

SLIDE 15: CASELAW

The Wrongly Prosecuted Victim of Trafficking Caselaw

There have now been a number of successful domestic cases before the Court of Appeal of wrongly prosecuted victims of trafficking, beginning with:

1. v O, CLW/08/36/2, [2008] EWCA Crim 2835, The Times, 2 October 2008, CA, and including R. v Joseph (Verna) (Anti-Slavery International intervening); R. v Craciunescu (Alexandra) (Same intervening);
2. v L (VC) (Same intervening);

1. v Nguyen (Dong) (Same intervening);
2. v A (A) (Same intervening) (Practice Note), CLW/17/09/4, [2017] 1 W.L.R. 3153, CA, which featured the first applicant, VCL.

The importance of this caselaw is not whether Article 4 of the European Convention on Human Rights has been breached, but rather whether there was a failure to consider the protective ambit of Article 26 of the Anti-trafficking convention and/or Article 8 of the EU directive, and whether that affects the safety of the conviction or, post the 2015 Act, whether the defence in section 45 is made out or could have been made out, usually following post-conviction conclusive grounds decisions.

In R. v DS, CLW/20/13/1, [2020] EWCA Crim 285, [2021] 1 W.L.R. 303, CA, Lord Burnett CJ said at [39(iii)]:

“… The state’s positive obligation to protect victims of trafficking is not expressed in terms of non-prosecution … it ‘requires States to endeavour to provide for the physical safety of victims of trafficking while in their territories and to establish comprehensive policies and programmes to prevent and combat trafficking …’. We do not think that there is any basis for deriving a positive obligation not to prosecute victims of ‘forced or compulsory labour’ in Article 4 of the ECHR. This … is the lowest level of gravity of op- pression against which protection is required, below ‘slavery’ and ‘servitude’. That is the level of oppression for which DS contends in this case. If any such obligation did exist, it would be heavily qualified and there is no basis for concluding that the qualifications found in the common law of duress, and in section 45 of the 2015 Act, and the CPS Guidance are inadequate so that there is a violation of any such positive obligation under Article 4 ECHR which might exist.”

CONCLUSION
Whilst neither a breach of Article 4 nor 6 constitutes a magic bullet that would render a conviction unsafe (breaches of the fair trial guarantee under Article 6 do not automatically render a conviction unsafe – see for example R. v Abdurahman (Ismail), CLW/20/02/1, [2019] EWCA Crim 2239, [2020] 4 W.L.R. 6, CA, in which the Court of Appeal effectively ignored the Grand Chamber’s decision in Ibrahim and others v UK, CLW/16/34/2, The Times, 19 December 2016), the way in which a failure to identify a victim of trafficking pre- prosecution can infect the fairness of subsequent criminal proceedings is not a feature the domestic courts have particularly focussed on, preferring instead to search for a thread of consistency in an applicant’s account.

The concern is the conduct of the police and prosecuting authority in ploughing on with charging and prosecuting decisions, despite obvious objective indicators of trafficking, as well as the way in which conclusive grounds decisions are understood and deployed.

SLIDE 16: LAW ENFORCEMENT: CHASING GUNS RATHER THAN TACKLING EXPLOITATION

Chasing guns rather than dealing with vulnerable people and stopping exploitation

Modern investigative approach to detecting human trafficking and slavery offences:

• TOEX: Tackling Organised Exploitation with new data platform & intel/analytical tools
• ALLTECH (UK) LIMITED: Translation Tools early informal device translation reading tool for intel contained in foreign language

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