Modern Slavery Bill 2014

Explanatory Notes

Part 2: Prevention Orders   

71 Part 2 makes provision (clauses 14 to 34) for the introduction of new civil orders to enable prohibitions to be imposed by the courts on individuals convicted of a slavery or trafficking offence, or those involved in slavery or trafficking but who have not been convicted of a slavery or trafficking offence. The rationale for creating these orders is to enable law enforcement bodies and the courts to take tougher action against those involved in trafficking, and to protect individuals from the harm caused by slavery or trafficking by preventing future offending. The new orders will complement existing civil orders, enabling the courts to impose necessary prohibitions on individuals where there is evidence of that individual posing a risk of causing another person to be the victim of slavery, or trafficking for exploitation.

Clause 14 and Schedule 1: Slavery and trafficking prevention orders on sentencing   

72 This clause provides for slavery and trafficking prevention orders ("STPO") on conviction. Subsection (1) enables a court (for example, the magistrates’ court, youth court, Crown Court or in limited cases the Court of Appeal) to impose a STPO on a person on a conviction or other finding in respect of that person for a slavery or human trafficking offence. A slavery or human trafficking offence is defined in subsection (3) and clause 34(1) and means an offence listed in Schedule 1 to the Bill. Schedule 1 includes reference to the new offences in Part 1 of the Bill, the preceding offences in England and Wales and equivalent offences in Scotland and Northern Ireland. Since clause 14 extends only to England and Wales, the power conferred by this clause will be available only where a court in England and Wales deals with a person for an offence under the law of England and Wales. Offences under the law of Scotland and Northern Ireland are, however, relevant to whether a court in England and Wales may make an order under clause 15.

73 Subsection (2) provides that the court must be satisfied that there is a risk that the defendant may commit a slavery or human trafficking offence and that it is necessary to make a STPO for the purposes of protecting persons generally, or particular persons, from physical or psychological harm which would be likely to occur if the defendant committed such an offence.

74 Subsection (3) defines "slavery or human trafficking offence" by reference to offences listed in Schedule 1.

75 Subsection (4) enables the Secretary of State to amend Schedule 1 by order. For example, this power could be used to add to Schedule 1 any new slavery or trafficking offences created by legislation in Scotland or Northern Ireland.

76 Subsection (5) provides that a STPO may be made in relation to a conviction and finding made before this clause comes into force.

77 Schedule 1 sets out the offences which are slavery and human trafficking offences for the purposes of Part 2.

Clause 15: Slavery and trafficking prevention orders on application   

78 This clause provides for a STPO in cases other than on conviction etc. An application for a STPO may be made to a magistrates’ court by a chief officer of police, an immigration officer or the Director General of the National Crime Agency ("NCA") (subsection (1)). The NCA, established under section 1 of the Crime and Courts Act 2013, holds the national lead for tackling slavery and human trafficking. Where an application is made by an immigration officer or the Director General of the NCA, the immigration officer or Director General must notify the chief officer of police for the area where the offender resides or is believed to intend to reside (subsection ( 7 )).

79 The court in accordance with subsection (2) must be satisfied that the defendant is a relevant offender (defined in clause 16) and that, since the defendant became a relevant offender, he has acted in a way which demonstrates that there is a risk that the defendant may commit a slavery or human trafficking offence and that it is necessary to make a STPO for the purpose of protecting persons generally, or particular persons, from physical or psychological harm which would be likely to occur if the defendant committed such an offence.

80 Subsection (9) provides that a STPO may be made in relation to conduct that took place before this clause comes into force.

Clause 16: Meaning of "relevant offender"   

81 Subsections (1) to (3) define a relevant offender for the purposes of clause 15. A relevant offender includes a person convicted, made the subject of a finding or cautioned for a slavery or human trafficking offence in any part of the United Kingdom, and also a person convicted etc. in relation to an equivalent offence outside the United Kingdom (defined insubsections ( 4 ) to (5)). Where an application is made in respect of an equivalent offence, it is open to the person in respect of whom the application is made to challenge whether the offence he or she has been convicted of is an equivalent offence. They can do this by serving a notice on the applicant setting out the grounds for such a challenge (subsection ( 6 )), or without serving such a notice if the court permits. Subsection (7) provides that references in this clause to convictions etc. include those taking place before its commencement.

Clause 17: Effect of slavery and trafficking prevention orders   

82 Subsection (1) provides that a STPO may prohibit the person in respect of whom the order is made from doing anything described in it. The nature of any prohibition is a matter for the court to determine. A prohibition may include preventing a person from participating in a particular type of business, operating as a gangmaster, visiting a particular place, working with children or travelling to a specified country. The court may only include in an order prohibitions which it is satisfied are necessary for the purpose of protecting persons generally, or particular persons, from physical or psychological harm which would be likely to occur if the defendant committed a slavery or human trafficking offence (subsection (2)).

83 Subsections (3) to (5) provide for the extent and duration of a STPO and the prohibitions in it. A STPO may last for a fixed period of at least five years or until further order. The prohibitions specified in it may each have different duration.

Clause 18: Prohibitions on foreign travel   

84 An STPO may prohibit a person from travelling to any specified country outside the United Kingdom, any country other than a country specified in the order or any country outside the United Kingdom (subsection (2)). Such a prohibition may be for a fixed period not exceeding five years, but may be renewed at the end of that period (subsections (1) and (3)). A person prohibited from travelling to any country must surrender all his or her passports to the police (subsection (4)). The police must return any such passports, unless they have been returned to the relevant national or international issuing authorities, once the all-country prohibition ceases to have effect (subsections (5) and (6)).

Clause 19: Requirement to provide name and address   

85 Clause 19 provides that a defendant subject to a slavery and trafficking prevention order may be required by the court to notify to the persons specified in the order, within three days, their name and address (including any subsequent changes to this information). Subsection (2) provides that the court must be satisfied that this requirement is necessary 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 a slavery or human trafficking offence. Subsection (7) sets out that where this information is provided to the National Crime Agency, the National Crime Agency must provide this information to the chief officer of police for each relevant police area, which is defined in subsection (8).

Clause 20: Variation, renewal and discharge   

86 This clause makes provision to enable a person in respect of whom a STPO has been made or the police, National Crime Agency, or an immigration officer (where they applied for the original order) to apply to the court which made the order to vary, renew or discharge the order (subsections (1) and (2)). This provision ensures that the order can be modified to reflect changing circumstances, both to ensure that it remains effective to manage the risk posed by activities relating to slavery or trafficking and that the order remains necessary for that purpose.

87 The person in respect of whom the order was made and, where relevant, the police, National Crime Agency, or an immigration officer have the right to be heard by the court (subsection ( 3 )). In relation to the imposition of any additional prohibitions, the court must apply the same test as that which it applied when making the order (subsection ( 4)). An order may not be discharged within five years of it being made without the consent of the person concerned and the relevant chief officer of police (subsection ( 6 )).

Clause 21: Interim slavery and trafficking prevention orders   

88 Subsections (1) and (2) provide for an interim STPO to be made where an application has been made for a STPO under clause 15 and the court considers that it is just to do so. For example, the court may make an interim order in a case where it is satisfied that this is necessary for the purpose of protecting a person from immediate harm pending the full determination of the application for the order.

89 An interim order must be made for a specified period and ceases to have effect once the main application has been determined (subsection ( 7 )). An interim order may be varied, renewed or discharged (subsection ( 8 )).

Clause 22: Appeals   

90 A person may appeal against the making of a STPO on conviction in the same manner as an appeal against sentence (subsection (1) (a) and (b)). For example, an order made by the magistrates’ court may be appealed to the Crown Court. A STPO made on an application under clause 15 and an interim STPO may be appealed to the Crown Court (subsection (1)(c) and (2)).

91 A person in respect of whom an order is made may also appeal a decision under clause 20 to vary, renew or discharge an order (subsection (3)).

92 Subsection (4) sets out the powers of the Crown Court when determining an appeal. It will be open to the court to revoke the order or to amend its provision (either the duration or the prohibitions contained in it).

93 Subsection (5) provides that in cases specified in the subsection an order made by a Crown Court on an appeal is treated as if it were an order of the court from which the appeal was brought. For example, an order by the Crown Court on an appeal from a decision of the magistrates’ court under clause 15 is treated as if it was an order of the magistrates’ court for the purposes of a subsequent application to vary that order.

Clause 23: Slavery and trafficking risk orders   

94 Subsection (1) enables a magistrates’ court to make a slavery and trafficking risk order ("STRO") on an application by a chief officer of police, an immigration officer or the Director General of the NCA. A STRO may be made against either an adult or person under 18. Where an application is made by an immigration officer or the Director General of the NCA, the immigration officer or Director General must notify the chief officer of police for the area where the offender resides or is believed to intend to reside (subsection ( 6 )).

95 Subsection (2) sets out the test for making a STRO, namely that the court is satisfied there is a risk that the defendant may commit a slavery or human trafficking offence and that it is necessary to make a STPO for the purpose of protecting persons generally, or particular persons, from physical or psychological harm which would be likely to occur if the defendant committed such an offence. There is no requirement for the person in respect of whom an order is sought to have previously been convicted or cautioned in relation to a criminal offence.

96 Subsection (4) provides that an application for a STRO is made by complaint.

97 Subsection (5) provides that in relation to a person aged under 18 a reference to a magistrates’ court is to be taken as referring to a youth court.

98 Subsection (8) provides that an application for a STRO may be made in relation to conduct that took place before the commencement of this clause.

Clause 24: Effect of slavery and trafficking risk orders   

99 Subsection (1) provides that a STRO may prohibit the person in respect of whom the order is made from doing anything described in it. The nature of any prohibition is a matter for the court to determine. A prohibition may include preventing a person from participating in a particular type of business, operating as a gangmaster, visiting a particular place, working with children or travelling to a specified country. The court may only include in an order prohibitions which it is satisfied are necessary for the purpose of protecting persons generally, or particular persons, from physical or psychological harm which would be likely to occur if the defendant committed a slavery or human trafficking offence (subsection (2)).

100 Subsections (3) to (5) provide for the extent and duration of a STRO and the prohibitions in it. A STRO may last for a fixed period of at least two years or until further order. The prohibitions specified in it may each have different duration.

Clause 25: Prohibitions on foreign travel   

101 A STRO may prohibit a person from travelling to any specified country outside the United Kingdom, from travelling to any country other than a country specified in the order or from travelling to any country outside the United Kingdom (subsection (2)). Such a prohibition may be for a fixed period not exceeding five years, but may be renewed at the end of that period (subsections (1) and (3)). A person prohibited from travelling to any country must surrender all his or her passports to the police (subsection (4)). The police must return any such passports, unless they have been returned to the relevant national or international issuing authorities, once the all-country prohibition ceases to have effect (subsections (5) and (6)).

Clause 26: Requirement to provide name and address   

102 This clause provides that a defendant subject to a slavery and trafficking risk order may be required by the court to notify to the persons specified in the order, within three days, their name and address (including any subsequent changes to this information). Subsection (2) provides that the court must be satisfied that this requirement is necessary 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 a slavery or human trafficking offence. Subsection (7) sets out that where this information is provided to the National Crime Agency, the National Crime Agency must provide this information to the chief officer of police for each relevant police area, which is defined in subsection (8).

Clause 27: Variation, renewal and discharge   

103 This clause makes provision to enable the person who is subject to a STRO, the police, National Crime Agency, or an immigration officer to apply to a magistrates’ court to vary, renew or discharge the order (subsections (1) and (2)). This provision ensures that the order can be modified to reflect changing circumstances, both to ensure that it remains effective to manage the risk posed by activities related to slavery or trafficking and that the order remains necessary for that purpose.

104 The person in respect of whom the order was made, and, where relevant, the police, National Crime Agency, or an immigration officer have the right to be heard by the court (subsection (3)). In relation to the imposition of any additional prohibitions, the court must apply the same test as that which applied when making the order (subsection (4)). An order may not be discharged within two years of it being made without the consent of the person concerned and the relevant chief officer of police (subsection (6)).

Clause 28: Interim slavery and trafficking risk orders   

105 Subsections (1) to (3) provide for an interim STRO to be made where an application has been made for an STRO and the court considers that it is just to do so. For example, the court may make an interim order in a case where it is satisfied that this is necessary for the purpose of protecting a person from immediate harm pending the full determination of the application for the order.

106 An interim order must be made for a specified period and ceases to have effect once the main application has been determined (subsecti on ( 7 )). An interim order may be varied, renewed or discharged (subsection ( 8 )).

Clause 29: Appeals   

107 A person may appeal against the making of a STRO or an interim STRO, or the decision under clause 27 to vary, renew or discharge an order to the Crown Court (subsection (1)).

108 Subsection (2) sets out the powers of the Crown Court when determining an appeal. It will be open to the court to revoke the order or to amend its provision (either the duration or the prohibitions contained in it).

109 Subsection (3) provides that in cases specified in the subsection an order made by a Crown Court on an appeal is treated as if it were an order of the court from which the appeal was brought. For example, an order by the Crown Court on an appeal from a decision of the magistrates’ court under clause 23 is treated as if it was an order of the magistrates’ court for the purposes of a subsequent application to vary that order.

Clause 30: Offences   

110 Subsection (1) makes it an offence for a person to do anything which is prohibited by an STPO, interim STPO, STRO or interim STRO without reasonable excuse.

111 Where an order includes a foreign travel prohibition in respect of all countries outside the United Kingdom, subsection (2)makes it an offence for the person subject to the order to fail, without reasonable excuse, to surrender all his or her passports. It is also an offence for a person to fail to comply with a requirement to provide his or her name and address.

112 The maximum penalty for either offence is six months imprisonment or a fine of £5,000 or both on summary conviction, or five years imprisonment following conviction on indictment (subsection (3)). Subsection (4) precludes the court from making an order for a conditional discharge following a conviction for an offence in this clause.

113 In the case of conviction on indictment, the availability of a fine will be determined by section 163 of the Criminal Justice Act 2003 (general power of Crown Court to fine offender convicted on indictment).

Clause 31: Cross-border enforcement   

114 Subsection (1) confers power on the Secretary of State to add to the list of orders in clause 30(1) any "relevant UK order" (defined in s ubsection (2) as an equivalent or similar order made under the law of Scotland or Northern Ireland). This power is exercisable by the Secretary of State making regulations subject to the affirmative resolution procedure

115 The effect of this provision is to enable a breach of an order made in Scotland or Northern Ireland to be a criminal offence in England and Wales.

Clause 32: Rules of court   

116 Subsection (1) allows for rules of court to provide that the youth court can give permission that an application for an STPO or STRO in relation to a person over 18 can be heard in a youth court if there is a linked case relating to an individual under 18 and there is reason for the cases to be heard together.

117 Subsection (2) provides that where an individual attains the age of 18 years after proceedings relating to an STPO or STRO have begun, rules of court may prescribe when the case may or must remain in the youth court, or should be transferred to a magistrates’ court.

Clause 33: Guidance to chief officers of police etc   

118 This clause confers a duty on the Secretary of State to issue guidance to chief officers of police, immigration officers and the Director General of the NCA in relation to their powers in relation to STPOs, interim STPOs, STROs or interim STROs (subsection (1)). The Secretary of State may issue revised guidance (subsection (2)). The Secretary of State is required to publish such guidance (subsection (3)); it is not subject to any Parliamentary procedure.

Clause 34: Interpretation of Part 2   

119 This clause defines the meaning of a number of expressions used in Part 2 of the Bill.

120 Subsection (1) includes the definition of "cautioned", which refers to a caution in respect of a slavery or human trafficking offence which, at the time the caution is given, that person has admitted.

121 Subsection (8) disapplies the usual six month time limit for making an application made by complaint to the magistrates’ court.

Prepared 30th April 2015