Modern Slavery Bill

Written evidence submitted by Peter Carter, QC (MS 02)

General

1. There is much to be welcomed in the Modern Slavery Bill. It illustrates the Government’s intention to take action to eradicate modern slavery.

2. The Bill is an improvement over the draft Bill which was the subject of the Joint Parliamentary Pre-Legislative Scrutiny Committee’s report.

Offences

3. The offences in the Bill are drafted so as to retain some of the inadequacies of the existing legislation. The wording is unclear and is capable of causing problems of interpretation. Those shortcomings will imperil effective implementation by police, prosecutors and courts.

4. How many offences are created by clauses 1 to 3?

5. Consent to travel is irrelevant to trafficking – Cl 2(2)? What about consent to exploitation? Cl 1(2) and (3) make consent a live issue, even in the case of children. This is contrary to international law.

6. There is no child-specific offence. Protection of child victims of trafficking should be a priority even within the high priority given to modern slavery in general.

7. This omission is partly caused by, and is partly the reason for, the inadequacy of the offences as drafted in the Bill.

8. I disagree with the criticisms of the offence provisions in the draft Bill approved by the Joint Parliamentary Pre-Legislative Scrutiny Committee’s report set out in paragraph 4.2 (p.10) of the House of Commons Library Research Paper no. 14/37 dated 2 July 2014, namely -

· the proposed offences, particularly those relating specifically to children, are too broad in scope and uncertain, and they could criminalise behaviour that clearly should not be criminalised. For example, there is a risk that the proposed child exploitation offence could cover a parent who expects their child to help with household chores;

· by their very nature, slavery and human trafficking are two of the most serious offences available to prosecutors, both of which will now carry a life sentence. Diluting the offences by allowing a much lower level of exploitation to be captured, rather than relying on other existing offences, would weaken the framework and divert attention from serious abuse;

· creating a suite of offences that could result in six different offences relating to each victim being considered at trial risks causing confusion for juries. The jury would have to both understand each of six offences, and the interrelationship between them. Rather than making successful prosecution easier, the proposed scheme would create a real risk of making convictions more difficult. The current scheme of offences (relying on two offences; trafficking and slavery, servitude and forced or compulsory labour) is simpler and more familiar to the judges, whose responsibility it is to direct juries on the law, and who know where to look for the previous case-law on the meaning of the offences (including the case-law of the European Court of Human Rights). They are accordingly more workable in practice; and

· the offences, as drafted by the Committee, also appear to lack the requirement for any mental element (mens rea), which is an integral part of almost all serious criminal offences, and certainly those attracting a maximum sentence of life imprisonment.

9. Bullet point 1 misses the significance of the word "exploitation". It will not and cannot extend to sulky teenagers required to clean their rooms or do some washing up.

10. Bullet point 2 makes a similar assumption. The range of behaviour captured by the present Bill also potentially extends to a wide range of seriousness.

11. Bullet point 3 misses the purpose of the "cascade" effect of the Joint Parliamentary Pre-Legislative Scrutiny Committee’s recommendation. A series of overlapping offences ensures there are no gaps. A jury would consider the most serious first and only if not satisfied would they consider the next. In reality cases in which all the alternatives are charged will be rare. Prosecutors and courts are accustomed to presenting a series of offences in declining seriousness. It often happens in murder cases, in cases of serious non-fatal violence, in drug-trafficking cases and in sexual offence cases.

12. Bullet point 4 is wrong. Slavery is a state of affairs which is criminal in itself. Ignorance that the condition in which a victim is held amounts to slavery is a mistake of law and cannot give rise to a defence. The offences of exploitation of an adult requires acts of fraud, threats etc which involve a deliberate act with a purpose. The offences of trafficking require a purpose to exploit.

13. The child-specific offence of exploitation is satisfied by evidence that the victim was a child and was exploited. Protection of children requires that the offence should not be subject to a defence that the perpetrator thought cruelty or exploitation was legitimate. There are various offences in the Sexual Offences act 2003 which are committed by a specific act against a child under the age of 13. It is immaterial whether the accused thought the child was 14 or 21. The fact of the act together with the established age of the child suffices. A similar policy should apply to modern slavery offences.

Statutory defence – Part 4

14. I welcome the Government’s agreement that a statutory defence is necessary to protect victims form secondary victimisation as a result of inappropriate prosecution. However, once Parliament legislates by list (as in Schedule 3 to the Bill) what should be a simple provision becomes unnecessarily complex. In my view, Schedule 3 is unnecessary given the terms of Cl 39(1). By way of example criminal damage will be committed by victims of modern slavery who break out of whatever physically binds them to their servitude. There may be cases where the nature of their plight causes them to disregard a risk that fatal injury might be caused to their captor. Why is it wrong to deny the limited defence to such a victim and make them rely instead on the more demanding defence of self-defence. It speaks of legislation by an accumulation of a list of all potentially serious offences without any thought to the reality of how victims might behave. Similarly why is a victim deprived of a defence to an offence contrary to s.25 of the Immigration Act when that offence may result from helping a fellow victim escape? The case of R v O involved such an act (though the person who provided her with false documents was never caught).

15. The limitation on the defence as drafted will require the CPS to exercise discretion about whether to prosecute in cases in which a statutory defence is excluded by Schedule 2. Though well-intentioned as the drafters of the CPS Guidance are, the problems experienced by the existence and sometimes erroneous exercise of discretion by individual prosecutors is the reason why a statutory defence is necessary. It is not fair on prosecutors and certainly not on victims to leave to prosecutorial discretion what should be regulated by simple statutory provisions. Cl 39(1) is clear and simple in its form - though some may suggest alternative wording.

July 2014

Prepared 22nd July 2014