Modern Slavery Bill

Written evidence submitted by Nadine Finch (MS 03)

I am happy to answer questions on a number of clauses in the Modern Slavery Bill and its applications to child victims of human trafficking, slavery and exploitation.

In particular, I wish to argue that the Bill should include a specific offence of child exploitation. At present, the concept of exploitation is defined in Clause 3 of the Bill but only with reference to Clause 2, which addresses the offence of human trafficking. This is likely to perpetuate the current situation in which those who exploit children are not prosecuted in any meaningful way if it is not possible to prove that they had been trafficked into the United Kingdom. Such proof is often difficult to obtain because a child may well have been trafficked into the country by one individual or gang but subsequently criminally exploited by others.

It is true that Clause 1 of the Bill introduces an offence of slavery, servitude or forced or compulsory labour. However, many children are exploited in situations which cannot easily be defined as being held in slavery or servitude or required to perform forced labour. One example, is when a child is exploited for the purposes of benefit fraud, which is widespread in some communities. Another is the fact that children are being brought into the United Kingdom from "baby farms" abroad for the purposes of unlawful adoption. These children will not be held in slavery or situations of forced labour but they will be deprived of the right to be brought up by their own families and in their own community. Babies are also likely to be deprived of their names, identity and nationality. Exploitation for criminal purposes may also fall outside the definition contained in Clause 1. All of these situations are clear breaches of the UN Convention on the Rights of the Child.

It has been said that an offence of child exploitation is unworkable. One argument is that it will give rise to unworkable disputes about the victim’s age. However, the topic of age assessment in the context of a criminal trial was fully explored by the Court of Appeal (Criminal Division) in the case of L & Others [2013] EWCA Crim 991. It found that the Court already had case law, which required it to adjourn a case if there was not sufficient evidence before it to reach a decision on the question of the age of a defendant. It was accepted that the Court did not have the power to direct the provision of evidence about age from the parties but that there was an expectation that such evidence would be provided from children’s services, police, CPS or other sources if this was necessary to resolve the dispute. There is no reason that the same procedure should not be used when there is a dispute about the age of a victim.

Another argument is that it may lead to parents being prosecuted for requiring their own children to undertake reasonable tasks around the home. This would not happen if "child exploitation" was defined by means of an open list of situations which would reasonably be recognised as exploitation. This could include being exploited for purposes of benefit fraud, prostitution, pornography, illegal child marriage, street crime and begging and domestic servitude. In the alternative, it would be defined by reference to situations which would give rise to a breach of the UN Convention on the Rights of the Child.

In the case of L & Others the Court of Appeal (Criminal Division) also found that it would be an abuse of process to prosecute a child victim of trafficking for actions which were consequent on or integral to the exploitation he or she was suffering. This test was formulated in response to the obligation arising from Article 8 of EU Directive on preventing and combating trafficking in human beings and protecting its victims to take necessary measures to ensure that national authorities are entitled not to prosecute or impose penalties on victims of trafficking in human beings.

A non-prosecution provision is particularly important in the case of children as their arrests for a crime committed consequent on their exploitation may, at best, lead to them being held in a young offenders institute and appearing at a number of court appearances before any acquittal. At worst it may lead, as it is continuing to do despite L & Others, to a long sentence for offences arising from their exploitation. Such treatment is likely to further traumatise them and give rise to many other breaches of the UN Convention on the Rights of the Child.

However, when drafting such a provision, it will be necessary to avoid the lacuna in Article 8 of the EU Directive. The Article refers to non-punishment for involvement in criminal activities which individuals have been "compelled" to commit. This is not consistent with the recognition in Article 2.5 of the EU Directive, which states that the trafficking of a child amounts to a crime even if it is not possible to prove the means used to traffic him or her. These means include the threat or use of force or other forms of coercion and, therefore, a requirement to show compulsion in Article 8 is inconsistent with the definition adopted in Article 2.

This same argument applies to the use of the term "compelled" in Clause 39 of the Modern Slavery Bill.

July 2014

Prepared 22nd July 2014