Draft Modern Slavery Bill - Draft Modern Slavery Bill Joint Committee Contents


1  Offences

9. Modern slavery is a heinous crime. Those who commit it deserve severe punishment. Prosecuting is recognised nationally and internationally as a core activity in the ongoing fight to eradicate modern day slavery. To ensure effective detection, investigation, and prosecution the statutory framework and definitions chosen for modern slavery offences must be clear, simple and easy to use.

The existing statute and draft Bill—problems identified

10. The draft Bill was heavily criticised by our witnesses, with many describing it as merely a 'cut and paste' of the existing offences,[8] with little thought beyond consolidation. In particular, the draft Bill does not give adequate consideration to slavery and trafficking offences committed against children, which many consider to be particularly egregious; [9] nor, according to those who prosecute slave masters and gave evidence to us, will it make successful prosecutions more likely.[10]

11. Our aim in Part 1 of the Committee's Bill is to produce an easily understood and effective tool to increase the proportion of successful prosecutions. Clauses 1 to 6 of the Committee's Bill meet this aim by simplifying the language of the offences, making appropriate reference to international conventions, meeting potential future forms of modern slavery, and, most importantly, removing existing loopholes and gaps in coverage.

12. In coming to our conclusions on offences and suggesting an alternative approach we have borne in mind the request from the Minister for Modern Slavery and Organised Crime, Karen Bradley MP, that we should provide examples of acts of modern slavery that would not be caught by the offences proposed in the draft Bill.[11] Our evidence has provided plenty to choose from.

GAPS IN COVERAGE—CHILDREN

13. The draft Bill makes no provision for an offence committed without an element of force, coercion, threat, deception or other means of control (referred to here as "consent elements"). Such consent elements are irrelevant in cases involving the exploitation or trafficking of children, because children cannot consent to their own exploitation.

14. Clause 1 of the draft Bill (Slavery, servitude and forced or compulsory labour) copies the wording of the existing offence in section 71 of the Coroners and Justice Act 2009. The weakness of the existing offence as a prosecutorial tool in cases of child exploitation is illustrated by the CPS's guidance, which focuses upon indicators of forced labour. As we were told, it is very difficult in some circumstances to prove that a child has been forced, particularly where they are part of a family, or where, for cultural reasons, they accept their exploitation because they have been taught to accept what an adult member of the community says to them.[12] The exploitative behaviour may have become "normalised to them so that they see it as perfectly acceptable and reasonable when, clearly and frankly, it is not".[13]

15. The copying of the section 71 offence into the draft Bill maintains the existing weaknesses in relation to child victims. Examples of offences which would not be caught by the draft Bill because of this include domestic servitude cases where the child is "working essentially full time as a household drudge",[14] but crucially their labour is not always forced or compulsory for the purpose of section 71, or is not seen to be so, because they are, for example, attending school. In addition, these children are often living in a household other than that of their parents or guardian or in which their parents or guardian has only a minor role.[15]

16. Clauses 2 and 3 of the draft Bill are modelled on the existing offence of "Trafficking people for exploitation" which is set out in section 4 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004. The draft Bill splits the existing section 4 into two parts—first, in clause 2, an offence of trafficking with a view to the victim being exploited, and second, in clause 3, a definition of exploitation, although the draft Bill stops short of making exploitation a standalone offence. Again, the replication of the existing section in clauses 2 and 3 of the draft Bill retains a number of gaps. The gaps are created by the need to prove both the first element of trafficking (movement of the child) and as a second element, that the trafficking is "with a view to [the] V[ictim] being exploited". For example:

a)  In cases where the child is exploited, but there is no movement of the child, the provisions of the draft Bill would not enable a prosecution. The prosecution would fail because the first element of the offence in clause 2 of the draft Bill would not be satisfied as it requires movement. Both elements of clause 2 need to be satisfied. In addition, exploitation alone will not fall within clause 3, as that clause is not a standalone offence. The sorts of behaviour that we consider to be criminal, but that could not be prosecuted, include: begging, using a child to obtain fraudulently social security benefits, and putting a child on the streets to steal.[16]

b)  Alternatively, there may be movement but no exploitation. In this type of case, the movement falls within the first element of clause 2 of the draft Bill, but without exploitation, the second element of clause 2(1) "with a view to V being exploited", cannot be satisfied.[17] Examples of this type of criminal behaviour are: illegal adoption, and 'miracle babies'.[18]

c)  The need to prove both elements of clause 2 of the draft Bill to satisfy the offence means that in cases where there are two or more defendants, one who has trafficked the child and a second defendant who has exploited the child, the requirements of clause 2 of the draft Bill cannot be satisfied.[19] The same problem applies in relation to offences committed against adults by two or more defendants.

GAPS IN COVERAGE—ADULTS AND CHILDREN

17. Copying section 4 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 ("Trafficking people for exploitation") into clause 2 of the draft Bill not only preserves the existing problems in relation to children, but also a broader problem caused by the words "with a view to V being exploited". Clause 2(3) of the draft Bill requires the prosecution to prove that the defendant trafficked the victim because they (a) intended to exploit, or (b) believed that another person was likely to exploit the victim. We were told that this prevents prosecutions where the defendant trafficks (i.e. moves) the victim, but does not care how the victim will be treated by the person to whom they are delivered—that defendant doesn't intend or believe anything about the future treatment of the victim, and therefore their behaviour cannot satisfy clause 2 of the draft Bill.[20] One of the examples we were given of an offence which would not be criminalised by the provisions of the draft Bill is sham marriages:

    This happened in the last trial I had, where the defence tried to argue that the intention was not formed and it just happened later; that it was all agreed to—it was a sham marriage, and she wanted to come over for a sham marriage. They said it was not exploitation because her life was being made better, and it was only once she got here that things went terribly wrong, so therefore the defendant should not be convicted.[21]

18. We were told that some criminal behaviour would fall between clauses 1 and 2 of the draft Bill and that this could cause problems for judges in summing up.[22] There is a further, related gap in coverage concerning family groups of exploiters, where each member of a family exploits the victim but to a different degree or in different ways.[23]

    In a lot of these cases, there are family groups that bring in individuals, even from their own community. The last one ... was a Roma Gypsy Slovakian group that brought in another Roma Gypsy woman who was homeless and very much on hard times. She was very ill-educated. There were members of the family who undoubtedly must have known about it, and undoubtedly exerted some control over the victim, but it was quite hard to get them, because we had very little evidence about what they had actually done. In some instances, it has come down to harbouring, exerting an element of control over or receiving.[24]

Neither of the offences in clause 1 or 2 of the draft Bill will cover general exploitative behaviour, such as receipt or harbouring of a victim. Not only is this a weakness in the draft Bill, it is also inconsistent with the United Kingdom's international obligations.[25]

19. We were also concerned to receive evidence from the police illustrating cases where commonsense would suggest that the defendants should be prosecuted for slavery or trafficking offences, but where other core offences such as rape, or fraud were charged.[26] Detective Inspector Keith Roberts told us about a case involving Lithuanian chicken catchers. Twenty-nine males were put through a victim debriefing centre, and seventeen gave written evidence and statements. They told the police that they had been subjected to:

    beatings; theft of their wages; living with anything up to 12 people in a two-bedroom house; bed bug-ridden mattresses; dogs being set on workers; being held within the back of a transit van for up to five to six days at a time without any ablutions—no washing or toilet facilities; being driven from job to job; and being paid only for the time that they were working.[27]

The CPS decided that this "did not amount to forced labour within the legislation as it stood." We asked the CPS to provide further information about this case and, having received it, we make no comment on the decision not to bring forced labour prosecutions.[28] But the general point stands, that the current offences as drafted are not being used largely because they are difficult to use to prosecute slave masters and traffickers. Simply cutting and pasting them into the draft Bill offers no remedy to the defects.

OTHER PROBLEMS

20. We also considered issues arising from the drafting of the clauses of the draft Bill, which did not create gaps in the coverage of the offences but did create practical and legal problems. The evidence that we received from His Honour Judge Edmunds QC was particularly helpful in this respect, as it questions whether clause 2 of the draft Bill creates one offence or many. This ambiguity gives rise to concerns about potential "duplicity in even the most straightforward case" and, in relation to conspiracy to commit this offence, arguments about how detailed the agreement to commit the offence has to be. Judge Edmunds added that:

    experience shows that when a person is trafficked they are commonly exploited in a number of ways; whatever advantages the trafficker. Thus a person who is in forced labour may also be required to work in controlled prostitution. This is a very common scenario.[29]

21. We asked whether it was helpful for the draft Bill to specify that prosecutors must construe the terms slavery, servitude and forced or compulsory labour in clause 1 of the draft Bill in accordance with Article 4 of the European Convention on Human Rights. The evidence we received did not support retaining a reference to Article 4.[30] For example, the Rt Hon. the Lord Judge told us:

    My worry about referring to article 4 of the convention, Palermo or anybody else is that these things move, too. The European Court of Human Rights will be construing it on a case from somewhere, so suddenly we will all have to say, "Is what our Act of Parliament meant article 4 as it stood at the time when it was passed, or do we mean article 4 as it has been developed down the years?" I think domestic legislation should say, "We mean this. It is defined as that."[31]

22. Lord Judge also questioned the drafting of clause 1(1)(a) of the draft Bill which makes it an offence to hold somebody "in slavery or servitude" where the alleged criminal "knows or ought to know." In contrast, under clause 2(3) of the draft Bill, the jury must determine whether the defendant "believes" someone is likely to be exploited. Lord Judge argued for consistency:

    Please can we have the same language? When you come to look at the legislative structure, could you please consider whether knowing or believing is sufficient for this purpose? If you believe someone is being trafficked or held in compulsory labour, that is a very serious matter. ... Some lawyers will be saying, "There must be a different meaning because the words are different." As a judge trying to construe this, you might be forced to the absurd conclusion that there is supposed to be a different meaning. That is not to anybody's advantage.[32]

23. Early in our inquiry we questioned why clause 3(6) of the draft Bill referred to a person who is "young". This term had been copied from the existing Act,[33] but our witnesses did not think the term was clear or helpful. Nor do we.[34]

24. The Helen Bamber Foundation also recommended amendments to clause 3(6), which it criticised as an ineffective definition of victims' vulnerability:

    'vulnerability' is often complex and multi-faceted rather than definable by one single element. It is also cumulative, and increases as victims are sold, exploited and trafficked on. Crucial factors to trafficking vulnerability, for example socio-economic deprivation, adversity, change of familial or political circumstances, are overlooked in the Modern Slavery Bill.

The Foundation considers that the provision of a restrictive list of only some of the many aspects of vulnerability may hinder the prosecution of traffickers. It highlights that clause 3(6) currently requires the prosecution to:

a)  prove that the victim was "chosen" because of a specific vulnerability, yet the "person who trafficks another person may well have no interest in their specific vulnerability and may be following the orders or advice of others";

b)   provide retrospective diagnoses of mental or physical illness;

c)  prove that the victim is "disabled" which the Foundation describes as "itself complex, and context dependent"; and

d)  in addition, prove for clause 3(6)(b), that "a person without the illness, disability, youth or family relationship would be likely to refuse to be used for that purpose". The Foundation describes this as a high threshold, which "assumes that traffickers are transparent in describing the true purpose for which victims will be used".[35]

25. As a final point of drafting, we found a general lack of clarity throughout the other clauses of the draft Bill on how those clauses relate to Part 1 offences. For example, clauses 7 and 8 of the draft Bill on forfeiture and detention of land vehicles, ships or aircraft apply only to the human trafficking offence in clause 2 of the draft Bill. More confusingly, the duty in clause 35 of the draft Bill to notify the National Crime Agency (NCA) only applies to the clause 2 human trafficking offence, while the Government's White Paper which accompanied the draft Bill (the White Paper) refers to "all suspected victims of modern slavery".[36]

Conclusions on Part 1 of the draft Bill

26. At the heart of our deliberations was the question of how to differentiate between offences against children and those against adults to allow for alternative counts or an aggravated offence. In particular, we bore in mind the advice we had received from a large number of witnesses on the practical difficulty of requiring the prosecution to prove the age of a child.[37] We were told that this was a serious practical problem,[38] because "Often the people who are trafficked are victims for a reason; because they come from a community or a background which does not necessarily have birth certificates."[39]

27. It was clear from the evidence we received that merely suggesting amendments to clauses 1 to 3 of the draft Bill was insufficient to meet our aim, or that of the Home Office, to consolidate and simplify existing offences to make enforcement administratively simpler. The clauses as currently drafted maintain existing gaps in coverage of behaviour that we consider to be criminal and, in addition, we have identified errors in drafting which could cause practical and legal problems. On this latter point we draw the attention of the Home Office and parliamentary counsel to the evidence provided by the Rt Hon. the Lord Judge and HHJ Edmunds QC for their further consideration.

28. We conclude that the current definitions within Part 1 of the draft Bill are not as broad as the Government believes them to be, nor as broad as international definitions such as those in the Palermo Protocol, and as a result fail to capture current or potential future forms of modern slavery. As HHJ Edmunds QC told us, "it is important that the new offences remain four-square within the EU obligations so as to ensure that when evidence is sought from other EU jurisdictions there is no doubt that the "double criminality"[40] requirements are met".[41] We believe that maintaining a link to international definitions is important to prevent the "double criminality" requirement being used as an escape route from prosecution by slave masters and traffickers.

29. We also find the language of the international legislation and conventions much easier to understand than Part 1 of the draft Bill. The Home Office must recognise that Part 1 needs to be sufficiently broad, clear, and simple, to allow all parts of the law enforcement process to understand and apply it. It is far too confusing as it stands.

Part 1 of our Committee Bill

30. We considered the use of aggravated offences rather than offences that work within an indictment as alternative counts, but were concerned that this would remove from juries questions of fact which significantly affect the culpability of the defendant and, as a result, affect the level of the eventual sentence. The aggravated offences approach would also require basic offences to be drafted without reference to consent elements, which could be inappropriate in relation to adults, particularly given the long arc of behaviours that could be described as forced labour.[42]

31. We have included a model indictment in Annex A to show how the offences we have drafted for our Committee Bill operate to create the following hierarchy:

a)  Slavery of children and adults

b)  Child exploitation offences

c)  Exploitation offence: general

d)  Child trafficking

e)  Trafficking

32. The first offence in the hierarchy is slavery of children and adults, because it is so serious an offence that consent can never be an issue. It would be incompatible with the designation of slavery as an international crime that a person could in law consent to deprivation of all their rights, including the right to be released from slavery. We have included a separate sub-clause to clarify that the sale of a child or illegal adoptions can be charged as slavery[43] because this is an existing gap in coverage and, as a basic principle, the sale and purchase of a child for any remuneration (other than through a formal lawful adoption process) is an act of appropriation inconsistent with the right of any human. It is too serious to be charged only as child exploitation or child trafficking.

33. An offence of child exploitation (which includes labour exploitation or the use of a child to commit a criminal offence or for begging) is next in the hierarchy. Including a specific child exploitation offence makes clear:

a)  that this is more serious than exploitation of an adult; and

b)  that consent elements can never be in issue.

Exploitation of a child involves using the child for the purposes of the exploiter in a manner that is inconsistent with the interests of the child. A focus on the purpose of the exploitation, rather than on the intent of the exploiter, would exclude from the scope of the offence acts such as requiring a child to help occasionally with the family business for periods which did not affect schoolwork or recreation. What would be made clear in our offence is the fundamental principle that child exploitation is not limited to physical force or threats.

34. The basic offence of exploitation would apply to cases where the victim is an adult. In addition, it could be used as an alternative count for those cases where the prosecution cannot prove to the requisite criminal standard that the victim is a child. We have not included a separate offence in relation to vulnerable adults because the evidence we received made clear that victims usually become victims precisely because they are vulnerable in one way or another.[44]

35. Child trafficking for the purposes of exploitation of any kind is the fourth offence. It encompasses trafficking by all the acts—the recruitment, transportation, transfer, harbouring or receipt of persons—set out in the Palermo Protocol[45] and other international legislation and conventions and so avoids the unnecessary restrictions inherent in the draft Bill. Our drafting of this offence makes clear that consent or the use of any coercive means are irrelevant where the victim is a child. Again, a focus on purpose, not intent, distinguishes between what is criminal behaviour and, for instance, a parent taking a child on holiday.

36. The basic offence of trafficking would apply in relation to adults. In addition, it could be included as an alternative offence in those cases where the age of a victim alleged to be a child cannot be established to the jury's (or magistrates') satisfaction.

37. In addition to the hierarchy of offences, a final offence of facilitating the commission of a modern slavery offence captures those who know or ought to know that a person or child is or is to be held in slavery or exploited. It also ensures compliance with Article 3 of the EU Directive on Preventing and Combating Trafficking in Human Beings and Protecting its Victims (the EU Directive),[46] which requires Member States to ensure that inciting, aiding and abetting or attempting to commit an offence is punishable.

38. We conclude that a series of offences that allow for indictments containing alternative counts in decreasing levels of severity of criminal behaviours, drafted with reference to agreed international definitions, would best meet the aims which we and the Government share. We recommend six offences: slavery of children and adults, child exploitation, exploitation, child trafficking, trafficking, and facilitating the commission of an offence of modern slavery.

39. Our proposed clauses would ensure that any indictment followed the pattern set out in the Act. This would create a cascade of overlapping offences, enabling the prosecution to invite the jury, and the judge to direct the jury, to approach the case by considering the more serious count first and only consider a lesser alternative count if not satisfied of the more serious one. On our model, the jury would acquit only where it concluded that the defendant is not guilty of any modern slavery offence, and not on the basis of some technicality about the nature or type of exploitation. We think that this approach also helps to identify the level of offending and enables the judge to impose a sentence which reflects the jury's conclusion as to the gravity of the offending.

Implied repeal

40. We do not consider that our proposed offences impliedly repeal existing laws against slavery, but recommend that the Home Office give due consideration to the issue of implied repeal in responding to our Report and in the drafting of any Modern Slavery Bill presented to Parliament.


8   Q 2 (Chloe Setter) and written evidence from the Anti-Trafficking Monitoring Group Back

9   Q 494 (Ilona Pinter); Q 495 (Alison Worsley) Back

10   Q 157 (Riel Karmy-Jones) Back

11   Q 1313 (Karen Bradley MP) Back

12   Q 1091 (Chief Inspector Carswell); Q 1092 (Nadine Finch) Back

13   Q 1091 (Chief Inspector Carswell) Back

14   Q 496 (Mike Dottridge) Back

15   Q 496 (Mike Dottridge) Back

16   Q 1092 (Chief Inspector Carswell) Back

17   Exploited being defined in clause 3 of the draft Bill. Back

18   Q 496 (Ilona Pinter); QQ 554-555 (Detective Inspector Hyland); Q 1092 (Nadine Finch) Back

19   Q 1092 (Nadine Finch) Back

20   QQ 152-153 (Riel Karmy-Jones) Back

21   Q 152 (Riel Karmy-Jones) Back

22   QQ 151-152 (Riel Karmy-Jones) Back

23   Q 155 (Riel Karmy-Jones) Back

24   Q 155 (Riel Karmy-Jones) Back

25   For example, Article 3, Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime (hereafter "Palermo Protocol"). Back

26   QQ 558-559 (Detective Inspector Roberts); Q 560 (Chief Inspector Winters) Back

27   Q 558 (Detective Inspector Roberts) Back

28   Supplementary written evidence from the Crown Prosecution Service Back

29   Written evidence from HHJ Edmunds QC, The Crown Court at Isleworth - This is a personal response from HHJ Edmunds QC, within the constraints he explains at paragraphs 1 - 3. However, Lord Thomas, the Lord Chief Justice of England and Wales, has read and agrees with his observations on the questions asked by the Joint Committee. Back

30   QQ 156-158 (Riel Karmy-Jones) Back

31   Q 644 (Lord Judge) Back

32   Q 644 (Lord Judge) Back

33   Section 4(4)(d) of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 Back

34   Q164 (Riel Karmy-Jones) Back

35   Written evidence from the Helen Bamber Foundation Back

36   Cm 8770, p8 Back

37   For example, Q 162 (Riel Karmy-Jones) Back

38   Written evidence from HHJ Edmunds QC Back

39   Q 162 (Riel Karmy-Jones) Back

40   That is the requirement that the offence being investigated by the requesting country is also an offence in the receiving country. Back

41   Written evidence from HHJ Edmunds QC Back

42   Q 179 (Professor Allain) Back

43   Written evidence from Professor Jean Allain Back

44   Q 656 (Caroline Haughey) and written evidence from the Helen Bamber Foundation Back

45   Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime (hereafter "Palermo Protocol"). Back

46   Directive 2011/36/EU of the European Parliament and of the Council of 5 April 2011 on preventing and combating trafficking in human beings and protecting its victims, and replacing Council Framework Decision 2002/629/JHA (hereafter "EU Directive"). Back


 
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Prepared 8 April 2014