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

2  Civil Prevention Orders

41. The Home Office's evidence stated that the "nature of modern slavery is so complex that it requires bespoke orders to target effectively the behaviour of individuals and organised criminals operating in this space".[47] The Orders in Part 2 of the draft Bill, Slavery and Trafficking Prevention Orders (STPOs) and Slavery and Trafficking Risk Orders (STROs) are, according to the Home Office, designed to allow courts "to tailor the orders to address the risks posed by the individual in order to protect the community".[48] As our witnesses pointed out, the Orders are a copy of the orders for sexual harm contained in Part 9 of the Anti-social Behaviour, Crime and Policing (ABCP) Act.[49] We note that Part 9 of the ABCP Act was introduced by a late amendment at Report stage in the House of Commons on 14 October 2013. The lateness of these amendments meant that their provisions were not subject to scrutiny by the Joint Committee on Human Rights, who criticised the Government for preventing scrutiny of "amendments which clearly have human rights implications."[50]

42. The Minister for Modern Slavery and Organised Crime, Karen Bradley MP, suggested that the Orders in Part 2 of the draft Bill were an example of a measures that would effectively prevent modern slavery. We agree with her in principle, but disagree that this is what the Orders do in practice.

43. Prevention is a core element of the fight to eradicate modern slavery, and Article 4 of the European Convention on Human Rights places on states specific preventive obligations; however, such obligations only arise where the State knew or ought to have known of a real and immediate risk to a specified individual. In contrast, the Orders in Part 2 of the draft Bill would apply beyond cases of known, real and immediate risk, to general risks, and to unidentifiable people. In this respect, the Orders go beyond the requirements of Article 4. In addition, when executing the positive obligations under Article 4, the UK must do so in a way that takes into account the rights of defendants. We received evidence as to whether the draft Bill struck that balance correctly.[51]

44. We noted that the modern slavery offences are already covered by existing civil prevention orders (Serious Crime Prevention Orders, Sexual Offences Prevention Orders, Foreign Travel Orders and Risk of Sexual Harm Orders),[52] and questioned our witnesses on their use in practice.

Prevention Orders on sentencing

45. Clause 11 of the draft Bill provides for Prevention Orders on sentencing. Our evidence did not raise any particular concerns regarding these Orders in principle. Liberty said that it had:

    no problem in principle with imposing restrictions on liberty in the community as part of a sentence, handed down by a judge at the time when other sanctions are handed down, within the criminal justice system.[53]

46. There are, however, three potential problems in relation to clause 11 of the draft Bill. First, a lack of specificity about the Order and the prohibitions that can be included in it. The evidence we received makes a clear contrast with terrorism prevention and investigation measures, which provide a list of specified things that can be imposed on the individual. We discuss the problems caused by a lack of specificity below in relation to the other Orders.

47. Second, Liberty also raised concerns in relation to sub-clause 11(1)(b) and (c),[54] questioning whether there should be special provision for review of Orders:

    where there is potentially some element of a very serious and debilitating mental health condition that has led to the action taking place. In those contexts, it is very important to be aware of the potentially transient nature of mental health conditions, when treated properly, and the fact that an individual may no longer, in effect and practically, pose a risk after a given period of time.[55]

48. Third, unlike other civil prevention orders, there is no clear provision to delay commencement of an Order until the defendant has been released from prison.[56]

Prevention Orders on application and Risk Orders

49. Our evidence raised a number of concerns in relation to Prevention Orders on application and, in particular, Risk Orders. The first concerns are practical: the Magistrates' Association was very clear that despite the choice of the magistrates' court as the venue for application for these Orders, it did not anticipate magistrates seeing many of them, and felt that the types of criminal behaviour that constitute modern slavery offences were likely to be "above our pay grade".[57]

50. The Magistrates' Association also highlighted a key concern which was expressed by a number of our witnesses, namely that "if there is not any evidence to lead to a prosecution, is there any evidence to lead to an STRO?"[58] It is unclear to us what types of slavery-related behaviour would fall within the scope of a Part 2 Order, but would not be a criminal offence and therefore more appropriately prosecuted as a criminal offence.

51. A number of witnesses suggested that there was a danger that the police could choose to apply for a Prevention or Risk Order (including Interim Orders) instead of investigating with a view to prosecution.[59] However, if the police did secure an Order, and wished to investigate, we were told that the imposition on a defendant of restrictions sufficient to make the Order effective would serve to prevent the defendant engaging in the kinds of activities that would allow the police to gather further evidence. The result then would be insufficient evidence to prosecute, leaving a case to become cold and the defendant on the streets.[60]

52. Our evidence raised legal concerns as well, primarily over the lack of legal certainty, which is a well-established common law legal principle:

    The acceptance of the rule of law as a constitutional principle requires that a citizen, before committing himself to any course of action, should be able to know in advance what are the legal consequences that will flow from it. Where those consequences are regulated by a statute the source of that knowledge is what the statute says.[61]

As Professor Lazarus said, the effect of this principle is that any rules interfering with these Convention rights must be sufficiently certain and accessible to allow people to understand what is expected of them and when an interference with their daily lives will be justified. Given the potential for restrictions of everyday behaviours or rights to result from the imposition of the Prevention and Risk Orders, there is a high threshold requirement of legal certainty: first over the threshold requirements for the imposition of an Order; and second, clarity as to the contents of the Order and the effects of such an Order being imposed upon an individual. But this is also a practical issue for magistrates, who will be required to assess whether an Order is necessary but with no guidance on the risk factors they should consider to make the imposition of an Order proportionate, or on the possible restrictions they could impose which would be proportionate to the actual risk presented by the defendant in front of them. This should be rectified.

53. The Home Office's response to our evidence, and in particular, that of Professor Lazarus, is that the requirement that the Order be "necessary", ensures that any interference with a defendant's rights will be in accordance with the law, and in addition the Court is itself subject to a duty under section 6 of the Human Rights Act 1998 to ensure that it acts compatibly with the European Convention on Human Rights. A barrister, Maya Sikand, from whom the Committee commissioned research, disagreed with this analysis.[62] She found that the Home Office was incorrect to rely upon Courts complying with section 6 and that the Home Office had mistakenly combined two issues and missed the point about what legal certainty requires, namely that if common law or Convention rights are interfered with, the law that interferes with them must be sufficiently certain and accessible on its face. We agree that the Home Office cannot simply rely upon the Court's duties under section 6 of the Human Rights Act to rectify a lack of legal certainty on the face of the Bill.

54. Witnesses have drawn our attention to the following major deficiencies in these Orders:

a)  that the Orders are very broad and can be imposed without a threat to a specified individual. This allows for a broader set of prohibitions to be contained in any Order than would have been required where a specified individual was at risk;[63]

b)  the Interim Orders include no necessity threshold and can be imposed if the court considers it just to do so;[64]

c)  in relation to equivalent offences under the law of a country outside the UK, the reference to "cautioned" could be very broad indeed and refer to different legal systems with differing levels of protection for those who are accused of committing crimes. A reference to a "formal" caution could mitigate this;[65]

d)  that not including a temporal link within the clauses means that there is nothing to prevent the imposition of an Order based upon a previous conviction, caution, or mere behaviour which happened a long time ago;

e)  the absence of a minimum age at which the Orders are imposed, meaning they could be imposed on children.

55. Some witnesses found merit in the Orders in the draft Bill. We note that they could be beneficial in relation to exploiters who exploit more than one adult or child, including where the exploiter moves between victims. Members of the police who gave evidence to us supported the Orders, although we question whether some of the examples of potential use that they presented to us would fall within the clauses, or indeed work on a practical level, given that the Home Office has confirmed that a summons must be served on the defendant a reasonable time before the hearing.[66] We do see merit, however, in the use of Orders to prevent criminal activity by those on the periphery of gangs, in order to allow the police time to investigate the core offenders and then return to those on the periphery.

Conclusions and recommendations on Orders

56. We applaud the Home Secretary's wish to take the battle to the slave masters and traffickers. The Orders in the draft Bill are a copy of the orders for sexual harm currently contained in Part 9 of the Anti-social Behaviour, Crime and Policing Act 2014. We support the need for and likely use of the Slavery and Trafficking Prevention Order on sentencing (clause 11 of the draft Bill), but request that the Home Office amends the clause to meet the requirements of legal certainty and to specify the type of restrictions that can be imposed by the Order; and considers creating a further means of review in relation to Orders imposed under clause 11(1)(b) and (c) of the draft Bill. Clearer provision for the Orders to start to run upon release from prison is needed.

57. We recommend the following changes be made to the Slavery and Trafficking Prevention Order on application in the draft Bill:

a)  Clause 12 be amended so that the test meets the requirements of the principle of legal certainty;

b)  Clause 13(3)(d) be amended to read "formal" caution;

c)  Specify the type of restrictions that can be imposed by the Order;

d)  Specify the time limit between the commission of the offence and the application for the Order - we suggest three years;

e)  Amend the Interim Order to read: The Court may, impose such an order where it is necessary for the purpose of protecting persons generally, or particular persons, from immediate physical or psychological harm caused by the defendant committing such an offence;

f)  Apply a minimum age for imposition of the Orders—we suggest 16 years of age.

58. The White Paper states that Risk Orders can be imposed "only where a court is satisfied that the individual presents a sufficiently serious risk to others". However, the test for imposition of a Risk Order under clause 21 of the draft Bill is much lower, namely that "The court ... is satisfied that the defendant has acted in a way which makes it necessary to make the order". We have heard convincing evidence that the Risk Orders have not been sufficiently thought through. We recommend that the clauses 21 to 28 of the draft Bill be removed.

47   Written evidence from the Home Office on Part 2 of the draft Bill Back

48   Cm 8770 p7 Back

49   Q 435 (Professor Zedner) and written evidence from the Anti-Trafficking Monitoring Group, para 4. Back

50   Fourth Report from the Joint Committee on Human Rights, Session 2013-14, Legislative Scrutiny: Anti-social Behaviour, Crime and Policing Bill, HL Paper No. 56 and HC 713, para 9. Back

51   Written evidence from Professor Liora Lazarus Back

52   Written evidence from Maya Sikand Back

53   Q 456 (Rachel Robinson) Back

54   Order can be imposed where there is (b) a finding that the defendant is no guilty of a slavery or human trafficking offence by reason of insanity, or (c) a finding that the defendant is under a disability and has done the act charged against the defendant in respect of a slavery or human trafficking offence. Back

55   Q 459 (Rachel Robinson) Back

56   For example, under section 1C(5) Crime and Disorder Act 1998 the starting point of an ASBO can be suspended until an offender has been released from a custodial sentence. Back

57   Q 485 (Richard Monkhouse) Back

58   Q 477 (Richard Monkhouse) Back

59   Q 456 (Rachel Robinson) Back

60   QQ 445-448 (Professor Zedner) Back

61   Black-Clawson International Ltd v Papierwerke Waldhof-Aschaffenburg AG [1975] AC 591, HL, at 638 per Lord Diplock.  Back

62   Written evidence from Maya Sikand Back

63   Written evidence from Professor Liora Lazarus Back

64   Written evidence from Professor Liora Lazarus Back

65   Q 437 (Professor Lazarus) Back

66   QQ 572-578 (Detective Inspector Hyland, Chief Inspector Winters and Detective Inspector Roberts) and written evidence from the Home Office, Prevention Orders Back

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Prepared 8 April 2014