Trial - Trafficking

R v K: Court of Appeal, Criminal Division (Lord Justice Toulson, Wyn Williams, Mr Justice Lindblom): 8 July 2011

Section 4 of the Asylum and Immigration (Treatment of Claimants) Act 2004, so far as material, provides: '(1) A person commits an offence if he arranges or facilitates the arrival in[or the entry into] the United Kingdom of an individual (the 'passenger') and (a) he intends to exploit the passenger in the United Kingdom or elsewhere, or (b) he believes that another person is likely to exploit the passenger in the United Kingdom or elsewhere.'

The instant appeal concerned the adequacy of the judge's directions to the jury on the elements of the offence of trafficking for exploitation. The defendant was convicted of trafficking the victim from an African country, to the United Kingdom, for exploitation, contrary to s 4 of the Asylum and Immigration (Treatment of Claimants) Act 2004 (the 2004 Act).

The prosecution case was that the defendant had arranged for the victim to travel to the UK from an African country, that once here, the defendant had contracted to employ her as a housekeeper, and that the victim had been exploited by being made to work excessive hours for little or no pay and that she had been subjected to ill-treatment by the defendant. The defendant appealed against conviction.

Issues arose as to the constituent elements of the offence under s 4 of the 2004 Act; and (ii) whether there was a need for a judge to give directions to the jury on the principal terms of art 4 of the European Convention on Human Rights. The appeal would be allowed

The offence under s 4 of the 2004 Act was an offence of intention. It was for the Prosecution to prove that a defendant had arranged or facilitated the victim’s entry into the UK intending when doing so to exploit him or her. In order to convict a defendant under s 4, the jury did not have to answer the question of whether, at some stage during the period covered by an indictment, the defendant had in fact exploited the victim.

Inevitable though it might be that the jury would look for evidence of actual exploitation. The core elements of art 4 of the Convention were slavery, servitude, and forced or compulsory labour. Those elements were integral to the offence provided for in s 4 of the 2004 Act and formed a hierarchy of denial of personal autonomy. It was clear from Clayton and Tomlinson’s ‘The Law of Human Rights’, 2nd edition, that, in descending order of gravity, slavery stood at the top of the hierarchy, servitude in the middle, and forced or compulsory labour at the bottom.

The essence of the concept of slavery was treating someone as belonging to oneself, by exercising some power over that person as one might over an animal or object. The essence of the concept of servitude was one person’s obligation to provide services to another, an obligation imposed by the use of coercion.

The essence of the concept of force or compulsory labour was work exacted under the menace of a penalty and performed against the will of the person concerned, a concept which brought to mind the idea of either physical or mental constraint, the essential character of the work of service involved being work or service for which the person has not offered himself voluntarily. Those concepts were not necessarily mutually exclusive.

A person could at the same time be subjected to slavery or servitude and to forced or compulsory labour. The common denominator was that the victim was subject to a degree of enforced control. Where 'forced or compulsory labour' was concerned, the menace of a penalty can be exerted in various ways. It could be direct, or indirect. Constraint could be mental or physical. It could be imposed by force of circumstances.

Where it was alleged that one person had been compulsorily employed by another, the level of pay he or she had received, if any, might have evidential importance. It might point to coercion, it might bear on an employee's ability to escape from was or her employer's control. On its own, however, a derisory level of wages was not tantamount to coercion. It was for the prosecution to make plain to the court which of those three concepts was relied upon (servitude, slavery or forced labour) and, assuming that that was done, it was for the judge in his summing-up to spell out to the jury in clear language what the relevant concept or concepts involved (see [24], [38]-[40], [42] of the judgment).

In the instant case, when read fairly as a whole, the judge's summing-up had not provided the jury with a proper definition of exploitation for the purposes of s 4 of the 2004 Act. In describing the ingredients of the offence he had not identified and explained the relevant core elements of art 4 and he had focussed too much on the economics of the relationship between the defendant and the victim, thus diluting the test the jury had to apply to one appropriate to an employment law context but not strong enough to establish guilt of the criminal offence with which the defendant was charged.

What the jury had had to concentrate on in the instant case was not the fact that the victim had been paid a 'mere pittance' or an exploitative wage, but whether when the defendant had arranged for her to come to the UK, she had intended to exploit her in such a way as would violate her rights under art 4 of the Convention. That was not a legal issue but a question of fact. It followed that the conviction was unsafe (see [44],[48] of the judgment).

The conviction would be quashed and a retrial ordered (see [2] of the judgment).

Siliadin v France [2005] 20 BHRC 654 considered; Rantsev v Cyprus and Russia (Application 25965/04) [2010] ECHR 25965/04 considered.

Per Curiam: To dismiss 'slavery' as being merely reminiscent of an era remote from contemporary life in the United Kingdom is wrong. In the modern world exploitation can and does take place, in many different forms. Perhaps the most obvious is that in which one human being is treated by another as an object under his or her control for a sexual purpose.

But 'slavery or servitude' and 'forced labour' are not confined to exploitation of that sort. One person may exploit another in many different ways. Sexual exploitation is one, domestic servitude is another (see [41] of the judgment).

ES (instructed by M, S & Co) for the defendant. CH (instructed by the Crown Prosecution Service) for the Crown.