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Modern Slavery Act 2015--new offences
14/05/2015
Crime analysis: How effective will the Modern Slavery Act 2015 (MSA 2015) be in tackling slavery and trafficking?
Riel Karmy-Jones QC and Peter Carter QC, both from Red Lion Chambers and specialists in different aspects of
human trafficking, discuss the new offences made by MSA 2015 and to what extent they will work in practice.
Original news
Modern Slavery Act 2015, LNB News 27/03/2015 122
The MSA 2015 increases the maximum jail sentence for the most serious offences in relation to slavery and human
trafficking from 14 years to life. The existing offences are consolidated with certain loopholes closed in relation to sea
vessels. Victims of slavery and trafficking will have new defences and remedies. Those convicted of such offences will
face the toughest asset confiscation regime.
Are the new offences drafted effectively?
Modern slavery and human trafficking are forms of serious organised crime, and a transnational problem. Up to now, the
legislation has been spread between:
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the Asylum and Immigration (Treatment of Claimants etc) Act 2004
the Sexual Offences Act 2003, as amended by the Protection of Freedoms Act 2012
the Coroners and Justice Act 2009
the Gangmasters (Licensing) Act 2004, and to an extent
the Immigration Act 1971
One of the objectives of MSA 2015 was to consolidate the legislation and provide a 'one stop shop' from which to draw the
relevant offences. MSA 2015, once it comes into force, should make the selection of the correct offence easier.
However, MSA 2015 has been criticised for drawing too heavily on other legislation, becoming a 'cut and paste' job, with
the consequential problems that flow from that. Arguably, legislation in countries such as Trinidad and Tobago and the
Czech Republic, which were specifically drafted to meet the requirements of this ever growing type of offending, are more
clearly set out, and easier to apply.
MSA 2015, s 1 sets out the slavery, servitude and compulsory labour offence and MSA 2015, s 2 the human trafficking
offence. One concern raised about the draft Bill was that the definition of exploitation in MSA 2015, s 3 was drafted so as
to apply only to the trafficking offence. However, the legislation has sought to deal with this potential loophole by
incorporating the exploitation principles into MSA 2015, s 1 as well.
Are there any new offences you would have liked to be included?
There was extensive debate whether we needed a standalone offence of exploitation, or an offence of child exploitation.
While it seems a little anomalous that MSA 2015 doesn't make 'exploitation' an offence in its own right, we recognise that
trying to confine it to criminal activity--as opposed to different areas of law such as family--would be difficult. Trying to do
so creates the risk that different judges and juries could reach inconsistent conclusions as to what conditions are
sufficiently serious to amount to criminal 'exploitation', and different precedents could be set.
Further, there is already a series of offences that deal with different factual scenarios that might amount to an 'exploitation'
offence, such as:
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offences under the Children and Young Persons Act 1933, including wilful neglect and cruelty
offences under the Offences Against the Person Act 1861 of assaults at differing levels, and
begging offences
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The decision not to include one is understandable but it may need further debate in future as modern slavery and
trafficking offences are constantly evolving.
There is also no 'supply chain' offence with extraterritorial effect, such as that under the Bribery Act 2010, s 12. So, where
a company knows that it is obtaining goods and services from suppliers overseas who use exploitative labour, this is not
an offence. Although there is a supply chain provision within MSA 2015, Pt 6, s 54, which has yet to be brought into force,
this is only a reporting condition, and not an offence in its own right. But it seems to us that this type of activity is worthy of
prosecution.
Do you think the prevention orders will work in practice?
We are both, to some extent, underwhelmed by the prevention orders. In our view the effect is likely to be different on
different offenders and different levels of offending--for example, the effect of a prevention order on someone involved in
large scale international crime will probably be negligible, as by definition such a defendant will have significant resources
to allow them to continue their activities. Similarly, those involved in the smaller scale may be itinerant by nature, and able
to slip away and continue their activities elsewhere.
However, prosecuting offences is only one part of the strategy. MSA 2015, s 23 relates to risk orders which may be
obtained by investigators where there is a reasonable risk that a defendant will commit a slavery or human trafficking
offence. It envisages there will be situations where such a power may be used as a prelude to prosecution or in a case
where prosecution may not be possible. Thus, if properly applied, a risk order may have the effect of interrupting activity
which has not yet passed the criminal threshold.
This could potentially be used to good effect as a warning system in cases where there is evidence but it is insufficient, for
example in a case of sexual exploitation where a victim makes an initial complaint but is unwilling to make allegations or
engage with criminal proceedings. Indeed, they could be used against people who appear to be using either their own or
other children as part of an organised begging network.
However, details, such as the extent to which a court would need to be satisfied, and on what standard of proof, remains
to be seen.
MSA 2015 gives law enforcement officers powers to investigate and act on modern slavery
offences taking place at sea, similar to those in relation to drug traffickers--ie to stop, board,
divert and detain ships, search those on board, make arrests, and seize any relevant evidence.
How important is this and how effective will measures be?
MSA 2015 gives a considerable amount of legislative space to ships and nothing to crossing the Channel by tunnel, or
entering the country by air. This is probably inevitable given the technical problems associated with investigating shipping
in national and international waters. What has happened is that Parliament has effectively re-introduced the 1807 Slave
Trade Abolition Act.
The effectiveness of the maritime provision will depend on the resources made available for enforcement and a qualitative
assessment whether invoking the powers is proportionate and worth the expenditure in each case. It must be
remembered that trafficking under MSA 2015 is not the same thing as smuggling people or refugees into the country so
as to avoid immigration. In our experience, cases of mass trafficking for the purposes of exploitation, slavery, servitude or
forced labour are rare, bordering on non-existent.
The effectiveness of the powers will also depend on whether priority is given to them as opposed to other powers, such as
stopping suspected illegal immigrants. Much may also depend on the level of co-operation afforded by other jurisdictions-for example, if a ship is stopped on the high seas, it can be taken to the nearest port. If it is not a UK port, then the
effectiveness of the provision will depend on how the country concerned views the offence and the legislation it has in
place.
However, despite our reservations, the maritime provision does have the very positive effect of sending out a strong
message that this country is taking trafficking and slavery very seriously.
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The government maintains the new pilot of the existing National Referral Mechanism (NRM)
will offer legal support for anyone where there are 'reasonable grounds' to presume they have
been trafficked. Is this sufficient? What is the position over legal aid for trafficked victims?
This is a difficult question, as it assumes that, at the stage a person applies for legal aid, it has been accepted that they
are a victim of trafficking. This is often not the case.
For example, in a current case, a victim has returned to her home country. On applying for a visa to return, the
immigration authority refused her application and made a positive finding that she is not a victim. This is despite the fact
that criminal proceedings are in hand and she is trying to come here to give evidence against her traffickers. This situation
illustrates that the NRM is still flawed, and that clearer guidelines are needed.
It also may be that the legal aid provision should be extended to witnesses so as to allow them to receive some limited
legal advice, as they may have committed offences at the behest of their traffickers and be asked questions about that at
the trial of their traffickers. The advice that prosecution counsel can give them is of course limited.
Anything else which would have made MSA 2015 more effective?
In some countries, such as Trinidad, a person who commits an offence as a result of trafficking is entitled to a defence
and then it is up to jury to decide causation. Here, MSA 2015, Pt 5, s 45 and Sch 4 include a catalogue of offences to
which being a victim of modern slavery provides no defence. It includes offences such as arson which might well be
committed by a victim seeking to escape slavery or exploitation. In those cases, the victim must rely on the defence of
duress, which is acknowledged to be extremely difficult and unrealistic for victims of modern slavery.
The alternative is to rely on the Crown Prosecution Service (CPS) to exercise its power to decline to prosecute in the
public interest when it is satisfied that the defendant committed the offence as a direct result of being the victim of modern
slavery. However, the CPS may take the view that, as Parliament has excluded the offences from a defence in law, public
interest considerations cannot apply as if to substitute one.
There is, therefore, a risk that MSA 2015, s 45 has potentially made the phenomenon of victims of trafficking and slavery
being inappropriately prosecuted worse.
How does MSA 2015 compare in terms of offences and enforcement powers with legislation in
other countries?
We are leading in terms of:
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putting into statutory form our obligations under the Council of Europe Trafficking Convention
endeavouring to give specific effect to the EU Directive 2011/36/EU (Trafficking Directive), and
trying to consolidate our legislation
But we are not at the head of the pack in terms of drafting and passing the relevant legislation.
However, by making this kind of offending a top priority, it is having a knock on effect elsewhere. Our prosecutions of the
perpetrators of these crimes mean the countries where many of the victims come from appear to have greater knowledge
of it.
Peter Carter QC--an expert on human rights and the defence of victims of trafficking, he was appointed Special Advisor to
the Joint Parliamentary Select Committee on MSA 2015. Major practice areas also include commercial fraud, insider
dealing, money laundering, terrorism and homicide. He also appears in and advises on corruption cases.
Riel Karmy-Jones QC--lectures here and abroad on her experiences of prosecuting human trafficking cases and gave
evidence to the Joint Select Committee on the Draft Modern Slavery Bill. A theatre director before coming to the Bar, she
also specialises in serious and organised crime, homicide cases, terrorist trials and serious sexual offences.
Interviewed by Grania Langdon-Down.
The views expressed by our Legal Analysis interviewees are not necessarily those of the proprietor.
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