Messrs Southwell and Partners- Written evidence (MSA0065)

Authors of this submission

Ben Douglas-Jones KC is a barrister in independent practice at 5 Paper Buildings in London and St Philips Chambers, Birmingham.

He is also an attorney-at-law in Grenada, with rights of audience in the Eastern Caribbean Court of Appeal. He specialises in human rights, appeals, complex fraud, serious crime and regulatory law, including consumer and intellectual property. His human rights and appellate practice has seen him appear in most leading cases from 2011 concerning victims of human trafficking and slavery and refugees who commit offences. Ben cowrote the Crown Prosecution Service Guidance on charging and prosecuting victims of human trafficking and the Law Society Guidance on trafficking and refugee defences (with Philippa Southwell). He wrote Judicial College Guidance on prosecutions involving victims of trafficking and modern slavery. He provides domestic and international training on human trafficking and modern slavery to judges in England and Wales and other jurisdictions and in the context of practitioner and regulatory compliance training.  He is the human trafficking editor of Archbold Criminal Pleading Evidence and Practice and Rook and Ward on Sexual Offences.  He has written the trafficking section of the Crown Court Compendium for Crown Court Judges on how to direct juries on trafficking and modern slavery. He is co-author and editor of Human Trafficking and Modern Slavery Law and Practice (Bloomsbury 1st and 2nd Edition; Southwell, Brewer and Douglas-Jones KC) and co-editor of Human Rights in Criminal Law (Bloomsbury 1st Edition; Douglas-Jones KC, Bunting, Mason and Newton KC).

Philippa Southwell is the manging director of Southwell and Partners, a leading and specialist human trafficking and modern slavery law firm. Philippa is a Solicitor Advocate and specialises in cases concerning victims of human and modern slavery and has acted in several hundred slavery and human trafficking cases throughout her career. Philippa is also Managing director of the Human Trafficking and Modern Slavery Expert Directory. Philippa has drafted the Law Society practice note on human trafficking with Ben Douglas-Jones KC. She regularly delivers training to law enforcement and legal professionals on many areas of modern slavery law, including modern slavery regulatory compliance, both in the UK and internationally. Philippa has been involved in most of the significant and leading cases involving victims of modern slavery and forced criminality, including representing the applicants in multiple specially convened victims of trafficking court before the Lord Chief Justice. She is co-author and co-editor of Human Trafficking and Modern Slavery Law and Practice (Bloomsbury 1st and 2nd Edition; Southwell, Brewer and Douglas-Jones KC), and Co Author of “Does the new Slavery Defence Offer Victims any Greater Protection” (Archbold Review )

Summary of matters addressed in this submission

These submissions address the following issues of which we have direct experience: -

a. Effectiveness of the criminal offences (ss.1 and 2) in the MSA 2015;

b. Observations on Section 45 of and Schedule 4 to the MSA viz exclusion from a statutory defence;

c. Effectiveness of the section 54 of the MSA;

d. Effectiveness of duty to notify under section 52 of the MSA;

e. Victim identification within the criminal justice system;

f. Interplay between Competent Authority identification and criminal proceedings.

A: Criminal offences within the MSA

Section 1

First, section 1 of the MSA creates a criminal offence where slavery, servitude, forced or compulsory labour arises. S.1(2) requires slavery, servitude, forced or compulsory labour to be construed in accordance with Article 4 of the European Convention on Human Rights.

This is significantly problematic for two reasons, firstly ECtHR jurisprudence does not provide a detailed construction of the elements of the criminal offences of slavery, servitude, forced or compulsory labour to assist a charging officer or CPS practitioner in assessing whether the circumstances of these offences meet the threshold for charging an offence under section 1. In drafting the Crown Court Compendium, Ben Douglas-Jones KC and Upper Tribunal Judge Brewer have had to define terms which should have been defined in the MSA. These terms should be adopted. As Article 4, ECHR includes Article 4 of the Council of Europe Convention against Trafficking in Human Beings 2015 (‘ECAT’), which defines trafficking without the need for movement, this offence should be spelt out in terms as an offence derivative of slavery. Ss.2 and 3 would then be otiose and should be repealed as confusing and as serving to leave some trafficking victims unprotected.

Second, a person should not be charged with or convicted of a criminal offence that they did not know and could not have known existed at the time when they allegedly committed it. Presently s.1(2) is of nebulous construction and arguably offends the principle of legal certainty. It was considered fundamental to those States ratifying the ECAT and opting into the EU Anti-Trafficking Directive that there was an international consensus on the definition of human trafficking.

Sections 2 and 3

First, both Union law and the ECAT require that conduct contained within the trafficking definition is criminalised where the requisite components within the definition are met. The Directive and CoE require that where the following actions have been taken by an individual: recruitment, transportation, transfer, harbouring or reception of persons, including the exchange or transfer of control of those persons, the action element of the offence will be satisfied.

Section 2(1) of the MSA does not create a criminal offence of human trafficking where ‘P’ has recruited, harboured or received a person with a ‘view to exploitation’. Movement is required in England and Wales law.  This means that victims of trafficking who are not moved (such as cuckooing victims) are seen as unprotected by ss.1 to 3. 

In fact, they are protected by s.1.

These three components are key ingredients which were included to encompass the whole sequence of actions that would lead to the exploitation of a victim; Explanatory note to the CoE [72] 2 Paragraph 78 of the explanatory report to the CoE.

Second, section 2(2) does not provide the negation of consent safeguard as set out in the regional instruments. In short, an adult V cannot consent to the ‘action’ of her trafficking or her ‘exploitation’ if her consent was obtained at any stage by the threat or use of force, deception, fraud, abuse of position of vulnerability or power, or coercion. However, section 2(2) of the MSA only provides that the V’s consent to her movement is irrelevant to whether human trafficking has occurred – ‘consent’ is linked to the action ingredient of trafficking only. The section 2(2) construction is that whether V has consented to her exploitation will be irrelevant irrespective of whether this consent was obtained by means identified in Article 4 of the CoE.

Third, the criminal offences do not (as the regional instruments do) delineate between adult or child victims. With child victims the construction of section 2(2) is thus particularly concerning. Explicit in the regional and international instruments defining trafficking is that if a child has been recruited, transported, transferred, harboured or received for the purpose of exploitation that child is a trafficked child. This is irrespective of whether that child was ever threatened, forced, coerced, abducted, de-frauded, deceived, or there was an abuse of position of power or vulnerability. In short, a child cannot consent to his or her exploitation.

Recommendation:

a. The offences should be re-drafted to comply with the regional instruments; see the Douglas-Jones KC/Brewer definitions in the Crown Court Compendium;

b. The offences should distinguish between adult victims and child victims;

c. The elements of each of the offences should be constructed clearly.

B: Section 45 and Schedule 4

First, Section 45 creates a defence for slavery and relevant exploitation.  There are two different definitions of slavery: s.1 (where it is one offence of several contained within the section) and s.56 where it is defined so as to include all of the offences in s.1. Practitioners applying s.45 are doing so in an arbitrary way, sometimes understanding that slavery encompasses servitude and forced and compulsory labour and Article 4, ECHR violations (i.e. serfdom (relevant to cuckooing) and debt bondage (relevant to many species of organised crime)) and sometimes thinking that it excludes servitude and forced and compulsory labour.  Because of the definition of exploitation (see above), victims of trafficking who are recruited or harboured, but not moved are seen as not protected via ss.2 and 3 by criminal lawyers and judges.  Because of the definition of slavery in s.1 (as opposed to s.56), victims of slavery derivative offences as opposed to slavery are seen as not protected by s.45 via s.1 by criminal lawyers and judges.

Second, because it was taken from legislation unconnected to modern slavery, Schedule 4 contains an apparently random selection of offences which are frequently committed by victims of trafficking and in relation to which they should have a trafficking/compulsion/exploitation defence available to them; for example: malicious wounding, robbery, offences relating to Channel Tunnel trains, slavery and human trafficking.

Parliament acknowledged that the transposition of the offences into the schedule was arbitrary when the Bill was debated.

If a putative victim of trafficking is charged with a Schedule 4 offence, the putative victim cannot rely on a statutory defence irrespective of whether their offending was a manifestation of or directly linked to their trafficking.

Schedule 4 offences are often intimately linked to trafficking, and/or are known as offences caught within forced criminality paradigms.

Section 45 arose from the principle that a putative victim should not, in most circumstances, be punished for crimes committed which are directly linked to their trafficking. England and Wales is not honouring its international law obligations through Schedule 4. Hence the Court of Appeal made clear in R. v AAD [2022] EWCA Crim 106; [2022] 1 Cr. App. R. 19; [2022] 1 W.L.R. 4042 that abuse of process should exist as a protection notwithstanding s.45; see R. v. AFU [2023] EWCA Crim 23; [2023] Cr. App. R.16, per Carr LJ (as she then was).

Third, the Crown Prosecution Service guidance on the non-prosecution and non-punishment of victims of trafficking, provides that where someone commits an offence of robbery (proscribed by schedule 4), a prosecutor will be obliged to look at the public interest in prosecuting them for robbery and if they had committed it in circumstances where their criminality or culpability was effectively extinguished because of the dominant force of compulsion of the trafficking acting on them at the relevant time, they will not be prosecuted in the public interest. This is the correct approach vis-à-vis adult victims and accords with the non-punishment principles set out in the regional instruments. Ben Douglas-Jones KC had to include this within the CPS guidance to ensure it was compliant with international law.

Recommendation:

a. S.45 should be clarified so that it is clear that victims of trafficking as defined internationally and victims of slavery derivative offences such as servitude, debt bondage, serfdom and forced and compulsory labour (as opposed to slavery itself) are protected.

b. Schedule 4 prevents England and Wales from complying with its international law obligations. It should be repealed or replaced with a schedule containing murder, attempted murder (and treason involving the death of the Sovereign).

C: Section 54

First, the Joint Committee on Human Rights (‘JCHR’) made key recommendations in its ‘Human Rights and Business 2017: Promoting responsibility and ensuring accountability’, 29 March 2017 to address human rights violations and in particular child and forced labour which occurs within the realm of business activity.

The JCHR analysis and recommendations are pivotal in understanding why section 54 of the MSA is a dead letter in preventing multinational companies engaging in human rights violations which encompass human trafficking (as child labour and forced labour does). In regulatory law, the key factor to protect the affected section of the public is implementation of the measures devised to protect.

When we have spoken to representatives of large organisations, it is clear that there has been a fixation on publishing a statement so as to comply with s.54 without any meaningful understanding of how the statement should be put into practice and without any meaningful understanding of the risk inherent in particular work forces or supply chains.

Second, s.54 has the effect of making prosecuting authorities think that bodies corporate cannot be prosecuted for offences contrary to ss.1, 2 and / or 4 where section 54 has been complied with.

Third, when members of companies are informed that, irrespective of section 54 compliance, they as individuals and their companies are exposed to criminal liability if they commit offences under ss.1, 2 and / or 4, they are shocked. The focus on s.54 has made directors and CEOs of companies unaware of the criminal sanction they or their company could face for committing a s.1 or 2 offence.

Recommendation: In order for section 54 to have any bite and/or effectively reduce trafficking within supply chains we recommend it must be amended to:

a. Be a mandatory requirement which carries sanctions for non-compliance;

b. Require all business caught by section 54 to conduct and report on human rights due diligence. This must meet the four ILO core labour obligations (slavery, forced labour, freedom of association and collective bargaining). It should set out the relationships the companies have with trades unions throughout their operations – the unions should be consulted about the content and veracity of the report;

c. Create a central repository for section 54 reports which lists all companies required to report;

d. Incorporate human rights into Government procurement policy (as a minimum- ILO four core principles compliance);

e. Require companies to undertake, conduct and report on human rights due diligence for public sector contracts (see b above);

f. There should be analogous obligations under section 54 for public authorities.

D. Victim identification – forced criminality – treatment of victims of trafficking

Conviction rates and prosecutions under the Modern Slavery Act 2015 remain low. This is reflective of the issues surrounding identification of victims, particularly those involved in forced criminality.

In any criminal case, the police station stage is a highly significant juncture and influences greatly how a case develops. With potential victims of trafficking, this stage of the case is even more important, as the police have the opportunity to divert them from the criminal justice system, where appropriate.

There are still currently fundamental failings at the initial stage were victims and police converge.

First, victims are still often criminalised and will be interviewed as suspects under caution. The current College of Policing guidance regarding interrogations of victims involved in forced criminality is inadequate. Police are regularly arresting victims and treating them as suspects first and foremost, even when there are significant trafficking indicators present when arrests are made. In our experience, victims who are treated as suspects and/or defendants at any stage are highly unlikely to cooperate with the authorities as a victim either at that time or at a later stage.

Second, the current College of Policing guidance states that “if a person is arrested and so enters the criminal justice system as a perpetrator and officers discover during the PACE interview that the person committed a modern slavery offence through coercion and may also be a victim, the interview should continue and evidence be attained. On conclusion of the interview, the person should be entered into the NRM if they consent […] following the referral, a victim debrief and a subsequent interview with Achieving Best Evidence in Criminal proceedings […]”.

It is a regular occurrence that victims are being questioned about their exploitation by unsuitably trained officers during a PACE interview and are not being afforded the safeguarding they would have under an ABE (Achieving Best Evidence) interview. There are issues with availability of ABE suites onsite at police stations and at independent venues. The College of policing guidance is silent on how suspects who are potential victims of trafficking should be dealt with if modern slavery concerns are raised by legal representatives prior the start of a PACE interview.

Even in cases where individuals have had the prosecution discontinued before trial, they are still reluctant to cooperate with the authorities, and those who have been convicted are even less likely to want to cooperate. The issue with failing to identify victims involved in forced criminality compounds the figures of low prosecutions and convictions of modern slavery offences.

Key evidence is lost when we fail to identify cases of forced criminality and modern slavery at first contact or shortly thereafter. Many victims are not identified for months, even years after their exploitation.

Recommendations. Possible credible victims, where trafficking indicators are present, apprehended in common forced criminality circumstances, should be treated in the first instance as victims and not suspects. The College of Police guidance should be updated regarding victims involved in forced criminality. Similar practices should be adopted to individuals who are apprehended in brothel and sexual exploitation cases.

E. Duty to Notify s52 MSA

Section 52 gives rise to serious concerns where a victim is also a defendant. When an individual raises a slavery defence under Section 45 of the Modern Slavery Act 2015, they are given the opportunity to cooperate with the authorities and give an ABE interview as a complainant. This is problematic in cases where a potential victim of trafficking is a defendant, as they will by the very nature of their exploitation be questioned about the forced criminality they have been involved in. In certain circumstances these ABE interviews can be used against them in the subsequent criminal case where they are a defendant. Victims who cooperate also risk any adverse evidence or lack of evidence being referred back to the Competent Authority, and there have been many situations where this has resulted in a negative trafficking determination, or police asking for positive determinations to be reconsidered because negative Competent Authority identification decisions will result in a criminal investigation of the putative victim coming to a halt. In our experience, those victims who have not formally cooperated with the authorities are often in a better position regarding a National Referral Mechanism determination than those who have. The NRM is not a criminal investigation and the Competent Authority guidance is clear on this point. However, where there is cooperation with a police investigation, the processes become confused.

F. Competent Authority delays in making CG decisions

The SCA are routinely failing to make identification determinations on conclusive grounds within their guideline timeframe. The delays in making conclusive grounds determinations are unsatisfactory, particularly for those potential victims of trafficking who are being prosecuted for offences they have committed as a result of their exploitation. The delays are occurring regardless of whether they are on remand or on bail. These delays cause hindrance in the Crown being able to review the prosecution in line with their guidance and also materially affect the preparation of the defence case. Many potential victims of trafficking are having to engage in additional litigation by judicially reviewing the SCA’s failure to make their determination, at unnecessary cost to the public purse. Routinely minutes to the SCA determination are not provided to the potential victims of trafficking or their legal representatives. These have to be requested via a subject access request and it is a lengthy process. Legal representatives need access to these documents urgently. These important documents, should be served with all decisions automatically when the determination is served for transparency. The SCA has recently changed its policy and guidance on time limits in which a reconsideration can be made. The policy states “Any further evidence must be provided with the reconsideration request itself and within one month of a negative reasonable grounds or conclusive grounds decision”. This is causing an adverse impact on potential victims. Consideration needs to be had for time frames in which Subject Access Requests are processed. There should be no time bar or limitation in which a potential victim can ask for a reconsideration request.

We are routinely seeing criminal trials progress without the conclusion of a potential victim’s trafficking determination. Given the delay in issuing conclusive ground decisions, many trials are progressed where victims are raising a Section 45 Modern Slavery defence.

We are continuing to see victims being re-trafficked and re-prosecuted through various parts of England and Wales. There must be greater information sharing between the Crown Prosecution Service, police constabularies, the Single Competent Authority and the Home Office to ensure that potential victims or indeed victims who have been formally identified are not re-trafficked and, where appropriate, not re-prosecuted and that rereferrals into the NRM are made without delay. Many CPS reviewing lawyers are unaware of an individual’s status as a potential victim when charging decisions are made. 

Recommendations: SCA should strictly adhere to their guidance timeframes in most cases when making a Conclusive Grounds determinations. Minutes should be served with all decisions automatically when the determination is served for transparency.

27 March 2024