Modern Slavery Offences: Factors for Practitioners to consider

Practitioners will be familiar with defending in modern slavery cases where the s45 defence is advanced. This brings with it procedural, evidential and disclosure challenges from the timing of NRM referrals and receipt of conclusive grounds, to admissibility of various expert reports and potential third-party disclosure such as social services records.

However, defending individuals who are themselves accused of modern slavery offences is legally and procedurally complicated. We set out key factors to consider:

The Indictment

Allegations are often over a lengthy period and depending on these dates the counts may span different pieces of legislation.

The Modern Slavery Act 2015 brought together the previous legislation criminalising all slavery and trafficking offences. This came into force on 31 July 2015.

The offences arising under the 2015 Act are:

Allegations prior to this date are often charged under other legislation such as the Asylum and Immigration (Treatment of Claimants) Act 2004, or the Coroners and Justice Act 2009. 

Definitions

These offences can be committed in a number of ways and, prior to the Modern Slavery Act 2015, has been presented in a legislative piecemeal manner. As a result, when it comes to legal submissions and directions, many terms remain undefined in the legislation.

There is useful UN guidance re trafficking definitions:

https://www.unodc.org/unodc/en/human-trafficking/Webstories2021/harbouring-explained.html  

  • “Travel” for the purposes of s2 is defined by s2(5)(a), (b) and (c) and is given a wide meaning.
  • “Arrange” or “facilitated” is not defined in statute but the conduct capable of amounting to this is set out by example in s2(3): - recruiting, transporting, transferring, harbouring, receiving, transferring, exchanging control over…

These latter conduct terms are not defined in statute.

  • “Arranging” is a common word which requires no further explanation to a jury. [R. v. K, W, A [2018] EWCA Crim 1432, paragraph 46.]
  • “Harbour and receive” appear to be given their dictionary definitions.
  • “Exploitation” is set out in some detail in section 3.

Practical Considerations

The administration and planning required for these cases is substantial:

Interpreters

The parties (prosecution and defence) will usually require interpreters and issues can arise where the same interpreters have been used by police prior to trial. During the trial the Court will be keen to limit the number of interpreters required for Defendants to save costs presumably. It is essential that a sufficient number of interpreters are engaged where there are many defendants in a large dock, as there often are.

There is often a large amount of disclosure in digital form which needs translating in advance of or during trial.

Links abroad and special measures

Complainants and witnesses may be granted special measures and live links from abroad. Given this will also likely involve interpreters, time differences and mutual legal assistance, early applications and robust scrutiny is recommended. 

Victim Navigators and Disclosure

Complainants may be assisted by police, witness services and victim navigators. It is important that roles are identified and strictly adhered to.

In addition, disclosure of communications/NRM/compensation should be sought. 

Complainants are often referred to as PVOTs (Potential Victims of Trafficking).

Questionnaires

It’s not uncommon for the authorities to send questionnaires to a number of different people whose details they have. Some will corroborate the allegations that have been made and indeed form the foundation it would seem for those witnesses to be questioned further about their so-called forced labour/servitude. It’s not uncommon for some of the questionnaires to be returned confirming that in fact they were not subject to the conditions that are the basis of the allegations. They ought to form part of the often voluminous unused material. Whilst each case turns on its own facts, it’s worth keeping an eye out for any useful material contained within them.

Sentencing

The sentencing guidelines for these offences are severe and clients should be given clear advice from the outset as to the same. As in any case, they should also be borne closely in mind if you are considering submitting a basis of plea.

The relevant sentencing guidelines were published by the Sentencing Council in August 2021. They came into force on 1st October 2021.

The guideline in respect of the section 1 (slavery, servitude, and forced/compulsory labour) and 2 (human trafficking) offence is entirely identical.

The guideline for the s4 offence (committing an offence with intent to commit a human trafficking offence) simply invites the sentencer to the take the starting point for the substantive offence and then aggravate it to reflect the human trafficking element. No detailed guidance is given as to how the Court comes to an appropriate level of uplift but 2 years on top of the substantive starting point is suggested as a possible figure. The guideline also notes that consideration ought to be given to totality especially where substantive modern slavery offences are being sentenced alongside the s4 offence. A final note is that the maximum sentence for this offence is 10 years unless kidnapping or false imprisonment is committed in which case it is life.

There are also guidelines for ‘breach offences’ arising out of modern slavery ancillary orders.

One matter of note from the commentary to the guidelines is in respect of the issue of ‘harm’. It concedes that it can often be difficult for the courts to properly assess harm to the victims in these cases and as such place the offences appropriately. Careful consideration ought to be given to the evidence and also the fact that the starting points are already severe to reflect the serious nature of restricting someone’s liberty.

Slavery and Trafficking Prevention Orders

Sections 14 to 34 of the Modern Slavery Act 2015 deal with ancillary orders that are often applied for in these cases.

It’s a civil application in the Crown Court and that should be borne in mind especially in respect of the issue of the evidence that forms the basis of the application and relevant hearsay provisions.

An order can be made where the court is satisfied that there is a risk the Defendant may commit a slavery or human trafficking offence, and the order is necessary to protect persons generally or particular persons from physical or psychological harm should the Defendant commit such an offence. Even though it’s a civil order, the Court must be satisfied of the test to the criminal standard.  The order must be in place for a minimum of five years.

In the case of Wabelua [2020] EWCA Crim 783, the Court of Appeal (Criminal Division) provided some guidance in respect of the principles to be applied. Of note:

  • The Court stressed the importance of the necessity test both in respect of the order as a whole and also the individual prohibitions.
  • The Court noted that any court dealing with such an application must consider if the nature and length of the substantive sentence imposed sufficiently addresses the concerns in respect of risk.
  • The Court also noted that the Police have the power to apply for an order independently in the future should the need arise then. This seems to suggest a ‘see how it goes’ approach as opposed to imposing unnecessary orders from the outset.
  • The terms must be reasonable, proportionate and clear.
  • A draft must be served on the defence in good time ahead of the sentencing hearing.

There is helpful guidance produced by the Home Office addressing applications for such orders here.

POCA

It is not uncommon for the Crown to pursue confiscation proceedings in matters of this nature. This should be borne in mind throughout, especially if negotiating any bases of plea.

Relevant likely issues to arise in such proceedings include possible third-party interests of spouses or partners not involved in the criminal case, cross-jurisdictional issues and the ‘lifestyle’ provisions.