Prosecuting human trafficking and slavery: the law and the UK response
Speech by Solicitor General, Oliver Heald QC MP to students of Peace Studies at Bradford University
Introduction
“It is a great pleasure to be able to speak to you today. I would like to thank Professor Neil Cooper and Dr Julia Buxton for inviting me to speak about human trafficking. It is an opportune time to debate this topic as the UK’s Anti Slavery Day was on the 18 October. You have provided me with an excellent opportunity to mark this day and I am delighted to do so at this department which has such an excellent international reputation in the area of peace studies.
“My parliamentary constituency is North East Hertfordshire. Within it, at Wadesmill, there is a monument marking the spot where, in June 1785, Thomas Clarkson rested his horse on the way from Cambridge to London. Clarkson had just won a university prize for an essay on the topic, ‘Is it lawful to enslave the unconsenting?’ He had written about the Atlantic slave trade, and while resting his horse, Clarkson realised that ‘it was time some person should see these calamities to their end’. Clarkson then devoted his life to campaigning for the abolition of slavery. His energy and determination, and that of other ‘abolitionists’ like William Wilberforce and Olaudah Equiano, led first to the abolition of the slave trade in 1807, and then to the Slavery Abolition Act of 1833.
“Important as those achievements were, the ‘unconsenting’ are still enslaved today. Human trafficking threatens the human rights of millions every year and represents a new form of slavery. Human trafficking is the second largest organised crime in the world; there are millions of victims at any given time with profits of traffickers worldwide estimated in excess of $32 billion each year.
“In the UK, those who are exploited may face years of sexual abuse, forced labour or domestic servitude. They are vulnerable women, children and men who often speak no English and are kept isolated. In many instances they never fully recover from their traumatic experience.
“Anti-Slavery Day was introduced in 2010 through the Anti-Slavery Day Act to raise awareness of the need to eradicate all forms of slavery, human trafficking and exploitation.
“Today, I will look at the nature of the problem in the UK and give an overview of the UK response to human trafficking. I will then examine the influence of international instruments, such as UN protocols, on domestic legislation. Finally I will comment on the UK criminal justice response both in terms of how prosecutions are handled, and the effectiveness of the criminal justice system in combating human trafficking.
“But I thought it might be helpful to start by explaining something about my role as a Law Officer and how this relates to the subject under discussion. I am deputy to the Attorney General. Together we are known as the Law Officers. The office of Attorney General covers a wide range of functions. In addition to being chief legal adviser to the Crown, and thus to government, the Attorney General is also the guardian of the public interest and a protector of charity.
“As government ministers, we account to Parliament for the 2 largest prosecuting departments: the Crown Prosecution Service and the Serious Fraud Office. (We also have ministerial responsibility for the Treasury Solicitor’s department and Her Majesty’s Crown Prosecution Service Inspectorate.) This superintendence role involves safeguarding the independence of the prosecutors in taking prosecution decisions and, in conjunction with the directors of the prosecuting authorities, setting their strategic direction.
“While the lead in policy making on human trafficking lies with the Home Office, the Law Officers have a role, together with Home Office and Ministry of Justice colleagues, in formulating criminal justice policy. In particular, we want to ensure human trafficking policy works in practice, when it comes to the prosecution of offences. I am a member of the Inter Departmental Ministerial Group (IDMG) which acts as the UK rapporteur on this issue.
“If I start with the problem in the UK, human trafficking is, by its nature, a complex and hidden crime and it is difficult to get a full picture of the numbers involved. However, the Association of Chief Police Officers (ACPO) in 2010 undertook a study of sexual exploitation in England and Wales. The report looked at who was being trafficked into the country for ‘off-street’ prostitution, where they came from, and how they were treated. This report estimated that, of the 17,000 migrant sex workers in the off-street sector, there were at least 2,600 female adult victims of trafficking for sexual exploitation in England and Wales, with a further 9,600 considered to be vulnerable, and suspected to have experienced an element of trafficking.
“National Referral Mechanism (NRM) figures give a more up-to-date picture of those victims who have reported to the police or are brought to the attention of the authorities. The NRM is a framework for identifying victims of human trafficking and ensuring they receive appropriate care. A range of agencies may be involved in a trafficking case, such as the police, the UK Border Agency (UKBA), local authorities and non-governmental organisations such as charities.
“The NRM makes it easier for these agencies to co-operate, share information and facilitate access to advice, accommodation and support. In 2011, 946 potential victims of human trafficking including 234 child victims were identified in the UK by the NRM. Using this data we are also able to explore where victims are trafficked from. The most prevalent source countries were Nigeria, China, Vietnam, Romania and Slovakia.
“The most prevalent type of exploitation for adults trafficked to the UK is sexual exploitation and for children it is labour exploitation. In recent months we have also seen cases in which victims have been brought to the UK to be exploited for the purpose of benefit fraud and other types of criminal exploitation.
“The impact of these crimes is great in terms of harm, both to victims and to society more generally. The numbers of people trafficked and the source, transit and destination countries continue to change and evolve as traffickers seek to exploit new and more profitable opportunities.
“It is therefore crucial that we monitor the constantly changing pattern of human trafficking to and in the UK, in order to support victims and deter and disrupt traffickers. This is why we vigorously review the latest data on trafficking at each of our inter-departmental ministerial meetings on human trafficking.”
The UK government response
“So, the UK government response to human trafficking is of vital importance. We have made progress. We are improving the identification of, and support for, trafficking victims. And we are working more closely with international partners to deter, disrupt and prosecute traffickers. But there is much more to do.
“The government published its human trafficking strategy in July 2011 with a focus on victims, and prevention. The aims of that strategy are as follows:
“First, improved victim identification and care - actions have been taken to improve the awareness of front line professionals working in local authorities, health services, the UK Border Agency (UKBA), the police, the Crown Prosecution Service, the Serious Organised Crime Agency (SOCA), charities such as NSPCC and the Gangmasters Licensing Authority, so that they can better identify, support and protect victims.
“The second aim is to act early in source countries. Increased international engagement has begun: to gain a better understanding of human trafficking patterns, to raise awareness of this crime, and to assist in strengthening law enforcement and justice systems in priority countries. The CPS has a number of prosecutors based in ‘strategic threat assessment countries’. They regularly liaise with 2 of the major source countries through the Supreme People’s Procuracy (SPP) from Vietnam and the Nigerian Agency for the Prevention of Trafficking In Persons (NAPTIP) to prosecute traffickers at source, improve cooperation and build the capability of investigators and prosecutors.
“The third aim is smarter, more effective action at the border - concentrated efforts have been made by a range of agencies to work together to share information and maximise capabilities. The Border Force has been working with the European Border Agency, Frontex, to draw up risk profiles on victims from particular countries, in cooperation with other member states. The risk profiles have been disseminated to UK ports. In this way the attention of frontline staff can be focused on passengers who pose the highest risk and allow the vast majority of legitimate travellers to pass through without delay.
“The final aim is more coordination of UK law enforcement efforts - agencies across the UK work collaboratively and with their counterparts in other countries to share intelligence and collectively target traffickers.
In tackling human trafficking, no single agency or government organisation alone can provide a comprehensive response. This is why it is crucial that we cooperate together fully at every level.
“At the strategic level, the Inter-Departmental Ministerial Group (IDMG) draws together ministers of the relevant departments and the devolved administrations. I am a member of this group. You may be surprised at the range of other departments represented: the membership includes ministers from the Foreign and Commonwealth Office, Department for Communities and Local Government, Department for Education, Ministry of Justice, Department for International Development, Department for Work and Pensions and Department of Health.
“This group is responsible for developing and reviewing the UK’s counter-trafficking policy. In line with the requirements set out in the 2011 EU Directive on trafficking in human beings, the IDMG is the UK’s national rapporteur mechanism.
“The IDMG published its first annual report on human trafficking on 18 October 2012. The report is an assessment of human trafficking in the UK and work underway to prevent people from becoming victims of this crime. As well as assessing trends the report also provides an update on the UK government’s human trafficking strategy. I would urge you to read this report which is available to download from the Home Office website.
“At official level, policy on trafficking is consistently reviewed at meetings of both government and non-government representatives - such as the Poppy Project and NSPCC. My officials take a full part in these meetings.
“At operational level, the UK Human Trafficking Centre is a multi-agency unit that coordinates law enforcement. UK law enforcement and prosecutors also work in joint investigation teams. These teams tackle the chain of criminals across various countries who are responsible for recruiting, moving and exploiting vulnerable victims.”
The role of international instruments in shaping and influencing legislation
“Over recent years, there has been a growing international consensus that there should be a concerted global response to human trafficking. Globalisation has resulted in an increase in transnational crime, and migration provides a fertile field for criminals. In response, international instruments have criminalised human trafficking, put in place procedural safeguards and protected victims.
“The UK’s legal framework has been directly influenced by UN and EU Conventions and Directives. I will refer to just 2 such international instruments.
“The first is the ‘Palermo Protocol’. The UN Convention against Transnational Organised Crime, signed in Palermo, Italy in 2000 is the main instrument against transnational organised crime. It provided international and mutually recognised definitions of human trafficking and criminalisation of trafficking including proportional criminal penalties for traffickers. It also, importantly, established the protection to be afforded to victims. The ‘Palermo Protocol’ continues to shape the UK’s response to human trafficking and in particular the care and support afforded to identified human trafficking victims.
“The second international instrument I will refer to is the EU Directive on Trafficking in Human Beings, which the UK opted into in July 2011. The UK was already compliant with the majority of the provisions contained within the directive. However, there were 2 areas identified where primary legislation was required to comply. Steps have already been taken, through the Protection of Freedoms Act 2012, to introduce new legislation in these areas.
“The legislative changes mean that, in future, England and Wales can prosecute UK nationals who commit trafficking offences even where the trafficking has no connection with the UK. The power to prosecute traffickers for non-sexual trafficking offences which occur wholly within England and Wales has also been introduced.”
The UK criminal justice response
“I now turn to domestic legislation and the criminal justice response.
“Cases of human trafficking may be prosecuted under a variety of different legislation. I shall briefly run through some of the relevant legislation:
“The Sexual Offences Act 2003 criminalised the trafficking into, within, and out of, the UK for the purposes of sexual exploitation.
“Secondly, the Asylum and Immigration Act 2004 criminalised trafficking into, within, and out of, the UK for all other forms of exploitation. This legislation was also sufficiently wide for prosecutors to prosecute traffickers for a wide range of exploitative conduct.
“Finally, in April 2010 a standalone offence was introduced under the Coroners and Justice Act 2009 to criminalise those who hold another person in slavery or servitude or require them to perform forced or compulsory labour.
“All these offences attract maximum penalties of up to 14 years imprisonment on conviction and the first 2 are ‘lifestyle offences’ for the purposes of proceeds of crime. This means that the CPS can deprive the defendant of the financial benefit that he or she has obtained from criminal conduct through a confiscation order.
“To give an example of the kind of slavery and servitude offences that are prosecuted: in July of this year 4 members of the Connors family were found guilty of forcing destitute men into servitude. The men were kept in squalid conditions at a caravan park, made to work up to 19 hours a day, 6 days a week for nothing and slept in sheds and horseboxes. They were also verbally abused and beaten and threatened to be killed if they ever tried to leave. Some were alcoholics, drug addicts or had previously been in trouble with the law, and were picked up off the streets, at soup kitchens or in centres for the homeless. One victim said that living at the caravan site was like being in a ‘concentration camp’.
“Cases of human trafficking may also be prosecuted under other legislation. For example offences such as conspiracy to traffic, assisting unlawful immigration to a member state (known as facilitation), and other serious criminal offences such as rape, kidnapping, false imprisonment and threats to kill. These offences are not necessarily lesser charges, as they may carry similar or more serious penalties than human trafficking charges. Importantly, they are used in circumstances where evidence obtained does not support charges of trafficking, or it is not in a form that is reliable and admissible in a court in England and Wales.
“In terms of convictions, Ministry of Justice data for England and Wales in 2011 shows that the number of defendants found guilty, on a principal offence basis, for human trafficking offences (this means that the human trafficking count was the most serious on the indictment), was 8. In 2010, it was 16.
“While these were the numbers of convictions for specific trafficking offences, they do not include all traffickers convicted - this is because many traffickers are convicted for alternative, but related, offences.
“Data from the Crown Prosecution Service’s systems, although less robust, gives an indication of the number of defendants convicted where there was an original charge for trafficking but where that particular charge was subsequently dropped or amended, or where the defendant pleaded guilty to or was convicted of an alternative offence. The data generated by this approach shows that the number of defendants charged was 142 in 2011-12 (in 2010-11 that figure was 103). Two-thirds of those defendants were convicted, which equates to 94 defendants.”
Protection and support for victims in giving evidence
“Central to increasing the numbers and success of prosecutions is the need to encourage victims to support prosecutions. We recognise that many victims and witnesses take significant risks in giving evidence against their traffickers and exploiters. They often fear the consequences of giving evidence - not only for themselves, as often traffickers threaten the lives of close family members who remain in the source country - and may therefore be reluctant to support criminal proceedings. They may worry that they may not be believed. Or they may have a distrust of the authorities because of the culture or their experiences in their home country. Victims may also be facing conflicting interests such as pending applications for asylum which might impact on their willingness to engage.
“For any of these reasons, they may be apprehensive or frightened about coming to court to give their evidence. Whilst we know it will be difficult for victims, the police and the CPS work with a range of non-government agencies, and the other agencies in the criminal justice system, to provide victims with appropriate protection and support.
“This support will improve their safety and help them to give evidence. We know that non-government organisations will often have greater experience of victims and their differing needs, and we recognise the important role they play. As I referred to earlier, there is in the UK a single framework, called the National Referral Mechanism, which assists greatly in identifying victims and referring them on to appropriate support.
“When a victim is going to give evidence at court the CPS will consider the range of ‘special measures’ available to support and protect trafficked victims and allow them to give their best evidence. For example, prosecutors can apply to have the victim’s evidence-in-chief video recorded for presentation in court or for the victim to give evidence via a video link from their home country if they wish to return there. Prosecutors can also apply for reporting restrictions to protect victim’s identity in the press.”
International
“As I said earlier, human trafficking has a truly international dimension. It is a global problem and investigations for human trafficking usually extend to other jurisdictions, requiring evidence for prosecutions in the UK to be obtained from abroad. The principal mechanism for obtaining or exchanging information between different jurisdictions is through mutual legal assistance (MLA).
“MLA is requested through a letter of request, which is a legal document issued by either a judge or a crown prosecutor, requesting assistance in obtaining evidence specified in the letter for use in criminal proceedings or to support an investigation. Additionally the UK has a number of bilateral treaties with other states.
“In seeking the return of a suspect from another jurisdiction, the CPS can use extradition proceedings and does so to good effect. For example, in a recent prosecution the CPS in 2009 extradited an offender from Spain. This was in relation to an unspeakably horrendous case of a father and son trafficking women (some still minors) into Britain from Romania and forcing them to work as prostitutes.
“If the women did not comply with the demands of their clients, they were beaten and raped by the 23-year-old son. The victims were forced to work 6 or 7 days a week, with up to 8 or 10 clients a night. It was the father who was extradited and subsequently convicted of 6 trafficking charges for sexual exploitation and 1 of controlling prostitution for gain. Following a trial at Manchester Crown Court, the son was also was found guilty of a wide range of offences including rapes, assaults, sex trafficking and controlling prostitution.
“The successful prosecution of those men means that they no longer pose a threat to women and children.”
Sentencing
“Before moving on to the topic of UK law influencing other jurisdictions, I must finish by referring to the importance of sentencing. Sentencing Council guidelines have been issued to the judiciary, identify aggravating and mitigating factors which should be applied in ‘human trafficking for the purposes of sexual exploitation’ cases.
“When any human trafficking offence is sentenced in the Crown Court, if the prosecution, or any other interested party, considers that the sentence is unduly lenient - that is, it falls outside the appropriate range suggested by the guidelines or, where there are no guidelines, by previous cases - then they can ask the Attorney General to review the sentence.
“If the Attorney General or I think the sentence is unduly lenient, we may ask the Court of Appeal for permission to refer the case to it. The Court of Appeal decides whether or not the sentence is unduly lenient and, if it is, whether to increase the sentence.
“By way of an example, the case I mentioned a moment ago was one that was referred by my office in 2011. The sentences that were handed down of 21 years imprisonment for the son and 6 years for the father were assessed as unduly lenient by my predecessor. Lord Justice Hughes, who reviewed the sentences with Mr Justice Treacy and Mr Justice Blake, said the case was a ‘depressing narrative of depravity, callous exploitation and brutality’ and increased both sentences. The father’s was increased to 9 years. The son was assessed as a significant risk of serious harm to the public, making him eligible for an indeterminate public protection sentence from which he will only be freed when - and if - he is considered safe.”
Role of UK in influencing law in other jurisdictions
As human trafficking is a global criminal enterprise we liaise with our partners abroad for the purposes of bringing a prosecution in this country, and the CPS shares their experience with our partners overseas to enable them to strengthen their criminal justice systems and rule of law. This helps traffickers to be stopped and prosecuted before they come to the UK.
“This work is essential. Many of the source and transit countries for trafficking are targeted by organised criminals due to the perceived weakness of the rule of law in those countries. The CPS has a positive programme of seeking to work in many of these countries to assist them in strengthening their criminal justice systems. This includes:
- advising law makers on changes in legislation and policies
- working with practitioners to train them
- identifying and assisting in removing key strategic blockages to successful prosecutions within the court system
“Despite the positive steps that have been taken, both at home and overseas, I recognise that there is much to do in combating human trafficking and slavery.”
Conclusion
“To conclude, I would like to reiterate the point I have made before: human trafficking is a global issue. The UK takes the issue seriously and uses the international framework to properly create and apply domestic legislation. We cannot operate in a vacuum, either domestically (which is why we have the IDMG) nor internationally (which is why the CPS works hard to support other jurisdictions).”
“There are areas which require further attention and which we are addressing through the UK strategy.
“Firstly - prevention. Demand for cheap labour, cheap goods and services, and demand for prostitution or sexual services continues to provide a thriving environment for organised criminals to operate in. Tackling demand is therefore vital in the fight against human trafficking and is one of the most challenging areas for the UK to address.
“As I have said, prosecutors work with source countries to improve the ability of overseas investigators and prosecutors in case building and prosecution to disrupt human trafficking at source. In 2010 an offence which criminalises those who pay for the sexual services of a prostitute subjected to force was introduced to try and curb demand. In relation to labour exploitation, we work closely with the Gangmasters Licensing Authority and large national hotel groups combat forced labour, trafficking and exploitation in the UK hospitality industry.
“Secondly - ensuring that victims are identified as early as possible. This is especially hard where the issues faced by victims in reporting offences are as complex as those that I described earlier. Under-reporting impacts on our ability to identify the true scale of trafficking in the UK and stops us from being able to help all those who have been trafficked to the UK. It is therefore critical that every relevant agency is able to contribute to the identification, protection and support of potential trafficking victims.
“This is why we have made training and guidance available for front line staff across the widest range of agencies.
“It is crucial that our continuing aim is to ensure there are no safe havens for traffickers and that their victims are fully and properly protected. The government is committed to seeing that this is achieved.”