In the Dock

Chapter 2: UK Anti-Trafficking LegislationThe chapter outlines the current national legislative framework criminalising trafficking 69 and relatedexploitation such as slavery, servitude, forced and compulsory labour within England and Wales. TheUK’s legislation is rooted in the UN Palermo Protocol 2000 definition 70 which was reproduced in theCouncil of Europe Trafficking Convention (the Convention) and the EU Trafficking Directive 2011/36(the Directive).The chapter examines:• Obligations to criminalise trafficking as set out in the Convention and Directive;• The interpretation of the obligations by the UK in the Sexual Offences Act (SOA) 2003, and theAsylum and Immigration (Treatment of Claimants, etc.) Act (AI(TC)A) 2004;• The additional offences of holding a person in slavery, servitude, forced or compulsory labourcodified in the Coroners and Justice Act 2009;• Arguments for consolidating these offences into one anti-trafficking act.Convention and Directive obligationsArticle 18 of the Convention and Article 2 of the Directive oblige States to establish offences thatpertain to the trafficking definition which both derive historically from the UN Palermo Protocol 2000. 71These obligations extend to include offences of aiding and abetting, assistance and inciting; 72 and allthe offences must allow for liability of both natural and legal persons (companies). 73 These obligationsdo not require States to integrate the definition verbatim into domestic law. However, interpretation ofthe concepts should be in keeping with the principles of the Convention. 74 The Convention andDirective trafficking definition simplified constitutes three elements - the act, means and purpose:“The recruitment, transportation, transfer, harbouring or reception of persons, including the exchange ortransfer of control over those persons (the act), by means of the threat or use of force or other forms ofcoercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of thegiving or receiving of payments or benefits to achieve the consent of a person having control over anotherperson (the means), for the purpose of exploitation. Exploitation shall include, at a minimum, theexploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services,slavery or practices similar to slavery, servitude or the removal of organs (the purpose)”. 75For the purposes of the Convention, if the individual’s exploitation has yet to occur but is intended andthe act and means are present, trafficking has been ascertained and an offence has beencommitted. 76 In addition, Directive Article 2.3 expands the purposes to explicitly include theexploitation for criminal activities such as “inter alia, pick-pocketing, shop-lifting, drug trafficking andother similar activities which are subject to penalties and imply financial gain”. In addition, begging isto be understood as forced labour. The Directive’s Recital, 77 though not binding on States, alsoincludes “other behaviour such as illegal adoption or forced marriage [insofar] as they fulfil theconstitutive elements of trafficking in human beings”. 7869A slightly different legislative framework exists in Scotland and Northern Ireland which is discussed in Chapter 10.70It was specifically enacted to implement the UK’s commitment to the UN Palermo protocol and EU Framework Decision onTrafficking (Protecting the public, strengthening protection against sex offenders and reforming the law on sexual offences Cmd 5668[online] Available at www.archive2.official-documents.co.uk/document/cm56/5668/5668.pdf [last accessed November 2012].71Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children supplementing the United NationsConvention against Transnational Organized Crime 2000.72European Convention, supra note 15, Article 21.73Ibid., supra note 15, Article 22.74Explanatory Report to the European Convention, supra note 15, para.71.75With the Convention the trafficking definition is found in Article 4.a and in the Directive it can be found in Article 2.1.76Explanatory Report to the European Convention, supra note 15, para.87.77Recitals are the part of the act which contains the statement of reasons for the act; they are placed between the citations and theenacting terms. The statement of reasons begins with the word ‘Whereas:’ and continues with numbered points comprising one ormore complete sentences. It uses non-mandatory language and must not be capable of confusion with the enacting term.78The Recital to the EU Directive, supra note 16, para.11.27