In the Dock

The trafficking definition serves to encapsulate the full extent of the offending instead of separating itinto its constituent offences, as the trafficking process can be disaggregated into many differentoffences including fraud, facilitating illegal migration, sexual or physical abuse, assault and blackmail.As such, national laws should attach significant penalties to trafficking, reflecting its seriousness andextent, and acknowledging that trafficking is an abuse of the trafficked person’s human rights. Inessence, legislation gives all States Parties the ability to define the phenomenon in its totality. Anyresulting legislation should form the bedrock of anti-trafficking efforts and should be accessible as aneffective tool to investigate and prosecute trafficking.Furthermore, the Convention’s Explanatory Report highlights the importance of a universal definitionand its uniform application across States to reflect the sometime transnational nature of trafficking. 79This provision also prevents countries that lack a strong anti-trafficking legislative frameworkbecoming safe havens for traffickers. 80Anti-trafficking legislation in England and WalesThe anti-trafficking legislation in England and Wales has been developed gradually, with several antitraffickinglaws introduced in stages in the past 12 years. The legislation differs slightly in NorthernIreland and Scotland (see Chapter 10). However, it is modelled on the offences discussed in thischapter.Sexual Offences Act 2003 (SOA)The SOA came into force on 1 May 2004 replacing the “stop gap measure” contained in s.145 of theNationality, Immigration and Asylum Act 2002. Until May 2012, trafficking for sexual exploitationoffences were located in ss.57-59 of the SOA, which anchors the concept of sexual exploitation withinthe UK’s previously established sexual offences framework. Therefore, sexual exploitation coverssome 50 offences such as rape, sexual assault, causing a person to engage in sexual activity withoutconsent, soliciting, causing or inciting prostitution for gain and controlling prostitution. 81The Protection of Freedoms Act (PFA) 2012, enacted to bring UK trafficking laws into line with theprovisions of Article 10 of the Directive, consolidated ss.57-59 into one section by inserting s.59A (1),(2), and (3) into the SOA, but did not alter the wording of the offence. The maximum sentence forthese offences is 14 years’ imprisonment. The actual wording of the offences is reproduced in Annex Ibut paraphrased as:The SOA trafficking “act” is defined as the intentional arrangement or facilitation of: a person’s arrivalor entry into the UK; travel within the UK; or the departure out of the UK, where the defendantcommits an intentional act against that person which amounts to a “relevant” offence stipulated in theSOA, which is committed after their arrival or entry into the UK (s.57), during or after the journey withinthe UK(s.58) or after their departure out of the UK (s.59).If the defendant does not perpetrate the offence but believes that someone else is likely to, this alsocreates criminal liability under the SOA. Furthermore, the phrase “which if done will involve thecommission of a relevant offence” can be interpreted as having an intention to commit the act, but itmay not actually take place, therefore corresponding to the Convention’s definition of trafficking wherethere is an intention to exploit. 82 The relevant offence may be committed or intended to be committedin the UK or any other part in the world. PFA also extended the extraterritorial jurisdiction to UK79Explanatory Report to the European Convention, supra note 15, para. 216.80Gallagher, A, The International Law of Human Trafficking (2010), p.371.81Such relevant offences are further expanded through section 60(e) which states: anything done outside England and Wales andNorthern Ireland which is not an offence within any of paragraphs (a) to (d) but would be if done in England and Wales or NorthernIreland.82Explanatory Report to the European Convention, supra note 15, para. 87.28