In the Dock

moved within the UK for exploitation. In sum, these misconceptions may, in part, be due to the CPSguidance remaining silent on the interpretation of the term “within”.Trafficking as movement?The UK’s interpretation of the Convention and the Directive’s definition is predisposed to tyingtrafficking to movement which is demonstrated by the use of the words arrival, entry, travel anddeparture. The focus on movement suggests that the period, some nine years ago, in which both theSOA and AI(TC)A were enacted, reflects the UK’s understanding of trafficking at that time. However,our understanding of trafficking has evolved and knowledge of the trafficking definition and thislegislation has become more sophisticated.Unfortunately the other acts contained in the international trafficking definition, 100 such as receiving orharbouring the trafficked person have been discounted. Including these in the UK’s traffickinglegislation may have served, where evidence is lacking from other countries, to show the continualintention to exploit, from the facilitator or assister of movement to incorporate the final person in thenetwork chain who ultimately exploits the trafficked person’s labour or services. The “harbouring andreceipt of persons” in the Convention and Directive’s definition operates to bring not just the process(recruitment, transportation, transfer) but also the end situation or product of trafficking within thescope of the definition. 101 These terms function to widen the reach of the definition to extend criminalliability to, “not just recruiters, brokers, and transporters but also owners and managers, supervisors,and controllers of any place of exploitation such as brothels, farms, factories, medical facilities, orhouseholds.” 102The use of “harbouring or reception of persons” within domestic legislation is supported by theEuropean Commission: “interpretations of the Trafficking Protocol that concentrate on the process ofbringing a person into exploitation, rather than the final forced exploitation that they face, are in theirnature flawed and limited. There is serious deficiency in the concept of trafficking if it focuses solely onthe process of bringing another person into a situation of exploitation and does not address the use offorced labour or services … where this has not been preceded by the other elements stipulated in thedefinition.” 103The current trafficking definition can be said to contain a two-pronged test, firstly requiring movementwhich acts as a filter before the actual exploitation is determined; however, constructing the traffickingdefinition as such was not the intention of the drafters of the two European instruments. Moreover,there are concerns that this confusion may result in poor NRM referrals, where First Responders mayfocus their decisions too heavily on the aspect of movement and therefore this may equate to fewerreferrals.Coroners and Justice Act (CJA) 2009S.71 of the CJA entered into force on 6 April 2010 and embeds into UK domestic law the provisions ofArticle 4 of the ECHR. It was introduced to reflect the occurrence of forced labour outside of thetrafficking framework and bringing the UK in line with the Siliadin v France judgement, 104 whereFrance was criticised for the lack of a criminal offence of forced labour and servitude. S.71 reads:“(1) (a) D holds another person in slavery or servitude and the circumstances are such that D knowsor ought to know that the person is so held, or100The Palermo Protocol, European Convention and EU Directive.101Gallagher, supra note 80, p.30.102Ibid.103European Commission, Report of the Experts Group on Trafficking in Human Beings (December 2004), p. 46.104Siliadin v France App no 73316/01 (ECHR, 26 July 2005).32