In the Dock

Forced or compulsory labourThe definition of forced or compulsory labour, as reproduced in Article 4 of the ECHR is to beintentionally read with the International Labour Organization (ILO) convention concerning Forced orCompulsory Labour (No.29), which defines forced or compulsory labour as “all work or service whichis exacted from any person under the menace of any penalty and for which the said person has notoffered himself voluntarily”. Forced labour may also be distinguished from labour exploitation bylooking at the ability of the worker to exit the situation, which the ILO describes as the ability to“revoke a labour agreement without losing any rights or privileges, including in this, the right topromised wages”. 120 If the worker cannot exit their situation, without losing owed wages or beingdenounced to the authorities, this would be considered forced labour. If the worker is free to leavewithout the loss of wages or other privileges, this is not classed as forced labour. 121Both the CPS Guidance 122 and the Ministry of Justice Circular, 123 which accompanied the newoffences states that the s.71 offence requires an element of coercion or deception. Though theGuidance and Circular go on to replicate the list of non-exhaustive indicators these concepts are notfleshed out and therefore are not adequately understood. Indeed in R v John and Josie Connors theCPS guidance, which includes ILO indicators, 124 was said to have no legal standing and therefore theevidence collated against these indicators was deemed not material to the case. Instead the courtlooked to relevant ECtHR jurisprudence for guidance.Application of definitions in practiceThe research established that erroneous interpretation of the constituent elements of the traffickingdefinition and UK anti-trafficking laws (particularly servitude and forced labour) by some CJS actorshas hampered the identification of trafficked persons (see Chapters 4 and 5). Such misinterpretationswere found to inhibit the ability of the police to address trafficking. Most concerning, examples werepresented to the ATMG relating to a misunderstood definition in terms of a trafficked person’sconsent. The international binding definition is clear that any initial consent of a person is void if s/heis a victim of trafficking. The ATMG was presented with cases where the trafficked person agreed totravel to the UK, not knowing about the real purpose of their trip. Their initial consent was perceivedas complicity in their exploitation, despite the established deception, use of threats and long workinghours for little or no recompense once in the UK. An incorrect view seems to persist that a traffickedperson needs to be abducted or forced to come to the UK against their will.Furthermore, when the trafficking network chain is protracted and complex, it was reported that thepolice have difficulties in applying the definition and establishing where liability should fall. Thesecomplex networks - from arranger to exploiter - which often include several intermediaries willinevitably be difficult for trafficked persons to understand including holding the belief that some ofthem acted, or are still acting, in their best interests. Therefore it may be difficult or impossible fortrafficked persons to provide a coherent account of the chain, which can be exacerbated by thepsychological impact of their experiences. 125 In addition, service providers reported confusion for thepolice when identifying trafficking where the exploiter was the trafficked person’s partner or a familymember.120Andrees, B. Forced labour and trafficking in Europe: how people are trapped in, live through and come out (ILO, 2008) p. 2.Available at: www.ilo.org/wcmsp5/groups/public/@ed_norm/@declaration/documents/publication/wcms_090548.pdf [last accessed 12March 2012].121Ibid., p. 7.122CPS legal guidance, supra note 107.123Ministry of Justice, Circular 2010/07 Slavery, servitude and forced or compulsory labour: Implementation of section 71 of theCoroners and Justice Act 2009 (Criminal Law Policy Unit, 19 March 2010). Available at: www.library.npia.police.uk/docs/moj/circular-2010-07-coroners-justice-act-s71.pdf [last accessed 15 May 2013].124ILO, ILO indicators of Forced Labour (1 October 2012). Available at:www.ilo.org/sapfl/Informationresources/Factsheetsandbrochures/WCMS_203832/lang--en/index.htm [last accessed 14 March 2013]125Herlily et al, ‘Asylum claims and memory of trauma: sharing our knowledge’ The British Journal of Psychiatry Vol.191: 3-4 (2007).35