Human trafficking: Forced Labour & Slavery: comparative analysis of the UK and Poland.

Transcription

1 Human trafficking: Forced Labour & Slavery: comparative analysis of the UK and Poland. MA: Transnational Crime, Faculty of Arts, Law and Social Science 2014 SID: Agnieszka Strykier

2 Abstract: Human trafficking, forced labour and slavery are phenomenons that accompany the history of the world from ancient times until the present day. It is currently the fastest growing transnational crime. In fact, the problem continues to grow and affects not only the UK and Poland but also all European countries. Since the expansion of the EU, free movement has increased the ability for perpetrators to be involved in trafficking humans. Both countries have ratified main European conventions, such as the Palermo Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, the Slavery Convention, The Council of Europe Convention against trafficking in human beings, and many more. Those signed conventions resulted in legal obligations to enforce and included rights to investigate all forms of human trafficking including forced labour and slavery. New paragraph Even though both countries are obligated by the EU to enforce certain laws; they do differ. Main laws concerning human trafficking, forced labour and slavery in the UK are: Sec. 71 of the Coroners and Justice Act 2009, The Immigration and Asylum (Treatment of Claims etc) Act 2004 and Sexual Offences Act In Poland there is still a lack of separate provisions that would penalize forced labour; nonetheless it is included as one of the forms of human trafficking in Article 253 of the Penal Code. Slavery and Slave Trade are incorporated in Article 8 and Article 115 of Penal Code. A wide range of different organisations have been put forward in order to better tackle these problems. The co- operation between them however still remains a main concern. Some improvements can be noticed i.e. accreditation of liaison officers in both countries, which lead to direct exchange of information. It was emphasized that the most obvious barrier/obstacle is language, diversities of the legal systems and principles of operations. Victims protection and support systems are still in need of greater improvements. There is still too little research focused on the problem, and the scale of forced labour. The UK government has proved to be committed to tackling slavery by establishing National Referral Mechanisms and putting forward the Modern Slavery Bill. However, this has been greatly criticized for its lack of adequate victims protection and support systems.

3 Table of Contents Acknowledgments... 4 Introduction:... 5 The importance of the problem:... 5 Defining Human Trafficking:... 6 Slavery:... 7 Forced Labour:... 9 Methodology: Chapter one: Comparison of legal context in the UK and Poland International law:...18 National Law:...23 Chapter 2: Victims and Institutions. Comparison between the UK and Poland Victims:...33 Institutions dealing with Human Trafficking:...38 Chapter 3: Analysis the UK and Poland Importance of cooperation:...47 Victims protection and support system:...54 Legal context:...56 Conclusions and recommendations: Bibliography:... 63

4 Acknowledgments There are a number of people that I would like to thank. Firstly my supervisor, Dr Anna Markovska, thank you for your engagement through the learning process, also for your faith in me and your patience, this meant a lot to me. Furthermore, I would like to express my very great appreciation to Mr. Darry Dixon from Gangmasters Licensing Authority for his valuable and constructive suggestions during the planning and development of this research work. His willingness to give his time and support so generously has been very much appreciated. I am also grateful to many people who gave their time to answer my questions; in particular Mr Juliusz Karpinski and Mr Lukasz Wieczorek. I would like to thank my loved ones, who have supported me throughout the entire process. I can say that I would not be where I am today if it wasn t for your support and encouragement.

5 Introduction: The importance of the problem: The hidden and illegal nature of human trafficking makes it truly hard to gather meaningful real statistics and measure the scale of the problem. People trafficking is the fastest growing means by which people are enslaved, the fastest growing international crime, and one of the largest sources of income for organised crime (UNODC, 2014). At least 20.9 million people are victims of forced labour worldwide. While it is difficult to establish a precise amount, conservative 2012 research estimated trafficking victims as comprising some 44 per cent of this figure (ILO, 2012). The main aim of this work is to explore the issues of human trafficking, forced labour and slavery. This will specifically analyse the adaptation of legislation and compare the position of the governments by looking at the available data held at the Home Office in the UK and the Ministry of the Interior in Poland websites. This work will explore the issues of co-operation between two jurisdictions, and attempt to identify good practices and obstacles. It will begin with brief explanations of human trafficking, slavery and forced labour; then move towards

6 a critical analyses of each country s laws and legislations; this will be looked at both internationally and nationally. It will also try to identify the victims and compare them within both countries by setting the profile in which victims are more likely to be found. In addition to this, it will concentrate on the different types of institutions that deal with human trafficking matters. This work tried to present available information about forced labour, the main objectives were to gain a better understanding of this problem and the cooperation between two countries; which is not easy when considering social, cultural and the legal differences between them. Defining Human Trafficking: Human trafficking first came to the attention of the International community in the late 1980 s. By the beginning of the 21st century it had been recognized as a serious global problem that needed global responses. The United Nations responded in 2000 with the publication of the UN Convention against Transnational Organized Crime and its Supplementary Protocols. The Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially women and children. United Nations 2000 sited the first definition of human trafficking that is still the point of reference for defining human trafficking today. The international community has genuinely accepted this definition, nevertheless some member states have chosen to modify the definition or create a definition similar to this.

7 The Palermo Protocol provides the first internationally recognised definition of human trafficking: "Trafficking in persons shall mean the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or removal of organs." (UNHR, 2014). There are many forms of human trafficking, some of which are like a modern form of slavery; sexual exploitation, enforced labour, domestic servitude, organ trafficking, internal trafficking (Radecki, 2005). There are many ways that victims of human trafficking become trafficked (economic factors, family needs, debt bondage, religious threats, war/civil upheaval, and many more), but unfortunately in some circumstances, they can actually know their traffickers and be complicit in their transit (Gorowski, 2007). Slavery: It ought to concern every person, because it is a debasement of our common humanity. It ought to concern every community, because it tears at our social

8 fabric. It ought to concern every business, because it distorts markets. It ought to concern every nation, because it endangers public health and fuels violence and organized crime. I m talking about the injustice, the outrage, of human trafficking, which must be called by its true name modern slavery. Barack Obama, President of the United States, September 2012 (Speech by President of the United States, Barack Obama, Remarks by the President to the Clinton Global Initiative, 25 September 2012) When we say slavery what comes to mind is Africans being transported to different countries, mainly America; forced to work in sugar plantations and being held in domestic slavery. That is the picture that stayed in our heads from the 19 th century. That is what we see in old movies without realizing that this is happening now, and not only in America, but globally. The 1948 Universal Declaration of Human Rights (UN, 2014) and the 1956 UN Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery are the crucial international rights and freedoms for everyone. This includes Article 4, which states that: No one shall be held in slavery or servitude; slavery and the slave trade shall be prohibited in all there forms (Universal Declaration of Human Rights, 1948). Slavery is defined by the following international conventions: The Slavery Convention (1926) says that slavery is the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised (UNHR, 2014). Hence, slavery is a state of which a person is treated like an object, where a slave is the object not the subject of law. Slavery

9 is very often regarded as an equivalent to forced labour; or can be inseparable (which is explained below). The main difference is that slavery is the state of being owned and being treated like an object, whereas victims of forced labour, although can be treated like objects, it is the element of enforcement/force and whom they belong to, (if at all) that is different. That is why slavery is considered as one of the forms of forced labour (ILO, 2006, p.5). In addition, Supplementary Convention on the Abolition of Slavery, The Slave Trade, and Institutions and Practices Similar to Slavery, 1956, lists modern forms of slavery: Debt bondage, serfdom, forced marriage and the delivery of a child for the exploitation of that child, are all slavery like practices and require criminalisation and abolishment (Anti-slavery, 2014). Forced Labour: The main term used in this paper is forced labour ; therefore it should be explained in more detail. Labour is usually defined as a deliberate and planned human action designed to create and produce specific materials or cultural goods, that are the basis and condition of the existence and development of human society (Bulenda, 2006 p. 292). In other words it can be understood as an occupation rendered in conditions of subordination for which people are paid (Florek & Zielinski, 2007, p.2). Forced can be explained as exerting a pressure or influence on another person against their will (Bulenda, 2006, p.293). The Forced Labour Convention, 1930 (No. 29), for the purpose of international law states that all work or service which is exacted from any person under the

10 menace of any penalty, and for which the said person has not offered himself voluntarily (Article 2(1)) (ILO, 2012b). This definition uses concise terms that should be considered more in depth. All work or service suggests any type of employment, work or occupation. Furthermore the legality of employment or employment relationships are not of importance in relation to forced labour (Andrees, 2008 p.4). Any person implies that both children and adults can be subjected to forced labour, whether the victim is a citizen of the country in which he/she was subjected to or not (ILO, 2008, p.8). The menace of any penalty can refer to penal sanctions and different forms of coercion, counting the threat to use force, punishable threat, withholding identity documents, restricting freedom and failure to provide with an adequate salary (Andrees, 2008, p.4). This definition states that the person has not offered himself voluntarily for the work or service, which suggests that this can apply to people being forced to work, and also to people who are misled by their employers. This can involve deception about the conditions of pay, work and employment and are unable to revoke the contract or to resign (Ibidem, p.4). Forced labour therefore can be understood as any work or service which people are enforced to do, under the threat of some form of punishment. Almost all slavery practices, including trafficking in human beings and bonded labour, contain some element of forced labour (Anti-slavery, 2014). Forced labour affects millions of men, women and children around the world and is most commonly found in labour intensive and/or under-regulated industries, such as: Agriculture and fishing Domestic work

11 Construction, mining, quarrying and brick kilns Manufacturing, processing and packaging Prostitution and sexual exploitation Market trading and illegal activities (Anti-slavery, 2014). Some more detailed ILO's statistics: Forced labour is still considered to be a wide issue within our current society. In the private economy 18.7 million people (90%) are induced into forced labour, exploited by individuals or enterprises. This figure is then split into 4.5 million (22%), which are forced into sexual exploitation and the other 14.2 (68%) million in labour exploitation, in activities such as agriculture, construction, domestic work and manufacturing. It was estimated that women and girls constitute 55% (11.4 million) of victims of forced labor, compared with 45% (9.5 million) of men and boys. Adults are more affected than children 74% (15.4 million) of victims fall into the age group of 18 years and above, whereas children are 26% of the total (or 5.5 million child victims). 2.2 million (10%) work in state-imposed forms of forced labour, for example in prisons under conditions, which violates ILO standards, or in work imposed by the state military or by rebel armed forces (ILO, 2012). Although human trafficking, forced labour and slavery are formally recognised as separate acts, the conceptual ranges of forced labour (including trafficking and slavery) can overlap. It is easy to imagine that cases of forced labour can be

12 treated as slavery. When looking at the definition of forced labour all work or service which is exacted from any person it can easily be established that this part refers to the status or condition of a person over whom any or all of the rights ( ) are exercised (definition of slavery). It can therefore be concluded that forced labour does comprise elements in all cases of slavery, taking someone rights to decide on their work preference and instead deciding for them. It should be noted that from a logical point of view it could be argued that the relationship between those two concepts can be considered in a reverse configuration. However, not in all cases, the treatment in this way (slavery) does not necessarily entail the obligation to provide any work. If we look at the human trafficking it also can be argued that part of slavery will always be there. However, forced labour, even though it is included in the definition of human trafficking as part of exploitation, is not always as the result of trafficking as: Trafficking in persons shall mean the recruitment, transportation, transfer, harbouring or receipt of persons. Methodology: This work aims to explore the issue of human trafficking, forced labor and slavery in Poland and the UK. The work will compare the laws and organizations on human trafficking, forced labour and slavery in both countries and will explore the issue of co-operation between the two countries. The purpose of this

13 work was to grasp a better understanding of the issues of forced labour and slavery, to compare the laws of two countries, the legislations and co-operation between two jurisdictions and respond to the problem. There are two ways of dealing with the issues. The first was to approach the problem by doing primary research. In order to guarantee a higher response rate per question and a more accurate and detailed response, qualitative methods such as interviews and focus groups, are sometimes regarded as the best social research approach (Harrell and Bradley, 2009). In this sense, using a qualitative method allows for a first-hand interaction with the participants, and gives them more freedom to express themselves. Qualitative interview methods, which can be face-to-face in-depth interviews, seeks to encourage learning about individual experiences and perspectives on a given set of issues (DiCicco-Bloom & Crabtree, 2006 p.318). However, this paper used secondary data analysis after consideration of some disadvantages of qualitative research methods. The critique of this method was provided in Bryman s book (2006) as Problems of generalization. It was stated that when interviews are conducted within a small number of people it seems to be impossible to generalize the findings, How can just one or two cases be representative of all cases? (Bryman, 2005, p.285). The writer did consider using qualitative methods, but given the time and finance constrains it was unachievable to do so. This work aims to analyse secondary data Analysis of secondary data, where secondary data can include any data that is

14 examined to answer a research question other than the question(s) for which the data were initially collected (Vartanian, 2010, p.3), was chosen in this case. Secondary data analysis is the use of data that was already collected by someone else for some other purpose. In this case, the researcher establishes questions that are addressed through the analysis of a data set that they were not involved in gathering. The data was not collected to answer the researcher s specific research questions and was instead collected for another purpose. The same data collection can therefore be a primary data set to one researcher and a secondary data set to a different researcher (Boslaugh, 2007). Secondary data analysis was used in this work. The first major advantage of using these methods was saving time and money, because someone else has already collected the data and most probably cleaned and analyzed it. This method was particularly useful while investigating the laws and legislations in both countries. Another major advantage of using secondary data is the extent of any data available, such as numerous studies at a national scale, Individual researchers would have difficulties in collecting such data and this has already been conducted (Bishop, 2007). Many of the same data sets have been collected from the same population over several different time periods. This allows writers to look at tendencies and changes of phenomena over time (Boslaugh, 2007). However, there are some disadvantages of this method. A major disadvantage of using secondary data is that it may not respond the researcher s specific research questions or include specific information that the researcher would like to have. Also, it may not have been collected in the specific geographic region required, or the detailed population that the researcher is interested in

15 studying (Corti and Bishop, 2005). Since the researcher did not collect the data, he/she has no control over what is contained in the data set available to them. Another difficulty is that the variables may have been defined differently than the researcher would have chosen. For example, age may have been collected in categories rather than as a continuous variable, etc. (696 Research Methods). In this paper no errors have occurred whilst looking at available data. The researcher has been in contact with some organizations (in both countries) in order to gather better statistics and first hand information. Some of the contacts the researcher has been in dialogue with are: Darryl Dixon (Director of Strategy Gang Masters Licensing Authority), Juliusz Karpinski (Senior expert, Unit against trafficking in human being) and Lukasz Wieczorek (Human trafficking studies centre of Warsaw University, Cooperator with the International Labour organization in Geneva and with HEUNI). Chapter one: Comparison of legal context in the UK and Poland

16 This chapter will look at the legal context in the UK and Poland. It will start with a brief description of human trafficking, forced labour and slavery in both countries; mainly looking at how those problems started. Secondly it will look at European legislations that have been signed and ratified and what obligations were enforced through them. Furthermore it will look more deeply at the national laws and how human trafficking, forced labour and slavery are punishable within the countries national laws, in order to establish some obvious differences. Until recently, human trafficking and forced labour were not considered as an issue particularly relevant to the United Kingdom and was mainly associated with conditions such as slavery in poor countries (Geddes et al., 2013). It was not until 2003 that specific trafficking offences were recognised in the UK; instead other offences were applied i.e. kidnapping, facilitation of illegal entry and false imprisonment (Lipscombe and Beard, 2014). The scale of trafficking in the UK (and internationally) is a subject of great debate, however what can be agreed is that known cases of trafficking constitute only a small percentage of the assumed number (The Anti Trafficking Monitoring Group, 2012) as a reason of the hidden nature of this phenomenon (Serious Organised Crime Agency, 2009; Jackson et al., 2010). It was estimated that between April 2009 and June 2011, 1,664 trafficked persons were referred to the UK s identification process, the National Referral Mechanism (it is a process set up by the Government to identify and support victims of human trafficking). Of these victims, 565 were officially recognised as trafficked. Over two-thirds were women, children constituted 26% (438) and 160 of them were recognised as trafficked (NRM from 2009 to 2011).

17 The majority of the literature on human trafficking identifies sexual exploitation, forced labour, and domestic servitude as the main purposes for which adults and children are trafficked into the UK (Home Office, 2012; The Anti Trafficking Monitoring Group, 2012; SOCA, 2009). Also, people are being trafficked into the UK for illegal activities (Anti Slavery International et al., 2006), as the UK serves as a destination country for foreigners from South Eastern and Central Europe, Africa, Asia, Latin America (Home Office, 2012). It was concluded that victims from Great Britain are trafficked into Northern Ireland (Dudley, 2006). It is believed that many minors from the UK are trafficked within the country. The UK may as well serve as a transit country (not much information is available), however it operates primarily as a destination country (Cherti et al., 2012). In Poland, the migration problems started after 1989 following the system transformation. In the past foreigners were not very frequent, however the situation in Poland changed fundamentally at the beginning of the nineties. The improvement of the visa regime, opening of borders and more general freedoms improved the movements of people in Eastern Europe in all directions. Citizens of bordering countries such as, mainly the Ukraine, Belarus and Russia, the Baltic countries, and predominantly Lithuania along with inhabitants of Balkan countries mostly Romania and Bulgaria, started to arrive more often in Poland (Lasocik and Wieczorek, 2011, p.171). For the first few years after the changes took place, Polish responses were relatively negative. Polish people were not ready/prepared for sharing their country with newcomers. Media also played an important role in this by implying that foreigners were the perpetrators of most serious crimes. With time this perception has changed and Poles started to

18 recognise the positives in the presence of migrants, however there was no strategy of dealing with the growing number of different populations arriving in Poland (two nationalities: Vietnamese and Armenians started to play an important role in the Polish labour market) (Dabrowski, 2012). The situation of migrants in Poland has changed drastically after Poland joined the Schengen system; this new situation has forced the government to create a coherent migration policy and the structure of protection. The authorities however, did not treat this issue as particularly important. There was a clear negligence and lack of interest and sensitivity on the issue of the ill treatment of foreigners; de facto it was not until 2007 when the National Labour Inspectorate was established. Another essential factor that must not be forgotten was Poland joining the European Union in 2004, which opened the boarders even further and caused a massive outflow of the work force. It was estimated that in that period of time, between one and a half million and two million Polish people emigrated to work into other European countries, who were mainly English speaking (Lasocik and Wieczorek, 2011). Poland serves as the country of origin of victims (Polish victims are being exported to most European countries: Germany, Netherlands, Belgium, Spain, Greece, Italy, United Kingdom and others). It also serves as a target (mainly for the victims from behind the eastern border - from Belarus, Bulgaria, Romania, Ukraine and others) and transit (through Polish territory trail and trafficking, mainly from East to West) (Lasocik & Wieczorek, 2011). International law:

19 United Kingdom: The United Kingdom has ratified the main European Conventions, which resulted in the UK s legal obligation to enforce, including the rights to investigate all forms of forced labour. As well as the ILO Forced Labour Convention No. 29, the European Convention on Human Rights and the UN Trafficking Protocol. In 2007 the UK ratified the Council of European Convention on Action Against Trafficking in Human Beings. This has established the obligation to prevent trafficking, investigate and prosecute perpetrators, support victims and to promote international co-operation (Geddes et al., 2013). Article 3 of the 2004 Palermo Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime set out the following definition of trafficking: (a) Trafficking in persons shall mean the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation 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; (b) The consent of a victim of trafficking in persons to the intended exploitation set forth in subparagraph (a) of this article shall be irrelevant where any of the means set forth in subparagraph (a) have been used;

20 (c) The recruitment, transportation, transfer, harbouring or receipt of a child for the purpose of exploitation shall be considered trafficking in persons even if this does not involve any of the means set forth in subparagraph (a) of this article; (d) Child shall mean any person under eighteen years of age (United Nations Office on Drugs and Crime, 2004). This definition includes the act, the means and the purpose involved in trafficking in persons and exploiting them. The consent of the victim who has been trafficked becomes irrelevant where any of the listed means are used to exploit someone. In other words: Trafficking involves ongoing exploitation and even if the person might have consented at some stage, this consent is meaningless, because of the deception and coercion involved (Craig et al., 2007, p.19). The Council of Europe Convention on Action against Trafficking in Human Beings was agreed in 2005, in order to help Member States to develop a coherent policy against human trafficking (Council of Europe, 2005). The UK ratified the Convention in 2008 and introduced this in April It provides the guidance on prevention, co-operation and national co-ordination between different agencies, protection and assistance to victims and an obligation to criminalise and penalize human trafficking. In particular the Convention required the introduction of measures to identify and support victims, which led to the establishment of the UK s National Referral Mechanism (NRM) (Centre for Social Justice, 2013, p. 30). Article 2 of the International Labour Organization (ILO) Convention No. 29 (1930) define forced labour as: all work or service that is exacted from any

21 person under the menace of any penalty and for which the said person has not offered himself voluntarily. In addition, forced labour is also a breach of fundamental human rights. The Universal Declaration of Human Rights forbids holding someone in slavery or servitude (Geddes et al., 2013). The European Convention on Human Rights also prohibits holding someone in slavery or servitude or requiring them to perform forced or compulsory labour (ILO, 2012a). The ILO definition of forced labour points out two critical measurements, mainly coercion and the lack of freedom of choice. However, the lack of a firm understanding of how these dimensions are constituted and how they may interact remains problematic in the context of forced labour used for private economic gain. Poland: Poland is a democratic state of law, therefore is a party to practically all international conventions regarding human trafficking, slavery and forced labour at regional and global levels (Lasocik and Wieczorek, 2011). The Slavery Convention signed in September 1926 (UNHR, 2014), which defines slave trade and slavery. It also addresses (Article 5) that forced labour can only be applied in certain situations; the International Covenant on Civil and Political Rights from December 1966 (UNHR, 2014), in which, Article 3 clause 3 prohibits compulsory/forced work; the Convention on the rights of the Child signed in 1989 (UNHR, 2014) that force the obligation on the state to protect children from any exploitation and any work that could be harmful to them (UNHR, 2014). The (European) Convention for Protection of Human Rights and

22 Fundamental Freedoms signed and ratified in 1950, which determines the issue of forced labour; particularly Article 4 of this Convention prohibits slavery and forced/compulsory work (Council of Europe, 2014). The Charter of Fundamental Rights of the European Union is gaining more significance in the European market as it protects the performer of work, it bans forced labour, Article 5 of this Charter clearly proclaims that no one should be required to perform forced or compulsory work. It is also acknowledged (Article 15) that everyone has the right to engage freely in chosen work (CFREU, 2000). Poland also is morally bound by such documents as: the Universal Declaration of Human Rights from 1948, that states in Article 4 that no one should be held in slavery or servitude and that slave trade should be prohibited. Also, in Article 23, contains provisions that everyone has the right to work, to free choice of employment, to just and favourable conditions of work and to protection against unemployment (UN, 2014). Both Poland and the UK have signed and implemented almost all important conventions. Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others is a resolution of the UN General Assembly. The preamble states: "Whereas prostitution and the accompanying evil of the traffic in persons for the purpose of prostitution are incompatible with the dignity and worth of the human person and endanger the welfare of the individual, the family and the community". Although the definition was comprehensively narrowed down to the idea that human trafficking is solely for purposes of prostitution, it was indicated that

23 crime is closely connected to the phenomenon of migration. Therefore it was concluded that migrants should be given particular protection and control in places of residence and during their travels (UNHR, 2014). Also, Protocol against the Smuggling of Migrants by Land, Sea and Air, supplementing the United Nations Convention against Transnational Organized Crime, has defined types of offenses committed in connection with the exploitation of people for forced labour (i.e. forgery travel documents or identity document and smuggling of migrants) and pointed to the actions of a preventive nature (state commitment to strengthening of border controls and to ensure the quality of passports) (UNODC, 2008). The Treaty on European Union of 1992, in which it was pointed out that there is a need to conduct police co-operation to prevent and combat organized crime (UNODC, 2008). National Law: United Kingdom: Various International legislations and conventions has lead the United Kingdom to develop national legislation criminalising trafficking, including forced labour linked with trafficking, as well as servitude or forced labour. Human trafficking offences are not included within one single Act. The UK Human Trafficking Centre, part of the Organised Crime Command in the National Crime Agency, provides the definition of human trafficking: Human trafficking is the movement of a person from one place to another into conditions of exploitation, using deception, coercion, the abuse of power or the abuse of someone s vulnerability. It is possible to be a victim of trafficking even if

24 your consent has been given to being moved (Lipscombe and Beard, 2014). Although human trafficking often involves an international cross-border element, it is also possible to be a victim of human trafficking within your own country as it was established that most victims from the UK are trafficked within the country. Within the definition presented above three elements can be distinguished: 1) The movement that consists of recruitment, transportation, transfer, harbouring or receipt of people; 2) The Control, which is use of force, threat, abduction, coercion, fraud, deception, abuse of power or vulnerability, or the giving of payments or benefits to a person in control of the victim; 3) The purposeful exploitation of a person, which includes prostitution and other sexual exploitation, forced labour, slavery or similar practices, and the removal of organs (Lipscombe and Beard, 2014). In England, Wales and Northern Ireland, human trafficking offences are incorporated in three separate Acts: Section 71 of the Coroners and Justice Act 2009 creates an offence of holding another person in slavery or servitude or requiring them to perform forced or compulsory labour. The offence came into force on 6 April Section 71 states that: A person (D) commits an offence if: D holds another person in slavery or servitude and the circumstances are such that D knows or ought to know that the person is so held, or D requires another person to perform forced or compulsory labour and

25 the circumstances are such that D knows or ought to know that the person is being required to perform such labour. In subsection (1) the references to holding a person in slavery or servitude or requiring a person to perform forced or compulsory labour are to be construed in accordance with Article 4 of the Human Rights Convention (which prohibits a person from being held in slavery or servitude or being required to perform forced or compulsory labour). A person guilty of an offence under this section is liable: on summary conviction, to imprisonment for a term not exceeding the relevant period [12 months] or a fine not exceeding the statutory maximum or both; on conviction on indictment, to imprisonment for a term not exceeding 14 years or a fine, or both (legislation.gov.uk, 2009). Section 71 does not specifically define slavery, servitude or forced or compulsory labour, but rather refers to Article 4 of the European Convention on Human Rights. Therefore, in interpreting section 71, police, prosecutors and the courts will need to have regard to existing case law on Article 4 ECHR and international conventions to find guidance defining the parameters of each of the terms. A brief synopsis of the terms follows (GOV.UK, 2013). The Immigration and Asylum (Treatment of Claimants etc.) Act 2004 makes trafficking of people for exploitation, including by way of forced labour, a criminal offence. The Protection of Freedoms Act expands this to cover offences committed by UK nationals abroad. Section 4 Trafficking people for exploitation

26 (1) A person commits an offence if he arranges or facilitates the arrival in the United Kingdom of an individual (the passenger ) and (a) he intends to exploit the passenger in the United Kingdom or elsewhere, or (b) he believes that another person is likely to exploit the passenger in the United Kingdom or elsewhere. (2) A person commits an offence if he arranges or facilitates travel within the United Kingdom by an individual (the passenger ) in respect of whom he believes that an offence under subsection (1) may have been committed and (a) he intends to exploit the passenger in the United Kingdom or elsewhere, or (b) he believes that another person is likely to exploit the passenger in the United Kingdom or elsewhere. (3) A person commits an offence if he arranges or facilitates the departure from the United Kingdom of an individual (the passenger ) and (a) he intends to exploit the passenger outside the United Kingdom, or (b) he believes that another person is likely to exploit the passenger outside the United Kingdom (legislation.gov.uk, 2004). Section 4 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 introduced new offences of trafficking for labour and other exploitation including organ removal or benefit fraud. Asylum and Immigration (Treatment of Claimants,) Act 2004 was developed to the reaction on exploitation that is non-sexual in nature, including organ trafficking; though theoretically this offence can also be applied to sex trafficking (Annison, 20133, p.32). It is couched

27 in similar terms to the sexual trafficking offences, and covers trafficking too, within or out of the UK for the purposes of forced labour or other exploitation. Similar to the other trafficking offences it attracts a maximum penalty (on conviction on indictment) of 14 years imprisonment and/or a fine (Home Office, 2012). Sexual Offences Act 2003, which criminalise trafficking for the purpose of exploitation. Section 57 Trafficking into the UK for sexual exploitation: (1) A person commits an offence if he intentionally arranges or facilitates the arrival in, or the entry into the United Kingdom of another person (B) and either (a) he intends to do anything to or in respect of B, after B s arrival but in any part of the world, which if carried out will involve the commission of a relevant offence, or (b) he believes that another person is likely to do something to or in respect of B, after B s arrival but in any part of the world, which if carried out will involve the commission of a relevant offence. (2) A person guilty of an offence under this section is liable (a) on summary conviction, to imprisonment for a term not exceeding 6 months or a fine not exceeding the statutory maximum or both; (b) on conviction on indictment, to imprisonment for a term not exceeding 14 years (legislation.gov.uk, 2003). In addition, forced labour constitutes an offence under the Gangmasters (Licensing)

28 Act 2004, which also gave rise to the Gangmaster Licensing Authority (ILO, 2013). The Gangmasters (Licensing) Act 2004 The Act establishes regulations and licensing procedures for labour providers (gangmasters) about exploitation of workers and introduced compulsory licensing for labour providers supplying labour to agriculture, horticulture, shellfish gathering and associated processing and packaging industries against a set of enforced licensing standards. These standards cover UK legislation regulating the conduct of employers and their statutory obligations to their workers and also directly reflect the ILOs indicators of forced labour (Inter-Departmental Ministerial Group on Human Trafficking, 2012; ILO, 2013). Section 31 of the UK Borders Act 2007, which came into force on 31 January 2008, extended the extraterritorial variety of the trafficking offences yet further by:...ensuring that facilitating the arrival or entry into the UK of a person for the purposes of exploitation, regardless of where the facilitation took place and irrespective of the nationality of the facilitator, are now caught by the offences (UK Borders Act 2007). Modern Slavery Bill: One of the very clear things that the UK Government wanted to achieve by creating the Modern Slavery Bill was the clarity regarding the laws, statutes and the offences. This would benefit, not only the prosecutors but also the judiciary and jury (The Guardian, 2014). The UK Government has established the threat of modern slavery and wants to be the torchbearer for Europe, and even the world, in the fight against slavery and its many forms. By adapting the legislation to the evolving threat, the UK has tried to remove loopholes in the current legislation and simplify the language. Although the drafted Bill recognizes exploitation of

29 the victim within trafficking, it does not make exploitation a separate offence. Clause 2(3) of the Bill does require proof that the defendant a) intended to exploit, or b) believed that another person was likely to exploit the victim (Parliament, 2014). Poland: Even though Poland is a party to most instruments of international law on forced labour, human trafficking and slavery, the national law does not penalise forced labour. However, it does protect employees from exploitation. The Constitution of the Republic of Poland states Work shall be protected by the Republic of Poland. The State shall exercise supervision over the conditions of work (Article 24 of Poland s Constitution) (Pomaranska-Bielecka and Wisniewski 2011). The Constitution of the Republic of Poland ensures that the working conditions are being upheld (Article 24) also, that there is a freedom to choose a place of work. According to the Article 65 clause 1 public authority cannot enforce employment nor decide the choice of employment and a place of work. This clearly provides the evidence that the Polish Constitution prohibits compulsory or forced work (Banaszak, 2009). Therefore, it can be concluded that even though the Constitution does not ban forced labour, there are some constitutional grounds to forbid human exploitation and forced labour (Lasocik and Wieczorek, 2011). Finally, after a six-year debate (after Poland joined UE, 2004), the Polish legislator decided to introduce a legal definition of human trafficking to the Penal Code.

30 Trafficking in persons shall mean the recruitment, transportation, delivery, transfer, harboring or receipt of persons, by means of force or an illegal duress, abduction, deception, inducing into error, or unfair profiting by somebody s error, or incapacity of due understanding of an undertaken action, the abuse of a position of vulnerability, or the abuse of a critical position or the state of helplessness, the giving and receiving of a financial or personal benefit, or a promise thereof to a person exercising custody or having control over another person; for the purpose of exploitation, even with such person s consent, specifically in prostitution, pornography or other forms of sexual exploitation, at work or in service of a compulsory nature, begging, slavery or other practices of exploitation degrading human dignity or for the purpose of obtaining cells, tissues or organs against statutory provisions. If the conduct of the perpetrator affects a minor, such conduct shall constitute trafficking in persons even if no methods or means mentioned in clauses 1-6 have been applied. (Dziennik Ustaw, 2000). It can easily be noted that this definition is very close to the definition proclaimed in the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children that was signed and ratified by the General Assembly of the United Nations in November Polish penal law does not yet incorporate any provision that penalizes forced labour, the definition of human trafficking acknowledges, nevertheless, that any work or service of a compulsory nature, including slavery, is a form of human trafficking. The legislator only enumerated most specific situations of exploiting a person by the perpetrator, i.e. prostitution, pornography, sexual exploitation, begging and also work or service of compulsory nature or slavery (Markiewicz-Stanny, 2012). It should not be forgotten here about Article 8 of the provisions implementing the Penal Code, which sanctions the slave trade, and clause 23 of the article 115 C.C. that defines slavery. In accordance with article 115 clause 23 of the Polish Penal Code, slavery is

31 (...) a state of dependence whereby a human being is treated as property (Dz. U.98). It should be noted that the Polish legislator did not use the assertion that it remains to the subject and terms of property rights, but it is a treatment as if it was the subject of ownership (Banaszak, 2009). This is an important distinction consisting of the fact that the law does not accept and does not know the current concept of property rights in relation to the human being/person (slavery) (Gorniak et al., 2010). However it does take into account the possibility that individuals may find themselves in a factual situation which relates to the law situations that have the juridical sense of ownership and will be implemented against them (de facto slavery) (Madler, 2010). It should be noted however, that the treatment of human beings as the subject/matter to ownership belongs to the essence of trafficking in persons, which was mentioned earlier. All cases of trafficking in human beings entail a deprivation of possibilities of self-determination by the people. It is therefore tantamount to put someone into the state of slavery. Gorowski stays by the opinion, that when it comes to slaves trading, it is always a case of human trafficking, because each slave is a person (Gorowski, 2007 p.64). Thus, when it comes to the control of a human being in order to make him/her a slave, it simultaneously comes to the slave trade provided in the introductory provisions, as well as human trafficking punishable under the article 189a of the C.C. that states: Clause 1. Whoever commits trafficking in persons shall be subject to the penalty of imprisonment for a minimum term of 3 years. Clause 2. Whoever makes preparations to commit the offence specified in Clause 1, shall be subject to the penalty of imprisonment for the term of 3 months to 5 years. The present provisions that penalises slavery reads in Article 8 as follows: Whoever causes the hand-over of another person into the state of slavery or keeps such person

32 in such state, or trades slaves, shall be subject to the penalty of imprisonment for a minimum term of 3 years (Kozlowska, 2006). Undoubtedly, the separate criminalization of slavery as a crime is right, because it is not always as the result of any form of sales or wider transaction (Lasocik & Wieczorek, 2011). However, in the case where these acts may occur, the question arises whether or not they are already included in the Codex definition of human trafficking. Chapter 2: Victims and Institutions. Comparison between the UK and Poland This chapter will firstly try to examine the scale of victims in both countries and try to compare the variety of individuals trafficked. It will then move to examine the different organisations that exist in the UK and Poland. It will try to investigate the primary roles of those organisations, concentrating specifically

33 on: in the UK: police, Gangmaster Licensing Authority, UK Human Trafficking Centre, National Crime Agency, HM Revenue and Customs, UK Border Agency and many more, and in Poland: Police, Prosecutor s Office, Border Guards, labour inspectorate, La Strada and National Consulting and Intervention Center for the Victims of Trafficking. Victims: In order to successfully tackle all the issues of human trafficking, the focus on victims should not be disregarded. The recognitions of underlying reasons of why so many people are exposed to the exploitation needs to be addressed. As it was stated in the chapter above (Chapter 1) it is hard to get the real picture of the scale of human trafficking, forced labour and slavery. Those crimes are unfortunately very hard to detect due to their nature. Once trafficked, the victims are very often more vulnerable as they have been in most instances stripped of their documentation, faced with threats to their personal wellbeing, and too often humiliated by law enforcement agencies when they are classified as ''criminals'' or ''violators'' of migration laws (humantrafficking.org, 2006). As illegal refugee, trafficking victims are more likely to be frightened of detention or deportation. The UN Protocol to Prevent, Suppress, and Punish Trafficking in Persons (2000) specifically calls upon nations to address protection of the human rights of victims and to provide measures for the physical, psychological, and social recovery of victims of trafficking (UNHR, 2014). It is important to protect the privacy and identity of individuals freed from traffickers, especially during and following prosecution of their traffickers. Victims also require