Slavery, servitude and forced or compulsory labour. England and Wales Louise Douglas

Transcription

1 Circular 2010/07 TITLE From: Slavery, servitude and forced or compulsory labour: Implementation of section 71 of the Coroners and Justice Act 2009 Criminal Law Policy Unit Issue date: 19 March 2010 Implementation date: 6 April 2010 For more information contact: England and Wales Louise Douglas Louise.Douglas@justice.gsi.gov.uk Northern Ireland Emma Dalton Emma.Dalton@nio.x.gsi.gov.uk Broad Subject Sub Category This circular is addressed to Criminal Law Slavery, servitude and forced or compulsory labour Lord Chief Justice, President of the Queen s Bench Division, Senior Presiding Judge, Justices of the Supreme Court, Lords Justices of Appeal, High Court Judges, Crown Court Judges, District Judges (Magistrates Courts), Bench Chairmen, Clerks to the Justices, Chief Officers of Police, Chief Crown Prosecutors, Heads of Division Revenue and Customs Prosecution Office

2 Copies are being sent to Judicial Studies Board, Council of Circuit Judges, Magistrates Association, Justices Clerks Society, Registrar of Criminal Appeals, HMCS Area Directors, Crown Court Managers, HM Chief Inspector of Constabulary, Association of Chief Police Officers, Police Federation, Police Superintendents Association, Chairpersons of Police Authorities, Association of Police Authorities, The Law Society, the Bar Council, the Criminal Bar Association, Whitehall Prosecutors Group, Legal Services Commission, Law Centres, Citizens Advice Bureaux, Liberty, Anti-Slavery International, UK Human Trafficking Centre, Gangmasters Licensing Authority, Health and Safety Executive. SLAVERY, SERVITUDE AND FORCED OR COMPULSORY LABOUR Introduction 1. Section 71 of the Coroners and Justice Act 2009 ( the 2009 Act ) introduces a new offence ( the section 71 offence ) of holding someone in slavery or servitude, or requiring them to perform forced or compulsory labour. 2. The section 71 offence applies in England and Wales and in Northern Ireland. The purpose of this circular is to give some guidance on the new offence to those working in the criminal justice system in England and Wales. This circular is for guidance only and should not be regarded as providing legal advice. Legal advice should be sought if there is any doubt about the application or interpretation of the legislation. The CPS will issue guidance to prosecutors on commencement of the new offence by way of Policy Bulletin and Legal Guidance. 3. Section 71 of the 2009 Act comes into force on 6 April Elements of the offence 4. The section 71 offence consists of holding another person in slavery or servitude or requiring another person to perform forced or compulsory labour. The circumstances must be such that the defendant knows or ought to know that the person is being so held or required to perform such labour. The offence applies to legal persons (e.g. companies) as it applies to natural persons A person can only commit the section 71 offence if they hold another person in slavery or servitude or require another person to perform forced or compulsory labour. If labour is subcontracted to another company and the 1 In accordance with general rules of statutory interpretation person includes a body of persons corporate or unincorporated. See section 5 of and Schedule 1 to the Interpretation Act 1978.

3 employees of that other company who do the work are held in slavery or servitude or are required to perform forced or compulsory labour, then the subcontractor is the principal offender. However, if the contractor knows that the subcontractor s workers are being so held or required to perform such labour, then depending on the circumstances, they may be liable for aiding or abetting the subcontractor s offence, or for encouraging or assisting the commission of the offence under the provisions of the Serious Crime Act 2007 or for conspiring to commit the offence. 6. The terms holds another person in slavery or servitude and requires another person to perform forced or compulsory labour are defined in accordance with Article 4 of the European Convention on Human Rights. The offence of trafficking people for labour exploitation under section 4 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 ( the 2004 Act ) is framed in similar terms and includes behaviour contrary to Article 4 as one form of prohibited exploitation. It should be noted, however, that the section 71 offence does not contain the element of trafficking and is not an immigration offence. It is wider and will apply irrespective of whether the victim has been trafficked and irrespective of the immigration status of the victim(s). 7. The exceptions under Article 4(3) of the European Convention on Human Rights, which acknowledge that forced or compulsory labour may be necessary in certain circumstances in order to ensure public safety and the rights of others, will automatically apply to the new offence. Those exceptions are work done in the course of lawful detention, military service, emergencies or life threatening situations and work or service which forms part of normal civic obligations. 8. In interpreting section 71, the courts will have regard to existing case law on Article 4 of the European Convention on Human Rights and any relevant case law on section 4 of the 2004 Act. In establishing what might constitute slavery, characteristics of ownership of the person need to be present. Servitude is much wider. Courts have been guided by Articles 1 and 7 of the 1956 UN Supplementary Convention on the Abolition of Slavery, and have stated that servitude involves a particularly serious form of denial of freedom and that in addition to the obligation to provide services for others, [it involves] the obligation for the serf to live on another person s property and the impossibility of changing his condition In establishing forced or compulsory labour, the section 71 offence will require an element of coercion or deception between the defendant and the victim, and the circumstances will need to be such that the defendant knew that the arrangement was oppressive and not truly voluntary, or had been wilfully blind to that fact. 2 Van Droogenbroeck v. Belgium, no. 7906/77, Commission decision of 5 July 1979, DR 17, p. 59 & Siliadin v France no /01, [2005] EHRLR 660 (para 123).

4 10. There are a number of factors which may, depending on the circumstances, indicate that an individual is being held in servitude or subjected to forced or compulsory labour. The essential elements are those of coercion or deception, which may be demonstrated in a number of ways. The kind of behaviour that would normally, of itself, be evidence of coercion includes (but is not limited to):- Violence or threats of violence by the employer or the employer s representative; Threats against the worker s family; Threats to expose the worker to the authorities (e.g. because of the worker s immigration status or offences they may have committed in the past); The person s documents, such as a passport or other identification, being withheld by the employer; Restriction of movement; Debt bondage; Withholding of wages. 11. Other factors that may be indicators of forced labour include (but are not limited to): The worker being given false information about the law and their employment rights; Excessive working hours being imposed by the employer; Hazardous working conditions being imposed by the employer; Not being provided with safety equipment and clothing, and/or being charged for the provision of such equipment that is essential to perform the work; Unwarranted and perhaps unexplained deductions from wages; The employer intentionally not paying the full tax or national insurance contributions for the worker; Poor accommodation provided by the employer (e.g. accommodation that is overcrowded, not licensed as a House of Multiple Occupation by Local Authorities, or does not have any necessary gas and electricity safety certificates); Intentionally poor or misleading information having been given about the nature of the employment (e.g. about the location or nature of the work); The person being isolated from contact with others; Money having been exchanged with other employers/traffickers etc for the person s services in an arrangement which has not been agreed with the person concerned or which is not reflected in his remuneration. Penalties 12. In England and Wales and in Northern Ireland the maximum sentence on conviction on indictment for the section 71 offence is 14 years imprisonment. The maximum sentence on summary conviction for the

5 offence in England and Wales is six months imprisonment. 3 The maximum sentence on summary conviction for the offence in Northern Ireland is six months imprisonment. Background and Context 13. It is essential that the UK has effective legislation to deal with servitude and forced labour. The behaviour can cause serious harm to individuals and to society. It creates an expectation that labour vacancies can be filled at lower than the legitimate market rate, and it creates unfair competition amongst competing businesses. The UK has a positive obligation under Article 4 of the European Convention on Human Rights to protect those within its jurisdiction from slavery, servitude and forced or compulsory labour. 14. Trading in slaves is already an offence under the Slave Trade Acts However, section 71 makes clear that holding a person in slavery is also an offence. There is a range of pre-existing legislation which could cover behaviour relating to servitude and forced or compulsory labour. This includes general offences such as false imprisonment, blackmail and assault, employment legislation including offences relating to working hours, minimum wages and health and safety at work, and operating as an unlicensed Gangmaster. There are specific offences of trafficking people for labour exploitation, and offences of trafficking for sexual exploitation are provided for in sections of the Sexual Offences Act The section 71 offence will be available in circumstances where trafficking may not have taken place or cannot be proved. 15. Because of the nature of the section 71 offence, it is possible that other offences may also have been committed alongside it, including those listed above. In circumstances where this is possible or likely, it will be for the police and the CPS to determine the most appropriate charge(s). It should be borne in mind that the elements of exploitation mentioned above may point to a wider range of offending. They might be the most obvious outward signs that there is wider criminal behaviour which requires investigation. Sentencing guidelines 16. The Sentencing Guidelines Council s guideline, Overarching Principles Seriousness, provides that where the victim is particularly vulnerable, there is deliberate targeting of vulnerable victims, or the offence is committed by a group or gang, this will be an aggravating factor in sentencing. These guidelines will apply to the section 71 offence as they do to other offences and will continue to have effect when Sentencing Guidelines Council is replaced by the Sentencing Council. 3 On the commencement of section 154(1) of the Criminal Justice Act 2003, the maximum sentence on summary conviction in England and Wales will rise to 12 months. There are no current plans to commence this provision.

6 Who may be vulnerable 17. The section 71 offence will apply to all workers, although migrant workers may be particularly vulnerable. They may be vulnerable to coercion and deception for a number of reasons. They may not speak the language, they may be uncertain of their legal status in the UK, they may be distrustful of authority and they may be used to living and working conditions which are unpleasant and hazardous. They may fear being sent back to their country of origin. They may be unwilling for all these reasons to complain of their treatment, and may be even more unwilling to make a formal complaint and bear witness against their exploiters. They may have unwittingly become the victims of criminal gangs, who are threatening their safety and the safety of their families abroad. 18. The increased mobility of populations may mean that labour exploitation is continuing to increase. The section 71 offence should provide a tool to help recognise and tackle such exploitation. Useful links The Coroners and Justice Act Explanatory notes on the Coroners and Justice Act Home Office Circular 69/ Asylum and Immigration (Treatment of Claimants, etc) Act 2004: Trafficking Offences A copy of the commencement order for the provisions addressed in this circular can be found at

7 ANNEX A Section 71 of the Coroners and Justice Act 2009 Slavery, servitude and forced or compulsory labour (1) A person (D) commits an offence if (a) (b) 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 the circumstances are such that D knows or ought to know that the person is being required to perform such labour. (2) 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). (3) A person guilty of an offence under this section is liable (a) (b) (4) In this section on summary conviction, to imprisonment for a term not exceeding the relevant period 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. Human Rights Convention means the Convention for the Protection of Human Rights and Fundamental Freedoms agreed by the Council of Europe at Rome on 4 November 1950; the relevant period means (a) (b) in relation to England and Wales, 12 months; in relation to Northern Ireland, 6 months. Article 4 of the ECHR Article 4 Prohibition of slavery and forced labour 1. No one shall be held in slavery or servitude. 2. No one shall be required to perform forced or compulsory labour. 3. For the purpose of this Article the term force or compulsory labour shall not include: (a) any work done in the ordinary course of detention imposed according to Article 5 of this Convention or during conditional release from such detention;

8 (b) (c) (d) any service of a military character or, in case of conscientious objectors in countries where they are recognised, service exacted instead of compulsory military service; any service exacted in case of an emergency or calamity threatening the life or well-being of the community; any work or service which forms part of normal civic obligations.