The Court of Appeal in R. v Joseph (2017) EWCA Crim 36 helpfully provided a brief summary of the UK’s international obligations – which is quoted below – relating to the definition of human trafficking and the need to provide for the possibility of non-prosecution of trafficking victims charged with a related criminal offence. The most significant international instruments in this area are the Palermo Protocol, the Council of Europe Convention against Trafficking in Human Beings and the EU’s Directive 2011/36/EU on preventing and combatting trafficking in human beings. The UK courts used these international instruments to guide its development of common law (judge-made law) on human trafficking, before the Modern Slavery Act 2015 came into force (see R. v Joseph at para. 20).
The Palermo Protocol refers to the UN Convention against Transnational Organised Crime that was agreed at Palermo in December 2000 and ratified by the UK on 9 February 2006, which means the UK courts are thereafter fully bound by the protocol. Its stated purpose (Article 2) includes preventing and combatting trafficking in persons and protecting and assisting victims of trafficking. Article 3 of the Protocol provides a definition for 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;
(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.
The Council of Europe Convention on Action against Trafficking in Human Beings was agreed in Warsaw in May 2005 and came into force in respect of the UK on 1 April 2009. This led to the UK setting up a National Referral Mechanism and providing Home Office Guidance which sets out the Secretary of State’s policies on human trafficking. However, the Convention was not incorporated into UK law. This means that no corresponding UK law was enacted to replicate the Convention’s provisions in UK law. Consequently, as the Court stated in B, R (on the application of) v The Secretary of State for the Home Department (2016) EWHC 786 at para. 65:
Although an unincorporated treaty may assist in interpreting UK legal instruments, it imposes no legal duties on the Executive nor does it confer rights on individuals… The Trafficking Convention has been given effect through the Secretary of State’s policies but cannot be invoked as a source of free-standing rights and duties.
Article 4 provides the same definition of trafficking in human beings as the Palermo Protocol. Article 26 entitled “Non-punishment provision” provides:
Each Party shall, in accordance with the basic principles of its legal system, provide for the possibility of not imposing penalties on victims for their involvement in unlawful activities, to the extent that they have been compelled to do so.
On 5 April 2011, the EU promulgated Directive 2011/36/EU on preventing and combatting trafficking in human beings. The Directive imposes an obligation on the UK to implement domestic legislation giving effect to the provisions of the Directive by the deadline of 6 April 2013.[1] Insofar as it fails to do so, then from 6 April 2013, individuals are able to rely directly on the provisions of the Directive (even if they have not been transposed into English law). This is known as “direct effect”, which is possible with Directive 2011/36/EU but not the earlier Council of Europe Convention.[2]
Recital 14 of the Directive provides:
“Victims of trafficking in human beings should, in accordance with the basic principles of the legal systems of the relevant Member States, be protected from prosecution or punishment for criminal activities such as the use of false documents, or offences under legislation on prostitution or immigration, that they have been compelled to commit as a direct consequence of being subject to trafficking. The aim of such protection is to safeguard the human rights of victims, to avoid further victimisation and to encourage them to act as witnesses in criminal proceedings against the perpetrators. This safeguard should not exclude prosecution or punishment for offences that a person has voluntarily committed or participated in.”
Article 2 of the Directive, at paragraphs 1-4 makes provisions on the offences of human trafficking:
1. Member States shall take the necessary measures to ensure that the following intentional acts are punishable:
The recruitment, transportation, transfer, harbouring or reception of persons, including the exchange or transfer of control over those 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.
2. A position of vulnerability means a situation in which the person concerned has no real or acceptable alternative but to submit to the abuse involved.
3. Exploitation shall include, as a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, including begging, slavery or practices similar to slavery, servitude, or the exploitation of criminal activities, or the removal of organs.
4. The consent of the victim of trafficking in human beings to the exploitation, whether intended or actual, shall be irrelevant where any of the means set forth in paragraph 1 have been used.
Article 8 of the Directive sets out an obligation to ensure non-prosecution of trafficking victims is possible:
Member States shall, in accordance with the basic principles of their legal systems, take the necessary measures to ensure that competent national authorities are entitled not to prosecute or impose penalties on victims of trafficking in human beings for their involvement in criminal activities which they have been compelled to commit as a direct consequence of being subjected to any of the acts referred to in Article 2.
Why Are There Different International Instruments?
As noted above, the international instruments have different effects on UK law and therefore afford varying degrees of protection to trafficking victims. In the Explanatory Report to the Council of Europe Convention, it is stated that the Convention seeks to build on the foundations laid by the earlier Palermo Protocol and strengthen protection for trafficking victims. The Report states that:
Even though there are already other international instruments in this field, the Convention benefits from the more limited and uniform context of the Council of Europe, contains more precise provisions and may go beyond minimum standards agreed upon in other international instruments. The evolution of international law proves that regional instruments are very often necessary to complement global efforts. (para. 30)
The AIRE Centre in its Monitoring Report explain the differences between the Council of Europe Convention and the later EU Directive, stating that the Directive[3]:
represents a significant shift towards emphasising the equal importance of
protecting victims of trafficking with the implementation of criminal measures.
The AIRE Centre Report also highlights how the Directive strengthens the protection for human trafficking victims in that[4]:
In addition to certain provisions of the Directive being capable of having direct effect, questions relating to the interpretation and scope of the Directive can be referred by national courts to the Court of Justice of the European Union for a ‘preliminary ruling’.
[1] Article 22 of the Directive.
[2] Case 41/74 Van Duyn v Home Office (1974) ECR 1337
[3] Page 5 of the July 2012 AIRE Centre Monitoring Report on the Implementation by the UK of EU Directive 2011/36. See also the AIRE Centre’s helpful examples of how the Directive works in practice.
[4] Ibid.
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