Article 4(d) of the Council of Europe Convention on Action Against Trafficking in Human Beings (‘the Trafficking Convention’) provides that a ‘child’ is a person under the age of 18.[1] The international legal instruments concerning the non-prosecution of trafficking victims place a special emphasis on trafficked children, and for good reason. Article 4(c) of the Trafficking Convention, for example, expressly provides that the ‘recruitment, transportation, transfer, harbouring or receipt of a child for the purpose of exploitation’ shall be considered ‘trafficking in human beings’ even if this does not involve any threat or use of force or other forms of coercion, abduction, deception, etc. Even the gently persuasive recruitment of a child will constitute trafficking under the Convention.
The Difference Between Adults and Children in the Modern Slavery Act Defence
Section 45 of the Modern Slavery Act 2015 provides a defence for human trafficking victims charged with some criminal offences. It distinguishes between trafficked adults and children: section 45(1) applies to adults whereas section 45(4) applies to persons under the age of 18.
Three key differences in the defence for children should make it easier to satisfy its requirements: (1) a child need not show that he was compelled to perform the unlawful act; (2) the child must nonetheless have performed the act as a direct consequence of being or having been the victim of relevant exploitation and; (3) the child need not have considered whether there were realistic alternatives to performing an unlawful act.
The defence as it applies to children provides a welcome simplification of the requirements of ‘compulsion attributable to slavery or relevant exploitation’ in the adult defence. Furthermore, the omission of a requirement for the minor to have considered realistic alternatives reflects a general expectation that children are less able to weigh up the consequences of their unlawful conduct against realistic alternatives; minors have a particular vulnerability to being exploited.[2] As trafficking cases will often involve disputes as to age, where individuals may have no identifying information on them or false documentation provided by the traffickers, it is crucial that the Court makes due enquiry as to the person’s age and refer him to the appropriate authorities for assessment where necessary.[3]
The above commentary contains updated extracts from a prize-winning essay that I wrote in 2015, before the Act (which was then a bill in Parliament) was in force.
[1] The Trafficking Convention was agreed in 2005. This is a binding instrument to develop a common policy against trafficking at EU level, which the UK Government ratified in December 2008.: see Pam Bowen – Trafficking-related Criminal Legislation in the UK, Special Measures for Victims and Sentencing Guidelines, in the Human Trafficking Handbook: Recognising Trafficking and Modern-Day Slavery in the UK by Parosha Chandran. (p. 342).
[2] Pam Bowen in the Human Trafficking Handbook, at p. 399.
[3] Ibid. p. 400.
UK Human Trafficking Law Blog 