Human Trafficking in Scotland: How is the Law Different?

On 29 August, Scottish justice secretary, Michael Matheson, launched a human trafficking campaign to raise awareness. Research from Scotland’s 2017 Trafficking and Exploitation Strategy revealed that 54% of Scots don’t believe human trafficking is an issue in their local area, despite the fact that human trafficking victims have been identified in 27 of Scotland’s 32 local authorities.

The Scottish Parliament passed the Human Trafficking and Exploitation (Scotland) Act 2015 (“the Scottish Human Trafficking Act”) in October 2015. How does that law differ from the Modern Slavery Act 2015?

Human Trafficking Statistics and Review of the Modern Slavery Act

In July 2016, the government commissioned an independent review into the Modern Slavery Act one year after it had been brought into force. The 33-page report identified some of the key issues and concerns from stakeholders about how the Act is working in practice and made recommendations on what should be done to improve the Act’s effectiveness. Key parts from the government review are summarised below, although readers are urged to read the report in full for more details.

Section 45 Modern Slavery Act: Children vs. Adults

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.

Section 45 Modern Slavery Act: Excluded Offences

Schedule 4 of the Modern Slavery Act sets out a list of offences excluded from the section 45 defence (section 45(7)). In the Explanatory Notes to the Act, it is stated that the defence will ‘not apply to certain serious offences, mainly serious sexual or violent offences, to avoid creating a legal loophole for serious criminals to escape justice.’

Section 45 Modern Slavery Act: A Reasonable Person with the Relevant Characteristics

Section 45(1)(d) provides that a person is not guilty of an offence if ‘a reasonable person in the same situation as the person and having the person’s relevant characteristics would have no realistic alternative to doing that act’. This provision appears to be loosely based on the requirement for the common law defence of duress, that the threat would have overcome the resistance of a ‘sober person of reasonable firmness’.^[1] The requirement of ‘reasonableness’ might be justified as follows. Both section 45 and the common law defence of duress stand in contrast to the defence of self-defence, which requires a genuinely-held belief in the circumstances giving rise to the use of force.^[2] Crucially, the defendant is entitled to rely on such a genuine belief, even if he was in fact unreasonable in his assessment of the circumstances.^[3]

Section 45 Modern Slavery Act: ‘No Realistic Alternative’

Section 45 of the Modern Slavery Act 2015 provides a defence for human trafficking victims charged with some criminal offences. One of the requirements for the defence is that ‘a reasonable person in the same situation as the person and having the person’s relevant characteristics would have no realistic alternative to doing that act’.

Operation Glenlivet is described in the Human Trafficking Handbook as follows: a Romanian male, who had been trafficked to the UK to commit theft on a daily basis, had been caught by security staff during an ‘overt and hamfisted attempt at shoplifting’ on Oxford Street. The security staff initially wanted him to simply return the goods and let him go, but he pleaded with them to call the police. When uniformed officers arrived, the Romanian requested that they help him.^[1] His example provides an extreme illustration of when the ‘no realistic alternative’ threshold would be satisfied. His daily movements and communications were controlled and he felt he had no other means to contact the police.

Yet it should not be assumed that a trafficking victim, who potentially could have phoned the police or ran away, has a realistic alternative to committing a criminal offence.

Section 45 Modern Slavery Act: Direct Consequence

Section 45 of the Modern Slavery Act 2015 provides a defence for human trafficking victims charged with some criminal offences. Section 45(1)(c) provides that the compulsion of an adult defendant must be attributable to slavery or relevant exploitation for the defence to succeed. Section 45(3) explains that section 45(1)(c) can be satisfied in one of two ways: the compulsion could either be conduct which constitutes an offence under section 1 (‘slavery, servitude and forced or compulsory labour’), or compulsion could be a ‘direct consequence of a person being, or having been, a victim of slavery or relevant exploitation’.

Confusing Circularity

One significant issue with the latter part of this provision is its circularity: compulsion is attributable to slavery or relevant exploitation if it is a direct consequence of a person being… a victim of slavery or relevant exploitation.

Section 45 Modern Slavery Act: Compulsion

Section 45 of the Modern Slavery Act 2015 provides a defence for human trafficking victims charged with some criminal offences. According to section 45(1)(b), the person who committed the offence must have been ‘compelled’ to do so, in order for the defence to succeed. It is not immediately obvious whether the meaning of ‘compelled’ is limited to circumstances giving rise to the English common law defence of duress, or whether it is more broadly construed.

The UK’s International Obligations in Human Trafficking Law

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).

An Overview of the Modern Slavery Act 2015

The provisions of the Modern Slavery Act 2015 (“the Act”), which came into force on 26 March 2015, can be found in full here. Note that the majority of the Act’s provisions extend to England and Wales only, but certain provisions also extend to Scotland and Northern Ireland (see section 60 of the Act).

The Act is divided into the following key parts: