
CHAPTER FIVE – HUMAN TRAFFICKING
Overview
Sections 2 (human trafficking) and 3 (exploitation) of the Modern Slavery Act 2015 (‘MSA 2015’) set out the offence of human trafficking. The provisions replaced the previous trafficking offences covered by s.4 of the Asylum and Immigration (Treatment of Claimants etc) Act 2004 (‘AAI(TOC)A 2004’) and s.59A of the Sexual Offences Act 2003 (‘SOA 2003’); the consolidated offence introduced by the MSA 2015 covers trafficking for all forms of exploitation.
Section 2 MSA 2015
The offence of human trafficking is set out at s.2 of the MSA 2015:
“(1) A person commits an offence if the person arranges or facilitates the travel of another person (“V”) with a view to V being exploited.
(2) It is irrelevant whether V consents to the travel (whether V is an adult or a child).
(3) A person may in particular arrange or facilitate V’s travel by recruiting V, transporting or transferring V, harbouring or receiving V, or transferring or exchanging control over V.
(4) A person arranges or facilitates V’s travel with a view to V being exploited only if—
(a) the person intends to exploit V (in any part of the world) during or after the travel, or
(b) the person knows or ought to know that another person is likely to exploit V (in any part of the world) during or after the travel.
(5) “Travel” means—
(a) arriving in, or entering, any country,
(b) departing from any country,
(c) travelling within any country.
(6) A person who is a UK national commits an offence under this section regardless of—
(a) where the arranging or facilitating takes place, or
(b) where the travel takes place.
(7) A person who is not a UK national commits an offence under this section if—
(a) any part of the arranging or facilitating takes place in the United Kingdom, or
(b) the travel consists of arrival in or entry into, departure from, or travel within, the United Kingdom.”
Section 2(1) makes it a criminal offence to arrange or facilitate the travel of another person with a view to that person being exploited. Travel is defined in subsection (5) as arriving in, entering, departing or, significantly for the purpose of county lines operations, “travelling within any country”.
The offence may be committed by a UK national anywhere in the world regardless of where the travel or the arrangement or facilitation of it took place (s.2)(6)). For non-UK nationals, the offence may be committed if any part of the travel or the arrangement or facilitation of it took place in the UK (s.2(7)).
Actus Reus
The meaning of the terms ‘arranging’ and ‘facilitating’ travel were addressed by the Court of Appeal in R v Karemara [2018] EWCA Crim 1432. The prosecution case was that the defendants controlled and operated drug supply lines between London and Portsmouth, and that teenagers aged between 14 and 16 years old had been used as couriers. On each count the prosecution alleged that the defendants had intentionally arranged or facilitated a courier’s travel within the United Kingdom with a view to exploiting the courier in contravention of s.4 of the AAI(TOC)A 2004.
The Court of Appeal was tasked with addressing several issues, particularly the meaning and scope of the terms ‘arrange’ and ‘facilitate’. In her judgment Lady Justice Hallett emphasised the importance of undertaking a “purposive approach” when identifying the intent of Parliament when introducing the relevant legislative provisions (para 44). Given the identical statutory purpose and materially similar wording of s.2(1) of the MSA 2015, the subsequent judgment of the Court on the issue provided legal professionals with authoritative guidance when grappling with the interpretation of these terms in human trafficking prosecutions under the MSA 2015. When addressing the meaning of the relevant terms, Lady Justice Hallett stated (para 46):
“…the two words ‘arranging’ and ‘facilitating’ travel are necessarily broad and should be construed accordingly. ‘Arranging’ is a common word which in our view needs no further explanation to the jury. ‘Arranging’ would include such matters as transporting B, procuring a third person to transport B, or buying a ticket for B. ‘Facilitating’ is intended to be different from ‘arranging’ and would include ‘making easier’. It is not sensible to lay down precise definitions of these terms.”
The broad definition set out above was subsequently adopted by the High Court in National Crime Agency v Hussain [2020] EWHC 432 (Admin) when seeking to find a definition for the term ‘facilitate’ in s.2(1)(c) of the Serious Crime Act 2007.
In Karemara the Court of Appeal considered an argument advanced by the prosecution that a simple instruction such as “go to Portsmouth” or “go by train to [city] and then go to x address” was capable, in principle, of amounting to ‘arranging or facilitating’ travel. The argument was unsurprisingly opposed by those representing the appellants. The Court of Appeal did not consider it to be a matter of principle and stated, “it is possible that in some circumstances a mere direction might suffice, but the question is again one of fact” (para 47).
In short, there is no fixed list of conduct which may amount to either arranging or facilitating travel, each situation must be separately assessed taking into account the individual circumstances and features present in the evidence.
As set out in s.2(5), the definition of ‘travel’ is very broad and includes travel within the country. Therefore, the movement of exploited individuals between ‘city hubs’ and small cities / rural towns in county lines operations is clearly covered. For an interesting discussion about the relevance of distance to the issue of travel, legal professionals may want to consider R v Ali [2015] EWCA Crim 1279 in the context of trafficking for sexual exploitation. In that case the Court of Appeal stated there was no minimum distance requirement for a journey to count as ‘travel’ though short distances, such as walking between rooms, may well be excluded. Both the legislation and the caselaw are clear, s.2 is only triggered when there is travel.
The exploited person’s consent to the travel, whether as an adult or a child, is irrelevant (s.2(2)). This is a significant provision in the context of county lines prosecutions given many exploited individuals, in particular children, agree to join and work for the drug dealing groups. As stated at paragraph 60 of the judgment in Karemara, the provisions were clearly introduced to deal with the “mischief” of a vulnerable person having consented and the need to “protect the young and the vulnerable from their own decision-making.” Therefore, it follows that the prosecution of individuals under s.2 of the MSA 2015 is not dependent on the availability or willingness of exploited victims giving evidence. Again, this is significant in the context of county lines prosecutions given the children and vulnerable adults targeted and groomed by the organisers of the drugs line very often refuse to co-operate with law enforcement agencies; there will be no bar to a prosecution proceeding and resulting in safe convictions even where the jury never heard directly from any exploited individuals.
Mens Rea
Section 2(4) of the MSA 2015 states that the arrangement or facilitation of travel must be done “with a view” to the victim being exploited. Therefore, there is no requirement for the prosecution to present proof of actual exploitation having resulted.
The person charged with arranging or facilitating travel with a view to exploitation would be guilty if they intended to exploit the victim or knew or ought to have known that any other person was likely to exploit the victim. There is no requirement for the prosecution to prove that the person arranging or facilitating the travel was personally responsible for any exploitation or, in respect of the second part of the definition, that the person even intended that the victim would be exploited. As legal professionals working in this area know, the statutory provision is broad in scope and has allowed prosecution agencies to implicate an extensive list of individuals caught up in county lines operations e.g. organisers, line holders, runners, drivers.
There is an interesting debate surrounding the status of individuals who provide or arrange accommodation for the exploited person but had no involvement in the arrangement or facilitation of the travel of the exploited person; as already outlined the requirement for ‘travel’ under s.2 may mean that such individuals are not caught by the statutory offence (indeed that is clearly envisaged with the inclusion of the word ‘may’ rather than ‘will’ in s.2(3) when setting out examples of how an individual arranges or facilitates the victim’s travel). As those of us working in this area will know, individuals who harbour victims of exploitation are rarely charged with the substantive offence under s.2. However, the recent experience of this practitioner is that those individuals are increasingly appearing as one of the many named defendants when the gang members are charged with conspiracy to traffic victims of exploitation; this enables the prosecution to prove the case on the basis that each individual, including those providing accommodation and seemingly uninvolved in travel arrangements, shared the common purpose of exploitation.
For the purpose of section 2, the term ‘exploitation’ is defined exhaustively in section 3 of the MSA 2015. A person is exploited if one or more of the following factors apply:
- The person is the victim of an offence of slavery, servitude and forced or compulsory labour contrary to s.1 MSA 2015 (s.3(2)(a)).
- Something is done to or in respect of the person which involves the sexual offence of taking or permitting to take indecent photographs of children under s.1(1)(a) of the Protection of Children Act 1978 (s.3(3)(a)(i)).
- Something is done to or in respect of the person which involves the sexual offences listed in part 1 of the SOA 2003 i.e. rape, sexual assault, prostitution, child pornography etc (s.3(3)(a)(ii)).
- The person is encouraged, required or expected to do anything which involves the commission of offences relating to organ removal or human tissue sales contrary to s.32 and s.33 of the Human Tissue Act 2004 (s.3(4)(a)).
- The person is subjected to force, threats or deception designed to induce that person to provide a service of any kind, provide another person with benefits of any kind or to enable another person to acquire benefits of any kind (s.3(5)).
- The person is used or there is an attempt to use the person for one of the purposes listed under s.3(5) and that person was chosen for that purpose on the grounds that person is a child, is ill, disabled, or related to a person, in circumstances where a person without the illness, disability or family relationship would likely refuse.
The definition in s.3 is consistent with the combination of trafficking offences previously enforced under both s.4 AAI(TOC)A 2004’) and s.59A SOA 2003.
The definition of exploitation in s.3 covers a broad range of circumstances and is sufficiently wide enough to cover individuals exploited as part of county lines operations. In relation to adults, s.3(5) has proven to be particularly broad where county lines organisers have used force, threats or deception. Although the ‘service’ and ‘benefits’ typically involve the exploited person undertaking unlawful activities, the provision is not limited to criminal offences and legal professionals will have experience of cases in which exploited individuals have been tasked with lawful activities e.g. purchasing food, vehicles.
Associated offence under s.4 of the MSA 2015
Under section 4 of the MSA 2015, an offence is committed where the person commits any offence with the intention of committing an offence under s.2 of the MSA 2015.
Essentially two separate offences are created because there are different maximum sentences available depending on the qualifying offence committed by the person. If the qualifying offence is either kidnapping or false imprisonment the maximum sentence is life imprisonment (s.5(3)) but only 10 years if any other offence is committed.
This associated offence was introduced to ensure that even those on the periphery of human trafficking who play some part in it are prosecuted and convicted. It demonstrates the determination of those involved in drafting the legislation to take a tough stance on those involved at all levels of county lines operations, although there is a question about its necessity. The provision is very rarely relied upon by the prosecution as more often those on the periphery are charged as part of a conspiracy to traffic under s.2.