CHAPTER ONE – THE DEFINITION OF HUMAN TRAFFICKING
Introduction: The United Kingdom’s freely-chosen international obligations
Understanding who is a victim of trafficking first requires an understanding of what human trafficking is. As with much of the law in this area, a full understanding of the definitions requires looking outside the United Kingdom’s domestic law, to a series of international agreements and soft law instruments. These international legal materials have become binding on the United Kingdom through domestic legislation based on them, the caselaw of the European Court of Human Rights, and the United Kingdom’s own freely chosen international obligations.
The United Kingdom has chosen to accede to a series of international agreements relating to the prevention of trafficking in human beings, and the protection of victims of human trafficking. These international agreements have progressively increased the protections to which victims of modern slavery and human trafficking are entitled. They have also gradually led to an international consensus that victims of trafficking have a right to non-punishment for some otherwise criminal acts or omissions which are linked to their trafficking. This international consensus has been progressively evolving for over 25 years.
While this book is directed at practitioners within the English criminal legal system, the non-punishment principle derives from the United Kingdom’s international legal obligations, which inform and, where necessary, extend beyond domestic statutory and procedural provisions. The analytical direction needs to remain clear: international law defines the scope of the relevant principles; domestic law must conform to that scope in international law, not limit it. The practical task in this area is not to fall into the limits of domestic law when applying principles which originate outside it. Concepts around trafficking law are autonomous legal concepts with autonomous meanings, which may differ from those which are normally seen in domestic law. Domestic law has so far accommodated the principles derived from international law only in part, but must be interpreted in light of the international legal principles.
As such, the law applicable in the United Kingdom must now be made to reflect the non-punishment principle contained in international legal obligations, even if that law is often poorly understood and inconsistently applied in practice. When courts consider arguments regarding non-punishment of victims of trafficking, it must always be borne in mind that the right to non-punishment is neither novel nor optional, but is well-established and binding law based on international commitments to which the United Kingdom has freely consented.
The principle of non-punishment has also been described as non-liability or non-criminalisation. It requires that victims of trafficking are not held liable for unlawful acts committed as a direct consequence of their trafficking. This encompasses protection from prosecution and from punishment (i.e. penalisation), as well as from other punitive measures.
The importance of the right not to be subject to penalties in the criminal legal system is obvious: the domestic courts have held that where a person’s agency has been subverted, their culpability for offending linked to their trafficking may be reduced to the extent that it would be inappropriate to punish them. In such circumstances, instead of being criminalised, victims of modern slavery or human trafficking should be assisted to reflect and recover.
It is worth noting that the international consensus is that the non-punishment principle is not a mere principle of mitigation: it is a protection against liability itself. Therefore, victims should not merely receive reduced sentences, but should not be subject to liability.
The importance of non-prosecution is of equal importance: if a person is subject to a prosecution process then they are unable to reflect and recover, and will be subjected to further trauma by the prosecution. The prosecution process itself often entails both a loss of liberty through being remanded in custody, and a fear of further ill-treatment by the state which may result in further traumatisation. As such, when states prosecute victims of trafficking or subject them to criminal penalties they perpetuate the harm of trafficking further, rather than preventing it. Not only may this be seen as morally wrong, but it also obstructs the United Kingdom’s ability to comply with its obligations to prevent, supress, and punish exploiters, because victims are not enabled to participate in prosecution processes against their exploiters. Further, when victims of trafficking are treated as criminals rather than as victims, they are placed outside of the protections available to victims which exist to prevent re-trafficking. In this way, by taking punitive actions towards victims of trafficking, the state actively creates an environment which is conducive to traffickers.
The sources of the definition of trafficking
The Palermo Protocol
The definition of trafficking can be traced to the “Palermo Protocol” to the UN Convention against Transnational Organised Crime. Both the Convention and the Palermo Protocol were adopted by the UN General Assembly on 15 November 2000.[1] The Palermo Protocol was the first global legally binding instrument with an agreed definition of trafficking.
The Palermo Protocol was signed by the United Kingdom on 14 December 2000, entered into force on 25 December 2003, and was ratified by the United Kingdom on 9 February 2006.[2] At Article 3 it provides definitions as follows:
“(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.”
This definition of trafficking in the Palermo Protocol can be broken down to give a definition which generally requires 3 components, as follows:
- The action of trafficking. This can be recruitment, transportation, transfer, harbouring, or receipt of persons.
- The means of trafficking. This can be 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.
- This being for the purpose of exploitation. This includes but is not limited to 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.
As a result of the way that the Palermo Protocol is drafted, some nuances arise:
- If the “means” are used, then the consent of a person to being trafficked is irrelevant to whether they were trafficked.
- If the victim is a child, then the “means” are not required: “action” and “purpose of exploitation” are enough.
- As a result of the combination of the above, if the victim is a child, the “means” are not used, and the victim consents to trafficking, they may not be treated as meeting the definition of trafficking.
Often overlooked in consideration of the Palermo Protocol is that its scope of application relates only to transnational offences of trafficking.[3] This is perhaps unsurprising, given the Palermo Protocol’s origins in a convention aimed specifically at combatting transnational organised crime. However, the limited scope of the Palermo Protocol does not alter the definition of trafficking which it provides. Trafficking which is not transnational in nature still falls within the definition of trafficking contained within the Palermo Protocol. The limited scope of the Palermo Protocol merely means that it does not impose obligations on states to address trafficking exclusively within their own borders. The definition of trafficking that the Palermo Protocol contains is applied broadly in international and domestic law outside of transnational situations and cases involving organised criminal groups.
The European Convention against Trafficking
The Council of Europe’s Convention on Action Against Trafficking in Human Beings[4] (“ECAT”) aimed to improve the protection afforded by the Convention against Transnational Organized Crime and the Palermo Protocol, as well as to develop the standards established by them.[5] To achieve this aim, ECAT’s scope is broader than the scope of the Palermo Protocol, applying to all forms of trafficking whether national or transnational, and whether or not connected with organised crime.[6] ECAT adopted in Article 4 the same definition of trafficking in human beings as the Palermo Protocol.
ECAT came into force in February 2007, was ratified by the UK on 17 December 2008, and entered into force in respect of the United Kingdom on 1 April 2009.[7]
ECAT has not been incorporated into English domestic law and as a result cannot be relied upon directly in proceedings. However, it provides part of the interpretive guide to Article 4 of the ECHR, and is a basis for the definition of trafficking in the Modern Slavery Act 2015. As such, despite its lack of direct effect, its definition of trafficking and the rights set out in it guide how domestic law is to be interpreted. Moreover, insofar as the Secretary of State has adopted parts of ECAT as her own policy in guidance (see the section on The National Referral Mechanism below), the Secretary of State must follow that guidance unless there is good reason not to do so.[8]
The European Trafficking Directive
On 5 April 2011 the European Union adopted Directive 2011/36/EU on preventing and combating trafficking in human beings and protecting its victims (“the Trafficking Directive”).[9] The Trafficking Directive recalled older International Labour Organization work on combatting forced labour, adopting a wider definition of trafficking in adults than the Palermo Protocol. In defining trafficking, it includes all of the actions, means, and purposes contained in the Palermo Protocol. It adds that the exchange or transfer of control over a person who has been subject to another action is included in the action of trafficking. It also specifies that exploitation includes the exploitation of criminal activities. The definition of trafficking it gives is as follows:
“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.
…
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.”[10]
The Palermo Protocol definition includes but is not limited to specific types of exploitation and forced labour. Where the Trafficking Directive specifies additional types of exploitation as coming unambiguously within the definition of trafficking, this is complementary to the Palermo Protocol definition, rather than contradicting it.
After the United Kingdom left the European Union, the Trafficking Directive was amended. Insofar as is relevant to the definition of trafficking, the amendment added the exploitation of surrogacy, of forced marriage, and of illegal adoption as explicit types of exploitation covered by the definition.[11] Again, this is complementary to the Palermo Protocol definition of trafficking, rather than contradicting it.
Although the United Kingdom initially exercised a right not to take part in the adoption of the Trafficking Directive and not to be bound by it,[12] the United Kingdom later decided to opt in to the Directive.[13] The Trafficking Directive came into force on 6 April 2013. After the United Kingdom left the European Union the “rights, powers, liabilities, obligations, restrictions, remedies and procedures” arising out of the Trafficking Directive continued in force by virtue of section 4 of the European Union (Withdrawal) Act 2018. In the leading cases on trafficking decided after the end of the implementation period (R v Brecani[14] and R v AAD, AAH, and AAI[15]), the continuing relevance of the Trafficking Directive for the interpretation of the United Kingdom’s international obligations in respect of the protection of victims of trafficking was not questioned by any party or by the court itself.
Subsequently, from 30 January 2023 to 31 December 2023 section 68(1) of the Nationality and Borders Act 2022 disapplied the “rights, powers, liabilities, obligations, restrictions, remedies and procedures derived from the Trafficking Directive” insofar as they were inconsistent with any provision made by or under the Nationality and Borders Act 2022. That provision has now been removed from domestic law through the Retained EU Law (Revocation and Reform) Act 2023 and secondary legislation made under it.
Nonetheless, the Trafficking Directive continues to be relevant to domestic law because it is used as an interpretive guide by the European Court of Human Rights (“ECtHR”), as set out below. The jurisprudence of the ECtHR remains binding on the United Kingdom.
The European Convention on Human Rights
Article 4 of the European Convention on Human Rights (“ECHR”)[16] deals with the prohibition on slavery and forced labour. It provides insofar as is relevant:
“1. No one shall be held in slavery or servitude.
- No one shall be required to perform forced or compulsory labour.”
Article 4 enshrines one of the “basic values of the democratic societies making up the Council of Europe” and gives rise to an absolute right.[17]
The ECtHR uses a broad spectrum of international instruments as guides to the implementation of Article 4 of the ECHR in the context of trafficking. Chief among them is ECAT. The ECtHR has consistently treated ECAT as an interpretive guide to Article 4 ECHR in the context of trafficking, holding that “trafficking itself, within the meaning of Article 3(a) of the Palermo Protocol and Article 4(a) of the Anti-Trafficking Convention, falls within the scope of Article 4 of the Convention”.[18] It has further held that the positive obligations derived from Article 4 ECHR must be considered within the broader context of ECAT and the Palermo Protocol.[19]
Subsequently, the ECtHR has used the Trafficking Directive as part of its interpretative framework for the rights derived from Article 4 ECHR.[20] Alongside these European materials which create strict obligations on states, the ECtHR takes account of a broad spectrum of international legal materials in its interpretation of the Article 4 ECHR rights in the trafficking context. These materials all reinforce the definition of trafficking given in the Palermo Protocol and ECAT.[21]
Domestic law: the Human Rights Act 1998
Sections 3 and 4 of the Human Rights Act 1998 place an obligation on domestic authorities, including courts, to interpret domestic law in accordance with ECHR rights and ECtHR case law. As such, the domestic interpretation of the definition of trafficking requires analysis of the method by which the ECtHR conducts its own interpretation. If domestic courts fail to take into account the ECtHR’s interpretive approach, leading to them providing inconsistent interpretations which fail to protect victims of trafficking, then they may act unlawfully with regard to their obligations under the HRA 1998.
Domestic law: the Modern Slavery Act 2015
The Modern Slavery Act 2015 establishes a series of offences relating to slavery and trafficking, along with a defence to criminal conduct for certain trafficking victims. There are some material differences between the definitions provided by the text of the Modern Slavery Act 2015 and the Palermo Protocol and ECAT. We provide an explanation of these differences here because they can conceivably become relevant when the defence to criminal conduct for certain trafficking victims is being considered.
Section 1 provides for an offence of slavery, servitude and forced or compulsory labour, and section 2 for a separate offence of human trafficking.
The section 1 offence includes some sort of forced work.[22] Under section 1(2) references to slavery, servitude and forced and compulsory labour are to be construed in accordance with Article 4 of the ECHR. Under sections 1(3) and (4) regard shall be had to all the circumstances including any particular vulnerabilities which the victim has. Under section 1(5), “The consent of a person (whether an adult or a child) to any of the acts alleged to constitute holding the person in slavery or servitude, or requiring the person to perform forced or compulsory labour, does not preclude a determination that the person is being held in slavery or servitude, or required to perform forced or compulsory labour.”
The section 2 offence requires the arrangement or facilitation of the transportation of a person with a view to the victim being exploited. Therefore, for the section 2 offence, it is not necessary for any forced labour, or intended or foreseen exploitation, to actually take place. Under section 3, “exploitation” is defined as: slavery, servitude or forced or compulsory labour (s 3(2)); any sexual offence under Part 1 of the Sexual Offences Act 2003 or any offence of taking indecent photographs of children (s 3(3)); where the victim is required, encouraged or expected to give up any organ commercially (s 3(4)); or where the victim is “subjected to force, threats or deception designed to induce him or her… to provide services of any kind…to provide another person with benefits of any kind, or…to enable another person to acquire benefits of any kind…having chosen him or her for that purpose on the grounds that…he or she is a child, is mentally or physically ill or disabled, or has a family relationship with a particular person, and…an adult, or a person without the illness, disability, or family relationship, would be likely to refuse to be used for that purpose” (s 3(5) & (6)).
More so than the section 1 offence, under section 2(2) “It is irrelevant whether V consents to the travel (whether V is an adult or a child)”.
As we explain below, the elements of the definition of human trafficking in the section 2 offence differ in limited respects from the elements of the definition of human trafficking in the international instruments. The section 2 offence creates offences in respect of most, but not all, conduct falling within the international definitions of trafficking. This may become relevant in certain very specific cases where a person wants to rely on the section 45 defence as a victim of human trafficking (rather than as a victim of slavery), but they cannot show that the particular conduct to which they were subject falls within the terms of section 2.
The discussion in the remainder of this section on the MSA 2015 is niche and technical, and can be skipped by readers who are not encountering the specific problem of whether a person satisfies the domestic definition of “victim of trafficking”. We nonetheless include it for the sake of completeness.
Action
The actions proscribed by section 2 are the full range of actions set out in the Trafficking Directive (“recruiting V, transporting, transferring, harbouring or receiving V, or transferring or exchanging control over V”), rather than the more limited range set out in the Palermo Protocol and ECAT. However, those actions are only proscribed by section 2 insofar as the actions involve arranging or facilitating the “travel” of the victim. Pursuant to section 2(5), travel has a broad meaning, of (a) arriving in, or entering, any country, (b) departing from any country, or (c) travelling within any country. The Act does not provide a minimum distance which must be travelled.[23] Nonetheless, where no travel is arranged or facilitated, the action element of the definition of trafficking in section 2 is not satisfied. As such, under the MSA 2015, a person is not a victim of “human trafficking” if there is no travel arranged or facilitated. This is a clear difference with the situation in the Palermo Protocol, ECAT, and the Trafficking Directive.
It is not hard to imagine scenarios where trafficking may take place under the Palermo Protocol and ECAT definition but not under the MSA 2015 definition. People recruited online for online sexual exploitation in their own homes may not satisfy the “action” criterion of the MSA 2015, but would satisfy the action criterion in the Palermo Protocol and ECAT. The same may go for a “cuckooing” situation, where person who is in their own home is forced to allow its use for drug dealing.
In a limited number of cases this difference between the “action” requirement in international law and in the MSA 2015 may have consequences for people accused of engaging in criminal offences committed as a result of being trafficked. As we set out in Chapter 6 below, such people may ordinarily have a right to rely on the statutory defence in section 45 of the MSA 2015. The defence in section 45 of the MSA 2015 is available to those who offend as a result of being a victim of slavery (which includes for this purpose servitude and forced or compulsory labour[24]) or a victim of human trafficking (i.e., a section 2 offence[25]). However, victims of trafficking under international law may not be entitled to rely on the statutory defence if the action of trafficking involved no travel, and may therefore be deprived of protection.
Some people who do not satisfy the definition of “victim of trafficking” in the MSA 2015 may nonetheless satisfy its definition of “victim of slavery” (which includes servitude and forced and compulsory labour). Whether a person is a victim of slavery is to be determined in line with Article 4 of the ECHR.[26] The caselaw of the ECtHR gives a broad definition to forced or compulsory labour, and so it is likely that if a person only failed to satisfy the definition of trafficking because there was no arranging or facilitating of their travel, they would likely still be able to be treated as a victim of forced or compulsory labour.
In S.M. v. Croatia[27] the ECtHR clarified that the notion of “forced or compulsory labour” aims to protect against instances of serious exploitation irrespective of whether they are related to the specific human-trafficking context.
In Van der Mussele v Belgium the ECtHR held that a starting point for interpreting Article 4 ECHR was that “all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily” was forced or compulsory labour.[28]
In this light, most cases which do not fall within the definition of “victim of human trafficking” in the MSA 2015 are nonetheless likely to fall within the definition of “victim of slavery”. However, it is conceivable that there will nonetheless be some cases which slip between these definitions. The victim of cuckooing who is recruited by means of abuse of power for the purpose of forced criminal exploitation may neither be a victim of trafficking nor of slavery under domestic law, despite being a victim of trafficking under international law.[29]
It must be recalled that the United Kingdom’s international obligations apply to all victims of trafficking under international law, not just those who are victims of trafficking under the MSA 2015. As a result, even if a person slips between the cracks of the domestic law definitions of “victim of trafficking” and “victim of slavery”, and so cannot access the defence for victims of trafficking set out in section 45 of the MSA 2015, they will still have all of the other rights to non-liability which we explain further in Chapters 2, 4, 5, and 6.
Means
Where certain types of exploitation are used, the MSA 2015 does not require means to be used for a person to fall within the definition of a victim of trafficking or slavery. The section 1 offence of slavery, servitude, or forced or compulsory labour does not require means. As for the section 2 offence, where the relevant exploitation constitutes certain sexual offences (section 3(3)), or certain offences relating to the removal of organs (section 3(4)), the means are also not required (section 3(3)).
Where a person is subject to force, threats, or deception, designed to induce them to provide services or benefits, or to enable another person to acquire benefits of any kind, the “means” of trafficking will be present (section 3(5)).
Finally, where a person uses or attempts to use force, threats, or deception designed to induce the victim to provide services or benefits, or to enable another person to acquire benefits of any kind, the “means” of trafficking will be present. If a person has chosen their victim on the ground that the victim is a child, is mentally or physically ill or disabled, or has a family relationship with a particular person, and an adult, or a person without the illness, disability, or family relationship, would be likely to refuse to be used for that purpose, the means of trafficking will be present.[30]
These are the exclusive means relevant to the domestic definition of trafficking in the MSA 2015. Forms of coercion other than force, threats, or deception; abduction not involving force, threats, or deception; fraud not involving deception; and the abuse of power or of a position of vulnerability; and “the giving or receiving of payments or benefits to achieve the consent of a person having control over another person” are all means which exist in the Palermo Protocol and ECAT but not the MSA 2015.
As a result, again, there may be circumstances in which a person is a “victim of trafficking” in international law but not under the MSA 2015 because the definition of “means” in section 3 of the MSA 2015 is narrower than the international definition. As with the issue we set out above regarding the narrow definition of the “action” of trafficking in the MSA 2015, this may lead to people not being defined as a “victim of trafficking” under the MSA 2015, and therefore not having access to its protections under section 45, despite the United Kingdom having obligations of non-liability towards them under international law.
For the purpose of exploitation
Where means are required and exploitation is independent of the means, the types of exploitation that can satisfy section 3 of the MSA 2015 (relevant only to the section 2 offence and not the section 1 offence) are limited in nature. As set out in sections 3(5) and (6), it appears that the exploitation is the provision of services or benefits, or enabling another person to acquire benefits of any kind. This is capable of interpretation consistent with the Palermo Protocol, ECAT, and the Trafficking Directive, but is not automatically so.
Domestic law: section 69 Nationality and Borders Act 2022
For a limited number of purposes in the Modern Slavery Act 2015 (in particular the identification of victims), pursuant to section 56(1) the definition of “victim of trafficking” is to be determined by reference to the Nationality and Borders Act 2022. In turn, section 69 NBA 2022 provides that “victim of slavery” and “victim of human trafficking” have the meanings given in regulations made by the Secretary of State. The Slavery and Human Trafficking (Definition of Victim) Regulations 2022 sets out these definitions:
“2.— Victim of slavery
(1) For the purposes of Part 5 of the 2022 Act, “victim of slavery” means a person who has been subjected to slavery, servitude or forced or compulsory labour.
(2) In determining whether a person has been subjected to slavery, servitude or forced or compulsory labour, regard may be had to all the circumstances including—
(a) any of the person’s personal circumstances (such as the person’s age, the person’s family relationships, and any physical or mental disability or illness) that significantly impair the person’s ability to protect themselves from being subjected to slavery, servitude or forced or compulsory labour;
(b) any work or services provided by the person.
(3) The consent of a person (whether an adult or a child) to any of the conduct alleged to show that the person has been subjected to slavery, servitude or forced or compulsory labour is not relevant to a determination as to whether the person is a victim of slavery.
3.— Victim of human trafficking
(1) For the purposes of Part 5 of the 2022 Act, “victim of human trafficking” means a person (“V”) whose travel is arranged or facilitated by another person (“P”)—
(a) using any of the methods mentioned in paragraph (5), and
(b) with a view to V being exploited.
(2) P 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.
(3) The consent of V (whether V is an adult or a child) to the travel is not relevant to a determination as to whether V is a victim of human trafficking.
(4) It is irrelevant for the purpose of paragraph (1)(a) whether the person using the method is P or another person.
(5) The methods are—
(a) in a case where V is an adult at the time the method is used—
(i) the threat or use of force or other coercive behaviour;
(ii) abduction, kidnap or false imprisonment;
(iii) fraud or other deception;
(iv) abuse of power or a position of vulnerability;
(v) the giving of payments or other benefits to achieve the consent of a person who has control over V;
(b) in a case where V is a child at the time the method is used, any method.
(6) For the purposes of paragraph (1)(b), a person is being exploited if the person is—
(a) prostituted by another person or otherwise subject to sexual exploitation;
(b) subjected to slavery or servitude or forced or compulsory labour;
(c) encouraged, required or expected to…do anything which involves the commission, by that person or another person, of an offence… of commercial dealings in organs and restrictions on use of live donors…
(d) subjected to force, threats or deception designed to induce that person—
(i) to provide services of any kind;
(ii) to provide another person with benefits of any kind, or
(iii) to enable another person to acquire benefits of any kind.
(7) For the purposes of paragraph (6)(a), a person is prostituted by another person (“A”) where that person is compelled by A to offer or provide sexual services to a different person in return for payment or a promise of payment (whether to A or anyone else).
(8) For the purposes of paragraph (6)(a), a person is subject to sexual exploitation if… something is done to that person which involves the commission of an offence [of] …indecent photographs of children… [and other sexual offences under part 1 of the Sexual Offences Act 2003 and analogous legislation in Scotland and Northern Ireland].
Again, these provisions require “travel”, which is missing from any requirement within the international legal instruments.
Domestic law: Modern Slavery Statutory Guidance
Section 49(1) of the Modern Slavery Act 2015 requires the Secretary of State to issue guidance about indicators of trafficking, supporting victims of trafficking, and determining whether a person is a victim of trafficking.
The Modern Slavery Statutory Guidance, in version 4.3 at the time of us writing, now appears online at:
The Statutory Guidance notes that “Modern slavery encompasses human trafficking and slavery, servitude and forced or compulsory labour. Human trafficking consists of three basic components: action, means and purpose of exploitation. All three components must be present in an adult trafficking case; for child trafficking the ‘means’ component is not required”
The Statutory Guidance goes on to provide that the definition of human trafficking, slavery, servitude and forced and compulsory labour is provided in The Slavery and Human Trafficking (Definition of Victim) Regulations 2022 and sets out the definition of human trafficking provided by Article 4 of ECAT.
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[1] Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime 2000.
[2] United Nations, ‘United Nations Treaty Collection’ (United Nations Treaty Collection, 8 April 2022) <https://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XVIII-12-a&chapter=18&clang=_en> accessed 8 April 2022.
[3] Palermo Protocol art 4.
[4] Council of Europe Convention on Action against Trafficking in Human Beings 2005 (Council of Europe Treaty Series – No 197).
[5] Council of Europe Convention on Action against Trafficking in Human Beings Preamble.
[6] Council of Europe Convention on Action against Trafficking in Human Beings art 2.
[7] Council of Europe, ‘Chart of Signatures and Ratifications of Treaty 197’ (Treaty Office, 7 February 2022) <https://www.coe.int/en/web/conventions/full-list> accessed 7 February 2022.
[8] R (G) v SSHD [2016] 1 WLR 4031; (R(O & H) v SSHD [2019] EWHC 148 (Admin) [14].
[9] Directive 2011/36/EU of the European Parliament and of the Council of 5 April 2011 on preventing and combating trafficking in human beings and protecting its victims, and replacing Council Framework Decision 2002/629/JHA 2011.
[10] Directive 2011/36/EU of the European Parliament and of the Council of 5 April 2011 on preventing and combating trafficking in human beings and protecting its victims, and replacing Council Framework Decision 2002/629/JHA art 2.
[11] Directive (EU) 2024/1712 of the European Parliament and of the Council of 13 June 2024 amending Directive 2011/36/EU on preventing and combating trafficking in human beings and protecting its victims 2024.
[12] Directive 2011/36/EU of the European Parliament and of the Council of 5 April 2011 on preventing and combating trafficking in human beings and protecting its victims, and replacing Council Framework Decision 2002/629/JHA recital 35.
[13] Commission Decision of 14 October 2011 on the request by the United Kingdom to accept Directive 2011/36/EU of the European Parliament and of the Council on preventing and combating trafficking in human beings and protecting its victims, and replacing Council Framework Decision 2002/629/JHA (notified under document C(2011) 7228).
[14] Brecani, R v [2021] EWCA Crim 731, [2021] 1 WLR 5851.
[15] AAD, AAH, and AAI, R v [2022] EWCA Crim 106, [2022] 1 WLR 4042.
[16] Convention for the Protection of Human Rights and Fundamental Freedoms 1950.
[17] Rantsev v Cyprus and Russia (no 25965/04) (2010) 51 EHRR 1 [283].
[18] Rantsev v Cyprus and Russia (no. 25965/04) (n 17) para 282.
[19] Rantsev v Cyprus and Russia (no. 25965/04) (n 17) para 285.
[20] VCL and AN v The United Kingdom (nos 77587/12 and 74603/12) (2021) 73 EHRR 9; GS v United Kingdom (no 7604/19); SM v Croatia (no 60561/14) (2021) 72 EHRR 1.
[21] See e.g. VCL and AN v The United Kingdom (nos. 77587/12 and 74603/12) (n 20); SM v Croatia (no. 60561/14) (n 20).
[22] Webb & Somerset-How, R v [2025] EWCA Crim 1491 [79].
[23] Ali, R v [2015] EWCA Crim 1279, [2015] 2 Cr. App. R. 33.
[24] Modern Slavery Act 2015 s 56(1).
[25] Modern Slavery Act s 45(5) & 56(2).
[26] Modern Slavery Act s 1(2).
[27] SM v Croatia (no. 60561/14) (n 20).
[28] Van der Mussele v Belgium (no 8919/80) (1984) 6 EHRR 163 [32].
[29] See by analogy Webb & Somerset-How, R v (n 22).
[30] Modern Slavery Act s 3(6).