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Slavery, Servitude and Forced or Compulsory Labour

 

Contents:

Principle

Section 71 of the Coroners and Justice Act 2009 ("the 2009 Act") creates an offence of holding another person in slavery or servitude or requiring them to perform forced or compulsory labour. The offence came into force on 6 April 2010.

Section 71 provides that:

1) A person (D) commits an offence if:
(a) D holds another person in slavery or servitude and the circumstances are such that D knows or ought to know that the person is so held, or
(b) D requires another person to perform forced or compulsory labour and the circumstances are such that D knows or ought to know that the person is being required to perform such labour.
2) In subsection (1) the references to holding a person in slavery or servitude or requiring a person to perform forced or compulsory labour are to be construed in accordance with Article 4 of the Human Rights Convention (which prohibits a person from being held in slavery or servitude or being required to perform forced or compulsory labour).
3) A person guilty of an offence under this section is liable:
(a) on summary conviction, to imprisonment for a term not exceeding the relevant period [12 months] or a fine not exceeding the statutory maximum or both;
(b) on conviction on indictment, to imprisonment for a term not exceeding 14 years or a fine, or both.

4) In this section:
"Human Rights Convention" means the Convention for the Protection of Human Rights and Fundamental Freedoms agreed by the Council of Europe at Rome on 4 November 1950;
"the relevant period" means:
(a) in relation to England and Wales, 12 months; and
(b) in relation to Northern Ireland, 6 months.

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Background

In introducing this offence, it was Parliament's intention to introduce clear, enforceable offences of servitude and forced labour in order to give further and specific protection to those who may be the victims of forced labour.

Trading in slaves was already an offence under the Slave Trade Acts 1824-1873. However, section 71 makes clear that holding a person in slavery is also an offence. There is a range of pre-existing legislation which could cover behaviour relating to servitude and forced or compulsory labour. This includes general offences such as false imprisonment, blackmail and assault, and employment legislation including offences relating to working hours, minimum wages and health and safety at work.

There are already specific offences of trafficking people for labour exploitation (section 4 Asylum and Immigration (Treatment of Claimants) Act 2004), and trafficking people for sexual exploitation (sections 57-59 of the Sexual Offences Act 2003). Where there is sufficient evidence to bring criminal proceedings for these specific offences, they should be charged in preference to the s71 offence.

The section 71 offence will be available in circumstances where the person was not trafficked or the trafficking element cannot be proved to the criminal standard. In cases where the person was not trafficked, the benefit of the section 71 offence is that it allows prosecutors to present the full extent of the behaviour, rather than having to rely on general offences such as assault, false imprisonment or theft, which may not fully reflect the nature of the offending. Notwithstanding this, prosecutors should also consider charging specific offences in addition to the s71 offence where appropriate (for example where the person has been physically or sexually assaulted while subjected to forced labour)

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Elements of the Offence

Elements of the offence
A person commits the offence if they hold the other person (or persons) in slavery or servitude or require another person (or persons) to perform forced or compulsory labour. The circumstances must be such that the defendant knows or ought to know that the person is being so held or required to perform such labour.

Section 71 does not specifically define slavery, servitude or forced or compulsory labour, but rather refers to Article 4 of the European Convention on Human Rights. Therefore, in interpreting section 71, police, prosecutors and the courts need to have regard to existing case-law on Article 4 ECHR and international conventions to find guidance defining the parameters of each of the terms. A brief synopsis of the terms follows.

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Slavery or Servitude

Slavery is described as the status or condition of a person over whom any or all of the powers attaching the right of ownership are exercised. In essence, characteristics of ownership need to be present for a state of slavery to exist

Servitude is a linked but much broader term than slavery. In Siliadin v France [2005] EHRLR 660 (para 123), the ECHR reaffirmed that servitude "prohibits a particularly serious form of denial of freedom. It includes, in addition to the obligation to provide certain services to another, the obligation on the "serf" to live on the other's property and the impossibility of changing his status".

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Forced or Compulsory Labour

.The ECHR in the case of Van der Mussele 8919/80 affirmed that the ILO conventions were the starting point for interpreting Article 4. The conventions, defined forced or compulsory labour as being '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'. To that end, the section 71 offence will require an element of coercion or deception between the defendant and the victim.

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Evidential Considerations

Whether there is evidence that a person was subject to servitude or forced or compulsory labour will depend on the circumstances of the individual case. However, there are a number of factors which may, depending on the circumstances, indicate that an individual may be held in servitude or subjected to forced or compulsory labour. The essential elements are those of coercion or deception, which may be demonstrated in a number of ways. The kind of behaviour that would normally, of itself, be evidence of coercion includes (but is not limited to):
- violence or threats of violence by the employer or the employer's representative;
- threats against the worker's family;
- threats to expose the worker to the authorities, for example because of the worker's immigration status or offences they may have committed in the past
- the person's documents, such as a passports or other identification, being withheld by the employer;
- restriction of movement;
- debt bondage;
- withholding of wages;

Other factors that may be indicators of forced labour include (but are not limited to):
the worker being given no information, or false information, about the law and their employment rights;
- excessive working hours being imposed by the employer;
- hazardous working conditions being imposed by the employer;
- unwarranted and perhaps unexplained deductions from wages;
- the employer not paying the full tax or national insurance contributions for the worker;
- the absence of any formal or implied contract of employment;
- poor accommodation provided by the employer;
- poor or misleading information having been given about the nature of the employment;
- the person being isolated from contact with others;
- money having been exchanged with other employers/traffickers etc for the person's services in an arrangement which has not been agreed with the person concerned or which is not reflected in his remuneration.

In practice, conditions of servitude and forced labour often involve physical and sexual assaults, such as restriction of liberty or violence. It is important to recognise that establishing that a person was held in servitude or required to undertake forced or compulsory labour does not require the prosecution to prove actual physical force was used or that the victim was physically detained or imprisoned. There may be situations where no physical violence is used or there are no restrictions on movement but more psychological or coercive means are used to effect control. Requiring someone to work in conditions contrary to human dignity might reflect the circumstances in which exploited victims are compelled to work, where they are deprived of essential needs and subject to humiliation, threats and insults.

For example, the victim may have their passport confiscated, be required to work long hours with few breaks, under poor conditions suffering verbal abuse but is not physically assaulted in any way. Accommodation may have been made a condition of employment, for which a high rent is paid, comparative to earnings, and which creates a debt bondage relationship. The victim may be told that if they leave the accommodation they will lose their employment or have to continue to pay for accommodation. Whilst they may be physically free to leave, they are effectively a prisoner of their circumstances.

The case of Siliadin v France is illustrative of the kinds of conduct that may, cumulatively amount to holding a person in servitude. The evidence showed the applicant, an alien who arrived in France at the age of sixteen, had worked for several years for the respondents carrying out household tasks and looking after their three, and subsequently four, children for seven days a week, from 7 am to 10 pm, without receiving any remuneration. She was obliged to follow instructions regarding her working hours and the work to be done, and was not free to come and go as she pleased, though she was allowed out on her own with permission of her employers. The Court unanimously held that there has been a violation of Article 4 of the Convention.

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Exceptions

Article 4(3) of the ECHR sets out exceptions (below) which are applicable to the s71 offence. For the purpose of this offence the term "forced or compulsory labour" shall not include the following exceptions:
any work required to be done in the ordinary course of detention imposed according to the provisions of Article 5 of this Convention or during conditional release from such detention;
any service of a military character or, in case of conscientious objectors in countries where they are recognised, service exacted instead of compulsory military service;
any service exacted in case of an emergency or calamity threatening the life or well-being of the community;
any work or service which forms part of normal civic obligations

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Circumstances When The Offence May Be Used

The offence can be used to cover situations where the victim has not been moved, or trafficked, or where the Crown is unable to prove that the defendant believed that the victims had been trafficked into the UK before being trafficked within the UK.

The circumstances when the offence might be used are:
Where there are limitations in the human trafficking legislation; section 4(1) Asylum and Immigration (Treatment of Claimants) Act 2004. However, if there is evidence to support trafficking charges, it is important that the fact of trafficking is reflected in the charges and section 4 should normally be charged in preference to the s71 offence.
Where victims have either been smuggled into the UK or (in the case of EU citizens) travelled to the UK of their own accord, but are then trafficked (moved) and exploited once here.
Where the victims are EU citizens or in circumstances where the victim was not trafficked.

Sentencing

The maximum penalty on conviction on indictment is imprisonment for a term not exceeding 14 years or a fine or both.
The maximum penalty on summary conviction is imprisonment for a term not exceeding six months (with the usual modification for if/when the increase to 12 months in the CJA 2003 is commenced) or a fine or both.

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