Modern Slavery Act 2015 by Kevin Molloy

Criminal Law

Modern Slavery Act 2015

The introduction of this consolidating act is to be welcomed.  As with all recent changes to criminal legislation over the past 20 years it is also accompanied with an increase in the length of sentence a defendant can expect to receive if convicted.  In this case if you are convicted under section 1 (holding a person in slavery or servitude or requiring a person to perform forced or compulsory labour) or section 2 (arranging or facilitating the travel of another with a view to them being exploited) then the court could impose a life sentence.  Previously the maximum you could receive was 14 years in custody.

A further offence under section 4 (committing an offence with an intention of committing an offence under the above section 2) which is designed to deal with those criminally involved in the early stages of assisting human traffickers, will see offenders facing a sentence of up to 10 years in prison.

Confiscation and Reparation orders are included as part of the punishment for those convicted. It is only right that victims should be paid compensation by those who have in many cases benefitted financially from the exploitation of their vulnerable victims.  In some cases this may include as a starting point simply adding up the wages victims should have been paid for the years of unpaid work they have carried out. As counsel involved in such a case in Cardiff in 2014, the victim was in the charge of the defendants for 13 years! Such orders will of course be on top of any prison sentence imposed.

Prevention and Risk orders are included as part of the arsenal of legislative powers designed to combat this type of criminality. Under section 14 of the new act such an order may be imposed if there is “a risk” that the defendant “may” commit a slavery or human trafficking offence. The order simply prohibits the defendant from doing anything described in the order.  Such a prohibition on activity may include a prohibition on foreign travel, although section 18 limits such a prohibition to a maximum of 5 years.  As the imposition of this type of order would usually fall for consideration following a conviction under the new act, the “risk” threshold may have already been met as a result of that very conviction. A breach of such orders could result in a five year prison sentence.

Interestingly at section 40 the act refers to the appointment of The Independent Anti-slavery Commissioner, who is to encourage good practice in the prevention, detection, investigation and prosecution of slavery and human trafficking offences. It is no doubt hoped that with the appointment of such a commissioner that the prosecution of such offending will be more co-ordinated and focused than it has been in the past and that a nationwide standard approach can be adopted in relation to how victims are treated.  Part of the difficulty in prosecuting such cases is that the victims are often not inclined to appreciate the fact that they have been exploited.  Elements of “Stockholm syndrome” may come into play as indeed may a genuine fear for loved ones not in the UK being impacted negatively as a result of a victim giving evidence against those who have exploited them.

The act also provides for the provision of civil legal aid funding for victims to apply for leave to remain in the UK, to make a claim under relevant employment law or simply to claim for damages.

Under section 52 Public Authorities will be obliged to notify the Secretary of State if they have reasonable grounds for believing a person may be the victim of slavery or human trafficking.  This should address the issue of councils or other authorities coming across evidence of such exploitation and not knowing if it is their job to do anything about it.  Hopefully now a protocol can be put in place to assist with this new obligation to notify the Secretary of State.

Finally of note, as far as this author is concerned is section 54, which is titled “Transparency in supply chains etc”.  Under this section, commercial organisations of a certain size that operate in the UK will have to prepare an annual “slavery and human trafficking statement” for that particular organisation. It is to be assumed that Parliament is putting the onus on commercial enterprises to take positive steps to make certain enquiries within their own organisation and indeed through their suppliers that they applied due diligence to ensure that slavery and human trafficking is not taking place. Due diligence is of course a concept familiar to many organisations and time will tell how effective this compliance obligation is in rooting out and discouraging the abuse of these exploited individuals.

Kevin Molloy

Church Court Chambers, LONDON.

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