The role of UK law as a model for combating human trafficking and slavery
This was published under the 2010 to 2015 Conservative and Liberal Democrat coalition government
Speech by Dominic Grieve QC MP at City University on human trafficking
“It is a great pleasure to be able to speak to you this evening. I have attended a number of functions and events at the City Law School over the years and I am familiar with the excellent contribution it makes to legal education. I would like to thank Professor Penny Cooper for inviting me back today.
“I also know something of the impressive work that you produce here. Indeed, it was around this time last year that I had the pleasure of presenting an award to Andrew McIntyre at the LawWorks and Attorney General Student Awards. Andrew was the winner of ‘The Access to Justice Foundation Student Prize’. A further two City Law School students, Frederick Lyon and James Potts, were highly commended in the same category.
“The thrust of what I want to say this evening is about the role of the UK in modelling the rule of law to combat human trafficking and slavery. But I thought it might be helpful to start by explaining something about my role as a Law Officer and how this relates to the subject under discussion.
“The office of Attorney General covers a wide range of functions. In addition to being chief legal adviser to the Crown, and thus to Government, I have the privilege of being guardian of the public interest and a protector of charity. It is a responsibility which includes ministerial and non-ministerial duties, and the role of giving effect to the constitutional principle of the rule of law. I am not a member of Cabinet, but I am invited by the Prime Minister to attend when there is an issue under discussion within my areas of interest. There are, in fact, more than 40 separate functions of the Attorney General. Others include:
- legal adviser to the sovereign
- power to bring proceedings to restrain vexatious litigants
- power to bring, or intervene in, certain family law and charity proceedings, and in other legal proceedings in the public interest
- appointing advocates to the court and special advocates
- referring certain Unduly Lenient sentences to Court of Appeal
- applying to the High Court to order an inquest
- leader of the Bar ex officio
“I do not carry out the work of the Attorney General alone. The Solicitor General, Edward Garnier QC, is my deputy and, together, we are known as the Law Officers. The Law Officers Act of 1997 enabled any function of the Attorney General to be exercised by the Solicitor General. We, therefore, share much of the work that falls to be done in my name.
“As a government minister, I account to Parliament for the 2 largest prosecuting departments - the Crown Prosecution Service and the Serious Fraud Office. I also have responsibility for Her Majesty’s Crown Prosecution Service Inspectorate. This superintendence role involves supporting the independence of the prosecutors in taking prosecution decisions.
“To complete the Law Officer picture for the United Kingdom, I need also to mention the Advocate General for Scotland, who is the UK Law Officer responsible for advising the UK government on matters of Scots law. In the UK’s devolved administrations, similar roles are played by the Lord Advocate in Scotland, the Attorney General for Northern Ireland and the Counsel General in Wales.
“While the lead in policy making on human trafficking lies with the MOJ and the Home Office, it is the Law Officers task to help formulate criminal justice policy and help ensure in fields such as human trafficking that the policy works in procedure.”
The role of the UN and EU in shaping and influencing legislation
“So, turning to the substance of what I will say to you this evening, I want first to outline the role of the UN and EU in shaping and influencing legislation in this area.
“Our legal framework, which criminalises human trafficking and slavery, has been influenced and formed primarily by UN and EU Conventions and Directives from which UK domestic legislation and government policy flows. Its origins lie in the growing awareness that globalisation has been leading to growing transnational crime and that migration opportunities provide a fertile field for criminals.
“The UN Convention against Transnational Organised Crime was adopted and signed in Palermo, Italy in December 2000 and is the main instrument against transnational organised crime. The Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children, entered into force in December 2003.
“This provided the international instrument for preventing and combating human trafficking and is generally known as the Palermo Protocol. Specifically, the Protocol provided international and mutually recognised interpretation and criminalisation. It also, importantly, established the protection to be afforded to victims.
“The EU Framework Decision on trafficking in human beings was adopted in 2002 to address trafficking at EU level. It introduced common EU framework provisions such as criminalisation, penalties, jurisdiction and extradition. Member States were given 2 years in which to bring the decision into domestic effect, including any legislation.
“It was this Directive, then, which provided the impetus for the introduction of UK legislation found in the Sexual Offences Act 2003 and the Asylum and Immigration Act 2004.
“The Council of Europe Convention on Trafficking was implemented in April 2009. Whilst this didn’t change our legislation, it required the introduction of government policies to provide an infrastructure for the early identification of victims and their referral to enhanced support.”
“In terms of our legislation, the Sexual Offences Act 2003 criminalised the trafficking into, within, and out of, the UK for the purposes of sexual exploitation.
“Next, the Asylum and Immigration Act 2004 criminalised trafficking into, within, and out of, the UK for all other forms of exploitation. This legislation was also sufficiently wide enough for prosecutors to prosecute traffickers for a wide range of exploitative conduct.
“Both offences attract maximum penalties of up to 14 years imprisonment on conviction and are lifestyle offences for the purposes of proceeds of crime.
“The government opted-in to the EU Directive on Human Trafficking in March 2011. This Directive replaces the Council Framework Decision of 2002 and represents a critical step in addressing human trafficking more comprehensively. Further legislative change to these offences is now currently going through Parliament in the Protection of Freedoms Bill and should enable the UK to comply with the EU Directive on Human Trafficking.
“The amendments extend territorial jurisdiction and will enable us to prosecute where the trafficking of victims has taken place anywhere in the world by a trafficker who is resident in the UK. This legislation should be in force by April 2013. Furthermore, legislation to criminalise human trafficking has now been supplemented by a stand-alone offence of slavery, servitude and forced or compulsory labour. This offence was introduced in April 2010 under the Coroners and Justice Act 2009 to criminalise those who hold another person in slavery or servitude or require them to perform forced or compulsory labour. This offence too has a maximum penalty of up to 14 years imprisonment.
“Cases of human trafficking may also be prosecuted under other legislation. For example, this might include offences such as conspiracy to traffic, assisting unlawful immigration to a member state (known as facilitation), combined with serious criminal offences such as rape, kidnapping, false imprisonment and threats to kill. These offences are not necessarily lesser charges, as they may carry similar or more serious penalties than human trafficking charges. But they may be used in circumstances where evidence obtained does not support charges of trafficking, or it is not in a form that is reliable and admissible in a court in England and Wales.
“Additionally, the UK is able to provide a full range of legal assistance to judicial and prosecuting authorities in other countries for the purposes of criminal investigations and criminal proceedings there.”
Taking a human rights approach
“The Palermo Protocol, that I referred to earlier, provides that one of its three purposes is: ‘To protect and assist the victims of such trafficking, with full respect for their human rights.’
“There are 2 European legal orders: European Union law and Council of Europe law. These were originally 2 distinct regional legal orders which now have an increasing overlap and provisions of both legal orders apply to victims of human trafficking. The primary legal instrument of Council of Europe law is the European Convention on Human Rights (ECHR).
“The Council of Europe Convention on action against Trafficking in Human Beings 2005 was adopted by the UK in 2008. It places specific and positive obligations on all Member States to protect the rights of victims and to provide them with access to medical, legal and counselling services. Whilst not enshrined in domestic law, policies and rules ensure victims rights.
“The Convention also required the government to introduce a number of provisions to improve the identification of victims and bring more cases to justice. This was implemented in the UK through the National Referral Mechanism which is a single framework centred on victim identification and referral to appropriate support.”
Protection and support for victims in giving evidence
“We know that trafficked victims often face barriers in coming forward to give evidence - they don’t always wish to co-operate with the authorities, and they are sometimes unable to.
“Often, they are in fear of the consequences of giving evidence against their traffickers, because of the threat of what might happen to them or to their families in their country of origin. This is particularly important as we realise that many victims take significant risks in giving evidence.
“If the police identify that a witness is vulnerable or subject to intimidation, the victim’s evidence-in-chief can be video-recorded for presentation in court. Video-recorded cross-examination can also be considered admissible if the witness has already been permitted to give their evidence-in-chief on video prior to the court case. This is one example, but there is a range of other ‘special measures’ that can be used assist vulnerable trafficked victims when giving evidence.”
“In tackling human trafficking, no single agency or government organisation alone can provide a comprehensive response. A multi-agency approach is needed to provide integrated solutions.
“At the strategic level, an Inter-Departmental Ministerial Group draws together Ministers of the relevant departments and the Devolved Administrations to determine and review the UK’s counter-trafficking policy, as well as to monitor progress against the government’s strategy on human trafficking.
“At official level, policy on trafficking is kept under review by a range of groups comprising representatives of the relevant government departments and non-governmental organisations with specialist knowledge in this field.
“At the operational level, the United Kingdom Human Trafficking Centre, established in 2005, is a multi-agency unit that provides a point of co-ordination for law enforcement operations. UK law enforcement and prosecutors also participate in Joint Investigation Teams which are a most effective way of tackling the chain of criminals across different countries responsible for recruiting, moving and exploiting vulnerable victims.
“In one high profile joint investigation with Romania in 2010, 26 traffickers were arrested and prosecuted in Romania and 69 arrested in the UK for a range of other exploitative offences. Non-governmental organisations were involved in the planning stages to advise on victim issues and to provide essential support.”
Role of case law and precedents and sentencing guidelines
“Sanctions must be a deterrent to traffickers and, in ensuring that appropriate sentences are handed down, Sentencing Council guidelines are issued to the judiciary identifying additional aggravating and mitigating factors which should be applied in trafficking cases.
“In addition, a number of significant trafficking cases have been referred to the Appellate courts, either by convicted defendants appealing their conviction or sentence, or by me, under the unduly lenient sentence regime. Judgments handed down in these cases provide a good source of reference in interpretation and definition of our trafficking and slavery legislation. This assists advocates and the judiciary in subsequent cases and in identifying factors to determine the relevant sentencing levels.”
Role of UK in influencing law in other jurisdictions
“People trafficking is a global criminal enterprise and, therefore, our approach has to be international. Whilst the UK is primarily a destination country for human trafficking, in tackling this crime through successful law enforcement and prosecution, we rely on effective international co-operation. Most cases of human trafficking require assistance from other jurisdictions in bringing a prosecution. The principal mechanism for obtaining or exchanging information between different jurisdictions is through mutual legal assistance.
“I referred earlier to my role in superintending the Crown Prosecution Service - the CPS. As the leading prosecution authority in the UK, the CPS has a key role in working with criminal justice partners overseas on rule of law and capacity building.
“The aim of the CPS international work is twofold: firstly, to improve the gathering of evidence from overseas to support prosecutions in the UK and protect victims; and secondly, to share our experience with our partners overseas to enable them to strengthen their criminal justice systems and rule of law. This helps traffickers to be stopped and prosecuted before they come to the UK.
“This work is essential. Many of the source and transit countries for trafficking are targeted by organised criminals due to the perceived weakness of the rule of law in those countries. The CPS has a positive programme of seeking to work in many of these countries to assist them in strengthening their criminal justice systems. This includes:
- advising law makers on changes in legislation and policies
- working with practitioners to train them, and
- identifying and assisting in removing key strategic blockages to successful prosecutions within the court system
“Despite all of the positive steps that have been taken, both at home and overseas, I recognise that there is much to do in combating human trafficking and slavery. Some of the areas where improvement is required include:
- the early identification of victims
- overcoming difficulties in penetrating communities into which victims may have been trafficked
- raising awareness of trafficking, and
- making available consistent data to identify the true scale of trafficking in the UK and the full extent of our response
“However, I am confident that, collectively in the UK, we are moving in the right direction, particularly because we seek to put the victims of crime at the heart of the criminal justice system.
“It is crucial that our continuing aim is to ensure there are no safe havens for traffickers and that their victims are fully and properly protected. The government is committed to seeing that this is achieved.”