“The great human rights issue of our time.” Those are the words the Rt Hon Theresa May MP used to describe modern slavery. In an article published recently, she declared that her Government would be committed to excising this societal cancer, as old as is it is evil.
The Modern Slavery Act of 2015 consolidated large parts of pre-existing law. Whereas previously prosecutions had to rely on disparate sections of sexual offences or human trafficking statutes, the act put the definitions and regulations in one place. It also permanently inscribed the Universal Declaration of Human Rights’ definition of slavery into British law. It was the first of its kind in Europe, as many countries in the continent still rely on older, less specialised legislation to guard against slavery.
The scope of the problem
Present-day slavery is an enormous problem. Despite more than two centuries passing since abolishing the legal institute of the slave trade, the Home Office estimates the number of modern slaves in Britain is anywhere from 10,000 to 13,000. This is middling for a country of our development - it is substantially fewer than Italy, which the Global Slavery Index estimates has more than 100,000 slaves, but it is also vastly more than the 900 believed to be in Norway.
The vast majority, according to official statistics, are brought here from overseas. Some are tricked, others coerced, and a great deal simply kidnapped. Only 6% of modern slaves are from the UK, and foreign victims describe being given false passports and documentation to evade the scrutiny of our border authorities. A variety of vehicles are used to traffick slaves into the UK, including small aeroplanes, boats and trucks.
Soon, victims find themselves in the musty shadows between the visibility of the spotlights shone on homelessness and poverty. It is estimated that 35 per cent of slaves in the UK are sexually exploited. A further quarter are forced into labour without pay, and ten per cent are domestic servants.
The Modern Slavery Act
In passing the Modern Slavery Act last year, the Government did more than just create a specific offence for the crime. In a further bound in the right direction, a defence was constructed for people who commit crimes while a slave. As of last year, if someone is compelled to commit fraud or theft as a consequence of being a slave, they will not be punished or incarcerated. In order to apply for the defence, called section 45, they must, among other things, be able to prove that their action was a “direct consequence” of being in slavery.
This is undoubtedly a good thing. Criminal law has long recognised the defence of ‘duress’, where - with a couple of exceptions - someone cannot be held responsible for a crime if they, or someone close to them, is under the immediate threat of violence. As lecturer Karl Laird warned in the Criminal Law Review: “an individual may genuinely be a victim of slavery or trafficking and be compelled to commit a serious criminal offence.” It seems a common enough mark of a decent society that we recognise that people can be forced to do horrible things. Branding these people with criminal sentences is simply wrong.
A threat to victims of slavery: Schedule 4
But that’s not where it ends. The law, although good, isn’t a complete defence against crime. Right at the end of the text, there is a list of offences for which the defence of slavery will not work. Some on the list, contained in a section called Schedule 4, are the most serious offences such as murder and sexual assault.
However, some of the crimes listed mean that, instead of traffickers or slavers, we may unfairly prosecute former slaves forced to assist their captors in acts of slavery as well. This is because the Modern Slavery legislation contains the proscription that offences under the act itself cannot be defended against by invoking one’s status as a slave.
Possession of an illegal firearm also makes an appearance, opening the possibility that a captive may be convicted after being forced to use their abuser’s illegally obtained weapons. Worse still, that criminal damage is in Schedule 4 means that a slave who commits such damage in the process of escaping from captivity will be at the mercy of the Crown Prosecution Service (CPS) as to whether they are prosecuted or not.
What this means is, in effect, that the victims of the most prolific slave-owners, the ones with the most captives and therefore organisational work managing their human prisoners, are at increased risk of prosecution by the state. Painfully, victims attacked by those best able to press their will upon them are actually offered the least protection.
The only explanation for why particular offences are or are not in Schedule 4 is the Home Office circular on the act, which states: “Schedule 4 sets out certain serious offences, mainly serious sexual or violent offences.”
The contents of Schedule 4 have been criticised by UNICEF, Liberty, the Immigrant Law Practitioners Association and others. In a 2015 review of the Modern Slavery Act, criminal solicitors Steven Bird and Phillipa Southwell explained that: “As a result of the exclusion of various offences at Schedule 4, a trafficked victim who, while still under the control of their own trafficker, is used to groom others into sexual exploitation cannot raise the defence, even where their offending is committed as a direct result of their own exploitation.”
The narrowness of the law was mentioned in a government-commissioned review of modern slavery. The report, published recently by Caroline Haughey, a prominent anti-slavery barrister, singles out Schedule 4 for criticism. In the paper, she points out that “some argue that it should cover every offence committed by a trafficked person, regardless of proximity to the trafficking offence”. Ms Haughey also points out that Trinidad and Tobago’s law on slavery confers upon victims an absolute defence to criminal activities.
A legislative solution
Overall, it seems sensible to amend the law so that the defence can be applied to a wider range of crimes. It may even be worth considering allowing the defence to work against all crimes. Given that slavery is enforced servitude, there is a strong argument, made by the Anti-Trafficking Monitoring Group, that someone should not be criminally responsible for actions committed under such a terrible level of force. Letting a law stand that could result in locking up the most affected and vulnerable victims of modern slavery would be a severe travesty. It would be reasonable to extend the section 45 protection offered to victims, especially as they are forced to prove that their crime was a “direct consequence” of slavery in the first place.
Luckily, the youth of the law means that we have not yet been faced with the prospect of this taking place. That being said, the prospect definitely exists, and any prosecution would yield an awful result. It would mean that we have criminalised precisely those that this law was designed to protect.