Combating the ‘myth of physical restraint’ in human trafficking and modern slavery trials heard in the Crown Court

Date01 January 2022
Published date01 January 2022
AuthorJack Murphy
DOI10.1177/13657127211060555
Subject MatterArticles
Combating the myth of physical
restraintin human traff‌icking
and modern slavery trials heard
in the Crown Court
Jack Murphy
University of Birmingham School of Law, Leicester, UK
Abstract
The greatest hurdle to an effective criminal justice response to human traff‌icking is the preva-
lence of myths about how exploitation happens and who countsas a genuine victim. This
includes the myth that, to be a genuine victim, an individual must have been subject to
some form of physical restraint. Previous work has demonstrated how this myth undermines
traff‌icking prosecutions in various jurisdictions. It has demonstrated that, in the absence of
physical restraint during their exploitation, victims are deemed to lack credibility. However,
what is missing in the current body literature is a robust analysis of whether something should
be done to address this issue. By engaging with the foundational principle of accurate fact-f‌ind-
ing, this article argues that some form of regulation of cross-examination in the English and
Welsh jurisdiction, with a view to preventing this myth from manifesting in trials, would be
justif‌ied.
Keywords
best evidence, factual accuracy, human traff‌icking, modern slavery, myths
Introduction
International law def‌ines human traff‌icking as the recruitment, transportation, transfer, harbouring or
receipt of persons, by means of 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
Corresponding author:
Jack Murphy, University of Birmingham School of Law, Leicester, LE9 2AQ, UK.
Email: jpm765@student.bham.ac.uk
Article
The International Journal of
Evidence & Proof
2022, Vol. 26(1) 319
© The Author(s) 2021
Article reuse guidelines:
sagepub.com/journals-permissions
DOI: 10.1177/ 13657127211060555
journals.sagepub.com/home/epj
purpose of exploitation.
1
It is often misunderstood; there are many prevailing myths about how exploit-
ation happens and who countsas a genuine victim. As is well documented, such myths, in turn, frustrate
the criminal justice response to traff‌icking and modern slavery because they have the effect of hampering
detection, investigation and prosecution (Gallagher and Holmes, 2008: 332; Jones, 2010: 1185;
Richmond, 2015: 29; Shoaps, 2013: 938; Uy 2011: 210).
Broadly speaking, it is this propensity for myths to hamper the criminal justice response to traff‌icking
that is the focus of this of this this article and empirical study. The specif‌ic myth in question, is the notion
that to be a victim of traff‌icking, an individual must have had signif‌icant restraints on their free movement
(Dando et al., 2016) if not by chains, it is expected that they should, at the very least, be locked away
during their exploitation (Richmond, 2015: 29). This does not ref‌lect the reality of how traff‌icking victims
are exploited. Though there are many varying modes of traff‌icking, total control over a victims move-
ment remains very rare (Richmond, 2015: 24). Victims of traff‌icking will usually have some degree of
free movement during their exploitation. This myth is grounded in an expectation that a victim of traf-
f‌icking would seek to leave or escape when presented with the opportunity to do so (Richmond, 2015:
24). As is ref‌lected in the def‌inition above, coercion is often more subtle (Richmond, 2015: 25). The
reality of this crime is that it is incredibly diff‌icult for victims to leave or escape despite the lack of phy-
sical constraints. This will be discussed in detail below.
As with other myths, this notion that a victim must have been subject to some form of restraint has an
adverse effect on the criminal justice systems ability to deal with traff‌icking. In Farrell, Owens and
McDevitts study (2014: 150) of traff‌icking investigations in 12 US counties, for example, it was
found that the police tend to have diff‌iculty in convincing prosecutors to move forward with human traf-
f‌icking cases where there was no evidence of force or restraint on the part of the alleged exploiter (Farrell
et al., 2014: 50). Prosecutors were inclined to believe such cases would not result in convictions. This
results in a failure to deliver justice for many victims and a failure to deter individuals from committing
traff‌icking offences. As Kara (2010: 40) has shown, the lack of a prospect of a traff‌icker being convicted
creates a situation where the risks associated with committing a traff‌icking offence are low whilst the
rewards are high. Furthermore, the failure of the criminal justice system to adequately deal with
certain cases of traff‌icking may, ultimately, serve as a how toguide for savvy organised criminals.
This myth also has a damaging impact on the perceived credibility of a victim during the trial itself.
The United Nations Off‌ice on Drugs and Crime has conducted a large study (2017) of evidential issues
that arise in traff‌icking cases across multiple jurisdictions. One of the challenges they identif‌ied was
proving a victim had been exploited when the evidence shows that the victims movements were not
totally controlled by the alleged exploiter and were free to come and go as she or he liked (UNODC,
2017: 132). Establishing a lack of freedom of movement seems to be an important element in building
a traff‌icking in persons case and this can be undermined when the victim, as is often the case, had a degree
of freedom to come and go during their exploitation (UNODC, 2017).
The UNODC also reports that there is often an expectation, either implicitly or explicitly, that legit-
imate victims of crime would naturally seek out help or escape at the f‌irst opportunity. When victims fail
to act in this way, sometimes courts impugn their credibility(UNODC, 2017: 112). Where victims have
some freedom of movement or elect not to escape, defence lawyers, in various jurisdictions, have been
inclined to argue this demonstrates that the victim has not been exploited and, instead, were consenting
parties to the situation they f‌ind themselves in UNODC (2014: 36). Prosecutors interviewed for a study of
traff‌icking trials in the USA also allude to the diff‌iculty in explaining to a jury that a victim could be being
held even though they spent their time in a room with no lock on the door (Nichols and Heil, 2014: 10).
1. Protocol to Prevent, Suppress and Punish Traff‌icking in Persons, especially Women and Children (adopted 12 Dec 2000, entered
into force 25 December 2003) 2237 UNTS, art. 3(a).
4The International Journal of Evidence & Proof 26(1)

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