Protecting Victims of Human Trafficking from Liability: An Evaluation of Section 45 of the Modern Slavery Act
| Author | Julia Muraszkiewicz |
| DOI | 10.1177/0022018319857497 |
| Published date | 01 October 2019 |
| Date | 01 October 2019 |
| Subject Matter | Comment |
The Journal of Criminal Law
2019, Vol. 83(5) 394–405
Protecting Victims of Human
ª The Author(s) 2019
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DOI: 10.1177/0022018319857497
An Evaluation of Section 45
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of the Modern Slavery Act
Julia Muraszkiewicz
Trilateral Research Ltd, UK
Abstract
The evolution of protective measures offered to victims of human trafficking at a European
regional level has begun to have an impact at a national level. In this article, the author explores
a provision intended to guard victims of human trafficking, who have been compelled to
commit crimes, against prosecution and punishment. The provision under scrutiny is the
statutory defence found in s 45 of the Modern Slavery Act, 2015 (England and Wales). The article
draws on the obligations spelt out in regional law (the 2005 Council of Europe Convention on
Action Against Trafficking in Human Beings and Directive 2011/36 on preventing and combating
trafficking in human beings and protecting its victims) and asks if England and Wales fulfil their
duties with respect to protecting trafficked persons from being prosecuted and punished.
Keywords
Human trafficking, victims, liability, excuse, non-punishment
Introduction
Although there are vast difficulties in estimating the scale of human trafficking at a European or global
level, it is undeniably a serious offence, which violates the human rights of many persons. Victims can be
sexually exploited, exploited in economic activities, or be forced to commit crimes or donate organs. A
number of trafficking victims end up fined, detained, prosecuted, convicted and summarily deported
without being given due consideration to their victim status. Consequently, the risk of being punished is
one of the reasons why victims of human trafficking are wary of coming forward to the authorities and is
one of the main tools used by traffickers to keep them in control.1
1. OSCE Office of the Special Representative and Co-ordinator for Combating Trafficking in Human Beings, Policy and leg-
islative recommendations towards the effective implementation of the non-punishment provision with regard to victims of
trafficking (OSCE, Vienna 2013) 9
Corresponding author:
Julia Muraszkiewicz, Trilateral Research Ltd, One Knightsbridge Green, Knightsbridge, London SW1X 7QA, UK.
E-mail: julia.muraszkiewicz@trilateralresearch.com
Muraszkiewicz
395
Yet a trafficked victim who commits an offence should not necessarily be held liable because his/her
trafficking situation may provide an excuse to the crime. An excuse ‘tries to show that the actor is not
morally culpable for his wrongful conduct’.2 The law excuses committed crimes when the person lacks a
capacity or fair opportunity to choose the actions.3 ‘An excused defendant has committed a crime but is
not punishable’.4 By providing trafficked persons with an excuse, we are not saying that the act
committed was lawful. Instead, we recognise that the trafficked person was not culpable. Importantly,
we are making room for the trafficked persons’ vulnerability and, rightly, take into account the compul-
sion they faced. The excuse is a hallmark of our moral virtue.
It has been advocated that in Scotland for instance there are more detained victims than there are
traffickers.5 One of the more famous cases in England, is that of R v L and Others (The Children’s
Commissioner for England and Equality and Human Rights Commission intervening),6 which concerned
Vietnamese children found working in cannabis farms. The minors were subsequently prosecuted under
the Misuse of Drugs Act 1971 for the production of a controlled drug. One of the defendants had been
prosecuted as an adult despite being a child. On hearing all the facts the Court of Appeal found that the
criminal activities undertaken were integral to the status of a trafficked child and the children should not
have been prosecuted. Consequently the Court overturned the convictions. There are also numerous less
known cases and when working in the space of human trafficking, as this author does, one hears many
stories. Some make it to the papers, public domain or are even overturned, and some other cases are not
as fortunate. In a 2012 case in Bradford, England, a judge acknowledged that the defendant had been
exploited and brought to the country under false pretences. Nevertheless, the defendant was sentenced to
eight months in prison for being involved in the production of cannabis.7
Regionally measures have been proposed and implemented to address the problem of trafficked
persons being prosecuted and punished. The Council of Europe adopted Article 26 of the 2005 Council
of Europe Convention on Action Against Trafficking in Human Beings and six years later the European
Union (EU) included Article 8 in Directive 2011/36 on preventing and combating trafficking in human
beings and protecting its victims. Article 26 of the 2005 Council of Europe Convention states:
Each Party shall, in accordance with the basic principles of its legal system, provide for the possibility of not
imposing penalties on victims for their involvement in unlawful activities, to the extent that they have been
compelled to do so.8
While Article 8 of Directive 2011/36 on preventing and combating trafficking in human beings and
protecting its victims reads:
Member States shall, in accordance with the basic principles of their legal systems, take the necessary
measures to ensure that competent national authorities are entitled not to prosecute or impose penalties on
victims of trafficking in human beings for their involvement in criminal activities which they have been
compelled to commit as a direct consequence of being subjected to any of the acts referred to in Article 2.9
2. J Dressler, Understanding Criminal Law. New Providence (Lexis Nexis Publishing, NJ 2001) 202–3.
3. HLA Hart, Punishment and Responsibility: Essays in the Philosophy of Law (Clarendon Press, Oxford 1968) 23.
4. MN Berman, ‘Justification and Excuse, Law and Morality’ (2003) 53(1) Duke LJ 1, 4.
5. House of Lords, Question from Lord McConnell of Glenscorrodale, Human Trafficking and Modern Slavery Debate, Hansard
col 497 (12 June 2014).
6. R v L and Others (The Children’s Commissioner for England and Equality and Human Rights Commission intervening) [2013]
EWCA Crim 991.
7. Author unknown, ‘Man Trafficked by “Mafia” to Set up Bradford Cannabis Factory’ Telegraph & Argus (8 November 2012)
<http://www.thetelegraphandargus.co.uk/news/10033060.Man_trafficked_by____mafia____to_set_up_Bradford_cannabis_
factory/> (accessed 11 June 2019).
8. Council of Europe Convention on Action Against Trafficking in Human Beings, 16 May 2005, CETS 197.
9. Directive 2011/36/EU of the European Parliament and of the Council of 5 April 2011 on preventing and combating trafficking
in human beings and protecting its victims, and replacing Council Framework Decision 2002/629/JHA art 8.
396
The Journal of Criminal Law 83(5)
These Articles have consequences for national legislation and/or policy with regard to protecting
trafficked persons from prosecution and punishment. Moreover, they further communicate the view that
the regional instruments adopt a human rights approach, which places victims at the centre of our
thinking, policies and actions. The current article draws on the state responsibility with a focus on
England and Wales, and asks if England and Wales fulfil their regional obligations with respect to
protecting trafficked persons from being prosecuted and punished. Moreover, the study examines
the measures that have been implemented nationally within the Modern Slavery Act 2015. The
article will in detail describe the regional obligations. The analysis will then describe the English
and Welsh law as well as critically analyse it. Finally, it reaches a conclusion whether the Modern
Slavery Act 2015 fulfils the obligations.
The discussion is a timely one. It isn’t too far-fetched to speculate that other countries will follow
England and Wales, and will too look at adopting a human trafficking, or they may call it Modern
Slavery, legislation. Indeed, Australia is doing just that,10 and as part of establishing the new legislation
the State is currently considering the manner in which to guard trafficked persons against punishment.
Thus, it is important to have critical reflection on what has been achieved in England and Wales, and
where there is room for further development that other countries can lead on.
A note on terminology: the wording of the principle, which seeks to protect trafficked persons
who were compelled to commit crimes, varies across different legal instruments and discourses. We
come across language such as ‘non-criminalisation’, ‘non-prosecution’, ‘non-punishment’, ‘non-
application of penalties’ and ‘exemption’, to name some of the more common examples. This
article predominantly relies on the phrase ‘non-liability’. This phrase is favoured because of its
breadth and applicability beyond the criminal law sphere, this is particularly important as victims
may also commit civil wrongdoings. However, when referring to specific legislation the article uses
the language of that law.
Obligations Arising Out of Regional Instruments
Previous international instruments addressing human trafficking, such as the United Nation’s Protocol to
Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children,11 mainly focused
on prosecuting traffickers....
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