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People-Trafficking: Some Reflections on the EU Legislation, and its Implementation in the UK
Published online by Cambridge University Press: 27 October 2017
Abstract
This chapter examines the efforts in Europe and and the UK to deal with the problem of people-trafficking. As readers will see, it is in five Sections. The first sets the scene by explaining what ‘people-trafficking’ is, and outlining the history of international attempts to repress it and to relieve its human consequences. The second describes the recent legislative attempts to deal with it in Europe, and in particular, the EU Framework Decision of 2002. The third examines the UK legislation enacted with the aim—not entirely accurate, as we shall see—of implementing it. The fourth looks at the way the UK legislation is working. And the final section concludes with two general reflections. It is based on a study carried out in 2007 for ECLAN, the European Criminal Law Academic Network. Any reader who reaches the end with a thirst for further knowledge will find further refreshment in the book that resulted from the ECLAN study, which was published earlier this year.
- Type
- Research Article
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- Copyright
- Copyright © Centre for European Legal Studies, Faculty of Law, University of Cambridge 2009
References
1 Council Framework Decision 2002/629/JHA of 19 July 2002 on combating trafficking in human beings, OJ 2002 L203/1.
2 Weyembergh, A, and Santamaria, V (eds), The Evaluation of European Criminal Law: the Example of the Framework Decision on Combating Trafficking in Human Beings (Brussels, Editions de l’Université de Bruxelles, 2009)Google Scholar. For the section on the UK, which is written in French, see J Spencer and G Gamberini, ‘Le Royaume–Uni’ in ibid, 341–77.
3 The Guardian, 11 October 2008.
4 The Daily Mail, 25 January 2008.
5 The definition in the ‘Trafficking Protocol’ to the UN Convention on Transnational Organized Crime 2000 (A/RES/55/25 (2001), Annexe II) is set out below in the text corresponding to n 29.
6 R v Wacker [2002] EWCA Crim 1944; [1983] QB 1207. For this, Wacker was sentenced to 14 years’ imprisonment for manslaughter, plus eight years concurrent for conspiracy to facilitate illegal immigration.
7 For the legal history, see Fisher, H, ‘The Suppression of Slavery in International Law’ (1950) 3 International Law Quarterly 28, 503Google Scholar.
8 An Act for the Abolition of the Slave Trade (1807) 47 Geo III 36. It was not until 1833, however, that Parliament took the further step of passing legislation to give all slaves in the British colonies their freedom.
9 United Kingdom Treaty Series (1927) No 16, Cmd 2910.
10 United Kingdom Treat Series (1957) No 59, Cmd 257.
11 See generally Bristow, EJ, Vice and Vigilance; Purity Movements in Britain Since 1700 (London, Gill and Macmillan, 1977) ch 8Google Scholar; Self, HJ, Prostitution, Women and Misuse of the Law: the Fallen Daughters of Eve (London and Portland, Frank Cass, 2003) ch 2Google Scholar.
12 ‘The Maiden Tribute of Modern Babylon’ Pall Mall Gazette, 6 July 1885.
13 Stead’s retired prostitute had obtained the girl for him by falsely telling her parents that she was going into domestic service, thereby committing an offence of abduction contrary to s 55 of the Offences Against the Person Act 1861. The distressing evidence of the case is set out at length in the Old Bailey Sessions Papers, vol 102, 894–1041.
14 Bristow, above n 11.
15 International Agreement for the Suppression of the White Slave Traffic, signed at Paris on 18 May 1904. United Kingdom Treaty Series (1905) No 24, Cmd 2689.
16 International Convention for the Suppression of the White Slave Traffic, signed in Paris, May 1910. United Kingdom Treaty Series (1912) No 20, Cmd 6326.
17 United Kingdom Treaty Series (1923) No 26, Cmd 1986. The active role the League of Nations took in this area will be recalled by readers of Evelyn Waugh’s Decline and Fall, the climax of which is the prosecution and imprisonment of the naïve hero, Paul Pennyfeather, for his innocent part in the international vice empire run by his charming, corrupt but wellconnected fiancée, Margo Beste-Chetwynd.
18 Self, above n 11, 48–9. As the UN Convention 1949 was not ratified, the text is not printed in the UK Treaty Series, but it can be found online at: http://www.unhchr.ch/html/menu3/b/.
19 ‘One widespread tale concerned the haglike old lady who asked for help crossing the street and then bagged her prey with the aid of a “dope ring”, a hollowed–out piece of jewellery fitted with a needle and filled with a quick–acting curari poison’ Bristow, Vice and Vigilance, above n 11, 197.
20 Before this, only buggery and attempted buggery were criminal offences.
21 The Criminal Law Amendment Act 1885 created a new offence of sex with girls aged between 13 and 16, to which the defendant’s reasonable belief that she was over age was a defence. The Criminal Law Amendment Act 1922 restricted this defence to persons under the age of 23, and for good measure, invalidated the consent of persons under 16 to acts which, if not consented to, would constitute indecent assault.
22 The Vagrancy Act 1898 (later s 30 of the Sexual Offences Act 1956) made it an offence for anyone to ‘live wholly or in part on the earnings of prostitution’. For a critique of the potential overbreadth of this offence, see Smith, JC and Hogan, B, Criminal Law, 1st edn (London, Butterworths, 1965) 312 Google ScholarPubMed ff. The offence was replaced by a more tightly-focused provision in the Sexual Offences Act 2003.
23 Criminal Law Amendment Act 1912.
24 Notably against Jack Johnson, the US heavyweight boxing champion, a black man, who was prosecuted under the Mann Act in 1913 to punish him for having sexual relations with white women. At the time of writing, there are moves in the USA to procure him a posthumous pardon.
25 Foreword by Kofi Annan, Secretary General of the UN, to the UN’s official edition of the UN Convention against Transnational Organized Crime and the Protocols Thereto (‘Palermo Convention’) 2004.
26 Belser, P, Cock, M De and Mehran, F, Minimum Estimate of Forced Labour in the World, ILO, Geneva, April 2005 Google Scholar, quoted in a press release from the European Commission, dated 25 March 2009, announcing a proposal for a new Framework Decision on trafficking in human beings (see n 34 below).
27 Joint Committee on Human Rights, Twenty-sixth Report of Session 2005–06, Human Trafficking, HL 241-1, HC 1127-1, 9 October 2006, §78.
28 Ibid.
29 Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime (A/RES/55/25 (2001) Annex II).
30 Council of Europe Convention on Action against Trafficking in Human Beings and its Explanatory Report (Warsaw, 16 May 2005); Council of Europe Treaty Series, No 197.
31 See the Joint Committee on Human Rights, above n 27, ch 3.
32 See n 1 above.
33 Art 7 requires Member States to ensure that prosecutions for trafficking offences do not depend, in law, on the victim making a formal complaint; that child victims of trafficking offences are treated as ‘vulnerable victims’ for the purposes of the EU Framework Decision on the rights of victims (2001/220/JHA, 15 March 2001); and that, where the victim is a child, to ensure that ‘appropriate assistance’ is provided for his or her family, and the family is told how to obtain it.
34 According to a statement on the Commission website, the proposed new Framework Decision ‘approximates national legislations and penalties, makes sure that offenders are brought to justice even if they commit crimes abroad. It will allow police to use phone tapping, eavesdropping and other similar tools used to fight organised crime. Victims will receive accommodation and medical care and if necessary police protection so that they recover from their plight and are not afraid to testify against their perpetrators. They will be protected from further traumatisation during criminal proceedings, deriving for example from probing questions about the experience related to their forced sexual exploitation. Victims will receive free legal aid throughout the proceedings including for the purpose of claiming financial compensation. The proposal encourages sanctions against clients of people forced to offer sexual services and against employers exploiting trafficked people. The proposal also establishes independent bodies to monitor implementation of these actions’.
35 Asylum and Immigration (Treatment of Claimants, etc) Act 2004 c 19.
36 Sexual Offences Act 2003 c 42. These provisions were preceded by a stop–gap provision, ss 145 and 146 of the Nationality, Immigration and Asylum Act 2002 (c 41), which were repealed by the Sexual Offences Act.
37 Criminal Justice (Scotland) Act 2003 asp, 7.
38 For details, see the text relating to nn 52–54 below.
39 Sections 9–13.
40 Sections 64 and 65.
41 Sections 16–24.
42 From a Home Office press release, quoted by Arabella Thorp in Parliamentary Research Paper, 03/62, 10 July 2003.
43 See n 2 above.
44 Which punishes arranging or facilitating travel within the UK, in connection with any offence under Part I of the Sexual Offences Act—one of which (s 53) is ‘controlling prostitution for gain’.
45 For further details of these, see the Report of the Joint Committee on Human Rights, above n 27, and our ECLAN study, n 2 above.
46 For further details, see our ECLAN study, above n 2.
47 The Times, 24 December 2004.
48 See R v Maka [2005] EWCA Crim 3365, [2006] 2 Cr App R (S) 14, Court of Appeal proceedings, arising from one of the defendant’s unsuccessful attempt to appeal against his sentence.
49 See n 2 above.
50 R v Delgado-Fernandez, Zamit; R v Thanh Hui Thi [2007] EWCA Crim 762, [2007] 2 Cr App R (S) 85. Other decisions are discussed in the chapter referred to in n 2 above.
51 Sentencing Guidelines Council, Sexual Offences Act 2003, Definitive Guideline (April 2007).
52 See n 2 above.
53 Possibilities include offences under the Gangmasters (Licensing) Act 2004, and s 15 of the Immigration, Asylum and Nationality Act 2006, under which administrative penalties can be imposed.
54 BBC News, 18 November 2008; Spalding Standard, 20 November 2008.
55 See n 27 above.
56 R v O [2008] EWCA Crim 2835.
57 See n 27 above.
58 ‘Whereas 10 years ago 85% of women in brothels were UK citizens, now 85% were from outside the UK’: evidence from the Home Office, quoted in the Report of the Joint Committee on Human Rights, above n 27, §81. It is widely said that the research on which this figure is based consisted of researchers, posing as punters, telephoning brothels and massage-parlours, asking if they could provide foreign women—to which, unsurprisingly, the answer was usually ‘yes’: BBC Radio Four, ‘More or Less’, Friday 9 January 2009.
59 Report of the Joint Committee on Human Rights, above n 27 above, §146.
60 Ibid, ch 7, §20.