Article 3 of the Palermo Protocol introduced the following definition of human trafficking, which has been incorporated into our domestic law:

‘Trafficking in persons shall mean the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of 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 of another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or removal of organs.’

Section 1: Slavery or servitude

• It is an offence to hold another person in slavery or servitude or to require a person to perform forced or compulsory labour
• In circumstances when that the defendant knows, or ought to know, that the other person is held in slavery or servitude or being required to perform forced or compulsory labour
• The definition of slavery, servitude or requiring forced or compulsory labour is construed in accordance with Article 4 ECHR

Section 2: Trafficking

• It is an offence to arrange or facilitate the travel of another (we will refer to another as ‘V’), with a view to V being exploited
• Arranging or facilitating travel including recruiting, transporting, transferring, harbouring, receiving, or exchanging control over V
• Whether V has consented to travel is irrelevant
• The relevant mental element is the intent to exploit V in any part of the world during or after travel or the defendant knows/ought to know that another will exploit
• Travel includes arrival and departure to the UK but also travelling within a country, across ‘county lines’
• There is an extra-territorial application for UK nationals – the offence may be committed by UK nationals regardless of where the arranging, facilitating, or travel takes place

Section 3: Definition of exploitation

Exploitation is a component of the Section 2 offence and is defined in Section 3 as subjecting V to behaviour which involves:

• Commission of an offence under Section 1 MSA either here or overseas
• Commission of certain sexual offences (indecent photographs of children Section 1(1)(a) Protection of Children Act 1978 or Part 1 Sexual Offences Act 2003)
• Commission of offences relating to the removal of organs (Section 32 or 33 Human Tissue Act 2004)
• More broadly, subjecting V to force, threats or deception to induce them to provide services of any kind or to provide another person with benefits of any kind. This is intended to capture forcing a person to engage in begging or theft

Individuals may be referred via the National Referral Mechanism (NRM) by certain bodies including the police, immigration authorities, local authorities, and certain NGOs for assessment by the Single Competent Authority (SCA) as to whether they are considered to be victims of trafficking or modern slavery. Once an individual is established as a potential victim on the basis that there are reasonable grounds for believing so or later on a conclusive basis, victims are entitled to support including accommodation, legal advice, emotional and practical help.

The MSA creates a limited statutory defence for victims of trafficking, based around the concept of duress. If the statutory defence below or the defence of duress is applicable, prosecutors are obliged to consider whether criminal proceedings should be discontinued on evidential and public interest grounds.

The applicable defence for those aged 18 or over is as follows:

• A person is not guilty of an offence if they do the relevant act/omission because they are compelled to do it
• That compulsion is attributable to slavery (as defined in Section 1) or to relevant exploitation (relevant exploitation being that described in Section 3)
• It is considered attributable only if it is part of conduct under Section 1 or 3 or is a direct consequence of having been a victim of slavery or exploitation
• In addition, it must be found that a reasonable person in the same situation, having the person’s relevant characteristics would have no realistic alternative to doing that act
• Relevant characteristics defined in the MSA include age, sex, physical or mental illness or disability.

There is a simplified version of this defence for under 18s:

• There is no need to establish that the person was compelled to act and the compulsion was attributable to slavery or exploitation
• It is sufficient to establish that they did the act as a direct consequence of being a victim of slavery or relevant exploitation
• Would also need to establish the reasonable person test above

For both adults and juveniles, the defence is not applicable for certain more serious offences set out in Schedule 4 to the MSA including:

• Murder
• Manslaughter
• False imprisonment
• Kidnapping
• Perverting the course of justice
• Serious assaults from grievous bodily harm, Section 20 Offences Against the Person Act 1861 upwards
• Certain acquisitive offences such as robbery and aggravated forms of burglary under the Theft Act 1968
• Criminal damage under Section 1(2) Criminal Damage Act 1971
• Assisting unlawful immigration under Immigration Act 1971 Section 25
• Death by dangerous or careless driving Road Traffic Act 1988 sections 1 and 3A
• Harassment or stalking which involves the other person being put in fear of violence – Sections 4 and 4A Protection from Harassment Act 1997
• Terrorism – Sections 54, 56, 57 and 59 Terrorism Act 2000, sections 47,50 and 113 Anti-terrorism Crime and Security Act 2001 and sections 5, 6 and 9 to 11 Terrorism Act 2006
• Serious sexual offences under sections 1 to 10, 13 to 19, 25, 256, 30 to 41, 47 to 50, 61 to 67 and 70 of the Sexual Offences Act 2003
• Offences under section 1 and 2 MSA
• Attempting or conspiring to commit any of these offences; an offence of aiding, abetting, counselling or procuring or inciting any of these offences

Section 54: Transparency in supply chains

Certain commercial organisations involved in the supply of goods or services are required to prepare and publish a slavery and human trafficking statement each financial year setting out various matters including their structure and supply chains, policies, due diligence processes, prevention measures, and staff training on human trafficking and modern slavery.

There are no criminal consequences for a company failing to prepare and publish a slavery and human trafficking statement. However, the Secretary of State could bring proceedings in the High Court for an injunction requiring them to do so. It is intended that greater transparency, public and political scrutiny and reputational consequences for companies arising from these statements will result in the elimination of slavery and human trafficking at all levels of the supply chain.  

If alerted to a potential problem in their supply chain, there may be a number of other issues for an organisation to consider such as conducting an internal investigation, reporting any regulatory breaches, and employment issues.