Dissertation Final

1
Protecting Child Victims of Human Trafficking
under the Council of Europe Convention on
Action against Trafficking in Human Beings:
The UK Experience (England and Wales).
Master of Laws: International Human Rights Law
September 2016
Student Number: 650042321
Supervisor: Dr Ana Beduschi

2
Acknowledgements
I would like to extend my gratitude to my supervisor and personal tutor Dr Ana
Beduschi who has offered her support and guidance throughout this dissertation.
Abstract
Despite giving effect to the Council of Europe Convention on Action against Trafficking
in Human Beings in 2009 the Anti-Trafficking Monitoring Group, a coalition of
organisations established to monitor the implementation of the Convention, has
repeatedly criticised the UK for failing to meet its obligations under the instrument.
Specifically, it has condemned the UK’s failure to identify and protect child victims of
trafficking. In particular, it has criticised the UK’s prosecution of these child trafficking
victims and its failure to provide them with “appropriate and secure accommodation” or
to furnish them with legal guardians tasked to “act in the best interest on the child.”
However, the UK has since undergone a series of legislative and policy developments
including, the introduction of the Modern Slavery Act 2015 and amendments to the
National Referral Mechanism- the process by which victims of trafficking are identified.
In light of these developments, this paper considers whether or not the above shortfalls
have been overcome. Overall, it observes that while improvements have been made
regarding the UK’s ability to effectively identify child victims of trafficking progress is
still required to address the UK’s prosecution of child victims, the inadequate provision
of safe accommodation and the failure to provide all child victims with a legal guardian.
Ultimately, whilst child victims may well be identified, they may nevertheless find
themselves prosecuted, unrepresented and unsafe.
I certify that all material in this dissertation which is not my own has been
identified and that no material has previously been submitted and approved for
the award of a degree in this or any other university.

3
Contents
Introduction …………………………………………………………………… 4
Chapter 1
Modern Slavery: Controversies and Compromise………….... 8
The Trafficking Convention……………………………………... 10
The United Kingdom…………………………………………….. 12
Chapter 2
Identifying Victims of Human Trafficking……………………. 13
The Trafficking Convention: Article 10…………………………. 13
The National Referral Mechanism: In Principle…………………. 14
The National Referral Mechanism: In Practice………………….. 16
Identification, Age and Immigration……………………............... 17
The Modern Slavery Act 2015: A Missed Opportunity?................ 27
Chapter 3
Punishment of Trafficking Victims……………………………. 29
The Trafficking Convention: Article 26…………………………. 29
Prosecution of Victims: Making the Case for Change…………... 32
The 2015 Act: Progress or Peril?.................................................... 35
Chapter 4
Supporting Child Victims: Safe Accommodation and Legal
Guardians……………………………………………………….. 41
The Trafficking Convention: Article 12(1) and 10(4)…………… 41
The 2015 Act: Disparity and a Missed Opportunity?…………… 45
Conclusion …………………………………………………………………… 52
Appendix A: The Trafficking Convention Article 4………………………... 55
B: The Modern Slavery Act 2015 Section 1 and 2………………. 55
Bibliography …………………………………………………………………… 58

4
Introduction
“Child trafficking is a significant problem in the UK affecting both British
and foreign children who are trafficked to, within and from the UK”-The Anti-
Trafficking Monitoring Group (2013).1
In 2007, Andrew Gilbert2
observed that:
“While there is a growing body of academic literature on the subject of human
trafficking, little of it relates to the United Kingdom’s anti-trafficking legislation
and its implementation. […] It is widely accepted that that the growth in human
trafficking globally has been fuelled in part by the lack of any, or any adequate,
legislation in many of the nations targeted by traffickers as sending, receiving or
transit nations. Indeed, until relatively recently the United Kingdom was once
such nation where there was no specific human trafficking law.”3
Indeed, despite giving effect to the Council of Europe Convention on Action against
Trafficking in Human Beings4
(Trafficking Convention, the Convention) in 2009 the
Anti-Trafficking Monitoring Group, a coalition of nine UK based organisations
established to monitor the UK Government’s implementation of the Convention5
(the
Monitoring Group), has repeatedly condemned the UK for failing to meet its
1
The Anti-Trafficking Monitoring Group, Hidden in Plain Sight: Three years on: updated analysis of UK
measures to protect trafficked persons (2013) pg 50
http://www.antislavery.org/includes/documents/cm_docs/2013/h/hidden_in_plain_sight.pdf
accessed 01/08/2016
2
Andrew Gilbert is a Senior Lecturer in Law at Anglia Ruskin University, UK.
3
Andrew Gilbert “Sentencing in Human Trafficking Cases” (2007) Vol.177 The Criminal Lawyer pg 3-5
4
Council of Europe, Council of Europe Convention on Action Against Trafficking in Human Beings, 16
May 2005, CETS 197, http://www.refworld.org/docid/43fded544.html.
The Convention entered into force in respect of the United Kingdom on 1 April 2009.
https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/236093/8414.pdf
5
In May 2009 a group of nine UK-based organisations set up the Anti-Trafficking Monitoring Group to
monitor the implementation of the Council of Europe’s Convention on Action against Trafficking in
Human Beings, which came into effect in the UK on 1 April 2009.
The nine organisations belonging to the group are: Amnesty International UK, Anti-Slavery International,
ECPAT UK (End Child Prostitution, Child Pornography and the Trafficking of Children for Sexual
Purposes), Helen Bamber Foundation, Immigration Law Practitioners’ Association, Kalayaan, POPPY
Project, TARA (The Trafficking Awareness Raising Alliance, of Glasgow Community and Safety Services),
UNICEF UK.
The Anti-Trafficking Monitoring Group, Wrong kind of victim? One year on: an analysis of UK measures
to protect trafficked persons (June 2010) pg 2
http://www.antislavery.org/includes/documents/cm_docs/2010/a/1_atmg_report_for_web.pdf
accessed 01/08/2016

5
international obligations under the Convention.6
Notably, it has criticised the state’s
failure to protect child victims of human trafficking (CVTs)7
asserting that the UK has
“overlooked the necessary safeguards for [CVTs] in the implementation of the
Convention.”8
Firstly, the group has criticised the methods by which potential CVTs are
identified by frontline professionals (termed First Responders (FRs)) and how their
status is subsequently determined by specified Competent Authorities (CAs).9
Secondly,
the Group has also condemned the UK for prosecuting CVTs for crimes committed as a
result of their victimhood.10
Such actions are not in accordance with Article 26 of the
Convention which provides that:11
“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.” Thirdly, the UK is required to provide victims and suspected
victims of trafficking with “standards of living capable of ensuring their subsistence,
through such measures as: appropriate and secure accommodation…”12
and afford
suspected CVTs and confirmed CVTs with a “legal guardian” tasked to “act in the best
interest of the child.”13
However, the group noted that CVTs, particularly those aged 16-
17, are housed in unsuitable accommodation14
and that the UK has failed to provide
child victims with suitable advocates or legal guardians.15
6
The Anti-Trafficking Monitoring Group has criticised the UK’s failure to implement the Convention in
numerous documents including: ATMG (2010) (n-5); ATMG (2013) (n-1); The Anti-Trafficking Monitoring
Group, In the Dock. Examining the UK’s Criminal Justice Response to Trafficking (June 2013)
http://www.antislavery.org/includes/documents/cm_docs/2013/i/inthedock_final_small_file.pdf
accessed 01/08/2016
7
ibid
8
ATMG (2010) (n-5) pg 6
9
The National Referral Mechanism (NRM) is a framework for identifying victims of human trafficking or
modern slavery and is intended to ensure that they receive the appropriate support. The process
includes the stage of initial identification of potential victims of human trafficking by recognised
frontline professionals (termed first responders) and the subsequent official determination of their
status as either ‘trafficked’ or ‘not trafficked’ by competent authorities (CA). CAs comprise of: the UK
Human Trafficking Centre (UKHTC) and the Home Office Immigration and Visas (UKVI) (formally the UK
Border Agency). See: NRM at http://www.nationalcrimeagency.gov.uk/about-us/what-we-do/specialist-
capabilities/uk-human-trafficking-centre/national-referral-mechanism
ATMG (2010) (n-5) pg 23-24, 42-46 and 75-78;
ATMG (2013) (n-1) pg 50-54
10
ATMG (2010) (n-5) pg 47-50; ATMG (2013) (n-1) pg 50-54
11
ibid
12
Trafficking Convention Article 12(1)(a) (n-4)
13
Article 10(4) ibid
14
ATMG (2010) (n-5) pg 38; ATMG (2013) (n-1) pg 50-54
15
ibid

6
These criticisms are particularly concerning as the number of reported CVTs and
potential CTVs in the UK is rising. In 2009, of the suspected trafficking victims referred
to the National Referral Mechanism (NRM, the UK framework used for identifying
victims of human trafficking and modern day slavery)143 out of the 527 were
children.16
In 2013, the UK Human Trafficking Centre (UKHTC)17
reported that:
“[T]he number of children identified as victims of trafficking in the UK has
increased for the second year in a row. In 2012 alone, there was a 12% increase in
the number of children identified as potential victims of trafficking for the purpose
of exploitation, a total of 549.”18
Furthermore, in 2015 the National Crime Agency (NCA) identified 982 instances of
child trafficking, an increase of 46% on the previous year.19
However, whilst it has been
reported that “the reason for the rise in children being lured away for financial gain is
unclear” 20
and that “increased awareness, both of human trafficking in its various
forms and the obligation of its responders to use the National Referral Mechanism, is a
likely contributor to the increased number of referrals”21
children’s charities such as
Barnardo’s,22
have referenced the ongoing European migrant and refugee crisis as a
potential source for the increase:23
“[T]here is a clear crossover between rising
numbers of vulnerable refugee children coming to Britain via Europe and those being
16
ATMG (2010) (n-5) pg 8
17
The UK Human Trafficking Centre (UKHTC) works as Competent Authority in the National Referral
Mechanism and deals with referrals from the police, local authorities, and NGO’s where the applicant is
from a EU Member State. http://www.nationalcrimeagency.gov.uk/about-us/what-we-do/specialist-
capabilities/uk-human-trafficking-centre/national-referral-mechanism
18
ATMG (2013) (n-1) pg 50
19
Karen McVeigh, “Number of trafficked children rose by 46% last year, crime agency says” (The
Guardian, 6 May 2016) available at https://www.theguardian.com/law/2016/may/06/number-
trafficked-children-rose-national-crime-agency accessed 16/07/2016
20
ibid
21
BBC News, “UK child sex abuse trafficking doubles- National Crime Agency” (18 February 2014)
http://www.bbc.co.uk/news/uk-26234092 accessed 18/07/2016
22
The UK’s largest children’s charity and runs projects in London and Hampshire to support trafficked
children.
23
BBC News, Migration Crisis: Migration to Europe explained in seven charts (4 March 2016)
http://www.bbc.co.uk/news/world-europe-34131911 accessed 16/07/2016
In 2015 more than a million migrants and refugees reportedly crossed into Europe. The conflict in Syria
continues to be by far the biggest driver of migration. However, the ongoing violence in Afghanistan and
Iraq, abuses in Eritrea, as well as poverty in Kosovo, are also leading people to travel to Europe.
Moreover, the current exodus of people fleeing such conflicts and entering Europe has been described
as “The Greatest Humanitarian Crisis of Our Lifetime” https://www.worldhumanitariansummit.org accessed
16/07/2016

7
trafficked.”24
According to Unicef,25
traffickers are targeting unaccompanied child
refugees and migrants in camps along the French coast, such as Calais, where they are
charging an ‘entry fee’ of between 100 and 500 euros for passage into Britain.26
Crucially, it is reported that “[t]hose who cannot pay are forced to work and to commit
crimes […] and are being sexually exploited.”27
Thus, the UK may face an ongoing
increase in the number of CVTs entering its borders.
However, “change is in the air for UK human trafficking law and policy.”28
In 2014, a
government review identified numerous problems with the NRM and instigated a new
process to be piloted in West Yorkshire and the South West from September 2015 until
at least September 2016.29
Furthermore, in 2015 Westminster enacted the Modern
Slavery Act (the 2015 Act, the Act),30
which has been praised as “the first of its kind in
Europe, and one of the first in the world, to specifically address slavery and trafficking
in the 21st century.”31
In light of these developments, it is appropriate to examine
whether or not these new measures have the potential to remedy the shortfalls identified
by the Monitoring Group and bring the UK closer to fulfilling its obligations under the
Convention. As such, each of the identified shortfalls are addressed in turn. However,
first it is appropriate to offer a brief introduction of the relevant legislation.
24
Karen McVeigh (n-19)
25
The United Nations Children's Emergency Fund is an agency of the United Nations established in 1946
to help governments (especially in developing countries) improve the health and education of children
and their mothers. http://www.unicef.org.uk/UNICEFs-Work/ accessed 20/07/2016
26
Karen McVeigh, “Traffickers demanding UK ‘entry fees’ from child refugees, says Unicef” (The
Guardian, 16 June 2016) available at https://www.theguardian.com/uk-news/2016/jun/16/traffickers-
charging-child-refugees-5000-euros-enter-britain-unicef accessed 20/07/2016
27
Karen McVeigh (n-19)
28
Jessica Elliott, “The National Referral Mechanism: querying the response of “first responders” and the
competence of “competent authorities” (2016) Immigration, Asylum and Nationality Law 9
29
Home Office, Review of the National Referral Mechanism for victims of human trafficking (November
2014)
https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/467434/Review_of_t
he_National_Referral_Mechanism_for_victims_of_human_trafficking.pdf accessed 15/07/2016
30
The Modern Slavery Act 2015, Chapter 30 [26 March 2015]. An Act to make provision about slavery,
servitude and forced or compulsory labour and about human trafficking, including provision for the
protection of victims; to make provision for an Independent Anti-slavery Commissioner; and for
connected purposes. http://www.legislation.gov.uk/ukpga/2015/30/contents/enacted
31
Home Office, “Historic law to end Modern Slavery passes” (Gov.UK, March 2016) available at
https://www.gov.uk/government/news/historic-law-to-end-modern-slavery-passed accessed
01/08/2016

8
Chapter 1
Modern Slavery: Controversies and Compromise.
“Modern slavery encompasses slavery, human trafficking, forced labour and
domestic servitude. Traffickers and slave masters use whatever means they
have at their disposal to coerce, deceive and force individuals into a life of
abuse, servitude and inhumane treatment”
– Home Office (2014).32
Human trafficking is frequently denounced by political leaders as a “vile and wicked
crime” and a “modern form of slavery.”33
Traditionally, slavery has been understood
from a narrow interpretation of the definition provided by Article 1(1) of the 1926
Slavery Convection34
and has excluded human trafficking:35
“Slavery is the status or
condition of a person over whom any or all of the powers attaching to the right of
ownership are exercised.” Consequently, ‘modern slavery’ has been developed as: “an
umbrella term encompassing the following practices [..]: slavery,36
servitude,37
forced
or compulsory labour38
and all forms of trafficking for the purposes of exploitation.39
”40
However, as summarised by Weatherburn, this new classification has been criticised:
“The legally undefined term modern slavery has emerged from an expansive
socio-understanding of the phenomenon, to capture human rights trafficking for
the purposes of exploitation, slavery, forced labour and slavery like practices.
32
Home Office, Modern Slavery: how the UK is leading the fight (July 2014) pg 2
https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/328096/Modern_slav
ery_booklet_v12_WEB__2_.pdf accessed 16/07/2016
33
ATMG (2010) (n-5) pg 12
34
A. Gallagher, “Human Rights and Human Trafficking: Quagmire or Firm Ground? A Response to James
Hathaway” (2009) 49 Virginia Journal of International Law 789, 800- 801
35
ibid
36
International Convention to Supress the Slave Trade and Slavery, 25 September 1926, 60 LN.T.S 253,
Article.1
37
See J. Allain, The Slavery Conventions: The Travaux Preparatoires of the 1926 League of Nations
Convention and the 1956 United Nations Convention (Martinus Nijhoff Publishers, 2008) pg 212
38
International Labour Organization (ILO), Forced Labour Convention, C29, 28 June 1930, C29, Article 2
39
UN Protocol to Prevent, Supress and Punish Trafficking in Persons Especially Women and Children,
supplementing the United Nations Connection against Transnational Organised Crime, 15 November
2005, Article 3(a);
Directive 2011/36/EU on Preventing And Combating Trafficking in Human Beings And Protecting Its
Victims and Replacing Council Framework Decision 2002/629/JHA [2011] OJL 101;
40
Amy Weatherburn, “Using an integrated human rights-based approach to addressing modern slavery:
the UK experience” (2016) European Human Rights Law Review 184, 185;
K. Bales, Z. Trodd, A. Williamson, Modern Slavery: A Beginner’s Guide (Oneworld, 2011) pg 33-35

9
However, the same remains contested by Gallagher, Allain and Chaung who
strongly advocate for a legal understanding of slavery that remains true to the
narrow legal definition, that is premised upon the “exercise of powers
tantamount to the right of ownership” so as to avoid “exploitation creep” that
dilutes the severity of the legal prohibition of slavery.”41
The existence of this conflict is potently illustrated in Allain’s recent works, “The Legal
Understanding of Slavery. From the Historical to the Contemporary”42
which
comprises of a series of essays by seventeen renowned academics all aiming to “unravel
the evolution in the legal understanding of slavery.”43
However, despite using the
traditional definition of slavery as contained in the 1926 Slavery Convention as a
‘pivot’44
, the authors nevertheless “adopt different definitions of slavery, or express
disagreement towards the interpretation of the concept of slavery.”45
For instance,
Honore defines slavery as: “a person who, in fact, though not in law, is subordinate to
an unlimited extent to another person or group of persons […] and who lacks access to
state or other institution that can remedy his or her inferior status.”46
Alternatively,
Patterson asserts that it is the “violent corporeal possession of socially isolated and
parasitically degraded persons”47
and is limited to chattel slavery, the worst forms of
child labour and the trafficking and the exploitation of women for domestic and
commercial purposes.48
As such, he submits that debt bondage/bonded labour does not
amount to slavery nor does the trafficking of men and young boys.49
Bale however,
adopts an expansionist approach considering slavery as being:
41
Weatherburn ibid186;
See works: J. Allain (n-37) pg 79; A. Gallagher (n-34) 798; K. Bales, “Slavery in its Contemporary
Manifestations” in J. Allain (ed), The Legal Understanding of Slavery: From the Historical to the
Contemporary (Oxford University Press, 2012) pg 281;
J. Chuang, “Exploitation Creep and the Unmaking of Human Trafficking Law” (2014) 108 American
Journal of International Law 609, 625-626
42
J Allain ibid
Silvia Scarpa, “Publication Review. The Legal Understanding of Slavery: From the Historical to the
Contemporary edited by Jean Allain” (2014) Leiden Journal of International Law 551
43
Scarpa ibid 551
44
J Allain (n-41) pg V
45
Scarpa (n-42) 551
46
Antony Honore, “The Nature of Slavery” in J Allain (n-41) pg 16
47
Orlando Patterson, “Trafficking, Gender and Slavery: Past and Present” in J Allain (n-41) pg 329
48
As is defined under the 1926 Convention Article 1(1) (n-36)
49
Patterson (n-47) pg 343

10
“[T]he control of one person (the slave) by another (the slaver of slaveholders.
This control transfers agency, freedom of movement, access to the body, and
labour and its product and benefit to the slaveholder. The control is supported
and exercised through violence and its threat. The aim of this control is
primarily economic exploitation, but may include sexual use or psychological
benefit.” 50
Therefore, unlike Patterson, he firmly accepts debt bondage and the human trafficking
of both adults and children as falling within the scope of slavery.51
In light of these discrepancies the assertion that: “national judges will still have to
struggle with the international legal definition of slavery and with those of other
offences such as, inter alia, servitude, forced labour, the worst forms of child labour
and trafficking in persons”52
holds some weight. However, the introduction of a
separate convention to specifically address trafficking, the Trafficking Convention,
along with the European Court on Human Rights’ ruling in Rantsev v Cyprus [2010]53
which held trafficking in human beings as falling within the scope of Article 454
of the
European Convention on Human Rights55
has presented the compromise that human
trafficking is a form of ‘modern slavery.’56
50
Kevin Bale, “Slavery in its Contemporary Manifestations” in J Allain (n-41) pg 370
51
Ibid. See also: Kevin Bale, Disposable People: New Slavery in the Global Economy (University of
California Press, 2012) pg 8
For further works by scholars promoting an expansionist interpretation see: K. Bales and P.T. Robbins,
“No One Shall Be Held in Slavery or Servitude: A Critical Analysis of International Slavery Agreements
and Concepts of Slavery” (2001) 18 Human Rights Review 21; J Quirk, “The Anti-Slavery Project: Linking
the Historical and Contemporary” (2006) 28 Human Rights Quarterly 565, 568
52
Scarpa (n-42) 554
53
Rantsev v Cyprus (2010) 51 EHRR 1, para 282
54
The prohibition of slavery and forced labour
55
Rantsev v Cyprus (n-53) para 282
56
However, the European Court of Human Rights’ inclusion of human trafficking, particularly within the
circumstances of the Rantsev v Cyprus case, within the scope of Article 4 has been a matter of
contention with commentators asserting that circumstances themselves would have qualified as a
instance of slavery as already defined by the ECHR and the Court.
See: Vladislava Stoyanova, “Dancing on the Borders of Article 4: Human Trafficking and the European
Court of Human Rights in the Rantsev case” (2012) 30(2) Netherlands Quarterly of Human Rights 163-
194; Vladislava Stoyanova, “Article 4 of the ECHR and the obligation of criminalising slavery, servitude,
forced labour and human trafficking” (2014) Cambridge Journal of International and Comparative Law
407.

11
The Trafficking Convention
Article 4 of the Convention defines human trafficking and mirrors the definition
provided in Article 2 of the United Nations Protocol to Prevent, Suppress and Punish
Trafficking in Persons, Especially Women and Children 200057
(Palermo Protocol). The
Protocol contains the first broadly accepted international definition of human trafficking
and is distinguishable from the offence of people smuggling as provided in Article 3(a)
of the United Nations Protocol against the Smuggling of Migrants by Land, Sea and Air
2000.58
For adults (those over 18)59
Article 4(a) of the Trafficking Convention provides that
three elements be present for an individual to be considered trafficked (see appendix A).
These include, the recruitment of victims (or their “transportation, transfer, harbouring
or receipt”); the use of abusive means of control including: “the 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 purpose of
exploitation” and; their subsequent or intended exploitation including but not limited to
prostitution, sexual exploitation, forced labour, slavery or practices similar to slavery,
servitude or the removal of organs.60
Concerning children, Article 4(c) provides that the abusive means listed in Article 4(a)
need not be present. Accordingly, children needn’t be coerced “by means of the threat
or use of force or other forms of coercion […] for the purpose of exploitation”61
in
order to be a victim. Article 4(d) provides that a child is “any person under eighteen
years of age.”
In ratifying the Convention, the UK undertook the “obligation to take individual and
collective action to criminalise trafficking and prosecute those responsible for it, as well
as a range of other minimum steps necessary to respect and protect the rights of
trafficked persons.”62
However, despite the Convention coming into effect in the UK
57
United Nations Protocol (n-39)
58
See: Sally Ramage, ‘Human trafficking in 2008- blowing away some myths’ (2008) 184 Criminal Law 8-
11
59
Trafficking Convention Article 4(d) (n-4)
60
ATMG (2010) (n-5) pg 6
61
Trafficking Convention Article 4(a) (n-4)
62
ATMG (2010) (n-5) pg 16

12
on 1 April 2009 the UK has repeatedly been criticised for failing to meet its obligations
under the instrument. Accordingly, the UK’s legislative approach to human trafficking
must be examined.
The United Kingdom
Prior to the 2015 Act human trafficking offences in the UK were not contained within
one single Act. Rather, in England, Wales and Northern Ireland human trafficking
offences were confined in two separate pieces of legislation. The Sexual Offences Act
2003 criminalised trafficking for the purpose of sexual exploitation whilst the Asylum
and Immigration (Treatment of Claimants) Act 2004 criminalised trafficking for forms
of non-sexual exploitation.63
The Nationality, Immigration and Asylum Act 2002
temporarily established the UK’s first dedicated anti-trafficking provisions64
while the
Coroners and Justice Act 2009 criminalised holding a person in slavery or requiring
them to perform forced or compulsory labour without the need to prove trafficking.65
However, as observed by Gilbert and Moore in 2010:
“[T]he impact of the trafficking legislation is complicated and difficult to
interpret and human trafficking continues to be construed as a wide spectrum of
behaviours: from arranging for prostitutes to be taxied across London,
recruiting and paying or consenting foreign women to travel England to work as
prostitutes and forcing women into condition of sexual slavery.”66
Overall, owing to the patchwork nature of the legislation, there was little prosecution of
traffickers or the protection of victims.67
Therefore, the introduction of the 2015 Act
63
HM Government, Report of the Internal Review of Human Trafficking Legislation, (May 2012) pg 6
https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/97846/human-
trafficking-legislation.pdf accessed 10/07/2016
64
The relevant provision of the 2002 Act were replaced by sections 57, 58 and 59 of the Sexual Offences
Act 2003, which dealt respectively with trafficking into, trafficking within, and trafficking out of the UK
for sexual exploitation.
Gilbert and Moore, “Human Trafficking in the United Kingdom: the journey so far and the road ahead”
(2010) Vol.2 Criminal Lawyer 2.
65
HM Government (n-63) pg 6
66
Gilbert and Moore (n-64) 2.
67
Combating human trafficking under these provisions was grim and prosecutors were often compelled
to resorted to criminal legislation which targeted some of the integral elements of trafficking such as
kidnapping, assault, rape or immigration offences such as facilitating illegal entry. Gilbert (n-3) pg 3-5

13
was eagerly anticipation.68
The Act consolidates existing slavery and trafficking
offences into a single piece of legislation69
with Section 1 defining “slavery, servitude
and forced labour” and Section 2 dealing exclusively with human trafficking (see
appendix B). Therefore, it suitably addresses human trafficking under the umbrella
notion of ‘modern slavery’ rather than defining it as ‘traditional slavery’. Furthermore,
the elements contained in Section 2 are in keeping with those in Article 4 thereby
maintaining consistency in the international definition of human trafficking. Overall, the
Act has been praised for “enhancing the protection of victims.”70
However, to receive
this protection, victims must first be identified.
Chapter 2
Identifying Victims of Human Trafficking.
“Traffickers have become more sophisticated and the coercion they apply more
complex and ‘invisible’. Instead of kidnapping, physical violence and keeping
prisoners under lock and key, traffickers tend to use methods to create a
complex web of control, through debt bondage, psychological violence and
threats, use of modern information technologies and intimidation to put their
victims into a situation of total dependence, where victims are scared or too
intimidated to escape or reveal what happened to them”- The Ant-Trafficking
Monitoring Group (2010).71
The Trafficking Convention: Article 10
Chapter III of the Convention sets out measures intended to “protect and promote the
rights of victims.”72
Article 10 of this Chapter provides for the “identification of the
victims” of trafficking and stipulates that:
68
Ramage (n-58) 226; Weatherburn (n-40) 184
69
Ramage (n-58) 226
70
Weatherburn (n-40) 189; House of Lords, House of Commons, Joint Committee on the Draft Modern
Slavery Bill (Report, Session 2013-14), HL Paper 166, HC 1019 (3 April 2014) pg 1
http://www.publications.parliament.uk/pa/ld201516/ldselect/ldconst/6/603.htm accessed
10/067/2016
71
ATMG (2010) (n-5) pg 13
72
Trafficking Convention Chapter III (n-4)

14
(1) “Each Party shall provide its competent authorities with persons who are
trained and qualified in preventing and combating trafficking in human beings,
in identifying and helping victims, including children… [and] in a procedure
duly taking into account the special situation of women and child victims […].
(2) Each Party shall adopt such legislative or other measures as may be necessary
to identify victims as appropriate […] if the competent authorities have
reasonable grounds to believe that a person has been victim of trafficking […]
the competent authorities [shall] ensure that that person receives the assistance
provided for in Article 12, paragraphs 1 and 2.
(3) When the age of the victim is uncertain and there are reasons to believe that the
victim is a child, he or she shall be presumed to be a child and shall be accorded
special protection measures pending verification of his/her age.”
Article 10(4) also provides additional provisions for CVTs including the allocation of a
legal guardian to CVTs and suspected CVTs (see Chapter 4). In addition to the
Convention, the UK has also opted into Directive 2011/36/EU73
which contains
comparable provisions applicable to victims and victim identification to that of the
Convention. The correct identification of a potential victim is essential to enable them
to access this bespoke system of rights and assistance.74
In 2009, in order to meet its commitments under the Convention, the government
introduced new procedures, collectively titled the ‘National Referral Mechanism’
(NRM), to examine cases of suspected trafficking victims and establish their status as
either ‘trafficked’ or ‘non-trafficked.’75
Although not a term used by the Convention,
the title NRM was adopted by the UK to be in keeping with that used by the
Organisation for the Security and Cooperation in Europe Office for Democratic
Institutions and Human Rights (OSCE) in its handbook on creating such a mechanism.76
73
Directive 2011 (n-39)
74
Elliott (n-28) 11
75
ATMG (2010) (n-5) pg 20
76
Office for Democratic Institutions and Human Rights, Organisation for the Security and Cooperation in
Europe, National Referral Mechanism, Joining Efforts to protect the Rights of Trafficked Persons. A
Practical Handbook (2004) http://www.osce.org/odihr/13967?download=true accessed 01/07/2016

15
As stated by the OSCE and affirmed by the NCA: “At the core of every country’s NRM
is the process of locating and identifying “potential victims of trafficking.”77
However,
this process has been criticised.
The National Referral Mechanism: In Principle
Potential victims of trafficking are referred to one of the UK’s two competent
authorities (CAs), the UK Human Trafficking Centre (UKHTC) and the Home Office
Immigration and Visas (UKVI) (formally the UK Border Agency).78
The initial referral
will generally be handled by an authorised agency such as a police force, the NCA, the
UK Border Force (UKBF), Home Office Immigration and Visas, Social Services and
certain NGO’s.79
The referring authority is known as the ‘first responder’ (FR). The FR
will complete a referral form and pass the case to the CA. Regarding suspected adult
victims, referral to a CA can only happen with their consent. However, a child’s consent
is not required.80
Furthermore, in suspected cases of child trafficking, only public bodies
such as the local authority, the UKVI or the Police can act as a FR. As such, where there
is suspicion that a child is a victim of trafficking, one of these bodies must be notified
who would then make the referral. In all cases of suspected CVTs, the child must also
be referred to the local authority where the child is sited. The local authority, will then
consider what safeguarding measures, if any, are required.81
All completed referral
forms are sent to the UKHTC in the first instance who then determines whether they or
the UKVI will deal with the case.82
The UKHTC deals with referrals from the police,
local authorities, and NGO’s while the UKVI addresses referrals identified as part of the
immigration process, for example where trafficking may be an issue as part of an
asylum claim.83
Upon receipt of a referral, the CA team has 5 working days to decide
whether there are reasonable grounds to believe the individual is a potential victim of
77
ibid pg 15-16; National Referral Mechanism: http://www.nationalcrimeagency.gov.uk/about-us/what-
we-do/specialist-capabilities/uk-human-trafficking-centre/national-referral-mechanism
78
ibid
79
NRM ibid. First Responders also include: Police forces; UK Border Force; Home Office Immigration and
Visas; Gangmasters Licensing Authority; Local Authorities; Health and Social Care Trusts (Northern
Ireland); Salvation Army; Poppy Project; Migrant Help; Medaille Trust; Kalayaan; Barnardos; Unseen;
TARA Project (Scotland); NSPCC (CTAC); BAWSO; New Pathways; Refugee Council.
80
ibid
81
ATMG (2010) (n-5) pg 73
82
NRM (n-77)
83
ibid

16
human trafficking. This may involve seeking additional information and evidence84
and
is based on the threshold: “from the information available so far I believe but cannot
prove” that the individual is a potential victim of trafficking.85
If the decision is
affirmative, then the potential victim will be “allocated a place within Government
funded safe house accommodation” (if required) and be granted a reflection and
recovery period of 45 calendar days.86
During the reflection period, the CA gathers
further information relating to the referral after which time it delivers a ‘Conclusive
Grounds’ decision on whether the individual is or is not a trafficking victim.87
The
threshold for the Conclusive Grounds decision is that on the balance of probability in
that “it is more likely than not” that the individual is a victim of human trafficking. The
FR and the potential victim will both be notified of the decision.88
In principle, if an
individual is a victim of trafficking the NRM will identify them as such and enable their
access to the services and protection afforded to such victims.89
However, this is
dependent on the NRM working not only in principle but also in practice.
The National Referral Mechanism: In Practice
The NRM has been criticised in several respects. Firstly, it has been asserted that both
FRs and the CAs have failed to identify victims of trafficking by not applying the
definition of human trafficking as provided in the Convention.90
Among other reasons,
this derives from a failure to understand the components of trafficking and recognise the
indicators of trafficking victims.91
Secondly, the use of the NRM to access the status of
a potential CVTs has been heavily criticised:
84
This may involve seeking additional information from the FR, specialist NGOs or social services.
85
ibid
86
This allows the victim to begin to recover from their ordeal and to reflect on what they want to do
next, for example, co-operate with police as required, return home. Article 13(1) of the Convention
requires a recovery period of at least 30 days for individuals where there are “reasonable grounds to
believe that the person concerned is a victim.”
87
ibid. The expectation is that a ‘Conclusive Grounds’ decision will be made as soon as possible
following day 45 of the recovery and reflection period. There are no targets to make a conclusive
grounds decision within 45 days and the timescale for making a such a decision should be based on “all
the circumstances of the case.”
88
ibid
89
Elliott (n-28) 11
90
ATMG (2010) (n-5) pg 21-28
91
ibid pg 21-34

17
“In setting up the NRM, the Government decided to bypass the existing child
protection system and local authority children’s services were not given the task of
identifying child victims of trafficking, despite their expertise in child protection and
the statutory duty to safeguard children. Instead, practitioners are required to refer
cases to the NRM case-owners within the [CA] Many professionals believe that the
[CAs] have insufficient expertise and training in relation to children.”92
Notably, the NRM has been criticised for failing to recognise children and processing
them under the more onerous definition afforded to adult victims.93
Thirdly, ECPAT
UK94
has reported that some local authorities “fail to see any benefit” in referring
children to the NRM and have expressed the concern that where a child receives a
negative NRM decision it also has a detrimental impact on their immigration status.95
Indeed the NRM has been criticised for conflating NRM decisions with those of
immigration status.96
Ultimately, “this immigration focus, coupled with a lack of
awareness of the NRM, has led to safeguarding failures in many child cases.”97
Therefore, the challenges facing CVTs are three-fold. Firstly, the individual must be
initially recognised as a potential victim of trafficking. Secondly, their age must be
established as being under 18 years and thirdly determination of their trafficking status
must not become conflated with that of their immigration status.
Identification, Age and Immigration
The successful identification of a victim of trafficking relies on the initial identification
by FRs followed by an assessment by the CA. However, both of these groups have
consistently failed to identify potential victims and to correctly apply the definition of
human trafficking as provided for in the Convention.98
FRs, and in particular the local
authorities’, failure to identify cases of child trafficking was initially identified by the
92
ATMG (2013) (n-1) pg 50
93
ibid
94
ECPAT UK is a leading children’s rights organisation campaigning against child trafficking and
exploitation in the UK and on its international aspects. See http://www.ecpat.org.uk/about-us accessed
01/07/2016
95
ATMG (2013) (n-1) pg 50
96
ibid
97
ibid
98
ATMG (2010) (n-5); ATMG (2013) (n-1)

18
Monitoring Group in 2010, and reiterated as a “valid concern” in its 2013 report.99
Furthermore, ECPAT UK100
has reported that:
“There is […] a lack of awareness among social workers, who receive no
mandatory training on child trafficking, which may mean that they are not
familiar with the indicators of child trafficking and the appropriate responses to
safeguard them.”101
Moreover, it has been submitted that:
“The [NRM] creates a narrow, legally dubious interpretation of a victim, and
attaches conditions that have been proved to impede identification, and have
also been found to undermine prosecution in some cases.”102
Critically, an examination of CA Conclusive Grounds decisions exposed a lack of
understanding by CAs of what trafficking is, how control is exercised over the victim
and the consequences of a victim’s conduct.103
For instance, where a potential victim
failed to make themselves known to the authorities when they had the opportunity to do,
it was considered to have damaged the alleged victim’s credibility. Consequently, it was
“not considered acceptable that they [the alleged victim] were trafficked into the UK or
forced to work as a prostitute by traffickers as [they] claimed.”104
However, under the
Convection, a victim “shall mean any natural person who is subject to trafficking in
human beings as defined in this article.”105
Accordingly, anyone who has been subject
to the crime of trafficking should be considered a victim without additional conditions
being attached; that they sought help at the earliest opportunity is not necessary.106
Misapplication of the definition has also resulted is statutory authorities failing to
“recognise situations of exploitation as potential trafficking cases and instead identify a
young trafficked person as a criminal, rather than a victim of crime” (discussed in
Chapter 3).107
Collectively, these shortcomings have resulted in miscarriages of justice.
Potential victims either fail to be initially identified or where then are, then fail to have
99
ATMG (2013) (n-1) pg 13
100
ECPAT UK (n-94)
101
ATMG (2013) (n-1) pg 13
102
ATMG (2010) (n-5) pg 10
103
ibid pg 29-31
104
Competent Authority letter number 16 submitted to the Monitoring Group in January in 2010 and
issued between September 2009 and January 2010. See: ATMG (2010) (n-5) pg 29-30
105
ibid pg 29-31
106
ibid
107
ibid pg 9

19
their status confirmed by the CA through a flawed understanding and therefore
misapplication of the Trafficking Convention’s definition of human trafficking.
Furthermore, determining the age of a victim is essential to ensure that they receive the
correct protection and support. Section 20 of the Children Act 1989 provides that:
“Every local authority shall provide accommodation for any child in need within their
area who appears to them to require accommodation […].”108
Local authorities are
responsible for arranging accommodation for certain children aged up to 18 however,
children aged 16 or 17 may be placed in less secure accommodation than those who are
under 16.109
Therefore, both recognising a potential victim and correctly establishing
their age greatly impacts the level of support that they are entitled to. However, a
number of barriers inhibit the correct assessment of an individual’s age, particularly
children.110
For instance, children may be found without identification documents, be
instructed by their traffickers to lie about their age,111
or may have been provided with
false document stating them to be either older or younger than they actually are thereby
exacerbating the problem.112
However, in a cause for optimism, Article 10(3) of the Convection provides that: “When
the age of the victim is uncertain and there are reasons to believe that the victim is a
child, he or she shall be presumed to be a child […].” Moreover, the Committee on the
Rights of the Child,113
posits that:
“Such identification measures include age assessments and should not only take
into account the physical appearance of the individual, but also his or her
psychological maturity. […] and, on the event of remaining uncertainty, should
accord the individual the benefit of the doubt such that there is a possibility that
the individual is a child, she or he should be treated as such.”114
108
Children Act 1989 Section 20(1)
109
ibid Section 20(3) and (5); ATMG (2010) (n-5) pg 83
110
ATMG (2010) (n-5) pg 9
111
ibid
112
ibid
113
The treaty monitoring body established by the UN Convention of the Rights of the Child
UN General Assembly, Convention on the Rights of the Child, 20 November 1989, United Nations, Treaty
Series, vol. 1577 http://unicef.org.uk/Documents/Publication-pdfs/UNCRC_PRESS200910web.pdf
accessed 01/07/2016
114
Committee on the Rights of the Child, Treatment of unaccompanied and separated children outside
their country of origin, General Comment No.6 UN document CRC/GC/2005/6 1 September 2005 para
31: Guidance for assessing the age of a young, unaccompanied or separated, person and who is outside
of their country of origin.

20
However, the CA as well as other statutory agencies have repeatedly failed to give
young people the “benefit of doubt.”115
The Immigration Law Practitioners’ Association
(ILPA) observes that: “age is often based on ill-informed assumptions about the
appearance, behaviour and roles of children in other cultures and contexts.”116
For
example, during age assessment interviews consideration is given to their behavioural
characteristics and their demeanour.117
In longer term cases consideration has been
given to whether or not the assessor noticed any physical changes in the individual’s
appearance.118
This subjectively and lack of consistency in the methods used to assess
the age of young people has resulted in a valid mistrust of the NRM:119
“It is relatively common for the age of people under the age of 18 to be
incorrectly estimated and for the police, UKBA and other agencies to assume
that they are older […]. This is particularly the case for 16-17 year olds who
have been considered ‘beyond reasonable doubt’ to be adults, when an element
of doubt about their precise age should have been recognised.”120
Finally, even where a child’s age is correctly determined their immigration status may
present a further hurdle.
Out of the two CAs it is the UKVI that by far yields the most criticism.121
This is
particularly troubling as the majority of referrals to the CA are made by the UKVI
(which acts as both a FR and CA).122
As such, it has a significant and important part to
115
ATMG (2010) (n-5) pg 9 and 75
116
Immigration Law Practitioners’ Association, When is a child not a child? Asylum, age disputes and the
process of age assessment (May 2007) file:///C:/Users/User/Downloads/Executive-Summary-Age-
Dispute.pdf accessed 01/07/2016
117
For instance, asserting confidence and making eye contact is interpreted as a sign of maturity. ATMG
(2010) (n-5) pg 76
118
ibid
119
ibid
120
ibid
121
Jackie H Harvey, Rob A Hornsby and Zeilda Sattar, “Disjointed service: an English case study of multi-
agency provision in tackling child trafficking” (2015) 55 British Journal of Criminology 494, 498;
Elliott (n-28) 19-24
122
Between 2013 and 2014 69% of referrals to the CA were made by the UKVI- 60% by the UKVI and 9%
by UKVI Hosted with UKHTC. See: National Crime Agency, National Referral Mechanism Statistics- End of
Year Summary 2014, (January 2015) http://www.nationalcrimeagency.gov.uk/publications/502-
national-referral-mechanism-statistics-end-of-year-summary-2014/file accessed 01/07/2016.
The 2015 statistics reveal a 40% increase in the number of referrals.

21
play in victim identification. Criticism of the agency comprises principally of whether
or not the UKVI, as the authority also responsible for determining immigration status, is
an appropriate agency to be determining the status of suspected trafficking victims.123
As observed by Weiss and Chaudary, “victim status identification is usually considered
from the perspective of immigration law”124
with lack of care being taken by the UKVI
in separating trafficking and asylum interviews.125
Indeed, evidence exists that suggests
that UKVI caseworkers have rejected asylum and NRM decisions on exactly the same
basis.126
This, as Elliott summarises:
“[S]hows a real lack of appreciation of the different statuses of refugee or
trafficked victims and a lack of awareness and understanding of the fact that
there are, and should always be treated as, different decisions, which depend
upon different evidence and information.” 127
This is despite the OSCE ODIHR128
emphasising that the NRM should apply
“irrespective of the immigration status of the person and [is] not an immigration
procedure”129
and the Monitoring Group’s appeal that “no authority that is responsible
for deciding an individual’s immigration or asylum status may also be responsible for
deciding whether that person is trafficked.”130
Ultimately:
“The prioritisation of immigration status over trafficked victim status is inherent
in the NRM process and the use of UKVI as a [CA], and its overarching
immigration focus undermines the fairness of the NRM process and the
National Crime Agency, National Referral Mechanism Statistics- End of Year Summary 2015 (February
2016) http://www.nationalcrimeagency.gov.uk/publications/676-national-referral-mechanism-statistics-
end-of-year-summary-2015/file accessed 01/07/2016
123
124
Adam Weiss and Saadiya Chaudary, “Assessing Victim Status under the Council of Europe Convention
on Action Against Trafficking in Human Beings: the Situation of ‘Historical Victims’ (2011) 25
International and National Law 168, 176
125
Elliott, (n-28) 20-21
126
ibid 20
127
ibid
128
OSCE Office for Democratic Institutions and Human Rights. The ODIHR promotes democratic
elections, respect for human rights, the rule of law, tolerance and non-discrimination, and the rights of
Roma and Sinti communities. http://www.osce.org/whatistheosce accessed 01/07/2016
129
Office for Democratic Institutions and Human Rights, Anti-Trafficking Programme, Report, Second
Expert Meeting on Human Rights Protection in the return of trafficked persons to countries of origin (14
April 2010) pg 2-3 http://www.osce.org/odihr/75467?download=true accessed 01/07/2016
130
The Anti-Trafficking Monitoring Group, Modern Slavery, Human Trafficking and Human Exploitation
Bill (September 2014)
http://www.ecpat.org.uk/sites/default/files/atmg_modern_slavery_human_trafficking_and_human_ex
ploitation_bill_email.pdf accessed 01/07/2016

22
impartially needed to adequately execute the requirements of a body or
individual’s role in the process.”131
Therefore, it is apparent that the NRM is not as successful in practice as it is in
principle.
However, in March 2016 and in part fulfilment of its requirements under the 2015 Act,
the Home Office released three sets of guidance papers one each for ‘Frontline Staff’;132
‘Child First Responders’133
and ‘Competent Authorities.’134
Although it would be
premature to praise the impact of these documents they nevertheless have the potential
to rectify the above failings. Much of the information contained in the documents are
identical thereby promoting a consistent and correct understanding of trafficking and the
NRM process. For instance, they provide a comprehensive list of indicators of human
trafficking135
; explain in detail the definition of trafficking and its components136
and
provide thorough guidance on the information required when filling out referral
forms.137
The documents also provide dedicated sections on suspected CVTs138
including, the obligation to refer suspected CVTs to the local authority139
; the duty on
certain public authorities to notify the Secretary of State of all suspected trafficking
cases140
and provide for the ‘benefit of doubt’ when it is suspected that a victim may be
a child.141
Furthermore, specific guidance is provided to the CA regarding the conflation
of trafficking and asylum claims: “NRM decisions and Asylum decisions are 2 distinct
131
132
Home Office, Victims of modern slavery – frontline staff guidance (March 2016)
https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/509326/victims-of-
modern-slavery-frontline-staff-guidance-v3.pdf accessed 01/07/2016
133
Home Office, National Referral Mechanism: guidance for child first responders (March 2016)
http://www.ecpat.org.uk/sites/default/files/nrm_first_responder_guidance_child.pdf accessed
01/07/2016
134
Home Office, Victims of modern slavery – Competent Authority guidance (March 2016)
https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/521763/Victims_of_
modern_slavery_-_Competent_Authority_guidance_v3_0.pdf accessed 01/07/2016
135
Frontline staff guidance (n-132) pg 16 and 23; Guidance for child first responders (n-133) pg 6;
Competent Authority guidance (n-134) pg 29-38
136
Frontline staff guidance (n-132) pg 23-32; Guidance for child first responders (n-133) pg 2;
Competent Authority guidance (n-134) pg 29-38 and 47
137
Frontline staff guidance (n-132) pg 47; Guidance for child first responders (n-133) pg 4; Competent
Authority guidance (n-134) pg 69
138
Frontline staff guidance (n-132) pg 39-43; Guidance for child first responders (n-133); Competent
Authority guidance (n-134) pg 44-47
139
Frontline staff guidance (n-132) pg 39; Guidance for child first responders (n-133) pg 3
140
Frontline staff guidance (n-132) pg 51
141
ibid 42; Guidance for child first responders (n-133) pg 7; Competent Authority guidance (n-134) pg 46

23
and separate decisions. However, an asylum interview may provide information that is
also of relevance to the NRM decision where trafficking or modern slavery issues are
clarified and investigated as part of the asylum process. There may therefore be good
reasons to conduct a single interview in asylum claims relating to a person within the
NRM process but this is not always possible.”142
Critically, “[T]he Home Office should
not take an asylum decision unless the potential victim has had a negative reasonable
grounds decision and should not take a negative asylum decision until the potential
victim has had a conclusive grounds decision from the NRM”143
thereby maintaining
them as separate issues. Overall, whilst the NRM has yet to release its statistics on the
number of referrals made in the months following the release of the guidance, provided
that they are adhered to, there is cause for optimism. Nevertheless, despite these
developments, there is the possibility that the current NRM may nevertheless be
overhauled in the near future.
In November 2014 the Home Office released its Review of the National Referral
Mechanism for Victims of Human Trafficking (the Review).144
Probing whether the
NRM “provides an effective and efficient means of supporting and identifying potential
victims of human trafficking”145
the Review established a lack of clarity surrounding:
the role of FRs; the purpose of the NRM; what it means for victims and; the
implications of a referral. It also criticised inconsistencies in the quality of referrals, the
failure of statutory authorities to recognise legitimate cases of human trafficking146
and
the “conflation of human trafficking decisions with asylum decisions.”147
Finally, the
Review proposed a new referrals process which is currently being piloted in two parts
of the UK148
until at least September 2016.149
In light of these developments and the
assertion that “an overhaul of the entire victim identification process may be
imminent”150
it is appropriate to consider the adequacy of this new system.
142
Competent Authority guidance (n-134) pg 115
143
ibid
144
Review of the National Referral Mechanism for victims of human trafficking (n-29)
145
Ibid pg 11
146
ibid pg 24 as summarised by Elliott (n-28) 13-14
147
Review of the National Referral Mechanism for victims of human trafficking (n-29) pg 8
148
West Yorkshire and the South West
149
Review of the National Referral Mechanism for victims of human trafficking (n-29) pg 72;
Elliott (n-28) 10
150
Elliott ibid

24
The Review acknowledged that the training received by FRs is not standardised and is
considered to be patchy151
and recommends that “[A] more professional approach for
the role of [FR] […] be developed.”152
Accordingly, the role of FRs should be replaced
with “Slavery Safeguarding Leads” (SSLs), a title which is hoped to explain their role
explicitly.153
SSLs will absorb the role currently executed by FRs and refer suspected
trafficking cases to the CA. However, the SSL will only be contacted for a decision
once a potential victim has been encountered by, for instance, a frontline professional
who makes the initial contact with the suspected victim. Furnished with standardised
training and the potential for accreditation, it is anticipated that SSLs will make
consistently high quality and accurate referrals to the CA resulting in the need for
‘Reasonable Grounds’ decision stage to be phased out.154
This would shorten the time
scale for cases to receive a ‘Conclusive Grounds’ decision thereby “adding cost for a
wider range of support.”155
With high quality training SSLs could indeed address the
challenges facing FRs156
notably, the lack of consistency in the quality of referrals and
the poor awareness of trafficking indicators.157
However, the initial meeting of the putative victim and the gathering of information will
still be completed by frontline professionals including, the current FRs. As such, while
the task of making the decision of potential victimhood lies with the SSL, it is based on
information gathered by the frontline professionals. Therefore, as raised by Jessica
Elliott: “The risk is that all the addition of SSLs will actually do is introduce another
layer of bureaucracy and decision-making into an already fraught process.”158
Under this system, the CA would also be replaced by a Multi-Disciplinary Panel (MDP)
who are overseen and supported by a single Case Management Unit (CMU)159
and
would be responsible for making the ‘Conclusive Grounds’ decision.160
Therefore,
151
152
ibid pg 28
153
ibid
154
Elliott (n-28) 17
155
156
Elliott (n-28) 18
157
ibid
158
ibid
159
Review of the National Referral Mechanism for victims of human trafficking (n-29) pg 72. The Case
Management Unit is referred to as being “located in the most appropriate Home Office Department,
with a small investment in a case management system that will support the management of cases
though its complete lifecycle.” See pg 52
160
ibid pg 9

25
individuals who the SSL accept as being a potential victim would be referred to a
MDP.161
The panel would comprise of:
“[R]epresentatives from key disciplines who have the expertise to understand
the evidence presented to them, make judgements about whether this evidence
meets the threshold for trafficking, and can provide advice on what happens next
for the victim. The panels would include public bodies and representation from
relevant [NGOs].”162
The introduction of MDPs appears promising not least for the fact that they would
replace the UKVI and act independently of immigration authorities. Indeed, the multi-
disciplinary nature of the Panel and CMU may lead to diminishing bias because no
decision would be made by one sole agency.163
Notably, this would weaken the
likelihood of an alternative agenda being pursued other than that of correct
determination of trafficking status.164
Critically, the sourcing of expertise from a range
of ‘key disciplines’ allows for the inclusion of CVT experts. Therefore, CVTs may be
more regularly identified.
Overall, under the proposed system a victim of trafficking may stand a better chance of
being recognised by the SSL and the MDP. As noted above, frontline professionals and
current FRs have recently been furnished with thorough guidance notes on the
identification of victims and the NRM process. Provided such information is updated to
inform them of the new procedure, the overall impact could be very positive.
Nevertheless, it has been suggested that CVTs would be better served by having their
own identification mechanism, independent to that of suspected adult victims.
Two months before the Review’s publication, the Monitoring Group released its own
proposal for a Revised National Referral Mechanism For Children.165
Among its
critiques of the NRM, which included those also pertinent to adults such as the
inappropriate focus on immigration, the Group reported “a worrying lack of child-
161
ibid
162
ibid pg 46
163
Elliott (n-28) 18
164
ibid 25
165
The Anti-Trafficking Monitoring Group, Revised National Referral Mechanism For Children
(September 2014)
http://www.antislavery.org/includes/documents/cm_docs/2014/a/1_atmg_national_referral_mechanis
m_for_children_email.pdf accessed 01/07/2016

26
specific knowledge and child safeguarding.”166
Moreover, it contended that: “children
are not mini-adults and putting children and young people through such a system [is]
inappropriate.”167
Rather, the Group proposed the inception of a multi-agency
safeguarding hub or body based on the existing Multi-Agency Safeguarding Hub
(MASH) model that currently exists in many local authority areas.168
A MASH builds
on local expertise and works to quickly and effectively identify and assess quickly in a
multi-agency setting. According to the Group, “such a model should be employed to
make both the initial and conclusive decision about the status of a child as a victim of
trafficking […].”169
In proposing such an approach, the Group emphasised that:
“Child trafficking is child abuse, but the creation of a system that is separate
from existing child protection structures has isolated the issue and reinforced it
as an immigration issue, leading to concerns over the safeguarding of trafficked
children.” 170
Furthermore, it promoted that such a system would overcome the concern surrounding
the “lack of child-specific training and protection specialism among case owners in the
[CAs].”171
However, the Review categorically rejected the proposal:
“It has been suggested that a body with experience of safeguarding would be
better placed to make the trafficking decision, for example a multi-agency
system within the Local Authorities. However, these are strategic and planning
bodies bringing together a range of partner organisation within a local
authority area. They do not have legal accountability for service delivery.”172
Rather, the Review asserts that the process for child identification is to mirror that of
adults including: a referral by a SSL, a MDP with child specific expertise, a single
CMU and for asylum and trafficking decisions to be made separately. The Review also
proclaimed that child protection system timelines should be taken into account within
the process of referral and decision making and child-friendly language should be used
166
Ibid pg 4
167
ibid
168
ibid pg 6
169
ibid
170
ibid pg 7 and 14
171
Ibid pg 7
172

27
when communicating outcomes from panels.173
Overall, the Review’s proposal along
with the guidance notes appears to address many of the concerns raised by the
Monitoring Group. Therefore, the identification process of CVTs has improved.
The Modern Slavery Act 2015: A Missed Opportunity?
There have been calls to put the NRM on a statutory footing174
and therefore, the
absence of such a move in the 2015 Act a disappointment. However, as noted in the
Review:
“Any process put on a statutory footing can become inflexible and unresponsive
to changing demands and indeed improvements due to the requirement to
further legislate before making changes.”175
Due to the dynamic nature of human trafficking activity, law and policy, retaining the
NRM as a creature of policy on this basis is logical.176
Moreover, Part 5 of the 2015 Act
on the ‘Protection of Victims’ makes provision intended to improve the identification
process.
Under Section 49 “the Secretary of State must issue guidance to such public authorities
other persons as the Secretary of State considers appropriate about—
(a) the sorts of things which indicate that a person may be a victim of slavery or
human trafficking; […] (c) arrangements for determining whether there are
reasonable grounds to believe that a person may be a victim of slavery or
human trafficking.”
Therefore, awareness of the NRM and/or the proposed system should increase along
with the identification and referral of suspected victims. Furthermore, Section 50(2)
states that “The Secretary of State may make regulations providing for public
authorities to determine […] whether—
173
ibid
174
ibid pg 51
175
ibid
176
Elliott (n-28) 30

28
(a)there are reasonable grounds to believe that a person may be a victim of
slavery or human trafficking;
(b)a person is a victim of slavery or human trafficking.”
While Subsection (3) asserts that:
“Regulations under subsection (2) may in particular make provision about the
public authorities who may make such determinations, and the criteria and
procedure for doing so.”
Therefore, the Act provides for the development of a mechanism that is coherent and
consistent in practice- such as the Review’s proposed mechanism. With reference to
CVTs, Section 51 affirms that where there is uncertainty surrounding a victims age and
that there are “reasonable grounds to believe that the person may be under 18”177
the
public authority must “assume […] that the person in under 18.”178
As such, potential
CVTs should be afforded the benefit of the doubt as provided for by the Convention.
Finally, Section 52 places a duty on specified public authorities (listed in subsection
(5)):179
“If a public authority to which this section applies has reasonable grounds to
believe that a person may be a victim of slavery or human trafficking it must
notify—
(a) the Secretary of State, or
(b) if regulations made by the Secretary of State require it to notify a public
authority other than the Secretary of State, that public authority.”
177
Modern Slavery Act Section 51(1)(a) (n-30)
178
Modern Slavery Act Section 51(2) (n-30)
179
Under subsection (5) This section applies to—
“(a) a chief officer of police for a police area,
(b) the chief constable of the British Transport Police Force,
(c) the National Crime Agency,
(d) a county council,
(e) a county borough council,
(f) a district council,
(g) a London borough council,
(h) the Greater London Authority,
(i) the Common Council of the City of London,
(j) the Council of the Isles of Scilly,
(k) the Gangmasters Licensing Authority.”

29
Furthermore, frontline professionals, FRs and CA have recently been furnished with
guidance documents on the identification of victims and the NRM process. These, along
with the aforementioned provisions, have the potential to not only bring more victims to
the attention of the NRM, thereby providing them with the support and assistance that
they are entitled to, but to also allow for the NRM to establish a more detailed and
accurate picture of the landscape of human trafficking in the UK.180
Such knowledge
would enable the State to better tailor its future laws and policies to the specific needs
and challenges facing its victims.181
Overall the current NRM is flawed. Therefore, the recent release of Guidance
publications for frontline professionals, FRs and CAs on the identification of victims
and the NRM process are to be welcome. Likewise, the proposed and piloted scheme to
reform the NRM and introduce SSLs and MDPs is to be met with optimism. However,
irrespective of which process the government decides to endorse, the true task is
ensuring that all parties involved in the system understand the mechanics of human
trafficking and the chosen NRM. Given the provision of the 2015 Act, and the release of
guidance notes, there is real hope that such a requirement will be met. Therefore, more
victims ought to be identified and have access the bespoke system of rights and
assistance available to victims of trafficking.182
However, this is not always the case.
180
See for example, NRM- End of Year Summary 2015 (February 2016) (n-122); National Referral
Mechanism- End of Year Summary 2013 (January 2014) (n-122)
181
ibid
182
Elliott (n-28) 11

30
Chapter 3
Punishment of Trafficking Victims.
“Those who have been victims of traffickers should not also become victims of our
courts.”
- Judge Edmunds (2015)183
The Trafficking Convention: Article 26
Once individuals are identified as being victims of trafficking they are entitled to the
protection, assistance and support as specified in the Convention. One such form of
protection is the “non-punishment provision” contained in Article 26 of the Convention:
“Each Party shall, in accordance with the basic principles of the 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.”
The Explanatory Report to the Convection notes that Article 26:
“constitutes an obligation to Parties to adopt and/or implement legislative
measures providing for the possibility of not imposing penalties on victims…”
[and that] “[T]he requirement that victims have been compelled to be involved
in unlawful activities shall be understood as comprising, at a minimum, victims
that have been subject to any of the illicit means referred to in Article 4, when
such involvement results from compulsion.”184
Furthermore, Article 8 of the EU Trafficking Directive185
asserts that member states are
not to prosecute or impose penalties on victims of human trafficking for their
involvement in “criminal offences which they may have been compelled to commit as a
183
H.H.J Edmunds, “What to do if the defendant might be a victim go human trafficking- a cautionary
tale” (2015) 3 Archbold Review 5
184
Explanatory Report to the Council of Europe Convention against Trafficking in Human Organs, Council
of Europe Treaty Series- No. 216. Para 272 and 273
https://rm.coe.int/CoERMPublicCommonSearchServices/DisplayDCTMContent?documentId=090000168
00d3840 accessed 01/07/2016
185
ECPAT UK, “Directive 2011/36/EU on Preventing and Combating Trafficking in Human Beings and
Protecting its Victims” at: http://www.ecpat.org.uk/content/directive-201136eu-preventing-and-
combating-trafficking-human-beings-and-protecting-its-vict accessed 01/07/2016

31
direct consequence of being subject to trafficking.”186
Yet, neither the Trafficking
Convention nor its Explanatory Memorandum offer any explicit guidance on how the
requirement is to be interpreted in the case of CVTs. However, the 2005 joint Inter-
Parliamentary Union and UNICEF publication Combating Child Trafficking provides
that:
“[U]nder no condition should the law criminalise children. Those who have
been trafficked or sexually exploited must be treated as victims not offenders.
The law needs to include specific provisions guaranteeing that children will not
face criminal penalty as a result of being trafficked in to illegal industries.”187
As provided in the Convention, children who are recruited for the purpose of being
exploited, are to be categorised as ‘trafficked’ even if no abusive means have been used
in the process of recruiting and transporting them.188
Nevertheless, recognising CTVs
in such circumstances has proven difficult (See Chapter 2):189
“In the case of children who are brought to the UK, who do not speak English
or are not familiar with the country’s culture or legal norms, and are entirely
dependent on someone who controls them and requires them to work or earn
money in a particular way, it is not just the specific duress to which a child is
subjected that is an indicator of forced labour and trafficking, but also the
young person’s degree of dependence on the person giving them orders and,
most significantly, the way in which the child is exploited in the situation in
which she or he is placed.”190
This is despite the Central Prosecution Service’s (CPS) 2009 Guidance which
recognised the existence of trafficking victims from cases such as theft (in organised
‘pick pocketing’ gangs) and the cultivation of cannabis plants.191
Indeed, there are
186
Directive 2011 (n-39)
187
Inter-Parliamentary Union and UNICEF, Combating Child Trafficking, Handbook for Parliamentarians,
No.9 (2005) pg 34
http://www.unicef.org/publications/files/IPU_combattingchildtrafficking_GB(1).pdf accessed
01/07/2016
188
Trafficking Convention Article 4(c) (n-4)
189
ATMG (2010) (n-5) pg 48
190
ibid
191
Central Prosecution Service “Prosecution of Youth Defendants charged with offences who might be
Trafficking Victims” in Human Trafficking and Smuggling Central Prosecution Service Guidance (05
November 2009)

32
specific impediments to implementing laws against prosecuting CVTs particularly in
cases involving forced labour and the cultivation of cannabis plants:192
“Even when it is clear that children have been [trafficked] into the UK
specifically to cultivate cannabis, the authorities have not routinely interpreted
such cases to involve trafficking, not considered the children to be victims of
trafficking.”193
Accordingly, the UK’s approach to the issue needs to be examined along with the
potential remedy, if any, afforded by the 2015 Act.
Prosecution of Victims: Making the Case for Change
Judge Edmunds has cautioned that: “Those who have been victims of traffickers should
not also become victims of our courts.”194
However, until very recently, and despite
obligations under the Convection, this appeared very much to be the case in the UK. R
v O [2008]195
saw a 17-year-old CVT, prosecuted for travelling with a false Spanish
identity card and, despite being subject to “the most serious form of exploitation in a
brothel in London”, sentenced to 8 months in an adult prison.196
Unopposed on appeal,
the Court declared: “[W]e hope that such a shameful set of circumstances never occurs
again.”197
In LM [2010]198
the Court of Appeal attributed that UK’s failure to protect
CVTs as arising, in part, from a lack of knowledge among government agencies about
its international obligations.199
http://tna.europarchive.org/20100113184051/http:/www.cps.gov.uk/legal/h_to_k/human_trafficking_
and_smuggling/ accessed 01/07/2016
“Recent cases have highlighted the following offences as those that are likely to be committed by child
trafficking victims
i) Theft (in organised ‘pick pocketing’ gangs), under section 1 of the Theft Act 1969
ii) Cultivation of cannabis plants under section 6 Misuse of Drugs Act 1971
Prosecutors should be alert to the possibility that in such circumstances, a young offender may actually
be a victim of trafficking and have committed the offence under coercion.”
192
ATMG (2010) (n-5) pg 49
193
ibid
194
Edmunds (n-183)
195
R v O [2008] EWCA Crim 2835
196
Edmunds (n-183)
197
ibid
198
LM [2010] EWCA Crim 2327
199
Michelle Brewer, “Case Comment: The prosecution of child victims of trafficking (2012) Archbold
Review 4

33
A glaring example of such a miscarriage of justice and misunderstanding of the crime of
human trafficking is the case of N and Le [2012]200
where two minors were prosecuted
and convicted of cultivating cannabis despite being deemed victims of human
trafficking and forced labour by the UKBA (then acting as the CA). With regards to N,
during the criminal proceedings N was treated as a minor however, on reviewing his file
the CPS did not consider whether N had been a victim of trafficking and/or forced
labour. This was despite the sentencing judge referred to all three co-accused as victims
of unscrupulous people, who were taken advantage of because of their age and illegal
status and the CA declaring N to be a CVT. Ultimately, N was sentenced an 18-month
Detention and Training Order.201
Likewise, Le was also arrested and prosecuted for
cultivating cannabis and treated as a minor. However, while the CPS reviewed his case
after the issue of trafficking was raised, they decided to continue his prosecution
asserting that he did not appear to in ‘debt bondage’ to his ‘recruiters’ or ‘transporters’
as his parents in Vietnam were not under threat and neither was he abused at the factory.
Consequently, he was convicted and sentenced to a 20-month Detention and Training
Order. Damningly, the CPS failed to recognised that children need not be subject to
coercion in order to be a victim of trafficking. In both cases the Court rejected the
appeal, asserting that the CPS had been entitled to prosecute the appellants. 202
It found
that the CPS were entitled to consider that N and Le were not victims of trafficking
within the meaning of Article 4 of the Convention and that therefore, their prosecution
did not violate Article 26 of the Convention.203
Moreover, the Court held that
application of Article 26 is to be determined by the CPS in the exercise of prosecution
discretion, namely whether in all the circumstances it would be appropriate to proceed
with the prosecution of a victim of trafficking.204
However, previous analysis of the case
has found the Court’s reasoning to be unsound. 205
Notably, in considering whether or
not Le and N were CVTs the Court not only disregarded the assessment of the UKBA
but it also failed to apply the appropriate criteria for determination of child victimhood-
subjecting N and Le to those applied to adults and therefore, the demanding that the
200
N and Le [2012] EWCA Crim 189
201
Brewer (n-199)
202
ibid
203
ibid
204
ibid 5
205
For an extensive analysis of the judgement see: Brewer ibid

34
requirement of coercion be fulfilled.206
Furthermore, in asserting that the Court would
not interfere with the judgement of the CPS, it potentially allows for an abuse of process
to be committed.207
Accordingly, the hope created by R v O that “such a shameful set of
circumstances never occurs again” went unrealised.
However, the following year saw a dramatic development. The “landmark judgement”
in R v L and Others [2013] 208
by the then Lord Chief Justice Judge “sets an important
precedent to ensure that trafficked persons are protected from criminalisation, and
highlights the importance of investigating the traffickers in these cases.”209
In May
2013, the Court of Appeal considered four cases regarding the non-punishment of
trafficked persons. Three of these were Vietnamese CVTs forced to work in cannabis
farms and convicted for cannabis cultivation.210
Quashing all four convictions, the Court
recognised the individuals to be CVTs and reiterated the importance of the non-
punishment provision enshrined in Article 26 of the Convention and Article 8 of the
Trafficking Directive.211
Moreover, the Court affirmed that, in situations where the
criminal offence on which the CVT is charged is a manifestation of exploitation, it is for
the Court to stand between the prosecution and trafficked persons and stay the
prosecution.212
As such, R v L provides a route by which the prosecution can be stayed
in the context of an abuse of process argument.213
If such an argument is raised then,
“the Court will reach its own decision on the basis of the material advanced in support
of and against the continuation of prosecution”214
Therefore, in a major departure from
the principle that the Court does not intervene in the decision to prosecute endorsed in N
and Le, it is now for the Court to make its own assessment of prosecution:215
206
ibid 5
207
For an extensive analysis of the judgement see: Brewer ibid 4
208
R v L and Others [2013] EWCA Crim 911
209
ATMG (2013) (n-1) pg 49
210
The fourth was a Ugandan woman trafficked for sexual exploitation.
211
R v L and Others (n-208) para 17
212
ibid
213
Edmunds (n-183) 6
214
ibid
215
Notably, this is not an exercise in deciding whether the CPS’s decision is Wednesbury unreasonable.
A standard of unreasonableness used in assessing an application for judicial review of a public
authority’s decision. A reasoning or decision is Wednesbury unreasonable (or irrational) if it is so
unreasonable that no reasonable person acting could reasonably could have made it. The test is
distinguishable from the test of merely showing that a decision was unreasonable. See: Associated
Provincial Picture House Ltd v Wednesbury Corporation (1948) 1 KB 223;
Edmunds (n-183) 6

35
“The criminality, or putting it another way, the culpability of any victim of
trafficking may be significantly diminished, and in some cases effectively
distinguished, not merely because of age […] but because no realistic
alternative was available to the exploited victim but to comply with the dominant
force of another individual or group of individuals.”216
[…] “In some cases the
facts will need to show that he was under levels of compulsion which means that
in reality culpability was extinguished. If so when such cases are prosecuted, an
abuse of process submission is likely to succeed. That is the test we have applied
to these appeals.”217
Since R v L, the approach has been confirmed in C, E, I, F [2014].218
The case
addressed four separate appellants who had been “dealt with”219
for passport offences
where it later became apparent that they had been victims of trafficking. In addressing
the case, the Court quoted extensively from R v L and from the CPS’s 2014 revised
protocol.220
The Court also affirmed that where a victim is or may be under 18 they are
to be presumed to be under 18 until the contrary is proved and that the requirement for
compulsion is not to be applied to children. If a child commits an offence as a direct
consequence of trafficking or exploitation, then he or she should not be prosecuted.221
Accordingly, there appears to have been a change in heart within the Courtroom as to
how victims of trafficking are to be treated. Promisingly, since 2015 there have been no
reported cases of CVTs being prosecuted. As such, the UK appears to finally be moving
towards satisfying its international obligations. Furthermore, the 2015 Act introduced a
limited statutory defence against the prosecution of trafficking victims. However, its
application is restricted.
216
R v L and Others (n-208) para 13
217
Ibid para 33
218
C, E, I, F [2014] EWCA Crim 1483
219
As phrased by Judge Edmund. Edmunds (n-183) 6
220
See: CPS Prosecution Guidance on Human Trafficking, Smuggling and Slavery at
http://www.cps.gov.uk/legal/h_to_k/human_trafficking_and_smuggling/ accessed 01/07/2016
221
See: Edmunds (n-183) 6

36
The 2015 Act: Progress or Peril?
Section 45 of the Modern Slavery Act 2015 provides a limited statutory defence for
individuals who commit certain criminal offences which are contributable to them being
a victim of human trafficking and is committed as a result of their exploitation.
Concerning adult victims:
“(1) A person is not guilty of an offence if—
(a)the person is aged 18 or over when the person does the act which
constitutes the offence,
(b)the person does that act because the person is compelled to do it,
(c)the compulsion is attributable to slavery or to relevant exploitation,
and
(d)a reasonable person in the same situation as the person and having
the person’s relevant characteristics would have no realistic alternative
to doing that act.
(2) A person may be compelled to do something by another person or by the
person’s circumstances.
(3) Compulsion is attributable to slavery or to relevant exploitation only if—
(a)it is, or is part of, conduct which constitutes an offence under section
1 or conduct which constitutes relevant exploitation, or
(b)it is a direct consequence of a person being, or having been, a victim
of slavery or a victim of relevant exploitation.”
Regarding children, Section 45(4) provides that “A person is not guilty of an offence if—
(a) the person is under the age of 18 when the person does the act which
constitutes the offence,
(b) the person does that act as a direct consequence of the person being, or
having been, a victim of slavery or a victim of relevant exploitation, and
(c) a reasonable person in the same situation as the person and having the
person’s relevant characteristics would do that act.”

37
Subsection (5) clarifies that “relevant characteristics” means age, sex and any physical
or mental illness or disability while “relevant exploitation” is exploitation (within the
meaning of section 3) that is attributable to the exploited person being, or having been, a
victim of human trafficking. Furthermore, subsection 7, applying to both adult and
CVTs, provides that “Subsections (1) and (4) do not apply to an offence listed in
Schedule 4” which lists of a hundred or so offences.222
Accordingly, a person under the age of 18 is not guilty of an offence if it is committed
as a direct consequence of being, or having been, a victim of slavery or a victim of
relevant exploitation and a reasonable person in the same situation as the person and
having the person’s relevant characteristics would do the act. 223
The requirements
applied to children are similar to those imposed upon adults. However, adults must
prove that there was an element of ‘compulsion’ was present which forced them to
commit the crime. Accordingly, the requirements for child victims are less exacting.
However, this statutory defence nevertheless falls short of the progress exhibited by the
Courts particularly in relation to CVTs.224
Firstly, Subsection 7 provides that certain offences, listed in Schedule 4, are excluded
from the defence. However, the motives behind the Government’s decision to exclude
certain offences is somewhat questionable. 225
Allegedly intended to exclude “serious
sexual and violent offences” the schedule was influenced and is comparable to Schedule
15 of the Criminal Justice Act 2003 which lists serious offences that can attract
extended sentencing.226
Yet, Schedule 4 includes offences beyond those contained in
the 2003 Act. For instance, blackmail and the offence of assisting unlawful immigration
to a Member State.227
Accordingly, Schedule 4 does not solely include “sexual and
violent” crimes. Consequently, the list has been considered somewhat arbitrary.228
222
Karl Laird, “Evaluating the relationship between section 45 of the Modern Slavery Act 2015 and the
defence of duress: an opportunity missed? (2016) Criminal Law Review 395
223
ibid
224
ibid
225
ibid 396
226
This assertion is contained in the Impact Assessment that accompanied the Modern Slavery Bill (May
2014).
Home Office, Impact Assessment: Modern Slavery Bill (May 2014)
http://www.parliament.uk/documents/impact-assessments/IA14-10.pdf accessed 01/07/2016
227
The offence of assisting unlawful immigration to a member state and contained in Section 25 of the
Immigration Act 1971
228
Laird (n-222) 396

38
Furthermore, while the Government has submitted that limiting the offence prevents it
being pleaded by “serious criminals”229
and not victims of trafficking, as Laird notes:
“An individual may genuinely be a victim of slavery or trafficking and be
compelled to commit a serious criminal offence. It is wrong to assume from the
fact that someone has done the acts that fulfil the definition of a serious criminal
offence that he is necessarily a serious criminal.”230
Laird’s comment is particularly potent with regards to CVTs. For instance, a trafficked
victim who, whilst remaining under the control of their own traffickers, may be used to
groom other individuals for the purpose of sexual exploitation. 231
However, owing to
this being a serious sexual offence and listed under Schedule 4, the individual would not
be able to raise the defence despite it being committed as a direct result of their own
exploitation.232
Critically, as discussed by Bird and Southwell, it is not uncommon for
children and younger members of an exploited group to graduate overtime into
positions within an organisation where they are exerting greater dominance over others
whilst still being under the control of their own traffickers.233
Concluding, the Schedule
fails to take into account the depth of control and power that traffickers can exert on
their victims.
Secondly, it has been asserted that the ‘reasonable person’ test provided under Section
45(1)(d) for adults and Section 45(4)(c) and 45(5) for children, is not only inappropriate
in that ordinary members of a jury may struggle to ascertain what a reasonable adult
would actually do in the victim’s circumstances let alone a child, but also because it
imposes on CVTs the additional requirement that they demonstrate that they were
‘compelled’ to commit the offence. Accordingly, this imposes a standard not envisioned
by the Convention.234
Under the defence, the defendant must show that the offence committed was a
consequence of their status as a trafficking victim and that it formed part of their
229
Modern Slavery Bill Debate co.365 cited in Laird ibid
230
Laird ibid 396
231
See: Steven Bird and Philippa Southwell, “Does the new ‘slavery’ defence offer victims of trafficking
any greater protection?” (2015) 9 Archbold Review 7, 9
232
Ibid 9
233
ibid
234
ibid 8

39
‘relevant exploitation.’235
The offence committed only becomes ‘relevant exploitation’
for the purpose of the defence only if it is attributable to the exploitation inflicted on the
person as being, or having been, a victim of trafficking.236
However, a magistrate or jury
will have to be led through the Act’s “minefield of relevant definitions” before
considering whether a reasonable person, with the same characteristics including “age,
sex and any physical or mental illness or disability” and in the same situation would
have no realistic alternative to commit the offence.237
Therefore, as observed by Bird
and Southwell, the mere public may not only struggle to grasp each of these concepts
but also be unable to envision what a reasonable person would indeed do in that
situation.238
Moreover, as the accused is likely to have already been confirmed as a
trafficking and taking into account ‘their situation’, the test effectively becomes that of a
‘reasonable trafficked person.’239
Accordingly, the jury must now imagine what a
‘reasonable trafficked person’ would do in those circumstances which in itself is no
mean feat. Furthermore, it is not unconceivable that such an assessment must also take
into account other aspects such as the emotional and physical abuse inflicted on the
defendant which again, an ordinary member of the public may be challenged to
comprehend. Moreover, relating to CVT’s the ‘reasonable person’ becomes a
reasonable CVT effectively requiring the jury to ascertain how a child, who had been a
victim of trafficking and has potentially undergone physical and emotional forms of
abuse, should have reacted.240
Accordingly, one can be forgiven for questioning the
competence of lay individuals to fulfill such a magnitude of tasks.241
Furthermore, as
the defendant is likely to have demonstrated that in their circumstances there was no
other alternative option than to commit the act, in that a reasonable person would have
sought an alternative cause of action, the test implies an element of compulsion.242
As
235
Modern Slavery Act Section 45(3) (n-30)
236
Bird and Southwell (n-231) 8
237
ibid
238
ibid
239
ibid
“It is most likely that if the tribunal of fact is considering this part of the defence they have already found
that the defendant [committed] the act as a direct consequence of their slavery or exploitation as a
trafficked individual. Therefore, the fact that the defendant is a trafficked individual must become
relevant as to how a reasonable person in his situation [i.e trafficked] would have acted. In effect the
reasonable person becomes the reasonable trafficking victim.”
240
ibid 8
241
ibid
242
ibid 9

40
such, it places a burden on CVTs that goes beyond that envisaged by the Convention.243
Ultimately, any claim that the defense is compliant with such is dubious.244
Thirdly, when engaging the ‘reasonable person’ test, regard is given to the ‘relevant
characteristics’ of the defendant. The list provided in Section 45(5) mirrors that of the
common law defense of duress245
upon which the Section 45 defence was initially
developed.246
However, common law explicitly excludes ‘learned helplessness’ as a
relevant characteristic and therefore, it can be anticipated that such an issue would not
fall within the remit of Section 45(5).247
Lord Justice Hallett describes the condition as
thus:
“The reaction of a victim to cronic and repeated abuse, whereby they feel that
whatever they do nothing will change. They have no way of physically or
emotionally breaking free from their abuser and the abuse. They cannot extract
themselves from the violent situation no matter how many cries for help they
make. They become increasingly passive.”248
Its absence from Section 45(5) is troubling as learned helplessness is a condition that
trafficking victims may suffer from, especially children, and which would explain why
they failed to seek help and therefore, remove the issue of compulsion.249
Moreover,
although attention is given to the age of the victim, as already discussed, the authorities
have had trouble determining a victim’s age. As such, it is not unforeseeable that a 17-
year-old could be misidentified as an adult in which case the feature of learned
helplessness could prove a vital addition to their defence.250
Given the restrictive nature
and deficiencies of the defence in terms of schedule 4, Section 45(4)(c) and Section
45(5) the assessment that “once again reliance will have to be placed on prosecution
discretion to ensure victims of slavery and trafficking are not inappropriately
243
The definition of a child trafficking victim does not require the presence of compulsion. Trafficking
Convection Article 4 (n-4)
244
Bird and Southwell (n-231) 8
245
Bowen [1997] 1 W.L.R 372
246
Laird (n-222) 399-340
247
ibid
248
GAC [2013] EWCA Crim 1427 para 26. For further analysis of the case see J Loveless, “R v GAC:
Battered Women ‘Syndromization’” (2014) Criminal Law Review 655
249
E.K. Hopper, “Under-identification of Trafficking Victims in the United States” (2004) 5 Journal of
Social Work Research and Evaluation 125
250
Laird (n-222) 401

41
criminalised” is apt.251
However, since the Act’s inception there have been no reported
cases of trafficking victims being prosecuted potentially signifying a reluctance to
punish victims or that the opportunity has not arisen. Therefore, whilst the misgivings
regarding Section 45 may be valid, they have yet to be seen in action.
Overall, the conviction of CVTs for crimes committed as a direct consequence of them
being trafficked is a strain in the reputation of the UK’s legal system. However, whilst
decisions by the likes of Lord Chief Justice Judge in R v L and Others [2013]252
and the
outcome of C, E, I, F, [2014]253
are to be commended, the momentum of such rulings
must be maintained in subsequent cases if they are to have any ongoing worth. This is
particularly important as, while the 2015 Act offered the opportunity to formalise
Article 26, it is instead laced with its own web of barriers which inhibits its application
for many victims including children. As such, the ambition that trafficked victims will
not be inappropriately criminalised will land on the prosecutorial discretion of the CPS
and the judiciary. Ultimately, in enacting Section 45 the UK has not only fallen short of
its obligations under the Trafficking Convention but it has arguably regressed.
Chapter 4
Supporting Child Trafficking Victims: Providing Safe Accommodation and the
Case for Legal Guardians.
“[I]t is well known that human trafficking and slavery flourish in countries
where victim protection and victims’ rights are weak.”- A. Gentleman (2014)
254
The Trafficking Convention Article 12(1) and 10(4)
Under the Trafficking Convention, once an individual is identified as a potential victim
of human trafficking they are entitled to minimum standards of protection detailed in
Article 12(1). Among those listed includes “standards of living capable of ensuring
251
ibid 397
252
R v L and Others (n-208)
253
C, E, I, F (n-218)
254
A. Gentleman, “Modern slavery bill is a ‘lost opportunity’, says human trafficking adviser” The
Guardian (3 November 2014) https://www.theguardian.com/law/2014/nov/03/modern-slavery-bill-
lost-opportunity-human-trafficking-adviser accessed 01/07/2016

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