Case No. UKUT-00226-(IAC)

[ 2006] 43 EHRR 16 which had, inter alia , embraced the definition of slavery in the Geneva Convention on Slavery (1926) which required the exercise of a genuine right of ownership of the victim and reduction of the status of the victim to an “object”: see [122]. In [281] the Court states: “ The Court considers that trafficking in human beings, by its very nature and aim of exploitation, is based on the exercise of powers attaching to the right of ownership. It treats human beings as commodities to be bought and sold and put to forced labour, often for little or no payment, usually in the sex industry but also elsewhere…. It implies close surveillance of the activities of victims, whose movements are often circumscribed … It involves the use of violence and threats against victims, who live and work under poor conditions. ” Highlighting the threat which trafficking poses to the human dignity and fundamental freedoms of its victims and its incompatibility with democratic societies and the values expounded in the ECHR, the Court concluded that it is embraced by Article 4 ECHR: [282]. (27) Having made this landmark conclusion, the EC t HR then turned its attention to the specific requirements of Article 4 ECHR. We summarise [283] – [289] of its judgment thus: (a) Article 4 is on a pa r with Articles 2 and 3 as enshrining “ one of the basic values of the democratic societies making up the Council of Europe ”. It makes no provision for exceptions or derogation. (b) The spectrum of safeguards contained in national legislation “ …. must be adequate to ensure the practical and effective protection of the rights of victims or potential victims of trafficking ”. This includes adequate criminal law measures and the need for appropriate provisions within the state’s immigration rules. (c) Article 4 encompasses “ a specific positive obligation on Member States to penalise and prosecute effectively any act aimed at maintaining a person in a situation of slavery, servitude or forced or compulsory labour ”. This, however, is but one aspect of the state’s general undertaking to combat trafficking arising out of the Traff icking Convention and the Palerm o Protocol. (d) Operational measures to protect victims or potential victims of trafficking may arise in certain circumstances. (e) In common with Articles 2 and 3, Article 4 entails a procedural obligation to investigate “ situations of potential trafficking ”, which is not dependent upon a complaint from the victim. (28) Another important member of the developing EC t HR jurisprudence in this sphere is its decision in C N v United Kingdom [2013] 56 EHRR 24, which involved a complaint of domestic servitude infringing Article 4 ECHR. In [80], the Court made the important pronouncement that domestic servitude - “ … involves a complex set of dynamics, involving both overt and more subtle forms of coercion, to force compliance. ” As a result, the investigation of such complaints “ …. requires an understand ing of the many subtle ways an individual can fall under the control of another ”. In brief compass, the main criticism of the State’s investigation in this case was that it was too blunt and simplistic. Notably, the Court adjudged the International Labour Organisation ’ s indicators of forced labour as “ a valuable bench mark ”: see [35]. Notably, in its consideration of the concept of “ penalty ”, the Court acknowledged that this need not necessarily take the form of physical violence or restraint. Rather, this can assume a more subtle m antle, usually of a psychological nature, embracing conduct such as threats to denounce a victim to the police or immigration authorities: see [77]. (29) In R v SK [2011] EWCA Crim 1691 [2013] QB 82 , the Court of Appeal highlighted that the concepts of slavery, servitude and forced or compulsory labour in Article 4 ECHR share a common denominator, namely that “ … the victim is subject to a degree of enforced control ”: see [40]. In [41], the Court emphasised the broad spectrum of conduct which may be encompassed by these different concepts: “ One person may exploit another in many different ways. ” Turning its attention to “ the menace of a penalty ”, the Court stated, in [42]: “ Where ‘forced or compulsory labour’ is concerned, the menace of a penalty can be exerted in various ways. It can be direct; it can also be indirect. Constraint can be mental or physical. It can be imposed by force of circumstances. Where it is alleged that one person has been compulsorily employed by another, the level of pay he or she has received, if any, may have evidential importance. It may point to coercion; it may bear on an employee’s ability to escape from his or her employer’s control. On its own, however, a derisory level of wages is not tantamount to coercion. ” We shall revisit th is discrete issue of compulsion infra . (30) As cases such as R v SK show, o ne of the interesting features of the United Kingdom jurisprudence is the combination of decisions belonging to both the civil and criminal fields. This is illustrated in Attorney General’s Reference Nos 37, 38 and 65 of 2010 [2010] EWCA Crim 2880, in which certain restaurant owners were convicted of the criminal offence of trafficking. They contested their innocence on the basis that the victims had returned to Pakistan following the expiry of their work permits and had, subsequently, returned to the United Kingdom where they resumed employment with the Defendants. The Court of Appeal made the following notable observation, in [18]: “ The unspoken but clear explanation for the workers’ preparedness to return to the risk of further subjection and helplessness was the contrast between the economic circumstances of the families they left behind and even the degraded expectation of a job in the UK …. The return of the workers does not constitute evidence that the conditions to which [they] were subjected were acceptable but, in the circumstances of the present case, is evidence of further exploitation by the offenders of personal circumstances of which they knew they could take advantage. ” Notably, it was further held that, having been deceived by promises of attractive wages and working conditions in the United Kingdom, the victims, all adult males – “ … had been subjected to conditions of neglect, abuse, deprivation and economic exploitation …. [and] ….. They were not prisoners but were effectively trapped and controlled, being unable to work legally elsewhere … and being unable to leave the country and return home. ” See [3] and [21]. (31) The decision of the Court of Appeal in R v Connors and Others [2013] EWCA Crim 324 is especially notable for the following observations of the Lord Chief Justice on what he described as “ the troublesome crime of exploitation of labour ”, at [5]: “The problem has been with us for some time, and has been growing. Unhappily different forms of exploitation are found in the sex industry, the construction industry, agriculture and residential care. That list is not comprehensive. Those who are exploited are always and inevitably vulnerable, and just because they are so vulnerable, profoundly reluctant to report what has happened or is happening to them. The Asylum and Immigration Act 2004 criminalised the exploitation of labour when it was connected to trafficking in human beings, but not otherwise. Therefore it did not prevent vulnerable but untrafficked individuals from being subjected to forced or compulsory labour. The Gang Masters ' Licensing Act 2004 established a system for licensing those who employed workers in specified industries. Nevertheless, this legislation, too did not address the entire problem. The end result was that many men and women continued to remain vulnerable to exploitation without any counter-balancing protection against exploitation. ” Having noted the reform effected by section 71 of the Coroners and Justice Act 2009, the Court drew particular attention to the decision of the ECTHR in Si li adin v France and its earlier decision in SK . (32) In