SK, R. v

An offence of trafficking for exploitation under section 4 requires proof that, when arranging or facilitating entry, the defendant intended conduct contrary to Article 4 of the Human Rights Convention. The offence is not established by poor employment conditions alone.

Slavery, servitude, and forced or compulsory labour each involve a serious denial of personal autonomy and enforced control. Low pay and long hours may be evidence of coercion, but derisory wages alone do not establish it. A jury must receive clear directions on the relevant Article 4 concept or concepts. Directions which reduce the issue to employment standards, rather than the intended Article 4 violation, may render a conviction unsafe.

The appellant was convicted at the Crown Court at Southwark of trafficking a domestic worker into the United Kingdom for exploitation, contrary to section 4(1) and (5) of the Asylum and Immigration (Treatment of Claimants etc) Act 2004. She received a suspended sentence, a residence requirement, and a compensation order.

The prosecution alleged that the appellant intended to subject the complainant to prolonged domestic work for very little pay while controlling and isolating her. The appellant denied ill-treatment and maintained that the complainant was properly treated and paid. On appeal, the central issue was whether the judge’s directions adequately defined exploitation by reference to Article 4 of the Human Rights Convention, or instead placed undue weight on wages and hours of work.

1. Appeal allowed. The conviction was unsafe. It was quashed and a retrial was ordered.
2. Section 4(1) of the Asylum and Immigration (Treatment of Claimants etc) Act 2004 creates an offence of intention. The Crown had to prove that, when arranging or facilitating the complainant’s entry, the appellant intended to exploit her. Actual exploitation was capable of evidencing that intention, but was not itself an additional ingredient of the offence.
3. The statutory definition of exploitation incorporated Article 4 of the Human Rights Convention. The judge was therefore required to direct on its relevant core concepts. As explained in Siliadin v France [2005] 20 B.H.R.C. 654, slavery concerns treatment as belonging to another; servitude concerns a coerced obligation to provide services; and forced or compulsory labour concerns involuntary work exacted under the menace of a penalty. These concepts may overlap, and their common feature is enforced control.
4. Low remuneration and long hours were relevant evidential matters. They could assist a jury in deciding whether coercion existed or whether a worker could escape an employer’s control. They were not, however, determinative. A derisory wage alone was not coercion and did not establish exploitation contrary to Article 4.
5. The prosecution was entitled to bring the case because the evidence was potentially capable of falling within Article 4. But the summing-up concentrated excessively on the economic features of the employment relationship. It diluted the criminal threshold into one akin to employment-law standards and did not clearly explain the Article 4 concepts on which the Crown relied. The answers to the jury’s questions did not cure that defect. Given the erroneous directions on the constituents of the offence, and the jury’s request for clarification, the court could not regard the conviction as safe.

• Court of Appeal (Criminal Division): Allowed the appeal, quashed the conviction, and ordered a retrial: [2011] EWCA Crim 1691.
• Crown Court at Southwark: The appellant was convicted before His Honour Judge Rivlin QC of an offence under section 4(1) and (5) of the Asylum and Immigration (Treatment of Claimants etc) Act 2004.