Moon Swee How & Anor v R

Section 2 of the Modern Slavery Act 2015 creates an offence where a person arranges or facilitates another’s travel with a view to exploitation. The prosecution need not prove that the travel was procured by any of the means identified in Article 4 of the Council of Europe Convention on Action against Trafficking in Human Beings. Parliament deliberately omitted those limitations from section 2. Consent to travel is irrelevant, and the listed methods of arranging or facilitating travel are illustrative rather than exhaustive. International obligations, explanatory material and guidance may illuminate context, but cannot add requirements to clear statutory language. The offence is complete when the travel is arranged or facilitated with the necessary view to exploitation.

Moon Swee How and Xiaoxia Yang appealed against convictions for conspiracy to arrange the travel of persons with a view to exploitation, contrary to section 2 of the Modern Slavery Act 2015. The conspiracy related to recruiting sex workers and causing them to travel to Portsmouth to work in a brothel. They had also been convicted of conspiracy to control prostitution for gain under section 53 of the Sexual Offences Act 2003, but did not appeal those convictions.

The Crown Court at Portsmouth, HHJ Ashworth, rejected submissions of no case to answer on count 1. The central issue was whether section 2 required proof that the travel had been arranged or facilitated by one of the means identified in Article 4 of the Council of Europe Convention on Action against Trafficking in Human Beings.

The appeals were dismissed.

1. The court dealt with the first appellant’s appeal despite his status as an absconder, applying the approach in R. v Okedare & Others [2014] EWCA Crim 228. The issue was a pure point of statutory construction which also arose in the second appellant’s appeal, and it was in the interests of justice to hear both appeals.
2. The starting point was the language of section 2(1) of the Modern Slavery Act 2015. It defines the offence without requiring proof of any particular means by which travel was arranged or facilitated. Section 2(3) gives examples, including recruitment, transportation, harbouring and receiving, but the list is not exhaustive. Section 2(2) makes consent to travel irrelevant.
3. Article 4 of the Convention requires specified means to be proved in the case of adult trafficking, while treating children differently. It also makes consent to intended exploitation irrelevant where those means have been used. Those qualifications were not reproduced in section 2. Their omission was significant, particularly because section 1(2) of the Act expressly requires certain terms to be construed in accordance with Article 4 of the Human Rights Convention, whereas section 2 contains no equivalent provision.
4. The relationship between section 2 and the section 45 defence did not require a single definition of trafficking. The section 2 offence may be complete when travel is arranged or facilitated with a view to exploitation, before exploitation occurs or before the person concerned commits any later offence. Parliament could rationally treat those different situations differently.
5. Explanatory Notes may illuminate statutory context and mischief, as explained in R v Massey [2007] EWCA Crim 2664, but the Notes did not address whether section 2 had a wider reach than the international obligations. Prosecutorial guidance, Home Office guidance and textbooks were persuasive opinions, not authoritative aids which could add words to the statute. R v Karemera [2018] EWCA Crim 1432 supported the conclusion that the actus reus under the previous legislation with the same essential elements was simply defined.
6. The judge was therefore entitled to reject the submissions of no case to answer. His legal directions on count 1 were correct, and the convictions on that count stood.

• Court of Appeal (Criminal Division): dismissed both appeals and upheld the ruling and directions of the trial judge.
• Crown Court at Portsmouth: HHJ Ashworth rejected submissions of no case to answer on count 1 and the appellants were convicted. The convictions on count 2 were not appealed.