C.N. v. THE UNITED KINGDOM – 4239/08 – HEJUD  ECHR 1911 – read judgment here.
The European Court of Human Rights recently held that the UK was in breach of Article 4 of the European Convention on Human Rights by failing to have specific legislation in place which criminalised domestic slavery.
Thankfully Article 4 cases (involving slavery and forced labour) are rare in the UK. Indeed this is only the fifth post on this blog about Article 4, which perhaps shows just how few and far between they are, and the UK has a proud history of seeking to prevent slavery. Although British merchants and traders, to their great shame, played a major part in the trans-Atlantic slave trade throughout the 1600s and 1700s, Britain was then at the forefront of the abolition of the slave trade and slavery from 1807 onwards and the common law has always considered slavery to be abhorrent (as the famous case of ex parte Somersett in 1772 made clear).
Tragically, however, slavery has not been consigned to the history books. Across the world new forms of slavery are prevalent. The International Labour Organisation estimates that there are a minimum of 12.3 million people in forced labour worldwide, and one particular form of modern slavery – human trafficking – is one of the fastest-growing forms of human rights abuse. The UK, as a major destination country for trafficking victims, is not immune from this trend.
CN came to the UK in September 2002. She said she was fleeing from sexual and physical violence she had been suffering in her native Uganda. A relative called PS, who lived in London, helped her get a false passport and visa to enter the UK, but on her arrival took these travel documents away from her and did not return them. She lived at a number of houses in London owned by PS, who told her that she should not talk to other people or she would be arrested or attacked. In early 2003 PS introduced her to a man called Mohammed who arranged a job for her as a live-in carer for an elderly Iraqi couple, Mr and Mrs K. The job was extremely demanding as Mr K had Parkinson’s disease and she was permanently on-call apart from one Sunday afternoon each month when she had a few hours off, but on these occasions she was collected by Mohammed and drive to PS’s house for the afternoon. Mr and Mrs K paid £1600 per month for CN’s services to Mohammed, who passed on a percentage to PS on the apparent understanding that it would be paid to CN. In fact she was never given any money.
In August 2006 Mr and Mrs K went on a trip to Egypt. CN could not accompany them as she had no passport. Whilst they were away, CN was taken to a house belonging to PS, whose partner Harriet prevented her from leaving and told her not to speak to anyone.
On 18 August 2006 CN left the house and went to a local bank where she asked someone to call the police. Before the police arrived she collapsed and was taken to hospital, where she was diagnosed as HIV positive and suffering from psychosis. After a month in hospital she was housed by the local authority. She made an application for asylum, but this was refused in January 2007; the Home Secretary considered that she could access protection from violence if she returned to Uganda and that if she had been genuinely afraid of PS she would have tried to escape earlier. CN appealed but her appeal was dismissed in November 2007, the Immigration Judge finding her story implausible and doubting her credibility.
CN’s solicitor wrote to the police, asking them to investigate her case. The Metropolitan Police Human Trafficking Team commenced an investigation and interviewed her. They also sought the assistance of the UK Human Trafficking Centre, based in Sheffield. In September 2007 the police informed CN’s solicitor that there was “no evidence of trafficking for domestic servitude”. CN’s solicitor followed this up in 2008, asking for further detail of why the investigation was stopped. The police informed her that the UKHTC had advised that there was no evidence to substantiate the allegation that CN had been trafficked into the UK.
CN was then assessed by the Poppy Project, who concluded that she seemed to have been subjected to forced labour, and in early 2009 the police began a further investigation. They appear to have obtained a statement from Mohammed, but could not contact Mr and Mrs K. The police met with CN’s solicitor once more and told her that they thought her account was credible, but that there was no offence in English criminal law which applied to the facts of her case.
The applicable law
There are, of course, long-standing criminal offences of false imprisonment, kidnapping, assault, battery, blackmail and harassment, all of which might be relevant to someone in CN’s position. Section 4 of the Asylum and Immigration (Treatment of Claimants etc.) Act 2004 created the new offence of trafficking people for exploitation. Exploitation is defined as, amongst other things, being the “victim of behaviour that contravenes Article 4 of the Human Rights Convention”.
However, the first conviction under section 4 did not take place until 16 March 2011. That conviction was quashed and a retrial ordered by the Court of Appeal because the trial judge misinterpreted what ‘behaviour contravening Article 4’ meant. The defendant was acquitted in the retrial. Moreover, the act of holding a person in slavery or servitude, by itself, was not specifically criminalised until Section 71 of the Coroners and Justice Act 2009, which came into force on 6 April 2010.
The Court’s ruling
CN brought a claim to the European Court of Human Rights, alleging that the UK had not done enough to afford effective protection of her Article 4 rights.
The Court re-iterated its finding in the previous decision of Siliadin v. France that Article 4 entails a positive obligation on Member States to effectively penalise and prosecute any act aimed at enslaving someone. In a similar way to Articles 2 and 3, the Court also held that in circumstances where a Member State’s authorities were aware, or ought to have been aware, that an individual had been enslaved, or was at real or immediate risk of being enslaved, that Member State also has an ‘operational duty’. This includes a duty to take appropriate measures to remove that person from the situation or risk. It also includes a duty to investigate where there is a credible suspicion that an individual’s Article 4 rights have been violated.
On the facts of this case, the Court held that there was a failure by the police to properly investigate her complaints, and that this was a result of a failure to have in place legislation which effectively criminalised treatment contrary to Article 4.
The UK Government pointed out that the numerous criminal offences, under either statute or common law, which criminalised various aspects of slavery, servitude or forced/compulsory labour. However, the Court held that all these offences still meant that the police were limited to investigating and penalising criminal offences which often, but do not necessarily, accompany the offences of slavery, servitude or forced labour. Someone like CN, who was subjected to domestic servitude but was not a victim of any of these other crimes, was left without any assistance or remedy.
The UK Government then argued that, if the legislation was defective, that was not the reason on the facts of this case why the police investigation was halted. The reason was that there was not enough evidence. However, although the Court noted that the police initially had concerns about the credibility of CN, it held that the main problem was the investigating officers’ heavy focus on the offence of trafficking for exploitation under section 4 of the Asylum and Immigration Act 2004.
In legal terms, this case is now probably of academic interest only, since section 71 of the Coroners and Justice Act 2009 fills the gap which the Court held had existed in UK law before then. However, what this case does do is draw attention to the shadowy nature of modern slavery and the very difficult task the authorities have in effectively criminalising it.
Although the UK has taken great strides in recent years towards combating the evil of human trafficking and forced labour, the numbers of trafficking victims still seems to be growing, as was revealed in the media recently. There are many excellent organisations based in the UK , both old and new, which seek to raise awareness of modern slavery here in the UK and try to encourage the authorities in other ‘source’ countries to bring traffickers, pimps and slavers to justice. But despite their efforts, and the establishment of bodies like the UK Human Trafficking Centre, this does not appear to be a problem that is going away any time soon.
Hopefully this ECtHR judgment will act as a further spur to UK police forces, social work departments and immigration authorities to take claims of forced labour or trafficking very seriously indeed.
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