Moon Swee How & Anor v R

These two appellants appeal against conviction by leave of the single judge. They contend that the trial judge, HHJ Ashworth, (“the judge”) erred in law when rejecting submissions of no case to answer in respect of count 1 on an indictment. There is no appeal against their convictions on count 2.

The first appellant is an absconder who was sentenced to imprisonment in his absence. Mr Bryan and Mr Walters have satisfied themselves that they have authority to conduct this appeal on his behalf. The court decided to deal with his appeal, applying R. v Okedare & Others [2014] EWCA Crim 228; [2015] 1 Cr. App. R. 9. The point raised on this appeal is a pure point of construction of section 2 of the Modern Slavery Act 2015 (“MSA 2015”) and it also arises in the appeal of the 2nd appellant who is not an absconder. In those circumstances it is clearly in the interests of justice to hear the appeals of both appellants together.

Mr Robert Bryan argued the appeal on behalf of the first appellant, with the assistance of Mr Walters, and Mr Anthony Waller adopted his submissions. Mr Dent KC, with the assistance of Ms Deuxberry, responded on behalf of the Crown. We are extremely grateful to all counsel for their help.

The Indictment contained two counts. Count 2 alleged an offence of conspiracy to control prostitution for gain against the same victims as were named in count 1. The substantive offence which the appellants allegedly conspired to commit was an offence contrary to section 53 of the Sexual Offences Act 2003, which appears in Part 1 of that Act. As we have said, there is no appeal against the convictions by the jury on that count. In essence, count 2 involved running a brothel at flat 9a Hilsea Market, Portsmouth between June 2018 and March 2019. Count 1 alleged recruiting the sex workers and causing them to travel to Portsmouth with a view to them working in the brothel. Conviction on count 2 was a necessary but not sufficient condition for conviction on count 1.

Mr Robert Bryan submitted to the judge, and now submits to us, that in order to prove an offence under section 2 of the MSA 2015 the prosecution must prove that the accused trafficked a sex-worker, in the sense of the term “trafficked” used in Article 4 of the Council of Europe Convention on Action against Trafficking in Human Beings (“ECAT”)

. It is not enough that travel was arranged for a sex worker to go to Portsmouth where she would ply her trade; or that a sex worker was offered work in Portsmouth; or that a sex worker was accommodated in Portsmouth. What the Prosecution had to show was that the “means” by which the sex worker was trafficked fell within the definition in Article 4 of ECAT, namely by being threatened, forced, coerced, abducted, tricked, deceived, overborne, or that another who had control over the sex worker was paid or given a benefit so that he or she agreed to allow the sex worker to travel. He argued that in order to understand the context of the offence charged, it was necessary to consider the mischief at which it was aimed. He referred to the MSA’s full title and Explanatory Notes, and to Home Office and CPS Guidance. The language of the MSA was intended to reflect definitions of trafficking within the international instruments, notably ECAT. There was no direct evidence or evidence from which the jury could infer that any of the “means” defined in Art. 4 ECAT had been used. There was, therefore, no evidence that a conspiracy to commit the offence under section 2 of the MSA 2015 was made out. It would follow that not only should the judge not have rejected the submission of no case, but that he should also have directed the jury that proof of the “means” in Article 4 was an element of the substantive offence which the appellants allegedly conspired to commit.

The prosecution accepted that the conduct alleged in the case did not meet the ECAT definition of trafficking, but argued that this was not required for an offence under section 2 of the MSA 2015. Section 2 was clearly worded and the court should be slow to import other requirements that Parliament did not see fit to include. There was enough evidence for a jury to conclude that sex workers were being trafficked when the appellants arranged for them to travel to Portsmouth for the purposes of controlling their prostitution.

The Judge ruled that the materials referred to by the defence, and identified in paragraph 5 above, were “irrelevant” or “did not add to the interpretation”. Section 2 of the MSA 2015 was clearly worded and needed no further interpretation. The Explanatory Notes could be relevant to trying to understand the way an Act is supposed to work but here they did not state that section 2 needed assistance from ECAT.

The Judge first considered the submissions on Count 2, because if there had been no case to answer on that count, there would have been no case to answer on Count 1. He found that there was a case to answer.

Turning to Count 1, the Judge stated, “the issue is whether or not there is a level of trafficking which includes recruitment”. Although the prosecution had not pointed to any specific instances of booking trains or taxis, there was a common sense conclusion to be drawn that the business at 9a Hilsea Market relied on the importing of prostitutes, and there was certainly evidence of recruitment which would be sufficient for the purposes of section 2 of the MSA 2015. Consequently, there was a case to answer on Count 1 in respect of both appellants.

It is unnecessary to burden this judgment with an account of the facts and evidence in the case. The issue sufficiently emerges from what we have already said.

The judge gave the jury very clear written directions of law. If his legal decision when rejecting the submission of no case was right, there is no criticism of any of the directions. If it was wrong, then, as we have said, it follows that the legal directions on count 1 were infected by the same error.

When dealing with the elements of the substantive offence in count 1, the judge said:-

12.

When turning to the elements of the offence of conspiracy the judge added:-

The issue principally concerns the meaning of the offence-creating provision which is section 2. This provides:-

Three other sections of the Act were referred to in argument as casting light on the issue. These were sections 1, 3 and 45.

Section 1 creates a different set of offences. It provides:-

It will be recalled that the substantive offence in count 2 was contrary to section 53 of the Sexual Offences Act 2003, which is part of Part 1 of that Act. If that was proved, as it was, then something was done to or in respect of the persons who had been recruited and caused to travel with a view to working at the brothel which was such an offence. Section 3 defines “exploitation” in these terms:-

Section 45 of the Act provides a defence to victims of slavery or trafficking to certain offences. It is argued by Mr Bryan that a construction of section 2 should be adopted which is coherent with this statutory defence. He counsels against the “mayhem” which might otherwise follow in a submission we set out at [36] below.

Section 45 is in these terms:-

This international instrument contains this definition provision, with the key words for this appeal emphasised by us. These are the words which identify the “means” which it is said must be proved for an offence contrary to section 2 of the MSA 2015:-

It will be noted that the “means” must be established to establish that an adult is trafficked, but not where the person concerned is a child, see 4(c). This makes the position clear for the purposes of ECAT. Many of the words used in this Article are also used in section 2 of the MSA 2015, but 4(c) is not. In the case of an adult person, consent is irrelevant if the “means” are involved, see 4(b). Again, this form of words is not replicated in section 2.

Mr Bryan’s submissions have drawn our attention to a number of documents which he submits are helpful aids to the construction of section 2 of the MSA 2015. We refer first to the Explanatory Notes to that Act because their status as an aid to construction is established. In R. v Massey [2007] EWCA Crim 2664; [2008] 1 Cr. App. R. 2 Toulson LJ, giving the judgment of the court, explained why it was appropriate to have regard to the Explanatory Notes to the Sexual Offences Act 2003 to identify the mischief against which a particular statute is aimed:-

The passages in the Explanatory Notes to the MSA 2015 to which we were referred were extracted from paragraphs 5 and 23. They were:-

This material justifies a conclusion that the MSA 2015 was intended to fulfil the United Kingdom’s international treaty obligations by creating criminal offences which would catch the behaviour described in those treaties. The Notes do not, however, address the possibility that, in addition to doing that, Parliament may have created an offence in section 2 of the MSA 2015 which has a wider reach than the international obligations would require.

Mr Bryan took us to the CPS Guidance and to Home Office Guidance. These documents provide instructions as to the law for prosecutors taking charging decisions and officials determining whether a person is a victim of trafficking respectively. They both refer to the importance of the “means” identified in Article 4 of ECAT in taking these different decisions and, in so doing, they are right. Evidence of the use of such “means” by an accused person or against a suggested victim of trafficking will tend to prove trafficking in all cases where it exists. Nonetheless, it does not follow that this must be proved as an element of the section 2 offence. In so far as these documents suggest that this is the case, they are not an authoritative aid to the construction of section 2 of the MSA 2015.

The same applies to the views contained in the standard textbooks on criminal law, Archbold and Blackstone, to which we were also referred. Their views are persuasive and entitled to respect but they represent opinions about the construction of the statute, rather than aids to that exercise.

The principal focus of the court in an issue of this kind is the words used by Parliament in the statute under consideration. We should first look at the offence-creating provision itself which is section 2(1). This defines the offence without reference to the use of any of the “means” described in Article 4 of ECAT. Unless words are read into it, it is enough if travel is arranged or facilitated by any means with a view to exploitation.

Section 2(3) gives a list of examples (it is not an exhaustive list) of ways in which travel may be arranged or facilitated. That list is taken from Article 4 of ECAT. The only thing section 2 (in very sharp contrast with Article 4) says about the means by which the recruitment, transporting or transferring, harbouring or receiving, or transferring or exchanging control is achieved is in sub-section (2):-

Article 4 says that the consent of the victim to the intended exploitation is irrelevant. It does not say that consent to the travel is irrelevant, because the “means” by which it requires that travel to have been procured would all negate consent. Section 2(2) of the MSA 2015 is therefore materially, and intentionally, inconsistent with Article 4.

Mr Bryan relies on the last example in the list in section 2(3), “transferring or exchanging control over V”. This, he submits, clearly does envisage a situation where the “means” in Article 4 of ECAT can be proved. A state of “control” must somehow be induced before it can either be transferred or exchanged. The list is found in Article 4. It should be noted that other actions in the list do not necessarily require the deployment of those “means”. A person may be recruited or harboured without any of them being involved. Mr Bryan’s answer to this is that section 2(3) applies to both children and adults and includes actions which may not involve the “means” because the “means” are not required in the case of children by Article 4(c) of ECAT. The difficulty with this, however, is that it would have been very straightforward for the draftsman to include words in section 2 to repeat that understating of Article 4 if that was, indeed, the intention. Such words appear in Article 4 but not section 2.

Consent to the travel is irrelevant by section 2(2), but the words of Article 4(b) “where any of the means set forth in in subparagraph (a) have been used” are not added to this subsection. We are invited to read them in, although it is hardly likely that their omission was an accident. Parliament must be taken to have carefully considered how to enact the obligations contained in ECAT into national law and to have paid particular attention to the words of Article 4. That it did so is clear from the use in section 2 of many of the phrases which appear in Article 4. The omissions are, therefore, significant in construing the effect of the provision.

Section 1 of the MSA 2015 is an aid to construction of section 2 because, as Lord Reid said in IRC v Hinchy [1975] QB 773 at 778,

Section 1(2) conspicuously includes an obligation to construe certain terms used in it “in accordance with Article 4 of the Human Rights Convention”. In VCL v UK (App. Nos 77587/12 and 74603/12) (2021) 73 E.H.R.R. 9, the ECtHR said at [150] that Article 4 of the ECHR must be construed in light of ECAT. In Rantsev v Cyprus and Russia (2010) 51 E.H.R.R. 1, the court made it clear that trafficking in human beings falls within the scope of the prohibition under Article 4 of the ECHR. No equivalent provision to section 1(2) is included in section 2 which is, again, significant and unlikely to be accidental.

Mr Bryan submitted that section 45 of MSA 2015 was of particular importance in construing section 2, because otherwise a person might be guilty of trafficking a person who was not entitled to the section 45 defence because they had not been “trafficked” for the purposes of section 45. Much of section 45 concerns victims of conduct which constitutes an offence under section 1 of the 2015 Act, and we are not concerned with those parts of it. The defence in section 45 is also available where an adult person commits an offence because they were compelled to do it, and the compulsion was attributable to “relevant exploitation”. Relevant exploitation is defined as “exploitation (within the meaning of section 3 [of the MSA 2015]) that is attributable to the exploited person being or having been a victim of trafficking”. By section 45(4) the requirement for compulsion in the case of a child offender is omitted and therefore the defence is more widely available for children than adults.

Mr Bryan submits that the CPS guidance on Modern Slavery and Human Trafficking Offences and Defences Including Section 45 “reminds prosecutors that trafficked victims are identified as those persons who are exploited at the hands of their traffickers, and are victims of the criminality as defined by Article 3 of the Palermo Protocol and Article 4 of ECAT, which definition is in part reflected in sections 2 and 3 of the 2015 Act”, as it is put in Archbold at 19-465. This guidance covers the section 45 defence but also the non-prosecution principles derived from Article 26 of ECAT.

He continues:-

We do not accept that there is force in this submission. First, the guidance to prosecutors about charging decisions where Article 26 of ECAT is engaged is not relevant to the construction of section 2 of the MSA 2015. Secondly, there is no reason why Parliament should not restrict the availability of the section 45 defence to criminal conduct so that not all of those who have been the subject of criminal conduct when their travel was arranged and facilitated with a view to exploitation may benefit from it. The creation of the criminal offence by section 2 and of a defence to other criminal offences by section 45 are of course connected with each other, but it does not follow that everyone whose travel has been arranged or facilitated with a view to exploitation must be entitled to the section 45 defence when they themselves offend. It was for Parliament to decide whether that should be the case or not, and it passed the MSA 2015 in the form that it did. We would in any event point to the definition of “relevant exploitation” in section 45(3)(5) of the MSA 2015. This may require further consideration in a case where it is necessary to the outcome but it is in these terms:-

It is, in short, perfectly rational to take a straightforward approach to the commission of an offence under section 2 which is complete at the point at which travel is arranged or facilitated and before the trafficked person can have committed any offence consequent upon that travel. It may also be complete before that person has been exploited, because the travel must be “with a view to exploitation”. The issue of whether the trafficked person should be prosecuted or convicted of an offence committed after the travel is complete and in later, different circumstances is inevitably more complex. It is not surprising that the Act approaches these two different situations differently.

Mr Bryan also referred us to R. v. Karemera [2018] EWCA Crim 1432 in which Hallett LJ in the context of trafficking under section 4 of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004, an offence containing the same elements as section 2 of the MSA 2015, said [44]:-

The court went on to say this:-

This definition of the actus reus of the offence does not include any reference to the “means” by which B was induced to travel. The Palermo Protocol, which contains Article 3 in identical terms to Article 4 of ECAT, is a United Nations treaty which was not ratified in the UK until 2006. ECAT entered into force in respect of the United Kingdom on 1 April 2009. The significance of these documents for the construction of an Act of Parliament enacted in 2004 is not a matter on which we heard argument. At any rate, Mr Bryan is right to say that the submissions he is advancing do not appear to have been made in Karemera. Perhaps the significance of that decision is that it established that under the previous legislation the actus reus of the offence was simply defined. If Parliament wanted a more complex definition of the offence, it was on notice that it needed to enact one.

For the reason given at [24] above we do not find any assistance in the Explanatory Notes on the issue we have to decide. Section 2 does catch the conduct which ECAT requires the United Kingdom to criminalise. The question is whether it does more than that, and the Explanatory Notes are silent on that subject.

Mr. Dent’s submission in response to the appeal is simple reliance on the plain words of the MSA 2015 and the absence in them of any limiting reference requiring proof that the travel was arranged or facilitated by the particular means identified in Article 4 of ECAT.

For the reasons we have set out above, we agree with that submission, and with the ruling and directions of the judge, and dismiss the appeals.