SK, R. v [2011] EWCA Crim 1691

[2011] EWCA Crim 1691Case No 201102228 C2
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM SOUTHWARK CROWN COURT
His Honour Judge Rivlin QC, the Recorder of Westminster
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 8 July 2011
Before
LORD JUSTICE TOULSONMR JUSTICE WYN WILLIAMSMR JUSTICE LINDBLOM
Between
ReginaRespondentSKAppellant
Ms C. Haughey (instructed by the Crown Prosecution Service) for RespondentMs E. Smaller (instructed by McCauley, Smith & Co) for AppellantHearing Hearing date: 7 July 2011
JUDGMENT

Introduction

[1]On the 16th of March 2011, in the Crown Court at Southwark before His Honour Judge Rivlin QC, the Recorder of Westminster, the appellant was convicted of the offence of trafficking into the United Kingdom for exploitation, contrary to section 4(1) and (5) of the Asylum and Immigration (Treatment of Claimants) Act 2004. She was sentenced to nine months imprisonment, suspended for 24 months, and was ordered to comply with a residence requirement for a period of six months. She was also ordered to pay compensation of £25,000 to the complainant.[2]The appellant applied for leave to appeal against conviction, and her application was referred to the full court by the Registrar. At the outset of the hearing we granted leave and proceeded to hear the substantive appeal. At the end of the hearing we allowed the appeal, quashed the appellant’s conviction and ordered a retrial. We now give our reasons.

Background

[3]The facts may be briefly stated. The complainant, to whom we shall refer as MM and who is now 47 years old, arrived in the United Kingdom from a country in Africa on the 7th of October 2006. Her entry into the United Kingdom was arranged and paid for by the appellant. A contract of employment signed by the complainant and the appellant required the complainant to work as a housekeeper for the appellant, in return for payments which would be made into a bank account in the African country opened for this purpose. The complainant was also to be given a monthly allowance while she was in the United Kingdom. The complainant remained with the appellant until February 2010.[4]The complainant was later to say that she had decided to come to work for the appellant, whom she already knew and for whom she had worked occasionally in the African country, because she had separated from her husband and wanted to put her daughter through school in the African country. The complainant alleged, however, that once she had come to the United Kingdom she was treated badly by the appellant, made to work almost 24 hours a day, was poorly fed, was never allowed out on her own and seldom with others, had little contact with her family in the African country, and such contact as she had with them was listened to and sometimes recorded by the appellant. The complainant seemed not to know how much money had been paid into the bank account in the African country. Of the £10 per month which she was supposed to receive while she was in the United Kingdom, she had in fact been given very little.[5]On the 10th of March 2009 the complainant registered with a medical centre in Harrow. Her GP was a Dr M.[6]On the 1st of February 2010 the appellant took the complainant to the medical centre for an appointment with Dr M. An interpreter, Ms M, was present. The complainant had not met Dr M or Ms M before. While she was with Dr M the complainant disclosed that she was being ill-treated by the appellant. This was later reported to a charity in the Africa country by Ms M.[7]On the 11th of February 2010 police officers, together with Ms M and representatives of the charity, went to the appellant’s home and spoke to her and the complainant. The complainant left with them.[8]On the 22nd of March 2010 the appellant was arrested, interviewed and released on bail while the police investigation went on.[9]On the 22nd of June 2010 the appellant was interviewed again.[10]On the 1st of September 2010 the appellant was charged with the offence of which she was eventually convicted.

The appellant’s trial

[11]The appellant’s trial took place in March 2011. The complainant gave evidence. She said she had worked as a cleaner at the hospital run by the appellant’s husband in the African country. After he had died she was made redundant. The appellant then proposed that the complainant should come to the United Kingdom and work for her. The complainant said that when she arrived at the appellant’s home she was not given her own room. She was made to sleep on a mattress on the kitchen floor. She had to keep her belongings in a shed outside. Often she was cold at night. The appellant required her to work all day and into the night. She cooked, cleaned, worked in the garden and attended to the appellant’s two children, which required her to work at night because both of them suffered from disabilities. She would only be allowed out to do the appellant’s shopping or to take the appellant’s son for a walk. If the appellant wanted something she would ring a bell to summon the complainant. The complainant was expected to be available to the appellant 24 hours a day. She stated in her evidence that she wanted to go home, but had no money to pay for the trip. She had received a monthly allowance of £10 during the first year of her time with the appellant. After that, however, she was given nothing. The appellant made payments of £27 a month into the bank account in the African country. After she was arrested, further payments were made into that account. The complainant she that she spoke to members of her family on the telephone but did not tell them about her suffering because she did not want them to worry. When she complained to the appellant she was given a warning letter, apparently written by a friend of the appellant in the African country. Being illiterate, she was unable to read the letter. When cross-examined, she acknowledged that she had not complained to anyone other than the appellant for the first three years. And she accepted that she had not been deprived of food.[12]The evidence of Mrs A, the appellant’s friend in the African country, was read. She stated that she often spoke to the appellant. She had understood that the complainant was well treated by the appellant. In August 2007, after the appellant had told Mrs A that the complainant’s behaviour and attitude were not to her liking, and asked Mrs A to send the complainant a letter. This Mrs A did. Later she sent another letter, again at the appellant’s request. This second letter suggested to the complainant that she should do what she was asked to do by the appellant and reminded her that she was not allowed to get close to outsiders.[13]Ms M gave evidence. She stated that Dr M had asked her to enquire of the complainant about her working conditions. She denied encouraging the complainant to tell lies about the appellant.[14]Dr M gave evidence. She had become aware of allegations the complainant had made about her working conditions. These allegations Dr M recorded in her notes.[15]The jury was told of the appellant’s interview by the police, in which she denied the allegations made against her.[16]The appellant gave evidence. She said that she had been born and brought up in Pakistan. She had moved to the African country when she married a doctor who had a hospital there. The complainant worked at the hospital. It was at the hospital that she and the complainant had met. The appellant’s husband had died in 1998. She now lived in the United Kingdom. After her housekeeper had left and she had heard that the complainant was looking for work, she suggested to the complainant that she should come and work for her. The appellant denied that the complainant had been badly treated or made to sleep on a mattress on the kitchen floor. There was no spare bedroom in the house, but the complainant had been invited to share a room with the appellant or with the appellant’s daughter. She had declined this offer because she wanted her privacy. She slept on a sofa-bed in the sitting room. The appellant said the complainant was required to work five to six hours a day, six days a week. When not working she would watch television. She often spoke to members of her family on the telephone. She was free to come and go, but only rarely did she choose to go out. The appellant denied knowing anything about a friend of hers in the African country having sent a warning letter to the complainant.[17]The appellant’s evidence was supported by several witnesses called on her behalf, who said that when they visited her while the complainant was with her, they had had no reason to think that the complainant was being ill-treated or was unhappy.

Legal framework

[18]Section 4(1) of the Asylum and Immigration (Treatment of Claimants etc) Act 2004 provides:
“A person commits an offence if he arranges or facilitates the arrival in or the entry into the United Kingdom of an individual (the “passenger”) and – (a) he intends to exploit the passenger in the United Kingdom or elsewhere, … …”
. Section 4(4) of the 2004 Act defines exploitation for the purposes of the section. It was only the first of the four forms of exploitation included in that definition that the prosecution relied on in the appellant’s case. The relevant provision is this:
“For the purposes of this section, a person is exploited if (and only if) – (a) he is the victim of behaviour that contravenes Article 4 of the Human Rights Convention (slavery and forced labour), …”
. We note in passing that a new offence of holding a person in slavery or servitude or requiring another person to perform forced or compulsory labour has been created by section 71 of the section 71 of the Coroners and Justice Act 2009.[19]Article 4 of the Human Rights Convention, “Prohibition of slavery and forced labour”, states:
“1. No one shall be held in slavery or servitude. 2. No one shall be required to perform forced or compulsory labour. For the purposes of this Article the term “forced or compulsory labour” shall not include: (a) Any work required to be done in the ordinary course of detention imposed according to the provisions of Article 5 of this Convention or during conditional release from such detention; (b) Any service of a military character or in the case of conscientious objectors in countries where they are recognised, service exacted instead of compulsory military service; (c) Any service exacted in case of an emergency or calamity threatening the life or well-being of the community; (d) Any work or service which forms part of normal civic obligations.”
The prohibition of slavery and servitude in Article 4(1) is absolute. So too is the prohibition on “forced or compulsory labour” in Article 4(2). It has been said that the prohibition of slavery, servitude and forced labour “enshrines one of the fundamental values of democratic society” (see MacDonald’s “Immigration Law and Practice”, 8th edition, paragraph 8.57). In Siliadin v France (Application 73316/01) [2005] 20 B.H.R.C. 654, ECtHR, the European Court of Human Rights held that Article 4 imposes positive obligations on the State to protect individuals, particularly children and other vulnerable people, including by means of penalisation and effective prosecution of acts contrary to Article 4. Slavery is the status of a person over whom powers attached to the right of ownership are exercised. Servitude is an obligation to provide one’s services that is imposed by the use of coercion. Forced or compulsory labour is work performed involuntarily and under the threat of a penalty.

For the purposes of this Article the term “forced or compulsory labour” shall not include:

[20]In Siliadin a minor, who had been trafficked to France and made to perform unpaid domestic work for a family for 15 hours a day, seven days a week, was held to have been in servitude, contrary to Article 4. Among the means which had been relied on to compel her to work was the manipulation of her vulnerability, her isolation, her inability to sustain herself independently of those employing her, and her fear of the police, because of her unlawful immigration status (Ibid).[21]In paragraph 82 of its judgment in Siliadin, the court stated that it considered that:
“Together with Arts 2 and 3, Art 4 of the Convention enshrines one of the basic values of the democratic society making up the Council of Europe”
. The court held that positive obligations arose from Article 4 (paragraphs 84 to 88 of the judgment) and considered that:
“… Limiting compliance with Art 4 of the Convention only to direct action by the state authorities would be inconsistent with the international instrument specifically concerned with this issue and would amount to rendering it ineffective. Accordingly it necessarily follows from this provision that governments have positive obligations, in the same way as under Art 3 for example, to adopt criminal law provisions which penalise the practices referred to in Art 4 and to apply them in practice.” (paragraph 89) The court went on to state (in paragraphs 111 and 112 of its judgment): “111. The Court also notes that, in addition to the Convention, numerous international conventions have as their objective the protection of human beings from slavery, servitude and forced or compulsory labour. As the Parliamentary Assembly of the Council of Europe has pointed out, although slavery was officially abolished more than 150 years ago, “domestic slavery” persists in Europe and concerns thousands of people, the majority of whom are women. 112. The Court reiterated that Art 4 enshrines one of the fundamental values of democratic societies. Unlike most of the substantive clauses of the Convention and of Protocols Numbers 1 and 4, Art 4 makes no provision for exceptions and no derogation from it is permissible under Art 15(2), even in the event of a public emergency threatening the life of the nation. In those circumstances, the Court considers that, in accordance with contemporary norms and trends in this field, the Member States’ positive obligations under Art 4 of the Convention must be seen as requiring the penalisation and effective prosecution of any act aimed at maintaining a person in such a situation.”
[22]The court considered the meaning of “forced or compulsory labour”, in paragraphs 115 to 117 of its judgment:
“115. In interpreting Art 4 of the European Convention, the Court has in a previous case already taken into account the ILO Conventions, which are binding on almost all of the Council of Europe’s Member States … and especially the 1930 Forced Labour Convention. 116. It considers that there is in fact a striking similarity, which is not accidental, between para 3 of Art 4 of the European Convention and para 2 of Art 2 of Convention number 29. Paragraph 1 of the last-mentioned Article provides that “For the purposes” of the latter Convention, the term “forced or compulsory labour” shall mean: “All work or service which is exacted from any person under the menace of any penalty and for which said person has not offered himself voluntarily”. 117. It remains to be ascertained whether there was “forced or compulsory” labour. This brings to mind the idea of physical or mental constraint. What there has to be is work “exacted (…) under the menace of any penalty” and also performed against the will of the person concerned, that is work for which he “has not offered himself voluntarily”
. The court turned to consider the concepts of “servitude” and “slavery” in paragraphs 121 to 124 of its judgment, in which it stated:
“121. … Sight should not be lost of the Convention’s special features or of the fact that it is a living instrument which must be interpreted in the light of present-day conditions, and that the increasingly high standard being required in the area of the protection of human rights and fundamental liberties correspondingly and inevitably requires greater firmness in assessing breaches of the fundamental values of democratic societies. 122. The Court notes at the outset that, according to the 1927 Slavery Convention, “Slavery is the status or condition of a person over whom any or all of the powers attaching the right of ownership are exercised”
. It notes that this definition corresponds to the “classic” meaning of slavery as it was practiced for centuries. Although the appellant was, in the instant case, clearly deprived of her personal autonomy, the evidence does not suggest that she was held in slavery in the proper sense, in other words that Mr and Mrs B exercised a genuine right of legal ownership over her, thus reducing her to the status of an “object”. 123. With regard to the concept of “servitude”, it “prohibits a particularly serious form of denial of freedom”. It includes, “In addition to the obligation to provide certain services to another (…) the obligation on the “serf” to live on the other’s property and the impossibility of changing his status”. In this connection, in examining a complaint under this paragraph of Art 4, the Commission paid particular attention to the Convention on the Abolition of Slavery. 124. It follows in the light of the case law on this issue that for Convention purposes “servitude” means an obligation to provide one’s services that is imposed by the use of coercion, and is to be linked with the concept of “slavery” described above.” “All work or service which is exacted from any person under the menace of any penalty and for which said person has not offered himself voluntarily”. “In addition to the obligation to provide certain services to another (…) the obligation on the “serf” to live on the other’s property and the impossibility of changing his status”.[23]In Rantsev v Cyprus and Russia [2010] ECHR 22, the European Court of Human Rights noted (in paragraph 272 of its judgment) that Article 4 makes no mention of trafficking, proscribing only “slavery”, “servitude” and “forced and compulsory labour”. The court referred to its decision in Siliadin, observing (in paragraph 279 of its judgment) that in that case it had concluded that the treatment suffered by the appellant amounted to servitude and forced and compulsory labour, although it fell short of slavery. In paragraph 276 of its judgment in Rantsev the court said this:
“In Siliadin, considering the scope of “slavery” under Article 4, the Court referred to the classic definition of slavery contained in the 1926 Slavery Convention, which required the exercise of a genuine right of ownership and reduction of the status of the individual concerned to an “object” [paragraph 122 of the judgment in Siliadin]. With regard to the concept of “servitude”, the Court has held that what is prohibited is a “particularly serious form of denial of freedom” (see Van Droogenbroeck v Belguim, Commission’s report of 9 July 1980 …). The concept of “servitude” entails an obligation, under coercion, to provide one’s services, and is linked with the concept of “slavery” (see Seguin v France … 7 March 2000; and Siliadin … [paragraph 124]. For “forced or compulsory labour” to arise, the Court has held that there must be some physical or mental constraint, as well as some overriding of the person’s will (Van der Mussele v Belguim, 23 November 1983, …; Siliadin, …, [paragraph 117].”
[24]We have found assistance on what may be described as the hierarchy of the denial of personal autonomy to which Article 4 and thus section 4 of the 2004 Act relate in Clayton and Tomlinson’s “The Law of Human Rights”, 2nd edition, volume I, paragraphs 9.17 to 9. 20 (on the concepts of “slavery” and “servitude”) and paragraph 9.25 (on the concept of “forced or compulsory labour”, where the following commentary appears:
“9.17. … “Slavery” involves being in the legal ownership of another – a concept which is sometimes referred to as “chattel slavery”
. It has been suggested that this concept has evolved to encompass various other forms of slavery which are also based on the “exercise of any or all of the powers attaching to the right of ownership.” In practice, issues concerning slavery have not arisen under the Convention because legally sanctioned slavery does not exist in any of the states which are parties to it. 9.18. “Servitude” also embraces the totality of the status or condition of a person. However, it is distinguishable from slavery in that servitude does not involve ownership, but concerns less extensive forms of restraint. For Convention purposes “servitude” means an obligation to provide one’s services that is imposed by the use of coercion. 9.19. Servitude can be differentiated from forced labour. In the Van Droogenbroeck case, the Commission stated that: In addition to the obligation to provide another with certain services the concept of servitude includes the obligation on the part of the “serf” to live on another’s property and the impossibility of changing his condition. … 9.20. In the light of increasing international and European recognition of contemporary forms of slavery, some argue that Article 4 of the Convention also encompasses trafficking in human beings. As defined in the UN Protocol and the Council Framework Decision, trafficking has three constituent parts: • the recruitment, transportation, harbouring or receipt of persons, • by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, • for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs. Once these elements exist, the consent of the victim is irrelevant. …. … 9.25. … Forced labour connotes direct compulsion whereas compulsory labour impliedly includes indirect forms of compulsion as well. … In most cases the distinction between the two is unnecessary.” In descending order of gravity, therefore, “slavery” stands at the top of the hierarchy, “servitude” in the middle, and “forced or compulsory labour” at the bottom. In addition to the obligation to provide another with certain services the concept of servitude includes the obligation on the part of the “serf” to live on another’s property and the impossibility of changing his condition. • the recruitment, transportation, harbouring or receipt of persons, • by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, • for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs.[25]Before beginning his summing-up, the judge told counsel that he proposed to address the jury on the elements of the offence on the basis of written directions. The judge discussed his proposed directions with counsel, inviting their comments. It was submitted on behalf of the appellant that the direction the judge proposed to give on the concept of exploitation did not sufficiently take account of the concepts of “slavery” and “servitude” in Article 4. It was submitted that the judge had simply emphasised the question of whether the appellant had adequately paid the complainant as her employee. It was submitted, in effect, that the concepts of “slavery” and “servitude” are concerned with more than mere economics, and that for the statutory concept of exploitation to be established something more must be shown than merely a failure to remunerate somebody sufficiently for the work they have done. It was submitted that in his initial draft direction the judge had set the bar too low. The judge said he was prepared to amend his draft. He said that he was prepared to acknowledge in his summing up that exploitation involved treating someone more like a chattel than a human being, and that this was capable of including making a person work for long hours and for prolonged periods for little or no pay. As we understand it, the judge’s directions on this aspect of the case went through three drafts, the last of which was provided to counsel shortly before the judge began his summing-up, and the summing up itself contained a slightly altered version of the third draft.

The judge’s written directions, which he read out to the jury took this form:

“… It is an offence to traffick any person into the United Kingdom with the intention of exploiting that person when he or she arrives here. In this connection “trafficking” means [arranging] or facilitating the arrival of any person into the United Kingdom with the intention of exploiting them. In this connection “exploiting” means treating somebody more like property than a person and in particular by making them work for long and unsocial hours for very prolonged periods of time for little or no pay. Has the prosecution made you sure that, … 1) In October 2006 the defendant arranged or facilitated the arrival of … MM, into the United Kingdom. 2) At the time of this event the defendant then intended to exploit her. 3) At some time during the period covered by the indictment the defendant did exploit MM by treating her more like property than a person and, in particular, by making her work for long and unsocial hours for very prolonged periods of time for little or no pay? If the answer to any of the above questions is No, the defendant is not guilty. If the answers to all three of these questions are Yes, the defendant is guilty. …”
The judge returned to these questions a little later in his summing up. He observed that it was not in dispute that the answer to the first question he had posed must be “Yes” and that it was the second and third questions on which the jury would have to concentrate. The answers to those questions were “hotly disputed” by the appellant. The jury were then given this direction:
“You must decide: was this, as the Crown has submitted to you, from first to last – and I do mean from first to last – exploitation with [MM] being paid a mere pittance for working long hours over a period not of days or weeks, but years, or, as the defence submit, was this a woman who was looked after and cared for well throughout her employment with [SK] in the United Kingdom and paid for the work which she did?”
The judge noted, however, that the matter was not quite as simple as that. He observed that exploitation might happen in several different ways, including, for example, the trafficking of women and children into the United Kingdom for the purposes of prostitution. But, he stated, “any form of serious exploitation may be criminal”. Then he said:
“… [If] the prosecution has made you sure that [MM] was brought into this country on a contract, an agreement, that was to run for four years, with the intention not of employing her on the basis of a six hours working day or a six days working week, as the defendant claims, but of working her hard, often day and night, for a period of years for virtually no reward then you may think, although that of course must be a matter for you, that that would certainly be capable of amounting to the offence charged, and if you found that proved then it would be open to you to reach that decision.”
When he went on to refer to “slavery” and “domestic servitude”, expressions the jury had heard in the course of the trial,

the judge said this:

“… These phrases are not necessarily inappropriate, they may indeed be perfectly appropriate and they are phrases that are still in common usage today, but of course we are not used to hearing them in this country, and they are emotive. They perhaps conjure up in your minds, as they do in mine, pictures of slaves building the pyramids of Egypt, or the slaves in the galleys of ancient Rome or in the cotton plantations of the American deep south. When we talk of slavery or domestic servitude today we are, of course, a very long way away from that kind of treatment, at least hopefully we are in this country, but the test set out in my directions to you is considered by the law to be a test which is capable of being a modern day instance of serious exploitation. So serious that it may be regarded as criminal.”
The judge stressed that the jury must decide the case not by the standards that they might think would apply in any other country, such as the country in Africa from which the appellant and the complainant had come. He continued:
“[The] standards that you apply, indeed the standards that you as a jury by your decision help to set, are the standards expected of employers towards their employees in this country wherever they may come from.”

Has the prosecution made you sure that, …

[27]Emphasising that because this was a criminal case,

the judge said the test to be applied by the jury was this:

“… If you think that [MM] was indeed treated well as a member of the family then, of course, [SK] should be found not guilty. Or even if you think that all that happened in this case was that [SK] treated her rather poorly, making her work rather longer hours than she was paying her for, that also will not do and she should be found not guilty.”
This was a case, said the judge, in which the prosecution was saying not merely that the complainant had been treated badly from time to time, but that, being illiterate, without money at her disposal and in a foreign country, with nowhere else to go and no one to turn to, except the appellant, the claimant found herself in a relationship with the appellant which was “one of facility [sic] and subservience”. What she had had to endure amounted to “really serious prolonged exploitation of a degree that should never be allowed to happen here”. The judge returned to his three questions, and focused on the second of them, which he described as “very important”, so that if, in the jury’s judgment, the prosecution had proved “that at the very time that [SK] arranged for [MM] to come into this country she then intended to exploit her employment with her … this case is made out”. The judge went on to say this:
“It must be apparent from the questions that I have posed for you that the one aspect of [the complainant’s] employment that must take centre stage in your thinking is that set out in the questionnaire; that is the work that she did that she was required to do, and the payment that she received for it. You have heard about many other things connected to her wellbeing and these are relevant when you come to consider the case as a whole, but when all is said and done, the questions that I have posed for you are the questions at the very heart of this case. To use another expression: they really must be the beginning and the end of your considerations.”
[28]The judge directed the jury on the concept of the minimum wage. He told the jury that the fact that the complainant did not receive the minimum wage while living with the appellant, and the disparity between her earnings and the minimum wage were matters that they were entitled to know about and take into account. He went on to say to the jury, however, that the concept of the minimum wage must not on its own govern their decision and was not to be used as the acid test by which they were to judge whether the complainant had been exploited or not. The judge went on to say this:
“In the first place, if [MM] was or may have been treated as a member of the family, as [SK] told you so many times that she was, then the minimum wage would not even apply in this case. Indeed, as I have said, if you believe that it is true or may be true that [MM] was regarded and was truly treated as a member of the family I am sure that you would acquit her of this charge, but in the second place, even if you are sure that she was not treated as a member of the family and even if she … would have been entitled to receive these minimum payments, the fact that she did not receive them cannot of itself amount to exploitation of the serious degree required by this criminal offence. It would be a factor, but only a factor, that you would be able to take into account, and you would be able to take it into account in this way: by asking yourselves not whether [MM] was denied a wage which the law of this country expects, but whether her earnings fell so far below, so outrageously far below, the earnings which the country expects workers to be paid, that the only explanation that can be given for that, in your view, is that [MM] was indeed being exploited, and moreover that this exploitation was [so] consistent from the very day that she started to work in this country, that it really must have been [SK’s] intention when she first brought [MM] into this country to exploit her.”
The judge said to the jury that if they accepted what the complainant had told them about her earnings and the amount of work she did, this would be capable of amounting to exploitation, but that it was not for him, the judge, to decide that it did amount to exploitation that, said the judge, was for the jury to decide.

The jury’s questions

[29]After the jury had retired they raised two questions for the judge to answer. The first question was this:
“The judge mentioned the following point in his summing-up: Do her earnings fall so outrageously far below the minimum wage that the only explanation is exploitation, so that must be [SK’s] intention to exploit her? That is, can this statement be used in isolation to prove intent? Can pay by itself, without taking other factors into consideration, then prove an intent to exploit?”
Having discussed his proposed answer to that question with counsel, and having first reminded the jury of the part of his written direction in which he had said that exploiting meant “treating somebody more like property than a person and in particular by making them work for long and unsocial hours for very long periods of time for little or no pay”,

the judge gave this response to the question:

“… [The] simple answer to that question is No, it cannot by itself prove an intent to exploit, but it may be a very important element for you to consider when you come to decide whether there was an intent to exploit. The answer that I give you is as follows, and this is the best help that I can give you: remember there must be an intention to exploit at the time that [SK] brought [MM] into the country, and so the answer to your question is: providing you are sure in the first place that [SK] did not intend to treat [MM] as a member of the family and did not do so and she treated her more like an object, or intended to treat her more like an object who is just there for the benefit of herself and her family, and if you are also sure that her pay was so very low, being so far beneath the minimum wage as in your view to be exploitative then, of course, those factors alone would entitle you to come to the conclusion that she intended to exploit. Does that answer your first question? I hope so. Pay is obviously a very important element in all of this, but it is not the only important element, as I have just explained to you.”
The jury’s second question was this:
“Can we conclude that the omission of items on the contract; that is hours and holidays, is evidence to prove that [SK} intended to exploit [MM]?”
Again in the light of his discussion with counsel,

the judge answered that question as follows:

“This is the way I propose to answer the second question, and I am sorry that it will take me just a few moments to do so. So far as the contract is concerned, there is no evidence that [SK] actually drafted the terms of the contract herself, although you are entitled to conclude that she was aware of its terms. The omission of items on the contract, such as hours and holidays, cannot of itself prove that [SK] intended to exploit [MM]. In other words, you cannot just say: well, there is no reference to hours and holidays in the contract, therefore she intended to exploit [MM]. It is, however, a factor that you are fully entitled to take into account along with all of the other evidence in the case. You must not conclude that just because these matters are not mentioned in the contract, that is evidence which of itself and without more can prove that [SK] intended to exploit [MM], but it would be a factor that you are entitled to take into account by way of background if you are sure that by her actions after [MM] arrived in the United Kingdom it is clear that [SK] always intended to pay her derisory wage and intended that she would work not just for 5 or 6 hours a day, as she has told you, but long hours, according to the needs of her family whenever those needs might arise.”
The judge repeated that answer, adding as he did so that the omission of hours and holidays from the contract could not be regarded by the jury as “game, set and match”.

The jury’s verdict

[30]The jury reached a unanimous verdict of guilty.

Submissions for the appellant

[31]In presenting the appeal, Ms Smaller submits, first, that in summing up the judge ought to have referred explicitly to the principal terms of Article 4 of the Human Rights Convention, namely the concepts of “slavery”, “servitude” and “enforced labour”. Without direction on those concepts, says Ms Smaller, the judge’s directions on “exploitation” were deficient. Ms Smaller submits that the judge failed to communicate effectively to the jury what kind of exploitation it is that section 4 of the 2004 Act makes a criminal offence.[32]Secondly, Ms Smaller submits that the judge put too much emphasis on the complainant’s remuneration and the number of hours she worked. Exploitation in the context of section 4 must involve more than being paid not enough money and working too many hours. Exploitation has ingredients which take it beyond the scope of employment law and into the sphere of criminality. The judge’s emphasis on the number of hours worked by the complainant and the pay she received accorded those factors a primacy not reflected in the wording of Article 4 or in the Strasbourg case law. In Siliadin the European Court of Human Rights considered the long hours the appellant had worked for little or no reward. In the present case the complainant had described having worked long hours, especially when the appellant’s son, an adult with a disability, was ill, which required her to work during the night. In Siliadin the court had remarked that those who care for others often have to work long hours in such circumstances. But, in concluding that the appellant had been exploited, the court had concentrated less on her working conditions than on her inability to change those conditions. It emphasised a number of factors going beyond hours and pay. These were the money that had been owed to the appellant, her status as an immigrant, her age, the fact that she had not chosen to work for the respondents, the denial of her freedom of movement, and the denial of her education. Ms Smaller concedes that the judge had referred to the fact that exploitation involved more than long hours and insufficient pay. In his written directions he had remarked that exploiting somebody meant treating him or her “more like property than an person”, and in responding to the jury’s first question he had told them that they had to be sure in the first place that the appellant “did not intend to treat [MM] as a member of the family and did not do so and … treated her more like an object, or intended to treat her more like an object who is just there for the benefit of herself and her family, …”. But Ms Smaller says the judge did not elaborate on how someone might be treated “more like property than a person”, or what factors might indicate that a person was being treated in that way. What the judge had said in answer to the jury’s question was not enough to introduce the right balance into the summing up. Using the expression “more like an object” was misleading. In Siliadin the court had imposed a stricter test based on whether any right of legal ownership had in fact been exercised.[33]Thirdly, Ms Smaller submits, the judge had wrongly equated the question of whether [MM] was “treated as a member of the family” with the question of whether the appellant had brought her into the United Kingdom with the intention of exploiting her.[34]Ms Smaller’s fourth submission is that the judge’s response to the jury’s second question was wrong in law because the judge had used the word “exploitative” in a lay sense rather than in the sense required by Article 4.[35]Fifthly, Ms Smaller submits that the concerns she had expressed about shortcomings in the summing up were reinforced by the fact that in cross-examination of the complainant, she had made a good deal of progress in counteracting the allegations of exploitation on which the Crown’s case depended. In particular, she had made progress on the issues of the complainant’s freedom of movement, her communications with her family, including the evidence she gave about her telephone calls being recorded and monitored, and the amount and type of food she was given by the appellant. The prosecution’s case on the complainant’s remuneration was also weakened, says Ms Smaller. It had not been disputed on behalf of the appellant that the complainant’s pay was substantially below the minimum wage and that the appellant’s payments to her had become more and more sporadic after the first year of her employment. But there had been some evidence to support the appellant’s suggestion that the complainant’s wages had been kept in an account in the African country for her, which was controlled by the hospital, and that this had been done at the complainant’s request. Moreover the appellant was able to show that all of the money went to meet the complainant’s daughter’s school fees, which is what had been agreed. The complainant had conceded that she intended to use the money which went into the bank in the African country to buy land, and that the sum she had been paid would be sufficient for that purpose. Thus, submits Ms Smaller, by the time the trial was concluded, much of the strength of the prosecution’s case had been taken away. This, says Ms Smaller, lends force to her submission that the flaws in the judge’s summing up were sufficient to render the appellant’s conviction unsafe.

Submissions for the Crown

[36]For the Crown, Ms Haughey submits that the judge’s summing-up was accurate and fair. The fact that this case involves novel law in this jurisdiction does not mean that the definition of exploitation adopted by the judge was improper or too dilute. The judge did what the European Court of Human Rights had done in the case of Siliadin, which was to apply the concept of exploitation in a contemporary social context. The judge had helped the jury understand the law whilst allowing them to apply their common sense to the evidence they had heard. The jury had clearly considered with care all of the evidence given in the trial, drew their own conclusions about what the complainant and the appellant respectively had said, and, as juries must, applied their common sense to the evidence. This much may be seen in the questions the jury asked. The deliberately low pay which the appellant had set in place from the outset and the means by which that payment was made contributed to her control over the complainant and to the complainant’s isolation, ensuring that she had no real alternative but to stay with her. The complainant had no freedom of movement. She was not able to change her circumstances. Her remuneration was a factor which the jury had to consider. It was relevant too to the appellant’s defence, which was based largely on the contention that the complainant was treated as a member of the appellant’s family, whose role was that of an au pair. The judge made it clear that this was not the only issue for the jury to consider when deciding whether they were sure that the appellant was guilty of the offence with which she was charged. Ms Haughey refers to several passages in the judge’s summary of the evidence in which he had referred to what the jury had heard about the way in which MM had been treated by the appellant and in the appellant’s home, to her living conditions, and to her working conditions. Ms Haughey submits that the appellant’s conviction was safe, even if the judge’s summing-up was deficient. The jury had had the benefit of seeing both the appellant and the complainant give evidence and being cross-examined. They had had ample evidence on which they could properly convict.

Discussion and conclusion

[37]In our judgment, there is force in Ms Smaller’s submissions.[38]It was for the Crown to prove in this case that the appellant had arranged or facilitated the complainant’s entry into the United Kingdom intending when she did so to exploit her. The judge’s third question in the written directions he provided to the jury, which invited them to consider whether at some stage during the period covered by the indictment the appellant had in fact exploited the complainant, was not a question which the jury had to answer in the affirmative if it was to convict the appellant. Inevitable though it may have been that the jury would look for evidence of actual exploitation, it is to be noted that the offence provided for in section 4 of the 2004 Act is an offence of intention. We acknowledge that by effectively adding a further dimension to the ingredients of the offence the judge assisted the appellant, though not, we consider, in a way which made any real difference in her favour on the facts of the present case. It was not in dispute that the appellant had arranged for the complainant’s entry into the United Kingdom. There was evidence before the jury that the appellant had arranged for one of her employees at the hospital in the African country to recruit the complainant and to make arrangements for her travel to the United Kingdom, including procuring for her a passport and visa and her airline ticket, and opening a bank account. The Crown contended that the intention to exploit was demonstrated by the low level of pay the complainant was to receive, the hours she was to work and the degree of control exercised by the appellant over her once she had come to the appellant’s home, and by the appellant’s continuing treatment of her after she had arrived: depriving her of contact with her own family, isolating her from the local community, depriving her of association with those who shared her culture and preventing her from forming any kind of emotional attachment to others, and her treatment within the family itself. As to all of this there was evidence before the jury. Potentially therefore this was a case which, on its facts, came within the ambit both of the prohibition on “slavery or servitude” in Article 4(1) of the Human Rights Convention and of the prohibition on “forced or compulsory labour” in Article 4(2). The prosecution was, in our judgment, perfectly entitled to bring the case to trial. But this is not to say that the judge’s summing-up was correct, or that the appellant’s conviction was safe.[39]We have concluded that the judge’s summing-up did not reflect with sufficient clarity the core elements of Article 4 of the Human Rights Convention – namely “slavery”, “servitude” and “forced or compulsory labour” – which are integral to the offence provided for in section 4 of the 2004 Act. Those core elements are crisply defined in the judgment of the European Court of Human Rights in Siliadin. As we have noted (in paragraph 24 above), they form a hierarchy of denial of personal autonomy. The essence of the concept of “slavery” is treating someone as belonging to oneself, by exercising some power over that person as one might over an animal or an object (see paragraph 122 of the court’s judgment in Siliadin). The essence of the concept of “servitude” is one person’s obligation to provide services to another, an obligation imposed by the use of coercion (paragraphs 123 and 124 of the court’s judgment in Siliadin). The essence of the concept of “forced or compulsory labour” is work exacted under the menace of a penalty and performed against the will of the person concerned, a concept which brought to mind the idea of either physical or mental constraint, the essential character of the work or service involved being work or service for which the person had not offered himself voluntarily (see paragraph 117 of the court’s judgment in Siliadin)).[40]These concepts are not necessarily mutually exclusive. .A person can at the same time be subjected to “slavery or servitude” and to “forced or compulsory labour”. The common denominator is that the victim is subject to a degree of enforced control.[41]Nor should the concepts be seen as archaic. To dismiss “slavery” as being merely reminiscent of an era remote from contemporary life in the United Kingdom is wrong. In the modern world exploitation can and does take place, in many different forms. Perhaps the most obvious is that in which one human being is treated by another as an object under his or her control for a sexual purpose. But “slavery or servitude” and “forced labour” are not confined to exploitation of that sort. One person may exploit another in many different ways. Sexual exploitation is one, domestic servitude, such as was found in Siliadin, another.[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.[43]As Ms Haughey for the Crown submits, the concepts of “servitude” and “forced or compulsory labour”, if not also the concept of “slavery”, were arguably compatible with the circumstances of the present case. It was for the prosecution to make plain to the court which of these three concepts was relied upon. And, assuming that that was done, it was for the judge in his summing-up to spell out to the jury what the relevant concept or concepts involved, and to do so in simple and clear language corresponding to that of the European Court of Human Rights in those passages of its judgment in Siliadin to which we have referred.[44]We do not think that, when read fairly as a whole, the judge’s summing-up provided the jury with a proper definition of exploitation for the purposes of section 4 of the 2004 Act. In describing the ingredients of the offence the judge did not identify and explain the relevant core elements of Article 4. In our judgment, he focused too much on the economics of the relationship between the appellant and the complainant, thus diluting the test the jury had to apply to one appropriate to an employment law context but not strong enough to establish guilt of the criminal offence with which the appellant was charged. The economic context was not irrelevant. Germane as it was to the issue of exploitation, however, the alleged failure of the appellant to remunerate the complainant at, or anywhere near, the level of the national minimum wage was not determinative of her guilt. What the jury had to concentrate on in this case was not the fact that the complainant was paid “a mere pittance” or an “exploitative” wage, but whether, when the appellant arranged for the complainant to come to the United Kingdom, she had intended to exploit her in such a way as would violate her rights under Article 4. This was not a legal issue, but a question of fact. It did not entail the making of a value judgment about “the standards expected of employers towards their employees in this country wherever they may come from”.[45]We do not believe that the answers the judge gave to the questions asked of him by the jury put right the shortcomings we see in his summing-up. In his answer to the jury’s first question the judge encouraged the jury to consider whether the appellant had intended to treat the complainant not “as a member of the family” but “more like an object who is just there for the benefit of herself and her family”. This, in our view, was not enough to enable the jury to grasp what a contravention of Article 4 would involve. In his answer to the second question the judge remarked, rightly, that the absence from the contract of any reference to hours and holidays was not enough to demonstrate an intention to exploit the complainant. Again, however, he came back to the issue of the complainant’s wage and the number of hours she was expected to work.[46]As Ms Smaller pithily put it in an exchanges with the judge when he was discussing with counsel the answers he proposed to give to the jury’s questions, there was a risk here “that the maths of this case [would] overtake the concept of slavery and servitude and freedom and ownership and denial of freedom”. In our judgment, this risk became a reality. The jury were left with directions which did not distil the essential questions they had to answer in deciding whether the appellant was guilty of an offence under section 4.[47]We would observe that the judge summed up very fully and fairly on the facts. He had clearly given careful thought to how he should direct the jury as to the law. He had discussed his proposed legal directions with counsel. And he was clearly anxious to express those directions in everyday language, which was an admirable aim in itself and one we would not wish to discourage. He was faced with a novel type of prosecution, with only the Strasbourg jurisprudence to guide him. We have had the advantage of fuller argument on the law. In the conclusion we have reached on this appeal we mean no disrespect to an immensely experienced judge. But, in our judgment, for the reasons we have given, the summing-up in this case was flawed.[48]Does it follow that the appellant’s conviction is unsafe? In our judgment it does. Having found error in the judge’s directions on the constituents of the offence, we find it impossible to say that the appellant was safely convicted. We are strengthened in this view by the fact that the jury themselves sought clarification of those directions in the questions they put to the judge.[49]This appeal is therefore allowed.

Cited in 10 later judgments

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