Moon Swee How & Anor v R [2026] EWCA Crim 476

[2026] EWCA Crim 476Case No 202403917 B3202403822 B3
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT PORTSMOUTH
HHJ Ashworth
44PC0608119
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 17/04/2026
Before
THE VICE-PRESIDENT OF THE COURT OF APPEAL CRIMINAL DIVISION(LORD JUSTICE EDIS)MR JUSTICE TURNERMR JUSTICE PICKEN
Between
MOON SWEE HOWAppellantsXIAOXIA YANGAppellantTHE KINGRespondent
Robert Bryan and Simon Walters (assigned by the Registrar) for 1 st AppellantAnthony Waller (assigned by the Registrar) for 2 nd AppellantKevin Dent KC and Laura Deuxberry (instructed by CPS Special Crime Division London) for ProsecutionHearing Hearing dates : 4 February 2026
Approved JudgmentThis judgment was handed down remotely at 10.30am on 17 April 2026 by circulation to the parties or their representatives by e-mail and by release to the National Archives..............................WARNING: reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice.The provisions of the Sexual Offences (Amendment) Act 1992 apply to this offence. Under those provisions, where an allegation has been made that a trafficking offence under s2 Modern Slavery Act 2015 or a sexual offence has been committed against a person, no matter relating to that person shall, during that person’s lifetime, be included in any publication if it is likely to lead members of the public to identify that person as the victim of that offence. This prohibition applies unless waived or lifted in accordance with s3 of the Act.

The Vice-President:

[1]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.[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.[3]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

[4]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. Count 1 STATEMENT OF OFFENCE CONSPIRACY TO ARRANGE THE TRAVEL OF ANOTHER PERSON WITH A VIEW TO EXPLOITATION, contrary to section 1 of the Criminal Law Act 1977and section 2(1) of the Modern Slavery Act 2015. PARTICULARS OF OFFENCE MOON SWEE HOW, XIAO XIA YANG and YANG LIU, between the 1st day of May 2018 and the 1st day of April 2019, conspired together and with Sau Mae Chan and others, to arrange the travel of [two named alleged victims] and others, with a view to their being exploited at or from 9A Hilsea Market. Count 1 STATEMENT OF OFFENCE PARTICULARS OF OFFENCE

The point on the appeal

[5]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”) https://assets.publishing.service.gov.uk/media/5a75ae20e5274a545822d636/8414.pdf . 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.[6]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’s ruling[7]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.[8]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.[9]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.

The facts

[10]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 legal directions on count 1

[11]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.[12]When dealing with the elements of the substantive offence in count 1, the judge said:- COUNT 1 10. On Count 1, the Defendants are charged with human trafficking. 11. For the purposes of this case, an offender is guilty of this offence where: i) They arrange the travel of a victim, ii) with the view to that victim being exploited. COUNT 112. It is irrelevant whether the victim consents to the travel. “Arrange”13. An offender may arrange the travel of another in particular (but not exclusively) where they: a) recruit the victim, b) transport or transfer them, c) harbour or receive them, or d) transfer or exchange control over the victim. “Travel”14. “Travel” means: a) arriving in, or entering any country, b) departing from any country, c) travelling within any country. “With a view to”15. An offender arranges the travel of an offender with a view to the victim being exploited only if: a) The offender intends to exploit the victim during or after the travel, or b) The offender knows or ought to know that another person is likely to exploit the victim during or after the travel. “Being exploited”16. For the purposes of this case, a person is exploited if they are a prostitute that is being controlled by another and that other or some third party is profiting from that control. (i.e., a victim of Count 2).

COUNT 1

[13]When turning to the elements of the offence of conspiracy the judge added:- “34. Before you could convict any Defendant on Count 1 you must be sure that: a) That defendant is guilty of Count 2, and b) there was an agreement between two or more conspirators to recruit or transport females to Portsmouth in order to control them as prostitutes; c) the Defendant you are considering joined into that agreement, intending that the ladies would be controlled for profit in that way.”

The relevant provisions of the MSA 2015

[14]The issue principally concerns the meaning of the offence-creating provision which is section 2. This provides:- 2 Human trafficking(1) A person commits an offence if the person arranges or facilitates the travel of another person (“V”) with a view to V being exploited.(2) It is irrelevant whether V consents to the travel (whether V is an adult or a child).(3) A person may in particular arrange or facilitate V's travel by recruiting V, transporting or transferring V, harbouring or receiving V, or transferring or exchanging control over V.(4) A person arranges or facilitates V's travel with a view to V being exploited only if— (a) the person intends to exploit V (in any part of the world) during or after the travel, or (b) the person knows or ought to know that another person is likely to exploit V (in any part of the world) during or after the travel.(5) “Travel” means— (a) arriving in, or entering, any country, (b) departing from any country, (c) travelling within any country.(6) A person who is a UK national commits an offence under this section regardless of— (a) where the arranging or facilitating takes place, or (b) where the travel takes place.(7) A person who is not a UK national commits an offence under this section if— (a) any part of the arranging or facilitating takes place in the United Kingdom, or (b) the travel consists of arrival in or entry into, departure from, or travel within, the United Kingdom. (a) the person intends to exploit V (in any part of the world) during or after the travel, or (b) the person knows or ought to know that another person is likely to exploit V (in any part of the world) during or after the travel. (a) any part of the arranging or facilitating takes place in the United Kingdom, or (b) the travel consists of arrival in or entry into, departure from, or travel within, the United Kingdom.[15]Three other sections of the Act were referred to in argument as casting light on the issue. These were sections 1, 3 and 45.[16]Section 1 creates a different set of offences. It provides:- 1 Slavery, servitude and forced or compulsory labour(1) A person commits an offence if— (a) the person holds another person in slavery or servitude and the circumstances are such that the person knows or ought to know that the other person is held in slavery or servitude, or (b) the person requires another person to perform forced or compulsory labour and the circumstances are such that the person knows or ought to know that the other person is being required to perform forced or compulsory labour.(2) In subsection (1) the references to holding a person in slavery or servitude or requiring a person to perform forced or compulsory labour are to be construed in accordance with Article 4 of the Human Rights Convention.(3) In determining whether a person is being held in slavery or servitude or required to perform forced or compulsory labour, regard may be had to all the circumstances.(4) For example, regard may be had— (a) to any of the person's personal circumstances (such as the person being a child, the person's family relationships, and any mental or physical illness) which may make the person more vulnerable than other persons; (b) to any work or services provided by the person, including work or services provided in circumstances which constitute exploitation within section 3(3) to (6).(5) The consent of a person (whether an adult or a child) to any of the acts alleged to constitute holding the person in slavery or servitude, or requiring the person to perform forced or compulsory labour, does not preclude a determination that the person is being held in slavery or servitude, or required to perform forced or compulsory labour. (a) the person holds another person in slavery or servitude and the circumstances are such that the person knows or ought to know that the other person is held in slavery or servitude, or (b) the person requires another person to perform forced or compulsory labour and the circumstances are such that the person knows or ought to know that the other person is being required to perform forced or compulsory labour. (a) to any of the person's personal circumstances (such as the person being a child, the person's family relationships, and any mental or physical illness) which may make the person more vulnerable than other persons; (b) to any work or services provided by the person, including work or services provided in circumstances which constitute exploitation within section 3(3) to (6).[17]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:- 3 Meaning of exploitation(1) For the purposes of section 2 a person is exploited only if one or more of the following subsections apply in relation to the person. Slavery, servitude and forced or compulsory labour(2) The person is the victim of behaviour— (a) which involves the commission of an offence under section 1, or (b) which would involve the commission of an offence under that section if it took place in England and Wales. Sexual exploitation(3) Something is done to or in respect of the person— (a) which involves the commission of an offence under— (i) section 1(1)(a) of the Protection of Children Act 1978 (indecent photographs of children), or (ii) Part 1 of the Sexual Offences Act 2003 (sexual offences), as it has effect in England and Wales, or (b) which would involve the commission of such an offence if it were done in England and Wales. Removal of organs etc(4) The person is encouraged, required or expected to do anything— (a) which involves the commission, by him or her or another person, of an offence under section 32 or 33 of the Human Tissue Act 2004 (prohibition of commercial dealings in organs and restrictions on use of live donors) as it has effect in England and Wales, or (b) which would involve the commission of such an offence, by him or her or another person, if it were done in England and Wales. Securing services etc by force, threats or deception(5) The person is subjected to force, threats or deception designed to induce him or her— (a) to provide services of any kind, (b) to provide another person with benefits of any kind, or (c) to enable another person to acquire benefits of any kind. Securing services etc from children and vulnerable persons(6) Another person uses or attempts to use the person for a purpose within paragraph (a), (b) or (c) of subsection (5), having chosen him or her for that purpose on the grounds that— (a) he or she is a child, is mentally or physically ill or disabled, or has a family relationship with a particular person, and (b) an adult, or a person without the illness, disability, or family relationship, would be likely to refuse to be used for that purpose. Slavery, servitude and forced or compulsory labour (a) which involves the commission of an offence under section 1, or (b) which would involve the commission of an offence under that section if it took place in England and Wales. (i) section 1(1)(a) of the Protection of Children Act 1978 (indecent photographs of children), or (ii) Part 1 of the Sexual Offences Act 2003 (sexual offences), as it has effect in England and Wales, or (b) which would involve the commission of such an offence if it were done in England and Wales. (a) which involves the commission, by him or her or another person, of an offence under section 32 or 33 of the Human Tissue Act 2004 (prohibition of commercial dealings in organs and restrictions on use of live donors) as it has effect in England and Wales, or (b) which would involve the commission of such an offence, by him or her or another person, if it were done in England and Wales. Securing services etc from children and vulnerable persons (a) he or she is a child, is mentally or physically ill or disabled, or has a family relationship with a particular person, and (b) an adult, or a person without the illness, disability, or family relationship, would be likely to refuse to be used for that purpose.

Securing services etc from children and vulnerable persons

[18]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.[19]Section 45 is in these terms:- 45 Defence for slavery or trafficking victims who commit an offence(1) A person is not guilty of an offence if— (a) the person is aged 18 or over when the person does the act which constitutes the offence, (b) the person does that act because the person is compelled to do it, (c) the compulsion is attributable to slavery or to relevant exploitation, and (d) a reasonable person in the same situation as the person and having the person's relevant characteristics would have no realistic alternative to doing that act.(2) A person may be compelled to do something by another person or by the person's circumstances.(3) Compulsion is attributable to slavery or to relevant exploitation only if— (a) it is, or is part of, conduct which constitutes an offence under section 1 or conduct which constitutes relevant exploitation, or (b) it is a direct consequence of a person being, or having been, a victim of slavery or a victim of relevant exploitation.(4) A person is not guilty of an offence if— (a) the person is under the age of 18 when the person does the act which constitutes the offence, (b) the person does that act as a direct consequence of the person being, or having been, a victim of slavery or a victim of relevant exploitation, and (c) a reasonable person in the same situation as the person and having the person's relevant characteristics would do that act.(5) For the purposes of this section— “relevant characteristics” means age, sex and any physical or mental illness or disability; “relevant exploitation” is exploitation (within the meaning of section 3) that is attributable to the exploited person being, or having been, a victim of human trafficking.(6) In this section references to an act include an omission.(7) Subsections (1) and (4) do not apply to an offence listed in Schedule 4.(8) The Secretary of State may by regulations amend Schedule 4. (a) the person is aged 18 or over when the person does the act which constitutes the offence, (b) the person does that act because the person is compelled to do it, (c) the compulsion is attributable to slavery or to relevant exploitation, and (d) a reasonable person in the same situation as the person and having the person's relevant characteristics would have no realistic alternative to doing that act. (a) it is, or is part of, conduct which constitutes an offence under section 1 or conduct which constitutes relevant exploitation, or (b) it is a direct consequence of a person being, or having been, a victim of slavery or a victim of relevant exploitation. (a) the person is under the age of 18 when the person does the act which constitutes the offence, (b) the person does that act as a direct consequence of the person being, or having been, a victim of slavery or a victim of relevant exploitation, and (c) a reasonable person in the same situation as the person and having the person's relevant characteristics would do that act. “relevant characteristics” means age, sex and any physical or mental illness or disability; “relevant exploitation” is exploitation (within the meaning of section 3) that is attributable to the exploited person being, or having been, a victim of human trafficking.

ECAT Article 4

[20]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:- ARTICLE 4 Definitions For the purposes of this Convention: a "Trafficking in human beings" shall mean the recruitment, transportation, transfer, 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; b The consent of a victim of “trafficking in human beings” to the intended exploitation set forth in subparagraph (a) of this article shall be irrelevant where any of the means set forth in subparagraph (a) have been used; c The recruitment, transportation, transfer, harbouring or receipt of a child for the purpose of exploitation shall be considered "trafficking in human beings" even if this does not involve any of the means set forth in subparagraph (a) of this article; d "Child" shall mean any person under eighteen years of age; e “Victim” shall mean any natural person who is subject to trafficking in human beings as defined in this article. ARTICLE 4 Definitions

For the purposes of this Convention:

[21]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.

Explanatory Notes

[22]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:- [18] ……..The admissibility of explanatory notes for that purpose is well established: In R. (Westminster City Council) v National Asylum Support Service [2002] UKHL 38; [2002] 1 W.L.R. 2956 Lord Steyn said, at [5]:
‘‘In so far as the Explanatory Notes cast light on the objective setting or contextual scene of the statute, and the mischief at which it is aimed, such materials are therefore always admissible aids to construction. They may be admitted for what logical value they have. Used for this purpose Explanatory Notes will sometimes be more informative and valuable than reports of the Law Commission or advisory committees, Government green or white papers, and the like. After all, the connection of Explanatory Notes with the shape of the proposed legislation is closer than pre-parliamentary aids which in principle are already treated admissible: see Cross, Statutory Interpretation, 3rd ed (1995) pp 160–161. If used for this purpose the recent reservations in dicta in the House of Lords about the use of Hansard materials in aid of construction are not engaged: see R v Secretary of State for the Environment, Transport and the Regions Ex parte Spath Holme Ltd [2001]2AC349, 407; Robinson v Secretary of State for Northern Ireland [2002] UKHL 32, The Times, 26 July 2002, in particular per Lord Hoffmann, at para.40. On this basis the constitutional arguments which I put forward extra- judicially are also not engaged: ‘Pepper v Hart: A re-examination’ (2001) 21 Oxford Journal of Legal Studies 59.’’ ‘‘In so far as the Explanatory Notes cast light on the objective setting or contextual scene of the statute, and the mischief at which it is aimed, such materials are therefore always admissible aids to construction. They may be admitted for what logical value they have. Used for this purpose Explanatory Notes will sometimes be more informative and valuable than reports of the Law Commission or advisory committees, Government green or white papers, and the like. After all, the connection of Explanatory Notes with the shape of the proposed legislation is closer than pre-parliamentary aids which in principle are already treated admissible: see Cross, Statutory Interpretation, 3rd ed (1995) pp 160–161. If used for this purpose the recent reservations in dicta in the House of Lords about the use of Hansard materials in aid of construction are not engaged: see R v Secretary of State for the Environment, Transport and the Regions Ex parte Spath Holme Ltd [2001]2AC349, 407; Robinson v Secretary of State for Northern Ireland [2002] UKHL 32, The Times, 26 July 2002, in particular per Lord Hoffmann, at para.40. On this basis the constitutional arguments which I put forward extra- judicially are also not engaged: ‘Pepper v Hart: A re-examination’ (2001) 21 Oxford Journal of Legal Studies 59.’’
[23]The passages in the Explanatory Notes to the MSA 2015 to which we were referred were extracted from paragraphs 5 and 23. They were:- “[Paragraph 5] There are a number of international instruments on human trafficking. The main international instrument is the Protocol to the United Nations Convention against Transnational Organized Crime, named the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime (the “Palermo Protocol”). The definition of trafficking contained in that instrument was adopted in the Council of Europe Convention on Action against Trafficking in Human Beings (the “Convention on Action against Trafficking”). That international instrument was ratified by the United Kingdom on 17 December 2008. After this time, the European Commission tabled a proposal for a Directive on trafficking in human beings. A final text was agreed in March 2011 and was adopted on 5 April 2011: Directive 2011/36/EU of the European Parliament and of the Council on preventing and combating trafficking in human beings and protecting its victims and replacing Council Framework Decisions 2002/629/JHA (the “Directive on preventing and combating trafficking”). That Directive adopts and expands upon the obligations and definitions contained in the Palermo Protocol and the Convention on Action against Trafficking. The United Kingdom has opted into this Directive. In order to ensure full compliance with the obligations contained in that Directive in England and Wales, Parliament made changes to the Sexual Offences Act 2003 and the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 through sections 109 and 110 of the Protection of Freedoms Act 2012.” “[Paragraph 23, dealing with section 2 specifically] This section provides for a single offence of human trafficking covering sexual and non-sexual exploitation. It replaces the two existing offences in sections 59A of the Sexual Offences Act 2003 (which relates to human trafficking for the purposes of sexual exploitation), as inserted by section 109 of the Protection of Freedoms Act 2012 (which replaced the previous offences in sections 57 to 59 of the Sexual Offences Act 2003), and section 4 of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004 (which relates to human trafficking for the purposes of labour or other exploitation); both these existing offences are repealed by Schedule 5. Introducing one offence for all types of trafficking will make it administratively simpler for investigators and prosecutors to bring forward human trafficking prosecutions.”[24]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.

Other materials

[25]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.[26]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.

Discussion

[27]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.[28]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):- “It is irrelevant whether V consents to the travel (whether V is an adult or a child).”[29]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.[30]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.[31]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.[32]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, “….one assumes that in drafting one clause of a Bill the draftsman had in mind the language and substance of the other clauses, and attributes to Parliament a comprehension of the whole Act.”[33]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.[34]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.[35]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.[36]He continues:- “While of course there may be reasons why a “trafficker” and a “trafficked victim” might have different definitions the Applicant asserts that here, as before, it would be nonsensical. We are dealing with the same statute, the Modern Slavery Act 2015; using a different definition in different sections of the Act might be said to lead to mayhem. An offender might find themselves accused and convicted of trafficking someone (under section 2 of the Act) even though that person is not, and could not be, a trafficked victim for the purposes of, say, section 45 MSA 2015 or Article 4 of ECAT. Indeed that is the position the Applicant finds himself in”.[37]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:- “’relevant exploitation’ is exploitation (within the meaning of section 3) that is attributable to the exploited person being, or having been, a victim of human trafficking.”[38]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.[39]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]:- “Section 4 requires detailed analysis. In construing the legislation, it is necessary to adopt a purposive approach seeking to determine the intent of Parliament. This was the approach adopted by the Court of Appeal in [K] and GEGA [2018] EWCA Crim 667 where, at paragraph 45 the Lord Chief Justice emphasised in relation to section 45 of the Modern Slavery Act 2015 that the interpretation to be given to the legislation should be one that accorded with the intent of Parliament. In that case the Court determined an issue relating to the burden of proof by reference to the construction which most closely fitted with the intent of Parliament in affording protection to the vulnerable. Similarly, the statutory purpose of section 4 is clear; it too was designed to protect the vulnerable from trafficking with a view to exploitation and to comply with the state's duty derived from various international instruments.”[40]The court went on to say this:- “45. Section 4 (see above) refers to the alleged criminal as "A" and the alleged victim or courier as "B". The actus reus of the offence is arranging or facilitating travel of person B and the mens rea is doing so intentionally with a view to the exploitation of B. The offence is complete once A arranges or facilitates the travel with the necessary mental element. In considering the various elements we shall focus on the provisions relevant to this appeal. Actus reus and mens rea46. Actus reus : In the context of the varying types of criminal trafficking at which these provisions are aimed, the two words 'arranging' and 'facilitating' travel are necessarily broad and should be construed accordingly. 'Arranging' is a common word which in our view needs no further explanation to the jury. 'Arranging' would include such matters as transporting B, procuring a third person to transport B, or buying a ticket for B. 'Facilitating' is intended to be different from "arranging" and would include "making easier". It is not sensible to lay down precise definitions of these terms.47. In the course of argument, the Crown suggested that facilitating might mean 'making more likely to happen'. Conduct which makes travel more likely to occur may fall within, and be an example of, either "arranging" or "facilitating" but it will depend on the facts. There was also argument before the Court as to whether a simple instruction:
'go to [city]' or "go by train to [city] and then go to x address" was capable in principle of amounting to "arranging or facilitating" B's travel. The defendants argued that it was not; the Crown argued that it was. There is no issue of principle here. It is possible that in some circumstances a mere direction might suffice but the question is again one of fact. There is no fixed list of the conduct which can amount to either arranging or facilitating. 48. Mens rea ; As this court observed in SK [2011] EWCA Crim 1691at paragraph 38, this is 'an offence of intention'
. SK was a decision on the unamended version of section 4 but there is no material difference on this point. The critical termis the phrase "with a view to the exploitation of B". Thus, in addition to proving the defendant intentionally arranged or facilitated the travel, the prosecution must prove the defendant had a "view to exploitation" of B.”

Actus reus and mens rea

[41]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.[42]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.

Conclusion

[43]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.[44]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.

Cited in 1 later judgment