Extracts from a genuine statute, the Modern Slavery Act 2015, Article 4 of the European Convention of Human Rights and a fictitious case.
Set out below are extracts from a genuine statute, the Modern Slavery Act 2015, Article 4 of the European Convention of Human Rights and a fictitious case. Read through the statutory extract, Article and case report and answer the questions that follow.
Modern Slavery Act 2015
(2015 c. 30)
An Act to make provision about slavery, servitude and forced or compulsory labour and about human trafficking, including provision for the protection of victims; to make provision for an Independent Anti-slavery Commissioner; and for connected purposes. [26th March 2015]
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.
5 Penalties
(1) A person guilty of an offence under section 1 [or 2] is liable—
(a) on conviction on indictment, to imprisonment for life;
(b) on summary conviction, to imprisonment for a term not exceeding 12 months or a fine or both.
Article 4 of the European Rights Convention – Prohibition of slavery and forced labour
1. No one shall be held in slavery or servitude.
2. No one shall be required to perform forced or compulsory labour.
3. [Not reproduced and not required for the purposes of this assessment]
Extracts from Case Report
High Court
(Queen’s Bench Division)
R v Marsh
APPEAL
Mr Marsh is the owner of a sausage making factory in Manchester and, in early 2016, he was found guilty of an offence under section 1 Modern Slavery Act 2015 and, on summary conviction, was imprisoned for six months and fined £5000. He had met a homeless man, Joseph Jones, and had offered him food, lodgings and payment in return for labour in his factory. Mr Jones worked in the factory and stayed there overnight. He worked for 12 hours a day, often for seven days a week, and was paid £5 per day. Eventually he went to the police who arrested Mr Marsh.
Mr Marsh appeals against his sentence on the basis that, as Mr Jones was not physically restrained in the factory, the judge was wrong to find him guilty under section1.
GODSTONE LJ
This is an appeal by way of case stated from a stipendiary magistrate in Manchester, which raises a point of some general importance under the legislation which makes it a crime under the Modern Slavery Act to hold another person in slavery or servitude in such circumstances that the person knows or ought to know that the other person is held in slavery or servitude.
The short point is whether the fact that a person is or is not held in slavery or servitude depends on whether that person is physically restrained within a place or, essentially, free to come and go as he pleases even though that might not be an option in the circumstances. The defendant argues that Joseph Jones was in such a position. He was not locked in Mr Marsh’s factory but the simple fact is that he was not paid a sufficient amount of money to be able to find lodgings, nor did he have the time to seek help from a hostel or the like as he was required to work such long hours and often seven days a week.
It may appear that the Act is somewhat ambiguous in this regard although I am grateful to the parliamentary draftsmen for the inclusion of section 1(3) enabling me to take into account all the circumstances of the case. The Interpretation Section to this part of the Act does not provide a definition of “slavery” or “servitude” and so I turn to my copy of the Collins English Dictionary which informs me that “slavery” includes “the subjection of a person to another person especially in being forced into work” and “work done in harsh conditions for low pay”.
I am indebted to the House of Lords’ decision in Pepper v Hart [1993] AC 593 which enables me to refer to Parliamentary material recorded in Hansard where I see that, in the Public Bill Committee on the Bill for this Act in the House of Commons, the Minister said as follows: “We consider that the offences in the Bill as drafted cover the offences and the examples that were put to us. As I make my way through my contribution, I will deal with the specifics of why we consider that this approach will lead to the result we are all looking for, which is to catch and convict. I will continue to use the words ‘catch and convict’, because if we do not catch and convict the criminals, we cannot protect the victims”.
It seems to me that there were existing offences to tackle some aspects of slavery and servitude but this Act was needed to take a robust and co-ordinated approach.
The Government’s Explanatory Notes to the Bill for this Act say that the Parliamentary Under Secretary of State Lord Bates has made the following statement: ‘In my view the provisions of the Modern Slavery Bill are compatible with the Convention rights’ and, of course, the Act itself refers to the fact that its references to holding a person in slavery or servitude are to be construed in accordance with Article 4 of the Human Rights Convention. The Act was passed in response to the decision in C.N v UK 2012 ECHR 1911 that the UK was in breach of Article 4 European Convention on Human Rights by failing to criminalise separate offences of slavery, forced labour and human trafficking on the one hand and domestic servitude on the other hand.
Thus, now understanding the purpose behind the Act, I turn to the actions of Mr Marsh and whether the fact that he did not lock Mr Jones into his abominable factory at night relieves him from criminal liability under the Act. In the circumstances, I am of the opinion that Mr Jones had no option but to stay in the factory overnight and that he was effectively bonded to his work because he was paid an insufficient amount of money and not given time away from work in order to seek some form of accommodation. I am sure his work circumstances were in breach of the working time directive.
I was moved by the evidence given at the trial by P.C. Robert Palmer who described the sad, weary and frightened state that Mr Jones was in when he presented himself at Manchester Police Station. In my opinion Mr Jones, and others like him, needs to be protected from the likes of Mr Marsh.
I also note that Mr Marsh has asked us to consider applying the presumption against criminal liability without mens rea in his favour. I am not minded to do this as I consider that Mr Marsh was well aware that what he was forcing on Mr Jones was criminal in the true sense of the word, even if he was not aware of the fact he was actually breaking the provisions of a new statute.
I therefore agree with the magistrate’s decision. A person may be held in slavery or servitude within the meaning of section 1 of the Act even if that person is not physically restrained or locked in within a place.
Appeal dismissed.
Having read the extracts, answer the following questions:
(1) Identify the principal rule of construction that Lord Justice Godstone used in introducing the role of the Modern Slavery Act 2015 and explain how UK legislation needs to approach the construction of ECHR law. In particular you should discuss the impact of the Human Rights Act 1998 on principles of statutory interpretation.
(2) What difficulty did Lord Justice Godstone face in trying to decide whether the defendant had held Mr Jones in slavery or servitude under section 1 of the Act and how did he resolve that difficulty? Explain the aids that he used. In each case you should explain the role played by these aids in statutory interpretation.
(3) Consider and explain the role of the presumption that Lord Justice Godstone was asked, but refused, to apply.
(4) Explain whether and how this case could ever come before the Supreme Court and whether decisions of the European Court of Human Rights could have any impact on UK courts in relation to the Modern Slavery Act 2015.
(100 marks)
There is no word limit for any single part of the assessment. You will not be penalised provided your answer to all parts of the Assessment does not exceed 1000 words.
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