As well as criminalising allegations of slavery, worker exploitation and human trafficking, the Modern Slavery Act 2015 introduces Slavery and Trafficking Prevention Orders and Slavery and Trafficking Risk Orders. To date these orders have been used sparingly. However, they represent another weapon in the armoury of modern slavery investigators and as increased resources are allocated to this area of crime it will be interesting to consider the extent to which they are utilised.
It is also significant that the civil rules of evidence apply which mean that hearsay evidence may be admitted, for example when a witness has left the country, and an order could be made in circumstances where a successful prosecution may be unlikely.
The two types of Slavery and Trafficking Prevention Orders
There are two types of STPOs – an STPO on conviction and a free-standing STPO on application.
An STPO on conviction can be made by a court at the point of conviction of a defendant convicted of a slavery or trafficking offence ‘where there is a risk that the defendant may commit another slavery or human trafficking offence and poses a risk of harm to the public in doing so’.
The STPO will usually be sought at the point of sentence and they are intended to ensure that even after a defendant has have served their sentence any future risk of similar criminality is effectively managed.
A free-standing STPO on application. The police (and certain other investigators) may also apply to a Magistrates’ Court for a free-standing STPO on application.
The application may be made by a court in respect of an individual who has been convicted or cautioned (or subject to a similar finding) for a slavery or trafficking offence in the UK or abroad.
The same test applies and the court must be satisfied that there is a risk that the defendant may commit another slavery or human trafficking offence and that the STPO is necessary to protect against the risk of harm from the defendant committing the offence.
STPOs on application enable the courts to place restrictions on individuals convicted or cautioned for modern slavery type offences whether the offence took place before or after the Modern Slavery Act 2015 came into force. Convictions include spent convictions.
An STPO may impose any restriction on the defendant that the court deems necessary for the purpose of protecting the public from harm.
Slavery and Trafficking Risk Orders
A STRO can be made by a court where an individual has not been convicted of a slavery or trafficking offence. Again, the court must be satisfied that there is a risk that the defendant may commit a slavery or human trafficking offence and that the STRO is necessary to protect against the risk of harm from the defendant committing the offence. STROs allow action to be taken quickly where necessary to prevent serious harm to the public despite the absence of a conviction, for example during a long and complex investigation.
The STRO is a free-standing application by the police (or other investigators) to a Magistrates’ Court.
An STRO may impose any restriction deemed necessary to protect the public from harm.
Interim orders
It is also possible to apply for an interim STPO on application or STRO if the decision on the application for these orders has not yet been determined.
If a defendant is found not guilty of a slavery or trafficking offence, that does not prevent an application for an STPO or STRO being made in future.
Whilst recognising that the defendant must be allowed adequate time to prepare, interim hearings will not normally be adjourned, since the purpose of an interim order is to provide a degree of public protection pending the determination of the main application.
Restrictions the court may impose
With both orders, the court may impose a wide range of restrictions on individuals depending on the nature of the case, as long as these are necessary to prevent harm associated with slavery or trafficking offences. The orders are designed so that law enforcement bodies and the courts can respond flexibly to the risks posed by an individual of committing future modern slavery offences. This flexibility enables law enforcement and the courts to respond and take action in relation to changing modern slavery practices, and to tailor prohibitions to the specific risk posed by an individual.
Breach of an Order
The aim of both types of order is to protect potential victims from the physical or psychological harm which would result if the defendant committed a slavery or trafficking offence. The orders are intended as a preventative measure to deter unlawful and harmful activity. Breach of an order, without reasonable excuse, is a criminal offence which may be tried either summarily or on indictment with a maximum penalty on indictment of five years’ imprisonment.
Duration of an Order
The order entitles the court to prohibit the defendant from doing anything described in it. The minimum duration of an order is two years, and the duration can simply be until further order. However, where the STPO includes a prohibition of travel, that aspect of the order must be for a fixed period of not more than five years, although there is provision to apply to court to extend this period.
What standard of proof is required for STPOs and STROs?
The court must be satisfied so that it is sure that behaviour or actions giving rise to the application took place. This is an enhanced civil standard of proof, akin to the criminal standard of proof of being sure beyond reasonable doubt.
When considering whether to apply for a STPO or STRO previous convictions should be taken into account and consideration should be given as to whether those convictions should be disclosed to the court.
It is important to bear in mind that the court requires evidence of future risk. The court will need to be sure that the alleged acts which demonstrate the future risk took place. The court does not need to apply a standard of proof when deciding whether or not to impose an order.
Examples of prohibitions
Prohibitions may include;
- Working with children;
- Being a gangmaster;
- Working with vulnerable people;
- Residing with (specified) children/vulnerable people;
- Organising transport/accommodation for other people;
- Travelling to specified countries;
- Providing accommodation;
- Advertising for/ recruiting/ employing staff;
- Transporting workers;
- Retaining travel documents, passports or identity cards;
- Contacting/ recruiting specific individuals, directly or indirectly, either personally or by any electronic means;
- Holding a licence to act as a sponsor for visa applications;
- Going to a specific place (e.g. where a victim resides).
Article 8 of the European Convention on Human Rights
STPOs and STROs are public protection tools. Any interference with the offender’s right to a private and family life (protected by Article 8 of the European Convention on Human Rights) must be necessary to pursue the legitimate aims set out in Article 8 and be proportionate. Those aims are national security, public safety or the economic well being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
Admissible forms of evidence
Significantly, the normal rules of civil evidence apply, hearsay evidence is admissible. This is very important because an order could be imposed in circumstances where the likelihood of a conviction is low due, for example if witnesses have left the country.
Alternative to prosecution
The STPOs and STROs are not intended as a substitute for prosecution when sufficient evidence is available. They are intended as an additional tool available to law enforcement agencies to control the behaviour of individuals who may cause harm through committing slavery and human trafficking offences. However, during a long and complex investigation the police may seek a Slavery and Trafficking Risk Order. Due to the importance of protecting the public, there is every possibility of an interim order being granted.
With cases involving complainants who may have left the country, the civil evidence rules will still allow for the order to be made. A suspect therefore may find themselves the subject of an Interim Risk Order followed potentially by a full order based upon evidence that could never be used to support a prosecution.
However, from the defence perspective, the investigators would be required to disclose all evidence in support of the application. This means that during the course of the ongoing investigation the defence are far better equipped to undertake defence enquiries and undertake a more proactive approach.
If representations against charge are to be made by the defence, these may be made with a much fuller knowledge of the prosecution case. It is also conceivable that in a situation where a Risk Order has been made, and been in existence for a lengthy period then reference to compliance with that order could form part of any representations made.
Matthew Claughton – criminal defence lawyer
Written by Matthew Claughton. If you would like to discuss how Matthew and his team can proactively assist you in relation to your case, contact him by telephone on 0161 8277010 , by email to matthewclaughton@olliers.com or click here to send us a message.
