Offences Involving the Deprivation of Liberty

Question 1

False Imprisonment—Common Law

Answer 1

• Triable on indictment
• Unlimited maximum penalty

It is an offence at common law falsely to imprison another person.

Question 2

False Imprisonment

Answer 2

The elements required for this offence are the unlawful and intentional/reckless restraint of a person’s freedom of movement (R v Rahman (1985) 81 Cr App R 349). Locking someone in a vehicle or keeping him/her in a particular place for however short a time may amount to false imprisonment if done unlawfully. An unlawful arrest may amount to such an offence and it is not uncommon for such an allegation to be levelled at police officers against whom a public complaint has been made. On the other hand, making a lawful arrest will mean that the person was lawfully detained and no offence would be committed in such circumstances.

In R v Shwan Faraj [2007] EWCA Crim 1033, the court stated that there was no reason why a householder should not be entitled to detain someone in his house whom he genuinely believed to be a burglar; he would be acting in defence of his property in doing so (a lawful detention of the person). However, a householder would have to honestly believe he needed to detain the suspect and would have to do so in a way that was reasonable.

Question 3

Kidnapping—Common Law

Answer 3

• Triable on indictment
• Unlimited maximum penalty

It is an offence at common law to take or carry away another person without the consent of that person and without lawful excuse.

Question 4

Kidnapping

Answer 4

The required elements of this offence are the unlawful taking or carrying away of one person by another by force or fraud (R v D [1984] AC 778). Force includes the threat of force (R v Archer [2011] EWCA Crim 2252). These requirements go beyond those of mere restraint needed for false imprisonment. Parents may be acting without lawful excuse, for instance if they are acting in breach of a court order in respect of their children (see chapter 2.19). The ‘taking or carrying away’ need not involve great distances as a short distance (just a few yards/metres) will suffice (R v Wellard [1978] 1 WLR 921).

The taking or carrying away of the victim must be without the consent of the victim. If the victim consents to an initial taking but later withdraws that consent, the offence would be complete. If the consent is obtained by fraud, the defendant cannot rely on that consent and the offence will be made out (R v Cort [2003] EWCA Crim 2149). In R v Hendy-Freegard [2007] EWCA Crim 1236, the defendant was a confidence trickster who pretended to be an undercover agent working for MI5 or Scotland Yard. He told his victims that he was investigating the activities of the IRA and that his investigations had revealed that they were in danger. This allowed him to take control of their lives for years and, in doing so, to direct them to move about the country from location to location. The defendant was eventually arrested and convicted of kidnapping on the basis that the offence of kidnapping had occurred as his victims had made journeys around the country which they had been induced to make as a result of the defendant’s false story. The defendant successfully appealed against the kidnapping conviction, with the court stating that causing a person to move from place to place when unaccompanied by the defendant could not itself constitute either taking or carrying away or deprivation of liberty, which were necessary elements of the offence.

The state of mind required for this offence is the same as that for false imprisonment, indeed the only thing separating the two offences seems to be actus reus (R v Hutchins [1988] Crim LR 379).

Question 5

Slavery, Servitude and Forced or Compulsory Labour

Answer 5

The Modern Slavery Act 2015 consists of seven parts. Part 1 provides for offences of slavery and human trafficking. Modern slavery includes sexual exploitation, forced criminality and begging, labour exploitation, domestic servitude and organ or tissue harvesting. Victims can be of any age, culture, background or gender. Part 2 of the Act provides for two civil preventative orders, the Slavery and Trafficking Prevention Order and the Slavery and Trafficking Risk Order.

Question 6

Slavery, Servitude and Forced or Compulsory Labour—Modern Slavery Act 2015, s. 1

Answer 6

• Triable either way
• Life imprisonment on indictment
• Six months’ imprisonment and/or a fine summarily

The Modern Slavery Act 2015, s. 1 states:
(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.

Question 7

Slavery, Servitude and Forced or Compulsory Labour

Answer 7

In s. 1(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 European Convention on Human Rights (s. 1(2)).

Article 4 of the European Convention on Human Rights states:
1.
No one shall be held in slavery or servitude.
2.
No one shall be required to perform forced or compulsory labour.
3.
For the purpose 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 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.

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 (s. 1(3)). The list of particular vulnerabilities which may be considered is non-exhaustive but explicitly includes regard being made to any of the person’s personal circumstances (such as the person being a child under the age of 18, the person’s family relationships and any mental or physical illness) which may make the person more vulnerable than other persons. Regard may also be had to any work or services provided by the person, including work or services provided in circumstances which constitute exploitation within s. 3(3)–(6) (see para. 2.10.5, Keynote for the meaning of ‘exploitation’). This makes it clear that the forced and compulsory labour offence can cover a broad range of types of work and services including, for example begging or pick-pocketing, which could amount to exploitation under s. 3(5) or (6).

Section 1(5) states that 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.

Question 8

Human Trafficking—Modern Slavery Act 2015, s. 2

Answer 8

• Triable either way
• Life imprisonment on indictment
• Six months’ imprisonment and/or a fine summarily

The Modern Slavery Act 2015, s. 2 states:
(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.

Question 9

Meaning of Exploitation

Answer 9

The s. 2 trafficking offence is committed by arranging or facilitating travel with a view to the victim’s exploitation. Section 3 of the Modern Slavery Act 2015 sets out the meaning of exploitation for the purposes of s. 2.

Exploitation includes slavery, servitude and forced or compulsory labour by reference to the offence under s. 1. Equivalent conduct outside England and Wales also comes within this definition (s. 3(2)).

Section 3(3) sets out that exploitation includes sexual exploitation by reference to conduct which would constitute the commission of an offence of taking, or permitting to take, indecent photographs of children or any of the sexual offences provided for in part 1 of the Sexual Offences Act 2003 (these include offences relating to rape, sexual assault, prostitution and child pornography). Section 3(3)(b) ensures that equivalent conduct committed outside England and Wales also comes within the definition even though for jurisdictional reasons it would not be an offence under English law.

Exploitation includes exploitation in the context of trafficking for organ removal or for the sale of human tissue by reference to offences in the Human Tissue Act 2004. Again, equivalent conduct outside England and Wales is within the definition (s. 3(4)).

Section 3(5) states that exploitation also includes all other types of exploitation where a person is subject to force, threats or deception which is designed to induce him/her:
(a)
to provide services of any kind;
(b)
to provide a person with benefits of any kind; or
(c)
to enable another person to acquire benefits of any kind.

The above would include forcing a person to engage in activities such as begging or shop theft. It is not necessary for this conduct to be a criminal offence. Section 3(6) broadens the type of exploitation described in s. 3(5) so that it includes where a person is used (or there is an attempt to use the person) to do something for such a purpose, having been chosen on the grounds that he/she is a child, is ill, disabled or related to a person, in circumstances where a person without the illness, disability or family relationship would be likely to refuse.

Question 10

Committing an Offence with Intent to Commit an Offence under Section 2

Answer 10

A person commits an offence under s. 4 of the Modern Slavery Act 2015 if the person commits any offence with the intention of committing an offence under s. 2 (including an offence committed by aiding, abetting, counselling or procuring an offence under that section).

A person guilty of an offence under s. 4 is liable, on indictment, to imprisonment for a term not exceeding 10 years and, on summary conviction, to imprisonment for a term of six months or a fine or both (s. 5(2)).

Where the offence under s. 4 is committed by kidnap or false imprisonment, a person guilty of that offence is liable, on conviction on indictment, to imprisonment for life (s. 5(3)).

Question 11

UK National

Answer 11

‘UK national’ means:
(a)
a British citizen,
(b)
a person who is a British subject by virtue of Part 4 of the British Nationality Act 1981 and who has a right of abode in the United Kingdom, or
(c)
a person who is a British overseas territories citizen by virtue of a connection with Gibraltar.

Question 12

Forfeiture and Detention of Land Vehicle, Ship or Aircraft

Answer 12

The Modern Slavery Act 2015 provides powers to courts to order the forfeiture of vehicles involved in offences under s. 2 of the Act. The Act provides powers to the police and immigration service to detain vehicles connected to offences under s. 2 of the Act.

Question 13

The Modern Slavery Act 2015, s. 11 states:

Answer 13

(1)
This section applies if a person is convicted on indictment of an offence under section 2.
(2)
The court may order the forfeiture of a land vehicle used or intended to be used in connection with the offence if the convicted person—
(a)
owned the vehicle at the time the offence was committed,
(b)
was at that time a director, secretary or manager of a company which owned the vehicle,
(c)
was at that time in possession of the vehicle under a hire-purchase agreement,
(d)
was at that time a director, secretary or manager of a company which was in possession of the vehicle under a hire-purchase agreement, or
(e)
was driving the vehicle in the course of the commission of the offence.
(3)
p. 469The court may order the forfeiture of a ship or aircraft used or intended to be used in connection with the offence if the convicted person—
(a)
owned the ship or aircraft at the time the offence was committed,
(b)
was at that time a director, secretary or manager of a company which owned the ship or aircraft,
(c)
was at that time in possession of the ship or aircraft under a hire-purchase agreement,
(d)
was at that time a director, secretary or manager of a company which was in possession of the ship or aircraft under a hire-purchase agreement,
(e)
was at that time a charterer of the ship or aircraft, or
(f)
committed the offence while acting as captain of the ship or aircraft.
(4)
But where subsection (3)(a) or (b) does not apply to the convicted person, forfeiture of a ship or aircraft may be ordered only if subsection (5) applies or—
(a)
in the case of a ship other than a hovercraft, its gross tonnage is less than 500 tons;
(b)
in the case of an aircraft, the maximum weight at which it may take off in accordance with its certificate of airworthiness is less than 5,700 kilogrammes.
(5)
This subsection applies where a person who, at the time the offence was committed—
(a)
owned the ship or aircraft, or
(b)
was a director, secretary or manager of a company which owned it,
knew or ought to have known of the intention to use it in the course of the commission of an offence under section 2.
(6)
Where a person who claims to have an interest in a land vehicle, ship or aircraft applies to a court to make representations about its forfeiture, the court may not order its forfeiture without giving the person an opportunity to make representations.

Question 14

Forfeiture of Land Vehicle, Ship or Aircraft

Answer 14

‘Captain’ means master (of a ship) or commander (of an aircraft).

Question 15

The Modern Slavery Act 2015, s. 12 states:

Answer 15

(1)
If a person (‘P’) has been arrested for an offence under section 2, a constable or senior immigration officer may detain a relevant land vehicle, ship or aircraft.
(2)
A land vehicle, ship or aircraft is relevant if the constable or officer has reasonable grounds to believe that an order for its forfeiture could be made under section 11 if P were convicted of the offence.
(3)
The land vehicle, ship or aircraft may be detained—
(a)
until a decision is taken as to whether or not to charge P with the offence,
(b)
if P has been charged, until P is acquitted, the charge against P is dismissed or the proceedings are discontinued, or
(c)
if P has been charged and convicted, until the court decides whether or not to order forfeiture of the vehicle, ship or aircraft.
(4)
A person (other than P) may apply to the court for the release of the land vehicle, ship or aircraft on the grounds that the person—
(a)
owns the vehicle, ship or aircraft,
(b)
was, immediately before the detention of the vehicle, ship or aircraft, in possession of it under a hire-purchase agreement, or
(c)
is a charterer of the ship or aircraft.
(5)
The court to which an application is made under subsection (4) may, if satisfactory security or surety is tendered, release the land vehicle, ship or aircraft on condition that it is made available to the court if—
(a)
P is convicted, and
(b)
an order for its forfeiture is made under section 11.
(6)
In this section, ‘the court’ means—
(a)
if P has not been charged, or P has been charged but proceedings for the offence have not begun to be heard, a magistrates’ court;
(b)
if P has been charged and proceedings for the offence have begun to be heard, the court hearing the proceedings.
(7)
In this section, ‘senior immigration officer’ means an immigration officer not below the rank of chief immigration officer.

Question 16

Detention of Land Vehicle, Ship or Aircraft

Answer 16

In ss. 11 and 12, a reference to being an owner of a vehicle, ship or aircraft includes a reference to being any of a number of persons who jointly own it.

Question 17

Prevention Orders

Answer 17

Part 2 of the Modern Slavery Act 2015 makes provision (ss. 14 to 34) for the introduction of civil orders to enable prohibitions to be imposed by the courts on individuals convicted of a slavery or trafficking offence, or those involved in slavery or trafficking but who have not been convicted of a slavery or trafficking offence. The rationale for creating these orders is to enable law enforcement bodies and the courts to take tougher action against those involved in trafficking, and to protect individuals from the harm caused by slavery or trafficking by preventing future offending. The orders complement existing civil orders, enabling the courts to impose necessary prohibitions on individuals where there is evidence of that individual posing a risk of causing another person to be the victim of slavery, or trafficking for exploitation.

Question 18

Slavery and Trafficking Prevention Orders on Sentencing

Answer 18

Section 14 provides for slavery and trafficking prevention orders (STPO) on conviction. Section 14(1) enables a court (e.g. the magistrates’ court, youth court, Crown Court or in limited cases the Court of Appeal) to impose a STPO on a person on a conviction or other finding in respect of that person for a slavery or human trafficking offence. A slavery or human trafficking offence is defined in s. 14(3) and s. 34(1) and means an offence listed in sch. 1 to the Act. Schedule 1 includes reference to the offences in part 1 (ss. 1 and 2 of the Act), the preceding offences in England and Wales and equivalent offences in Scotland and Northern Ireland. Section 14(2) provides that the court must be satisfied that there is a risk that the defendant may commit a slavery or human trafficking offence and that it is necessary to make a STPO for the purposes of protecting persons generally, or particular persons, from physical or psychological harm which would be likely to occur if the defendant committed such an offence.

Question 19

Slavery and Trafficking Prevention Orders on Application

Answer 19

Section 15 provides for a STPO in cases other than on conviction etc. An application for a STPO may be made to a magistrates’ court by a chief officer of police, an immigration officer or the Director General of the National Crime Agency (NCA) (s. 15(1)). The NCA, established under s. 1 of the Crime and Courts Act 2013, holds the national lead for tackling slavery and human trafficking. Where an application is made by an immigration officer or the Director General of the NCA, the immigration officer or Director General must notify the chief officer of police for the area where the offender resides or is believed to intend to reside (s. 15(7)).

The court, in accordance with s. 16(2), must be satisfied that the defendant is a relevant offender and that, since the defendant became a relevant offender, he/she has acted in a way which demonstrates that there is a risk that the defendant may commit a slavery or human trafficking offence and that it is necessary to make a STPO for the purpose of protecting persons generally, or particular persons, from physical or psychological harm which would be likely to occur if the defendant committed such an offence.

Question 20

Meaning of ‘relevant offender’

Answer 20

Section 16 defines a relevant offender for the purposes of s. 15. A relevant offender includes a person convicted, made the subject of a finding or cautioned for a slavery or human trafficking offence in any part of the United Kingdom, and also a person convicted etc. in relation to an equivalent offence outside the United Kingdom (s. 16(4) and (5)). Where an application is made in respect of an equivalent offence, it is open to the person in respect of whom the application is made to challenge whether the offence he/she has been convicted of is an equivalent offence. They can do this by serving a notice on the applicant setting out the grounds for such a challenge (s. 16(6)), or without serving such a notice if the court permits.

Question 21

Effect of Slavery and Trafficking Orders

Answer 21

Section 17(1) provides that a STPO may prohibit the person in respect of whom the order is made from doing anything described in it. The nature of any prohibition is a matter for the court to determine. A prohibition may include preventing a person from participating in a particular type of business, operating as a gangmaster, visiting a particular place, working with children or travelling to a specified country. The court may only include in an order prohibitions which it is satisfied are necessary for the purpose of protecting persons generally, or particular persons, from physical or psychological harm which would be likely to occur if the defendant committed a slavery or human trafficking offence (s. 17(2)). A STPO may last for a fixed period of at least five years or until further order (s. 17(4)). The prohibitions specified in it may each have different durations.

Question 22

Prohibitions on Foreign Travel

Answer 22

A STPO may prohibit a person from travelling to any specified country outside the United Kingdom, any country other than a country specified in the order or any country outside the United Kingdom (s. 18(2)). Such a prohibition may be for a fixed period not exceeding five years, but may be renewed at the end of that period (s. 18(1) and (3)). A person prohibited from travelling to any country must surrender all his/her passports to the police (s. 18(4)). The police must return any such passports, unless they have been returned to the relevant national or international issuing authorities, once the all-country prohibition ceases to have effect (s. 18(5) and (6)).

Question 23

Requirement to Provide Name and Address

Answer 23

Section 19 provides that a defendant subject to a STPO may be required by the court to notify to the persons specified in the order, within three days, their name and address (including any subsequent changes to this information). Section 18(2) provides that the court must be satisfied that this requirement is necessary for the purpose of protecting persons generally, or particular persons, from the physical or psychological harm which would be likely to occur if the defendant committed a slavery or human trafficking offence. Section 17(7) sets out that where this information is provided to the NCA, the NCA must provide this information to the chief officer of police for each relevant police area.

Question 24

Variation, Renewal and Discharge

Answer 24

Under s. 20 of the Act, a person in respect of whom a STPO has been made or the police, NCA or an immigration officer (where they applied for the original order) may apply to the court which made the order to vary, renew or discharge the order. An order may not be discharged within five years of it being made without the consent of the person concerned and the relevant chief officer of police (s. 20(6)).

Question 25

Interim Slavery and Trafficking Prevention Orders

Answer 25

Section 21 provides for an interim STPO to be made where an application has been made for a STPO under s. 15 and the court considers that it is just to do so. For example, the court may make an interim order in a case where it is satisfied that this is necessary for the purpose of protecting a person from immediate harm pending the full determination of the application for the order. An interim order must be made for a specified period and ceases to have effect once the main application has been determined (s. 21(7)). An interim order may be varied, renewed or discharged (s. 21(8)).

Question 26

Appeals

Answer 26

A person may appeal against the making of a STPO on conviction in the same manner as an appeal against sentence. A person in respect of whom an order is made may also appeal a decision under s. 20 to vary, renew or discharge an order.

Section 22(4) sets out the powers of the Crown Court when determining an appeal. It will be open to the court to revoke the order or to amend its provision (either the duration or the prohibitions contained in it).

Question 27

Slavery and Trafficking Risk Orders

Answer 27

Section 23 of the Modern Slavery Act 2015 enables a magistrates’ court to make a slavery and trafficking risk order (STRO) on an application by a chief officer of police, an immigration officer or the Director General of the NCA. A STRO may be made against either an adult or person under 18. Where an application is made by an immigration officer or the Director General of the NCA, the immigration officer or Director General must notify the chief officer of police for the area where the offender resides or is believed to intend to reside (s. 23(6)).

The test for making a STRO is that the court is satisfied that there is a risk that the defendant may commit a slavery or human trafficking offence and that it is necessary to make a STRO for the purpose of protecting persons generally, or particular persons, from physical or psychological harm which would be likely to occur if the defendant committed such an offence. There is no requirement for the person in respect of whom an order is sought to have previously been convicted or cautioned in relation to a criminal offence (s. 23(2)).

An application for a STRO is made by complaint to a magistrates’ court (in relation to a person aged under 18, a reference to a magistrates’ court is to be taken as referring to a youth court).

Keynote

All of the issues relevant to a STPO apply in exactly the same way to a STRO (e.g. the effect of a STPO, the prohibitions on foreign travel and the requirement of a STPO to provide a name and address are mirrored in the legislation dealing with a STRO).

Question 28

Offences

Answer 28

Section 30 makes it an offence for a person to do anything which is prohibited by an STPO, interim STPO, STRO or interim STRO, or the Northern Ireland equivalents of an STPO or interim STPO, without reasonable excuse.

Where an order includes a foreign travel prohibition in respect of all countries outside the United Kingdom, s. 30(2) makes it an offence for the person subject to the order to p. 473↵fail, without reasonable excuse, to surrender all his/her passports. It is also an offence for a person to fail to comply with a requirement to provide his/her name and address.

The maximum penalty for either offence is six months’ imprisonment or a fine or both on summary conviction, or five years’ imprisonment following conviction on indictment (s. 30(3)). Section 30(4) precludes the court from making an order for a conditional discharge following a conviction for an offence in this section.