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Home » Professionals » Legal Guidance » H to K » Human Trafficking and Smuggling

Human Trafficking And Smuggling

Last Updated on 01 October 2008

This chapter will provide guidance on the following criminal offences:

  • Assisting unlawful immigration to a member state (facilitation) under section 25 of the 1971 Act as amended by S143 of the Nationality, Immigration and Asylum Act 2002.
  • Facilitating entry by asylum-seekers to the UK for gain (Section 25A of the 1971 Act as introduced by s143 Nationality, Immigration and Asylum Act 2002);
  • Assisting entry to UK in breach of deportation or exclusion order (Section 25B (1) as introduced by s143 Nationality, Immigration and Asylum Act 2002) person seeking to obtain leave by deception (Section 25(1)(c));
  • Assisting entry/remaining of excluded person (Section 25B (3) of the 1971 Act as introduced by s143 Nationality, Immigration and Asylum Act 2002;
  • Trafficking in Prostitution (Section 145 of the Nationality, Immigration and Asylum Act 2002);
  • Trafficking into the UK for sexual exploitation (Section 57 Sexual Offences Act 2003);
  • Trafficking within the UK for sexual exploitation (Section 58 Sexual Offences Act 2003);
  • Trafficking out of the UK for sexual exploitation (Section 59 Sexual Offences Act 2003);
  • Trafficking People for Exploitation (Section 4 Asylum and Immigration (Treatment of Claimants etc) Act 2004.

Trafficking and Smuggling Definition

In terms of prosecutions it is important to understand that there is a difference between persons who are smuggled and those who are trafficked. It is equally clear that in some cases the distinction between a smuggled and trafficked person will be blurred and both definitions could easily be applied.

Smuggling is normally defined as the facilitation of entry to the UK either secretly or by deception (whether for profit or otherwise). The immigrants concerned are normally complicit in the offence so that they can remain in the UK illegally. There is normally little coercion/violence involved or required from those assisting in the smuggling.

Trafficking involves the transportation of persons in the UK in order to exploit them by the use of deception, intimidation or coercion. The form of exploitation includes commercial sexual and bonded labour exploitation. The persons who are trafficked have little choice in what happens to them and usually suffer abuse due to the threats and use of violence against them and/or their family.

Assisting Unlawful Immigration to a Member State (facilitation) - Section 25 Immigration Act 1971

The Section 25 offence was substituted by Section 143 Nationality, Immigration and Asylum Act 2002 which came into force on 10 February 2003. This widened and extended the old facilitation provisions and cover any act facilitating a breach of immigration law by a non-EU citizen (including a breach of another Member State's immigration law) and acts covered by the old offence of 'harbouring'.

Under Section 25(1) a person commits an offence if he:

(a) does an act which facilitates the commission of a breach of immigration law by an individual who is not a citizen of the European Union;

(b) knows or has reasonable cause for believing that the act facilitates the commission of a breach of immigration law by the individual, and

(c) knows or has reasonable cause for believing that the individual is not a citizen of the European Union.

The offence is defined broadly enough to encompass both the old offences of assisting illegal entry (whether by smuggling someone in a vehicle or by providing false documents for presentation at a port) or assisting someone to remain by deception (eg by entering into a sham marriage) and other forms of assistance which facilitate a breach of the immigration laws.

Section 25(5)) of the Act has now been replaced by Section 30(1) of the UK Borders Act 2007 which came into force on 31 January 2008. This now covers anything done whether inside or outside the United Kingdom, regardless of the nationality of the perpetrator.

The offence is an either-way offence and the maximum sentence on indictment is up to 14 years imprisonment. It is also a 'lifestyle offence' under schedule 2 of the Proceeds of Crime Act 2002.

The leading sentencing guide case is R v Stark [1999] 1 Cr. App. R. 422. This states that the most appropriate penalty for all but the most minor offences of this nature is custody. Aggravating features include repeat offending; committed for financial gain; involving strangers rather than family members; a high degree of planning/sophistication; the number of immigrants involved; and the level of involvement of the offender. For guidance on non-commercial facilitation, see R v Panesar (1988) Cr. App. R 457. In the case of commercial facilitation see R v Brown [1997] 1 Cr App R 112, R v Woop [2002] 2 Cr. App R and R V Lofti Ben Salem (2003) LTL 5/2/03 unreported elsewhere.

Facilitating Entry by Asylum-Seekers to the UK for Gain - S25A Immigration Act 1971

This offence came into force on 10 February 2003 and was substituted by Section 143 Nationality, Immigration and Asylum Act 2002. Section 29 of the UK Borders Act 2007 inserted "or the entry into" the UK under Section 25A(1)(a).

Under Section 25(A)(1) a person commits an offence if he:

(a) knowingly and for gain facilitates the arrival in or the entry into the United Kingdom of an individual, and

(b) knows or has reasonable cause to believe that the individual is an asylum-seeker.

In this section "asylum-seeker" means a person who intends to claim that to remove him from or require him to leave the United Kingdom would be contrary to the United Kingdom's obligations under the Refugee Convention (within the meaning given by section 167(1) of the Immigration and Asylum Act 1999 (c. 33) (interpretation)), or the Human Rights Convention (within the meaning given by that section).

No element of smuggling is required to make out the offence; the asylum seekers do not need to be illegal entrants. The offence is aimed at those who, for gain, bring asylum seekers to the UK to enable them to claim asylum.

This does not apply to anything done by a person acting on behalf of an organisation, which aims to assist asylum-seekers, and does not charge for its services.

The offence covers any actions done whether inside or outside the United Kingdom.

The offence is an either-way offence and the maximum sentence on indictment is up to 14 years imprisonment, a fine or both. It is also a lifestyle offence under schedule 2 of the Proceeds of Crime Act 2002.

Bearing in mind the nature of the offences and the sentences that can be imposed, it is likely that most such cases will not be suitable for summary trial unless there are significant and exceptional circumstances to justify this course of action. The factors in R v Stark, see above, would appear to apply equally here.

Assisting Entry to UK in Breach of Deportation or Exclusion Order - S25B(1) Immigration Act 1971

This offence came into force on 10 February 2003 and was substituted by Section 143 Nationality, Immigration and Asylum Act 2002.

Under Section 25(B)(1) a person commits an offence if he:

(a) does an act which facilitates a breach of a deportation order in force against an individual who is a citizen of the European Union, and

(b) knows or has reasonable cause for believing that the act facilitates a breach of the deportation order.

The offence covers any actions done whether inside or outside the United Kingdom (amended by section 30 UK Borders Act 2007). It is an either-way offence and the maximum sentence on indictment is up to 14 years imprisonment, a fine or both. It is also a 'lifestyle offence' under schedule 2 of the Proceeds of Crime Act 2002.

Bearing in mind the nature of the offences and the sentences that can be imposed, it is likely that many cases will not be suitable for summary trial unless there are significant and exceptional circumstances to justify this course of action. The factors in R v Stark, see above, would appear to apply equally here.

Assisting Entry/Remaining of Excluded Person - Section 25B (3) Immigration Act 1971

This offence came into force on 10 February 2003 and was substituted by Section 143 Nationality, Immigration and Asylum Act 2002.

Under Section 25(B)(3) a person commits an offence if he knows or has reasonable cause for believing that:

his act assists the individual to arrive in, enter or remain in the United Kingdom,

the Secretary of State has personally directed that the individual's exclusion from the United Kingdom is conducive to the public good.

The offence covers any actions done whether inside or outside the United Kingdom (amended by section 30 UK Borders Act 2007). It is an either-way offence and the maximum sentence on indictment is up to 14 years imprisonment, a fine or both. It is also a 'lifestyle offence' under schedule 2 of the Proceeds of Crime Act 2002.

Bearing in mind the nature of the offences and the sentences that can be imposed, it is likely that many cases will not be suitable for summary trial unless there are significant and exceptional circumstances to justify this course of action. The factors in R v Stark, see above, would appear to apply equally here.

Trafficking in Prostitution - Section 145 of the Nationality, Immigration and Asylum Act 2002

This offence commenced on 10 February 2003 but was repealed by Sexual Offences Act 2003 (schedule 7) as of 1 May 2004 [SI 874 (2004)] and substituted by offences in Sections 57 to 59 Sexual Offences Act 2003. This offence can thus only be charged where the acts that amount to the commission of the offence, were committed after 10 February 2003 and before 1 May 2004.

Under section 145(1), a person commits an offence if he arranges or facilitates the arrival in the United Kingdom of an individual (the "passenger") and-

(a) he intends to exercise control over prostitution by the passenger in the United Kingdom or elsewhere, or

(b) he believes that another person is likely to exercise control over prostitution by the passenger in the United Kingdom or elsewhere.

Subsection 2 creates an offence in similar terms where the travel is within the UK. A further offence is committed for facilitating the transportation of a prostitute outside of the UK- subsection 3).

All these offences are either-way offences and on conviction on indictment, are subject to imprisonment for a term not exceeding 14 years, to a fine or to both.

This offence is a 'lifestyle offence' for the purposes of the Proceeds of Crime Act 2002.

Trafficking into the UK for Sexual Exploitation - Section 57 Sexual Offences Act 2003

This offence came into force on 1 May 2004. Section 31(3) of the UK Borders Act 2007 inserted "or the entry into" the UK under Section 57(1) with effect from 31 January 2008.

Under Section 57(1) a person commits an offence if he intentionally arranges or facilitates the arrival in or the entry into the United Kingdom of another person (B) and either: -

(a) he intends to do anything to or in respect of B, after B's arrival but in any part of the world, which if done will involve the commission of a relevant offence, or

(b) he believes that another person is likely to do something to or in respect of B, after B's arrival but in any part of the world, which if done will involve the commission of a relevant offence.

A "relevant offence" is defined under Section 60(1) Sexual Offences Act 2003 as:

(a) an offence under Part 1 of the Sexual Offences Act 2003

(b) an offence under section 1(1)(a) of the Protection of Children Act 1978

(c) anything done outside England and Wales and Northern Ireland which would be an offence if done in England and Wales or Northern Ireland.

Section 60(2) and (3) is amended by Section 31(4) UK Borders Act 2007to apply to anything done whether inside or outside the United Kingdom, with effect from 31 January 2008.

This is an either-way offence and on conviction on indictment, is subject to imprisonment for a term not exceeding 14 years. This offence is also a 'lifestyle offence' for the purposes of the Proceeds of Crime Act 2002. This offence is likely to lead to a significant sentence on conviction. Such offences would almost certainly receive sentences over 12 months and thus should be tried in the Crown Court.

Section 54 and Schedule 4 of The Violent Crime Reduction Act 2006:
Forfeiture and detention of vehicles etc.

This amend the Sexual Offences Act 2003 by inserting new sections 60A, 60B and 60C into that Act.

Forfeiture

If a person is convicted on indictment of an offence under sections 57 to 59 of the Sexual Offences Act 2003, section 60A will enable the courts to order the forfeiture of a vehicle, ship or aircraft used or intended to be used in connection with the offence.

Detention

Section 60B enables a constable, or an immigration officer not below the rank of chief immigration officer, to detain a vehicle, ship or aircraft of a person arrested for an offence under sections 57 to 59 if it is one which the constable or immigration officer concerned has reasonable grounds for believing could, on conviction of the arrested person for the offence for which he was arrested, be the subject of an order for forfeiture made under section 60A.

Sentencing

The following cases provide guidelines on sentencing and reflect the degree of coercion, force and violence used in the exploitation of their victims:

Attorney General's Reference No 6 of 2004 (R v Plakici) [2005] Cr App R(S) 19 which dealt with a series of individual offences that amounted to an extremely serious case of trafficking. The offender had arranged for the illegal entry of women and young girls into this country in circumstances that involved both deception and coercion and forced them to work as prostitutes. Counts of illegal entry attracted sentences of five years of living on immoral earning five years, of kidnapping ten years, and of incitement to rape eight years. A total sentence of 23 years was imposed.

R v Maka [2006] 2 Cr App R(S) 14 Sentences totalling 18 years were upheld, on a guilty plea, in the case of a man who trafficked a 15 year old girl into this country and repeatedly sold her to others for the purposes of prostitution. The court endorsed the comment of the sentencing judge that human trafficking was a degrading activity producing untold misery around the world and that the case had echoes of slavery with the girl being sold from one procurer to another. It added that the offence was intended to embrace a wide variety of different forms of conduct, identified as trafficking for sexual exploitation.

R v Roci and another [2006] 2 Cr App R(S) 15 In this case the appellants were concerned in the importation and the control in this country of prostitutes from Lithuania. While the women came to this country willingly, they were then coerced to work in unpleasant circumstances and ways contrary to their wishes and to pay over most of their earnings. The sentence on the appellant who was concerned in all these matters was reduced from eleven years to nine years' imprisonment.

Trafficking Within the UK for Sexual Exploitation - Section 58 Sexual Offences Act 2003

This offence came into force on 1 May 2004

Under Section 58(1) a person commits an offence if he intentionally arranges or facilitates travel within the United Kingdom by another person (B) and either-

(a) he intends to do anything to or in respect of B, during or after the journey and in any part of the world, which if done will involve the commission of a relevant offence, (see above) or

(b) he believes that another person is likely to do something to or in respect of B, during or after the journey and in any part of the world, which if done will involve the commission of a relevant offence.

Section 60(2) and (3) is amended by Section 31(4) UK Borders Act 2007 to apply to anything done whether inside or outside the United Kingdom, with effect from 31 January 2008.

This is an either-way offence and on conviction on indictment, is subject to imprisonment for a term not exceeding 14 years. This offence is also a 'lifestyle offence' for the purposes of the Proceeds of Crime Act 2002.

This offence is likely to lead to a significant sentence on conviction. Such offences would almost certainly receive sentences over 12 months and thus should be tried in the Crown Court.

Trafficking Out of the UK for Sexual Exploitation - Section 59 Sexual Offences Act 2003

This offence came into force on 1 May 2004

Under Section 59(1) a person commits an offence if he intentionally arranges or facilitates the departure from the United Kingdom of another person (B) and either-

(a) he intends to do anything to or in respect of B, after B's departure but in any part of the world, which if done will involve the commission of a relevant offence, (as stated above) or

(b) he believes that another person is likely to do something to or in respect of B, after B's departure but in any part of the world, which if done will involve the commission of a relevant offence.

Section 60(2) and (3) is amended by Section 31(4) UK Borders Act 2007to apply to anything done whether inside or outside the United Kingdom, with effect from 31 January 2008.

This is an either-way offence and on conviction on indictment, is subject to imprisonment for a term not exceeding 14 years. This offence is also a 'lifestyle offence' for the purposes of the Proceeds of Crime Act 2002.

This offence is likely to lead to a significant sentence on conviction. Such offences would almost certainly receive sentences over 12 months and thus should be tried in the Crown Court.

The leading sentencing guide case is R v Stark [1999] 1 Cr. App. R. 422. This states that the most appropriate penalty for all but the most minor offences the appropriate penalty for an offence of this nature is custody. Aggravating features include repeat offending; committed for financial gain; involving strangers rather than family members; a high degree of planning/sophistication; the number of immigrants involved; and the level of involvement of the offender.

Trafficking People for Exploitation - Section 4 Asylum and Immigration (Treatment of Claimants etc) Act 2004

This offence came into force on 1 December 2004. Section 31(1) of the UK Borders Act 2007 inserted "or the entry into" the UK under Section 4(1) with effect from 31 January 2008.

Under Section 4(1) a person commits an offence if he:

(a) arranges or facilitates the arrival in or the entry into the UK of an individual, or

(b) arranges or facilitates onward travel within the UK by an individual he believes has been trafficked into the UK, or

(c) arranges or facilitates the departure from the UK of an individual

And, secondly, he intends to exploit the person or believes another person is likely to.

For the purposes of these offences, a person is exploited if he is:

  • the victim of behaviour contravening Article 4 of the ECHR (slavery or forced labour);
  • encouraged, required or expected to do something which would mean an offence is committed concerning organ removal;
  • subjected to force, threats or deception designed to induce him to provide services or benefits or enable another person to acquire benefits; or
  • requested or induced to do something, having been chosen on the grounds that he is ill, disabled, young or related to a person, in circumstances where a person without the illness, disability, youth or family relationship would be likely to refuse or resist.

Sections 5(1) and (2) are amended by Section 31(4) UK Borders Act 2007 to apply to anything done whether inside or outside the United Kingdom, with effect from 31 January 2008.

The offences are either way. On summary conviction the maximum penalty is six months imprisonment, fine up to the statutory maximum or both. (After s.154 Criminal Justice Act 2003 is commenced the maximum penal sentence on summary conviction will be increased to twelve months imprisonment). Conviction on indictment carries a maximum sentence of fourteen years imprisonment, a fine or both. This offence is also a 'lifestyle offence' for the purposes of the Proceeds of Crime Act 2002.

This offence is likely to lead to a significant sentence on conviction. Such offences would almost certainly receive sentences over 12 months and thus should be tried in the Crown Court.

Further information about this offence can be found in legal update Gateway POL 69 2004.

Prosecution of Defendants Charged With Offences Who Might Be Trafficked Victims

Victims of human trafficking may commit the following immigration offences whilst they are being coerced by another:

  • using a false instrument under section 3 of the Forgery and Counterfeiting Act 1981;
  • possession of a forged passport or documents under section 5 of the Forgery and Counterfeiting Act 1981;
  • possession of a false identity document under section 25 Identity Cards Act 2006;
  • failure to have a travel document at a leave or asylum interview under section 2 Asylum and Immigration (Treatment of Claimants) Act 2004. 

When reviewing such a case, it may come to the notice of the prosecutor that the suspect is a credible trafficked victim. For these purposes, credible means that the investigating officers have reason to believe that the person has been trafficked.  

In these circumstances, prosecutors must consider whether the public interest is best served in continuing the prosecution in respect of the immigration offence.

The following factors are relevant when deciding where the public interest lies:

  • is the person a credible trafficked victim;
  • the role that the suspect has in the immigration offence;
  • was the immigration offence a direct consequence of their trafficked situation;
  • were violence, threats or coercion used on the trafficked victim to procure the commission of the offence;
  • was the victim vulnerable or put in considerable fear.

Where information has come to light from other sources that a suspect might be the victim of trafficking, for example from a Non Government Organisation (NGO), the prosecutor should:

  • contact the police officer or immigration officer investigating the immigration offences;
  • ask the investigating officer to make enquiries and obtain information in connection with the claim that the suspect has been trafficked (this should be done by contacting the UK Human Trafficking Centre [UK HTC]);
  • re-review the immigration case in light of any fresh information or evidence;
  • if new evidence obtained supports the claim that the suspect has been trafficked and committed the immigration offences whilst they were coerced, give consideration to  discontinuing the prosecution. Where there is clear evidence that the defendant has a credible defence of duress, the case should be discontinued on evidential grounds.

Information may be in the form of medical reports (psychiatrist reports) claiming post traumatic stress as a result of their trafficking experience. The prosecutor should take the same steps outlined above. Any such information should be copied to the investigating officer for his / her observations.

Guidance has been issued to police and immigration officers on identification of victims and what might constitute a credible trafficked victim. Further reports or statements obtained from the investigating officer and / or an officer from the UK HTC should be carefully reviewed. However, all decisions in the case remain the responsibility of the prosecutor.

Prosecution Of Young Defendants Charged With Offences Who Might Be Trafficked Victims

There may be instances where a youth faces criminal charges when he/she is a trafficked victim and the offences were committed when that person was in a coerced situation.

Recent cases have highlighted the following offences as those that are likely to be committed by child trafficked victims: 

  • theft (in organised pick pocketing gangs), under section 1 Theft Act 1968;
  • cultivation of cannabis plants, under section 6 Misuse of Drugs Act 1971

Prosecutors should be alert to the possibility that in such circumstances, a young offender may actually be a victim of trafficking and have committed the offences under coercion.

Where there is clear evidence that the youth has a credible defence of duress, the case should be discontinued on evidential grounds. Where the information concerning coercion is less certain, further details should be sought from the police and youth offender teams, so that the public interest in continuing a prosecution can be considered carefully. Prosecutors should also be alert to the fact that an appropriate adult in interview could be the trafficker or a person allied to the trafficker.

Any youth who might be a trafficked victim should be afforded the protection of our child care legislation if there are concerns that they have been working under duress or if their well being has been threatened.

 In these circumstances, the youth may well then become a victim or witness for a prosecution against those who have exploited them The younger a child is, the more careful investigators and prosecutors have to be in deciding whether it is right to ask them to become involved in a criminal trial.

Prosecutors are reminded of the principles contained within the CPS policy statement on Children and Young People and in particular, our commitment to always consider what is best for children in criminal cases.

Disclosure

As with any other area of crime, it is important that the issues of disclosure are resolved appropriately. Prosecutors and investigators should refer to the Disclosure Manual for details on issues around disclosure.

Deportation

Procedures in relation to deportation are dealt with under the heading <Sentencing and Ancillary Orders Applications, elsewhere in this guidance>

Useful Links

Gateway ref: POL/126/2007 Prosecution of suspects who might be trafficked victims