Whilst you may be horrified at the thought of being accused of involvement in human trafficking, it is clear that the Modern Slavery Bill (the Bill) is drafted widely. We wanted to update you on this high profile Bill, which is currently working its way through the legislative phases in the UK Parliament. Although slavery and human trafficking have long been considered criminal in the UK, this has only recently been reflected in various pieces of legislation. In response to a general perception that these laws are weakly enforced, and several recent high profile incidents involving slavery, the UK Government has introduced the Bill which is expected to become law before the next general election in 2015. It is worth noting that clauses 11 and 12 of the Bill concern the forfeiture and detention of land vehicle, ship and aircraft used or intended to be used in the commission of the new offence of human trafficking.
At present, the Law differentiates between the offences of human trafficking for sexual exploitation (contained in the Sexual Offences Act 2003) and human trafficking for non-sexual exploitation (contained in the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004). The new offence of human trafficking contained in Clause 2 of the Bill consolidates the current Law into one single offence, which will apply when a person “arranges or facilitates the travel of another person (“V”) with a view to V being exploited.” The term “exploited” includes both sexual exploitation and a wide range of non-sexually exploitative acts, such as trafficking for the purposes of organ harvesting. The term “travel” constitutes the arrival into, departure from and travel within a country.
Critically a person will commit an offence under Clause 2 of the Bill not only if he/she arranges or facilitates V’s travel with the deliberate intention of V being exploited but also if he/she knew or ought to know that V is likely to be exploited at any point during or after travel. As such, individuals should be aware of the danger of “turning a blind eye” to traffickers exploiting their commercial operations to transport victims.
The new offence will also have extra-territorial effect for UK nationals. This means that a UK national will commit an offence regardless of where in the world the trafficking takes place. Further, a non-UK national will commit an offence if any part of the arranging or facilitating takes place in the UK or the travel element of the offence touches on the UK.
Clause 11 (forfeiture) and Clause 12 (detention) of the Bill are based on the current law contained in sections 60A and 60B of the Sexual Offences Act 2003, which in turn is based on sections 25C and 25D of the Immigration Act 1971. Both the Sexual Offences Act and the Immigration Act provisions provide for trafficking-specific forfeiture provisions (extending the law on forfeiture in the Criminal Courts (Sentencing) Act 2000) which should already be familiar to those in the aviation industry. Notwithstanding the extension of clauses 11 and 12 to the new offence of human trafficking, the provisions do not differ substantively in form or drafting to those in the Sexual Offences Act.
The more interesting of the two provisions is Clause 11, which gives the Court discretionary power on the conviction of a person (“P”) for human trafficking to order the forfeiture of aircraft “used or intended to be used” in the commission of the offence. Forfeiture may be considered if P (a) owned the aircraft at the time the offence was committed; (b) was at the time a director, secretary or manager of the company which owned the aircraft; (c) was at the time in possession of the aircraft under a hire–purchase agreement; (d) was at the time a director, secretary or manager of a company which was in possession of the aircraft under a hire-purchase scheme; (e) was at the time a charterer of the aircraft; or (f) committed the offence while acting as the captain of the aircraft.
If (a) or (b) applies (owner of the aircraft or director, secretary or manager of the company that owned the aircraft), the Court may make an order for forfeiture irrespective of the class of aircraft involved. However, if the circumstances in (a) or (b) are not applicable, the Court may only make an order for forfeiture if the aircraft is less than 5,700kg on take-off. As such, it is likely that Clause 11 will primarily impact on owners of light aircraft.
Charter companies and those with a legal right of ownership over light aircraft, for example banks using aircraft as a form of security, should be aware of the risk of forfeiture of their assets. Another area of potential risk is contained in Clause 11(5) and links back to the offence of “turning a blind eye” to trafficking under Clause 2. The intention of Clause 11(5) is to enable forfeiture when the owner or a director, secretary or manager of the company owning the aircraft knew or ought to have known of the intention to use the aircraft for the purpose of human trafficking.
Further, Clause 12 enables a constable or immigration officers to detain an aircraft on the arrest of an individual on suspicion of human trafficking, if he/she has reasonable grounds for believing that on conviction the Court will order forfeiture of the property under Clause 11. As a result, detention will only be a viable option where the arrested individual has the same links to the aircraft as under Clause 11(3)(a)-(f).
Although clauses 11 and 12 closely mirror the pre-existing forfeiture and detention provisions found in the Sexual Offences Act, their extension to the new consolidated human trafficking offence (and therefore trafficking for non-sexual exploitation) provides further reason for those with interests in aircraft to conduct appropriate due diligence. In particular, the danger of “turning a blind eye” to human trafficking is clearly outlined in the Bill.