Part One - Criminal offences
1. This part of the Act sets out two new criminal offences:
a) human trafficking, and
b) slavery, servitude and forced or compulsory labour.
2. While the behaviour which is covered by these offences was already illegal, the Act sets these offences out in more straightforward terms, which are easier to understand. In addition to the new offences, the Act also sets out "aggravations" linked to human trafficking. Where an aggravation is proved to the Court, it can lead to an increased sentence.
3. Section 1 sets out the offence of human trafficking. There are two parts to the offence: the relevant action and an intention to exploit or knowledge of likely exploitation; both are needed for an offence to be committed.
4. The first part of the offence is carrying out a relevant action with regard to another person. It does not matter whether that other person consents to that action being taken. A relevant action is any of the following:
- Recruiting another person;
- Transporting or transferring another person;
- Harbouring or receiving another person;
- Exchanging control over, or transferring control over another person;
- Arranging or facilitating (without necessarily doing), any of the actions above.
5. Travel from one place to another is not a required action for there to be an offence of human trafficking in Scotland.
6. The second part of the offence relates to exploitation. The person doing the relevant action must either be doing so with the intention of exploiting the other person or, in the knowledge that the person is likely to be exploited. The word "exploitation" is given a defined meaning in section 3 of the Act. The exploitation must fall within that meaning for there to be a criminal offence.
7. There are four types of exploitation defined in section 3, they are:
a) Slavery, servitude and forced or compulsory labour;
b) Prostitution or sexual exploitation;
c) Removal of organs;
d) Securing services and benefits.
a) Slavery, servitude and forced or compulsory labour
8. This is where a person is a victim of conduct, which is an offence under section 4 of the Act. That offence is described in more detail below at paragraphs 11 to 13.
b) Prostitution or sexual exploitation
9. The exercise of control, direction or influence over prostitution by another person, which shows that the person is aiding, abetting or compelling the prostitution, falls within the meaning of exploitation. Involving a person in the making or production of materials which are classified as obscene under the Civic Government (Scotland) Act 1982 is also exploitation. Finally, where the person has been the victim of certain sexual offences listed in section 3(5) then that is exploitation.
c) Removal of organs
10. Where a person is encouraged, required or expected to do anything which would be an offence related to the removal of organs or human tissue. This includes things done outside Scotland which would amount to such an offence if they happened inside Scotland.
d) Securing benefits and services
11. This is a general category, and brings two sets of circumstances within "exploitation". First are cases where any person is subjected to force, threats or deception designed to induce that person to provides services of any kind, provide another person with benefits of any kind, or to enable another person to acquire benefits of any kind. Second are cases where a child or vulnerable adult is used to provide services of any kind, provide another person with benefits of any kind or to enable another person to acquire benefits of any kind without the use of force, threats or deception, but in circumstances where a person who was not a child or vulnerable adult would be likely to refuse to be used for that purpose. "Benefits" in this section is a general word and has a meaning wider that social security benefits.
Does the trafficking have to happen in a particular place?
12. This depends on who is alleged to have committed the offence. A person who is a UK national, who is habitually resident in Scotland or which is a body (for example a company or partnership) incorporated in the UK commits the offence no matter where in the world the relevant action takes place. For any other person to commit the offence, either the relevant action has to occur in the UK, or that action has to be taken with a view to the victim arriving in or entering into, departing from or travelling within the UK.
The offence of slavery, servitude and forced and compulsory labour
13. This is set out in section 4 of the Act. A person commits an offence where they know or ought to know that they are holding another person in slavery or servitude. A person also commits an offence where the person knows or ought to know that they are requiring another person to perform forced or compulsory labour.
14. The meaning of "slavery, servitude and forced or compulsory labour" is not set out directly in the Act. Instead, the Act provides that the phrase is to be construed in accordance with Article 4 of the ECHR, which prohibits a person being held in slavery or servitude or being required to perform forced or compulsory labour. Accordingly, where the treatment of a person would not be allowed under Article 4 of the ECHR then that treatment will fall within the scope of the offence.
15. Section 4 goes on to make clear that when deciding whether the offence has been committed, then the personal circumstances of a person which may make them more vulnerable, are to be taken into account. It also provides that the fact that a person consents to being treated in this way does not mean that the offence has not been committed.
Differences between the offences
16. Slavery, servitude and forced or compulsory labour is included as a form of "exploitation" in section 3 of the Act. Where a person carries out a "relevant action" as defined in section 1, together with an intention to exploit in a way which would - if the exploitation occurred - amount to an offence under section 4, then an offence of "human trafficking" has been committed. That is the case even if the exploitation does not in fact occur.
17. Accordingly, where slavery, servitude and forced and compulsory labour occurs without the presence of a "relevant action", then it is only the offence of slavery, servitude and forced or compulsory labour which has been committed.
18. When tried without a jury the maximum penalty for either human trafficking or slavery servitude or forced and compulsory labour is 12 months in prison, or the statutory maximum fine (currently £10,000) or both. When tried before a jury in the sheriff court, the maximum penalty is 5 years imprisonment, or a fine or both. In the High Court, the maximum penalty is life in prison, or a fine or both.
19. Where it has been shown that another criminal offence had a connection with human trafficking, then section 5 of the Act requires a court to take that into account in sentencing and explain what part that consideration played in sentencing. It allows the court to increase the sentence it would have given in respect of that offence, because of the connection with human trafficking. It also requires the conviction to be recorded in a way which highlights the connection with human trafficking.
20. Where a person has committed the offence of human trafficking against a child, then section 6 of the Act requires a court to take that into account in sentencing and explain what part that consideration played in sentencing. It allows the court to increase the sentence it would have given in respect of the human trafficking, because it was committed against a child. It also requires the conviction to be recorded in a way which highlights the fact that it was committed against a child. In this Act, a child is a person under the age of 18.
21. Where the person who has committed the offence of human trafficking is a public official and did so while acting as a public official or purporting to act as a public official, then section 7 of the Act requires a court to take that into account in sentencing and explain what part that consideration played in sentencing. It allows the court to increase the sentence it would have given in respect of the human trafficking, because it was committed by a public official in these circumstances. It also requires the conviction to be recorded in a way which highlights the fact that it was committed by a public official. Section 7 goes on to define what is included in the phrase "public official".