Colette Kelly Partner, Criminal and Regulatory Solicitor
New modern slavery offences sentencing guidelines published
The Sentencing Guidelines Council has today published the first sentencing guidelines for offences under the Modern Slavery Act 2015 (MSA).
The guidelines, which will come in to effect on 1 October 2021, will apply to adult offenders and covers the following offences:
- Holding someone in slavery, servitude and forced labour (section 1), including physical restraint or imprisonment, threats or treatment which make escape from their position an impossibility;
- Human trafficking – transporting people for purposes of exploitation (section 2), which may involve recruiting, harbouring, receiving or transferring people cross-border;
- Committing an offence with the intention of committing a human trafficking offence (section 4); and
- Breach of a slavery and trafficking prevention order or a slavery and trafficking risk order (section 30).
Offenders coerced or intimidated into committing slavery or human trafficking offences or are themselves victims, will have that fact recognised by the Courts, which could see them receive comparatively lower sentences, where appropriate.
The harm caused to victims may not always be obvious, and the guidelines direct the Courts in England and Wales to make sure they consider all the facts of the case, even where a victim is unwilling or unable to give evidence.
The sentencing guidelines provide the Courts with a step-by-step approach to sentencing.
For offences under the MSA, the steps and factors are as follows (see also step-by-step guide here).
Step 1 - The Court must assess the offender’s culpability as either high, medium or lesser
- High Culpability – factors include the offender having a leading role; expectation of substantial financial or other material advantage; high degree of planning/premeditation ; use or threat of a substantial degree of physical violence towards victim(s) or their families; use or threat of a substantial degree of sexual violence or abuse towards victim(s) or their families.
- Medium Culpability – factors include the offender having a significant role; involving others in the offending whether by coercion, intimidation, exploitation or reward; expectation of significant financial or other material advantage; some planning/premeditation.
- Lesser culpability – factors include being engaged by pressure, coercion or intimidation, or has been a victim of slavery or trafficking related to this offence; performing a limited function under direction ; having a limited understanding/knowledge of the offending; expectation of limited or no financial or other material advantage; little or no planning/premeditation.
Step 2 - What is the assessment of harm caused?
The guidelines identify categories of harm:
- Category 1- Exposure of victim(s) to high risk of death.
- Category 2 - Serious physical harm which has a substantial and/or long-term effect; serious psychological harm which has a substantial and/or long-term effect ; substantial and long-term adverse impact on the victim’s daily life after the offending has ceased; victim(s) deceived or coerced into sexual activity.
- Category 3 - Some physical and/or psychological harm; exposure of victim(s) to additional risk of such harm.
- Category 4- Limited physical and/or psychological harm; limited financial loss/disadvantage to the victim(s).
Having determined the offender’s culpability and category of harm, the Court is able to identify a starting point and the range of sentences within each category. The Court will then identify the aggravating features, which increase seriousness and the factors reducing seriousness or reflecting personal mitigation.
Step 3 - Consider any factors which indicate a reduction for assistance to the prosecution
Step 4 – The Court will take into account credit for a guilty plea
Step 5 – Dangerousness
Is the offence such that the Court should consider if it would be appropriate to impose a life sentence or an extended sentence?
Step 6 – The totality principle
The Court must consider whether the total sentence is just and proportionate to the overall offending behaviour
Step 7: Ancillary orders
- Confiscation – the prosecution applying for an order to pay the amount of the benefit from the offender’s criminal conduct.
- Slavery and trafficking prevention orders- this is an order to prevent slavery and human trafficking offences being committed by someone who has already committed such offences, for the purpose of protecting persons generally, or particular persons, from the physical or psychological harm, which would be likely to occur if the offender committed such an offence.The order may prohibit the defendant from doing things in any part of the UK, and anywhere outside the UK.
- Slavery and trafficking reparation orders- where a confiscation order has been made, the court may make a slavery and trafficking reparation order requiring the offender to pay compensation to the victim for any harm resulting from an offence under sections 1, 2 or 4 of the MSA. In practice, the reparation will come out of the amount taken the confiscation order.
- Restraining order- the Court may make such an order, to protect the victim of the offence, or any other person mentioned in the order, from further conduct which amounts to harassment or will cause a fear of violence.
- Forfeiture Orders- following a conviction for human trafficking under section 2 of the MSA, the Court may order the forfeiture of a vehicle, ship or aircraft used or intended to be used in connection with the offence of which the person is convicted.
What does this mean for commercial organisations?
Certain commercial organisations must publish an annual statement setting out the steps they take to prevent modern slavery in their business and their supply chains. This is a requirement under section 54 (Transparency in Supply Chains) of the MSA, outlined here.
Companies that are required to publish a MSA statement must describe the steps taken during the financial year to deal with modern slavery risks in their supply chains and business and to identify:
- Organisation structure and supply chains
- Policies in relation to slavery and human trafficking
- Due diligence processes
- Risk assessment and management
- Key performance indicators to measure effectiveness of steps being taken
- Training on modern slavery and trafficking
In an era of increased public awareness of ethical corporate governance, businesses, investors and stakeholders are more incentivised than ever to commit to initiating and maintaining protocols in all Environmental, Social and Governance (ESG) areas. Modern Slavery (the S in ESG), is just one of many areas to adhere to.