Expert Legal Adviser MILTON FIRMAN asks: What is the Crime of Human Trafficking?

Oct. 18, 2011 - PRLog -- You face a legal problem.  You may have sought advice and felt let down by the system.  Talk of hourly rates and vast fees.  Appointments you have to wait for, and even travel into town.  Delay, uncertainty and worry, lots of worry.  Now Milton Firman turns all of this on its head.

He advises immediately.  He is on call 24/7.  No appointments required.  He will see you at your home.  In the evenings or at weekends.  Fixed fees or no fees at all.  He is fearless and straight talking.  He is an experienced legal adviser, an expert in this field of law and offers advice regarding the best way forward for you.

It is important to understand the difference between persons who are smuggled and those who are trafficked; in some cases the distinction between a smuggled and trafficked person will be unclear and both definitions could easily be applied.
It is important to examine the end situation when the victim is recovered to determine whether someone has been smuggled or trafficked.

A number of factors help distinguish between smuggling and trafficking:

•Smuggling is characterised by illegal entry only and international movement only, either secretly or by deception (whether for profit or otherwise);
•Smuggling is a voluntary act and there is no further exploitation by the smugglers once they reach their destination;
•There is normally little coercion/violence involved or required from those assisting in the smuggling.

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 force, violence, 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.

Section 25 Immigration Act 1971 creates an offence of assisting unlawful immigration (known as facilitation). The 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 covers 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 in order 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 (for example 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 was replaced by section 30(1) of the UK Borders Act 2007 which came into force on 31 January 2008. This now covers acts committed in the United Kingdom, regardless of the nationality of the perpetrator as well as acts committed overseas.

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 Le and Stark [1999]. 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]. In the case of commercial facilitation see R v Brown [1997], R v Woop [2002] and R v Akrout [2003].
The offence of Trafficking for Prostitution commenced on 10 February 2003 but was repealed by Sexual Offences Act 2003 (schedule 7) as of 1 May 2004 and substituted by offences in sections 57, 58 and 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.

Sections 60(2) and 60(3) 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.

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.

For more information, here is the deal.  Call Milton on 0161 485 1100 or 07909 900449 at any time or him at milton@miltonfirman.co.uk

Write to him at 24 Byrom Street, Altrincham WA14 2EN.

He will always be pleased to speak to you at any time.  In confidence.  With confidence.

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