On the 16 ^th of March 2011, in the Crown Court at Southwark before His Honour Judge Rivlin QC, the Recorder of Westminster, the appellant was convicted of the offence of trafficking into the United Kingdom for exploitation, contrary to section 4(1) and (5) of the Asylum and Immigration (Treatment of Claimants) Act 2004. She was sentenced to nine months imprisonment, suspended for 24 months, and was ordered to comply with a residence requirement for a period of six months. She was also ordered to pay compensation of £25,000 to the complainant.

The appellant applied for leave to appeal against conviction, and her application was referred to the full court by the Registrar. At the outset of the hearing we granted leave and proceeded to hear the substantive appeal. At the end of the hearing we allowed the appeal, quashed the appellant’s conviction and ordered a retrial. We now give our reasons.

The facts may be briefly stated. The complainant, to whom we shall refer as MM and who is now 47 years old, arrived in the United Kingdom from a country in Africa on the 7 ^th of October 2006. Her entry into the United Kingdom was arranged and paid for by the appellant. A contract of employment signed by the complainant and the appellant required the complainant to work as a housekeeper for the appellant, in return for payments which would be made into a bank account in the African country opened for this purpose. The complainant was also to be given a monthly allowance while she was in the United Kingdom. The complainant remained with the appellant until February 2010.

The complainant was later to say that she had decided to come to work for the appellant, whom she already knew and for whom she had worked occasionally in the African country, because she had separated from her husband and wanted to put her daughter through school in the African country. The complainant alleged, however, that once she had come to the United Kingdom she was treated badly by the appellant, made to work almost 24 hours a day, was poorly fed, was never allowed out on her own and seldom with others, had little contact with her family in the African country, and such contact as she had with them was listened to and sometimes recorded by the appellant. The complainant seemed not to know how much money had been paid into the bank account in the African country. Of the £10 per month which she was supposed to receive while she was in the United Kingdom, she had in fact been given very little.

On the 10 ^th of March 2009 the complainant registered with a medical centre in Harrow. Her GP was a Dr M.

On the 1 ^st of February 2010 the appellant took the complainant to the medical centre for an appointment with Dr M. An interpreter, Ms M, was present. The complainant had not met Dr M or Ms M before. While she was with Dr M the complainant disclosed that she was being ill-treated by the appellant. This was later reported to a charity in the Africa country by Ms M.

On the 11 ^th of February 2010 police officers, together with Ms M and representatives of the charity, went to the appellant’s home and spoke to her and the complainant. The complainant left with them.

On the 22 ^nd of March 2010 the appellant was arrested, interviewed and released on bail while the police investigation went on.

On the 22 ^nd of June 2010 the appellant was interviewed again.

On the 1 ^st of September 2010 the appellant was charged with the offence of which she was eventually convicted.

The appellant’s trial took place in March 2011. The complainant gave evidence. She said she had worked as a cleaner at the hospital run by the appellant’s husband in the African country. After he had died she was made redundant. The appellant then proposed that the complainant should come to the United Kingdom and work for her. The complainant said that when she arrived at the appellant’s home she was not given her own room. She was made to sleep on a mattress on the kitchen floor. She had to keep her belongings in a shed outside. Often she was cold at night. The appellant required her to work all day and into the night. She cooked, cleaned, worked in the garden and attended to the appellant’s two children, which required her to work at night because both of them suffered from disabilities. She would only be allowed out to do the appellant’s shopping or to take the appellant’s son for a walk. If the appellant wanted something she would ring a bell to summon the complainant. The complainant was expected to be available to the appellant 24 hours a day. She stated in her evidence that she wanted to go home, but had no money to pay for the trip. She had received a monthly allowance of £10 during the first year of her time with the appellant. After that, however, she was given nothing. The appellant made payments of £27 a month into the bank account in the African country. After she was arrested, further payments were made into that account. The complainant she that she spoke to members of her family on the telephone but did not tell them about her suffering because she did not want them to worry. When she complained to the appellant she was given a warning letter, apparently written by a friend of the appellant in the African country. Being illiterate, she was unable to read the letter. When cross-examined, she acknowledged that she had not complained to anyone other than the appellant for the first three years. And she accepted that she had not been deprived of food.

The evidence of Mrs A, the appellant’s friend in the African country, was read. She stated that she often spoke to the appellant. She had understood that the complainant was well treated by the appellant. In August 2007, after the appellant had told Mrs A that the complainant’s behaviour and attitude were not to her liking, and asked Mrs A to send the complainant a letter. This Mrs A did. Later she sent another letter, again at the appellant’s request. This second letter suggested to the complainant that she should do what she was asked to do by the appellant and reminded her that she was not allowed to get close to outsiders.

Ms M gave evidence. She stated that Dr M had asked her to enquire of the complainant about her working conditions. She denied encouraging the complainant to tell lies about the appellant.

Dr M gave evidence. She had become aware of allegations the complainant had made about her working conditions. These allegations Dr M recorded in her notes.

The jury was told of the appellant’s interview by the police, in which she denied the allegations made against her.

The appellant gave evidence. She said that she had been born and brought up in Pakistan. She had moved to the African country when she married a doctor who had a hospital there. The complainant worked at the hospital. It was at the hospital that she and the complainant had met. The appellant’s husband had died in 1998. She now lived in the United Kingdom. After her housekeeper had left and she had heard that the complainant was looking for work, she suggested to the complainant that she should come and work for her. The appellant denied that the complainant had been badly treated or made to sleep on a mattress on the kitchen floor. There was no spare bedroom in the house, but the complainant had been invited to share a room with the appellant or with the appellant’s daughter. She had declined this offer because she wanted her privacy. She slept on a sofa-bed in the sitting room. The appellant said the complainant was required to work five to six hours a day, six days a week. When not working she would watch television. She often spoke to members of her family on the telephone. She was free to come and go, but only rarely did she choose to go out. The appellant denied knowing anything about a friend of hers in the African country having sent a warning letter to the complainant.

The appellant’s evidence was supported by several witnesses called on her behalf, who said that when they visited her while the complainant was with her, they had had no reason to think that the complainant was being ill-treated or was unhappy.

Section 4(1) of the Asylum and Immigration (Treatment of Claimants etc) Act 2004 provides:

he intends to exploit the passenger in the United Kingdom or elsewhere, …

he is the victim of behaviour that contravenes Article 4 of the Human Rights Convention (slavery and forced labour), …”.

Article 4 of the Human Rights Convention, “Prohibition of slavery and forced labour”, states:

Any work required to be done in the ordinary course of detention imposed according to the provisions of Article 5 of this Convention or during conditional release from such detention;

Any service of a military character or in the case of conscientious objectors in countries where they are recognised, service exacted instead of compulsory military service;

Any service exacted in case of an emergency or calamity threatening the life or well-being of the community;

Any work or service which forms part of normal civic obligations.”

In Siliadin a minor, who had been trafficked to France and made to perform unpaid domestic work for a family for 15 hours a day, seven days a week, was held to have been in servitude, contrary to Article 4. Among the means which had been relied on to compel her to work was the manipulation of her vulnerability, her isolation, her inability to sustain herself independently of those employing her, and her fear of the police, because of her unlawful immigration status (Ibid).

In paragraph 82 of its judgment in Siliadin , the court stated that it considered that:

The court considered the meaning of “forced or compulsory labour”, in paragraphs 115 to 117 of its judgment:

In Rantsev v Cyprus and Russia [2010] ECHR 22, the European Court of Human Rights noted (in paragraph 272 of its judgment) that Article 4 makes no mention of trafficking, proscribing only “slavery”, “servitude” and “forced and compulsory labour”. The court referred to its decision in Siliadin , observing (in paragraph 279 of its judgment) that in that case it had concluded that the treatment suffered by the appellant amounted to servitude and forced and compulsory labour, although it fell short of slavery. In paragraph 276 of its judgment in Rantsev the court said this:

We have found assistance on what may be described as the hierarchy of the denial of personal autonomy to which Article 4 and thus section 4 of the 2004 Act relate in Clayton and Tomlinson’s “The Law of Human Rights”, 2 ^nd edition, volume I, paragraphs 9.17 to 9. 20 (on the concepts of “slavery” and “servitude”) and paragraph 9.25 (on the concept of “forced or compulsory labour”, where the following commentary appears:

the recruitment, transportation, harbouring or receipt of persons,

by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person,

for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs.

Before beginning his summing-up, the judge told counsel that he proposed to address the jury on the elements of the offence on the basis of written directions. The judge discussed his proposed directions with counsel, inviting their comments. It was submitted on behalf of the appellant that the direction the judge proposed to give on the concept of exploitation did not sufficiently take account of the concepts of “slavery” and “servitude” in Article 4. It was submitted that the judge had simply emphasised the question of whether the appellant had adequately paid the complainant as her employee. It was submitted, in effect, that the concepts of “slavery” and “servitude” are concerned with more than mere economics, and that for the statutory concept of exploitation to be established something more must be shown than merely a failure to remunerate somebody sufficiently for the work they have done. It was submitted that in his initial draft direction the judge had set the bar too low. The judge said he was prepared to amend his draft. He said that he was prepared to acknowledge in his summing up that exploitation involved treating someone more like a chattel than a human being, and that this was capable of including making a person work for long hours and for prolonged periods for little or no pay. As we understand it, the judge’s directions on this aspect of the case went through three drafts, the last of which was provided to counsel shortly before the judge began his summing-up, and the summing up itself contained a slightly altered version of the third draft.

The judge’s written directions, which he read out to the jury took this form:

In October 2006 the defendant arranged or facilitated the arrival of … MM, into the United Kingdom.

At the time of this event the defendant then intended to exploit her.

At some time during the period covered by the indictment the defendant did exploit MM by treating her more like property than a person and, in particular, by making her work for long and unsocial hours for very prolonged periods of time for little or no pay?

Emphasising that because this was a criminal case, the judge said the test to be applied by the jury was this:

The judge directed the jury on the concept of the minimum wage. He told the jury that the fact that the complainant did not receive the minimum wage while living with the appellant, and the disparity between her earnings and the minimum wage were matters that they were entitled to know about and take into account. He went on to say to the jury, however, that the concept of the minimum wage must not on its own govern their decision and was not to be used as the acid test by which they were to judge whether the complainant had been exploited or not. The judge went on to say this:

After the jury had retired they raised two questions for the judge to answer. The first question was this:

The jury reached a unanimous verdict of guilty.

In presenting the appeal, Ms Smaller submits, first, that in summing up the judge ought to have referred explicitly to the principal terms of Article 4 of the Human Rights Convention, namely the concepts of “slavery”, “servitude” and “enforced labour”. Without direction on those concepts, says Ms Smaller, the judge’s directions on “exploitation” were deficient. Ms Smaller submits that the judge failed to communicate effectively to the jury what kind of exploitation it is that section 4 of the 2004 Act makes a criminal offence.

Secondly, Ms Smaller submits that the judge put too much emphasis on the complainant’s remuneration and the number of hours she worked. Exploitation in the context of section 4 must involve more than being paid not enough money and working too many hours. Exploitation has ingredients which take it beyond the scope of employment law and into the sphere of criminality. The judge’s emphasis on the number of hours worked by the complainant and the pay she received accorded those factors a primacy not reflected in the wording of Article 4 or in the Strasbourg case law. In Siliadin the European Court of Human Rights considered the long hours the appellant had worked for little or no reward. In the present case the complainant had described having worked long hours, especially when the appellant’s son, an adult with a disability, was ill, which required her to work during the night. In Siliadin the court had remarked that those who care for others often have to work long hours in such circumstances. But, in concluding that the appellant had been exploited, the court had concentrated less on her working conditions than on her inability to change those conditions. It emphasised a number of factors going beyond hours and pay. These were the money that had been owed to the appellant, her status as an immigrant, her age, the fact that she had not chosen to work for the respondents, the denial of her freedom of movement, and the denial of her education. Ms Smaller concedes that the judge had referred to the fact that exploitation involved more than long hours and insufficient pay. In his written directions he had remarked that exploiting somebody meant treating him or her “more like property than an person”, and in responding to the jury’s first question he had told them that they had to be sure in the first place that the appellant “did not intend to treat [MM] as a member of the family and did not do so and … treated her more like an object, or intended to treat her more like an object who is just there for the benefit of herself and her family, …”. But Ms Smaller says the judge did not elaborate on how someone might be treated “more like property than a person”, or what factors might indicate that a person was being treated in that way. What the judge had said in answer to the jury’s question was not enough to introduce the right balance into the summing up. Using the expression “more like an object” was misleading. In Siliadin the court had imposed a stricter test based on whether any right of legal ownership had in fact been exercised.

Thirdly, Ms Smaller submits, the judge had wrongly equated the question of whether [MM] was “treated as a member of the family” with the question of whether the appellant had brought her into the United Kingdom with the intention of exploiting her.

Ms Smaller’s fourth submission is that the judge’s response to the jury’s second question was wrong in law because the judge had used the word “exploitative” in a lay sense rather than in the sense required by Article 4.

Fifthly, Ms Smaller submits that the concerns she had expressed about shortcomings in the summing up were reinforced by the fact that in cross-examination of the complainant, she had made a good deal of progress in counteracting the allegations of exploitation on which the Crown’s case depended. In particular, she had made progress on the issues of the complainant’s freedom of movement, her communications with her family, including the evidence she gave about her telephone calls being recorded and monitored, and the amount and type of food she was given by the appellant. The prosecution’s case on the complainant’s remuneration was also weakened, says Ms Smaller. It had not been disputed on behalf of the appellant that the complainant’s pay was substantially below the minimum wage and that the appellant’s payments to her had become more and more sporadic after the first year of her employment. But there had been some evidence to support the appellant’s suggestion that the complainant’s wages had been kept in an account in the African country for her, which was controlled by the hospital, and that this had been done at the complainant’s request. Moreover the appellant was able to show that all of the money went to meet the complainant’s daughter’s school fees, which is what had been agreed. The complainant had conceded that she intended to use the money which went into the bank in the African country to buy land, and that the sum she had been paid would be sufficient for that purpose. Thus, submits Ms Smaller, by the time the trial was concluded, much of the strength of the prosecution’s case had been taken away. This, says Ms Smaller, lends force to her submission that the flaws in the judge’s summing up were sufficient to render the appellant’s conviction unsafe.

For the Crown, Ms Haughey submits that the judge’s summing-up was accurate and fair. The fact that this case involves novel law in this jurisdiction does not mean that the definition of exploitation adopted by the judge was improper or too dilute. The judge did what the European Court of Human Rights had done in the case of Siliadin , which was to apply the concept of exploitation in a contemporary social context. The judge had helped the jury understand the law whilst allowing them to apply their common sense to the evidence they had heard. The jury had clearly considered with care all of the evidence given in the trial, drew their own conclusions about what the complainant and the appellant respectively had said, and, as juries must, applied their common sense to the evidence. This much may be seen in the questions the jury asked. The deliberately low pay which the appellant had set in place from the outset and the means by which that payment was made contributed to her control over the complainant and to the complainant’s isolation, ensuring that she had no real alternative but to stay with her. The complainant had no freedom of movement. She was not able to change her circumstances. Her remuneration was a factor which the jury had to consider. It was relevant too to the appellant’s defence, which was based largely on the contention that the complainant was treated as a member of the appellant’s family, whose role was that of an au pair. The judge made it clear that this was not the only issue for the jury to consider when deciding whether they were sure that the appellant was guilty of the offence with which she was charged. Ms Haughey refers to several passages in the judge’s summary of the evidence in which he had referred to what the jury had heard about the way in which MM had been treated by the appellant and in the appellant’s home, to her living conditions, and to her working conditions. Ms Haughey submits that the appellant’s conviction was safe, even if the judge’s summing-up was deficient. The jury had had the benefit of seeing both the appellant and the complainant give evidence and being cross-examined. They had had ample evidence on which they could properly convict.

In our judgment, there is force in Ms Smaller’s submissions.

It was for the Crown to prove in this case that the appellant had arranged or facilitated the complainant’s entry into the United Kingdom intending when she did so to exploit her. The judge’s third question in the written directions he provided to the jury, which invited them to consider whether at some stage during the period covered by the indictment the appellant had in fact exploited the complainant, was not a question which the jury had to answer in the affirmative if it was to convict the appellant. Inevitable though it may have been that the jury would look for evidence of actual exploitation, it is to be noted that the offence provided for in section 4 of the 2004 Act is an offence of intention. We acknowledge that by effectively adding a further dimension to the ingredients of the offence the judge assisted the appellant, though not, we consider, in a way which made any real difference in her favour on the facts of the present case. It was not in dispute that the appellant had arranged for the complainant’s entry into the United Kingdom. There was evidence before the jury that the appellant had arranged for one of her employees at the hospital in the African country to recruit the complainant and to make arrangements for her travel to the United Kingdom, including procuring for her a passport and visa and her airline ticket, and opening a bank account. The Crown contended that the intention to exploit was demonstrated by the low level of pay the complainant was to receive, the hours she was to work and the degree of control exercised by the appellant over her once she had come to the appellant’s home, and by the appellant’s continuing treatment of her after she had arrived: depriving her of contact with her own family, isolating her from the local community, depriving her of association with those who shared her culture and preventing her from forming any kind of emotional attachment to others, and her treatment within the family itself. As to all of this there was evidence before the jury. Potentially therefore this was a case which, on its facts, came within the ambit both of the prohibition on “slavery or servitude” in Article 4(1) of the Human Rights Convention and of the prohibition on “forced or compulsory labour” in Article 4(2). The prosecution was, in our judgment, perfectly entitled to bring the case to trial. But this is not to say that the judge’s summing-up was correct, or that the appellant’s conviction was safe.

We have concluded that the judge’s summing-up did not reflect with sufficient clarity the core elements of Article 4 of the Human Rights Convention – namely “slavery”, “servitude” and “forced or compulsory labour” – which are integral to the offence provided for in section 4 of the 2004 Act. Those core elements are crisply defined in the judgment of the European Court of Human Rights in Siliadin . As we have noted (in paragraph 24 above), they form a hierarchy of denial of personal autonomy. The essence of the concept of “slavery” is treating someone as belonging to oneself, by exercising some power over that person as one might over an animal or an object (see paragraph 122 of the court’s judgment in Siliadin ). The essence of the concept of “servitude” is one person’s obligation to provide services to another, an obligation imposed by the use of coercion (paragraphs 123 and 124 of the court’s judgment in Siliadin ). The essence of the concept of “forced or compulsory labour” is work exacted under the menace of a penalty and performed against the will of the person concerned, a concept which brought to mind the idea of either physical or mental constraint, the essential character of the work or service involved being work or service for which the person had not offered himself voluntarily (see paragraph 117 of the court’s judgment in Siliadin )).

These concepts are not necessarily mutually exclusive. .A person can at the same time be subjected to “slavery or servitude” and to “forced or compulsory labour”. The common denominator is that the victim is subject to a degree of enforced control.

Nor should the concepts be seen as archaic. To dismiss “slavery” as being merely reminiscent of an era remote from contemporary life in the United Kingdom is wrong. In the modern world exploitation can and does take place, in many different forms. Perhaps the most obvious is that in which one human being is treated by another as an object under his or her control for a sexual purpose. But “slavery or servitude” and “forced labour” are not confined to exploitation of that sort. One person may exploit another in many different ways. Sexual exploitation is one, domestic servitude, such as was found in Siliadin , another.

Where “forced or compulsory labour” is concerned, the menace of a penalty can be exerted in various ways. It can be direct; it can also be indirect. Constraint can be mental or physical. It can be imposed by force of circumstances. Where it is alleged that one person has been compulsorily employed by another, the level of pay he or she has received, if any, may have evidential importance. It may point to coercion; it may bear on an employee’s ability to escape from his or her employer’s control. On its own, however, a derisory level of wages is not tantamount to coercion.

As Ms Haughey for the Crown submits, the concepts of “servitude” and “forced or compulsory labour”, if not also the concept of “slavery”, were arguably compatible with the circumstances of the present case. It was for the prosecution to make plain to the court which of these three concepts was relied upon. And, assuming that that was done, it was for the judge in his summing-up to spell out to the jury what the relevant concept or concepts involved, and to do so in simple and clear language corresponding to that of the European Court of Human Rights in those passages of its judgment in Siliadin to which we have referred.

We do not think that, when read fairly as a whole, the judge’s summing-up provided the jury with a proper definition of exploitation for the purposes of section 4 of the 2004 Act. In describing the ingredients of the offence the judge did not identify and explain the relevant core elements of Article 4. In our judgment, he focused too much on the economics of the relationship between the appellant and the complainant, thus diluting the test the jury had to apply to one appropriate to an employment law context but not strong enough to establish guilt of the criminal offence with which the appellant was charged. The economic context was not irrelevant. Germane as it was to the issue of exploitation, however, the alleged failure of the appellant to remunerate the complainant at, or anywhere near, the level of the national minimum wage was not determinative of her guilt. What the jury had to concentrate on in this case was not the fact that the complainant was paid “a mere pittance” or an “exploitative” wage, but whether, when the appellant arranged for the complainant to come to the United Kingdom, she had intended to exploit her in such a way as would violate her rights under Article 4. This was not a legal issue, but a question of fact. It did not entail the making of a value judgment about “the standards expected of employers towards their employees in this country wherever they may come from”.

We do not believe that the answers the judge gave to the questions asked of him by the jury put right the shortcomings we see in his summing-up. In his answer to the jury’s first question the judge encouraged the jury to consider whether the appellant had intended to treat the complainant not “as a member of the family” but “more like an object who is just there for the benefit of herself and her family”. This, in our view, was not enough to enable the jury to grasp what a contravention of Article 4 would involve. In his answer to the second question the judge remarked, rightly, that the absence from the contract of any reference to hours and holidays was not enough to demonstrate an intention to exploit the complainant. Again, however, he came back to the issue of the complainant’s wage and the number of hours she was expected to work.

As Ms Smaller pithily put it in an exchanges with the judge when he was discussing with counsel the answers he proposed to give to the jury’s questions, there was a risk here “that the maths of this case [would] overtake the concept of slavery and servitude and freedom and ownership and denial of freedom”. In our judgment, this risk became a reality. The jury were left with directions which did not distil the essential questions they had to answer in deciding whether the appellant was guilty of an offence under section 4.

We would observe that the judge summed up very fully and fairly on the facts. He had clearly given careful thought to how he should direct the jury as to the law. He had discussed his proposed legal directions with counsel. And he was clearly anxious to express those directions in everyday language, which was an admirable aim in itself and one we would not wish to discourage. He was faced with a novel type of prosecution, with only the Strasbourg jurisprudence to guide him. We have had the advantage of fuller argument on the law. In the conclusion we have reached on this appeal we mean no disrespect to an immensely experienced judge. But, in our judgment, for the reasons we have given, the summing-up in this case was flawed.

Does it follow that the appellant’s conviction is unsafe? In our judgment it does. Having found error in the judge’s directions on the constituents of the offence, we find it impossible to say that the appellant was safely convicted. We are strengthened in this view by the fact that the jury themselves sought clarification of those directions in the questions they put to the judge.

This appeal is therefore allowed.