From Slavery to Strasbourg: The ECtHR makes the first Article 4 finding against the UK
By Gwendolen Morgan
In November 2012, the European Court of Human Rights handed down judgment in the case of CN v. UK. The court unanimously held that there had been a violation of Article 4 (prohibition of slavery, servitude and forced labour) of the European Convention on Human Rights. A full summary of the case can be found here.
This is the first finding against the UK in relation to Article 4. The Court found that the criminal law in force in the UK had been inadequate to afford practical and effective protection to CN (see §76-77). Due to this absence of specific legislation criminalising domestic servitude and forced labour, the investigation into CN’s case had been rendered ineffective.
In her recent OHRH post, the Special Representative and Co-ordinator for Combating Trafficking in Human Beings at the OSCE highlighted the extent of the forced labour phenomenon in the modern, globalised labour market. She cited the International Labour Organization’s 2012 estimates that 20.9 million people are victims of forced labour globally, though the organisation stresses that this is a conservative estimate.
The UK signed the International Labour Organisation Forced Labour Convention in 1931 and has been under a positive obligation to effectively penalise forced labour since then. The court’s ruling underlines why it matters to have a ‘bespoke’ criminal offence which goes to the heart of the mischief: offences such as blackmail, theft, and kidnapping do not suffice alone. In practical domestic terms, in the absence of a specific offence targeting the core of the credible allegations made by CN (that she was forced to work without pay and under threat), the police’s investigative powers were necessarily limited. There was, for example, no PACE power to arrest or interview suspects under caution for the relevant conduct. Further, the penalties for ancillary offences such as ‘obtaining pecuniary advantage by deception’ under the Theft Act 1968 would have been grossly inadequate given her extraordinary four-year ordeal.
Following a campaign spearheaded by Anti-Slavery International and Liberty, with an influential opinion from Helen Mountfield QC and the former DPP, the last Government introduced a new offence of slavery, servitude and forced labour in 2010. It remains to be seen if that new offence is sufficiently precise to result in convictions; the EHRC raised this concern in its third party submissions in CN. However, despite this clear admission that there was a lacuna in the law protecting victims, the Government still refused to concede CN’s case.
The court’s robust judgment highlights the importance of victims having access to effective remedies and adequate protection from the state when subject to ill-treatment by third parties. It builds on Strasbourg’s exacting Article 4 positive obligations jurisprudence in relation to protection for victims of modern slavery in jurisdictions with distinct legal frameworks: CN and V v. France (67724/09), Rantsev v. Cyprus and Russia (2010) 51 EHRR 1 and Siliadin v. France (2006) 43 EHRR 16.
The court confirmed that “There will be a violation of Article 4 where the authorities fail to take appropriate measures within the scope of their powers to remove the individual from that situation or risk.” [§67] It then set out the necessary ingredients for an Article 4-compliant investigation at [§69]: “Article 4 entails a procedural obligation to investigate where there is a credible suspicion that an individual’s rights under that Article have been violated…For an investigation to be effective, it must be independent from those implicated in the events. It must also be capable of leading to the identification and punishment of individuals responsible, an obligation not of result but means. A requirement of promptness and reasonable expedition is implicit in all cases but where the possibility of removing the individual from the harmful situation is available, the investigation must be undertaken as a matter of urgency. The victim or their next-of-kin must be involved in the procedure to the extent necessary to safeguard their legitimate interests.” Importantly, in the context of the current problems with ‘cut-price’ court interpreting contracts, the latter would certainly include access to translation services of adequate quality. Whilst some of the above will be familiar from recent case law in relation to positive obligations under Articles 2,3 and 8, the case is a first in terms of the UK’s obligations under Article 4.