Section 2 Modern Slavery Act 2015: No Requirement to Prove ECAT “Means” for Adult Trafficking

1) Introduction

This appeal concerned the scope of the human trafficking offence in section 2 of the Modern Slavery Act 2015 (“MSA 2015”), in the context of the recruitment and movement of adult sex workers to a flat in Portsmouth for the operation of a brothel.

The first appellant (an absconder) and the second appellant were convicted of:

• Count 2: conspiracy to control prostitution for gain (substantive offence s 53 Sexual Offences Act 2003)—no appeal.
• Count 1: conspiracy to arrange or facilitate travel with a view to exploitation—charged as conspiracy (s 1 Criminal Law Act 1977) to commit s 2(1) MSA 2015.

The central issue was one of statutory construction: whether, for adult victims, s 2 MSA 2015 requires proof of the coercive/deceptive “means” listed in Article 4 of the Council of Europe Convention on Action against Trafficking in Human Beings (“ECAT”), or whether it is enough that the defendant arranged/facilitated travel with a view to exploitation as defined in s 3.

2) Summary of the Judgment

The Court of Appeal dismissed both appeals. It upheld the trial judge’s rejection of the “no case to answer” submission on count 1 and approved the corresponding jury directions.

The court held that section 2 MSA 2015 is “clearly worded” and does not require the prosecution to prove that the travel was procured by ECAT Article 4 “means” (force, coercion, deception, abuse of vulnerability, payments to a controller, etc.). Parliament deliberately framed s 2 differently, including by making consent to travel irrelevant for adults and children alike (s 2(2)).

3) Analysis

3.1 The statutory framework: why the wording of s 2 mattered

The court treated the text of s 2 as the primary interpretive anchor. The offence is complete where a person:

• arranges or facilitates travel of another (“V”);
• with a view to V being exploited (s 2(4)).

Two drafting moves were decisive:

• s 2(3) lists examples (recruiting, transporting/transferring, harbouring/receiving, or transferring/exchanging control), but it is non-exhaustive and contains no requirement that those acts be achieved by any particular “means”.
• s 2(2) states plainly that consent to the travel is irrelevant (adult or child). The court regarded this as a “materially, and intentionally, inconsistent” approach compared with ECAT.

3.2 ECAT Article 4 and the rejected “importation” argument

The appellants’ case was that “human trafficking” in s 2 should be read compatibly with ECAT Article 4, which—so far as adults are concerned—treats “trafficking” as recruitment/transport/etc. by means of coercion, deception, abuse of vulnerability, or payments to a person controlling the victim.

The Court of Appeal refused to read those ECAT “means” words into s 2, emphasising:

• Parliament used much of ECAT’s language in s 2, making the omissions (including ECAT’s conditional consent formulation) legally significant rather than accidental.
• ECAT’s child-specific rule (that “means” are unnecessary for child trafficking) appears in ECAT but is not replicated in s 2; instead Parliament adopted a single consent rule about travel for adults and children (s 2(2)).

3.3 Precedents cited and how they shaped the reasoning

(a) Absconder appeals: R. v Okedare & Others [2014] EWCA Crim 228; [2015] 1 Cr. App. R. 9

The first appellant was an absconder sentenced in absence. The court nevertheless heard his appeal, applying R. v Okedare & Others, because the point was one of pure statutory construction and also arose for the second appellant (who was present), making it “clearly in the interests of justice” to determine both together.

(b) Explanatory Notes and mischief: R. v Massey [2007] EWCA Crim 2664; [2008] 1 Cr. App. R. 2 and R. (Westminster City Council) v National Asylum Support Service [2002] UKHL 38; [2002] 1 W.L.R. 2956

The appellants relied on Explanatory Notes, guidance, and the statute’s international context. The court accepted the general proposition (via R. v Massey applying R. (Westminster City Council) v National Asylum Support Service) that Explanatory Notes may illuminate the “objective setting” and mischief.

However, on the specific question—whether s 2 goes beyond ECAT minima—the Notes were “silent”: they supported that the MSA 2015 was intended to comply with international obligations, but did not demonstrate a legislative intention to limit the domestic offence to the ECAT “means” model.

(c) Reading the Act as a whole: IRC v Hinchy [1975] QB 773

The court invoked Lord Reid’s principle in IRC v Hinchy that Parliament and draftsman are taken to have in mind the language and substance of the whole Act. This supported an inference from s 1 to s 2: where Parliament wanted an external interpretive link, it said so expressly.

(d) Express external linkage in s 1, contrasted with s 2: VCL v UK and Rantsev v Cyprus and Russia

The court noted that s 1(2) MSA 2015 explicitly requires construction “in accordance with Article 4 of the Human Rights Convention”. It then cited:

• VCL v UK (App. Nos 77587/12 and 74603/12) (2021) 73 E.H.R.R. 9, where the ECtHR stated Article 4 ECHR must be construed in light of ECAT; and
• Rantsev v Cyprus and Russia (2010) 51 E.H.R.R. 1, recognising trafficking as within Article 4 ECHR’s scope.

Against that backdrop, the absence of any equivalent “construe in accordance with ECAT” instruction in s 2 was treated as a further indicator that Parliament chose not to import ECAT’s “means” as offence elements.

(e) Prior trafficking offence jurisprudence: R. v. Karemera [2018] EWCA Crim 1432, SK [2011] EWCA Crim 1691, and [K] and GEGA [2018] EWCA Crim 667

The court drew support from R. v. Karemera, a decision on s 4 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004, described as containing the same elements as s 2 MSA 2015. In Karemera the actus reus was treated as broad (“arranging” and “facilitating” travel) and the mens rea as an “offence of intention” focused on “with a view to exploitation” (citing SK on intention).

While acknowledging the appellants’ point that the specific ECAT “means” argument had not been ventilated in Karemera, the court treated the earlier line of authority as consistent with a straightforward domestic offence definition; if Parliament wished to add ECAT “means” as additional elements, it would need to legislate for that complexity.

The reference in Karemera to [K] and GEGA was used for a general purposive approach and the “intent of Parliament”, but did not displace the court’s conclusion that the text of s 2 was decisive and complete without ECAT “means”.

3.4 Legal reasoning: why “consent to travel” was pivotal

A core logical move in the judgment is the distinction between:

• ECAT, which makes consent to intended exploitation irrelevant where coercive/deceptive means are used (Article 4(b)); and
• s 2, which makes consent to travel irrelevant outright (s 2(2)).

The court reasoned that ECAT does not need to say “consent to travel is irrelevant” because ECAT’s “means” would, in substance, negate meaningful consent to travel. By contrast, Parliament’s deliberate choice to render consent to travel irrelevant in all cases indicated a legislative choice to criminalise conduct even where the adult travelled voluntarily.

3.5 Interaction with s 45 (statutory defence) and the “mayhem” argument

The appellants argued that if s 2 were broader than ECAT, incoherence would follow: a person could be convicted of trafficking someone who would not qualify as a “trafficked victim” for the purposes of the s 45 defence (which applies to offending compelled by “relevant exploitation” attributable to being a trafficking victim).

The court rejected this, holding:

• Prosecutorial guidance (including ECAT Article 26 non-prosecution principles) is not determinative of statutory meaning.
• There is nothing irrational in Parliament drawing different lines for (i) committing a trafficking offence (s 2, complete on arranging/facilitating travel with a view to exploitation) and (ii) affording a defence to subsequent offences committed by victims (s 45), which raises different and “inevitably more complex” considerations.
• The definition of “relevant exploitation” in s 45(5) (“exploitation … attributable to … being … a victim of human trafficking”) might require further consideration in a case where outcome-determinative, but did not justify narrowing s 2 by importing ECAT “means”.

3.6 Impact

The decision establishes (at appellate level) a clear rule for England and Wales:

• Proving “means” (coercion/deception/abuse of vulnerability) is not an element of s 2 MSA 2015 trafficking for adults; it is evidentially relevant but not legally required.
• Cases involving adult movement for sexual exploitation may proceed as trafficking where the prosecution proves arranging/facilitating travel and “view to exploitation” as defined in s 3, even if the adult travelled voluntarily.

Practically, the ruling is likely to:

• broaden the reach of trafficking charges in organised prostitution contexts (and potentially other exploitation categories in s 3) where coercive “means” evidence is absent or contested;
• increase the importance of careful judicial directions on “with a view to” and the statutory meaning of “exploitation”, to prevent s 2 collapsing into a mere “movement for unlawful work” offence;
• sharpen future litigation at the boundary between s 2 liability and the availability of the s 45 defence, particularly on the meaning of “attributable to” in s 45(5).

4) Complex concepts simplified

4.1 “Arranges or facilitates travel”

These are broad concepts. “Arrange” covers organising or setting up travel; “facilitate” covers making it easier. Under the approach endorsed (consistent with R. v. Karemera), the statute does not require a particular mechanism (e.g., buying tickets) in every case; it is fact-sensitive.

4.2 “With a view to exploitation”

This is the mental element in s 2(4). The prosecution must prove either:

• the defendant intended to exploit the person during/after travel; or
• the defendant knew or ought to have known another would likely exploit them.

In this case the “exploitation” alleged was “sexual exploitation” within s 3(3), linked to offences in Part 1 of the Sexual Offences Act 2003 (here, controlling prostitution for gain).

4.3 “Consent is irrelevant”

Under s 2(2), even if an adult agreed to travel, that does not prevent the travel from being “trafficking” if arranged/facilitated with the requisite “view to exploitation”. This is a statutory policy choice, not an evidential presumption.

4.4 “No case to answer” in this context

The appellants’ challenge was that, absent ECAT “means” evidence, the prosecution could not prove an essential element of the offence and the judge should have withdrawn count 1 from the jury. Because the Court of Appeal held ECAT “means” are not an element of s 2, the evidential foundation for “no case” fell away.

5) Conclusion

[2026] EWCA Crim 476 confirms that section 2 MSA 2015 defines a domestic trafficking offence that does not require proof of ECAT Article 4 coercive/deceptive “means” for adults. The offence turns on (i) arranging/facilitating travel and (ii) doing so with a view to exploitation as defined in section 3, with consent to travel made irrelevant by s 2(2).

The judgment strengthens a text-led approach to the MSA 2015 and signals that international instruments may provide context, but will not be used to read additional elements into an offence where Parliament has chosen materially different language.