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Moon Swee How & Anor v R.
Factual and Procedural Background
Two appellants (the 1st Appellant and the 2nd Appellant) appealed by leave against conviction on Count 1 of an indictment. There was no appeal against convictions on Count 2. Count 2 alleged conspiracy to control prostitution for gain involving the running of a brothel at flat [Number] Main Street in The City between June 2018 and March 2019. Count 1 alleged conspiring to arrange the travel of sex workers (named in the indictment as alleged victims) to The City with a view to their exploitation at or from that address. The single judge (Judge Ashworth) rejected submissions of no case to answer on Count 1. The 1st Appellant had been convicted and sentenced in absence; his appointed attorneys confirmed authority to proceed with the appeal. The Court of Appeal (Judges Edis, Turner and Picken) heard argument on a pure point of statutory construction of section 2 of the Modern Slavery Act 2015 ("MSA 2015") and determined to hear both appeals together.
Legal Issues Presented
- Whether, to establish an offence under section 2 of the MSA 2015, the prosecution must prove that the accused procured or arranged travel of an adult by the particular "means" identified in Article 4 of the Council of Europe Convention on Action against Trafficking in Human Beings (ECAT) (eg. threat, force, coercion, abduction, fraud, deception, abuse of power or payment to a person with control over the victim).
- Whether the trial judge (Judge Ashworth) erred in law in rejecting the submission of no case to answer on Count 1 (conspiracy to arrange travel with a view to exploitation).
Arguments of the Parties
Appellants' Arguments
- Section 2 should be read to require proof that an adult was "trafficked" in the sense used in Article 4 ECAT; the requisite "means" in Article 4 must be established.
- The MSA's purpose and Explanatory Notes, together with Home Office and CPS guidance, indicate Parliament intended to reflect international definitions (notably ECAT).
- There was no direct evidence (or permissible inference) that any of the Article 4 "means" were used; accordingly there was no case to answer and the judge should have upheld the submission of no case.
- Construction of section 2 should be coherent with the section 45 defence to avoid anomalous results where a person could be convicted as a trafficker while the alleged victim would not qualify for section 45 protection.
Respondent's Arguments
- The plain wording of section 2 does not require proof of the Article 4 "means" as an element of the offence; the court should not import additional requirements absent parliamentary wording.
- There was sufficient evidence on which a jury could conclude travel was arranged with a view to exploitation.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| R. v Okedare & Others [2014] EWCA Crim 228; [2015] 1 Cr. App. R. 9 | Authority for permitting appeal of an absconder where the point is one of pure statutory construction and it is in interests of justice to hear together. | Relied on to justify hearing the 1st Appellant's appeal despite sentence in absence and to hear both appeals together. |
| R. v Massey [2007] EWCA Crim 2664; [2008] 1 Cr. App. R. 2 | Admissibility and value of Explanatory Notes as aids to statutory construction to identify the mischief the statute addresses. | Cited to explain that Explanatory Notes are admissible aids, but the Court found the Notes did not resolve the specific construction question before it. |
| R. (Westminster City Council) v National Asylum Support Service [2002] UKHL 38; [2002] 1 W.L.R. 2956 | Supporting authority (via Massey) on using Explanatory Notes to cast light on legislative objective/context. | Used within the Massey discussion to justify consideration of Explanatory Notes; the Court nonetheless found the Notes silent on whether section 2 imported Article 4 "means". |
| IRC v Hinchy [1975] QB 773 | Principle that clauses of the same Act should be construed in light of one another; assume draftsman had the Act's language in mind. | Applied to reason that the Court should consider section 1 when construing section 2 and that omissions between sections are significant. |
| VCL v UK (App. Nos 77587/12 and 74603/12) (2021) 73 E.H.R.R. 9 | ECtHR statement that Article 4 ECHR must be construed in light of ECAT. | Referred to when considering how Article 4 and ECAT relate to domestic statutory construction; Court observed section 1 contains a specific Article 4 reference while section 2 does not. |
| Rantsev v Cyprus and Russia (2010) 51 E.H.R.R. 1 | Trafficking falls within the scope of Article 4 ECHR. | Used to underline relevance of ECtHR jurisprudence, while noting the absence of equivalent textual provision in section 2. |
| R. v. Karemera [2018] EWCA Crim 1432 | Discussion of earlier legislation (section 4 of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004) with similar elements to MSA 2015 section 2; actus reus completed once travel arranged/facilitated with requisite mens rea. | Cited to support the proposition that under prior legislation the offence was complete on arranging/facilitating travel with the necessary mental element and did not require proof of Article 4 "means". |
| K and GEGA [2018] EWCA Crim 667 | Purposive approach to statutory construction to reflect Parliamentary intent in affording protection to vulnerable persons. | Referenced in relation to purposive interpretation; Court noted purposive considerations but relied on the plain words of section 2. |
| SK [2011] EWCA Crim 1691 | Characterisation of trafficking provisions as offences of intention. | Referred to when discussing mens rea: section 2 is an offence requiring intention (or knowledge/ought to know) with a view to exploitation. |
| R v Secretary of State for the Environment, Transport and the Regions Ex parte Spath Holme Ltd [2001] 2 AC 349 | Discussed in Massey on limits of certain parliamentary materials; cited for context on use of explanatory materials. | Appeared in the Court's review of authorities on use of Explanatory Notes; Court nonetheless proceeded on textual analysis of section 2. |
| Robinson v Secretary of State for Northern Ireland [2002] UKHL 32 | Cited in Massey regarding use of explanatory materials and limits of Hansard; contextual authority. | Referred to in the Court's discussion of the admissibility and weight of explanatory materials but not treated as determinative of section 2's construction. |
Court's Reasoning and Analysis
The Court's analysis proceeded from the textual focus: the words of section 2(1) MSA 2015 define the offence as arranging or facilitating travel of another "with a view to" that person being exploited. Section 2(3) supplies a non-exhaustive list of ways travel may be arranged (recruiting, transporting, harbouring, transferring/exchanging control) derived from Article 4 ECAT, but the statutory provision does not include any requirement that the travel have been procured by the particular "means" set out in Article 4 (eg. threat, force, coercion, fraud, abuse of power, or payment to a person with control over the victim).
The Court noted that section 2(2) expressly makes consent to travel irrelevant (for adults and children), a provision materially different from Article 4 which makes consent to the intended exploitation irrelevant only where Article 4 "means" have been used. The omission from section 2 of the Article 4 language limiting the offence to situations where those "means" were used was regarded as deliberate and significant. Section 1 of the MSA 2015 contains an express instruction to construe certain terms in accordance with Article 4 of the ECHR, but no equivalent cross-reference appears in section 2; that contrast supported the conclusion that Parliament enacted section 2 without importing Article 4's "means" as an element.
The Court considered Explanatory Notes, Home Office and CPS guidance and textbook commentary. It accepted those materials show prosecutorial practice and victim identification are informed by Article 4 "means", but held they are not authoritative to alter the statute's clear wording. The Court also relied on reasoning in earlier authorities concerning prior statutory formulations (notably Karemera) showing the actus reus and mens rea can be straightforwardly expressed: the offence is complete once travel is arranged or facilitated with the requisite mental element ("with a view to" exploitation).
The Court rejected the argument that section 2 must be read to ensure coherence with section 45 (the statutory defence for slavery or trafficking victims), holding there is no inconsistency in Parliament creating a standalone criminal offence in section 2 while separately defining the scope of a defence in section 45. The statutory scheme may deliberately treat criminal liability for arranging/facilitating travel and the availability of the section 45 defence as distinct matters.
On this basis the Court concluded that Judge Ashworth was correct to reject the submission of no case to answer and that the judge's directions were not infected by error.
Holding and Implications
APPEALS DISMISSED
Holding: The Court dismissed the appeals, agreeing with the trial judge's legal ruling that section 2 of the MSA 2015 does not require proof of the Article 4 ECAT "means" as an element of the offence; it is sufficient that travel was arranged or facilitated with a view to exploitation as defined in section 3.
Implications: The direct consequence is that the convictions on Count 1 stand and the appellants' challenge fails. The Court relied on the plain words of section 2 and declined to import the Article 4 "means" as an additional statutory element; no broader change to statutory wording was made by the Court.
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