Trata de personas

Delitos

• Trata de personas (adultos)

Actos realizados

• Acogida

Fines de explotación

• Trabajos o servicios forzosos

John Miller Vs.Her Majesty's Advocate

Resumen de los hechos

The appellant is the son-in-law of his co-accused, Mr McPhee. They ran businesses involving tarring and paving. The complainant, namely KDW, was a young 20 year old and vulnerable man. He had only recently been released from detention and was on licence. Early in cross-examination about his criminal record, the complainant said that he suffered from mental instability and had previously been compulsorily detained because of this instability, he had said that he had a split personality disorder, depression, anxiety, PTSD, ADHD and drug induced psychosis.
 
The accused mis treated the complainant, even hit him at at times. The complainant said that he wanted to leave, but could not do so. He was threatened by the appellant that he would be skinned alive if he left. He regarded the appellant as the person who controlled where he lived and worked and what he was paid. The complainant said that he was paid erratically; £20 per day for four days, although he worked every day. Sometimes he was not paid at all. He was provided with accommodation in a caravan owned by the appellant.
 
The complainant ran away from the caravan to York, by climbing out the window. However the accused threatened him with violence to return to Scotland. The accused then located the complainant and forced him in a car and brought him back to Scotland. There are recordings of telephone calls available where in the accused is heard saying "You had better come out ...I will skin you alive" and "I'm coming to get you, just tell me where you are …”.
 
Finally, the complainant contacted the police using a mobile phone.  

Comentario y aspectos destacados

The court clarified the definition of servitude. The judge made special note that the point was not that he could not leave, it was that he was compelled to come back, live on site and perform the required labour.
 
The court laid down the definition of servitude is where there is an obligation to provide one's services imposed by the use of coercion, including an obligation to live on another person's property and the impossibility of altering that condition. And the law says that this definition includes the idea that the person who is held in servitude …feels that his situation is permanent and he can't change it. It is enough that those feelings are engendered and kept alive by the person who is responsible for the situation.
 
The essence of the offence in section 4(1)(a) of the Human Trafficking and Exploitation (Scotland) Act 2015 and its predecessor, section 47(1)(a) of the Criminal Justice and Licensing (Scotland) Act 2010 , is that the accused "holds another person in slavery or servitude". The two terms are thereby distinguished despite, as the trial judge astutely recognised, the fact that both Chambers and the Shorter Oxford Dictionary define "servitude" as the state or condition of being a slave. The section also distinguishes between servitude and being required to perform forced or compulsory labour. All of these terms are to be found in Article 4 of the European Convention on Human Rights . Section 4(2) of the Act directs that they are to be construed "in accordance with" the Article. Regard is to be had to "any personal circumstances ...that make the person more vulnerable than other persons".  The judge critiques the statute and said that the statute thus introduces certain somewhat complicating features into what might otherwise be a straightforward question in a case such as the present.
Fecha de la Sentencia:
2019-01-23
Autor:
John Miller Vs.Her Majesty's Advocate

Palabras clave

Hechos:
Acogida
Fines de explotación:
Trabajos o servicios forzados
Forma de la Trata:
Nacional

Cuestiones transversales

Responsabilidad

Responsabilidad por

• Delito consumado

Base de responsabilidad

• Intención dolosa

Información sobre el procedimiento

Sistema jurídico:
Derecho anglosajón
Última sentencia judicial:
Tribunal de apelación
Tipo de Proceso:
Penal
 
 
Proceder #1:
  • Fase:
    appeal
  • Tribunal

    Título de la Tribunal

    Appeal Court, High Court of Justiciary, Glasgow
     

    Descripción

    The present has been filed by the defendant on the grounds that the trial judge erred in her charge to the jury by providing misleading instructions by failing to give adequate directions on what was required to constitute servitude; and by advising that a vulnerability of the complainer, namely his mental health difficulties, was a relevant factor without directing the jury that they would have to be satisfied that the appellant had been aware of the vulnerability at the time
    The judge dismissed all three grounds stating that the trial judge had sufficiently instructed the jury and also explained the terms to constitute servitude. The judge also stated that the trial judge took time to explain the wider meaning of servitude, first by distinguishing it from slavery; consideration of which she withdrew from the jury. As the judge correctly reasoned, slavery carries with it connotations of ownership, which might not be present in servitude.
    Leave to appeal was granted only in respect of the 7 years imposed on charge. In all the circumstances, and in the absence of evidence that the appellant was aware of the complainer's mental problems, the court will reduce the 7 years selected and substitute 6 years, to run concurrently with the same custodial term on charge.
     

    Víctima / Demandantes de primera instancia

    Víctima:
    KWD
    Sexo:
    Hombre
    Edad:
    20
    Suffered from mental illness

    Acusado / Demandado de primera instancia

    Acusado:
    John Miller
    Sexo:
    Hombre

    Cargos/Acusaciones/Decisiones

    Acusado:
    John Miller
    Veredicto:
    Guilty
    Acusación/Reclamación:
    Trafficking in persons
    Legislación/Código:
    Article 279 of the Criminal Code of Canada (Criminalization of Trafficking of Persons under 18 years of age and adults)

    Section 4(1)(a) of the Human Trafficking and Exploitation (Scotland) Act 2015

    Slavery, servitude and forced or compulsory labour

    (1)

    A person commits an offence if—

    (a)

    the person holds another person in slavery or servitude and the circumstances are such that the person knows or ought to know that the other person is so held, or

    http://www.legislation.gov.uk/asp/2015/12/enacted

     

    Article 4 of the European Convention on Human Rights . Section 4(2)

    ARTICLE 4

    Prohibition of slavery and forced labour

    1. No one shall be held in slavery or servitude.
    2.  No one shall be required to perform forced or compulsory labour.
    3. For the purpose of this Article the term “forced or compulsory labour” shall not include: (a) any work required to be done in the ordinary course of detention imposed according to the provisions of Article5 of this Convention or during conditional release from such detention; (b) any service of a military character or, in case of conscientious objectors in countries where they are recognised, service exacted instead of compulsory military service; (c) any service exacted in case of an emergency or calamity threatening the life or well-being of the community; (d) any work or service which forms part of normal civic obligations.
    https://www.echr.coe.int/Documents/Convention_ENG.pdf

    Tribunal

    Appeal Court, High Court of Justiciary, Glasgow

    version 4.0.0-build-24 2021-08-26T11:30:17.207Z