UK sentencing guidelines for modern slavery offences published

New Sentencing Council guidelines will apply for adult offenders convicted under the 2015 Modern Slavery Act (MSA) in the courts of England and Wales from 1 October 2021. Sean Elson of Pinsent Masons, the law firm behind Out-Law, said that the publication “is further evidence that this issue is becoming so much more important and relevant to law enforcement bodies in the UK”.

“The guidelines follow an increasing number of cases involving modern slavery and a consequent desire to ensure consistency in sentencing,” he said. “That of itself underlines the increasing appetite of law enforcement to take such cases – as well as their increasing success in securing conviction.”

“While the guidelines apply to individuals, reputational damage is likely to follow if businesses are found to have offenders in their supply chain – which can be an indicator that efforts to ensure supply chains are free of modern slavery are inadequate. Recent cases confirm this: for example, when BooHoo was reported to be paying its factory workers £3.50/hour while the UK minimum wage was £8.72 for workers over 25, its value fell by more than £500 million, almost one fifth of its value,” he said.

The guidelines should be followed by judges and magistrates in England and Wales sentencing adults who are guilty of offences under sections 1, 2, 4 and 30 of the MSA. These offences include holding someone in slavery, servitude or forced labour; human trafficking; committing an offence with the intention of committing a human trafficking offence; and breach of a slavery and trafficking prevention order or a slavery and trafficking risk order.

Under the guidelines, offenders coerced or intimidated into committing slavery or human trafficking offences, or who are themselves victims, will have this taken into account by the courts and may receive comparatively lower sentences as a result.

Separate to the MSA criminal sanctions are the corporate transparency obligations. Organisations meeting a £36 million turnover threshold that carry on a business or part of a business in the UK, and that provide goods or services, are required by section 54 of the MSA to report annually on the steps that they have taken during the financial year to ensure that slavery and human trafficking are not taking place in their own business or in their supply chains. The government may issue civil proceedings to require an organisation within scope to produce a statement if it does not do so, but there are no criminal penalties for non-compliance.

The government has, however, committed to extending the reporting requirements to public bodies, and to requiring public and commercial organisations to publish their annual statements on a new digital reporting portal. The foreign secretary, Dominic Raab, has also indicated his desire to legislate for fines for businesses that do not comply with the transparency requirements when parliamentary time allows.

“The public and political will to affect change in this area is clearly in evidence,” Elson said.

“There has been some criticism that this does not – at least so far – extend to criminal sanctions for organisations which fail to comply with their obligations in this respect. However, the government seems keen to avoid being overly prescriptive in its stance in relation to modern slavery reporting, using the market to drive compliance rather than threats of enforcement. The Sentencing Council’s guideline will help to drive home the very real consequences for perpetrators for modern slavery, and it is hoped will encourage organisations to take their supply chain responsibilities seriously, or face reputational harm greater than any fine,” he said.