Criminal exploitation: practitioner guidance

3. What is human trafficking and why is this relevant when talking about criminal exploitation?

14. Human trafficking and exploitation is the commodification and abuse of people for gain. It is a gross abuse of human rights, happens globally and harms individuals and communities across the world, including in Scotland. Not all cases of human trafficking or exploitation are easy to understand or detect and often the crime may look like something else, such as people smuggling, dealing drugs or working illegally. Some forms of criminal exploitation may be relevant to an offence of human trafficking. Criminal exploitation is not currently a criminal offence but is a component part of the offence of human trafficking.

15. Under the Human Trafficking and Exploitation (Scotland) Act 2015, trafficking involves a person taking a relevant action and doing so with a view to another person being exploited. Relevant action means an action which is ANY of the following:

a) The recruitment of another person;

b) The transportation or transfer of another person;

c) The harbouring or receiving of another person;

d) The exchange or transfer of control over another person; or

e) The arrangement or facilitation of any of the actions mentioned in a) to d).

16. It is irrelevant whether the person consents to any part of the relevant action.

17. The second part of the offence relates to exploitation. The person doing the relevant action must either be doing so with the intention of exploiting the other person or, in the knowledge that the person is likely to be exploited. Section 3 of the Act provides that the following four types of exploitation are relevant for the purposes of the human trafficking offence: a) Slavery, servitude and forced or compulsory labour; b) Prostitution or sexual exploitation; c) Removal of organs; d) Securing services and benefits. Exploitation must fall within the definition outlined in section 3 of the Act for there to be a criminal offence in terms of section 1 of the 2015 Act. For further information on the four types of exploitation, please see Part One of the Guide to the Act (2017).

18. There are some common misconceptions that for trafficking to exist international/domestic borders need to have been crossed. Movement of a victim is not required at all for trafficking to exist. As outlined in paragraph 15, the relevant action may be the recruitment of another person, or the exchange or transfer of control over another person.

19. In addition to the offence of human trafficking, the Human Trafficking and Exploitation (Scotland) Act 2015 contains a separate offence of slavery, servitude and forced or compulsory labour. This is set out in section 4 of the Act. A person commits an offence where they know or ought to know that they are holding another person in slavery or servitude. A person also commits an offence where the person knows or ought to know that they are requiring another person to perform forced or compulsory labour.

20. Section 4 of the Act makes it clear that when deciding whether the offence has been committed, then the personal circumstances of a person which may make them more vulnerable (for example the person being a child), are to be taken into account. It also provides that the fact that a person consents to being treated in this way does not mean that the offence has not been committed.