Absence of legislation no excuse for failure to protect against domestic servitude

CN v United Kingdom [2012] ECHR 1911 (13 November 2012) Summary

The European Court of Human Rights found against the Government of the United Kingdom where authorities failed to adequately investigate allegations of forced domestic servitude because at the time of the offence there was a lacuna in the law.


The applicant travelled to the UK from Uganda in 2002 in order to escape the sexual and physical violence she had experienced in Uganda. A relative helped the applicant to obtain a false passport and visa but upon arrival in the UK, the relative confiscated these documents. Shortly after the applicant’s arrival in the UK, her relative introduced her to an agent who ran a business providing carers and security personnel for profit. The applicant began to work as a live-in carer for an elderly Iraqi couple who required constant and demanding care. The applicant was given a few hours leave once a month but on these occasions she was picked up by the agent and taken to her relative’s house. The applicant’s relative constantly warned her not to engage with strangers, he threatened her with denunciation to the immigration authorities and failed to keep the applicant’s wage as agreed (the agent paid the applicant’s wage to the relative to “protect” the applicant from being discovered by immigration authorities). The applicant managed to alert the authorities to her situation and, after collapsing in public, she was diagnosed with HIV and psychosis.

The applicant applied for asylum which was rejected by the Secretary of State for the Home Department on the grounds that the applicant could access protection in Uganda to prevent further sexually motivated attacks and that the applicant could have escaped from her relative earlier than she did. The applicant appealed this decision which was rejected by an Immigration Judge due to the “implausible” nature of the case.

The Metropolitan Police Human Trafficking Team “investigated” the applicant’s allegations but denied that there was any evidence of trafficking for domestic servitude. The police refused to advance the case any further, eventually conceding that “there was no offence in English criminal law which applied to the facts of the case”, that is, no legislation existed at the time in relation to “sole and specific allegations of domestic servitude where trafficking is not a factor”. The criminal offence of slavery, servitude and forced or compulsory labour under the Coroners and Justice Act 2009 received royal assent on 12 November 2009, three years after the applicant escaped the situation of forced labour.

The applicant complained that at the time of her ill-treatment the UK Government was in breach of its positive obligations under article 4 of the International Labour Organisation Forced Labour Convention to have in place criminal laws penalising forced labour and servitude. Article 4 of the Convention provides that no one shall be held in slavery or servitude and that no one shall be required to perform forced or compulsory labour.

The UK Government argued that the applicant’s case was manifestly ill-founded and therefore inadmissible because there was insufficient evidence to conclude that the applicant had been subjected to the kind of treatment prohibited by article 4 of the Convention. The Government further argued that the protection afforded by English law against conduct prohibited by article 4 was sufficient to discharge the positive obligation on the State.


The European Court of Human Rights found that the police investigation into the applicant’s complaints of domestic servitude was ineffective due to the absence of specific legislation criminalising such treatment.

The Court referred to its previous decision in Siliadin v France where it found that provisions in the French Criminal Code, which concerned exploitation through labour, were not sufficiently specific and were too restrictive to protect the applicant’s rights under article 4 of the Convention. In view of its decision in Siliadin, the Court found that the legislative provisions in force in the UK at the relevant time were inadequate to afford practical and effective protection against treatment falling within the scope of article 4 of the Convention. The Court found that the police were unable to investigate and penalise the treatment complained of as they were limited to investigating and penalising existing criminal offences such as trafficking, false imprisonment, kidnapping, grievous bodily harm and others.

The Court awarded the applicant EUR 8,000 in non-pecuniary damages and EUR 20,000 in costs.

Relevance to the Victorian Charter

The right to freedom from slavery, servitude or forced labour in article 4 of the Convention is reflected in article 11 of the Charter, which provides that “a person must not be held in slavery or servitude [and] must not be made to perform forced or compulsory labour”.

While this judgment will not be binding on Victorian courts, it may be relevant as the wording of the Convention and Charter is essentially identical.

Australian anti-slavery jurisprudence has largely focused on trafficking into prostitution. In recent years, a focus has shifted toward other types of slavery such as domestic servitude. The Queensland Court of Appeal in R v Kovacs [2009] 2 Qd R 51 as well as the High Court in R v Tang (2008) 237 CLR 1 have taken a broad view of the definition of “slavery” in the Criminal Code Act 1995 (Cth) with the High Court noting that “more subtle forms of control and possession rather than physical threats and force can be used to establish ‘slavery’ under the Criminal Code”.

These recent Australian decisions represent a willingness on the part of the judicature to protect those vulnerable persons not protected by obvious means. This is in stark contrast to the UK authorities in CN v United Kingdom, where a lacuna in the law remained largely unaddressed for a period of more than three years.

The decision can be found online at: http://www.bailii.org/eu/cases/ECHR/2012/1911.html.

Emily Brott is solicitor at King & Wood Mallesons.