The New York Times has recently carried a series of articles, offering a critical insight into the failings of the English and Welsh – or, as the NYT insists on calling it, the “British” – criminal justice system.
It is fair to say that the reception has been mixed.
Earlier pieces focused on case studies said to demonstrate the operation of the legal doctrines of “joint enterprise” (or, to be more accurate than the article chooses to be, “parasitic accessorial liability”) and “conspiracy”. These pieces require more comment than can be accommodated in this blogpost, but a quick trawl of the replies from “British” lawyers on Twitter gives some indication of the communal take.
The latest article tells the story of Glodi Wabelua, a man convicted in 2015 of conspiracy to supply Class A drugs (heroin and crack cocaine) in a ‘county lines’ operation running between London and Portsmouth, and then in 2019 of trafficking a person for exploitation – namely the 16 year-old runner whom he had recruited and controlled as part of that conspiracy.
Mr Wabelua received a sentence of six years for the drugs conspiracy (his second such offence, having received a three-year sentence for possessing heroin and crack cocaine with intent in 2010). He then received an additional three and a half-year sentence for the exploitation offence.
The thesis of the NYT piece is that Mr Wabelua was the victim of a novel application by prosecutors of the Modern Slavery Act 2015, a piece of legislation “inspired” by a desire to tackle “cross-border human traffickers”. Or, as the standfirst has it:
“A law written to prevent human trafficking is being wielded against low-level drug dealers”.
But there are more than a few problems with this framing.
Not least how little research there appears to have been into what modern slavery and human trafficking actually mean. For an article adopting the premise that English and Welsh prosecutors and courts are stretching the definition of human trafficking, there is precious little acknowledgment of the 2015 Act’s legislative content, or of its predecessor legislation, or of the wider international legal context.
We should probably dispense first and foremost with the article’s claim that “Mr Wabelua was the first drug dealer to be convicted by a jury under the […] Modern Slavery Act ”. Because he was in fact convicted under section 4(1A)(b) and (5) of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004, of the offence of trafficking a person within the UK for exploitation. An offence committed by him between 2013 and 2014, before the Modern Slavery Act 2015 came into force. This may sound like pedantry, but it’s not – it demonstrates that, whatever is happening here, it is not as a result of a shiny new law.
But what is actually happening? The suggestion, repeated throughout the article, is that the Modern Slavery Act 2015 was primarily aimed at tackling international human trafficking, and that its deployment against those who exploit vulnerable individuals domestically is novel, even – the subtext runs – unjust. But this is simply untrue. More than once the article refers to the plight of trafficked Vietnamese nationals forced to work “in brothels and nail salons and on marijuana farms”, all of whom, of course, were intended to be offered protection within the scope of the MSA. But to suggest that these were the primary intended beneficiaries wholly misunderstands and misrepresents the broad criminality at which the legislation was aimed.
The Modern Slavery Act 2015 was billed as a groundbreaking piece of legislation, which aimed to achieve broadly two purposes: to more effectively prosecute those who exploited the vulnerable, and to enhance protection for those who are victims or at risk of exploitation. Crucially, two types of offence were specified: Slavery, servitude and forced or compulsory labour (section 1), and human trafficking (section 2).
Human trafficking is committed where a person arranges or facilitates the travel of another person with a view to that person being exploited. Importantly for our purposes, “travel” includes travelling within any country – not simply between countries. And among the many forms of exploitation defined by section 3, subsection (6) provides explicitly for the securing of services from children and vulnerable persons. Loosely summarised, where a person attempts to use a child to provide services, having chosen them on the grounds that they are a child and an adult would likely refuse to do what is being asked, that amounts to exploitation.
So the scenario where an adult recruits a child to travel somewhere to commit a crime, having chosen them on the grounds that they are more likely to agree than a mature adult – that act of Faginism right there is classic exploitation.
In case the NYT left you with the impression that this is a quirky little frolic of the UK’s, the Act aims to reflect international law in its definitions of human trafficking and exploitation. The UN Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women and Children (the Palermo Protocol) and the EU Directive on Human Trafficking (2011/36/EU) define trafficking as a process that involves three stages:
- The Act: “recruitment, transportation, transfer, harbouring or reception of persons, including the exchange or transfer of control over those persons”;
- The Means: “by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person”;
- The Purpose: “exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs”.
The NYT makes no concession to this international framework. Nor the fact that both the Protocol and the Directive make clear that a child – somebody under eighteen – cannot consent to being exploited, something repeated in the Modern Slavery Act. Instead, the author appears to accept uncritically the portrayal of the relationship between adult drug organiser and child runner as one of equal bargaining power.
Now it is right to observe that the type of offences prosecuted under the Modern Slavery Act has evolved since 2015. But here’s the key: that was very much the design, the word “Modern” offering something of a cue. The Independent Review of the Modern Slavery Act 2015, published in May 2019, noted that “since the Act received Royal Assent, there has been increasing recognition of forms of exploitation that fall under the ‘umbrella’ of modern slavery, such as orphanage trafficking and ‘county lines’” and reiterated the intention of Parliament that the 2015 Act be sufficiently flexible to prosecute “new and emerging forms of modern slavery”.
Again, I emphasise the point because of its absence in the article: This is not legislation being stretched beyond Parliament’s intentions by tricksy prosecutors and malevolent courts. It is the legislation working precisely as intended. The rise in “county lines” prosecutions – where drug dealers based in the cities control a distribution network out into smaller towns and cities, often recruiting children and vulnerable adults, is – as the NYT article acknowledges – a relatively modern, and growing, phenomenon. Organised crime evolves. The law has to try to keep up. Boiled down to its essence, the NYT’s complaint appears to be that this form of slavery is too modern to be caught by Modern Slavery laws.
The reality, inconvenient as it may be to a satisfying narrative, is that drug dealers recruiting children and mentally vulnerable adults to undertake the most dangerous aspects of the trade – the hands-on couriering of substantial quantities of Class A drugs – fall squarely within the accepted international and domestic definitions of human traffickers.
Now there are aspects of Mr Wabelua’s personal story which may well command sympathy. His background has a grimly familiar resonance for those us who work in the criminal courts. The state returning a few years after the event to further prosecute him for modern slavery, having already secured a conviction for the drugs conspiracy, has an unpleasant taste to it. It is right that Mr Wabelua was close in age to the child whom he was exploiting (although the comparative maturity and worldliness of a 20 year-old who had served a substantial prison sentence and a 16 year-old might be questioned.) The stringent licence conditions that inevitably attach to somebody with a proven proclivity for re-entering Class A drugs conspiracies the moment they leave prison – those would of course hinder anybody’s attempt at reverting to a “normal” life. His efforts at self-improvement since his release are laudable.
But the presentation of the personal, like the presentation of the legal, sacrifices accuracy in key respects. The suggestion that the nature of the relationship between Mr Wabelua and his 16 year-old charge was a business arrangement among equals, ignored by a legislative regime blind to the reality of life on the streets, is belied not only by the most cursory understanding of child exploitation, but by the Court of Appeal judgments in his case. These reveal that Mr Wabelua’s defence at trial was that he believed the youth in question to be over 18, a suggestion rejected by the jury and which, on a plain reading of the NYT article in which he openly discusses their lengthy acquaintanceship, he now appears to admit was untrue. Likewise the painting of Mr Wabelua as a “low-level drug dealer”, of taking “a modest step up — from day labourer to shift supervisor”, in contrast to the Court of Appeal’s characterisation of him having played a “leading role” in a sophisticated Class A drugs conspiracy involving the deliberate exploitation of vulnerable adults and children, as reflected by his lengthy sentence (a ‘low level dealer’ would not have received six years’ custody on a guilty plea under the Sentencing Guidelines then in force.)
The most infuriating aspect of this piece, for me, is that I urgently endorse the desire to tell the stories and expose the aching humanity of those dragged in and out of a criminal justice system that too often operates like a cat eating and regurgitating its own vomit. Defendants – even those convicted of serious offences involving exploiting children and vulnerable adults into couriering Class A drugs – are more than the cartoon villains that our media culture encourages us to fear and loathe. We should have sympathy for people doing their best to put their lives straight, and finding that the reach of the state is frustrating their best efforts. This is the kind of criminal justice reporting we need more of, not less.
But in its desire to conjure the perfect victim of the cruel British (sic) state, the NYT has fallen into the same trap as our tabloid press; the denial of nuance in the solicitation of outrage. Its uncritical hagiography of Mr Wabelua as a victim of the “government” (mentioned more than once, despite the government playing no part in prosecutions in England and Wales) inventively manipulating the law against a “low-level drug dealer”, does no service – indeed, occasions significant damage – to the cause of opening the public’s eyes to the realities of their justice system.
It is entirely possible for Mr Wabelua to have been properly convicted of serious offences. To have been, by any sensible domestic or international standard, guilty of exploiting children by corralling them into serious crime. To feel understandable frustration that the protections now available to trafficked teenagers were not in force when he was seventeen, while simultaneously remaining in denial over the seriousness of his perpetuation of the cycle of exploitation. To present inconsistently and with complexity; capable both of piercing insight and obvious self-deception. And, whatever his errors or flaws, to have emerged as somebody sincerely intent on, and evidently capable of, turning bad into good.
That is a story I would pay a subscription to read.