Trafficking in persons - decision on no case to answer.
[2023]JRC071
Royal Court
(Samedi)
27 April 2023
|
Before :
|
Sir John Saunders, Commissioner
|
The Attorney General
-v-
Shay John Edward Bester
M. R. Maletroit Esq., Crown Advocate.
Advocate I. C. Jones for the Defendant.
JUDGMENT
THE COMMISSIONER:
1.
Advocate
Jones on behalf of the Defendant has made a submission of no case to answer on Count
1 of the Indictment
2.
Count 1
alleges against the Defendant that he trafficked a person contrary to Article
4(1) of the Crime (Transnational Organised Crime) (Jersey) Law 2008. The particulars of the offence are that
the Defendant intentionally arranged for a teenage girl to enter Jersey for the
purposes of her physical exploitation namely the use of her for sexual
purposes.
3.
The
teenage girl was 17 at the time of the allegation. She, we now know, was affected by ASD,
autistic spectrum disorder, at the time, although it had not then been
diagnosed and was not known to the Defendant. She was to his knowledge 17 years of age,
and he knew that she was very disturbed in that he knew that she self-harmed
and had attempted to kill herself.
4.
This is,
it appears, the first prosecution under this section of this Act in Jersey.
5.
The
essence of Advocate Jones’ submission is that to be an offence under this
section, the Prosecution have to prove that the sexual purpose for arranging
the entry into Jersey was an unlawful sexual purpose. It is argued that there is no evidence or
no sufficient evidence of an unlawful sexual purpose to leave the count to the
jury.
6.
The Prosecution
case is that any sexual purpose will suffice and it is not required that it is
an unlawful sexual purpose. They
further argue that even if the Defence were to be correct, the submission must
still fail as there is evidence from which the Prosecution can properly infer
that the Defendant’s purpose in arranging for her to visit Jersey was an
unlawful sexual purpose.
7.
While it
may be that the Prosecution are correct on their alternative submission, in
part because sexual offences are alleged in the indictment which occurred after
the girl had arrived in Jersey, I have to make a decision on whether the first
part of the Defence submission is correct that is that the sexual purpose in
this Article has to be an unlawful sexual purpose to amount to an offence. I will need to direct the jury on what
‘sexual purposes’ mean.
8.
By virtue
of Article 4(2) different considerations apply to people who are said to be
exploited who are aged 18 or over than to those who are under 18. As the girl was 17 I shall ignore the
provisions relevant to those that are 18 or over. The distinction may however be important
as an indication that the Jersey legislature wished to provide greater
protection for girls up to the age of 18 than is provided in England and Wales.
9.
The
relevant parts of Article 4 for this submission are as follows:
“4. Trafficking in persons
(1) A
person commits an offence if, for the purposes of the physical exploitation of
another person, he or she –
(a) recruits
or arranges for the other person to enter a State, or travel within a State;
…
(6) In
this Article, any reference to the physical exploitation of a person means any
of the following –
(a) the
use of the person for sexual purposes;
…
(7) Paragraph
(6)(a) includes, but is not limited to including, any of the following –
(a) the
taking, or transmission, by any means, of an image of the person engaged in
real or simulated sexual activities;
(b) the
taking, or transmission, by any means, of images of the person’s
genitalia, anus, or breasts, for the purpose of obtaining, directly or
indirectly, a material benefit for the person or any other person;
(c) the
person’s participation, for the purpose of obtaining, directly or
indirectly, a material benefit for the person or any other person, in a
performance or display, or other employment, that involves the exposure of the
person’s genitalia, anus or breasts.
(8) Paragraph
(6)(a) does not include –
(a) the
taking, in good faith, for purposes primarily other than the exposure of body
parts of the person for the sexual gratification of a viewer, of an image of
the person as part of an artistic or cultural performance or display;
10. It is accepted that there is evidence to go to
the jury that the Defendant arranged for the girl to enter Jersey. There is also evidence that the purpose
of the Defendant in doing that was to have a sexual relationship with her.
11. That evidence is, in brief, grooming online for
some time before the girl left to go to Jersey including discussions on sexual
matters. Further there is evidence
that the Defendant was interested in having sex with much younger partners and
when the girl came to Jersey they did have sex together.
12. None of that is in dispute. The issue is whether the Prosecution have
to go further and satisfy the jury that the Defendant’s intention was to
have unlawful sex with the girl.
13. In my judgment that is not necessary. The first and principal reason is that
that is not what the Law says. Article 4(6) says that “any
reference to the physical exploitation of a person means ……the use
of any person for sexual purposes”. It does not say any ‘unlawful
sexual purpose’. The Prosecution
also rely correctly in my judgment on Article 4(7)(c) which sets out matters
which are included in sexual purposes which are not in themselves necessarily
unlawful. That is a clear
indication, in my judgment, that the interpretation put on ‘sexual
purposes’ by the Defence is wrong.
14. The words in the Article are in my judgment
clear. There is no ambiguity and it
does not require the insertion of other words to make it clear.
15. The Defence rely on what they say are the
consequences of the interpretation that the Prosecution put on this section. They argue that if the Prosecution
interpretation were correct the results would be ludicrous. It would mean, for example, that if an 18
year old from England invites a 17 year old to join him/her on a trip to Jersey
for the purposes of having sex because their parents prevent them doing so in
England, he/she would be committing an offence. That is, say the Defence, a surprising
result and the Article would also cover an 18 year old and a 17 year old
travelling within Jersey to have sex.
16. I accept that those are surprising results and
would trust that prosecutorial discretion would result in no prosecution being
brought. It is not open to me as a
matter of statutory construction to alter the natural meaning of the words
because some of the consequences of giving that meaning are surprising. Part of the reason for the legislation
being drafted in the way it is may be because it has been introduced to comply
with a United Nations Convention where there is particular emphasis on
protecting persons under the age of 18.
17. Further it is pointed out by Advocate Jones
that the equivalent legislation in
England and Wales which is the Modern Slavery Act 2015 catches only
sexual behaviour which involves the commission of an offence.
18. While legislation in Jersey sometimes derives from legislation in
England and Wales, there is no indication of that in this Jersey Law and
accordingly the position in England and Wales is not relevant to my
considerations.
19. In my judgment there is no reason to depart
from the clear words of the Law. There
has been no suggestion that the Prosecution interpretation is unlawful and it
is accordingly impossible to interpret the Law in the way advocated by the
Defence.
20. For those reasons I reject the submission of no case to
answer.
Authorities
Crime (Transnational Organised Crime)
(Jersey) Law 2008.
Modern Slavery Act 2015