Criminal Law (Human Trafficking) Act 2008

1.. Interpretation.

1.— In this Act—

“Act of 1998” means the Child Trafficking and Pornography Act 1998;

“Act of 2001” means the Sex Offenders Act 2001;

“child” means a person under the age of 18 years;

F1[‘exploitation’means—

(a) labour exploitation,

(b) sexual exploitation,

(c) exploitation consisting of the removal of one or more of the organs of a person, or

(d) exploitation consisting of forcing a person to engage in—

(i) an activity that constitutes an offence and that is engaged in for financial gain or that by implication is engaged in for financial gain, or

(ii) an activity in a place other than the State that—

(I) constitutes an offence under the law of that place and would, if done in the State, constitute an offence, and

(II) is engaged in for financial gain or that by implication is engaged in for financial gain;]

F2[‘labour exploitation’means, in relation to a person (including a child)—

(a) subjecting the person to forced labour (including forcing him or her to beg),

(b) forcing the person to render services to another person, or

(c) enslavement of the person or subjecting him or her to servitude or a similar condition or state;]

“sexual exploitation” means, in relation to a person—

(a) the production of pornography depicting the person either alone or with others,

(b) causing the person to engage in sexual activity for the purpose of the production of pornography,

(c) the prostitution of the person,

(d) the commission of an offence specified in the Schedule to the Act of 2001 against the person; causing another person to commit such an offence against the person; or causing the person to commit such an offence against another person, or

(e) otherwise causing the person to engage or participate in any sexual, indecent or obscene act;

“trafficks” means, in relation to a person (including a child)—

(a) procures, recruits, transports or harbours the person, or

(i) transfers the person to,

(ii) places the person in the custody, care or charge, or under the control, of, or

(iii) otherwise delivers the person to,

another person,

(b) causes a person to enter or leave the State or to travel within the State,

(c) takes custody of a person or takes a person—

(i) into one’s care or charge, or

(ii) under one’s control,

or

(d) provides the person with accommodation or employment.

F3[‘beg’has the same meaning as it has insection 1(2) of theCriminal Justice (Public Order) Act 2011;

‘forced labour’means a work or service which is exacted from a person under the menace of any penalty and for which the person has not offered himself or herself voluntarily, but shall not include any of the following:

(a) a work or service exacted by virtue of compulsory military service laws for work of a purely military character;

(b) a work or service which forms part of the normal civic obligations of the citizens of a fully self-governing country;

(c) a work or service exacted from a person as a consequence of a conviction in a court of law if—

(i) the work or service is carried out under the supervision and control of a public authority, and

(ii) the person is not hired to, or placed at the disposal of, a person who is not a public authority;

(d) a work or service exacted in a case of an emergency that endangers or that may endanger the existence or the well-being of the whole or part of the population, including war, fire, flood, famine, earthquake, violent epidemic or epizootic diseases or invasion by animal, insect or vegetable pests;

(e) a minor communal service of a kind which, being performed by the members of the community in the direct interest of the community, can be considered as a normal civic obligation incumbent upon the members of the community, and where the members of the community, or their direct representatives, have the right to be consulted in regard to the need for that service;]

2.. Trafficking, etc., of children.

2.— (1) A person who trafficks a child for the purposes of the exploitation of the child shall be guilty of an offence.

(2) A person who—

(a) sells a child, offers or exposes a child for sale or invites the making of an offer to purchase a child, or

(b) purchases or makes an offer to purchase a child,

shall be guilty of an offence.

(3) A person who causes an offence under subsection (1) or (2) to be committed shall be guilty of an offence.

(4) A person who attempts to commit an offence under subsection (1), (2) or (3) shall be guilty of an offence.

(5) A person guilty of an offence under this section shall be liable upon conviction on indictment—

(a) to imprisonment for life or a lesser term, and

(b) at the discretion of the court, to a fine.

(6) In this section “exploitation” does not include sexual exploitation.

3.. Trafficking, taking, etc., of child for purpose of sexual exploitation.

3.— Section 3 (amended by section 6 of the Criminal Law (Sexual Offences) (Amendment) Act 2007) of the Act of 1998 is amended by—

(a) the substitution of the following subsections for subsections (1) and (2):

“(1) A person who trafficks a child for the purposes of the sexual exploitation of the child shall be guilty of an offence and shall be liable upon conviction on indictment—

(a) to imprisonment for life or a lesser term, and

(b) at the discretion of the court, to a fine.

(2) A person who—

(a) sexually exploits a child, or

(b) takes, detains, or restricts the personal liberty of, a child for the purpose of his or her sexual exploitation,

shall be guilty of an offence and shall be liable upon conviction on indictment—

(i) to imprisonment for life or a lesser term, and

(ii) at the discretion of the court, to a fine.”,

and

(b) the substitution of the following subsections for subsection (3):

“(3) A person who causes another person to commit an offence under subsection (1) or (2) shall be guilty of an offence and shall be liable upon conviction on indictment—

(a) to imprisonment for life or a lesser term, and

(b) at the discretion of the court, to a fine.

(4) A person who attempts to commit an offence under subsection (1), (2) or (3) shall be guilty of an offence and shall be liable upon conviction on indictment—

(a) to imprisonment for life or a lesser term, and

(b) at the discretion of the court, to a fine.

(5) In this section—

‘child’ means a person under the age of 18 years;

‘sexual exploitation’ means, in relation to a child—

(a) inviting, inducing or coercing the child to engage in prostitution or the production of child pornography,

(b) the prostitution of the child or the use of the child for the production of child pornography,

(c) the commission of an offence specified in the Schedule to the Sex Offenders Act 2001 against the child; causing another person to commit such an offence against the child; or inviting, inducing or coercing the child to commit such an offence against another person,

(d) inviting, inducing or coercing the child to engage or participate in any sexual, indecent or obscene act, or

(e) inviting, inducing or coercing the child to observe any sexual, indecent or obscene act, for the purpose of corrupting or depraving the child,

and ‘sexually exploits’ shall be construed accordingly;

‘trafficks’ means, in relation to a child—

(a) procures, recruits, transports or harbours the child, or—

(i) transfers the child to,

(ii) places the child in the custody, care or charge, or under the control, of, or

(iii) otherwise delivers the child to,

another person,

(b) causes the child to enter or leave the State or to travel within the State,

(c) takes custody of the child or takes the child—

(i) into one’s care or charge, or

(ii) under one’s control,

or

(d) provides the child with accommodation or employment.”.

4.. Trafficking of persons other than children.

4.— (1) A person (in this section referred to as the “trafficker”) who trafficks another person (in this section referred to as the “trafficked person”), other than a child or a person to whom subsection (3) applies, for the purposes of the exploitation of the trafficked person shall be guilty of an offence if, in or for the purpose of trafficking the trafficked person, the trafficker—

(a) coerced, threatened, abducted or otherwise used force against the trafficked person,

(b) deceived or committed a fraud against the trafficked person,

(c) abused his or her authority or took advantage of the vulnerability of the trafficked person to such extent as to cause the trafficked person to have had no real and acceptable alternative but to submit to being trafficked,

(d) coerced, threatened or otherwise used force against any person in whose care or charge, or under whose control, the trafficked person was for the time being, in order to compel that person to permit the trafficker to traffick the trafficked person, or

(e) made any payment to, or conferred any right, interest or other benefit on, any person in whose care or charge, or under whose control, the trafficked person was for the time being, in exchange for that person permitting the trafficker to traffick the trafficked person.

(2) In proceedings for an offence under this section it shall not be a defence for the defendant to show that the person in respect of whom the offence was committed consented to the commission of any of the acts of which the offence consists.

(3) A person who trafficks a person who is mentally impaired for the purposes of the exploitation of the person shall be guilty of an offence.

(4) A person who—

(a) sells another person, offers or exposes another person for sale or invites the making of an offer to purchase another person, or

(b) purchases or makes an offer to purchase another person,

shall be guilty of an offence.

(5) A person who causes an offence under subsection (1, (3) or (4) to be committed shall be guilty of an offence.

(6) A person who attempts to commit an offence under subsection (1), (3), (4) or (5) shall be guilty of an offence.

(7) A person guilty of an offence under this section shall be liable upon conviction on indictment—

(a) to imprisonment for life or a lesser term, and

(b) at the discretion of the court, to a fine.

(8) In this section “mentally impaired” has the same meaning as it has in the Criminal Law (Sexual Offences) Act 1993.

4A. F4[ Aggravating factor: offences under section 2 or 4 committed by public official during performance of duties.

4A.—(1) Where a court is determining the sentence to be imposed on a person for an offence under section 2 or 4, the fact that the offence was committed by a public official during the performance of his or her duties as such public official shall be treated for the purpose of determining the sentence as an aggravating factor.

(2) Accordingly, the court shall (except where the sentence for the offence is one of imprisonment for life or where the court considers that there are exceptional circumstances justifying its not doing so) impose a sentence that is greater than that which would have been imposed in the absence of such factor.

(3) The sentence imposed shall not be greater than the maximum sentence permissible for the offence.

(4) In this section—

‘public body’shall be construed in accordance with theEthics in Public Office Act 1995;

‘public official’means an officer or employee of a public body.]

5.. Soliciting or importuning for purposes of prostitution of trafficked person.

5.— (1) Where, for the purposes of the prostitution of a trafficked person, a person (other than that trafficked person) solicits or importunes another person, including that trafficked person, in any place, he or she shall be guilty of an offence.

(2) A person (other than the trafficked person in respect of whom the offence under subsection (1) is committed) who accepts, or agrees to accept a payment, right, interest or other benefit from a person for a purpose mentioned in subsection (1) shall be guilty of an offence.

F5[(2A) A person who pays, gives, offers or promises to pay or give a person (including the trafficked person) money or any other form of remuneration or consideration for the purposes of the prostitution of a trafficked person shall be guilty of an offence.]

(3) A person guilty of an offence under this section shall be liable—

(a) on summary conviction to a fine not exceeding €5,000 or a term of imprisonment not exceeding 12 months, or both, or

(b) on conviction on indictment to a fine or a term of imprisonment not exceeding 5 years, or both.

(4) In proceedings for an offence under this section it shall be a defence for the defendant to prove that he or she did not know and had no reasonable grounds for believing, that the person in respect of whom the offence was committed was a trafficked person.

(5) This section is in addition to, and not in substitution for, F6[sections 7 and 7A of the Act of 1993 in so far as an offence under those sections] is committed by, or in respect of, a trafficked person.

(6) In this section—

“Act of 1993” means the Criminal Law (Sexual Offences) Act 1993;

“solicits or importunes” has the same meaning as it has in the Act of 1993;

“trafficked person” means—

(a) a person in respect of whom an offence under subsection (1) or (3) of section 4 has been committed, or

(b) a child who has been trafficked for the purpose of his or her exploitation.

6.. Offences by bodies corporate.

6.— Where an offence under this Act is committed by a body corporate and is proved to have been so committed with the consent or connivance of or to be attributable to any neglect on the part of any person, being a director, manager, secretary or other officer of the body corporate, or a person who was purporting to act in such capacity, that person shall, as well as the body corporate, be guilty of an offence and shall be liable to be proceeded against and punished as if he or she were guilty of the first-mentioned offence.

7.. Jurisdiction.

7.— (1) Where a person who is an Irish citizen or ordinarily resident in the State does an act in a place other than the State that, if done in the State, would constitute an offence under section 2 or 4, or section 3 (other than subsections (2A) and (2B)) of the Act of 1998, he or she shall be guilty of an offence and shall be liable on conviction on indictment to a fine, or imprisonment for life, or both.

(2) Where a person does an act in relation to an Irish citizen in a place other than the State that, if done in the State, would constitute an offence under section 2 or 4, or section 3 (other than subsections (2A) and (2B)) of the Act of 1998, he or she shall be guilty of an offence and shall be liable on conviction on indictment to a fine, or imprisonment for life, or both.

(3) Where a person conspires with, or incites, in the State, another person to do an act in a place other than the State that, if done in the State, would constitute an offence under section 2 or 4, or section 3 (other than subsections (2A) and (2B)) of the Act of 1998, he or she shall be guilty of an offence and shall be liable on conviction on indictment to a fine, or imprisonment for life, or both.

(4) Where a person who is an Irish citizen or ordinarily resident in the State conspires with, or incites, in a place other than the State, another person to do an act in a place other than the State that, if done in the State, would constitute an offence under section 2 or 4, or section 3 (other than subsections (2A) and (2B)) of the Act of 1998, he or she shall be guilty of an offence and shall be liable on conviction on indictment to a fine, or imprisonment for life, or both.

(5) Where a person conspires with, or incites, in the State or in a place other than the State, another person to do an act in relation to an Irish citizen in a place other than the State that, if done in the State, would constitute an offence under section 2 or 4, or section 3 (other than subsections (2A) and (2B)) of the Act of 1998, he or she shall be guilty of an offence and shall be liable on conviction on indictment to a fine, or imprisonment for life, or both.

(6) Where a person conspires with, or incites, in a place other than the State, a person who is an Irish citizen or ordinarily resident in the State to do an act in a place other than the State that, if done in the State, would constitute an offence under section 2 or 4, or section 3 (other than subsections (2A) and (2B)) of the Act of 1998, he or she shall be guilty of an offence and shall be liable on conviction on indictment to a fine, or imprisonment for life, or both.

(7) Where a person attempts to commit an offence under subsection (1), (2), (3), (4), (5) or (6), he or she shall be guilty of an offence and shall be liable on conviction on indictment to a fine, or imprisonment for life, or both.

(8) For the purposes of this section a person shall be deemed to be ordinarily resident in the State if—

(a) he or she has had his or her principal residence in the State for the period of 12 months immediately preceding the alleged commission of the offence,

(b) it is a company registered under the Companies Acts, or

(c) in the case of any other body corporate, it is established under the law of the State.

8.. Proceedings relating to offences committed outside State.

8.— Proceedings for an offence under section 7 may be taken in any place in the State and the offence may for all incidental purposes be treated as having been committed in that place.

9.. Double jeopardy.

9.— (1) Where a person has been acquitted of an offence in a place other than the State, he or she shall not be proceeded against for an offence under this Act consisting of the alleged act or acts constituting the first-mentioned offence.