17/12/2025
Written by: James Robottom
The late Professor Conor Gearty KC memorably called the English tendency to view our law as the great protector of human rights and civil liberties an example of us living on “fantasy island”. Beware the English exceptionalism, he warned, of those who argue the common law offers, and has always offered, just as great protection of our fundamental rights as human rights law.
Nowhere is that more true that in respect of the modern law of slavery. Romantic paeans to rights in English law invariably refer to Lord Mansfield’s 1772 judgment in Somerset v Stewart 98 ER 499. But a handful of 18th century habeas corpus applications aside, it never operated to protect the rights of victims of servitude within the jurisdiction. The Slave Trade Act 1807, the Slavery Abolition Act 1833, and Britain’s century international campaign against the trade were directed at ending slavery outside the jurisdiction. With no domestic English slave trade to speak of, English law assumed the air of England was simply too pure for a slave to breath. Slavery was never an offence at common law or statute, though it was frequently exported as an offence to Empire. Thus, in his 1883 History of the Criminal Law of England, Sir James Fitzjames Stephen, whose father drafted the Slavery Abolition Act 1833, wrote that the provisions of the Indian criminal Code on slavery and forced labour were “most elaborate”, in “singular contrast” to “the meagreness of the law of England on these subjects.”
This history provides the backdrop to the 2012 decision of the European Court of Human Rights in CN v United Kingdom (2013) 56 EHRR 24. By the mid 1990s, there was increasing public recognition of the grievous exploitation of domestic servants by diplomats in the UK, and of the risks of human trafficking for labour exploitation and prostitution to vulnerable migrants. The first English offences of human trafficking and slavery were not the product of Parliamentary or judicial ingenuity. They came directly from international law. The 1999 Palermo Protocol to the UN Convention against Transnational Organised Crime 2000 obliged Parliament to pass the first human trafficking offence under the Asylum and Immigration (Treatment of Claimants) Act 2004. But human trafficking’s focus is, in essence, the recruitment or movement of people. It is one thing to sell, deceive, or transport someone into slavery – and quite another to hold another person in it.
The applicant in CN was a victim of domestic servitude. Having been subject to sexual and physical violence in Uganda, she travelled consensually to the UK in 2002. When she arrived a relative took her passport and put CN to long hours of unpaid work for others for his own profit for many years. She was later held in her relative’s house and prevented from leaving. She ultimately managed to flee and contact the police. Before the police arrived, she collapsed and was taken to hospital, where she was diagnosed as HIV positive, and suffering from psychosis.
The Applicant’s account was considered credible by the police, but there was insufficient evidence on the facts to make out human trafficking. As there was no English offence in place at that time covering slavery, the investigation could not progress. CN applied to the European Court of Human Rights, which held that the UK had breached its positive obligation under Article 4 ECHR to criminalise conduct by private persons amounting to slavery, servitude and forced or compulsory labour. It further found there had been a failure to conduct an effective investigation.
The twist in this tale is that by the time CN was decided, Parliament had actually passed its first ever slavery offence – holding someone in slavery, servitude or forced or compulsory labour under s.71 of the Coroners and Justice Act 2009. The judgment in CN followed its very similar 2006 judgment in respect of a child victim of domestic servitude and French criminal law in Siliadin v UK [2005] ECHR 545, (2006) 43 EHRR 16. Seeing the writing on the wall in Strasbourg, the government ensured the first offence of slavery in English history was on the statute book in advance of the inevitable finding of an Article 4 breach in CN.
CN was not, as a matter of human rights law, a groundbreaking judgment. It applied the principles in Siliadin to a vacuum which had in fact been filled by the time the case ever got to court. But it remains of vital, and underrated, importance, both as a milestone in the history of the law of slavery in the United Kingdom, and for what it tells us about our relationship with the ECtHR. Though one might not know it from the lofty Parliamentary tones which accompanied the passing of the Modern Slavery Act in 2015, the truth is, when faced with the emergence of a social phenomenon in the early 21st century which was grossly exploitative of human dignity, it was international law, and the ECtHR in particular, which mandated domestic law reform. What has the European Convention on Human Rights ever done for us? Well, given us our first criminal offence of slavery for a start.
Helen Mountfield KC and Helen Law of Matrix represented the Applicant, CN.