JUDGMENT
Hounga (Appellant) v Allen and another
(Respondents)
before
Lady Hale, Deputy President
Lord Kerr
Lord Wilson
Lord Carnwath
Lord Hughes
JUDGMENT GIVEN ON
30 July 2014
Heard on 31 March and 1 April 2014
Appellant Respondent
David Reade QC Thomas Linden QC
Niran de Silva Laura Prince
(Instructed by Anti
Trafficking and Labour
Exploitation Unit
)
(Instructed by Crowther
Solicitors
)
Interveners (Anti
-Slavery
International)
Jan Luba QC
Kathryn Cronin
Ronan Toal
Michelle Brewer
(Instructed by Public
Interest Lawyers
)
LORD WILSON (with whom Lady Hale and Lord Kerr agree)
ISSUE
1. In what circumstances should the defence of illegality defeat a complaint by
an employee that an employer has discriminated against him by dismissing him
contrary to section 4(2)(c) of the Race Relations Act 1976? The 1976 Act was
repealed by section 211(2) of, and Schedule 27 to, the Equality Act 2010 and with
effect from 1 October 2010 the provision in section 4(2)(c) has been subsumed in
section 39(2)(c) of the 2010 Act.
INTRODUCTION
2. The appellant, Miss Hounga, appears to have a current age of about 21. She
is of Nigerian nationality and now resides in England. In January 2007, when she
was aged about 14, she came from Nigeria to the UK under arrangements made by
the family of the respondent, Mrs Allen, who is of joint Nigerian and British
nationality and who resides in England with her children. Pursuant to these
arrangements, in which Miss Hounga knowingly participated, her entry was
achieved by her presentation to UK immigration authorities of a false identity and
their grant to her of a visitor’s visa for six months. For the following 18 months
Miss Hounga lived in the home of Mrs Allen and of her husband who, albeit
formally a respondent to it, plays no part in this appeal. Although Miss Hounga had
no right to work in the UK, and after July 2007 no right to remain in the UK, Mrs
Allen employed her to look after her children in the home.
3. In July 2008 Mrs Allen evicted Miss Hounga from the home and thereby
dismissed her from the employment. This appeal proceeds on the basis that, by
dismissing her, Mrs Allen discriminated against Miss Hounga in that on racial
grounds, namely on ground of nationality, she treated Miss Hounga less favourably
than she would have treated others.
4. In due course Miss Hounga issued a variety of claims and complaints against
Mrs Allen in the Employment Tribunal (“the tribunal”). The one claim or complaint
which the tribunal upheld was her complaint of unlawful discrimination but only
that part of it which related to her dismissal. In this regard it ordered Mrs Allen to
pay compensation to her for the resultant injury to her feelings in the sum of £6,187.
The Employment Appeal Tribunal (“the appeal tribunal”) dismissed Mrs Allen’s
cross-appeal against the order. But the Court of Appeal upheld a further crossPage 2
appeal brought by Mrs Allen against it and set it aside: [2012] EWCA Civ 609,
[2012] IRLR 685. By a judgment given by Rimer LJ, with which Longmore LJ and
Sir Scott Baker agreed, the court held that the illegality of the contract of
employment formed a material part of Miss Hounga’s complaint and that to uphold
it would be to condone the illegality. It is against the Court of Appeal’s order, dated
15 May 2012, that Miss Hounga brings her appeal. A small claim generates an
important point.
FACTS
5. Miss Hounga and Mrs Allen both gave oral evidence to the tribunal, which
concluded that both of them, but particularly Mrs Allen, had lied to it. The
unreliability of the evidence must have made the tribunal’s task of resolving factual
issues difficult. Furthermore the tribunal’s rejection of part of Miss Hounga’s
complaint on jurisdictional grounds, explained in para 18(c) below, may have led it
to consider that it had no need to make certain findings. But whether these factors
entirely explain the tribunal’s widespread failure to find facts is unclear. The absence
of findings has hampered the inquiry at all three appellate levels.
6. Miss Hounga’s evidence was that, when she travelled to the UK in January
2007, she had been aged only 14. She said that an affidavit which she had sworn
in Lagos just prior to her journey, in which she asserted that she had been born in
July 1986 and so was then aged 20, was untrue. Mrs Allen contended before the
tribunal that the assertion in Miss Hounga’s affidavit was true or, at any rate, that
she had been an adult by the date of her entry into the UK.
7. Expert evidence supported Miss Hounga’s contention that in January 2007
she had been aged only 14. A consultant paediatrician with expertise in assessing
age reported in January 2009 that at the date of his report she was aged about 16 and
was certainly no more than 18. In June 2009 a local authority conducted a Mertoncompliant age assessment and concluded similarly that, at the date of its assessment,
Miss Hounga was aged 16. The tribunal said only that it was impossible to make a
definite finding in relation to Miss Hounga’s age. It referred to the report and to the
assessment but, while it did not make an express finding about her age even in
approximate terms, it gave no reason for disagreeing with them. It also accepted
Miss Hounga’s assertion that in the affidavit sworn in Lagos she had falsified her
date of birth. In these circumstances, unsatisfactory though they are, it is reasonable
to proceed – and to conclude that the tribunal proceeded – on the basis that, at the
time of her entry into the UK, Miss Hounga had been aged about 14.
8. A psychological report on Miss Hounga, dated July 2009, was presented to
the tribunal on her behalf but in its reasons the tribunal did not refer to it. The
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psychologist reported that Miss Hounga’s cognitive functioning might well be in the
extremely low range and indicated a learning disability; that she had long-term
emotional difficulties; and that she functioned at a developmental age much lower
than her chronological age which, again, the writer took to be 16 as at the date of
the report. The tribunal did acknowledge that Miss Hounga was illiterate and had
not received an education in Nigeria but it added that she spoke English well.
9. Understandably the tribunal did not resolve an issue whether, as Miss Hounga
claimed, her parents were dead. It did find, however, that in due course Miss Hounga
had joined the well-to-do family of Mrs Allen’s brother in Lagos; that for two years
she had lived there as a home help; that in due course Mrs Allen’s mother, who lived
in England but was visiting Lagos, and Mrs Allen’s brother had jointly put a
proposal to Miss Hounga, which she had willingly accepted, that she should go to
live in England with Mrs Allen, where she would again work as a home help but
would also go to school; and that, by telephone, Mrs Allen had offered to pay her
£50 per month additional to the provision of bed and board. The tribunal found that
it was the prospect of education in England which particularly attracted Miss
Hounga.
10. The tribunal found that Mrs Allen’s brother in Lagos had thereupon
masterminded a plan, in which Mrs Allen and her mother had been complicit, to
secure Miss Hounga’s entry into the UK. It was pursuant to the plan that Miss
Hounga had sworn the affidavit, drafted in terms directed by Mrs Allen’s brother, in
which she had asserted not only that she had been born in July 1986 (and that her
birth certificate had been lost) but also that her surname was that of Mrs Allen’s
mother. The affidavit had led to the issue to Miss Hounga of a Nigerian passport
in that name. Mrs Allen’s family had then caused Miss Hounga to be driven to the
British High Commission in Lagos, where she had produced a document by which
Mrs Allen’s mother, pretending to be Miss Hounga’s grandmother, had purported to
invite her to come to stay with her in England. The High Commission had thereupon
given her entry clearance. Mrs Allen’s brother had then purchased a ticket for her
travel to England. On arrival at Heathrow on 28 January 2007 Miss Hounga had
confirmed to an immigration officer that the purpose of her visit was to stay with
her grandmother. Miss Hounga’s passport had thereupon been indorsed with a
visitor’s visa, valid for six months.
11. The tribunal found that Miss Hounga
(a) knew the difference between right and wrong;
(b) knew that the assertions in her affidavit about her name and date of
birth had been false;
(c) knew that she had secured the right to enter the UK on false pretences;
Page 4
(d) knew that it was illegal for her to remain in the UK beyond 28 July
2007; and
(e) knew that it was illegal for her to take employment in the UK.
12. Mrs Allen met Miss Hounga at Heathrow and took her to her home in
Hanworth, Middlesex. For the next 18 months Miss Hounga acted, according to the
tribunal, as a sort of au pair. She helped to care for the three small children of Mrs
Allen and her husband, who at that time was also living in the home. She also did
housework. She was not entirely confined to the house. She went with the family
by car to the supermarket but stayed inside the car while Mrs Allen did the shopping.
Occasionally she went with the family to the local park; and once they all went to
Thorpe Park. She knew the whereabouts of the key to the front door and was allowed
to open it to callers. Mrs Allen bought earrings and clothes for her.
13. But Miss Hounga was never enrolled in a school and, although she was
provided with bed and board, she was never paid £50 per month or any wages at all.
14. It was Miss Hounga’s case before the tribunal that, prior to her departure from
the home on 17 July 2008, Mrs Allen had regularly treated her with violence and
threats and had thereby harassed her. Miss Hounga gave a detailed account, albeit
unsupported by dates, of various acts of violence allegedly perpetrated upon her by
Mrs Allen and of ugly threats allegedly made by her. Mrs Allen denied all these
allegations. In the event the tribunal made only two findings in this regard, namely
first that Mrs Allen had inflicted serious physical abuse on Miss Hounga and second
that she had caused her extreme concern by telling her that, were she to leave the
house and be found by the police, she would be sent to prison because her presence
in the UK was illegal.
15. But the tribunal did accept in full Miss Hounga’s account of the incident
which led to her departure on 17 July 2008, as follows:
(a) on that evening Mrs Allen was angry to discover that the children had
not eaten the supper which she had directed Miss Hounga to prepare
for them;
(b) Mrs Allen smacked and hit Miss Hounga;
(c) after Miss Hounga had put the children to bed, Mrs Allen attacked and
beat her, threw her out of the house and poured water over her;
(d) on his return from work, Mrs Allen’s husband let Miss Hounga back
into the house but he later changed his mind and said that Mrs Allen
could do whatever she liked to Miss Hounga;
(e) thereupon Mrs Allen opened the front door, told Miss Hounga to leave
the house and to die and pushed her outside again;
Page 5
(f) that night Miss Hounga slept in the garden in her wet clothes;
(g) at 7:00 am she tried to get back into the house but no one would open
the door; and
(h) she then made her way to a supermarket car-park, where she was found
and taken to the social services department of the local authority.
PROCEEDINGS
16. In December 2008 Miss Hounga’s claim was filed in the tribunal on her
behalf. It did not, at first, recite Mrs Allen’s address: for, although she had lived
there for 18 months, Miss Hounga had remained unaware of it. It was only later that
her lawyers discovered it. Miss Hounga’s claim had various components. They fell
into two groups, which, in the interests only of convenience, I will describe as the
contract claims and the discrimination complaints. The former included claims for
unfair dismissal, breach of contract, unpaid wages and holiday pay. The latter were
brought under the Race Relations Act 1976 (“the Act”) and comprised complaints
of racial discrimination both in the form of harassment prior to Miss Hounga’s
dismissal contrary to section 3A of the Act and in relation to the dismissal itself
contrary to section 4(2)(c) of the Act.
17. Mrs Allen filed an initial response to the claims and complaints in which she
alleged that, other than perhaps meeting Miss Hounga in Hanworth, she had had no
dealings with her in any way and had never employed her. At a case management
discussion Mrs Allen changed her account only to the extent of accepting that Miss
Hounga had visited her house on a number of occasions. It was only later that Mrs
Allen accepted that Miss Hounga had lived in her house for an extended period.
18. (a) The tribunal upheld Miss Hounga’s assertion that there had been a
contract of employment between her and Mrs Allen. In the appellate
proceedings Mrs Allen did not challenge this determination.
(b) The tribunal dismissed Miss Hounga’s contract claims on the basis
that, as she knew, it was illegal for her to have entered into the contract of
employment and that the defence of illegality operated so as to defeat such
of her claims as were based on it. Miss Hounga unsuccessfully appealed to
the appeal tribunal against the dismissal of her contract claims but did not
appeal further in that regard.
(c) The tribunal dismissed Miss Hounga’s complaint of pre-dismissal
harassment on the ground that she had not complied with the grievance
procedure made applicable to such a complaint by Schedule 4 to the
Page 6
Employment Act 2002 and that she was therefore precluded from presenting
it by section 32(2) of that Act. The appeal tribunal dismissed Miss Hounga’s
appeal in this regard. The Court of Appeal, however, upheld her further
appeal in this regard. It held that the tribunal and the appeal tribunal had failed
to consider her assertion that the circumstances were as specified in
regulation 11(3)(c) of the Employment Act 2002 (Dispute Resolution)
Regulations 2004 (SI 2004/752) and that therefore, by regulation 11(1), the
grievance procedure did not apply. The court ruled, however, that it would
be futile to remit the point for determination by the tribunal because the
complaint of discrimination in relation to pre-dismissal harassment would in
any event face defeat on the ground on which the court was rejecting the
complaint of discrimination in relation to the dismissal itself.
(d) The tribunal upheld Miss Hounga’s complaint of discrimination in
relation to the dismissal itself. It was agreed that on any view the grievance
procedure did not apply to this complaint. The tribunal found that Mrs Allen
had dismissed Miss Hounga from her employment because of her
vulnerability consequent upon her immigration status, i.e. upon the absence
of any right for her either to remain in the UK or to have taken the
employment in the first place. It made the order for compensation which the
Court of Appeal subsequently set aside.
NEW POINTS
19. A month prior to the hearing in this court Mrs Allen, by her solicitors,
indicated that she proposed at its inception to apply for permission under para 6.3.3
of UKSC Practice Direction 6 to raise two points which had not been raised on her
behalf at any earlier stage of the proceedings. The court received argument on the
application accordingly.
20. The first point was based on section 4(3) of the 1976 Act, which has not been
replicated in the 2010 Act. The effect of the subsection was that, in the case of
employment for the purposes of a private household, it was not unlawful for the
employer to discriminate against the employee by dismissing her (or him) on ground
of nationality (as opposed to grounds of race or ethnic or national origins). Miss
Hounga conceded that, had it been invoked before the tribunal, the subsection would
have defeated her complaint of discrimination in relation to dismissal on ground of
nationality and that such had indeed been the ground on which in the event the
tribunal had upheld it. She contended, however, that, had it then been invoked, she
would, as foreshadowed by the general terms of her claim form, have presented the
grounds of discrimination as being those of race or ethnic or national origins. Mrs
Allen, for her part, conceded that, in the light of its terms, the subsection could not
operate so as to defeat the complaints of pre-dismissal harassment which, were this
Page 7
court to uphold Miss Hounga’s appeal against the Court of Appeal’s application of
the illegality defence, would fall to be remitted to the tribunal.
21. The second point was that, in asking itself pursuant to section 1(1)(a) of the
1976 Act whether on ground of nationality Mrs Allen had treated Miss Hounga less
favourably than she would treat other persons, the tribunal had fallen into error in
its construction of the hypothetical “other persons”. Without objection on behalf of
Mrs Allen, the tribunal had compared her treatment of Miss Hounga with her
hypothetical treatment of a British subject, i.e. a person entitled to remain and work
here. That such was the correct comparison had not been challenged on behalf of
Mrs Allen whether in the appeal tribunal or in the Court of Appeal. Nevertheless her
second new point was that such was an incorrect comparison. She wished to argue
that many foreign nationals had rights to remain and work in the UK; that therefore
it did not follow from a person’s foreign nationality that she (or he) had no such
right; that therefore an employer who discriminated against an employee of foreign
nationality on grounds that she had no right to remain or work in the UK did not
discriminate against her on ground of nationality; put another way, that it was
incorrect to construct a comparator who had such rights; and that the correct
comparator was a person who had a foreign nationality other than Nigerian but who
was remaining in the UK illegally and had no right to work.
22. Following receipt of the argument this court announced that it refused to
grant permission to Mrs Allen to introduce either of the new points. The basis of its
refusal was only that the points were raised too late. The result of the refusal is that,
in the event that the court were to uphold Miss Hounga’s challenge to the Court of
Appeal’s application of the illegality defence to her complaint in relation to
dismissal, the tribunal’s award would be restored and not amenable to further
challenge. In that event, her complaint in relation to pre-dismissal harassment on
grounds of race or ethnic or national origins would be remitted to the tribunal to
determine whether the ground identified by the Court of Appeal for possible
disapplication of the grievance procedure existed and, if so, whether the complaint
was established.
THE DEFENCE OF ILLEGALITY
23. It will thus be seen that, of the various claims and complaints made by Miss
Hounga against Mrs Allen in the tribunal, the only one to reach this court is the
complaint of discrimination in relation to her dismissal. This particular complaint
may well be said not to capture the gravamen of Miss Hounga’s case against Mrs
Allen. Irrespective of whether all of it can form the subject of a civil claim, the case
which, on the tribunal’s exiguous findings, Miss Hounga makes against Mrs Allen
relates centrally to her participation in the plan to secure her entry into the UK on a
false basis; to Mrs Allen’s failure to pay her the promised wages and, in particular,
Page 8
to secure for her the promised education (although the tribunal made no finding that
Mrs Allen had never intended to secure it for her); and to her acts of serious violence
towards Miss Hounga over 18 months, coupled with threats of imprisonment which
were entirely convincing to Miss Hounga and which in effect disabled her from
taking any steps to rescue herself from her situation in Mrs Allen’s home. In the
event it was Mrs Allen’s eviction of her which precipitated her rescue. Cruel though
the manner of its execution was, the dismissal was, in a real sense, a blessing for
Miss Hounga. But, while the facts upon which the present appeal is founded may
not represent Miss Hounga’s essential case against Mrs Allen, the clean legal issue
remains: was the Court of Appeal correct to hold that the illegality defence defeated
the complaint of discrimination?
24. The application of the defence of illegality to a claim founded on contract often
has its own complexities. But, in that it was unlawful (and indeed a criminal offence
under section 24(1)(b)(ii) of the Immigration Act 1971) for Miss Hounga to enter
into the contract of employment with Mrs Allen, the defence of illegality in principle
precluded her from enforcing it. In this regard a claim for unfair dismissal might
arguably require analysis different from a claim for wrongful dismissal. But a
claimant for unfair dismissal is nevertheless seeking to enforce her contract,
including often to secure her reinstatement under it. In Enfield Technical Services
Ltd v Payne [2008] EWCA 393, [2008] ICR 1423, the Court of Appeal, while
rejecting its applicability to the two cases before it, clearly proceeded on the basis
that a defence of illegality could defeat a claim for unfair dismissal. This present
appeal proceeds without challenge to the conclusion of the tribunal, upheld by the
appeal tribunal, that the defence indeed precluded Miss Hounga’s claim for unfair
dismissal. Equally there is no challenge to the dismissal on that same basis of her
claim for unpaid wages although the considerations of public policy to which I will
refer from para 46 onwards might conceivably have yielded a different conclusion.
25. Unlawful discrimination is, however, a statutory tort: in relation to
discrimination in the field of employment, see sections 56(1)(b) and 57(1) of the
1976 Act, now sections 124(6) and 119(2)(a) of the 2010 Act. The application of the
defence of illegality to claims in tort is highly problematic.
26. In National Coal Board v England [1954] AC 403 an employee sued his
employer for breach of statutory duty in respect of injuries suffered in an explosion.
It had occurred while the employee was implementing an unlawful arrangement
between him and a colleague that he, rather than the colleague, should join a cable
to a detonator. The House of Lords accepted that he had been contributorily
negligent but rejected the defence of illegality. Lord Asquith of Bishopstone said at
pp 428-429:
Page 9
“The defendants relied on the maxim ‘ex turpi causa non oritur actio’
as absolving them of liability.
…
The vast majority of cases in which the maxim has been applied have
been cases where, there being an illegal agreement between A and B,
either seeks to sue the other for its enforcement or for damages for its
breach. That, of course, is not this case. Cases where an action in tort
has been defeated by the maxim are exceedingly rare. Possibly a party
to an illegal prize fight who is damaged in the conflict cannot sue for
assault (Boulter v Clark (1747) Bull N.P. 16).
…
If two burglars, A and B, agree to open a safe by means of explosives,
and A so negligently handles the explosive charge as to injure B, B
might find some difficulty in maintaining an action for negligence
against A. But if A and B are proceeding to the premises which they
intend burglariously to enter, and before they enter them, B picks A’s
pocket and steals his watch, I cannot prevail on myself to believe that
A could not sue in tort… The theft is totally unconnected with the
burglary.”
But, although it has since become established that the defence will sometimes defeat
an action in tort, the circumstances in which it will do so have never been fully
settled.
27. In Saunders v Edwards [1987] 1 WLR 1116 the purchasers of a flat sued the
vendor for damages for the tort of deceit in having fraudulently represented to them
that the premises included a roof terrace. By arrangement between the parties, the
price of the flat had been improperly reduced below its value, and the price of
chattels also included in the sale had been correspondingly inflated above their
value, in order to enable the purchasers to pay less stamp duty. The Court of Appeal
held that the vendor could not rely on the defence of illegality. Kerr LJ, with whom
Bingham LJ agreed, held at p 1127 that the purchasers’ dishonest apportionment of
the price was wholly unconnected with their cause of action and that their moral
culpability in that regard was greatly outweighed by that of the vendor in making
the fraudulent representation. Nicholls LJ, with whom Bingham LJ also agreed,
held at p 1132 that the question (which he answered negatively) was whether to
uphold the claim would be an affront to the public conscience in appearing indirectly
to encourage the unlawful conduct of which the purchasers had been guilty.
28. For six years the public conscience test was applied to defences of illegality
to claims both in tort and in contract: see for example Howard v Shirlstar Container
Transport Ltd [1990] 1 WLR 1292. But in Tinsley v Milligan [1994] 1 AC 340 all
members of the House of Lords, including the two dissenting judges, agreed that the
public conscience was, as Lord Browne-Wilkinson observed at p 369, too
Page 10
imponderable a factor. The majority of the House considered that, once that test was
stripped out of the law, a reliance test was laid bare, namely that, in the words of
Lord Browne-Wilkinson at p 376, a claimant “is entitled to recover if he is not forced
to plead or rely on the illegality, even if it emerges that the title on which he relied
was acquired in the course of carrying through an illegal transaction”. Before the
House was, indeed, a claim to property, namely by Ms Milligan to a joint and equal
equitable interest in a home which she had agreed to be vested in the sole name of
Ms Tinsley, her cohabitant, only in order that she, Ms Milligan, could represent
herself to be Ms Tinsley’s lodger and claim state benefits accordingly.
29. In the wake of the Tinsley case the reliance test has inevitably taken hold; and
it has been applied to claims in tort. In Stone & Rolls Ltd v Moore Stephens [2008]
EWCA Civ 644, [2009] UKHL 39, [2009] AC 1391, a company sued its auditors
for negligence in failing to detect fraudulent transactions into which its former
controlling director had caused it to enter. It was held both in the Court of Appeal
and, by a majority, in the House of Lords that the conduct of the director was to be
attributed to the company; and that the defence of illegality defeated it. In his
judgment in the Court of Appeal, with which Keene and Mummery LJJ agreed,
Rimer LJ referred at para 16 to the reliance test and described its effect in stark terms
as follows:
“The relevant question it identifies is whether, to advance the claim, it
is necessary for the claimant to plead or rely on the illegality. If it is,
the Tinsley case decided that the axe falls indiscriminately and the
claim is barred, however good it might otherwise be. There is no
discretion to permit it to succeed.”
In the House of Lords, Lord Phillips of Worth Matravers concluded at para 86 that
the illegal conduct formed the basis of the company’s claim, in other words that the
company was forced to rely on it. He had, however, observed at para 25:
“I do not believe… that it is right to proceed on the basis that the
reliance test can automatically be applied as a rule of thumb. It is
necessary to give consideration to the policy underlying ex turpi causa
in order to decide whether this defence is bound to defeat [the
company’s] claim.”
30. I will explain in paras 42 and following why I consider that Lord Phillips was
correct to soften the effect of the reliance test by the need to consider the underlying
policy. The test continues to carry maximum precedential authority but has attracted
criticism. It is said that it can work arbitrarily: it was only the presumption of a
resulting trust which saved Ms Milligan from having to plead the agreement to
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defraud and, had Ms Tinsley instead been, for example, her daughter, a presumption
of advancement might well have operated and, if so, Ms Milligan would have had
to plead the agreement. It is also said that the concept of a need to “rely” on an
unlawful act is often easier to state than to apply. These concerns were summarised
in the report of the Law Commission entitled “The Illegality Defence”, presented to
Parliament on 16 March 2010, Law Com No 320, at paras 2.13-15, to which was
annexed a draft Bill which, in relation to claims to equitable interests, would have
replaced the reliance test.
31. Meanwhile, however, another test, overlapping with the reliance test but not
coterminous with it, had been developed in relation to tort – and in particular was to
be applied to complaints of unlawful discrimination: the inextricable link test.
32. In Cross v Kirkby CA [2000] EWCA Civ 426, The Times 5 April 2000, the
claimant was a hunt saboteur and the defendant a local farmer. The claimant shouted
to the defendant “You’re fucking dead” and jabbed him in the chest and throat with
a broken baseball bat. In order to ward off further blows, the defendant grappled
with him. He wrested the bat from him and hit him on the head, causing his skull to
fracture. The Court of Appeal held that the claimant’s claim for assault and battery
failed both because the defendant was acting in self-defence and because it was
defeated by the illegality defence. Beldam LJ, with whom Otton LJ agreed, said at
para 76:
“In my view the [defence] applies when the claimant’s claim is so
closely connected or inextricably bound up with his own criminal or
illegal conduct that the court could not permit him to recover without
appearing to condone that conduct.”
Judge LJ said at para 103 that the defence arose if the facts behind the claimant’s
claim were “inextricably linked with his criminal conduct” and that this factor went
“well beyond questions of causation in the general sense”. He added at para 125
that, if the defendant’s behaviour was truly disproportionate overall, it might be
powerful evidence that the claimant’s criminal conduct was not sufficiently linked
to the injuries so as to attract the defence.
33. Three months later, in Hall v Woolston Hall Leisure Ltd [2001] ICR 99, the
inextricable link test was applied to a complaint of unlawful sex discrimination. The
employer dismissed the employee because of her pregnancy and thus discriminated
against her on ground of sex. Her wages were £250 net per week but, to her
knowledge, were misrepresented on her pay slips as £250 gross per week so that the
employer might account to the Inland Revenue for less sums than were due.
Rejecting the employer’s defence of illegality, the Court of Appeal allowed her
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appeal against a refusal to include in her award compensation for loss of earnings.
Peter Gibson LJ held at para 46 that there was no inextricable link between the
employee’s complaint and the employer’s illegal underpayments to the Revenue.
After citing the decision in the Cross case, Mance LJ said:
“79. While the underlying test therefore remains one of public policy,
the test evolved in this court for its application in a tortious context
thus requires an inextricable link between the facts giving rise to the
claim and the illegality, before any question arises of the court
refusing relief on the grounds of illegality. In practice, as is evident,
it requires quite extreme circumstances before the test will exclude a
tort claim.” [Emphasis supplied]
At para 80(D) he also concluded that there was no such inextricable link.
34. In Rhys-Harper v Relaxion Group plc [2003] UKHL 33, [2003] ICR 867, the
House of Lords determined a different point, namely that an employer might
discriminate against an employee in breach of the discrimination statutes even by
acts occurring after termination of the employment. But Lord Rodger of Earlsferry
quoted with approval from the judgments of Peter Gibson and Mance LJJ in the Hall
case and if, as one might assume, he thereby impliedly indorsed the inextricable link
test, he clearly thought that it would seldom, if ever, lead to the defeat of a complaint
of discrimination. For he said at p 930:
“where a contract of employment is tainted by illegality, an employee
may none the less complain that her employer discriminated against
her on the ground of her sex by dismissing her, since both the Equal
Treatment Directive and the 1975 [Sex Discrimination] Act are
designed to provide effective relief in respect of discriminatory
conduct … ‘rather than relief which reflects any contractual
entitlement which may or may not exist’.”
35. In Vakante v Governing Body of Addey and Stanhope School (No 2) [2004]
EWCA Civ 1065, [2005] ICR 231, the Court of Appeal upheld a defence of illegality
to a teacher’s complaint against a school of unlawful discrimination by dismissal on
racial grounds. The teacher was an asylum-seeker who was not entitled to work in
the UK without a work permit, which he never obtained. He had represented to the
school that he did not need a permit and it was unaware that its employment of him
was unlawful. Mummery LJ, with whose judgment Lord Slynn of Hadley and
Brooke LJ agreed, analysed the inextricable link test as follows:
Page 13
“9. Although Hall’s case… uses some of the familiar language of legal
and factual causation (‘connection’, ‘link’), the test does not restrict
the tribunal to a causation question. Matters of fact and degree have to
be considered: the circumstances surrounding the applicant’s claim
and the illegal conduct, the nature and seriousness of the illegal
conduct, the extent of the applicant’s involvement in it and the
character of the applicant’s claim are all matters relevant to
determining whether the claim is so “inextricably bound up with” the
applicant’s illegal conduct that, by permitting the applicant to recover
compensation, the tribunal might appear to condone the illegality.”
Mummery LJ went on to hold at para 34 that the teacher’s employment “was
unlawful from top to bottom and from beginning to end” and at para 36 that his
complaint was so inextricably linked with the illegality of his employment that, were
it to have upheld it, the tribunal would have appeared to condone the illegality. In
their case comment “Race discrimination and the doctrine of illegality” (2013) 129
LQR 12 Bogg and Novitz suggest that a series of errors entered the law in the
Vakante case. They are right to say that, in para 9 of Mummery LJ’s judgment above,
there was a loosening of the inextricable link test and an entry into it of factors
which, logically, might not have been entitled to entry. But whether the loosened
test led the Court of Appeal to make the wrong decision is much less clear.
36. In Gray v Thames Trains Ltd [2009] UKHL 33, [2009] 1 AC 1339, the House
of Lords, while not disapproving the inextricable link test, expressed reservations
about it. The claimant was injured in the Ladbroke Grove rail disaster and in
consequence suffered post-traumatic stress disorder. This led him to commit
manslaughter, for which he was ordered to be detained in hospital. He sued two
railway companies for negligence, which they admitted. The House held however
that the defence of illegality barred such part of his claim as sought general damages
arising out of his detention and damages for the loss of earnings which followed it.
It held that the defence precluded compensation for losses arising from the sentence
passed upon him for a criminal act for which he had had responsibility, albeit
diminished. So, as Lord Rodger pointed out at para 63, the case was different from
the National Coal Board case and the Cross case, in which the claimant had been
engaged in an unlawful activity at the time when the defendant committed the
alleged tort. Nevertheless reference was made to the inextricable link test. Lord
Hoffmann said at para 54:
“It might be better to avoid metaphors like ‘inextricably linked’ or
‘integral part’ and to treat the question as simply one of causation.
Can one say that, although the damage would not have happened but
for the tortious conduct of the defendant, it was caused by the criminal
act of the claimant?… Or is the position that although the damage
Page 14
would not have happened without the criminal act of the claimant, it
was caused by the tortious act of the defendant?”
In the same vein Lord Rodger observed at para 74 that opinions were likely to differ
about whether the alleged tort was inextricably linked with the claimant’s criminal
conduct. I agree but am not convinced that the alternative inquiry suggested by Lord
Hoffmann is any more likely to secure consistency of decision-making.
37. Every formulation of a requirement to identify the active or effective cause
of an event – or an act to which it is inextricably linked – has a potential for
inconsistent application driven by subjective considerations. In his article entitled
“Ex Turpi Causa – when Latin avoids liability” in the Edinburgh Law Review, 18
(2014) 175, Lord Mance made a related point at p 184:
“Your painter negligently leaves your front door open, and a thief
enters. Of course, in your action for negligence against the painter, the
painter is responsible for causing the loss of your goods. Equally,
however, in your action for theft of the goods against the thief, if he is
caught, he is the cause. Causation, like much else in the law, depends
on context.”
38. The subjectivity inherent in the requisite value judgement is well
demonstrated by the facts of the present case. Three judges in the Court of Appeal
were of the view, articulated in the judgment of Rimer LJ, that Miss Hounga’s
complaint was inextricably linked to her own unlawful conduct – “obviously” so.
They considered that the only difference between the complaints of Miss Hounga
and of Mr Vakante was that, whereas his employers were unaware of the illegality,
Mrs Allen and Miss Hounga were “equal participants” in entry into the illegal
contract of employment. “Whichever party bore the greater responsibility for
making of the illegal contract”, said Rimer LJ, “[Miss Hounga] was a willing
participant in it.” He made a further point:
“Ms Hounga’s dismissal discrimination case was dependent upon the
special vulnerability to which she was subject by reason of her illegal
employment contract: she was relying on the facts that she was an
illegal immigrant, had no right to be employed here, effectively had
no rights here at all and so could be treated less well because of her
inferior situation.”
39. But were Mrs Allen and Miss Hounga equal participants in entry into the
illegal contract? Was there any doubt about the identity of the party who bore
Page 15
greater responsibility for it? And, despite the superficial attraction in logic of Rimer
LJ’s further point, should Mrs Allen’s cruel misuse of Miss Hounga’s perceived
vulnerability arising out of the illegality, by making threats about the consequences
of her exposure to the authorities, be a further justification for the defeat of her
complaint? As I will explain in para 49, such threats are an indicator that Miss
Hounga was the victim of forced labour but in the hands of the Court of Appeal they
become a ground for denial of her complaint.
40. If, indeed, the test applicable to Mrs Allen’s defence of illegality is that of
the inextricable link, I, for one, albeit conscious of the inherent subjectivity in my
so saying, would hold the link to be absent. Entry into the illegal contract on 28
January 2007 and its continued operation until 17 July 2008 provided, so I consider,
no more than the context in which Mrs Allen then perpetrated the acts of physical,
verbal and emotional abuse by which, among other things, she dismissed Miss
Hounga from her employment.
41. But the bigger question is whether the inextricable link test is applicable to
Mrs Allen’s defence.
PUBLIC POLICY
42. The defence of illegality rests upon the foundation of public policy. “The
principle of public policy is this…” said Lord Mansfield by way of preface to his
classic exposition of the defence in Holman v Johnson (1775) 1 Cowp. 341, p 343,
98 Eng Rep 1120, p 1121. “Rules which rest upon the foundation of public policy,
not being rules which belong to the fixed or customary law, are capable, on proper
occasion, of expansion or modification”: Maxim Nordenfelt Guns and Ammunition
Co v Nordenfelt [1893] 1 Ch 630, 661 (Bowen LJ). So it is necessary, first, to ask
“What is the aspect of public policy which founds the defence?” and, second, to ask
“But is there another aspect of public policy to which application of the defence
would run counter?”
43. An answer to the first question is provided in the decision of the Canadian
Supreme Court in Hall v Hebert [1993] 2 SCR 159. After they had been drinking
heavily together, Mr Hebert, who owned a car, allowed Mr Hall to drive it, including
initially to give it a rolling start down a road on one side of which there was a steep
slope. The car careered down the slope and Mr Hall was seriously injured. The
Supreme Court held that the illegality of his driving did not bar his claim against Mr
Hebert but that he was contributorily negligent as to 50%. At the outset of her
judgment on behalf of the majority, McLachlin J, at p 169, announced her
conclusion about the basis of the power to bar recovery in tort on the ground of
Page 16
illegality, which later she substantiated in convincing terms by reference to
authority. Her conclusion was as follows:
“The basis of this power, as I see it, lies in [the] duty of the courts to
preserve the integrity of the legal system, and is exercisable only
where this concern is in issue. This concern is in issue where a
damage[s] award in a civil suit would, in effect, allow a person to
profit from illegal or wrongful conduct, or would permit an evasion or
rebate of a penalty prescribed by the criminal law. The idea common
to these instances is that the law refuses to give by its right hand what
it takes away by its left hand.”
44. Concern to preserve the integrity of the legal system is a helpful rationale of
the aspect of policy which founds the defence even if the instance given by
McLachlin J of where that concern is in issue may best be taken as an example of it
rather than as the only conceivable instance of it. I therefore pose and answer the
following questions:
(a) Did the tribunal’s award of compensation to Miss Hounga allow her to
profit from her wrongful conduct in entering into the contract? No, it
was an award of compensation for injury to feelings consequent upon
her dismissal, in particular the abusive nature of it.
(b) Did the award permit evasion of a penalty prescribed by the criminal
law? No, Miss Hounga has not been prosecuted for her entry into the
contract and, even had a penalty been thus imposed upon her, it would
not represent evasion of it.
(c) Did the award compromise the integrity of the legal system by
appearing to encourage those in the situation of Miss Hounga to enter
into illegal contracts of employment? No, the idea is fanciful.
(d) Conversely, would application of the defence of illegality so as to defeat
the award compromise the integrity of the legal system by appearing to
encourage those in the situation of Mrs Allen to enter into illegal
contracts of employment? Yes, possibly: it might engender a belief that
they could even discriminate against such employees with impunity.
45. So the considerations of public policy which militate in favour of applying
the defence so as to defeat Miss Hounga’s complaint scarcely exist.
46. But what about the second question posed in para 42? It requires the court to
consider whether Mrs Allen was guilty of “trafficking” in bringing Miss Hounga
from Nigeria to the UK and into the home in Hanworth.
Page 17
47. The accepted international definition of trafficking is contained in the UN
Protocol to Prevent, Suppress and Punish Trafficking in Persons (“the Palermo
Protocol”) signed in 2000 and ratified by the UK on 9 February 2006. Article 3
provides:
“(a) ‘Trafficking in persons’ shall mean the recruitment,
transportation, transfer, harbouring or receipt of persons,
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… for the purpose
of exploitation. Exploitation shall include, at a minimum,
… sexual exploitation, forced labour or services, slavery
or practices similar to slavery, servitude or the removal of
organs;
(b) The consent of a victim of trafficking in persons to the
intended exploitation set forth in subparagraph (a) of this
article shall be irrelevant where any of the means set forth
in subparagraph (a) have been used;
(c) The recruitment, transportation, transfer, harbouring or
receipt of a child for the purpose of exploitation shall be
considered ‘trafficking in persons’ even if this does not
involve any of the means set forth in subparagraph (a) of
this article.”
So did Mrs Allen, together with other members of her family, recruit and/or transport
and/or receive Miss Hounga, being then a child, for the purpose of exploitation,
namely forced labour or servitude?
48. In her claim form Miss Hounga alleged that the UK Human Trafficking
Centre had accepted her as a victim of human trafficking. Before the tribunal she
filed a report on herself made by Ms Skrivankova, Trafficking Programme
Coordinator, Anti-Slavery International, which intervenes in this appeal. The report
must be handled with care because Ms Skrivankova did not interview Miss Hounga
and relied on written material, in particular her witness statement, which included
disputed allegations in relation to which the tribunal made no findings. At all events
Ms Skrivankova reported that all the elements in the definition of trafficking in the
Palermo Protocol were present in Miss Hounga’s case. She suggested that it was a
classic case of the trafficking of a vulnerable child, lacking family support, by people
known to her, who abused her natural trust in them with promises which were not
kept and who subjected her to forced labour. In this latter regard Ms Skrivankova
referred to a list of six indicators of forced labour published by the International
Labour Organisation (“the ILO”), which takes the view that, if at least two of the
indicators are present, forced labour exists.
Page 18
49. The tribunal made no finding whether Miss Hounga was the victim of
trafficking. No doubt it considered that it had no need to do so. It is only at this
third level of appeal that the issue crops up again; and this court’s duty to be fair to
Mrs Allen demands that it should approach the issue with the utmost caution.
Nevertheless, although the court should remember, for example, that Miss Hounga
was not actually locked into the home, it is hard to resist the conclusion that Mrs
Allen was guilty of trafficking within the meaning of the definition in the Palermo
Protocol. Thus, of the ILO’s six indicators of forced labour, there might be argument
about the existence of the second (restriction of movement) but, on the tribunal’s
findings, there certainly existed the first (physical harm or threats of it), the fourth
(withholding of wages) and the sixth (threat of denunciation to the authorities where
the worker has an irregular immigration status). Judicious hesitation leads me to
conclude that, if Miss Hounga’s case was not one of trafficking on the part of Mrs
Allen and her family, it was so close to it that the distinction will not matter for the
purpose of what follows.
50. The Council of Europe Convention on Action against Trafficking in Human
Beings CETS No 197 (“the Convention”) was done in Warsaw on 16 May 2005 and,
following ratification, the UK became obliged to adhere to it, as a matter of
international law, on 1 April 2009. Among the purposes of the Convention, set out
in article 1, are the prevention of trafficking, the protection of the human rights of
victims and the design of a comprehensive framework for their protection and
assistance. By article 4, the Convention imports the definition of trafficking set out
in the Palermo Protocol. Article 15 provides:
“3. Each party shall provide, in its internal law, for the right of
victims to compensation from the perpetrators.”
It is too technical an approach to an international instrument to contend that
paragraph 3 relates to compensation only for the trafficking and not for related acts
of discrimination. In my view it would be a breach of the UK’s international
obligations under the Convention for its law to cause Miss Hounga’s complaint to
be defeated by the defence of illegality. As Lord Hoffmann said in R v Lyons [2002]
UKHL 44, [2003] 1 AC 976, at para 27,
“Of course there is a strong presumption in favour of interpreting
English law (whether common law or statute) in a way which does not
place the United Kingdom in breach of an international obligation.”
51. Article 4 of the European Convention on Human Rights provides:
Page 19
“1. No one shall be held in slavery or servitude.
2. No one shall be required to perform forced or compulsory
labour.”
In Rantsev v Cyprus and Russia (2010) 51 EHRR 1 a Russian woman, aged 20, had
gone to work as an artiste in a cabaret in Cyprus. Three weeks later she was found
dead in a street. The European Court of Human Rights (“the ECtHR”) upheld her
father’s complaint that Cyprus was in breach of article 4 in that its regime for the
issue of visas for cabaret artistes had failed to afford effective protection to her
against trafficking and that its police had failed properly to investigate events during
those weeks which suggested that she was the victim of it. For present purposes the
importance of the court’s judgment lies in the following:
“282. There can be no doubt that trafficking threatens the human
dignity and fundamental freedoms of its victims and cannot be
considered compatible with a democratic society and the values
expounded in the Convention. In view of its obligation to interpret
the Convention in light of present-day conditions, the Court considers
it unnecessary to identify whether the treatment about which the
applicant complains constitutes ‘slavery’, ‘servitude’ or ‘forced and
compulsory labour’. Instead, the Court concludes that trafficking
itself, within the meaning of article 3(a) of the Palermo Protocol and
article 4(a) of the Anti-Trafficking Convention, falls within the scope
of article 4 of the Convention.”
52. In Siliadin v France (2005) 43 EHRR 287 the ECtHR ruled that a 15-yearold girl, brought from Togo to France and made to work for a family without pay
for 15 hours a day, had been held in servitude and required to perform forced labour
and that France had violated article 4 by having failed to introduce criminal
legislation which would afford effective protection to her. In CN v United Kingdom
(2012) 56 EHRR 869 the court made an analogous ruling against the UK. After the
events in that case, Parliament had provided, by section 71 of the Coroners and
Justice Act 2009 which extends to England, Wales and Northern Ireland, that it is a
specific criminal offence to hold a person in slavery or servitude or to require her
(or him) to perform forced labour. No doubt mindful of their obligations under
article 4, the UK authorities are striving in various ways to combat trafficking and
to protect its victims. I refer, for example, to the Draft Modern Slavery Bill, Cm
8770, presented to Parliament in December 2013 and in particular to the
amendments to it proposed by the government in its paper, Cm 8889, presented in
June 2014 by way of response to the report of a parliamentary committee on the
draft Bill. I note, for example, that one such amendment would provide a statutory
defence to a victim of trafficking who, as a result, has been compelled to commit a
crime. Although Miss Hounga is not in that category, the decision of the Court of
Appeal to uphold Mrs Allen’s defence of illegality to her complaint runs strikingly
Page 20
counter to the prominent strain of current public policy against trafficking and in
favour of the protection of its victims. The public policy in support of the application
of that defence, to the extent that it exists at all, should give way to the public policy
to which its application is an affront; and Miss Hounga’s appeal should be allowed.
LORD HUGHES (with whom Lord Carnwath agrees)
53. I agree that Miss Hounga’s appeal should be allowed in relation to her claim
for the statutory tort of discrimination, committed in the course of dismissal. I also
agree that it follows that her claim in relation to alleged pre-dismissal harassment
on grounds of race or ethnic origin (again a claim in relation to the statutory tort)
should be remitted to the tribunal to determine whether the ground identified by the
Court of Appeal for possible disapplication of the grievance procedure existed and,
if so, whether the complaint was established. I am, however, unable to go quite so
far in the basis for this conclusion as Lord Wilson feels able to do.
54. As Lord Wilson’s penetrating analysis clearly shows, a generalised statement
of the conceptual basis for the doctrine under which illegality may bar a civil claim
has always proved elusive. The same search for it produced a similar conclusion
through no less than three concentrated Law Commission documents, Consultation
Papers 154 (1999) and 160 (2001) and its report on the limited case of illegality as
it affects claims to beneficial interests under trusts – The Illegality Defence, Law
Com 320 (March 2010). A case in which, as I understand it, all the members of this
court are agreed on the outcome of the appeal is not a suitable vehicle to essay a
general synthesis such as has been so difficult to formulate. I attempt no more than
a bare summary of such aspects of the question as affect the present case, which is
a claim in tort. Miss Hounga’s contractual claims have rightly not been pursued
either in the Court of Appeal or in this court.
55. The various analyses offered in past cases are largely, as it seems to me,
different ways of expressing two connected aspects of the basis for the law of
illegality. The first is that the law must act consistently; it cannot give with one hand
what it takes away with another, nor condone when facing right what it condemns
when facing left. The second is that before this principle operates to bar a civil
claim, and particularly one in tort, there must be a sufficiently close connection
between the illegality and the claim made. Neither proposition is suggested as a
comprehensive test. En route to the answer in an individual case, the court is likely
to need to consider also the gravity of the illegality of which the claimant is guilty
and her knowledge or intention in relation to it. It will no doubt also consider the
purpose of the law which has been infringed and the extent to which to allow a civil
claim nevertheless to proceed will be inconsistent with that purpose. Other factors
may arise in individual cases. It is via considerations such as these that the general
Page 21
public policy is to be served. Public policy very obviously underlies the rules upon
illegality as it affects civil claims, but I do not think that the cases establish a separate
trumping test of public policy.
56. Whilst Lord Mansfield’s early statement of the law in Holman v Johnson
(1775) 1 Cowp 341, 98 Eng Rep 1120 cannot be treated as a comprehensive test for
the application of the law of illegality, it is important to remember one central feature
of it, which remains true. When a court is considering whether illegality bars a civil
claim, it is essentially focussing on the position of the claimant vis-à-vis the court
from which she seeks relief. It is not primarily focusing on the relative merits of the
claimant and the defendant. It is in the nature of illegality that, when it succeeds as
a bar to a claim, the defendant is the unworthy beneficiary of an undeserved
windfall. But this is not because the defendant has the merits on his side; it is
because the law cannot support the claimant’s claim to relief. Lord Mansfield’s
classical expression of this principle was as follows:
“The objection, that a contract is immoral or illegal as between
plaintiff and defendant, sounds at all times very ill in the mouth of the
defendant. It is not for his sake, however, that the objection is ever
allowed; but it is founded in general principles of policy, which the
defendant has the advantage of, contrary to the real justice, as between
him and the plaintiff, by accident, if I may so say.”
57. This is, as it seems to me, consistent with elementary justice. If the bank
robbers (or terrorists) are using explosives in their crime, and A is injured by a
premature explosion attributable to the carelessness of B, it does not seem to me to
be controversial to deny A a civil claim against B. That will not be because he
voluntarily accepted the risk of B’s negligence; on the contrary he no doubt relied
on B to do his job well. It will be because there is such a close connection between
the illegality and the civil claim that the court could not consistently condemn the
first and give relief upon the second. For the same reason, claims by one criminal
against another in relation to bad driving in escape from the crime will fail.
58. Conversely, when the illegality is not sufficiently closely connected to the
claim, and can properly be regarded as collateral, or as doing no more than providing
the context for the relationship which gives rise to the claim, the bar of illegality will
not fall. An example is Saunders v Edwards [1987] 1 WLR 1116, where a claim in
fraud relating to the sale of real property was not defeated by a collateral agreement
between the parties to deflate the price in order to avoid stamp duty. Bingham LJ
stated the principle thus, at p 1134:
Page 22
“Where issues of illegality are raised, the courts have…to steer a
middle course between two unacceptable positions. On the one hand
it is unacceptable that any court of law should aid or lend its authority
to a party seeking to pursue or enforce an object or agreement which
the law prohibits. On the other hand, it is unacceptable that the court
should, on the first indication of unlawfulness affecting any aspect of
a transaction, draw up its skirts and refuse all assistance to the
plaintiff, no matter how serious his loss nor how disproportionate his
loss to the unlawfulness of his conduct. … [O]n the whole the courts
have tended to adopt a pragmatic approach to these problems, seeking
where possible to see that genuine wrongs are righted so long as the
court does not thereby promote or countenance a nefarious object or
bargain which it is bound to condemn. Where the plaintiff’s action in
truth arises directly ex turpi causa, he is likely to fail…[w]here the
plaintiff has suffered a genuine wrong, to which allegedly unlawful
conduct is incidental, he is likely to succeed…”
Once again, it can be seen that the proportionality to which Bingham LJ was
directing his attention was such as lay between the claimant’s offence and the claim,
not as between the claimant’s turpitude and that of the defendant. However, although
the relative turpitude of claimant and defendant is not the test, the extent of the
claimant’s turpitude may be relevant to determining whether there is a sufficiently
close connection between the illegal act and the claim. An example is Vakante v
Governing Body of Addey and Stanhope School (No 2) [2004] EWCA Civ 1065;
[2005] ICR 231, in which the claimant had obtained his employment not only in
breach of immigration law but also by criminal deception which caused the
employers to take him on, and to risk themselves committing an offence, quite
innocently; there his illegal acts were held to be so central to his claims for statutory
discrimination, both in employment and in dismissal, as to bar them.
59. For the reasons given by Lord Wilson, I agree that the claim of statutory tort
in the present case was set in the context of the claimant’s unlawful immigration,
but that there was not a sufficiently close connection between the illegality and the
tort to bar her claim. Contrast her claim to recover for breach of contract of
employment (or, by statutory extension, for unfair dismissal), when such claims
depend on a lawfully enforceable contract of employment but her whole
employment was forbidden and illegal.
Human Trafficking?
60. Human trafficking is a very serious crime, recognised both internationally
and nationally. Those who practise it can expect, and receive in England and Wales,
severe penalties. The position of those who have been transported is, however, more
Page 23
complex. First, the line between (on the one hand) trafficking properly so called
and (on the other) the often rapacious demands for money made by agents of persons
who are only too keen to be transported to a western country may sometimes be
difficult to discern in a particular case. The latter situation is generally referred to
as smuggling, to distinguish it from trafficking. Second, assuming that the case is
indeed one of trafficking, properly so called, the question arises how offences
committed by the trafficked person ought to be treated.
61. The UK is bound by a series of international instruments, all of which adopt
the same definition of trafficking, which originates in the Protocol to the UN
Convention against Transnational Organised Crime, 2000 (“the Palermo Protocol”),
ratified by the UK on 9 February 2006. The accepted definition is, as set out by Lord
Wilson:
“For the purposes of this Protocol:
(a) ‘Trafficking in persons’ shall mean the recruitment, transportation,
transfer, harbouring or receipt of persons, 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, for the purpose of
exploitation. 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;
(b) The consent of a victim of trafficking in persons to the intended
exploitation set forth in subparagraph (a) of this article shall be
irrelevant where any of the means set forth in subparagraph (a) have
been used;
(c) The recruitment, transportation, transfer, harbouring or receipt of
a child for the purpose of exploitation shall be considered ‘trafficking
in persons’ even if this does not involve any of the means set forth in
subparagraph (a) of this article.”
The same definition appears in subsequent international instruments, the Council of
Europe Convention on Action against Trafficking in Human Beings 2005 (CETS
No 197) (“the Council of Europe Convention”), ratified by the UK on 17 December
2008 and the directly effective EU Directive 2011/36/EU on Preventing and
Page 24
Combating Trafficking in Human Beings and Protecting its Victims (“the EU
Directive”), which came into effect on 6 April 2013, after the events with which this
case is concerned. The first two instruments are not part of English law, but it is of
course a general principle of that law that ambiguous questions of construction are
to be resolved in favour of compliance with the UK’s international obligations where
reasonably possible, and such obligations may similarly inform the application of
open questions of common law.
62. It follows that under these instruments transportation amounts to trafficking
if, in the case of an adult it is (a) accomplished by threat, force, deception or the
other forms of coercion referred to and (b) only if it is undertaken with a view to
exploitation, in the sense defined. In the case of a child, (b) suffices. Assuming for
the moment that Miss Hounga was a child at the time, which seems overwhelmingly
likely, it remains necessary that the transportation was undertaken with a view to
her exploitation. Her subsequent exploitation (again assuming despite the absence
of findings that it is correctly so described) is no doubt evidence of a prior intent on
the part of Mrs Allen, but it is not conclusive, and the tribunal has made no finding
one way or the other.
63. However that may be, if this was trafficking, the position of offence(s)
committed by Miss Hounga remains to be considered. None of the international
instruments, nor any rule of English criminal law, provides any automatic defence
to a trafficked person who commits a criminal offence: see R v L(C) [2013] EWCA
Crim 991; [2013] 1 All ER 113 per Lord Judge CJ at paras 13 and 17, and R v M(L)
[2010] EWCA Crim 2327; [2011] 1 Cr App R 135 at paras 13 and 14. The
mechanism of the instruments is different. The second and third of them (although
not the first) stipulate that signatory States must have a system which allows for the
discretionary non-punishment of those who have committed offences which they
were compelled by their trafficking to commit. This is particularly necessary in the
several European countries where it is a general principle of the criminal law that
prosecution must follow the commission of any offence (see for example section
152(2) of the German Code of Criminal Code of Procedure and article 112 of the
Italian constitution) but it applies also in England and Wales where the Crown
always has an ex post facto discretion to decide against prosecution if it is not judged
to be in the public interest. Thus article 26 of the Council of Europe Convention
provides:
“Each party shall, in accordance with the basic principles of its legal
system, provide for the possibility of not imposing penalties on
victims for their involvement in unlawful activities, to the extent that
they have been compelled to do so.”
Article 8 of the EU Directive is to the same effect:
Page 25
“Member States shall, in accordance with the basic principles of their
legal systems, take the necessary measures to ensure that competent
national authorities are entitled not to prosecute or impose penalties
on victims of trafficking in human beings for their involvement in
criminal activities which they have been compelled to commit as a
direct consequence of being subjected to [trafficking].”
64. Thus, the internationally recognised rule is clear, as is English criminal law.
The trafficked victim, assuming that is what she is, is not relieved of criminal
liability for an offence which she has committed. If, however, she was compelled
to commit it as a direct consequence of being trafficked, careful consideration ought
to be given to whether it is in the public interest to prosecute her. In the present
case, there is no finding that Miss Hounga was compelled to commit the immigration
offences which she committed; the tribunal understandably found that she was well
aware of what she was doing and voluntarily did it in the hope of advantage. Young
as she clearly was, she was no doubt under the influence of Mrs Allen and that would
constitute very real mitigation if punishment were in question. But what her
trafficking, if that is what it was, does not do is to take away the illegality of what
she knowingly did.
65. Article 6(6) of the Palermo Protocol provides:
“Each State Party shall ensure that its domestic legal system contains
measures that offer victims of trafficking in persons the possibility of
obtaining compensation for damage suffered.”
It is not possible to interpret this international obligation as requiring English law to
permit Miss Hounga to recover damages for the statutory tort of discrimination.
That statutory tort is not in any sense co-extensive with trafficking or for that matter
with exploitation. For the same reasons, it would not be possible to interpret this
article as requiring English law to depart from its general principles of illegality so
as to enable a person such as Miss Hounga to recover wages under an unlawful
contract of employment. Moreover, the EU Directive, now in force, is more specific
and explains what article 6(6) appears to have in mind:
“Article 17
Compensation to victims
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Member States shall ensure that victims of trafficking in human beings
have access to existing schemes of compensation to victims of violent
crimes of intent.”
66. For the sake of completeness, it should be noted that there are currently
Government proposals to reinforce the English statutory law on trafficking: see the
Draft Modern Slavery Bill (Cm 8770) and proposed adjustments to it following
consideration by the joint parliamentary committee (Cm 8889). They are mostly
directed to making more severe the controls of, and penalties upon, traffickers, but
there are some which affect the position of victims. These are at present proposals
only and there can be no certainty that they will be enacted in the form currently
suggested. But even if they are, they would not alter the position set out above in
any manner which would alter the conclusions set out above in relation to Miss
Hounga. The proposals include:
a. to provide a trafficked person with a statutory defence to a criminal
offence but only where he or she has been compelled to commit the
offence; this would be a change to English law, but there is in this
case no sufficient evidence, still less a finding, that Miss Hounga was
compelled to commit her immigration offences;
b. to provide for amendments to the Proceeds of Crime Act 2002 so as
to enable victims of trafficking to be compensated out of the
confiscatable assets of traffickers; there is already a power to order
compensation, which may be payable out of confiscatable assets, but
even if this alters the position significantly it will be directed at
compensation for trafficking and for the reasons set out above would
not impact on the application of the ordinary principles of illegality as
a bar to civil claims.
Conclusion
67. For these reasons my conclusion is that Miss Hounga succeeds in her appeal,
on the particular facts of this case, on the ground that there is insufficiently close
connection between her immigration offences and her claims for the statutory tort
of discrimination, for the former merely provided the setting or context in which that
tort was committed, and to allow her to recover for that tort would not amount to the
court condoning what it otherwise condemns. But it is not possible to read across
from the law of human trafficking to provide a separate or additional reason for this
outcome. Even if one assumes in Miss Hounga’s favour that her treatment by Mrs
Allen in England amounted to slavery or forced labour, and even if one assumes,
without any findings of fact, that Mrs Allen brought her to England with the purpose
of so treating her, she does not appear to have been compelled to commit the
immigration offences which she certainly did commit.
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