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Appears in Collections:Law and Philosophy Journal Articles
Peer Review Status: Refereed
Title: Servitude, Slavery and Scots Law: Historical Perspectives on the Human Trafficking and Exploitation (Scotland) Act 2015
Author(s): Brown, Jonathan
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Keywords: slavery
Scots law
human rights
Issue Date: Sep-2020
Date Deposited: 12-Sep-2022
Citation: Brown J (2020) Servitude, Slavery and Scots Law: Historical Perspectives on the Human Trafficking and Exploitation (Scotland) Act 2015. <i>Legal Studies</i>, 40 (3), pp. 353-375.
Abstract: Section 4(1)(a) of the Human Trafficking and Exploitation (Scotland) Act 2015 states that it is an offence for any person to hold another person in servitude or slavery. In February 2018, John Miller and Robert McPhee appeared at the High Court in Glasgow, charged on indictment with this offence. In defining both 'servitude' and 'slavery', the court was obliged, per s 4(2) of the 2015 Act, to have due regard to the understanding of these terms which has evolved out of the jurisprudence of Article 4 of the European Convention on Human Rights (ECHR). 'Slavery', then, was said to denote 'the status or condition of a person over whom any or all of the powers attaching to the rights of ownership are exercised'. If, however, the definition of 'slavery' necessarily 'involves rights of ownership', then it follows that any enactment of law specifically proscribing slavery is nugatory. Indeed, in Miller, the court ultimately held that 'there was no evidence upon which they could hold that the complainer had been held in a state of slavery'. This paper consequently asks whether or not in passing s 4(1)(a) of the 2015 Act, Parliament criminalised an impossible action.
DOI Link: 10.1017/lst.2020.4
Rights: This article has been published in a revised form in Legal Studies This version is published under a Creative Commons CC-BY-NC-ND. No commercial re-distribution or re-use allowed. Derivative works cannot be distributed. © The Society of Legal Scholars 2020.
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