Människohandel och slaveri, särskilt sexuell trafficking, är vår tids värsta brottslighet. Cynisk och vidrig. Den innevarande regeringen har tagit krafttag om människohandel och liknande brottslighet. I en ny utredning, som jag hörde intressant presenteras av utredaren i fredags på den Internationella Brottsofferdagens stora konferens, föreslås utvidgningar av den ännu tydligen alltför tama regeln i brottsbalken om människohandel. Det är förstås lovvärt. Men regeringen har ännu inte insett att rättsordningen har fler användbara verktyg för att bekämpa denna hemska brottslighet. Civilrätten, liksom andra delar av rättsordningen, kan göra mycket mer nytta här än man kan tro. Det skulle behövas en utredning även om detta, t.ex. en utredning om ”Människohandel – civilrättsliga aspekter”.
Sverige laggar efter. I andra rättsordningar så står civilrätten för den mest intressanta rättsutvecklingen när det gäller trafficking. Från en e-post-lista jag är med på fick jag idag information från Birmingham-professorn James Lee, rörande ett avgörande i denna utveckling. Jag citerar detta in extenso, eftersom e-post-listan även finns tillgänglig på webben.
Treacy J has today given judgment in AT & Ors v Dulghieru & Anor  EWHC 225 (QB) (19 February 2009) http://www.bailii.org/ew/cases/EWHC/QB/2009/225.html, a case where the claimants alleged an unlawful conspiracy to traffic them into the UK from Moldova and to enslave them sexually. The defendants had been convicted of offences arising out of the horrific facts. They claimed damages for pain, suffering and loss of amenity in respect of post traumatic stress disorder, coerced sexual activity and false imprisonment. They also claimed special damages but these were not substantiated and so not awarded. There was also an award of aggravated damages, as the judge considered “that the Defendants’ conduct was so appalling, so malevolent, and so utterly contemptuous of the Claimant’s rights as to amount to exceptional conduct warranting an award of aggravated damages. Moreover I consider that the injury to the individual Claimants’ feelings of human pride and dignity, taken together with the humiliation, distress, degradation and insult inflicted upon them by the Defendants’ actions is such that they would not be adequately compensated for these injuries to their feelings if the award were restricted to that which I have already awarded by way of general damages.”
Of especial interest, aside from the fact of bringing of a tort claim for unlawful conspiracy in this context, is the judge’s award of exemplary damages. The judge regards such damages in this case as being “primarily one of preventing unjust enrichment”, although it is not clear whether it is used in this case in a technical or loose sense, given the process of assessment of the eventual sum. The relevant paragraphs are -:
- The pre-conditions for such an award are to be found in Rookes v Barnard  AC 1129. At pages 1226-7 Lord Devlin sets out his second category in relation to which such damages may be awarded, namely in circumstances where a Defendant with a cynical disregard for a Claimant’s rights, has calculated that money to be made out of his wrongdoing will probably exceed the damages at risk.
- I must bear in mind, as Lord Devlin did at page 1230 of Rookes v Barnard, that where the tortious activity is also criminal, it is undesirable that an aggrieved party should be given an option to inflict for his own benefit punishment by a method which denies to the offender the protection of criminal law. However, the criminal proceedings in this country did not result in any order of compensation to these Claimants. Moreover, the Defendants’ exposure under this head can be appropriately limited by bearing in mind the rationale for the second category of exemplary damages as identified by Sedley LJ at paragraph 26 of Borders (UK) Limited and Others v Commissioner of Police of the Metropolis  EWCA Civ 197. The rationale behind the second category is not the punishment of the Defendant, but the prevention of his unjust enrichment.
- I accept the submission that where the word ”calculated” was used by Lord Devlin, this was not intended to require some precise mathematical process or detailed reasoning. What is necessary is that the Defendants deliberately acted in a way regardless of the Claimants’ rights, with a view to making profit for themselves in circumstances which were likely to produce profits for them beyond anything that could subsequently be recovered from them by way of any legal process. The evidence here convinces me that these Defendants acted in such a way. Their activities, along with their associates, were carried out in such a way as to generate huge benefits for themselves, as exemplified by confiscation orders made in the criminal proceedings, totalling approximately £786,000.00.
- The victims of their conduct (and it is plain that there was a significant number of other young women in a similar plight) were told that they had to work off so called debts of £20,000.00 as the price of their being brought to this country. They were quoted rents for the accommodation in which they were being kept against their will of £300.00 a day, and they were required to indulge in commercial sexual encounters with large numbers of men per day, entirely without regard for their wishes, comfort or physical wellbeing. I am sure that these Claimants had no idea of the level of monies being generated for the benefit of these Defendants and their associates. I am satisfied that the Defendants felt confident that by reason of their use of coercion and threats, that they would never face any financial reckoning at the hands of these Claimants.
- Since the rationale behind an award of exemplary damages is primarily one of preventing unjust enrichment, I need to consider whether the making of the confiscation orders in the criminal proceedings would in any way preclude an award of exemplary damages. For the reasons analysed in the Borders (UK) case, I do not think it would. Moreover, as already observed, the outcome of the criminal trial resulted in no compensatory award to these Claimants. In addition, although very large confiscation orders were made in the result, the First Defendant was found to have nothing to pay in terms of realisable assets, and the Second Defendant was ordered to pay £4,000.00 only as representing her realisable assets.
- The profits made by these Defendants at the expense of these Claimants far exceed those sums. In those circumstances I am confident that the Defendants will not be mulcted in the same sum twice. As to the level of quantum, there are no strict rules for the assessment of an award. I have considered Lord Woolf’s observations in Thompson, at page 157c where he envisages a bracket of between £5,000.00 and £50,000.00, the latter representing an absolute maximum in cases involving assault, false imprisonment and malicious prosecution by the police. I remind myself of the judgment of Lord Devlin in Rookes v Barnard, at page 1228, where he stated that in a case where exemplary damages are appropriate, a jury should be directed that if, but only if, the sum which they have in mind to award as compensation is inadequate to punish the Defendant for his outrageous conduct, then it can award some larger sum.
- I do not consider that the sums so far awarded to the Claimants suffice to show these Defendants that their misdeeds do not pay, nor do they mark the court’s disapproval of their outrageous conduct.
- I note the evidence which demonstrates to me that these young women had to charge up to £50.00 for a fifteen minute sexual encounter. I note the estimates of individuals that they were generating between £500.00 and £1,000.00 per day by their activities, dependent on which brothel they were taken to. These daily figures represent amounts generated per individual. None of them saw any of the money they had generated. I use these figures, together with the other evidence about a daily rental of £300.00 and the bond of £20,000.00 per victim, in order to assist me in gaining a feel for an appropriate level of exemplary damages.
- Having regard to Riches v News Group Newspapers Limited  QB 256, I consider that the correct approach is to fix an overall sum and then divide it equally between the Claimants. I think it is appropriate to do that in this case since they have all been subjected to the same type of unconscionable behaviour by these Defendants. They have not invited me to differentiate between them. Looking at the matter overall, and taking account of the compensatory awards, by way of basic damages and aggravated damages, I conclude that a further sum of £60,000.00 should be awarded by way of exemplary damages. That sum will be divided equally between the four complainants so that the figure of £15,000.00 is to be added to each of the sums awarded to them by way of basic and aggravated compensatory damages.
- It follows that the total amount awarded to these Claimants against these Defendants, who are liable jointly and severally are, in the case of AT £175,000.00, NT £162,000.00, in the case of ML £132,000.00 and in the case of AK £142,000.00.
För mig är detta särskilt intressant eftersom det återspeglar nästan exakt vad jag argumenterar för i min bok Kränkning som kom ut innan jul förra året. Det finns inte några liknande fall i svensk rätt. Än.