Commentary on Sections Part 2 - Criminal Law Section 46 - People trafficking
236.Trafficking for the purposes of prostitution or for the making or production of obscene or indecent material is an offence under the provisions of section 22 of the Criminal Justice (Scotland) Act 2003, (the “2003 Act”) including where it is believed that another person is likely to exercise such control or to so involve the individual.
237.Section 46 amends section 22 of the 2003 Act by:
	aligning the wording of section 22 of the 2003 Act with that now contained in the Sexual Offences Act 2003 by amending section 22(1)(a) to extend its scope so that it refers to facilitating “entry into” the UK as well as the “arrival in” the UK to reflect the changes made by the UK Borders Act 2007;
	creating a new offence (under section 22(1A)) which covers the trafficking of persons into, within or out of a country other than the UK;
	amending section 22(2), which explains what is meant by a person exercising control over prostitution by an individual, so that it applies to the new offence;
	substituting a new section 22(4) to provide that the offences in sections 22(1) and (1A) apply to anything done in or outwith the UK;
	replacing section 22(5) to provide greater certainty in statute to clarify that the sheriff court has jurisdiction, under both solemn and summary procedure, for any offence to which section 22 applies;
	amending section 22(6) by extending the extra-territorial effect by providing that the offences in sections 22(1) and (1A) apply to UK nationals, persons habitually resident in Scotland and UK corporate bodies.
238.Similar changes are made to the offences relating to trafficking for purposes other than sexual exploitation in sections 4 and 5 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 (“the 2004 Act”) by amending:
	section 4(1) by extending its scope so that it refers to “entry into” the UK as well as the “arrival in” the UK to again reflect changes made by the UK Borders Act;
	section 4(2) to remove the requirement that a person who arranges or facilitates the travel of an individual within the UK intending to exploit that individual (or believes that someone else is likely to do so) has a belief that an offence under section 4(1) may have been committed; and
	creation of a new offence under section 4 as set out in new section 4(3A) which covers the trafficking of persons into, within or out of a country other than the UK regardless of where the exploitation is to occur.
239.The definition of exploitation in section 4(4) of the 2004 Act is expanded in several ways:
	The existing reference in section 4(4)(b) to exploitation which would involve offences under the UK human tissue legislation is expanded to ensure that it applies to such conduct wherever it takes place.
	A new paragraph (ba) is added to cover exploitation involving removal of body parts which would amount to an offence other than under the human tissue legislation (which deals principally with removal of organs for transplantation). For these purposes body parts comprise all parts of the body including blood.
	The existing paragraph (d) in section 4(4) is replaced by a new paragraph (d) to make an equivalent change to that made for other parts of the UK in section 54 of the Borders, Citizenship and Immigration Act 2009, to cover the use or attempted use of a person for the provision of services or the provision or acquisition of benefits of any kind, where the person is chosen on the grounds of ill-health, disability, youth or family relationship. This will ensure the offence captures those cases where the role of the person being exploited is entirely passive, and where the person is being used as a tool by which others can gain a benefit of any kind.
	Section 5 of the 2004 Act is amended to make clear that the offences in section 4(1), (2), (3) and (3A) apply to anything done in or outwith the UK and that the extra-territorial effect is extended by providing that these offences apply to UK nationals, persons habitually resident in Scotland and UK corporate bodies. New subsections (2A) and (2B) have been added to this section of the 2004 Act in order to confirm that the sheriff court has jurisdiction, under both solemn and summary procedure, for any offence to which section 4 applies.