Human Trafficking and Modern Slavery Law and Practice 9781526514783, 9781526514813, 9781526514806

Table of contents :
Foreword to second edition
Foreword to first edition
Preface
Editors’ biographies
Contributors’ biographies
Table of Statutes
Table of Statutory Instruments
Table of European Legislation
Table of Cases
Chapter 1 Definitions, policy and legal frameworks by Michelle Brewer
Introduction
Legal and policy framework for definition of human trafficking
General
Definition
The three elements of trafficking
First element of the trafficking definition: the act
Recruitment
Transportation
Transfer
Harbouring
Receipt of persons
Second element of the trafficking definition: the means
Coercion
Deception and fraud
Abuse of power or of a position of vulnerability
The giving or receiving of payments or benefits to achieve the consent of a person having control over another person
Third element of the trafficking definition: for the purpose of exploitation
A child-sensitive approach
Third element: exploitation of children
Credibility: a child-sensitive approach
Definition of victims of slavery, servitude and forced or compulsory labour
The ‘means’ element of the definition of modern slavery
Coercion
Threat of a penalty
Smuggling legislation
Chapter 2 Determination of trafficking status by Emma Fitzsimons and Michelle Brewer
Introduction
Status of an NRM trafficking decision in First-Tier Tribunal (‘FTT’) (IAC) and Upper Tribunal decision-making
Identification as a ‘protective duty’ and ECHR, Art 4
National Referral Mechanism
Identifying victims of trafficking
First responders
Duty to notify
Single Competent Authority
Identification decision-making process
Reasonable grounds decision
Standard and burden of proof
Assessment of evidence of trafficking
Indicators of trafficking
Complex issues in identification
Experiences of victims and identification
The conduct of traffickers
‘Credibility’ and mitigating factors
Expert evidence
Evidence from support organisations
Evidence from other experts
Timing of decision
Relevance of criminal investigations to the NRM decision
Consequences of positive reasonable grounds decision
Recovery and reflection period
Relevance of trafficking decisions in other proceedings
Negative reasonable grounds decision
Request to reconsider the decision
Conclusive grounds decision
Standard of proof
Assessment
Timing of decision
Consequences of positive conclusive grounds decision
Negative conclusive grounds
Challenging negative decisions
Multi-Agency Assurance Panels (‘MAAPs’)
Victims who go missing
Asylum seekers
Historical victims
Common grounds of challenge to negative identification decisions
Chapter 3 Age disputes in immigration and criminal proceedings by Shu Shin Luh
Introduction
Importance and relevance of age in the context of social welfare law
Importance and relevance of age in the context of immigration law
Importance and relevance of age in the context of youth justice
Decision to prosecute
First appearances
Bail
Mode of trial
Assessing age
Approach to be taken by a court to determine age in a social welfare and immigration law context
Approach of criminal court to age disputes
Chapter 4 Criminal offences of trafficking by Ben Douglas-Jones QC, Michelle Brewer and Pam Bowen CBE
Introduction
Offences under the Modern Slavery Act 2015
Slavery, servitude and forced or compulsory labour: MSA 2015, s 1
Human trafficking: MSA 2015, s 2
Exploitation: MSA 2015, s 3
Transposition
Sentencing
Committing any offence with intent to commit an offence under s 2
Unlawful restriction of liberty
Kidnapping and false imprisonment
Child abduction
Sentence
Immigration offences
Sentence
Offences related to the ‘use’ of victims of slavery and trafficking
Sexual exploitation
Drug offences
Worker exploitation
Other offences
Orders on conviction
Confiscation
Forfeiture
Civil orders
Commentary on MSA
Chapter 5 Criminal defences available to victims of trafficking by Ben Douglas-Jones QC, Michelle Brewer and Pam Bowen CBE
Introduction
Non-punishment principle: International instrument
Palermo Protocol
Non-punishment principle: Regional instruments
ECAT, Article 26
The EU Trafficking Directive
Non-punishment principle: Domestic law
CPS policy guidance
Prosecutorial staged inquiry
First stage: Is there a reason to believe that the person is a victim of trafficking or slavery?
Second stage: Is there clear evidence of duress?
Third stage: Is there clear evidence of a s 45 defence?
Fourth stage: Is it in the public interest to prosecute?
Abuse of process
Excluded offences under Sch 4
Right to a fair trial and/or misconduct by the prosecution
Complex cases
Is it in the public interest to prosecute the victim of trafficking?
Presenting without delay
Good cause
Article 31
Annex
Chapter 6 Victims of human trafficking: at the police station by Steven Bird, Michelle Brewer and Philippa Southwell
Arrival at the police station
Risk assessment
Police training and development
Provision of rights
Criminal Defence Direct
Duty to attend the police station
Arrival of the legal representative at the police station
Interaction with the detained person
Interpreters
Initial meeting with the client
Identifying the client as a potential victim of trafficking: disclosure
Instructions not to disclose: the ethical dilemma
Advice
Positive obligations owed to a victim of trafficking by the state
The NRM and the duty to notify
Crime recording
The police interview
Age of potential victim of trafficking
Appropriate adult
After the interview
Police bail
Limits on period of detention without charge
The charging decision
Interviews where disclosure has been made
Police interviewing techniques with vulnerable witnesses
Achieving Best Evidence interviews
Chapter 7 Criminal court process by Felicity Gerry QC, Paramjit Ahluwalia, Ben Douglas-Jones QC and Philippa Southwell
Introduction
Police station and charge
Post-charge
Magistrates’ court
First appearance
Assessing the evidence
Bail application
Custody time limits
Age assessments
Abuse of process
Section 45
Summary only offences
Either way offences
Crown Court
PTPH – form and key issues
Fitness to plead: Crown Court
The current test for unfitness to plead
Fitness to plead procedure
Trial of the acts or omissions
Disposal rather than sentence
Fitness to plead: magistrates’ and youth courts
Disposal of defendants suffering from a mental disorder
The role of expert evidence
Adducing expert evidence
Admissibility of expert evidence
Indictment and severance
Arraignment
Defence statements
Disclosure requests
Bad character applications
Trial issues
Questioning of the ‘officer in the case’
Exclusion of interview
Adverse inferences from failure to mention facts in police interview
Defendant giving evidence
Absconders
Pre-sentencing application to vacate a guilty plea
Sentencing
Chapter 8 Special measures for victims of trafficking by Michelle Brewer, Philippa Southwell, Rachel Witkin, Dr Eileen Walsh, Kalvir Kaur, Paramjit Ahluwalia and Felicity Gerry QC
General principles
Understanding the psychological impact of human trafficking
Trauma-based mental health problems and legal proceedings
Non-visible physical injuries
Children and young people
Best practice methods of working with victims of trafficking for legal practitioners
General principles
Expert medical evidence
Working appropriately and effectively with victims of trafficking
Effective interviewing – best practice
Home Office Statutory Guidance on Interviewing Victims of Trafficking
Special measures in Immigration and Asylum Tribunal proceedings
Tribunal Guidance and Practice Directions
The Tribunal Procedure Rules
Examples of special measures and reasonable adjustments
Intermediaries
Anonymity
Private hearings
Special measures in criminal proceedings
Introduction
Trauma – informed approach
Eligibility for special measures for witnesses in criminal proceedings
Child witnesses
Applications for special measures for witnesses
Ground rules hearings
Special measures for accused persons/defendants who are victims of trafficking
Child defendants
Vulnerable adult defendants
Intermediaries
Witness anonymity
Reporting identity of child witnesses and child defendants
Adult defendant anonymity
Applications to move proceedings
Applications to hold a Crown Court hearing in camera
Chapter 9 Criminal appeal process by Ben Douglas-Jones QC, Michelle Brewer, Philippa Southwell and Paramjit Ahluwalia
Introduction
Appeals to the Crown Court
Applications to re-open cases under s 142
Committal for sentence – no bar to re-opening
Effect of re-opening
Appeals to the Court of Appeal
Appeal against sentence
Grounds of appeal against sentence
Common grounds of challenge on appeal against conviction
Fresh evidence
McCook correspondence
Decisions of Competent Authority
Extensions of time
Appeal following a guilty plea in the Crown Court
Further applications that may be made with an application for leave to appeal
Applications for bail on appeal
Anonymity for applicants in the Court of Appeal Criminal Division
Requests to expedite the hearing
Applications for funding
Request for transcripts
Request for an oral leave hearing
Absconding/missing
Applications to the Criminal Cases Review Commission
Appeals by a prosecutor against a ‘terminating’ ruling
Chapter 10 International protection claims brought by victims of human trafficking and modern slavery by Michelle Brewer and Gemma Loughran
Introduction
The role of the NRM identification decision in Tribunal decision making
Refugee Convention
Introduction
Definition
Well-founded fear of persecution
For reasons of race, religion, nationality, membership of a particular social group or political opinion
Unable or … unwilling to avail himself of the protection of that country
Internal relocation
Credibility
European Convention on Human Rights
Introduction
Trauma-based claims
Slavery
Servitude
Forced or compulsory labour
Child labour
Positive obligations under ECHR, Art 4
Expert evidence in asylum and immigration proceedings
Chapter 11 Safeguarding child and adult victims of trafficking and immigration detention by Shu Shin Luh and Christine Beddoe
Safeguarding and immigration detention: children
Introduction
Policy and guidance
Assessment of vulnerability
Children detained in immigration or criminal proceedings
The duty to notify
Missing children
County lines trafficking
Child trafficking guardians
Policy versus practice
Safeguarding children who may be affected by immigration control
The s 55 safeguarding duty
Detention and safeguarding of children
Safeguarding and immigration detention: adults
Adults at risk: Immigration Act 2016 and statutory guidance
Adults at risk: statutory guidance and practice
Adults at risk and trafficking
Safeguarding and release
Chapter 12 Compensation for victims of trafficking by Maya Sikand
Introduction
Compensatory obligations
Compensation in criminal proceedings
Compensation orders
Slavery and trafficking reparation orders
The Criminal Injuries Compensation Scheme
Eligibility
Time limits
Level of awards
Grounds for withholding or reducing an award
The Miscarriage of Justice Application Scheme
Are victims of trafficking who have had their convictions set aside eligible under the Scheme?
Procedure
The award
Non-pecuniary loss
Human Rights Act 1998 claims against public bodies
The investigative duty
The scope of the investigative duty revisited
Just satisfaction
Claims against traffickers
Tortious claims against individual traffickers
Tortious and other claims against a company
Employment tribunal claims
Chapter 13 Public funding for victims of trafficking by Steven Bird and Lindsay Cundall
Advice on arrest for a criminal offence
Work after release from police station but before charge
Witnesses at risk of self-incrimination
Advice during criminal court proceedings at first instance
Magistrates’ court proceedings
Crown Court proceedings
Prior authority for disbursements
Defendant intermediaries
Extension of legal aid to Queen’s Counsel or two advocates
Transfers of legal aid
Billing time limits
Advice on appeal against conviction and/or sentence where the solicitors acted at trial
Appeals from the magistrates’ court to the Crown Court
Appeals from the Crown Court to the Court of Appeal
Funding in the Court of Appeal (Criminal Division)
Applications to the Court of Appeal out of time and CCRC applications: Advice and Assistance Scheme
Sufficient Benefit Test
Financial test
Previous advice
Financial limits and applications to extend
CCRC applications
Postal application
Telephone advice
Outward travel
Previous advice under the Legal Advice and Assistance Scheme
Counsel’s fees
Applications to re-open the case in the magistrates’ court
Applications for compensation under s 133
The availability of legal aid for potential victims of trafficking on immigration matters
The gap in legal aid provision for victims of trafficking
Exceptional case funding
Legal aid for potential victims of trafficking in immigration detention
What practical steps are needed to represent a potential victim of trafficking under legal aid in immigration matters?
Legal help
Controlled Legal Representation
Legal Help and CLR: extensions, costs limits and experts
Civil legal aid for judicial review
Investigative representation
Full representation
Emergency certificate
Substantive certificate
Declaration against instructions
The permission decision, amending scope
Experts and extensions of cost limits
Civil legal aid: financial risks
Chapter 14 Extradition by Mary Westcott
Introduction
Extradition proceedings
Generally
Time limits
The Crown Prosecution Service and the NCA
Common challenges
Procedural issues
Evidence
Victim identification
Undermining the NRM?
Substantive issues
Chapter 15 Trafficking operations and modus operandi by Hossein Zahir QC, Philippa Southwell, Phil Brewer and Steve Harvey
Introduction
Exploitation typologies and common control methods
Physical and sexual violence
Deception
Debt
Isolation
Dependency
Emotional control
Culture and faith
Family involvement
Modus operandi of known modern slavery cases
Post Modern Slavery Act 2015
Sexual exploitation
Labour exploitation
Crime
Criminal exploitation
Criminal exploitation and ‘county lines’
Trafficking and terrorism
An international perspective
A domestic perspective
Common forms of forced criminality
Chapter 16 Ethics by Felicity Gerry QC and Philippa Southwell
Whether to refer a client through the National Referral Mechanism
How to advise a client in a police interview
Privilege and confidentiality issues
Chapter 17 Investigating trafficking and exploitation offences by Caroline Haughey OBE, QC, Phil Brewer, Michelle Brewer and Ben Douglas-Jones QC
The complainant
Investigatory interviews
Children
PEACE model of investigatory interviewing
Planning and preparation
Engage and explain
Account and challenge
Closure
Investigations beyond the complainant’s account
Other lines of enquiry
International material
The accused
Charging
Risk orders
Disclosure
Trial
Chapter 18 Forced criminality and non-criminalisation of trafficked persons in the International Criminal Court by Wayne Jordash QC
Introduction
Current status on recognition of non-criminalisation under international law
Non-criminalisation generally
UN Model Law against Trafficking in Persons (2009)
Non-criminalisation in armed conflict
Non-criminalisation in international criminal law
Non-criminalisation and nexus between the trafficking and offending
Duress as a defence under international criminal law
The ICC’s Rome Statute
Evolution of duress in international criminal law
Adoption of Art 31(1)(d) of the Rome Statute
Article 31(1)(d) and unlawful killing
Article 31(1)(d) conditions
Threat of imminent death or of continuing or imminent serious bodily harm
The person acted necessarily and reasonably to avoid the threat
The person acted proportionally in that he did not intend to cause a greater harm than the one sought to be avoided
Article 31(1)(d) defence of duress for trafficked persons
The Ongwen defence
How will the ICC approach Ongwen’s Art 31(1)(d) defence?
Article 31(1)(d) in action
Mere possibility of death not sufficient
Crime and threat analysis
Avoiding the threat
Proportionality and the gravest of crimes
Duress and trafficking
Chapter 19 Compliance and trafficking by Philippa Southwell, Michelle Brewer and Ben Douglas-Jones QC
Corporate compliance, business and human rights
Section 54: Modern Slavery Act 2015
Modern slavery compliance statement
Differing organisational structures
Content of the statement
Consequences of non-compliance
Corporate criminal offences
Section 54 statements: effectiveness and the future of compliance
Joint committee report
Independent Review of MSA 2015
Home Office consultation
Ethical Trading Initiative’s modern slavery statements evaluation framework
Overview
Section 1: Structure, business and supply chains
Section 2: Policies in relation to slavery and human trafficking
Section 3: Risk assessment, prevention and mitigation
Section 4: Due diligence processes
Section 5: Effectiveness, measured against appropriate key performance indicators
Section 6: Training and capacity building
Anticipated changes to s 54
Wales
California Supply Chains Act 2012 – a model for compliance
Index

Citation preview

Human Trafficking and Modern Slavery Law and Practice Second Edition

Human Trafficking and Modern Slavery Law and Practice Second Edition Philippa Southwell Solicitor Advocate, Southwell & Partners

Judge Michelle L Brewer First-tier Tribunal Immigration and Asylum Chamber

Ben Douglas-Jones QC 5 Paper Buildings Contributors Paramjit Ahluwalia, Barrister, Lamb Building Chambers Christine Beddoe, Independent Advisor on Human Trafficking Steven Bird, Director, Birds Solicitors Pam Bowen CBE, Senior Policy Advisor, CPS Phil Brewer, Advisor, Human Trafficking Foundation Lindsay Cundall, Solicitor, ATLEU (Anti-Trafficking and Labour Exploitation Unit) Emma Fitzsimons, Barrister, Garden Court Chambers Felicity Gerry QC, Libertas Chambers Steve Harvey, Independent Law Enforcement Advisor and Human Trafficking Expert Caroline Haughey OBE, QC, Furnival Chambers Wayne Jordash QC, Doughty Street Chambers Kalvir Kaur, Legal Advisor, Freedom from Torture Gemma Loughran, Barrister, Garden Court Chambers Shu Shin Luh, Barrister, Doughty Street Chambers Maya Sikand, Barrister, Doughty Street Chambers Dr Eileen Walsh, Helen Bamber Foundation Mary Westcott, Barrister, Doughty Street Chambers Rachel Witkin, Helen Bamber Foundation Hossein Zahir QC, Garden Court Chambers

Bloomsbury Professional An imprint of Bloomsbury Publishing Plc Bloomsbury Publishing Plc 50 Bedford Square London WC1B 3DP UK www.bloomsbury.com BLOOMSBURY and the Diana logo are trademarks of Bloomsbury Publishing Plc © Bloomsbury Professional Ltd 2020 Bloomsbury Professional Ltd has asserted its right under the Copyright, Designs and Patents Act 1988 to be identified as Author of this work. All rights reserved. No part of this publication may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording, or any information storage or retrieval system, without prior permission in writing from the publishers. While every care has been taken to ensure the accuracy of this work, no responsibility for loss or damage occasioned to any person acting or refraining from action as a result of any statement in it can be accepted by the authors, editors or publishers. All UK Government legislation and other public sector information used in the work is Crown Copyright ©. All House of Lords and House of Commons information used in the work is Parliamentary Copyright ©. This information is reused under the terms of the Open Government Licence v3.0 (http://www.nationalarchives.gov.uk/doc/open-governmentlicence/version/3) except where otherwise stated. All Eur-lex material used in the work is © European Union, http://eur-lex.europa.eu/, 19982020. British Library Cataloguing-in-Publication Data A catalogue record for this book is available from the British Library. ISBN:

PB: ePDF: ePub:

978 1 52651 478 3 978 1 52651 480 6 978 1 52651 479 0

Typeset by Evolution Design & Digital Ltd (Kent) To find out more about our authors and books visit www.bloomsburyprofessional.com. Here you will find extracts, author information, details of forthcoming events and the option to sign up for our newsletters

Foreword to second edition As was acknowledged in the introduction to the Report of the Modern Slavery Bill Evidence Review (Frank Field MP (now Baron Field of Birkenhead), Baroness Butler-Sloss and Sir John Randall MP (now Baron Randall of Uxbridge)) in 2013: ‘Slavery flourishes to this day, although unlike two hundred years ago, it is now invisible. It continues behind front doors, in factories and on farms, in brothels and on the streets of our towns and cities. To give just a few examples, across the country today there are Vietnamese boys forced to work on cannabis farms, Nigerian women held in domestic servitude, Polish and British men controlled by criminals as forced labourers, and British and Eastern European girls trafficked into prostitution. This, however, is by no means a comprehensive list of either the forms of modern slavery taking place in Britain or of the primary nationalities that are being exploited. Victims of modern slavery are hidden in plain sight, often trapped by forces more subtle than lock and key.’ The Modern Slavery Act 2015 (effective as of 31  July 2015) placed on a statutory footing provisions relating to slavery and human trafficking. It contains provisions for the protection of victims. Criminal offences were created which included holding another person in slavery or requiring another person to perform forced or compulsory labour.The 2015 Act, together with a number of International Conventions which had been agreed in order to address the issue of modern slavery, has provided the legal foundation for proceedings instituted in the courts of England and Wales. This book provides a detailed and practical guide to the legal regimes. The guidance is not confined to the courtroom. It realistically encompasses matters outside of a court hearing, relating to victims and those charged with a criminal offence. It is guidance which can properly form the basis of advice to be given by practitioners. It is necessary and welcome. The Rt Hon Lady Justice Nicola Davies DBE October 2020

v

Foreword to first edition Until recently, most would have thought that, even though it had taken well into the twentieth century to abolish slavery, it was a scourge and heinous crime that no longer afflicted us. However, slavery had gone underground. As was said in the introduction to the Report of the Review Panel (Frank Field MP, Baroness Butler-Sloss and Sir John Randall MP) in 2013: ‘Slavery flourishes to this day, although unlike two hundred years ago, it is now invisible. It continues behind front doors, in factories and on farms, in brothels and on the streets of our towns and cities. To give just a few examples, across the country today there are Vietnamese boys forced to work on cannabis farms, Nigerian women held in domestic servitude, Polish and British men controlled by criminals as forced labourers, and British and Eastern European girls trafficked into prostitution. This, however, is by no means a comprehensive list of either the forms of modern slavery taking place in Britain or of the primary nationalities that are being exploited. Victims of modern slavery are hidden in plain sight, often trapped by forces more subtle than lock and key.’ From 2000 International Conventions were agreed to deal with this scourge. Although in 2009 the UK government established a National Referral Mechanism to determine whether those who claimed to have been trafficked had in fact been trafficked, it was left to the judiciary (utilising the flexible nature of the common law in a series of decisions in 2011–2013) and to the Crown Prosecution Service (through the exercise of their independent prosecutorial discretion) to develop a legal regime for England and Wales in which the international obligations as they successively developed were given effect in the domestic law of England and Wales. In 2015 the Modern Slavery Act was passed, putting the law on a statutory footing with the additional benefits of strengthening the protection given to the victims of modern slavery and of making it easier to prosecute those who engage in trafficking.The Act generally came into effect on 31 July 2015, but was not retrospective. Thus, in a relatively short period of time, a non-statutory and then a statutory regime were created to deal with the complex issues to which modern slavery gives rise. What was plainly needed was a practitioner’s book that clearly described and explained the legal regimes and gave practical guidance to lawyers which would enable them to identify whether a person was a victim of modern slavery and how best to protect that person. This book gives a very comprehensive guide to the legal regimes and much practical assistance. For example Chapter 6 gives a very comprehensive account vii

Foreword to first edition

about what should happen on arrest at the police station and the matters that the lawyer should consider; this is reinforced by clear guidance on ethics in Chapter 16. Another example of the practical guidance given, drawn from the experience of the authors, is Chapter 15, which provides a clear summary of ways in which victims are trafficked and exploited. I therefore warmly welcome this book and very much hope it will make a real contribution to the protection of victims of trafficking and modern slavery and to the prosecution of those who perpetrate this most heinous of crime. John Thomas Lord Thomas of Cwmgiedd January 2018

viii

Preface Through the first edition of this book we achieved our aim of publishing a comprehensive yet manageable guide to human trafficking and modern slavery and an introduction to this field, drawing on the expertise and experience of various professionals in different disciplines.We hope that it will continue to be the go-to text for practitioners working in this arena and become an invaluable tool for those in business and industry. Since the publication of the first edition in February 2018, we have witnessed a dynamic evolution of the law and its application in the fields of criminal and public law, where the High Court, Court of Appeal and Supreme Court have regularly engaged with human rights issues relating to trafficking. On the other hand, corporate awareness of trafficking and slavery is still nascent and the development of protections to safeguard victims in supply chains is still in its infancy. We have worked together and against one another in many of the significant human trafficking cases of the last decade. Over the years, we have delivered training together to the judiciary, legal practitioners, law enforcement, government authorities and companies in the UK and overseas. As such, our objective has been to draw on the different perspectives from which we look at the multifarious issues involved in human trafficking and modern slavery to create a balanced text. We hope the book will appeal to legal practitioners, including criminal, public, immigration, commercial and civil lawyers, those who work in law enforcement, the judiciary, academics, students, other professionals, including accountants, captains of industry and business managers who deal or might deal directly or indirectly with those affected by modern slavery and trafficking, whether through dealing with individuals or considering supply chain, contract and employment issues. We express our great thanks to all those who have contributed to this book, all of whom we have worked closely with in this field. Philippa Southwell Michelle Brewer Ben Douglas-Jones QC October 2020

ix

Contents Foreword to second edition v Foreword to first edition vii Preface ix Editors’ biographies xxv Contributors’ biographies xxvii Table of Statutes xxxv Table of Statutory Instruments xliii Table of European Legislation xlv Table of Cases xlix Chapter 1 Definitions, policy and legal frameworks by Michelle Brewer 1 Introduction 1 Legal and policy framework for definition of human trafficking 2 General 2 Definition 3 The three elements of trafficking 4 First element of the trafficking definition: the act 5 Recruitment 6 Transportation 6 Transfer 6 Harbouring 7 Receipt of persons 7 Second element of the trafficking definition: the means 7 Coercion 7 Deception and fraud 9 Abuse of power or of a position of vulnerability 9 The giving or receiving of payments or benefits to achieve the consent of a person having control over another person 11 Third element of the trafficking definition: for the purpose of exploitation 11 A child-sensitive approach 14 Third element: exploitation of children 14 Credibility: a child-sensitive approach 14 Definition of victims of slavery, servitude and forced or compulsory labour 15 The ‘means’ element of the definition of modern slavery 16 Coercion 16 xi

Contents

Threat of a penalty Smuggling legislation

16 17

Chapter 2 Determination of trafficking status by Emma Fitzsimons and Michelle Brewer 19 Introduction 19 Status of an NRM trafficking decision in First-Tier Tribunal (‘FTT’) (IAC) and Upper Tribunal decision-making 21 Identification as a ‘protective duty’ and ECHR, Art 4 22 National Referral Mechanism 24 Identifying victims of trafficking 26 First responders 27 Duty to notify 29 Single Competent Authority 30 Identification decision-making process 30 Reasonable grounds decision 30 Standard and burden of proof 31 Assessment of evidence of trafficking 32 Indicators of trafficking 34 Complex issues in identification 42 Experiences of victims and identification 47 The conduct of traffickers 51 ‘Credibility’ and mitigating factors 52 Expert evidence 55 Evidence from support organisations 55 Evidence from other experts 56 Timing of decision 58 Relevance of criminal investigations to the NRM decision 59 Consequences of positive reasonable grounds decision 60 Recovery and reflection period 60 Relevance of trafficking decisions in other proceedings 63 Negative reasonable grounds decision 65 Request to reconsider the decision 65 Conclusive grounds decision 66 Standard of proof 66 Assessment 67 Timing of decision 69 Consequences of positive conclusive grounds decision 70 Negative conclusive grounds 73 Challenging negative decisions 73 Multi-Agency Assurance Panels (‘MAAPs’) 74 Victims who go missing 75 Asylum seekers 77 Historical victims 79 Common grounds of challenge to negative identification decisions 80 xii

Contents

Chapter 3 Age disputes in immigration and criminal proceedings by Shu Shin Luh 83 Introduction 83 Importance and relevance of age in the context of social welfare law 85 Importance and relevance of age in the context of immigration law 86 Importance and relevance of age in the context of youth justice 88 Decision to prosecute 90 First appearances 90 Bail 90 Mode of trial 92 Assessing age 93 Approach to be taken by a court to determine age in a social welfare and immigration law context 97 Approach of criminal court to age disputes 99 Chapter 4 Criminal offences of trafficking by Ben Douglas-Jones QC, Michelle Brewer and Pam Bowen CBE 105 Introduction 105 Offences under the Modern Slavery Act 2015 105 Slavery, servitude and forced or compulsory labour: MSA 2015, s 1 105 Human trafficking: MSA 2015, s 2 116 Exploitation: MSA 2015, s 3 121 Transposition 123 Sentencing 123 Committing any offence with intent to commit an offence under s 2 128 Unlawful restriction of liberty 128 Kidnapping and false imprisonment 129 Child abduction 133 Sentence 134 Immigration offences 135 Sentence 137 Offences related to the ‘use’ of victims of slavery and trafficking 138 Sexual exploitation 138 Drug offences 140 Worker exploitation 141 Other offences 142 Orders on conviction 143 Confiscation 143 Forfeiture 144 Civil orders 144 Commentary on MSA 146 xiii

Contents

Chapter 5 Criminal defences available to victims of trafficking by Ben Douglas-Jones QC, Michelle Brewer and Pam Bowen CBE 151 Introduction 151 Non-punishment principle: International instrument 152 Palermo Protocol 152 Non-punishment principle: Regional instruments 153 ECAT, Article 26 153 The EU Trafficking Directive 154 Non-punishment principle: Domestic law 157 CPS policy guidance 158 Prosecutorial staged inquiry 158 First stage: Is there a reason to believe that the person is a victim of trafficking or slavery? 158 Second stage: Is there clear evidence of duress? 163 Third stage: Is there clear evidence of a s 45 defence? 165 Fourth stage: Is it in the public interest to prosecute? 175 Abuse of process 177 Excluded offences under Sch 4 178 Right to a fair trial and/or misconduct by the prosecution 179 Complex cases 180 Is it in the public interest to prosecute the victim of trafficking? 182 Presenting without delay 186 Good cause 187 Article 31 187 Annex 188 Chapter 6 Victims of human trafficking: at the police station by Steven Bird, Michelle Brewer and Philippa Southwell 195 Arrival at the police station 195 Risk assessment 195 Police training and development 196 Provision of rights 197 Criminal Defence Direct 199 Duty to attend the police station 201 Arrival of the legal representative at the police station 201 Interaction with the detained person 202 Interpreters 202 Initial meeting with the client 204 Identifying the client as a potential victim of trafficking: disclosure 204 Instructions not to disclose: the ethical dilemma 206 Advice 208 Positive obligations owed to a victim of trafficking by the state 213 The NRM and the duty to notify 216 Crime recording 217 The police interview 218 xiv

Contents

Age of potential victim of trafficking Appropriate adult After the interview Police bail Limits on period of detention without charge The charging decision Interviews where disclosure has been made Police interviewing techniques with vulnerable witnesses Achieving Best Evidence interviews

219 220 222 223 226 227 230 230 232

Chapter 7 Criminal court process by Felicity Gerry QC, Paramjit Ahluwalia, Ben Douglas-Jones QC and Philippa Southwell 235 Introduction 235 Police station and charge 238 Post-charge 241 Magistrates’ court 243 First appearance 243 Assessing the evidence 243 Bail application 244 Custody time limits 247 Age assessments 250 Abuse of process 251 Section 45 252 Summary only offences 252 Either way offences 253 Crown Court 254 PTPH – form and key issues 254 Fitness to plead: Crown Court 255 The current test for unfitness to plead 255 Fitness to plead procedure 257 Trial of the acts or omissions 258 Disposal rather than sentence 258 Fitness to plead: magistrates’ and youth courts 259 Disposal of defendants suffering from a mental disorder 262 The role of expert evidence 262 Adducing expert evidence 264 Admissibility of expert evidence 265 Indictment and severance 266 Arraignment 267 Defence statements 268 Disclosure requests 268 Bad character applications 270 Trial issues 273 Questioning of the ‘officer in the case’ 274 Exclusion of interview 275 xv

Contents

Adverse inferences from failure to mention facts in police interview 275 Defendant giving evidence 277 Absconders 279 Pre-sentencing application to vacate a guilty plea 281 Sentencing 282 Chapter 8 Special measures for victims of trafficking by Michelle Brewer, Philippa Southwell, Rachel Witkin, Dr Eileen Walsh, Kalvir Kaur, Paramjit Ahluwalia and Felicity Gerry QC 289 General principles 289 Understanding the psychological impact of human trafficking 289 Trauma-based mental health problems and legal proceedings 290 Non-visible physical injuries 293 Children and young people 294 Best practice methods of working with victims of trafficking for legal practitioners 295 General principles 295 Expert medical evidence 295 Working appropriately and effectively with victims of trafficking 296 Effective interviewing – best practice 297 Home Office Statutory Guidance on Interviewing Victims of Trafficking 301 Special measures in Immigration and Asylum Tribunal proceedings 302 Tribunal Guidance and Practice Directions 305 The Tribunal Procedure Rules 306 Examples of special measures and reasonable adjustments 306 Intermediaries 308 Anonymity 309 Private hearings 310 Special measures in criminal proceedings 311 Introduction 311 Trauma – informed approach 313 Eligibility for special measures for witnesses in criminal proceedings 315 Child witnesses 316 Applications for special measures for witnesses 318 Ground rules hearings 319 Special measures for accused persons/defendants who are victims of trafficking 321 Child defendants 323 Vulnerable adult defendants 325 Intermediaries 327 Witness anonymity 328 Reporting identity of child witnesses and child defendants 330 xvi

Contents

Adult defendant anonymity Applications to move proceedings Applications to hold a Crown Court hearing in camera

331 332 333

Chapter 9 Criminal appeal process by Ben Douglas-Jones QC, Michelle Brewer, Philippa Southwell and Paramjit Ahluwalia 335 Introduction 335 Appeals to the Crown Court 336 Applications to re-open cases under s 142 337 Committal for sentence – no bar to re-opening 339 Effect of re-opening 339 Appeals to the Court of Appeal 340 Appeal against sentence 344 Grounds of appeal against sentence 345 Common grounds of challenge on appeal against conviction 346 Fresh evidence 349 McCook correspondence 352 Decisions of Competent Authority 353 Extensions of time 354 Appeal following a guilty plea in the Crown Court 356 Further applications that may be made with an application for leave to appeal 357 Applications for bail on appeal 357 Anonymity for applicants in the Court of Appeal Criminal Division 358 Requests to expedite the hearing 365 Applications for funding 366 Request for transcripts 366 Request for an oral leave hearing 366 Absconding/missing 366 Applications to the Criminal Cases Review Commission 368 Appeals by a prosecutor against a ‘terminating’ ruling 372 Chapter 10 International protection claims brought by victims of human trafficking and modern slavery by Michelle Brewer and Gemma Loughran 373 Introduction 373 The role of the NRM identification decision in Tribunal decision making 373 Refugee Convention 375 Introduction 375 Definition 377 Well-founded fear of persecution 376 For reasons of race, religion, nationality, membership of a particular social group or political opinion 379 xvii

Contents

Unable or … unwilling to avail himself of the protection of that country 380 Internal relocation 385 Credibility 388 European Convention on Human Rights 390 Introduction 390 Trauma-based claims 391 Slavery 395 Servitude 395 Forced or compulsory labour 398 Child labour 400 Positive obligations under ECHR, Art 4 402 Expert evidence in asylum and immigration proceedings 406 Chapter 11 Safeguarding child and adult victims of trafficking and immigration detention by Shu Shin Luh and Christine Beddoe 413 Safeguarding and immigration detention: children 413 Introduction 413 Policy and guidance 414 Assessment of vulnerability 415 Children detained in immigration or criminal proceedings 417 The duty to notify 418 Missing children 419 County lines trafficking 420 Child trafficking guardians 420 Policy versus practice 421 Safeguarding children who may be affected by immigration control 422 The s 55 safeguarding duty 422 Detention and safeguarding of children 424 Safeguarding and immigration detention: adults 430 Adults at risk: Immigration Act 2016 and statutory guidance 435 Adults at risk: statutory guidance and practice 437 Adults at risk and trafficking 439 Safeguarding and release 440 Chapter 12 Compensation for victims of trafficking by Maya Sikand 445 Introduction 445 Compensatory obligations 446 Compensation in criminal proceedings 447 Compensation orders 447 Slavery and trafficking reparation orders 448 The Criminal Injuries Compensation Scheme 449 Eligibility 450 Time limits 452 xviii

Contents

Level of awards 453 Grounds for withholding or reducing an award 454 The Miscarriage of Justice Application Scheme 456 Are victims of trafficking who have had their convictions set aside eligible under the Scheme? 458 Procedure 459 The award 460 Non-pecuniary loss 461 Human Rights Act 1998 claims against public bodies 462 The investigative duty 463 The scope of the investigative duty revisited 465 Just satisfaction 466 Claims against traffickers 468 Tortious claims against individual traffickers 468 Tortious and other claims against a company 469 Employment tribunal claims 470 Chapter 13 Public funding for victims of trafficking by Steven Bird and Lindsay Cundall 473 Advice on arrest for a criminal offence 473 Work after release from police station but before charge 479 Witnesses at risk of self-incrimination 480 Advice during criminal court proceedings at first instance 480 Magistrates’ court proceedings 481 Crown Court proceedings 483 Prior authority for disbursements 484 Defendant intermediaries 485 Extension of legal aid to Queen’s Counsel or two advocates 486 Transfers of legal aid 487 Billing time limits 489 Advice on appeal against conviction and/or sentence where the solicitors acted at trial 489 Appeals from the magistrates’ court to the Crown Court 489 Appeals from the Crown Court to the Court of Appeal 490 Funding in the Court of Appeal (Criminal Division) 490 Applications to the Court of Appeal out of time and CCRC applications: Advice and Assistance Scheme 491 Sufficient Benefit Test 492 Financial test 492 Previous advice 493 Financial limits and applications to extend 494 CCRC applications 495 Postal application 495 Telephone advice 495 Outward travel 496 Previous advice under the Legal Advice and Assistance Scheme 497 xix

Contents

Counsel’s fees 498 Applications to re-open the case in the magistrates’ court 498 Applications for compensation under s 133 499 The availability of legal aid for potential victims of trafficking on immigration matters 500 The gap in legal aid provision for victims of trafficking 502 Exceptional case funding 503 Legal aid for potential victims of trafficking in immigration detention 504 What practical steps are needed to represent a potential victim of trafficking under legal aid in immigration matters? 505 Legal help 505 Controlled Legal Representation 507 Legal Help and CLR: extensions, costs limits and experts 508 Civil legal aid for judicial review 509 Investigative representation 510 Full representation 511 Emergency certificate 513 Substantive certificate 513 Declaration against instructions 514 The permission decision, amending scope 515 Experts and extensions of cost limits 515 Civil legal aid: financial risks 515 Chapter 14 Extradition by Mary Westcott 517 Introduction 517 Extradition proceedings 520 Generally 520 Time limits 522 The Crown Prosecution Service and the NCA 523 Common challenges 523 Procedural issues 525 Evidence 525 Victim identification 526 Undermining the NRM? 528 Substantive issues 531 Chapter 15 Trafficking operations and modus operandi by Hossein Zahir QC, Philippa Southwell, Phil Brewer and Steve Harvey 533 Introduction 533 Exploitation typologies and common control methods 535 Physical and sexual violence 536 Deception 536 Debt 537 Isolation 537 xx

Contents

Dependency 538 Emotional control 538 Culture and faith 539 Family involvement 540 Modus operandi of known modern slavery cases 541 Post Modern Slavery Act 2015 543 Sexual exploitation 543 Labour exploitation 544 Crime 545 Criminal exploitation 547 Criminal exploitation and ‘county lines’ 548 Trafficking and terrorism 551 An international perspective 551 A domestic perspective 553 Common forms of forced criminality 556 Chapter 16 Ethics by Felicity Gerry QC and Philippa Southwell 563 Whether to refer a client through the National Referral Mechanism 563 How to advise a client in a police interview 564 Privilege and confidentiality issues 565 Chapter 17 Investigating trafficking and exploitation offences by Caroline Haughey OBE, QC, Phil Brewer, Michelle Brewer and Ben Douglas-Jones QC 569 The complainant 569 Investigatory interviews 570 Children 572 PEACE model of investigatory interviewing 573 Planning and preparation 573 Engage and explain 574 Account and challenge 576 Closure 577 Investigations beyond the complainant’s account 577 Other lines of enquiry 577 International material 580 The accused 581 Charging 582 Risk orders 584 Disclosure 584 Trial 585 Chapter 18 Forced criminality and non-criminalisation of trafficked persons in the International Criminal Court by Wayne Jordash QC 589 Introduction 589 xxi

Contents

Current status on recognition of non-criminalisation under international law 590 Non-criminalisation generally 590 UN Model Law against Trafficking in Persons (2009) 593 Non-criminalisation in armed conflict 594 Non-criminalisation in international criminal law 596 Non-criminalisation and nexus between the trafficking and offending 598 Duress as a defence under international criminal law 601 The ICC’s Rome Statute 602 Evolution of duress in international criminal law 602 Adoption of Art 31(1)(d) of the Rome Statute 604 Article 31(1)(d) and unlawful killing 604 Article 31(1)(d) conditions 607 Threat of imminent death or of continuing or imminent serious bodily harm 607 The person acted necessarily and reasonably to avoid the threat 608 The person acted proportionally in that he did not intend to cause a greater harm than the one sought to be avoided 608 Article 31(1)(d) defence of duress for trafficked persons 609 The Ongwen defence 609 How will the ICC approach Ongwen’s Art 31(1)(d) defence? 610 Article 31(1)(d) in action 611 Mere possibility of death not sufficient 611 Crime and threat analysis 611 Avoiding the threat 614 Proportionality and the gravest of crimes 616 Duress and trafficking 617 Chapter 19 Compliance and trafficking by Philippa Southwell, Michelle Brewer and Ben Douglas-Jones QC 619 Corporate compliance, business and human rights 619 Section 54: Modern Slavery Act 2015 619 Modern slavery compliance statement 619 Differing organisational structures 622 Content of the statement 624 Consequences of non-compliance 625 Corporate criminal offences 625 Section 54 statements: effectiveness and the future of compliance 626 Joint committee report 627 Independent Review of MSA 2015 629 Home Office consultation 630 Ethical Trading Initiative’s modern slavery statements evaluation framework 630 Overview 630 Section 1: Structure, business and supply chains 631 xxii

Contents

Section 2: Policies in relation to slavery and human trafficking 631 Section 3: Risk assessment, prevention and mitigation 632 Section 4: Due diligence processes 632 Section 5: Effectiveness, measured against appropriate key performance indicators 633 Section 6: Training and capacity building 633 Anticipated changes to s 54 633 Wales 634 California Supply Chains Act 2012 – a model for compliance 635 Index

639

xxiii

Editors’ biographies Philippa Southwell is Managing Director of Southwell & Partners, a leading law firm specialising in criminal, modern slavery and regulatory law. She was called to the Bar in 2009 as a barrister, and having cross-qualified, she practises as a Solicitor Advocate. Prior to founding Southwell and Partners, she established the human trafficking and modern slavery department at Birds Solicitors. Philippa is also Managing Director of the Human Trafficking & Modern Slavery Expert Directory. She lectures extensively both domestically and throughout the Middle East and Europe. Philippa advises companies on modern slavery and human rights compliance. She was called to give evidence as a legal expert in the Home Affairs Select Committee Modern Slavery Inquiry. Philippa has acted on several hundred modern slavery cases and was one of the first lawyers in the country to raise a s 45 modern slavery defence. She has acted in most of the significant and leading cases of the last decade, representing the victims of modern slavery and forced criminality at all levels, including the Court of Appeal, Supreme Court and European Court of Human Rights. She has been highly commended by the Law Society who have described her as ‘a fierce criminal defence solicitor, who specialises in defending and representing victims of human trafficking who have been prosecuted for criminal offences. She is a leading criminal solicitor in this field’. Michelle Brewer was appointed as a full-time Tribunal Judge (Immigration and Asylum Chamber) in February 2020. Michelle was called to the Bar in 1998 and practised as a barrister at a leading human rights chambers, Garden Court Chambers, and was part of the public law, immigration, and civil teams. Chambers and Partners described her as ‘very highly regarded for her expertise in trafficking cases. With an established track record of being at the forefront of trafficking case law’. From 2010, until her judicial appointment, she was involved in a series of significant trafficking cases, including: criminal appellate cases applying the non-punishment principle; the first case before the Supreme Court which considered the UK’s obligations to victims of trafficking, representing Anti-Slavery International; and was counsel in a series of Art 4 cases before the European Court of Human Rights. She was instructed to advise various bodies on the legality of domestic trafficking legislation, provided evidence to various governmental committees on trafficking and transparency of supply chains, and acted in bringing cases to the attention of relevant UN bodies. Michelle has trained the judiciary, police, local authorities, lawyers, and NGOs on the domestic, regional and international law of human trafficking and modern slavery both when in practice and as a judge. In November 2019, Michelle provided the keynote address at an OSCE  International Judicial Conference, ‘The Critical Role of the Judiciary in Combating Trafficking in Human Beings’. xxv

Editors’ biographies

Ben Douglas-Jones QC is a barrister at 5 Paper Buildings in London. He is also an attorney-at-law in Grenada, with rights of audience in the Eastern Caribbean Court of Appeal and a Recorder of the Crown Court. He specialises in human rights, appeals, complex fraud, serious crime and regulatory law, including consumer and intellectual property. His human rights and appellate practice has seen him appear in all recent leading cases concerning victims of human trafficking and refugees who commit offences, including special court cases before three successive Lords Chief Justices. The Legal 500 describes him as having ‘a fabulous acumen for seeing the point and exposing deficiencies in the other side’s case.’ Chambers and Partners describes him as ‘a great barrister’. Ben co-wrote the Crown Prosecution Service Guidance on charging and prosecuting victims of human trafficking, the Law Society Guidance on trafficking and refugee defences, and Judicial College Guidance on trafficking. He provides domestic and international training on human trafficking and modern slavery in the context of judicial, practitioner and regulatory compliance training and has provided evidence to governmental committees on trafficking and transparency of supply chains.

xxvi

Contributors’ biographies Paramjit Ahluwalia is a criminal defence barrister (called 2002, BA Oxon) at Lamb Building Chambers. Paramjit specialises in the area of human trafficking, modern slavery, county lines and immigration offences, as well as a practice relating to offences of murder, firearms and serious violent offences. She has been leading junior in a number of high-profile multi-handed cases concerning modern slavery and human trafficking. Paramjit has been named by the Observer (culture) in 2019 as a ‘new talent: rising star’ in relation to her work ‘representing society’s most vulnerable, fighting human trafficking, modern day slavery and immigration crime.’ Paramjit has a strong Court of Appeal practice focused on the representation of victims of trafficking and modern slavery. She is a contributing author to the leading criminal practitioner’s text, Blackstone’s Criminal Practice (OUP), in relation to the chapter on ‘Modern Slavery, Trafficking and Immigration Offences’. Paramjit is a trustee of the charity ‘Women in Prison’ and has campaigned with the Prison Reform Trust for the introduction of a statutory defence to protect victims and survivors of domestic abuse, akin to the s 45 Modern Slavery Act defence. Christine Beddoe has spent 25 years working against trafficking and the sexual abuse of children. Christine has worked in the UK, Australia, Thailand, Cambodia, India, Vietnam, Kenya, Sri Lanka, Nepal and more. She is now a freelance consultant and advisor but was Chief Executive of ECPAT UK for eight years until 2012, and prior to that worked with ECPAT (End Child Prostitution, Pornography and Trafficking) in South East Asia and Australia since 1994. Christine has made many media appearances, has written dozens of reports, book chapters and articles, and continues to do research on child trafficking and child exploitation. Her post-graduate research was conducted in Sri Lanka in 1993 on the sexual exploitation of boys, and in 2004 she was awarded a Winston Churchill Fellowship for applied research on advocacy campaigns for the protection of children. Steven Bird is the Managing Director of Birds Solicitors which he founded in October 2000. He qualified as a solicitor in 1990, and since then has been working in the criminal justice system dealing with serious fraud, regulatory and criminal cases. As part of its extensive appeal practice, Birds Solicitors was one of the first firms to take a case to the Court of Appeal raising issues of non-prosecution of trafficking victims. Steven is rated as a star individual in the Chambers and Partners directory and as a leading individual in the Legal 500. In 2016, he was admitted to the List of Counsel at the International Criminal Court. Steven is also a Director of Southwell & Partners, a specialist firm dealing with human trafficking cases which was formed in 2020. Steven is a Committee member of the London Criminal Courts Solicitors Association xxvii

Contributors’ biographies

and the Criminal Appeal Lawyers Association where he is also Chairman. He is also a member of the Fraud Lawyers Association and the Proceeds of Crime Lawyers Association. Steven is the co-author of the Police Station Advisers Index and has contributed chapters to Taylor on Criminal Appeals (OUP), The Drugs Offences Handbook (Bloomsbury Professional), The Confiscation Law Handbook (Bloomsbury Professional) and The Criminal Cases Review Commission: Hope for the Innocent? (Palgrave Macmillan UK). Pam Bowen CBE is a senior policy advisor and the Crown Prosecution Service policy lead for human trafficking, organised immigration crime and exploitation of prostitution. She has worked in developing policy for prosecutors and across Whitehall since 2006. She was responsible for developing the first policy on the non-prosecution of victims of trafficking who have committed criminal offences in 2007 and for its constant evolution. Pam has worked with international organisations, Ministers and criminal justice authorities in many source and transit countries in negotiating and developing improved and collaborative responses to human trafficking. This has included training, improving mutual legal assistance, capacity building and developing policy to improve application of legislation. She has been a regular contributor to the development of European and international policy and guidance since 2009. Pam has contributed to many expert groups at the UN on legislation, concept papers to assist other jurisdictions, and most recently, on the development of an international model law. She was one of five experts involved in developing online training on criminal and civil litigation for human trafficking for the Council of Europe. Pam also worked on the development of the Modern Slavery Bill before its enactment. She has contributed to human trafficking handbooks published by Lexis Nexis and the Council of Europe. Phil Brewer is a specialist modern slavery advisor at both the Human Trafficking Foundation and Stop The Traffik. He retired in 2019 from the Metropolitan Police Service as a Detective Superintendent following a career spanning nearly 30 years fighting serious and organised crime. In the last five years within policing, Phil was responsible for leading the Met’s approach to combatting modern slavery and human trafficking. He developed key partnerships with statutory and non-statutory organisations, resulting in true collaboration in safeguarding victims and bringing offenders to justice. As head of the Modern Slavery and Kidnap Unit, he oversaw some of the first convictions under the Modern Slavery Act 2015, including the first involving a child victim. Phil has significant experience working nationally and internationally and regularly represented UK  National Policing at Europol’s expert Trafficking Human Beings group. At the 2019 Anti-Slavery Day Awards, Phil was recognised for his outstanding contribution in the fight against modern slavery. Lindsay Cundall is the Training Lead and Public Support Lawyer at ATLEU (Anti-Trafficking and Labour Exploitation Unit). She is a solicitor and Senior Immigration and Asylum Scheme Accredited Caseworker. She qualified with Wilson Solicitors LLP; her training was based in the immigration and public xxviii

Contributors’ biographies

law departments. Lindsay previously worked at Refugee and Migrant Justice, Brighton Housing Trust and the UNHCR, Ecuador. Lindsay has extensive experience of preparing applications and appeals at all levels as well as complex judicial review applications. She has a particular interest in representing victims of human trafficking/modern slavery, clients in detention and representing unaccompanied minors/young people. Emma Fitzsimons is a barrister at Garden Court Chambers, and was called to the Bar in 2011. She practises in immigration and public law, with a focus on asylum, human rights and trafficking. She regularly represents victims of trafficking in the First-tier and Upper Tribunal in immigration and asylum appeals. She also regularly acts for trafficking victims in judicial review challenges to National Referral Mechanism (‘NRM’) decisions, detention and support provision. She is instructed as one of the legal team in VCL  v United Kingdom (App No  77587/12), a communicated case pending before the European Court of Human Rights, concerning the obligation to identify trafficking victims in the criminal justice system. She is a contributing author to Macdonald’s Immigration Law and Practice (9th edition, and forthcoming 10th edition, LexisNexis). Professor Felicity Gerry QC is a member of Libertas Chambers, London and Crockett Chambers, Melbourne. She is admitted in the International Criminal Court, Kosovo Specialist Chambers, England and Wales and Australia (Victoria and the High Court Roll) and has had ad hoc admission in Hong Kong and Gibraltar. She largely defends in serious and complex crime often involving an international element, including terrorism, homicide and human trafficking. She has advised on death penalty cases where human trafficking issues arise, including assisting in the reprieve from execution of Mary Jane Veloso in Indonesia. Felicity is also Professor of Legal Practice at Deakin University where she lectures in Contemporary International Legal Challenges including Modern Slavery, Terrorism and Climate Change Law. She is widely published on issues relating to women and the law, technology and law and reforming justice systems. She gave evidence to the Parliamentary Inquiry which led to Australia enacting a Modern Slavery Act, and has provided training on Modern Slavery for the Commonwealth Parliamentary Group. Steve Harvey was an operational police officer for 25 years, including five years with the National Criminal Intelligence Service, supporting the UK’s first investigations into human trafficking and the smuggling of migrants. He was the first British police officer to be recruited to EUROPOL, and between 2003 and 2013, coordinated international investigations into human trafficking. He set up Europol’s first dedicated response to this crime and was also Head of Unit for Organised Crime in South East Europe, the Balkans and Turkey. Steve was one of the European Commission’s Group of Experts on Trafficking in Human Beings. He is the only British police officer to have been appointed to this role and was the law enforcement lead in the drafting of the 2011 EU Directive on preventing and combating the trafficking of human beings. Since 2013, Steve xxix

Contributors’ biographies

has worked as an independent consultant supporting counter human trafficking initiatives throughout the world. Recently, he has reviewed human trafficking legislation, law enforcement working practices and developed countertrafficking strategies in Afghanistan, Federated States of Micronesia, Pakistan, Papua New Guinea, the Solomon Islands and Vanuatu. Caroline Haughey OBE, QC is a criminal barrister at Furnival Chambers, specialising in modern slavery and human trafficking cases. Having prosecuted the first modern slavery case in Britain (R v K (S) [2011] 2 Cr App R 34), she was subsequently involved in advising the All Parliamentary group on the proposal for an Act, gave evidence before the Committee and subsequently advised on the drafting of the Modern Slavery Act 2015. Caroline has prosecuted a number of firsts under the Act, for example, child labour exploitation, child sex trafficking and ‘victimless’ (R v Nguyen, Tran and Nguyen [2019] EWCA Crim 670), as well as the largest trafficking and labour exploitation case in Europe, Operation Fort (Brzezinski and others). She lectures domestically and internationally including to the UNODC and RUSI on the investigation and prosecution of modern slavery and trafficking cases. Caroline gave evidence to the Parliamentary Inquiry into whether Australia should have a Modern Slavery Act, as well as contributing to the Commonwealth Parliamentary Group publications and lectures on modern slavery. Caroline was author of the first Independent Modern Slavery Act Review 2016, was joint legal advisor on the second Independent Modern Slavery Act Review, and is the independent member of the Prime Minister’s Modern Slavery Task Force. Wayne Jordash QC is recognised in the Legal 500  UK  2017 as a leading Queen’s Counsel and ‘one of the world’s leading international criminal lawyers’. Wayne is an associate member of Doughty Street Chambers and the Managing Partner of Global Rights Compliance, a not-for-profit international human rights organisation dedicated to building capacity to prohibit, prevent and punish violations of international law. His representation or advisory work in international criminal law has included representation of the Serbian Government at the International Court of Justice, the (post-revolution) Libyan Government, the Ukrainian Government and Rohingya victims at the International Criminal Court, the ex-head of the State Security of Serbia at the International Criminal Tribunal for the former Yugoslavia, a Mayor, a senior member of the Rwandan army and the Head of the state-owned tea industry at the International Criminal Tribunal for Rwanda, a Senior member of the Khmer Rouge at the Extraordinary Chambers in the Courts of Cambodia, and the Interim Leader of the Revolutionary United Front at the Special Court for Sierra Leone. Kalvir Kaur is a legal advisor at Freedom from Torture. She is an accomplished solicitor with strategic and legal expertise in advocating for children, victims of trafficking and survivors of torture. She is an experienced trainer, having trained legal representatives, NGOs, and INGOs. She was the lead UK trainer for ECRE ‘Uprights’ project, has trained professionals at Reinforcing Action against Child xxx

Contributors’ biographies

Trafficking (‘ReACT’), and CONNECT projects in Europe and served on the advisory group for the Immigration Law Practitioners Association’s Refugee Children’s Project. In 2008, Kalvir was awarded Legal Aid Lawyer of the Year in the Immigration and Asylum category for her work with vulnerable clients, and in 2014 she was the recipient of End Child Prostitution, Child Pornography and Trafficking of Children for Sexual Purposes (ECPAT UK) Children’s Champion award. In 2017, she was selected as a Vital Voices Fellow recognising her as a child trafficking leader. Kalvir has edited, authored and contributed to best practice guides, research reports and campaigning literature. Gemma Loughran is a barrister at Garden Court Chambers. She has extensive experience in asylum, human rights, trafficking and public law having worked in the field for over 15 years. She represents victims of trafficking in the Asylum and Immigration Chamber of both the First and Upper-tier Tribunal and regularly appears in the High Court in a broad range of judicial review matters, including challenges to trafficking decisions under the NRM. Gemma is recommended in the Legal 500 at tier 4 and ranked in Chambers and Partners as ‘Band 4’. She is a regular contributor to Macdonald’s Immigration Law and Practice (LexisNexis) and is currently working on the ‘Trafficking in Human Beings’ chapter of the 10th edition. Shu Shin Luh is a barrister at Doughty Street Chambers. Her practice has a strong human rights and anti-discrimination focus and spans both the public and private law areas. She is well known for her expertise in the area of antitrafficking and modern slavery at both the domestic and international level. She appears in the higher courts of England Wales on public law challenges to the decisions relating to the identification and provision of support to victims of trafficking and modern slavery as well as in private law claims for compensation against public authorities, companies and traffickers. She represents individuals and NGOs in high-profile public interest litigation in respect of the nature and scope of the state’s obligation to protect victims of trafficking across the areas of immigration, social welfare, criminal and private law. She has given written and oral evidence before Parliamentary inquiries on issues related to trafficking and modern slavery and regularly provides legal policy advice relating to modern slavery by leading NGOs in the UK, at the EU level and in Asia. Shu Shin is a member of the lawyers’ network run by the Council of Europe’s Group of Experts against Trafficking in Human Beings. She is the co-author of the forthcoming Migrant Support Handbook (LAG). Maya Sikand is a civil liberties and human rights barrister at Doughty Street Chambers specialising in public law as well as private law damages claims against public bodies. Her specialist areas include human rights and tortious damages claims against the police and public bodies, and statutory compensation claims via the Criminal Injuries Compensation Authority and the Miscarriage of Justice Application Scheme, in particular in relation to victims of trafficking. She also has a specialist criminal appellate practice which focuses on trafficked victims wrongfully convicted of crimes. She is a contributing editor of the xxxi

Contributors’ biographies

seminal criminal textbook Archbold Criminal Pleading, Evidence & Practice (Sweet & Maxwell). Dr Eileen Walsh is a clinical psychologist. She is currently working at the Traumatic Stress Clinic, Camden & Islington (an NHS specialist trauma service) and at the Helen Bamber Foundation. She has specialised in working with people with a history of complex trauma, including victims of trafficking and modern slavery. She has over 14 years’ experience of psychological assessment and treatment, working at specialist trauma clinics in the NHS and the charity sector. She has extensive experience of preparing independent psychological medico-legal reports focusing on mental health problems related to human rights abuses, including trafficking, and has a strong interest in the contribution of psychological research to legal processes. Mary Westcott (called to the Bar in 2007) is a respected extradition specialist with a background in criminal and public international law. She now works almost exclusively defending extradition requests at Doughty Street Chambers. She has successfully represented many particularly vulnerable clients, such as victims of trafficking, domestic violence and/or those suffering from post-traumatic stress disorder. She has acted alone in numerous Divisional Court test cases (e.g. Tyza v Poland [2015] 1017 (Admin) and A  v Hungary [2013] EWHC 3132 (Admin)) and been Junior Counsel in the Supreme Court both for the individual defending extradition (Poland v Zakrzewski [2013] 1 WLR 324) and for the Issuing Judicial Authority (Goluchowski & Sas v Poland [2016] 1  WLR  2665). Mary also advises on related issues such as ‘import’ extradition from other jurisdictions and other scenarios involving competing international obligations. Rachel Witkin is Head of Counter-Trafficking & Publications for the Helen Bamber Foundation (‘HBF’) which provides a mutli-disciplinary, integrated model of care for survivors of trafficking, torture and other human rights violations. She manages HBF’s specialist counter-trafficking programme which offers long-term, individual support for survivors of trafficking, including for law enforcement, Home Office and court proceedings and provision of evidence for NRM, asylum and criminal trafficking cases. She previously managed Amnesty International’s UK refugee research desk providing Amnesty International’s court submissions and has worked for a number of human rights law firms including Winstanley-Burgess. Rachel has a keen interest in promoting accessible, practical guidance for professionals in all fields who are working with survivors. She is co-author of The Trauma-Informed Code of Conduct for All Professionals Working with Survivors of Human Trafficking & Slavery, contributing editor for the UK Slavery & Trafficking Survivor Care Standards, and is currently working with OSCE/ODIHR on the forthcoming updated international NRM  Handbook. In 2015, she received the national Marsh Trust Award for ‘Outstanding Contribution to the Fight Against Modern Slavery’.

xxxii

Contributors’ biographies

Hossein Zahir QC is a criminal defence barrister at Garden Court Chambers. In the early 1990s he worked for the Newham Monitoring Project, an antiracist campaigning organisation providing advice and support to victims of racial violence. He is a trustee of the Runnymede Trust, the UK’s leading independent race equality think tank. For many years, and particularly since the introduction of modern terrorism legislation in the early 2000s, he has represented defendant’s in the most high-profile terrorism cases. He also now routinely leads in cases alleging murder and other complex and serious criminal matters. He regularly gives talks on terrorism, law and sentencing.

xxxiii

Table of Statutes Administration of Justice Act 1960 s 12................................................16.14 Agricultural Wages Act 1948..............12.74 Anti-social Behaviour, Crime and Policing Act 2014.......................12.36 s 113(1)..........................................7.163 121..............................................15.84 175..............................................12.38 Sch 5 para 1, 5.....................................7.163 Anti-terrorism, Crime and Security Act 2001 s 47, 50, 113...................................5.110 Asylum and Immigration (Treatment of Claimants, etc) Act 2004.....4.24; 10.58 s 2..................................................15.84 4.............................. 2.98; 4.36, 4.37, 4.41, 4.50, 4.64, 4.65; 17.32, 17.34 (1A).............................. 4.38, 4.40; 17.32 (4).............................................4.41 (d).............................. 4.50, 4.51, 4.52 (11)...........................................17.32 35................................................15.84 Aviation and Maritime Security Act 1990 s 1, 9–13........................................5.110 Aviation Security Act 1982 s 1–4..............................................5.110 Bail Act 1976 s 3(7).............................................3.21 4..................................................7.33 Sch 1.............................................7.33 para 1.........................................3.21 Borders, Citizenship and Immigration Act 2009....................................11.32 s 55.................................3.13; 11.20, 11.24, 11.28, 11.34, 11.35 (2)(b).......................................11.21 (3).....................................11.21, 11.24 (6)...........................................3.13 Care Act 2014..............................11.64, 11.68 Pt 1 (ss 1–80).................................11.63 s 8..................................................11.68 9(1).............................................11.63 13(1), (3)......................................11.65 18................................................11.68 19................................................11.69 21(1)...........................................11.68

Child Abduction Act 1984 s 1..................................................5.110  2..............................................4.87; 5.110 (1).............................................4.87 (a), (b)....................................4.89 (2).............................................4.88 (3).................................. 4.87, 4.88, 4.91 (b)......................................... 4.91 3(a), (c)........................................ 4.90 4(1).............................................4.92 Children Act 1989 s 20.................................3.7, 3.8, 3.11, 3.22 22................................................3.8 23C(1), (4)...................................3.11 47................................................7.36 105..............................................3.7 Children Act 2004.............................11.20 s 10................................................11.2 11................................. 3.13; 11.23, 11.24 (1)...........................................11.20 (2)...........................................11.2 13................................................11.4 Children and Young Persons Act 1933 s 1..................................................5.110 34A.............................................8.86 39............................................8.88, 8.102 44..................................... 7.79; 8.80, 8.83 45, 47, 49.....................................3.24 50................................................3.18 99..................................... 3.32, 3.33; 7.86 (1)................................ 3.41, 3.43, 3.44 107(1)..........................................3.18 Children and Young Persons Act 1963 s 70(1)...........................................3.18 Children and Young Persons Act 1969..........................................3.23 Company Directors Disqualification Act 1986....................................19.37 Constitutional Reform Act 2005 Sch 2 Pt 1 (paras 1–3)..........................2.147 Contempt of Court Act 1981.............8.107 s 4(2).............................................9.46 11..................................... 9.36, 9.39, 9.47 Coroners and Justice Act 2009...........4.61 s 71............................ 4.60, 4.61, 4.64, 4.67; 17.32 74–85..........................................8.98 86–88..........................................8.99

xxxv

Table of Statutes Coroners and Justice Act 2009 – contd s 89................................................8.99 (2)...........................................8.100 90................................................8.99 122(2)..........................................7.64 125(1)..........................................7.153 Court of Session Act 1988 s 45................................................19.2 Crime and Disorder Act 1998 s 27(1)...........................................3.18 29................................................5.110 31(1)(a), (b)..................................5.110 51................................................7.46 Crime (International Cooperation) Act 2003 s 7..................................................17.52 Criminal Appeal Act 1968 s 9..................................................9.26 11(3)...........................................9.26 18(2)...........................................9.30 23................................................9.29 (1), (2)......................................9.29 50................................................9.26 Criminal Appeal Act 1995..................9.56 s 8..................................................9.56 9..................................................9.57 11................................................9.58 13................................................9.59 14(2).........................................9.61, 9.63 15................................................9.65 17..............................................9.62, 9.65 (3), (4)......................................9.66 Criminal Damage Act 1971 s 1..................................................5.110 (1).............................................15.84 (2).......................................5.110; 15.84 2, 3..............................................15.84 Criminal Injuries Compensation Act 1995..........................................12.15 s 2(1).............................................12.26 3(1).............................................12.29 Criminal Justice Act 1967 s 9..................................................9.30 Criminal Justice Act 1988 s 41................................................9.26 133............................. 12.35, 12.36, 12.39, 12.41, 12.46, 12.51, 12.54; 13.126 (1)..........................................12.37 (1ZA)..............................12.38, 12.43 (3)..........................................12.47 133A(2).......................................12.51 (6).......................................12.50 133B...........................................12.49 134..............................................5.110

Criminal Justice Act 1988 – contd s 139(1)..........................................15.84 Criminal Justice Act 2003 s 101..............................................7.105 (1)..........................................7.108 (d), (g)................................7.109 (3), (4)....................................7.109 117..............................................7.112 224A, 225....................................4.55 226A.........................................4.55, 4.82 240A...........................................7.36 Sch 15...........................................4.55 Sch 15B.........................................4.55 Criminal Justice and Licensing (Scotland) Act 2010 s 46, 47..........................................2.98 Criminal Justice and Public Order Act 1994 s 34.................................6.72; 7.122, 7.124, 7.125 (1)...........................................7.122 Criminal Justice (Scotland) Act 2003 s 22................................................2.98 Criminal Law Act 1977 s 1(1).............................................15.84 Criminal Procedure and Investigations Act 1996..................................5.91; 7.24 s 6A...............................................7.101 Criminal Procedure (Insanity) Act 1964..........................................7.69 s 4A(2).........................................7.76, 7.77 (3)...........................................7.77 5..................................................7.78 Customs and Excise Management Act 1979 s 170..............................................5.110 Customs Consolidation Act 1876 s 42................................................5.110 Data Protection Act 1998...................9.17 s 7..................................................9.17 Domestic Violence, Crime and Victims Act 2004.......................7.69 s 5..................................................5.110 22................................................7.74 Education Act 2011...........................8.103 Equality Act 2010..........................8.89; 12.77 Explosive Substances Act 1883 s 2–4..............................................5.110 Extradition Act 2003..........13.41, 14.15, 14.24 Pt 1 (ss 1–68A)...............14.1, 14.13, 14.14, 14.15 s 7..................................................14.13 (6).............................................14.34 8..................................................14.13 (5).............................................14.15 8A, 8B.........................................14.15

xxxvi

Table of Statutes Extradition Act 2003 – contd s 11................................................14.24 20................................................14.25 21................................................14.24 22, 23..........................................14.15 25................................................14.24 Pt 2 (ss 69–140A)...........................14.13 s 75(2)...........................................14.16 (3)...........................................14.15 76(3)...........................................14.16 (4)...........................................14.15 79(1)...........................................14.24 86................................................14.25 87, 91..........................................14.24 93(2)...........................................14.24 Extradition (Provisional Arrest) Bill 2020..........................................14.14 Family Law Act 1996.........................1.22 s 63CA..........................................15.84 Female Genital Mutilation Act 2003 s 1–3..............................................5.110 Firearms Act 1968 s 1(1).............................................15.84 2(1).............................................15.84 4(1A)(a).......................................15.84 5..................................................5.110 (1)(a), (ab), (aba), (ac)..................15.84 (ad), (ae), (af), (b), (c)..............15.84 (1A)(b)–(g)................................15.84 16, 16A........................................5.110 17(1), (2)......................................5.110 18................................................5.110 19................................................15.84 Forced Marriage (Civil Protection) Act 2007....................................1.22 Forgery and Counterfeiting Act 1981 Pt I (ss 1–13)..................................5.101 s 1–4..............................................15.84 5(1), (3).......................................15.84 15–17, 20, 21...............................15.84 Fraud Act 2006 s 2, 3..............................................15.84 4..................................................4.112 6, 7, 11.........................................15.84 Freedom of Information Act 2000 s 1..................................................9.17 Gangmasters (Licensing) Act 2004......... 4.111; 10.58 s 3, 4..............................................4.110  6............................................4.110, 4.111  12................................................4.110 13, 14..........................................17.32 Human Rights Act 1998.........8.83; 9.37, 9.43; 10.49; 11.41; 12.3, 12.58, 12.59

Human Rights Act 1998 – contd s 6.......................................9.40, 9.43, 9.47; 12.66 (1).............................................2.168 7(5).............................................12.58 (b).........................................12.59 8..................................................12.69 (3).............................................12.71 12................................................9.46 Sch 1.............................................2.2 Human Tissue Act 2004.....................4.133 s 32, 33..........................................4.49 Human Trafficking and Exploitation (Criminal Justice and Support for Victims) Act (Northern Ireland) Act 2015.......................2.108 s 1, 2, 4..........................................19.2  13................................................11.12 18(3), (4)......................................2.110 (5), (7)......................................2.108 (8), (9)......................................2.110 19................................................2.110 Human Trafficking and Exploitation (Scotland) Act 2015....................2.108 s 1, 4..............................................19.2  9(1).......................................2.108, 2.109 (2), (3).......................................2.109 (4), (5).......................................2.108 38................................................11.12 Identity Documents Act 2010 s 4, 6..............................................15.10 Immigration Act 1971 s 3................................................4.96, 4.97 (2).............................................12.23 24................................................15.84 24A.............................. 4.96; 5.101; 15.84 24B.............................................15.84 25............................ 4.94, 4.96, 4.97, 4.98, 4.99, 4.119, 4.120; 5.110; 15.84 (1)...........................................15.84 (2)...........................................4.95 25C.............................................4.120 26................................................4.96 (1)(d).......................................5.101 33(1)...........................................4.96 Sch 2 para 16(2).................. 11.26, 11.27, 11.28, 11.41 (2A)..........................11.26, 11.28 18B.....................3.15; 11.26, 11.27, 11.28 (4), (7)..........................11.28 Sch 3 para 16(2)...................................11.41

xxxvii

Table of Statutes Immigration Act 2016........................2.118 s 7..................................................11.55 11................................................11.56 59................................11.50, 11.51, 11.52 (4)...........................................11.50 Immigration and Asylum Act 1999 s 4..................................................13.142 31.....................................5.95, 5.97, 5.98, 5.100, 5.101, 5.102, 5.103, 5.104; 9.30, 9.42, 9.60 (1)...........................................5.102 (2).......................................5.98, 5.104 95................................................13.142 153..............................................11.44 Sch 2 para 4(1)....................................4.96 Indictments Act 1915 s 5..................................................7.98 Infanticide Act 1938 s 1..................................................5.110 International Criminal Court Act 2001 s 1, 2..............................................5.110 Interpretation Act 1978......................19.18 Legal Aid, Sentencing and Punishment of Offenders Act 2012......... 3.51; 13.130, 13.132, 13.133, 13.135, 13.136, 13.138 s 25................................................12.72 91................................................3.23 (6)...........................................3.23 92–107........................................3.23 Sch 1.............................................13.130 Pt 1 para 19, 25–27............................13.130 30(1)...................................13.130 31A....................................13.130 32(1)...................................13.130 Limited Partnerships Act 1907...........19.2 Local Authority Social Services Act 1970 s 7..................................................11.3 Magistrates’ Courts Act 1980 s 22A.............................................15.84 108..................................... 9.5, 9.58, 9.60 142................................... 9.6, 9.7; 13.122 (2).....................................9.7, 9.8, 9.9 150............................................3.32; 7.86 Medical Act 1983...............................11.44 Mental Health Act 1983.................6.162; 7.84 s 37(3)...........................................7.84 41................................................7.78 127..............................................5.110 Misuse of Drugs Act 1971..................4.109 s 3..................................................15.84

Misuse of Drugs Act 1971 – contd s 4..................................................15.84 (2).............................................4.119 (a), (b)....................................4.108 (3).............................................4.109 (b).........................................15.84 5..................................................15.84 (3).............................................4.109  6............................................4.108; 15.84  9A...............................................15.84 28................................................4.109 Modern Slavery Act 2015..................... 2.111, 2.112; 4.1, 4.58, 4.59, 4.73, 4.109, 4.121, 4.126, 4.131, 4.132; 5.8, 5.39, 5.72, 5.82; 6.100; 7.3, 7.32, 7.41, 7.55, 7.143; 9.1; 11.1, 11.6, 11.17; 12.14, 12.42, 12.77; 14.10, 14.27; 15.2, 15.32, 15.34, 15.35, 15.55, 15.84; 16.2, 16.4; 17.3, 17.8, 17.32, 17.36; 19.15, 19.16, 19.22, 19.29, 19.33, 19.40, 19.49 Pt 1 (ss 1–13).................................2.98 s 1...................................................4.1, 4.4, 4.49, 4.55, 4.60, 4.73, 4.85, 4.111, 4.119, 4.132, 4.133; 5.24, 5.110; 8.65; 12.12; 15.84; 17.32; 19.2, 19.18, 19.20 (1).............................................4.5 (2)............................................. 4.6 (3).............................................4.30 (4).............................................4.30 (5).............................................4.32 2.................................. 4.1, 4.6, 4.33, 4.34, 4.43, 4.45, 4.48, 4.49, 4.52, 4.55, 4.56, 4.57, 4.62, 4.63, 4.71, 4.73, 4.109, 4.119, 4.120, 4.132; 5.24, 5.76, 5.110; 8.65; 12.12; 15.84; 17.32; 19.2, 19.18, 19.20 (1).............................................4.44 (2).............................................4.38 (3).................................. 4.43, 4.44; 5.44 (4).............................................4.39 (5)...........................................4.35, 4.48 (6)...........................................4.46, 4.54

xxxviii

Table of Statutes Modern Slavery Act 2015 – contd s 2(7)...........................................4.47, 4.54 3.....................................4.49, 4.50, 4.128, 4.132, 4.133, 4.134; 5.42; 6.67; 17.32 (3).............................................4.4 (4)...........................................4.4, 4.128 (5).................................. 4.4, 4.49, 4.128 (6)........................... 4.4, 4.49, 4.50, 4.51, 4.52, 4.53, 4.109, 4.128, 4.129, 4.134 (b).........................................4.130 4.............................. 4.1, 4.71, 4.72; 12.12; 17.32; 19.2, 19.18, 19.20 5(1).............................................4.55 (3).............................................4.72 8................................... 7.163; 12.2, 12.12 (7).............................................12.12 9(1).............................................12.12 (3)–(5).......................................12.13 10................................................12.13 (1)...........................................12.12 (3)...........................................12.13 11..........................................4.120; 7.163 12................................................7.163 14–17....................................4.121; 7.163 23................................. 4.122; 5.73; 7.163 24................................................7.163 30................................................4.125 45.......................................3.52; 5.4, 5.18, 5.40, 5.45, 5.47, 5.53, 5.58, 5.65, 5.77, 5.79, 5.83, 5.85, 5.86, 5.87, 5.110; 6.61, 6.62, 6.64, 6.82; 7.12, 7.19, 7.22, 7.26, 7.29, 7.40, 7.50, 7.51, 7.52, 7.53, 7.55, 7.56, 7.59, 7.62, 7.67, 7.88, 7.98, 7.102, 7.106, 7.111, 7.113, 7.115, 7.117, 7.120, 7.123, 7.144, 7.149; 9.1, 9.12, 9.24; 13.70; 15.84; 17.31; 18.12 (1)....................... 5.41, 5.62; 6.64; 7.59; 12.43 (2), (3)....................................5.41; 6.65 (4)................................ 5.58; 6.66; 7.60 (c).......................................5.64 (5).........................................5.42; 6.67 (7)...........................................6.68 46................................................8.65 48............................................11.1, 11.18 (6)(e)(i)....................................11.18

Modern Slavery Act 2015 – contd s 49................................................ 2.2, 2.3 (1)......................... 1.4; 2.3, 2.111; 8.19; 11.1 (2)...........................................2.3 50................................................2.111 52............................ 2.26; 6.95, 6.96, 6.97; 7.13, 7.16 54.................................19.2, 19.13, 19.14, 19.16, 19.18, 19.21, 19.26, 19.31, 19.33, 19.34, 19.35, 19.42, 19.49, 19.54, 19.59 (5)...........................................19.39 (11)....................................19.17, 19.51 Sch 1.............................................4.121 Sch 4......................... 5.40, 5.83, 5.84, 5.85, 5.87; 6.68; 7.59; 15.84; 18.12 Modern Slavery (Victim Support) Bill 2019-21...............................2.112, 2.113 Nationality, Immigration and Asylum Act 2002............................  2.117; 10.81 s 65................................................10.3 82(1)...........................................10.3 115(1), (2)....................................10.25 117A, 117B.................................10.80 Sch 3 para 4–7A..................................11.68 National Minimum Wage Act 1998 s 31................................................4.113 Offences against the Person Act 1861 s 4, 16, 18, 20–23...........................5.110 27–32, 35, 37, 38..........................5.110 Partnership Act 1890..........................19.2 Police and Criminal Evidence Act 1984........................ 6.4, 6.13, 6.14, 6.15, 6.17, 6.19, 6.31, 6.33, 6.34; 13.6, 13.9 s 30A(1), (1A)................................6.118 (3A), (3B)..............................6.119 30B(6), (6A), (7)...........................6.120 (8).........................................6.121 30CA, 30CB................................6.122 41................................................6.132 (7)...........................................6.133 42(10)..........................................6.134 54, 55..........................................6.135 47ZC(2)–(5)................................6.124 47ZD(2)–(4)................................6.123 47ZG..........................................6.125 (8)......................................6.126 58................................................13.6 74(3)...........................................7.110 76, 78..........................................7.121

xxxix

Table of Statutes Serious Crime Act 2007.....................19.19 s 1..................................................4.123 (1)(b).........................................4.124 (3).............................................7.163 2..................................................4.123 (2).............................................4.123 5..................................................7.163 8, 16............................................4.123 19................................................4.123 (5)...........................................7.163 25................................................4.125 s 44–46..........................................19.19 58................................................19.20 Sch 1 Pt 1 (paras 1–16)........................4.123 Serious Crime Act 2015 s 76................................................7.161 Serious Organised Crime and Police Act 2005....................................7.159 Sexual Offences Act 2003..................7.163 Pt 1 (ss 1–79).................................4.49 s 1–10......................................5.110; 15.84 11, 12..........................................15.84 13................................................5.110 14, 15....................................5.110; 15.84 15A.............................................15.84 16–19..........................................5.110 25, 26....................................5.110; 15.84 30–32..........................................5.110 33..........................................5.110; 15.84 33A.............................................15.84 34–41..........................................5.110 47................................4.107; 5.110; 15.84 48–50......................... 4.105, 4.106, 4.119; 5.110 51(2)...........................................4.106 51A.............................................15.84 52............................... 4.102, 4.103, 4.119; 15.84 (1)(b).......................................4.104 53................................4.103, 4.104, 4.119 (1)(b).......................................4.104 53A.............................4.107, 4.125; 15.84 57..............................................4.62, 4.64 58..................................... 4.48, 4.62, 4.64 59..............................................4.62, 4.64 59A......................... 2.98; 4.50, 4.57, 4.62, 4.63; 15.84; 17.32 61–67, 70.....................................5.110 103A, 103I...................................4.125 Sch 3.............................................4.125 Sch 5.............................................4.125 Sexual Offences (Amendment) Act 1992 s 1, 2..............................................8.96

Powers of Criminal Courts (Sentencing) Act 2000 s 11................................................7.85 130..........................................12.6, 12.12 (1)(a)......................................12.7 (2A), (3).................................12.6 (4), (11)..................................12.7 131............................................12.6, 12.7 132..........................................12.6, 12.13 (1)..........................................12.10 133............................... 12.6, 12.10, 12.13 134........................................12.10, 12.13 143..............................................4.120 164(1)..........................................3.32 Prevention of Crime Act 1953 s 1..................................................15.84 Proceeds of Crime Act 2002........4.102, 4.119 s 10................................................4.119 75(2)...........................................4.119 327............................. 4.115, 4.116, 4.118; 15.84  328............................. 4.115, 4.117, 4.118; 15.84  329..............................4.115, 4.118; 15.84  340(3)..........................................4.115 Sch 2.............................................4.119 Prosecution of Offences Act 1985 s 22(3)...........................................7.47 Protection from Harassment Act 1997 s 4, 4A...........................................5.110 5A...............................................7.163 Protection of Freedoms Act 2012 s 109, 110......................................17.32 Protection of Children Act 1978 s 1(1)(a).........................................4.49 Protection of Freedoms Act 2012.....2.98; 8.36 Psychoactive Substances Act 2016 s 4, 5, 7..........................................15.84 Public Order Act 1936 s 2..................................................5.110 Public Order Act 1986 s 1, 2..............................................5.110 Road Traffic Act 1988 s 1..................................................5.110 2..................................................15.84 3A...............................................5.110 4..................................... 6.22; 13.4; 15.84 5................................................6.22; 13.4 6, 7, 7A......................................6.22; 13.4 40A, 87, 103, 143.........................15.84 Safeguarding Vulnerable Groups Act 2006 s 59................................................8.36 Senior Courts Act 1981 s 75, 76..........................................8.110

xl

Table of Statutes Youth Justice and Criminal Evidence Act 1999................................8.65, 8.111 s 16...................................6.162; 8.58, 8.63, 8.64 17..................................... 8.58, 8.63, 8.64 (1)...........................................6.163 (2)...........................................6.164 18................................................8.58 19..............................................8.58, 8.63 (1)...........................................8.66 20–22..........................................8.58 23–27............................... 8.58, 8.65, 8.66 28.............................8.58, 8.65, 8.66, 8.70 29, 30........................................8.58, 8.65 31, 32..........................................8.58 33................................................8.58 (6)(d).......................................17.6 33A.............................................8.78 33BA, 33BB................................8.82 34–38..........................................8.65 45, 45A........................................8.102 53(3)...........................................8.57

Social Security Administration Act 1992 s 111A, 112....................................15.84 Social Services and Well-being (Wales) Act 2014 s 7..................................................11.2 134..............................................11.4 Street Offences Act 1959 s 1..................................................15.84 Taking of Hostages Act 1982 s 1..................................................5.110 Terrorism Act 2000............................13.9 s 1..................................................15.72 54, 56, 57, 59...............................5.110 Sch 7.............................................13.9 Sch 8.............................................13.9 Terrorism Act 2006 s 5............................................5.110; 15.81 6, 9–11........................................5.110 Theft Act 1968 s 8............................................5.110; 15.84 9............................................5.110; 15.84 (1)(a).........................................15.84 10..........................................5.110; 15.84 12A.............................................5.110 13................................................15.84 21................................................5.110 22, 25..........................................15.84 Tribunals, Courts and Enforcement Act 2007 s 18................................................2.147 UK Borders Act 2007 s 32................................................9.2 35................................................11.41 Well-being of Future Generations (Wales) Act 2015........................19.53 Vagrancy Act 1824 s 3..................................................15.84 Violent Crime Reduction Act 2006 s 28, 29..........................................15.84

ARGENTINA Prevention and Criminalization of Trafficking in Persons and Assistance to Victims of Trafficking 2008 (Law 26.364) art 5...............................................18.27 PHILIPPINES Anti-Trafficking in Persons Act 2003 s 17................................................18.27 UNITED STATES California Transparency in Supply Chains Act 2012 (Senate Bill 657).......................... 19.54, 19.55, 19.56, 19.57, 19.58, 19.59 Victims of Trafficking and Violence Protection Act 2000 s 112..............................................18.27

xli

Table of Statutory Instruments Care

and Support (Assessment) Regulations 2014, SI 2014/2827..11.64 reg 4..............................................11.64 Care and Support (Eligibility Criteria) Regulations 2015, SI 2015/313 reg 2..............................................11.65 (2)..........................................11.66 (3)..........................................11.67 3, 5..........................................11.64 Channel Tunnel (Security) Order 1994, SI 1994/570 Pt II (arts 4–9)...............................5.110 Civil Legal Aid (Merits Criteria) (Amendment No 2) Regulations 2015, SI 2015/1571....................13.159 Civil Legal Aid (Merits Criteria) Regulations 2013, SI 2013/104 reg 18............................................13.156 22.................................13.157, 13.159  33............................................13.148 39............................................13.154 40............................................13.157 42(2), (3)..................................13.162 53............................................13.157 54............................................13.158 60(3)(a), (b)..............................13.159 Civil Legal Aid (Remuneration) (Amendment) (No 3) Regulations 2014, SI 2014/607.......................13.170 Civil Legal Aid (Remuneration) (Amendment) Regulations 2013, SI 2013/2877....................13.169 Civil Legal Aid (Remuneration) (Amendment) Regulations 2015, SI 2015/898.....................13.170 reg 2(2), (3)....................................13.171 Civil Legal Aid (Remuneration) Regulations 2013, SI 2013/422...13.146, 13.149, 13.170, 13.171 reg 5A...........................................13.170 Sch 1.................................. 13.146, 13.149 Civil Procedure Rules 1998, SI 1998/ 3132 Pt 19 (rr 19.1–19.15).....................10.88 Pt 31 (rr 31.1–31.23).....................10.88 Pt 35 (rr 35.1–35.15).....................10.88

Civil Procedure Rules 1998 – contd r 35.10(3), (4).................................10.88 39.2.............................................2.147 Criminal Legal Aid (Determinations by a Court and Choice of Representative) Regulations 2013, SI 2013/614 reg 14............................................13.71 16(2)........................................13.41 17, 18.......................................13.62 Criminal Legal Aid (Financial Resources) Regulations 2013, SI 2013/471 reg 9..............................................13.95 Criminal Legal Aid (Remuneration) (Amendment) Regulations 2018, SI 2018/220.....................13.48 Criminal Procedure and Investigations Act 1996 (Defence Disclosure Time Limits) Regulations 2011, SI 2011/209...............................7.101 Criminal Procedure Rules 2015, SI 2015/1490 Pt 1 (rr 1.1–1.3).............................8.83 Pt 3 (rr 3.1–3.29)...........................8.83 r 3.9...............................................8.93 (6)..........................................7.131 (7)..........................................7.132 (b), (v)................................8.70 3.21.............................................7.97 3.28.............................................7.72 3D–3G........................................8.82 5.5...............................................9.51 16.10...........................................8.111 Pt 18 (rr 18.1–18.26).....................8.58 18............................................  8.71, 8.84 18.15...........................................8.78 18.18–18.22................................8.99 Pt 19 (rr 19.1–19.10).....................5.69 19.1, 19.2....................................7.89 19.3(3)........................................7.90 19.4.............................................7.92 19.9.............................................7.90 25.2.............................................7.137 25.5.............................................7.146 (3)........................................7.148

xliii

Table of Statutory Instruments Criminal Procedure Rules 2015 – contd r 25.9, 25.10..................................7.75 34.2(2)........................................9.4 46.3.............................................13.71 Pt 50 (rr 50.1–50.16).....................14.23 50.2.............................................14.15 Detention Centre (Amendment) Rules 2018, SI 2018/411...........11.53 Detention Centre Rules 2001, SI 2001/238...............................11.44 r 33................................................11.44 34......................................... 11.44, 11.45 35.............................. 11.44, 11.45, 11.46, 11.47, 11.48, 11.50, 11.53 (3)...........................................11.46 (6).................................... 11.53, 11.54 Family Procedure Rules 2010, SI 2010/2955 r 12.73...........................................16.14 Gangmasters (Licensing Conditions) Rules 2009, SI 2009/307...........12.74 Human Trafficking and Exploitation (Scotland) Act 2015 (Support for Victims) Regulations 2018, SSI 2018/90...............................2.109 Immigration (Guidance on Detention of Vulnerable Persons) Regulations 2018, SI 2018/410...11.53 Modern Slavery Act 2015 (Duty to Notify) Regulations 2015, SI 2015/1743.............................2.26

Prosecution of Offences (Custody Time Limits) Regulations 1987, SI 1987/299 reg 2(2)..........................................7.46 Sexual Offences Act 2003 (Notification Requirements) (England and Wales) Regulations 2012, SI 2012/1876....................7.163 Short-term Holding Facility Regulations 2018, SI 2018/409 reg 32............................................11.53 Tribunal Procedure (Amendment No 2) Rules 2017, SI 2017/1168.. 8.33 Tribunal Procedure (Amendment) Rules 2018, SI 2018/511...........8.33 Tribunal Procedure (First-Tier Tribunal) (Immigration and Asylum Chamber) Rules 2014, SI 2014/2604.............................8.33 r 13(1)...........................................8.49 Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008, SI 2008/ 2685 r 2.................................................8.42 (3).............................................8.38 4.................................................8.42 5(3)(g).........................................8.38 10, 14..........................................8.42 Tribunal Procedure (Upper Tribunal) Rules 2008, SI 2008/2698..........8.33 r 13(1)...........................................8.49

xliv

Table of European Legislation CONVENTIONS Charter of Fundamental Rights of the European Union (Nice, 7 December 2000)......4.26; 10.67; 12.72 art 32.............................................10.67 47.............................................13.135 Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (United Nations Convention against Torture) (New York, 10 December 1984)...................11.52 art 1...............................................11.46 Convention concerning Decent Work for Domestic Workers (Geneva, 16 June 2011)............................10.60 art 4...............................................10.70 7–9, 12.....................................10.60 Convention concerning Forced or Compulsory Labour see International Labour Organisation Convention No  29; Convention concerning Forced or Compulsory Labour (Geneva, 28 June 1930) Convention concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour (Geneva, 17 June 1999) art 3.................................. 1.24; 4.29; 10.70 (c), (d).................................4.29; 10.70 6(1)......................................4.29; 10.70 Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine (Oviedo, 4 April 1997) art 21.............................................1.23 Convention relating to the Status of Refugees (Geneva, 28  July 1951)..............................2.88; 10.6, 10.9, 10.15, 10.25; 13.130 art 1(A)2........................................10.7 3...............................................10.25 31................................5.97, 5.98, 5.100, 5.101, 5.109 (1)......................................... 5.98 (2).........................................5.98

Convention to Suppress the Slave Trade and Slavery (Geneva, 9 March 1927)................ 4.7; 10.6, 10.55 Council of Europe Convention on Action against Trafficking in Human Beings (Warsaw, 16 May 2005)........................... 1.2, 1.4, 1.3, 1.21, 1.28; 2.1, 2.2, 2.3, 2.5, 2.14, 2.17, 2.64, 2.84, 2.99, 2.127, 2.158, 2.162; 4.44, 4.45, 4.130; 5.1, 5.6, 5.8, 5.9, 5.77, 5.87; 6.94; 8.19, 8.49; 10.6, 10.73; 12.16, 12.72; 14.9, 14.32 preamble........................................10.10 art 1...............................................5.9 2........................................ 1.2, 1.10; 5.9 3...............................................6.89 4............................... 1.2, 1.5; 4.128; 5.6, 5.11; 10.54, 10.56; 14.10 (a).......................................4.126; 6.89 (b)............................... 1.7, 1.14; 10.11 (c).......................................... 1.7, 1.14 6...............................................7.77 8...............................................14.10 (2)..........................................8.51 10......................... 1.4; 2.15, 2.84, 2.142; 5.27; 7.86; 8.51; 12.23 (1).........................................2.97 11...........................................8.34, 8.49 12......................... 1.4; 2.5, 2.102, 2.104, 2.108, 2.142; 10.74; 14.37 (3), (4)...................................2.103 13.................................. 1.4; 2.99, 2.142 (1).........................................2.103 14..............................2.15, 2.136, 2.142; 10.74 15............................................ 2.5; 12.4 (3), (4)...................................12.5 16................................ 2.5; 10.74; 14.10 23.............................................12.4 26............................. 5.1, 5.8, 5.10, 5.78; 7.158; 9.28; 12.42, 12.43, 12.44; 18.24 27.......................................2.158, 2.161

xlv

Table of European Legislation Council of Europe Convention on Action against Trafficking in Human Beings (Warsaw, 16 May 2005) – contd art 28............................................ 2.5; 8.34 30...........................................8.34, 8.50 40.............................................1.23 (4).........................................10.6 European Convention on Human Rights (formerly the Convention for the Protection of Human Rights and Fundamental Freedoms) (Rome, 4 November 1950)................ 4.31; 9.40; 10.43, 10.47; 13.135; 14.4, 14.14 art 2........................... 9.36, 9.40, 9.42, 9.43, 9.46, 9.48; 12.62; 13.130; 14.24 3..................................2.144; 6.92; 8.51; 9.36, 9.40, 9.42, 9.43, 9.46, 9.48; 10.10, 10.25, 10.44, 10.48, 10.49, 10.51; 12.59, 12.62, 12.63, 12.64, 12.65, 12.66, 12.67, 12.71, 12.72; 13.130; 14.8, 14.24, 14.28 4.......................... 1.23, 1.26, 1.28, 1.30; 2.1, 2.2, 2.6, 2.10, 2.12, 2.13, 2.28, 2.39, 2.122, 2.127, 2.144, 2.154, 2.158, 2.165, 2.168; 4.6, 4.10, 4.16, 4.17, 4.126; 5.1, 5.21, 5.89, 5.91, 5.94; 6.87, 6.88, 6.89, 6.90, 6.91, 6.93; 7.57; 8.89; 10.53, 10.54, 10.63, 10.71, 10.71, 10.73, 10.74; 11.33, 11.60, 11.61; 12.33, 12.62, 12.63, 12.64, 12.68; 14.5, 14.9, 14.10, 14.44, 14.50; 17.1 5...............................................10.53 6........................... 5.89, 5.94; 7.83; 8.83; 9.39, 9.46; 14.24 (2)..........................................12.39 7...............................................4.12 8...................  2.144, 2.165; 4.12; 5.103; 9.36, 9.40, 9.42; 10.75, 10.76, 10.79, 10.80, 10.81; 11.32, 11.34, 11.35, 11.36, 11.37; 13.131, 13.137; 14.8, 14.9, 14.10, 14.24, 14.41, 14.42

European Convention on Human Rights (formerly the Convention for the Protection of Human Rights and Fundamental Freedoms) (Rome, 4 November 1950) – contd art 8(2)..........................................11.36 9...............................................4.12 (1)..........................................11.38 10.................................. 9.36, 9.40, 9.46 12.........................................4.12; 11.39 14.............................................12.33 15(2).........................................10.10 Protocol 1 art 1...........................................12.33 Family Procedure Rules 2010, SI 2010/2955 r 12.73...........................................16.14 International Covenant on Civil and Political Rights (New York, 19 December 1966) art 14(6).........................................12.36 International Labour Organisation Convention No 29; Convention concerning Forced or Compulsory Labour (Geneva, 28 June 1930).........1.26, 1.30; 4.26; 5.13 art 2(1)..................................... 4.16, 10.62 International Labour Organisation Convention No  138; Minimum Age Convention (Geneva, 6 June 1973).........................................10.70 art 2(1)..........................................10.62 International Labour Organisation Convention No  182; Worst Forms of Child Labour Convention (Geneva, 1  June 1999)............................ 1.24; 4.29; 15.78 art 3...............................................1.24 International Labour Organisation Convention No  189; Decent Work for Domestic Workers (Geneva, 1 June 2011) art 4...............................................4.29 Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children, supplementing the United Nations Convention against Transnational Organised Crime (Palermo, 12 December 2000)...1.23; 5.1, 5.5, 5.6, 5.7, 5.76; 10.6; 18.7 art 1.1............................................5.5 3.............................................5.6; 10.54

xlvi

Table of European Legislation Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children, supplementing the United Nations Convention against Transnational Organised Crime (Palermo, 12 December 2000) – contd art 3(a).....................................4.126; 10.54 (c)...........................................18.7 (d)..........................................1.2 14.............................................1.23 (1).........................................10.6 Rome Statute of the International Criminal Court (Rome, 17 July 1998) art 1...............................................18.31 3(1)(d)......................................18.32 31(1)(d)................... 18.35, 18.36, 18.44, 18.45, 18.49, 18.50, 18.52, 18.53, 18.54, 18.55, 18.56, 18.58, 18.59, 18.60, 18.65, 18.67, 18.69, 18.70 43(6).........................................18.19 54(3)(f).....................................18.19 64.............................................18.19 68(1).........................................18.19 Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices similar to Slavery (Geneva, 7 September 1956).... 1.23; 4.28; 10.55, 10.69 art 1...............................................4.7 (d)............................. 1.23; 4.28; 10.69 Treaty of the Functioning of the European Union (Rome, 25 March 1957) art 45.............................................13.131 United Nations Convention against Transnational Organised Crime (Palermo 15 November 2000)....5.5 art 2a.............................................15.43 United Nations Convention on the Rights of People with Disabilities (New York, 13 December 2006).8.89 United Nations Convention on the Rights of the Child (New York, 20 November 1989)......... 1.25; 3.1, 3.13; 8.28, 8.89; 11.2, 11.32 art 1...............................................3.2 2...............................................1.25 3...............................................3.1

United Nations Convention on the Rights of the Child (New York, 20 November 1989) – contd art 3(1)....................................11.23, 11.37 (2)..........................................11.37 9...............................................3.1 18, 20, 21..................................3.1 32.............................................1.24 33................................ 1.24; 4.29; 10.70 34, 35.......................................1.25 37.........................................3.17; 11.28 (c).........................................3.17 40.............................................3.17 (2)(b)....................................3.17 (3).........................................3.17 United Nations Guidelines for Action on Children in the Criminal Justice System (Vienna, 23 February 1997)......................3.17 United Nations Guidelines for the Prevention of Juvenile Delinquency (Riyadh Rules) (New York, 14 December 1990)....3.17 United Nations Model Law against Trafficking in Persons 2009........18.10 art 10.............................................18.10 (4).........................................18.10 United Nations Model Strategies and Practical Measures on the Elimination of Violence against Children in the Field of Crime Prevention and Criminal Justice (New York, 8 December 2014)...3.17 United Nations Regulation 2001/14 on the Prohibition of Trafficking in Persons in Kosovo (United Nations Interim Administrative Mission, Kosovo) s 8..................................................18.27 United Nations Rules for the Protection of Juveniles Deprived of their Liberty (Havana Rules) (New York, 14 December 1990)....3.17 United Nations Standard Minimum Rules for the Administration of Juvenile Justice (Beijing Rules) (New York, 29 November 1985)...3.17 Vienna Convention on Diplomatic Relations (Vienna, 18 April 1961) art 31.............................................12.78 37(1).........................................12.78 39(2).........................................12.78 DIRECTIVES Dir 2004/83/EU.........................10.10, 10.24

xlvii

Table of European Legislation Dir 2004/83/EU – contd art 7(1)(a), (b).................................10.24 9(1)(a).......................................10.10 10(1)(d)....................................10.20 Dir 2010/64/EU...............................6.31 Dir 2011/36/EU................................1.2, 1.4, 1.3, 1.18; 2.3; 2.99, 2.107; 4.128, 4.130; 5.1, 5.12, 5.76, 5.78, 5.87; 6.139; 8.19, 8.58; 10.6; 12.4, 12.16; 14.9, 14.32; 18.10 preamble........................................10.13 (11)...................... 1.6, 1.23; 4.129 (18).................................2.99 (20), (22).........................8.34 art 1...............................................1.7 (4)..........................................1.14 2............................. 1.2, 1.4; 4.129; 5.15, 5.24 (1)....................................4.127, 4.128 (2)..........................................1.18 (3)..........................................1.23 (4)........................................1.7; 4.129

Dir 2011/36/EU – contd art 2(5)......................................... 1.7, 1.14 (6)..........................................1.2 4...............................................5.1 8............................... 1.4; 5.1, 5.16, 5.17, 5.78; 9.28; 12.42; 18.24 11.........................................2.142; 8.34 (1)–(3), (5), (7).......................2.107 12, 15.......................................8.34 13–16.......................................1.2 17................................12.4, 12.5, 12.33, 12.34 Recital (1).....................................10.10 (2), (4)................................5.13 (8).................................5.13; 10.13 (11)....................................5.13 (14)....................................5.14 (15)....................................2.43 Dir 2011/92/EU...............................8.55 Dir 2012/29/EU.............................8.53, 8.58 REGULATIONS Reg (EU) 604/2013....................2.158, 2.159

xlviii

Table of Cases A A  v British Broadcasting Corpn [2014]  UKSC  25, [2015]  AC  588, [2014] 2 WLR 1243...........................................................................................  8.51; 9.39, 9.40 A  v Secretary of State for the Home Department [2003]  EWCA  Civ 175, [2003] 1 WLUK 335, [2003] All ER (D) 151 (Jan)........................................................... 10.48 AA (Uganda) v Secretary of State for the Home Department [2008] EWCA Civ 579, [2008] INLR 307.................................................................................................. 10.35 AA (unattended children) Afghanistan CG [2012] UKUT 16 (IAC).............................. 10.85 AAM (a child) v Secretary of state for the Home Department [2012]  EWHC  2567 (QB)..................................................................................................................... 11.24 AAW (expert evidence weight) Somalia [2015] UKUT 673 (IAC)................................ 10.86 AB v Secretary of State for the Home Department [2015] EWHC 1490 (Admin)......2.87; 7.87 AB (Jamaica) v Secretary of State for the Home Department [2008] EWCA Civ 784.... 10.33 A-G  v Leveller Magazine Ltd [1979]  AC  440, [1979] 2  WLR  247, [1979] 1  All ER 745.................................................................................................................  9.38 A-G’s Reference (Nos 2, 3, 4 & 5 of 2013) (William Connors) [2013] EWCA Crim 324, [2013] 2 Cr App Rep (S) 71, [2013] Crim LR 611.................................. 4.24, 4.61; 10.58 A-G’s Reference (No 6 of 2004); R v Plakici (Luan) [2004] EWCA Crim 1275, [2005] 1 Cr App Rep (S) 19, (2004) 148 SJLB 541......................................................4.86, 4.100 A-G’s Reference (No 9 of 2014) (R v R (David)) [2014] EWCA Crim 952................. 4.85 A-G’s Reference (No 28 of 2014) (R v Okoh) [2014] EWCA Crim 1723.................... 4.100 A-G’s Reference (No 35 of 2016) (Rafiq) [2016] EWCA Crim 1368...........................  4.68 A-G’s Reference (Nos 37, 38 & 65 of 2010) (Khan) [2010] EWCA Crim 2880, [2011] 2 Cr App Rep (S) 31, [2011] MHLR 14.................................. 1.18, 1.19; 4.23, 4.63, 4.69, 4.99; 10.57 A-G’s Reference (Nos 92 & 93 of 2014) (R  v Gibney) [2014]  EWCA  Crim 2713, [2015] 1 Cr App Rep (S) 44.................................................................................. 4.84 A-G’s Reference (Nos 102 & 103 of 2014) (R v Perkins) [2014] EWCA Crim 2922, [2015] 1 Cr App Rep (S) 55.................................................................................. 4.84 A-G’s Reference (Nos 126 of 2014) (Jumale) [2015] 1 Cr App Rep (S) 65, [2015] Crim LR 465................................................................................................................. 7.160 A-G’s Reference (Nos 129 & 132 of 2006) (R v Delgado-Fernandez, Zammit & Thi) [2007] EWCA Crim 762, [2007] 3 WLUK 114, [2007] 2 Cr App R (S) 85........... 4.104 A-G’s Reference (Nos 146 & 147 of 2015) (Edet) [2016] EWCA Crim 347................. 4.67 AH (Sudan) v Secretary of State for the Home Department [2007] UKHL 49, [2008] 1 AC 678, [2007] 3 WLR 832..............................................................10.30, 10.31, 10.35 AJ (Liberia) v Secretary of State for the Home Department [2006] EWCA Civ 1736, [2006] All ER (D) 230.......................................................................................... 10.49 AM & BM (trafficked women) Albania CG [2010] UKUT 80 (IAC)........... 10.11, 10.13, 10.22 AM (Afghanistan) v Secretary of State for the Home Department [2017] EWCA Crim 1123................................................................8.35, 8.36, 8.39, 8.40, 8.42, 8.43, 8.45, 8.46 AM (Zimbabwe) v Secretary of State for the Home Department [2020]  UKSC  17, [2020] 2 WLR 1152, [2020] 4 WLUK 284........................................................... 10.51 AS (Afghanistan) v Secretary of State for the Home Department [2019] EWCA Civ 873, [2019] 1 WLR 5345, [2019] 4 All ER 885............................................................ 10.34 AT v Dulghieru [2009] EWHC 225 (QB).................................................................... 12.73 AUJ (Trafficking – no conclusive grounds decision) Bangladesh [2018]  UKUT  200 (IAC), [2018] 5 WLUK 641, [2018] Imm AR 1187............................................... 2.117

xlix

Table of Cases AW (sufficiency of protection) Pakistan [2011] UKUT 31 (IAC)................................... 10.26 AXB (Art 3 health: obligations: suicide) Jamaica [2019] UKUT 397 (IAC).................... 10.51 AZ (trafficked women) Thailand CG [2010] UKUT 118 (IAC).................... 10.12, 10.13, 10.22 Ali (Hesham) v Secretary of State for the Home Department [2016] UKSC 60, [2016] 1 WLR 4799, [2017] 3 All ER 20......................................................................... 10.79 Al-Khawaja v United Kingdom (Application 26766/05) [2012] 2 Costs LO 139, (2012) 54 EHRR 23, 32 BHRC 1................................................................................... 8.100 Antonov v Prosecutor General’s Office Lithuania [2015]  EWHC  1243 (Admin), [2015] All ER (D) 58 (May), [2015] ACD 109...................................................... 14.30 Aranyosi & Caldararu, criminal proceedings against (Case C-404/15  PPU) [2016] QB 921, [2016] 3 WLR 807, [2016] 3 CMLR 13...................................... 14.26 Assange v Swedish Prosecution Authority (Nos 1 & 2) [2012]  UKSC  22, [2012] 2 AC 471, [2012] 2 WLR 1275............................................................................. 14.14 Associated Provincial Picture Houses Ltd v Wednesbury Corpn [1948] 1 KB 223, [1947] 2 All ER 680, (1947) 63 TLR 623........................................................................ 9.64 Aydin (Sukran) v Turkey (Application 23178/94) [1997] 8  WLUK  159, (1998) 25 EHRR 251, 3 BHRC 300............................................................................... 10.47 B Banomova v Secretary of State for the Home Department [2001] EWCA Civ 807....... 10.25 Beoku-Betts v Secretary of State for the Home Department [2008] UKHL 39, [2009] 1 AC 115, [2008] 3 WLR 166............................................................................... 11.36 Botta v Italy (Application 21439/93) (1998) 26  EHRR  241, 4  BHRC  81, (1999) 2 CCL Rep 53...................................................................................................... 11.35 C C v Sevenoaks Youth Court see R (on the application of C) v Sevenoaks Youth Court CD (Jamaica) v Secretary of State for the Home Department [2010] EWCA Civ 768, [2010] 1 WLUK 564, [2010] All ER (D) 34 (Feb)................................................. 10.5 CN v United Kingdom (Application 4239/08) (2013) 56 EHRR 24, 34 BHRC 1....  1.15; 4.1, 4.13, 4.18, 4.20, 4.31, 4.45, 4.128; 6.88, 6.89, 6.91; 10.60, 10.61, 10.64, 10.65 CN & V v France (Application 67724/09) (11 October 2012).......... 1.15; 4.10, 4.11, 4.15, 4.16, 4.129; 6.88; 10.57, 10.62 CPS v P [2008] 4 All ER 628....................................................................................... 7.80 Cakule v Latvia [2016] EWHC 2211 (Admin).............................................................. 14.46 Carcabuk & Bla (00TH01426) (unreported, 18 May 2000)..........................................  2.9; 10.5 Chahal v UK (Application 22414/93) (1997) 23 EHRR 413, 1 BHRC 405................. 10.25 Chowdury v Greece (Application 21884/15) (30 March 2017).................2.1; 4.19, 4.21, 4.126; 6.89, 6.92; 10.64 Coles (unreported, 11 November 1997)........................................................................ 9.65 Condron v United Kingdom (Application 35718/97) (2000) 31 EHRR 1, 8 BHRC 290, [2000] Crim LR 679............................................................................................. 6.79 D D, in the matter of 1 CCLR 190................................................................................... 8.50 DC (trafficking: protection / human rights appeals) Albania [2019] UKUT 351 (IAC)... 2.117 DPP v Kilbourne [1973] AC 729, [1973] 2 WLR 254, [1973] 1 All ER 440................. 7.92 DPP v Revitt [2006] EWHC 2266 (Admin), [2006] 1 WLR 3172, [2007] 1 Cr App Rep 19......................................................................................................................... 7.147 DSD  v Comr of Police for the Metropolis [2014]  EWHC  436 (QB); aff’d [2015] EWCA Civ 646, [2016] QB 161, [2015] 3 WLR 966................ 6.89; 12.65, 12.66, 12.66, 12.69, 12.71 Davoodipanah v Secretary of State for the Home Department [2004] EWCA Civ 106, [2004] INLR 341, [2004] All ER (D) 285 (Jan)..................................................  2.9; 10.5

l

Table of Cases Director of the Serious Fraud Office v Eurasian Natural Resources Corpn Ltd [2018] EWCA Civ 2006, [2019] 1 WLR 791, [2019] 1 All ER 1026..................... 16.8 Donsland Ltd v Hoogstraten [2002]  EWCA  Civ 253, [2002]  PNLR  26, [2002] WTLR 497............................................................................................... 2.151 Doorson v Netherlands (1996) 22 EHRR 330.............................................................. 9.39 E E v Secretary of State for the Home Department [2004] EWCA Civ 49, [2004] QB 1044, [2004] 2 WLR 1351............................................................................................. 2.165 EK (artice 4  ECHR: anti-trafficking convention: Tanzania), Re [2013]  UKUT  313 (IAC), [2013] Imm AR 895, [2014] INLR 166...................................................... 10.74 ES (s 82 NIA 2002: negative NRM) Albania [2018] UKUT 335 (IAC)......................... 2.117 F Forman (ss  117A-C  considerations: United States) [2015]  UKUT  412 (IAC), [2015] Imm AR 1231...................................................................................................... 10.81 Fornah v Secretary of State for the Home Department [2006]  UKHL  46, [2007] 1 AC 412, [2006] 3 WLR 733............................................................................... 10.21 Foster v DPP [2004] EWHC 2955 (Admin), [2005] 1 WLR 1400, [2005] 1 FCR 153... 4.89, 4.91 G Galdikas v DJ  Houghton Catching Services Ltd [2016]  EWHC  1376 (QB), [2016] IRLR 859.................................................................................................. 12.74 Gomes v Government of Trinidad & Tobago [2009] UKHL 21, [2009] 1 WLR 1038, [2009] 3 All ER 549............................................................................................. 14.25 Guardian News & Media Ltd, Re [2010]  UKSC  1, [2010] 2  AC  697, [2010] 2 WLR 325.......................................................................................................9.41, 9.43 H H v Ministry of Defence [1991] 2 QB 103, [1991] 2 WLR 1192, [1991] 2 All ER 834.... 8.50 H v Secretary of State for the Home Department [2018] EWHC 2191 (Admin), [2018] 8 WLUK 156....................................................................................................... 11.60 HC & RC (trafficked women) China CG [2009] UKAIT 00027.................................. 10.22 HD (Trafficked women) Nigeria CG [2016] UKUT 454 (IAC).........10.13, 10.22, 10.27, 10.36 HLR v France (Application 24573/94) [1997] 4 WLUK 438, (1997) 26 EHRR 29...... 10.47 HM (vulnerable adult: abduction), Re [2010] EWHC 870 (Fam), [2010] 2 FLR 1057, [2010] 2 FCR 639................................................................................................ 4.77 Hollington v F  Hewthorn & Co Ltd [1943]  KB  587, [1943] 2  All ER  35, [1943] 5 WLUK 32......................................................................................................... 5.73 Holt v DPP [1996] 2 Cr App Rep (S) 314, [1996] Crim LR 524.................................. 12.6 Horncastle v United Kingdom [2014] ECHR 1394...................................................... 8.99 Horvath v Secretary of State for the Home Department [2001] 1  AC  489, [2000] 3 WLR 379, [2000] 3 All ER 577.......................................................  10.23, 10.25, 10.27 Hounga v Allen [2014] UKSC 47, [2014] 1 WLR 2889, [2014] IRLR 811............  4.20; 10.65, 10.81; 12.76; 14.25 Huang v Secretary of State for the Home Departmernt [2007]  UKHL  11, [2007] 2 AC 167, [2007] 2 WLR 581.......................................................................... 2.117; 10.3 Hunter v Johnson (1884) 13 QBD 225......................................................................... 4.80 I IM v Regional Prosecutor’s Office of Ruse, Bulgaria [2019] EWHC 6012 (Admin)....14.9, 14.10, 14.28, 14.46, 14.48 IT (Sierra Leone) v Secretary of State for the Home Department [2010] EWCA Civ 787....................................................................................................................... 2.139 Igbinovia v Spain [2014] EWHC 4512 (Admin)........................................................... 14.41

li

Table of Cases Ikarian Reefer, The see National Justice Compania Naviera SA v Prudential Assurance Co Ltd (The Ikarian Reefer) Independent Publishing Co Ltd v A-G of Trinidad & Tobago [2004] UKPC 26, [2005] 1 AC 190, [2004] 3 WLR 611............................................................................... 9.46 Islam v Secretary of State for the Home Department (United Nations High Comr for Refugees intervening); R v Immigration Appeal Tribunal, ex p Shah (United Nations High Comr for Refugees intervening) [1999] 2  AC  629, [1999] 2 WLR 1015, [1999] 2 All ER 545....................................................................... 10.19 J J v Austria (Application 58216/12) (unreported, 17 January 2017).............2.1, 2.11, 2.12, 2.127, 2.158, 2.168; 6.91, 6.92 J v Secretary of State for the Home Department [2005] EWCA Civ 629, [2005] Imm AR 409................................................................................................................ 10.49 JL (medical reports: credibility: China), Re [2013]  UKUT  145 (IAC), [2013] mm AR 727................................................................................................................ 8.17 JS v Secretary of State for the Home Department [2020] EWHC 500 (Admin), [2020] 2 WLUK 291....................................................................................................... 1.27 Januzi v Secretary of State for the Home Department [2006] UKHL 5, [2006] 2 AC 426, [2006] 2 WLR 397........................................................................................10.30, 10.33 K KL (a juvenile) v DPP  [2001]  EWHC  Admin 1112, (2002) 166  JP  369, (2002) 166 JPN 470......................................................................................................... 8.68 Karanakaran v Secretary of State for the Home Department [2000] 3 All ER 449, [2000] Imm AR 271, [2000] INLR 122........................................................................... 10.15 Khuja (formelrly known as PNM) v Times Newspapers Ltd [2017] UKSC 49, [2017] 3 WLR 351, [2018] 1 Cr App Rep 1.......................................  8.51; 9.37, 9.38, 9.44, 9.47 Kinuthia v Secretary of State for the Home Department [2001]  EWCA  Civ 2100, [2002] INLR 133.................................................................................................. 10.25 Krolik v Poland [2012]  EWHC  2357 (Admin), [2013] 1  WLR  40, (2012) 162 NLJ 1125....................................................................................................... 14.26 L LE v Greece (Application 71545/12) (21 April 2016)....................................  6.92; 11.60; 14.50 Lithuaia v Al [2010] EWHC 2299 (Admin), 2010 WL 3515648...................... 14.5, 14.8, 14.28 Lucas v Barking, Havering & Redbridge Hospitals NHS Trust [2003] EWCA Civ 1102, [2004] 1 WLR 220, [2003] 4 All ER 720.............................................................. 10.88 M M v Advocate General for Scotland [2013] CSOH 169, 2014 SLT 475, 2013 GWD 36702....................................................................................................................... 12.25 M v Italy (Application 40020/03) (2013) 57 EHRR 29............................................ 4.8; 10.55 M v SSWP (PIP) [2018] UKUT 108 (AAC)................................................................. 8.44 MJ v FTT (No 3) [2014] UKUT 279 (AAC)................................................................ 12.25 MOJ (return to Mogadishu) Somalia [2014] UKUT 442 (IAC).............................. 10.87, 10.88 MS (Pakistan) v Secretary of State for the Home Department [2020] UKSC 9, [2020] 1 WLR 1373, [2020] 3 All ER 733................................ 1.1, 1.2, 1.4, 1.7, 1.10, 1.14, 1.27; 2.2, 2.6, 2.7, 2.12, 2.117, 2.121; 4.20; 5.24, 5.29, 5.30; 10.2, 10.3,10.10, 10.65, 10.73, 10.87; 13.145; 14.7, 14.44, 14.50 MS (Trafficking – Tribinal’s Powers – Art 4 ECHR) Pakistan [2016] UKUT 226 (IAC), [2016] 2 WLUK 876............................................................................................ 2.6 MSS  v Belgium (Application 30696/09) (2011) 53  EHRR  2, 31  BHRC  313, [2011] INLR 533.................................................................................................. 10.44

lii

Table of Cases MVN  v London Borough of Greenwich [2015]  EWHC  1942 (Admin), (2015) 18 CCL Rep 645, [2015] ACD 141..................................................................  3.29, 3.39 McPherson v Secretary of State for the Home Department [2001] EWCA Civ 1955, [2002] INLR 139.................................................................................................. 10.25 Medical Justice v Secretary of State for the Home Department [2017]  EWHC  2461 (Admin).........................................................................................................11.52, 11.54 Mibanga v Secretary of State for the Home Department [2005]  EWCA  Civ 367, [2005] INLR 377.................................................................................................. 10.88 Miss Behavin’ v Belfast City Council [2007] UKHL 19, [2007] 1 WLR 1420, [2007] 3 All ER 1007...................................................................................................... 2.168 Muuse v Secretary of State for the Home Department [2010] EWCA Civ 453, (2010) 107 (19) LSG 24............................................................................................ 12.53, 12.55 N NR (Jamaica) v Secretary of State for the Home Department [2009] EWCA Civ 856, [2009] 8 WLUK 38, [2010] INLR 169, [2009] All ER (D) 43 (Aug).................. 2.9; 10.5 NV v Czech Republic [2020] EWHC 409 (Admin), [2020] 2 WLUK 379................14.5, 14.8 National Justice Compania Naviera SA  v Prudential Assurance Co Ltd (The Ikarian Reefer) [1993] 2 Lloyd’s Rep 68, [1993] FSR 563, [1993] 37 EG 158.............. 7.89; 10.88 Nzolameso v Westminster City Coundil [2015]  UKSC  22, [2015] 2  All ER  942, [2015] PTSR 549................................................................................................. 11.24 O O v Comr of Police for the Metropolis [2011] EWHC 1246 (QB), [2011] HRLR 29, [2011] UKHRR 767.....................................................................................12.63, 12.68 O’Brien v Chief Constable of South Wales Police [2005] UKHL 26, [2005] 2 AC 534, [2005] 2 WLR 1038............................................................................................. 7.92 Opuz v Turkey (Application 33401/02) [2009] 6  WLUK  179, (2010) 50  EHRR  28, 27 BHRC 159...................................................................................................... 10.48 Osman v UK (Application 23452/94) [1999] 1  FLR  193, (2000) 29  EHRR  245, 5 BHRC 293..................................................................................................  6.89; 10.25 P PO (Nigeria) v Secretary of State for the Home Department [2011] EWCA Civ 132, [2011] 2 WLUK 688, [2011] Imm AR 466.........................................  10.14, 10.16, 10.22 Paposhvili v Belgium (Application 41738/10) [2016] 12  WLUK  304, [2017] Imm AR 867, [2017] INLR 497................................................................................... 10.51 Pesukic v Switzerland [2012] ECHR 2031.................................................................... 8.99 Poland v Dytlow [2009] EWHC 1009 (Admin), [2009] Extradition LR 238................. 14.47 Poland v Celinksi [2009]  EWHC  1274 (Admin), [2016] 1  WLR  551, [2016] 3  All ER 71...........................................................  14.7, 14.8, 14.25, 14.41, 14.42, 14.43, 14.47 Prosecutor v Erdemovic (Drazen) (1997, IT-96-22A)............  18.32, 18.33, 18.34, 18.36, 18.37, 18.38, 18.41, 18.42, 18.43, 18.48, 18.60, 18.61, 18.67, 18.70 Prosecutor v Kaing Guek Eav (2010, 001/18-07-2007/ECCC/TC)............................. 18.56 Prosecutor v Kambanda (4 September 1998, ICTR-97-23-S)....................................... 18.31 Prosecutor v Mrda (2004, IT-02-59-S).......................................................................... 18.56 Prosecutor v Ongwen (in progress).....................  18.50, 18.51, 18.52, 18.63, 18.54, 18.55, 19.56, 18.57, 18.58, 18.62, 18.63, 18.64, 18.65 Pupino, criminal proceedings against (Case C-105/03) [2006]  QB  83, [2005] 3 WLR 1102, [2005] ECR I-5285........................................................................ 14.14 R R v A [2014] EWCA Crim 567, [2014] 2 Cr App Rep 7.............................................. 9.28 R v A (child abduction) [2000] 1 Cr App Rep 418....................................................... 4.90

liii

Table of Cases R v A (2020).............................................................................................................5.83; 7.56 R v Abdalla [2010] EWCA Crim 2400, [2011] 1 Cr App Rep 432................................ 5.106 R  v Ainscough (Zane Roy) [2006]  EWCA  Crim 694, [2006] 3  WLUK  359, (2006) 170 JP 517............................................................................................................ 7.112 R v Ali (Yasir Ifran) [2015] EWCA Crim 1279, [2015] 7 WLUK 587, [2015] 2 Cr App Rep 457............................................................................................................... 4.48 R v Allad [2014] EWCA Crim 421.............................................................................. 7.86 R v Antar (The Times, 4 November 2004).................................................................... 7.88 R  v Antoine (Pierre Harrison) [2001]  AC  340, [2000] 2  WLR  703, [2000] 2  All ER 208................................................................................................................. 7.76 R v Archer (Thomas Edward) [2011] EWCA Crim 2252, [2012] Crim LR 292.........4.75, 4.76 R v Argent (Brian) [1997] 2 Cr App Rep 27, (1997) 161 JP 190, [1997] Crim LR 346....  6.75; 7.124 R v Asfaw (Fregenet) [2008] UKHL 31, [2008] 1 AC 1061, [2008] 2 WLR 1178.... 5.99, 5.104, 5.106 R v B (Dwayne Clinton) [2006] EWCA Crim 330, [2006] 2 Cr App Rep (S) 60.......... 7.163 R v B [2008] EWCA Crim 1997, [2009] 1 WLR 1454, [2009] 1 Cr App Rep 261....... 7.75 R v B [2012] EWCA Crim 770, [2013] 1 WLR 499, [2012] 3 All ER 1093................. 7.76 R v Bansall, Bir, Mahio & Singh [1985] Crim LR 151.................................................. 8.110 R v Barker (Shaun David) [2002] EWCA Crim 1508, [2003] 1 Cr App Rep (S) 212.... 7.78 R v Barker [2010] EWCA Crim 4, [2010] 1 WLUK 370, [2011] Crim LR 233......... 8.57, 8.67 R v Berry (John) (1977) 66 Cr App Rep 156, [1977] Crim LR 750.............................. 7.71 R  v Berry (Thomas Clive) (Abduction) [1996] 2 Cr App Rep 226, [1996] Crim LR 574................................................................................................................. 4.91 R v Betts (Raymond Christopher) [2001] EWCA Crim 224, [2001] 2 Cr App Rep 16, [2001] 2 Cr App Rep 257..................................................................................... 6.79 R v Bewick (Ernest Arthur) [2007] EWCA Crim 3297, [2008] 2 Cr App Rep (S) 184..  12.9 R v Biddle (Joseph) [2019] EWCA Crim 86, [2019] 1 WLUK 349, [2019] 2 Cr App R 20..................................................................................................................... 8.95 R v Blackwood (David George) (1974) 59 Cr App Rep 170, [1974] Crim LR 437....... 7.78 R v Boateng (Kenneth) [2016] EWCA Crim 57, [2016] 4 WLR 70, [2016] 2 Cr App Rep 43............................................................................................................. 4.93, 4.96 R v Bowen (Cecil) [1997] 1 WLR 372, [1996] 4 All ER 837, [1996] 2 Cr App Rep 157....................................................................................................................... 5.34 R v Boxer (Michael) [2015] EWCA Crim 1684, [2015] 9 WLUK 95........................... 8.95 R v Braham [2013] EWCA Crim 3, [2013] 1 Cr App Rep 36, [2013] 1 Cr App Rep 481....................................................................................................................... 8.78 R v Buddo (Stephen John) (1982) 4 Cr App Rep (S) 268, [1982] Crim LR 837........... 4.120 R  v Burles (David John) [1970] 2  QB  191, [1970] 2  WLR  597, [1970] 1  All ER 642....................................................................................................................... 7.75 R v Chal (Amolak Singh) [2007] EWCA Crim 2647, [2008] 1 Cr App Rep 18, (2008) 172 JP 17........................................................................................................... 7.76, 7.77 R v Chief Immigration Officer, ex p Quaquah [2000] HRLR 325, [2000] UKHRR 375, [2000] INLR 196.................................................................................................. 2.137 R v Connors (William) see A-G’s Reference (Nos 2, 3, 4 & 5 of 2013) R v Connors (Josie) [2013] EWCA Crim 368, [2013] Crim LR 854.........................4.65, 4.66 R v Cormick (William Alexander) [2015] EWCA Crim 110, [2015] 1 Cr App Rep (S) 69......................................................................................................................... 8.102 R v Cox [2012] EWCA Crim 549, [2012] 2 Cr App Rep 63............................ 8.57, 8.69, 8.80 R  v Creed (Adam) [2011]  EWCA  Crim 144, [2011]  MHLR  186, [2011] Crim LR 644................................................................................................................. 7.77 R v Criminal Cases Review Commission, ex p Pearson [1999] 3 All ER 498, [2000] 1 Cr App Rep 141, [1999] Crim LR 732................................................................. 9.63 R v Croydon Youth Court, ex p DPP [1997] 2 Cr App Rep 411, [1997] COD 419......  9.9 R v D (Ian Malcolm) [1984] AC 778, [1984] 3 WLR 186, [1984] 2 All ER 449........ 4.75, 4.77

liv

Table of Cases R v DS [2020] EWCA Crim 285, [2020] 2 WLUK 456..........5.31, 5.32, 5.72, 5.79, 5.82, 5.83; 7.44, 7.55, 7.57, 7.81; 14.43 R v Davis (Iain) [2008] UKHL 36, [2008] 1 AC 1128, [2008] 3 WLR 125................... 8.100 R v Dhall (Harpreet Singh) [2013] EWCA Crim 1610................................................. 4.97 R  v Dinc (Zafer) [2017]  EWCA  Crim 1206, [2017] 7  WLUK  211, [2018] Crim LR 263................................................................................................................. 8.67 R v Dlugosz (Kuba) [2013] EWCA Crim 2, [2013] 1 Cr App Rep 32, [2013] Crim LR 684................................................................................................................. 7.92 R v Donovan (1981) 3 Cr App Rep (S) 192................................................................. 12.9 R v Donovan (Reece) [2012] EWCA Crim 2749...................................................  8.99, 8.100 R v EK [2018] EWCA Crim 2961, [2018] 12 WLUK 602..........................  4.104; 5.54, 5.67 R v Ealing Magistrates’ Court, ex p Sahota (1998) 162 JP 73, [1998] COD 167, [1997] 45 LS Gaz R 29.................................................................................................... 9.16 R v Edwards [2011] EWCA Crim 3028, [2011] 11 WLUK 416, [2012] Crim LR 563.... 8.67 R v Farmer (Daniel Thomas) [2002] EWCA Crim 2128............................................... 3.49 R v Fitzpatrick [1977] NILR 20................................................................................... 5.35 R v Ford (Royston James) [1989] QB 868, [1989] 3 WLR 762, [1989] 3 All ER 445.... 8.110 R v Ford (Kamahl) [2010] EWCA Crim 2250, [2011] Crim LR 475............................ 8.99 R v Fox (Craig) [2010] EWCA Crim 1280.................................................................. 8.99 R v Friend (Billy-Joe) (Appeal against Conviction) (No 2) [2004] EWCA Crim 2661, [2004] 10 WLUK 270........................................................................................... 8.80 R v G [2003] UKHL 50, [2004] 1 AC 1034, [2003] 3 WLR 1060................................ 3.49 R v G [2017] EWCA Crim 617, [2017] 4 WLR 119, [2017] 5 WLUK 436.................. 8.67 R v GB [2020] EWCA Crim 2, [2020] 1 WLUK 128......................................  5.55, 5.67, 5.73 R v GL; R v N [2017] EWCA Crim 2129...............................  8.103, 8.104, 8.105, 9.35, 9.36, 9.42, 9.44, 9.48 R v GS [2018] EWCA Crim 1824, [2018] 4 WLR 167, [2018] 7 WLUK 736.....1.4; 5.28, 5.29, 5.54, 5.67, 5.74; 14.43 R v Ghulam (Habib) [2009] EWCA Crim 2285, [2010] 1 WLR 891, [2010] 1 Cr App Rep 12................................................................................................................. 7.74 R v Godfrey (1994) 15 Cr App Rep (S) 536................................................................. 12.8 R v Gogana (The Times, 12 July 1999)......................................................................... 9.29 R v Governor of Brockhill Prison, ex p Evans (No 2) [2001] 2 AC 19, [2000] 3 WLR 843, [2000] 4 All ER 15............................................................................................... 12.55 R v Governor of Stafford Prison, ex p Emery (Frederick) [1909] 2 KB 81.................... 7.71 R v Graham (Paul Anthony) [1982] 1 WLR 294, [1982] 1 All ER 801, (1982) 74 Cr App Rep 235........................................................................................................ 5.34 R  v Grant (Heather) [2001]  EWCA  Crim 2611, [2002]  QB  1030, [2002] 2 WLR 1409........................................................................................................ 7.76 R v Grant (Alan Ian) [2008] EWCA Crim 1890........................................................... 7.75 R v Grant-Murray (Janhelle) [2017] EWCA Crim 1228, [2018] Crim LR 71, [2017] All ER (D) 62 (Aug).................................................................................... 8.95; 9.28; 16.12 R v H (Fitness to plead) [2003] UKHL 1, [2003] 1 WLR 411, [2003] 1 All ER 497..... 7.77 R v H [2006] EWCA Crim 853, (2006) 150 SJLB 571................................................. 8.79 R v H [2014] EWCA Crim 1555, (2014) 140 BMLR 59, [2014] Crim LR 905............ 7.92 R v H (20 October 2017)............................................................................................. 9.30 R v HHD [2018] EWCA Crim 2995............................................................... 5.22, 5.24, 5.67 R  v Hamilton [2014]  EWCA  Crim 1555, [2014] 7  WLUK  852, (2014) 140 BMLR 59...................................................................................................... 8.67 R  v Hancox (Dennis) [2010]  EWCA  Crim 102, [2010] 1  WLR  1434, [2010] 4  All ER 537................................................................................................................. 4.124 R  v Harris (Lorraine) [2005]  EWCA  Crim 1980, [2006] 1 Cr App Rep 5, [2008] 2 FLR 412............................................................................................................ 7.89 R v Hasan (Aytach) [2005] UKHL 22, [2005] 2 AC 467, [2005] 2 WLR 709.....5.33, 5.34, 5.35 R v Hendy-Freegard [2007] EWCA Crim 1236, [2008] QB 57................................. 4.75, 4.76

lv

Table of Cases R v Henman [1987] Crim LR 333............................................................................... 4.78 R v Heys (Carl John) [2011] EWCA Crim 2112.......................................................... 4.91 R v Horseferry Road Magistrates’ Court, ex p Bennett (No 1) [1994] 1 AC 42, [1993] 3 WLR 90, [1993] 3 All ER 138........................................................................... 7.57 R v Howe (Michael Anthony) [1987[ AC 417, [1987] 2 WLR 568, (1987) 85 Cr App Rep 32................................................................................................................. 5.34 R v Hutchins [1988] Crim LR 379........................................................................... 4.79, 4.81 R v IA [2013] EWCA Crim 1308................................................................................ 8.57 R v Immigration Appeal Tribunal, ex p Shah; Islam v Secretary of State for the Home Department [1997] Imm AR 145.......................................................................... 10.18 R v Iyamu (Josephine) [2018] EWCA Crim 2166, [2018] 9 WLUK 257, [2019] 1 Cr App R (S) 19..................................................................................................... 4.46, 4.59 R v JXP [2019] EWCA Crim 1280........................................................ 2.88; 5.23, 5.67; 13.86 R v Jaddi (Sina) [2012] EWCA Crim 2565............................................................5.105, 5.106 R v James [1997] 34 LS Gaz R 27................................................................................ 4.80 R  v Javaherifard (Mohammed) [2005]  EWCA  Crim 3231, [2006] Imm AR  185, [2006] INLR 302...............................................................................................4.95, 4.98 R v Jogee (Ameen Hassan) [2016] UKSC 8, [2017] AC 387, [2016] 1 Cr App Rep 31.. 9.30 R v Johnson (Lewis) [2016] EWCA Crim 1613, [2017] 4 WLR 104, [2017] 1 Cr App Rep 12................................................................................................................. 9.30 R  v Jonas (Sandor) [2015]  EWCA  Crim 562, [2015] 2  WLUK  790, [2015] Crim LR 742................................................................................................................. 8.67 R v Jones (Anthony William) [2002] UKHL 5, [2003] 1 AC 1, [2002] 2 WLR 524....... 7.136 R v Jones (Gareth William) [2018] EWCA Crim 2816, [2018] 12 WLUK 414, [2019] Crim LR 344........................................................................................................ 8.80 R v Joseph (Verna Semanfure) [2017] EWCA Crim 36, [2017] 1 WLR 3153, [2017] 1 Cr App Rep 33................................................ 1.2; 2.88; 5.30, 5.31, 5.39, 5.48, 5.53, 5.53, 5.64, 5.67, 5.74, 5.78, 5.82; 7.92, 7.100; 9.53, 9.55; 14.7, 14.43 R v Joyce (Timothy) [2017] EWCA Crim 337.........................................................  4.60, 4.67 R v K(P) [2017] EWCA Crim 486, [2017] Crim LR 716............................................. 9.30 R v K (S) [2011] EWCA Crim 1691, [2013] QB 82, [2011] 2 Cr App R 34................. 17.34 R v K, W, A see R v Karemara (Michael) R v Kaile (Joginder Singh) [2009] EWCA Crim 2868.................................................. 4.96 R v Kamalanathan; R v SK [2010] EWCA Crim 1335................................................. 5.104 R v Kapoor (Saran Singh) [2012] EWCA Crim 435, [2012] 1 WLR 3569, [2012] 2 All ER 1205...............................................................................................................  4.95 R v Karemara (Michael) [2018] EWCA Crim 1432, [2019] 1 WLR 4761, [2019] 2 Cr App R 14...................................................... 4.21, 4.36, 4.37, 4.38, 4.40, 4.41, 4.50, 4.51, 4.53, 4.109, 4.129; 17.5, 17.24 R v Kayani (Talib Hussein) [2011] EWCA Crim 2871, [2012] 1 WLR 1927, [2012] 2 All ER 641........................................................................................................ 4.91 R v Khalifa [2016] EWCA Crim 1967......................................................................... 7.159 R v Khan see A-G’s Reference (Nos 37, 38 & 65 of 2010) R v Khan (Shafiq) [2010] EWCA Crim 1692............................................................... 8.99 R  v Khelifi (Ali) [2006]  EWCA  Crim 770, [2006] 2 Cr App Rep (S) 100, [2006] MHLR 257............................................................................................... 7.78 R v Koli (Raj) [2012] EWCA Crim 1869, [2013] 1 Cr App Rep (S) 6, [2012] Crim LR 903................................................................................................................. 4.125 R v L [2013] EWCA Crim 991, [2014] 1 All ER 113, [2013] 2 Cr App Rep 23........... 1.1, 1.2, 1.23; 3.4; 5.18, 5.27, 5.31, 5.32, 5.50, 5.81, 5.82; 7.106, 7.150, 7.151, 7.152; 8.105; 9.22, 9.31, 9.54; 12.43; 14.7, 14.35, 14.43; 17.41 R v LM [2010] EWCA Crim 2327, [2011] 1 Cr App Rep 12, [2011] Crim LR 425..... 1.23; 4.104; 5.19, 5.38, 5.49, 5.51, 5.80, 5.82

lvi

Table of Cases R v LZ [2012] EWCA Crim 1867.................................................................. 7.29; 9.28, 9.32 R v Le; R v Stark [1999] 1 Cr App Re (D) 422.............................................. 4.99, 4.99, 4.100 R v Lee (Anthony William) (a minor) [1993] 1 WLR 1031993] 2 All ER 170, (1993) 96 Cr App Rep 188.............................................................................................. 8.102 R v Lewis (Andrew John) (1993) 14 Cr App Rep (S) 744, [1993] Crim LR 469........... 4.77 R v Lincolnshire (Kesteven) Justices, ex p O’Connor [1983] 1 WLR 335, [1983] 1 All ER 901, (1983) 147 JP 97..................................................................................... 7.78 R v Lubemba (Cokesix) [2014] EWCA Crim 2064, [2015] 1 WLR 1579, [2015] 1 Cr App Rep 12......................................................................................................  8.57, 8.67 R v M; R v H (fitness to plead) [2002] EWCA Crim 2024, [2002] 1 WLR 824, [2002] 1 Cr App Rep 25.................................................................................................. 7.77 R v MK [2018] EWCA Crim 667, [2019] QB 86, [2018] 3 WLR 895......................... 5.45 R v McCook (Jason Trevor) [2014] EWCA Crim 734, [2016] 2 Cr App Rep 30, [2015] Crim LR 350..................................................................................................  9.28; 16.12 R v McKenzie (Michael Anthony) [2011] EWCA Crim 1550, [2011] 1 WLR 2807, [2011] 2 Cr App Rep 27...................................................................................  7.76, 7.77 R v Makuwa (Liliane) [2006] EWCA Crim 175, [2006] 1 WLR 2755, [2006] 2 Cr App Rep 11................................................................................................................. 5.102 R  v Manchester Crown Court, ex p McDonald [1999] 1  WLR  841, [1999] 1  All ER 805, [1999] 1 Cr App Rep 409....................................................................... 7.47 R  v Marcantonio (Robert) [2016]  EWCA  Crim 14, [2016] 2 Cr App Rep 9, [2016] MHLR 252............................................................................................7.71, 7.74 R v Marine A [2013] EWCA Crim 2367, [2014] 1 WLR 3326, [2014] 1 Cr App Rep 26......................................................................................................................9.44, 9.45 R v Marshall (Darren) [2015] EWCA Crim 474, [2016] MHLR 102............................ 7.78 R v Massey (Steven John) [2007] EWCA Crim 2664, [2008] 1 WLR 937, [2008] 2 All ER 969................................................................................................................. 4.104 R v Mateta (Koshi Pitshou) [2013] EWCA Crim 1372, [2014] 1 WLR 1516, [2014] 1 All ER 152...................................................................  5.102, 5.104, 5.106, 5.108; 9.60 R  v Mayers (Jordan) [2008]  EWCA  Crim 2989, [2009] 1  WLR  1915, [2009] 2  All ER 145................................................................................................................. 8.99 R v Mirahessari (Payam Moradi) [2016] EWCA Crim 1733  5.98 R v Moghal (Mohammed Ilias) (1977) 65 Cr App Rep 56, [1977] Crim LR 373.......... 7.99 R v Mohammed (Zakaria) [2019] EWCA Crim 1881, [2019] 10 WLUK 669.........4.59, 4.109 R v Morkunas (Audrius) [2014] EWCA Crim 2750..................................................... 4.111 R v Motroc (Ionut Viorel) WL 03083561 (2019)........................................................... 4.80 R v Mursalin (Nasrullah) [2019] EWCA Civ 1559, [2019] 9 WLUK 7......................... 16.14 R v N [2019] EWCA Crim 984, [2019] 6 WLUK 337................................................. 5.67 R v N [2010] 2 Cr App Rep 97................................................................................... 7.163 R v N; R v L [2012] EWCA Crim 189, [2013] QB 379, [2012] 3 WLR 1159.......... 2.88; 5.37, 5.38, 5.67, 5.82; 7.159, 7.160 R v Nazir (Azhar) [2009] EWCA Crim 213..........................................................8.100, 8.101 R v Nguyen, Tran & Nguyen [2019] EWCA Crim 670, [2019] 1 WLUK 562, [2019] Crim LR 899.................................................................................4.21, 4.129; 17.5, 17.24 R v Nnamdi (Joseph) [2005] EWCA Crim 74.............................................................. 4.77 R  v Norman (Leslie) [2008]  EWCA  Crim 1810, [2009] 1 Cr App Rep 13, [2008] MHLR 206............................................................................................... 7.71 R v O [2008] EWCA Crim 2835................................................................................. 5.89 R v O [2011] EWCA Crim 2226..................................................................... 7.29; 9.28, 9.32 R v O [2019] EWCA Crim 1389, [2019] 7 WLUK 537...........................................  1.15; 5.67 R v Okedare (Charles) [2014] EWCA Crim 228, [2014] 1 WLR 4071, [2014] 3 All ER 109....................................................................................... 2.154; 7.141, 7.143; 9.53 R v Okuwa (Alex) [2010] EWCA Crim 832................................................................ 8.100 R v Ordu (Mehmet) [2017] EWCA Crim 4, [2017] 1 Cr App Rep 21, [2017] Crim LR 396.............................................................................................................  5.98; 9.30

lvii

Table of Cases R v Orr (Patrick Neale) [2016] EWCA Crim 889, [2016] 4 WLR 132, [2016] 2 Cr App Rep32.................................................................................................................. 7.75 R v PMH [2018] EWCA Crim 2452, [2019] 1 WLR 3243, [2019] 10 WLUK 652...... 8.67 R v Pearson-Gaballonie [2007] EWCA Crim 3504...................................................... 4.85 R  v Perkins (Robert) [2013]  EWCA  Crim 323, [2013] 3  WLUK  702, [2013] Crim LR 533................................................................................................................. 12.9 R v Pipe (Steven Allan) [2014] EWCA Crim 2570, [2014] 11 WLUK 502, [2015] 1 Cr App R (S) 42........................................................................................................ 8.67 R v Podola (Guenther Fritz Erwin) [1960] 1 QB 325, [1959] 3 WLR 718, [1959] 3 All ER 418................................................................................................................. 7.71 R v Pola (Shah Nawaz) [2009] EWCA Crim 655, [2010] 1 Cr App Rep (S) 6, [2009] Crim LR 603........................................................................................................ 12.9 R v Polish Judicial Authority [2018] EWHC 3696 (Admin), [2018] 11 WLUK 652...... 14.46 R v Pora [2015] UKPC 9, [2016] 1 Cr App Rep 3, [2015] Crim LR 884..................... 7.92 R v Powar [2009] EWCA Crim 594, [2009] 2 Cr App Rep 120................................... 8.99 R v Pritchard (1836) 7 C & P 303....................................................................  7.70, 7.71, 7.74 R v RH [2016] EWCA Crim 1754, [2017] 4 WLR 81, [2017] 1 Cr App Rep(S) 23..... 4.92 R v RL [2018] EWCA Crim 603, [2018] 3 WLUK 770, [2019] Crim LR 439............. 8.67 R v Rahman (Mohammed Moqbular) (1985) 81 Cr App Rep 349, [1985] Crim LR 596, (1985) 82 LSG 2500.............................................................................................. 4.80 R  v Rashid (Yahya) [2017]  EWCA  Crim 2, [2017] 1  WLR  2449, [2017] 1 WLUK 259....................................................................................................... 8.80 R v Roberts [2016] EWCA Crim 2915........................................................................ 9.25 R v Robertson (Eric John) [1968] 1 WLR 1767, [1968] 3 All ER 557, (1968) 52 Cr App Rep 690............................................................................................................... 7.71 R v Rochdale Justices, ex p Allwork [1981] 3 All ER 434, [1981] 6 WLUK 239, (1981) 73 Cr App R 319.................................................................................................. 7.145 R  v Roddis (Nicholas Ian) [2020]  EWCA  Crim 396, [2020] 4  WLR  69, [2020] 3 WLUK 229....................................................................................................8.80, 8.95 R  v Rooney (Martin Senior) [2019]  EWCA  Crim 681, [2019] 4  WLR  89, [2019] 4 WLUK 321......................................................................................... 4.21, 4.129; 17.5 R v S (G) see R v GS R v S [2019] EWCA Crim 1280.................................................................................. 5.67 R v SK [2011] EWCA Crim 1691, [2013] QB 82, [2012] 3 WLR 933.............  4.6, 4.22; 7.160 R v Sadighpour (Ali Reza) [2012] EWCA Crim 2669, [2013] 1 WLR 2725, [2013] 1 Cr App Rep 20..................................................................................................... 5.102 R v Saker (Julia) [2011] EWCA Crim 1196, [2012] 1 Cr App Rep (S) 16..................... 4.81 R v Secretary of State for the Home Department, ex p Singh (Sarbjit) [1999] 2 WLUK 51, [1999] Imm AR 445, [1999] INLR 632................................................................ 10.47 R v Secretary of State for the Home Department, ex p Sivakumaran [1998] AC 958..... 10.15, 10.25 R v Shabani (Ali) [2015] EWCA Crim 1924, [2015] 7 WLUK 721.............................. 5.96 R v Sharp (David Bruce) [1987] QB 853, [1987] 3 WLR 1, [1987] 3 All ER 103......... 5.35 R v Singh (Kunwar Ajit) [2017] EWCA Crim 466, [2017] 2 Cr App Rep 15, [2017] Crim LR 634........................................................................................................ 9.29 R  v Socialist Worker Printers & Publishers Ltd, ex p A-G  [1975]  QB  637, [1974] 3 WLR 801, [1975] 1 All ER 142......................................................................... 9.38 R v Special Adjudicator, ex p Hoxha [2005] UKHL 19, [2005] 1 WLR 1063, [2005] 4 All ER 580........................................................................................................ 10.19 R v Spence (Clinton Everton) (1983) 5 Cr App Rep (S) 413, [1984] Crim LR 372...4.83, 4.84 R v Steed (Gareth) (1990-91) 12 Cr App Rep (S) 230, [1990] Crim LR 816.............3.32, 3.49 R v Swinbourne [2013] EWCA Crim 2329, (2014) 178 JP 34...................................... 7.76 R  v Szczerba (Ian Michael) [2002]  EWCA  Crim 440, [2002] 2 Cr App Rep (S) 86, [2002] Crim LR 429............................................................................................. 4.82 R v TS [2008] EWCA Crim 6...................................................................................... 8.78

lviii

Table of Cases R v Taylor (Scott Michael) [2010] EWCA Crim 830.................................................... 8.100 R v Thompson (Andrew) [2014] EWCA Crim 836...................................................... 8.78 R v Tijanil R v LM [2010] EWCA Crim 2327, [2011] 1 Cr App Rep 12, [2011] Crim LR 425................................................................................................................. 5.38 R  v Turner (Jennifer) [2015]  EWCA  Crim 1249, [2017]  MHLR  180, [2015] Crim LR 920................................................................................................................. 7.78 R v Ubolcharoen (Phandia) [2009] EWCA Crim 3263................................................ 4.103 R v Uddin (Suran) [2014] EWCA Crim 2269, [2014] 10 WLUK 214.......................... 8.67 R  v Ukpabio (Roland Thompson) [2007]  EWCA  Crim 2108, [2008] 1  WLR  728, [2008] 1 Cr App Rep 101..................................................................................... 8.78 R  v Uxbridge Magistrates Court, ex p Adimi [f2001]  QB  667, [2000] 3  WLR  434, [1999] 4 All ER 520........................................................................................5.98, 5.108 R v VSJ see R v Joseph (Verna Sermanfure) R v Valujevs (Juris) [2014] EWCA Crim 2888, [2015] QB 745, [2015] 3 WLR 109...... 4.112 R v van Dao (Vinh) [2012] EWCA Crim 1717, [2013] Crim LR 234.......................... 5.36 R v Vaughan (Simon Martin) (1990) 12 Cr App Rep (S) 46, [1990] Crim LR 443........ 12.8 R v Vowles [2015] 2 Cr App Rep (S) 39....................................................................... 7.78 R  v Walls (Robert) [2011]  EWCA  Crim 443, [2011] 2 Cr App Rep 61, [2014] MHLR 67................................................................................................. 7.71 R v Watton (Joseph) (1979) 68 Cr App Rep 293, [1979] Crim LR 246......................... 9.33 R v Webb (Colin John) [1969] 2 QB 278, [1969] 2 WLR 1088, [1969] 2 All ER 626... 7.75 R v Wellard (Mike Colin) [1978] 1 WLR 921, [1978] 3 All ER 161, (1978) 67 Cr App Rep 364............................................................................................................... 4.76 R v Wells (Marc Martin) [2015] EWCA Crim 2, [2015] 1 WLR 2797, [2015] 1 Cr App Rep 27................................................................................................................. 7.76 R v Willett (Tommy) [2011] EWCA Crim 2710, [2012] 2 Cr App Rep (S) 76.......8.100, 8.101 R v Willis [2011] EWCA Crim 1938, [2011] 8 WLUK 30, [2012] 1 Cr App R 2.......... 8.67 R v Wilmot (Alan) (1988) 89 Cr App Rep 341............................................................. 6.85 R v Wirral District Magistrates’ Court, ex p Meikle (1990) 154 JP 1035, [1990] Crim LR 801, [1991] COD 2........................................................................................ 7.46 R v Y [2015] EWCA Crim 123.................................................................................... 12.44 R v YGM [2018] EWCA Crim 2458, [2018] 10 WLUK 189.....................................8.67, 8.77 R v YY; R v Nori [2016] EWCA Crim 18, [2016] 1 Cr App Rep 28............. 7.145; 9.60, 9.61 R v Z see R v Hasan (Aytach) R v Z [2016] EWCA Crim 1083................................................................................. 9.42 R v Zawadzka (Edyta) [2016] EWCA Crim 1712, [2016] 11 WLUK 237..................... 7.111 R v Zielinski (David) [2017] EWCA Crim 758, [2017] 5 WLUK 375.......................... 4.59 R  (on the application of A) v Croydon London Borough Council [2009]  UKSC  8, [2009] 1 WLR 2557, [2010] 1 All ER 469..................  3.6, 3.7, 3.35, 3.36, 3.37, 3.42; 7.86 R  (on the application of A) (disputed children) v Secretary of State for the Home Department [2007] EWHC 2494 (Admin)............................................................ 3.15 R  (on the application of A  (Iraq)) v Secretary of State for the Home Department [2012] EWCA Civ 23........................................................................................1.21; 2.95 R (on the application of AA (Afghanistan)) v Secretary of State for the Home Department [2013] UKSC 49, [2013] 1 WLR 2224, [2013] 4 All ER 140................................ 11.27 R  (on the application of AB) v Secretary of State for the Home Department [2015] EWHC 1490 (Admin), [2015] 5 WLUK 645............................................. 7.87 R (on the application of AN (a child)) v Secretary of State for the Home Department [2012] EWCA Civ 1636....................................................................................... 11.28 R (on the application of Adams) v Secretary of State for Justice [2011] UKSC 18, [2012] 1 AC 48, [2011] 2 WLR 1180............................................................................... 12.36 R (on the application of Ali (Sudan)) v Secretary of State for the Home Department [2017] EWCA Civ 138, [2017] 1 WLR 2894, [2017] 4 All ER 964..................3.15; 11.28 R  (on the application of Alladin) v Secretary of State for the Home Department [2014] EWCA Civ 1334, [2015] Imm AR 237...................................................... 2.139

lix

Table of Cases R  (on the application of Atamewan) v Secretary of State for the Home Department [2013] EWHC 2727 (Admin), [2014] 1 WLR 1959, [2014] ACD 36...........1.4, 1.7; 2.160 R (on the application of B) v Merton London Borough Council [2003] EWHC 1689 (Admin), [2003] 4 All ER 280, [2003] 2 FLR 888............................3.29, 3.31, 3.32; 11.30 R (on the application of BF (Eritrea)) v Secretary of State for the Home Department [2019] EWCA Civ 872, [2020] 4 WLR 38, [2020] 1 All ER 396..................... 3.15; 11.29 R  (on the application of BG) v Secretary of State for the Home Department [2016] EWHC 786 (Admin), [2016] Imm AR 928, [2016] ACD 88................... 1.9; 2.158 R (on the application of Bagdanavicius) v Secretary of State for the Home Department [2005] UKHL 38, [2005] 2 AC 668, [2005] 2 WLR 1359..................................... 10.25 R  (on the application of Ben Hoare Bell Solicitors) v The Lord Chancellor [2015] EWHC 523 (Admin), [2015] 1 WLR 4175, [2016] 2 All ER 46................. 13.170 R (on the application of Bozturk) v Thames Magistrates’ Court (The Times, 26 June 2001).................................................................................................................... 6.37 R  (on the application of Byndloss) v Secretary of State for the Home Department [2017] UKSC 42, [2017] 1 WLR 2380, [2017] 4 All ER 811................................ 2.137 R (on the application of C) v Sevenoaks Youth Court [2009] EWHC 3088 (Admin), [2010] 1 All ER 735, (2010) 174 JP 224............................................................. 8.81, 8.87 R  (on the application of CJ) v Cardiff County Coucil [2011]  EWHC  23 (Admin), [2011] BLGR 301, [2011] Fam Law 353............................................................ 3.28, 3.38 R (on the application of CP Vietnam) v Secretary of State for the Home Department [2018] EWHC 2122 (Admin), [2018] 8 WLUK 38, [2018] ACD 114........  2.1, 2.97, 2.154 R  (on the application of Cleeland) v Criminal Cases Review Commission [2009] EWHC 474 (Admin)................................................................................. 9.64 R (on the application of Clue) v Birmingham City Council [2010] EWCA Civ 460, [2011] 1 WLR 99, [2010] 4 All ER 423................................................................ 11.68 R  (on the application of D) v Camberwell Youth Court [2005]  UKHL  4, [2005] 1 WLR 393, [2005] 1 All ER 999......................................................................... 8.79 R (on the application of D) v Metropolitan Police Comr [2012] EWHC 309 (QB)...... 12.59 R  (on the application of D  & K) v Secretary of State for the Home Department [2006] EWHC 980 (Admin), (2006) 150 SJLB 743................................................ 11.45 R  (on the application of DS) v Secretary of State for the Home Department [2019] EWHC 3046 (Admin), [2019] 11 WLUK 220, [2020] Imm AR 409.......... 2.122 R  (on the application of Das) v Secretary of State for the Home Department [2014] EWCA Civ 45, [2014] 1 WLR 3538, [2014] ACD 78................................ 11.42 R  (on the application of Detention Action) v Secretary of the Home Department [2014] EWHC 2245 (Admin)............................................................................... 11.47 R  (on the application of Dhima) v Immigration Appeal Tribunal [2002]  EWHC  80 (Admin), [2002] Imm AR 394, [2002] INLR 243.................................................. 10.25 R  (on the application of EK) v Secretary of State for the Home Department [2019] EWHC 1696 (Admin), [2019] 6 WLUK 536, [2019] ACD 87.................... 10.42 R  (on the application of EM) v Secretary of State for the Home Department [2018] EWCA Civ 1070, [2018] 1 WLR 4386, [2018] 5 WLUK 257............. 2.141, 2.142 R  (on the application of EO) v Secretary of State for the Home Department [2013] EWHC 1236 (Admin), [2013] ACD 116................................... 11.46, 11.46, 11.52 R (on the application of F) v Lewisham London Borough Council [2009] EWHC 3542 (Admin), [2010] 1 FLR 1463, 2[1010] 2 FCR 292................................................ 3.38 R  (on the application of FK) v Secretary of State for the Home Department [2016] EWHC 56 (Admin)...................................................................  2.84, 2.167; 10.42 R  (on the application of FT) v Secretary of State for the Home Department [2017] UKUT 331 (IAC).....................................................................2.139, 2.140, 2.169 R (on the application of Firth) v Epping Magistrates’ Court [2011] EWHC 388 (Admin), [2011] 1 WLR 1818, [2011] 4 All ER 326............................................................ 7.49 R (on the application of Ganidagli) v Immigration Appeal Tribunal [2001] EWHC 70 (Admin).............................................................................................................  2.9; 10.5

lx

Table of Cases R  (on the application of H) v Secretary of State for the Home Department [2016] EWCA Civ 565, [2016] Imm AR 1272, [2017] INLR 267..............  2.1, 2.12, 2.28, 2.127, 2.168 R  (on the application of HBH) v Secretary of State for the Home Department [2009] EWHC 928 (Admin)................................................................................. 3.28 R  (on the application of HC) v Secretary of State for the Home Department [2013] EWHC 982 (Admin), [2014] 1 WLR 1234, [2013] Crim LR 918............ 3.1, 3.23 R (on the application of Hamberger) v Crown Prosecution Service [2014] EWHC 2814 (Admin), [2015] MHLR 439................................................................................. 8.78 R  (on the application of Hasani) v Blackfriars Crown Court [2005]  EWHC  3016 (Admin), [2006] 1 WLR 1992, [2006] 1 All ER 817............................................. 7.75 R  (on the application of Hoang) v Secretary of State for the Home Department [2015] EWHC 1725 (Admin), [2015] ACD 121...................... 2.28, 2.33, 2.34, 2.35, 2.36, 2.39, 2.42, 2.78, 2.79, 2.84, 2.120, 2.162, 2.164, 2.165, 2.166 R  (on the application of JM) v Secretary of State for the Home Department [2015] EWHC 2331 (Admin)............................................................................... 11.47 R  (on the application of JP) v Secretary of State for the Home Department [2019] EWHC 3346 (Admin), [2020] 1 WLR 918, [2019] 12 WLUK 88.............. 10.6 R  (on the application of K) v Secretary of State for the Home Department [2018] EWHC 2951 (Admin), [2019] 4 WLR 92, [2018] 11 WLUK 87................ 2.3 R  (on the application of Limbuela) v Secretary of State for the Home Department [2004] EWCA Civ 540, [2004] QB 1440, [2004] 3 WLR 561............................... 11.68 R (on the application of Lumba) v Secretary of State [2011] UKSC 12, [2012] AC 245, [2011] 2 WLR 671.........................................................................................  2.165; 5.19 R  (on the application of M) v Secretary of State for the Home Department [2015] EWHC 2467 (Admin)....................................................... 2.83, 2.84, 2.124, 2.165 R (on the application of MM (Lebanon) v Secretary of State for the Home Department [2017] UKSC 10, [2017] 1 WLR 771, [2017] HRLR 6........................................ 10.79 R  (on the application of MN) v Secretary of State for the Home Department [2018] EWHC 3268 (QB), [2018] 11 WLUK 495, [2019] Imm AR 545....... 2.117, 2.123 R  (on the application of McNiece) v Criminal Injuries Compensation Authority [2017] EWHC 2 (Admin)..................................................................................... 12.33 R  (on the application of Mathieson) v Secretary of State for Work & Pensions [2015] UKSC 47, [2015] 1 WLR 3250, [2016] 1 All ER 779..............................  3.1, 3.16 R (on the application of Miller) v Independent Assessor [2009] EWCA Civ 609.....12.52, 12.54 R (on the application of Morsby) v Tower Bridge Magistrates’ Court [2007] EWHC 2766 (Admin)................................................................................................................ 9.12 R  (on the application of NN & LP) v Secretary of State for the Home Department [2019] EWHC 1003 (Admin), [2019] 4 WLUK 324, [2019] ACD 71.................... 2.113 R  (on the application of NXT) v Secretary of State for the Home Department [2011] EWHC 969 (Admin)................................................................................. 11.40 R (on the application of Nealon) v Secretary of State for Justice [2015] EWHC 1565 (Admin), 165 NLJ 7657........................................................................................ 12.39 R  (on the application of O  & H) v Secretary of State for the Home Department [2019] EWHC 148 (Admin), [2019] 1 WLUK 343............................................... 2.132 R  (on the application of OP) v Secretary of State for Justice [2014]  EWHC  1944 (Admin), [2014] 1 Cr App Rep 7, (2014) 178 JP 377.........................................  8.82, 8.94 R  (on the application of O’Brien) v Independent Assessor [2007]  UKHL  10, [2007] 2 AC 312, [2007] 2 WLR 544............................................................................... 12.50 R (on the application of P) v West London Youth Court [2005] EWHC 2583 (Admin), [2006] 1 WLR 1219, [2006] 1 All ER 477.........................................................8.80, 8.81 R (on the application fo PK Ghana) v Secretary of State for the Home Department) [2018] EWCA Civ 98, [2018] 1 WLR 3955, [2018] 2 WLUK 203..............1.4; 2.3, 2.136; 5.78

lxi

Table of Cases R  (on the application of Pepushi) v Crown Prosecution Service [2004]  EWHC  798 (Admin), [2004] Imm AR 549, [2004] INLR 638.................................................. 5.104 R  (on the application of Rhuppiah) v Secretary of State for the Home Department [2018] UKSC 58, [2018] 1 WLR 5536, [2019] 1 All ER 1007.............................. 10.81 R (on the application of SF (St Lucia)) v Secretary of State for the Home Department) [2015] EWHC 2705 (Admin), [2016] 1 WLR 1439................... 2.4, 2.10, 2.34, 2.79, 2.82, 2.83, 2.86, 2.87, 2.89, 2.96, 2.100, 2.125, 2.163, 2.165, 2.168 R  (on the application of SF) v Secretary of State for the Home Department [2015] EWHC 2705 (Admin), [2016] 1 WLR 1439, [2015] 9 WLUK 549............ 10.42 R (on the application of SG) v Secretary of State for Work & Pensions [2015] UKSC 16, [2015] 1 WLR 1449, [2015] 4 All ER 939.........................................................  3.1, 3.16 R  (on the application of TDT) v Secretary of State for the Home Department [2016] EWHC 1912 (Admin); revs’d....................................... 2.13, 2.33, 2.154; 5.90, 5.91; 11.16, 11.33, 11.61; 17.1 R (on the application of Telegraph Group plc) v Sherwood [2001] EWCA Crim 1075, [2001] 1 WLR 1983, [2002] EMLR 10................................................................. 9.46 R (on the application of Tirkey) v Director of Legal Casework [2017] EWHC 3403 (Admin), [2018] 1 WLR 2112, [2017] 12 WLUK 625........................................... 12.72 R (on the application of Trinity Mirror plc) v Croydon Crown Court [2008] EWCA Crim 50, [2008] QB 770, [2008] 3 WLR 51................................................................... 9.43 R (on the application of Ullah) v Special Adjudicator [2004] UKHL 26, [2004] 2 AC 323, [2004] 3 WLR 23................................................................................................. 10.25 R  (on the application of WEN) v Secretary of State for the Home Department [2019] EWHC 2104 (Admin), [2019] 7 WLUK 605....................... 2.47, 2.79, 2.84; 14.45 R  (on the application of Williamson) v City of Westminster Magistrates’ Court [2012] EWHC 1444 (Admin), [2012] 2 Cr App Rep 24, [2012] Crim LR 975...... 9.9 R  (on the application of XYL) v Secretary of State for the Home Department [2017] EWHC 773 (Admin)..................................................................2.96, 2.156; 11.61 R (on the application of YH) v Secretary of State [2010] EWCA Civ 116, [2010] 4 All ER 448...........................................................................................................  2.165; 3.45 R (on the application of Young) v Central Criminal Court [2002] EWHC 548 (Admin), [2002] 2 Cr App Rep 12, [2002] Crim LR 588..................................................... 7.76 R (on the application of Z) v Croydon London Borough Council [2011] EWCA Civ 59, [2011] PTSR 748, [2011] 1 FLR 2081............................................................. 3.38 R (on the application of ZM) v Croydon London Borough Council [2016] UKUT 559 (IAC), [2017] Imm AR 459................................................................................... 3.27 RA (Sri Lanka) v Secretary of State for the Home Department [2008] EWCA Civ 1210, [2008] 11 WLUK 106, [2009] Imm AR 320......................................................... 10.51 RT v Secretary of State for Work & Pensions (PIP) [2019] UKUT 207 (AAC), [2019] 6 WLUK 889...........................................................................................  8.36, 8.37, 8.38 Rantsev v Cyprus (Application 25965/04) (2010) 51 EHRR 1, 28 BHRC 313...... 2.10; 4.126; 5.90; 6.87, 6.89, 6.91; 10.10, 10.48, 10.54, 10.71; 12.62, 12.64; 17.1; 18.6 Reyes v Al-Malki [2017] UKSC 61, [2017] 3 WLR 923, [2017] ICR 1417................... 12.78 S S (an infant) v Manchester City Recorder [1971] AC 481, [1970] 2 WLR 21, [1969] 3 All ER 1230...................................................................................................... 7.145 SC v United Kingdom (Application 60958/00) [2005] 1 FCR 347, (2005) 40 EHRR 10, 17 BHRC 607...................................................................................................... 8.80 SP (Albania) v Secretary of State for the Home Department [2019] EWCA Civ 951, [2019] 6 WLUK 271, [2019] Imm AR 1288....................................................... 1.7, 1.28 SXH v Crown Prosecution Service [2017] UKSC 30, [2017] 1 WLR 1401, [2018] 1 All ER 267................................................................................................................. 5.103

lxii

Table of Cases Savran v Denmark (Application 57467/15) (1 October 2019)....................................... 10.52 Secretary of State for the Home Department Immigration Appeal Tribunal v Krepel [2002] EWCA Civ 1265....................................................................................... 10.25 Selmouni v France (Application 25803/94) [1999] 7 WLUK 617, (1999) 29 EHRR 403, 7 BHRC 1............................................................................................................ 10.47 Siliadin v France (Application 73316/01) (2005] 43 EHRR 16, 20 BHRC 654........ 1.15, 1.18; 4.10, 4.12, 4.13, 4.14, 4.16, 4.20; 6.88; 10.55, 10.60, 10.61, 10.62, 10.65 Soering v United Kingdom (A/161) (1989) 11 EHRR 439..................................  10.25, 10.45 Stevens v Gullis [2000] 1 All ER 527, [2001] CP Rep 3, [1999] BLR 394..................... 10.88 Svazas v Secretary of State for the Home Department [2002] EWCA Civ 74, [2002] 1 WLR 1891, [2002] Imm AR 363....................................................................... 10.25 T TD & AD (trafficked women) CG [2016] UKUT 92........................  10.13, 10.22, 10.28, 10.37 TI  v Bromley Youth Court [2020]  EWHC  1204 (Admin), [2020] 5  WLUK  207, [2020] ACD 82..................................................................................................... 8.80 Taiwo v Olaigbe [2016] UKSC 31, [2016] 1 WLR 2653, [2017] 1 All ER 985............. 12.77 Thompson v Metropolitan Police Comr [1998] QB 498, [1997] 3 WLR 403, [1997] 2 All ER 762................................................................................................  12.53, 12.54 V VB  v Westminster Magistrates’ Court; R  (on the application of B) v Westminster Magistrates’ Court [2014] UKSC 59, [2015] AC 1195, [2014] 3 WLR 1336.......... 14.29 VCL v UK (Application 77587/12) (5 March 2018)..................................................... 5.94 VNM v Secretary of State for the Home Department [2006] EWCA Civ 47, [2006] 1 WLUK 621....................................................................................................... 10.37 Van de Mussele v Belgium (Application 891980) (1984) 6  EHRR  163, [1983] ECHR 8919/80.........................................................4.16, 4.17, 4.21; 10.62, 10.63, 10.66 Venables v News Group Newspapers Ltd [2001] Fam 430, [2001] 2 WLR 1038, [2001] 1 All ER 908........................................................................................................ 9.46 Vernon v Bosley (No 2) [1997] 1 All ER 577, [1997] RTR 1, [1998] 1 FLR 297.......... 10.88 Vilionis v Lithuania [2017] EWHC 336 (Admin)..................................................  14.46, 14.48 W Wolkowicz v Poland [2013]  EWHC  102 (Admin), [2013] 1  WLR  2402, [2013] ACD 54..................................................................................................... 14.37 Y Y (Sri Lanka) v Secretary of State for the Home Department [2009] EWCA Civ 362, [2009] HRLR 22, [2010] INLR 178..................................................................... 10.50 Z ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4, [2011] 2 AC 166, [2011] 2 WLR 148..............................................  3.1, 3.48; 11.23, 11.37, 11.40 Z v Poland [2014] EWHC 1242 (Admin)..................................................................14.5, 14.9

lxiii

1 Definitions, policy and legal frameworks Michelle Brewer

Introduction 1.1 Lord Judge CJ said of trafficking: ‘this vile trade in people has different manifestations. Women and children, usually girls, are trafficked into prostitution: others, usually teenage boys, but sometimes young adults, are trafficked into cannabis farming: yet others are trafficked to commit a wide range of further offences. Sometimes they are trafficked into this country from the other side of the world: sometimes they enter into this country unlawfully and are trafficked after their arrival: sometimes they are trafficked within the towns or cities in this country where they live. Whether trafficked from home or overseas, they are all victims of crime. That is how they must be treated’1. It is a common misconception that to be a victim of trafficking there must be a crossing of national borders. A  person may be trafficked within their own country; there need be no border crossing2. On the other hand, smuggling migrants across borders is not trafficking unless the purpose of doing so is exploitation rather than just obtaining a financial or other benefit3.

1 R v L [2013] EWCA Crim 991, [2014] 1 All ER 113. 2 ECAT at Art 2 – Scope and MS (Pakistan) v Secretary of State for the Home Department [2020] UKSC 9, [2020] 1 WLR 1373 at para 3. 3 R (on the application of AA (Iraq)) v Secretary of State for the Home Department [2012] EWCA Civ 23, (2012) Times, 5 March.

1

1.2  Definitions, policy and legal frameworks

Legal and policy framework for definition of human trafficking General 1.2 When determining whether someone is a victim of human trafficking, the UK government has mandated through statutory policy4 that the ECAT5 definition6 of a victim of trafficking is to be applied. This definition has been applied by both the Supreme Court7 and by the Lord Chief Justice in the Court of Appeal Criminal Division in the key cases concerning victims of trafficking8. The definition distinguishes between adult and child victims of trafficking, in recognition of the particular vulnerability of children to the crime of human trafficking9. Chapter 2 sets out the trafficking identification process adopted by the UK. 1.3 The two key regional instruments defining trafficking and outlining obligations owed to potential victims of trafficking and victims of trafficking are: (i)

the Council of Europe Convention on Action against Trafficking in Human Beings (referred to throughout this work as ‘ECAT’), which was signed on 23 March 2008 and ratified on 17 December 2008 by the UK; and

(ii) Directive 2011/36/EU of the European Parliament and of the Council of 5  April 2011 on preventing and combating trafficking in human beings and protecting its victims, replacing Council Framework Decision 2002/629/JHA (‘the EU Trafficking Directive’)10. 4 Home Office, Modern Slavery Act 2015 – Statutory Guidance for England and Wales (v 1.0, 24 March 2020) at para 2.3. 5 2005 Council of Europe Convention on Action against Trafficking in Human Beings (referred throughout this book as ‘ECAT’). 6 Article 4 of ECAT. 7 MS (Pakistan v Secretary of State for the Home Department (above) at paras 18, 20. 8 R  v L  [2013]  EWCA  Crim 991, [2014] 1  All ER  113; R  v Joseph [2017]  EWCA  Crim 36, [2017] 1 WLR 3153. 9 Children are defined as those under the age of 18 years’ old: Palermo Protocol, Art 3(d); ECAT, Art 4(d); EU Trafficking Directive, Art 2(6). The EU Trafficking Directive refers in the preamble at [8], [12], [19], [22], [23], [24], [25] and in Arts 2, 13, 14, 15 and 16 to the special status of child victims, in particular where the children are separated children. As noted by Anne T  Gallagher in The International Law of Human Trafficking (Cambridge University Press, 2010) p 324: ‘An important source of vulnerability for children lies in their lack of full agency – in fact and under law. A lack of agency is often made worse by the absence of a parent or legal guardian who is able to act in the child’s best interests. Such absence is typical: child victims of trafficking are generally “unaccompanied”, with deliberate separation from parents or guardians being a strategy to facilitate exploitation. In some cases, parents or other authority figures are complicit in the trafficking.’ 10 The UK opted into the Directive in July 2011. This was accepted by the European Commission in October 2011. The transposition date was 6 April 2013. The Directive is stated ‘to build on the existing international instruments designed to combat human trafficking, in particular the Council of Europe Convention on Action against Trafficking in Human Beings to which the UK is a signatory’.

2

Legal and policy framework for definition of human trafficking 1.5

1.4 It is unclear what the status of the EU Trafficking Directive in UK law will be following Brexit. A gap analysis between the domestic and EU law shows that certain aspects of the EU Directive will not be protected/enforceable through domestic law11. However, a significant number of the EU Directive’s provisions are mirrored in ECAT (in particular definition and non-punishment provisions).The provisions in both the Directive and ECAT are encapsulated in various published policies, including the Modern Slavery Statutory Guidance pursuant to s 49(1) of the Modern Slavery Act 2015. It is therefore highly likely that the position of the EU Directive will be akin to that set out by the Supreme Court in MS (Pakistan)12, viz ECAT: ‘ECAT as such has not been incorporated into UK law. Its obligations have been implemented by a variety of measures.The NRM is designed to fulfil the obligations in articles  10, 12 and 13; immigration rules have been modified in the light of article  14; and various criminal offences are created by the Modern Slavery Act 2015. The NRM does not, however, give private law rights to individuals. There is no right of appeal against an adverse decision or against a failure to provide the expected assistance. The only remedy lies in judicial review. However, the Secretary of State has consistently accepted that the NRM should comply with ECAT. In R (Atamewan) v Secretary of State for the Home Department [2013]  EWHC  2727; [2014] 1  WLR  1959, para 55, it was accepted that it would be a justiciable error of law if the NRM Guidance did not accurately reflect the requirements of ECAT and a decision based on that error would accordingly be unlawful. The same was common ground in R (PK (Ghana)) v Secretary of State for the Home Department [2018] EWCA Civ 98; [2018] 1 WLR 3955.’ Furthermore, in, for example, R v GS13 the Court of Appeal Criminal Division has endorsed the Crown’s suggested approach that even in historical cases before ECAT was in effect, the correct approach is to consider public interest by reference to Art 2 and Art 8 of the Directive.

Definition 1.5 Article 4 of ECAT defines ‘trafficking’ as follows: 11 See https://care.org.uk/news/2020/09/britain-must-protect-victims-of-modern-slavery-after-brexitsays-peer, last accessed 14 September 2020. 12 [2020] UKSC 9, [2020] 1 WLR 1373 at para 20. 13 [2018] EWCA Crim 1824.

3

1.6  Definitions, policy and legal frameworks

‘For the purposes of this Convention: a

“Trafficking in human beings” 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 human beings” 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 human beings” even if this does not involve any of the means set forth in subparagraph (a) of this article;

d

“Child” shall mean any person under eighteen years of age;

e

“Victim” shall mean any natural person who is subject to trafficking in human beings as defined in this article’.

The three constituent elements of trafficking 1.6 The definition of trafficking has three constituent elements: (i)

the act (what is done): recruitment, transportation, transfer, harbouring or receipt of persons;

(ii) the means (how it is done): threat or use of force, coercion, abduction, fraud, deception, abuse of power or vulnerability, or giving or receiving payments or benefits to a person to achieve the consent of another person with control of the victim; (iii) the purpose (why it is done): for the purpose of exploitation, which includes exploiting the prostitution of others, sexual exploitation, forced labour or services, including slavery or practices similar to slavery, the exploitation of criminal activities, or the removal of organs14. 14 This is to be treated as a minimum and not an exhaustive list. Exploitation of criminal activities was specifically identified in the EU Trafficking Directive, preamble (11).

4

First element of the trafficking definition: the act 1.8

1.7 The definition in each of the three constituent elements lists several independently sufficient acts, means or types of exploitation which need to be present, albeit for children the ‘means’ element is unnecessary (see para  1.14, below). The definition is to be read within the constituent elements disjunctively rather than conjunctively, otherwise, as the Court of Appeal has held, it cannot be effective15. When applying the terms of the definition to a particular case, a gender sensitive16, human rights, child rights17 and labour rights perspective is to be adopted18. An adult would need to establish that all three components of the definition are present together, but for a child it is sufficient to establish that an act (or action) (first element) was undertaken for the purpose of exploitation (third element) in order to meet the requirements of the definition19. The consent of a victim to exploitation is always irrelevant where any of the means have been established20. An important principle in the trafficking definition is that a child can never consent to their own exploitation21. A person who is or has been the subject of trafficking, as defined, has the status of being a victim of trafficking. There is no further requirement that the person should continue to be in a situation of trafficking, or subject to the influence of traffickers, or in need of assistance or protection under the trafficking convention in order to retain that status. Home Office policy that had distinguished between ‘victims of trafficking’ and ‘historical victims’ has been held to be unlawful22.

First element of the trafficking definition: the act 1.8 The acts provided for in the definition are intended to bring within the definition of human trafficking the conduct not just of recruiters, brokers and transporters but also owners and managers, supervisors, and controllers of any place of exploitation such as a brothel, farm, boat, factory, medical facility, or household.

15 SP (Albania) v Secretary of State for the Home Department [2019] EWCA Civ 951, [2019] 6 WLUK 271. 16 See EU Trafficking Directive, Art 1 and Joint UN Commentary on the EU Directive – A Human Rights-Based Approach (2011) p 30. 17 MS (Pakistan) v Secretary of State for the Home Department [2020] UKSC 9, 1 WLR 1373 (2020) at para 19. 18 Joint UN Commentary on the EU Directive – A Human Rights-Based Approach (2011). 19 EU  Trafficking Directive, Art 2(5); ECAT, Art 4(c). See MS (Pakistan) v Secretary of State for the Home Department [2020] UKSC 9, 1 WLR 1373 (2020) at para 18 and Home Office, Modern Slavery Act 2015 – Statutory Guidance for England and Wales (v 1.0, 24 March 2020) at para 2.6. 20 ECAT, Art 4(b); EU Trafficking Directive, Art 2(4). 21 EU Trafficking Directive, Art 2(4) and 2(5); ECAT, Art 4(b) and (c); Home Office, Modern Slavery Act 2015 – Statutory Guidance for England and Wales (v 1.0, 24 March 2020) at para 2.6. 22 R (on the application of Atamewan) v Secretary of State for the Home Department [2013] EWHC 2727 (Admin), [2014] 1 WLR 1959.

5

1.9  Definitions, policy and legal frameworks

Recruitment 1.9 This to be understood in a broad sense, meaning any activity leading from the commitment or engagement of another individual to their exploitation. It is not confined to the use of certain means. The definition’s reference to recruitment covers recruitment by whatever method (oral, through the press or via the internet). It would include recruitment through a recruitment agency or an intermediary23. In R (BG) v Secretary of State for the Home Department24 in its ordinary meaning, recruitment was the process of finding new persons and enlisting them in a role.

Transportation 1.10 This is also a general term; no particular means or kinds of transportation are specified. The act of transporting someone from one place to another is sufficient to constitute this element25. It is not necessary for the victim to have crossed any borders26, nor is it necessary for the victim to be present illegally in a state’s territory27.

Transfer 1.11 This term includes any kind of handing over or transmission of one person to another. This is particularly important in certain cultural environments where control over individuals (usually family members) may be handed over to other persons. As the term and scope of this element is broad, the explicit or implied

23 CETS, Explanatory Report to the Council of Europe Convention on Action against Trafficking in Human Beings, para 79; Council of Europe and United Nations, Trafficking in Organs, Tissues and Cells and Trafficking in Human Beings for the Purpose of the Removal of Organs (2009). The Office of the Special Representative and Co-ordinator for Combating Trafficking in Human Beings, in its report Unprotected Work, Invisible Exploitation: Trafficking for the Purpose of Domestic Servitude at p 17 recognised in its typology of domestic servitude cases that most of the trafficked migrant workers were recruited via placement agencies. 24 [2016] EWHC 786 (Admin). 25 Council of Europe and United Nations, Trafficking in Organs, Tissues and Cells and Trafficking in Human Beings for the Purpose of the Removal of Organs (2009); ECAT, Art 2; Explanatory Report to the Council of Europe Convention on Action against Trafficking in Human Beings, para 80. 26 ECAT, Art 2: ‘This convention shall apply to all forms of trafficking in human beings, whether national or transnational’. MS (Pakistan) v Secretary of State for the Home Department [2020] UKSC 9, 1 WLR 1373 (2020) at para 3. 27 Explanatory Report to the Council of Europe Convention on Action against Trafficking in Human Beings, para 80.

6

Second element of the trafficking definition: the means 1.15

offering of a person for transfer is sufficient; the offer does not have to be accepted for this component of the definition to be satisfied28.

Harbouring 1.12 This term means accommodating or housing persons in whatever way, whether during their journey to their final destination or at the place of exploitation29.

Receipt of persons 1.13 This term is not limited to receiving the persons at the place of exploitation, but includes meeting victims at agreed places on their journey to give them further information or instructions as to where to go or what to do30.

Second element of the trafficking definition: the means 1.14 Where any of the means referred to in the definition have been used to secure the consent of a victim, this consent is deemed irrelevant31. The definition may be satisfied if the ‘means’ element is used to accomplish the ‘act’ or the exploitation32. Children (i.e. those under the age of 18 years old at the time of trafficking) do not have to meet this ‘means’ requirement33.

Coercion 1.15 This can be physical or psychological. The Home Office guidance notes that physical coercion refers to the threat or use of force against the victims of 28 Council of Europe and United Nations, Trafficking in Organs, Tissues and Cells and Trafficking in Human Beings for the Purpose of the Removal of Organs (2009); AT  Gallagher, The International Law of Human Trafficking (Cambridge University Press, 2010) p 30. 29  Ibid. 30  Ibid. 31 ECAT, Art 4(b); EU Trafficking Directive, Art 1(4). Home Office, Modern Slavery Act 2015 – Statutory Guidance for England and Wales (v 1.0, 24 March 2020) at para 2.10. 32 Anne T Gallagher, The International Law of Human Trafficking (Cambridge University Press, 2010) p 45. 33 EU  Trafficking Directive, Art 2(5); ECAT, Art 4(c). See MS (Pakistan) v Secretary of State for the Home Department [2020] UKSC 9, 1 WLR 1373 (2020) at para 18 and Home Office, Modern Slavery Act 2015 – Statutory Guidance for England and Wales (v 1.0, 24 March 2020) at para 2.6.

7

1.15  Definitions, policy and legal frameworks

trafficking or against their family members, but it may also entail more subtle measures of control such as withholding travel or immigration documents34. The Home Office guidance lists the following as examples of psychological coercion: blackmail; ritual oaths; forcing someone to pay an excessive amount of money for substandard accommodation; making significant deductions from an individual’s ‘salary’; threats of rejection from, or disapproval by a peer group or family or anger or displeasure from the person considered by the victim to be their partner; grooming and ‘Stockholm syndrome where, due to unequal power, victims create a false emotional or psychological attachment to their controller’35. It has been argued that severe economic pressures may constitute psychological coercion36. In the context of domestic servitude, the European Court of Human Rights has emphasised that ‘a complex set of dynamics, involving both overt and more subtle forms of coercion, to force compliance’ may be in play and that investigating such conduct ‘requires an understanding of the many subtle ways an individual can fall under the control of another’37. These can include retention of the victim’s passport and wages, manipulation of their fears arising from unlawful or insecure immigration status, and implicit or explicit threats of denunciation to the police and deportation38. Debt bondage also falls within this means element as a form of ‘economic coercion’ and is a common ‘means’ and exploitative practice prevalent in labour trafficking in the UK and for forced criminality39. Debt bondage is when a person’s labour is demanded as a means of repayment for a loan and the value of the labour is not reasonably applied toward the debt or the debt is otherwise continuously inflated40. It can occur where an excessive amount is charged for substandard accommodation, or where significant deductions are made from an individual’s ‘salary’. Even where a set payment schedule is agreed to and repaid by the victim, the imposition of such a debt is illegal41. Evidence shows that debt bondage in itself can be strong enough to ensure that people comply with 34 Home Office, Modern Slavery Act 2015 – Statutory Guidance for England and Wales (v 1.0, 24 March 2020) at para 2.16. 35 Ibid paras 2.17–2.19. 36 LA Malone, ‘Economic Hardship as Coercion Under the Protocol on International Trafficking in Persons by Organised Crime Elements’ (2001) 25 Fordham International Law Journal 54 at 55. 37 CN v United Kingdom (2013) 56 EHRR 24, para 80. 38 CN v United Kingdom (2013) 56 EHRR 24, para 80; CN and V v France App No 67724/09 (11 October 2012), para 92 and Siliadin v France App No 73316/01 (26 October 2005), para 118. Forms of coercion used in cases of trafficked domestic workers are identified by the Office of the Special Representative and Co-ordinator for Combating Trafficking in Human Beings in Trafficking in Human Beings Amounting to Torture and other Forms of Ill-treatment (2013) at p 22. 39 Trafficking for Forced Labour in the UK (Anti-Slavery International, 2006). 40 Working under a debt bond is a ‘slavery-like practice’: see Supplementary Convention on the Abolition of Slavery, the Slave Trade and Practices Similar to Slavery 1956, Art 1(a). 41 Office of the Special Representative and Co-ordinator for Combating Trafficking in Human Beings, Trafficking in Human Beings Amounting to Torture and other Forms of Ill-treatment (2013) p 54. Debt bondage is a strong indicator of forced labour, as well as being a ‘means’ to bring victims into an exploitative situation. The OSCE Resource Police Training Guide: Trafficking in Human Beings, Publication Series Vol 12, at 66, states in respect of forced labour: ‘When there is a disparity of income and the labour conditions between the country of origin of the potential victim and the country of destination where they are working. Victims of human trafficking cannot consent to exploitation and they must be treated in the same manner as if they were nationals of the State in which they are working’.

8

Second element of the trafficking definition: the means 1.18

instructions from traffickers without being physically attacked or confined42. Prostitution by an individual to satisfy a debt-bond has been held to amount to trafficking43.

Deception and fraud 1.16 Deception and fraud are examples of less direct means and will generally relate to the nature of the promised work or service and the conditions under which an individual is to undertake or perform a service44. For example, an individual may be recruited to work in the sex industry but on the basis of false, inaccurate or misleading information about the conditions of their work45.

Abuse of power or of a position of vulnerability 1.17 The abuse of a position of vulnerability: ‘may be of any kind, whether physical, psychological, emotional, family-related, social or economic. The situation might, for example, involve insecurity or illegality of the victim’s immigration status, economic dependence or fragile health. In short, the situation can be any state of hardship in which a human being is impelled to accept being exploited. Persons abusing such a situation flagrantly infringe human rights and violate human dignity and integrity, which no one can validly renounce’46. 1.18 The EU Trafficking Directive defines a position of vulnerability as ‘a situation in which the person concerned has no real or acceptable alternative but to submit to the abuse involved.’ The various indicators of abuse of power or a position of vulnerability identified by international bodies47 and the European Court of Human Rights48 focus on the person’s precarious financial, psychological, 42 Office of the Special Representative and Co-ordinator for Combating Trafficking in Human Beings, Trafficking in Human Beings Amounting to Torture and other Forms of Ill-treatment (2013) p 55. 43 R v O [2019] EWCA Crim 1389 at paras 17 and 18. 44 The UN Office on Drugs and Crime (UNODC), Abuse of a position of vulnerability and other ‘means’ within the definition of trafficking in persons (2013) at 2.1.2. 45 Home Office, Victims of modern slavery – Competent Authority guidance (21 March 2016) p 33. 46 Explanatory Report to the Council of Europe Convention on Action against Trafficking in Human Beings, para 83. 47 For example, International Labour Office, Operational Indicators of Trafficking in Human Beings (September 2009). 48 Siliadin v France (2006) 43 EHRR 16, paras 118–129.

9

1.19  Definitions, policy and legal frameworks

and social situation, illegal or precarious immigration status and on linguistic, physical, and social isolation of the victim49. A victim’s poverty in their country of origin may constitute personal circumstances of which a trafficker may take advantage to secure the victim’s consent to being exploited in the UK50. 1.19 In the case of R v Khan, Khan and Khan51 the Court of Appeal Criminal Division, considered in the context of an Attorney General’s Reference sentence, forced labour, where the complainants had returned to their employers after spending some time in their home country. The Court concluded that the extreme vulnerability of the victims meant that their options were limited from a financial point of view. Their relative economic poverty and their dependency on the victims and the employers’ ‘abuse of their vulnerability’ was an accepted indicator of recruitment into forced labour. The Court held at [18], ‘the return of the workers does not constitute evidence that the conditions to which the workers were subjected were acceptable but, in the circumstances of the present case, is evidence of further exploitation by the offenders of personal circumstances of which they knew they could take advantage.’ 1.20 In the Netherlands the Supreme Court gave guidance on the concept of ‘abuse of a vulnerable position’, concerning six irregular migrants who, desperate for work and afraid of being discovered by authorities, approached a Chinese restaurant owner for work.They were provided with accommodation and work that paid well below the minimum wage. The Supreme Court disagreed with the lower courts that the perpetrator must ‘intentionally abuse’ the vulnerable position of the victims. The Court held that ‘conditional intent’ is sufficient: it was enough that the perpetrator was aware of the state of affairs that must be assumed to give rise to power or a vulnerable position52.

49 UNODC, Model Law against Trafficking in Persons, released in 2009, suggests that a focus on the state of mind of the perpetrator, rather than that of the victim, could be more protective of the victims (see discussion in Anne T Gallagher, The International Law of Human Trafficking at p 33). Further guidance on this term is found in the UNODC Issue Paper, Abuse of a position of vulnerability and other ‘means’ within the definition of trafficking in persons (2013), as drafted by Dr Anne Gallagher. 50 R  v Khan [2010]  EWCA  Crim 2880, [2011] Crim LR  336, para  18; EU  Trafficking Directive, Art 2(2). The EU  Trafficking Directive generally reproduces the definition of trafficking set out in the Palermo Protocol. It adopts the language of the Trafficking in Persons Protocol Interpretative note in defining ‘position of vulnerability’ as ‘a situation in which the person concerned has no real or acceptable alternative but to submit to the abuse involved’ (Art 2(2)). However, it is important to note a significant difference. Whereas the Interpretative Note refers to ‘real and acceptable alternative’, and appears to require that both elements be satisfied, the EU Trafficking Directive requires only that the alternative be ‘real’ or ‘acceptable’. 51 Attorney General’s References (Nos 37, 38 and 65 of 2010) (R v Khan, Khan and Khan) [2010] EWCA Crim 2880. 52 Supreme Court, 27 October 2009, LJN: B17099408. See also L van Krimpen, ‘The interpretation and implementation of labour exploitation in Dutch Case Law’ in C  Rijken (ed), Combating Trafficking in Human Beings for Labour Exploitation (WLP, 2011) p 498.

10

Third element of the trafficking definition: for the purpose of exploitation 1.23

1.21 By contrast in AA (Iraq) v Secretary of State for the Home Department53 the Court was required to decide whether a person who was initially smuggled into the country but was raped or coerced into having sex with her smuggler en route was potentially a victim of trafficking who was being groomed for exploitation. An expert witness emphasised on the initial facts the apparent ‘abuse of [the appellant’s] position of vulnerability’, expressing the view that she had no real and acceptable alternative to submit to the abuse. However, in finding that trafficking had not been established on the facts as they later emerged, the Court referred to international guidance on abuse of vulnerability (including the Interpretative Note attached to the Protocol and the Explanatory Report attached to ECAT), requiring there be ‘no real and acceptable alternative’. The Court further held that there were no reasonable grounds to assume that the required exploitative purpose had been made out.

The giving or receiving of payments or benefits to achieve the consent of a person having control over another person 1.22 This term is opaque and there is little guidance on its meaning. It may extend beyond the situation in which legal control is exercised by one individual over another (for example, a parent over a child) to include de facto control (such as that which may be exercised by an employer over an employee). Presumably it is intended to bring within the definition practices such as payments made to parents in the course of child trafficking, but as the means element is redundant in child cases, the scope of this element remains unclear.

Third element of the trafficking definition: for the purpose of exploitation 1.23 This ingredient of the definition does not require that the intended exploitation actually takes place; a situation of trafficking can arise in the case of an adult victim subjected to an act by one of the means for the specified purpose of exploitation54 and for a child victim that they were subjected to an act for the purpose of exploitation. The intention to exploit can be that of any of the individuals involved in either the act or the means, so it may be that of a final exploiter (e.g. the brothel owner or factory manager) or it may be that of a

53 [2012] EWCA Civ 23. 54 Explanatory Report to the Council of Europe Convention on Action against Trafficking in Human Beings, para 87.

11

1.23  Definitions, policy and legal frameworks

recruiter or a broker55. The trafficking instruments do not define exploitation. Instead they provide an open-ended list, which includes as a minimum the following: (i)

forced labour or services, slavery or servitude: these practices are discussed in Chapter 456 and at length in Chapter 10 (ECHR, Art 4);

(ii) exploitation of the prostitution of others: this has been interpreted to cover any acts to obtain profit from prostitution, such as pimping57 and ‘the unlawful obtaining of financial or other material benefit from the prostitution of another person’58; (iii) other forms of sexual exploitation: this term has been defined as ‘any actual or attempted abuse of a position of vulnerability, differential power or trust, for sexual purposes, including but not limited to, profiting monetarily, socially or politically from the sexual exploitation of another’59. Forced, child and servile marriages have been identified as forms of sexual exploitation60.The inclusion of servile marriage as a form of sexual exploitation shows that receiving or intending to receive sexual gratification from an individual constitutes such exploitation where the individual’s consent is ineffective because one of the means contained in the trafficking definition has been used; (iv) practices similar to slavery: this term is adopted from the 1956 Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices similar to Slavery. This Convention defined the following as practices similar to slavery: debt bondage, serfdom, servile or forced marriage61 and exploitation of children62; 55 Anne T Gallagher, The International Law of Human Trafficking (Cambridge University Press, 2010) p 33. 56 The terms ‘forced labour’, ‘slavery’ and ‘servitude’ should be interpreted consistently with other international instruments. This assumption is supported by the saving clauses in the Palermo Protocol (Art 14) and the ECAT (Art 40) which affirm their consistency with existing rights, obligations and responsibilities under international law and, in the case of ECAT, its consistency with the Palermo Protocol (Art 39). 57 Working Group on Trafficking in Persons, ‘Analysis of Key Concepts of the Trafficking in Persons Protocol’ (9 December 2009) CTOC/COP/WG.4/2010/2, paras 9–12. 58 UNODC, Model Law against Trafficking in Persons, p 13. 59 UN Secretary-General’s Bulletin, ‘Special Measures for Protection from Sexual Exploitation and Sexual Abuse,’ UN Doc ST/SGB/2003/13, 9 October 2003. For further discussion see Anne T Gallagher, The International Law of Human Trafficking at p 39. 60 Forum on Marriage and the Rights of Women and Girls, Early Marriage: Sexual Exploitation and the Human Rights of Girls (2001); ECPAT UK, Stolen Futures:Trafficking for Forced Child Marriage in the UK (2009) p 20. 61 See Joint UN Commentary on the EU Directive – A Human Rights-Based Approach (2011) p 104. Forced marriage is defined in the UK in the Family Law Act 1996, as amended by the Forced Marriage Act 2007, as: ‘A person (“A”) is forced into a marriage if another person (“B”) forces A to enter into a marriage (whether with B or another person) without A’s free and full consent. It does not matter whether the conduct of B which forces A to enter into the marriage is directed against A, B or another person.’ Force is defined to include coercion by threats or other psychological means. These marriages, as well as being forms of sexual exploitation, are also recognised as forms of domestic servitude: ECPAT UK, Stolen Futures: Trafficking for Forced Child Marriage in the UK (2009) p 20 and OSCE, Unprotected Work, Invisible Exploitation:Trafficking for the Purpose of Domestic Servitude, p 44. 62 This was included in the EU Trafficking Directive, preamble (11) and Art 2(3).

12

Third element of the trafficking definition: for the purpose of exploitation 1.23

(v) exploitation for criminal activities: this should be understood as the exploitation of a person to commit, inter alia, pickpocketing, shoplifting, drug trafficking and other similar activities which are subject to penalties and imply financial gain63.The Court of Appeal has included within these offences both drug production64 and controlling prostitution for gain65. Domestically, child criminal exploitation frequently occurs through county lines drug offences. Child criminal exploitation does not always involve physical contact; it can also occur through the use of technology66. As identified and explored further in Chapters 2 and 15 this exploitation can also include terrorist activities67; (vi) organ removal: as stated in the Explanatory Report to ECAT at para 96: ‘Exploitation also includes “removal of organs”. The principle that it is not permissible for the human body or its parts as such to give rise to financial gain is established Council of Europe legal acquis. It was laid down in Committee of Ministers Resolution (78) 29 and was confirmed, in particular, by the final declaration of the 3rd Conference of European Health Ministers (Paris, 1987) before being definitively established in Article  21 of the Convention on Human Rights and Biomedicine (ETS No. 164). The principle was then reaffirmed in the additional protocol to that convention concerning transplantation of organs and tissues of human origin (ETS No. 186), which was opened for signature in January 2002. Article  22 of the protocol explicitly prohibits trafficking in organs and tissues. It should also be recalled that the Parliamentary Assembly of the Council of Europe adopted a report on “Trafficking in organs in Europe” (Doc. 9822, 3 June 2003, Social, Health and Family Affairs Committee, Rapporteur: Mrs Ruth-Gaby Vermot-Mangold, Switzerland, SOC) and Recommendation 1611 (2003) on trafficking in organs in Europe.’

63 ‘Any institution or practice whereby a child or young person under the age of 18 years, is delivered by either or both of his natural parents, or by his guardian, to another person, whether for reward or not, with a view to the exploitation of the child or young person or of his labour’: Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices similar to Slavery 1956, Art 1(d). 64 R v L [2013] EWCA Crim 991, [2014] 1 All ER 113. 65 R v LM [2010] EWCA Crim 2327, [2011] 1 Cr App Rep 135. 66 Home Office Guidance, Criminal exploitation of children and vulnerable adults: county lines, available at: www. gov.uk/government/publications/criminal-exploitation-of-children-and-vulnerable-adults-countylines, last accessed 7 February 2020. 67 Report by UN Security Council: Counter-Terrorism Committee Executive Directorate, Identifying and exploring the nexus between human trafficking, terrorism, and terrorism financing.

13

1.24  Definitions, policy and legal frameworks

A child-sensitive approach Third element: exploitation of children 1.24 The European Commission has stated that child exploitation includes: •

procuring or offering a child for illicit or criminal activities (including the trafficking or production of drugs and begging);

•

using children in armed conflict;

•

using children for work that by its nature or the circumstances in which it is carried out is likely to harm the health and safety of children;

•

the employment or use of a child who has not yet reached the applicable working age;

•

other forms of exploitation; and illegal adoption68.

1.25 The UN  Convention on the Rights of the Child and its optional protocol provide a comprehensive framework for the protection of the rights and dignity of children. It should be considered, in its entirety, as a tool for understanding and responding to the trafficking and related exploitation of children. Whilst the Convention on the Rights of the Child does not make express reference to child trafficking, the Committee on the Rights of the Child has regularly raised and pronounced on trafficking-related issues in its concluding observations, and has found trafficking and child prostitution to directly implicate Arts 34 and 3569. The optional protocol refers to trafficking in its preamble, and Art 2 of the optional protocol defines the sale of children sufficiently broadly to encompass most child trafficking situations. 1.26 As set out in Chapter 10, there is no definition of forced child labour within the International legal acquis. Therefore, the generic definition contained in the ILO  Forced Labour Convention is applied. However, the concepts of ‘involuntariness’ and ‘penalty/ menace of a penalty’ present in the ILO Forced 68 European Commission – DG Justice, Freedom and Security (JLS), Recommendations on Identification and Referral to Services of Victims of Trafficking in Human Beings (Brussels, 2007) p 5. This echoes the definitions found in the ILO’s International Programme on the Elimination of Child Labour (IPEC) in its operations, which incorporated the ILO Convention to Eliminate the Worst Forms of Child Labour (June 1999) (ILO  Convention No. 182), defining (in Art 3) the worst forms of child labour to be prohibited as illustrations of exploitation of children in the context of child trafficking. Articles  32 and 33 of the UN Convention on the Rights of the Child 1989 also recognise this form of child exploitation. 69 For further discussion, see AT Gallagher, The International Law of Human Trafficking (Cambridge University Press, 2010) p 66.

14

Definition of victims of slavery, servitude and forced or compulsory labour 1.28

Labour Convention as applied to adults, needs to be reframed in the case of forced labour of children70 as does the concept of ‘coercion’ viz ILO indicators of forced labour as applied to children. This is set out in detail in Chapter 10 in the section on ECHR, Art 4.

Credibility: a child-sensitive approach 1.27 As developed in Chapter 2, in determining whether an individual falls within the scope of the definition, an assessment of the credibility of the account given will be part of the identification process. This requires a procedure which takes into account the special situation of child victims71, in particular: •

a detailed understanding of child specific indicators of trafficking;

•

differentiation between the trafficking definition for children and adults;

•

the assessment of the credibility of a child considers their age, the ongoing nature of abuse throughout childhood and fear of the traffickers72 – and the psychological ramifications of these factors (see Chapter 8).

Definition of victims of slavery, servitude and forced or compulsory labour 1.28 The Statutory Guidance makes provision for the positive identification of victims of slavery, servitude and forced or compulsory labour, where the victims have not been trafficked. The Statutory Guidance makes a distinction between victims of human trafficking and those who have suffered a violation of ECHR, Art 4 (prohibition of slavery and forced labour), termed a ‘victim of modern slavery’. It provides that an individual who has suffered an ECHR, Art 4 breach is not a ‘trafficking victim’ because ‘there has been no element of movement’73. The Guidance still enables that a victim of an Art 4 breach should be positively identified within the National Referral Mechanism (‘NRM’), but that they are not a victim of trafficking but instead a victim of modern slavery. The Home Secretary’s distinction within the Statutory Guidance between a victim of trafficking and a victim of an ECHR, Art 4 breach, imports a requirement that the victim (potential victim) of trafficking has established 70 ILO report, Harder to Count: Survey guidelines to estimate forced labour of adults and children. 71 MS (Pakistan) v Secretary of State for the Home Department [2020] UKSC 9, [2020] 1 WLR 1373 at para 19. 72 JS v Secretary of State for the Home Department [2020] EWHC 500 (Admin), [2020] 2 WLUK 291. 73 Ibid at paras 2.67 and 2.72.

15

1.29  Definitions, policy and legal frameworks

‘movement’. This is misconceived and contrary to decided case law. As held by the Court of Appeal in SP (Albania)74 the definition of trafficking in ECAT is to be read disjunctively rather than conjunctively; it cannot otherwise be effective. The Court held that the first sentence of the ECAT definition lists a number of independently sufficient acts, only one of which needs to be present for there to be trafficking, provided the other elements of the definition are present (see paras 1.8–1.13, above). While it is significant and to be welcomed that the Home Secretary has provided within the Statutory Guidance that those who only satisfy the ‘exploitation’ element of trafficking by establishing an ECHR, Art 4 breach can receive a positive identification decision, the rationale provided for this distinction misconstrues the how trafficking is defined in the regional instruments.

The ‘means’ element of the definition of modern slavery Coercion 1.29 The Statutory Guidance gives the same examples of psychological coercion for modern slavery as are given for trafficking (see above). Additionally, it includes ‘anger or displeasure from the person considered by the victim to be their partner’75. We consider that there is no reason why this example of coercion would not apply with equal force within the context of trafficking. As is apparent in Chapter 15 inter-familial trafficking is common, including between partners and spouses.

Threat of a penalty 1.30 Threat of the menace of any penalty is a component of forced or compulsory labour under the ILO Forced Labour Convention, 1930 (No 29).The Statutory Guidance acknowledges that ‘penalty’ may go as far as physical violence or restraint, but it can also cover subtler forms of a psychological nature, such as threats to denounce victims to the police or immigration authorities when their employment status is illegal. Consent is a factor in forced and compulsory labour. For further detail on ECHR, Art 4, see Chapter 10.

74 SP (Albanian) v Secretary of State for the Home Department [2019] EWCA Civ 951, [2019] 6 WLUK 271 at para 17. 75 Ibid para 2.86.

16

Smuggling legislation 1.33

Smuggling legislation 1.31 It is important to understand the difference between: (i) those individuals who have been smuggled; and (ii) those who have been trafficked, where the potential victim is a non-UK national who has no leave to enter or remain in the UK. The definitions frequently become conflated. Often victims will believe they are being smuggled but become trafficked through transit or at their destination country. Factors such as political instability, economic pressures and environmental issues are often the catalysts for migrants seeking to come to the UK. Illegal migrants often rely on organised criminal networks to facilitate their passage to the UK, leading to higher risk of exploitation and further blurring of the distinction between trafficking and smuggling. 1.32 Smuggling is characterised by illegal entry and international movement only, either secretly or by deception, whether for profit or otherwise. The UN Protocol against the Smuggling of Migrants by Land, Sea and Air, adopted in 2000, defines human smuggling as: ‘… the procurement, in order to obtain, directly or indirectly, a financial or other material benefit, of the illegal entry of a person into a state party of which the person is not a national’. 1.33 For an individual to fall within the definition of ‘trafficking’, the ‘act’ and/or ‘means’ must have been for the purpose of exploitation. The definition enables many different facilitators within the process to be caught, so even where the potential victim was originally being ‘smuggled’ into the UK, en route this can become trafficking either by the initial smuggler or by others in the ‘smuggling’ chain.

17

2 Determination of trafficking status Emma Fitzsimons and Michelle Brewer

Introduction 2.1 Where there is a credible suspicion that a person is a victim of trafficking and/or modern slavery an obligation to identify, protect and support as well as investigate arises under both the Council of Europe Convention on Action against Trafficking in Human Beings (referred to throughout this book as ‘ECAT’) and European Convention on Human Rights (‘ECHR’), Art 41. 2.2 Rights arising under ECHR, Art 4 are enshrined in the Human Rights Act 1998, Sch 1.The UK government has not, however, incorporated ECAT directly into UK law through either primary or secondary legislation. Nevertheless, it is clearly stated government policy and practice to comply with its provisions. The UK Government gives effect to its obligations under ECAT via published guidance2. Section 49 of the Modern Slavery Act 2015 requires the Home Secretary to issue guidance on: •

indicators that a person may be a victim of slavery or human trafficking;

•

arrangements for providing assistance and support to persons who there are reasonable grounds to believe may be victims of slavery or human trafficking;

•

arrangements for determining whether there are reasonable grounds to believe that a person may be a victim of slavery or human trafficking.

1 See R (on the application of H) v Secretary of State for the Home Department [2016] EWCA Civ 565, [2016] Imm AR 1272; J v Austria (App No 58216/12) (17 January 2017, unreported), ECtHR (EHRLR 326 J v Austria App No 58216/12) at 107; Chowdhury v Greece (App No 21884/15 (30 March 2017); R (on the application of TDT) v Secretary of State for the Home Department [2018] EWCA Civ 1395; and R (on the application of CP Vietnam) v Secretary of State for the Home Department [2018] EWHC 2122 (Admin).These obligations must be construed consistently with international human rights and trafficking obligations under Directive 2011/36/EU of the European Parliament and of the Council of 5  April 2011 on preventing and combating trafficking in human beings and protecting its victims, and replacing Council Framework Decision 2002/629/JHA (the ‘EU Trafficking Directive) and ECAT. Similarly, immigration and enforcement policies are to be construed consistently with ECHR, Art 4. 2 MS (Pakistan) v Secretary of State for the Home Department [2020] UKSC 9, [2020] 1 WLR 1373, see paras 19 to 33.

19

2.3  Determination of trafficking status

2.3 On 24 March 2020, after much delay3, the Home Office published statutory guidance pursuant to s 49(1) of the Modern Slavery Act 2016, Modern Slavery Act 2015 – Statutory Guidance for England and Wales (‘statutory guidance’). The purpose of the guidance is to support the effective identification of potential victims of slavery and human trafficking and to set out the assistance and support available for all victims, taking into account the obligations under ECAT and the EU Directive4. The Secretary of State has the power to periodically review the statutory guidance5. The statutory guidance replaces the following guidance documents: •

Duty to notify the Home Office of potential victims of modern slavery;

•

Victims of modern slavery – frontline staff guidance;

•

Victims of modern slavery – Competent Authority guidance;

•

Multi-Agency Assurance Panels – Process guidance;

•

Modern slavery – duty to notify.

Where the Secretary of State’s guidance does not give effect to ECAT, it will be a justiciable error of law6. 2.4 The identification mechanism in place in the UK for potential victims of trafficking is the National Referral Mechanism (‘NRM’). The NRM for potential victims of trafficking provides for a ‘first responder’ to refer a potential victim of trafficking to the ‘competent authority’ to make an initial reasonable grounds decision. If the decision is positive, then a ‘recovery and reflection’ period of at least 45 days is granted. If the decision is negative it can only be challenged by way of judicial review7. Following a reasonable grounds decision, the competent authorities are required to ‘investigate’ the claim and make a ‘conclusive grounds’ decision. If the conclusive grounds decision is positive the victim may require further support and assistance to aid recovery, advice in relation to compensation or in respect of a residence permit. If the decision is negative, again the only challenge lies by way of judicial review.

3 See comment of Mostyn J  in R  (K  and another) v Secretary of State for the Home Department [2018] EWHC 2951 (Admin), at paras 6 and 7 referring to the SSHD’s now historic failure to issue guidance required by s 49. 4 See the Explanatory Notes to s 49 of the Modern Slavery Act 2015. 5 Section 49(2) of the Modern Slavery Act 2015. 6 R (PK Ghana) v Secretary of State for the Home Department [2018] EWCA Civ 98 at para 34. 7 In respect of foreign nationals, note that the reasonable grounds decision is not an ‘immigration decision’ and therefore attracts no right of appeal. The Administrative Court is the appropriate court in which to commence proceedings (see para 2.123 below).

20

Introduction 2.7

2.5 The identification process is of critical importance as it not only affects the position of the victim of trafficking, but it also affects the ability of the state to mount effective prosecutions against traffickers.A victim of trafficking is entitled to a series of rights under ECAT and these include the right to assistance to aid recovery (Art 12); to a residence permit in the circumstances laid down in (Art 14); to information about and access to compensation procedures (Art 15); for any return to their country to be carried out with ‘due regard for the rights, safety and dignity of that person’ (Art 16); and the right not to be prosecuted for offences directly connected with the experience of being trafficked (Art 28)8. 2.6 The Supreme Court in MS (Pakistan)9 observed that because of the defective NRM decision as to whether the appellant was a trafficked victim, he was denied the protective measures required by ECAT, including the immigration status necessary for him to co-operate in the investigation and prosecution of the perpetrators. However, the appellant had effectively been removed from the risk of further exploitation, and the Upper Tribunal had decided that he would not be at further risk if returned to Pakistan. Nevertheless, there had not yet been an effective investigation of the breach of Art 4. The authorities were under a positive obligation to rectify that failure. It was clear to both the Upper Tribunal and the Supreme Court that an effective investigation could not take place if the appellant was removed to Pakistan. A finding held (and upheld by the Supreme Court) by the Upper Tribunal in MS (Trafficking – Tribunal’s Powers – Art.4  ECHR) Pakistan, was that an attempt to remove a trafficking victim from the UK in circumstances where the procedural obligations have not been discharge will normally be unlawful and in breach of ECHR, Art 410.

Status of an NRM trafficking decision in First-Tier Tribunal (‘FTT’) (IAC) and Upper Tribunal decision-making 2.7 It was common ground between the parties in the Supreme Court case of MS (Pakistan)11 that the Tribunal is required to determine the relevant factual issues for itself on the basis of the evidence before it and that it was in no way bound by the trafficking identification decision reached under the NRM, nor does it have to look for public law reasons why that decision was flawed (see para 2.9, below, in respect of positive decisions as a concession of fact). The Supreme 8 See R (on the application of SF) v Secretary of State for the Home Department [2015] EWHC 2705 (Admin), [2016] 1 WLR 1439. 9 MS (Pakistan) v Secretary of State for the Home Department [2020] UKSC 9, paras 34-46. 10 MS (Trafficking – Tribunal’s Powers – Art.4 ECHR) Pakistan [2016] UKUT 00226 (IAC) at para 58. 11 MS (Pakistan) v Secretary of State for the Home Department [2020] UKSC 9 at para 11.

21

2.8  Determination of trafficking status

Court endorsed the Upper Tribunal’s observation in MS (Pakistan)12 that the Tribunal is better equipped than the authority to make pertinent findings. The Supreme Court concurred with the Upper Tribunal13 stating that the decision of the competent authority was essentially a factual decision and both the FTT and the Upper Tribunal were better placed than the competent authority to decide whether the appellant was a victim of trafficking. 2.8 Lady Hale emphasised that ‘the proper consideration and weight’, which the Secretary of State says should be given to any previous decision of the authority, will depend upon the nature of the previous decision in question and its relevance to the issue before the tribunal. 2.9 It must be borne in mind, however, that a positive identification decision (whether a reasonable grounds decision or a conclusive grounds decision) by the Home Office will amount to a concession that the appellant is telling the truth about specific matters and the Tribunal should not go behind that concession14. The statutory guidance provides that where the Tribunal requests disclosure of either the reasonable grounds decision minute or the conclusive grounds decision minute, this must be disclosed.15

Identification as a ‘protective duty’ and ECHR, Art 4 2.10 A failure to identify correctly a victim will result in a denial of fundamental rights16. The duty proactively to identify is an aspect of the obligations arising under the ECHR, Art 4 and:

12 See para 46 of the Upper Tribunal decision. 13 See MS (Pakistan) v Secretary of State for the Home Department [2020] UKSC 9 at para 15. 14 See R (on the application of Ganidagli) v Immigration Appeal Tribunal [2001] EWHC 70 Admin; Carcabuk and Bla (00TH01426) (18 May 2000, unreported), IAT. In Davoodipanah v Secretary of State for the Home Department [2004]  EWCA  Civ 106, [2004]  INLR  341, [2004]  All ER (D) 285 (Jan), the Court of Appeal held that a concession made by either party may be formally withdrawn on appeal if the Appeal Court considers that there is good reason to take that course, but otherwise, the Appeal Court should not revisit issues relevant to a concession clearly made to a first instance immigration judge who had relied on it. See also NR (Jamaica) v Secretary of State for the Home Department [2009] EWCA Civ 856, [2010]  INLR  169, [2009]  All ER (D) 43 (Aug); and CD (Jamaica) v Secretary of State for the Home Department [2010] EWCA Civ 768, [2010] All ER (D) 34 (Feb). 15 Home Office, Modern Slavery Act 2015 – Statutory Guidance for England and Wales (v 1.0, 24 March 2020) at para 14.218. 16 Explanatory Report to the Council of Europe Convention on Action against Trafficking in Human Beings p 127; see also R (on the application of SF) v Secretary of State for the Home Department [2015] EWHC 2705 (Admin), [2016] 1 WLR 1439 at 100, see also 2, 106–107.

22

Introduction 2.13

‘entails a procedural obligation to investigate situations of potential trafficking. The requirement to investigate does not depend on a complaint from a victim or next of kin: once the matter has come to the attention of the authorities they must act of their own motion’17. 2.11 ‘The investigation must fulfil the requirements of independence and impartiality, promptness and reasonable expedition and urgency where there is a possibility of removing the individual concerned from a harmful situation. The investigation must also be capable of leading to the identification and punishment of individuals responsible … authorities must take all reasonable steps available to them to secure evidence concerning the incident’18. 2.12 In R (on the application of H)19 the Court of Appeal determined that the only procedural obligation imposed by ECHR, Art 4 (as distinct from policy requirements) at the identification stage was on the police to investigate. The subsequent ECtHR decision in J  v Austria makes clear that Art 4 includes a positive obligation to identify and support (potential) victims of trafficking as part of the requirement for ‘protection’20, the ECtHR judgment is aligned with the observations of the Supreme Court in MS(Pakistan)21. 2.13 The Court of Appeal considered the Art 4 operational duty to take protective measures towards suspected victims of trafficking in the landmark case R (on the application of TDT)22. The Court of Appeal held that the Secretary of State for the Home Department had breached ECHR, Art 4 by releasing from detention a Vietnamese national without adequate measures in place to protect him from re-trafficking. The individual subsequently went missing. The claimant had been referred into the NRM and was awaiting a decision when he was released and went missing. The Court concluded there had been sufficient evidence to give rise to a credible suspicion that he was a trafficked victim and that there was a real and imminent risk of re-trafficking if released. The Court observed that there was abundant, undisputed evidence that there was a high incidence of young Vietnamese males being trafficked to the UK. The threshold for 17 Rantsev v Cyprus & Russia (2010) 51 EHRR 1 at 296, 288. 18 J v Austria (2017) App No 58216/12 at 107. 19 R (on the application of H) v Secretary of State for the Home Department [2016] EWCA Civ 565, [2016] Imm AR 1272. 20 See J  v Austria (2017) App No  58216/12 at 109 and see the court’s comments under the heading ‘Whether the positive obligations to identify and support the applicants had been complied with’ at 110–111. 21 MS (Pakistan) v Secretary of State for the Home Department [2020] UKSC 9 at paras 34–46. 22 R (on the application of TDT, by his litigation friend) v Secretary of State for the Home Department & Equality and Human Rights Commissioner intervening [2018] EWCA Civ 1395.

23

2.14  Determination of trafficking status

credible suspicion is a low one23. Practitioners should be aware that the Court relied on the fact the Home Secretary’s own country information material acknowledged that Vietnamese children are at risk of being trafficked to the UK, particularly into cannabis factories and nail bars, and that children are at particular risk of going missing from care. This kind of generic evidence was able to establish credible suspicion was met on the facts. We suggest it is good practice to consider all reputable forms of generic evidence, and to refer to these in any representations to the Home Office to show how the suspicion is met.

National Referral Mechanism 2.14 The NRM is a framework for identifying and referring potential victims of modern slavery and ensuring they receive the appropriate support. It was implemented in 2009 for victims of trafficking to give effect to obligations arising under ECAT24 and extended to include victims of modern slavery on 31 June 201525. According to the Home Office: ‘It is designed to make it easier for all the different agencies that could be involved in a trafficking case (for example, the police, Home Office – including Border Force, UK Visas and Immigration and Immigration Enforcement – the National Crime Agency, local authorities, and nongovernmental organisations) to co-operate, share information about potential victims and facilitate their access to advice, accommodation and support’26.

23 Ibid at para 38. 24 ECAT was signed by the UK on 23 March 2007, and entered into force on 1 April 2009. 25 It was introduced in 2009 in respect of victims of trafficking and extended from 31  July 2015 to include all victims of modern slavery following implementation of the Modern Slavery Act 2015: see www.nationalcrimeagency.gov.uk/about-us/what-we-do/specialist-capabilities/uk-human-traffickingcentre/national-referral-mechanism, last accessed 14 December 2017. 26 Victims of modern slavery – Competent Authority guidance (v.8.0, 2 September 2019) at p 10.

24

25

If no consent then Duty to Notify

Obtain Consent

Give Advice

Identify

Competent Authority

Support and Assistance

Investigate

JUDICIAL REVIEW

+ve

Recovery and Reflection Period

–ve

Reasonable Grounds Decision

JUDICIAL REVIEW

–ve

Conclusive Grounds decision

+ve

Residence permit

compensation

Support and assistance to recover

JUDICIAL REVIEW

–ve

First Responder

National Referral Mechanism 2.14

2.15  Determination of trafficking status

Identifying victims of trafficking 2.15 Article 10 of ECAT requires states to provide the competent authorities with ‘persons who are trained and qualified in preventing and combating trafficking in human beings, in identifying and helping victims, including children’. The state is required to: ‘ensure that the different authorities collaborate with each other as well as with relevant support organisations, so that victims can be identified in a procedure duly taking into account the special situation of women and child victims and, in appropriate cases, issued with residence permits under the conditions provided for in Article 14 of the present Convention’27. 2.16 The purpose behind this definition was to ensure that those public authorities who may have contact with trafficking victims would have within them appropriately trained people to enable victims to be identified28. 2.17 An integrated approach to victim identification enables victim protection and assists in the prevention of trafficking.The Explanatory Report to ECAT explains: ‘127. To protect and assist trafficking victims it is of paramount importance to identify them correctly. Article 10 seeks to allow such identification so that victims can be given the benefit of the measures provided for in Chapter III. Identification of victims is crucial, is often tricky and necessitates detailed enquiries. Failure to identify a trafficking victim correctly will probably mean that victim’s continuing to be denied his or her fundamental rights and the prosecution to be denied the necessary witness in criminal proceedings to gain a conviction of the perpetrator for trafficking in human beings’.

27 ECAT, Art 10. 28 CETS, Explanatory Report to the Council of Europe Convention on Action against Trafficking in Human Beings pp 129–130.

26

First responders 2.19

First responders 2.18 The following key steps for frontline staff in the NRM process are outlined in the statutory guidance29. Identify potential victim

Ensure immediate protection

Arrange emergency medical treatment

Refer potential victim to NRM

Arrange accommodation

2.19 Under the UK system only a ‘first responder’ can make a referral to the ‘competent authority’. First responders are currently: •

the Home Office;

•

local authorities;

•

Health and Social Care Trusts (‘HSC Trusts’);

• police; •

National Crime Agency (‘NCA’);

•

Trafficking Awareness Raising Alliance (‘TARA’);

• Migrant Help; • Kalayaan; •

Gangmasters Licensing Agency;

•

Medaille Trust;

• Salvation Army; • Barnardos; •

National Society for the Prevention of Cruelty to Children (‘NSPCC’);

• Unseen UK; •

New Pathways;

• BAWSO; •

Refugee Council.

29 Home Office, Modern Slavery Act 2015 – Statutory Guidance for England and Wales (v 1.0, 24 March 2020), Chapter 5.

27

2.20  Determination of trafficking status

2.20 Notably missing from this list are medical and legal professionals and prison officers, who cannot make direct referrals to the NRM30. Concern that someone might be a victim of trafficking should prompt contact with one of the bodies above and a request for a referral to be made. Any person who has concerns can report it via the modern slavery helpline on 0800 0121 700 or report it online31. 2.21 The ‘first responder’ is required to complete an online NRM referral form32. The online form needs to be completed in one go as progress cannot be saved, and times out after an hour for security purposes.The online form will identify whether the referrer is a first responder by verifying the email address. Once the online form is submitted, it is sent to the Single Competent Authority. The first responder will be sent a link to download a copy. 2.22 Prior to January 2020, first responders completed this process via hardcopy forms. Since the online portal has been established, the old referrals forms were only accepted up to 29  February 2020, under exceptional circumstances33. Feedback to the online process can be sent to nationalreferralmechanism@ homeoffice.gov.uk 2.23 First responders should ensure that the relevant forms are signed by the victim. In the case of an adult, informed consent is required for a referral34. This requires the first responder clearly to explain to the potential victim what the NRM is, the referral process, what support is available through the NRM, and the potential outcomes. Good explanations can overcome some of the reasons why a victim may refuse to give consent, for example, through a lack of understanding or fear of the authorities. Consent is not required in the case of a child35.

30 31 32 33

This has been criticised by GRETA (see fn 16 above) at para 141. Available at https://www.modernslaveryhelpline.org/report, last accessed 5 August 2020. Available at https://www.modernslavery.gov.uk/start?hof-cookie-check, last accessed 5 August 2020. See online guidance at https://www.gov.uk/government/publications/human-trafficking- victimsreferral-and-assessment-forms/guidance-on-the-national-referral-mechanism-for-potential-adultvictims-of-modern-slavery-england-and-wales. 34 Home Office, Modern Slavery Act 2015 – Statutory Guidance for England and Wales (v 1.0, 24 March 2020), at p 44. 35 Home Office, Victims of modern slavery – frontline staff guidance (18 March 2016) p 40. Ibid at p 46.

28

First responders 2.26

2.24 Potential victims who were trafficked as children but are now adults should have their cases assessed as if they were a child against the child indicators but will be required to consent to referral36. 2.25 The form is not to be used as an interview record37, but as a means for the first responder to provide as much information as possible, including documentary evidence where available, to enable a decision to be reached. First responders should avoid placing victims of trafficking under unnecessary additional stress or further trauma. If the first responder is unable to use an accredited interpreter to fill out the form this should be made clear on the form. In trafficking cases best practice suggests that members of the community should not be used to interpret an account of trafficking by victims. Similarly, caution should be used when working with interpreters who lack experience of trafficked victims when filling out the NRM referral form. The first responder must ensure that it does not place the victim at further risk of harm, including reprisals or shame and further trauma.

Duty to notify 2.26 From 1 November 2015, specified public authorities are required to notify the Home Office about any potential victims of modern slavery they encounter in England and Wales38. The information to be provided during this process is set out in the Modern Slavery Act 2015 (Duty to Notify) Regulations 201539. The notification can be done either by completing an online NRM form or, in the case of a perso who does not consent to the NRM, by completing an online form, notifying the Home Office of potential victims. Both the NRM referral 36 Home Office,Victims of modern slavery – frontline staff guidance (18 March 2016)); Modern Slavery Act 2015 – Statutory Guidance for England and Wales,’ (v 1.0, 24 March 2020), at p 104. 37 As it is not an interview, and is completed by someone other than the victim, it should also not be relied on to undermine the credibility of the victim. 38 Modern Slavery Act 2015, s  52. The ‘duty to notify’ provision is set out in s  52, and applies to the following public authorities in England and Wales at the time of publication (additional public authorities may be added by regulations): (a) a chief officer of police for a police area, (b) the chief constable of the British Transport Police Force, (c) the National Crime Agency, (d) a county council, (e) a county borough council, (f) a district council, (g) a London borough council, (h) the Greater London Authority, (i) the Common Council of the City of London, (j) the Council of the Isles of Scilly, (k) the Gangmasters and Labour Abuse Authority. Home Office staff within UK Visas and Immigration, Border Force and Immigration Enforcement are also required, as a matter of Home Office policy, to comply with the duty to notify guidance: see www.gov.uk/government/uploads/system/uploads/attachment_ data/file/508817/Duty_to_Notify_Guidance__Version_2.0_.pdf., as provided in Home Office, Modern Slavery Act 2015 – Statutory Guidance for England and Wales (v 1.0, 24  March 2020), Chapter  4 at pp 34–36. 39 SI 2015/1743.

29

2.27  Determination of trafficking status

process and the duty to notify process now take place online at the Modern Slavery portal: www.modernslavery.gov.uk. Although the duty to notify applies to both children and adults, children do not need to consent to enter the NRM, so potential child victims should be referred into the NRM in all cases (rather than making a Duty to Notify notification).

Single Competent Authority 2.27 The UK has a Single Competent Authority (‘SCA’) which is the UK’s decisionmaking body that is responsible for making decisions relevant to victims of trafficking. The SCA replaces the two historic competent authorities40 that existed before April 2019.

Identification decision-making process Reasonable grounds decision 2.28 The ‘reasonable grounds’ decision is designed as an initial filter to identify potential victims. The burden of identifying a victim of trafficking or modern slavery rests on the state and a failure to identify may cause the state to be in breach of ECHR, Art 4. At the reasonable grounds stage the issue is not whether the victim can prove that he has been trafficked to the decision-maker’s satisfaction, but whether taken in the round, all available evidence demonstrates that there are reasonable grounds to believe that the person has been trafficked41. 2.29 This initial filter should not be elevated to detailed summary determination of the ultimate credibility of the case advanced42. At this stage in the process the victim will often not have had an opportunity to ‘recover’ and access support and advice. Thus, all of the possible reasons why a victim of trafficking might give an incomplete or inconsistent account are far more likely to be present. The victim may not yet have built a relationship of trust and confidence with anyone. Fear of authorities, post-traumatic stress disorder, shame, a desire to 40 Before April 2019, the two competent authorities were the National Crime Agency Modern Slavery and Human Trafficking Unit (MSHTU) and the Home Office (UKVI). 41 R (on the application of Hoang) v Secretary of State for the Home Department [2015] EWHC 1725 (Admin), [2015] All ER (D) 228 (Jun) at paras 71–72. This analysis was not challenged when the judgment was successfully appealed to the Court of Appeal (see R (on the application of H) v Secretary of State for the Home Department [2016] EWCA Civ 565, [2016] Imm AR 1272). 42 Ibid para 74.

30

Identification decision-making process 2.32

protect others, or fears arising from immigration status may impact on the individual’s ability to recall concrete facts. Similarly, the decision-maker may not have had time to undertake adequate inquiries from other relevant agencies such as social services, support agencies or the police43. 2.30 It is for these reasons that the statutory guidance cautions against being too quick to assume that an account which has some holes or inconsistencies in it is therefore not credible, at the initial ‘reasonable grounds’ stage. At this stage in the process it is not necessary to identify what means, method or form of exploitation have or might have been employed.

Standard and burden of proof 2.31 The test applied by the competent authority at the reasonable grounds stage is whether the statement ‘I suspect but cannot prove’ the person is a victim of human trafficking/modern slavery is true, and whether a reasonable person, having regard to the information known to the decision maker, would think that there are reasonable grounds to believe that the individual had been a victim of human trafficking or modern slavery. 2.32 Current statutory guidance44 states: ‘Reasonable suspicion would not normally be met on the basis of an unsubstantiated claim alone, without reliable, credible, precise and up to date: •

intelligence or information

•

evidence of some specific behaviour by the person concerned.

Where reliable, credible, precise and up to date intelligence, information or evidence is present, it must be considered in reaching a reasonable grounds decision’. The way this guidance is framed unfortunately tends to lead to individual decision-makers imposing a burden of proof on the victim and placing an overemphasis on credibility and corroboration, in breach of the remainder of the guidance (see below paras 2.74–2.84 on ‘credibility’). 43 Ibid para 75. 44 Home Office, Victims of modern slavery – Competent Authority guidance (21 March 2016)); Modern Slavery Act 2015 – Statutory Guidance for England and Wales (v 1.0, 24 March 2020) at p 107.

31

2.33  Determination of trafficking status

2.33 Provided there are reasonable grounds for belief, then the question of whether there are also reasonable grounds for disbelief is irrelevant. It does not become relevant until the conclusive grounds stage of the process45. Reasonable grounds may be met where a person falls into a class known to be particularly vulnerable to being trafficked in the UK46. The weight to be given to generic evidence will depend on the strength of association alleged and the reliability of the evidence47. Material published by the Home Office and National Crime Agency may be of assistance to legal advisers preparing representations in support of reasonable grounds, to show an individual falls within a known cohort susceptible to trafficking48.

Assessment of evidence of trafficking 2.34 The decision-maker should first identify evidence and matters that might lead to reasonable grounds for suspecting that the individual is a victim of trafficking. He should then critically examine the evidence to decide whether those grounds did in fact exist, bearing in mind the circumstances identified as mitigating for discrepancies, lack of credulity and delays in disclosure49. 2.35 Regard should be had to the possible explanations for credibility gaps and/or evidentiary gaps. The guidance cautions against being too quick to assume that an account which has some holes or inconsistencies in it is not credible at this stage (see paras 2.74–2.84 below on credibility)50.

45 R (on the application of Hoang) v Secretary of State for the Home Department [2015] EWHC 1725 (Admin), [2015] All ER (D) 228 (Jun). 46 R (on the application of TDT, by his litigation friend) v Secretary of State for the Home Department & Equality and Human Rights Commissioner intervening [2018] EWCA Civ 1395 at para 47. 47  Ibid. 48 For example, the Home Office publish country policy and information notes for various countries, for their caseworkers taking immigration and asylum decisions. These will often contain acceptances that certain cohorts are known to be particularly susceptible to being trafficked to the UK.These are available online and frequently updated: https://www.gov.uk/government/collections/country-policy-andinformation-notes, last accessed 5 August 2020. Other resources include National Referral Mechanism statistics, published quarterly online: https://www.gov.uk/government/collections/national-referralmechanism-statistics, last accessed 5 August 2020. 49 See R  (on the application of Hoang) v Secretary of State for the Home Department [2015]  EWHC  1725 (Admin), [2015] All ER (D) 228 (Jun) at para 116; R (on the application of SF) v Secretary of State for the Home Department [2015] EWHC 2705 (Admin), [2016] 1 WLR 1439 at para 117. 50 R (on the application of Hoang) v Secretary of State for the Home Department [2015] EWHC 1725 (Admin), [2015] All ER (D) 228 (Jun) at para 75.

32

Identification decision-making process 2.39

2.36 Competent authorities should use published and recognised reports which address the propensity of trafficking in the home country51. Although these sources are not defined, we would suggest that they should include, as a minimum: •

US Trafficking in Persons Report (produced annually)52;

•

any relevant UK country policy and information notes (‘CPIN’) produced by the Home Office53;

•

NRM statistics54 and Anti-Slavery Commissioner reports55;

•

police intelligence/reports and guidance, e.g. Child Exploitation and Online Protection reports56 and National Crime Agency reports;

•

guidance previously published by the Association of Chief Police Officers on individuals recovered in cannabis farms57.

2.37 Notwithstanding this, if possible, it is recommended that practitioners explicitly refer to any relevant information that the competent authority should consider when deciding. 2.38 As a matter of good practice, we would also suggest that regard should be had to reports produced by specialist NGOs, such as ECPAT UK, Anti-Slavery International, Children’s Society, Helen Bamber Foundation, Freedom from Torture, FLEX, Kalayaan and the NSPCC. 2.39 The competent authority tends to cite from the US  Trafficking in Person (‘TIP’) reports and reach an initial decision on whether trafficking of the type described from the country described occurs, but often fails to apply that

51 R (on the application of Hoang) v Secretary of State for the Home Department [2015] EWHC 1725 (Admin), [2015] All ER (D) 228 (Jun), summarising Competent Authority Guidance at 48f, 85–86, 90–94. 52 Available at www.state.gov/j/tip/rls/tiprpt/. 53 Available at https://www.gov.uk/government/collections/country-policy-and-information-notes, last accessed 5 August 2020. 54 Available at https://www.gov.uk/government/collections/national-referral-mechanism-statistics, last accessed 5 August 2020. 55 Available at https://www.antislaverycommissioner.co.uk/, last accessed 5 August 2020. 56 Available at www.ceop.police.uk/safety-centre/, last accessed 5 August 2020. 57 Available at www.wsmp.org.uk/documents/wsmp/Trafficking%20Guidance/160810%20ACPO%20 lead’s%20position%20on%20CYP%20recovered%20from%20cannabis%20farms.pdf. ACPO has been replaced by the National College of Policing.

33

2.40  Determination of trafficking status

information to the account given by the individual. This is an impermissible approach58. 2.40 Provision is made for interviews at the reasonable grounds stage, although it is anticipated that it is ‘more likely’ that the reasonable grounds decision will be based on evidence from the first responder than an interview59. 2.41 In foreign national cases it is becoming more prevalent for decision-makers to require interviews. We would suggest that where ‘further enquiries’ or an interview are necessary, the reasonable grounds test will almost invariably be met. 2.42 Although credibility is relevant to the existence or otherwise of ‘reasonable grounds’, a decision-maker does not have to (and may be unable to) form a concluded view on credibility at the ‘reasonable grounds’ stage of the decisionmaking process under the NRM60.

Indicators of trafficking 2.43 A proactive approach to identification is required. Failure to recognise a victim at the outset can result in the victim being treated as an irregular migrant and/or a criminal, resulting in the victim being detained and/or peremptorily removed from the UK61. The initiation of an inquiry should not depend on a report or accusation by the victim62.

58 For an example of this, see R  (on the application of Hoang) v Secretary of State for the Home Department [2015] EWHC 1725 (Admin), [2015] All ER (D) 228 (Jun) at paras 86–94, where the decision-maker dismissed the case on the grounds that what happened to the claimant was ‘intrinsically incredible’ or the result of a chance encounter with gangs without recognising that the circumstances described were consistent with established and recognised patterns of trafficking activity (para 93). The SSHD appealed this case successfully to the Court of Appeal but only on the narrow issue of whether failure to apply policy gave rise to an ECHR, Art 4 breach. 59 Home Office, Modern Slavery Act 2015 – Statutory Guidance for England and Wales (v 1.0, 24 March 2020) at p 107. 60 R (on the application of Hoang) v Secretary of State for the Home Department [2015] EWHC 1725 (Admin), [2015] All ER (D) 228 (Jun); Home Office, Modern Slavery Act 2015 – Statutory Guidance for England and Wales (v 1.0, 24 March 2020) at p 107. 61 GRETA, ‘Report concerning the implementation of the Council of Europe Convention on Action against Trafficking in Human Beings by the United Kingdom’ (7 October 2016) GRETA(2016)21 at para 226. 62 EU Trafficking Directive, Recital (15).

34

Identification decision-making process 2.45

2.44 To ensure effective identification of victims of trafficking it is important that the indicators of trafficking are understood and recognised by those, including legal practitioners, who may encounter potential victims of trafficking. It is essential to focus on the strength of the indicators of modern slavery or trafficking rather than any immigration or criminality concerns63. It is also important to recognise that British and EEA nationals may also be victims of trafficking64. 2.45 Different forms of modern-day slavery and trafficking can give rise to different indicators. The UN  Office on Drugs and Crime (‘UNODC’) and United Nations Global Initiative to Fight Trafficking (‘UNGIFT’)65 have produced a set of indicators that, if present, should lead to an investigation: General indicators

People who have been trafficked may: • • • • • • • • • • •

Believe that they must work against their will Be unable to leave their work environment Show signs that their movements are being controlled Feel that they cannot leave Show fear or anxiety Be subjected to violence or threats of violence against themselves or against their family members and loved ones Suffer injuries that appear to be the result of an assault Suffer injuries or impairments typical of certain jobs or control measures Suffer injuries that appear to be the result of the application of control measures Be distrustful of the authorities Be threatened with being handed over to the authorities

63 For criticism of the overemphasis on immigration and criminal factors rather than trafficking indicators, see David Bolt Independent Chief Inspector of Borders and Immigration, An Inspection of Border Force’s Identification and Treatment of Potential Victims of Modern Slavery (February 2017), available at www.gov.uk/ government/uploads/system/uploads/attachment_data/file/614203/Potential-Victims-of-ModernSlavery-_Inspection-report.pdf. 64 The inspection report found that there was ‘limited awareness or recognition of the risk that EEA nationals could be victims of modern slavery’ at para 7.9. 65 See www.unodc.org/pdf/HT_indicators_E_LOWRES.pdf, last accessed 16 February 2020.

35

2.45  Determination of trafficking status

• • • • • • • • • • • • • • • • • • • • • • •

Be afraid of revealing their immigration status Not be in possession of their passports or other travel or identity documents, as those documents are being held by someone else Have false identity or travel documents Be found in or connected to a type of location likely to be used for exploiting people Be unfamiliar with the local language Not know their home or work address Allow others to speak for them when addressed directly Act as if they were instructed by someone else Be forced to work under certain conditions Be disciplined through punishment Be unable to negotiate working conditions Receive little or no payment Have no access to their earnings Work excessively long hours over long periods Not have any days off Live in poor or substandard accommodations Have no access to medical care Have limited or no social interaction Have limited contact with their families or with people outside of their immediate environment Be unable to communicate freely with others Be under the perception that they are bonded by debt Be in a situation of dependence Come from a place known to be a source of human trafficking

•

Have had the fees for their transport to the country of destination paid for by facilitators, whom they must payback by working or providing services in the destination

•

Have acted on the basis of false promises

36

Identification decision-making process 2.45

Children

Children who have been trafficked may: • •

Have no access to their parents or guardians Look intimidated and behave in a way that does not correspond with behaviour typical of children their age • Have no friends of their own age outside of work • Have no access to education • Have no time for playing • Live apart from other children and in substandard accommodations • Eat apart from other members of the ‘family’ • Be given only leftovers to eat • Be engaged in work that is not suitable for children • Travel unaccompanied by adults • Travel in groups with persons who are not relatives The following might also indicate that children have been trafficked: • • • • • • • • • • • •

The presence of child-sized clothing typically worn for doing manual or sex work The presence of toys, beds and children’s clothing in inappropriate places such as brothels and factories The claim made by an adult that he has ‘found’ an unaccompanied child The finding of unaccompanied children carrying telephone numbers for calling taxis The discovery of cases involving illegal adoption Have no choice of accommodation Never leave the work premises without their employer Be unable to move freely Be subject to security measures designed to keep them on the work premises Be disciplined through fines Be subjected to insults, abuse, threats or violence Lack basic training and professional licences

37

2.45  Determination of trafficking status

The following might also indicate that people have been trafficked for labour exploitation: •

Domestic servitude

Notices have been posted in languages other than the local language. • There are no health and safety notices. • The employer or manager is unable to show the documents required for employing workers from other countries. • The employer or manager is unable to show records of wages paid to workers. • The health and safety equipment is of poor quality or is missing. • Equipment is designed or has been modified so that it can be operated by children. • There is evidence that labour laws are being breached. • There is evidence that workers must pay for tools, food or accommodation or that those costs are being deducted from their wages. People who have been trafficked for the purpose of domestic servitude may: • • • • •

Sexual exploitation

Live with a family Not eat with the rest of the family Have no private space Sleep in a shared or inappropriate space Be reported missing by their employer even though they are still living in their employer’s house • Never or rarely leave the house for social reasons • Never leave the house without their employer • Be given only leftovers to eat • Be subjected to insults, abuse, threats or violence People who have been trafficked for the purpose of sexual exploitation may: • •

Be of any age, although the age may vary according to the location and the market Move from one brothel to the next or work in various locations

38

Identification decision-making process 2.45

•

Be escorted whenever they go to and return from work and other outside activities • Have tattoos or other marks indicating ‘ownership’ by their exploiters • Work long hours or have few if any days off • Sleep where they work • Live or travel in a group, sometimes with other women who do not speak the same language • Have very few items of clothing • Have clothes that are mostly the kind typically worn for doing sex work • Only know how to say sex-related words in the local language or in the language of the client group • Have no cash of their own • Be unable to show an identity document The following might also indicate that children have been trafficked: • • • • • • •

There is evidence that suspected victims have had unprotected and/or violent sex. There is evidence that suspected victims cannot refuse unprotected and/or violent sex. There is evidence that a person has been bought and sold. There is evidence that groups of women are under the control of others. Advertisements are placed for brothels or similar places offering the services of women of a particular ethnicity or nationality. It is reported that sex workers provide services to a clientele of a particular ethnicity or nationality. It is reported by clients that sex workers do not smile.

39

2.45  Determination of trafficking status

Labour exploitation

People who have been trafficked for the purpose of labour exploitation are typically made to work in sectors such as agriculture, construction, entertainment, service industry and manufacturing (in sweatshops). People who have been trafficked for labour exploitation may: •

Begging and petty crime

Live in groups in the same place where they work and leave those premises infrequently, if at all. • Live in degraded, unsuitable places, such as in agricultural or industrial buildings. • Not be dressed adequately for the work they do: for example, they may lack protective equipment or warm clothing • Be given only leftovers to eat • Have no access to their earnings • Have no labour contract • Work excessively long hours • Depend on their employer for a number of services, including work, transportation and accommodation People who have been trafficked for the purpose of begging or committing petty crimes may: • • • • • • • • •

Be children, elderly persons or disabled migrants who tend to beg in public places and on public transport Be children carrying and/or selling illicit drugs Have physical impairments that appear to be the result of mutilation Be children of the same nationality or ethnicity who move in large groups with only a few adults Be unaccompanied minors who have been ‘found’ by an adult of the same nationality or ethnicity Move in groups while travelling on public transport: for example, they may walk up and down the length of trains Participate in the activities of organized criminal gangs Be part of large groups of children who have the same adult guardian Be punished if they do not collect or steal enough 40

Identification decision-making process 2.47

• •

Live with members of their gang Travel with members of their gang to the country of destination • Live, as gang members, with adults who are not their parents • Move daily in large groups and over considerable distances The following might also indicate that people have been trafficked for begging or for committing petty crimes: • • •

New forms of gang-related crime appear. There is evidence that the group of suspected victims has moved, over a period of time, through a number of countries. There is evidence that suspected victims have been involved in begging or in committing petty crimes in another country.

2.46 Chapter  3 of the statutory guidance provides guidance to public authorities on potential trafficking indicators. The statutory guidance recognises it can be challenging to identify a potential victim of modern slavery, and potential victims may be reluctant to come forward, or even recognise that they are victims. 2.47 Frontline staff and SCA staff should be familiar with the indicators set out in Chapter 3 of the statutory guidance, in order to make referrals into the NRM and identify potential victims at the reasonable grounds stage. In R  (on the application of WEN) v Secretary of State for the Home Department66 the Court held that the Secretary of State for the Home Department’s conclusion that there were no reasonable grounds to conclude that a Brazilian woman was a victim of human trafficking had to be reconsidered.The decision was based on a list of the factors which undermined the woman’s account rather than an assessment of the indicators which might constitute reasonable grounds for suspecting that she was a victim of trafficking.The judge held that a decision-maker should not lose sight of the traumatic effects of trafficking when assessing the timing of disclosures and previous inconsistent accounts.

66 R (on the application of WEN) v Secretary of State for the Home Department [2019] EWHC 2104 (Admin) at paras 57, 61–63, 74.

41

2.48  Determination of trafficking status

2.48 Potential indicators are grouped into the following categories: •

General indicators: Much of this is similar to the UNDOC general indicators outlined above.

•

Physical and psychological indicators: The statutory guidance recognises that victims may have suffered acts of physical and/or psychological abuse, or their physical and mental health may be adversely impacted by their experiences.A non-exhaustive list on physical and psychological indicators are listed in the guidance, ranging from chronic pain, post-operative pain, PTSD, depression, anxiety and adjustment reactions. Helpfully, it is acknowledged that victims may have difficulties with concentration and memory and may struggle to make simple decisions. It is important to recall that these are often indicators consistent with being trafficked; poor quality decisions may fail to reflect this reality.

•

Situation and environmental indicators: The statutory guidance draws on the work of the International Labour Organisation (‘ILO’), to list indicators particularly relevant to forced labour, domestic servitude and forced criminality.

2.49 All three of these categories can apply to potential child and adult victims. 2.50 In addition, the statutory guidance contains a specific index at ‘Annex A’ for child victims, and specific types of modern slavery, namely sexual exploitation; forced labour; domestic servitude and criminal exploitation. Also, see para 10.68 which looks at indicators adapted by the ILO for child labour. 2.51 Specific forms of trafficking/modern slavery where identification may be overlooked are dealt with in further detail below.

Complex issues in identification County lines and child criminal exploitation 2.52 County lines is defined in the Government’s Serious Violence Strategy67 as: 67 HM  Government, ‘Serious Violence Strategy’ (April 2018), at https://www.gov.uk/government/ publications/serious-violence-strategy, last accessed 1 April 2020.

42

Identification decision-making process 2.54

‘… a term used to describe gangs and organised criminal networks involved in exporting illegal drugs into one or more importing areas [within the UK], using dedicated mobile phone lines or other forms of “deal line”. They are likely to exploit children and vulnerable adults to move [and store] the drugs and money and they will often use coercion, intimidation, violence (including sexual violence) and weapons.’ This definition is adopted in the statutory guidance68. 2.53 The National Crime Agency recognises that children and vulnerable people are often recruited and exploited in county lines drug operations, enabling offenders to stay under the radar of law enforcement69. County lines cases are complex, and often are not identified as raising modern slavery and safeguarding concerns70. 2.54 The statutory guidance also uses a child-specific concept, ‘child criminal exploitation’ or ‘CCE’. For the purposes of the statutory guidance, the competent authority defines CCE as: ‘Child Criminal Exploitation is common in county lines and occurs where an individual or group takes advantage of an imbalance of power to coerce, control, manipulate or deceive a child or young person under the age of 18. The victim may have been criminally exploited even if the activity appears consensual. Child Criminal Exploitation does not always involve physical contact; it can also occur through the use of technology. CCE includes a number of types of exploitation, including forced labour, forced theft, benefit fraud, acquisitive crime, drug cultivation and production, and county lines cases.’71

68 Home Office, Modern Slavery Act 2015 – Statutory Guidance for England and Wales (v 1.0, 24 March 2020), p 8. 69 See the National Crime Agency Intelligence Assessment, ‘County Lines Drug Supply,Vulnerability and Harm 2018’ (January 2019), at https://www.nationalcrimeagency.gov.uk/who-we-are/publications/257county-lines-drug-supply-vulnerability-and-harm-2018/file, last accessed 16 February 2020. 70 See, for example, a report from Her Majesty’s Inspectorate of Constabulary and Fire and Rescue Services, ‘Both sides of the coin – The police and National Crime Agency’s response to vulnerable people in “county lines” drug offence’ (January 2020), at https://www.justiceinspectorates.gov.uk/ hmicfrs/wp-content/uploads/both-sides-of-the-coin-police-nca-response-vulnerable-people-countylines-drug-offending.pdf, last accessed 1 April 2020. The inspection report identified that weaknesses in identification and protection, including that forces inconsistently identified vulnerable people; forces do not prioritise attention on county lines vulnerable adults face a ‘cliff-edge’ at 18 years old, when support for them drops. 71 Home Office, Modern Slavery Act 2015 – Statutory Guidance for England and Wales (v 1.0, 24 March 2020), at p 60.

43

2.55  Determination of trafficking status

2.55 The statutory guidance confirms that the primary objective is to recognise and promote safeguarding children, and early identification of children is key to safeguarding. If any person has concerns that a child may be a victim of child criminal exploitation, the statutory guidance provides that they should be referred to the Local Authority Children’s Social Care, who will decided within 24 hours what action to take including, whether to convene a strategy discussion. 2.56 County lines indicators for children, as set out in the statutory guidance72, are: •

persistently going missing from school, home, care, being found outof-area and/or children travelling to locations they have no obvious connections with, including seaside or market towns;

•

unwillingness to explain their whereabouts;

•

unexplained acquisition of money, clothes, accessories or mobile phones which they are unable to account for;

•

excessive receipt of texts/phone calls and/or having multiple mobile phone handsets and/or sim cards;

•

withdrawal and/or sudden change in personality/behaviour and/or language used;

•

relationships with controlling/older individuals or groups;

•

leaving home/care without explanation;

•

suspicion of physical assault/unexplained injuries;

•

parental concerns;

•

carrying weapons;

•

significant decline in school results/performance;

•

gang association or isolation from peers or social networks;

•

self-harm or significant changes in emotional well-being.

2.57 For adults, the statutory guidance does not identify specific county lines indicators, but it does set out general indicators of criminal exploitation73, which include those likely to be relevant, namely: •

carrying and/or selling illicit drugs;

72 Ibid at p 67. 73 Ibid at pp 64 and 65.

44

Identification decision-making process 2.60

•

physical impairments that appear to be the result of mutilation;

•

moving in groups while travelling on public transport: for example, they may walk up and down the length of trains;

•

participating in the activities of organised criminal gangs;

•

living, as gang members, with adults who are not their parents;

•

moving daily in large groups and/or over considerable distances.

2.58 There will likely be considerable overlap of these categories for vulnerable people who have been trafficked into county lines. A  common method of exploitation with vulnerable adults is ‘cuckooing’, this is where drug dealers ‘will take over a local property, normally belonging to a vulnerable person, and use it to operate their criminal activity from’74. 2.59 When working with potential victims of county lines or other forms of criminal exploitation, there will often be challenges in terms of disclosure, building trust and establishing their account. It is important to remember that a potential victim of modern slavery is a potential victim of crime.This is often overlooked; despite increasing awareness, children and vulnerable people continue to be criminalised75. Competent authority staff are instructed by the statutory guidance to be aware of how prosecution of exploiters could impact a victim76. When the competent authority is deciding whether there are reasonable or conclusive grounds, their decision must not be dependent on there being a criminal investigation, nor whether the victim co-operates in any criminal proceedings. The victim identification process is independent of any criminal proceedings against those responsible for trafficking/modern slavery. Expert evidence may be necessary in cases of this nature, particularly where potential victims are fearful or traumatised.

Domestic servitude 2.60 Domestic servitude can be difficult to identify because of the hidden nature of exploitation that takes place in private households. Gender and cultural factors may also prevent or hinder the detection and identification of victims77. Abusive 74 See: https://www.nationalcrimeagency.gov.uk/what-we-do/crime-threats/drug-trafficking/countylines, last accessed 5 August 2020. 75 See, for example, the research from the Children’s Society, ‘Counting lines – responding to children who are criminally exploited’ (July 2019). Available at: https://www.childrenssociety.org.uk/sites/default/ files/counting-lives-report.pdf, last accessed 5 August 2020. 76 Home Office, Modern Slavery Act 2015 – Statutory Guidance for England and Wales (v 1.0, 24 March 2020), pp 101 and 102. 77 Ibid, at p 101.

45

2.61  Determination of trafficking status

employers create physical and psychological obstacles by, for example, instilling fear in the domestic slave by threatening them, or their relatives, with further abuse or deportation, or by withholding their passport78. Children living in domestic servitude may not see it as exploitation because they may have been used in their home countries for servitude or be groomed into it in exchange for food and lodging and be unable to report it to authorities due to power imbalances79. This is covered in detail in Chapter 10.

Terrorism 2.61 An area which is receiving more attention now in the modern slavery discourse is the link between trafficking and terrorism, particularly in situations of armed conflict involving non-state actors. It should be stressed that this understanding is only emerging, and state practice appears to be evolving. 2.62 Traditionally, trafficking and terrorism have been understood as legally distinct. However, research prepared by the UN Security Council Counter-Terrorism Committee80 identifies that trafficking is used as a terrorist tactic, particularly in conflict situations. Trafficking and modern slavery has been used: •

to intimidate populations and decimate communities81 – trafficking can be used by terrorist groups in conflict and in ethnic cleansing campaigns to target minorities;

•

to institutionalise sexual violence and slavery82 – trafficking, particularly of women and girls for the purposes of sexual exploitation and servitude, is used by terrorists to spread terror, exert control and as a means of recruiting new fighters;

•

as a driver for recruitment83 – a terrorist ‘fighter’ may be a victim of trafficking, where they have been forcibly recruited, indoctrinated, and trained to fight alongside other terrorists. Acts of forced recruitment for

78 Ibid at p 19. 79 Ibid at p 20. 80 UN Security Council Counter-Terrorism Committee Executive Directorate, ‘Identifying and exploring the nexus between trafficking, terrorism and terrorism financing’ (January 2020). Available at: https:// www.un.org/sc/ctc/wp-content/uploads/2019/02/HT-terrorism-nexus-CTED-report.pdf, last accessed 5 August 2020. 81 Ibid at pp 21–23. This is particularly evident in the crimes perpetrated by ISIL against the Yazidi community. 82 Ibid at pp 24–27. As is particularly evident in the modus operandi of ISIL, Boko Haram, and Al Shabaab. 83 Ibid at pp 28 and 29. Examples identified include the use of boys and young men by ISIL fighters in Syria and Iraq; the use of children as suicide bombers and combatants by Boko Haram in Nigeria, Cameroon and Chad; the use of children by Al-Shabaab in Somalia to participate in conflict; the use of both boys and girls by the Lord Resistance’s Army in DRC, Rwanda and Burundi, as cooks, porters, concubines and combatants.

46

Identification decision-making process 2.66

terrorist purposes have been perpetrated regardless of age, sex, health, and religious background. Children are particularly vulnerable to this form of exploitation. 2.63 As well as a tactic, human trafficking is used as a highly profitable means of terrorism financing, through sexual and other forms of exploitation, kidnapping for ransom, and the removal/sale of organs84. In cases where terrorism is raised in the context of trafficking, specialist legal advice should be sought.

Experiences of victims and identification 2.64 As recognised by the ECAT Explanatory Report, the identification process is a process that might take time85. For many victims, the identification process is stressful86, and can be a source of risk if the victim is still under the control of the trafficker. Although some victims escape and seek assistance, others may be ‘discovered’ either in the trafficking situation or shortly afterwards, for example during an immigration raid or police raid. 2.65 One key to identifying victims of trafficking is an understanding of the power relationships in place and the effects of trafficking. It is well recognised that, certainly when first encountered, victims of trafficking may not tell the truth and often both fear the authorities trying to assist them and may try to protect their abuser87. This means a very different approach is required than a simple ‘credibility assessment’ (see below). 2.66 How the potential victims are treated during the identification process can materially affect their experience of identification, their recovery and the quality of information and evidence they are able to give88. These outcomes in turn impact on the ability of the authorities to protect victims and prevent and prosecute trafficking. It is essential to try to build a relationship of trust with the victim and understand the fears and beliefs he may hold. Time should be taken to ensure that the victim properly understands the identification process 84 Ibid at pp 28–36. 85 Explanatory Report to the Council of Europe Convention on Action against Trafficking in Human Beings pp 128, 131. 86 R Surtees, Listening to Victims: Experiences of Identification, Return and Assistance in South-Eastern Europe (International Centre for Migration Policy Development, 2007) (hereafter Listening to Victims). 87 This is true even for those who self-identify. 88 Listening to Victims p 68.

47

2.67  Determination of trafficking status

and the potential consequences and outcomes. Consideration should be given to the location of interviews, the emotional and physical state of the victim, the presence of others (particularly family members), interpreters, and the gender of the interviewer and interpreter (do not simply assume that a woman will feel more comfortable with a woman or vice versa but take time to ask). All interviews should be conducted according to safety and ethical standards89. 2.67 Non-verbal communication and body language can be very important in determining whether there are indicators of trafficking, particularly if the potential trafficker is present90.The potential victim may look nervous and their behaviour may suggest that they are controlled by another. These behaviours can be positive indicators that the person might be trafficked. However, the absence of these behaviours is not an indicator that an individual has not been trafficked (see credibility section at paras 2.74–2.84, below). 2.68 Potential victims of trafficking and modern slavery may experience fear and suspicion (particularly of being returned to their trafficking situation by the authorities or punished by a trafficker still controlling them)91. They can be in shock, confused and disoriented, suffering post-traumatic stress disorder or marked depression92, can lack understanding of the process, or the language skills and experience of state or NGO assistance – all deficits which can hinder their identification as a victim of modern slavery93. On the other hand, some victims have a positive experience of discovery including feelings of relief, safety, and comfort94. On discovery they may feel desperation and agitation which can affect their presentation95, ashamed and blamed or responsible for what has happened to them96, anger, anxiety and disappointment (particularly for those who had been in less exploitative conditions or able to earn and save some money despite the exploitation)97.

89 See the World Health Organisation’s ‘WHO  Ethical and safety recommendations for interviewing trafficked women’, Zimmerman (2003), available at www.who.int/mip/2003/other_documents/en/ Ethical_Safety-GWH.pdf. Also refer to the ABE and PEACE model techniques set out in Chapter 6 below. The statutory guidance at Annex D  sets out guidance for interviewing people who have experience trauma, at p 90. 90 Home Office, Modern Slavery Act 2015 – Statutory Guidance for England and Wales (v 1.0, 24 March 2020), Annexes D and E. 91 Listening to Victims p 57. And see: https://www.nationalcrimeagency.gov.uk/what-we-do/crime-threats/ drug-trafficking/county-lines, last accessed 5 August 2020. 92 Listening to Victims p 61. 93 Listening to Victims p 62. 94 Listening to Victims p 62. 95 Listening to Victims p 64. 96 Listening to Victims, p 65. 97 Listening to Victims, p 67.

48

Identification decision-making process 2.69

2.69 Victims of trafficking have often been lied to. These lies can encompass the nature and legality of their work, their immigration status, details of the journey and even their current location. Some victims will be wary of the authorities because of experiences in their home country, or what they have been told by the traffickers. The experiences of victims can lead to difficulties in their accurate narration of events and their circumstances. Difficulty Possible reasons Reluctance to • debt bondage; come forward with • under threat of something happening to family information/unwilling overseas; to disclose • told that the authorities will harm them or put them in prison if they do not do as they are told; •

fear of punishment or reprisals at hands of traffickers or authorities;

•

fear of deportation (e.g. if involved in illegal activities);

•

consequence of juju or witchcraft or other rituals leading to a belief that bad things will happen if the person discloses;

•

discrimination or stigma from community or family (e.g. sexual exploitation can often lead to a woman being ostracised);

•

fear of being accused as complicit in their situation;

•

fear of being seen as ‘colluding’ with their exploiter;

•

they may be in a situation of dependency, perhaps due to their age;

•

they may suffer from Stockholm syndrome, where due to unequal power, victims create a false emotional or psychological attachment to their controller.

49

2.70  Determination of trafficking status

Not recognise themselves as having been trafficked or enslaved

Tell their story with obvious errors

•

may see their situation as a stepping stone to a better life;

•

may not be aware of support structures and their entitlements and feel that they are dependent on traffickers;

•

may have been groomed;

•

may see their current situation as temporary and blame it on their lack of understanding of the culture and labour market in the UK;

•

children may not understand what modern slavery means;

•

children may not have the same cultural understanding of childhood as is held in the UK and feel they are young adults responsible for earning money for their family; they may see an exploitative situation as a sacrifice to be made for their family. It is not uncommon for traffickers or modern slavery facilitators to provide stories for victims to tell if approached by the authorities;

•

•

errors or lack of reality may be because their initial stories are composed by others and learnt;

•

mental and physical ill-health may impact on their recall ability

2.70 Common misconceptions about the behaviour of victims of trafficking, often arising from the same causes as above, include: •

the person did not take the opportunity to leave and therefore is not being coerced;

•

UK nationals cannot be victims of modern slavery98;

•

crossing a border is required in order to be trafficked99;

98 UK nationals can and have been victims of modern slavery. 99 A border crossing is not required: trafficking can occur within a country.

50

Identification decision-making process 2.72

•

it cannot be slavery where the trafficker and victim are married, related, living together or lovers100;

•

the person has a better life than previously and therefore is not a victim;

•

a rejection of help means a person is not a victim.

The conduct of traffickers 2.71 The common modus operandi of traffickers is dealt with in depth in Chapter 15. ‘Grooming’ of victims is common. Traffickers frequently target victims with a noticeable vulnerability, for example, poverty, youth, emotional neediness, low self-confidence, poor mental health, addiction or irregular immigration status. The trafficker will then obtain information about the potential victim and often appear as a friend or sponsor who will promise a better life. Traffickers may pose as the victim’s friend or boyfriend, promise schooling, buy gifts or provide drugs or alcohol. The victim is then likely to be isolated either within their home country or by being taken abroad and the trafficker will seek to groom or intimidate to obtain control of the victim. Once the victim has been ‘groomed’ the trafficker will often resort to more violent or psychologically coercive measures to retain control over the victim101.There is an increasing use by traffickers of methods to engender trust and confidence including the gifting of money to encourage the victim’s trust102.With internal trafficking within the UK this has resulted in traffickers targeting children in care settings or those that have been excluded from school103. 2.72 To obtain and keep control over victims it is common for agents and traffickers to use threats against the victim’s family, a control model especially effective against children to manipulate and control the victim. The fear of reprisal on themselves or their family can have a huge impact on whether a potential victim of trafficking is willing to cooperate104. Unaccompanied migrant children are particularly vulnerable to targeting because they are without a guardian or parent, leaving them highly vulnerable.

100 Children are often trafficked by and to family members for the purpose of domestic servitude. The ‘boyfriend’ model is common in cases of sexual exploitation. 101 Home Office, Modern Slavery Act 2015 – Statutory Guidance for England and Wales (v 1.0, 24 March 2020), pp 30 and 31. 102 Bernie Gravett, former Superintendent with the Metropolitan Police. 103 See https://www.childrenssociety.org.uk/sites/default/files/dofe.school.exclusion.consultation.response.pdf, last accessed 5 August 2020. 104 Home Office, Modern Slavery Act 2015 – Statutory Guidance for England and Wales (v 1.0, 24 March 2020), p 26.

51

2.73  Determination of trafficking status

2.73 Victims of trafficking are also often held in ‘debt bondage’ and this bond is commonly held over the family abroad. Debt bondage occurs where the person is forced to work, often for little or no money, to pay off a debt, often characterised as passage and living costs with compound interest added. Such victims face coercion, intimidation, or violence against them or loved ones if they try to leave before the ‘debt’ has been repaid105. A common phenomenon in the Vietnamese trafficking model is for the traffickers to retain the property documents of the family home of the victim, the travel debt being a ‘mortgage loan’ against the home106.

‘Credibility’ and mitigating factors 2.74 In assessing credibility, the statutory guidance recognises that it is ‘generally unnecessary and sometimes counter-productive, to focus on minor or peripheral facts that are not material to the claim’107. 2.75 The competent authority is directed to assess the material facts based on: •

whether the person is coherent and consistent with any part-written or verbal statements;

•

how well the evidence submitted fits together and whether it is contradictory;

•

whether the facts are consistent with claims made by witnesses and any documentary evidence.

2.76 If there is ‘insufficient evidence to support a claim’, for example ‘where the case is lacking key details, such as who exploited them or where the exploitation took place’, the competent authority is entitled to question whether the relevant threshold is met. It must also consider whether more information is needed before that decision can be reached108.

105 For more information, see e.g. Anti-Slavery International, at www.antislavery.org/slavery-today/debtbondage/, last accessed 17 February 2020. 106 Home Office, Country Policy and Information Note Vietnam:Victims of trafficking (4.0, April 2020) at 5.4. 107 Home Office, Modern Slavery Act 2015 – Statutory Guidance for England and Wales (v 1.0, 24 March 2020) p 91. 108 Ibid p 100, p 101.

52

Identification decision-making process 2.79

2.77 It is suggested that it would be appropriate to assume that a victim will be able to give a greater level of detail than a person who has not had the experience and will be able to recount the central elements in a broadly consistent manner109. This is internally inconsistent with the remainder of the guidance which explains and outlines a myriad of reasons why this cannot be assumed: for example, it is acknowledged in the same section that some traumatised individuals can struggle to verbally express distressing experiences, may appear numb or disconnected from their words or display other trauma-related symptoms. However, this rationale is being used increasingly to discount the experiences of victims. 2.78 Before making a finding of adverse credibility at any stage of the process, the competent authority should110: •

consider whether it is necessary to seek further information or evidence;

•

consider whether any inconsistencies in the evidence or any failure to disclose matters promptly can be explained by any mitigating circumstances111;

•

refer back to the first responder or other expert witnesses to seek clarification of inconsistencies.

2.79 There are a number of recognised good reasons (including the nature of trafficking and the trauma it can cause112) why a victim of trafficking may not immediately be able to advance a coherent, consistent and detailed account of what has happened to him. Inconsistencies or delay in coming forward with detail are not necessarily reasons for finding lack of credibility, and later disclosure of more detail to a trusted person should not be seen as necessarily manipulative or untrue, because it can be the result of an effective recovery period and/or the establishment of trust113.

109 Ibid p 100. 110 Ibid p 71 111 R (on the application of Hoang) v Secretary of State for the Home Department [2015] EWHC 1725 (Admin), [2015] All ER (D) 228 (Jun) at paras 81–83. 112 R (on the application of Hoang) v Secretary of State for the Home Department [2015] EWHC 1725 (Admin), [2015] All ER (D) 228 (Jun) at para 82b. 113 R (on the application of Hoang) v Secretary of State for the Home Department [2015] EWHC 1725 (Admin), [2015]  All ER (D) 228 (Jun) at para  82c, R  (on the application of SF) v Secretary of State for the Home Department [2015] EWHC 2705 (Admin), [2016] 1 WLR 1439 at 79, R (on the application of WEN) v Secretary of State for the Home Department [2019] EWHC 2104 (Admin) at para 62.

53

2.80  Determination of trafficking status

2.80 Many of these factors are explicitly recognised in the statutory guidance, which includes the following non-exhaustive list114: •

trauma (mental, psychological, or emotional);

•

inability to express themselves clearly;

•

mistrust of authorities;

•

feelings of shame;

•

painful memories;

• age; •

ongoing nature of abuse through childhood (in child cases);

•

fear of traffickers or modern slavery facilitators, violence or witchcraft (juju).

2.81 Many of the symptoms of PTSD such as flashbacks, intrusive thoughts, hypervigilance, shame and low self-esteem, as well as the fear of (and resultant inability to deal appropriately with) authority figures, can have direct effect on the ability to give clear and consistent testimony. Dissociation (a psychological defence mechanism manifested as a perceived detachment of the mind from the emotional state and the body which often occurs in the aftermath of severe trauma) can lead to particularly severe difficulties in the context of giving testimony115. 2.82 Expert evidence and evidence from support organisations (see below) are recognised as being of assistance to the competent authority in determining trafficking status. The statutory guidance recognises the role and expertise of first responders and other experts and reflects the fact that these organisations know, from their own expertise and experience, how trafficking works, which enables them to test the cogency of the account of the individual concerned116. It also enables them to explain why and how those who have been trafficked

114 Home Office, Modern Slavery Act 2015 – Statutory Guidance for England and Wales (v 1.0, 24 March 2020), Annex D ‘Working with Vulnerable People’ at pp 86–98. 115 C Katona and L Howard, ‘The mental health difficulties experienced by victims of human trafficking (modern slavery) and the impact this has on their ability to provide testimony’ (Helen Bamber Foundation, Briefing Paper, February 2017), available at www.helenbamber.org/wp-content/uploads/2017/02/ Briefing-Paper-Difficulties-in-providing-testimony-victims-of-modern-slavery.pdf. 116 Home Office, Modern Slavery Act 2015 – Statutory Guidance for England and Wales (v 1.0, 24 March 2020), p 102.

54

Expert evidence 2.85

may, because of their experiences, give inconsistent accounts or fail to mention something of importance at an early stage117. 2.83 Corroboration at either the reasonable grounds or conclusive grounds stage is not required, because there is no requirement for it at common law or under any relevant statute118. 2.84 The current emphasis placed on ‘credibility’ can lead to individual decision makers focusing on the individual credibility of the potential victim of trafficking without evaluating the objective context in which the trafficking took place and without properly investigating the facts as required by ECAT, Art 10. Despite the clear Home Office guidance, expert opinion and decisions of the courts, the competent authority routinely fails to deal with factors that mitigate inconsistent evidence or delays in disclosure119. The consequences are that victims who are subject to coercion and control, suffering mental health difficulties, who experienced out of the ordinary situations and/or have been groomed and are unable to disclose, are likely to be rejected as victims of trafficking.This puts the UK in breach of its obligations under the Convention.

Expert evidence Evidence from support organisations 2.85 Support organisations hold a special position in the victim status determination process because of their own experience and knowledge, both of the trafficking process and the victim.

117 R (on the application of SF) v Secretary of State for the Home Department [2015]  EWHC  2705 (Admin), [2016] 1 WLR 1439. 118 See R (on the application of M) v Secretary of State for the Home Department [2015] EWHC 2467 (Admin) at 61 and R (on the application of SF) v Secretary of State for the Home Department [2015] EWHC 2705 (Admin), [2016] 1 WLR 1439 at 191. 119 See e.g. R (on the application of FK) v Secretary of State for the Home Department [2016] EWHC 56 (Admin) at para 31; R (on the application of Hoang) v Secretary of State for the Home Department [2015] EWHC 1725 (Admin), [2015] All ER (D) 228 (Jun) (in a reasonable grounds context); R (on the application of M) v Secretary of State for the Home Department [2015] EWHC 2467 (Admin) (in a conclusive grounds context); R (on the application of WEN) v Secretary of State for the Home Department [2019] EWHC 2104 (Admin) (in a reasonable grounds context); Children’s Commissioner, ‘If only someone had listened’ (Office of the Children’s Commissioner’s Inquiry into Child Sexual Exploitation in Gangs and Groups, Final report November 2013), available at www.childrenscommissioner.gov.uk/wp-content/uploads/2017/07/ If_only_someone_had_listened.pdf.

55

2.86  Determination of trafficking status

2.86 Victims of trafficking often do not trust or are afraid of the police or immigration officials. Support organisations are likely to have spent more time over a longer period with the individual and established a greater degree of trust120. 2.87 In recognition of this special status the guidance requires this evidence to be given ‘due weight’ although the competent authority is not bound to accept it121. If a report from a support organisation is available, there is an imperative requirement that the competent authority obtain one122. As set out in the statutory guidance, those support organisations providing care to the potential victim of trafficking (‘Pvot’) or victim of trafficking (‘VOT’) under the Victim Care Contract will be required to undertake an initial needs-based assessment and a detailed needs based assessment123. These assessments should be disclosed to the Pvot or VOT and consideration should be given to them during the identification process, if the Pvot or VOT consents to their disclosure to the competent authority.

Evidence from other experts 2.88 Expert evidence is often relied on to explain to the competent authority how the approach to evidence of a trafficked person must be viewed differently from Refugee Convention witnesses or other classes of victims. As recognised by the civil courts in this context124, if expert evidence is ignored there is a great risk that the person alleged to be trafficked will be disbelieved, because their account is inconsistent. The consequence of this is that they would not be treated fairly, as the crucial effect of the trauma of having been trafficked or fear of reprisals from traffickers would have been ignored in appraising their evidence. 2.89 As recognised by Silber J in R (on the application of SF): 120 R (on the application of SF) v Secretary of State for the Home Department [2015]  EWHC  2705 (Admin), [2016] 1 WLR 1439 at para 145. 121 R (on the application of SF) v Secretary of State for the Home Department [2015]  EWHC  2705 (Admin), [2016] 1 WLR 1439 at para 148; Home Office, Modern Slavery Act 2015 – Statutory Guidance for England and Wales (v 1.0, 24 March 2020), Annex D ‘Working with Vulnerable People’ at pp 103 and 104. 122 AB v Secretary of State for the Home Department [2015] EWHC 1490 (Admin) at paras 40–41. 123 Home Office, Modern Slavery Act 2015 – Statutory Guidance for England and Wales (v 1.0, 24 March 2020), pp 52 and 53. 124 Note the different approach of the criminal courts; see R  v N; R  v L  [2012]  EWCA  Crim 189, [2013]  QB  379 at para  86(a); and R  v Joseph [2017]  EWCA  Crim 36, [2017] 1  WLR  3153 at para  122. Although expert evidence in the criminal appellate courts was given weight in R  v JXP [2019] EWCA Crim 1280, 2019 WL 03290240 at para 55.

56

Expert evidence 2.94

‘these expert reports are not to be regarded as “trump cards” for the claimant, but they must be evaluated but if they are not accepted, explanations have to be put forward for rejecting them. The fact finder may well be helped by expert evidence explaining the difficulties confronting those who have been trafficked in putting forward a prompt and consistent claim by setting out the known reasons why trafficking victims might give inconsistent accounts or delayed accounts’125. 2.90 All expert evidence relied on should state the experience and qualifications of the person providing the evidence. If the evidence is from a medical practitioner, the practitioner should be qualified in the appropriate field. The report should refer to the relevant physical or mental health condition, when and how it has been diagnosed and why that condition and any treatment relating to it is relevant to human trafficking or modern slavery126. 2.91 The letter of instruction will be disclosable. 2.92 If there are clear, robust reasons why the reasonable or conclusive grounds test is not met, there is no requirement to accept the assessment of an expert report simply because it states that the reasonable or conclusive grounds test is met127. However, a reasons challenge can be mounted if the competent authority fails to provide robust reasons for rejecting the conclusions of the medical evidence. 2.93 The guidance notes that the individual writing the report may not have access to the full range of information available to the competent authority128. If the competent authority has additional information on which it intends to rely to reject the report of an expert, as a matter of fairness this should be disclosed, and the expert asked to comment prior to the decision. 2.94 The guidance also notes that ‘Any evidence supplied must be capable of being verified by the competent authority where appropriate’. It is therefore important that reports are properly and adequately sourced.Where the expert is giving their opinion as an expert, this should be made clear.There is a failure to 125 R (on the application of SF) v Secretary of State for the Home Department [2015]  EWHC  2705 (Admin), [2016] 1 WLR 1439 at para 156. 126 Home Office, Modern Slavery Act 2015 – Statutory Guidance for England and Wales (v 1.0, 24 March 2020), at pp 103 and 104. 127  Ibid. 128  Ibid.

57

2.95  Determination of trafficking status

understand that an expert is very often the ‘source’ of the information precisely because of their knowledge or expertise. Expert evidence is dealt with in Chapters 5, 7 and 10. 2.95 The competent authority is required to evaluate any expert evidence and decide how far it stands up to a proper evaluation129. In other words, the competent authority must ‘grapple with’ the evidence which requires the competent authority to recognise the conclusions of the report, engage with them and explain, if rejecting the report, however briefly why the competent authority disagreed with them’. A failure to do this will amount to a failure to have sufficient regard to policy, and irrationally failing adequately to take into account the expert opinion130.

Timing of decision 2.96 The decision should be taken within five days of receipt of the referral to the competent authority or ‘as soon as possible’ where the person is in detention131. A  failure to take a decision within this time may result in a victim being unlawfully detained132 or being unable to access rights to which he is entitled133. 2.97 A positive decision must be taken as soon as there is sufficient information to do so even if it is likely that further information will be provided. The same is not true of a negative decision. If it is likely the decision will be negative the competent authority is required to contact the first responder and/or support providers, police and local authority (as relevant), discuss the decision and give them the opportunity to provide any further information or evidence that is available134. In line with ECAT, a multi-agency collaborative approach is required135.

129 R (on the application of AA (Iraq)) v Secretary of State [2012] EWCA Civ 23 at 74, (2012) Times, 5 March. 130 AB v Secretary of State for the Home Department [2015] EWHC 1490 (Admin) at para 41. 131 Home Office, Modern Slavery Act 2015 – Statutory Guidance for England and Wales (v 1.0, 24 March 2020), pp 48, 49 and 106. Practitioners are of the view that it is intended that where a person is detained the decision will be prioritised and made more swiftly than the five days rather than the detention itself being used to suggest that it is not ‘possible’ to make a decision sooner. 132 See e.g. R  (on the application of XYL) v Secretary of State for the Home Department [2017]  EWHC  773 (Admin). 133 R (on the application of SF) v Secretary of State for the Home Department [2015]  EWHC  2705 (Admin), [2016] 1 WLR 1439 at para 107, there in the context of a conclusive grounds decision. 134 See R (on the application of CP (Vietnam)) v Secretary of State for the Home Department [2018] EWHC 2122 at para 67. 135 ECAT, Art 10(1).

58

Expert evidence 2.100

Relevance of criminal investigations to the NRM decision 2.98 A victim of trafficking will be a victim of crime136. It is not necessary for there to be an ongoing criminal investigation or proof that an offence has taken place to find that there are reasonable grounds to believe an individual is a victim of trafficking or slavery. 2.99 The competent authority guidance asserts that if there is no evidence of a crime or that the person requires time to decide whether to cooperate in a criminal investigation the competent authority is entitled to take this into account at the reasonable grounds stage. This approach is premature and inconsistent with the recognition in Art 13 of ECAT that a victim may require time to recover and escape the influence of the traffickers and/or to take an informed decision on cooperating with the competent authorities. If this approach is adopted by the competent authority, it could place undue pressure on a Pvot which is inconsistent with the approach stressed in both ECAT and the EU Trafficking Directive137. 2.100 Furthermore, decisions to prosecute are taken where the prosecutor is ‘satisfied that there is sufficient evidence to provide a realistic prospect of conviction’138. This entails making the jury or magistrate sure of the guilt of the defendant, or of proving their guilt beyond reasonable doubt. This test is significantly higher than ‘I suspect but cannot prove’ or the ‘balance of probabilities (see below), and therefore reliance on a decision not to prosecute as indicative that a person had not been trafficked would more than likely be unlawful139.

136 Prior to the commencement of the Modern Slavery Act 2015, Part 1, trafficking offences in the UK were contained in the following legislation: the Sexual Offences Act 2003, s 59A (as amended by the Protection of Freedoms Act 2012); the Asylum and Immigration (Treatment of Claimants) Act 2004, s 4 (as amended by the Protection of Freedoms Act 2012); the Criminal Justice (Scotland) Act 2003, s 22 (as amended by the Criminal Justice and Licensing (Scotland) Act 2010, s 46); the Criminal Justice and Licensing (Scotland) Act 2010, s 47. Part 1 of the Modern Slavery Act 2015 introduces the consolidated slavery and trafficking offences, tougher penalties and sentencing rules, ensures the main offences are subject to the toughest asset recovery regime under the Proceeds of Crime Act 2002, introduces bespoke slavery and trafficking reparation orders, and provides for the detention and then forfeiture of vehicles, ships and aircraft used for the purposes of trafficking. See also Home Office, Modern Slavery Act 2015 – Statutory Guidance for England and Wales (v 1.0, 24 March 2020) at p 5. 137 Preamble at (18). 138 The Code for Crown Prosecutors at para 4.5. 139 See e.g. R  (on the application of SF) v Secretary of State for the Home Department [2015]  EWHC  2705 (Admin), [2016] 1 WLR 1439 at paras 115–118.

59

2.101  Determination of trafficking status

Consequences of positive reasonable grounds decision 2.101 Where a positive reasonable grounds decision is made the person will be notified but will not receive reasons for that decision.The competent authority is also required to inform other relevant agencies of the decision including: •

the first responder;

•

the support provider and the Salvation Army, TARA or Migrant Help or Women’s Aid (depending on the location of the victim);

•

the local authority in the case of children.

Recovery and reflection period 2.102 A positive reasonable grounds decision should trigger support for a minimum of 45 days. This is known as the ‘recovery and reflection’ period140. ECAT, Art 12 requires that victims are assisted in their physical, psychological and social recovery, which should include at the least the following: •

standards of living capable of ensuring their subsistence, through such measures as: appropriate and secure accommodation, psychological and material assistance;

•

access to emergency medical treatment;

•

translation and interpretation services, when appropriate;

•

counselling and information, in particular as regards their legal rights and the services available to them, in a language that they can understand;

•

assistance to enable their rights and interests to be presented and considered at appropriate stages of criminal proceedings against offenders;

•

access to education for children.

2.103 The purpose of the recovery and reflection period is to enable the person concerned to recover and escape the influence of the traffickers and/or to take an informed decision on cooperating with the competent authorities. The period of time granted (unless a positive conclusive grounds decision is made: see below) must be sufficient to enable these objectives to be achieved141. A  foreign national potential victim of trafficking is protected during this 140 This period can be extended if necessary. 141 ECAT, Art 13(1).

60

Expert evidence 2.108

time from expulsion from the UK, shall be authorised to stay in the UK and will normally be granted either temporary admission or temporary release if necessary. 2.104 All potential victims of trafficking are entitled to the measures prescribed by ECAT, Art 12. The right to such support is not dependent on the victim reporting trafficking/slavery to the police, nor does it require there to be an active investigation. Many trafficking/slavery victims are extremely reluctant to report matters to the police because they are frightened of reprisals from their traffickers. 2.105 Decisions taken in providing such support and assistance must take account of the victim’s safety and protection needs. For example, the victim may need to be accommodated in a safe house away from the area in which he was found. 2.106 Victims lawfully resident within the territory are also entitled to medical and other assistance and access to the labour market, vocational training and education142. 2.107 The EU Trafficking Directive also requires assistance and support be provided to victims before, during and for an appropriate period of time after the conclusion of criminal proceedings143. Such assistance should commence as soon as there is a reasonable grounds indication for believing an individual might have been subject to an offence144 but must not be conditional on cooperation with any investigation, prosecution, or trial145. Support must consider the individual needs of the victims146 and be provided on a consensual basis147. 2.108 In both Scotland148 and Northern Ireland149 statutory provision for support and accommodation of victims of trafficking has been made. In both countries:

142 ECAT, Art 12(3) and (4). 143 EU Trafficking Directive, Art 11(1)–(2). 144 EU Trafficking Directive, Art 11(2). 145 EU Trafficking Directive, Art 11(3). 146 EU Trafficking Directive, Art 11(7). 147 EU Trafficking Directive, Art 11(5). 148 Human Trafficking and Exploitation (Scotland) Act 2015. 149 Human Trafficking and Exploitation (Criminal Justice and Support for Victims) Act (Northern Ireland) 2015.

61

2.109  Determination of trafficking status

•

support and accommodation are not conditional on cooperation, require consent, must consider safety and protection needs and must meet the assessed personal needs of the individual150;

•

the types of support referred to in ECAT,Art 12 are explicitly referenced151.

2.109 In Scotland the legislation provides for: •

mandatory provision of support and assistance from the date of a reasonable grounds decision until either the end of a period made in regulations152 or a negative conclusive grounds decision153;

•

a discretion to provide support prior to the reasonable grounds decision and at other times including after the conclusive grounds decision154.

2.110 In Northern Ireland: •

legislation provides for support and accommodation for at least 45 days (even if a negative decision is made within that time)155;

•

provision of support may continue even if the person leaves Northern Ireland156 or is determined on conclusive grounds not to be a victim of trafficking157;

•

specific provision is made for assistance and support for exiting prostitution158.

2.111 In contrast, in England and Wales, the statutory guidance issued under s 49(1) of the Modern Slavery Act 2015 sets out arrangements for providing assistance and support to victims, at both the reasonable and conclusive grounds stages159. 150 Human Trafficking and Exploitation (Criminal Justice and Support for Victims) Act (Northern Ireland) 2015, s 18(5); Human Trafficking and Exploitation (Scotland) Act 2015, s 9(1) and (5). 151 Human Trafficking and Exploitation (Criminal Justice and Support for Victims) Act (Northern Ireland) 2015, s 18(7); Human Trafficking and Exploitation (Scotland) Act 2015, s 9(4). 152 Human Trafficking and Exploitation (Scotland) Act 2015 (Support for Victims) Regulations 2018, SSI 2018/90. 153 Human Trafficking and Exploitation (Scotland) Act 2015, s 9(1)–(2), in force since 31 May 2016. 154 Human Trafficking and Exploitation (Scotland) Act 2015, s 9(3), in force since 31 May 2016. 155 Human Trafficking and Exploitation (Criminal Justice and Support for Victims) Act (Northern Ireland) 2015, s 18(3) and (4). 156 Human Trafficking and Exploitation (Criminal Justice and Support for Victims) Act (Northern Ireland) 2015, s 18(8). 157 Human Trafficking and Exploitation (Criminal Justice and Support for Victims) Act (Northern Ireland) 2015, s 18(9). 158 Human Trafficking and Exploitation (Criminal Justice and Support for Victims) Act (Northern Ireland) 2015, s 19. 159 Home Office, Modern Slavery Act 2015 – Statutory Guidance for England and Wales (v 1.0, 24 March 2020), Chapter 3.

62

Expert evidence 2.115

In addition, the Modern Slavery Act 2015 empowers the Home Secretary to make regulations relating to the provision of support and assistance to victims, but at the time of writing this provision is not yet in force160. 2.112 At the time of writing, there is a Bill pending before Parliament: the Modern Slavery (Victim Support) Bill [HL] 2019–21, which seeks to amend the Modern Slavery Act 2015 so as to create a statutory duty to provide support and assistance to potential victims of trafficking for 45 days and a further period of 12 months following confirmation of their status as a victim of trafficking. 2.113 The Modern Slavery (Victim Support) Bill aims to ensure: •

support for victims would be for at least 12 months, with further support on offer, following assessment;

•

leave to remain to support adult victims of modern slavery following conclusive grounds decision, to facilitate support;

•

a statutory duty on local authorities in respect of looked after children who are victims of trafficking, to have a safety plan in place, to consider the risk of re-trafficking and to take all reasonable steps to ensure accommodation provided to the child prevents re-trafficking161.

The Bill seeks to build on a concession by the Home Office in a judicial review challenge that its previous policy of limiting support to 45 days was unlawful162. 2.114 The police should be notified as soon as possible of a positive reasonable grounds decision and generally the competent authority should ask the police to notify prosecutors as soon as the decision is made. In the case of a child, the immediate priority is to safeguard the child and promote their welfare163.

Relevance of trafficking decisions in other proceedings 2.115 Chapter 7 considers the interplay of reasonable or conclusive grounds decisions with criminal proceedings, where the person referred is positively or negatively 160 The power to make regulations derives from the Modern Slavery Act 2015, s 50. 161 Modern Slavery (Victim Support) Bill (HL Bill 4) introduced in the House of Lords on 13 January 2020. 162 R (NN and LP) v Secretary of State for Home Department [2019] EWHC 1003 (Admin). 163 Home Office, Modern Slavery Act 2015 – Statutory Guidance for England and Wales (v 1.0, 24 March 2020), at p 68.

63

2.116  Determination of trafficking status

identified as a potential victim of trafficking, or conclusively is a victim of trafficking. 2.116 Chapter 10 sets out the relevance of a trafficking NRM decision in the asylum, human rights and immigration context. In summary, a negative decision on an asylum claim should not be made until after any conclusive grounds decision, as it may have a bearing on the decision.This does not preclude the Home Office making a positive decision (for example, if all nationals of a particular country qualify for protection there would be no reason to delay a grant of protection). 2.117 The relationship between a trafficking decision made by the competent authority and a determination by the FTT has attracted a significant amount of controversy in recent years164. In MS (Pakistan)165, the Supreme Court confirmed that the FTT, when determining a statutory appeal, must determine for itself the factual question of whether a person is a trafficking victim, albeit giving due weight to a decision-making authority’s prior determination. The Tribunal is not bound by the decision of the competent authority, nor does it need to find public law grounds for finding such a decision flawed. The Tribunal has a statutory jurisdiction to hear appeals166, which are intended to involve hearing evidence and determining factual issues167. Competent authority decisions will be relevant, but the Tribunal cannot ignore relevant evidence, especially where it post-dates the trafficking decision. 2.118 Chapter 11 considers in detail the consequence of this decision in the context of immigration detention and bail. In summary, where a positive reasonable grounds decision has been made the decision should be recorded on the Case Information Database. The Home Office will need to consider whether to grant immigration bail and leave to remain for the 45-day period, unless the person already has leave to remain of some form for the same period or more168. The guidance is clear that a potential victim of trafficking will normally need to be released on temporary admission or temporary release unless the detention can be justified on the grounds of public order.This is a very different test to the usual test for immigration detention. See Chapter 11 for further detail. 164 See AUJ (Trafficking – no conclusive grounds decision) Bangladesh [2018]  UKUT  00200 (IAC); ES (s82  NIA  2002; negative NRM) Albania [2018]  UKUT  00335 (IAC); R  (MN) v Secretary of State for the Home Department [2018] EWHC 3268 (QB) at paras 57–62; DC (trafficking: protection/human rights appeals) Albania [2019] UKUT 00351, at paras 34–36. 165 MS (Pakistan) v Secretary of State for the Home Department [2020] UKSC 9. 166 See the Nationality, Immigration and Asylum Act 2002 and the Immigration Rules. 167 On the general role of the Tribunal as factfinder, see Huang v Secretary of State for the Home Department [2007] UKHL 11, discussed at paras 12–14 of MS (Pakistan). 168 The power to grant temporary admission and temporary release has been replaced by a single power to grant immigration bail, pursuant to the Immigration Act 2016.

64

Expert evidence 2.122

Negative reasonable grounds decision 2.119 Where a decision is negative a second appropriately trained caseworker or manager must review the decision. If the person has claimed asylum the second decision-maker must not be directly involved in the asylum decision169. 2.120 The consequences of a negative decision are very serious for a victim. The account is dismissed as so incredible that the person is not entitled to the limited protections of the recovery and reflection period: a short time and safe space designed to enable a victim to obtain psychological, practical and legal advice which could in turn enable them to participate more fully in the determination process before a conclusive grounds decision is reached170. 2.121 In practice, a person accommodated by a support agency will be required to leave their accommodation. It is therefore imperative that the potential victim of trafficking obtains legal advice as soon as possible as to whether there are grounds to challenge the decision. The decision itself can only be challenged by way of judicial review as it is not an immigration decision which can be brought within an appeal171.

Request to reconsider the decision 2.122 First responders can ask the competent authority to review a negative decision172. Until late 2019, the competent authority’s policy restricted the ability to make a reconsideration request only to first responders. No allowance was made in policy for reconsideration request by legal advisers. Following a judicial review challenge, R (on the application of DS) v Secretary of State for the Home Department173, the Administrative Court held that it was unlawful to require trafficking victims to seek reconsideration only through their allocated first responder or NRM support provider as that impairs the protective obligation on the state to identify and protect trafficking victims. As a result, the competent authority has now

169 The competent authority may similarly review positive decisions but is not required to do so. 170 R (on the application of Hoang) v Secretary of State for the Home Department [2015] EWHC 1725 (Admin), [2015] All ER (D) 228 (Jun). 171 MS (Pakistan) v Secretary of State for the Home Department [2020] UKSC 9 at paras 7 and 12. 172 Home Office,Victims of modern slavery – Competent Authority guidance (21 March 2016) p 91. 173 R (on the application on DS) v Secretary of State for the Home Department [2019] EWHC 3046 (Admin).

65

2.123  Determination of trafficking status

reflected this in the statutory guidance174. Legal advisers should be proactive in making requests for reconsideration and provide additional evidence if necessary. A  refusal to review a decision requested by a representative is potentially incompatible with the requirement on the state to identify victims of trafficking as soon as a credible allegation is received. For example, if a reasonable grounds decision was made on the basis of a lack of indicators and the legal representative had evidence of additional indicators, the competent authority should not simply refuse to accept the evidence because it had not arrived through specified channels. In R(DS) v Secretary of State for the Home Department175, the Court held that the competent authority policy of rejecting requests to reconsider negative decisions from individuals that were not designated as first responders was unlawful. The Court held that the NRM process plainly and correctly included a discretionary power to reopen negative decisions, and that discretion had to be exercised in accordance with the duty to identify victims. That was a continuing duty, to be performed of the state’s own motion. Therefore, relevant evidence casting doubt on the correctness of a prior negative decision should not be disregarded. The Court held to do otherwise would be to dilute to protection afforded to victims under ECHR, Art 4176.

Conclusive grounds decision Standard of proof 2.123 The standard of proof for a conclusive grounds decision is the balance of probabilities177. The test applied is whether ‘on the balance of probabilities’, ‘there are sufficient grounds to decide that the individual being considered is a victim of human trafficking or modern slavery’. The guidance means that the competent authority must consider that it is more likely than not that trafficking or modern slavery has ‘happened’. It is important to remember that the purpose of the trafficking does not have to have been achieved for a person to qualify178.

174 Home Office, Modern Slavery Act 2015 – Statutory Guidance for England and Wales (v 1.0, 24 March 2020), at pp 129–131. 175 R (on the application of DS) v Secretary of State for the Home Department [2019] EWHC 3046 (Admin); [2019] 11 WLUK 220. 176 Ibid paras 67–69, 72, 80, 84–85. 177 See R  (MN) v Secretary of State for the Home Department [2018]  EWHC  3268 (QB) where the Administrative Court rejected the argument that it is wrong for the competent authority to apply the balance of probabilities to the conclusive grounds stage. Permission to appeal has been granted in this case and at time of publication it was due to be heard before the Court of Appeal. 178 Home Office, Modern Slavery Act 2015 – Statutory Guidance for England and Wales (v 1.0, 24 March 2020) at p 16.

66

Conclusive grounds decision 2.125

2.124 The guidance demands a high standard of reasoning from the competent authority, and rightly demands that if a decision is to turn on a lack of credibility, the competent authority must carefully analyse the relevant factors and explain its reasoning about credibility in its decision179.

Assessment 2.125 At the conclusive grounds stage the competent authority is required to take into account every factor telling in favour of the potential victim of trafficking180. The guidance requires the competent authority to have before it all ‘necessary information’ before making a negative decision.The statutory guidance notes181: ‘If the SCA cannot make a Conclusive Grounds decision based on the evidence available, they must gather evidence or make further enquiries during the recovery and reflection period. The SCA must request more information from the following parties involved in the case as far as it is reasonable to do so and give them the opportunity to provide any further information before taking the decision: •

The First Responder Organisation

•

Adult Safeguarding Services (where engaged in the case of adults)

•

Child Social Services or the equivalent body in Northern Ireland (where engaged in the case of children)

•

ICTG (where appointed)

•

The VCC support provider (where appointed)

•

The relevant police force

The SCA may also seek information from other support providers or other persons involved in assisting the victim where appropriate. In cases where it is likely that the person will be issued a negative Conclusive Grounds decision, the SCA should ensure all relevant questions have been asked. This might include asking another frontline agency, the 179 R (on the application of M) v Secretary of State for the Home Department [2015] EWHC 2467 (Admin) at para 55. 180 R (on the application of SF) v Secretary of State for the Home Department [2015]  EWHC  2705 (Admin), [2016] 1 WLR 1439 at para 130. 181 Home Office, Modern Slavery Act 2015 – Statutory Guidance for England and Wales,’ (v 1.0, 24 March 2020) at pp 111 and 112.

67

2.126  Determination of trafficking status

potential victim’s legal representative or the support provider to obtain further information or answers to any outstanding questions on behalf of the SCA as appropriate. Some of the indicators on the referral form may not be apparent on the initial encounter but may become clear later, for example during any subsequent interviews with an interpreter and/or at a safe location (for example in a police station). The SCA should be mindful of any ongoing process which may be able to provide additional information. The SCA must also take into account any expert reports submitted, particularly those from qualified health practitioners. See Views of experts during the NRM process. The SCA should also take into account objective country of origin information and other published information from a trusted source relating to known or emerging patterns of modern slavery.’ 2.126 To make its decision, it must weigh the strength of the indicators or evidence presented, including the credibility of the claim, and use common sense and logic based on the circumstances of each case. 2.127 An investigation into whether the individual is a victim of trafficking should then be undertaken. Under both ECAT and ECHR, Art 4 there is a clear obligation to investigate potential situations of trafficking. This is not simply a criminal investigation, as suggested by the Court of Appeal in R  (on the application of H)182, but an investigation designed to determine the status and protection needs of the victim183. 2.128 The individual should have the opportunity to deal with adverse inferences prior to a decision being made. This may require an interview. Adverse inferences should be put to the individual in writing where an interview could have a detrimental impact, and the benefits of an interview must be balanced against the potential to re-traumatise the victim184.

182 R (on the application of H) v Secretary of State for the Home Department [2016] EWCA Civ 565, [2016] Imm AR 1272 at para 39. 183 J v Austria (2017) App No 58216/12 at paras 109–111. 184 Home Office, Modern Slavery Act 2015 – Statutory Guidance for England and Wales (v 1.0, 24 March 2020) at p 113.

68

Conclusive grounds decision 2.132

2.129 Where the victim is a witness in an ongoing prosecution any interview should be conducted by an officer who is Achieving Best Evidence (‘ABE’) trained. It is important that the competent authority is not seen to offer or appear to offer potential inducements to the victim, as these could undermine the credibility of any evidence obtained and adversely affect the prosecution’s likelihood of a conviction185. 2.130 Children should be interviewed only if absolutely necessary and, in any event, only by trained specialist child protection police or social work professionals186. The competent authority should avoid interviewing a child for the purpose of reaching a decision under the NRM if: •

there are specialists in other agencies capable of doing so;

•

the modern slavery issues have already been clarified as part of the asylum process.

2.131 As with the reasonable grounds decision, before the competent authority reaches a negative conclusion, it must first refer back to the first responder or other expert witnesses to clarify any inconsistencies in the claim187. See credibility section (at paras 2.74–2.84 above) regarding reasonable grounds decisions as this section applies equally to the making of conclusive grounds decisions.

Timing of decision 2.132 The expectation is that a conclusive grounds decision will be made as soon as possible following the recovery and reflection period. However, the actual timescale will be based on all the circumstances of the case188. In practice, there are significant delays189 in the process of making conclusive grounds decisions, although the High Court has considered that they are not so significant and widespread as to be unlawful190 185 Ibid pp 72, 78, 92. 186 Ibid pp 97 and 98. 187 Ibid p 98. 188 Ibid pp 110, 112 and 113. 189 See, for example, NRM statistics published by the competent authority for the end of 2019 show that over 8,000 cases are still awaiting a conclusive grounds decision. Available at: https://assets.publishing. service.gov.uk/government/uploads/system/uploads/attachment_data/file/876646/national-referralmechanism-statistics-uk-end-of-year-summary-2019.pdf, last accessed 5 August 2020. 190 R (O and H) v Secretary of State for the Home Department [2019] EWHC 148.

69

2.133  Determination of trafficking status

Consequences of positive conclusive grounds decision 2.133 If a positive decision is made, the individual will be recognised either as ‘a victim of modern slavery (human trafficking)’ or as ‘a victim of modern slavery (slavery, servitude or forced and compulsory labour)’191. 2.134 Where the decision relates to an adult, the decision will be served on the individual or their representative. A decision should not be served on a child under any circumstances, but on their representative. Additionally, the decision should be served on the first responder, any relevant support provider and any relevant local authority, and in the cases of children, the Independent Child Trafficking Guardian, where appointed192. 2.135 As with a reasonable grounds decision, the competent authority must notify the police and ask the police to notify the Crown Prosecution Service as soon as the decision is made193. 2.136 Article 14 of ECAT requires states to make provision for the grant of a residence permit. This is incorporated into domestic law via policy. The policy guidance in force at the time of writing is Discretionary leave considerations for victims of modern slavery (v 2.0) published on 10 September 2018194. In PK (Ghana)195, the Court of Appeal found that the previous version of the policy guidance was unlawful because it did not reflect Art 14 of ECAT, because it imposed too high a threshold for when discretionary leave may be granted owing to a victim’s person situation. The correct test is whether leave is ‘necessary’ owing to the person’s situation, not ‘compelling’. The policy guidance has been amended to reflect this. 2.137 Discretionary leave to remain (‘DLR’), also known as ECAT leave, will be considered automatically where the individual has received a positive conclusive grounds decision. Discretionary leave to remain may be granted owing to: 191 Ibid p 8. 192 Ibid pp 124 and 125. 193 Ibid p 125. 194 Home Office, Discretionary leave considerations for victims of modern slavery (v 2.0, 10  September 2018) available at: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_ data/file/739436/dl-for-victims-of-modern-slavery-v2.pdf, last accessed 5 August 2020. 195 R (on the application of PK (Ghana)) v Secretary of State for the Home Department [2018] EWCA Civ 98.

70

Conclusive grounds decision 2.140

•

Personal circumstances where a grant of leave to a recognised victim is necessary for the UK to meet its obligations under ECAT to provide protection and assistance to that victim, owing to their personal situation196;

•

Pursuing compensation where this results in a need to stay in the UK197;

•

Helping police with enquiries where the person has agreed to cooperate with the enquiry and the police make a formal request for leave to be granted198.

2.138 ‘Personal circumstances’ is perhaps the most disputed of these grounds with the Home Office demonstrating reluctance to recognise the vulnerability and ongoing needs of victims of trafficking and the lack of ability to return in dignity and safety. 2.139 There is a broad discretion about whether to grant DLR and if so for how long199. The period of leave will depend on the individual facts of the case and should be for time required, without further grants of discretionary leave being necessary in most cases. However, leave should normally be granted for a minimum of 12 months, and normally no more than 30 months. Shorter or longer periods may be granted if the facts of the case justify it, in accordance with the discretionary leave guidance200. Provision is made for the grant of indefinite leave to remain where a longer period of leave to remain is appropriate, for example, because it is in the best interests of a child or because there are other particularly exceptional compelling or compassionate reasons in the case201. 2.140 Mishandling of a claim by the competent authority is a factor that should be considered when determining the period of leave to be granted202. Where 196 Home Office, Discretionary leave considerations for victims of modern slavery (v 2.0, 10 September 2018), at pp 7 and 8. 197 See e.g. R v Chief Immigration Officer, ex p Quaquah [2000] HRLR 325; R (on the application of Byndloss) v Secretary of State for the Home Department [2017]  UKSC  42, [2017] 1  WLR  2380 for examples of presence being required to pursue civil proceedings and the types of difficulties that result from litigating from abroad. See also Home Office, Discretionary leave considerations for victims of modern slavery (v 2.0, 10 September 2018), at p 8. 198 Home Office, Discretionary leave considerations for victims of modern slavery (v 2.0, 10 September 2018) at pp 8 and 9. 199 IT (Sierra Leone) v Secretary of State for the Home Department [2010]  EWCA  Civ 787 at 15; R  (on the application of Alladin) v Secretary of State for the Home Department [2014] EWCA Civ 1334, [2015] Imm AR  237 at 53; R  (on the application of FT) v Secretary of State for the Home Department (‘rolling review’; challenging leave granted) [2017] UKUT 331 (IAC) at 65. 200 Home Office, Discretionary leave considerations for victims of modern slavery (v 2.0, 10 September 2018) at p 16. 201 Home Office, Asylum Policy Instruction: Discretionary Leave (August 2015) sections 5.3–5.4. 202 R (on the application of FT) v Secretary of State for the Home Department [2017] UKUT 331 (IAC) at 74.

71

2.141  Determination of trafficking status

expert medical evidence demonstrates that a particular period of leave to remain is required to undertake treatment, the decision-maker is required adequately to engage with that material and, in exercising their discretion take into account and afford appropriate weight to those conclusions203. 2.141 However, if the trafficking experience took place some time ago, or if support could be accessed in another country, the competent authority is entitled to take those factors into account in determining whether the victim requires a grant of leave to remain in the UK. The policy guidance states that in considering whether grant leave, decision-makers may: ‘consider that the UK’s international obligations do not extend to a requirement that treatment must be provided by specialists in trafficking, or that it be targeted towards one aspect of an individual’s needs (the consequences of trafficking) as opposed to his or her overall psychological needs as set in the case of EM  v SSHD. In brief, the support duty calls for the provision of support, not that the person is supported until they achieve full physical, psychological or social recovery’204. 2.142 The case of EM205 was a judicial review challenge to the provision of services to potential victims of trafficking, detained at immigration removal centres during their recovery and reflection period. The Court of Appeal held that it was lawful for the state to use its discretion to provide support to those in detention differently to those in the community. The obligations considered by the Court were those under Arts 10,12 and 13 of ECAT and Art 11 of the EU  Directive, not the Art 14  ECAT obligation to issue a residence permit where it is necessary owing to their personal situation, or necessary for the purpose of their co-operation with the competent authorities in investigation or criminal proceedings. We would suggest that the policy guidance appears to conflate the different duties owed to potential victims and those with positive conclusive grounds decisions. The legal obligations are distinct. Furthermore, we would suggest where an accepted victim of trafficking required a particular form of care, support or treatment sin order to recover, and that is well supported by expert evidence, it would be difficult to see how the competent authority could rationally conclude that a period of discretionary leave was not necessary. 203 Ibid at 97, noting it was irrational to grant leave for the purpose of obtaining medical treatment for a shorter period than necessary to undertake that treatment. 204 Home Office, Discretionary leave considerations for victims of modern slavery (v 2.0, 10 September 2018), at p 8. 205 R (EM) v Secretary of State for the Home Department [2018] EWCA Civ 1070.

72

Conclusive grounds decision 2.147

Negative conclusive grounds 2.143 Where a negative conclusive grounds decision is made, the competent authority must send a reasoned decision to the victim and notify the first responder, support provider and local authority (where relevant)206. As with a reasonable grounds decision, the competent authority must notify the police and ask the police to notify the Crown Prosecution Service as soon as the decision is made207. 2.144 Any relevant immigration issues will need to be concluded and practitioners should note that it is open to the Immigration and Asylum Chamber of the Tribunal to reach its own decisions as to whether a person is a victim of trafficking, requires leave to remain to avoid a human rights breach208, is a refugee or otherwise in need of protection. 2.145 Assisted voluntary return may be requested at any point in the process by a person who does not wish to remain in the UK. Following a negative conclusive grounds decision the Home Office must inform the individual of this opportunity and the options available to make a voluntary return209. The individual should be notified of any programmes specifically aimed at victims of modern slavery210. 2.146 As set out at para  2.123 above, there remains a discretion to reconsider the identification decision and this request does not need to arise from the first responder.

Challenging negative decisions 2.147 Legal challenges to negative reasonable and conclusive grounds decisions are brought in the Administrative Court by way of judicial review211. Challenges to 206 Home Office, Modern Slavery Act 2015 – Statutory Guidance for England and Wales (v 1.0, 24 March 2020), at pp 124 and 125. 207  Ibid. 208 Most commonly ECHR, Art 3, 4 or 8. 209 Note that not all schemes apply to all potential victims, for example in criminal cases. 210 Home Office, Modern Slavery Act 2015 – Statutory Guidance for England and Wales (v 1.0, 24 March 2020) at pp 158 and 159; see www.gov.uk/return-home-voluntarily for more information. 211 This includes immigration cases (where otherwise judicial review proceedings would be commenced in the Upper Tribunal) because a negative reasonable grounds decision is not related to the Immigration Acts and is explicitly stated not to be an immigration decision: Home Office, Victims of modern slavery – Competent Authority guidance (21 March 2016) p 55.

73

2.148  Determination of trafficking status

refusals to issue residence permits are also by way of judicial review but should be brought in the Upper Tribunal212. An application for anonymity under the Civil Procedure Rules, r 39.2 should be made. A claim challenging the negative conclusive grounds decision must be made promptly and in any event within three months of the decision.

Multi-Agency Assurance Panels (‘MAAPs’) 2.148 The MAAPs form part of the revised decision-making process. The MAAPs are required to review all negative conclusive grounds decisions made by the competent authority across England, Wales, Scotland and Northern Ireland. They do not review negative reasonable grounds decisions. 2.149 The statutory guidance makes clear that the MAAPs do not hold a decisionmaking role: ‘their role is to consider all negative conclusive grounds decisions, assessing the information available to the decision-maker at the time they made the decision, confirm whether they agree that the decisionmaker has made the decision in line with the guidance, and that the evidence provided and used in the decision-making process has been appropriately weighed and considered. The MAAP chair records and documents the outcome of the discussion, detailing the reasons why there may be a disagreement with the decision made by the SCA. This is then emailed back to the SCA. The final decision regarding the conclusive grounds decision remains the responsibility of the competent authority. MAAPs do not have the ability to overturn negative conclusive grounds decisions made by the SCA. The MAAPs have the ability to ask the competent authority to review a case, where they consider that the decision has not been made in line with the existing competent authority decision; that, in the MAAPs view, evidence that would add value and clarity has not been sought; or that the evidence that had been provided and used in the decisionmaking process was not appropriately weighed and considered. The 212 Such decisions ‘otherwise relating to leave to enter or remain in the United Kingdom outside the immigration rules’ (see Consolidated Direction given in accordance with the Constitutional Reform Act 2005, Sch 2, Part 1 and the Tribunals, Courts and Enforcement Act 2007, s 18, available at www. judiciary.gov.uk/wp-content/uploads/2013/10/lcj-direction-jr-iac-21-08-2013-updated-2.pdf).

74

Conclusive grounds decision 2.152

competent authority will review this feedback; however, the final decision whether further consideration is required, and if so whether the outcome should be different ultimately lies with the SCA.’213 2.150 Any judicial review brought against a negative conclusive grounds decision should not delayed pending a MAAP review. As the guidance provides MAAPs are not decision-makers and cannot overturn a competent authority decision. However, it may be good practice to seek a copy of the MAAPs review if judicial review proceedings are to be brought or during the proceedings.

Victims who go missing 2.151 Victims who go missing present problems for practitioners, including in respect of Legal Aid and instructions. As a matter of good practice, you should seek a retainer and your client’s instructions about what he wishes you to do if those circumstances were to arise214. 2.152 In cases involving persons who go missing where a decision on either reasonable or conclusive grounds has not yet been taken and: •

the evidence available is insufficient to meet the relevant standard of proof; and

•

it is not possible to gather more information because the victim is missing,

the competent authority is required to take the following steps215: (i)

Action 1: report the potential victim of human trafficking or modern slavery as a vulnerable missing person to the police and arrange for a missing person marker to be added to the police national computer. The decision maker should also confirm that the Local Authority Safeguarding Children Service, in the case of missing children, or the Local Authority Adult Safeguarding Service in the case of an adult victim, have been informed;

213 Home Office, Modern Slavery Act 2015 – Statutory Guidance for England and Wales (v 1.0, 24 March 2020), at p 116. 214 There is no requirement to obtain fresh instructions at each stage of proceedings (see e.g. Donsland Ltd v Hoogstraten [2002] EWCA Civ 253, [2002] PNLR 28 at para 19, per Tuckey LJ). However, there may be specific issues on which specific instructions are required. In general, it is likely that a judicial review relating to an historic decision (e.g. a reasonable or conclusive grounds decision) could be concluded, but any associated damages claim would have to be stayed. 215 The steps are the same at both the reasonable and conclusive grounds stages. See Home Office, Modern Slavery Act 2015 – Statutory Guidance for England and Wales (v 1.0, 24 March 2020), at pp 126 and 127.

75

2.153  Determination of trafficking status

(ii) Action 2: notify the following that the case has been suspended: •

first responder;

•

the support provider (all supported adult and family cases) (and the Salvation Army if support was being provided in England and Wales);

•

the local authority (in the case of children);

•

the Independent Child Trafficking Guidance, where appointed in the case of child victims;

•

the relevant Home Office immigration casework team (where they are involved) so that the victim is recognised as potentially at risk if they are encountered again.

(iii) Action 3: if the potential victim is the subject of criminal proceedings, several agencies need to be notified as soon as the reasonable or conclusive grounds decision is suspended.The competent authority must ensure that the police (in Scotland, the National Human Trafficking Unit) are notified of the suspended reasonable or conclusive grounds decision as soon as they make it. Generally, the competent authority should ask the police to notify prosecutors (the Crown Prosecution Service) (or the Crown Office and Procurator Fiscals Service in Scotland or Prosecution Service in Northern Ireland) of the suspended reasonable or conclusive grounds decision as soon as they make it216; (iv) Action 4: Competent authority staff must record the case as suspended, indicating whether it is. Where appropriate, competent authority staff should ensure that Home Office immigration casework teams are aware of the issue of modern slavery so that the person is recognises as potentially at risk if they are encountered again. 2.153 The guidance for both reasonable and conclusive grounds decisions also states that if ‘sufficient information’ is available a decision should be made. Considering the above it is clear that the policy intended that only positive decisions would be made as it is not possible to gather more information where a person has gone missing217. 2.154 Furthermore, we would suggest that if the decision-maker does not know why the person has gone missing, it is entirely possible that he may have been retrafficked. In many cases a victim will turn up months later in a cannabis farm 216 Ibid at p 127. 217 In practice, UK Visas and Immigration is currently also making negative decisions in such circumstances. We would suggest that this is generally in breach of its own policy save in the most exceptional cases.

76

Conclusive grounds decision 2.156

or a brothel218. In TDT v SSHD219, the Court of Appeal considered the Home Secretary was in breach of ECHR, Art 4 duties in a case involving a suspected Vietnam child victim of trafficking who had disappeared following his release to an address of a Buddhist temple (as opposed to safe house accommodation). Similarly, in CP (Vietnam) v SSHD220 the Administrative Court was concerned with the Home Secretary’s failure to identify and protect an individual, a Vietnamese national, who had went missing from his release address. The Court of Appeal, in the context of a criminal appeal, has taken a precautionary approach when considering cases where victims have gone missing221. In such circumstances an order should be sought, at the very least, agreeing a set of minimum standards and actions should the individual be discovered, e.g. that they will be treated as a potential victim of trafficking, their legal representative/ support provider will be notified, they will not be removed for a specified period of time etc. 2.155 The competent authority guidance also states that ‘If someone who has claimed asylum goes missing it may be appropriate to treat their claim as withdrawn.’222 We disagree and suggest that the asylum claim should be stayed pending the reappearance of the victim, for the same reasons.

Asylum seekers 2.156 Where a person is referred to the NRM and has an asylum claim no decision should be taken on the asylum claim pending resolution of the NRM process223. This does not prevent the Home Office from conducting status interviews. A status interview technically is an interview to determine identity, nationality or citizenship and immigration status in the UK. The current interpretation by both the Home Office and the courts is that there is nothing to prevent an asylum interview taking place prior to completion of the identification224. 218 See e.g. ‘Heading Back to Harm: A  study on trafficked and unaccompanied children going missing from care in the UK’ (ECPAT and Missing People, November 2016) reporting that over 25% of trafficked children in the UK went missing, available at www.ecpat.org.uk/heading-back-to-harm-astudy-on-trafficked-and-unaccompanied-children-going-missing-from-care-in-the-uk, last accessed 6 December 2017. 219 TDT v SSHD [2018] EWCA Civ 1395. 220 CP (Vietnam) v SSHD [2018] EWHC 2122 (Admin). 221 R v Okedare [2014] EWCA Crim 228, [2014] 1 WLR 4071 at paras 23–34. The Administrative Court has taken a similar approach in judicial review proceedings – however, those cases are unreported. 222 Home Office, Modern Slavery Act 2015 – Statutory Guidance for England and Wales (v 1.0, 24 March 2020), at p 126. 223 Home Office, Modern Slavery Act 2015 – Statutory Guidance for England and Wales (v 1.0, 24 March 2020), at pp 127 and 128. 224 R (on the application of XYL) v Secretary of State for the Home Department [2017] EWHC 773 (Admin) at para 22, see also Home Office, Enforcement and Instructions Guidance ch 9, at 8.1.

77

2.157  Determination of trafficking status

2.157 The statutory guidance recognises that Home Office staff may encounter potential victims of trafficking during the screening and substantive asylum interview stages. Such asylum claimants may be reluctant to go into much detail about the full facts of their case225. Home Office staff are referred to the guidance on reluctance to self-identity. Questions must be open and without assumptions, and interviewers should be careful not to cause undue distress during interviews. Home Office staff are referred to the guidance on ‘interviewing people who experienced trauma’ and ‘trauma-informed practice’226. The statutory guidance recognises that ‘it would not be appropriate to conduct a full interview at the screening stage.’ The statutory guidance further provides: ‘There are no minimum indicators required for making an NRM referral. At the substantive interview stage, interview questions must be open and without assumptions to establish what happened. Each officer should engage their professional curiosity to understand the needs of the individual – identifying potential vulnerabilities early in the process will likely significantly influence how that person is managed, both in terms of the need of any immediate safeguarding steps but also in the longer term in respect of decisions around their application. If staff consider the person is a potential victim of modern slavery they should act as the First Responder and follow the steps on handling potential victims of modern slavery including referral to the NRM. However, responding appropriately to discharge their duty of care could be as simple as alerting a line manager, speaking to a colleague for advice, or referring to a senior case worker, officer in charge or Vulnerability Champion in first instance.’227 As there is often an overlap between the reasons the individual is seeking asylum and the trafficking, all the reasons why it may not be appropriate to interview a potential victim of trafficking logically equally apply to the asylum interview. Therefore, we are of the view that, unless significant and appropriate modifications are made to the process, interviewing asylum applicants prior to a rest and recovery period is unsafe.

225 Home Office, Modern Slavery Act 2015 – Statutory Guidance for England and Wales (v 1.0, 24 March 2020), at pp 78 and 79. 226  Ibid. 227  Ibid.

78

Conclusive grounds decision 2.161

2.158 Specialist immigration advice should be sought if the potential victim of trafficking is subject to the Dublin Regulations.Where an individual is an asylum seeker subject to the ‘third country’ procedures under Dublin III Regulation (EU) No 604/2013, the UK is required to provide support and protection in the UK while their trafficking or modern slavery case is considered under the NRM. The duty to identify arises when a credible allegation arises. If a person is a victim or potential victim of trafficking positive obligations arise under both ECAT and ECHR, Art 4228. In principle, the two procedures can and do run parallel to each other. Practitioners should note that referral under the NRM process does not suspend time limits for the purposes of ECAT, Art 27229. 2.159 At the time of writing, the statutory guidance does not include contain guidance on handling of cases where a potential victim of trafficking is also an asylum seeker subject to the ‘third country’ procedures under the Dublin III Regulation230. The Home Office Dublin III Regulation guidance231 continues to refer to now revoked competent authority and frontline staff guidance; it has not been updated to cross-refer to the statutory guidance.

Historical victims 2.160 In circumstances where an individual has experienced trafficking a long time ago or prior to coming to the UK or on their journey, they still require identification and protection under the NRM232. 2.161 Where trafficking has occurred overseas the competent authority must in any event pass any details of the alleged trafficking or exploitation to the NRM Intelligence Hub so they can consider raising it with the authorities in 228 J  v Austria (2017) App No  58216/12. In R  (on the application of BG) v Secretary of State for the Home Department [2016] EWHC 786 (Admin), [2016] Imm AR 928 Cranston J rejected an argument that once a reasonable ground decision had been made this overrode the requirements of the Dublin II Regulation because it was a ‘residence permit’. 229 At the time of writing permission on this point has been granted but not determined in CO/1758/2016. 230 EU Regulation 604/2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person. 231 Home Office, Dublin III Regulation (v 2.0, 18 April 2019) at p 25. Available at: https://assets.publishing. service.gov.uk/government/uploads/system/uploads/attachment_data/file/797216/Dublin-IIIregulation-v2.0ext.pdf, last accessed 5 August 2020. 232 R (on the application of Atamewan) v Secretary of State for the Home Department [2013] EWHC 2727 (Admin), [2014] 1 WLR 1959 at 69–80.

79

2.162  Determination of trafficking status

the country where the offence was committed.This is to ensure that the Home Office’s obligations under ECAT, Art 27 are met233.

Common grounds of challenge to negative identification decisions 2.162 The failure to incorporate ECAT directly into UK law means that it is not directly effective. Any challenge to decisions made by the competent authority will be based on general public law principles, including a failure to apply the published policy. As the policy was published to give effect to ECAT it: ‘should be taken to have intended to protect the victim’s rights, combat trafficking and promote international co-operation (the objectives identified in the Convention) and to promote a human rights based approach’234. 2.163 The standard of review has been the subject of much debate235. As trafficking and slavery cases involve fundamental rights (both in themselves and in the consequences flowing from positive recognition) the rationality of a gateway decision that a person is not the victim of trafficking requires a more heightened or a more rigorous level of scrutiny, both because it relates to fundamental rights and also because it arises in an area in which a court has the requisite knowledge. Consequently, the competent authority needs to ensure decisions show by their reasoning that every factor which tells in favour of the applicant has been properly taken into account236. 2.164 Further, given the nature of the guidance, and the level of detail that it provides in relation to the consideration of credibility in trafficking claims, a high standard of reasoning is required from the competent authority in order to demonstrate

233 Home Office, Modern Slavery Act 2015 – Statutory Guidance for England and Wales (v 1.0, 24 March 2020), at pp 104 and 105. 234 R (on the application of Hoang) v Secretary of State for the Home Department [2015] EWHC 1725 (Admin), [2015] All ER (D) 228 (Jun) at para 53. 235 R (on the application of SF) v Secretary of State for the Home Department [2015]  EWHC  2705 (Admin), [2016] 1 WLR 1439 at paras 84–107. 236 R (on the application of SF) v Secretary of State for the Home Department [2015]  EWHC  2705 (Admin), [2016] 1 WLR 1439 at para 104.

80

Common grounds of challenge to negative identification decisions 2.165

a careful and conscientious analysis of the relevant factors which have to be taken into account when assessing credibility237. 2.165 Broadly speaking the court can consider legality, rationality and procedural impropriety. The most common grounds of review in trafficking cases include: •

errors of law or fact238;

•

failure to give reasons239;

•

substantive unfairness240;

•

failure to take into account material considerations/taking into account immaterial considerations;

• irrationality241; •

breach of policy242;

•

breaches of human rights (ECHR, Arts 4 and 8 most commonly arising in trafficking claims).

237 R (on the application of Hoang) v Secretary of State for the Home Department [2015] EWHC 1725 (Admin), [2015]  All ER (D) 228 (Jun) at para  48; R  (on the application of FK) v Secretary of State for the Home Department [2016] EWHC 56 (Admin) at para 27. 238 For mistake of fact see E v Secretary of State [2004] QB 1044, per Carnwath LJ at 66, p 1071: ‘66. In our view, the time has now come to accept that a mistake of fact giving rise to unfairness is a separate head of challenge in an appeal on a point of law, at least in those statutory contexts where the parties share an interest in co-operating to achieve the correct result. …Without seeking to lay down a precise code, the ordinary requirements for a finding of unfairness are apparent from the above analysis of CICB. First, there must have been a mistake as to an existing fact, including a mistake as to the availability of evidence on a particular matter. Secondly, the fact or evidence must have been “established”, in the sense that it was uncontentious and objectively verifiable. Thirdly, the appellant (or his advisers) must not have been responsible for the mistake. Fourthly, the mistake must have played a material (not necessarily decisive) part in the Tribunal’s reasoning’. 239 Lord Carnwath (with whom Moore-Bick and Etherton LJJ agreed) in R  (on the application of YH) v Secretary of State [2010] EWCA Civ 116, [2010] 4 All ER 448 at 24 explained ‘the need for decisions to show by their reasoning that every factor which tells in favour of the applicant has been properly taken into account’.’ See also R  (on the application of SF) v Secretary of State for the Home Department [2015] EWHC 2705 (Admin), [2016] 1 WLR 1439 at para 104. 240 See e.g. E v Secretary of State for the Home Department [2004] EWCA Civ 49, [2004] QB 1044, where unfairness resulted from a misunderstanding or ignorance of a relevant fact. 241 See R (on the application of SF) v Secretary of State for the Home Department [2015] EWHC 2705 (Admin), [2016] 1  WLR  1439 at para  180 citing R  (on the application of M) v Secretary of State for the Home Department [2015] EWHC 2467 (Admin), in which it was held to be irrational to accept the claimant’s evidence showing one of the requirements was satisfied but then reject the same evidence in respect of another aspect of the definition. 242 A  failure by a public authority to follow its own established policy without good reason can be an error of law: Lumba v Secretary of State [2011] UKSC 12, [2012] AC 245. See R (on the application of M) [2015] EWHC 1725 (Admin) at 53 for breach of policy in a trafficking case.

81

2.166  Determination of trafficking status

2.166 The question whether the correct legal test has been applied is one of ‘substance not semantics’243. This means it is not sufficient for the competent authority to merely state that it has applied the correct test; it must also do so in practice. 2.167 A victim of trafficking is entitled to understand how the competent authority guidance has been applied244. 2.168 There is a contentious issue as to whether the failure to identify and investigate results in a public authority acting in a way which is incompatible with a Convention right under Art 4, which is unlawfulness proscribed by the Human Rights Act 1998, s 6(1)245. The Court of Appeal has indicated that this merely requires a police investigation where relevant and is not the responsibility of the ‘Secretary of State for the Home Department’ acting as the ‘Competent Authority’246. However, this appears to be based on a misunderstanding of the interrelationship between the National Crime Agency and the Home Office as ‘competent authorities’ and the requirements of the protective limb of Art 4 as subsequently clarified in J v Austria247. We are of the view that R (on the application of H) is an incorrect statement of the law. 2.169 If a challenge is successful the court will not (absent exceptional circumstances) substitute its own view of the merits of a decision but will instead ‘quash’ the decision and remit it to the competent authority to retake248.

243 R (on the application of Hoang) v Secretary of State for the Home Department [2015] EWHC 1725 (Admin), [2015] All ER (D) 228 (Jun). 244 R (on the application of FK) v Secretary of State for the Home Department [2016] EWHC 56 (Admin) per Dove J at para 32. 245 See Lord Hoffmann in Miss Behavin’ v Belfast City Council [2007] 1 WLR 1420 at 14 and 15, as applied in R (on the application of SF) v Secretary of State for the Home Department. 246 R (on the application of H) v Secretary of State for the Home Department [2016] EWCA Civ 565, [2016] Imm AR 1272. 247 J v Austria (App No 58216/12) (17 April 2017). 248 See e.g. R (on the application of FT) v Secretary of State for the Home Department [2017] UKUT 331 (IAC).

82

3 Age disputes in immigration and criminal proceedings Shu Shin Luh

Introduction 3.1 The United Nations Declaration on the Rights of the Child 1959 and the UN Convention on the Rights of the Child 1989 (‘UNCRC’) both require that a child enjoy special protection1. The guiding principle for safeguarding and promoting the welfare of children is contained in UNCRC, Art 3: ‘In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child should be of primary consideration.’ The principle of ‘best interests’ appears repeatedly throughout the UNCRC, for example in Arts 9, 18, 20 and 21. Whilst the UNCRC is not directly incorporated into the domestic law article by article in their exact terms, the aims of the UNCRC and the best interests approach to affording children special protection are recognised across the different areas of law, including social welfare, education, immigration and crime2. The special protection afforded under the UNCRC and in domestic law is predicated on an individual being in fact a child. 3.2 Article 1 of the UNCRC defines a child as a human being who is under the age of 18. The UK’s domestic law adopts the same definition in almost all circumstances, although criminal law makes a distinction between those who 1 For discussion, see R (on the application of HC) v Secretary of State for the Home Department [2013] EWHC 982 (Admin), [2014] 1 WLR 1234. 2 See ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4, [2011] 2 AC 166; R (on the application of HC) v Secretary of State for the Home Department [2013]  EWHC  982 (Admin), [2014] 1 WLR 1234; R (on the application of Mathieson) v Secretary of State for Work and Pensions [2015] UKSC 47, [2015] 1 WLR 3250; R (on the application of SG) v Secretary of State for Work and Pensions [2015] UKSC 16, [2015] 1 WLR 1449.

83

3.3  Age disputes in immigration and criminal proceedings

are children and those who are young persons (persons of 16 and 17 years of age) for the purposes of how they are dealt with in the youth justice system. 3.3 Often, age has a significant bearing on how the state approaches different aspects of a child’s social, emotional and developmental existence. Age is itself an immutable characteristic. Determining a person’s age, however, is not an easy forensic task, particularly in the context of children who arrive in the UK unaccompanied or trafficked. 3.4 Age disputes commonly arise in circumstances where putative children arrive unaccompanied in the UK to seek asylum or other forms of international protection, or where they are trafficked to the UK for the purposes of exploitation3. These children often have no identifying information on them. In other cases, their documents may be false, or they may have been told to lie about their age to evade the attention of the authorities4. Some may also have been given a false history by their traffickers or agents, which may include a false date of birth showing that they are adults in order to make it easier to provide them with false identity documents and to facilitate their travel5. There are then some who do have some documentary evidence corroborative of their claimed age, but the evidence may require translation or need to have its provenance verified, having regard to information about the manner in which the document was issued and by whom. 3.5 This chapter will look at the following issues: •

the importance and relevance of age in domestic law;

•

how age is assessed;

•

the approach to be taken by the courts and tribunals.

3 See for example, the first three appellants in the linked appeals in R v L [2013] EWCA Crim 991, [2014] 1 All ER 113. 4 See Kent Safeguarding Children Board, ‘Safeguarding children who may have been trafficked guidance’ (October 2011), available at: https://www.kscmp.org.uk/__data/assets/pdf_file/0016/33433/ Safeguarding-children-who-may-have-been-trafficked.pdf, last accessed 5  August 2020, and report: ‘Heading back to Harm’, ECPAT UK and Missing People (November 2016). 5 ECPAT, ‘UK’s Submission to the Joint Committee on Human Rights inquiry into the human rights of unaccompanied migrant children and young people in the UK’ (2012) para 36.

84

Importance and relevance of age in the context of social welfare law 3.8

Importance and relevance of age in the context of social welfare law 3.6 The Supreme Court has held in R (on the application of A) v Croydon London Borough Council6 that a person’s age is an objective fact which admits only a right or a wrong answer7. It is not a matter of subjective evaluation by an individual decision-maker, and certainly not a summary one without proper inquiries. The precedent fact of age is a gateway decision that unlocks access to the child of child-centred accommodation, support, and special protection in the immigration and youth justice context. 3.7 The A  v Croydon case itself concerned a local authority children’s services department, which was obliged to provide an unaccompanied asylum-seeking child with accommodation and support under the Children Act 1989, s  20 because there was no-one with parental responsibility and no family or friend able to take care of the child. Section 105 of the Children Act 1989 defines a child objectively as someone under 18. If a person is a child, it unlocks a host of special protections that adult asylum-seekers cannot access. 3.8 Children who are taken into ‘voluntary care’, as s 20 accommodation is often described, are entitled to a suite of further special protection measures from the local authority. The authority is obliged to: •

arrange accommodation suitable to the child’s needs and age;

•

make educational provision for the child, whether the child is of statutory school age or beyond;

•

support the child to access legal representation for immigration advice; and

•

care for the child generally as a reasonable parent would do.

Once accommodated, the child is considered ‘looked after’ by the local authority under the Children Act 1989, s  22. The duty to promote and safeguard all aspects of the child’s welfare is engaged and requires a best interests approach to care planning for the child.

6 [2009] UKSC 8, [2009] 1 WLR 2557. 7 Per Lady Hale at [27] and [33], Lord Hope at [52]–[54].

85

3.9  Age disputes in immigration and criminal proceedings

3.9 Accommodation arrangements are often highly dependent on the child’s age. Whilst there are no hard and fast rules and arrangements should be made in accordance with the child’s needs, children aged 15 and under tend to be placed in foster care, whereas 16- and 17-year-olds tend to be placed in supported lodgings. 3.10 Educational placements are also determined by the precise age of the child. For example, children under 16 are of statutory school age, and the local authority, acting as corporate parent, is obliged in law to enrol the looked after child in education, whether in a school or otherwise in an alternative facility. There are continuing duties to promote the child’s educational achievement beyond statutory school age if the child is looked after by the local authority. 3.11 The duties owed to ‘looked after’ children who are in voluntary care continue beyond the child’s  18th birthday. When they turn 18, if they have been looked after by the local authority, whether under a care order or under s 20 accommodation arrangements for 13 weeks or more, with at least one day being when the child is over the age of 16, they acquire status as former relevant children (defined under the Children Act 1989, s 23C(1)). Under s 23C(4), they continue to receive assistance from the local authority. The assistance given can include continued suitable accommodation arrangements in accordance with the former relevant child’s needs, support to access education and vocational training and general advice and assistance, as a reasonable parent would provide for a child transitioning into adulthood. See paras 1.8 and 1.10 of the Children Act 1989 Guidance and Regulations: Transition to Adulthood8. These leaving care duties continue until at least the former relevant child’s 21st birthday and, in circumstances where they remain in education or are returning to education, the duties can continue up to the former relevant child’s 25th birthday.

Importance and relevance of age in the context of immigration law 3.12 The objective fact of age also plays a significant role in the context of the Home Office’s exercise of immigration powers, both in the context of decisions relating to the grant or refusal of leave to remain in respect of children and in the context of decisions to detain. 8 Department for Education (revised January 2015).

86

Importance and relevance of age in the context of immigration law 3.15

3.13 In all decisions concerning children, the Home Office is obliged to have due regard to the need to safeguard and promote the welfare of the child pursuant to the Borders, Citizenship and Immigration Act 2009, s  55. Section 55(6) defines children as those under the age of 18. Section 55 came into being after the UK lifted its reservation on the UNCRC in respect of immigration matters concerning children.The language of s 55 mirrors the obligation owed by local authorities, health authorities, police, and the youth offending team under the Children Act 2004, s 11. 3.14 Specific immigration rules recognise and afford the special protection status required by children. For example, para 350 of the Immigration Rules9 requires that in the case of unaccompanied children, priority and care is given to the handling of their cases. Paragraphs 352 and 352ZA set out the requirements for undertaking asylum interviews with children, including the requirement that the child be given an opportunity to have an appropriate adult present for the interview. Only decision-makers who have received specialist training can make decisions in asylum claims from children, and they must also observe a wealth of guidance on the different approach to be taken to assessing the credibility of child asylum seekers, having regard to the child’s age and maturity and recognising that more weight may need to be given to objective evidence than to the child’s subjective fears. 3.15 More importantly, in the context of immigration detention, by an amendment to the detention powers, the Immigration Act 1971, Sch 2, para 18B now prohibits the detention of an individual who is objectively and in fact a child. Deprivation of such a child’s liberty would constitute a false imprisonment whether or not the Home Office reasonably believed or suspected him to be an adult at the time10.Where a dispute about age arises, the Home Office’s policy is to presume that the person is a child (albeit age disputed) pending inquiries unless, and only unless the person’s physical appearance very strongly suggests that he is 25 years of age or over. This is a clarification from the Home Office’s previous policy which provided a basis to treat a putative child as an adult if their physical appearance and demeanour strongly suggested they were significantly over 18. ‘Significantly over 18’ was not defined and led to inconsistent application on the part of immigration officers. The lack of clarity was challenged in R (BF) v Secretary of State for the Home Department.11 The Court of Appeal criticised the lack of clarity and held that the ‘significantly over 18’ policy should only apply 9 Published 29 February 2016. 10 R (on the application of Ali) (Sudan) v Secretary of State for the Home Department [2017] EWCA Civ 138, [2017] 1 WLR 2894. 11 [2019] EWCA Civ 872, [2020] 4 WLR 38.

87

3.16  Age disputes in immigration and criminal proceedings

in obvious cases. The Court of Appeal’s finding is consistent with what Munby J (as he then was) held in R (on the application of A) (disputed children) v Secretary of State for the Home Department12, in the context of group litigation relating to the immigration detention of age disputed asylum-seeking children: ‘Plainly the matter [as to age] cannot rest on the mere assertion, however obviously ludicrous, of the asylum seeker. If, for example, I was to present myself – an obviously middle-aged, some might say elderly, man – at Heathrow and claim to be a child, my claim to be a child would rightly be rejected on the spot. But other cases may be far less clear cut and may take time to resolve. So the Secretary of State has to have a policy’. Further to the BF judgment, the Home Secretary introduced the clarification now in the policy which specifies 25 years old as the bright line as to when the benefit of doubt must be applied and when a putative child can be treated as an adult.

Importance and relevance of age in the context of youth justice 3.16 The importance of establishing the right answer as to the objective fact of age is self-evident in the youth justice context. In General Comment No 10 (2007) on Children’s Rights in Juvenile Justice13, the Committee on the Rights of the Child stated that children differ from adults in their physical and psychological development, and their emotional and educational needs. Such differences constitute the basis for the lesser culpability of children in conflict with the law. These and other differences are the reasons for a separate juvenile justice system and ‘require a different treatment for children’. The protection of the best interests of the child may mean that the traditional objectives of criminal justice, such as repression/retribution, must give way to rehabilitation and restorative justice objectives in dealing with child offenders14.

12 [2007] EWHC 2494 (Admin) at para [5]. 13 CRC/C/GC/10 (25  April 2007), available at http://docstore.ohchr.org/SelfServices/FilesHandler. ashx?enc=6QkG1d%2fPPRiCAqhKb7yhsqIkirKQZLK2M58RF%2f5F0vEZN%2bo3pfhJYL%2b% 2fo2i7llJgP6EjqSGKnB2CPSr6g7ed2P0M8AO57Tg1kfwde7vhIIwc0tRQLDmAZWHVA9bVwzD%2b, last accessed 6 December 2017. 14 The Supreme Court has held that the General Comments of the CRC provide ‘authoritative guidance’ on the effect of the provisions of the CRC: R (on the application of Mathieson) v Secretary of State for Work and Pensions [2015] UKSC 47, [2015] 1 WLR 3250 at [39], endorsing R (on the application of SG) v Secretary of State for Work and Pensions [2015] UKSC 16, [2015] 1 WLR 1449 at [105]–[106].

88

Importance and relevance of age in the context of youth justice 3.18

3.17 Articles 37 and 40 of the UNCRC are of importance in this context, as the former deals with detention and the latter with juvenile justice15: ‘17.1 Article 37(a) provides that “no child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time”. Article 37(c) provides that, “every child deprived of liberty shall be treated with humanity and respect for the inherent dignity of the human person, and in a manner which takes into account the needs of persons of his or her age”. 17.2 This is echoed in Article 40 which in essence provides that any child of under 18 accused of, or guilty of, breaking the law must be treated with dignity and respect, and they have a range of minimum procedural rights which must be provided in a manner which takes account of their age and situation. Article 40(2)(b) describes the seven bare minimum requirements (“at least the following guarantees”), including the right to have the matter determined by a competent, independent and impartial authority or judicial body in a fair hearing according to the law, bearing in mind the best interests of the child, taking into account his or her age or situation; and the right to have his or her privacy fully respected at all stages of the proceedings. 17.3 Article  40(3) requires that State parties shall seek to promote the establishment of laws, procedures, authorities and institutions specifically applicable to children, rather than treating them in the same manner and through the same mechanisms as adult suspects or adult offenders’. 3.18 Domestic law concerning youth justice has also long recognised the need to have regard to a child’s welfare. The principal aim of the youth justice system is to prevent offending by young people, as enshrined in the Crime and Disorder Act 1998, s 27(1).Thus, the approach to youth defendants is necessarily different. ‘Child’ and ‘young person’ have technical meaning within the criminal justice 15 The essential safeguards in the UNCRC concerning children in conflict with the law are supplemented by many other specific instruments. See e.g. The United Nations Standard Minimum Rules for the Administration of Juvenile Justice (‘the Beijing Rules’ 1985); the United Nations Guidelines for the Prevention of Juvenile Delinquency (‘the Riyadh Guidelines’); the United Nations Rules for the Protection of Juveniles Deprived of their Liberty (‘the Havana Rules’); the UN Guidelines for Action on Children in the Criminal Justice System (‘the Vienna Guidelines’, 1997); and the UN Model Strategies and Practical Measures on the Elimination of Violence against Children in the Field of Crime Prevention and Criminal Justice (2014).

89

3.19  Age disputes in immigration and criminal proceedings

framework. A ‘child’ is defined as someone under the age of 14 years16. A ‘young person’ is someone who has attained 14 but not yet 18. The age of criminal responsibility is 10 years old17. Sentencing guidelines are often guided by age. The fact of age is significant for how the criminal justice system deals with a person, as is evident from the following.

Decision to prosecute 3.19 The Crown Prosecution Service has detailed guidance (The CPS:Youth Offenders) on prosecuting young defendants. The public interest test for prosecution demands different considerations than in the context of an adult, requiring the CPS to make a decision which considers the best interests and welfare of both the accused and the victim (if the latter is also a child): see Chapters 4 and 5.

First appearances 3.20 The child’s first court appearance in respect of an offence will be in the youth court unless the case is an exceptional one where he is jointly charged with an adult; charged with aiding and abetting an adult to commit an offence (or vice versa); or charged with an offence which arises out of circumstances which are the same as (or connected with) those which resulted in the charge faced by an adult accused. The child has no right to elect a Crown Court trial and can only be sent to the Crown Court if the magistrates have decided that they should not accept jurisdiction. Even then, the Crown Court has power to put in place additional safeguards in the trial process. These include, generally, the exclusion of the public, reporting restrictions and the attendance of parent or guardian if a juvenile is under 16. See Chapter 8 for further special measures.

Bail 3.21 Although the criteria for granting bail under the Bail Act 1976 are virtually the same for adults and children, there are several important differences which put the primacy of protection of the welfare of the child at their heart. For example, the court has a discretion to refuse bail where this is necessary for a juvenile’s

16 Children and Young Persons Act (‘CYPA’) 1933, s 107(1) and CYPA 1963, s 70(1). 17 CYPA 1933, s 50.

90

Importance and relevance of age in the context of youth justice 3.23

welfare or protection18. A parent or guardian may be asked to act as surety as a condition of bail19. 3.22 What bail package a person can access for a meritorious bail application can also turn on the fact of age.A lone child, for whom no one has parental responsibility, will necessarily meet the criteria for local authority accommodation under the Children Act 1989, s 20.Through theYouth Offending Team, the child defendant could seek to access accommodation with accompanying wrap-around support to meet their full range of needs. Being in the local authority’s care would – in and of itself – provide a great measure of assurance of compliance with bail conditions. All this would put the child in good stead for a meritorious application for bail and likely grant of bail. 3.23 Even if bail is refused to a child, the court approaches remand significantly differently for children as opposed to adults. If bail is withheld from a child20, he is remanded to local authority accommodation or to youth detention accommodation21. This includes 17-year-olds who, under the previous framework under the Children and Young Persons Act 1969, could be remanded to an adult prison. The Legal Aid, Sentencing and Punishment of Offenders Act (‘LASPO’) 2012, ss  98–102 also strengthened protections for youth defendants, setting a more rigorous threshold for the court to satisfy before a child can be remanded to youth detention accommodation instead of local authority secure accommodation. These provisions marked a significant step in recognising the importance of differentiating the needs and welfare issues relating to youth offenders as compared to adult offenders, acknowledging the importance of safeguarding the welfare of all children under 1822 and the material difference in restrictions between a youth detention and local authority secure accommodation environment. All these contribute to creating a child-sensitive justice system which ensures effective participation of the child in the trial process irrespective of the nature and gravity of the offence. A lone putative child, wrongly deemed to be an adult, self-evidently will be deprived of these precautionary and protective measures.

18 Bail Act 1976, Sch 1, para 1. 19 Bail Act 1976, s 3(7). 20 Child, for the purposes of LASPO 2012, means a person under the age of 18: s 91(6). 21 LASPO 2012, ss 91–107. 22 See R (on the application of HC) v Secretary of State for the Home Department [2013] EWHC 982 (Admin), [2014] 1 WLR 1234.

91

3.24  Age disputes in immigration and criminal proceedings

Mode of trial 3.24 The great majority of juveniles are tried and sentenced in youth courts, which are, by virtue of the Children and Young Persons Act (‘CYPA’) 1933, s 45, a special subset of the magistrates’ courts and a court of summary jurisdiction. Youth courts sit for the purpose of hearing any charge against a child or a young person or for the purpose of exercising any other jurisdiction conferred on youth courts by or under any Act. There is a statutory assumption that the youth court is the most appropriate forum to try youth defendants, having regard to the best interests and welfare of the child, the importance of a child’s effective participation and a fair trial. This manifests in the material difference in trial environment and process in the youth court as compared to adult courts.Youth courts are essentially private places; members of the public are not allowed in and there are reporting restrictions23. Victims of crime can attend youth court hearings if they want to but must make a request of the court if they wish to do so. Magistrates hearing cases in the youth court receive training to approach the trial process in a child-centred manner notwithstanding the gravity of crimes which may come before them. Importantly, the youth court has jurisdiction to try offences which, in the case of an adult, are triable only on indictment (except for homicide and certain firearms offences). Whereas an adult may never be tried summarily for an offence triable only on indictment and has a right to elect trial on indictment for an offence triable either way, a child may be (and normally is) tried summarily for an indictable offence, whatever their wishes as to mode of trial may be.The youth defendant, in other words, has no right to elect a Crown Court trial and if sent to the Crown Court for trial this is only because the magistrates have decided that they should not accept jurisdiction. 3.25 If the court gets the answer to age wrong (i.e. in its determination of age before a decision on mode of trial) this may result in a putative child, wrongly deemed to be an adult, being committed to the Crown Court to be tried by a jury in circumstances where, had the correct facts as to age been ascertained, the Crown Court would have no lawful jurisdiction over the putative youth defendant. The adverse consequence is compounded by the Crown Court having no statutory power to remit the youth defendant’s case back to the youth court for trial. 3.26 Once the youth court has declined jurisdiction and the matter has presented itself to the Crown Court, it stays in the Crown Court, irrespective of whether 23 CYPA 1933, ss 47 and 49.

92

Assessing age 3.28

the factual basis of committal no longer exists or was wrong, flawed, and unreliable.Thus even in a case where committal to the Crown Court was solely on the basis of deemed adulthood (which was factually wrong and renders the committal invalid), the Crown Court is unable to remedy the invalid committal by remitting the youth defendant back to a specialist court designed specifically with youth defendants in mind.The Crown Court can, of course, make its own assessment of the youth defendant’s age but can only use its powers to direct such special measures as may be required. The trial would still proceed in the Crown Court. This means that the onus for redressing the prejudice caused falls heavily (and almost exclusively) on the defendant if the court’s inquiry of age was legally flawed or factually wrong. The only tangible way by which the youth defendant could re-access the youth court is by way of a successful judicial review against the youth court’s decision to commit the case, predicated on an unlawful and factually erroneous finding of adulthood.

Assessing age 3.27 There is no proven scientific process by which age can be precisely determined. Dental and wrist x-rays have long been criticised for the wide margin of error both by courts and by the Royal College of Paediatrics and Child Health in 1999 and again in 2004. Most recently, in R  (on the application of ZM) v Croydon London Borough Council24, the Upper Tribunal acting as a judicial review court concluded that age cannot be accurately assessed from dental x-rays and maturity. 3.28 As long ago as 2003, local authority children’s services developed a pro forma identifying the domains of inquiries relevant to a more holistic determination of a person’s age, adopting a model from the needs assessment framework which focuses on child development. This model acknowledges that physical appearance and demeanour are highly risky and unreliable factors for determining age. This is acknowledged to be particularly so in borderline cases where the young person falls between 16 and 20 years’ old because of ethnic, cultural, and situational influences that may make certain people appear older than their actual age25. Indeed, the notes to the pro forma developed by local authorities to assess age highlight under guidance notes to the heading ‘Physical Appearance, Demeanour’ that these factors can only serve as initial indicators of age and do not determine and end the process of inquiry: 24 [2016] UKUT 559 (IAC). 25 R (on the application of CJ) v Cardiff County Council [2011] EWHC 23 (Admin), [2011] LGR 301 at [129]. In R (on the application of HBH) v Secretary of State for the Home Department [2009] EWHC 928 (Admin), the Administrative Court held that the methodology used to assess HBH’s age was flawed because the court relied on an assessment limited to his appearance and demeanour.

93

3.29  Age disputes in immigration and criminal proceedings

‘An initial hypothesis of age range is formed based on height, facial features (facial hair, skin lines / folds etc) voice tone and general impression. It is important to consider racial differences here e.g. It is normal in some cultures for boys to have facial hair at an early age and for girls to develop at different ages. Life experiences and trauma may impact on the aging process, bear this in mind. Demeanour, it is essential to take account of how the person presents, style, attitude and authority and relate this to the culture of the country of origin and events preceding [sic] the interview, journey experiences etc. It is useful to establish the length of time that the person has taken to arrive in the UK from the time they left their country of origin and include this into the age calculation’. 3.29 Local authority guidance on assessing age has been refined by case law over more than a decade.This led to the development of core common and accepted principles for the factual inquiry into age going beyond a determination of age based on physical appearance and demeanour. The principles, often referred to as the ‘Merton guidelines’26, are summarised in MVN  v London Borough of Greenwich27: ‘30.1 The assessment must be a holistic one and must start with an open mind, with no imposition on the child to prove his age. 30.2 Assessments of age should normally be carried out by two assessors in the first place because two heads are better than one. 30.3 The assessment may need to be undertaken over a period of time because it is important for the assessors to first establish a rapport with the putative young person. This is even more important in cases of potential trafficking where mistrust of authorities or fear of repercussion from traffickers may delay disclosure. 30.4 Physical appearance and demeanour are notoriously unreliable factors not determinative of age. Thus, except in clear cases, age cannot be determined solely from appearance. 26 Named after the case of R (on the application of B) v Merton London Borough Council [2003] EWHC 1689 (Admin). 27 [2015] EWHC 1942 (Admin).

94

Assessing age 3.30

30.5 Cultural, ethnic, and racial context of the young person being assessed must be considered as these may reflect in their presentation as well as their descriptions of their lives. 30.6 General credibility is not to be determinative of age. It is more likely that a young person who tells a consistent account of his life which supports his claimed age will be the age he claims to be. Conversely, young people may lie for reasons unrelated to age but related to their claims for protection or the reasons they had to leave their country of origin. 30.7 The child should be afforded the benefit of the doubt where evidence can tip one way or the other. 30.8 Local authority decision-makers, as well as courts, should take everything material into account. The source of information will frequently go well beyond that of the individual and include objective evidence of the country context and expert testimony. 30.9 Credibility assessments should not be carried out in isolation without considering other relevant evidence such as reports regarding a country that corroborates a person’s explanation of their understanding of age. 30.10 All available evidence must be assessed in the round. 30.11 Safeguards should be in place to ensure the young person understands the purpose of the interview. 30.12 If the decision-maker forms a view that the young person may be lying, he should be given the opportunity to address the matters that may lead to that view. Adverse provisional conclusions as to a putative child’s age should be put to him, so that he may have the opportunity to deal with them and rectify misunderstandings. 30.13 The local authority is obliged to give reasons for its decision, although these need not be long or elaborate’. 3.30 These well-trodden principles have now been adopted and enshrined in a comprehensive set of practice guidance published by the Association for Directors of Children’s Services (‘ADCS’), published in April 201528. The guidance was developed over more than three years of consultation with stakeholders, including the Home Office, children’s rights charities, the Children’s Commissioner, social workers, and lawyers representing age dispute claimants. 28 ADCS, Age Assessment Guidance (October 2015), available at http://adcs.org.uk/assets/documentation/ Age_Assessment_Guidance_2015_Final.pdf, last accessed 6 December 2017.

95

3.31  Age disputes in immigration and criminal proceedings

3.31 The ADCS has also agreed and published a joint protocol with the Home Office on the process by which age disputes are to be determined where they arise in the immigration context (most frequently in the context of immigration detention)29.The protocol was agreed and published in recognition of the importance and relevance of age to a breadth of areas of a putative child’s life and decision-making by state authorities. The objective of the joint working protocol is to ensure a consistent approach. In that protocol, the Home Office acknowledges the expertise of social workers in carrying out assessments having regard to child development and well-being, and the default position will normally be for the local authority to do an assessment where that is deemed necessary.The Merton framework for assessing age and that set out in the ADCS guidance are accepted by the Home Office to be the standard for a proper age assessment. 3.32 The only comparable equivalent guidance in the criminal justice context are the Crown Prosecution Service’s Youth Offenders Guidance30 and the CPS Guidance on prosecuting victims of trafficking.The CPS Youth Offenders Guidance states as follows: ‘Determining Age Where anyone is brought before any court and it appears that they are a child or young person, the court shall make due enquiry as to their age, and the age presumed or declared by the court is deemed to be their true age: section 99 Children and Young Persons Act 1933 and section 150 Magistrates’ Courts Act 1980. The statutory provisions for sentencing also refer to the age of the defendant on conviction. Such age will be deemed to be that which it appears to the court to be after considering any available evidence: section 164(1) Powers of the Criminal Courts [(Sentencing)] Act 2000. The sentence or order will not be invalid if it is subsequently established that the defendant is in fact a different age that makes him or her ineligible for such a sentence: R v Brown [1989] CLR 750. The Court should consider any evidence of age that is available at the hearing of the case.Where there is a dispute as to age which is material, it is better for the court to adjourn for more detailed inquiries if there is any doubt about the matter: R v Steed 1990.31 29 ADCS/Home Office, Age Assessment: Joint Working Guidance (June 2015), available at www.gov.uk/ government/uploads/system/uploads/attachment_data/file/432724/Age_Assessment_Joint_Working_ Guidance__April_2015__Final_agreed_v2_EXT.pdf (last accessed 6 December 2017). 30 Available at www.cps.gov.uk/legal/v_to_z/youth_offenders/#a41 (last accessed 6 December 2017). 31 (1990–91) 12 Cr App Rep (S) 230, [1990] Crim LR 816.

96

Approach to be taken by a court to determine age 3.35

Prosecutors should assist the court by: — adducing relevant documents that indicate a date of birth such as a list of antecedents, PNC printout, custody record, copies of passports, identity cards; — inviting the court to hear oral evidence from the defendant and any accompanying adult(s) as to the age of the defendant and cross examining where such evidence is inconclusive or inconsistent with other evidence, including the defendant’s appearance and demeanour. — Where the defendant appears to have entered the UK without satisfactory evidence of identity and age, additional evidence should be available from UKBA or the local authority. R on the application of R v London Borough of Merton [2003] EWHC 1689 (Admin) gives guidance to local authorities on the conduct of an assessment of age of a person claiming to be under 18, which includes guidance on assessing appearance and demeanour, credibility, social history and family composition, education, developmental considerations, ethnic and cultural background. See also the Immigration Law Practitioners Association Publications: When is a child not a child? Asylum, age disputes and the process of age assessment, and chapter 3 of Working with Refugee Children: Current Issues in Best Practice.’ 3.33 The CPS guidance on prosecuting victims of trafficking expands on the above guidance by specifically highlighting the need for due inquiries to be made under the CYPA 1933, s 99, explicitly stating that any dispute of age ought to be addressed at the first court appearance. If that did not happen, the guidance directs the CPS to consider the matter at the Plea and Case Management Hearing (now Plea and Trial Preparation Hearing), clearly acknowledging and highlighting the importance of age, particularly in the context of defendants who may have been child victims of trafficking. 3.34 There is no comparable guidance issued for Youth Offending Teams, although they are statutorily the responsibility of local authority children’s services, and thus the ADCS guidance which local authority children’s services are obliged to follow ought also to be applied to Youth Offending Teams.

Approach to be taken by a court to determine age in a social welfare and immigration law context 3.35 In R (on the application of A) v Croydon London Borough Council, the Supreme Court held in relation to ‘the question whether a person is a “child”’ that: 97

3.36  Age disputes in immigration and criminal proceedings

‘there is a right or a wrong answer. It may be difficult to determine what the answer is. The decision-makers may have to do their best on the basis of less than perfect or conclusive evidence. But that is true of many questions of fact which regularly come before the courts. That does not prevent them from being questions for the courts rather than for other kinds of decision-makers’32. 3.36 There is no statutory process in the context of social welfare or immigration law for determining age. Therefore, the A  v Croydon judgment is significant. Because of the Supreme Court’s judgment, the Administrative Court is now seised of the jurisdiction through judicial review to determine the objective fact of a putative child’s age where local authority obligations and immigration powers are engaged. 3.37 That the primary remedy is judicial review, however, does not dictate the issue for the court to decide or the way in which it should do so.The public authority, whether the children’s services authority or the Home Office, must make its own determination in the first instance and it is only if this is disputed that the court may have to intervene. As Lady Hale observed in A v Croydon, ‘the better the quality of the initial decision-making, the less likely it is that the court will come to any different decision upon the evidence’33. However, and ultimately, if there is a disagreement over the factual answer arrived at by the local authority (or the Home Office), the putative child may apply for permission to bring a judicial review in the Administrative Court to resolve the dispute. 3.38 The task of the Administrative Court is not to determine whether the local authority’s or the Home Office’s assessment of age is right or wrong but, rather, the more fundamental question – how old is the child?34 This requires a factfinding exercise on the basis of all the evidence made available to the court. There is no burden on either the child or the public authority to prove the correctness of their assertion on age35. As the claim is brought by way of judicial review, the child applicant still needs to satisfy the Administrative Court that the case is arguable to obtain permission to proceed to trial.The test for permission is as formulated by the Court of Appeal in R (on the application of FZ) v Croydon London Borough Council36: 32 [2009] UKSC 8, [2009] 1 WLR 2557 per Lady Hale at [27]. 33 Ibid per Lady Hale at [33]. 34 R  (on the application of F) v Lewisham London Borough Council [2009]  EWHC  3542 (Admin), [2010] 1 FLR 1463. 35 R (on the application of CJ) v Cardiff County Council [2011] EWHC 23 (Admin), [2011] LGR 301, above. 36 [2011] EWCA Civ 59, [2011] PTSR 748.

98

Approach of criminal court to age disputes 3.41

‘whether the material before the court raises a factual case which, taken at its highest, could not properly succeed in a contested factual hearing. If so, permission should be refused. If not, permission should normally be granted, subject to other discretionary factors, such as delay.’ 3.39 Because it is rarely the case that the fact of age can be determined by documentary evidence, the Court at trial will receive a range of evidence, much of which will be opinion evidence from professionals as well as lay persons who have had contact over time with the putative child. This includes, for example, key workers, foster carers, volunteers at charitable organisations, counsellors, social workers, and medical professionals. The putative child would normally give evidence unless he is unable to do so. In R (MVN) v Greenwich LBC37 the judge held that an age assessment of a putative child was unlawful, inter alia, because the local authority had failed to consider the Home Office Guidance38 to competent authorities on victims of human trafficking. 3.40 In practice, the judicial review court has not exerted exclusive jurisdiction over age disputes.The immigration appeals tribunals continue to examine the fact of age in the context of appeals against the Home Office’s refusal of asylum where the question as to whether someone is a child or not bears on the assessment of risk of persecution and the need for international protection. The difference between a judicial review court determination of age and a finding of age by the immigration appeals tribunal is that the latter has no power to make declarations that are binding in rem (i.e. concerning age) on all organs of the state. By contrast, at the conclusion of judicial review proceedings, the judicial review court will make a declaration as the fact of a child’s age which binds the state, including public authorities who were not party to the proceedings.

Approach of criminal court to age disputes 3.41 Although a number of sections in existing statutes refer to procedures for the determination of age in criminal proceedings, the guidance provided is very general in nature. The main provision on determining age is CYPA  1933, s 99(1), which states:

37 [2015] EWHC 1942 (Admin). 38 This guidance has been replaced by the Home Office, Modern Slavery Act 2015: Statutory Guidance for England and Wales (March 2020). However, the principles set out in previous guidance are repeated in this Statutory Guidance (see Annexes D and E).

99

3.42  Age disputes in immigration and criminal proceedings

‘Where a person, whether charged with an offence or not, is brought before any court otherwise than for the purpose of giving evidence, and it appears to the court that he is a child or young person, the court shall make due inquiry as to the age of that person and for that purpose shall take such evidence as may be forthcoming at the hearing of the case, but an order or judgment of the court shall not be invalidated by any subsequent proof that the age of that person has not been correctly stated to the court, and the age presumed or declared by the court to be the age of the person so brought before it shall, for the purposes of this Act, be deemed to be the true age of that person, and where it appears to the court that the person so brought before it has attained the [age of eighteen] years, that person shall for the purposes of this Act be deemed not to be a child or young person.’ 3.42 In the context of the youth justice system, this and other associated provisions place the responsibility for reaching a defendant’s age on the magistrate or court before which the defendant is appearing. This approach conforms with the Supreme Court’s decision in A v Croydon (above) as to there being a right or wrong answer to the question of age. Given that the age of a defendant is a very material factor at various stages of the criminal justice system, it is plain that such inquiry into the question of age must be one which is capable of arriving at the right answer so far as is possible. 3.43 The plain meaning of the phrase ‘due inquiry’ in CYPA 1933, s 99(1) obliges the magistrate or a court to undertake a fact-finding exercise as to the objective fact of the defendant’s age if a reasonable magistrate or judge could conclude that the defendant may be a child or a young person. 3.44 The use of the word ‘appears’ in CYPA 1933, s 99(1) may suggest that a judge could simply consider whether on the basis of their appearance the defendant was a child. However, that would be inadequate to satisfy the obligation to carry out a ‘due inquiry’ for reasons stated in the long line of case law established by the judicial review court, which recognise that physical appearance and demeanour are highly risky factors to rely on in borderline cases, particularly where a young person falls in the grey area of 16 to 20 years’ old. 3.45 When the principles for assessing age39, established over more than a decade in the local authority context, are considered in the round, it is clear that the 39 Outlined at §23 of Ms Twite’s statement.

100

Approach of criminal court to age disputes 3.48

inquiry necessary to inform the criminal court of the right decision on age (insofar as this is possible) is one that requires a process of rigorous scrutiny. Such an approach requires decisions on age to ‘show by their reasoning that every factor which might tell in favour of the claimed age has been properly taken into account’40. This is ‘axiomatic’ in decisions which if made incorrectly may fundamentally and adversely impact on a putative child’s ability to participate effectively in the trial process. 3.46 The necessary corollary to an approach of rigorous scrutiny is the obligation to ensure that all relevant parties to the proceedings, and in particular the putative child subject to the inquiry, are afforded a fair opportunity to adduce such evidence as is relevant and available in order to achieve, insofar as is possible, the right answer as to the fact of age. 3.47 Although, it could arguably be fuller, the advice provided in the CPS  Legal Guidance on Youth Offenders41 as to the role of the CPS in this process does seek to conform to this approach: ‘[p]rosecutors should assist the court by: — adducing relevant documents that indicate a date of birth such as a list of antecedents, PNC printout, custody record, copies of passports, identity cards; — inviting the court to hear oral evidence from the defendant and any accompanying adult(s) as to the age of the defendant and cross examining where such evidence is inconclusive or inconsistent with other evidence, including the defendants’ appearance and demeanour’. 3.48 Critically, the CPS guidance recognises the right of the putative child to be heard. This conforms with a core principle underpinning the youth justice system, i.e. the right of the child to be heard in any court proceedings to which he is a party, and to participate effectively42. See also para [34] of ZH (Tanzania) v Secretary of State for the Home Department43, where Baroness Hale said:

40 R (on the application of YH) v Secretary of State for the Home Department [2010] EWCA Civ 116 at [24]. 41 Available at www.cps.gov.uk/legal/v_to_z/youth_offenders/#a41 (last accessed 6 December 2017). 42 UN CRC, Arts 12 and 40. 43 [2011] UKSC 4, [2011] 2 AC 166.

101

3.49  Age disputes in immigration and criminal proceedings

‘acknowledging that the best interests of the child must be a primary consideration … immediately raises the question of how these are to be discovered. An important part of this is discovering the child’s own view’. 3.49 Effective participation by the child is essential to a proper due inquiry of the fact of the putative child defendant’s age. It is a cornerstone of a fair trial44. It is unrealistic to expect that all available evidence of age will be available at the first appearance of the putative child before the court. This may particularly be so where the child has only recently arrived in the UK or has been brought to the court following events such as an immigration enforcement, or an arrest following a police search of a cannabis farm. To ensure effective participation of the child in the first important decision in the trial process – the deeming of age for the purposes of determining bail and remand, venue, jurisdiction and mode of trial – it is of paramount importance that the parties, and in particular the putative child, are afforded a reasonable opportunity to adduce evidence, including of a documentary and expert nature, to assist the court in the inquiry process on age.This will almost always necessitate an adjournment, an approach supported by criminal cases45. A refusal to adjourn for these purposes should be the rare exception to the norm. 3.50 There are other sources of evidence, including from social work professionals with expertise and experience in assessing age. In the absence of verifiable documentary proof of age, the youth court should invite the Youth Offending Team to refer the putative child defendant to the local authority for an opinion on age to be provided by a qualified social work professional with the training and experience to do so. It is similarly open to the CPS or the defendant himself to do the same, the courts having acknowledged that local authority social workers have developed some expertise and experience in undertaking a holistic assessment of age. That said, local authority age assessments ought not to become a mandatory part of the criminal court’s inquiry into age. The local authority’s ADCS guidance (referred to above) warns against conducting age assessments in all cases where a putative child is unable to prove age by verified documents. An age assessment should only be undertaken where there is ‘significant doubt’.This is consistent with the advice of the Committee on the Rights of the Child at [39] of General Comment No 10, (see para 3.16 above). The ADCS guidance provides for a local authority to decide, when asked, not to undertake an age assessment on the basis that it does not have significant doubt that the child is the age claimed. If that decision is reasoned, it ought to provide weighty evidence in favour of deeming the putative child a child, age claimed (or at least under 18). The approach adopted in the ADCS guidance, which 44 R v G [2003] UKHL 50, [2004] 1 AC 1034. 45 See R v Steed [1990] 12 Cr App Rep (S) 230 and R v Farmer [2002] EWCA Crim 2128.

102

Approach of criminal court to age disputes 3.52

demonstrates the importance of a precautionary and protective approach to decisions as to whether age should be disputed, and if so assessed, is adopted in this context. Where age assessments are conducted by local authority children’s services, they should not be the only evidence considered by a magistrate or a court. After all, local authority age assessments are themselves subject to judicial review, and the ultimate decision-maker is the court, exercising an inquisitorial function. 3.51 Pending the completion of the inquiry, the presumption in favour of childhood ought to be afforded to the putative child in accordance with the precautionary approach advocated for in General Comments No  6 and 10 and the ADCS guidance on age. Even if a local authority bail package is not immediately available, this would at least ensure that the putative youth defendant is remanded under LASPO  2012 to local authority accommodation unless the rigorous threshold for a youth detention centre is met. All this serves to preserve the status quo in a precautionary manner having due regard to the putative child’s best interests as a primary consideration. 3.52 See Chapter  5 for the interplay between a putative child defendant and the statutory defence under s 45 of the Modern Slavery Act 2015.

103

4 Criminal offences of trafficking Ben Douglas-Jones QC, Michelle Brewer and Pam Bowen CBE

Introduction 4.1 The Modern Slavery Act 2015 (‘MSA  2015’) includes two key substantive offences: at s 1 slavery, servitude or forced and compulsory labour and at s 2, human trafficking. These offences are a consolidation of existing offences from earlier statutes, as well as an attempt to address a lacuna identified in CN  v United Kingdom1, with the aim of simplifying enforcement2. Section 4 of the MSA 2015 also creates an offence of committing any offence with intent to commit an offence of human trafficking under s 2. 4.2 A  full range of other offences arising most often in trafficking and modern slavery cases are also examined below. 4.3 As a matter of principle, where an allegation is most properly characterised as human trafficking, or as slavery, servitude, or forced labour and compulsory labour, it should be charged as such. This applies even where other offences are also made out on the facts, and even if other offences carry the same maximum penalty: the Code for Crown Prosecutors stipulates that prosecutors should select charges that enable the case to be presented clearly and simply3. These should be charges that give the court sufficient sentencing powers, including application of relevant ancillary orders.

Offences under the Modern Slavery Act 2015 Slavery, servitude and forced or compulsory labour: MSA 2015, s 1 4.4 Section 1 of the MSA 2015 provides as follows: 1 2 3

App No 4239/08 (13 February 2013). 584 HC Official Report (6th series) col 197, 8 July 2014 (Tracey Crouch). See para 6.1(c).

105

4.5  Criminal offences of trafficking

‘(1) A person commits an offence if – (a) the person holds another person in slavery or servitude and the circumstances are such that the person knows or ought to know that the other person is held in slavery or servitude, or (b) the person requires another person to perform forced or compulsory labour and the circumstances are such that the person knows or ought to know that the other person is being required to perform forced or compulsory labour. (2) In subsection (1) the references to holding a person in slavery or servitude or requiring a person to perform forced or compulsory labour are to be construed in accordance with Article 4 of the Human Rights Convention. (3) In determining whether a person is being held in slavery or servitude or required to perform forced or compulsory labour, regard may be had to all the circumstances. (4) For example, regard may be had – (a) to any of the person’s personal circumstances (such as the person being a child, the person’s family relationships, and any mental or physical illness) which may make the person more vulnerable than other persons; (b) to any work or services provided by the person, including work or services provided in circumstances which constitute exploitation within section 3(3) to (6). (5) The consent of a person (whether an adult or a child) to any of the acts alleged to constitute holding the person in slavery or servitude, or requiring the person to perform forced or compulsory labour, does not preclude a determination that the person is being held in slavery or servitude, or required to perform forced or compulsory labour.’

Elements of the offence Section 1(1)

4.5 For an offence to have been committed under this provision slavery, servitude or compulsory labour must have actually taken place.This is materially different from the offence of human trafficking in the MSA  2015, s  2, which can be committed ‘with a view’ to exploitation even where that exploitation has not taken place. 106

Offences under the Modern Slavery Act 2015 4.8 Section 1(2)

4.6 Slavery, servitude, and forced or compulsory labour are to be construed in accordance with the ECHR, Art 4. In doing so, caselaw from the European Court of Human Rights (‘ECtHR’) will be authoritative. There is a hierarchy of denial of personal autonomy, in which slavery is the most severe, followed by servitude, and with forced or compulsory labour being the least severe4. Slavery and practices similar to slavery

4.7 The ECtHR defines slavery as that contained in the 1926 Slavery Convention, namely ‘the status or condition of a person over whom any or all of the powers attaching to the rights of ownership are exercised’5.The Supplementary Convention on the Abolition of Slavery, the Slave Trade and Practices similar to Slavery 1956, Art 1, defined ‘institutions and practices similar to slavery’ as including the following: debt bondage6; serfdom7; forced and servile forms of marriage and the delivery of a child by his or her parents or guardians for the exploitation of the child’s labour. 4.8 Insofar as forced and servile forms of marriage are concerned, any institution or practice whereby: (i) a woman without the right to refuse, is promised or given in marriage on payment of a consideration in money or in kind to her parents, guardian, family or any other person or group; or (ii) the husband of a woman, his family, or his clan has the right to transfer her to another person for value received or otherwise; or (iii) a woman on the death of her husband is liable to be inherited by another person.8 In M v Italy9 it was held: payment of money to a woman’s parents in respect of a marriage would not necessarily be ‘considered to amount to a price attached to the transfer of ownership, which would bring into play the concept of slavery. The court reiterates that marriage 4

5 6

7 8 9

R v SK [2011] EWCA Crim 1691, [2013] QB 82 at [24]. This case concerned the offence under the Asylum and Immigration (Treatment of Claimants etc) Act 2004, s 4.This offence was a precursor to the MSA 2015, s 2, and an element of it was an intention to exploit – exploitation including behaviour that contravenes Art 4. App No 73316/01 (2005) 43 EHRR 287, 20 BHRC 654. ‘[T]hat is to say, the status or condition arising from a pledge by a debtor of his personal services or of those of a person under his control as security for a debt, if the value of those services as reasonably assessed is not applied towards the liquidation of the debt or the length and nature of those services are not respectively limited and defined’. That is to say, the condition or status of a tenant who is by law, custom or agreement bound to live and labour on land belonging to another person and to render some determinate service to such other person, whether for reward or not, and is not free to change his status. See also OSCE, Unprotected Work, Invisible Exploitation:Trafficking for the Purposes of Domestic Servitude (June 2010) p 44. (2013) 57 EHRR 29, para 161.

107

4.9  Criminal offences of trafficking

has deep-rooted social and cultural connotations which may differ largely from one society to another. According to the court, this payment can reasonably be accepted as representing a gift from one family to another, a tradition common to many different cultures in today’s society’. 4.9 Courts have generally been slow to find that slavery is established in any particular case, perhaps in part because it is not necessary to do so when a finding of servitude or of forced or compulsory labour will have the same effect. Where applicable, sentences can be determined based on the facts of the offence, without having to determine whether or not such facts cross the boundary from (for example) servitude to slavery.To date, successful prosecutions for slavery have been limited to cases where persons have sought to sell their babies/children for financial gain. Servitude

4.10 ‘Servitude’ is an obligation to provide one’s services that is imposed using coercion and is linked with the concept of slavery10. In CN and V v France11, the Court noted that servitude was a specific form of forced or compulsory labour, or, in other words, ‘aggravated’ forced or compulsory labour. The fundamental distinguishing feature between servitude and forced or compulsory labour within the meaning of Art 4 of the Convention lies in the victims feeling that their condition is permanent, and that the situation is unlikely to change. The Court found it sufficient that this feeling be based on the feeling of an impossibility of altering his/her condition or be brought about or kept alive by those responsible for the situation. 4.11 In CN  v UK12 the ECtHR underlined that domestic servitude is a specific offence and involves a complex set of dynamics, involving both overt and more subtle forms of coercion to force compliance, investigation of which requires an understanding of the many subtle ways an individual can fall under the control of another. 4.12 The ECtHR understanding of servitude and forced labour has been informed by the findings of the Parliamentary Assembly of the Council of Europe that ‘today’s slaves are predominantly female and usually work in private 10 Siliadin v France (App No 73316/01) (2005) 43 EHRR 287, 20 BHRC 654. 11 App No 67724/09 (2012), see para 91. 12 (2012) 56 EHRR 24.

108

Offences under the Modern Slavery Act 2015 4.14

households, starting out as migrant domestic workers’13. The International Labour Organization’s (‘ILO’) Domestic Workers Convention14 recognises that domestic work is ‘mainly carried out by women and girls, many of whom are migrants or members of disadvantaged communities and who are particularly vulnerable to discrimination in respect of conditions of employment and of work, and to other abuses of human rights’. It aims to protect them by regulating relations between domestic workers and their employers, e.g. by requiring specified terms and conditions of employment15; a contract of employment for a worker recruited in one country to be employed in another16; the worker to retain possession of his passport and identity card17 and regular payment of wages18. An employer’s non-compliance with such requirements may support an inference that there is a situation of servitude or forced labour. 4.13 Several decisions by the ECtHR have concerned such workers. In Siliadin v France19 the court found a young woman to have been held in servitude given the circumstances: that she was brought to France as a child by a relative; her relatives transferred her to her employers; her employers manipulated her fear of being arrested owing to her unlawful immigration status; she was made to work long hours, seven days each week without remuneration; she was not permitted to leave the house in which she worked, save to take the children to school; she had no freedom of movement and no free time; the promise that she would be sent to school was broken and she had no hope of her situation improving20. In a subsequent case the court found the applicant’s claimed circumstances to be ‘remarkably similar’ and to give rise to a credible suspicion that she had been held in domestic servitude21. 4.14 In Siliadin v France,22 the court held that servitude does not involve any claim to proprietary rights over the victim, but refers to an obligation to provide one’s services, and includes an obligation to live on the other person’s property and the impossibility of changing one’s status23. It was also said that the concept of servitude is to be linked to that of slavery24. 13 Siliadin v France [2005]  ECHR  545, para  88, noting the Parliamentary Assembly’s Recommendation 1663 (2004), adopted on 22 June 2004 cited in para 49. 14 C189 – Domestic Workers Convention 2011 (No  189); Convention concerning decent work for domestic workers. The UK has not ratified this convention. 15 Ibid, Art 7. 16 Ibid, Art 8. 17 Ibid, Art 9. 18 Ibid, Art 12. 19 App No 73316/01 (2005) 43 EHRR 287, 20 BHRC 654. 20 Siliadin v France [2005] ECHR 545, para 129. 21 CN v United Kingdom (App No 4239/08) [2012] ECHR 1911. 22 Ibid. 23 Ibid at [123]. 24 Ibid.

109

4.15  Criminal offences of trafficking

4.15 More recently, however, the ECtHR appears to have broadened the definition of servitude. In CN and V v France25, it was held that servitude is an aggravated form of forced or compulsory labour: the fundamental additional feature required for servitude is ‘the victim’s feeling that their condition is permanent and that the situation is unlikely to change’. Whilst that feeling may be brought about by the objective features previously identified, it would also be sufficient to amount to servitude if that feeling is brought about or kept alive by the perpetrators (apparently regardless of the means used to bring it about)26. Forced or compulsory labour

4.16 The drafters of the ECHR relied on the definition of ‘forced or compulsory labour’ contained in the ILO’s Forced Labour Convention27 and the ECtHR has relied on the ILO  Conventions which are binding on almost all of the Council of Europe Member States for the purpose of interpreting Art 428. The Forced Labour Convention defines ‘forced or compulsory labour’ as meaning ‘all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily’29. The ECtHR noted in CN  v France30 that in the global report, ‘The cost of coercion’ adopted by the International Labour Conference in 1999, the notion of ‘penalty’ is used in the broad sense, as confirmed by the use of the term ‘any penalty’. It therefore considered that the ‘penalty’ may go as far as physical violence or restraint, but it can also take subtler forms, of a psychological nature, such as threats to denounce victims to the police or immigration authorities when their employment status is illegal. 4.17 The ECtHR treats that definition as ‘a starting point’ for interpreting Art 4, whilst bearing in mind that the ECHR is a living instrument to be read in the light of currently prevailing notions31. It is noteworthy that the ILO definition refers to ‘all work or services’ and so encompasses all types of work, employment or occupation, irrespective of the nature of the activity performed, its legality or illegality under national law or its recognition as an ‘economic activity’; thus it can apply as much to factory work as it does to prostitution or begging32. 25 26 27 28 29 30 31 32

App No 67724/09 (11 October 2012). CN and V v France (App No 67724/09) (11 October 2012) at [91]. Van der Mussele v Belgium (App No 8919/80) (1983) 6 EHRR 163, [1983] ECHR 8919/80, at 32. Siliadin v France [2005] ECHR 545 at 115. Forced Labour Convention 1930 (No 29), Art 2(1). App No 67724/09 (2012), see para 77. Van der Mussele v Belgium (App No 8919/80) (1983) 6 EHRR 163, [1983] ECHR 8919/80, at 32. Joint UN Commentary on the EU Directive – A Human Rights-Based Approach (2011) p 102, citing ILO, The Cost of Coercion (2009).

110

Offences under the Modern Slavery Act 2015 4.20

4.18 The ILO has developed indicators of forced labour, described by the ECtHR in CN v United Kingdom33 as ‘a valuable benchmark in the identification of forced labour’34. As listed by the court they were: ‘1

threats or actual physical harm to the worker;

2

restriction of movement and confinement to the workplace or to a limited area;

3

debt bondage: where the worker works to pay off a debt or loan and is not paid for his or her services. The employer may provide food and accommodation at such inflated prices that the worker cannot escape the debt;

4

withholding of wages or excessive wage reductions that violate previously made agreements;

5

retention of passports and identity documents, so that the worker cannot leave, or prove his/her identity and status;

6

threat of denunciation to the authorities, where the worker is in an irregular immigration status’35.

4.19 In Chowdury v Greece36 the ECtHR held that freedom of movement is not determinative of whether there is forced labour or trafficking. 4.20 In CN  v United Kingdom37 the ECtHR held the UK’s investigation of an allegation of trafficking to have been inadequate because it failed to give any weight to features of the applicant’s situation that were among the ILO’s indicators of forced labour38. The Supreme Court in Hounga v Allen39 applied the ILO’s indicators of forced labour when concluding that the appellant was (at least for the purposes of that case) a victim of trafficking (‘VOT’) on the basis that there had been physical harm or threats of physical harm from her employers; there had been withholding of wages and there had been threats of denunciation to the authorities in circumstances where she had irregular 33 App No 4239/08 [2012] ECHR 1911. 34 Ibid at 35. 35 Ibid at 35. An ILO publication, ILO Indicators of Forced Labour lists 11 indicators that are ‘derived from the theoretical and practical experience of the ILO’s Special Action Programme to Combat Forced Labour’. 36 App No 21884/15, at para 123. 37 App No 4239/08 [2012] ECHR 1911. 38 CN  v United Kingdom (App No  4239/08) [2012]  ECHR  1911, para  80. Those features were ‘the applicant’s allegations that her passport had been taken from her, that [her employer] had not kept her wages for her as agreed and that she was explicitly and implicitly threatened with denunciation to the authorities’. 39 [2014] UKSC 47, [2014] 1 WLR 2889, [2014] IRLR 811.

111

4.21  Criminal offences of trafficking

immigration status40. In Siliadin the ECtHR held that the applicant domestic worker was in a situation of forced labour. Whilst not threatened by a ‘penalty’ she was nevertheless in an equivalent position: ‘she was an adolescent girl in a foreign land, unlawfully present on French territory and in fear of arrest by the police. Indeed, [her employers] nurtured that fear and led her to believe that her status would be regularised’41. Lady Hale explained that the ’breakthrough in Siliadin was recognising that Article 4 imposed, not only negative, but positive obligations upon the state.’42 4.21 Giving prior consent to undertaking the labour does not by itself establish that the individual offered himself voluntarily: account has to be taken of all the circumstances of the case, including whether it imposed a burden which was so excessive or disproportionate to the anticipated rewards or advantages that resulted in the consent being given43. Consent may most obviously be vitiated where the employer has abused his power or taken advantage of the vulnerability of the workers44. 4.22 The court has previously found that extremely low pay can be relevant evidence but may not amount to coercion in itself45. However, as provided by the ILO if employees have to work more overtime than is allowed under national law, under some form of threat (e.g. of dismissal) or in order to earn at least the minimum wage, this amounts to forced labour46. 4.23 In A-G’s Reference (Nos 37, 38 and 65 of 2010) (Khan)47 the Court of Appeal Criminal Division concluded that the extreme vulnerability of the victims and their relative economic poverty and the dependency of the victims and the employers ‘abuse of their vulnerability’ was an accepted indicator of recruitment into forced labour. The Court held at [18], ‘the return of the workers does not constitute evidence that the conditions to which the workers were subjected were acceptable but, in the circumstances of the present case, is evidence of further exploitation by the offenders of personal circumstances of which they knew they could take advantage.’ 40 41 42 43 44

Ibid at 49. Siliadin v France [2005] ECHR 545 at 118. MS v Secretary of State for the Home Department [2020] UKSC 9 at 23. Van der Mussele v Belgium (App No 8919/80) (1983) 6 EHRR 163, [1983] ECHR 8919/80 at 37. Chowdury v Greece (App No 21884/15) (30 March 2017) at [96]. See also R v Karemera [2018] EWCA Crim 1432, [2019] 2 Cr App R 14 – county lines/consent; R v Nguyen,Tran and Nguyen [2019] EWCA Crim 670 – consent in forced or compulsory labour; R v Rooney and others [2019] EWCA Crim 681 – consent in forced or compulsory labour. 45 R v SK [2011] EWCA Crim 1691, [2013] QB 82. 46 See https://www.ilo.org/wcmsp5/groups/public/---ed_norm/---declaration/documents/publication/ wcms_203832.pdf, last accessed 5 August 2020. 47 [2010] EWCA Crim 2880, [2011] 2 Cr App Rep (S) 31 at [16].

112

Offences under the Modern Slavery Act 2015 4.26

4.24 The decision of the Court of Appeal in R v Connors and Others48 is notable for the following observations of the Lord Chief Justice on what he described as ‘the troublesome crime of exploitation of labour’: ‘The problem has been with us for some time and has been growing. Unhappily different forms of exploitation are found in the sex industry, the construction industry, agriculture and residential care. That list is not comprehensive. Those who are exploited are always and inevitably vulnerable, and just because they are so vulnerable, profoundly reluctant to report what has happened or is happening to them.The Asylum and Immigration Act 2004 criminalised the exploitation of labour when it was connected to trafficking in human beings, but not otherwise. Therefore, it did not prevent vulnerable but untrafficked individuals from being subjected to forced or compulsory labour. The Gang Masters’ Licensing Act 2004 established a system for licensing those who employed workers in specified industries. Nevertheless, this legislation, too did not address the entire problem. The end result was that many men and women continued to remain vulnerable to exploitation without any counter-balancing protection against exploitation.’ 4.25 In the Dutch Supreme Court, the Court gave guidance on the concept of ‘abuse of a vulnerable position’.The case concerned six irregular migrants who, desperate for work and afraid of being discovered by authorities, approached a Chinese restaurant owner for work. They were provided with accommodation and work that paid well below the minimum wage. The Supreme Court disagreed with the lower courts that the perpetrator must ‘intentionally abuse’ the vulnerable position of the victims. The Court held that ‘conditional intent’ is sufficient: it was enough that the perpetrator was aware of the situation that must be assumed to give rise to power or a vulnerable position49. Child labour and Art 4

4.26 The employment of children may constitute servitude or forced labour. Employment of children is prohibited by the Charter of Fundamental Rights of the EU50. There is no specific definition of what constitutes forced labour of children. Therefore, the generic definition contained in the Forced Labour Convention is applied. However, the concepts of ‘involuntariness’ and ‘penalty/

48 [2013] EWCA Crim 324, at para 5. 49 Supreme Court, 27 October 2009, LJN: B17099408. 50 Art 32.

113

4.27  Criminal offences of trafficking

menace of a penalty’ presented above for adults, need to be reassessed in the case of forced labour of children.51 4.27 Forced labour, the notion of ‘offering oneself voluntarily’ must be interpreted in light of the fact that, in legal terms, a child below the age of legal majority cannot him or herself give consent to work, and therefore the consent of the parent(s) must be considered instead. Likewise, the ‘penalty’ can be applied to the parents, rather than directly to the child.The ILO considers four dimensions of forced labour of children as indicators to assist: Unfree recruitment of children (forced and deceptive recruitment) – made either to child or the child’s carers. Work and life of children under duress: this may entail excessive volume of work or tasks beyond what is reasonably expected of a child (physical and mental capacity) – excessive dependency imposed on the child. Impossibility for children to leave their employer – this may be something seemingly less significant than for an adult, for example, an inference that his parents would be extremely unhappy or disappointed if he were to leave, and that the family would suffer as a result. Coercion of children: six sub-categories of coercion in ILO indicators of adults also apply. However, given the young age and heightened vulnerability of children, the details for each sub-category require some modification such as the non-wage benefits promised to children may differ, including schooling or financial assistance for their future wedding; the mere fact of being unable to contact his or her parents may constitute isolation for a young child, whereas this would not necessarily be the case for an adult; less physical coercion or fewer threats may be needed to intimidate and subordinate a child than an adult; and the abuse of vulnerability can take many more and different forms with children than with adults. 4.28 ILO  Conventions reiterate the need for states to set a minimum age for children to work and to prohibit those under 18 from engaging in work likely to jeopardise the health, safety, or morals of young persons. Child domestic servitude is an increasingly prevalent form of exploitation, often facilitated by socially and culturally-accepted practices of placing a child with a wealthier family or household in the belief that doing so will improve the child’s access

51 ILO report, Hard to see, harder to count: Survey guidelines to estimate forced labour of adults and children (June 2012).

114

Offences under the Modern Slavery Act 2015 4.29

to education and life chances52. These practices, rooted in misplaced trust, are prohibited by the Supplementary Convention on the Abolition of Slavery, the Slave Trade and Practices similar to Slavery 195653. 4.29 Members States of the ILO are obliged to eliminate ‘the worst forms of child labour’54. ILO  Convention, Worst Forms of Child Labour, 1999 (182) at Art 3 states that the worst forms of child labour, comprise of article  3(c): the use, procuring or offering of a child for illicit activities, in particular for the production and trafficking of drugs as defined in the relevant international treaties, this is echoed in Art 33 of the UN  Convention on the Rights of the Child 1989. There is increasing prevalence that children are targeted by organised criminal networks or gangs for drug production and movement of drugs (see Chapter 15 for further information). Article 3(d) of ILO Convention 182 also states that a worst form of child labour is work which, by its nature or the circumstances in which it is carried out, is likely to harm the health, safety or morals of children. See Chapter  1 for a detailed account of the interplay between these international instruments and the meaning of ‘exploitation’ within child trafficking.

52 OSCE, Unprotected Work, Invisible Exploitation: Trafficking for the Purposes of Domestic Servitude (June 2010) p 24. Arrangements are often made as a purported ‘private fostering’ whereby a child may enter the UK on another child’s passport to live with a ‘relative’ or to join someone claiming asylum or may be left behind in the UK when the parents leave. Although a regulatory system is in place for social services to assess and monitor bona fide private fostering arrangements of which they are notified, those involving trafficked children exploited for domestic servitude or benefit fraud remain hidden: see www.ecpat.org. uk/sites/default/files/understanding_papers/understanding_private_fostering.pdf. 53 Art 1(d) prohibiting ‘any institution or practice whereby a child or young person under the age of 18 years, is delivered by either or both of his natural parents or by his guardian to another person, whether for reward or not, with a view to the exploitation of the child or young person or of his labour.’ 54 ILO  Convention concerning the prohibition and immediate action for the elimination of the worst forms of child labour No 182 (1999), Art 6(1). The ‘worst forms of child labour’ are identified in Art 3 as: ‘a. all forms of slavery or practices similar to slavery, such as the sale and trafficking of children, debt bondage and serfdom and forced or compulsory labour, including forced of compulsory recruitment of children for use in armed conflict; b. the use, procuring or offering of a child for prostitution, for the production of pornography or pornographic performances; c. the use, procuring or offering of a child for illicit activities, in particular for the production and trafficking of drugs as defined in the relevant international treaties; d. work which, by its nature or the circumstances in which it is carried out, is likely to harm the health, safety or morals of children. Hazardous work may include: work which exposes children to physical, psychological or sexual abuse; work underground, under water, at dangerous heights or in confined spaces; work with dangerous machinery, equipment or tools; work in an unhealthy environment exposing children to hazardous substances, agents or processes; work under particularly difficult conditions such as work for long hours or during the night or whether the child is unreasonably confined to the premises of the employer’: ILO Worst Forms of Child Labour, Recommendation No 190, para 3 (1999); ILO Convention concerning decent work for domestic workers No 189 Art 4 – setting a minimum age for domestic workers that is consistent with the Minimum Age Convention No 138 and the Worst Forms of Child Labour Convention No 182. ILO Domestic Worker Recommendation No 201. The ILO Declaration on Fundamental Principles and Rights at Work, 1998, declares that the effective abolition of child labour is an obligation arising from membership of the ILO.

115

4.30  Criminal offences of trafficking

Section 1(3) and (4) 4.30 In considering ‘all of the circumstances’, as required by the MSA 2015, s 1(3), one is first directed to questions of the victim’s vulnerability. It is important to make clear that ‘abuse of a position of vulnerability’ is one of the possible ‘means’ by which a trafficking offence may be committed, but as the above cases illustrate ‘abuse of position of vulnerability’ is also a feature of servitude, forced and compulsory labour. 4.31 The ECtHR has repeatedly emphasised the wide array of circumstances which may be relevant, finding breaches of the Convention where states have taken too narrow a view. In CN  v United Kingdom55, the subtle means of coercion which might be employed were highlighted, including the taking of identity documents, retention of wages, and threat of denunciation (both implicit and explicit)56. Other factors which may be relevant would include working conditions, standard of accommodation if provided, and the passage of time: work which may have been voluntary initially may be seen to be forced or compulsory labour after wages have been retained for a lengthy period57.

Section 1(5) 4.32 Section 1(5) makes clear that consent given by a complainant may not preclude a finding of slavery, servitude, or forced or compulsory labour: this is discussed at para 4.16 above in the context of compulsory labour, but the same considerations would apply (it is submitted a fortiori) in the context of slavery or servitude.

Human trafficking: MSA 2015, s 2 4.33 This offence is created by the MSA 2015, s 2: ‘2 Human trafficking (1) A person commits an offence if the person arranges or facilitates the travel of another person (“V”) with a view to V being exploited. 55 App No 4239/08 (13 February 2013). 56 CN v United Kingdom (App No 4239/08) (13 November 2012) at [80]. 57 Chowdury v Greece (App No 21884/15) (30 March 2017) at [94] and [97].

116

Offences under the Modern Slavery Act 2015 4.35

(2) It is irrelevant whether V consents to the travel (whether V is an adult or a child). (3)  A  person may in particular arrange or facilitate V’s travel by recruiting V, transporting or transferring V, harbouring or receiving V, or transferring or exchanging control over V. (4) A person arranges or facilitates V’s travel with a view to V being exploited only if— (a) the person intends to exploit V (in any part of the world) during or after the travel, or (b) the person knows or ought to know that another person is likely to exploit V (in any part of the world) during or after the travel. (5) “Travel” means— (a) arriving in, or entering, any country, (b) departing from any country, (c) travelling within any country. (6)  A  person who is a UK national commits an offence under this section regardless of— (a) where the arranging or facilitating takes place, or (b) where the travel takes place. (7) A person who is not a UK national commits an offence under this section if— (a) any part of the arranging or facilitating takes place in the United Kingdom, or (b) the travel consists of arrival in or entry into, departure from, or travel within, the United Kingdom’.

Elements of the offence 4.34 Section 2 provides for a single offence of human trafficking. It includes sexual and non-sexual exploitation. Facilitating or facilitating travel for exploitation

4.35 Section 2(1) makes it a criminal offence to arrange or facilitate the travel of another person with a view to his being exploited. Travel is defined in s 2(5) as arriving in, entering, departing, or travelling within any country. 117

4.36  Criminal offences of trafficking

4.36 It was held in R v Karemera58 in the context of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004, s  4, (‘the s  4, 2004 Act offence’), that the interpretation afforded to s  4 should be one that accorded with the statutory purpose of protecting the vulnerable from trafficking with a view to exploitation. The words ‘arranging’ and ‘facilitating’ should be given a broad construction.Thus ‘arranging’ the travel of a person would include such matters as transporting that person, procuring a third person to transport that person, or buying a ticket for that person. ‘Facilitating’ travel would include making such travel easier; and that it was possible in some circumstances simply instructing a person to travel to a particular place would amount to ‘arranging or facilitating’ that person’s travel, although it would depend on the facts of the case59. It was held that ‘arranging’ was a common word which needed no further explanation to the jury and would include transporting B, procuring a third person to transport B, or buying a ticket for B. ‘Facilitating’ was intended to be different from ‘arranging’ and would include ‘making easier’. It was not sensible to lay down precise definitions of those terms and there was no fixed list of the conduct which could amount to either arranging or facilitating. 4.37 The statutory purpose of s  2 of MSA  2015 is identical to s  4 of the 2004 Act. Furthermore, both sections include the words ‘facilitating’ and ‘arranging’. Therefore, R v Karemera60 is a useful guide on how these provisions should be interpreted in the context of the s 2 offence.

Consent irrelevant 4.38 Section 2(2) makes it clear that with a human trafficking offence the victim’s consent to his travel (whether an adult or a child) is irrelevant. As held in R v Karemera61, part of the statutory purpose of s 4 was to protect the vulnerable and that this should include protecting them from their own decision-making. In the context of s  4(IA) of the 2004 Act, accordingly the Crown did not have to prove a lack of consent on the part of the victim or any element of coercion.

58 [2018] EWCA Crim 1432, [2019] 2 Cr App R 14. 59 Paras 44–47, 60–61. 60 [2019] 2 Cr App R 14. 61 Ibid.

118

Offences under the Modern Slavery Act 2015 4.42

Mens rea 4.39 Section 2(4) provides that the arranging or facilitating is done with a view to the exploitation of the victim if the perpetrator either: — intends to exploit the victim; or — knows or ought to know that any other person is likely to exploit the victim. It is irrelevant where in the world that exploitation might take place. 4.40 The court had held in R v Karemera that the mens rea required was the carrying out of the arranging or facilitating with a view to the victim’s (in that case a ‘courier’) exploitation. The arranger or facilitator must have either intended to exploit the victim or believed that someone else was likely to carry out some undefined acts of exploitation; proof of actual exploitation was unnecessary. The Crown did not have to prove that the victim was an unwilling, coerced, or non-consenting participant, and a successful prosecution did not depend on the victim giving evidence. As set out above, consent was no defence: a vulnerable person might well consent to carrying drugs, and s  4(1A) sought to protect them from their own poor decision-making. 4.41 In R v Karemera (above; in the context of the s 4, 2004 Act offence) it was held that with a ‘view to exploitation’ required the prosecution to prove that the defendant intended to exploit a person, ‘B’, or believed that another person was likely to exploit B during or after the journey. It followed that it was not necessary to prove that the person arranging or facilitating travel was also the person who at some point would do or intended to exploit person ‘B’. It was also not necessary for the prosecution to establish that the defendant (and/or another person) had gone on to exploit B in any of the ways defined in s 4(4)62. 4.42 The phrase ‘with a view to’ exploitation means either that the defendant intends to exploit the victim during or after travel or knows or ought to know someone else is likely to do so. Because the international law is arguably not reflected properly in s 2 (see below), what may not be captured by this phrase is exploitation or a view to exploitation in situ where there has been no travel (i.e. an individual is harbouring a person B with a view to exploitation).

62 Paras [44]–[49], [51].

119

4.43  Criminal offences of trafficking

Harbouring 4.43 The s 2(3) examples of arranging or facilitating travel will have their ordinary English meaning; however, ‘harbouring’ can cause confusion. Harbouring is linked to providing or arranging accommodation for receipt of VOTs. Recruiters and those transferring the victim, harbouring or receiving the victim may have no involvement in the arranging or facilitation of the travel of the victim but do intend to exploit the victim, or know or ought to know that the victim will be exploited.These individuals may not be caught by the human trafficking offence because of the requirement for movement inherent in s 2 which is underscored by the inclusion of the word ‘may’ in s 2(3). Depending on the evidence, consideration should be given to charging all involved in the trafficking and exploitation with conspiracy to commit an offence of human trafficking or aiding and abetting an offence of human trafficking. This enables the prosecution of the perpetrators for their specific role in achieving the common purpose; i.e. the exploitation.

Concerns about the narrow scope of the offence under section 2 4.44 In the regional instruments, Council of Europe Convention on Action against Trafficking in Human Beings 2005 (‘ECAT’) and the EU Trafficking Directive (see Chapter  1), movement is not a necessary element of the trafficking definition. The language of s  2(3) derives from the s  4, 2004 Act offence and, whereas movement is not a necessary component of trafficking in regional law, travel or the arrangement or facilitation of travel is a necessary component of the s 2 human trafficking offence. The interplay between s 2(1) and s 2(3) does not reflect the way in which the ‘acts’ or ‘actions’ of trafficking operate in the regional instruments. It is unclear what, if any, nexus is required between arranging or facilitating ‘travel’ and the ‘recruitment, transportation or transferring, harbouring, receiving or exchanging control over the victim’. 4.45 It remains unclear whether the narrower scope of s 2 as compared to the ECAT definition and EU Directive offence of human trafficking, is whether a person will be guilty of a s  2 offence where a person who harbours the individual but has no role in the travel to either that place of harbour or the place where the victim will be harboured following onward travel. Likewise, receiving and transferring or exchanging control of a victim may not be caught by the natural wording of s 2 of the MSA 2015. If those acts are not caught by the subsection, it will not be compliant with ECHR, Art 4 (see CN  v United Kingdom). It may be possible to indict conspiracy to commit human trafficking to include conduct which would fall outside the section. 120

Offences under the Modern Slavery Act 2015 4.49

Extra territorial effect 4.46 Section 2(6) makes the offence extra-territorial in relation to UK nationals. It does not matter where in the world a UK national arranges or facilitates the travel. It does not matter what the country of arrival, entry, travel or departure is. In the Explanatory Notes to the MSA 2015, the example given is that if a UK national trafficked a person from Spain to France, he could be prosecuted in England and Wales for this offence63. 4.47 Section 2(7) provides for a more limited territorial reach in relation to nonUK nationals. If any part of the arranging or facilitating takes place in the UK, non-UK nationals will commit an offence. Likewise, if the UK is the country of arrival, entry, travel or departure, a non-UK national will commit an offence. 4.48 Travel can be caught by this offence whether it is cross border or within any country64. It can immediately be seen that the scope of s 2, in this respect, is very broad. There is no minimum distance required for a journey to count as ‘travel’, although journeys involving truly minimal distances (such as walking between rooms) may well be excluded65. It therefore appears that, for example, an occupier who accepts a person into his house (i.e harbours or receives them) after a journey of a few miles, with a view to exploiting them, would be guilty of this offence.

Exploitation: MSA 2015, s 3 4.49 ‘Exploitation’ for the purposes of s 2 is defined exhaustively in MSA 2015, s 3. It includes exploitation arising only in the following circumstances: (i) offences under the MSA  2015, s  1, sexual offences under the Sexual Offences Act 2003 (‘SOA 2003’), Pt 1 or the Protection of Children Act

63 See case of R  v Iyamu [2018]  EWCA  Crim 2166 where the defendant of dual nationality (British/ Nigerian) trafficked victims from Nigeria to Germany. No elements of the offence were committed in the UK. The trial took place in the UK but the complainants gave evidence via live-link from Nigeria and Germany. This authority also provides helpful sentencing guidance for offences of sex trafficking/ sexual exploitation nature. 64 MSA 2015, s 2(5). 65 R v Ali [2015] EWCA Crim 1279, [2015] 2 Cr App Rep 457 at [80]. This was a case concerning the Sexual Offences Act (SOA) 2003, s 58 (trafficking within the UK for sexual exploitation), one of the precursors to the MSA 2015, s 2.

121

4.50  Criminal offences of trafficking

1978, s1(1)(a) (indecent photographs), and organ harvesting and related activities under the Human Tissue Act 2004, ss 32 and 33; (ii) activities that would amount to such offences if committed in England and Wales; (iii) the use of force, threats or deception designed to induce the victim to provide services or benefits (MSA 2015, s 3(5)); (iv) the use or attempted use of a person to obtain services or benefits when that person has been chosen because he is a child or vulnerable adult and would otherwise be likely to refuse (MSA 2015, s 3(6)). Subsection (5) of s 3 allows a wider degree of what can be exploitation (provided that there is use of threats, force or deception). 4.50 ‘Exploitation’ is defined in s  3 to cover a broad range of circumstances. The definition is, with minor variations, an amalgamation of the definitions of exploitation in the two predecessor offences (trafficking for sexual exploitation under the SOA 2003, s 59A, and trafficking for exploitation under the Asylum and Immigration (Treatment of Claimants, etc) Act 2004, s 4). In the case of adults, the scope of s 3(5) is particularly broad if force, threats or deception is involved. In the case of people ‘chosen’ for exploitation because they are under 18, ill, disabled or in a family relationship (when, but for those qualities, they would be likely to refuse to act), as with s  3(6), exploitation includes a very broad range of circumstances. ‘Chosen’, as with the Asylum and Immigration (Treatment of Claimants, etc) Act 2004, s 4(4)(d), should not be replaced by the words ‘initially recruited’ and it should be given its ‘natural and broad meaning’66. 4.51 Section 3(6) incorporated an element of causation in its use of the language of choice. The two grounds identified in s 3(6) for the choice or future choice of the young (or disabled, etc) courier – that he was young and that a person without youth would be likely to refuse to be used for that purpose – had to be established. The question of causation was not one determined by an overly literal reading of the statutory language. In the present context, the prosecution need only establish that the age of the VOT and the likelihood of an adult refusing were two factors, possibly amongst many others, which formed a part of the defendant’s thinking. Each ground had to be ‘a’ factor but need not be the ‘main’ or ‘principal’ factor. It sufficed to achieve Parliament’s objective of protecting the vulnerable that the issue of the intended or likely choice on the

66 R v Karemera [2018] EWCA Crim 1432, [2019] 2 Cr App R. 14 at [60]–[62].

122

Transposition 4.55

grounds of age was a factor in the mens rea, and one which was more than de minimis. Such a formulation also provided adequate protection to defendants67. 4.52 With exploitation deriving from s 3(6) the prosecution does not need to prove a lack of consent on the part of the young, disabled, etc courier or any element of coercion. Indeed, the mischief the provision (in s 4(4)(d) of the 2004 Act from which s 3(6) derives) sought to address was that a vulnerable person had consented; the Act was seeking to protect the young and the vulnerable from their own decision-making. 4.53 It followed that a prosecution under s 2, relying on s 3(6) exploitation, does not depend on the ability to call the individual said to have been exploited or the target of exploitation68. This principle derives from the Court of Appeal decision of R v Karemera. It significantly helps to protect the VOTs and ensure that traffickers are prosecuted. The case involved the terminating ruling of a Crown Court judge who determined that without the VOTs as witnesses the case should be withdrawn from the jury. The Court of Appeal overturned that decision. 4.54 This offence has a broad territorial scope: a UK national will be guilty of it regardless of where the travel, or the arranging or facilitating of it, takes place; a non-UK national will be guilty of it if any part of the travel, or its arranging or facilitation, takes place in the UK69.

Transposition Sentencing Principles 4.55 The offences under MSA  2015, ss  1 and 2 both carry the same maximum sentence (life imprisonment) when tried on indictment and are also triable summarily with a maximum sentence of six months70. Both are listed in the 67 See R v Karemera (above), ibid, paras [52]–[55] and [59], where the court commented on s 4(4)(d) of the 2004 Act, from which the wording of s 3(6) derived. 68 R v Karemera (above), paras [60]–[62]. 69 MSA 2015, s 2(6) and (7). 70 MSA 2015, s 5(1).

123

4.56  Criminal offences of trafficking

Criminal Justice Act 2003, Schs 15 and 15B and therefore extended sentences under s 226A of that Act are available, and life sentences under ss 224A (for a second listed offence) and 225 (for dangerous offenders) may apply. 4.56 Explanatory guidance for sentencing offences of sexual exploitation under s 2 of MSA 2015 has now been included in the Sexual Offences guidelines71. They include a guideline for sentencing the offence of trafficking people for sexual exploitation, an offence created by s 59A of the Sexual Offences Act 2003. 4.57 The MSA 2015 has since repealed s 59A of SOA 2003. However, the sentencing guideline may still be of use for sentencing cases of sexual exploitation prosecuted under s 2 of MSA 201572. 4.58 The Council has added explanatory guidance to the existing sentencing guideline to assist parties wishing to use the guideline for this purpose. In addition, Annex A of the Sexual Offences guideline provides a list of ancillary orders that can be made when sentencing a relevant sexual offence.This Annex has been amended to include relevant orders that can be made under MSA 201573. 4.59 With other offences, guidance may be gained from the predecessor offences, and R  v Iyamu74 and R  v Zielinski75 are the leading cases on sentencing for offences of sexual exploitation and labour exploitation under MSA 2015. R v Mohammed76 concerns sentencing in a county lines case. 4.60 Section 71 of the Coroners and Justice Act 2009 was in broadly the same terms as the MSA, s  1, although it should be noted that the statutory maximum penalty for that offence was 14 years: the increased maximum penalty now applicable shows that Parliament’s intention is that longer sentences should be imposed77.

71 Published by the Sentencing Council in 2014. 72 See Scg Council Modern Slavery Guidance. 73 The trafficking for sexual offences guideline appears at p 99, and the Annex is at p 153, of the Sexual Offences guideline. 74 [2018] EWCA Crim 2166. 75 [2017] EWCA Crim 758. 76 [2019] EWCA Crim 1881. 77 R v Joyce [2017] EWCA Crim 337 at [26].

124

Transposition 4.64

4.61 In considering sentences under the Coroners and Justice Act 2009, s  71, Lord Judge CJ noted that although the three forms of this offence do fall into a hierarchy, it does not necessarily follow that the maximum sentence for servitude must always be lower than that for slavery (and so on)78.There must be a deterrent element to sentences, given how hard it is for victims to complain, let alone bring their treatment to the attention of the authorities, and sentences ‘must also emphasise that there is no victim so vulnerable to exploitation, that he or she somehow becomes invisible or unknown to or somehow beyond the protection of the law’79.These remarks would be equally applicable to trafficking offences80. 4.62 Section 2 of the MSA 2015, on the other hand, is not a like-for-like replacement of any one earlier provision, but a combination of the SOA 2003, s 59A and the Asylum and Immigration (Treatment of Claimants, etc) Act 2004, s 4. Section 59A was itself a replacement for several more specific offences (trafficking for sexual exploitation into the UK, within the UK, out of the UK, and outside the UK) under the SOA 2003, ss 57–59. Additional care is therefore required when looking at sentences imposed under any of these previous provisions. Again, the MSA 2015, s 2 offence provides for a maximum penalty, indicative that longer sentences will be imposed. 4.63 Trafficking for sexual exploitation may, all other things being equal, attract a heavier sentence than trafficking for other exploitation81. There is a Sentencing Council definitive guideline (as part of the sexual offences guidelines) for offences under the SOA 2003, s 59A, which will remain applicable to offences committed before the MSA  2015 came into force, and can provide some assistance when sentencing for trafficking for sexual exploitation under the MSA 2015, s 2, if the increased maximum sentence is taken into account. 4.64 Offenders convicted under the SOA  2003, ss  57–59A or the Asylum and Immigration (Treatment of Claimants, etc) Act 2004, s 4 often fell to be sentenced not just for the arranging or facilitating of travel, but for the exploitation of the victims themselves after transportation, because, in practice, defendants tended 78 A-G’s Reference (Nos 2-5 of 2013) (William Connors) [2013] EWCA Crim 324, [2013] 2 Cr App Rep (S) 71 at [8]. 79 Ibid at [10]. 80 It should be noted that before the Coroners Act 2009 no offence of slavery/servitude/forced or compulsory was legislated for, which was a difficulty identified in R v SK [2011] EWCA Crim 1691, [2013] QB 82. 81 A-G’s Reference (Nos 37, 38 and 65 of 2010) (Khan) [2010] EWCA Crim 2880, [2011] 2 Cr App Rep (S) 31 at [16].

125

4.65  Criminal offences of trafficking

to be involved in that aspect of the exploitation as well. For this reason, many of the considerations relevant to sentencing decisions under these provisions were also relevant to sentencing for offences under the Coroners and Justice Act 2009, s  71. These sentencing considerations will be of relevance in the context of the new provisions. However, in practice those exploiting victims are likely to be sentenced more severely as direct harm factors attributable to those perpetrators are more easily evidenced, which will go to the issue of sentencing. 4.65 The Court of Appeal identified a number of factors which were relevant to sentencing for trafficking offences under the Asylum and Immigration (Treatment of Claimants, etc) Act 2004, s 4: the nature and degree of coercion used to recruit workers; the nature and degree of exploitation exercised once they arrived (involving comparison both with what was promised, and with common standards in the UK); the level and methods of control exercised to prevent the worker from leaving; the worker’s physical, psychological and, most commonly, economic vulnerability; the degree of physical, psychological and financial harm suffered by the worker; the level of organisation and planning and the offender’s role within that organisation; the financial rewards for the offender; the number of people exploited and the length of time over which victims had been subjected to exploitation. Previous similar convictions are also relevant as aggravating factors82. 4.66 In a later forced labour case, an almost identical list of factors was said to be relevant, although the court did not expressly refer to the previous decision. Working conditions were listed as a separate factor. It was also noted that deliberate targeting of vulnerable victims is an aggravating feature83. In R  v Connors84, C was convicted, after a trial, of one count of conspiring to require a person to perform forced or compulsory labour. Workers were forced to work long hours, seven days a week, for around £10 a day. They were not provided with proper equipment. They were given very poor accommodation. They were subjected to threats of, and occasional use of, violence, over a one-year indictment period. Their offending behaviour was aggravated by the victims’ pre-existing vulnerability. The Crown Court imposed a six-and-a-half-year sentence of imprisonment for the head of the household. For him, the offending was a way of life. He had raised the other defendants so that they committed the offence with him. He had £370,000 in his bank account when arrested. The Court of Appeal said that the sentence was lenient but not unduly lenient. Permission was refused to refer sentences of three years’ imprisonment each for: (1) a defendant who was 17 at the start of the indictment, brought into the 82 Ibid at [17]. These same factors are applicable for offences predating and post MSA 2015. 83 At [9]. 84 [2013] EWCA Crim 324, [2013] 2 Cr App Rep (S) 451.

126

Transposition 4.69

criminality by his father; and (2) another defendant who intervened to prevent violence and used some machinery and outside help on jobs to reduce the reliance on exploited labour85. It was subsequently noted that this case was not intended to be a guideline case: substantial weight was given to the view of the judge who had presided over a lengthy trial86. 4.67 In R  v Connors (Josie)87, leave to appeal against sentence was refused for a defendant sentenced to a total of 11 years’ imprisonment for two counts of holding a person in servitude (along with forced labour counts in respect of the same victims), and one of assault occasioning actual bodily harm. The workers were malnourished, lived in a caravan with no washing or toilet facilities, worked 16-hour days with no pay or breaks, were periodically seriously assaulted and were threatened with murder if they ran away. One worker had been kept by the family for seven years, and had been forced back to work three days after breaking his foot88. 4.68 In A-G’s Reference (No 35 of 2016) (Rafiq)89, a trafficking case, the court did not change the sentence of 27 months’ imprisonment. In that appeal, the company director had, for at least a year, employed workers whom he knew had been trafficked into the UK. The workers had been paid only £10 a week. They were housed in very overcrowded and squalid conditions. A large number of strong character witnesses spoke to his positive qualities. He was not a primary offender in the trafficking. There was no credit for a guilty plea. 4.69 In R v Khan90 the Court of Appeal held that three years’ imprisonment was unduly lenient. Two brothers effectively ran a restaurant employing nine vulnerable men.They were recruited overseas with false promises.The defendants obtained fraudulent visas for them.The victims’ documents and savings were taken.They were threatened with violence (although none was used) and forced to work up to 13 hours a day, 6 or 7 days a week. The defendants had many testimonials of good character, but the conspiracy had lasted for over four years.The court held that a sentence of five years after trial would have been appropriate (although four years was imposed, taking account of double jeopardy).

85  Ibid. 86 At [48]. 87 [2013] EWCA Crim 368. 88 Ibid. Sentences for other defendants are also considered in that case. For other cases considering sentencing under the Coroners and Justice Act 2009, s 71, see A-G’s Reference (Nos 146 and 147 of 2015) (Edet) [2016] EWCA Crim 347, and R v Joyce [2017] EWCA Crim 337. 89 [2016] EWCA Crim 1368. 90 [2010] EWCA Crim 2880.

127

4.70  Criminal offences of trafficking

4.70 Cases concerning trafficking for sexual exploitation are likely to be of less assistance than the definitive guideline.

Committing any offence with intent to commit an offence under s 2 4.71 By s  4 of MSA  2015 ‘a person commits an offence … if [he] commits any offence with the intention of committing an offence under section 2 (including an offence committed by aiding, abetting, counselling or procuring an offence under that section)’. Section 4 creates an offence which mirrors s 62 of the Sexual Offences Act 2003: committing an offence with intent to commit a sexual offence (including an offence of aiding, abetting, counselling or procuring such an offence). Section 62 criminalises those who intend to commit a sexual offence or with intent to aid or abet the commission of a sexual offence. Section 4 was introduced to ensure parity for offences of nonsexual exploitation. Its purpose was to criminalise those who, for example, provided forged or false documents to enable the trafficking. Such behaviour could also amount to an inchoate offence of attempted human trafficking, or of aiding, abetting, counselling or procuring human trafficking, or of conspiring to commit a human trafficking offence. However, s  4 provides a means for enabling trafficking to be taken into consideration as an aggravating feature of another substantive offence. This section will have application for prosecution and defence practitioners alike in striving to ensure that the full criminality of any offending is properly encompassed within the charge. 4.72 Technically, s  4 creates two offences, since there are different maximum sentences applicable: in general, the maximum is 10 years, but where the offence committed is kidnapping or false imprisonment, it is life imprisonment91. To date, prosecutions for an offence under s 4 have been predicated on kidnapping and false imprisonment, since they are frequently how victims have been recruited or exploited.

Unlawful restriction of liberty 4.73 Three offences that share the common feature of unlawful restriction of the victim’s liberty are kidnapping, false imprisonment and child abduction. These 91 MSA 2015, s 5(3).

128

Transposition 4.76

offences may arise in a slavery, servitude, forced labour or compulsory labour or trafficking context. Where the criminal offence can properly be construed as either an MSA 2015, s 1 or s 2 offence then that would be the appropriate charge. However, where one or more of the elements cannot be made out in these offences it may be appropriate to consider alternative charges, or in circumstances where an offence under MSA  2015 is tangential to the actual offending or it is easier to explain to a jury. The offences of kidnap and false imprisonment carry the same maximum penalty as offences under MSA 2015.

Kidnapping and false imprisonment 4.74 These two common law offences, although separate offences with distinct elements, are often considered in the same cases.

Kidnapping – elements of the offence 4.75 The elements of kidnapping are as follows: (i)

deprivation of personal liberty;

(ii) the taking or carrying away of one person by another; (iii) by force (or threat of force) or fraud; (iv) without the consent of the person so taken or carried away; (v) without lawful excuse92. 4.76 The ‘taking or carrying away’ need not involve the victim being taken or carried very far: about 100 yards was sufficient in R v Wellard93. The victim himself can be the driver of the vehicle which carries him away, or indeed the victim can walk the relevant journey, if he does so as a result of force or fraud94. However, if the defendant merely induces the victim by fraud to take a journey on which 92 These elements are largely derived from the speech of Lord Brandon of Oakbrook, with which the rest of their Lordships materially agreed, in R v D [1984] AC 778 at 800. Although deprivation of liberty was not one of the elements enumerated in D, it was mentioned, and the Court of Appeal in R v HendyFreegard [2007]  EWCA  Crim 1236, [2008]  QB  57 at [42] confirmed that this remained a necessary element of the offence. In respect of what is item (iii) on this list, Lord Brandon referred only to force or fraud, but it was clarified in R v Archer [2011] EWCA Crim 2252, [2012] Crim LR 292 at [27]–[30], that this includes a threat of force. 93 (1978) 67 Cr App Rep 364 at 367. 94 R v Archer [2011] EWCA Crim 2252, [2012] Crim LR 292 (victim drove himself and the defendant); R v Wellard (1978) 67 Cr App Rep 364 (victim walked with the defendant).

129

4.77  Criminal offences of trafficking

the defendant does not accompany him, then this will not amount to ‘taking and carrying away’ or a deprivation of liberty95. 4.77 A lack of consent may be inferred where (for example) the victim is too young to understand what it is he is consenting to. The consent of a parent in such a situation is not relevant to kidnapping (although if there is parental consent, it may give rise to a defence of lawful excuse)96. If the victim initially consents to the taking or carrying away, but that consent is later withdrawn, the offence is committed using force to maintain the kidnapping97. However, the requirement of force, threat of force, or fraud remains even where the victim is a child, and it is not hard to imagine cases in which force, threat or fraud may not be needed to induce a child (or an adult with impaired development) to go with the defendant98. In such cases the offence would not be made out, although a child abduction offence might be. 4.78 There is authority that a ‘lawful excuse’ must amount to necessity to be sufficient for a defence99. However, this decision has been rightly criticised as too restrictive (for example, criminalising the father who carries his child away after a visit to a grandmother’s house)100, and it seems unlikely it would be followed. 4.79 Both kidnapping and false imprisonment are described in the cases as offences of recklessness101.

False imprisonment – elements of the offence 4.80 False imprisonment ‘consists in the unlawful and intentional or reckless restraint of a victim’s freedom of movement from a particular place. It is unlawful detention which stops the victim moving away as he would wish to move’102. 95 R v Hendy-Freegard [2007] EWCA Crim 1236, [2008] QB 57 at [58]. 96 R v D [1984] AC 778 at 806. 97 R v Lewis (1993) 14 Cr App Rep (S) 744. This decision seems dubious – the different elements of the offence would appear not to coincide if the taking or carrying away occurs when there is consent. R v Nnamdi [2005] EWCA Crim 74 supports the view that they do need to coincide. In such circumstances it may be that false imprisonment is a more realistic charge. 98 Re HM (vulnerable adult) (abduction) [2010] EWHC 870 (Fam), [2010] 2 FLR 1057 at [60]. 99 R v Henman [1987] Crim LR 333. 100 See the commentary in [1987] Crim LR 333. 101 R v Hutchins [1988] Crim LR 379. 102 R v Rahman (1985) 81 Cr App Rep 349 at 353–354.

130

Transposition 4.83

This restraint may be physical but may also be by deliberate intimidation103. Intimidation may not be required, if the victim is compelled to remain104. 4.81 The mens rea of false imprisonment is intention or reckless restraint of the victim’s freedom of movement from a particular place105. The defendant’s belief that he is acting in the victim’s best interests does not amount to a defence, even if accepted106.

Sentence 4.82 Both offences are triable only on indictment, and the maximum sentence is life imprisonment107. Extended sentences under the Criminal Justice Act 2003, s 226A are available, but automatic life sentences for second offences do not apply108. No guidelines have been issued by the Sentencing Council in respect of these offences. 4.83 Approximate guidance on kidnapping was given almost 30 years ago in R  v Spence and Thomas109, in which it was said that at the lower end of the scale events arising out of family disputes scarcely qualified as kidnapping; whereas, at the other end, there were carefully planned abductions where the victim was used as a hostage or ransom money demanded – for such offences sentences of eight years and up (significantly more where serious aggravating features were present) would be appropriate.The facts of that case, which would now be seen as almost archetypal trafficking (victim taken by force from Southampton to London with the intention of making her work as a prostitute, but rescued on arrival in London), were said to fall between those two extremes, and sentences of six years’ and four years’ imprisonment respectively for two defendants (the former more culpable and with worse antecedents) were appropriate, in place of sentences for eight years’ and six years’ imprisonment110.

103 R v James [1997] 34 LS Gaz R 27. 104 This would appear to be the effect of Hunter v Johnson (1884) 13 QBD 225, where it was unlawful for a school to detain a boy outside school hours, with no suggestion of violence or intimidation. Although it is not expressly described to be a case of false imprisonment, that is the logical inference. See also R v Motroc (Ionut Viorel), WL 03083561 (2019) – false imprisonment need not be physical. 105 R v Hutchins [1988] Crim LR 379. 106 E.g. R v Saker [2011] EWCA Crim 1196, [2012] 1 Cr App Rep (S) 87. 107 Confirmed in respect of false imprisonment by R v Szczerba [2002] EWCA Crim 440, [2002] 2 Cr App Rep (S) 86 at [15]–[19]. 108 False imprisonment and kidnapping both appearing in the CJA 2003, Sch 15, but not in Sch 15B. 109 (1983) 5 Cr App Rep (S) 413. 110 R v Spence and Thomas (1983) 5 Cr App Rep (S) 413.

131

4.84  Criminal offences of trafficking

4.84 The guidance given in Spence for offences at the upper end of the scale has been overtaken by more recent cases. In A-G’s Reference (Nos 92 and 93 of 2014) (R v Gibney), sentences starting around 10 years were appropriate where violence had been used and money demanded111. Relevant factors were identified in such cases. Not all factors would be apposite in a trafficking context, but those that would include: the length and circumstances of detention, any method of restraint; the extent of any violence used; involvement of weapons; the effect on the victim and others; the extent of planning; the use of torture or humiliation; and whether the victim was particularly vulnerable112. There is a tension between this case and A-G’s Reference (Nos 102 and 103 of 2014) (R v Perkins)113, decided only a fortnight later, where it was held that ‘cases involving hostage-taking and demands for ransom will attract figures close to the 16-year starting point; others, where such behaviour has been absent, will still attract double figures, regardless of the degree of violence meted out’. 4.85 In, R v Pearson-Gaballonie114, seven years’ imprisonment in total was appropriate for offences of actual bodily harm (‘ABH’), making threats to kill, and false imprisonment, where the defendant’s 24 year-old sister-in-law was expected to look after the defendant’s six children and clean, she was kept in the house naked against her will, beaten regularly, and had her hair cut off, over ‘a substantial period’. The sentence in respect of the false imprisonment itself was four years’ imprisonment, consecutive to a further three years in respect of some of the counts of ABH. The facts in that case would most probably now be brought within the scope of a s  1  MSA  2015 offence (Article  4: servitude or forced labour). 4.86 In A-G’s Reference (No 6 of 2004)115, the defendant brought a number of young women and girls to the UK in breach of immigration laws, coerced them to work as prostitutes, incited the rape of one. Three of the victims were held to have been kidnapped (albeit by fraud, rather than by force). Consecutive sentences were appropriate for the sexual offences, kidnapping, and immigration offences, giving a total of 23 years’ imprisonment. Of this sentence, 10 years was attributable to the kidnapping.

111 [2014] EWCA Crim 2713, [2015] 1 Cr App Rep (S) 44 at [17] and [22]. 112 Ibid at [19]. 113 [2014] EWCA Crim 2922, [2015] 1 Cr App Rep (S) 55 at [29]. 114 [2007] EWCA Crim 3504. See also A-G’s Reference (No 9 of 2014) (R v R (David)) [2014] EWCA Crim 952, in which a sentence for six-and-a-half years’ imprisonment was upheld for false imprisonment and ABH. 115 [2004] EWCA Crim 1275, [2005] 1 Cr App Rep (S) 19.

132

Child abduction 4.91

Child abduction 4.87 As mentioned above, an offence under the Child Abduction Act 1984, s 2 might be used in place of a kidnapping charge, especially where the element of force, threat or fraud is absent. Section 2(1) is in the following terms: ‘Subject to subsection (3) below, a person, other than one mentioned in subsection (2) below commits an offence if, without lawful authority or reasonable excuse, he takes or detains a child under the age of sixteen— (a) so as to remove him from the lawful control of any person having lawful control of the child; or (b) so as to keep him out of the lawful control of any person entitled to lawful control of the child.’ 4.88 Broadly speaking, the persons mentioned in s 2(2), who cannot be guilty of this offence, are parents and guardians. Section 2(3) provides defences which are discussed below. 4.89 There are two ways of committing the offence, as set out in s 2(1)(a) and (b), and an offence under subsection (1)(a) is not committed by an unlawful taking or detention after the victim has already been removed from the lawful control of, for example, his parents116. 4.90 In s 3(a) of the Child Abduction Act 1984, ‘taking’ is defined broadly: ‘a person shall be regarded as taking a child if he causes or induces the child to accompany him or any other person or causes the child to be taken’. Section 3(c) provides a similarly broad definition of ‘detaining’. The consent of the child is irrelevant to the offence – even if one cause of the child being removed from or kept out of the lawful control of the relevant person is the child’s own free choice, the offence will still be committed if the defendant’s actions are an effective cause of the child accompanying him117. 4.91 The taking or detention of the child must be intentional or reckless – but it is not part of the offence to prove that the defendant knew that by doing so 116 Foster v DPP [2004] EWHC 2955 (Admin), [2005] 1 WLR 1400. 117 R v A (child abduction) [2000] 1 Cr App Rep 418 at 422–424.

133

4.92  Criminal offences of trafficking

he was removing or keeping the child from the lawful control of someone else. However, in some cases, a lack of such knowledge might be linked to a reasonable excuse118. The burden of proving that there was no lawful authority or reasonable excuse is on the Crown119. What can amount to a ‘reasonable excuse’ is not defined by statute. At present there is no restriction imposed on the defence by case law. Case law concerning ‘reasonable excuse’ in other contexts is indicative of the likely scope of the defence but presently there is scope for the boundaries to be tested by the courts. There are three defences under the Child Abduction Act 1984, s 2(3), two of which (the defendant being, or reasonably believing that he is, the father of a child whose parents were not married at the time of birth) are unlikely to be relevant in trafficking or slavery cases. However, the third is provided for through s 2(3)(b): it is a defence for a defendant to prove that he believed the child to be 16 or over. This belief need not be reasonable, if it is honestly held120. Thus, in the context of abduction, if a defendant believed the victim was 16 or over then conduct sufficient to amount to kidnapping is required before the defendant’s behaviour is criminalised. No offence is therefore established if force or fraud sufficient for a kidnapping has not been proved, and a belief that the victim is 16 or over can be proved by the defendant.

Sentence 4.92 The offence is triable either way, with a maximum sentence of seven years’ imprisonment if tried on indictment, and six months’ imprisonment if tried summarily121. It has been noted that the disparity between this and the maximum life sentence for kidnapping seems illogical, and that in the worst cases of child abduction the maximum sentence may be too low122. Although the case of R v RH sets out a detailed approach to sentencing child abduction cases in general, akin to a full sentencing guideline123, little guidance is available for sentencing in cases with slavery or trafficking elements. In such cases more assistance may be gained from the cases already referred to in relation to other offences, with suitable adjustment made for: (a) the increased seriousness of an offence committed against a child; but also (b) the absence of features such as force or fraud.

118 Foster v DPP [2004] EWHC 2955 (Admin), [2005] 1 WLR 1400 at [27]. 119 R v Berry [1996] 2 Cr App Rep 226 at 229. 120 R v Heys [2011] EWCA Crim 2112 at [6]. 121 Child Abduction Act 1984, s 4(1). 122 R v Kayani [2011] EWCA Crim 2871, [2012] 2 All ER 641 at [5] and [16]. 123 R v RH [2016] EWCA Crim 1754, [2017] 4 WLR 81 especially [7]–[14].

134

Immigration offences 4.95

Immigration offences 4.93 Trafficking can go hand in glove with breaches of immigration law, albeit it will be recalled that the offence does not require a crossing of national borders but simply movement from one location to another for the purposes of exploitation. Immigration offences may be apposite where trafficking occurs from a state outside the EU and in certain other circumstances where defendants’ actions engage with immigration law. Immigration crime is a minefield. Those prosecuting and defending in immigration crime would be well advised to read the judgment in R v Boateng124.This case is instructive, it shows the various ways in which mistakes can be made by a prosecutor in indicting immigration offences and which mistakes can be made by defence representatives. 4.94 The offence of primary importance is s 25 of the Immigration Act 1971, which sets out that: ‘(1) A person commits an offence if he— (a) does an act which facilitates the commission of a breach or attempted breach of immigration law by an individual who is not a citizen of the European Union, (b) knows or has reasonable cause for believing that the act facilitates the commission of a breach or attempted breach of immigration law by the individual, and (c) knows or has reasonable cause for believing that the individual is not a citizen of the European Union.’ 4.95 It is notable that this section as originally enacted, and in force until as recently as 2003, was concerned with securing or facilitating entry into the UK of illegal entrants, and related matters. The ‘immigration law’ the breach of which is facilitated must be one which controls entitlement of non-nationals to enter, transit across or be in the state125, so it does not include, for example, laws which create document offences126. The breach which the defendant facilitates need not actually be completed by the third party, nor does it need to amount to an offence127.

124 [2016] EWCA Crim 57, [2016] 2 Cr App Rep 43. 125 Immigration Act 1971, s 25(2). 126 R v Kapoor [2012] EWCA Crim 435, [2012] 2 All ER 1205 at [36]. 127 R v Javaherifard [2005] EWCA Crim 3231 at [37] and [44].

135

4.96  Criminal offences of trafficking

4.96 There was doubt over whether this offence required that the individual who breached the relevant immigration law (usually the person who entered the UK unlawfully), as well as the facilitator (the person arranging the travel and breach of immigration law) needed to have committed a criminal offence in order for the facilitator to be guilty of an offence under s 25. It was possible to interpret R  v Kaile128 so as to infer that both individuals had to commit an offence before the facilitator could be guilty of an offence. However, this has been clarified in later cases: on the facts of Kaile criminality by the third party was necessary, since the prosecution case was expressly that the breach facilitated was an offence (including a component of deception committed by the individual) under the Immigration Act 1971, ss 24A or 26. However, if the defendant is alleged to have facilitated some other breach, and such a breach (if considered in isolation) can occur without dishonesty on the part of the third party, then the offence under s 25 does not require such dishonesty either.129. 4.97 As a matter of good practice, an indictment for a s 25 offence should specify which immigration law the defendant is said to have breached. The breach will usually be founded on the Immigration Act 1971, s 3, the section providing the general provisions for regulation and control of entry and stay within the UK. However, a failure to particularise within the indictment will not necessarily be fatal, especially if it is expressly set out in the prosecution’s opening130. Defence practitioners should therefore be ready to request further particulars if it is not clear which immigration law is said to have been breached/targeted for breach: a lack of such a request was relevant when holding that an absence of particulars was not a fatal flaw131.

128 [2009] EWCA Crim 2868 at [16]. 129 R v Boateng [2016] EWCA Crim 57 at [27]. Note: Boateng concerned facilitating the entry of a third party without leave, when leave was required. In that case the particulars of the illegal entry in a s 25 offence should have been framed by reference to s  3 of the Immigration Act 1971 (the general prohibition on entry without leave). What of a deceptive entrant (someone gaining leave by deception) when the person whose entry is facilitated is not dishonest himself (e.g. a child)? It is arguable in such a case that there is no breach of s 3, because leave has been obtained (albeit by deception); so the particulars of the illegal entry in a s 25 offence should not be framed by reference to s 3. On the other hand, the entry into the UK was undoubtedly illegal. The definition of ‘illegal entrant’ (in the Immigration Act 1971, s 33(1) as amended by the Immigration and Asylum Act 1996, Sch 2, para 4(1)) follows: ‘illegal entrant … means a person … entering or seeking to enter [or who has entered the UK] by means which include deception by another person’. Rather than particularising the breach of immigration law by reference to s  3, it is suggested that the breach should be framed by reference to s  33(1). Alternatively, when prosecuting such a case, best practice may well be to invite the Secretary of State to review the grant of leave on the basis that it was obtained by deception with a view to revoking or curtailing leave. In those circumstances, the breach could be framed by reference to s 3. 130 R v Dhall [2013] EWCA Crim 1610 at [15]. 131 Ibid.

136

Immigration offences 4.99

4.98 It is possible to facilitate entry by actions occurring immediately after entry has occurred132. Facilitating an illegal entrant to ‘be’ in the UK may cause a breach of immigration law without that breach itself constituting an offence. The s 25 offence is only committed if, with the requisite guilty knowledge, the acts facilitate the commission of a breach of immigration law controlling, in this instance, ‘being in the State’: that is, being unlawfully in the UK. If an individual provides legal advice about how lawfully and honestly to regularise the stay of someone known to be an illegal entrant, no offence arises: those acts do not facilitate the commission of a breach of immigration law through continued illegal presence; they do the opposite. If someone provides food, money or accommodation to an illegal entrant, knowing or having reasonable cause for believing that such acts facilitate him being in the country as an illegal entrant, he would be guilty of an offence. If food, money or accommodation is supplied to someone known to the provider to be an illegal immigrant, but is not supplied with the knowledge that it will assist his presence as an illegal entrant but instead is supplied knowing that it will assist him simply as a human being, e.g. to avoid degradation or destitution, there would be no offence. The provision of state support and other statutory benefits is made under the protection of statutory provision if no other defence is available, but it is difficult to see how that would assist someone to remain as an illegal entrant, as opposed to remain while seeking to regularise his stay133. Section 25 charges are more likely to be preferred (either alone or as a lesser alternative to a trafficking charge) where evidence of exploitation is less obvious, and thus such a defence more plausible.

Sentence 4.99 Offences under s  25 are triable either way, with the maximum penalty on indictment being 14 years’ imprisonment. General guidance on aggravating factors was given in R v Le, R v Stark. Such factors included committing the offence for financial gain, duration of the offending when it was not a single incident, and the degree of planning and sophistication.134 The features of trafficking in these cases were not considered. Of note, aggravating factors have not to date considered the harm, or risk of harm to illegal migrants who are being facilitated, where abuse of vulnerability is no doubt a significant feature. Le and Stark was also decided at a time when the maximum sentence for this offence 132 R v Javaherifard [2005] EWCA Crim 3231 at [29]. Although this was a decision on s 25 after it had been amended to (so far as is relevant) its current form, it appears the decision owed a certain amount to the pre-2003 wording (which created offences such as ‘facilitating … the entry into the United Kingdom of … an illegal immigrant’). Nonetheless, the principle that acts can be facilitated even after they have been completed, as long as it is sufficiently soon after, could still apply. 133 Ibid at [50]. 134 [1999] 1 Cr App Rep (S) 422, especially 425.

137

4.100  Criminal offences of trafficking

was seven years’ imprisonment, so the specific sentences discussed would no longer be relevant. A more recent decision suggests that the appropriate range into which offences will routinely fall is 3–8 years’ imprisonment, depending on which aggravating factors are present135. 4.100 In Attorney General’s Reference (No  6 of 2004); R  v Plakici136 the sentence for the illegal entry element of the offending was five years’ imprisonment (out of a total of 23 years for criminality which included the commission of serious sexual offences).The court broadly followed the approach of Le and Stark, a key sentencing authority for offences of facilitating illegal entry. Le and Stark was decided when the maximum sentence was 10 years’ imprisonment. A sentence for such an offence today would be higher. Of note, in this case the court also considered the sentencing for the offence of kidnapping in the context of trafficking the victims; in this case 10 years imprisonment was imposed. In a case where the defendant had employed between 50 and 75 security guards who were not entitled to be in the country, and had taken advantage of their status to exploit them, paying wages around £3 per hour and on occasion requiring them to work for 24 hours or more, and where he had forged documents for the workers and made substantial profits over a five-year period, a sentence of four-and-a-half years’ imprisonment was increased to eight years137.

Offences related to the ‘use’ of victims of slavery and trafficking 4.101 There are a wide range of purposes for which victims are trafficked, or held in conditions of slavery, servitude, or forced or compulsory labour. Many such purposes are themselves illegal, so even where trafficking or restriction of liberty are not proved, other offences will often arise.

Sexual exploitation 4.102 Perhaps the most widely recognised purpose for trafficking, is that of sexual exploitation, particularly forced prostitution. Several offences may be relevant 135 Khan at [16]. 136 [2004] EWCA Crim 1275, [2005] 1 Cr App Rep (S) 19. 137 A-G’s Reference No 28 of 2014 (R v Okoh) [2014] EWCA Crim 1723. The conviction was not appealed in this case. It prima facie might have been the subject of an appeal against conviction however, the defendant had assisted the workers to avoid prohibitions on working in the UK, but not to breach an ‘immigration law’ as defined by the act (see para 4.55 above).

138

Offences related to the ‘use’ of victims of slavery and trafficking 4.105

here: causing or inciting prostitution for gain under the SOA 2003, s 52, and controlling prostitution for gain under s 53. Each carries a maximum penalty of seven years’ imprisonment when tried on indictment and both are lifestyle offences for the purposes of the Proceeds of Crime Act 2002. The sexual offences sentencing guideline applies. 4.103 For the s 52 offence to be committed, the defendant must ‘intentionally cause or incite another person to become a prostitute’. An element of the offence is that the complainant has not acted as a prostitute before, and also that the defendant knew this138.Where, therefore, a woman worked as a prostitute in her home country is brought to the UK to do the same, there would be a complete defence where trafficking is based on s 52. However, where the sexual services are controlled, it may be relevant for the offence under s 53. 4.104 ‘Controlling’ prostitution under the SOA  2003, s  53 does not require force or coercion, only direction139. Both offences include a requirement that the defendant acts ‘for or in the expectation of gain for himself or a third person’140. The fact that the gain may not be for defendants themselves highlights that care needs to be taken to consider whether those who are forced into supervisory roles after having been the victims of trafficking themselves should be criminalised (see R v LM141 and R v EK142. In the latter case the defendant was prosecuted but her culpability was reduced because of her status as a VOT. See also Attorney General’s Reference (Nos 129 and 132 of 2006); R v. DelgadoFernandez, Zammit and Thi,143 where the victims were experienced prostitutes before they were trafficked into the UK and had apparently consented to their prostitution: where their services were controlled it was relevant to culpability of the defendant(s) at sentence, and did not preclude a prosecution for trafficking for sexual exploitation. 4.105 Where the complainants are children, offences under the SOA 2003, ss 48, 49 and 50 may be charged – these cover causing or inciting sexual exploitation of a child; controlling it; and arranging or facilitating it, respectively. All are triable either way, with a 14-year maximum sentence on indictment.The sexual offences guideline applies.

138 R v Ubolcharoen [2009] EWCA Crim 3263 at [6]. 139 R v Massey [2007] EWCA Crim 2664, [2008] 2 All ER 969. 140 SOA 2003, ss 52(1)(b) and 53(1)(b). 141 [2010] EWCA Crim 2327, [2011] 1 Cr App Rep 135. 142 [2018] EWCA Crim 2961. 143 [2007] EWCA Crim 762.

139

4.106  Criminal offences of trafficking

4.106 ‘Sexual exploitation’ in the context of ss 48, 49 and 50 of SOA 2003 only covers prostitution and the creation of indecent images144. In each case, unless the complainant is under 13, it is a defence if the defendant reasonably believed the complainant was 18 – this may often be relevant in cases where the complainant is not previously known to the defendant, perhaps having been picked up off the street, whether in the UK or abroad. 4.107 Those whose sole involvement is as customers who are paying for the services of exploited (adult) prostitutes are likely to be guilty of the strict liability offence under SOA 2003, s 53A, punishable with a level 3 fine. Those who pay for sex from children will commit one of a number of offences under SOA 2003, s 47, which attract higher penalties, up to and including life imprisonment.

Drug offences 4.108 A number of cases have shown that forced or compulsory labour is often used in the production of cannabis and other drugs. It may be difficult to show that those in control of such operations have committed an offence under the Misuse of Drugs Act 1971, s  4(2)(a) (producing a controlled drug), they are more likely to be concerned in the production (under the Misuse of Drugs Act 1971, s 4(2)(b)), or to have conspired with the worker or workers to commit a s 4(2)(a) offence, or an offence of cultivation of cannabis under s 6. 4.109 The maximum sentence varies depending on the class of drug, for cannabis cultivation it is 14 years’ imprisonment. These offences are covered by the drug offences sentencing guideline. The defence of lack of knowledge (under the Misuse of Drugs Act 1971, s 28) is likely to be most encountered. In recent years, offences of supplying class A drugs using children and vulnerable adults in county lines cases have been successfully prosecuted under MSA 2015 where the evidence proves the elements of trafficking and exploitation. In the case of R v Karemera145, the Court confirmed that prosecution for trafficking in order to secure services from children or vulnerable adults – now under s 3(6)) – does not depend upon the ability to call the individual said to have been exploited or the target of exploitation. Where evidence does not support an offence under s 2 of MSA 2015, other offences under the Misuse of Drugs 144 SOA 2003, s 51(2). 145 [2018] EWCA Crim 1432.

140

Offences related to the ‘use’ of victims of slavery and trafficking 4.112

Act 1971, including those dealing with possession and supply of class A drugs under ss 4(3) and 5(3) of the 1971 Act, may be appropriate depending on the criminality or culpability of the suspect in the context of his trafficking (see Chapter 5). These offences carry a sentence up to life imprisonment146.

Worker exploitation 4.110 A  gangmaster is a person who supplies a worker to do agricultural work, gathering shellfish, or the processing and packaging of produce from such work147. A  gangmaster must be licensed, pursuant to the Gangmasters (Licensing) Act 2004, s 6. Acting as a gangmaster without a licence or having false documents to make others believe one is licensed, is punishable with up to 10 years’ imprisonment148. This is clearly a very substantial penalty for an offence which is expressed as being concerned with regulatory failings: the true mischief at which it is aimed is the exploitation of workers, which the licensing scheme seeks to prevent. 4.111 A list of factors relevant to sentencing for a s 6 offence, adapted from those set out in the context of trafficking offences, was provided by the Court of Appeal in R  v Morkunas149. In that case the defendant had systematically exploited a significant number of workers over three years, reinforcing economic exploitation with threats and in some cases the use of violence (including one count of assault occasioning actual bodily harm (‘ABH’) of which he was convicted), and had profited to the tune of around £100,000150. A  sentence of seven years’ imprisonment was imposed for the Gangmasters (Licensing) Act 2004 offence, after a 12.5% discount for plea with concurrent sentences for the other offences. This sentence was not interfered with (although the court commented that the judge could have taken a lower starting point for the Gangmasters (Licensing) Act 2004 offence and made the sentence for the ABH offence consecutive). This offending would have fallen within the s 1 MSA 2015 paradigm had they been indicted after 31 July 2015. The list of factors will be relevant in a sentence for s 1. 4.112 A  gangmaster, whether licensed or not, can be in a position where he is expected to safeguard, or to not act against, the financial interests of his workers, 146 See further R v Zakaria Mohammed [2019] EWCA Crim 1881. 147 Gangmasters (Licensing) Act 2004, ss 3 and 4. 148 Gangmasters (Licensing) Act 2004, s 12. 149 [2014] EWCA Crim 2750 at [51]. See paras 3.36 and 4.37 for the list of factors for trafficking offences. 150 Ibid at [59]–[61].

141

4.113  Criminal offences of trafficking

particularly if he collects wages on their behalf. If he makes unwarranted deductions from those wages, an offence of fraud by abuse of position (Fraud Act 2006, s 4) may be committed. This does not mean that all exploitative financial arrangements will amount to fraud: for example, the charging of excessive rents for accommodation that the worker is required to take was discussed and not considered to be sufficient151. 4.113 An offence of failing to pay the national minimum wage is punishable only by way of a fine152. It may therefore be an attractive option for defendants to offer as an alternative plea, prosecutors may not accept it where the evidence of wider exploitation is sufficient.

Other offences 4.114 There is potential for other offences to be disclosed by complainants that have been perpetrated in order to achieve the trafficking/ exploitation, with violence and dishonesty predominating. A  pragmatic approach should be adopted, reflecting the criminality without overloading the indictment. If the offences of violence and dishonesty feature materially in the context of trafficking offending, it might be appropriate to indict them separately. 4.115 Nearly all cases of exploitation are motivated by greed and financial gain and this should be reflected in the charges – money laundering offences founded on ss 327, 328 and/or 329 of the Proceeds of Crime Act 2002 may be appropriate. Criminal property constitutes the benefit from criminal conduct or represents such a benefit (in whole or part and whether directly or indirectly) where the alleged offender knows or suspects that it constitutes or represents such a benefit153. Property can include money, all forms of property or real estate and or things in action and or other intangible or incorporeal property. The definition of criminal property means there is no distinction between the proceeds of the defendant’s own crimes and of crimes committed by others. Thus, laundering one’s own proceeds is just as much money laundering, as laundering someone else’s. Sections 327, 328 and 329 are either way offences with a maximum sentence of 14 years’ imprisonment or a fine or both. 151 R v Valujevs [2014] EWCA Crim 2888, [2015] QB 745. It may be that other fraud offences could apply – for example, fraud by false representation where a trafficking victim is promised a good life at his destination – but of course the gain or loss involved in a fraud must be in money or property, which will often not apply. 152 National Minimum Wage Act 1998, s 31. 153 Section 340(3).

142

Orders on conviction 4.119

4.116 Section 327 of the Proceeds of Crime Act 2002 makes concealing, disguising, converting, transferring or removing criminal property from England and Wales an offence. 4.117 Section 328 of the Proceeds of Crime Act 2002 makes it an offence to enter into or become concerned in an arrangement which a person knows or suspects facilitates (by whatever means) the acquisition, retention, use or control of criminal property by or on behalf of another person.This offence potentially includes a large range of involvement in money laundering offences frequently at the layering and integration stage. It will often be apt for the prosecution of those who launder on behalf of others. This offence can encompass persons who work in financial or credit institutions, accountants etc, who in the course of their work facilitate money laundering by or on behalf of other persons. 4.118 Section 329 of the Proceeds of Crime Act 2002 criminalises the acquisition use and possession of criminal property. This offence can be committed if the accused uses criminal property or passively possesses criminal property. Unlike ss 327 and 328, it does not attract the lifestyle provisions for the purposes of confiscation.

Orders on conviction Confiscation 4.119 Any offence where the defendant benefits can be the subject of confiscation proceedings under the Proceeds of Crime Act 2002; this is likely to apply to most slavery and human trafficking cases. A number of the offences discussed above are ‘lifestyle offences’, listed in the Proceeds of Crime Act 2002, Sch 2, and therefore give rise to the various statutory assumptions in s 10. Offences under the MSA 2015, ss 1 and 2, the Immigration Act 1971, s 25, the SOA 2003, ss 48–50, 52 and 53, and the Misuse of Drugs Act 1971, s 4(2), are all ‘lifestyle offences’. It should be noted that the assumptions also apply to any offence which forms part of a course of criminal activity, or is committed over a period of at least six months (provided that the defendant has benefited from it in the sum of at least £5,000)154.

154 Proceeds of Crime Act 2002, s 75(2).

143

4.120  Criminal offences of trafficking

Forfeiture 4.120 Various forfeiture provisions may be relevant. Under the MSA  2015, s  11, a vehicle used for a trafficking offence under s 2 may be forfeited.The Immigration Act 1971, s 25C provides for a similar power in relation to offences contrary to s 25 of that Act. Section 27 of the Misuse of Drugs Act 1971 provides a wider power, allowing ‘anything shown to the satisfaction of the court to relate to the offence’ to be forfeited where an offence under that Act has been committed. In all cases, the general power under the Powers of Criminal Courts (Sentencing) Act 2000, s 143 allows property in the possession or control of the defendant at the time of his arrest, and used or intended to be used for committing or facilitating any offence, to be taken. Such forfeiture orders are part of the punishment of the offender, so should be taken into account when considering totality155. When defending it is worth bearing in mind that if an asset could form part of a defendant’s recoverable amount in confiscation proceedings, by agreeing that it can be forfeited under s 143, the defendant will be at risk of the state recovering that money twice.

Civil orders 4.121 On or after conviction for an offence listed in the MSA 2015, Sch 1 (which broadly covers offences under the MSA 2015, the predecessors to those offences, and inchoate versions of those offences) the court can impose a ‘slavery and traffic prevention order’ (‘STPO’) (see ss  14–17). Such orders can impose prohibitions on the defendant doing anything described in the order, if necessary, to protect others from harm because of further slavery or trafficking offences. The prohibitions are confined to restricting the activities of each defendant tailored to the role they have played. Examples of possible prohibitions are given in the explanatory notes to the Act, including participating in particular kinds of business, acting as a gangmaster, visiting particular places, restricting contact with specified individuals, transporting others in a vehicle, owning more than one mobile phone or working with children156. There is no restriction on the kind of prohibition that can be imposed, however, the restriction must relate to the activities of the individual. Unusually they have international reach, and if there is an evidenced agreement and/or consent from the other jurisdiction the orders can be imposed both domestically and or internationally.

155 R v Buddo (1982) 4 Cr App Rep (S) 268, [1982] Crim LR 837. 156 Explanatory notes, para 80.

144

Orders on conviction 4.124

4.122 The Act makes further provisions as to prohibition on foreign travel, and the requirement to provide one’s name and address to police, but orders are not limited to these conditions. The magistrates’ court can also impose ‘slavery and trafficking risk orders’ (‘STROs’) by virtue of the MSA 2015, s 23 where the defendant has not been convicted, but has acted in a way that shows a risk of committing such offences or to protect others from the risk of harm; these can only be applied for by specified law enforcement agencies. Risk orders can be made for up to five years. Interim ROs may also be made. The interim orders are particularly important where an investigation is on-going and there is a need to protect potential victims of trafficking from a risk of harm. The Home Office has issued guidance on STPOs and STROs, and the forms to be used for applications157. 4.123 Serious crime prevention orders (‘SCPOs’) can be imposed either by the Crown Court on conviction for a serious offence, or by the High Court if satisfied that the person has committed or facilitated the commission of such an offence (or acted in a way likely to do so)158. A serious offence is either one listed in the Serious Crime Act 2007, Sch 1, Part 1, which includes the majority of offences discussed in this chapter, or one which in the circumstances of the case is sufficiently serious to be treated as if it was listed159. SCPOs can contain a wider range of restrictions, requirements and other terms (as well as prohibitions) than STPOs and STROs, but cannot be in force for more than five years (although this does not prevent an application to the High Court for a new order in the same terms as the old one)160. They can only be made on application by the DPP or the director of the SFO161. 4.124 The terms of an order must protect the public by preventing, restricting, or disrupting the defendant’s involvement in serious crime162, and must be commensurate with the risk163.They must be precise, practicable and enforceable, and be preventative not punitive164.These general comments should, as a matter of principle, also apply to STPOs and STROs. Prosecution authorities have historically applied for SCPOs in circumstances where the facts of individual cases have rendered the applications inappropriate. It is important to look

157 Available at www.gov.uk/government/publications/slavery-and-trafficking-prevention-and-risk-orders. 158 Serious Crime Act 2007, ss 1, 2 and 19. 159 Serious Crime Act 2007, s 2(2). 160 Serious Crime Act 2007, s 16. 161 Serious Crime Act 2007, s 8. 162 Serious Crime Act 2007, s 1(1)(b). 163 R v Hancox [2010] EWCA Crim 102, [2010] 4 All ER 537 at [10]. 164 Ibid at [11]–[12].

145

4.125  Criminal offences of trafficking

beyond the charge to the underlying facts and background circumstances when considering these orders. 4.125 Finally, sexual harm prevention orders (SHPOs) may be imposed on a defendant convicted of any of various sexual and non-sexual offences, listed in the SOA 2003, Schs 3 and 5165. These schedules include all the sexual offences discussed above with the exception of the strict liability offence for customers of exploited prostitutes (SOA 2003, s 53A), and also include trafficking under the MSA 2015, s 2, kidnapping, false imprisonment, and child abduction. Breach of any of these orders is an either way offence, with a maximum sentence of five years166. Guidance on sentencing for breach of an SCPO, likely to be applicable in other cases as well, was given in R v Koli167.

Commentary on MSA 2015 4.126 Two independent parliamentary inquiries, which called for evidence from a wide variety of sources, have found the offences in MSA 2015 to be sufficiently broad reaching and flexible to respond to different and emerging forms of exploitation. As the Strasbourg Court made clear in Chowdury v Greece168 to fulfil the positive obligation to criminalise and effectively punish any act referred to in ECHR, Article 4, States must establish a legislative and administrative framework that prohibits and punishes forced labour or compulsory labour, servitude and slavery. The court re-affirmed that trafficking falls within the scope of the ECHR, Art 4 and a legislative and administrative framework must be in place to punish any act of trafficking169. In Rantsev v Cyprus and Russia170 the court held that human trafficking, within the meaning of the Palermo Protocol, Art 3(a) and ECAT, Art 4(a), fell within the scope of the ECHR, Art 4171. 4.127 The EU  Trafficking Directive, Art 2(1) requires Member States to take the necessary measures to ensure that the following intentional acts are punishable:

165 SOA 2003, s 103A. 166 MSA 2015, s 30 (for STPOs and STROs), Serious Crime Act 2007, s 25 (for SCPOs), and SOA 2003, s 103I (for SHPOs). 167 [2012] EWCA Crim 1869, [2013] 1 Cr App Rep (S) 39. 168 App No 21884/15 (30 March 2017) at 105. 169 Ibid at para 86 and 87. 170 (2010) BHRC 313. 171 Para 282.

146

Orders on conviction 4.130

‘The recruitment, transportation, transfer, harbouring or reception of persons, including the exchange or transfer of control over those 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 position 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’. 4.128 This provision is dealt with at length in Chapter 1. The statutory language on the meaning of exploitation (MSA 2015, s 3) in s 3(4)–(6) does not mirror and/ or reflect all the ‘means’ envisaged under the EU Trafficking Directive, Art 2(1) and/or ECAT, Art 4. Whereas the language of the EU  Trafficking Directive, Art 2(1) and ECAT, Art 4 envisages that the ‘means’ by which exploitation is committed can apply across all forms of exploitation, the MSA 2015, s 3(4)–(6) suggests that different means apply depending on what the form of exploitation is. This is an approach that is at odds with the approach of the regional instruments defining trafficking and thus non-compliant with ECAT, Art 4 or the EU Trafficking Directive172. 4.129 The wording of the MSA 2015, s 3(6) fails to deal with ‘consent’. Section 3(6) does not adequately address the position in law (as per the EU  Trafficking Directive,Art 2) that the question of consent is entirely irrelevant to determining whether a child has been exploited. Further, s 3(6) conflates the position of two distinct (although at times overlapping) groups of trafficked victims: children and those who are in a position of vulnerability. As made clear under Art 2(4) and para 11 of the Preamble to the EU Trafficking Directive, consent is not only irrelevant when considering whether a child is a VOT. Consent is also irrelevant in respect of adults where the ‘means’ of exploitation entails the use of force, threats, deception, coercion, abduction, abuse of power or a position of vulnerability, giving/receiving payments or benefits to achieve the consent of a person having control over another. Section 3(6) of the MSA 2015 does not reflect the true position on the (ir)relevance of consent in these circumstances173. 4.130 Further, s 3(6)(b) establishes a subjective test, importing a measure of evaluative judgement. ECAT and the EU Trafficking Directive do not require an evaluative judgement. Where the victim is a child, and he is subjected to an action which amounts to exploitation, objectively, that child has been trafficked. The test is 172 CN v United Kingdom and CN and V v France (App No 67724/09) (11 October 2012). 173 R v K, W, A [2018] EWCA Crim 1432; R v Nguyen, Tran and Nguyen [2019] EWCA Crim 670; R v Rooney and others [2019] EWCA Crim 681.

147

4.131  Criminal offences of trafficking

an entirely objective test where children are concerned. It is irrelevant whether a reasonable adult may or may not have consented to the exploitation ‘services’ in the assessment of whether that child is an exploited child. 4.131 Another pressing problem with the MSA 2015 offences is one of enforcement: although there have been recent increases in detection and prosecution, a review of the MSA’s effect carried out after one year concluded that the number of recorded modern slavery offences was less than 10% of the likely number of actual offences, and the number of prosecutions was less than 15% of the number of recorded offences174. 4.132 There has also been criticism of the failure of the MSA  2015 to provide a standalone offence of exploitation: exploitation within s  3 is a necessary condition for a trafficking offence under s 2, and comprises relevant evidence when determining whether a s 1 offence has been committed, but does not amount to an offence in itself175. The joint select committee on the Modern Slavery Bill proposed a standalone offence of exploitation176. However, having been considered in a more recent (2019) independent parliamentary inquiry into the Act, it was again rejected.177 4.133 It could be argued that such a standalone ‘exploitation’ offence is unnecessary. Given the definition of exploitation in s 3, behaviour caught by it would in many cases amount to one or more other criminal offences (including offences under the MSA 2015, s 1, various sexual offences, and secondary participation in Human Tissue Act 2004 offences). Such offences, however, may not always carry appropriate maximum penalties: sentences for Human Tissue Act offences vary up to a maximum of three years’ imprisonment, which may not adequately reflect the gravity of controlling organ harvesting or egg harvesting, for example. 4.134 In addition, whilst behaviour that amounts to exploitation under the MSA 2015, s  3 may often amount to another offence as well, it would not always. This is particularly true of the exploitation of children or vulnerable persons, as provided for by s 3(6). Any use or attempted use of such a person to obtain 174 C Haughey, The Modern Slavery Act Review (2016) p 12. 175 See P Rook and R Ward, Rook and Ward on Sexual Offences Law and Practice (5th edn,Thompson Reuters, 2016). 176 Joint Committee on the Draft Modern Slavery Bill, Draft Modern Slavery Bill Report (2013–14, HL166, HC1019). 177 Independent review of the Modern Slavery Act: final report; 22 May 2019.

148

Orders on conviction 4.134

services or benefits amounts to exploitation, if he has been chosen because of his vulnerability and because he would otherwise be likely to refuse. This kind of exploitation would be unlikely to amount to another offence in most cases, unless the victim could be shown to have been forced to act as he did. Nor will it amount to trafficking unless there has been movement of the victim, or amount to forced or compulsory labour unless there is a menace of penalty178.

178 Joint Committee on the Draft Modern Slavery Bill, Draft Modern Slavery Bill Report (2013–14, HL166, HC1019) at [13]–[16].

149

5 Criminal defences available to victims of trafficking Ben Douglas–Jones QC, Michelle Brewer and Pam Bowen CBE

Introduction 5.1 The domestic safeguards in England and Wales concerning victims of human trafficking who are prosecuted for criminal offences stem from the ‘Palermo Protocol’1; the Council of Europe Convention on Action against Trafficking in Human Beings 20052, ratified by the UK in December 2008 (‘ECAT’), specifically Art 26; EU Directive 2011/36/EU on Preventing and Combating Trafficking in Human Beings and Protecting its Victims (‘the EU Trafficking Directive’), specifically Art 8; and Art 4 of the European Convention on Human Rights and Fundamental Freedoms. 5.2 Those international safeguards concern the protection of victims of trafficking, the ‘non-punishment’ and ‘non-prosecution’ of people who commit criminal offences who are also victims of trafficking (where trafficking is defined by reference to ‘exploitation’ and includes slavery and forced labour) and the prohibition on slavery and forced labour. 5.3 Historically, those safeguards were implemented in England and Wales through the common law defence of duress and the Crown Prosecution Service’s ‘guidance on suspects in a criminal case who might be victims of trafficking or slavery’ (‘the CPS guidance’), coupled with the remedy of abuse of process. 5.4 Since 31 July 2015, when the Modern Slavery Act 2015 (‘MSA 2015’), s 45 came into force, the non-punishment protections have been supplemented 1 The 2000 Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children.This protocol supplemented the UN Convention against Transnational Organized Crime.The protocol was ratified by the UK on 9 February 2006. 2 CETS No 197.

151

5.5  Criminal defences available to victims of trafficking

in England and Wales by the inclusion of the statutory defence available to defendants facing certain non-excluded offences who are victims of slavery or trafficking exploitation.

Non-punishment principle: International instrument Palermo Protocol 5.5 The modern international law framework for the protection of victims of trafficking derives from the Palermo Protocol.The Protocol supplements, and is interpreted together with, the UN Convention against Transnational Organized Crime3. Through the Preamble to the Protocol state parties declared: ‘… that effective action to prevent and combat trafficking in persons, especially women and children, requires a comprehensive international approach in the countries of origin, transit and destination that includes measures to prevent such trafficking, to punish the traffickers and to protect the victims of such trafficking, including by protecting their internationally recognized human rights …’. 5.6 The Protocol defined and explained the concept of ‘trafficking’4. There is no separate concept of slavery. Trafficking in international law includes the harbouring or receipt of persons by various means of compulsion5 for exploitation. It therefore includes slavery as a form of trafficking. Unlike the regional trafficking instruments (see below, at para 5.8 onwards), the scope of the Protocol was limited to transnational trafficking6. 5.7 Although the Protocol itself was silent on the non-punishment of trafficking victims who had committed offences as a consequence of their trafficking, the Working Group on Trafficking in Persons in January 2010 prepared a background paper ‘Non-punishment and non-prosecution of victims of trafficking in persons: administrative and judicial approaches to offences committed in the process of such trafficking’7. 3 Palermo Protocol, Art 1.1. 4 Palermo Protocol, Art 3. 5 See the commentary below in the context of ECAT. 6 See Art 4. 7 Available at: https://www.unodc.org/documents/treaties/organized_crime/2010_CTOC_COP_ WG4/WG4_2010_4_E.pdf (last accessed 6 June 2020).

152

Non-punishment principle: Regional instruments 5.10

Non-punishment principle: Regional instruments ECAT, Article 26 5.8 ECAT was ratified by the UK on 17  December 2008, however, UK policy documents refer to ECAT being in force in the UK from 1 April 20098. The UK complies with its provisions through various government policies and, in part, through the enactment of MSA  2015. The definition of trafficking victim is set out in Chapter 1 of this book. The individual must fall within the definition of a victim of trafficking to benefit from Art 26 of ECAT. As set out in Chapter 1, there are significant differences between the definition of an adult victim of trafficking and a child (under 18 years old) victim of trafficking. 5.9 The purpose and scope of ECAT are set out in Arts 1.1 and 2 respectively: ‘Article 1 Purposes of the Convention 1 The purposes of this Convention are: a

to prevent and combat trafficking in human beings, while guaranteeing gender equality

b

to protect the human rights of the victims of trafficking, design a comprehensive framework for the protection and assistance of victims and witnesses, while guaranteeing gender equality, as well as to ensure effective investigation and prosecution;

c

to promote international cooperation on action against trafficking in human beings.

… Article 2 Scope This Convention shall apply to all forms of trafficking in human beings, whether national or transnational, whether or not connected with organised crime’. 5.10 Article 26 comprises a ‘non-punishment provision’: ‘Each Party shall, in accordance with the basic principles of its legal system, provide for the possibility of not imposing penalties on victims 8

This is when the National Referral Mechanism (‘NRM’) became operational in the UK.

153

5.11  Criminal defences available to victims of trafficking

for their involvement in unlawful activities, to the extent that they have been compelled to do so’. 5.11 The Explanatory Report to ECAT states (at paras 272–274): ’272. [There is] an obligation on Parties to adopt and/or implement legislative measures providing for the possibility of not imposing penalties on victims … 273. In particular, the requirement that victims have been compelled to be involved in unlawful activities shall be understood as comprising, at a minimum, victims that have been subject to any of the illicit means referred to in Article  4, when such involvement results from compulsion. 274. [Compliance can be] by providing for a substantive criminal or procedural criminal law provision, or any other measure, allowing for the possibility of not punishing victims when the above-mentioned legal requirements are met, in accordance with the basic principles of every national legal system.’ [Emphasis added]

The EU Trafficking Directive 5.12 The EU  Trafficking Directive came into effect in the UK on 6  April 2013. It was introduced as ‘… part of global action against trafficking in human beings …’9. In the preamble to the Directive the European Parliament and the Council set out:‘The Union is committed to the prevention of and fight against trafficking in human beings, and to the protection of the rights of trafficked persons’10. It sets out that children’s interests must be a ‘primary consideration’ as ‘Children are more vulnerable than adults and therefore at greater risk of becoming victims of trafficking in human beings’11. It also sets out that ‘… the validity of any possible consent to perform … labour or services [amounting to forced or compulsory labour] should be evaluated on a case-by-case basis. However, when a child is concerned, no possible consent should ever be considered valid’12.

9 10 11 12

Preamble, Recital (2). Preamble, Recital (4). Preamble, Recital (8). Preamble, Recital (11).

154

Non-punishment principle: Regional instruments 5.15

5.13 Recital (11) of the Preamble to the Directive says: ‘In order to tackle recent developments in the phenomenon of trafficking in human beings, this Directive adopts a broader concept of what should be considered trafficking in human beings than under Framework Decision 2002/629/JHA and therefore includes additional forms of exploitation. Within the context of this Directive, forced begging should be understood as a form of forced labour or services as defined in the 1930 ILO Convention No 29 concerning Forced or Compulsory Labour. Therefore, the exploitation of begging, including the use of a trafficked dependent person for begging, falls within the scope of the definition of trafficking in human beings only when all the elements of forced labour or services occur. In the light of the relevant case-law, the validity of any possible consent to perform such labour or services should be evaluated on a case-by-case basis. However, when a child is concerned, no possible consent should ever be considered valid. The expression “exploitation of criminal activities” should be understood as the exploitation of a person to commit, inter alia, pick-pocketing, shop-lifting, drug trafficking and other similar activities which are subject to penalties and imply financial gain. The definition also covers trafficking in human beings for the purpose of the removal of organs, which constitutes a serious violation of human dignity and physical integrity, as well as, for instance, other behaviour such as illegal adoption or forced marriage in so far as they fulfil the constitutive elements of trafficking in human beings.’ [Emphasis added] 5.14 Recital (14) of the Preamble to the Directive says: ‘Victims of trafficking in human beings should, in accordance with the basic principles of the legal systems of the relevant Member States, be protected from prosecution or punishment for criminal activities such as the use of false documents, or offences under legislation on prostitution or immigration, that they have been compelled to commit as a direct consequence of being subject to trafficking. The aim of such protection is to safeguard the human rights of victims, to avoid further victimisation and to encourage them to act as witnesses in criminal proceedings against the perpetrators.This safeguard should not exclude prosecution or punishment for offences that a person has voluntarily committed or participated in’. 5.15 Human trafficking is defined through Art 2 of the Directive, which outlines how Member States are required to punish those who commit acts of human trafficking: 155

5.16  Criminal defences available to victims of trafficking

‘2 Offences concerning trafficking in human beings 1. Member States shall take the necessary measures to ensure that the following intentional acts are punishable: The recruitment, transportation, transfer, harbouring or reception of persons, including the exchange or transfer of control over those 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. 2. A position of vulnerability means a situation in which the person concerned has no real or acceptable alternative but to submit to the abuse involved. 3. Exploitation shall include, as a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, including begging, slavery or practices similar to slavery, servitude, or the exploitation of criminal activities, or the removal of organs. 4. The consent of a victim of trafficking in human beings to the exploitation, whether intended or actual, shall be irrelevant where any of the means set forth in paragraph 1 has been used. 5.When the conduct referred to in paragraph 1 involves a child, it shall be a punishable offence of trafficking in human beings even if none of the means set forth in paragraph 1 has been used. 6. For the purpose of this Directive, “child” shall mean any person below 18 years of age’. 5.16 Article 8 of the Directive is the provision which entitles a Member State not to prosecute or punish victims of trafficking who commit a criminal offence: ‘8 Non-prosecution or non-application of penalties to the victim 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 any of the acts referred to in Article 2’.

156

Non-punishment principle: Domestic law 5.18

5.17 Article  8 protection is afforded through the CPS guidance (see below, at para 5.19), to possible credible victims of trafficking who commit offences in England and Wales. It is unclear what the status of the EU Directive in UK law will be following Brexit; a significant number of the Directive’s provisions are mirrored in ECAT, in particular definition and non-punishment provisions (see Chapter 1).

Non-punishment principle: Domestic law 5.18 In R v L and Ors13, Judge LCJ held at para13: ‘13. It is surely elementary that every court, whether a Crown Court or magistrates court, understands the abhorrence with which trafficking in human beings of any age is regarded both in the United Kingdom and throughout the civilised world. It has not, however, and could not have been argued that if and when victims of trafficking participate or become involved in criminal activities, a trafficked individual should be given some kind of immunity from prosecution, just because he or she was or has been trafficked, nor for that reason alone, that a substantive defence to a criminal charge is available to a victim of trafficking.What, however, is clearly established, and numerous different papers, reports and decided cases have demonstrated, is that when there is evidence that victims of trafficking have been involved in criminal activities, the investigation and the decision whether there should be a prosecution, and, if so, any subsequent proceedings require to be approached with the greatest sensitivity. The reasoning is not always spelled out, and perhaps we should do so now. The criminality, or putting it another way, the culpability, of any victim of trafficking may be significantly diminished, and in some cases effectively extinguished, not merely because of age (always a relevant factor in the case of a child defendant) but because no realistic alternative was available to the exploited victim but to comply with the dominant force of another individual, or group of individuals.’ The non-punishment principle is reflected both in CPS policy and s  45 of MSA 2015.

13 [2013] EWCA Crim 991, [2014] 1 All ER 113.

157

5.19  Criminal defences available to victims of trafficking

CPS policy guidance 5.19 The CPS guidance14 sets out what steps the prosecutors should take when a potential victim of trafficking (‘PVOT’) is facing charge or prosecution. Further, it provides for a staged process that prosecutors must adopt to decide whether it is in the public interest to prosecute the victim of trafficking. As a matter of public law the CPS as a public body is required to follow its own published guidance, unless there is good reason to depart from this guidance15. Historically, it was held that the failure to follow the policy guidance could render the decision to prosecute a victim of trafficking unlawful16. The abuse of process jurisdiction is considered in further detail below.

Prosecutorial staged inquiry 5.20 When deciding whether to prosecute: (a) an adult PVOT (aged 18 or over at time of the offence) who is suspected of committing a criminal offence when compelled to do so as a direct consequence of his situation; or (b) a child PVOT (under 18) who is suspected of committing a criminal offence as a direct consequence of being a victim of trafficking, prosecutors should adopt the following four-stage assessment when applying the Full Code Test for Crown Prosecutors.

First stage: Is there a reason to believe that the person is a victim of trafficking or slavery? 5.21 The prosecutor is required to consider whether the suspect or defendant is a potential victim of trafficking. Chapter 1 in this book explores the definition of trafficking, both in respect of adults and children (the definition differs significantly between the two). Chapter  2 sets out the identification process currently in place for victims of trafficking in the UK, the National Referral Mechanism. Not all victims are referred into this identification process, as adults 14 CPS, Human Trafficking, Smuggling and Slavery (updated 30  April 2020), see: https://www.cps.gov.uk/ legal-guidance/human-trafficking-smuggling-and-slavery (last accessed 6 June 2020). 15 R (Lumba) v Secretary of State for the Home Department [2011] UKSC 12 at para 58. 16 See R v LM; R v MB; R v DG; R v Tabot and R v Tijani [2010] EWCA Crim 2327, [2011] 1 Cr App Rep 12.

158

Non-punishment principle: Domestic law 5.25

must consent and cannot be compelled into being referred. Chapter 10 sets out ECHR, Art 4. In Chapter 2 of this book indicators of trafficking are set out. All professionals should be alive to those indicators. 5.22 In respect of prosecutors, they must be familiar with indicators of trafficking and make proper enquires with the relevant public authorities (for instance the police, Single Competent Authority17, local authority, Home Office, victim support provider, youth offending teams etc) to assess whether the suspect or defendant is a potential victim of trafficking. 5.23 In terms of a credibility assessment of the suspect or defendant the Court of Appeal has closely aligned its approach with the statutory guidance18. In R v JXP19 the Court accepted the appellant’s reasons explaining the late disclosure of trafficking notwithstanding that it was after a criminal trial in which it had not been disclosed. The importance of this is that the Court has recognised the fact that victims of trafficking will often make late disclosure about their trafficking circumstances. The CPS as a public authority should apply the principles and guidance set down in the statutory guidance specific to credibility as to do otherwise could render the decision unlawful20. 5.24 The complexities of the elements set out in the criminal offences of human trafficking and modern slavery (MSA 2015, ss 1 and 2) are such that the Court of Appeal21 has endorsed the appropriateness of considering whether or not someone is a PVOT by reference to the regional instruments (Art 2 of the EU Directive22). This is consistent with the approach adopted by the Supreme Court in MS (Pakistan)23. 5.25 In the case of an adult, consider whether each of the three components of trafficking are present: 17 R v HHD [2018] EWCA Crim 2995. See para 19. 18 Home Office, Modern Slavery Act 2015 – Statutory Guidance for England and Wales (v 1.0, 24 March 2020), see Annexes D and E. 19 [2019] EWCA Crim 1280. 20 See Chapters 2 and 3 for discussion of cases where the Courts have held that other public authorities have acted unlawfully when they have failed to consider ‘credibility guidance’ viz trafficking victims. 21 R v HHD [2018] EWCA Crim 2995 at para 21.2. Note: to assist practitioners, the Court endorsed the suggestions of the Respondent Crown in R v HHD without a full discussion of the issues. 22 EU Directive 2011/36/EU on Preventing and Combating Trafficking in Human Beings and Protecting its Victims. 23 MS (Pakistan) v Secretary of State for the Home Department [2020] UKSC 9.

159

5.26  Criminal defences available to victims of trafficking

ACT

MEANS

PURPOSE

• Recruitment

• threat/use of force

Exploitation including:

• Transportation

• coercion

• Transfer

• abduction

• prostitution of others

• Harbouring

BY

• fraud

• Receiving

• deception

• Exchange/transfer of control

• abuse of power

FOR

• sexual exploitation • forced labour/ services, begging • slavery

• abuse of vulnerability

• servitude

• giving/receiving payments/benefits to achieve consent of a person having control over another person

• exploitation of criminal activities • organ removal

5.26 In the case of a child (under 18) the means are not necessary. A child is a victim of trafficking if the act and purpose are present: ACT

PURPOSE

• Recruitment

Exploitation including:

• Transportation

• prostitution of others

• Transfer • Harbouring

FOR

• sexual exploitation • forced labour/services, begging

• Receiving • Exchange/transfer of control

• slavery • servitude • exploitation of criminal activities • organ removal

5.27 Where the Single Competent Authority (‘SCA’) makes a reasonable grounds decision, or latterly a conclusive grounds decision that the defendant is either a victim of trafficking or not (see Chapter 2), the prosecutor will need to consider 160

Non-punishment principle: Domestic law 5.30

it. In R  v L24 the court, when considering the weight to be applied to the trafficking identification decision taken under ECAT, Art 10, held: ‘Whether the concluded decision of the competent authority is favourable or adverse to the individual it will have been made by an authority vested with the responsibility for investigating these issues, and although the court is not bound by the decision, unless there is evidence to contradict it, or significant evidence that was not considered, it is likely that the criminal courts will abide by it.’ 5.28 This was re-affirmed by the Court in R v S(G)25, where the Court also considered the status of the fact-finding decision of the First-tier Tribunal (‘FTT’). 5.29 However, the SCA decision is not commensurate in weight with a determination of fact made by the Immigration and Asylum Chamber (‘IAC’) fact-finding tribunal. The determination of the FTT (IAC) will carry a different weight from that of the SCA decision26. Any challenge to the FTT decision will require caution bearing in mind the principles of collateral attack of judgments27 and the Supreme Court’s repeated pronouncement of the FTT and Upper Tribunal (IAC) expertise, the most recent of which post-dates R v S(G) and is specific to the identification of victims of trafficking28. 5.30 In R v VSJ29 the Court (comprising the Lord Chief Justice, the Vice President of the Court of Appeal Criminal Division and Goss J) considered R v L and noted that competent authority decisions are not binding on the Court30. The Court held that when reviewing whether or not to prosecute, ‘ … the cogency of the evidence which may be relied on by the Competent Authority must be subject to thorough forensic examination when the CPS is considering the question of nexus and whether it is in the public interest to prosecute’31. As observed by

24 [2013] EWCA Crim 991, [2013] 2 Cr App Rep 247 at para 28. 25 [2018] EWCA Crim 1824, [2018] 4 WLR 167, [2019] 1 Cr App R 7, [2019] Crim LR 147. See para 76. iii. 26 See MS (Pakistan) v Secretary of State for the Home Department [2020] UKSC 9. 27 The FtT’s findings are not res judicata on the question whether an individual is victim of trafficking. However, any collateral attack of the finding of the FtT or suggestion of little weight being placed on the findings should be exercised with caution in the light of the dicta in MS(Pakistan) and the recognised expertise of that fact-finding tribunal viz identification of victims of trafficking. 28 Ibid. MS(Pakistan). 29 [2017] EWCA Crim 36, [2017] 1 WLR 3153. 30 See para 38. 31 See para 39.

161

5.31  Criminal defences available to victims of trafficking

the Supreme Court in MS (Pakistan)32 the identification decision reached by the SCA is a paper exercise33, albeit with multi-agency involvement. 5.31 The status of a conclusive grounds decision at the prosecutorial decision stage was considered in R v DS34.There, the Lord Chief Justice noted the following35: ‘Prosecutors should: •

Take into account an NRM decision;

•

Consider a conclusive grounds decision to be of more weight than a reasonable grounds decision;

•

Make enquiries, where there is a reasonable grounds decision only, about when a conclusive decision is likely to be made; and

•

Examine the cogency of the evidence on which the Competent Authority (CA) relied. The decision of the CA as to whether a person had been trafficked for the purposes of exploitation is not binding on the Crown Court or the CPS. Unless there was evidence to contradict it or significant evidence that had not been considered, it is likely that the criminal courts will abide by the decision; see R v L(C) [2014] 1 All ER 113 at 28 and R v VSJ [2017] 1 WLR 3153 at sect; 20(viii). The decision should be scrutinised by the prosecutor to see to what extent the evidence has been analysed, weighed and tested by the CA and to assess the quality of any expert evidence relied upon.’

5.32 The Court held that36: ‘The passage underlined in that citation does not derive from authority, but we consider that it is a legitimate approach for a prosecutor to take.’ As is apparent from R  v DS (see above, at para  5.31) the evidence that the prosecutor can consider at this stage of the enquiry is not limited to evidence that is admissible in the criminal trial37. Therefore, irrespective of the admissibility of the following evidence in the criminal trial, it can and should be assessed by the prosecutor: •

expert evidence assessing the plausibility and consistency of trafficking account by a trafficking expert and/or medical expert;

•

SCA identification decisions;

32 [2020] UKSC 9. 33 See para 14. 34 [2020] EWCA Crim 285. See para 41. 35 See para 23. 36 See para 24. 37 See R v (L) [2013] EWCA Crim 991, [2014] 1 All ER 113.

162

Non-punishment principle: Domestic law 5.35

•

decisions of the FTT or Upper Tribunal (IAC) or other tribunals (employment) or courts (family and civil).

Second stage: Is there clear evidence of duress? 5.33 Duress provides a common law protection for victims of trafficking who commit offences. The scope of the defence was reconsidered by the House of Lords in R v Hasan38. Lord Bingham in R v Hasan stated, ‘I find it unsurprising that the law in this and other jurisdictions should have been developed so as to confine the defence of duress within narrowly defined limits’39. 5.34 The elements which must be established by a defendant are as follows: •

the defendant believed that there was a threat of death or serious injury40;

•

this belief was reasonable, as well as genuinely held41;

•

the threat was to the defendant, a member of his immediate family, or to a person for whose safety he reasonably regarded himself as responsible42;

•

the defendant’s criminal conduct was directly caused by the threat43; and

•

a sober person of reasonable firmness, having the same characteristics as the defendant, would have responded in the same way44; the characteristics which may be taken into account are only those which realistically make a person less able to resist threats: age and possibly sex are relevant, as are pregnancy and physical or mental disabilities; other factors are not45.

5.35 There are also several factors which preclude a defence of duress from succeeding. Duress is unavailable: •

38 39 40 41 42 43 44 45 46

as a defence to murder, attempted murder, and perhaps to treason involving the death of the sovereign46; [2005] UKHL 22 sub nom R v Z [2005] 2 AC 467. At [21]. R v Hasan [2005] UKHL 22 at [21](2). Ibid at [23]. Ibid at [21](3). The inclusion of ‘… a person for whose safety the defendant would reasonably regard himself as responsible’ was not decisively affirmed in R v Hasan, but it appeared to Lord Bingham to be consistent with the rationale of the defence. This issue does not arise in these cases. Ibid at [21](5). R v Graham (1982) 74 Cr App Rep 235, CA at 241; Graham was approved in R v Howe (1987) 85 Cr App Rep 32, HL, at 65–66. R v Bowen [1996] 2 Cr App Rep 157, CA at 166. R v Hasan [2005] UKHL 22 at [21(1)].

163

5.36  Criminal defences available to victims of trafficking

•

if there were some evasive action that the defendant could reasonably have been expected to take, in order to avoid the threat without committing the offence47: if the threat were not expected to be carried out almost immediately, ‘there may be little if any room for doubt that he could have taken evasive action, whether by going to the police or in some other way’48; or

•

where the defendant voluntarily associated with people engaged in criminality, in circumstances where he foresaw or ought reasonably to have foreseen the risk of being subject to violent compulsion: the ‘gang exception’49.

While the third factor above is recognised as being the correct position in law, the factual background to the reported cases is such that it may be arguable that where children are recruited by gangs associated with county line offending, and compelled to supply drugs, duress could be available as a defence. The regional trafficking instruments explicitly recognise the special vulnerability of children to trafficking. 5.36 In R  v van Dao50, the Court of Appeal considered the case of a victim of trafficking who had been threatened with false imprisonment. The court was invited to expand the defence of duress: ‘… better [to] ensure that domestic (English [and Welsh]) criminal law implemented the United Kingdom’s obligations of protecting victims of trafficking contained in the [Convention] and in Article 26’51. 5.37 The judgment was adjourned to allow the Court to consider the judgment in R v N; R v L52. Gross LJ (giving the judgment) held: ‘The furthest we are prepared to go and essentially in deference to the arguments addressed to us, is to express a provisional view: namely, that we would have been strongly disinclined to accept that a threat of false imprisonment suffices for the defence of duress, without an accompanying threat of death or serious injury.We would be minded to regard any such widening of the defence as ill-advised.While accepting that the issue has not been resolved by authority, our provisional view is supported by pointers in the more recent authorities and, 47 48 49 50 51 52

Ibid at [21](6). Ibid at [28]. Ibid at [39]; see also R v Fitzpatrick [1977] NILR 20. and R v Sharp [1987] QB 853. [2012] EWCA Crim 1717, [2013] Crim LR 234. Ibid at [24](iv). [2012] EWCA Crim 189, [2012] 1 Cr App Rep 35.

164

Non-punishment principle: Domestic law 5.40

more especially, by considerations of policy there highlighted. Brief amplification follows’53. 5.38 The court went on to note the observations of Hughes LJ in LM (above) and those of the court in Re N; Re L (above) (where the judgment of the court was handed down by Lord Judge CJ), citing in particular Lord Judge’s dicta at [12] of R v N; R v L: ‘… The logical conclusion of such elision would be to create a new form of immunity (albeit under a different name) or to extend the defence of duress by removing the limitation inherent in it.Whatever form of trafficking is under consideration, that approach to these problems… would be fallacious’ [Emphasis added]54. 5.39 Gross LJ concluded that no modification should be made to the defences of duress and duress of circumstances in the context of victims of trafficking facing charges. In R v VSJ55, Anti-Slavery International, a charity founded in 1839 to combat slavery, intervened with written submissions to argue that the Court of Appeal should reassess duress to bring it into line with MSA 201556. The court saw ‘no reason to develop the law of duress in the way suggested’57.

Third stage: Is there clear evidence of a s 45 defence? 5.40 Section 45 of MSA 2015 came into force on 31 July 2015. It creates separate statutory defences for adults and children who are victims of trafficking who commit certain criminal offences. The s 45 defence does not apply to offences which appear in MSA 2015, Sch 4. In this section, we consider both the s 45 defence as considered within the prosecutorial decision to prosecute (third stage) and where the statutory defence is run at trial. If the prosecutor is satisfied that the statutory defence is made out, it would not be in the public interest to prosecute.

53 54 55 56 57

[2012] EWCA Crim 1717, [2013] Crim LR 234 at [33]. [2012] EWCA Crim 189, [2012] 1 Cr App Rep 35 at [54]. [2017] EWCA Crim 36, [2017] 1 Cr App Rep 33. Ibid at 7. Ibid at 24 ff, at para 28. The court there left open the possibility of revisiting the parameters of duress in a case post-dating the coming into force of MSA 2015.

165

5.41  Criminal defences available to victims of trafficking

Elements of the statutory defence: Adults 5.41 Sections 45(1)–(3) provides: (1) A person is not guilty of an offence if— (a) the person is aged 18 or over when the person does the act which constitutes the offence, (b) the person does that act because the person is compelled to do it, (c) the compulsion is attributable to slavery or to relevant exploitation, and (d) a reasonable person in the same situation as the person and having the person’s relevant characteristics would have no realistic alternative to doing that act. (2) A person may be compelled to do something by another person or by the person’s circumstances. (3) Compulsion is attributable to slavery or to relevant exploitation only if— (a) it is, or is part of, conduct which constitutes an offence under section 1 or conduct which constitutes relevant exploitation, or (b) it is a direct consequence of a person being, or having been, a victim of slavery or a victim of relevant exploitation. 5.42 Section 45(5) provides (and is applicable to both adults and children): (5) For the purposes of this section— ‘relevant characteristics’ means age, sex and any physical or mental illness or disability; ‘relevant exploitation’ is exploitation (within the meaning of section 3) that is attributable to the exploited person being, or having been, a victim of human trafficking. 5.43 With an adult, the tribunal of law (judge in the crown court) must be satisfied there is: (1) some evidence that the defendant did the act (which would be an offence but for the defence) because he was compelled to do it; and (2) some evidence that the compulsion is attributable to slavery or to relevant exploitation; and 166

Non-punishment principle: Domestic law 5.47

(3) some evidence for a tribunal of fact (jury in the Crown Court) to be able to infer that a reasonable person in the same situation as the person and having the person’s relevant characteristics would have no realistic alternative to doing that act. 5.44 The defendant will not discharge the burden of proof just because he has been identified or accepted as a victim of trafficking. The adult defendant must also establish that he was compelled to commit the criminal act (s.2(3)) (developed below). Burden and standard of proof: s 45

5.45 In R  v MK and R  v Gega58, the Lord Chief Justice held that it was for the defendant to raise evidence of each of the elements of the defence and for the prosecution to disprove one or more of them to the criminal standard in the usual way.59 5.46 Where there is some evidence of all three limbs, it then falls to the tribunal of fact (jury in the Crown Court) to consider whether it is sure that the prosecution has disproved: (1) that the defendant did the act (which would be an offence but for the defence) because he was compelled to do it; or (2) that the compulsion is attributable to slavery or to relevant exploitation; or (3) that a reasonable person in the same situation as the person and having the person’s relevant characteristics would have no realistic alternative to doing that act. If the prosecution disproves any of the three limbs, the defence fails. Compulsion and nexus

5.47 A common thread through the variety of non-punishment safeguards within the trafficking instruments and MSA 2015, s 45 is the role of compulsion in the

58 [2018] EWCA Crim 667, [2019] QB 86; [2018] 3 WLR 895, [2018] 3 All ER 566, [2018] 2 Cr App R 14, [2018] Crim LR 922, [2018] CLY 599. 59 See paras 21, 25–28, 31, 36, 39, 44–45 of judgment.

167

5.48  Criminal defences available to victims of trafficking

criminality, and whether there is a nexus between the trafficking of the victim and the criminal offending. 5.48 First and foremost a child does not need to establish that he was compelled to commit the criminal offence. This element of the statutory defence is confined to the adult defence only. Lord Judge Thomas LJ stated this in R v VSJ60. 5.49 In R  v LM61 the court held that the word ‘compelled’ was not limited to the circumstances in which the English common law defences of duress and necessity apply. 5.50 In R v L the court held:62 ‘The reasoning is not always spelled out, and perhaps we should do so now. The criminality, or putting it another way, the culpability, of any victim of trafficking may be significantly diminished, and in some cases effectively extinguished, not merely because of age (always a relevant factor in the case of a child defendant) but because no realistic alternative was available to the exploited victim but to comply with the dominant force of another individual, or group of individuals’. 5.51 Compulsion for the purposes of non-punishment and duress thresholds should not become indistinguishable63. The term ‘compulsion’ in the regional trafficking instruments is directed to the particular state of ‘trafficking’ and to victims of human trafficking. The Explanatory Report to ECAT64 provides, in respect of non-punishment: ‘273. In particular, the requirement that victims have been compelled to be involved in unlawful activities shall be understood as comprising, at a minimum, victims that have been subject to any of the illicit means referred to in Article 4, when such involvement results from compulsion’. 5.52 Those illicit means include, ‘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 60 [2017] EWCA Crim 36, [2017] 1 WLR 3153 at paras 22 and 37. 61 [2010] EWCA Crim 237, [2011] 1 Cr App Rep 135. 62 [2013] EWCA Crim 991, [2013] 2 Cr App Rep 247 at para 13. 63 See R v LM [2010] EWCA Crim 237, [2011] 1 Cr App Rep 135, at para 5.18 above. 64 CETS, Explanatory Report to the Council of Europe Convention on Action against Trafficking in Human Beings.

168

Non-punishment principle: Domestic law 5.56

the consent’. The Explanatory Report to ECAT also helpfully sets out what is meant by abuse of position of vulnerability, which is considered at length in Chapter 1 of this book. 5.53 For the purposes of MSA 2015, s 45, when considering whether a reasonable person would have acted as the defendant acted the jury will have to consider both the nature of the compulsion and compulsion in the context of the seriousness of the offence; see R v VSJ65. 5.54 In R v EK66, the appellant had appealed her conviction and sentence on the ground that at the time of her criminality she was a victim of trafficking. The appellant had pleaded guilty to conspiracy to control prostitution for gain, possession of false documents and removing criminal property. The Court held that while she had been a victim of trafficking, at the time of her criminal activity her position was such that it did not extinguish her culpability or so diminish it as to cast doubt on the decision to prosecute. The appellant was deemed to be working alongside the trafficker and in a position of power. The Court observed that in such instances although it would not absolve individuals from criminal responsibility, it may be reflected in a reduction of sentence passed67. 5.55 In R v GB68 the Court quashed a trafficking victim’s conviction for possession of a false document with intent because of the nexus between the offending and the trafficking, and the level of compulsion that she had been under. In that appeal the Court considered the findings of the FTT (IAC), SCA positive decision and expert reports. 5.56 Where there is a gap in time between the trafficking and the offending, it is likely that there will not be a sufficient nexus between the trafficking and the offending to warrant a decision not to prosecute a suspect in the public interest. An example of where it would or might well not have been in the public interest to prosecute notwithstanding a significant gap in time is the case of A in R v VSJ69. There, A had been held in domestic servitude for many years as a child and adult. Her offending came several years after the servitude had ended but there was nevertheless a nexus because her offence was committed to obviate the possibility of her being re-trafficked. 65 [2017] EWCA Crim 36, [2017] 1 Cr App Rep 33. 66 [2018] EWCA Crim 2961. 67 See also R v GS [2018] EWCA Crim 1824. 68 [2020] EWCA Crim 2, [2020] 1 WLUK 128 69 [2017] EWCA Crim 36, [2017] 1 WLR 3153.

169

5.57  Criminal defences available to victims of trafficking

5.57 What the above cases illustrate is that they will turn on their own facts and the weight attributed by the Court of Appeal to the findings of the FTT, SCA and conclusions of the experts will be case specific.

Elements of the statutory defence: Children (under 18 years old) 5.58 Section 45(4) provides: (4) A person is not guilty of an offence if— (a) the person is under the age of 18 when the person does the act which constitutes the offence, (b) the person does that act as a direct consequence of the person being, or having been, a victim of slavery or a victim of relevant exploitation, and (c) a reasonable person in the same situation as the person and having the person’s relevant characteristics would do that act. Burden and standard of proof: s 45

5.59 Similarly, with a child (or a defendant claiming to be a child) the tribunal of law (judge in the crown court) must be satisfied there is: (1) some evidence that the defendant was under the age of 18 when he did the act which constitutes the offence; and (2) some evidence that the defendant did that act as a direct consequence of the defendant being, or having been, a victim of slavery or a victim of relevant exploitation; and (3) some evidence from which a tribunal of fact (jury in the Crown Court) to be able to infer that a reasonable person in the same situation as the person and having the person’s relevant characteristics would do that act. 5.60 As with an adult, with a child or possible child where there is some evidence of all three limbs above, it then falls to the tribunal of fact (jury in the Crown Court) to consider whether it is sure that the prosecution has disproved: ‘(1) that the defendant was under the age of 18 when he did the act which constitutes the offence;’ 170

Non-punishment principle: Domestic law 5.64

5.61 Age is highly unlikely to be in issue where the defendant was born in the UK and has lived in the UK70, but often arises in the case of third country nationals. The CPS guidance on human trafficking, smuggling and slavery addresses the issue of age and provides that there should be ‘due inquiry’ into the age of the defendant and if following this there remains doubt, the defendant must be treated as a child (see Guidance). Chapter 3 in this book sets out the principles where the age of a putative child is in dispute.The prosecution, as a public body, should be familiar with these principles and apply these principles in the case where age is put into question. If acting for a child where age is put in issue by the prosecution or other public bodies, this may require a separate legal challenge (see Chapter 3). In any event, representatives must be familiar with the principles applied to putative child victims of trafficking, viz principles of age disputes. 5.62 Where the prosecution proves so that the tribunal of fact/jury is sure that the defendant was an adult, the jury should be directed that they should then go on to consider whether the Crown has disproved the three elements in s 45(1) (the adult defence). 5.63 If the tribunal of fact/jury is sure that the defendant is a child, it will need to consider whether the Crown has disproved: ‘(2) that the defendant did that act as a direct consequence of the defendant being, or having been, a victim of slavery or a victim of relevant exploitation; or (3) that a reasonable person in the same situation as the person and having the person’s relevant characteristics would do that act.’ If the Crown disproves either of those limbs of the defence, it fails. 5.64 It is crucial to recall in respect of this that a child does not need to adduce any evidence that he was compelled to commit the criminal offence. This element of the statutory defence is confined to the adult defence only.This principle was considered and endorsed by Thomas LCJ (see R v VSJ71). The prosecution does not have to disprove compulsion. The court does have to consider whether a reasonable person in the same situation as the person and having the person’s relevant characteristics would do that act. It may be argued that the ‘reasonable 70 This is because there will likely be documentation evidencing age (medical records, birth certificate, school records etc). 71 [2017] EWCA Crim 36, [2017] 1 WLR 3153 at paras 22 and 37.

171

5.65  Criminal defences available to victims of trafficking

person’ test does require a child to introduce some evidence of compulsion. However, the expert advisers to the Independent Review of the Modern Slavery Act 2015 Final Report72 were of the view that compulsion did not feature as a component of s 45(4)(c). Applying the principles of statutory interpretation, taking s 45 as a whole, it is plain that a distinction was made between adults and children. The use of ‘compelled’ is only found within the requirements for adults not children. On plain reading of the legislation ‘compulsion’ is not a requirement for children and any attempt to read ‘compulsion’ into statute would be an impermissible gloss. Expert evidence: s 45 defence

5.65 For adult defendants to raise the s 45 defence, they must adduce evidence that they were compelled to commit the crime. Compulsion in the context of this statutory defence requires that a reasonable person in the same situation as the defendant with the person’s relevant characteristics would have been so compelled. The defence involves both an objective element and a subjective element. 5.66 As with duress, psychiatric evidence might be admissible to show that a defendant was suffering from mental illness or impairment or a recognised psychiatric condition, provided that a reasonable person suffering from such illness might be more susceptible to compulsion. Such evidence might arguably assist the jury in deciding whether a reasonable person suffering from such condition in the same situation as the defendant might have committed the offence. 5.67 The Court of Appeal cases which have considered expert evidence have been varied in the weight placed on the evidence itself. Some cases have placed little weight on expert trafficking or medical evidence73 supporting an identification of trafficking and other cases have placed significant weight74 on this evidence.

72 Presented to Parliament by the Secretary of State for the Home Department, May 2019, at 4.4.3. 73 See the commentary of Lord Judge in R v N; R v L [2012] EWCA Crim 189, [2013] QB 379 at 86c and the commentary of Lord Thomas in R v VSJ [2017] EWCA Crim 36, [2017] 1 Cr App Rep 33 at paras 87 and 88; R v S(G) [2018] EWCA Crim 1824, [2018] 4 WLR 167, [2019] 1 Cr App R 7, [2019] Crim LR 147 at 70, R v EK [2018] EWCA Crim 2961. See also R v D [2018] EWCA Crim 2995. 74 See R  v GB  [2020]  EWCA  Crim 2, [2020] 1  WLUK  128; R  v JXP  [2019]  EWCA  Crim 1280; R  v N  [2019]  EWCA  Crim 984, [2019] 6  WLUK  337; R  v S  [2019]  EWCA  Crim 1280; and R  v O [2019] EWCA Crim 1389, [2019] 7 WLUK 537.

172

Non-punishment principle: Domestic law 5.71

5.68 Unlike in asylum and human rights proceedings, expert evidence relevant to a defendant’s status as a victim of trafficking is rarely deployed in first instance criminal cases, as with asylum and refugee cases, country evidence may be admissible to show or contextualise what a person in the same situation as the defendant was enduring/had endured. 5.69 Expert evidence can be admitted in criminal proceedings if the following requirements are met: (i)

The expert evidence is of assistance and has sufficient probative value. In short, that it can provide the court and the jury with information which is likely to be outside of a judge or jury’s knowledge and experience;

(ii) The expert has expertise in the relevant field (see Criminal Procedure Rules, Part 19); (iii) The expert must be able to provide impartial, objective evidence on the matters within his field of expertise (see Criminal Procedure Rules, Part 19); (iv) The expert’s opinion must in other respects satisfy a threshold of acceptable reliability. 5.70 It is good practice that defence practitioners, both at first instance and in appellate proceedings, instruct experts to assist the Competent Authority in reaching reasonable and conclusive grounds determinations. Examples of the type of evidence that could be obtained in support of a s 45 defence and an NRM referral are shown in the Court of Appeal authorities75 and have included physiological and psychiatric evidence, country expert evidence, trafficking indicators evidence. 5.71 A trafficking expert could be asked to comment on: 1.

modus operandi and exploitation typology;

2.

criminal exploitation indicators;

3.

indicators of exploitation and trafficking;

4.

trafficking account and plausibility;

5.

expert opinion on whether PVOT a is a victim of trafficking;

75  Ibid.

173

5.72  Criminal defences available to victims of trafficking

6.

indicators of exploitation;

7.

pre-trafficking background;

8. recruitment; 9. transportation; 10. control mechanisms; 11. harbouring; 12. transit stages; 13. destination and exploitation; 14. plausibility of trafficking account; 15. outline and analysis of physical, sexual and mental health issues; 16. support recommendations; and 17. aspects and type of debt bondage. Admissibility of SCA and FTT decisions at trial

5.72 In R v DS76 the Lord Chief Justice (giving the judgment of the Court) declined to ‘express any view’ as to whether a conclusive grounds decision would be admissible in a criminal trial (as opposed to in a criminal appeal, where it can be used to assess the safety of a conviction), but said: ‘Under the 2015 Act, the prosecutor is entitled to challenge that Conclusive Grounds decision before the jury in seeking to rebut the statutory defence and to invite the jury to come to a different decision. If there is a sound evidential basis on which to do this, it will not be an abuse of process to try. If there is not, it will still not be an abuse of process, but the Judge will consider any submission that there is no case to answer.’ 5.73 In R v GB77 the Court observed; ‘Before us, no question arises as to the admissibility of these materials as such. That is not the case as to their admissibility at trial, where, to put it no higher, the admissibility of both the decisions in question and the underlying reasoning must be regarded as unlikely on what 76 [2020] EWCA Crim 285. See para 42. 77 [2018] EWCA Crim 1824 at para 69.

174

Non-punishment principle: Domestic law 5.75

may be broadly (if very loosely) described as Hollington v Hewthorn [1943] KB 587 grounds. That said: i)

Had the FTT  Decision and the CA  Minute been available at the time of trial, we regard it as overwhelmingly likely that, in the interests of justice and fairness, the Crown would have been required to make admissions as to their recognition of the Applicant as a VOT – so that, in practical terms, any admissibility difficulties at trial would have been resolved.

ii) Whatever the difficulties of admissibility at trial, we would not regard them as outweighing our conclusion, on the basis of all the other relevant factors for the purposes of s.23, that the materials comprising the First Part should be admissible before us. We proceed accordingly.’

Fourth stage: Is it in the public interest to prosecute? 5.74 The public interest test necessarily turns on the facts of individual cases. In each case it involves a careful analysis of the following: •

the seriousness of the offence: the more serious an offence, the greater the criminality or culpability that attaches to the offending; with a serious offence there will always be a greater need for prosecution in the public interest;

•

the level of compulsion: the vulnerability of the defendant is highly relevant to this assessment of culpability; see R v VSJ78 and R v S(G)79.

•

the nexus of compulsion: for a prosecution not to be in the public interest there must usually be a direct link between the trafficking and the offending; where the trafficking is egregious, as in the case of A in R v VSJ80 an indirect link may suffice; see para 5.47 above.

5.75 The CPS guidance is key to the public interest question. It helpfully assists in how the prosecution should address its mind to the public interest question in a case where the defendant is a victim of trafficking. It is essential that representatives for the Crown and the defendant consider this policy guidance in its entirety.

78 [2017] EWCA Crim 36, [2017] 1 WLR 3153. 79 [2018] EWCA Crim 1824, [2018] 4 WLR 167, [2019] 1 Cr App R 7, [2019] Crim LR 147. 80 [2017] EWCA Crim 36, [2017] 1 WLR 3153.

175

5.76  Criminal defences available to victims of trafficking

5.76 When considering the public interest test the CPS has used the international and regional instruments definition of trafficking to ensure that the appropriate international and regional legal obligations are met. The CPS has avoided adopting Parliament’s distinction between trafficking and slavery. This approach is consistent with the concern that Parliament’s artificial distinction between the two concepts may cause some potential victims of trafficking not to be identified as such81.

The public interest and compulsion 5.77 The CPS guidance provides that ‘compulsion’ is irrelevant insofar as a child’s status as is a victim of trafficking is concerned. However, the guidance provides that compulsion will be a relevant consideration when considering whether the public interest in prosecuting a child is satisfied (see Code for Crown Prosecutors, para  4.14b for further guidance). It is unclear why the policy imports a requirement of ‘compulsion’ for children at the fourth stage of the public interest analysis, when this is not a requirement in the statutory defence for children under s 45 of MSA 2015. 5.78 The CPS guidance requires that the prosecutor be obliged to comply with their obligations under Art 26 of ECAT and Art 8 of the EU Trafficking Directive. The purpose of the four-stage approach to the prosecutor’s decision is to give effect to Art 26 of ECAT. The importation of a requirement of compulsion in respect of children in the CPS guidance at the fourth stage is at odds with Art 26 applied to children as authoritatively interpreted by Thomas LCJ in R  v VSJ and Ors82. On one view this part of the policy is unlawful by imposing a too high threshold contrary to ECAT and dicta in R v VSJ and Ors83. The alternative view is that the CPS guidance has been amended since VSJ. It expressly says that compulsion is relevant when deciding whether or not to prosecute children; whereas compulsion is not a necessary component of trafficking in the case of a child, it may be appropriate for it to feature in

81 The reference to a trafficker having to facilitate the travel of a person to fulfil the elements of an offence of trafficking is, for example, unhelpful in MSA 2015, s 2. The section sets out that the travel may be fulfilled by inter alia the receipt or harbouring of a person. However, the international and regional definition of trafficking adopted in the regional instruments binding on the UK (whether under the Palermo Protocol, ECAT or the EU Trafficking Directive) does not require the ‘travel’ of a person: if he is recruited, received by someone or harboured by someone he will be a victim of trafficking if the other components of the definition are fulfilled. See Chapter 1, which deals with the definition at length. 82 [2017] EWCA Crim 36. 83 For an analogous policy challenge, see PK (Ghana) v Secretary of State for the Home Department [2018] EWCA Civ 98.

176

Non-punishment principle: Domestic law 5.81

the public interest test.84 However, even if the second view were correct, the dominant force of compulsion necessary to extinguish or significantly diminish a child’s criminality would be less than that needed for an adult and with a young child negligible.

Abuse of process 5.79 Historically, a special type of abuse of process had existed as a safeguard in cases where the prosecution’s decision to charge a defendant was exercised wrongly. In R v DS85, the Court considered the statutory defence for slavery or trafficking victims who commit an offence found in s 45 of MSA 2015 and the role of abuse of process. The court found that ‘the responsibility for deciding the facts relevant to the status of DS as a victim of trafficking is unquestionably that of the jury’86. The Court, further held that ‘cases to which the 2015 Act applies should proceed on the basis that they will be stayed if, but only if, an abuse of process as conventionally defined is found’: (1) that a fair trial is not possible and (2) that it would be wrong to try the defendant because of some misconduct by the state in bringing the prosecution. 5.80 The relevance of abuse of process at appellate level is that where the Court of Appeal concludes that the trial court would have stayed the indictment as an abuse of the process of the court had an application been made, the proper course is to quash the conviction87. 5.81 In R v L the Lord Chief Justice held88: ‘… In the context of an abuse of process argument on behalf of an alleged victim of trafficking, the court will reach its own decision on the basis of the material advanced in support of and against the continuation of the prosecution.Where a court considers issues relevant to age, trafficking and exploitation, the prosecution will be stayed if the court disagrees with the decision to prosecute. The fears that the exercise of the jurisdiction to stay will be inadequate are groundless’. 84 Article 8 of the Directive includes compulsion as a component of the considerations justifying nonprosecution. In that respect Art 8 does not distinguish between adults and children (unlike Art 2 of the Directive, which defines trafficking in the case of children without reference to compulsion). 85 [2020] EWCA Crim 285. 86 See para 40. 87 R v LM [2010] EWCA Crim 237, [2011] 1 Cr App Rep 135 at §17. 88 [2013] EWCA Crim 991, [2013] 2 Cr App Rep 247 at para 17.

177

5.82  Criminal defences available to victims of trafficking

5.82 In R v LM, the court also stated89 ‘where trafficking is an obvious possibility, the police should enquire into it’. It arguably follows that, if it can be shown there was either no or inadequate inquiry into whether a defendant is a potential victim of trafficking, the prosecution cannot discharge their responsibility and the decision to prosecute will be flawed.The abuse of process regime concerning prosecutorial discretion in cases involving victims of trafficking who commit offences is akin to a public law challenge to the decision.90 As has been made clear by the court in DS, first the judgment was concerned only where the MSA Act 2015 applied and second, abuse of process remains an available remedy where either (a) a fair trial is not possible or (b) there is misconduct on the part of the state.

Excluded offences under Sch 4 5.83 It is plain in DS that the Court was concerned with those defendants who could rely on a s 45 defence. R v DS was not concerned with those offences which were excluded by Sch 4 of MSA 2015. For offences to which s 45 does not provide a defence, because of exclusion under where they are excepted by Sch 4 to the MSA 2015, the courts have yet to decide whether the special abuse of process regime remains applicable. Practitioners should be alive to this as a possibility. At the time of writing, judgment is pending from the Court of Appeal on this issue91. 5.84 Schedule  4 contains a selection of offences of varying seriousness, many of which are frequently committed by victims of trafficking, for example: malicious wounding, robbery, offences relating to slavery and human trafficking and sexual offences. If a PVOT is charged with a Sch  4 offence, the PVOT cannot rely on a statutory defence irrespective of whether their offending was a manifestation of or directly linked to their trafficking. Schedule  4 offences are often intimately linked to trafficking, and/or are known as offences caught within forced criminality paradigms. It does not distinguish between offences committed by child victims or adult victims.

89 [2010] EWCA Crim 237, [2011] 1 Cr App Rep 135 at para 32. 90 R v LM [2010] EWCA 2327, [2011] 1 Cr App R 12 [§ 7]; see also: R v N and R v Le [2012] EWCA Crim 189, [2012] 1 Cr App R 35; R v L, N, N & T [2013] EWCA Crim 991, [2013] 2 Cr App R 23; R v VSJ [2017] EWCA Crim 36. 91 R v A (2020) (awaiting judgment).

178

Non-punishment principle: Domestic law 5.89

5.85 In the Commons debate on second reading, the Home Secretary said92: ‘The [s 45] defence includes substantial safeguards against abuse and it will not apply to a number of serious offences – mainly violent and sexual offences – which are set out in the Bill. However, even in cases where the defence does not apply, prosecutors will still need to look carefully at all the circumstances to see whether it is in the public interest to prosecute victims’. 5.86 Any victim who is caught by the Sch 4 excluded offences cannot be said to come within MSA 2015, s 45 and the MSA 2015 does not apply to them. 5.87 It plainly was the intention of Parliament that those victims excluded from the statutory defence could rely on prosecutorial discretion as per the CPS guidance). The s 45 MSA 2015 statutory defence arose from the principle that a PVOT should not, in most circumstances, be punished for crimes committed under compulsion which are directly linked to their trafficking. Arguably Sch  4 excluded offences conflict with the non-punishment principle. There is no reference of exclusions within the Trafficking Convention (nor the EU Directive). Both the Trafficking Convention and EU Directive 2011/36/ EU support the use of a human rights and child rights-based approach. 5.88 The Group of Experts on Action against Human Trafficking (‘GRETA’) responsible for monitoring the states’ compliance with ECAT state that the scope of the non-punishment provision should cover all offences which victims of trafficking were compelled to commit, including administrative and immigration-related offences93.

Right to a fair trial and/or misconduct by the prosecution 5.89 As held by Laws LJ in R v O94, the appellant had not been provided with a fair trial (Art 6) because neither the defence not the prosecution took steps to 92 607 HC Official Report (6th series) col 177, 8 July 2014, in the speech of the Home Secretary (Theresa May); see also Commons Committee Stage, 9th sitting, 607 HC Official Report (6th series) cols 365 and 391, 11 September 2014, junior Home Office minister Karen Bradley, and col 387, Sarah Teather. 93 Paragraph 186 of the GRETA general report (2016). 94 [2008] EWCA Crim 2835, see para 26.

179

5.90  Criminal defences available to victims of trafficking

investigate the appellant’s account of trafficking. Further, failure to investigate an allegation of trafficking, if the credible suspicion threshold is met (see Chapter 2), will violate ECHR, Art 4, a fundamental right which cannot be derogated from.Violations of ECHR, Arts 4 and 6 can therefore provide a basis for an abuse of process argument.

Complex cases A guilty plea 5.90 There is no requirement that the defendant or suspect ‘self-identifies’ as a victim of trafficking95 before enquires are instigated. Prosecutorial duty to make enquiries is triggered by there being a credible suspicion that an individual is a victim of trafficking96. This is irrespective of whether a formal identification decision has yet been reached by the NRM (see Chapter 2). As the Court of Appeal has held sometimes the objective evidence alone of a well-recognised pattern of trafficking is sufficient to establish a credible suspicion97 in an individual case. 5.91 The police are under a duty98 to pursue all reasonable lines of inquiry, whether these point towards or away from the suspect and will have a positive obligation to investigate under ECHR, Art 4 where a credible suspicion arises that the suspect is a victim of trafficking. The CPS guidance provides that in deciding whether an individual is a victim of trafficking there is a duty of inquiry that requires the following: •

advising the law enforcement agency who investigated the original offence that it must investigate the suspect’s trafficking/slavery situation, if it has not already done so; and

•

advising the law enforcement agency to consider referring the suspect through the NRM for victim identification if this has not already been done. All law enforcement officers can refer potential victims of trafficking/slavery to the NRM. An NRM referral should always be made unless the law enforcement agency is in possession of clear and sufficient evidence to prove that the suspect is not a victim of trafficking/slavery.

95 This would be contrary to ECHR, Art 4, see: Rantsev v Cyprus & Russia (2010) 51 EHRR 1 at 296, 288 and Recital (1) of the EU Trafficking Directive. 96 For a detailed analysis of ‘credible suspicion’, see R(TDT) v Secretary of State for the Home Department [2018] EWCA Civ 1395, [2018] 1 WLR 4922 and Chapter 2. 97 See R(TDT) v Secretary of State for the Home Department [2018] EWCA Civ 1395, [2018] 1 WLR 4922. 98 Criminal Procedure and Investigation Act 1996, Code of Practice under Part II at para 3.5.

180

Non-punishment principle: Domestic law 5.94

5.92 However, the CPS guidance provides that in the event of an early guilty plea by a defendant, where a full investigation has not been carried out and the circumstances are such that there is suspicion of trafficking/slavery, at the first hearing prosecutors should: make the defence aware of a possible defence under s 45; request that a plea is not formally entered; and apply for an adjournment for investigation of trafficking status. The normal timescales of Crown Court Better Case Management and Magistrates’ Courts’ Transforming Summary Justice will not apply; R v D99. The guidance continues by saying the obligation to identify whether a suspect might be a victim does not rest on the prosecutor alone: in an appropriate case the defence must take steps to ascertain and advise on trafficking status; and the court should be alert to ensure steps are taken: R v D (above). The guidance further states if, on notice, the defence still insists on indicating or entering an early guilty plea, the prosecutor will have discharged his/her obligations. 5.93 Where there is post-charge trafficking/slavery evidence, the CPS guidance provides that: ‘In cases where a decision has already been taken to charge and prosecute a suspect, but further credible evidence comes to light, or the status of a suspect as a possible victim of trafficking/slavery is raised post-conviction, for example in mitigation or through a pre-sentence report, then Prosecutors should seek an adjournment and ensure that the suspect is referred through the NRM and that the steps outlined in Stage 4 above are carried out.’ 5.94 Prosecutors should be alive to the fact that a failure to make enquires into whether a defendant or suspect is a potential victim of trafficking could give rise to both Art 4 (Slavery, servitude, forced or compulsory labour100) and Art 6 (fair trial) ECHR violations101. The police will have a residual duty to investigate under Art 4 in the face of credible indicators of trafficking being present independent of the CPS’s duty.

99 [2018] EWCA Crim 2995. 100 Breach of a positive obligation to investigate the allegation of trafficking. See Chapter 17. 101 VCL  v UK (App No  77587/12) is an application communicated and pending judgment from the ECtHR (see: https://www.echr.coe.int/Documents/FS_Forced_labour_ENG.pdf, last accessed 5 August 2020).

181

5.95  Criminal defences available to victims of trafficking

Is it in the public interest to prosecute the victim of trafficking? Immigration and Asylum Act 1999, s 31 5.95 Many victims of international trafficking enter the UK as refugees (see Chapter 10 for a fuller exposition of trafficking victims meeting the definition of refugee). Where they do so by deception or where they commit an identity document offence, they may have a defence on the ground of their refugee status under the Immigration and Asylum Act 1999, s 31. 5.96 This is a defence which has frequently been overlooked by practitioners and judges. Lord Thomas CJ made clear his views that where the defence is overlooked a referral of the relevant practitioner to his respective regulator is appropriate; see R v Al Shabani102. 5.97 Section 31 derives from Art 31 of the Convention Relating to the Status of Refugees 1951103, which provides as follows: ‘1. The Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of Article 1, enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence’. 5.98 Section 31 is the domestic provision which incorporates Art 31 of the 1951 Refugee Convention into the law of England and Wales. Section 31 has a limited application in that it only provides a defence to certain offences. Article 31 itself should not be overlooked, because it is broader in scope than s 31. In rare cases, it may be necessary for prosecutors to look beyond the section and consider the scope of Art 31 itself when considering charging a refugee. It may be necessary for defence practitioners (in an appropriately compelling case) to consider abuse of process as a remedy to a refugee being charged with an offence in circumstances where he should have been afforded refugee protection under

102 [2015] EWCA Crim 1924. 103 189 UNTS 150.

182

Non-punishment principle: Domestic law 5.101

Art 31 (but where s 31 does not apply)104. The Court of Appeal has observed that s 31 may not provide the full protection encompassed in Art 31105. 5.99 In cases where a statutory defence is not available to a refugee, the purposive and humanitarian aims of the Refugee Convention should be borne in mind when prosecutors consider the public interest; see R v Asfaw.106 5.100 Since s 31 applies in relation to specific offences only, where a refugee commits any other offence, prosecutors should apply the public interest limb of the Full Code Test for Crown Prosecutors to ensure that proper consideration is given to any entitlement to Art 31 Refugee Convention protection. Relevant public interest factors would include the seriousness of the level of crime involved in securing illegal entry; that the suspect’s actions caused harm to others, or placed other persons’ life, health or safety at risk; disruption to services, such as those relating to train services in the Channel Tunnel; and economic loss, which may be linked to any disruption of services. 5.101 Section 31 is in the following terms: ‘31 Defences based on Article 31(1) of the Refugee Convention (1) It is a defence for a refugee charged with an offence to which this section applies to show that, having come to the United Kingdom directly from a country where his life or freedom was threatened (within the meaning of the Refugee Convention), he— (a) presented himself to the authorities in the United Kingdom without delay; 104 See R v Mirahessari [2016] EWCA Crim 1733, in which refugees were charged with the 19th century offence of obstructing an engine when they breached Channel Tunnel security and tried to walk from Calais to Folkestone. In that case the appellants sought unsuccessfully to deploy abuse of process through their being charged with an offence to which the refugee defence does not attach. 105 In R v Ordu [2017] EWCA Crim 4, [2017] 1 Cr App Rep 21 at 4 (Edis J giving the judgment of the Court), it was noted: ‘The [Immigration and Asylum Act] 1999 came into force in November 1999 following a decision of the Divisional Court in R v Uxbridge Magistrates Court ex p. Adimi [2001] QB 667, which had been decided on 29  July 1999. Section 31 was an attempt to comply with the treaty obligations of the United Kingdom under Article 31(1) of the Refugee Convention and was introduced by amendment to the Bill which became the Act because of the decision in Adimi. Until that date UK criminal law did not comply with the treaty obligations of the UK, and the introduction of s 31 was an attempt by Parliament to rectify the position. It was not, at least initially, successful because the plain words of s 31(2) appeared to remove the defence from those who had stopped over in a safe country while travelling, while Article 31 affords such people protection.That being so, s 31 as so construed failed to comply fully with the treaty obligation.’ 106 [2008] UKHL 31, [2008] 1 AC 1061, [2008] 2 WLR 1178, [2008] 3 All ER 775. 

183

5.102  Criminal defences available to victims of trafficking

(b) showed good cause for his illegal entry or presence; and (c) made a claim for asylum as soon as was reasonably practicable after his arrival in the United Kingdom. (2) If, in coming from the country where his life or freedom was threatened, the refugee stopped in another country outside the United Kingdom, subsection (1) applies only if he shows that he could not reasonably have expected to be given protection under the Refugee Convention in that other country. (3) In England and Wales … the offences to which this section applies are any offence, and any attempt to commit an offence, under— (a) Part I of the Forgery and Counterfeiting Act 1981 (forgery and connected offences); (aa) section 4 or 6 of the Identity Documents Act 2010; (b) section 24A of the 1971 Act (deception); or (c) section 26(1)(d) of the 1971 Act (falsification of documents). … (5) A refugee who has made a claim for asylum is not entitled to the defence provided by subsection (1) in relation to any offence committed by him after making that claim. (6) ‘Refugee’ has the same meaning as it has for the purposes of the Refugee Convention. (7) If the Secretary of State has refused to grant a claim for asylum made by a person who claims that he has a defence under subsection (1), that person is to be taken not to be a refugee unless he shows that he is. …’

Application of s 31 5.102 In order for a defendant to avail himself of a s 31 defence: •

the defendant needs to satisfy an evidential burden that he was a refugee (a refugee being ‘… a person who has left his own country owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion’): 184

Non-punishment principle: Domestic law 5.104

see R  v Makuwa107; the legal burden then vests in the Crown to prove that a defendant is not a refugee (if the Crown does not accept that the defendant is a refugee); or alternatively, where the Secretary of State has refused to grant a claim for asylum in respect of a defendant who claims that he has a defence under s 31(1), the legal burden vests in the defendant to show on the balance of probabilities that he is a refugee: see R v Sadighpour108 and R v Mateta109; •

the defendant then needs to prove (on the balance of probabilities) that he did not stop in any country in transit to the UK or, alternatively, that he could not reasonably have expected to be given protection under the Refugee Convention in the countries outside the UK in which he stopped; and, if so: — to prove that he presented himself to the authorities in the UK without delay; — to show good cause for his illegal entry or presence; and — to prove that he made a claim for asylum as soon as was reasonably practicable after his arrival in the UK.

5.103 In SXH  v The CPS,110 the Supreme Court considered whether a suspect’s entry into the UK as an asylum seeker and the decision to prosecute her for entering with false travel documentation (an offence which could attract the s 31 statutory defence) engaged ECHR, Art 8.The Court held that the decision to prosecute did not amount to a breach of Art 8, observing that ‘it is difficult to envisage circumstances in which the initiation of a prosecution against a person reasonably suspected of committing a criminal offence could itself be a breach of that person’s human rights’, at [34].

Section 31(2) 5.104 Section 31(2) is to be construed as providing immunity from prosecution to refugees who, fleeing from their country of persecution, make a short-term stopover in an intermediate country en route to the country of intended

107 [2006] EWCA Crim 175, [2006] 1 WLR 2755 at 37. 108 [2012] EWCA Crim 2669, [2013] 1 Cr App Rep 269 (per Treacy LJ, who gave the judgment of the court, at 38–40). 109 [2013] EWCA Crim 1372, [2014] 1 WLR 1516 (Leveson and Fulford LJJ and Spencer J) at 10. 110 [2017] UKSC 30.

185

5.105  Criminal defences available to victims of trafficking

refuge111. In R  v Kamalanathan112 Thomas LJ (as he then was), giving the judgment of the court, said: ‘[4] … A person could be, for example, making a short stopover or be still in the course of flight, if he had to be concealed in the intervening country whilst he was being pursued by foreign agents. It might be, in such circumstances, that the time could be very much more than the 3 hours that had occurred on the facts in Asfaw. [5] The real question is, looking at all the circumstances: is the person in the course of a flight? Is he making a short-term stop over? Is he in transit? Whichever phrase is used, one has to see whether at the material time the person was here, not having come to this country either temporarily or permanently seeking to stop here but was going on. That is a question of fact’.

Presenting without delay 5.105 In R v Jaddi113 Hughes LJ (as he then was) giving the judgment of the court stated: ‘[26] … In very general terms, it seems to us that in the great majority of cases there will simply be no excuse for a genuine refugee not to make himself known immediately he arrives in the safe place – that is to say the arrivals immigration hall at a United Kingdom airport. Moreover, from the point of view of sensible immigration control, that makes sense. It is a great deal more difficult to discern whether a claim to be a refugee is genuine if it is not made until some time later and especially if it is only made when it is forced on the claimant by discovery that he is living illegally. [30] … it is certainly open to a tribunal of fact to conclude and in many cases it may be the right conclusion, that there is simply no reason for such a traveller not to identify himself the moment he is in friendly official hands’. 111 R v Asfaw [2008] UKHL 31, [2008] 1 AC 1061. The House of Lords decided that the IAA 1999, s 31 should be read so that it provided immunity, if the other conditions are fulfilled, from the imposition of criminal penalties for offences attributable to the attempt of a refugee to leave the country in the continuing course of a flight from persecution even after a short stopover in transit.This changed the law as it had previously been understood and explained in R (on the application of Pepushi) v Crown Prosecution Service [2004] EWHC 798 (Admin). The development of the law may be seen from R v Kamalanathan [2010] EWCA Crim 1335, R v Abdalla [2010] EWCA Crim 2400, [2011] 1 Cr App Rep 432, and R v Mateta [2013] EWCA Crim 1372, [2014] 1 WLR 1516. 112 [2010] EWCA Crim 1335. 113 [2012] EWCA Crim 2565.

186

Article 31 5.109

5.106 R v Jaddi was considered by the court in R v Mateta114: ‘These observations were not intended to detract from the principles in R  v Asfaw and R  v Mohamed (Abdalla) [viz there is no need for a voluntary exonerating act] or the other authorities to which we have referred: they do no more than make clear the very real importance of focussing on the particular facts and circumstances of each case’. 5.107 In R v Z115 HallettVP, giving the judgment of the court, accepted the submissions of the appellant and respondent that: ‘27 … it was clearly arguable that the appellant did claim asylum at the first reasonably practicable moment. On any view, she claimed asylum within a matter of hours of landing in the United Kingdom and before she had left the airport … 28. It will be a question of fact in every case as to whether or not there is an excuse for a refugee not to make themselves known immediatelythey arrive in the immigration hall’.

Good cause 5.108 This condition ‘… has only a limited role in the article. It will be satisfied by a genuine refugee showing that he was reasonably travelling on false papers’116.

Article 31 5.109 Article 31 of the 1951 Convention relating to the Status of Refugees117 provides as follows: ‘1. The Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of 114 R v Mateta [2013] EWCA Crim 1372, [2014] 1 WLR 1516. 115 [2016] EWCA Crim 1083. 116 See R v Uxbridge Magistrates’ Court and Another, ex p Adimi [2001] QB 667 at 679; see also Mateta at 21(v). 117 For a discussion on this provision, see: https://www.unhcr.org/3bcfdf164.pdf and https://www. refworld.org/pdfid/59ad55c24.pdf (last accessed on 6 June 2020).

187

5.110  Criminal defences available to victims of trafficking

Article 1, enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence. 2. The Contracting States shall not apply to the movements of such refugees’ restrictions other than those which are necessary and such restrictions shall only be applied until their status in the country is regularized or they obtain admission into another country. The Contracting States shall allow such refugees a reasonable period and all the necessary facilities to obtain admission into another country.’

Annex 5.110 Offences in relation to which the MSA 2015, s 45 defence is not available: •

false imprisonment;

• kidnapping; • manslaughter; • murder; •

perverting the course of justice;

• piracy; •

the following offences under the Offences against the Person Act 1861: — s 4 (soliciting murder); — s 16 (threats to kill); — s 18 (wounding with intent to cause grievous bodily harm); — s 20 (malicious wounding); — s 21 (attempting to choke, suffocate or strangle in order to commit or assist in committing an indictable offence); — s 22 (using drugs etc to commit or assist in the committing of an indictable offence); — s 23 (maliciously administering poison etc so as to endanger life or inflict grievous bodily harm); — s 27 (abandoning children); — s 28 (causing bodily injury by explosives); — s 29 (using explosives with intent to do grievous bodily harm); — s 30 (placing explosives with intent to do bodily injury); 188

Annex 5.110

— s 31 (setting spring guns etc with intent to do grievous bodily harm); — s 32 (endangering safety of railway passengers); — s 35 (injuring persons by furious driving); — s 37 (assaulting officer preserving wreck); — s 38 (assault with intent to resist arrest); •

an offence under any of the following provisions of the Explosive Substances Act 1883: — s 2 (causing explosion likely to endanger life or property); — s 3 (attempt to cause explosion, or making or keeping explosive with intent to endanger life or property); — s  4 (making or possession of explosives under suspicious circumstances);

•

child destruction;

•

cruelty to children (Children and Young Persons Act 1933, s 1);

•

control etc of quasi-military organisation (Public Order Act 1936, s 2);

•

infanticide (Infanticide Act 1938, s 1);

•

an offence under any of the following provisions of the Firearms Act 1968: — s 5 (possession of prohibited firearms); — s 16 (possession of firearm with intent to endanger life); — s 16A (possession of firearm with intent to cause fear of violence); — s 17(1); (use of firearm to resist arrest); — s  17(2); (possession of firearm at time of committing or being arrested for specified offence); — s 18 (carrying firearm with criminal intent);

•

an offence under any of the following provisions of the Theft Act 1968: — s 8 (robbery or assault with intent to rob); — s  9 (burglary), where the offence is committed with intent to inflict grievous bodily harm on a person, or to do unlawful damage to a building or anything in it; — s 10 (aggravated burglary); — s 12A (aggravated vehicle-taking), where the offence involves an accident which caused the death of any person; — s 21 (blackmail); 189

5.110  Criminal defences available to victims of trafficking

•

the following offences under the Criminal Damage Act 1971: — an offence of arson under s 1; — an offence under s  1(2) (destroying or damaging property) other than an offence of arson;

•

assisting unlawful immigration to member state (Immigration Act 1971, s 25);

•

penalty for fraudulent evasion of duty etc) in relation to goods prohibited to be imported under the Customs Consolidation Act 1876, s 42 (indecent or obscene articles) (Customs and Excise Management Act 1979, s 170);

•

hostage-taking (Taking of Hostages Act 1982, s 1);

•

an offence under the following provisions of the Aviation Security Act 1982: — s 1 (hijacking); — s 2 (destroying, damaging or endangering safety of aircraft); — s 3 (other acts endangering or likely to endanger safety of aircraft); — s 4 (offences in relation to certain dangerous articles);

•

ill-treatment of patients (Mental Health Act 1983, s 127);

•

abduction of child by parent etc or others (Child Abduction Act 1984, ss 1, 2);

•

riot (Public Order Act 1986, s 1);

•

violent disorder (Public Order Act 1986, s 2);

•

torture (Criminal Justice Act 1988, s 134);

•

causing death by dangerous driving (Road Traffic Act 1988, s 1);

•

causing death by careless driving when under the influence of drink or drugs (Road Traffic Act 1988, s 3A);

•

an offence under the following provisions of the Aviation and Maritime Security Act 1990: — s 1 (endangering safety at aerodromes); — s 9 (hijacking of ships); — s 10 (seizing or exercising control of fixed platforms); — s 11 (destroying fixed platforms or endangering their safety); — s 12 (other acts endangering or likely to endanger safe navigation); — s 13 (offences involving threats); 190

Annex 5.110

•

offences relating to Channel Tunnel trains and the tunnel system (an offence under Part 2 of the Channel Tunnel (Security) Order 1994 (SI 1994/570));

•

putting people in fear of violence (Protection from Harassment Act 1997, s 4);

•

stalking involving fear of violence or serious alarm or distress (Protection from Harassment Act 1997, s 4A);

•

racially or religiously aggravated assaults (Crime and Disorder Act 1998, s 29);

•

racially or religiously aggravated offences under the Public Order Act 1986, ss 4 or 4A (Crime and Disorder Act 1998, s 31(1)(a) or (b));

•

an offence under the following provisions of the Terrorism Act 2000: — s 54 (weapons training); — s 56 (directing terrorist organisation); — s 57 (possession of article for terrorist purposes); — s 59 (inciting terrorism overseas);

•

genocide, crimes against humanity and war crimes and ancillary conduct (International Criminal Court Act 2001, ss 1, 2);

•

an offence under the following provisions of the Anti-terrorism, Crime and Security Act 2001: — s 47 (use of nuclear weapons); — s 50 (assisting or inducing certain weapons-related acts overseas); — s 113 (use of noxious substance or thing to cause harm or intimidate);

•

female genital mutilation and related offences (Female Genital Mutilation Act 2003, ss 1, 2, 3);

•

the following Sexual Offences Act 2003 offences: — s 1 (rape); — s 2 (assault by penetration); — s 3 (sexual assault); — s 4 (causing person to engage in sexual activity without consent); — s 5 (rape of child under 13); — s 6 (assault of child under 13 by penetration); — s 7 (sexual assault of child under 13); — s 8 (causing or inciting child under 13 to engage in sexual activity); 191

5.110  Criminal defences available to victims of trafficking

— s 9 (sexual activity with a child); — s 10 (causing or inciting a child to engage in sexual activity); — s 13 (child sex offences committed by children or young persons); — s 14 (arranging or facilitating commission of child sex offence); — s 15 (meeting a child following sexual grooming); — s 16 (abuse of position of trust: sexual activity with a child); — s 17 (abuse of position of trust: causing or inciting a child to engage in sexual activity); — s 18 (abuse of position of trust: sexual activity in presence of child); — s 19 (abuse of position of trust: causing a child to watch a sexual act); — s 25 (sexual activity with a child family member); — s 26 (inciting a child family member to engage in sexual activity); — s 30 (sexual activity with a person with a mental disorder impeding choice); — s 31 (causing or inciting a person with a mental disorder impeding choice to engage in sexual activity); — s 32 (engaging in sexual activity in the presence of a person with a mental disorder impeding choice); — s 33 (causing a person with a mental disorder impeding choice to watch a sexual act); — s  34 (inducement, threat or deception to procure sexual activity with a person with a mental disorder); — s 35 (causing a person with a mental disorder to engage in or agree to engage in sexual activity by inducement, threat or deception); — s  36 (engaging in sexual activity in the presence, procured by inducement, threat or deception, of a person with a mental disorder); — s 37 (causing a person with a mental disorder to watch a sexual act by inducement, threat or deception); — s  38 (care workers: sexual activity with a person with a mental disorder); — s 39 (care workers: causing or inciting sexual activity); — s 40 (care workers: sexual activity in the presence of a person with a mental disorder); — s 41 (care workers: causing a person with a mental disorder to watch a sexual act); 192

Annex 5.110

— s 47 (paying for sexual services of a child); — s 48 (causing or inciting child prostitution or pornography); —

s 49 (controlling a child prostitute or a child involved in pornography);

— s 50 (arranging or facilitating child prostitution or pornography); — s 61 (administering a substance with intent); — s 62 (committing offence with intent to commit sexual offence); — s 63 (trespass with intent to commit sexual offence); — s 64 (sex with an adult relative: penetration); — s 65 (sex with an adult relative: consenting to penetration); — s 66 (exposure); — s 67 (voyeurism); — s 70 (sexual penetration of a corpse); •

causing or allowing a child or vulnerable adult to die or suffer serious physical harm (Domestic Violence, Crime and Victims Act 2004, s 5);

•

an offence under the following provisions of the Terrorism Act 2006: — s 5 (preparation of terrorist acts); — s 6 (training for terrorism); — s 9 (making or possession of radioactive device or material); — s 10 (use of radioactive device or material for terrorist purposes); — s 11 (terrorist threats relating to radioactive devices etc);

•

slavery, servitude and forced or compulsory labour (Modern Slavery Act 2015, s 1);

•

human trafficking (Modern Slavery Act 2015, s 2).

193

6 Victims of human trafficking: at the police station Steven Bird, Michelle Brewer and Philippa Southwell

6.1 The first contact that victims of modern slavery may have with law enforcement is likely to be on arrest, particularly those involved in forced criminality. After arrest, they will be taken to a police station and there is an opportunity for early identification of the arrested person as a victim of trafficking which is often missed. 6.2 In any criminal case, the police station stage is extremely important and influences greatly how the case develops. With potential victims of trafficking this stage of the case is even more important as the police have the opportunity to divert them from the criminal justice system or at least to refer them into the National Referral Mechanism (‘NRM’) at an early stage. 6.3 This stage of proceedings also provides the potential victim of trafficking with access to legal advice, perhaps for the first time. It is essential that legal representatives are aware of the basic trafficking indicators and can discuss the issues concerning a referral into the NRM at this early stage with their arrested client.

Arrival at the police station Risk assessment 6.4 The first contact that an arrested potential victim of trafficking will have with police after his initial arrest will be with the custody officer who is responsible for the welfare of the detained person while in police custody. The custody officer is responsible for initiating a risk assessment to consider whether the detainee is likely to present specific risks to custody staff, any individual who may have contact with the detainee (e.g. legal advisers, medical staff) or themselves. 195

6.5  Victims of human trafficking: at the police station

This risk assessment must include the taking of reasonable steps to establish the detainee’s identity and to obtain information about the detainee that is relevant to their safe custody, security and welfare and risk to others1. 6.5 The current police risk assessment does not include any questions specifically designed to identify whether the arrested person may be a potential victim of trafficking and the process itself is unlikely to identify much more than whether the individual needs to see a health professional or has any mental health issues that require the services of an appropriate adult. 6.6 Whether the custody officer or arresting officers have any awareness of the issues that may identify the arrested individual as a potential victim of trafficking may depend on the extent of the briefing for the operation that led to the arrest, and the individual officer’s experience and training. 6.7 If the operation leading to the arrest was a directed operation at a specific premises or group, it may be that the senior officers have made those engaged in the operation aware of the likelihood that potential victims of trafficking may be present and arrested at the scene. For instance, senior officers involved in the planning of a raid on a known cannabis factory which leads to the arrest of a number of young foreign nationals ought to have identified that possibility in advance. Consequently, the police should be aware that any suspects arrested at the premises might be potential victims of trafficking and the officers subsequently dealing with them whilst in police detention should ensure that the issue is addressed and any necessary safeguards put in place. 6.8 If the arrest is opportunistic (e.g. a person arrested for pickpocketing on the street having been spotted by an officer), the identification of the individual as a potential victim of trafficking is likely to be more problematic and more reliant on the training of the custody officer or arresting officer to identify the warning signs.

Police training and development 6.9 Police recruitment and training varies across the country. Some forces require applicants to have completed an independently delivered training course called 1 Police and Criminal Evidence Act (‘PACE’) 1984, Code C3.6.

196

Arrival at the police station 6.13

the Certificate of Knowledge in Policing (‘CKP’), successful completion of which will enable the individual to transfer this externally recognised national qualification as evidence of the knowledge component for their Diploma in Policing. However, the syllabus for the CKP does not contain any specific input on modern slavery or human trafficking. 6.10 The College of Policing runs a course on protecting vulnerable people, which is an e-learning programme covering child abuse, child sexual exploitation, domestic abuse, female genital mutilation, forced marriage, honour-based violence, modern slavery, prostitution, serious sexual offences, stalking and harassment. 6.11 The College of Policing manages the content and delivery of detective training through the Professionalising Investigation Programme, which provides a structured development programme to embed and maintain investigative skills for police officers and police staff. It is to be hoped that, as awareness of the issues increases, the training of officers within these programmes will specifically deal with modern slavery and human trafficking. 6.12 Improved training for ‘front line’ officers and staff will lead to a greater number of potential victims of trafficking being identified.The training is required early in an officer’s career and should be constantly updated with regard to changes in the forms of exploitation and methodology of the traffickers.

Provision of rights 6.13 On arrival at the police station, the arrested person will be informed by the custody officer of their legal rights under PACE 1984, which may be exercised at any stage during the period in custody. These rights include: • the right to consult privately with a solicitor and to have free independent legal advice; • the right to have someone informed of their arrest; • the right to consult the Codes of Practice; • the right to interpretation and translation and the right to communicate with their High Commission, Embassy or Consulate; and • the right to be informed about the offence and any further offences for which they are arrested whilst in custody and why they have been arrested and detained2. 2 PACE 1984, Code C3.1.

197

6.14  Victims of human trafficking: at the police station

6.14 The detainee must also be given a written notice, which contains information to allow them to exercise these rights by setting out: • the above rights; • the arrangements for obtaining legal advice; • the right to a copy of the custody record; • the right to remain silent as set out in the caution; • the right to have access to materials and documents which are essential to challenging the lawfulness of their arrest and detention for any offence; • the maximum period for which they may be kept in police detention without being charged; • when detention must be reviewed and when release is required; • the right to medical assistance; • the right, if they are prosecuted, to have access to the evidence in the case before their trial3. 6.15 The notice should also briefly set out the detainee’s other entitlements while in custody, by mentioning the provisions relating to the conduct of interviews, the circumstances in which an appropriate adult should be available to assist the detainee, and the statutory right to make representations whenever the need for his detention is reviewed. Finally, the notice should list the entitlements concerning reasonable standards of physical comfort, adequate food and drink, access to toilets and washing facilities, clothing, medical attention, and exercise when practicable, as well as personal needs relating to health, hygiene and welfare concerning the provision of menstrual and any other health, hygiene and welfare products needed by the detainee in question and speaking about these in private to a member of the custody staff4. 6.16 The custody officer or other custody staff as directed by the custody officer will ask the detainee whether he would like legal advice and want someone informed of his detention, with the detainee asked to sign the custody record to confirm his decisions. 6.17 The custody officer must also determine whether the detainee is, or might be, in need of medical treatment or attention, requires an appropriate adult or help 3 PACE 1984, Code C3.2. 4 PACE 1984, Code C3.2.

198

Arrival at the police station 6.22

to check documentation or requires an interpreter. The decision in respect of these matters must be recorded on the custody record5. 6.18 If the detainee appears to be someone who does not speak or understand English, the custody officer must ensure that without delay arrangements are made for the detainee to have the assistance of an interpreter and that the detainee is told clearly about his right to interpretation and translation. 6.19 The written notice given to the detainee must be in a language that the detainee understands and includes the right to interpretation and translation. If a translation of the notice is not available, the information in the notice must be given through an interpreter and a written translation provided without undue delay6. 6.20 The right to free and independent legal advice will only be effective if it is exercised by the arrested person. Many people detained in the police station will not request the services of a solicitor and may therefore not obtain some of the protections that would be otherwise available to them at the police station. Whether a potential victim of trafficking is more or less inclined to request legal advice than any other detainee is unknown, although it is widely reported by victims of trafficking that they have little understanding of the procedures in the UK, particularly those who have come from isolated communities and they may not take up their entitlement to such advice. 6.21 Should the arrested person request legal advice, the police will ask whether they have a solicitor who they would like to contact. If they do not know a solicitor, the police will arrange for the duty solicitor to attend. In each situation the police will call the Defence Solicitor Call Centre (‘DSCC’), who will contact the nominated firm or the duty solicitor.

Criminal Defence Direct 6.22 In some cases, despite asking to speak to a solicitor, the detained person may only be able to speak to an adviser at a call centre known as Criminal Defence Direct (‘CDD’). Calls will be sent to CDD where the person is detained: 5 PACE 1984, Code C3.5. 6 PACE 1984, Code C3.12.

199

6.23  Victims of human trafficking: at the police station

•

in relation to any non-imprisonable offence;

•

on a bench warrant for failing to appear and being held for production before the court, except where the existing solicitor acting has clear documentary evidence available that would result in the detainee being released from custody;

•

on suspicion of driving with excess alcohol, who is taken to the police station to give a specimen (Road Traffic Act 1988, s 5); failure to provide a specimen (Road Traffic Act 1988, ss 6, 7, 7A); or driving whilst unfit/ drunk in charge of a motor vehicle (Road Traffic Act 1988, s 4); or

•

in relation to breach of police or court bail conditions7.

6.23 Even in the above cases, a solicitor will be contacted if: •

the detainee is to be subject to an interview or an identification procedure;

•

the detainee is eligible for assistance from an appropriate adult under the PACE Codes of Practice;

•

the detainee is unable to communicate over the telephone;

•

the detainee complains of serious maltreatment by the police;

•

the investigation includes another alleged offence which allows a solicitor to advise;

•

the solicitor is already at the same police station;

•

the advice relates to an indictable offence; or

•

the request is a Special Request8.

In the case of potential victims of trafficking, it is likely that one of the exceptions above will apply such that the use of the CDD should be limited. One might expect that the potential victim of trafficking detained might require an appropriate adult or have difficulties in communication. 6.24 If the CDD is deployed, it is unlikely that the detained person would be identified by them as a potential victim of trafficking, given the limited and remote interaction on the telephone. The level of training provided for CDD staff in relation to identifying victims of trafficking is unknown. If the arrested 7 See Chapter  15 regarding common offences linked to trafficking. Many victims who have been retrafficked are often in breach of police or court bail. 8 A ‘Special Request’ is a request made to the solicitor by the DSCC to take the case even if it does not fall within the exceptions. Special Requests may include, for example, requests where CDD consider that, because of a conflict of interest, the request should be handled by a solicitor (instead of by a CDD telephone adviser) or considers that Advocacy Assistance is required.

200

Arrival at the police station 6.28

potential victim of trafficking is directed to the CDD, because the offence is not imprisonable or they are in breach of bail, an opportunity to identify them as a potential victim of trafficking is missed.

Duty to attend the police station 6.25 Once called by the DSCC the solicitor will contact the police station by telephone and, if appropriate, also speak to the arrested person. The solicitor has a duty to attend at the police station to provide advice and attend all police interviews with the arrested person in connection with an offence. The solicitor must also attend at any identification parade, group identification or confrontation, and where the arrested person complains of serious maltreatment by the police9. Attendance at video identification parades is discretionary10. In general terms, once there is to be an interview the detained person will have face-to-face advice from a solicitor or accredited police station representative.

Arrival of the legal representative at the police station 6.26 On arrival at the police station the legal representative should obtain and read a copy of the custody record to ascertain the circumstances of the arrest and what has happened up to that point, while the detained person has been in police custody. 6.27 The legal representative should also obtain as much information from the interviewing officer as possible by way of disclosure about the alleged offence and the circumstances of the arrest. The police are not obliged to disclose anything to the representative but will provide at least some limited disclosure in all cases. The legal representative should consider the disclosure provided (usually but not always in written form) and ask further questions of the officer, which may or may not be answered. It is important to note what information is refused as well as what is provided. 6.28 This is an opportunity for the legal representative to gauge whether there may be any potential indicators of human trafficking. Legal representatives should be 9 SCC 2017 Specification para 9.38. 10 SCC 2017 Specification para 9.40.

201

6.29  Victims of human trafficking: at the police station

aware of the basic trafficking indicators and common types of offences where victims are exploited for criminality as well as certain types of victim profile, all of which should give cause for further enquiry. See Chapter 2 for further explanation on indicators of trafficking and Chapter 15 for common forms of forced criminality offences.

Interaction with the detained person Interpreters 6.29 Although not the case with every potential victim of trafficking, it is likely that where the victim is a foreign national there will be language difficulties and instructions will need to be taken and advice given via an interpreter. If the custody officer assesses that the suspect does not understand English sufficiently well to be able to communicate effectively, he will seek the services of an interpreter. 6.30 Every interpreter working in the courts and police stations should be selected through the Ministry of Justice Framework Agreement or from the National Register of Public Service Interpreters in order to ensure a minimum and measurable standard of training and quality assurance. Such interpreters are subject to a Code of Conduct, standards of competence and professional skills, and disciplinary proceedings. 6.31 The arrangements must comply with the minimum requirements set out in Directive 2010/64/EU of the European Parliament and of the Council of 20  October 2010 on the right to interpretation and translation in criminal proceedings.The Directive states that the quality of interpretation and translation provided has to be sufficient to ‘safeguard the fairness of the proceedings, in particular by ensuring that suspected or accused persons have knowledge of the cases against them and are able to exercise their right of defence’.Therefore, the suspect must be able to understand their position and be able to communicate effectively with police officers, interviewers, solicitors and appropriate adults in the same way as a suspect who can speak and understand English and who would therefore not require an interpreter11.

11 PACE 1984, Code C13.1A.

202

Interaction with the detained person 6.37

6.32 Equally, a written translation of all documents considered essential for the person to exercise their right of defence and to ‘safeguard the fairness of the proceedings’ should be provided, which includes any decision to authorise a person to be detained and details of any offence(s) with which the person has been charged or for which they have been told they may be prosecuted. 6.33 All reasonable attempts should be made to make the suspect understand that interpretation and translation will be provided at public expense12. 6.34 Consideration should be given to the gender and religious or cultural background of the interpreter. The views of the potential victim of trafficking should be taken into consideration, although this is not specifically set out in the PACE 1984 Codes of Practice (with the exception of seeking an alternative interpreter if the detainee complains about the adequacy of the translation from the interpreter in attendance). 6.35 The interpreter used to interpret witness statements should not also be used for the interview and private discussions between the legal adviser and the detainee. The adviser should consider whether there is a tension in using the same interpreter to interpret in the consultation as is used for the interview. It is possible to obtain public funding under the Police Station Advice and Assistance scheme for an interpreter to be obtained by the defence, although in practice there are problems in terms of locating suitable interpreters without an undue delay to the investigation and the time that the detainee remains in custody. 6.36 It is important that the interpreter understands that the discussions between the adviser and the detainee are confidential and subject to legal professional privilege. It would be a serious breach of the interpreter’s professional ethics to inform police of what was discussed in such consultation. If such a situation arises, complaint must be made to their professional body, to the police and Ministry of Justice. 6.37 It is important that an interpreter used at a police station or in the course of investigations by other investigating agencies is not engaged to interpret in 12 PACE 1984, Code C13.1B.

203

6.38  Victims of human trafficking: at the police station

court. If, however, it is not possible to find another interpreter (for example, where the language is uncommon) the court and all parties must be notified of the intention to use the same interpreter for the court proceedings13.

Initial meeting with the client 6.38 It is important to try to establish a rapport with the client, which is always more difficult via an interpreter. The client should be informed as to the status of the legal representative. If attending as duty solicitor, the representative should explain the nature of the duty scheme, as suspects are often under the impression that the duty solicitor is the ‘police solicitor’, obtained for them by the police. 6.39 The role of the adviser should be explained, as should the fact that everything said in the consultation is confidential and subject to legal professional privilege and cannot be disclosed to others (except in very limited circumstances). It is also worth explaining that the solicitor is there to advise the suspect on the law and provide advice based on their instructions, if any, and is not there to suggest an account to put forward. Some suspects may not understand the purpose of having an adviser to assist them and some potential victims of trafficking may be wary or distrustful of their legal adviser. It is important to ensure that the client understands that the legal adviser is completely independent of the police, that he will not divulge information to the police and that the adviser is there to protect the interests of the client while in detention. It must be remembered that non-British victims of trafficking may come from countries which do not afford fair trial rights in practice, and therefore trust will need to be built with the client.

Identifying the client as a potential victim of trafficking: disclosure 6.40 The adviser should be alert to basic trafficking indicators14. The Law Society Practice Note, ‘Criminal Prosecutions of Victims of Trafficking’15, sets out a non-exhaustive list of offences that victims of trafficking are often arrested for, which includes cannabis cultivation, drug importation, immigration offences, document offences, prostitution, dishonesty offences including theft, pickpocketing and begging. 13 R (on the application of Bozturk) v Thames Magistrates’ Court (2001) Times, 26 June. 14 See Chapter 2. 15 Available at www.lawsociety.org.uk/support-services/advice/practice-notes/criminal-prosecutions-ofvictims-of-trafficking/, last accessed 4 June 2020.

204

Interaction with the detained person 6.45

6.41 The Practice Note also sets out a non-exhaustive list of common factors which may also assist in identifying possible victims, including: • the suspected victim is from a place known to be a source of human trafficking; • the possession of false identity or travel documents; • showing signs of fear or anxiety; • exhibiting distrust of the authorities; • evidence of violence or threats of violence; • fear of revealing immigration status; • lack of knowledge of home or work address; • signs that the individual’s movements are being controlled or that they are taking instructions from a third party; and • inconsistency about name and age. 6.42 If the adviser suspects that the detained person may be a victim of trafficking, the issue should be raised with the client and discussed. It is in the best interests of the suspect to declare that they are a victim of trafficking at this stage so that the legal protections afforded to them can be implemented. 6.43 However, it is common for victims of human trafficking and modern slavery not always to identify as such and not to make such disclosures to their solicitor or to police.They may often mistrust the authorities and their legal representatives (who they may consider to be in a position of authority, especially if called as duty solicitor). Many victims of trafficking will not wish to make such a disclosure to their legal adviser and may deny that they have been acting under the coercion of their trafficker. It is also common for a client to have been coached by the traffickers to give a particular account. 6.44 These discussions will rarely be straightforward. However, if disclosure can be made with the client’s consent, it will trigger a duty on the police to investigate the matter and a referral into the NRM at this stage. The adviser should ensure that the notification is placed on the custody record. 6.45 The disclosure may prompt a further review of the safeguarding assessment regarding the medical needs of the suspect and consideration as to whether an appropriate adult is required, should an interview under caution take place. 205

6.46  Victims of human trafficking: at the police station

6.46 While it is likely the police will seek to interview the suspect for the index offence, representations should be made to police that this is inappropriate and that the suspect should be referred into the NRM. Questioning in relation to the index offence will entail questioning as to their exploitation without the safeguards and special measures afforded to the client by an Achieving Best Evidence (‘ABE’) interview, where the potential victim of trafficking is treated as a potential victim of crime. Not every potential victim of trafficking will choose to co-operate with the ABE interview process.

Instructions not to disclose: the ethical dilemma 6.47 A potential victim of trafficking client may either not disclose that they are a trafficked individual, in circumstances where the objective evidence is that they have been trafficked, or give specific instructions to the legal adviser not to disclose that they have been trafficked and have been acting under the influence of their trafficker. 6.48 This situation raises issues of professional ethics and considerable caution is required. A referral of the client into the NRM is likely to be advantageous to the individual in many ways, not least in relation to a positive decision against charge on the index offence or in raising a modern slavery defence in due course should the matter proceed to trial. On the other hand, for a client accused of a criminal offence, exposing their traffickers may involve a significant personal risk. 6.49 Adults cannot be referred into the NRM without their consent. Therefore, with an adult client who is refusing to agree to disclosure being made to police to trigger an NRM referral, the position is clear: no disclosure can be made. 6.50 Consent to be referred into the NRM is not required for a potential victim of trafficking under the age of 18. However, consent must be obtained by the legal representative to contact a first responder triggering the NRM16.The age of the client is not always obvious and at this stage the adviser has little option but to accept the client’s instructions as to age.

16 See Chapter 16 for full details on NRM referrals and confidentiality.

206

Interaction with the detained person 6.55

6.51 A  solicitor is professionally and legally obliged to keep the affairs of clients confidential. The obligations extend to all matters revealed to a solicitor, from whatever source, by a client, or someone acting on the client’s behalf. In exceptional circumstances this general obligation of confidentiality may be overridden. However, certain communications are subject to legal professional privilege (‘LPP’) and can never be disclosed unless statute permits it either expressly or by necessary implication17. 6.52 LPP is a privilege against disclosure which ensures that clients know that certain documents and information provided to lawyers cannot be disclosed at all. It recognises the client’s fundamental human right to be candid with his legal adviser, without fear of later disclosure to his prejudice. It is an absolute right and cannot be overridden by any other interest. 6.53 Generally, confidentiality extends beyond LPP, which protects only those confidential communications falling under the definition of advice privilege or litigation privilege. Advice privilege includes communications between a lawyer, acting in his capacity as a lawyer, and a client for the purpose of seeking and providing legal advice. 6.54 It is not always easy to identify what information is subject to privilege (and therefore cannot be overridden without a statutory exception) and what is merely confidential. Not all communications between a lawyer and client are privileged.The protection applies only to those communications which directly seek or provide advice or which are given in a legal context, that involve the lawyer using his legal skills and that are directly related to the performance of the lawyer’s professional duties18. 6.55 Information given to a legal adviser by the client in the consultation prior to a police interview is privileged. As such, if a client discloses that they are a victim of trafficking but specifically instructs the legal adviser not to disclose this information to police, regardless of the client’s age, the legal adviser cannot make the disclosure.

17 See www.lawsociety.org.uk/support-services/advice/practice-notes/aml/legal-professional-privilege/, last accessed 14 December 2017. 18 Passmore on Privilege (2nd edn, 2006).

207

6.56  Victims of human trafficking: at the police station

6.56 The issue is perhaps more difficult where the adviser believes from his own assessment of the client that the client is a potential victim of trafficking under the age of 18, but the client does not confirm that to be the case. It is arguable that the legal adviser’s belief of the client’s status is not privileged, but confidential. This is a very fine line. 6.57 The Law Society Practice Note on this subject suggests that if a child client reveals information which indicates continuing sexual or other physical abuse but refuses to allow such disclosure of information to an appropriate authority, a conflict may arise between the duty of confidentiality and the adviser’s ability to act with integrity (principle 2 of the SRA Handbook). 6.58 Whether the adviser’s duties conflict or not will depend on the materiality of the information in question. The adviser must consider whether the threat to the child’s life or health, both mental and physical, is sufficiently serious to justify a breach of the duty of confidentiality19. 6.59 In the vast majority of cases, it would not be appropriate for the adviser to make a disclosure to police which would lead to a referral to the NRM for a child client who has not specifically given consent for that disclosure. It would be an extremely rare case where the legal adviser makes such a disclosure based on discussions with the client without the client’s consent. 6.60 A careful note should be made as to the information obtained and the reasons why no disclosure was made. The client should be encouraged to meet with an appropriate organisation after the police station attendance in the hope that he will subsequently allow a referral to take place.

Advice 6.61 If the legal adviser considers the client to be a potential victim of trafficking, the client should be encouraged to allow disclosure of that fact to the police for referral into the NRM. Such a disclosure imposes on police a duty to 19 See www.lawsociety.org.uk/support-services/advice/practice-notes/criminal-prosecutions-of-victimsof-trafficking/, last accessed June 2020.

208

Interaction with the detained person 6.66

investigate the details of the disclosure (see below) and may stop, or at least suspend, the instant investigation. The client should be treated as a victim of crime. Even if the investigation into the index offence continues, the early disclosure will impact on the decision by the prosecuting authorities as to whether to prosecute the matter and may provide a more effective defence under the Modern Slavery Act 2015 (‘MSA 2015’), s 45. 6.62 A defence under the MSA 2015, s 45 does not require an NRM referral, but the consequences of such a referral may provide evidence to support the s 45 defence, any application to stay proceedings as an abuse of process and/or a review of any decision to prosecute either initially or at a later stage. Gathering such evidence may be particularly difficult for defence lawyers, particularly where it may exist by way of intelligence-based sources on the operation of a particular trafficking gang, so the balance will be in favour of the client allowing a referral. 6.63 Anyone advising on a matter where the client may be a potential victim of trafficking should consider the defence provided by the MSA 2015, s 45 and/ or duress. A full analysis of defences is set out in Chapter 5. 6.64 A person aged 18 or over at the time of the act which constitutes the offence is not guilty of an offence if he does that act because he is compelled to do it, the compulsion is attributable to slavery or to ‘relevant exploitation’, and a reasonable person in the same situation as the person and having the person’s relevant characteristics would have no realistic alternative to doing that act20. 6.65 A  person may be compelled to do something by another person or by his circumstances21. Compulsion is attributable to slavery or to relevant exploitation only if it is, or is part of, conduct which constitutes an offence under the MSA 2015, s 1 or conduct which constitutes relevant exploitation, or it is a direct consequence of a person being, or having been, a victim of slavery or a victim of relevant exploitation22. 6.66 A  person under the age of 18 when he does the act which constitutes the offence is not guilty of an offence if he does that act as a direct consequence of 20 MSA 2015, s 45(1). 21 MSA 2015, s 45(2). 22 MSA 2015, s 45(3).

209

6.67  Victims of human trafficking: at the police station

being, or having been, a victim of slavery or a victim of relevant exploitation, and a reasonable person in the same situation as the person and having the person’s relevant characteristics would do that act23. 6.67 ‘Relevant characteristics’ means age, sex and any physical or mental illness or disability. ‘Relevant exploitation’ is exploitation (within the meaning of the MSA 2015, s 3) that is attributable to the exploited person being, or having been, a victim of human trafficking24. 6.68 The defences set out above do not apply if the offence under investigation falls within the MSA 2015, Sch 425. If the offence under investigation falls within the exceptions set out in Sch 4 (see the full list of exceptions, set out in the annex to Chapter  5), it will not preclude the engagement of the non-punishment legal framework or the Crown applying their guidance in deciding whether to prosecute (see Chapter 5). 6.69 If an interview is to proceed, the client should be advised as to the best options in dealing with the interview. This may include setting out sufficient information to mount the defence at a later stage or to prepare the groundwork for representations to the prosecuting authority that it would be inappropriate to bring charges. 6.70 Much will depend on whether the client accepts that they are a victim of trafficking and have been acting under the influence of their trafficker. If they accept that, and disclosure has been made, but the interview proceeds, a prepared statement to that effect should be considered followed by a no comment interview. It would not necessarily be appropriate for the potential victim of trafficking to be probed about their disclosure in an investigative interview of this nature and answering questions may be problematic. 6.71 If the client refuses to disclose, or denies being a potential victim of trafficking, the client would most likely be best advised not to answer questions. Any answers that specifically deny or undermine the potential trafficking defence may be problematic (albeit not fatal) later at trial if by that stage disclosure has been made. 23 MSA 2015, s 45(4). 24 MSA 2015, s 45(5). 25 MSA 2015, s 45(7).

210

Interaction with the detained person 6.77

6.72 A refusal to answer questions in interview will invoke the possibility of adverse inferences being drawn in any subsequent trial if the jury (or tribunal in the magistrates’ or youth court) believe that the fact not mentioned was relied on in the defence of those proceedings and it was a fact which in the circumstances existing at the time the accused could reasonably have been expected to mention when questioned26. 6.73 Victims of trafficking may not want to disclose details regarding their exploitation for a number of complex cultural, religious and physiological reasons, which can include juju rituals, debt bondage and fear of reprisals. Full details on control methods are explored in Chapter 15. 6.74 Whether a jury would subsequently draw an adverse inference from a silent interview cannot be known at the time of the interview. Indeed in the case of a vulnerable person who may be a victim of trafficking, there will be very good arguments to be deployed at trial that no inference should be drawn and that it was entirely reasonable for that person not to have answered questions and mentioned facts in interview that they later relied on at trial. 6.75 Whether the suspect could reasonably have been expected to mention a fact at the time of the interview or on charge is a question of fact and the court must have regard to ‘the actual accused with such qualities, apprehensions, knowledge and advice as he is shown to have had at the time’27. 6.76 The court will take into account such matters as the time of day that the interview took place, the age of the suspect, his experience, his mental capacity and state of health, his knowledge, personality; and the fact that they had received legal advice before allowing the possibility of an adverse inference being drawn by the jury. 6.77 A potential victim of trafficking is likely to be able to rely on a number of the above issues in order to justify the reasonableness of a decision not to mention facts in interview. It is possible that, during trial, expert evidence may be

26 Criminal Justice and Public Order Act 1994, s 34. 27 R v Argent (1997) 2 Cr App Rep 27.

211

6.78  Victims of human trafficking: at the police station

required to explain the special vulnerabilities of trafficked individuals, to ensure that the point is fully understood by the court. 6.78 The suspect cannot rely solely on the fact that he was advised to say nothing in interview by his legal adviser in order to avoid an adverse inference being drawn. What is important is not the quality of the advice but the effect of the advice on the suspect, and whether in the circumstances it was reasonable for them to take the advice and not answer questions. 6.79 The fact that the suspect has been advised by his legal representative to remain silent must be given ‘appropriate weight’ by the court. It is important that the decision to remain silent was genuinely made as a result of legal advice rather than because there was no innocent explanation or none that would stand up to scrutiny28. 6.80 Once it is shown that the advice (of whatever quality) has genuinely been relied on as the reason for the suspect remaining silent, adverse inference may still be allowed. It is not necessarily unreasonable to expect the suspect to mention the facts in question notwithstanding the advice received. What is reasonable depends on all the circumstances. 6.81 The fact that advice has been given to remain silent remains an important consideration but not one that automatically excludes an adverse inference. The defendant has a choice to accept or reject the advice and is warned in the caution that a failure to mention any facts that he relied on at trial might harm his defence. 6.82 Circumstances where a suspect could have good reason to rely on advice to remain silent, even if he has an innocent explanation for the allegations, would include where the suspect was vulnerable and might have real difficulty getting across what he wanted to say. Potential victims of trafficking are undoubtedly vulnerable and are likely to have understandable reasons as to why they may be reluctant to disclose certain information in interview even where that information may assist them in relation to setting out a defence under the MSA 2015, s 45 or in a wider context. 28 Condron v United Kingdom (App No 35718/97) (2000) 31 EHRR 1, [2000] Crim LR 679; R v Betts [2001] EWCA Crim 224, [2001] 2 Cr App Rep 257.

212

Interaction with the detained person 6.87

6.83 In circumstances where a potential victim of trafficking will not consent to a disclosure to police and for an NRM referral, and where they choose to remain silent in interview, it is important that legal representatives make detailed notes of instructions. The legal adviser should try to obtain as much information as possible from the potential victim of trafficking as to his fears and concerns. It may become relevant should the matter go to trial and a slavery defence is subsequently raised. 6.84 In order to rebut any potential adverse inference, the legal representative may be required to provide evidence regarding the instructions he obtained, his advice and the reason that the suspect did not want to answer questions. This may require a waiver of privilege, as the reasons for the advice will have to be explained. Any waiver will extend to the whole of the consultation and not merely the discrete piece of advice. 6.85 However, if the adverse inference to be drawn is that the suspect has recently made up an account in order to take advantage of the defence after charge, such inference can be rebutted by the legal adviser providing a statement as to the account given to them in the pre-interview discussion or producing a statement made by the defendant at that time. This will demonstrate that the account has not been made up subsequently, and may prevent privilege being waived for the whole of the consultation or at all29. 6.86 Clearly such a decision needs careful consideration at trial as there remains a risk that privilege will have to be waived. Such a decision may be dependent on the content of the rest of the consultation and the importance of the jury understanding the reason for the defendant remaining silent in interview.

Positive obligations owed to a victim of trafficking by the state 6.87 When a defendant or suspect in criminal proceedings has been identified30 as a potential victim of trafficking that individual could fall within the scope 29 R v Wilmot (1988) 89 Cr App Rep 341. 30 Self-identification is not a pre-requisite to an individual meeting the definition of trafficking and coming within the scope of the different international, regional and domestic safeguards viz trafficking victims. This identification could be through the NRM (see Chapter  2) or by a statutory agency or other organisation supporting or assisting the potential victim.

213

6.88  Victims of human trafficking: at the police station

of the ECHR, Art 4. Article 4 is a prohibition on slavery and servitude (see Chapter 10 for a fuller account of this provision) and in Rantsev v Cyprus and Russia31 the ECtHR held that trafficking in human beings fell within the scope of Art 4. 6.88 Article  4 carries with it positive obligations on the state to the victim of trafficking (or potential victim of trafficking). Article 4 requires Member States to penalise and prosecute effectively any act aimed at maintaining a person in a situation of slavery, servitude or forced or compulsory labour32. 6.89 Article  4 may, in certain circumstances, require a state to take operational and protective measures to protect victims, or potential victims, of trafficking33. In order to establish that this positive obligation arises it must be demonstrated that the state authorities were aware, or ought to have been aware, of circumstances giving rise to a reasonable suspicion that an identified individual had been, or was at real and immediate risk of being, trafficked or exploited within the meaning of the Council of Europe Convention on Action against Trafficking in Human Beings (‘ECAT’), Art 4(a)34. Protection measures include facilitating the identification of victims by trained persons and assisting victims in their physical, psychological and social recovery35. The scope of the investigative duty under the ECHR, Art 3 was looked at further in the now leading case of Commissioner of Police of the Metropolis v DSD36. The claimants were victims of John Worboys, a serial sex offender known as the Black Cab Rapist. The Court held that serious failures (also described by Lord Kerr as ‘conspicuous or substantial’ and ‘egregious and significant’) by the police in an investigation into serious offences against the person (described by Lord Kerr as ‘serious violence to an individual’), even where these fall short of system failing, will amount to a breach of the investigative obligation under Art 3. A  credible or arguable claim of serious crime will trigger the duty to carry out an effective investigation.37 6.90 There is a significant body of material in the public domain about the typology of trafficking within the UK. If a suspect fits this (e.g. a Vietnamese child 31 App No 25965/04 (10 May 2010), paras 277 and 282. 32 CN v United Kingdom (2013) 56 EHRR 24, para 66; Siliadin v France App No 73316/01 (26 October 2005), para 112 and CN and V v France App No 67724/09 (11 October 2012), para 105. 33 Rantsev at para 286; Osman v UK (App No 87/1997/871/1083) at [115]. 34 Rantsev at para 286; CN v United Kingdom, para 67. 35 Chowdhury v Greece App No 21884/15 at para 110. 36 [2018] UKSC 11. 37 See Chapters 1 and 12 for further explanation on duty to investigate.

214

Interaction with the detained person 6.93

recovered in a cannabis farm), it will be arguable that the Art 4 protection obligations are triggered at an early stage, such as upon arrest, and thus before the decision to charge38. See Chapter 15 for common trafficking victim profiles in the UK. 6.91 Article 4 entails a procedural obligation to investigate where there is a reasonable suspicion that an individual’s rights under the article have been violated39. The duty to investigate does not depend on a complaint from the victim or next of kin; it is triggered as soon as the matter has come to the attention of the authorities, and the authorities must act of their own motion40. This obligation entails the relevant investigatory agencies asking the appropriate questions, making enquiries or further enquiries into the facts and background, and/or parts of the trafficking chain41. 6.92 For the purposes of a criminal investigation, the relevant agencies required to meet this positive obligation will be the police and the Crown. The criminal investigation must be effective and capable of leading to the individuals responsible for the trafficking. Reasonable speed and diligence is required, although an investigation must be urgent if it is possible to remove the individual concerned from a damaging situation42. Promptness is required to avoid a negative impact on the victim’s personal situation43. Authorities must take all reasonable steps to secure evidence concerning the incident44. 6.93 Article  4 positive obligations and whether these have been fulfilled by state agencies is likely to be relevant to any challenge to the removal of a victim of trafficking from the UK or deportation decision (see Chapter  10), any challenge to a negative identification decision by the NRM (see Chapter 2) and/or prosecution of a potential victim of trafficking and any onward appeals of these decisions (see Chapters 7 and 9).

38 See, for example, Association of Chief Police Officers, Position from ACPO Leads on Child Protection and Cannabis Cultivation on Children and Young People Recovered in Cannabis Farms, available at http://new. ecpat.org.uk/sites/default/files/acpo_leads_position_on_cyp_recovered_from_cannabis_farms_final.pdf, last accessed 14 December 2017. 39 Rantsev, para 286; CN v United Kingdom (2013) 56 EHRR 24, para 69. 40 Rantsev, para 288; J v Austria App No 58216/12 (17 January 2017) at para 107. 41 Rantsev, paras 297, 303. 42 Chowdhury v Greece, para 89. 43 LE v Greece App No 71545/12 (21 April 2016), para 68. 44 In the context of Art 3, the positive obligation to secure evidence arose in J v Austria at para 107.

215

6.94  Victims of human trafficking: at the police station

The NRM and the duty to notify 6.94 The NRM is a framework for identifying and referring potential victims of modern slavery and ensuring they receive the appropriate support. It was implemented in 2009 for victims of trafficking to give effect to obligations arising under ECAT and extended to include victims of modern slavery on 31 June 2015 (see Chapter 2). 6.95 The police are first responders under the NRM. They have a further statutory duty under the MSA 2015. The duty applies to specified public authorities to respond to incidents of suspected trafficking and slavery. This is referred to as the duty to notify, and can be found in the MSA 2015, s 52. 6.96 Section 52 of the MSA 2015 is intended to further improve identification of victims by creating a statutory duty for specified public authorities to notify the Secretary of State where they have reasonable grounds to believe that a person may be a victim of slavery or human trafficking.The section requires that where a specified public authority to which the section applies has reasonable grounds to believe that a person may be a victim of slavery or human trafficking, it must notify the Home Office, regardless of whether the individual has consented to enter into the NRM. 6.97 The public authorities currently required45 to report under the duty to notify are as follows: • a chief officer of police for a police area; • the chief constable of the British Transport Police Force; • the National Crime Agency; • a county council; • a county borough council; • a district council; • a London borough council; • the Greater London Authority; • the Common Council of the City of London; • the Council of the Isles of Scilly; • the Gangmasters and Labour Abuse Authority. 45 Set out in MSA 2015, s 52.

216

Interaction with the detained person 6.98

Crime recording 6.98 The Home Office Counting Rules (‘HOCR’) for recorded crime was introduced as of April 2019. All reported cases of modern slavery should be recorded on the force crime system, in accordance with the below provisions and for forces live on the Home Office Data Hub. N200/01 – reported incident – NRM referral pending reasonable grounds decision N200/02 – reported incident – NRM referral negative reasonable grounds decision N200/03 – reported incident – NRM referral – Duty to notify only N200/04 – reported incident – NRM referral – Positive reasonable grounds/ police referral – Outside England and Wales N200/05 – reported incident – NRM referral – Negative reasonable grounds – Outside England and Wales N200/06 – reported incident – NRM referral – Transferred to another force in England and Wales General rule: one record for each NRM referral received. The incident of modern slavery must be recorded under this classification at the first opportunity, this should be the person receiving the initial report, including call handlers, crime bureaus and specialist unit.The College of policing guidance states: ‘NRM referrals received by the force from the SCA will be recorded initially under classification N200. The N200 record is to be retained pending receipt of the reasonable grounds decision. Once the reasonable grounds decision is received, the recording decision must be made in accordance with the flowchart (see the link to the HOCR in the ‘Useful links’ section). For incidents where modern slavery criminality occurred in England and/or Wales, all referrals made by the police into the NRM and/or incidents where victims report to police directly must be subject to a recorded crime of modern slavery. If it is determined that all modern slavery criminality occurred outside England and Wales, an N200/04 must be recorded. Duty to Notify referrals submitted by the police must be subject to a recorded crime. Reports recorded under this classification must be included in force notifiable crime statistical returns, using the same reporting process as notifiable crimes. 217

6.99  Victims of human trafficking: at the police station

With regards to the NRM, the expectation is that once a reported incident of modern slavery in England and Wales is confirmed by a positive reasonable grounds decision, it will be reclassified as such at the earliest opportunity. There should be no delay for any investigation to occur, beyond establishing the circumstance of the incident to inform the NCRS crime recording decision. Once recorded and classified, a reported incident of modern slavery will remain recorded as such, unless (or until) it is reclassified as a confirmed crime of modern slavery, in addition to any other notifiable crime, as appropriate. Such reclassification must take place as soon as the reporting officer is satisfied that it is more likely than not that a notifiable crime has been committed, or once a positive grounds decision is returned. The decision to record a crime must not be delayed pending the outcome of the criminal investigation’46.

The police interview 6.99 In a situation where disclosure has been made to police that the client is a potential victim of trafficking but the officer in the case for the index offence continues with the interview under caution, the adviser should place on record at the start of the interview that the suspect has disclosed themselves to police as a potential victim of trafficking and that there is a duty upon the police to refer the client into the NRM. In the light of that process, an interview on the index offence is inappropriate. 6.100 Guidance has been issued, following the implementation of the MSA 2015, by the National College of Policing. It states: ‘If a person is arrested and so enters the criminal justice system as a perpetrator, and officers discover during the PACE interview that the person committed a modern slavery offence through coercion and may also be a victim, the interview should continue and evidence be obtained. On conclusion of the interview, the person should be referred into the NRM if they consent. If appropriate, the person should be bailed for the offence under investigation. If, however, the person has been arrested for an offence outlined in Schedule  4, is illegally residing in the UK and is likely to abscond, bail should be withheld. Following the referral, a victim debrief and a subsequent interview in 46 https://www.app.college.police.uk/app-content/major-investigation-and-public-protection/modernslavery/national-referral-mechanism/, last accessed June 2020.

218

Interaction with the detained person 6.104

line with Achieving Best Evidence in Criminal Proceedings: Guidance on interviewing victims and witnesses, and guidance on using special measures should take place to identify additional perpetrators and to help officers gather further evidence’47. 6.101 If disclosure is made during the course of the interview when it had not been made previously to the adviser, or in circumstances where the client had refused to disclose it prior to interview, the adviser should consider interrupting the interview and request a further consultation with the client so that the matter can be clarified. At that point, disclosure can be made and representations made that the interview should not continue, regardless of the advice of the National College of Policing.

Age of potential victim of trafficking 6.102 The age of the potential victim of trafficking may be an issue and may not be known. It is common for victims of trafficking to be groomed to give a certain age if questioned by authority.The age given will depend on the modus operandi of the traffickers: some may be told to say that they are older than they actually are, and others to say that they are younger. 6.103 Generally if the potential victim of trafficking claims to be an adult, the legal adviser has to act on those instructions. However, if the adviser believes the potential victim of trafficking to be under 18, advice should be given to declare a proper age.Those under the age of 18 are treated more favourably in detention and would be entitled to the support of an appropriate adult. 6.104 The police are under an obligation to treat anyone who appears to be under the age of 18 as a juvenile unless there is clear evidence that they are older48. Full details on age assessment are explained in Chapter 3.

47 See www.app.college.police.uk/app-content/major-investigation-and-public-protection/modern-slavery/ national-referral-mechanism/#responding-to-perpetrators-who-may-also-be-victims, last accessed 4 June 2020. 48 PACE 1984, Code C1.5.

219

6.105  Victims of human trafficking: at the police station

Appropriate adult 6.105 It is arguable that anyone identified as a potential victim of trafficking is potentially vulnerable and should be afforded the right to an appropriate adult. This is obviously true if the person is, or appears to be, under the age of 18, but should also apply to adults who have made such disclosure or where there is suspicion that they may be a potential victim of trafficking. 6.106 If an officer has any suspicion, or is told in good faith, that a person of any age may be mentally disordered or otherwise mentally vulnerable, in the absence of clear evidence to dispel that suspicion, the person shall be treated as such49. It is arguable that a potential victim of trafficking should be considered to be mentally vulnerable, which is defined in the PACE Code C as someone ‘who, because of their mental state or capacity, may not understand the significance of what is said, of questions or of their replies’. This definition may fit potential victims of trafficking, but it is suggested that a change to the Code is desirable to specifically bring potential victims of trafficking within the definition of ‘mentally vulnerable’ people. 6.107 An appropriate adult in the case of a juvenile is: •

the parent, guardian or, if the juvenile is in the care of a local authority or voluntary organisation, a person representing that authority or organisation;

•

a social worker of a local authority;

•

failing these, some other responsible adult aged 18 or over who is not: — a police officer; — employed by the police; — under the direction or control of the chief officer of a police force; or — a person who provides services under contractual arrangements (but without being employed by the chief officer of a police force) to assist that force in relation to the discharge of its chief officer’s functions, whether or not they are on duty at the time50.

49 PACE 1984, Code C1.4. 50 PACE 1984, Code C1.7(a).

220

Interaction with the detained person 6.112

6.108 An appropriate adult in the case of a person who is mentally disordered or mentally vulnerable is: •

a relative, guardian or other person responsible for their care or custody;

•

someone experienced in dealing with mentally disordered or mentally vulnerable people but who is not: — a police officer; — employed by the police; — under the direction or control of the chief officer of a police force; or — a person who provides services under contractual arrangements (but without being employed by the chief officer of a police force) to assist that force in relation to the discharge of its chief officer’s functions, whether or not they are on duty at the time;

•

failing these, some other responsible adult aged 18 or over.

6.109 In the case of people who are mentally disordered or otherwise mentally vulnerable, it may be more satisfactory if the appropriate adult is someone experienced or trained in the care of such individuals, rather than a relative lacking such qualifications. However, if the detainee prefers a relative to a better qualified stranger, or objects to a particular person, his wishes should, if practicable, be respected51. 6.110 A  detainee should always be given an opportunity, when an appropriate adult is called to the police station, to consult privately with a solicitor in the appropriate adult’s absence if he wants. An appropriate adult is not subject to legal privilege52. 6.111 A solicitor or independent custody visitor who is present at the police station and acting in that capacity may not be the appropriate adult53. 6.112 It is imperative that the adviser is content that the appropriate adult is appropriate. It may be, for example, that a juvenile potential victim of trafficking may request 51 PACE 1984, Code C Note 1D. 52 PACE 1984, Code C Note 1E. 53 PACE 1984, Code C Note 1F.

221

6.113  Victims of human trafficking: at the police station

an appropriate adult who is linked to their trafficker. In such circumstances, it will be very difficult for the adviser or police to ascertain victim status as the client will not have disclosed being a potential victim of trafficking and most certainly would not in the presence of such an adult. The gender of the appropriate adult may be important to the potential victim of trafficking and their views should be taken into account if expressed.

After the interview 6.113 If disclosure of the suspect’s status as a potential victim of trafficking has been made to police and the police have followed up with an NRM referral, no decision should be made to charge the suspect with any offences at that point. Representations must be made to this effect, relying on the EU Directives as to non-prosecution of victims of trafficking. It ought to be for the CPS to make such a decision, given the complicating feature of an NRM referral and assessment. Representatives should also consider drafting written representations to the duty CPS charging lawyer regarding non-prosecution, non-punishment principles, public interest and CPS guidance54. This is explored further in Chapters 5 and 1. 6.114 Where an NRM referral has been made by the police, the potential victim of trafficking should be collected and transported by a relevant first responder from the police station to safe and secure accommodation. In the period of time between the NRM referral and the reasonable grounds decision being made, police have a responsibility to ensure that the victim is safeguarded. Local authorities also retain a statutory duty to provide housing and officers should contact relevant local authorities and anti-slavery charities to assist55. If the person is destitute or needs immediate support, the Salvation Army may support them. The Homelessness code of guidance for local authorities published in 2018 puts an obligation on local authorities to assist victims of modern slavery. Housing authorities are required to: ‘[…] secure that accommodation is available for an applicant if they have reason to believe that the applicant may be homeless, eligible for 54 See https://www.cps.gov.uk/legal-guidance/human-trafficking-smuggling-and-slavery, last accessed 5 August 2020. 55 See https://www.app.college.police.uk/app-content/major-investigation-and-public-protection/ modern-slavery/national-referral-mechanism/, last accessed 5 August 2020.

222

After the interview 6.118

assistance and have a priority need. If housing authorities believe an individual may be vulnerable as a result of being a victim of modern slavery following a referral to the NRM housing authorities should ensure that accommodation is available while they are waiting for an initial “reasonable grounds” decision.’ 6.115 Where the police have not made an NRM referral, legal representatives should take steps to ensure that they contact a first responder and trigger an NRM referral without delay (see Chapter 2). 6.116 If the client has not made a trafficking disclosure and is to be charged, the legal adviser may provide further legal advice immediately following charge. However, attendance upon the client thereafter whilst fingerprints, photographs and swabs are taken will not meet the ‘sufficient benefit test’ for public funding, except where the client requires further assistance owing to his particular circumstances, in which case the relevant factors must be noted on file. It is arguable that such clients would be eligible to have the services of the legal adviser under public funds for this process of further disclosure. 6.117 The adviser may remain at the police station if required to make representations about bail, including conditions that may be attached to any police bail or bail to court following a decision to charge the suspect with criminal offences. For example, it will be important to ensure that bail conditions imposed do not place the client in potential danger from his suspected trafficker.

Police bail 6.118 Where no charging decision has been made but the investigation is continuing, the suspect must be released without bail unless the officer is satisfied that releasing the person on bail is necessary and proportionate in all the circumstances (having regard, in particular, to any conditions of bail which would be imposed), and a police officer of the rank of inspector or above authorises the release on bail (having considered any representations made by the person)56.

56 PACE 1984, s 30A(1) and (1A).

223

6.119  Victims of human trafficking: at the police station

6.119 Police bail conditions cannot include the taking of a security or surety to ensure the person’s surrender to custody or any requirement to reside in a bail hostel57. Police bail conditions may be imposed only if they appear necessary to secure that the person surrenders to custody, to secure that the person does not commit an offence while on bail, to secure that the person does not interfere with witnesses or otherwise obstruct the course of justice, whether in relation to themself or any other person, or for the person’s own protection or, if the person is under the age of 18, for the person’s own welfare or in the person’s own interests58. 6.120 Once released on police bail the date or police station to which the person has to surrender can be changed, although the person must be given notice in writing of any changes59. 6.121 The initial period of police bail cannot exceed 28 days beginning with the day after the day on which the person was arrested for the offence in relation to which bail is granted60. 6.122 Police bail conditions can be varied by police61 and if the person on bail wishes to apply to vary conditions, an application should initially be made to the police. If that is refused, an application can be made to the magistrates’ court62. Public funding is available (if financially eligible) under the Advocacy Assistance scheme for such applications. 6.123 Police bail can be extended before the 28 days expires to three months by an officer of at least superintendent rank63.The police have to inform the person or his legal representative and give them an opportunity to make representations against such a decision64.

57 PACE 1984, s 30A(3A). 58 PACE 1984, s 30A(3B). 59 PACE 1984, s 30B(6), (6A) and (7). 60 PACE 1984, s 30B(8), except in SFO investigations when the initial limit is three months (PACE 1984, s 47ZB(1)(a)). 61 PACE 1984, s 30CA. 62 PACE 1984, s 30CB. 63 PACE 1984, s 47ZD(2). 64 PACE 1984, s 47ZD(3), (4).

224

After the interview 6.126

6.124 Bail can only be so extended if there are reasonable grounds for: •

suspecting the person in question to be guilty of the relevant offence;

•

believing that further time is needed for making a decision as to whether to charge the person with the relevant offence, or otherwise, that further investigation is needed of any matter in connection with the relevant offence;

•

believing that the decision as to whether to charge the person with the relevant offence is being made diligently and expeditiously, or otherwise, that the investigation is being conducted diligently and expeditiously; and

•

believing that the release on bail of the person in question is necessary and proportionate in all the circumstances (having regard, in particular, to any conditions of bail which are, or are to be, imposed)65.

6.125 Police bail can be extended up to six months on application to the magistrates’ court prior to the end of the currently applicable bail period but only if the court has reasonable grounds for: •

believing that further time is needed for making a decision as to whether to charge the person with the relevant offence, or otherwise, that further investigation is needed of any matter in connection with the relevant offence;

•

believing that the decision as to whether to charge the person with the relevant offence is being made diligently and expeditiously, or otherwise, that the investigation is being conducted diligently and expeditiously; and

•

believing that the release on bail of the person in question is necessary and proportionate in all the circumstances (having regard, in particular, to any conditions of bail which are, or are to be, imposed)66.

6.126 The court will only increase the bail period if the nature of the decision or further investigations means that that decision is unlikely to be made or those investigations completed if the current applicable bail period in relation to the person is not extended as requested67.

65 PACE 1984, s 47ZC(2)–(5). 66 PACE 1984, s 47ZG. 67 PACE 1984, s 47ZG(8).

225

6.127  Victims of human trafficking: at the police station

6.127 In all other circumstances, where no charging decision has been made but the investigation continues, the person will be ‘released under investigation’ to which no conditions can be attached. 6.128 Given these restrictions on police bail, it is likely that any potential victim of trafficking who has made a disclosure and been referred into the NRM will be released under investigation with no specific date to return. 6.129 It is important to keep in contact with the client throughout this period and ensure that they seek assistance from one of the appropriate organisations, whether or not they have disclosed themselves to be a potential victim of trafficking. A referral into the NRM can be made at any time by a relevant organisation and such a referral may well assist the client’s case at whatever stage it is made. 6.130 The police may decide to release a potential victim of trafficking on police bail with protective conditions such as release to a suitable safe bail address not near the area of exploitation, although this cannot be a bail hostel. Often potential victims of trafficking go missing straight from their release from police custody as they will not wait to be met by someone from an organisation that might have been requested to help them.Victims may be met at the police station by people connected to their trafficker. 6.131 If bail conditions are imposed, it is important to ensure that they do not put the potential victim of trafficking in potential danger. It would be inappropriate to demand that the potential victim of trafficking sign on at a police station in an area of danger for them that is close to their trafficker or place of arrest. Further protective conditions and safeguarding are discussed in Chapters 8 and 11.

Limits on period of detention without charge 6.132 In the first instance a person shall not be kept in police detention for more than 24 hours without being charged. The time from which the period of detention of a person is to be calculated is the time at which that person arrives at the relevant police station, or the time 24 hours after the time of that person’s arrest, whichever is the earlier68. 68 PACE 1984, s 41.

226

After the interview 6.137

6.133 A person who has not been charged within the 24-hour period shall be released either without bail unless the pre-conditions for bail are satisfied, in which case they may be released on police bail69. 6.134 However, where a police officer of the rank of superintendent or above has reasonable grounds for believing that the detention of that person without charge is necessary to secure or preserve evidence relating to an offence for which they under arrest or to obtain such evidence by questioning them; an offence for which he is under arrest is an indictable offence; and the investigation is being conducted diligently and expeditiously, he may authorise the keeping of that person in police detention for a period of up to 36 hours after the relevant time70. 6.135 Any application for a warrant of further detention to detain a suspect beyond 36 hours has to be made to the magistrates’ court. Representation at such a hearing is funded by Advocacy Assistance and is not means tested71.The maximum time that a person can be kept in detention is 96 hours72.

The charging decision 6.136 According to the Crown Prosecutors’ Guidance the police may charge: •

any summary only offence (including criminal damage where the value of the loss or damage is less than £5,000) irrespective of plea;

•

any offence of retail theft (shoplifting) or attempted retail theft irrespective of plea provided it is suitable for sentence in the magistrates’ court; and

•

any either way offence anticipated as a guilty plea and suitable for sentence in a magistrates’ court.

6.137 Good practice dictates that any case which involves indicators of modern slavery should be referred to the CPS for a charging decision as the issues are more complex, even if it might otherwise fall within the police charging 69 PACE 1984, s 41(7). 70 PACE 1984, s 42(10). 71 PACE 1984, ss 43 and 44. 72 PACE 1984, s 44.

227

6.138  Victims of human trafficking: at the police station

remit. Legal advisers should press for this course at the police station by making representations to the investigating officer and the custody officer. 6.138 Publicly funded advice can be provided in the period after release from the police station and while a charging decision is being contemplated. Advice can be provided under the Legal Advice and Assistance scheme but this is strictly means tested and will only add to the fees the solicitors’ firm receives for the representation if it takes the firm over the fee threshold into the exceptional fee bracket (see Chapter 13). Consequently, although in practice the work is likely not actually to be remunerated above the Police Station Advice Fixed Fee, funding is technically available for representations to be made to the police or the CPS to disposal of the case without charge. 6.139 Written representations can be submitted when the matter has been sent to the CPS for a decision on charge. Written representations73 should include detailed reference to the Crown’s obligations under the EU  Directives on the nonpunishment of trafficking victims74 and to their own guidance on victims of human trafficking75. 6.140 Defence representatives should endeavour to persuade the CPS that the client is a victim of trafficking and should not be prosecuted in the circumstances. Reference should be made to the availability of the slavery defence in the MSA  2015 and the Crown’s EU  Directive obligations not to proceed with the prosecution as not in the public interest (for full details of CPS charging decisions and guidance see Chapter 7). 6.141 Victims of trafficking ought to be largely protected from prosecution and punishment.This is accepted by the CPS published legal guidance, an important document that should be considered by the prosecutor pre-charge where there are indicators of trafficking present in respect of a suspect. This guidance is relevant irrespective of whether the suspect has self-identified as a victim of trafficking. Indicators of trafficking are sufficient to prompt consideration of the guidance. Prosecutor obligations are discussed in Chapter 5.

73 Under The Code of Crown Prosecutors, para 3.3. 74 Directive 2011/36/EU of the European Parliament and of the Council of 5 April 2011 on preventing and combating trafficking in human beings and protecting its victims, replacing Council Framework Decision 2002/629/JHA. 75 Available at www.cps.gov.uk/legal/h_to_k/human_trafficking_and_smuggling/#a25, last accessed 4 June 2020.

228

After the interview 6.144

6.142 The guidance provides that prosecutors should be alert to particular circumstances or situations where a suspect or defendant might be a victim of trafficking or slavery. The guidance provides examples of common scenarios in which a suspect or defendant may also be a victim of trafficking.These examples include unaccompanied foreign national children committing offences of pickpocketing or cultivation of cannabis, adults involved in offences relating to immigration documents, or controlling prostitution. 6.143 The CPS guidance says that the CPS should make proper enquiries in criminal prosecutions involving individuals who may be victims of trafficking or slavery. Specifically, it states: ‘In considering whether a suspect might be a victim of trafficking or slavery, as required in the first stage of the assessment, prosecutors should have regard to their duty to make proper inquiries in criminal prosecutions involving individuals who may be victims of trafficking or slavery. The inquiries should be made by: •

Advising the law enforcement agency who investigated the original offence that it must investigate the suspect’s trafficking/ slavery situation, if it has not already done so; and

•

Advising the law enforcement agency to consider referring the suspect through the NRM for victim identification, if this has not already been done. All law enforcement officers can refer potential victims of trafficking/slavery to the NRM. An NRM referral should always be made unless the law enforcement agency is in possession of clear and sufficient evidence to prove that the suspect is not a victim of trafficking/slavery.’

6.144 The Full Code test has two stages: the evidential stage, which if met, is followed by the public interest stage. At the evidential stage, Prosecutors must be satisfied that there is ‘sufficient evidence to provide a realistic prospect of conviction against each suspect on each charge’ including taking account of possible defences. Once the evidential stage test has been satisfied, a prosecutor must consider whether a prosecution is required in the ‘public interest’. See Chapter 5 for further details on CPS guidance on human trafficking, smuggling and slavery.

229

6.145  Victims of human trafficking: at the police station

Interviews where disclosure has been made 6.145 In circumstances where disclosure has been made to police that the suspect is a potential victim of trafficking and the suspect has been referred into the NRM, a request may be made for the individual to provide an interview about their trafficked status. These interviews should be attended by solicitors and funding is available under the Advice and Assistance Scheme subject to the client being financially eligible (which will likely be the case for the vast majority of potential victims of trafficking). 6.146 There is no obligation to co-operate in such interviews but co-operation may assist in providing information that could be used by authorities confirming the trafficked status of the individual and hence in any further representations that prosecution is inappropriate. However, in circumstances where the potential victim of trafficking has been charged or is still a suspect and is invited to provide an ABE interview whilst still a defendant or suspect in a case, it is routine that the investigating trafficking officer will provide information to the competent authority regarding their separate modern slavery investigation. This can in some cases be adverse and affect the competent authority’s determination. The advice on whether a potential victim of trafficking suspect or defendant should co-operate in a parallel investigation is case specific. The interviews will be conducted by specially trained officers and will be recorded on video as part of the Achieving Best Evidence process.

Police interviewing techniques with vulnerable witnesses 6.147 A training course called ‘Investigative Interviewing’ is available for those police officers who are likely to be required to conduct interviews with vulnerable complainants or to manage interviews in serious crime cases.This is based upon the best practice PEACE model76 (see para 6.150 below). 6.148 The investigative interview process should create a managed conversation with the interviewee. It is not a linear process but should be constantly reviewed, remaining flexible and adaptable to changing circumstances.The process should not be undertaken with urgency, which is a challenge to many police officers 76 See College of Policing, at www.app.college.police.uk/app-content/investigations/investigativeinterviewing/, last accessed June 2020.

230

Interviews where disclosure has been made 6.153

who are under considerable pressure in terms of the time available to obtain witness and complainant evidence. 6.149 Investigative interviewing should be approached with an investigative mind-set. Accounts obtained from the person who is being interviewed should always be tested against what the interviewer already knows or what can be reasonably established. The main purpose of obtaining information in an interview is to further the enquiry by establishing facts. Interviewers should think about what they want to achieve by interviewing the complainant, witness or suspect, and set objectives which will help to corroborate or disprove information already known. Investigators should try to fill the gaps in the investigation by testing and corroborating the information by other means where possible. 6.150 The PEACE mnemonic stands for: • planning and preparation; • engage and explain; • account, clarification and challenge; • closure; and • evaluation. 6.151 Planning and preparation is one of the most important phases in effective interviewing. Prior to the interview, the interviewer prepares an interview plan containing all the necessary elements, including defining the aims and objects of the interview and assessing what information is available and from where it can be obtained. 6.152 Planning and preparation should be carried out no matter what type of interview is being considered, whether it is with a witness, complainant or suspect, as it ensures that the investigators are ready to conduct an effective and ethical interview. 6.153 In order to engage, the interview should open with an introduction appropriate to the circumstances in order that a suitable relationship may be formed, with the interviewer showing awareness of and responding to the welfare needs of the witness and any fears and expectations the witness may have. The reasons for the interview should be explained as should the routines to be followed and how it relates to the evidential process. 231

6.154  Victims of human trafficking: at the police station

6.154 The process of ‘account, clarification and challenge’ involves obtaining from the witness the account, achieving quality information and fine detail. The interviewer summarises and recounts what the witness has said at each stage so that both parties have an agreed understanding of what has taken place. 6.155 The process should allow for ‘free recall’, letting the subject talk freely without interruption. In the ‘Clarification’ phase the interviewer seeks to clarify the pertinent parts of the account starting in a chronological fashion, but probing questions should be used as the interview proceeds. 6.156 Challenges are often required as there could be and often are inconsistencies in the account. However, the challenges should be in a structured manner. The interviewer should seek to establish ‘the evidence chain’ and identify weaknesses and inconsistencies. The challenge process should be conducted with complainants and witnesses in a sympathetic way. 6.157 The interviewer should ensure that there is a planned closure of the process. The complainant or witness should be given an opportunity to ask questions, and explanations where legally available and practical should be provided. This ensures that the complainant or witness knows what will happen next. 6.158 After each interview is completed the event and the material gathered should be fully evaluated. This includes consideration of whether the objectives were achieved, whether any further information is required and the need for any further enquiries or corroboration. 6.159 Where multiple interviews are taking place, the teams should confer to ensure every member is aware of all the facts and decisions taken as to whether reinterviews are necessary.

Achieving Best Evidence interviews 6.160 These interviews are generally conducted using the ABE process and are video recorded77. There is guidance to assist those responsible for conducting video77 ‘Achieving Best Evidence in Criminal Proceedings Guidance on interviewing victims and witnesses, and guidance on using special measures’ was produced by the Ministry of Justice in 2002, revised in 2007 and again in 2011. The full document is available at www.cps.gov.uk/publications/docs/best_evidence_in_ criminal_proceedings.pdf, last accessed 4 June 2020.

232

Interviews where disclosure has been made 6.164

recorded interviews with vulnerable, intimidated and significant witnesses, as well as those tasked with preparing and supporting witnesses during the criminal justice process. The guidance incorporates best practice from local areas and the expertise of practitioners, charities and voluntary groups who support complainants and witnesses at a local level. 6.161 Any video-recorded interview serves two primary purposes: evidence gathering for use in the investigation and in criminal proceedings; and to be used as the evidence-in-chief of the witness should the case go to court. 6.162 The Ministry of Justice guidance document outlines those who are defined as vulnerable. It states, that all children (those under 18) should always be deemed vulnerable. However, in respect of adults the guidance focuses on those adults with physical or mental health disabilities or issues. This follows the statutory definition of a vulnerable adult witness as someone who ‘suffers from mental disorder within the meaning of the Mental Health Act 1983, or otherwise has a significant impairment of intelligence and social functioning’ or who ‘has a physical disability or is suffering from a physical disorder’78. 6.163 The guidance also outlines the procedures to be used in the case of intimidated witnesses. The assistance of these special measures is available if the court is satisfied that the quality of evidence given by the witness is likely to be diminished by reason of fear or distress on the part of the witness in connection with testifying in the proceedings79. 6.164 In their determination the court must take into account: •

the nature and alleged circumstances of the offence to which the proceedings relate;

•

the age of the witness;

•

the social and cultural background and ethnic origins of the witness;

•

the domestic and employment circumstances of the witness;

•

any religious beliefs or political opinions of the witness;

78 Youth Justice and Criminal Evidence Act 1999, s 16. 79 Youth Justice and Criminal Evidence Act 1999, s 17(1).

233

6.165  Victims of human trafficking: at the police station

•

any behaviour towards the witness on the part of the accused, members of the family or associates of the accused, or any other person who is likely to be an accused or a witness in the proceedings80.

6.165 Those who are victims of trafficking would fall within the definition of a witness requiring assistance due to fear or distress. However, the best practice techniques are not always utilised in police investigations and do not seem to have been adopted by the Immigration agencies. 6.166 There are many benefits to an investigator regarding the video recording of interviews where disclosure of trafficking has been made. One of the main benefits is the reassurance to the interviewee that by recording their evidence on video, they will not be required to face their exploiter or trafficker in court at a later date. Additional benefits of the process include ensuring an accurate record of the interview, and a reduced likelihood of allegations that the witness was led by the interviewers in delivering his account.

80 Youth Justice and Criminal Evidence Act 1999, s 17(2).

234

7

Criminal court process

Felicity Gerry QC, Paramjit Ahluwalia, Ben Douglas-Jones QC and Philippa Southwell

Introduction 7.1 All criminal practitioners need to be aware that a suspect/defendant might be a trafficked person/subject to modern slavery. Assumptions should not be made by a prosecutor or defence representative that simply because of the subject’s country of origin1, or the type of alleged offence that considerations of trafficking/modern slavery are not applicable. Examples of compelled or coerced or controlled criminality and other types of exploitation may not be immediately obvious. 7.2 It can help practitioners who do not deal with victims of trafficking (‘VOTs’) (including victims of slavery, servitude or forced or compulsory labour) on a regular basis to ask themselves the question: ‘Has my client been exploited by someone in connection with the commission of a criminal act?’ If the answer is yes, they consider whether their client is or might be a VOT (including a victim of slavery, servitude or forced or compulsory labour) (see Chapters 1 and 2). 7.3 The Statutory Guidance2 under the Modern Slavery Act 2015 (‘MSA 2015’) outlines that forced criminality is understood as the exploitation of a person to commit ‘pick-pocketing, shoplifting, drug trafficking or cultivation or other similar activities which are subject to penalties and imply financial gain’3. Organised crime networks and individuals who use human beings as commodities continually evolve and adapt their modus operandi to evade the attention of the authorities and to increase profitability4. 1

2 3 4

Many UK nationals are entered into the National Referral Mechanism (‘NRM’), particularly in relation to county lines exploitation. ‘The UK  Annual Report of 2019 on Modern Slavery’ highlights that UK is the fourth most common country of origin for adults referred into the NRM and the first most common in relation to minors. See: https://assets.publishing.service.gov.uk/government/uploads/ system/uploads/attachment_data/file/840059/Modern_Slavery_Report_2019.pdf, last accessed 5 August 2020. Home Office, Modern Slavery Act 2015 – Statutory Guidance for England and Wales (v 1.0, 24 March 2020) (‘Statutory Guidance’). Statutory Guidance, para 2.37. See Chapter 15 for full details on forced criminality, modus operandi and common compelled or coerced criminality offences.

235

7.4  Criminal court process

7.4 General indicators of trafficking have been published by the United Nations Office on Drugs and Crime. The UN gives further, specific, guidance in relation to children, domestic servitude, sexual exploitation, labour exploitation, begging and petty crime5. Criminal practitioners should be familiar with these concepts and indicators, so they know what matters to explore through the police or with clients from the first opportunity onwards. 7.5 To assess the presence of trafficking/modern slavery indicators properly, full background details of a suspect/defendant need to be taken, as well as instructions concerning the alleged offence itself. These are difficult tasks to conduct under the pressure and time limitations associated with practice, particularly in the magistrates’ or youth courts. Cases are often, if not invariably, listed with many other first appearances. Consideration should be given to the sort of questions that need to be asked when liaising with the police (if prosecuting) or when taking instructions (if defending). 7.6 Trafficked persons/those subject to modern slavery often do not identify themselves or present as victims or avoid making disclosures due to fear of authority or reprisals from traffickers. Often trafficked persons/those subject to modern slavery are coached by their exploiters, as to the accounts they should give following apprehension. When taking instructions, detailed questions should be asked regarding background, methods of compulsion or coercion or control used, such as debt bondage, the impact of cultural aspects of background (such as juju rituals), threats, sexual and physical abuse6. Consideration should also be given to whether there are indicators of re-trafficking in the evidence. In addition, internal trafficking within the UK should not be overlooked when taking instructions 7.7 Child VOTs may find it hard to disclose information. This may be because their stories have been fabricated by their trafficker or that they have been given inaccurate information about the role of authorities by their traffickers. As outlined in the Statutory Guidance at 10.9, ‘they may relate their experience in an inconsistent way or with obvious errors.’

5 Available at: www.unodc.org/pdf/HT_indicators_E_LOWRES.pdf, last accessed 10 February 2020. 6 See Chapter  15 for control methods and modus operandi. Chapter  1 provides a breakdown of the definition. Chapters 2 and 8 highlight the particular vulnerabilities of trafficked persons.

236

Introduction 7.10

7.8 The Statutory Guidance at Annex D  indicates that trafficked victims’ early accounts may be affected by the impact of trauma. This can result in delayed disclosure, difficulty recalling facts, or symptoms of PTSD7. VOTs may also be reluctant to self-identify for several other reasons that can make understanding their experiences challenging. Trafficked children may be unable to disclose or give consistent credible accounts on account of matters such as on-going nature of abuse throughout childhood, or loyalty and perceived friendships with exploiters8. 7.9 Individuals may be unwilling to self-identify for other reasons, including •

being in a situation of dependency;

•

the stigma attached to trafficking;

•

fear of reprisals against them, their families, or friends;

•

being distrustful of authorities;

•

groomed allegiance to traffickers;

•

being unwilling to view themselves as victims;

•

not understanding what modern slavery means9.

7.10 It is therefore incumbent on practitioners to look for signs of exploitation. The Statutory Guidance to the MSA 2015 sets out a number of general indicators of modern slavery to consider. Some of these factors highlight that victims may: •

show signs that their movements are being controlled;

•

show fear or anxiety;

•

be subjected to violence or threats of violence against themselves or against their family members and loved ones;

•

suffer injuries that appear to be the result of an assault;

•

have false identity or travel documents (or none at all);

•

be found in or connected to a type of location likely to be used for exploiting people;

•

be distrustful of authorities;

7 8 9

See Chapter 8 for full details on the psychological impact of human trafficking. Statutory Guidance, Annex D, para 13.58. Statutory Guidance, Annex D, para 13.11.

237

7.11  Criminal court process

•

be afraid of revealing their immigration status;

•

have had the fees for their transport to the country of destination paid for by facilitators, whom they must pay back by working or by providing services in the destination country;

•

have limited contact with their families or with people outside of their immediate environment;

•

be under the perception that they are bonded by debt;

•

be in a situation of dependence.

7.11 In relation to county lines exploitation for children, for example, some of the indicators set out in the Statutory Guidance include10: •

persistently going missing from school, home, care, being found out of area and/or children travelling to locations with which they have no obvious connections, including seaside or market towns;

•

unwillingness to explain their whereabouts;

•

unexplained acquisition of money, clothes or accessories, or mobile phones which they are unable to account for;

•

excessive receipt of texts/phone calls and/or having multiple mobile phone handsets and/or SIM cards;

•

relationships with controlling/older individuals or groups;

•

suspicion of physical assault/unexplained injuries;

•

parental concerns;

•

carrying weapons;

•

gang association or isolation from peers or social networks.

Police station and charge 7.12 Police station advisers need to be alive to indicators of possible trafficking: see above and Chapter 2. They also need to be aware of the protections available for VOTs under the CPS guidance for ‘suspects in a criminal case who might be victims of trafficking or slavery’ (‘the CPS guidance’) and s 45 of MSA 2015 which provide protections from prosecution and a defence for VOTs in certain circumstances. See Chapter 5. 10 Statutory Guidance, para 10.15.

238

Police station and charge 7.16

7.13 Where a suspect is a potential victim of trafficking (‘PVOT’), practitioners should be aware that public authorities, including the police (as specified in s 52 of the MSA 2015), have a statutory duty to notify the Home Office when they come across potential victims of modern slavery. 7.14 The CPS is not a first responder and cannot make referrals to the Single Competent Authority (‘SCA’)11. Where a prosecutor comes to the conclusion that a suspect should be referred to the SCA for a decision to be made as to whether a there are reasonable grounds to believe that a suspect is a VOT, this must be done through the police12. A referral of an adult cannot be made without their consent (see Chapter 2). 7.15 The following public authorities are first responders: •

police forces;

•

certain parts of the Home Office: o

UK Visas and Immigration;

o

Border Force;

o

Immigration Enforcement;

•

National Crime Agency;

•

local authorities;

•

Gangmasters and Labour Abuse Authority (‘GLAA’);

•

health and social care trusts (Northern Ireland).

7.16 Practitioners should consider whether these organisations have had any dealings with suspects and whether they have fulfilled their statutory duty under s 52 to make a referral via the National Referral Mechanism (‘NRM’) framework for identifying and referring potential victims of modern slavery and ensuring 11 The SCA is part of the Home Office and (since 29 April 2019) has brought together the NRM decisionmaking functions, previously handled by UK Visas Immigration (‘UKVI’), other sections of the Home Office (‘HO’) and the National Crime Agency (‘NCA’) into a single organisation. It is also responsible for aligning the management of the contract which provides support to victims of modern slavery, the Victim Care Contract (‘VCC’), with the case working operation. 12 In any written representations made to the Crown concerning a case involving a suspected trafficked person/person subject to modern slavery, reference to the Full Code Test should also be considered.

239

7.17  Criminal court process

they receive the appropriate support to the SCA. Practitioners need to be alive to indicators of trafficking. Having identified indicators, they should explore them with a view to triggering an investigation into trafficking circumstances. 7.17 Practitioners should also remember that initial work on identifying VOTs can be done by first responders, who have expertise in what evidence to focus on and collate. By referring a client to a first responder, the first responder will prepare a formal referral to the NRM so that the SCA can consider whether a VOT is assessed as being a VOT on, first a reasonable grounds (I suspect but I do not know) basis and, if so, second, after a recovery and reflection period, on a conclusive grounds (balance of probabilities) basis. See Chapter 16 for privilege and ethics considerations. 7.18 As well as the statutory first responders referred to above, the following nonstatutory bodies are first responders to whom those representing PVOTs in criminal proceedings should consider referring their clients: • Salvation Army; • Migrant Help; •

Medaille Trust;

• Kalayaan; • Barnardo’s; • Unseen; •

NSPCC (CTAC);

• BAWSO; •

New Pathways;

•

Refugee Council;

•

Tara Project (Scotland).

7.19 Practitioners should have in mind the purpose for identifying suspects as PVOTs. They should be familiar with the issues in Chapter  5: if a suspect is a VOT, he may have a defence under s 45 of MSA 2015. Furthermore, the degree of exploitation and the nexus between the trafficking and offending may mean that a VOT should not be prosecuted in the public interest. Practitioners should also be familiar with Chapter 6, which addresses VOTs at the police station in greater detail. 240

Post-charge 7.24

7.20 Defence practitioners should have it in mind that the prosecutor must consider the CPS guidance pre-charge, where there are indicators of trafficking, irrespective of whether the suspect has self-identified as a PVOT. 7.21 The CPS guidance itself is a helpful aid for police station representatives as it includes examples of common scenarios in which a suspect or defendant may also be a VOT. These examples include: •

unaccompanied foreign national;

•

children committing offences of pickpocketing or cultivation of cannabis13;

•

adults involved in offences relating to immigration documents14;

•

controlling prostitution.

Post-charge 7.22 The CPS guidance continues to apply post-charge and throughout a case. Prosecutors and defence practitioners must be alert to any evidence which suggests that a suspect or defendant might be a VOT, so that the s 45 defence may be deployed where appropriate and so that the non-prosecution regime may be invoked where appropriate; see Chapter 5. 7.23 Prosecutors and defence practitioners should bear in mind that the police and prosecution may receive information or material during the investigation and preparation of a case which alerts them to the fact that a suspect is a PVOT. 7.24 The revised disclosure manual of the CPS (14 December 2018)15 highlights the general duties of the CPS outside of the Criminal Procedure and Investigations Act 1996, including duties of disclosure which assist ‘the prosecutor, in determining whether a person should be charged with an offence, and with which offence; and the accused, by providing certain material during the early stages of a prosecution.’

13 This form of exploitation is also commonly found in cases concerning adults and should not be overlooked due to the age of the offender. 14 False documents are also common with child victims of trafficking. 15 At Chapter 2.

241

7.25  Criminal court process

7.25 The guidance also goes on to state: ‘In all cases, irrespective of anticipated plea, the officer must comply with the common law disclosure obligations and certify that, to the best of the officer’s knowledge and belief, no information has been withheld which would assist the accused in the preparation of the defence case… .’16 7.26 Where material includes evidence of trafficking or exploitation indicators, that may be capable of assisting a defendant in: (1) advancing a defence under 45 of MSA 2015; (2) causing the CPS to (re-)consider whether prosecution is in the public interest; (3) mitigation. 7.27 In all cases of exploitation, in particular, county lines and cannabis production cases, it is important to consider what material might be held by the police. Whereas the investigating constabulary might collate material it holds on a suspect as possible disclosure for the CPS to consider, it might not ordinarily collate material held by other forces which will frequently show that a suspect has been exploited in other force areas. 7.28 At all stages of a case, post-charge (even if a guilty plea has been entered) prosecutors have a duty to re-evaluate the evidence in line with the CPS guidance and re-assess the public interest in bringing a prosecution, bearing in mind the State’s obligations under international law (see Chapter 5). 7.29 In most areas of law, where a defendant has been advised appropriately about the strength of the evidence, a guilty plea will be unequivocal and a conviction safe. Prosecutors should remember that with a suspect who is a VOT, even an unequivocal guilty plea may not lead to a safe conviction. See for example R v O17; and R v LZ18, where the Court of Appeal held that convictions were unsafe because if the CPS had known at the date of guilty pleas what was 16 CPS Disclosure Manual (December 2018), p 9. 17 [2011] EWCA Crim 2226. 18 [2012] EWCA Crim 1867.

242

Magistrates’ court 7.32

apparent at the date of the appeals in terms of indicators and the circumstances of trafficking, the defendants would, or might well, not have been prosecuted. There is a significant onus on defence practitioners to ensure that indicators of trafficking are explored no matter when they come to light during a case and the non-prosecution regime is invoked and the s 45 defence deployed where appropriate. 7.30 Where the prosecutor is not the CPS, if the authority has trafficking/slavery guidance, that guidance should be compared against the CPS guidance to see whether it is fit for purpose. If the prosecuting body does not have any guidance, the authority should be invited to apply the CPS guidance.

Magistrates’ court First appearance 7.31 The first appearance in a magistrates’ court or youth court is a critical hearing for cases concerning a VOT. In most cases, because VOTs will present a flight risk, they are likely to be produced at court from custody. The hearing usually takes place the day after the individual has been charged by the police if the suspect is remanded in custody.

Assessing the evidence 7.32 The initial details of the prosecution case provided by the CPS to a defence representative will often only consist of a charge sheet, a list of antecedents and a short police case summary19. It is critical that defence representatives: •

consider whether there are indicators of trafficking or modern slavery;

•

ascertain whether any referral has yet taken place to the SCA20 by the police or any other first responder; and, if not, to invite a first responder to refer the case, if indicators are present. Consideration will need to be given as to whether the police should act as a first responder as there may be a conflict of interest if the police do not consider indicators of trafficking are present and/or their impetus is to secure a prosecution

19 MG5 document. 20 See Chapter 2, where the SCA process is set out in detail.

243

7.33  Criminal court process

(consider Chapter  16 where the client does not consent to an NRM referral); •

liaise with the prosecutor at court and ask for a review of the case at this stage in the light of the CPS legal guidance on ‘Human Trafficking, Smuggling and Slavery’ and the potential for a complete defence under MSA 2015. The prosecutorial decision may be assisted in having detailed representations from the defence to conduct this review. The CPS may need to be invited to prompt the police to refer and/or investigate the trafficking dimension of the case further in order to assist with this prosecutorial review.

Bail application 7.33 Bail is a significant matter to consider, particularly given that the time it takes for a NRM conclusive grounds decision to be made is at least 45 days. Under the Bail Act 1976, s 4, bail must be granted by a court to a person accused of an offence if none of the exceptions specified in Sch 1 applies. 7.34 The exceptions to the right to bail are where the court is satisfied that there are substantial grounds for believing that the defendant if released on bail would: •

fail to surrender to custody; or

•

commit an offence while on bail; or

•

interfere with witnesses or otherwise obstruct the course of justice, whether in relation to himself or any other person.

7.35 Representatives should be aware of facilities to protect VOTs in their area to enable appropriate bail decisions to be made that will avoid the potential for retrafficking.With child (under 18) PVOTs, the local authority with safeguarding responsibility must be contacted, and the PVOT referred to Children’s Social Care urgently under child protection procedures21. Children and young persons should be bailed to local authority care. It is therefore essential that at the first appearance any disputes as to the age of the defendant needs to be raised by the prosecution or police; see para 7.61 below and Chapter 3.

21 Statutory Guidance, para 5.4.

244

Magistrates’ court 7.39

7.36 In considering any bail application, consideration should be given to the use of electronic tagging. A  curfew that has a minimum duration of nine hours amounts to a qualifying curfew under the provisions of the Criminal Justice Act 2003, s 240A. If a defendant were convicted and sentenced at a later date, then the court must direct that the credit period, which is half the sum of the number of days a person has been on curfew, should count towards sentence22. 7.37 In terms of any conditions, such as reporting to a local police station, consideration should be given to the level of any travel cost which will be incurred, and to whether the police station is in an area where the victim’s exploitation has taken place and in which his traffickers operate. Consideration should also be given to whether any bail address is in such an area. Protective conditions should be considered, such as no unsupervised use of phones or electronic equipment. It is common for victims who are being controlled or in debt bondage to contact their traffickers and be subsequently further trafficked or re-trafficked. For other safeguarding measures and considerations, see Chapters 8 and 11. 7.38 In considering whether a defendant would, if released, fail to surrender to custody, practitioners should look at whether the defendant has already been engaging with authorities such as the Home Office (if not British nationals), when considering what reporting condition(s) might be necessary. Furthermore, it may be that the defendant has been co-operating with police who might be investigating the individuals who have trafficked or placed the defendant into a position of modern slavery. In such cases, further reporting conditions might be unnecessary. With children,Youth Offending Services (‘YOS’) should be contacted (particularly if the YOS is the first responder) to ensure that a supportive bail package can be offered to alleviate any concerns, as well as to offer protective measures for the VOT. Entering pleas 7.39 At the first appearance at a magistrates’ court, suspects/defendants are asked to enter or give an indication of plea. There are significant incentives in terms of credit for pleading guilty to an offence at an early stage.The Sentencing Council

22 See Home Office Guidance, Concordat on Children in Custody (October 2017). Such measures could include a Children Act 1989, s 47 enquiry/investigation, by the children’s services.

245

7.40  Criminal court process

‘Reduction in Sentence for a Guilty Plea Definitive Guideline’23 highlights that ‘Defendants who are going to plead guilty are encouraged to do so as early in the court process as possible’.There are separate guidance for magistrates’ courts and the Crown Court24. For example, if a guilty plea is entered at the first stage of proceedings an individual would normally receive maximum credit, namely one-third reduction from a sentence. The first stage of proceedings is the first appearance at the magistrates’ court. For either way offences and indictable only offences, normally at the first hearing in the Crown Court a maximum of 25% credit would apply. A sliding scale then applies with a maximum of 10% on the day of trial. 7.40 If a representative considers that there are trafficking indicators, or a possible defence under s 45 of MSA 2015, then an adjournment of plea arraignment must ordinarily be sought25. Practitioners need to be robust and courts need to understand that the above incentives should not and are not meant to put undue pressure on a defendant whose circumstances need to be explored to see whether he is a VOT. Courts should be alive to the fact, where a defendant is a PVOT, a premature – even unequivocal – guilty plea may (exceptionally) lead to a conviction being unsafe (see Chapter 7). 7.41 Proper enquiries must be made in cases involving PVOTs.The CPS guidance on ‘Human Trafficking, Smuggling and Slavery’ states that prosecutors’ obligations include duties to make proper enquiries and to ensure a referral is made to the SCA through a first responder as well as to consider defences under MSA 2015 and other potential defences, such as duress. 7.42 The Sentencing Council ‘Reduction in Sentence for a Guilty Plea Definitive Guideline’ specifically provides that where ‘further information, assistance or advice [is] necessary before indicating plea’ which made it unreasonable to expect the defendant to indicate a guilty plea sooner than was done, a reduction of one-third should still be made26.

23 Guidance in force at 1  June 2017, at: https://www.sentencingcouncil.org.uk/publications/item/ reduction-in-sentence-for-a-guilty-plea-definitive-guideline-2/, last accessed 10 February 2020. 24 Ibid fn 24. 25 Note that if an individual at the magistrates’ court provides no indication of plea, then this is often recorded a not guilty plea having been entered. Representatives should keep a detailed file note in case the court computer system is inadequate. 26 Ibid fn 24. See exception F1 of the Guideline.

246

Magistrates’ court 7.45

7.43 In R v D27 Gross LJ, endorsing on behalf of the Full Court (without argument) suggestions of Crown Counsel to assist practitioners and judges, said: ‘As a decision has to be taken whether or not to prosecute a VOT, it is of importance that wherever possible those who may be VOTs are identified before any plea is taken at court. Indeed in cases where there is a suspicion of trafficking or slavery, the CPS guidance requires prosecutors at the first hearing to request that a plea is not formally entered and to apply for an adjournment for further investigation into the defendant’s possible status as the victim of slavery or trafficking.’ 7.44 Full credit for any guilty plea should be retained (see above). It is best practice that arraignment should only take place once a (conclusive) trafficking determination has been received from the SCA although this can cause some delay28. If the determination is negative, this does not mean an MSA defence cannot be raised at trial. Care should be taken in giving advice to clients on plea that a negative decision may be conclusive of the issue. The SCA decision does not determine guilt in a criminal court, although a negative decision may disclose a weak defence if there is evidence that a specific assertion of trafficked status has been negated through a SCA identification process. The SCA decisions can be, and often are, legally challenged by the defendant (see Chapter 2).

Custody time limits 7.45 Where there is a referral via the NRM to determine a defendant’s trafficking status, representatives should be mindful of custody time limits and should be proactive in obtaining a decision from the SCA. This obligation rests with both the defence and prosecution. Whilst the guidance gives an estimate timeframe for making a conclusive determination of 45 days29, many decisions take considerably longer. Representatives should actively consider judicial review when the SCA fails to make a timely identification decision where it has sufficient information to do so.

27 [2018] EWCA Crim 2995 at § 21.3. 28 R v DS [2020] EWCA Crim 285. 29 Home Office, Victims of modern slavery – Competent Authority guidance (September 2019), at: https:// assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/828756/ victims-modern-slavery-competent-auth-v8.0.pdf, last accessed 10 February 2020.

247

7.46  Criminal court process

7.46 Custody time limits (‘CTLs’) apply to all defendants who are remanded in custody. CTLs apply to each specific charge and not the offender. Each charge attracts its own CTL30. A CTL begins the day after the court appearance when the defendant was first remanded31. The time limits that apply are as follows: •

summary only offences: the time limit is 56 days, unless extended by a court;

•

either way offences: 182 days if and when the court allocates a case for Crown Court trial or if the defendant elects a Crown Court trial (less any time the defendant has spent in custody of the magistrates’ court prior to sending).

•

indictable only offences: the time limit is 182 days from the date a case is sent to the Crown Court under the Crime and Disorder Act 1998, s 51, less any time spent in custody (if remanded by the magistrates’ court) prior to sending.

7.47 The prosecution can apply to extend the custody time limit. The test the court will apply, under the Prosecution Offences Act 1985, s 22(3), is where the court is ‘satisfied that the prosecution has acted with all due diligence and expedition’. The prosecution must satisfy the court, on the balance of probabilities, that both conditions prescribed by s 22(3) are met32. 7.48 In a case where an individual’s trafficking/modern slavery background has been raised at an early stage, if there have been delays on the part of the authorities investigating the matter or any delay in referral to the SCA, submissions opposing an extension of the custody time limits should include this information. Case management forms 7.49 Care needs to be taken when completing case management forms: the preparation for effective trial (‘PET’) for offences to be tried summarily, and better case management (‘BCM’) forms for offences sent to the Crown Court. These are submitted at the first appearance33.The form asks what the ‘real issues

30 See R v Wirral District Magistrates Court, ex p Meikle [1990] Crim LR 801. 31 Prosecution of Offences (Custody Time Limits) Regulations 1987, SI 1987/299, reg 2(2). 32 R v Manchester Crown Court, ex p McDonald [1999] 1 Cr App Rep 409. 33 For example, PET forms and BCM forms will be uploaded to the digital case if transferred to the Crown Court.

248

Magistrates’ court 7.51

in the case are’. Such a form is admissible at trial. In R (on the application of Firth) v Epping Magistrates’ Court34, the Administrative Court considered that: ‘7. The use of a case progression form is part of this process. It forms part of the court record. It records matters such as the date fixed for the trial, the estimated length of trial, the likely number of defence witnesses, and the names of prosecution witnesses.’ The form requires advocates to set out what the issues in the case are. In respect of that requirement, the Administrative Court held: ‘22. It does not infringe against the principle that a defendant is not required to incriminate himself for the court to require that the nature of the defence is made plain well before the trial. Of course, any requirement for disclosure of the nature of the defence must be a fair requirement, in the sense that it must not be extracted from a defendant in circumstances where the prosecution have no case and are trying to adopt Star Chamber processes to try to build a case, but the rules are designed to make sure that this does not occur.’ ‘33. Part of the purpose of early identification of the real issues is to avoid the time, expense and possible inconvenience of having to obtain evidence to prove aspects of the case which are not disputed.’ 7.50 It is incumbent on the parties to engage with the issues immediately in all cases. In proceedings involving defendants who might be VOTs, it is particularly important. The failure to engage at the first hearing, where investigation into a defendant’s trafficking status and where referral into the NRM is necessary, will cause delays. This is liable to prejudice a defendant vis-à-vis: • bail; •

an early trial date;

•

custody time limits;

•

preservation of evidence which might be relevant to the CPS’s decision to continue with the prosecution or a s 45 MSA 2015 defence.

7.51 The upshot of the above is that when completing the forms, all matters that remain in issue, or that are not agreed, should be raised. If the commission of the act is not accepted, representatives need to be careful not to only state that a s  45 defence may apply. The s  45 defence is only relevant where the defendant has done the criminal act. Therefore, merely referring to a defence 34 [2011] EWHC 388 (Admin), [2011] 1 WLR 1818.

249

7.52  Criminal court process

under s 45 would imply an admission that the defendant committed the actus reus. If essential elements of the offence are to be challenged, that needs to be made clear in the form. Equally, if the defendant accepts having committed the actus reus, then that should be made clear. 7.52 It is also best practice to set out in the case management form whether there are trafficking indicators or possible indicators which need investigation and/ or warrant NRM referral. This enables the court to monitor any inquiry into, and have an active involvement in, the identification of possible failures by the prosecutor. It will assist in promoting all appropriate enquiries into whether the defendant is a VOT for the purposes of reassessing the decision to prosecute and/or pre-trial case management. Furthermore, it may not be appropriate to refer to a possible s  45 defence at an early stage before inquiries have been conducted. It may not be appropriate to refer to a possible s 45 defence even where there are indicators if at that stage the prosecutorial decision is to be remade.

Age assessments 7.53 Age disputes arise more frequently in trafficking cases than in other case because of the number of trafficked foreign nationals, who do not have genuine identity documents. If the age of a defendant is a disputed issue, then that should be raised within the case management form35. If no appropriate age assessment has taken place in accordance with Home Office Guidelines36, this is a matter of the utmost importance to raise with the court, as it will impact upon venue of trial, bail, NRM referral, the application of the s 45 defence and sentencing. See Chapter 3 (age assessments and disputes to age). 7.54 Where an asserted minor age of a putative child defendant is not accepted by the SCA, representatives will need to consider bringing judicial review proceedings to challenge the assessed age of the defendant, during the course of criminal proceedings. This is addressed in Chapter 3.

35 Full guidance on age disputes can be found in Chapter 3. 36 Home Office, Assessing age (23  May 2019), at: https://assets.publishing.service.gov.uk/government/ uploads/system/uploads/attachment_data/file/804760/Assessing-age-asylum-instruction-v3.0ext.pdf, last accessed 9 June 2020.

250

Magistrates’ court 7.58

Abuse of process 7.55 Historically, where a prosecutor had failed properly to apply the CPS guidance in making a decision to prosecute a VOT, there was a remedy through a special type of abuse of process (or judicial review); see Chapter  5, where abuse of process is dealt with comprehensively. In R v DS37, the Court of Appeal stated that following the coming into force of MSA 2015, there is no longer a need for the special abuse of process jurisdiction. The responsibility for determining whether a defendant is a victim of trafficking is unquestionably one for a jury. The special abuse of process regime would still apply in a case where s 45 had not come into force. 7.56 For offences which s 45 does not provide a defence, because of exclusion under Sch  4 to the MSA  2015, the courts have yet to decide whether the special abuse of process regime remains applicable. Practitioners should be alive to this as a possibility. At the time of writing, judgment is pending from the Court of Appeal on this issue38. 7.57 Where in the course of the criminal proceedings, the police and/or the CPS fail in their positive obligations to investigate pursuant to ECHR, Art 4 (see Chapter  6) the decision to prosecute may be vitiated by a breach of Art 4 (see Chapter 5 and Chapter 9). In such cases, it could be argued that a stay is warranted on the ground of a species of first limb (or second limb) abuse of process39 not considered in R v DS (above, at para 7.55). 7.58 Similarly, If there have been failures by the CPS or the police (or even the SCA or a first responder) to ensure an appropriate age assessment has taken place in accordance with Home Office guidance40, it may be appropriate at the first appearance to raise the possibility of an application for a stay of proceedings on the grounds of abuse of process.

37 [2020] EWCA Crim 285. 38 R v A (2020) (awaiting judgment). 39 R v Horseferry Road Magistrates’ Court, ex parte Bennett [1994] 1 AC 42. 40 Home Office, Assessing age (23  May 2019), at: https://assets.publishing.service.gov.uk/government/ uploads/system/uploads/attachment_data/file/804760/Assessing-age-asylum-instruction-v3.0ext.pdf, last accessed 9 June 2020.

251

7.59  Criminal court process

Section 45 7.59 Section 45 of MSA 2015 provides a defence for victims of slavery or exploitation that is attributable to human trafficking. It came into force from 31 July 2015. It does not apply to those offences listed in Sch 4. For adults (18 and over) s 45(1) provides a defence for defendants who are (1) compelled to do an (otherwise criminal) act; (2) the compulsion is attributable to slavery or exploitation from trafficking; and (3) a reasonable person in the same situation as the defendant, with the defendant’s relevant characteristics (age, sex, illness or disability) would have no realistic alternative to doing that act. See Chapter 5: Criminal defences. 7.60 For children (under 18) s  45(4) provides a defence for a defendant (1) who does an (otherwise criminal) act; (2) he does it as a direct consequence of the defendant being, or having been, a victim of slavery or a victim of exploitation from trafficking; and (3) a reasonable person in the same situation as the defendant and having the defendant’s relevant characteristics (age, sex, illness or disability) would do that act. As with s 45(1), see Chapter 5, where this topic is discussed more fully.

Summary only offences 7.61 If a charge is summary only, the proceedings are in a magistrates’ court.The ethos of magistrates’ court proceedings is that they are speedy. Summary only offences are relatively minor and normally lead to no more than a short custodial penalty, at most. Because of these factors, trafficking and modern slavery indicators may be inadvertently ignored or overlooked. Awareness has improved because of the County Lines guidance published by the Ministry of Justice in relation to the exploitation of minors in the drug trade41. The CPS guidance for ‘suspects in a criminal case who might be victims of trafficking or slavery’ applies to summary offences as well as indictable offences. 7.62 Some common summary only offences that might be committed in the context of trafficking and slavery and which may give rise to a s 45 defence are set out in Chapter  15. When preparing a case involving trafficking/modern slavery 41 Ministry of Justice, County Lines Exploitation: Practice guidance for YOTs and frontline practitioners (1 October 2019), at: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_ data/file/839253/moj-county-lines-practical-guidance-frontline-practitionerspdf.pdf, last accessed 5 August 2020.

252

Magistrates’ court 7.64

that concerns a summary only offence, or issues of trafficking that need to be litigated in a magistrates’ (including youth) court, consideration should be given to applying for a certificate for counsel/higher court advocate with specialist training in trafficking law and procedure, given the complexity of trafficking issues that may be involved. Asking for the matter to be reserved to a district judge rather than a lay bench should also be considered.

Either way offences 7.63 In relation to an either way offence, such as cultivation of cannabis by a trafficked ‘gardener’, the magistrates will need to consider the most appropriate venue for trial through the ‘plea before venue’ procedure. The defendant will be asked to give an indication of plea. If there are still outstanding trafficking or modern slavery determinations to be made, then ‘no indication’ as to plea can properly be given. A request for the protection of credit for any later guilty plea should be made; see above at para 7.42. 7.64 The Sentencing Council has issued a definitive sentencing guideline on venue/ allocation, in accordance with the Coroners and Justice Act 2009, s  122(2) ‘Allocation Guideline’42, which sets out: ‘In general, either way offences should be tried summarily unless: (a) the outcome would clearly be a sentence in excess of the court’s powers for the offence(s) concerned after taking into account personal mitigation and any potential reduction for a guilty plea; (b) for reasons of unusual legal, procedural, or factual complexity, the case should be tried in the Crown Court. This exception may apply in cases where a very substantial fine is the likely sentence. Other circumstances where this exception will apply are likely to be rare and case specific; the court will rely on the submissions of the parties to identify relevant cases’. Given the complexity of issues that often arise where there are indicators of trafficking, exploitation and modern slavery, the Crown Court may be the more appropriate venue for trying these cases. Practitioners should be aware of the Allocation Guideline when making submissions concerning venue.

42 Published by the Sentencing Council and to apply to all cases involving adults at the magistrates’ court and children/young persons charged with adults dealt with (1  March 2016), at: https://www. sentencingcouncil.org.uk/overarching-guides/magistrates-court/item/allocation/, last accessed 10 February 2020.

253

7.65  Criminal court process

7.65 If a summary trial of a case involving issues of trafficking law and procedure is directed, consideration should be given to an application for a certificate for counsel/higher court advocate, particularly in youth court cases, where the seriousness of cases tried summarily will often warrant the grant of a certificate. (see para 7.62).

Crown Court 7.66 The first appearance at the Crown Court after a case has been sent should be listed within 28 days of the first appearance in a magistrates’ court.An indictment and the principal parts of the prosecution case should be served on the Court and the defence at least seven days before the hearing. The hearing is known as a plea and trial preparation hearing (‘PTPH’) and has a specific form which has been subject to key changes with which practitioners should be familiar43.

PTPH – form and key issues 7.67 PTPH forms now include a section that asks, ‘Is the defendant said to be a victim of modern slavery.’ This enables consideration to be given to whether the prosecution should continue and/or whether the defendant is alleging a defence under s 45 of MSA 2015. Other matters that need to be included are issues such as abuse of process, dismissal, fitness to plead, severance, arraignment, witness requirements, reporting restrictions and special measures. 7.68 If a defendant is outlining a defence that he has been a trafficked person/ subject to modern slavery, or if other issues of exploitation arise, then early consideration needs to be given to seeking reporting restrictions and/or an anonymity direction for all pre-trial hearings and trial. See Chapter 8 for special measures for victims of trafficking.

43 Ministry of Justice PTPH form key changes July 2019, at: http://www.justice.gov.uk/courts/procedurerules/criminal/forms, last accessed 10 February 2020.

254

Magistrates’ court 7.70

Fitness to plead: Crown Court 7.69 Early recognition of any concerns as to fitness to plead and/or to stand trial are vital in cases involving trafficked persons/those subject to modern slavery. The usual process in criminal proceedings includes a stage where a defendant is invited to enter a plea, whether guilty or not guilty. Fitness to plead is governed by procedure under the Criminal Procedure (Insanity) Act 1964, supplemented by the Domestic Violence Crime and Victims Act 2004 and the Criminal Procedure Rules (as amended)44, rr 25.9 and 25.10. The law on fitness to plead is intended to provide a process for defendants in criminal proceedings who lack sufficient ability to participate meaningfully in a trial because of their mental or physical condition. The intention is to balance the rights of a defendant with vulnerabilities as against the need to protect the public. The court can make findings of fact as part of the process. The Law Commission published a Consultation Paper on unfitness to plead (‘CP197’) in October 2010 and reported in 2016. They concluded that ‘the current law in this area is outdated, inconsistently applied and can lead to unfairness’.They also expressed the ‘significant concerns’ raised by the ‘current lack of an effective legal framework for addressing participation difficulties experienced by young defendants in the youth court’. Their recommendations for reform have not, so far, been adopted45.

The current test for unfitness to plead 7.70 The current test for whether a person is unfit to plead was laid down in R v Pritchard in 183646 in three parts: (i)

whether the defendant is mute of malice or not;

(ii) whether he can plead to the indictment or not; (iii) whether he is of sufficient intellect to comprehend the course of proceedings on the trial, so as to make a proper defence. This would include an ability to challenge a juror, to comprehend the evidence and to put forward a defence to the allegations.

44 Criminal Procedure Rules, at: http://www.justice.gov.uk/courts/procedure-rules/criminal, last accessed 10 February 2020. 45 Law Commission, Unfitness to Plead Report 2016 (13 January 2016), and Government interim response, at: https://www.lawcom.gov.uk/project/unfitness-to-plead/, last accessed 10 February 2020. 46 R v Pritchard (1836) 7 C & P 303.

255

7.71  Criminal court process

7.71 The burden is usually on the defence to establish, on the balance of probabilities, that the defendant is unfit to plead47. However, where the issue is raised by the prosecution, the burden must be discharged beyond a reasonable doubt48. Over the course of more than a century, this test has been the subject of further clarification as follows: (i) the test is not limited to the ability to enter a plea but depends on the ability or otherwise to follow a trial49; (ii) an accused person can be unfit to plead, even if not clinically insane50; (iii) that the defendant suffers from a diagnosed mental illness does not mean he is inevitably unfit to plead. An assessment of the Pritchard criteria is not dependent on diagnosis, although a significant impairment may be good evidence to support a finding of unfitness51; (iv) the defendant does not have to suffer from a diagnosed illness or disorder within the international classification of diseases to be unfit to follow proceedings. There may be a combination of factors52; (v) loss of memory does not amount to unfitness to plead, providing the defendant can follow the proceedings53; (vi) making bad decisions because of a mental illness does not mean the defendant is unable to follow a trial54. 7.72 The Criminal Procedure Rules have been amended in relation to the commissioning of medical reports. Crim PR 3.28 provides details of when a court may exercise the power to commission a medical report of its own initiative, having regard to an assessment of the defendant’s health independently of the parties to assist the court, through representations by a party or observations by the court. 7.73 A court that requires expert medical opinion in line with Crim PR 3.28 must identify each issue upon which opinion is needed, directions for provision of

R v Robertson [1968] 1 WLR 1767, [1968] 3 All ER 557. R v Podola [1960] 1 QB 325, [1959] 3 All ER 418. R v Marcantonio [2016] EWCA Crim 14, [2016] 2 Cr App Rep 81. Governor of Stafford Prison, ex p Emery [1909] 2 KB 81, 73 JP 284. R v Berry (1977) 66 Cr App Rep 156. R v Berry ibid. R v Podola [1960] 1 QB 325, [1959] 3 All ER 418; R v Norman [2008] EWCA Crim 1810, [2009] 1 Cr App Rep 192. 54 R v Walls [2011] EWCA Crim 443, [2011] 2 Cr App Rep 61.

47 48 49 50 51 52 53

256

Magistrates’ court 7.75

medical records and setting dates by when a report is to be provided. In relation to issues of privilege and third parties, see Chapter 16.

Fitness to plead procedure 7.74 Since this is a special plea, the Crown Court procedure dictates that the judge must decide fitness as soon as it arises, based on a ‘rigorous examination’ of available evidence as against the Pritchard criteria55. The judge makes this decision alone on the written or oral evidence of two or more registered medical practitioners, at least one of whom must have been approved by the Secretary of State as having special experience in the diagnosis and treatment of mental disorder56. An analysis of the contemporary dilemmas include a lack of normative standards, whether fitness to plead should be disability neutral or whether unfitness requires the presence of a psychiatric diagnosis; and how the courts can insure against the deprivation of liberty of innocents while ensuring the public are adequately protected57. 7.75 Generally, the issue of fitness to plead is decided before trial, although there are cases where it arises during the trial and before disposal, including in cases where a second procedure should have been conducted58. If it arises at any time after sentence the procedure does not apply, as the process is concluded59. If the defendant is found fit to plead, the trial proceeds in the usual way. Where a decision is made that a defendant is unfit to plead, the appointment of an advocate to put the case for the defendant is mandatory. Such appointment should include an assessment of the advocate’s expertise.When the case involves an allegation of trafficking or the defendant is a PVOT, consideration should be given to the advocate’s experience and expertise in trafficking cases60. There will then be a trial of the fact of the allegation. Where one defendant is unfit and a co-defendant is not, the court must decide whether they should be tried together61. 55 Marcantonio [2016] EWCA Crim 14, [2016] 2 Cr App Rep 81; R v Ghulam [2009] EWCA Crim 2285, [2010] 1 WLR 891. 56 Domestic Violence, Crime and Victims Act 2004, s 22. 57 P  Brown, Unfitness to Plead in England and Wales; Historical Development and Contemporary Dilemmas (Sage, 2019), at: https://journals.sagepub.com/doi/full/10.1177/0025802419856761, last accessed 10 February 2020. 58 R  (on the application of Hasani) v Blackfriars Crown Court [2005]  EHWC  3016 (Admin), [2006] 1  All ER 817. 59 R vWebb [1969] 2 QB 278, [1969] 2 All ER 626; R v Burles [1970] 2 QB 191; R v Grant [2008] EWCA Crim 1890; R v B [2008] EWCA Crim 1997, [2009] 1 Cr App Rep 261; R v Orr [2016] EWCA Crim 889, [2016] 4 WLR 132. 60 Criminal Procedure Rules 2015, SI 2015/1490, rr 25.9 and 25.10. 61 R v B [2008] EWCA Crim 1997, [2009] 1 WLR 1545.

257

7.76  Criminal court process

Trial of the acts or omissions 7.76 Following a decision by a judge that a defendant is unfit to plead, it is then for a jury to decide whether the defendant did the act or omission alleged62. Usual rules of evidence apply, including in relation to hearsay and bad character63.The prosecution will be required to disprove issues such as self-defence, accident, or mistake as these can be raised on objective evidence64. However, it is rarely necessary to prove the mental element unless the act includes some purposive element such as concealing criminal property or voyeurism65. It follows that the jury cannot consider diminished responsibility or loss of control as part of their decision on the acts or omissions of the accused66. The defendant does not put forward a positive defence or give evidence as he is unfit to do so, although in some circumstances a defendant’s police interview may be relevant, subject to whether the defendant understood the caution or not and suitable warnings from the trial judge67. If a finding that an accused person is unfit to plead is later quashed by the Court of Appeal, it is not possible to substitute an alternative verdict or order a retrial68. 7.77 The jury is not asked whether the defendant is guilty or not guilty. It is directed that it must be sure that the defendant ‘did the act or made the omission charged against him as the offence’. If the jury is satisfied, it must find accordingly69. If not, it must acquit the defendant70. The procedure is approached as a method for public protection not a trial, so Art 6 rights have been held not to apply71.

Disposal rather than sentence 7.78 If a defendant who has been found unfit to plead is then found to have done the act or made the omission charged then the court’s powers are limited by the Criminal Procedure (Insanity) Act 1964, s 5 to three orders, as follows: 62 Criminal Procedure (Insanity) Act 1964, s 4A(2). 63 R v Chal [2007] EWCA Crim 2647, [2008] 1 Cr App Rep 247; R v Creed [2011] EWCA Crim 144, [2011] Crim LR 644. 64 R v Wells [2015] EWCA Crim 2, [2015] 1 WLR 2797. 65 R v Antoine [2001] AC 340, [2000] 2 WLR 703; R v Grant [2001] EWCA Crim 2611, [2002] QB 1030; R (on the application of Young) v Central Criminal Court [2002] EWHC 548 (Admin), [2002] 2 Cr App Rep 178; R v B [2012] EWCA Crim 770, [2012] 3 All ER 1093. 66 R v Antoine [2001] AC 340, [2000] 2 WLR 703. 67 R v Swinbourne [2013] EWCA Crim 2329, (2014) 178 JP 34. 68 R v McKenzie [2011] EWCA Crim 1550, [2011] 1 WLR 2807. 69 Criminal Procedure (Insanity) Act 1964, s 4A(2) and (3). 70 R v McKenzie [2011] EWCA Crim 1550, [2011] 1 WLR 2807; R v Chal [2007] EWCA Crim 2647, [2008] 1 Cr App Rep 247. 71 R v M [2002] EWCA Crim 2024, [2002] 1 WLR 824; R v H [2003] UKHL 1, [2003] 1 All ER 497.

258

Magistrates’ court 7.80

(i)

a hospital order pursuant to the Mental Health Act 1983 (‘MHA 1983’), s 37 on the written or oral evidence of two medical practitioners, at least one of whom must have been approved by the Secretary of State as having special experience in the diagnosis and treatment of mental disorder. An interim order can be made pending the paperwork. To make a hospital order, the court must be satisfied on the evidence of the approved clinician who would be in charge of the offender that suitable arrangements have been made for admission and treatment. A  hospital order can be made with a restriction on release pursuant to the MHA 1983, s 41 if the court is satisfied that a restriction is necessary for the protection of the public. A restriction is usually made without limit of time and continues if the patient is subject to conditional release as part of treatment72;

(ii) a supervision order; (iii) an absolute discharge.

Fitness to plead: magistrates’ and youth courts 7.79 There is no test for unfitness to plead in the magistrates’ court or the youth court, so fitness to plead is never specifically considered. Consequently, this will mean that case preparation will not routinely include obtaining the types of assessments that would be required under the fitness to plead procedure in the Crown Court. If a defendant is unable effectively to participate in the trial process, this will affect the fairness of proceedings and could affect the welfare of any child defendant73. 7.80 Where the defendant lacks capacity and is a trafficked person/subject to modern slavery, representatives should consider applying for a stay of proceedings on the ground of abuse of process.Where it relates to unfitness, the limitations of abuse of process created by the decision in R v DS74 will not apply. The processes that have developed in the Crown Court and in the appellate courts ought to steer the lower courts75.

72 R  v Blackwood (1974) 59 Cr App Rep 170; R  v Lincolnshire (Kesteven) Justices, ex p O’Connor [1983] 1  All ER  901; R  v Barker [2002]  EWCA  Crim 1508, [2003] 1 Cr App Rep (S) 212; R  v Khelifi [2006] EWCA Crim 770, [2006] 2 Cr App Rep (S) 650; R v Vowles [2015] 2 Cr App Rep (S) 39; R v Turner [2015] EWCA Crim 1249; R v Marshall [2015] EWCA Crim 474. 73 Children and Young Persons Act 1933, s 44. 74 [2020] EWCA Crim 285; see para 7.56 above. 75 CPS v P [2008] 4 All ER 628 and see M Bevan, Unfit To Plead in the Magistrates’ and Youth Courts?, at: www.criminallawandjustice.co.uk/features/Unfit-Plead-Magistrates-and-Youth-Courts.

259

7.81  Criminal court process

7.81 Unfit defendants who are also trafficked persons/subject to modern slavery would fall into the category of persons who would be protected according to international law and should not face a trial process, unless it is in the public interest for them to be tried. Notwithstanding the limitations of abuse of process created by R v DS it may be appropriate to rely on evidence concerning aspects of a PVOT’s trafficking status and circumstances to support an abuse of process application predicated primarily on unfitness. 7.82 When considering an abuse of process application or alternative arrangements to accommodate a defendant VOT who lacks capacity, practitioners may consider the Law Commission’s Unfitness to Plead Project. This exposed significant concerns over the inadequacies of the procedures to address unfitness to plead in magistrates’ and youth courts and the continuing need for better protection for defendants who lack capacity to engage in the trial process. Despite these observations, there has been no legislative change in this regard. 7.83 The following, taken from the Law Commission summary, may be of assistance in simplifying and streamlining proceedings as a matter of case management to ensure a defendant who is a victim of trafficking lacking capacity is not tried at all. If the defendant is tried, it should ensure that the trial process is fair and accommodates any vulnerabilities, or that the defendant is diverted away from the criminal justice system through referral mechanisms76: ‘1.14 At the heart of our recommendations lies our belief that the normal criminal trial is the optimum process where a defendant faces an allegation in our criminal justice system.We consider that full trial is best not just for the defendant, but also for those affected by an offence and society more generally. This is because the full criminal process engages fair trial guarantees for all those involved, under article 6 of the European Convention on Human Rights (“ECHR”), and allows robust and transparent analysis of all the elements of the offence and any defence advanced. It also offers the broadest range of outcomes in terms of sentence and other ancillary orders. 1.15 Removing any defendant from that full trial process should, we consider, only be undertaken as a last resort. The decision to adopt alternative procedures should be made with great caution and only where it is in the best interests of the defendant, because he or she lacks the capacity to participate effectively in his or her trial. We consider 76 Law Commission 2016, Unfitness to Plead Summary, at: www.lawcom.gov.uk/wp-content/ uploads/2016/01/lc364_unfitness_summary_English.pdf, last accessed 14 December 2017.

260

Magistrates’ court 7.83

that every effort should be made to afford a defendant whose capacity may be in doubt such adjustments to the proceedings as he or she reasonably requires to be able to participate in the full criminal process, and to maintain that capacity for the whole of the process. However, we do acknowledge that a very small number of defendants will never have the capacity to participate effectively in a trial. 1.16 We consider that the most important element of a framework to address issues of unfitness to plead is a legal test which accurately and efficiently identifies those defendants who, even considering available adjustments to trial, have such impairments in their ability to participate in proceedings that they could not fairly be tried … We also consider it essential that those who, although unable to engage with the full trial process, have sufficient understanding and decision-making capacity to enter a plea of guilty, should be enabled to do so. 1.17 Assessment of such defendants is currently a time-consuming process and in some cases three or more expert reports are prepared, generally by psychiatrists or psychologists, before a defendant is found unfit to plead.The current arrangements often lead to substantial delays, causing uncertainty and anxiety to complainants, witnesses, and the defendant. We consider that arrangements can be made to streamline this process, saving time and precious resources, without compromising the robustness or fairness of the outcome. 1.18 Following a finding by the court that a defendant lacks the capacity to participate effectively in the full criminal process, we take the view that the court should have the option not to embark on the alternative procedures for scrutinising the allegation. We have in mind, in particular, cases where a disposal imposed by the court is not necessary to protect the public, or to support the individual to avoid future concerning behaviour, and where it is concluded that it is not in the public interest for any further criminal hearing on the matter. We take this position because any procedure which protects the interests of the vulnerable individual, but appropriately scrutinises the allegation in order to justify imposing disposals on that individual, will inevitably be complex, and demanding of jurors, witnesses and defendants alike. In addition, such alternative procedures cannot result in conviction, because the defendant who cannot participate effectively is unable properly to defend him- or herself. As a result, the disposals available to the court are inevitably limited, and cannot involve punishment of the defendant. 1.19 For many individuals who are unfit to plead, the low level of seriousness of the original allegation and the arrangements which can be made in the community, without the court’s intervention, mean that further action by a criminal court is unnecessary. We therefore recommend that diversion of such individuals out of the criminal 261

7.84  Criminal court process

justice system, once they have been found to lack capacity for trial, should be available where the court is satisfied that such an approach is in the interests of justice’.

Disposal of defendants suffering from a mental disorder 7.84 Although there is no system to decide unfitness to plead in the lower courts, there is a system for disposal for those defendants suffering from a mental disorder. This does not apply to those with developmental or intellectual issues or significant immaturity. In limited circumstances, under MHA 1983, s 37(3), if a defendant is charged with an imprisonable offence and he is found to have done the act or made the omission as alleged, and s/he is suffering from a treatable mental disorder as defined by the MHA 1983, a magistrates’ court (including a youth court) can impose a hospital order or a guardianship order (if the person is over 16). 7.85 A magistrates’ court may also, before the method of dealing with a defendant is determined, do the following: where (1) a defendant is convicted of an offence punishable on summary conviction with imprisonment; (2) the court is satisfied that the defendant did the act or made the omission charged; but (3) the court is of the opinion that an inquiry ought to be made into his physical or mental condition, the court shall adjourn the case to enable a medical examination and report to be made, and shall remand him. Thereby, necessary medical reports can be prepared77. At least one of the reporting medical practitioners must be approved by the Secretary of State as having special experience in the diagnosis and treatment of mental disorder. Given the limited sentencing options for summary-only offences, vulnerable children and young people may seek to be sentenced rather than seek a disposal for treatment which may amount to a greater restriction of liberty than the sentence they would otherwise receive.

The role of expert evidence 7.86 In addition to evidence of abuse or injury, and other recognised areas of science and technology commonly adduced in the criminal courts, there are two areas which may well require expert evidence in cases involving trafficked persons/

77 Powers of the Criminal Courts (Sentencing) Act 2000, s 11.

262

Magistrates’ court 7.88

those subject to modern slavery: evidence of age78 and evidence of how a trafficking gang and/or trafficker(s) might operate and control a victim by reference to particular country or criminal practices79. See Chapter 5. In relation to age, it is generally accepted that trafficked children will not necessarily have any correct identifying documents, some may not know their exact age, others will have been told to lie. When age is not clear, the presumption is that the person is under 1880, although courts are expected to make ‘due enquiry’ using any available documentation, fingerprint record and oral evidence, including any expert assessment. A declaration as to age by a court is then regarded as the true age. See Chapter  3 in respect of the due process to be adopted in establishing age81. 7.87 The mode of operation of a trafficking gang and the effect on the conduct of a victim may be an issue for expert evidence as, although prevalent, it is complex and highly likely to be outside the experience of a reasonable jury82. Care must be taken for the expert to provide expert evidence on the mode of operation of traffickers in the factual context of the case and the expert should not express an opinion on the credibility of a suspect/defendant about his trafficking status or circumstances. Expert evidence is to be preferred over and above a ‘myths direction’ although it may also be helpful or necessary, particularly in cases involving sexual exploitation, for a judicial direction to deal with common misconceptions83. 7.88 Where the s  45 of MSA  2015 defence is raised, consideration of whether ‘a reasonable person in the same situation as the defendant and having the defendant’s relevant characteristics would have no realistic alternative to doing that act’ could be supported by expert evidence. Again, care should be taken to ensure that the scope of the expert’s instructions and report are appropriate. The ‘relevant characteristics’ are defined as ‘age, sex and any physical or mental illness or disability’, which must mean that the ‘reasonable person’ becomes the ‘reasonable trafficking victim’ in the given circumstances. Relevant characteristics, for example, might include post-traumatic stress disorder; 78 See R (on the application of A) v London Borough of Croydon and R (on the application of M) v London Borough of Lambeth [2009] UKSC 8 in the context of housing. See also the CPS policy for prosecuting cases of human trafficking, at: https://www.cps.gov.uk/legal-guidance/human-trafficking-smuggling-andslavery, last accessed June 2020. 79 R v Allad [2014] EWCA Crim 421 evidence on the mode of operation of a carousel fraud. For forms of trafficking and expert evidence, see, for example, Office for Victims of Crime Training and Technical Assistance Center, Human Trafficking Task Force e-guide, at: www.ovcttac.gov/taskforceguide/eguide/, last accessed June 2020. 80 ECAT, Art 10. 81 Children and Young Persons Act 1933, s 99 and Magistrates’ Courts Act 1980, s 150. 82 R (on the application of AB) v Secretary of State for the Home Department [2015] EWHC 1490 (Admin). 83 CPS, Guidance on Rape and Sexual Offences and Societal Myths, at: www.cps.gov.uk/legal/p_to_r/rape_ and_sexual_offences/societal_myths/, last accessed June 2020.

263

7.89  Criminal court process

or psychological evidence of an individual’s level of suggestibility (although there are limitations to the admissibility of such psychological evidence)84. Once there is some evidence of all limbs of the defence, it will be a matter for the Crown to disprove one of those limbs (see Chapter 5 for the interplay between the evidential and legal burdens of proof in the context of s 45). To represent a defendant properly, defence representatives should ensure that they assume the burden of obtaining evidence relevant to what was reasonable in the circumstances. Defence practitioners should consider whether regional trafficking reports might be admissible (or capable of agreement in agreed facts in whole or in part)85.

Adducing expert evidence 7.89 Adducing expert evidence is dealt with in Part 19 of the Criminal Practice Direction (‘CPD’)86. It is the duty of an expert to help the court to achieve the overriding objective that justice should be achieved87. This duty overrides the duty owed to the party providing the instructions or payment88. An ‘expert’ is described as ‘a person who is required to give or prepare expert evidence for the purpose of criminal proceedings, including evidence required to determine fitness to plead or for the purpose of sentencing’89. Expert evidence is opinion evidence which must be objective and unbiased, and within the expert’s area or areas of expertise90. See Chapter 5 for detailed guidance on instruction of experts. 7.90 Under Crim PR 19.9, a party seeking to introduce expert evidence under r 19.3(3) may apply to the court to seek to omit information from the expert evidence on the basis that it would be ‘in the public interest to withhold that information.’ Such an application needs to be served on the court officer, explaining why it would be in the public interest to withhold and why the information or extracts have been omitted. The application must also be served on the other party but will omit anything which would reveal what the 84 See R v Antar (2004) The Times, 4 November 2004. Evidence of psychologist as to appellant’s level of suggestibility should have been before the jury as they functioned cognitively at a significantly impaired level, having a moderate learning disability. 85 Mk v R [2018] EWCA Crim 667. 86 Criminal Practice Direction (2015), at: https://www.justice.gov.uk/courts/procedure-rules/criminal/ docs/2015/crim-practice-directions-V-evidence-2015.pdf, last accessed 10  February 2020. (NB the link directly to Crim PR  19 now is https://www.justice.gov.uk/courts/procedure-rules/criminal/ docs/2015/crim-proc-rules-2015-part-19.pdf, last accessed 5 August 2020). 87 Criminal Procedure Rules, as amended 2020, r 19.2. 88 The Ikarian Reefer [1993] 2 Lloyds Rep 68; R v Harris [2005] EWCA Crim 1980. 89 Criminal Procedure Rules 2015, r 19.1. 90 Criminal Procedure Rules 2015, r 19.2.

264

Magistrates’ court 7.92

party thinks ought to be omitted. Examples might include sensitive medical information about a defendant; or, in the context of trafficking, it might include matters which could compromise a defendant’s safety. Such application must be heard in private by the court. At a hearing, representations would first be given by the applicant, followed by the other party (in both parties’ presence), and then any further representations in the absence of the party from whom the information is withheld. 7.91 Human trafficking indicators are many and varied and are likely to be outside the experience of a jury (and sometimes judges). Expert evidence will need to be relevant to the particular issues to be litigated in a case, but much assistance can be gleaned from the material produced by the UN Office on Drugs and Crime (the full table can be found in Chapter 2)91.

Admissibility of expert evidence 7.92 To be admissible, expert opinion evidence must be relevant to the issue which the court is called upon to decide92. It must be logically probative or disprobative of some matter which requires proof93. A competent expert can only provide opinion evidence which is outside the knowledge and experience of the court94 where there is a reliable scientific basis for the opinion95. Reports must comply with the Criminal Procedure Rules (as amended), r 19.4 giving detail of the expert’s ‘qualifications, relevant experience and accreditation’ and setting out the basis of the opinion’96. Experts may give opinion evidence on the ultimate issue in a criminal trial but juries are directed that they are not bound to accept it. The role of the expert is to provide material to enable the jury to reach their own conclusions to the requisite standard97. It may be possible, in some circumstances for an expert to give opinion evidence on the consistency of an account of a defendant relating to the circumstances of his trafficking situation; but the expert should remember his duty to the court and not simply proffer an opinion on an applicant’s credibility98.

91 See, for example, UNODC, HT  Indicators Infographic, at: www.unodc.org/pdf/HT_indicators_E_ LOWRES.pdf, last accessed 10 February 2020. 92 O’Brien v Chief Constable of South Wales Police [2005] UKHL 26 at para 3. 93 Per Lord Simon of Glaisdale in DPP v Kilbourne [1973] AC 729. 94 Crim PD, 19 A.1. 95 R v Dlugosz [2013] EWCA Crim 2. 96 R v H [2014] EWCA Crim 1555, para [44]. 97 R v Pora [2015] UKPC 9, [2016] 1 Cr App Rep 48. 98 See R v VSJ [2017] EWCA Crim 36, at para [67].

265

7.93  Criminal court process

7.93 Expert evidence which may not be admissible during a criminal trial may assist the SCA in reaching trafficking identification decisions. It is important that evidence in support of a suspect/defendant’s trafficking status is submitted to the SCA, such as medical reports, independent trafficking reports and reports from the specialist support provider or first responder. Likewise, it may assist the prosecutor in making a charging or prosecuting decision. 7.94 As to the admissibility of a conclusive grounds’ decision and/or the underlying material it is founded on, see Chapter 5. 7.95 Expert evidence may also assist the court when considering pre-trial applications such as severance, special measures and applications for anonymity or to move proceedings. Funding for prior authority for such reports should be applied for as soon possible after the first appearance.

Indictment and severance 7.96 Where a defendant has used or been advised to use an alias name, practitioners should ensure that his name is correctly spelt and that the correct name is used on the indictment. In a case where anonymisation is appropriate, care should be taken to ensure that the defendant’s name is not released into the public domain. 7.97 If a PVOT is charged with others, careful consideration needs to be given to whether the defendant has or might have been charged with individuals responsible for trafficking, exploiting or exerting a form of control over him or persons linked to the network responsible for his exploitation. Where there is an application for severance, this should in normal circumstances be raised as soon as possible. The Criminal Procedure Rules 2015, r 3.21 outlines that the application must be served as soon as practicable after becoming aware of the grounds for doing so, and that such an application has to be served on the court and each of the other parties. When considering the practicability of raising severance, it is suggested that care needs to be taken to ensure that the raising of the issue does not itself expose the defendant to risk. 7.98 The Indictments Act 1915, s 5 gives a discretion to the Crown Court to order severance. In circumstances where a s  45  MSA  2015 defence is being raised 266

Magistrates’ court 7.100

and an allegation of trafficking/modern slavery is being made against a codefendant it is advisable to request a separate listing for mention to address pre-trial issues, including severance, and any ancillary applications without the co-defendant or his legal representative being present. 7.99 Judges have detailed guidance from the Judicial College about how to deal with any suggestion that a defendant has been trafficked. If the SCA has not reached a decision, then the judge should adjourn for this to happen.Those representing the defendant should be aware of the risks to the defendant once the basis for severance has been disclosed – the safety of the defendant, including in custody, needs to be ascertained and, if necessary, safeguarding measures should be adopted in prison, particularly where the defendant is detained in the same prison as his co-defendants or others connected to the organised criminal network. Safeguarding issues should be raised with the court and prison service, if the remand prison is the same, to avoid the trafficked defendant and codefendant being transported to and from court together. Where a defendant is remanded on bail, consideration should be given to whether it is appropriate to refer to any address of a PVOT defendant in court or in a defence statement when it might be seen by a co-defendant. Other protective measures could be sought for those on bail, such as non-contact with the co-defendant. If an application to sever is unsuccessful, other practical issues should be considered, such as how a defendant who has raised his trafficked status should be produced at court, and, in court whether a dock officer should sit between the defendants. In general, the Court of Appeal will interfere with the exercise of discretion for a refusal of severance as a ground of appeal, only if it can be shown that the trial judge took into account irrelevant considerations, ignored relevant issues and/ or arrived at a manifestly unreasonable decision99.

Arraignment 7.100 If at arraignment no decision on a PVOT defendant’s trafficking status has been received from the SCA, then arraignment must in most circumstances be postponed pending this decision. As set out above, a request should be made so that full credit for a guilty plea is retained, where appropriate, until after that decision has been made. The reason for this is that: ‘the decision of the competent authority as to whether a person had been trafficked for the purposes of exploitation is not binding on the court but, unless there was evidence to contradict it or significant 99 R v Moghal (1977) 65 Cr App Rep 56.

267

7.101  Criminal court process

evidence that had not been considered, it is likely that the criminal courts will abide by the decision’100.

Defence statements 7.101 Service of a defence statement occurs 28 days after the disclosure of the material from the prosecution at Stage 1 of the Crown Court proceedings101. Under the Criminal Procedure and Investigations Act 1996, s 6A, the defence statement should set out: •

the nature of the defence;

•

what matters of fact ‘on which [the defendant] takes issue with the prosecution’;

•

why he takes issue with it;

•

any matters of fact he relies on;

•

any point of law, including any point as to the admissibility of evidence or an abuse of process, which he wishes to take;

•

if an alibi is to be relied upon, details of it.

7.102 If a s 45 defence is to be raised, this should be included in a defence statement. It should be made clear whether the alleged offence is admitted, subject to the trafficking issues, otherwise the omission of any other live issue could give rise to an adverse inference. If, at the stage of serving a defence statement, the trafficking/modern slavery issues have not been investigated or an SCA decision has not been received, then the defence statement can be used as a further mechanism to trigger such investigation and referral. The need to investigate and refer the defendant should be expressly particularised.

Disclosure requests 7.103 Defence practitioners should consider seeking the following in relation to a case involving trafficking/modern slavery: •

copies of all competent authority and SCA decisions and minutes concerning the defendant;

100 R v VSJ [2017] EWCA Crim 36, para [28]. 101 Criminal Procedure and Investigation Act 1996 (Defence Disclosure Time Limits) Regulation 2011, SI 2011/209 (in force from 28 February 2011).

268

Magistrates’ court 7.103

•

a copy of the NRM referral form;

•

copies of historical NRM referral form;

•

communication by the police to the SCA if they were first responder;

•

details of which officer/agency completed it;

•

date of when the NRM referral form was in fact sent;

•

copies of all items sent to the SCA with the NRM referral, for example, expert trafficking reports;

•

all contemporaneous notes from the date of arrest;

•

any body-worn camera footage from officers at the point of arrest/scene photographs: these may highlight crucial evidence as to the demeanour of the defendant, his physical condition, living conditions, and indicators of mental illness and/or vulnerabilities at the time;

•

details of all investigations conducted by police into the defendant’s trafficking/slavery situation;

•

inclusion of all witness statements taken in any investigation/enquiries into a defendant being in a trafficking/slavery situation;

•

consideration of when the police (and which officer(s)) spoke to the defendant, and whether an interpreter was used (and, if so, who);

•

details of any police intelligence to do with the premises at which the defendant was arrested, for example any reports by neighbours, or previous incidents of other individuals having been arrested at the address (this may lead to issues of public interest immunity which will need to be considered), including briefing notes from any police operation(s) relevant to the allegation;

•

previous reports/allegations concerning places used to harbour or receive VOTs or where slavery or servitude has taken place;

•

if the circumstances focus upon a household in which the defendant was held, then information should be sought as to all previous reports made to the police in relation to that particular address, or linked to the individuals exerting control over the defendant;

•

records of Youth Offending Services in relation to county lines cases, including whether any trafficking indicators have been previously noted;

•

Social Services records, if the individual is a child in care or in respect of whom Social Services have had contact, consideration to any indicators of exploitation and/or periods where individual reported as missing; 269

7.104  Criminal court process

•

reports with Home Office ‘opening codes’: o

N200/01 – reported incident – NRM referral pending reasonable grounds decision102;

o

N200/02 – reported incident – NRM referral negative reasonable grounds decision;

o

N200/03 – reported incident – NRM referral – Duty to notify only;

o

N200/04 – reported incident – NRM referral – Positive reasonable grounds/police referral – Outside England and Wales;

o

N200/05 – reported incident – NRM referral – Negative reasonable grounds – Outside;

England and Wales: o

N200/06 – reported incident – NRM referral – Transferred to another force in England and Wales;

•

Communications data, cell site information;

•

Automatic Number Plate Recognition (‘ANPR’) evidence showing movements around the UK;

•

travel tickets;

•

evidence from financial investigation, including bank accounts;

•

airport manifests showing suspects/travel/flight bookings with airlines.

7.104 Practitioners should adopt caution when evaluating third party disclosure (e.g. Home Office records concerning the defendant), particularly if adverse credibility issues or inconsistent instructions arise in these documents. It is highly likely that the Home Office interviews in the context of an asylum claim or immigration application will not have been done under caution.These interviews are unlikely to have been recorded and often the individual will have had no legal representation present at time of interview. These interviews do not adopt the ‘Achieving Best Evidence’ model.

Bad character applications 7.105 The Crown may seek to introduce bad character against a defendant under the provisions of the Criminal Justice Act 2003, s 101. 102 From April 2019, the Home Office Counting Rules (‘HOCR’) for recorded crime has introduced the N200 set of rules for modern slavery offences. All reported incidents of modern slavery should be recorded on the force crime system, see: https://www.app.college.police.uk/app-content/majorinvestigation-and-public-protection/modern-slavery/national-referral-mechanism/#making-a-referral, last accessed June 2020.

270

Magistrates’ court 7.108

7.106 One of the aspects of re-trafficking is that a person can be continually moved from different locations and in addition, even post-sentence, are at risk of being re-trafficked. It is not uncommon in trafficking and modern slavery for an individual to have unchallenged previous convictions that are, on any proper analysis, unsafe; sometimes the consequence of guilty pleas or findings where representatives have failed (or failed adequately) to raise a VOT’s circumstances which were pertinent to whether or not he should have been prosecuted in the public interest (or convicted in light of a s 45 defence). It is also often the case that criminal acts historically committed by VOT defendants should not be treated as criminal or acts of which the defendant was culpable (see R v L103). Furthermore, often historical sentencing exercises may have been flawed and may not have applied appropriate weight to the defendant being a VOT or having indicators of trafficking. 7.107 It follows that, if the prosecution are seeking to introduce ‘bad character’ evidence, consideration should be given to whether, the bad character allegations assist in illustrating previous exploitation in the way in which they would if the defendant was not a VOT and whether they are admissible. Much will depend on relevance and seriousness. 7.108 The Criminal Justice Act 2003, s 101(1) governs the test for admissibility of a defendant’s bad character. It is admissible: ‘if, but only if– (a) all parties to the proceedings agree to the evidence being admissible, (b) the evidence is adduced by the defendant himself or is given in answer to a question asked by him in cross-examination and intended to elicit it, (c) it is important explanatory evidence, (d) it is relevant to an important matter in issue between the defendant and the prosecution, (e) it has substantial probative value in relation to an important matter in issue between the defendant and a co-defendant, (f)

it is evidence to correct a false impression given by the defendant, or

(g) the defendant has made an attack on another person’s character.’ 103 [2013] EWCA Crim 991, [2013] 2 Cr App Rep 247 at para 13.

271

7.109  Criminal court process

7.109 Aspects that should be considered when seeking to exclude any bad character are: •

Criminal Justice Act 2003, s  101(3): this provides that the court must not admit evidence under s 101(1)(d) or (g) if, on an application by the defendant to exclude it, it appears to the court that the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it;

•

consideration should be given to how long ago the bad character subject matter was: see Criminal Justice Act 2003, s 101(4);

•

in addition, it will be critical to examine in cases of a disputed age assessment whether or not the age assessments were lawfully made at the time of the convictions (i.e. not vitiated by a public law error: see Chapter 3);

•

whether the alleged ‘bad character’ evidence is being used to prove a tendency to act in a particular way or to rebut a coincidence.

7.110 By s 74 (3) of the Police and Criminal Evidence Act 1984: ‘74.— Conviction as evidence of commission of offence. … (3) In any proceedings where evidence is admissible of the fact that the accused has committed an offence, […] if the accused is proved to have been convicted of the offence— (a) by or before any court in the United Kingdom; … he shall be taken to have committed that offence unless the contrary is proved’ [Emphasis added]. 7.111 It follows that if a defendant seeks to challenge a conviction on the ground that he should not have been prosecuted in the public interest or a s 45 defence was overlooked (see Chapter 5) and the conviction is unsafe, he can challenge it. It will be an exceptional course104. 7.112 Where the facts of a conviction are not accepted, see R v Ainscough105:

104 See R v Zawadzka [2016] EWCA Crim 1712, para 25. 105 [2006] EWCA Crim 694.

272

Magistrates’ court 7.115

‘when there is a dispute about the facts supporting previous convictions, in almost all cases it should be possible for the matter to be dealt with in accordance with Humphris106, where bad character evidence was introduced under the hearsay provisions of the Criminal Justice Act 2003, s 117. However, one appreciates that there may be cases where the position is simply too complicated. Whatever the complainant may have said in a statement at the time of the earlier conviction, or may say now in evidence to the court, it may be that a current defendant was sentenced on a different basis as a result of a basis of plea proffered and accepted by the prosecution and by the judge. In other words, where these matters are in dispute there is a need for caution, there is a need to have regard to what was said in Humphris and there is a need to ensure that a current trial does not give rise to numerous satellite issues about what did or did not happen in some cases many years ago. It goes without saying that that is particularly to be avoided where what is taking place now is a relatively short trial on a simple issue.’107

Trial issues 7.113 If a conclusive grounds decision of the SCA is negative, this does not mean that a defendant is unable to advance a s 45 MSA 2015 defence. The evidence can be independently assessed by the jury in the Crown Court or by a magistrates’ court. However, the decision by the SCA may be a good indicator of the merits of such a defence succeeding. As set out in Chapter 2, SCA decisions can be legally challenged and it may be necessary to do this in tandem with the criminal proceedings. 7.114 Where a reasonable or conclusive grounds decision of the SCA is arguably unlawful, it is imperative that consideration is given to judicially reviewing it pre-trial (see Chapter 2). 7.115 Where the SCA makes a positive decision of trafficked status but the prosecution decides to proceed with a prosecution a defence of duress under s 45 may be advanced. As to whether the decision of the prosecution may still be challenged in a criminal court, see Chapter 5.

106 [2005] EWCA Crim 203. 107 Ibid at [19].

273

7.116  Criminal court process

7.116 As to whether a SCA decision or the underlying evidence on which it was based is admissible at trial, see Chapter 5. 7.117 It is crucial to analyse what evidence considered by the SCA, whether it be admissible at trial (see Chapters 2 and Chapter 5) and what further evidence could be obtained in support of a s 45 defence.

Questioning of the ‘officer in the case’ 7.118 One of the critical witnesses’ defence practitioners should consider requiring attendance for cross-examination is the officer in the case. That officer has responsibility for the day-to-day decisions during the investigation. He will be able to answer questions about failures to investigate the trafficking status of the defendant. The College of Policing Guidance highlights that it is: ‘the duty of a local police force (the primary legislative agency) to begin an investigation as soon as they believe a modern slavery crime may have been committed, regardless of whether a victim makes an allegation, whether a report is made, or whether consent to be entered into the national referral mechanism is provided or refused. A modernday slavery crime MUST NOT be approached as an employment or immigration issue at this stage’. 7.119 In cases involving human trafficking/modern slavery, there may well be questions as to the following aspects of the case which can be asked in advance so that the prosecution position is known pre-trial: •

whether there was any consideration of trafficking or modern slavery prearrest in the pre-planning stages undertaken by the police, including the potential recovery of victims during the police operation (for instance, there are often pre-planning briefings when cannabis farms are raided on a large scale);

•

whether there was any surveillance of any property that may establish that the defendant never left/did not feel able to leave or that there was limited movement from the property, or movement under escort;

•

whether there was any consideration by the police of trafficking or modern slavery indicators at the point of the defendant’s arrest;

•

whether there is any evidence or information of an organised crime network, its hierarchy and whether the police have actively analysed this evidence; 274

Magistrates’ court 7.122

•

whether there have been investigations into telephones;

•

whether telephone applications show matters such as whether a trafficker has regularly contacted or controlled the defendant;

•

whether the defendant was interviewed, when a suspect, as a PVOT;

•

at what stage any SCA referral was made;

•

whether an SCA referral resulted in a crime record being set up (NB: this would contravene Home Office counting rules);

•

if no crime record was created, confirmation as to why one had not been made;

•

what investigation of others linked to the address or as having controlled the defendant had been conducted;

•

what investigation there had been, if any, of re-trafficking issues.

7.120 Policing trafficking experts may be able to provide expert evidence on what indicators of trafficking the police should have been alive to during the police operation and/or arrest and interview. Defence practitioners should consider whether such an expert might be able to evaluate the quality of the investigation into the trafficking of the defendant as undertaken by the police. This expert evidence can assist in formulating the cross-examination of an investigating officers, making an abuse of process application or in deploying a s 45 defence.

Exclusion of interview 7.121 If the police interview took place without an appropriate adult in place, and the defendant is considered to be a child or young person under 18, then it may be that exclusion of the police interview is appropriate, for example, under the Police and Criminal Evidence Act 1984, ss 78 and/or 76 and the PACE Code provisions, in particular, Code C.

Adverse inferences from failure to mention facts in police interview 7.122 Under the Criminal Justice and Public Order Act 1994, s 34, a power exists which allows a court (magistrates or jury) to draw an adverse inference if an individual fails to mention facts that he later comes to rely on in his defence. Such an adverse inference applies only in these circumstances: ‘at any time before he was charged with the offence, on being questioned under caution 275

7.123  Criminal court process

by a constable trying to discover whether or by whom the offence had been committed … [or] on being charged with the offence or officially informed that he might be prosecuted for it …’. Section 34(1) provides that the inference can only be drawn where it concerns a ‘fact which in the circumstances existing at the time the accused could reasonably have been expected to mention when so questioned, charged or informed’. 7.123 The prosecution and defence should consider before the start of the trial whether an adverse inference should be sought by the prosecution where there are background issues of trafficking or modern slavery. Where an individual has faced difficult circumstances of exploitation, coercion or is in fear of authority figures such as police or immigration officers, there may be reasons why an individual did not set out details of his full background circumstances or raise facts relevant to a s 45 defence within the police interview or post-caution (see Chapter 2 regarding late disclosure). 7.124 In R v Argent108 Lord Bingham highlighted that ‘in the circumstances’ should not be construed restrictively when assessing the application of s  34. Lord Bingham said: ‘The time referred to is the time of questioning, and account must be taken of all the relevant circumstances existing at that time. The courts should not construe the expression “in the circumstances” restrictively: matters such as time of day, the defendant’s age, experience, mental capacity, state of health, sobriety, tiredness, knowledge, personality and legal advice are all part of the relevant circumstances; and those are only examples of things which may be relevant. When reference is made to “the accused” attention is directed not to some hypothetical, reasonable accused of ordinary phlegm and fortitude but to the actual accused with such qualities, apprehensions, knowledge and advice as he is shown to have had at the time. ‘Like so many other questions in criminal trials this is a question to be resolved by the jury in the exercise of their collective common-sense, experience and understanding of human nature. Sometimes they may conclude that it was reasonable for the defendant to have held his peace for reasons, such as, that he was tired, ill, frightened, drunk, drugged, unable to understand what was going on, suspicious of the police, afraid that his answer would not be fairly recorded, worried at committing himself without legal advice, acting on legal advice, or some other reason accepted by the jury. 108 [1997] 2 Cr App Rep 27.

276

Magistrates’ court 7.128

‘… This is an issue on which the judge may, and usually should, give appropriate directions. But he should ordinarily leave the issue to the jury to decide.’ 7.125 Where the prosecution seeks an adverse inference direction under s 34 in the context of a defendant who contends that he is a victim of exploitation, the circumstances of the defendant’s arrest and the demeanour of the defendant at the time of interview may be relevant matters to consider when questioning witnesses at trial, including officers present at the defendant’s arrest and the defendant, should s/he decide to give evidence. In addition, this evidence may be the legitimate province of expert psychological, psychiatric or, trafficking evidence. 7.126 Further, consideration should be given to the state of health and/or fitness for interview of any defendant recovered in cannabis farms. The policing guidance109 clearly sets out the high levels of toxicity in premises modified for cannabis cultivation, which will have an impact on any individual exposed to this toxicity. As good practice any individual recovered in such premises should be evaluated by a Forensic Medical Examiner to ensure fitness to be interviewed.

Defendant giving evidence 7.127 There may be a real concern in a case where a defendant has a background of being subjected to trafficking or modern slavery exploitation about his ability to give evidence at trial safely and without fear. Special measures for vulnerable suspects/defendants are addressed in Chapter 8. 7.128 The Equal Treatment Bench Book (revised March 2020) sets out that ‘victims of modern slavery are likely to be vulnerable witnesses, considerably damaged by their experiences and wary of authority figures. Patience as well as sensitivity will be required.’

109 National Policing Improvement Agency, Practical Advice on Tackling Commercial Cannabis Cultivation and Head Shops, at: www.the-ata.org.uk/downloads/Cannabis_Cultivation_R.pdf, last accessed 10 February 2020, and Home Office Guidance 2015, at: https://assets.publishing.service.gov.uk/government/ uploads/system/uploads/attachment_data/file/410961/Guidance_for_local_authorities_on_taking_ action_against_10.03_15.pdf, last accessed 10 February 2020.

277

7.129  Criminal court process

7.129 The Bench Book outlines that protected questioning techniques may be appropriate, such as: •

No repeated questions.

•

Short, single-strand questions, i.e. one matter raised in the question at a time.

•

Giving structure to the questions.

•

Focused questions on the matters in dispute.

•

Reduction in the use of leading questions.

•

Reduction in the use of tag questions.

7.130 A psychologist or psychiatrist might appropriately be instructed to provide an opinion on the ability of the defendant to effectively participate in a trial, and, in particular, whether any adjustments to the trial process should be made to accommodate trauma or other vulnerabilities (for example the defendant not sitting in the dock, the use of an intermediary or a greater number of breaks, etc): see Chapter 8. 7.131 Crim PR at 3.9(6) needs to be considered as it specifically provides that ‘facilitating the participation of any person includes giving directions for the appropriate treatment and questioning of a witness or the defendant, especially where the court directs that such questioning is to be conducted through an intermediary.’ 7.132 Crim PR at 3.9(7) provides that: ‘Where directions for appropriate treatment and questioning are required, the court must(a) invite representations by the parties and by any intermediary; and (b) set grounds rules for the conduct of questioning.’ 7.133 Those ground rules may include things such as the manner and duration of questioning, directions about questions that may or may not be asked, the use of models or body maps, and the allocation amongst defendants of topics that can be asked of a witness110. 110 See: The Advocate’s Gateway and the Toolkits for questioning witnesses there.

278

Magistrates’ court 7.136

7.134 Account needs to be taken of language needs, which may be overcome by use of an interpreter. Also, any learning difficulties or literacy issues a defendant may have should be addressed. An intermediary will usually be able to assist with this. 7.135 It is important at an early stage of proceedings to gauge the educational and cultural background of a defendant. It may well impact on the style of questions asked of a defendant and the ability to understand questions and assimilate documents or schedules.

Absconders 7.136 In all criminal cases defendants are advised that a trial can proceed, and indeed that they can be convicted, in their absence. In R v Jones111, the House of Lords considered that a judge has a discretion to start or continue a trial in a defendant’s absence, but that this power was to be exercised with great caution, and with close regard to the overall fairness of the proceedings. The circumstances that a judge should have regard to are: (i) the nature and circumstances of the defendant’s behaviour in absenting himself from trial and whether the behaviour was voluntary; (ii) whether an adjournment would resolve the matter; (iii) the likely length of such an adjournment; (iv) whether the defendant, though absent, wished to be represented or had waived his right to representation; (v) whether the defendant’s representatives were able to receive instructions from him, and the extent to which they would be able to present his defence; (vi) the extent of the disadvantage to the defendant in not being able to present his account of events; (vii) the risk of the jury reaching an improper conclusion about the absence of the defendant; (viii) the general public interest that a trial should take place within a reasonable time; (ix) the undesirability of having separate trials if there were co-defendants. 111 [2002] UKHL 5, [2003] 1 AC 1.

279

7.137  Criminal court process

7.137 The Criminal Procedure Rules (as amended), r 25.2 states: ‘(b) the Court must not proceed if the defendant is absent, unless the court is satisfied that— (ii) the defendant has waived the right to attend, and (ii) the trial will be fair despite the defendant’s absence’. 7.138 It is crucial to consider the position of individuals who may have been retrafficked and who therefore may not have voluntarily chosen to absent themselves from trial. This is particularly important with children and young persons, given their high risk of re-trafficking. These are all factors which a court needs to take into consideration in the determination of whether a trial can proceed in their absence. 7.139 If, for example, at date of trial, a representative has written instructions that have been signed, such as a proof of evidence, it will be a question for him if he considers the extent to which he is able to present the defence for the defendant. Without a signed proof of evidence, and a signed defence statement, it may be extremely difficult for a representative to continue at trial and as a result he would have to withdraw. 7.140 In some instances, a representative may become aware that his client has absconded in advance of trial. When an individual has been re-trafficked in advance of a defence statement being due to be submitted to the court it is best practice to notify the court if there are in effect ‘non-compliance’ issues. It would not be appropriate to wait until day of trial to set out non-compliance issues, if for example a client has failed to engage in attending any appointments/ conferences with a solicitor from PTPH until trial and he cannot be contacted, this should trigger a notification. 7.141 Although R v Okedare112 related to the position of absconders in the context of post-trial appeals against convictions and sentence, the case is relevant and should be considered in the context of individuals absconding at trial date. The court in Okedare dealt with one applicant, K, who had been arrested in relation to cannabis cultivation. The court considered that he ‘may well have been re-trafficked’. Because there had been written consent to the defence 112 [2014] EWCA Crim 228.

280

Magistrates’ court 7.145

representatives as to a wish to appeal against conviction, there was nothing to suggest that the applicant wished to withdraw his appeal. 7.142 The court, in assessing the case, evaluated that ‘In any event there remains the possibility that his disappearance was not his fault.’ On account of this, the Court of Appeal considered that it had no option but to stay the application for permission to appeal, until the applicant was able to satisfy the evidential requirements as to whether or not he had in fact been trafficked and if he had been compelled to commit the offence for which he was tried. 7.143 The above is highly pertinent when the Crown Court or a magistrates’ court is considering whether a trial in absence should take place, where an individual ‘may well have re-trafficked or simply absconded’. The issues at trial in relation to a defence under the MSA  2015 arguably cannot properly be dealt with if evidence of compulsion can only be met through the defendant giving evidence at trial. As a result, Okedare provides a basis for highlighting the need for an application to stay the proceedings in those circumstances.

Pre-sentencing application to vacate a guilty plea 7.144 If, after a guilty plea but before sentence, it becomes apparent that an individual was a trafficked person subject to modern slavery, or had a defence available under MSA 2015, s 45, but this was unknown for a good reason, then it might be appropriate for a court to hear an application to vacate the guilty plea. 7.145 A defendant may apply at any time before sentence to vacate a plea of guilty, and it is for the court to decide whether justice requires that that should be permitted113. Where the plea was in a magistrates’ court and the case was committed for sentence, the sending to the Crown Court renders the magistrates’ court functus officio. The Crown Court may send the case back to a magistrates’ court before sentence114. Following sentence, it is suggested that the only route available to a defendant is appeal and where his plea was entered in a magistrates’ court before sending to the Crown Court for sentence, a referral from the Criminal Cases review Commission to the Crown Court; see R v Nori and R v YY (Practice Note)115. 113 S (an infant) v Manchester City Recorder [1971] AC 481. 114 See R v Rochdale Justices, ex p Allwork (1981) 73 Cr App R 319 at 323. 115 [2016] 1 Cr App R 28, 435 at 446.

281

7.146  Criminal court process

7.146 The Criminal Procedure Rules (as amended), r 25.5 states that a party must apply in writing to both the Crown and the court ‘as soon as practicable after becoming aware of the grounds for doing so’. 7.147 The principles, as set out within DPP v Revitt116, are that: ‘it is likely to be appropriate to permit the withdrawal of an unequivocal plea of guilty if it becomes apparent that the defendant did not appreciate the elements of the offence to which he was pleading, or if it becomes apparent that the facts relied upon by the prosecution do not add up to the offence charged.’ 7.148 The application must set out the following matters (see Criminal Procedure Rules (as amended), r 25.5.3): (i)

why it would be unjust for the guilty plea to remain unchanged;

(ii) what, if any, evidence the applicant wishes to call; (iii) identify any proposed witness; (iv) indicate whether legal professional privilege is waived, specifying any material name and date.

Sentencing 7.149 When a VOT is convicted of an offence, the background of trafficking, modern slavery or exploitation need not be completely rejected. It can still be key to mitigation. A defendant may not have acted under duress, may not be able to rely on MSA 2015, s 45 to provide a defence, and may not have been able to cause the prosecution to discontinue the case in the public interest but was nonetheless vulnerable and may even have been trafficked but without a nexus to this particular offence, as alleged. 7.150 The significance of such mitigation is exemplified in R v N; R v L117. There, sentences of an 18-month detention and training order and 20 months’ 116 [2006] EWHC 2266 (Admin), [2006] 1 WLR 3172. 117 [2012] EWCA Crim 189, [2012] 1 Cr App Rep 35, Judge LCJ giving the judgment of the Court.

282

Magistrates’ court 7.153

detention in a Young Offender Institution were imposed in the separate cases in the Crown Court. They were reduced to a four-month DTO and 12 months’ custody respectively: see [93] and [113]. 7.151 In R v L118 the court emphasised that where trafficked persons commit offences that are unconnected with their trafficking status, the facts of the trafficking can still amount to mitigation: ‘These defendants are not safeguarded from prosecution or punishment for offences which were unconnected with the fact that they were being or have been trafficked, although we do not overlook that the fact that they have been trafficked may sometimes provide substantial mitigation.’ 7.152 This spectrum of culpability was again highlighted when the court said that ‘due allowance [was] to be made in the sentencing decision for their diminished culpability’ (at [33]). This can be contrasted by those cases where the ‘fact that the defendant was a trafficked person will provide no more than a colourable excuse for criminality which is unconnected to and does not arise from their victimisation.’ 7.153 For many offences, Sentencing Guidelines apply. Section 125(1) of the Coroners and Justice Act 2009 provides119: ‘Every court— (a) must, in sentencing an offender, follow any sentencing guideline which is relevant to the offender’s case, and (b) must, in exercising any other function relating to the sentencing of offenders, follow any sentencing guidelines which are relevant to the exercise of the function, Unless the court is satisfied that it would be contrary to the interests of justice to do so.’ Notably, sentencing guidelines for drug mules was specifically revised after an academic research project120.

118 [2013] EWCA Crim 991, [2014] 1 All ER 113 at para [14]. 119 Offences committed after 6 April 2010. 120 Twelve case studies, at: https://www.sentencingcouncil.org.uk/wp-content/uploads/Drug_mules_ bulletin.pdf, last accessed 10 February 2020.

283

7.154  Criminal court process

7.154 A judge will need to determine the appropriate classification of an offence, in terms of the ‘category of harm’ and in addition the ‘culpability demonstrated by the offender’s role’. As highlighted by R v L121, the backdrop of trafficking and modern slavery is pertinent to the issue of culpability. 7.155 Typical factors highlighting a lesser role (such as those in the drugs sentencing guideline) overlap with some of the issues that face those who have been subject to a backdrop of trafficking/exploitation: •

performs a limited function under direction;

•

engaged by pressure, coercion, intimidation;

•

involvement through naivety/exploitation;

•

no influence on those above in a chain.

7.156 In the Sentencing Council Definitive Guideline on Drug Offences there is specific provision for the imposition of more lenient sentences on individuals who are properly characterised as drug mules, i.e. those who have been exploited by gangs and criminals heavily involved in the drugs trade122. 7.157 The first question for the sentencing court to resolve will be whether there is evidence to support the submission that the defendant was a trafficked person/ subject to modern slavery on the relevant occasion and acting under the control of traffickers when s/he committed the offence123. 7.158 In principle, the courts should consider non-punishment or reduced punishment having regard to the obligations under ECAT, Art 26 so there can be greater consideration of absolute or conditional discharges, community penalties or suspended sentences. 7.159 Sentencing outcomes will depend on the nature of the offence charged, which sentencing guidelines apply, including the guideline on a reduction for a guilty plea and guidelines on sentencing children. There is no Sentencing Council 121 [2013] EWCA Crim 991, [2014] 1 All ER 113. 122 So that the starting point was reduced from 10 years to 6 years. 123 R v Khalifa [2016] EWCA Crim 1967.

284

Magistrates’ court 7.161

guideline which deals with victims of trafficking who commit a crime while they are victims (save in the context of drugs mules)124. It is also worth noting that powers under the Serious Organised Crime and Police Act 2005 provide immunity from prosecution or sentence discounts for those who co-operate with the authorities. Overall, sentencing judges should take into account the age of the defendant when he became involved in the enterprise, the level of participation and the level of exploitation, taking a structured approach to the victims’ relative involvement and culpability125. 7.160 More broadly, courts should consider the following: trafficked persons are necessarily the subjects of duress, coercion, or compulsion even where such a dominant force does not amount to a defence. Where such a defence is not available, for sentencing purposes, the influence of others in the commission of a crime may give rise to relevant mitigation. It may be appropriate to submit a basis of plea to ensure the background circumstances of trafficking are properly set out. Where that influence causes a defendant to be the subject of conduct amounting or akin to slavery or servitude, and/or where the individual may have been subject to oppression126, material mitigation will be present. When considering mitigation in the context of exploitation it is helpful to consider the criteria used to sentence a perpetrator of offences of trafficking, slavery, or servitude. In the same way that aggravating features of such an offence will increase the culpability of a defendant who is to be sentenced for trafficking offences, those aggravating features will serve to mitigate the criminal conduct of a victim of exploitation/trafficking127. Similarly, aggravating features of sexual offending are focused in part on victim vulnerability128. Where an offender has a particular vulnerability, this can amount to a mitigating factor. Information as to the individuals subject to trafficking and modern slavery ought to be provided to probation in advance of any pre-sentence report being prepared. Past reports such as psychological reports, or independent trafficking expert reports might also assist a court in understanding the full complexity of an individual’s exploitation prior to the commission of an offence. 7.161 A  practical approach to mitigation on behalf of a trafficked person who has committed a criminal offence is to consider the elements of the criminal offence of coercive control; see the Serious Crime Act 2015, s 76. The essential 124 Sentencing Council Guideline for Drug Offenders, at: www.sentencingcouncil.org.uk/wp-content/ uploads/Drug_Offences_Definitive_Guideline_final_web1.pdf and see: www.sentencingcouncil.org. uk/news/item/courts-issued-with-new-guideline-for-sentencing-drug-offenders/, both last accessed 11 January 2018. 125 R v N; R v L [2012] EWCA Crim 189, [2013] QB 379. 126 R v SK [2011] EWCA Crim 1691, [2012] 1 All ER 1090. 127 R v N; R v L [2012] EWCA Crim 189, [2013] QB 379. 128 A-G’s Reference (No 126 of 2014) (Jumale) [2015] 1 Cr App Rep (S) 65.

285

7.162  Criminal court process

elements of the offence set out features of a trafficker or exploiter’s criminal behaviour. Those elements may be useful factors to frame as mitigating features of a trafficking victim’s behaviour: •

Is the coercion the product of repeated or ‘continuous’: continual/ continuing behaviour towards the defendant?

•

Is the coercing person/exploiter personally connected to the defendant (i.e. do they live together as members of the same family or have they previously been in an intimate personal relationship with each other)?

•

Has the behaviour had a serious effect on the defendant?

•

Did the exploiter know or ought he to have known that the behaviour would have a serious effect on the defendant?

7.162 Further it is a useful to look at the following components of coercive behaviour when sentencing victims of trafficking who commit crime129. Coercive behaviour is a continuing act or a pattern of acts of assault, threats, humiliation and intimidation or other abuse that is used to harm, punish or frighten the victim and can capture a wide range of behaviour including isolation, monitoring, controlling movement, financial abuse, threats and force, including where it causes child neglect. The behaviour does not have to have occurred within a domestic setting, e.g. the home. Trafficked persons are commonly monitored remotely by phone, social media or even spyware. 7.163 Under sentencing guidelines for young offenders, immaturity may be as important as chronological age130. However, when a young person has committed a serious offence, immaturity when balanced against age may not result in a reduced sentence131. Following conviction and sentence, victims of trafficking may face a number of potential ancillary orders, including: • deportation; • confiscation; • compensation; •

slavery and trafficking reparation orders: orders requiring the persons against whom they are made to pay compensation to the victim of a relevant offence for any harm resulting from that offence: MSA 2015, s 8;

129 F Gerry and L Harris, Women in Prison: Is the Justice System Fit For Purpose (Lexis Nexis, 2016), available at: http://blogs.lexisnexis.co.uk/halsburyslawexchange/wp-content/uploads/sites/25/2016/11/SA-1016077-Women-in-Prison-Paper-ONLINE-FINAL.pdf, last accessed 14 December 2017. 130 R v N [2010] 2 Cr App Rep 97. 131 Asi-Akram [2006] 1 Cr App Rep (S) 260; R v B [2006] EWCA Crim 330.

286

Magistrates’ court 7.163

•

forfeiture and detention of vehicles, ships or aircraft: this applies to vehicles used or intended to be used in connection with an offence: see MSA 2015, ss 11 and 12;

•

slavery and trafficking prevention orders: post-conviction orders necessary for protecting persons from the physical or psychological harm which would be likely to occur if the defendant committed a slavery or human trafficking offence: see MSA 2015, ss 14–17;

•

slavery and trafficking risk orders: orders where a person has acted in a way which means that there is a risk that he will commit a slavery or human trafficking offence to protect persons from the physical or psychological harm which would be likely to occur if the defendant committed a slavery or human trafficking offence: see MSA 2015, ss 23 and 24;

•

sexual harm prevention orders and sexual risk orders, etc: see Anti-social Behaviour, Crime and Policing Act 2014, s 113(1), Sch 5, paras 1, 5;

•

serious crime prevention orders: the Serious Crime Act 2007, ss 19(5) and 1(3) empower the Crown Court and High Court respectively to impose conditions considered appropriate for the stated purpose of protecting the public from serious crime: this is supplemented by the examples of the types of prohibitions, restrictions or requirements provided in the Serious Crime Act 2007, s 5;

•

cash seizure and forfeiture orders;

•

restraint orders: these have the effect of freezing property anywhere in the world that may be liable to be sold to satisfy a confiscation order;

•

deprivation of property orders: these enable the court to deprive an offender of property, used, or intended to be used to commit an offence, for example a vehicle;

•

restraining orders on acquittal: these can be made if the court considers it necessary to do so to protect a person from harassment from the defendant: see Protection from Harassment Act 1997, s 5A;

•

registration on the sex offenders’ register: see the Sexual Offences Act 2003 (Notification Requirements) (England and Wales) Regulations 2012. The Home Office has introduced measures which will extend and strengthen the system of notification requirements placed on registered sex offenders (commonly referred to as the sex offenders’ register). These measures came into force on 13 August 2012 and require all offenders subject to the notification requirements under the Sexual Offences Act 2003 to notify to the police.

287

8 Special measures for victims of trafficking Michelle Brewer, Philippa Southwell, Rachel Witkin, Dr Eileen Walsh, Kalvir Kaur, Paramjit Ahluwalia and Felicity Gerry QC

General principles 8.1 A potential trafficked person/victim of modern slavery should be treated as a victim of a serious crime from the outset of preparation for any legal hearing, irrespective of which court or tribunal it is held in. It is essential that legal practitioners and judges recognise that special measures should always be put in place for victims of trafficking to enable them to give their best evidence. Such measures should be considered for complainants, appellants, claimants, respondents, witnesses, and suspects/defendants where there are trafficking indicators.

Understanding the psychological impact of human trafficking 8.2 The UNODC  Anti Human Trafficking Manual for Criminal Justice Practitioners1 considers the impact of sexual abuse and exploitation on victims of trafficking in persons. It explores how the trafficking in persons process affects the physical and mental health of a victim. It explains how the impaired health of a victim may be detrimental to the investigation and prosecution of the traffickers concerned and discusses appropriate criminal justice strategies to enable victims to cooperate with the criminal justice process.Guidance is also offered on minimising the psychological impact that investigations may have on victims of trafficking in persons2.The utility of this guidance is not confined just to criminal justice practitioners but to all legal practitioners who represent or meet victims of trafficking. It introduces the issue of trafficking and trauma as follows: ‘Most victims of trafficking will have suffered one or more traumatic events and will have adopted psychological tactics to cope with the effects 1 2

UNODC, Anti Human Trafficking Manual for Criminal Justice Practitioners, available at: https://www. unodc.org/unodc/en/human-trafficking/2009/anti-human-trafficking-manual.html, last accessed 11 February 2020, see Module 3. Ibid Module 3.

289

8.3  Special measures for victims of trafficking

of these events. To begin to understand these reactions, it is important to first understand a bit about “trauma”. What is trauma? According to experts on trauma: “The essence of trauma is that it overwhelms the victim’s psychological and biological coping mechanisms. This occurs when internal and external resources are inadequate to cope with the external threat.” Traumatic experiences suffered by victims of trafficking in persons are often complex, multiple and can occur over a long period of time. For many individuals who are trafficked, abuse or other trauma-inducing events may have started long before the trafficking process. Studies of trauma in cases of trafficking in persons have been conducted, but there are few of them. Studies so far tend to focus on trafficking for sexual exploitation but yet to cover victims from every origin location. However, they offer some guidance and conclusions, especially when they are considered in conjunction with what is generally known about trauma and anecdotal evidence from around the world. It is essential you are aware of these conclusions and you are able to identify how they might affect your work as a criminal justice practitioner. No two victims of trafficking are the same and the impact trafficking has upon each individual varies. You cannot make assumptions about how individuals might or should react. You must treat each person as an individual and on his or her own merit.’

Trauma-based mental health problems and legal proceedings 8.3 Trafficked persons suffer forms of psychological abuse and effects of physical violence which have been found to share the same fundamental components as torture3. The psychological consequences of these experiences are serious and endure long after victims have left the control of their traffickers. 8.4 It is necessary for legal practitioners to have a basic understanding of how psychological problems experienced by trafficked persons can affect their mental health and their performance in legal proceedings4. This knowledge is required not only to inform how case preparation should be undertaken but 3 OSCE, Office of Special Representative and Co-ordinator for Combatting Trafficking in Human Beings in Partnership with the Ludwig Boltzmann Institute of Human Rights and the Helen Bamber Foundation, Trafficking in Human Beings Amounting to Torture and other Forms of Ill-Treatment, Occasional Paper Series no 5 (June 2013), available at: https://www.osce.org/secretariat/103085, last accessed 11 February 2020. 4 For further reading on the impact of trauma on mental health, see Judith Herman, Trauma and recovery (1992), Basic Books, New York; on impact of trafficking, L  Ottisova, S  Hemings, LM  Howard et al, ‘Prevalence and the risk of violence and the mental health, physical and sexual problems associated with human trafficking: an updated systematic review’ (2016) 25(4) Epidemiological and Psychiatric Services 317–341.

290

General principles 8.7

also in order to make the appropriate special measures application(s) within legal proceedings. 8.5 Mental health problems that are prevalent amongst victims of trafficking include depression, anxiety, post-traumatic stress disorder (‘PTSD’)5 and Complex PTSD6. While all these problems can impair functioning, PTSD and Complex PTSD symptoms can result in particular difficulties for trafficked persons who are engaging in legal proceedings.

Post-traumatic Stress Disorder (‘PTSD’) 8.6 Trafficked persons are at particularly high risk of developing PTSD. This disorder develops after people have experienced or witnessed traumatic events which are threatening to life or physical integrity. Survivors report having been subjected to high levels of violence7. PTSD is more prevalent in people who have been intentionally harmed by other people, for example through sexual violence, serious physical assaults, and torture. The symptoms of PTSD include nightmares and flashbacks, intrusive thoughts and memories, dissociation, hyper-arousal, alterations in the person’s beliefs and affect, and avoidance of any reminders of traumatic events8.

Complex PTSD 8.7 Complex PTSD is a new diagnostic category, published in the International Classification of Diseases, 11th edition (2018)9. It includes PTSD symptoms (as outlined above) and three additional sets of symptoms which describe disturbances in self-organisation. Complex PTSD is associated with greater exposure to the types of traumas reported by victims of trafficking, such as childhood abuse and neglect, servitude, repeated rape and interpersonal violence. This is helpful in documenting the difficulties faced by trafficked persons; many of these additional problems have been long observed in survivors of trafficking but were not previously captured within a diagnostic category. Affect dysregulation involves difficulties with regulating emotions, such as finding it 5

S Oram, M Abas, D Bick et al, ‘Human trafficking and health: A survey of male and female survivors in England’ (2016) 106(6) American Journal of Public Health 1073–78. 6 Livia Ottisova, Patrick Smith, and Siân Oram, ‘Psychological consequences of human trafficking: Complex posttraumatic stress disorder in trafficked children’, 44 Behavioral Medicine 234–241. 7 Ottisova, Hemings, Howard et al (2016) (fn 4). 8 American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, 5th edn, American Psychiatric Publishing Arlington, VA. 9 ICD-11, Chapter 6, Section B, 41.

291

8.8  Special measures for victims of trafficking

hard to calm down after a period of distress, or emotional numbness, where the person does not show the expected emotional responses to a topic or event, instead appearing blank or indifferent. Trafficked persons may have a negative self-concept, such as believing that they are a failure or worthless, and in some cases, that they are to blame for harm perpetrated towards them. Some experience problems with their identity, finding that their sense of self has changed because of their traumatic experiences. Disturbances in relationships include a person having difficulty trusting others and forming close and safe relationships with other people. 8.8 It is useful for legal practitioners to know that PTSD and Complex PTSD (‘CPTSD’) are memory disorders10. This should be borne in mind when considering the consistency of accounts which have been provided by the victim at different stages of proceedings. Traumatic memories are understood to be stored in a fragmented way in the brain, meaning that a victim who has PTSD/CPTSD may not be able to provide a coherent and chronological account of his history11. Providing a consistent account of traumatic events can be even more problematic if these memories trigger distressing negative feelings, such as shame, or if the person has dissociative symptoms12. All the psychological problems outlined above may be exacerbated when victims are required to go through court proceedings, particularly in cases where they are asked to recount past traumatic events as part of this process13. 8.9 A trafficked person’s own interpretation of his history will have an impact on his provision of evidence. With traumatic memories, a person may re-experience very intense negative emotions and thoughts (such as shame, guilt, self-blame) when he recalls the memory, the impact of this on providing evidence can be significant. Providing a consistent account of traumatic events can be even more problematic if the memories trigger feelings of shame14. Shame-based memories are inclined to be particularly high when a person has a history of sexual abuse, rape and forced prostitution. Victims who feel guilt and blame themselves for some or all of their experiences may exhibit reticence in disclosing parts of

10 CR Brewin, ‘Memory and Forgetting’ (2018) 20(10) Curr Psychiatry Rep. 87. 11 J Herlihy, L Jobson and S Turner, ‘Just Tell Us What Happened to You: Autobiographical Memory and Seeking Asylum’ (2012) 26 Applied Cognitive Psychology 661–76. 12 D Bognor, J Herlihy and CR Brewin, ‘Impact of sexual violence on disclosure during Home Office interviews’ (2007) 191 British Journal of Psychiatry 75–81. 13 C  Katona and LM  Howard, Briefing Paper: The mental health difficulties experienced by victims of human trafficking (modern slavery) and the impact this has on their ability to provide testimony (Helen Bamber Foundation and Kings College London 2017), see www.helenbamber.org/wp-content/ uploads/2017/02/Briefing-Paper-Difficulties-in-providing-testimony-victims-of-modern-slavery.pdf. 14 D Bognor, J Herlihy and CR Brewin, ‘Impact of sexual violence on disclosure during Home Office interviews’ (2007) 191 British Journal of Psychiatry 75–81.

292

General principles 8.12

their account. Hence the need for lawyers and courts to have awareness of such issues and to put in place special measures. 8.10 Recalling a traumatic event in the process of providing evidence can also be re-traumatising for the victim. When a person with PTSD/CPTSD recalls a traumatic event, recollection can be experienced as if the event is happening again in the present moment. For example, if asked about an incident of rape, the victim may see images of this as if it is occurring again, hear sounds that were heard at the time, and feel the physical sensations felt during the rape. The victim may also feel the same emotions, think the same thoughts, and have the same bodily responses. In some cases, giving an account of traumas can lead to a deterioration in his mental health (see the best practice guidance below, which can support those affected to feel safer). 8.11 The UNODC Anti Trafficking Manual for Criminal Justice Practitioners15 states: ‘Levels of psychological trauma experienced by some victims (either before or during the trafficking process) may be so high that they are never going to be able to serve as witnesses in court or even give an account that can be used as the basis of intelligence.You should always be prepared to terminate an interview if necessary and seek immediate assistance for the individual. On the other hand, it is also possible that some individuals who initially present strong emotional reactions, may, with time and professional support or counselling, become perfectly capable witnesses’16. Such issues can be highly relevant to prosecutorial decision making as to whether to call a witness or charge an accused person who has been trafficked.

Non-visible physical injuries 8.12 In the context of preparing for a court or tribunal hearing, legal practitioners should bear in mind that victims may have undisclosed or non-visible physical injuries and health problems which can impede their ability to manage basic tasks and can cause them to feel ashamed or stigmatised. Some may have suffered head injuries which affect their cognitive function.Victims often feel unable to ask for help, or they lack awareness that there may be treatment available for their 15 At Module 3. 16 Module 3, at p 3.

293

8.13  Special measures for victims of trafficking

specific health needs. It should not be assumed that healthcare professionals who have worked with victims will have identified, or even considered, the full range of problems that may affect them. Healthcare records are rarely comprehensive, and significant health problems may have never been identified17.

Children and young people 8.13 Children who have been trafficked commonly develop mental health problems such as depression and anxiety disorders, PTSD18 and CPTSD19.They will often have been exposed to traumatic events and multiple forms of maltreatment which can include physical, emotional and sexual abuse. Additionally, it should be recognised that at crucial stages of their development they will have lacked appropriate caregivers or a stable home in which their needs are met. In cases where adults with a duty of care to a child (for example parents, family members, foster carers or pastoral figures) have become perpetrators who abuse and exploit them, children’s ability to form trusting and healthy relationships will have been fundamentally damaged. This can make it extremely difficult for them to trust any adults, including those who are involved in their lives now, such as social care professionals, support workers and their legal representatives. 8.14 Disruption during children’s crucial developmental years may mean that they lack the essential ‘building blocks’ of identity formation, which are necessary tools for effective psychological recovery. Children also have a narrower range of previous life and learning experiences than adults, and therefore less capacity to make sense of, and deal with the aftermath of their traumatic experiences. Childhood abuse, particularly sexual abuse and neglect, are risk factors for later commercial exploitation20. Those who have been exploited from an early age, or for a prolonged period of time, are highly likely to suffer complex, long-term mental health problems. A  history of trafficking as a child is associated with longer duration of contact with mental health services21.

17 C Ross, S Dimitrova, LM Howard et al, ‘Human trafficking and health: a cross-sectional survey of NHS professionals contact with victims of human trafficking’ (2015) BMJ 5, 8. 18 L  Kiss, NS  Pocock, V  Naisanguansri et al, ‘Health of men, women, and children in post-trafficking services in Cambodia, Thailand, and Vietnam: an observational cross-sectional study’ (2015) The Lancet 3, 3, e154–e161. 19 Livia Ottisova, Patrick Smith, and Siân Oram, ‘Psychological consequences of human trafficking: Complex posttraumatic stress disorder in trafficked children’, 44 Behavioral Medicine 234–241. 20 Karen Countryman-Roswurm and Brien Bolin, ‘Domestic minor sex trafficking: Assessing and reducing risk’ (2014) 31(6) Child and Adolescent Social Work Journal 521-538. 21 L Ottisova, P Smith, H Shetty, D Stahl, J Downs et al ‘Psychological consequences of child trafficking: An historical cohort study of trafficked children in contact with secondary mental health services’ (2018) PLOS ONE 13(3): e0192321. https://doi.org/10.1371/journal.pone.0192321.

294

Best practice methods of working with victims of trafficking for legal practitioners 8.17

8.15 Acknowledging the psychological vulnerability of children and young people who have been trafficked is crucial to their well-being and ongoing protection. Tribunals have specific guidance to follow on special measures for parties and/ or witnesses in proceedings who are under the age of 18. In any case where a young person’s age is disputed by the UK authorities, he should be given the benefit of the doubt22 and be treated first and foremost as a vulnerable witness. From a developmental point of view, it is useful to bear in mind that the maturity ‘cut off ’ point between the ‘minor’ age of 17 and the ‘majority’ age of 18 is arbitrary, and it is not always possible to determine the exact age of some young people in any case. Young adult victims of trafficking can be vulnerable because of their youth as well as their trafficking history and other factors23. Therefore, special measures can be requested due to a victim’s young age as well as any other reasons as to why he is vulnerable.

Best practice methods of working with victims of trafficking for legal practitioners General principles 8.16 Trafficking-related trauma can be considered to be cumulative because victims have often suffered human rights violations or circumstances of extreme vulnerability prior to having been trafficked, as well as during and after the trafficking process. It is the duty of legal practitioners to identify the individual vulnerabilities of their clients and be able to understand the specific challenges that can arise for them. In order to work with victims appropriately and effectively, their entire life history should be acknowledged and understood.

Expert medical evidence 8.17 It assists the court or tribunal to be provided with independent expert medical evidence which is produced in accordance with the Istanbul Protocol24. Medical documentation of physical and psychological injuries can help to minimise the risk of re-traumatisation from investigative questioning and can also be critical 22 See Chapter 3. 23 N Stanley, S Oram, S Jakobowitz et al, ‘The health needs and healthcare experiences of young people trafficked into the UK’ (2016) 59 Child Abuse and Neglect 100–10. 24 UN (1999) Istanbul Protocol (Manual on the effective investigation and documentation of torture and other cruel and inhuman degrading treatment or punishment).

295

8.18  Special measures for victims of trafficking

in explaining the difficulties that the victim may face in giving a coherent and consistent account of past events. A  medico-legal report can document any limitations on the victim’s ability to give oral testimony and recommend specific conditions that should be put in place in order to support him with this25. 8.18 However, it should not be assumed that all medical experts have detailed knowledge of the court environment, or the scope of special measures which are available. Legal practitioners should provide specific instructions, and fully advise medical experts so that they are in a position to comment on the likely impact of the court or tribunal proceedings upon the victim, and make clinical recommendations on the special measures which are likely to assist. It should be noted that there are many cases in which victims of trafficking are unable to obtain expert medical evidence that meets the standard required for court purposes, and this can create an unfair disadvantage. Special measures should be requested in every case which involves victims of trafficking, whether medicolegal documentation is available, or not. See Chapters 2 and 10 for the role of expert evidence in Tribunal proceedings.

Working appropriately and effectively with victims of trafficking 8.19 When working with victims in preparation for a court or tribunal hearing, it is important that legal practitioners refer to the guidance in The Slavery Trafficking Survivor Care Standards (2018), which are written by consensus of specialist human trafficking organisations throughout the UK and published by the Human Trafficking Foundation26. These standards are endorsed by the UK Independent Anti-Slavery Commissioner and are referred to in the Home Office published statutory guidance Modern Slavery Act 2015 – Statutory Guidance for England and Wales27.The Care standards are comprehensive and apply across a range of sectors. In particular, the standards and the statutory guidance refer to

25 JL (medical reports – credibility) China [2013] UKUT 00145 (IAC), at [26] and [27]. 26 Human Trafficking Foundation, The Slavery Trafficking Survivor Care Standards (2018), available at: https://www.antislaverycommissioner.co.uk/media/1235/slavery-and-trafficking-survivor-carestandards.pdf, last accessed 11 February 2020. 27 The guidance was pursuant to s 49(1) of the Modern Slavery Act 2016.The purpose of the Home Office statutory guidance is to support the effective identification of potential victims of slavery and human trafficking and to set out the assistance and support available for all victims, taking into account the obligations under ECAT and the EU Directive.

296

Best practice methods of working with victims of trafficking for legal practitioners 8.22

The Trauma-Informed Code of Conduct for All Professionals Working with Survivors of Trafficking and Slavery28. 8.20 The Care standards give an overview of the appropriate approach for practitioners to trafficked persons29. It contains trauma-informed methods for obtaining sensitive information and enabling full and detailed disclosure of trafficking/ slavery histories in the course of professional work. It includes simple, bestpractice methods of working with people who have mental health problems or PTSD, as well as advice on how to work appropriately with interpreters, how to manage situations in which other people accompany survivors, and how to support clients who have instilled beliefs about traffickers or have suffered traumatic experiences of ritualised violence.

Effective interviewing – best practice 8.21 Effective interviewing skills is a critical element in enabling the voice of any victim. Poor interviewing will mean that voice is restricted or even remains unheard. The trauma of the trafficking history can hinder testimony but should not prove to be insurmountable. 8.22 WHO’s Ethical and Safety Recommendations for Interviewing Trafficked Women 200330 make a number of important recommendations when interviewing trafficked women; it is our view these recommendations apply equally to all trafficked persons. In modified form for general applicability, they are: 1.

Do no harm.

2.

Know your subjects and asses the risks.

3.

Prepare referral information – do not make promises you cannot fulfil.

4.

Adequately select and prepare interpreter and co-workers.

5.

Ensure confidentiality.

6.

Ensure consent is informed and real.

28 Rachel Witkin and Dr. Katy Robjant, Helen Bamber Foundation, The Trauma-Informed Code of Conduct for All Professionals Working With Survivors of Trafficking and Slavery (2018).The full version can be found at: www.helenbamber.org and is also available, together with the online version of these standards, on the Human Trafficking Foundation’s website. 29 See Chapter 1 of the Care standards. 30 WHO, Ethical and Safety Recommendations for Interviewing Trafficked Women (2003), available at: https:// www.who.int/mip/2003/other_documents/en/Ethical_Safety-GWH.pdf, last accessed 5 August 2020.

297

8.23  Special measures for victims of trafficking

7.

Listen to and respect each trafficked person’s assessment of their situation and risks to their safety.

8.

Do not re-traumatise.

9.

Be prepared for emergency intervention.

10. Put information collected to good use. 8.23 Embedding these recommendations into interviewing techniques will allow for a victim-centered approach. There are many interviewing techniques and most have the following common elements: •

personalising the interview;

•

explaining the goals of the interview;

•

re-instating the context;

•

asking questions;

• closure. 8.24 One such technique is cognitive interviewing31. To apply this method to the interviewing of trafficking victims, the following principles should be adhered to: •

creating an optimum environment for the victim;

•

personalising the interview;

•

improving communication by helping the victim to give a complete account;

•

acknowledging the victim’s psychological needs.

8.25 To improve the accuracy of information retrieval, the victim should give a free account, presenting all the details that can be remembered whilst reinstating the context and describe events from a different perspective. This would include giving prior thought to the physical location of the interviewing room to ensure it is free from outside distracting noise and smells which may act as triggers32. 31 For an account of its creation and application, see: http://citeseerx.ist.psu.edu/viewdoc/download?doi =10.1.1.615.6444&rep=rep1&type=pdf, last accessed 5 August 2020. 32 For example, it has been found when representing victims, hearing footsteps outside an interviewing room startled the victim as it reminded him of the footsteps of the trafficker. The smell of cigarettes and ticking clocks can also act as triggers.

298

Best practice methods of working with victims of trafficking for legal practitioners 8.27

In The Cognitive Interview of Children, Teresa Jas´ekiewicz-Obydzin´ska and Ewa Wach of the Institute of Forensic Expert Opinions, Kraków33 explain how cognitive interviewing can be employed in the case of children. When interviewing children, they advise: •

sitting naturally, leaned towards the child;

•

expressing friendliness and support;

•

using eye contact frequently but not staring at the child;

•

speaking slowly using short sentences and pauses;

•

expressing your attending: nodding, ‘aha’ but not using evaluative terms such as ‘that’s right’;

•

praising the child for his efforts;

•

avoiding rapid movements or chaotic style of speaking;

•

not interrupting the child;

•

allowing breaks;

•

showing patience.

8.26 In legal practice, praising a witness can raise concerns over influencing his evidence so care should be taken as to the amount and context of praise. When employing a cognitive interviewing technique with a child, the child should be allowed opportunities to speak continuously. 8.27 For this to be an effective technique for children, the interview should follow the following phases. The opening phase: During which the interview is personalised. This may be by simple measures such as introducing yourself by name and greeting the child by name; this will serve to break down perceived barriers of hierarchy and authority. Starting a conversation on a totally unrelated matter and asking some neutral questions which the child can answer positively helps creates a sense of security. It will be recalled at this point most trafficked children will have been trafficked by adults and the concept of hierarchy and authority may be associated with negative experiences. Connected to this is how one presents, particularly at

33 Teresa Jas´kiewicz-Obydzin´ska and Ewa Wach, The Cognitive Interview of Children, available at: http://www. canee.net/files/The%20Cognitive%20Interview%20of%20Children.pdf, last accessed 5 August 2020.

299

8.27  Special measures for victims of trafficking

initial meeting, since professional dress and uniforms will serve to cement perceptions of authority. Explain the goals of the interview to the child and for the child to describe everything that comes into his mind but discourage them from guessing or inventing things. Inform the child the appointment will require concentration. Common to many child victims, testimony can be inhibited owing to fear of repercussions, including juju, and mistaken belief that since an adult has some details of the trafficking history, such as a social worker, all other professional adults will be aware. Here the need to give the instruction to tell everything becomes extremely important. Phase 2: Free narrative account and re-instating the context. At this phase, ask the child to describe his memories of the event, paraphrasing the child’s last thought without adding any detail and without interrupting the child, or asking any specific questions. If it appears the child has stopped, demonstrate patience and stay quiet. Encourage the child to try to recall more details by asking whether he remembers anything else and waiting for a few seconds. The use of nonspecific prompts may assist. The child should also be asked to re-instate the context, both physical and environmental. Cognitive interviewing states that to ensure this phase is effective, the interview should: •

Ask the child to listen to the instruction carefully.

•

Emphasise that you want to help him to recall all details of the event.

•

Give the child enough time to reinstate the context.

•

Ask questions slowly, making intentional pauses.

•

Ask one question at a time.

•

Do not continue the interview before the child re-establishes the context.

Phase 3: Asking questions. Cognitive interviewing tells us asking questions is associated with activating imaginative pictures in the child’s mind. Asking a question makes the child use an imaginative picture where they will ‘read out’ the required information. For example, if the child is asked to describe the teacher, a picture of the teacher will emerge in the child’s consciousness. If the next question concerns the same picture, for example, what was the teacher wearing, the child will continue to use the same picture. However, if the next question concerns another imaginative picture, for example, who else was with the teacher, the first picture will be abandoned, and the child will evoke another picture corresponding to the question. We are told every single act of evoking a new representation interrupts the process of memory scanning and requires some mental effort. If we then ask a question relating to the first picture, this act of hopping from representation to representation increases inaccuracy. 300

Best practice methods of working with victims of trafficking for legal practitioners 8.29

Thus, for practical purposes, to ensure effective application of this method, one should seek to exhaust questions relating to one issue before moving to the next34. At this phase it should be explained to the child that he will be asked details of the event and must describe all that comes to mind. Again, the child is to be asked not to guess or invent anything. Phase 4: Closure. The final phase should be used to summarise what the child has said, to advise of the next steps and thank him for his time and effort. He should be asked if there is anything more, he wishes to tell you. The aim of closure is so the child leaves the interview in a positive frame of mind; to help this is it useful to revert to neutral topics discussed in the rapport phase. 8.28 It is to be remembered that in all actions concerning children we must be guided by the principle of best interest and the rights enshrined in the United Nations Convention on the Rights of the Child 1989, particularly so when child victims find themselves subject to some processes which remain devoid of child friendly justice mechanisms.

Home Office Statutory Guidance on Interviewing Victims of Trafficking 8.29 Annex D  of the Home Office Modern Slavery Act 2015 – Statutory Guidance for England and Wales of March 202035 recognises the impact of the trafficking on the victim in disclosing aspects of his history, and the importance of interviews being conducted in an appropriate way to avoid re-traumatising victims, and no negative assumptions if a victim cannot recount details of his experience when assessing credibility. Disappointingly, the guidance does not discuss effective interviewing techniques which may be employed. There is reference to Achieving Best Evidence in Criminal Proceedings36 but this only applies to interviews conducted as a part of a criminal matter; there is no equivalent guidance for Home Office National Referral Mechanism (‘NRM’) interviews or for staff conducting such interviews. This omission is of concern particularly as the outcome of any NRM interview can lead to adverse credibility findings. 34 For detail on types of questions, including powerfully suggestive and linguistically complex questions, see: http://www.canee.net/files/The%20Cognitive%20Interview%20of%20Children.pdf, last accessed 5 August 2020. 35 Available at: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_ data/file/875281/March_2020_Statutory_Guidance_under_the_Modern_Slavery_Ac_2015.pdf, last accessed 5 August 2020. 36 Ministry of Justice, Achieving Best Evidence in Criminal Proceedings Guidance on interviewing victims and witnesses, and guidance on using special measures (March 2011).

301

8.30  Special measures for victims of trafficking

This is even more concerning when interview structure can consist of disjointed and closed questioning and not an open narrative. 8.30 Whilst the interviewing of children is discouraged, particularly if the information can be obtained by other avenues, it is not prohibited. The guidance, however, does state anyone interviewing a child should have had specific training on interviewing children and special provision put in place to support dialogue with children who are victims of trafficking. 8.31 Despite these positive best practice pointers, it is critical that the Home Office recognises the importance of effective interviewing techniques and provides guidance to its staff accordingly; to fail to do so continues to create circumstances which result in lack of disclosure and explanation by the victim, consequently impacting negatively upon the assessment of credibility and heightened possibility of re-traumatisation37. 8.32 As set out below (see paras 8.46–8.48), if necessary, intermediaries can be used during interviews, when lawyers take instructions or statements or when a vulnerable party or witness needs to refresh his memory from written statements. Advocates can seek the advice from the intermediary when preparing their questions and before questioning the witness or appellant38.

Special measures in Immigration and Asylum Tribunal proceedings 8.33 The First-tier Tribunal (Immigration and Asylum Chamber) Rules Consolidated version – from 1 February 2020 – contain wide-reaching powers in relation to the calling of evidence under its own Procedural Rules39. There is also a specific Practice Direction First Tier and Upper Tribunal in relation to child, 37 The related Home Office guidance Asylum interviews v. 7 of 5 June 2019 details types of questions and general sensitivities when interviewing, but again, despite having a section on interview techniques, is absent on this, see: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/ attachment_data/file/807031/asylum-interviews-v7.0ext.pdf, last accessed 5 August 2020. 38 See: https://www.theadvocatesgateway.org/images/toolkits/16-intermediaries-step-by-step-2019.pdf, last accessed 5 August 2020, at para 2.1. 39 Tribunal Procedure (First-Tier Tribunal) (Immigration and Asylum Chamber) Rules (consolidated version from 1 February 2020) and Tribunal Procedure (Upper Tribunal) Rules 2008, SI 2008/2698, as amended by SI 2018/0511 and SI 2017/1168 and reflecting the disapplication of Sch 1 (fast track rules rules).

302

Special measures in Immigration and Asylum Tribunal proceedings 8.34

vulnerable adult and sensitive witnesses40. Under its own Procedural Rules41, Practice Directions42 and Guidance43, a (potential) victim of trafficking should therefore be treated as a vulnerable witness. These powers include the power to appoint a litigation friend44 in cases where the victim is a protected person or a child45. 8.34 From the outset of any claim46 or hearing, it is essential to identify the special measures that should be sought in an appeal before the court or tribunal to ensure that the victim has effective access to justice and that his voice is fully heard. Any application for special measures which concerns a victim (or potential victim of trafficking) should consider the principles set down in the regional instruments. Although some of the regional instrument provisions are specific to victims providing evidence in criminal proceedings, the spirit of these provisions is material to special measures applications made on behalf of victims of trafficking in other disciplines. These are: •

ECAT: Article 11 – Protection of private life

•

ECAT: Article  28 – Protection of victims, witnesses and collaborators with the judicial authorities

•

ECAT: Article 30 – Court proceedings

•

EU  Trafficking Directive: Preamble (20) and (22) of the Directive and Arts 11, 12, 15

40 Practice Direction First Tier and Upper Tribunal – child, vulnerable adult and sensitive witnesses. 41 Tribunal Procedure (First-Tier Tribunal) (Immigration and Asylum Chamber) Rules 2014, SI 2014/2604, and Tribunal Procedure (Upper Tribunal) Rules 2008, SI 2008/2698, as amended by SI 2018/0511 and SI 2017/1168 and reflecting the disapplication of Sch 1 (fast track rules rules). 42 Practice Direction ‘First-tier and Upper Tribunal Child, Vulnerable Adult and Sensitive Witnesses’, issued by the Senior President, Sir Robert Carnwath, with the agreement of the Lord Chancellor on 30 October 2008. 43 In 2010, Joint Presidential Guidance Note No 2 of 2010, ‘Child, vulnerable adult and sensitive appellant guidance’ was published and is a useful aide when making an application for special measures. 44 A litigation friend can be a parent or guardian, a family member or friend, a solicitor, a professional advocate, e.g. an Independent Mental Capacity Advocate, a Court of Protection deputy or someone who has a lasting or enduring power of attorney. It is also helpful for victims of trafficking to have the support of a trafficking-specialised and independent advocate from a reputable trafficking NGO. 45 R (JS) v Secretary of State for the Home Department (litigation friend – child) [2019] UKUT 64 (IAC) and R(C) v First-tier Tribunal [2016] EWHC 707 (Admin). 46 Claim is used in two ways here. First, where a claim is being made for international protection and/ or asylum on behalf of a victim of trafficking, practitioners should consider prospectively what special measures may be needed at each stage of the process up until and including any appeal hearing (including at any interviews pre-decision). Second, prior to the issuing of a judicial review claim practitioners should consider what special measures need to be sought within the body of the claim or as interim relief (i.e. anonymity of the claim).

303

8.35  Special measures for victims of trafficking

8.35 The Court of Appeal in AM (Afghanistan) v Secretary of State for the Home Department47 gave guidance on the general approach to be adopted in law and practice by the Immigration and Asylum Tribunal48 to the fair determination of claims for asylum from children, young people and other incapacitated or vulnerable persons whose ability to effectively participate in proceedings may be limited. The court observed that sufficient steps must be taken to ensure the appellant has obtained effective access to justice, and that his voice can be heard in the proceedings that concern them49. In AM, the court held that the tribunal failed to adopt sufficient special measures. The court observed that the overriding objective in r 2 of the Tribunal Procedure Rules was ignored and there was fundamental procedural unfairness, the court concluded that the proceedings were neither just nor fair. 8.36 In RT v SSWP (PIP)50, the Upper Tribunal followed AM and confirmed that a failure of the tribunal to show it had considered the Practice Direction First Tier and Upper Tribunal – child, vulnerable adult and sensitive witnesses constituted a material error of law. Judge Poynter held that the definition of ‘vulnerable adult’ in para 1(b) of the Practice Direction remains that set out in s 59 of the Safeguarding Vulnerable Groups Act 2006 as worded on 30 October 2008.That section was revoked and replaced by the Protection of Freedoms Act 2012, but the Practice Direction is not to be read as if the reference to vulnerable adult was now a reference to the new definition. The consequence of that is that almost all potential victims of trafficking before the tribunal will come within the scope of ‘vulnerable adults’. 8.37 Whether such an error of law is material will depend on the specific facts of the case. However, Judge Poynter recognised that the practice direction needs to be updated. In the absence of comprehensive law and practice, practitioners need to be robust in seeking appropriate measures for clients exhibiting trafficking indicators and raising their trafficked status in immigration proceedings. It should be noted that in RT  Judge Poynter held that in many cases normal tribunal procedures will mean that there is no material error of law. But, where a First-tier Tribunal fails to explicitly state how it has considered the practice direction, then if an adviser can show that, had it done so, it was capable of having made a difference to the fairness of the proceedings, a material error of law will be established.

47 [2017] EWCA Civ 1123. 48 Both the First-tier (Immigration and Asylum Chamber) and Upper Tribunal. 49 [2017] EWCA Civ 1123, para 16. 50 [2019] UKUT 207 (AAC) (1 July 2019).

304

Tribunal Guidance and Practice Directions 8.39

8.38 In RT, Judge Poynter pointed out that competent representatives should state as early as possible what special measures might be needed and why. That comes from their duty to assist the tribunal in applying the ‘overriding objective’ (at r 2(3) of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 200851 that cases be dealt with ‘fairly and justly’. Writing for Child Poverty, Williams suggests the following52: ‘once the specific problems are identified, advisers need to think about how the First-tier Tribunal could alter its usual procedure to facilitate the giving of that person’s evidence … Advisers will then be in a position to write to the First-tier Tribunal in advance explaining the issue and what is needed by way of modified procedures (that can be done as a request for directions under rule 6, asking the First- tier Tribunal to decide the form of the hearing under rule 5(3)(g)) … To show that the failure to consider the PD (or failure to record how or if it considered it) is a material error, advisers will need to be able to point to some evidence which shows that, had the First-tier Tribunal considered the PD, it is at least possible that it would have altered the way in which the hearing was conducted.’

Tribunal Guidance and Practice Directions 8.39 The key features53 of the Practice Direction and Guidance note are: (i)

the early identification of issues of vulnerability is encouraged, if possible, before any substantive hearing through the use of a case management review hearing (‘CMRH’) or pre-hearing review. The purpose of early identification is to minimise exposure to harm of vulnerable individuals (Guidance [4] and [5]);

(ii) a person who is incapacitated or vulnerable will only need to attend as a witness to give oral evidence where the tribunal determines that ‘the evidence is necessary to enable the fair hearing of the case and their welfare would not be prejudiced by doing so’ (PD [2] and Guidance [8] and [9]); (iii) where an incapacitated or vulnerable person does give oral evidence, detailed provision is to be made to ensure his welfare is protected before and during the hearing (PD [6] and [7] and Guidance [10]); 51 SI 2008/2685. 52 M. Williams, ‘Vulnerable Tribunals?’, https://cpag.org.uk/welfare-rights/resources/article/vulnerabletribunals, last accessed 11 February 2020. 53 AM (Afghanistan) v Secretary of State for the Home Department [2017] EWCA Civ 1123 at para 31.

305

8.40  Special measures for victims of trafficking

(iv) it is necessary to give special consideration to all of the personal circumstances of an incapacitated or vulnerable person in assessing his evidence (Guidance [10.2]–[15]); and (v) relevant additional sources of guidance are identified in the Guidance, including from international bodies (Guidance Annex A [22]–[27]). 8.40 It will be expected that in any submissions seeking special measures, the tribunal will be referred to the Guidance and Practice Direction. A failure of the tribunal to follow the relevant practice direction and guidance for vulnerable witnesses will most likely be a material error of law54.This is particularly relevant in terms of the assessment of the credibility of the vulnerable witness/appellant (see Guidance at [13]–[15]). 8.41 An important task for a tribunal judge is to determine whether the child, vulnerable adult or sensitive witness is required to attend and give evidence at a hearing55. As set out below there are measures that can be put in place that enable evidence to be given without the witness being in attendance or the vulnerable party is in attendance but the requirement to give oral evidence is unnecessary56.

The Tribunal Procedure Rules 8.42 The Procedure Rules provide an overriding objective at r 2, which requires the tribunal and the parties, as far as practicable, to ensure that an appellant is able to participate fully in the proceedings and that there is flexibility which the tribunal can utilise to deal with a case fairly and justly. Within the rules themselves this flexibility and lack of formality is clear. The terms of rr 4 (case management), 10 (representation) and 14 (evidence and submissions) illustrate this: see AM (Afghanistan) v Secretary of State for the Home Department57.

Examples of special measures and reasonable adjustments 8.43 In AM (Afghanistan) v Secretary of State for the Home Department, the psychiatrist who had assessed AM proposed a series of arrangements to be put forward 54 AM (Afghanistan) v Secretary of State for the Home Department [2017] EWCA Civ 1123 at para 30. 55 Practice Direction First Tier and Upper Tribunal in relation to child, vulnerable adult and sensitive witnesses, para 2. 56 Ibid at para 7. 57 [2017] EWCA Civ 1123 at para 27.

306

Tribunal Guidance and Practice Directions 8.43

to the Tribunal if AM (contrary to his advice) were to give evidence. These arrangements were: (i)

informal court dress for advocates and judge;

(ii) informal venue for the hearing58; (iii) informal seating arrangements, i.e. round tables or other seating that appears less confrontational and less adversarial59; (iv) exclusion of members of the public when AM was giving evidence60; (v) restriction of people present in the court room when AM was giving evidence to legal representatives, the judge, court clerk, and where he requests one, a nominated person to support him61; (vi) questions asked by both parties to be open ended where possible and broken down so that each question is simple and self-contained62; (vii) points to be raised during cross-examination to be identified by the judge63;

58 Many victims are frightened of the power of the courts, especially those who have previous histories of prosecution or detention or prison, and those who fear the courts and authorities in their country of origin. Informal dress for court professionals and an informal venue for the hearing is very reassuring. It is helpful to use photographs and pictures which familiarise them with the layout early on in preparation for attendance at a hearing.Victims can feel well-prepared if they know in advance where the bathrooms are, and where the windows will be so that they can focus on a source of light and possibly a natural view. 59 The way that professionals are positioned in relation to victims in the court room or tribunal can have a profound effect in supporting and assisting them to be able to manage the proceedings. The best arrangements are those which avoid ‘mirroring’ any previous situations in which they may have been interrogated, interviewed, or had other negative experiences. In criminal cases in which the victim is a witness for the prosecution of a trafficker, it is helpful if they are able to meet with the judge and defending counsel prior to the hearing. Cross-examination can be harrowing for victims and a short meeting beforehand helps them to come to understand the need for an adversarial court process. 60 It is good practice to seek to secure exclusion of members of the public for the course of the entire appeal and any preliminary (CMRH) hearings where particulars of the trafficking are discussed. It is important to ensure that an application is made to keep the victim’s name anonymous, and that the name is not recorded anywhere in court materials, including on the notices for court rooms and hearings. 61 It is helpful for victims to be accompanied before, during and after the hearing by appropriate, independent advocates from trafficking-specialist NGOs. This can be especially crucial to victims’ wellbeing in relation to giving evidence. The use of independent advocates needs to be further established and recognised as best practice for victims of trafficking. 62 Low self-esteem can inhibit victims from being able to speak with clarity, specificity or sufficient confidence, especially in response to direct questions. It is helpful to run through the process of questioning with victims prior to the hearing and explain that they can answer questions at their own pace and do not have to meet the same pace as the questioner. They should know how to tell the questioner if they do not understand a question or they need it to be put to them in a way that they can better understand.Victims may come from countries in which the status of the questioner would be so much higher than theirs, that any request for more repetition or clarity would be unthinkable to them. 63 The more predictable all aspects of the court or tribunal process, the better for the victim. Due to a history of being controlled and abused in unpredictable ways, victims are much more likely than the average person to be disturbed by anything unexpected, and they may easily become anxious that they will be blamed or criticised. If they are given the opportunity to make sense of court procedures and ask questions, this reduces the risk of them misinterpreting events within the court and becoming fearful, intimidated, and potentially re-traumatised by the process.

307

8.44  Special measures for victims of trafficking

(viii) reduction of questions and responses to writing, if the appellant’s will be at risk of suffering harm as a consequence of oral evidence. Or would be unable to effectively give oral evidence even with assistance (i.e. intermediary). 8.44 In M v SSWP (PIP)64 a carer for an autistic person was permitted to support the claimant in answering by explaining questions, breaks were taken during the hearing, effort was made to avoid repeated questions. Having a support worker or carer sitting next to a vulnerable party or witness is an appropriate special measure to request, particularly if it assists the individual in staying calm65. 8.45 In AM (Afghanistan) the Court referred to the Advocate’s Gateway66 which provides a series of toolkits to assist in determining special measures and processes that can be adopted to ensure that vulnerable witnesses and parties can effectively participate in the hearing.

Intermediaries 8.46 The tribunal can permit a registered intermediary to assist the vulnerable party or witness to give evidence67.The Court of Appeal in AM (Afghanistan) referred to ‘in a rare case where an intermediary is necessary, a direction can be made for their involvement. Care should be taken to ensure that they are appropriately used and only for the parts of the hearing where there are necessary.’ 8.47 The function of the intermediary is to facilitate complete, accurate and coherent communication with the vulnerable witness or party, thus helping the overriding objective. Intermediaries are impartial, neutral officers of the court and owe their duty to the court/tribunal68.They are not expert witnesses. Their job is to facilitate communication between all parties and to ensure the vulnerable person’s understanding and participation in the proceedings. This includes making an assessment and reporting, orally or in writing, to the court/ 64 [2018] UKUT 108 (AAC). 65 See: https://www.theadvocatesgateway.org/images/toolkits/10-identifying-vulnerability-in-witnessesand-parties-and-making-adjustments-2017.pdf, last accessed 5 August 2020, at 4.2. 66 See: https://www.theadvocatesgateway.org/33-sidebar-articles/44-toolkits-latest, last accessed 5 August 2020. 67 AM (Afghanistan) v Secretary of State for the Home Department [2017] EWCA Civ 1123 at para 30. 68 See: https://www.theadvocatesgateway.org/images/toolkits/16-intermediaries-step-by-step-2019.pdf, at 2.5.

308

Tribunal Guidance and Practice Directions 8.49

tribunal about the communication needs of the vulnerable person and the steps that should be taken to meet those needs69. Intermediaries should not give an opinion on the accuracy of a witness’s or appellant’s recall of the facts or whether the individual is competent to give evidence. 8.48 It is appropriate to have a pre-hearing review if directions for appropriate treatment and questioning are required and the tribunal can invite representations by the intermediary70. Such directions can include the manner and duration of questions. In criminal proceedings it is common practice for a judge to order that counsel submit their proposed questions for vetting to an intermediary where there is one and it is expected that in appropriate cases the advocate will have prepare cross-examination in writing for consideration by the court. There is no reason that this practice cannot be adopted, where it is advised and considered necessary, in Tribunal proceedings71. Intermediaries can undertake the following in advance of a hearing to assist: (i)

carry out an assessment of the witness’s communication needs before the hearing;

(ii) attend with the witness/appellant for a pre-hearing court/tribunal visit and identify additional steps that the court/tribunal needs to take to facilitate the witness/party giving his best evidence; (iii) write an addendum report for the tribunal so that additional recommendations could be addressed at a ground rules (CMRH) hearing72.

Anonymity 8.49 In trafficking cases, where it is the claimant/appellant who is the trafficked person, an application for anonymity should be made, ensuring that the name of the victim is neither on any court documents nor displayed in any public court room or on any hearing lists. As set out in the explanatory report to the European Convention Against Trafficking in Human Beings (‘ECAT’) at 138: ‘Article 11 protects trafficking victims’ private life. Protection is essential for victims‘ physical safety, given the danger from their traffickers, but also (on account of the feelings of shame and the stigmatisation risk 69 Judicial College, Equal Treatment Bench Book (February 2018, rev’d March 2020), 2-21, para 82. 70 See: https://www.theadvocatesgateway.org/images/toolkits/16-intermediaries-step-by-step-2019.pdf, last accessed 5 August 2020. 71 Ibid at 2.7. 72 See: https://www.theadvocatesgateway.org/images/toolkits/10-identifying-vulnerability-in-witnessesand-parties-and-making-adjustments-2017.pdf, last accessed 5 August 2020.

309

8.50  Special measures for victims of trafficking

that attach to the trafficking, both for the victim and family, to preserve their chances of social reintegration in the country of origin or the receiving country.’ An application for anonymity is governed by r 13(1) of the Tribunal Procedure Rules.There is a Presidential Guidance Note on Anonymity Directions73 which at 5(iv) provides that anonymity directions will often, if not always, be made where there is a claim that the appellant would be at risk of harm and that by publishing his name and details it may cause them harm or put others at real risk of harm. It is the present practice that all international protection claims will be the subject of an anonymity order.

Private hearings 8.50 Rule 27 of the Tribunal Procedure Rules provides for private hearings. As the Anonymity Guidance Note makes clear an anonymity direction will not in itself result in a private hearing and that ‘Exclusion of the public from a hearing should be comparatively rare as long as the identity of the appellant and/or the family is protected’. In D (In the matter of D)74, Dyson J (as he then was) held that the test to be applied was ‘whether the proposed derogation from open justice is necessary in order to prevent a real risk that the administration of justice will be rendered impractical’. The protection from risk specifically for victims of human trafficking is echoed in ECAT, Art 30. Dyson J (as he then was) also quoted the comments of Lord Donaldson MR in H v Ministry of Defence75: ‘In order that the citizens be not deterred from seeking access to justice through courts it is occasionally necessary to protect them from the consequences of public scrutiny of evidence, and in particular medical evidence, of a nature that such scrutiny would prove not only embarrassing but positively damaging to them.’ 8.51 In cases where a private hearing is sought in order to protect the private life of the appellant or a witness, or the interests of a minor, the protection of private life will have to be balanced under ECHR, Art 8(2) with open justice, and the party’s rights under Art 8 balanced with the rights of the media to freedom of speech under Art 10 (see A v BBC76). See also Khuja v Times Newspapers77.There is no balancing exercise to be conducted if the risk asserted is ECHR, Art 3. 73 Presidential Guidance Note (No.2 of 2011) on ‘Anonymity Directions in the FtT (IAC)’. 74 1 CCLR 190. 75 [1991] 2 All ER 834. 76 [2014] UKSC 25, at para 48. 77 [2017] UKSC 49.

310

Special measures in criminal proceedings 8.53

Special measures in criminal proceedings Introduction 8.52 The court process is inevitably daunting, and reporting trafficking may put the witness or defendant at personal risk. 8.53 Directive 2012/29/EU establishing minimum standards on the rights, support and protection of victims of crime78, replacing Council Framework Decision 2001/220/JHA, states at paras 9 and 57: ‘(9) Crime is a wrong against society as well as a violation of the individual rights of victims. As such, victims of crime should be recognised and treated in a respectful, sensitive and professional manner without discrimination of any kind based on any ground such as race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age, gender, gender expression, gender identity, sexual orientation, residence status or health. In all contacts with a competent authority operating within the context of criminal proceedings, and any service coming into contact with victims, such as victim support or restorative justice services, the personal situation and immediate needs, age, gender, possible disability and maturity of victims of crime should be taken into account while fully respecting their physical, mental and moral integrity. Victims of crime should be protected from secondary and repeat victimisation, from intimidation and from retaliation, should receive appropriate support to facilitate their recovery and should be provided with sufficient access to justice … (57) Victims of human trafficking, terrorism, organised crime, violence in close relationships, sexual violence or exploitation, gender-based violence, hate crime, and victims with disabilities and child victims tend to experience a high rate of secondary and repeat victimisation, of intimidation and of retaliation. Particular care should be taken when assessing whether such victims are at risk of such victimisation, intimidation and of retaliation and there should be a strong presumption that those victims will benefit from special protection measures.’

78 Available at: https://eur-lex.europa.eu/eli/dir/2012/29/oj, last accessed 11 February 2020.

311

8.54  Special measures for victims of trafficking

8.54 There are further provisions in regional instruments that establish additional protections and rights of victims in criminal proceedings (see para 8.34 above). 8.55 Procedural developments in England and Wales have included the use of interpreters, special measures to assist witnesses with communication other than translation, measures to adapt the court room and processes, and other support. Victim support measures might include protection for the individual and his family members, relocation, change of identity, protection from potential retaliation or intimidation for victims and their families. Prosecutors are encouraged to meet witnesses in advance of trial. Regard should be had to the Code of Practice for Victims of Crime79 (2015) which was developed following the EU Victim’s Directive80 and the EU Trafficking Directive81, and which also incorporates the EU Child Sexual Exploitation Directive82. 8.56 Guidance from the Crown Prosecution Service (‘CPS’) sets out the requirement for prosecutors to be ‘alert to particular circumstances or situations where someone suspected of committing a criminal offence might also be a victim of trafficking or slavery’83. There is a duty of the prosecutor to make ‘proper enquiries’ in criminal prosecutions involving individuals who may be victims of trafficking or slavery (see Chapter 7). 8.57 Aside from the unfitness to plead procedure for defendants (see Chapter  7) and confirming the capacity of young children, all witnesses are presumed competent84. However, the traditional approach of requiring witness testimony in open court can be the subject of what are known as ‘special measures’.These are procedural adaptations designed to achieve the best evidence from a particular person who may have particular issues that affect his effective participation85. 79 Available at: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_ data/file/476900/code-of-practice-for-victims-of-crime.PDF, last accessed 11 February 2020. 80 Directive 2012/29/EU of the European Parliament and of the Council of 25 October 2012 establishing minimum standards on the rights, support and protection of victims of crime, and replacing Council Framework Decision 2001/220/JHA. 81 Directive 2011/36/EU of the European Parliament and of the Council of 5 April 2011 on preventing and combating trafficking in human beings and protecting its victims, and replacing Council Framework Decision 2002/629/JHA. 82 Directive 2011/92/EU of the European Parliament and of the Council of 13  December 2011 on combating the sexual abuse and sexual exploitation of children and child pornography, and replacing Council Framework Decision 2004/68/JHA. 83 CPS, Human Trafficking, Smuggling and Slavery, available at: https://www.cps.gov.uk/legal-guidance/ human-trafficking-smuggling-and-slavery, last accessed 11 February 2020. 84 YJCEA 1999, s 53(3). 85 R v Barker [2010] EWCA Crim 4, [2011] Crim LR 233; R v Lubemba [2014] EWCA Crim 2064, [2015] 1 WLR 1579.

312

Special measures in criminal proceedings 8.59

Such adaptations as are necessary are used in order to ensure a fair trial86. It is a relatively bespoke exercise, which requires an understanding of the particular issues that arise in relation to the particular person in the particular trial87. 8.58 In addition to the statutory criteria set out in the Youth Justice and Criminal Evidence Act (‘YJCEA’) 1999, ss 16–33, consideration must be given to the Criminal Procedure Rules88. In addition, detailed guidance is available in the Equal Treatment Bench Book (2018, amended at March 2020)89, the Home Office publication Achieving Best Evidence (2016)90, through the toolkits produced by The Advocate’s Gateway91, the UNODC  Anti Human Trafficking Manual for Criminal Justice Practitioners92 and The Slavery Trafficking Survivor Care Standards (2018)93.There is also the US Human Trafficking Task Force e-guide from the Office for Victims of Crime Training and Technical Assistance Center94.

Trauma – informed approach 8.59 There has been some progress in the context of trafficking to ensure that a criminal court is ‘trauma informed’, whether the victim encounters the court system as a complainant, witness or defendant95. Of significant assistance is The

86 R v Cox [2012] EWCA Crim 549, [2012] 2 Cr App Rep 63. 87 IA [2013] EWCA Crim 1308. 88 In particular Pt 18 of the Criminal Procedure Rules on measures to help a person give evidence or otherwise participate (as amended last in August 2018, and temporarily at April 2020), see https://www. justice.gov.uk/courts/procedure-rules/criminal/docs/2015/crim-proc-rules-2015-part-18-temp.pdf, last accessed 14 September 2020. 89 A  guide for judges, magistrates and all other judicial office holders, see https://www.judiciary.uk/ publications/new-edition-of-the-equal-treatment-bench-book-launched/ (amended at March 2020), last accessed 14 September 2020. 90 The Home Office Guidance ‘Achieving Best Evidence in Criminal Proceedings: Guidance forVulnerable or Intimidated Witnesses, including Children’ provides a detailed and recommended procedure. It considers planning interviews, decisions about whether the interview should be video recorded or a statement taken, preparing the witness for court and subsequent court appearances, pre-trial therapy and special measures. 91 The Advocate’s Gateway, Toolkits 1 to 18, available at: www.theadvocatesgateway.org/, last accessed 10 September 2020. 92 UNODC, Anti Human Trafficking Manual for Criminal Justice Practitioners, available at: https://www. unodc.org/unodc/en/human-trafficking/2009/anti-human-trafficking-manual.html, last accessed 11 February 2020. 93 Human Trafficking Foundation, The Slavery Trafficking Survivor Care Standards (2018), available at: https://www.antislaverycommissioner.co.uk/media/1235/slavery-and-trafficking-survivor-carestandards.pdf, last accessed 11 February 2020. 94 Available at: https://www.ovcttac.gov/TaskForceGuide/eguide/, last accessed 11 February 2020. 95 For an overview of an approach to trauma informed courts as an issue of systemic integrity, see F  Gerry, Trauma Informed Courts, available at: https://www.felicitygerry.com/felicity-delivers-avideo-presentation-on-trauma-informed-courts-at-the-third-international-advocacy-conference/, last accessed 11 February 2020) – final article forthcoming.

313

8.60  Special measures for victims of trafficking

Trauma-Informed Code of Conduct96 (see paras 8.19–8.20). Trauma-informed procedures can enhance victim engagement and decrease the potentially negative experiences which may stem from court procedure. Trauma may underlie the behaviour of trafficking victims, as it may in domestic violence or other abuse cases and may be undiagnosed and untreated (see above). 8.60 Victims of trafficking as witnesses are often extremely traumatised individuals; many will have no experience or understanding of our criminal justice system. The CPS has issued practice guidance on the provision of therapy for vulnerable or intimidated witnesses prior to a criminal trial97. It is possible for witnesses to engage in therapy prior to trial; many victims who are witnesses may already be engaging with therapy if they have had a Single Competent Authority referral. The nature of the therapy should be explained, and the CPS should be consulted so that consideration can be given to whether or not the provision of the therapy will have an impact on the criminal case. Records of therapy, including videos and tapes as well as notes and other contacts with the witness, must be maintained so that they can be produced if required during the court process, for example as part of the disclosure process.They should include details of the therapy(ies)/treatment employed, details of those persons present and the content and length of the therapy sessions. Those affected should be informed about the disclosure of their private information and given the opportunity to consent or refuse. Disclosure of medical records to the defence and/or to third parties is the subject of some guidance and review98. Since 2018, the CPS has been subject to a disclosure improvement plan99. 8.61 Pre-trial therapy for children has been the subject of guidance which may be relevant to victims of trafficking100.The purpose is to provide emotional support and counselling to decrease distress or psychological symptoms and behaviour 96 Rachel Witkin and Dr. Katy Robjan, The Trauma-Informed Code of Conduct for All Professionals Working With Survivors of Trafficking and Slavery (2018), Helen Bamber Foundation. The full version can be found at: www.helenbamber.org and is also available, together with the online version of these standards, on the Human Trafficking Foundation’s website. 97 Available at: https://www.cps.gov.uk/legal-guidance/therapy-provision-therapy-vulnerable-orintimidated-adult-witnesses, last accessed 11 February 2020. 98 See, for example, CPS, Disclosure to third parties (2019), available at: https://www.cps.gov.uk/legalguidance/disclosure-material-third-parties, last accessed 11 February 2020 and HM CPS Inspectorate, ‘Disclosure of medical records and counselling notes’ report (2013), available at: https://www. justiceinspectorates.gov.uk/crown-prosecution-service/wp-content/uploads/sites/3/2014/04/ DOMRACN_thm_Jul13_rpt.pdf, last accessed 11 February 2020. 99 Available at: https://www.cps.gov.uk/disclosure, last accessed 11 February 2020. 100 Multi-agency guidance, Provision of Therapy to Child Witnesses Prior to a Criminal Trial, available at: https://www.cps.gov.uk/legal-guidance/therapy-provision-therapy-child-witnesses-prior-criminaltrial, last accessed 11  February 2020 and Child Exploitation: Definition and Guide for Practitioners (2017), available at: https://www.gov.uk/government/publications/child-sexual-exploitationdefinition-and-guide-for-practitioners, last accessed 11 February 2020.

314

Special measures in criminal proceedings 8.63

or improve personal functioning. The provision of this is not a decision for the police or prosecutors or defence advocates but a decision to be taken by those with care of the child alongside the relevant professionals providing therapeutic assessment and support. 8.62 In addition to traditionally recognised special measures or arrangements (set out below) and, in the absence of bespoke training for the judiciary, advocates can promote the concept of a trauma-informed court in cases where it is likely that witnesses or suspects are affected by trauma. Such an approach might include engaging other court stakeholders to make specific requests for reasonable adjustment to the proceedings. This might include court staff, other advocates and support workers. There may be occasions, particularly in relation to youths, where the judge can be invited to sit at the same level as the parties and not to wear robes, thus reducing the potential for intimidation by the process and/or the persons who habitually work in the criminal courts and may be insulated against trauma by their work experiences (see above the potential positive impact these measures can have for the victim). The purpose of such changes may reduce the risk of triggering trauma and encourage meaningful interaction. Acknowledging and understanding the impact of trauma on court participants and applying The Trauma-Informed Code of Conduct101 (see para 8.19 above) may lead to more successful interactions and outcomes102.

Eligibility for special measures for witnesses in criminal proceedings 8.63 Child witnesses103, whether for the defence or the prosecution, are automatically eligible for special measures104. Adult witnesses with physical or mental impairment, who are complainants of sexual offences, or witnesses to a ‘relevant offence’ or offences under the MSA  2015, ss  1 and 2 are also automatically eligible105. Other vulnerable witnesses may be eligible for special measures if the court is satisfied that the quality of their evidence would be diminished without some adaptation of the usual process106.

101 Rachel Witkin and Dr. Katy Robjant, Helen Bamber Foundation, The Trauma-Informed Code of Conduct for All Professionals Working With Survivors of Trafficking and Slavery (2018) . 102 SAMHSA, Essential Components of Trauma Informed Judicial Practice, available at: www.nasmhpd.org/ sites/default/files/JudgesEssential_5%201%202013finaldraft.pdf, last accessed 15 December 2017. 103 Those under the age of 18. 104 YJCEA 1999, s 19. 105  Ibid. 106 YJCEA 1999, ss 16 and 17.

315

8.64  Special measures for victims of trafficking

8.64 Witnesses in fear or distress about testifying may be eligible for special measures provided the court is satisfied that the quality of their evidence is likely to be diminished by reason of that fear or distress107. This enables the court to consider the social, cultural, domestic and employment circumstances, ethnic origin, religious beliefs or political opinions and any behaviour towards the witness on the part of an accused, his family or associates108. 8.65 In relation to witnesses found to be in fear or distress about giving evidence and those giving evidence in relation to offences under the MSA 2015, ss 1 and 2, orders can be made for them to give evidence in private109 with associated restrictions on reporting110. Other statutory special measures available under the YJCEA  1999 for eligible witnesses are pre-recorded video evidence in chief111, pre-recorded cross examination112, restrictions on cross examination by the accused appearing in person113, screens114, live link115, removal of wigs and gowns116, assistance of an intermediary117 and the use of aids to communication for young or incapacitated witnesses118. Representatives will need to seek accreditation through the vulnerable witness programmes for the Crown Court119 and Youth Court120.

Child witnesses 8.66 Child witnesses are deemed eligible for numerous types of special measures as set out in the Youth Justice and Criminal Evidence Act 1999, ss 23–28, including pre-recorded evidence, an intermediary to assist with communication and/or aids to communication121. Guidance has been issued by the CPS that prosecutors must ensure that when dealing with cases involving children, the child is given 107 YJCEA 1999, ss 16 and 17. 108 YJCEA 1999, s 17. 109 YJCEA 1999, s 25 as amended by the MSA 2015, s 46. 110 YJCEA 1999, s 46. 111 YJCEA 1999, s 27. 112 YJCEA 1999, s 28. 113 YJCEA 1999, ss 34–38. 114 YJCEA 1999, s 23. 115 YJCEA 1999, s 24. 116 YJCEA 1999, s 26. 117 YJCEA 1999, s 29. 118 YJCEA 1999, s 30. 119 ICCA, Advocacy and the vulnerable (crime), available at: https://www.icca.ac.uk/advocacy-thevulnerable-crime/, last accessed 11 February 2020). 120 ICCA, Youth Justice Advocacy, available at: https://www.icca.ac.uk/youth-justice-advocacy/, last accessed 11 February 2020. 121 YJCEA 1999, s 19(1).

316

Special measures in criminal proceedings 8.67

appropriate support and there is consideration as to what is best for the child if a criminal prosecution proceeds. Examples given include the following: •

expediting cases and dealing with them with fairness and sensitivity;

•

where children have been sexually exploited, treating them as victims of abuse;

•

consideration of the use of children as witnesses, witness care and of special measures to enable them to give evidence in the best way possible in terms of quality of their evidence and reducing trauma to them;

•

engaging with other authorities and agencies to safeguard children.

8.67 In relation to child witnesses attending court, the courts in England and Wales have a much greater understanding than hitherto of vulnerability. In relation to witnesses generally, case law has developed in England and Wales and is summarised and regularly updated in the Crown Court Compendium and by The Advocate’s Gateway122. Case law has developed principles as follows123: 1.

In every case involving a vulnerable child witness, save in very exceptional circumstances, there should be a ground rules hearing.

2.

The Criminal Procedure Rules 3.9(7)(b)(v) require the court to set ground rules including, where there is more than one defendant, of the allocation of topics between them rather than repetitive questioning on the same topic of one witness.

3.

If a child is assessed as competent and the judge agrees that the child is competent, in general the child should be called and cross-examined with the benefit of special measures, while using short, simple and direct questions. The test for competence is entirely witness-specific.

4.

The court is required to take every reasonable step to encourage and facilitate the attendance of vulnerable witnesses and their participation in the trial process.

5.

An advocate must adapt to the witness, not the other way round.

6.

Judges cannot prevent appropriate questioning, but judges can put limitations on questioning. If they do, they should explain to the jury the limitations that have been ordered and the reasons for them. Judges can stop questioning when a witness becomes too distressed.There is nothing inherently unfair in restricting the scope, structure, and nature of cross examination of children nor in requiring questions to be submitted in advance.

122 Available at: https://www.theadvocatesgateway.org/toolkits, last accessed 11 February 2020. 123 R v YGM [2018] EWCA Crim 2458; R v PMH [2018] EWCA Crim 2452; R v Sandor Jonas [2015] EWCA Crim 562. R v Steven Pipe [2014] EWCA Crim 2570; R v Wills [2011] EWCA Crim 1938; R v Edwards [2011] EWCA Crim 3028; R v Lubemba [2014] EWCA Crim 2064; R v RL [2018] EWCA Crim 603; SG [2017] EWCA Crim 617; R v Zafir Dinc [2017] EWCA Crim 1206; R v B [2010] EWCA Crim 4; R v Uddin and Ali [2014] EWCA Crim 2269; R v Hamilton [2014] EWCA Crim 1555.

317

8.68  Special measures for victims of trafficking

7.

In deciding any adaptations, judges must balance the needs and welfare of the witness and the legitimate interests of the defendant, particularly where the witness is a child and/or is or has a mentally impairment or intellectual deficit.

8.

Where cross-examination is ‘robust and combative’ the judge was entitled to intervene to ensure no improper advantage is taken of a complainant’s vulnerability.

9.

Guidance from The Advocate’s Gateway toolkits and the Inns of Court College of Advocacy should be followed in questioning children. This includes asking open questions that are not ‘tagged’124.

10. Defence practitioners are under a general duty to ensure the defence case is put fully and fairly which in general should include calling the child if competent. However, contrary to established practice, there may be cases where defence counsel need not put the defendant’s case to young complainants in cross examination. There are many ways in which the parties can ensure that all relevant material is put before the jury to consider, by way of admissions and by calling other witnesses. 11. If a judge does approve a course whereby the prosecution case is challenged but the child is not to be cross-examined at all, the directions to the jury should not indicate that the child is incompetent if the child is competent and should not leave the jury with the impression that the child is not worthy of belief but that it is for the jury to assess all the evidence. 12. Comments on inconsistencies need not be made in cross-examination but can be made to the jury separately. For example, a list of admissions of behaviour or previous inconsistent statements can be put before the jury to cover those issues on which questioning is restricted.  13. The judge is entitled to put a time limit of the evidence of children. 14. The judge should give directions to juries about the difficulties faced by the parties and the need to decide without sympathy or emotion. 15. It is for a jury, not an expert, to decide whether a competent witness has given reliable evidence.

Applications for special measures for witnesses 8.68 Applications for a special measures direction must be made as soon as reasonably practicable and, in any event, within 28 days after a not guilty plea has been entered, citing the correct section that applies to eligibility. The relevant party 124 The turning of a statement into a question.

318

Special measures in criminal proceedings 8.72

must provide supporting material setting out the nature of the measures sought, the basis upon which the witness is eligible for assistance, the witness’s views on the proposed measures and why such measures would be likely to improve the quality of the evidence125. In a summary or youth court trial, judges who have ruled on a special measures application do not need to recuse themselves from hearing the substantive matter126.

Ground rules hearings 8.69 A ground rules hearing, developed by The Advocate’s Gateway, are now used by judges to make directions for the fair treatment and effective participation of vulnerable defendants and vulnerable witnesses. Courts must take reasonable steps to ensure the effective participation of vulnerable defendants and witnesses127. This might include removing wigs and gowns, screening, and advance notice of questions the advocates plan to ask. The requirements for a ground rules hearing apply to vulnerable defendants in the same way that they do to vulnerable witnesses. Where the defendant is also a victim of trafficking, there are likely to be vulnerabilities which ought to be brought to the attention of the court at a ground rules hearing so that any necessary adaptations can be considered (see the discussion of the psychological impact of human trafficking at paras 8.2–8.7 above). Measures can be adopted when evidence is given by witnesses so that a vulnerable defendant can follow the proceedings128. 8.70 CPS  Guidance now sets out specific criteria in relation to pre-trial visually recorded cross-examination (YJCEA 1999, s 28). 8.71 At the ground rules hearing the judge should discuss with the advocates how and when any limitations on questioning will be explained to the jury. 8.72 If this has not happened, or there have been any changes, the judge should discuss with the advocates how any limitations on questioning will be explained to the jury before the recording of the cross examination is played. 125 Criminal Procedure Rules 2015, r 18. 126 KL and LK v DPP (2002) 166 JP 369. 127 See The Advocates Gateway Toolkits 1 and 1a, available at: https://www.theadvocatesgateway.org/ toolkits, last accessed 11 February 2020. 128 R v Cox [2012] EWCA Crim 549, [2012] 2 Cr App Rep 63.

319

8.73  Special measures for victims of trafficking

8.73 The judge can give the jury the standard direction on special measures with a direction on the limitations that the judge has imposed on cross-examination and the reasons for them before the cross examination is played. 8.74 The judge should consider if it is necessary to have a further discussion with the advocates before their closing submissions and the summing-up on the limitations imposed and any areas where those limitations have had a material effect. In this way the advocates will know the areas upon which they can address the jury. 8.75 In the summing-up the judge should remind the jury of the limitations imposed and any areas identified where they have had a material effect upon the questions asked. 8.76 If any written directions are provided to the jury the judge should include with the standard special measures direction a general direction that limitations have been imposed on the cross-examination. 8.77 Best practice was further clarified in the case of R v YGM129, where the judge agreed to give a direction pointing out to the jury that counsel was not allowed to cross-examine the witness in the same way as he would cross examine another witness, but counsel was not allowed to make further comment in his closing speech: ‘We believe that the following is best practice in a case involving cross examination of a vulnerable witness. First, the identification of any limitations on cross-examination should take place at an early stage. We assume that this will occur at the ground rules hearing where the judge will discuss with the advocates the nature and extent of the limitations imposed and whether they are simply as to style or also relate to content. Before the witness is cross examined, it is best practice, (as recommended by the Judicial College) that as well as giving the standard special measures direction, the trial judge also directs the jury in general terms that limitations have been placed on the defence advocate. If any specific issues of content have been identified that the cross examiner cannot explore, the judge may wish to direct the jury 129 [2018] EWCA Crim 2458.

320

Special measures in criminal proceedings 8.80

about them after the cross examination is completed. On any view, the judge should direct the jury about them in the summing-up. Finally, we should add that every advocate (and trial judge) is expected to ensure that they are up to date with current best practice in the treatment of vulnerable witnesses.’

Special measures for accused persons/defendants who are trafficked persons 8.78 In cases involving accused persons who are also victims of trafficking, case preparation requires attention to how the accused person’s vulnerability is relevant. This raises issues in relation to the prosecution allegation, any defence raised and the procedure to deal with the accused’s presentation in court130. The statutory framework for witnesses expressly excludes defendants from the assistance of special measures, save for that of a child with intellectual impairment, impairment of social functioning or a mental disorder who may apply for an order to give evidence by live link131. A live link is not available for adult defendants,132 save for the particular categories within s 33A of YJCEA 1999. An application will need to be made to a court in line with Crim PR 18.15. 8.79 Over the last two decades there has been a growing recognition that young defendants should have access to effective communication arrangements to enable them to fully participate in order to receive a fair trial133. In England and Wales, the Criminal Procedure Rules 2015, PD rr 3D–3G provide the current approach to children and vulnerable adult defendants appearing in the Crown Court.This requires the particular vulnerability to be recognised and is intended to enable the accused person effectively to participate in the proceedings. This exercise ought to consider the age, maturity, identified conditions and development of the accused person concerned and all other circumstances of the case134. 8.80 The approach to be taken by criminal courts and the advocates is to ensure that the welfare of the child or otherwise vulnerable defendant is considered135. 130 R  v S  [2008]  EWCA  Crim 6; R  v Braham [2013]  EWCA  Crim 3, [2013] 1 Cr App Rep 481; R  v Thompson [2014] EWCA Crim 836. 131 YJCEA 1999, s 33A. 132 R v Ukpabio [2007] EWCA Crim 2108, [2008] 1 Cr App Rep 101; R (on the application of Hamberger) v Crown Prosecution Service [2014] EWHC 2814 (Admin). 133 R (on the application of D) v Camberwell Youth Court [2005] UKHL 4, [2005] 1 All ER 999. 134 R v H [2006] EWCA Crim 853. 135 Children and Young Persons Act 1933, s 44.

321

8.81  Special measures for victims of trafficking

The process should be adapted to ensure the defendant can comprehend the proceedings and engage fully in his defence136. In relation to suspects and defendants, case law has developed in England and Wales as follows137: 1.

In rare circumstances, an intermediary may be used for a vulnerable defendant to assist with effective participation, but it would be ‘very rare’ for an intermediary to be present for the whole trial138.

2.

The judge must make an assessment on the basis that the advocate will have undergone specific training and can conduct the case competently.

3.

Where an intermediary is not available, special arrangements should be adopted and the judge is entitled to be more interventionist than usual.

4.

It is the advocate’s duty to do what is needed for the defendant to be able fully to participate in the trial.

5.

Vulnerable defendants need not be asked questions about complex expert evidence.

It should be noted that a post-conviction diagnosis of autism may not give grounds to appeal so advocates should ensure they understand how to identify potential vulnerabilities139. 8.81 In relation to a defendant’s evidence, the procedural expectation is that an application should be made pursuant to the Criminal Procedure Rules, r 18 for a ‘defendant’s evidence direction’. Directions will be given to ensure the appropriate court adaptations are made and that the treatment and questioning of the defendant is approached in a suitable way to facilitate effective participation. The presumption is that adult defendants will be in court and, if they choose to give evidence, will do so in person but measures such as clearing the public gallery or regular breaks, the presence of a supporting person or the use of communication aids can be considered. Courts have inherent powers to ensure that a defendant receives a fair trial.These have been successfully deployed in the context of facilitating the participation of a vulnerable defendant by measures including directing that defendants have the assistance of an intermediary140.

136 R (on the application of P) v West London Youth Court [2005] EWHC 2583 (Admin), [2006] 1 All ER 477; SC v UK (2005) 40 EHRR 10. 137 R  v Anthony Cox [2012]  EWCA  Crim 549; R  v Rashid [2017]  EWCA  Crim 2; R  v Friend [2004] EWCA Crim 2661; R v Gareth Jones [2018] EWCA Crim 2816. 138 See Chapter 13 on funding for defence intermediaries. See TI v BromleyYouth Court [2020] EWHC 1204 at para 39. Albeit the appointment of an intermediary is rare, it does not follow there is a ‘high hurdle’ to overcome if an intermediary is necessary for effective participation of defendant in trial process. 139 R v Roddis [2020] EWCA Crim 396. 140 R (on the application of C) v Sevenoaks Youth Court [2009] EWHC 3088 (Admin), [2010] 1 All ER 735; R (on the application of P) v West London Youth Court [2005] EWHC 2583 (Admin), [2006] 1 All ER 477.

322

Special measures in criminal proceedings 8.84

8.82 The Criminal Practice Direction limits the use of intermediaries to those ‘most in need’. However, the provision is not regularised, as the statutory provisions allowing for defendant intermediaries are not yet in force141. There is an obvious inequality in the approach to the prosecution witnesses as compared with defendants142. However, if a defendant is a victim of trafficking and has other vulnerabilities, the work of an intermediary can be invaluable in case preparation (see below). A ground rules hearing will be an opportunity to apply for the directions to include the use of an intermediary, where the supporting evidence is sufficient to demonstrate the need. The burden falls on the defence team to ensure that the defendant’s needs have been properly identified and assessed.

Child defendants 8.83 Specific regard is to be had to the welfare of a young defendant, as required under s 44 of the Children and Young Persons Act 1933, together with Pts 1 and 3 of the Criminal Procedure Rules. Part 1 of the CPR sets out that part of the overriding objective of the Code is to ensure criminal cases are dealt with justly, and in particular includes recognising the rights of a defendant in relation to ECHR, Art 6 (as incorporated by the Human Rights Act 1998). Article 6(3) provides that: ‘Everyone charged with a criminal offence has the following minimum rights – (a) To be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him. (b) To have adequate time and facilities for the preparation of his defence. (c) To defend himself in person or through legal assistance of his own choosing, or if he has not sufficient means to pay for legal assistance to be given it free when the interests of justice so require.’ 8.84 Criminal Practice Direction I  (‘CPD  I’) at para  3D.2 highlights that the court is required to take every reasonable step to encourage and facilitate the participation of any person, including a defendant. This includes enabling a 141 YJCEA 1999, ss 33BA and 33BB. 142 R (on the application of OP) v Secretary of State for Justice [2014] 1 Cr App Rep 70.

323

8.85  Special measures for victims of trafficking

defendant to give their best evidence and to comprehend the proceedings and engage fully with their defence. Article 3 of the United Nations Convention on the Rights of the Child sets out that the best interests of the child must be a top priority in all decisions and actions that affect children. 8.85 Matters to take into account in relation to welfare considerations include143: •

any mental health problems or learning difficulties;

•

any experiences of brain injury or traumatic life experience, including exposure to drug and alcohol abuse and developmental impact this has had;

•

any speech and language difficulties and effect on ability of young person to communicate;

•

vulnerability of children and young person to self-harm, particularly within a custodial environment.

Attendance with parent/guardian at court 8.86 There is a requirement under s 34A of the Children and Young Persons Act 1933 that a parent or guardian shall be required to attend with a defendant under the age of 16 appearing before a court. Attendance maybe required where a child is over the age of 16. Where a child or young person is appearing in court it is usually appropriate for them to be produced in person at court. This is to ensure the court can properly engage with the youth and that the necessary level of engagement can be facilitated with the Youth Offending Team worker, defence representative and/or appropriate adult (CPD I, para 3N.13).

Communication adjustments 8.87 Communication needs, such as short attention span, suggestibility, and reticence in relation to authority figures, are recognised as common to defendants under 18 (CPD I, para 3F.24). As a result, consideration must be given to the communication needs of all child defendants and adapting the trial process to address any needs (see Toolkit 6 and 8 of Advocates’ Gateway).

143 Equal Treatment Bench Book, p 43.

324

Special measures in criminal proceedings 8.90

The appointment of an intermediary can be considered under a court’s inherent powers (see CPD I, para 3F.12 and C v Sevenoaks Youth Court144).

Other matters to be considered in light of CPD I 8.88 Consideration should be given as to whether robes and wigs should be worn (CPD I, para 3G.12): It is generally desirable those responsible for security of a vulnerable defendant in custody, especially if he is young, to not wear uniform and no recognisable police presence in the court room save for good reason (CPD I, para 3G.12). It will rarely be appropriate for a youth to be sentenced over a live link proceeding (see CPD I, para 3N.14). Representatives should ensure that a reporting restriction under s  39 of CYPA 1933 is sought.

Vulnerable adult defendants 8.89 Accommodating a vulnerable person’s needs is required under the Equality Act 2010, the European Convention on Human Rights, the UN Convention on the Rights of the Child and the UN Convention on the Right of Persons with Disabilities. Consideration should be given to the guidance within Section 2 of the Equal Treatment Bench Book (‘ETBB’). There is no general definition of ‘vulnerability’ under the law145. 8.90 Adult defendants who can be considered vulnerable include individuals who have experienced trauma, those with autism spectrum disorder, attention deficit (hyperactivity) disorder, mental health needs or learning disabilities, as well as those who are elderly and those with physical disabilities or health conditions (such as deafness) which may negatively affect their ability to effectively participate in the trial process. Parties should in addition be alert to potential ‘hidden’ vulnerabilities that may not be immediately apparent (Toolkit 1a Advocates Toolkit).

144 [2009] EWHC 3088 (Admin). 145 Equal Treatment Benchbook, Ch.2.

325

8.91  Special measures for victims of trafficking

8.91 The ETBB highlights potential vulnerability and thus adjustments may be needed for individuals who have been subjected to modern slavery, as well as individuals who have been subjected to domestic violence or sexual abuse. Chapter 7 of the ETBB considers the position for victims of modern slavery. This ought to be of application to VOTs who are defendants as well.The ETBB notes that victims of modern slavery are likely to be ‘vulnerable witnesses, considerably damaged by their experiences and wary of authority figures.’ Further, that protected questioning techniques may be appropriate such as short single-strand questions, focused questions on matters in dispute, reduction in use of leading questions and tag questions.

Examples of adjustments and monitoring in trial 8.92 Trial management powers should be exercised to the full where a vulnerable defendant is involved. Decisions about how procedures at trial should be adapted should be made as early as possible. •

CPD  I, para  3G.2 – It may be appropriate to arrange for a vulnerable defendant to visit, during out of court hours and before the trial or sentencing hearing, the courtroom in which the hearing is to take place, so that they can familiarise themselves with it.

•

CPD  I, para  3G.4 – If the use of live link is being considered for a defendant, they should have an opportunity for a practice session.

•

CPD I, para 3G.9 – The court ensures that at the beginning of a hearing a vulnerable defendant understands what is to take place, and further, the role of the jury is explained to them.

•

CPD I General Matters 3G – Throughout trial, the court should continue to ensure, by any appropriate means that the defendant understands what is happening and what has been said by those on the bench, the advocates and witnesses.

•

CPD I, para 3G.10 – Frequent and regular breaks will often be appropriate. A  trial should be conducted in clear language that the defendant can understand. Examination in chief and cross examination should be conducted using clear and short questions.

•

CPD  I, para  3G.12 – In the Crown Court, the judge should consider whether robes and wigs should be worn and should take account of wishes of the vulnerable defendant.

•

CPD  I, para  3G.13 – Access to the court room can be restricted, for example, limiting members of the public to those with an immediate and direct interest in the outcome. 326

Special measures in criminal proceedings 8.94

Intermediaries 8.93 The Ministry of Justice provides a scheme of registered intermediaries for vulnerable witnesses. Independent intermediaries are available for instruction for vulnerable defendants, subject to funding. They are not expert witnesses. The approach is set out in Criminal Procedure Rules, r 3.9 and the Advocate’s Gateway Toolkit 16 provides a step-by-step guide to the use of intermediaries in criminal proceedings as follows146: •

courts must take every reasonable step to encourage and to facilitate the attendance of witnesses and to facilitate the participation of any person, including the defendant;

•

the function of the intermediary is to facilitate complete, accurate and coherent communication with the vulnerable witness or vulnerable defendant;

•

intermediaries should be considered in every case involving a child witness or child defendant;

•

a ground rules hearing must take place if the defendant is vulnerable or if a vulnerable witness is due to give evidence;

•

where it is suggested that the witness or complainant should have the assistance of an intermediary, it is expected that the intermediary will meet the witness in advance, produce a report on the necessary adaptations and attend the ground rules hearing to discuss the approach with the court and the parties147.

8.94 In R (on the application of OP) v The Secretary of State for Justice and Cheltenham Magistrates Court and Crown Prosecution Service. Just for Kids Law as Intervener148 it was held that there are two roles in a trial for which an intermediary is fitted: 1.

general support, reassurance and calm interpretation of unfolding events;

2.

skilled support and interpretation with the potential for intervention and on occasion suggestion to the Bench associated with the giving of evidence.

146 The Advocate’s Gateway, Toolkit 16 ‘Intermediaries Step by Step’ (10 April 2017), available at: www. theadvocatesgateway.org/images/toolkits/16-intermediaries-step-by-step-2017.pdf, last accessed 15 December 2017. 147 The Advocate’s Gateway, Toolkits 2 and 16. 148 [2014] EWHC 1944 (Admin).

327

8.95  Special measures for victims of trafficking

8.95 Intermediaries for witnesses or defendants therefore have expertise but they are not expert witnesses. Case law has developed in England and Wales as follows149: 1.

Ground rules hearings should include the general care of the witness, including the length of questioning and frequency of breaks and the nature of the questions to be asked.

2.

A  young person in the Crown Court does not necessarily have to sit outside the dock during the trial.

3.

It is not necessary to tailor legal directions by a judge because of a defendant’s age, maturity, cognitive ability, etc.

4.

It is the task of an intermediary to provide a report and to assist as directed by the judge. The judge decides measures necessary for effective participation of the vulnerable person. At a trial a judge is not bound by rulings on these issues made by a previous judge.

5.

The expectation is that advocates will have undertaken specific training.

6.

Experts must obtain a full history of the defendant, consider it and analyse it for the benefit of the court.

Witness anonymity Sexual offences 8.96 By the Sexual Offences (Amendment) Act 1992, s 1, orders are automatic to protect the identity of complainants in alleged sexual offences listed in s 2. The prohibition can be lifted in limited circumstances: •

publicity is required by the accused to encourage witnesses to come forward, and the defence case would be seriously prejudiced otherwise; or

•

the prohibition imposes a substantial restriction on reporting, and it is in the interests of justice to order otherwise.

8.97 It is worth noting that the common expression used that a witness has ‘waived’ anonymity is a misnomer. A  witness cannot unilaterally waive a court order,

149 R v Roddis [2020] EWCA Crim 396; R v Grant-Murray and others [2017] EWCA Crim 1228; R v GrantMurray and Henry; R v McGill and Hewitt [2017] EWCA Crim 1228; R v Biddle [2019] EWCA Crim 86; R v Boxer [2015] EWCA Crim 1684.

328

Special measures in criminal proceedings 8.100

although if a complainant does reveal his identity, this would be a powerful factor in lifting any order protecting identification.

Serious gang related crime 8.98 Investigation anonymity orders can be made in relation to specified witnesses pursuant to the Coroners and Justice Act 2009, ss 74–85, where the allegation is murder or manslaughter and the death was caused by shooting with a firearm or use of a knife.The police can apply for such an order to a Justice of the Peace, who must be satisfied that there are reasonable grounds for believing that a qualifying offence has been committed, the relevant person is aged between 11 and 30 and is likely to have been a member of a criminal group who is willing to assist but is fearing intimidation or harm and it is more likely than not that he will provide information that would assist the criminal investigation.

Necessity 8.99 Otherwise, witness anonymity is governed by the Coroners and Justice Act 2009, ss 86–90 and the Criminal Procedure Rules 2015, rr 18.18–18.22. It is a special measure of ‘last practicable resort’150.The measure must be applied for in writing in advance and must satisfy three conditions: (i)

the anonymity order must be in the interests of justice where the witness would not otherwise give evidence and there would be no real harm to the public interest151; and

(ii) it must be necessary to protect the safety of the witness, another person, or to prevent serious damage to property152; and (iii) it must be consistent with receiving a fair trial153. 8.100 Withholding the name and address of a witness may be accompanied with necessary redacting from documents, use of a pseudonym, screens and voice alteration. Section 89(2) of the Coroners and Justice Act 2009 sets out a nonexhaustive list of factors for the court to consider, which is summarised below154. It is up to the court what weight to give to each factor, depending on the case 150 R v Donovan [2012] EWCA Crim 2749. 151 R v Mayers [2008] EWCA Crim 2989, [2009] 2 All ER 145. 152 R v Powar [2009] EWCA Crim 594, [2009] 2 Cr App Rep 120; R v Khan [2010] EWCA Crim 1692. 153 R v Ford [2010] EWCA Crim 2250, [2011] Crim LR 475; R v Fox [2010] EWCA Crim 1280; Pesukic v Switzerland [2012] ECHR 2031; Horncastle v UK [2014] ECHR 1394. 154 R v Taylor [2010] EWCA Crim 830.

329

8.101  Special measures for victims of trafficking

in hand and dependent on what judicial directions are possible to maintain the safety of the trial155: •

the defendant’s right to know the identity of the witness;

•

the extent to which the credit of the witness is subject to challenge;

•

any evidence of dishonesty;

•

whether the witness’s evidence is the sole or decisive evidence in the case156;

•

whether the evidence can be properly challenged without the witness being identified157;

•

other reasonably practicable means to protect the witness.

8.101 If a witness gives evidence anonymously, a judicial direction must be given to ensure there is no prejudice to the accused.This has in some cases gone beyond warning against speculation, specifically to direct that it has nothing to do with the accused158.

Reporting identity of child witnesses and child defendants 8.102 For persons under the age of 18, in the youth court, reporting restrictions are automatic159. However, in trials on indictment, the power is discretionary. The Crown Court may make an order protecting the identification of children pursuant to the YJCEA  1999, s  45. The onus is on the court, but advocates should ensure an order is sought where the above anonymity restrictions do not apply. A s 45 order can only apply until the child is 18 unless the court makes a lifetime order pursuant to the YJCEA 1999, s 45A. The expectation is that a defendant will be named, but the rights of the child have been said to ‘trump’ the rights of the public to know160. In relation to trafficked children there is a powerful argument against publicity, particularly where that identification could lead to re-trafficking.

155 R v Nazir [2009] EWCA Crim 213; R v Willett [2011] EWCA Crim 2710, [2012] 2 Cr App Rep (S) 76; R v Okuwa [2010] EWCA Crim 832. 156 R v Davis [2008] UKHL 36, [2008] 1 AC 1128; Al Khawaja v UK (2012) 54 EHRR 807. 157 R v Donovan [2012] EWCA Crim 2749. 158 R v Nazir [2009] EWCA Crim 213; R v Willett [2011] EWCA Crim 2710, [2012] 2 Cr App Rep (S) 76 and see Crown Court Compendium, chs 3–8. 159 CYPA 1933, s 49. 160 R v Lee [1993] 2 All ER 170, [1993] 1 WLR 103; R v Cormick [2015] EWCA Crim 110, [2015] 1 Cr App Rep (S) 483.

330

Special measures in criminal proceedings 8.106

Adult defendant anonymity 8.103 Save for the provisions of the Education Act 2011, which makes it a criminal offence to publish material identifying a teacher accused of a criminal offence against a child at his school until the teacher is charged, and save for the principles discussed in R v GL and R v N on 23 November 2017161 (see para 9.35 ff), there is no specific power to anonymise an adult defendant. However, prosecution obligations to investigate whether a suspect is a victim of human trafficking suggest that the investigatory approach to such cases should take the approach of treating the suspect as a witness until charge162. 8.104 However, where a trafficked person is suffering fear of reprisals from traffickers if identified, in R v L; R v N, the Court of Appeal recognised the following163: ‘Article 28 of the CE Convention requires effective and appropriate protection from potential retaliation or intimidation, during and after investigation and prosecution of perpetrators, for victims and others who assist in the investigation and prosecution of crimes committed by traffickers. Disclosing names and details of victims and the accounts of their exploitation, which might involve disclosing the names of their traffickers in criminal or civil proceedings, may well hinder any future investigation of traffickers or a victim’s willingness to co-operate with that investigation’. 8.105 The Court of Appeal also observed in R  v L; R  v N164 that ‘the need for consistency and the UK’s obligations generally, we accept that it would, in principle, be desirable for the Court of Appeal Criminal Division to follow the practice adopted by the Civil Division and the Tribunals of anonymising the applicant in cases raising asylum and international protection issues.’ 8.106 The qualified right to privacy has some influence on restricting positive publication of ongoing investigations: current police guidance on releasing

161 [2017] EWCA Crim 2129. 162 CPS guidance on suspects in a criminal case who might be victims of trafficking or slavery, available at: www.cps.gov.uk/legal/h_to_k/human_trafficking_and_smuggling/#a25. 163 [2017] EWCA Crim 2129, at [10]. 164 Ibid, at [15].

331

8.107  Special measures for victims of trafficking

details and images of suspects requires balancing the risk to the public and the legitimate purpose, necessity and proportionality165. 8.107 Regulation of publicity to ensure a fair trial is governed by the Contempt of Court Act 1981, which can include postponing reporting of proceedings until the conclusion of the trial or related proceedings and restricting publicity of the defendant’s identity where naming would lead to the complainant being identified (note that this is almost invariably achieved by not naming the complainant himself). 8.108 The Judicial College’s guide, Reporting Restrictions in the Criminal Courts166, is aimed at assisting the lower courts in reaching decisions as to whether they can or must depart from the open justice principle and, if so, to what extent. The Guide sets out the statutory exceptions to the open justice principles, both automatic and discretionary. It does not provide any specific guidance for cases in the Court of Appeal Criminal Division167.

Applications to move proceedings 8.109 Where an accused person raises human trafficking/modern slavery as a defence, he is required to attend a court local to where he has offended or been apprehended. It should be borne in mind that this may require travel to a ‘danger or high-risk area’, where his traffickers may still operate. Not only does this raise safeguarding issues, but it also causes additional anxiety for the trafficking victim defendant. Such issues can provide a basis for an application to move proceedings to a different court centre. 8.110 Further consideration should be had to the means of the trafficking victim defendant, if the proceedings are being held in a court that is a considerable distance from his address.Victims of modern slavery should be accommodated 165 ACPO, Guidance on releasing images of suspects or defendants, available at: http://library.college.police. uk/docs/acpo/ACPO-Guidance-Release-Images-Suspects-Media.pdf; ACPO, Guidance from the Communication and Advisory Group (2010), available at: http://news.npcc.police.uk/Clients/NPCC/ ACPO%20CAG%20guidance.pdf; and ACPO, Guidance on relationships with the media (May 2013), available at: www.npcc.police.uk/documents/reports/2013/201305-cop-media-rels.pdf, all accessed on 15 December 2017 See also CPS guidance on media relations, available at www.cps.gov.uk/publications/ agencies/mediaprotocol.html, last accessed 5 August 2020. 166 April 2015 (revised May 2016). 167 See Chapter 9 for anonymity for applicants in the Court of Appeal Criminal Division.

332

Special measures in criminal proceedings 8.111

in locations that are secure and safe. Many are housed a considerable distance away and will have insufficient funds to travel to court. In such circumstances, consideration must be given to an application to move the proceedings if this will not place the individual in further danger. Section 75 of the Senior Courts Act 1981 regulates the place of trial.Variation of venue is governed by s 76.The defendant or the prosecutor, if dissatisfied with the place of trial as fixed by the magistrates’ court, or by the Crown Court, may apply to the Crown Court for a direction, or further direction, varying the place of trial; and the court shall take the matter into consideration and may endorse or refuse the application, or give a direction not in compliance with the terms of the direction sought, as the court thinks fit. Either party may apply for a change of venue. Reasons may include possible prejudice to a defendant, or where the nature of the case has provoked particular public hostility, but the reasons cannot include securing a multiracial jury168. Whilst witness or victim intimidation is not a specific criterion, it should be a factor the court can take into account in order to comply with the protective procedural requirements.

Applications to hold a Crown Court hearing in camera 8.111 In addition to an application for a court to be cleared as a special measure for vulnerable witnesses under the YJCEA  1999169, there is a discretion to hold proceedings or parts of proceedings in the absence of the public and the press, known as ‘in camera’ where such a course is necessary for the administration of justice and national security. The Criminal Procedure Rules 2015, r 16.10 requires a prosecutor to make an application for proceedings to be held in camera for reasons of national security or for the protection of the identity of a witness or any other person. Given that trafficking can occur in the context of terrorism, this is a procedure that could arise in those types of cases.

168 R v Ford [1989] QB 868, [1989] 3 All ER 445; R v Bansall [1985] Crim LR 151. 169 A special measure direction is available to exclude persons from the court during the giving of a witnesses evidence, if proceedings relate to offence under s1 or 2 of MSA 2015; see s 25 of YJCEA as amended post s 46(3) of MSA 2015.

333

9

Criminal appeal process

Ben Douglas-Jones QC, Michelle Brewer, Philippa Southwell and Paramjit Ahluwalia

Introduction 9.1 It is a common occurrence that victims of human trafficking and modern slavery are overlooked by the criminal justice system, both post and pre-enactment of the Modern Slavery Act 2015 (‘MSA  2015’)1. This is often because victims do not make disclosures regarding their exploitation until after conviction, or because trafficking indicators have been overlooked by their legal representatives, the prosecution, and the courts at the time of conviction. Trafficking in human beings remains a very serious concern, both in the UK and worldwide. The number of cases coming before the appellate courts demonstrates the underlying complexities and systemic failures in such cases. 9.2 It is important that prima facie unsafe convictions are challenged as soon as they come to light for several reasons. Many foreign national victims will be subject to immigration proceedings, such as automatic deportation or deportation as conductive to the public good, which is triggered by the conviction2. The criminal court could order deportation3. British nationals may be deprived of their British citizenship4. Many victims who decide to cooperate with the authorities about their trafficking situation and background circumstances may have unchallenged convictions as a result of their exploitation and may be treated as having bad character for any subsequent criminal case against their traffickers, where they are a complainant. These convictions should be scrutinised with a view to challenging them, even if they are significantly out of time, or spent5. 9.3 Setting aside convictions plays an important part in the rehabilitation and self-identification process for victims. Many may go on to enter education or employment6, certain types of convictions will directly affect eligibility onto a 1 2 3 4 5 6

See the defence of slavery: MSA 2015, s 45. UK Borders Act 2007, s 32 and Immigration Act 1971, s 3(5)(a). Immigration Act 1971, s 3(6). British Nationality Act 1981, s 40. See Chapter 13 on funding and the sufficient benefit test. Example of employment opportunities and progression as a carer being hindered by conviction – R v GB [2020] EWCA Crim 2.

335

9.4  Criminal appeal process

course or employment and hinder a victim’s re-integration back into society. It is also necessary for convictions to be set aside before a defendant may qualify for compensation under the various schemes (see Chapter 12).

Appeals to the Crown Court 9.4 There is an automatic right of appeal to the Crown Court against sentence and/or conviction in the magistrates’ court7. 9.5 An appeal notice must be served on the magistrates’ court officer and every other party8.The appeal notice needs to identify the issues, give notice of which witnesses the appellant would seek to question and set out whether the issues in the Crown Court differ from those in the magistrates’ court9. In addition, the application should set out any extension of time limit sought. Notices of appeal10 must be served not more than 21 days after the final disposal of the case11. The Crown is required to serve a respondent’s notice within 21 days after the service of the appeal notice for appeals against conviction if the appeal is contested12. 9.6 A defendant may appeal from a magistrates’ court to the Crown Court under the Magistrates’ Courts Act 1980, s 108, only in the following circumstances: (i)

if he pleaded guilty, against his sentence;

(ii) if he did not plead guilty, against the conviction and sentence. 9.7 The limited scope of an appeal where the defendant pleaded guilty in the magistrates’ court is a significant issue for victims of trafficking for criminal exploitation.Victims of modern slavery/trafficking for criminal exploitation are frequently advised to plead guilty by trial representatives or have entered pleas 7

Magistrates’ Courts Act 1980, s 108(1). By s 148(1) of the 1980 Act, the right of appeal includes to the youth court. 8 CrimPR, 34.2. 9 See CrimPR 34.3 10 See www.justice.gov.uk/courts/procedure-rules/criminal/docs/october-2015/acc001-eng.pdf, last accessed 14 December 2017. 11 CrimPR 34.2(2). 12 CrimPR 34.5.

336

Introduction 9.10

when unrepresented. In those circumstances an application to the Criminal Cases Review Commission (‘CCRC’) can be made. In R v Nori and R v YY (Practice Note),13 Sir Leveson P  giving the judgment of the Court recognised the importance of CCRC referrals to the Crown Court, when setting out a directive that the CCRC should ordinarily not be involved in appeals to the Court of Appeal Criminal Division unless there had been a prior, unsuccessful, appeal: ‘We recognise that appeals from the magistrates’ court to the Crown Court after a plea of guilty have to be processed through the CCRC because of the constraints placed on the Crown Court (sitting on appeal) in relation to unequivocal pleas of guilty: see s.108(1) of the Magistrates’ Courts Act 1980 and decisions such as R. v McNally (1954) 38 Cr. App. R. 90 and S (An infant) v Recorder of Manchester [1971] A.C. 481.’ 9.8 Consideration should be made into first seeking an application to reopen the proceedings under the Magistrates’ Courts Act 1980 (‘MCA 1980’), s 142. The advantage of this course is that such an application can be dealt with in a matter of weeks, rather than the much longer period if the matter is initially deal with by the CCRC. In the event of an unsuccessful application to re-open, an application to the CCRC can then be made.

Applications to re-open cases under s 142 9.9 Section 142 of the MCA  1980 confers upon the magistrates’ court a power to rectify mistakes. Thus, s 142(2) enables a convicted defendant (whether he pleaded guilty or not guilty) to ask the magistrates to set the conviction aside. 9.10 The power of the magistrates’ court to re-open a conviction is provided by the MCA 1980, s 142(2). This allows that: ‘Where a person is convicted by a magistrates’ court and it subsequently appears to the court that it would be in the interests of justice that the case should be heard again by different justices, the court may so direct’. The applicable test is in the interests of justice, which has a broad application.

13 [2016] 1 Cr App R 28, 435 at 446.

337

9.11  Criminal appeal process

9.11 Criminal Procedure Rule 24.18 (4) provides that a party must apply in writing as soon as reasonably practicable after the conviction or order that the party wants the Court to set aside. The application needs to be served on the court officer and each other party, setting out why the conviction should be set aside and identify any witness the defendant wishes to call. 9.12 Section 142(2) was considered in R  v Croydon Youth Court, ex p DPP14, in which the defendant sought to reverse his guilty plea, relying upon s 142(2). The matter was re-opened and a re-hearing directed by different justices15. In R (on the application of Williamson) v City of Westminster Magistrates’ Court16 the argument advanced was that the claimant received incompetent advice from his solicitor, in relation to the strength of CCTV evidence and misrepresentation of the existence of a witness relating to an allegation of being drunk and disorderly and assault. The court held that the purpose of s 142(2) was to enable the court to correct mistakes, but in limited circumstances; it was not a power equivalent to a full appeal to the Crown Court or High Court, nor was it a power of general review. In Williamson the court concluded that it did have the power to remit the matter in Williamson but declined to do so. Williamson is arguably distinguishable from cases where a victim of trafficking is not advised by his representatives that he has a defence in law, or is not advised of his rights under the various legal frameworks for non-punishment and non-prosecution in the context of human trafficking (see Chapters 1 and 5). 9.13 There is no statutory time limit to making an application to re-open, although 28 days should be used as a guide. Applications made with significant delays may be refused on interests of justice grounds17. However, it is likely that applications to re-open convictions involving victims of human trafficking will be well outside 28 days, and in some cases several years after the conclusion of a case. Substantial reasons should be given regarding the delay in making the application; commonly these would be that the victim of trafficking was unaware of the proceedings and was convicted in his absence as a result of being trafficked or re-trafficked, or has only been identified as a victim of trafficking post-conviction, or was advised to plead guilty by trial representative and was not advised of any defence available to them at the time and has since been advised by new representatives. The Court of Appeal have entertained late

14 [1997] 2 Cr App Rep 411. 15 The Director of Public Prosecutions applied for a judicial review. 16 [2012] EWHC 1444 (Admin), [2012] 2 Cr App Rep 24. 17 Ibid.

338

Introduction 9.16

appeals concerning victims of trafficking who did not disclose their trafficking experience during the first instance criminal proceedings18. 9.14 If new representatives are instructed, then where there were any failures by trial representatives to advise on relevant human trafficking law, this should be set out in the application. It should also be indicated in the application if legal professional privilege is waived (CrimPR 24.18(4)c). See below (at para 9.45) on obligations imposed on the new legal team vis a vis the previous trial representative. The courts are generally reluctant to re-open cases where a defendant was represented, so an explanation as to failure to advise on a defence under the MSA 2015, s 45, or failure to advance an abuse of process argument should be clearly set out to the court. Cases where a defendant was convicted in his absence are likely to be re-opened, as it is usually in the interests of justice for a defendant to be able to defend himself. A re-hearing will usually be the normal course19.

Committal for sentence – no bar to re-opening 9.15 Even after a case is committed for sentence, if a guilty plea has been entered in a magistrates’ court, a Crown Court judge may remit the case to the magistrates’ court if he receives credible evidence that the plea was equivocal20.

Effect of re-opening 9.16 If the matter is re-opened successfully the conviction will be set aside, as will any sentence or ancillary orders and the matter will be treated as an adjourned trial. The justices who sat on the original hearing or application to re-open the hearing cannot sit on the trial. It is then that steps should be taken to ask the CPS to review the prosecution considering its trafficking guidance21. The prosecution has the power to offer no evidence after a case has been re-opened (see Chapters 5 and 7 regarding CPS guidance, non-prosecution principles and abuse of process).

18 R v JXP [2019] EWCA Crim 1280, see para 49. 19 See R (on the application of Morsby) v Tower Bridge Magistrates’ Court [2007] EWHC 2766 (Admin). 20 R v Rochdale Justices, ex p Allwork (1981) 73 Cr App R 319 at 323; see also R v Mutford and Lothingland Justices, ex p Harber; R v East Suffolk Quarter Sessions, ex p Harber (1971) 55 Cr App R 57. 21 An abuse of process argument should also be considered, see Chapters 5 and 7.

339

9.17  Criminal appeal process

Appeals to the Court of Appeal Preparation of appeals and disclosure – defence investigation 9.17 Defence investigations play a vital part in the prospects of a successful appeal predicated on a potential victim of trafficking (‘PVOT’) claim to have committed offences because of or in connection with his trafficking status or circumstances. In appeals involving victims of slavery and human trafficking, a significant amount of preliminary work must be conducted by the defence. The objective of such preparation is often to obtain material which can be used as fresh evidence in support of a prospective applicant’s human trafficking and modern slavery claim to be or to have been a victim. 9.18 Victims may not be able to recall many details about the previous proceedings, or who their trial representatives were.The first step is to contact the convicting court to try to obtain as much information as possible. It is not necessary to ask for a certificate of conviction, although this document may contain useful information. The Court should be asked to provide basic information needed for an applicant’s representative, such as: (i) details of trial representatives; (ii) date of conviction; (iii) date of sentence; (iv) sentence received; (v) number of days spent on remand; (vi) details of Court transcribers; (vii) case number; (viii) confirmation of whether a pre-sentence report was ordered. 9.19 When contacting previous trial lawyers for their files, it important to obtain a complete set of papers, including the following: •

case papers (including access to the Crown Court Digital Case System (‘DCS’ or ‘Case-lines’), if available);

• • •

all witness statements and exhibits; interview tape/disc or full transcript of interview; copy of co-defendants’ interviews22;

22 Examples might be where a co-defendant describes at the date of interview the circumstances of exploitation.

340

Introduction 9.21

•

unused material;

•

any expert reports;

•

copy of PTPH form to see the issues raised before trial and ostensible trial issues (including, with forms from July 2019, the question of whether the defendant is a victim of modern slavery23);

•

defence statement;

•

agreed facts;

•

any basis of plea;

•

pre-sentence report if one was prepared;

•

correspondences and working file;

•

police station notes;

• instructions; •

all attendance notes;

•

counsel’s notebooks and notes;

•

any signed endorsements;

•

any previous advice on appeal.

In cases where previous representatives confirm they have destroyed the file, it is advisable to ask if they hold anything electronically by way of emails or on their digital case management system. 9.20 Subject access requests will also be necessary in cases where an applicant was either unrepresented or, in older cases, where the trial lawyers are no longer in possession of their file: the obligation is only to keep a file for six years24. 9.21 Subject access requests under the Data Protection Act 2018 can be made to the police, Ministry of Justice, CPS and Home Office. Material which contains personal information about a client can be obtained through making an application under the Data Protection Act 201825. If making a request on behalf of a client, a signed authority is needed: it is likely that certified copies of an identity document and proof of address of the client will be required when

23 See PTPH 2 guidance. As of July 2019, PTPH forms require the defence to identify defendants who are a victim of modern slavery so that appropriate orders or investigations can be made at PTPH. 24 See R v Ealing Magistrates’ Court, ex p Sahota (1997) 162 JP 73, [1997] 45 LS Gaz R 29, QBD. 25 See Pts 2 and 3 and Ch 3 of the Act.

341

9.22  Criminal appeal process

making such an application26. Most bodies will have specific subject access request forms that will need to be completed. Applications for data held by police authorities that do not fall under the Data Protection Act 2018 Pts 2 and 3 and Ch 3, can be made under the Freedom of Information Act 2000, s 1. 9.22 If any other litigation or proceedings are ongoing, such as immigration proceedings, claims against public authorities or judicial review proceedings, any witness statement taken or served in those proceedings should be obtained, and discussion with the other legal teams should take place to determine what material they hold which may be served as fresh evidence. A multi-professionals’ meeting will usually be beneficial, where there is ongoing litigation to discuss fresh evidence, witness statements, legally privileged material, and timetables. 9.23 Representatives should also consider obtaining the following documents from other legal representatives or via DPA subject access requests to the relevant bodies: (i) the competent authority file, including National Referral Mechanism (‘NRM’) referral form,all material relied upon in making the determination, interview notes, a full copy of the reasonable and conclusive grounds determinations and full reasoning, including full trafficking consideration minutes of reasonable and conclusive grounds decisions. The relevant public body is the Home Office; (ii) prison and probation files; (iii) a client’s immigration file; (iv) medical notes, including any psychological or psychiatric reports; (v) Home Office file; (vi) First-tier Tribunal (Immigration and Asylum chamber) decisions, Upper Tribunal decisions or Judicial Review judgments; (vii) material relied on for any judicial review application or claim; (viii) asylum interview; (ix) screening asylum interview and decisions made by the Secretary of State for the Home department on the claim (i.e. the Reasons for Refusal Letter); (x) all witness statements and accounts given in related proceedings;

26 See: https://ico.org.uk/for-organisations/guide-to-data-protection/guide-to-law-enforcementprocessing/individual-rights/the-right-of-access/, last accessed 14 September 2020.

342

Introduction 9.27

(xi) social services records if the individual was under 18 or under leaving care provisions at any material time. 9.24 A  statement from the applicant should be taken, and a decision should be made as to whether this is served as fresh evidence. The statement should cover background history prior to their trafficking, their trafficking, life in the UK and personal circumstances, details of the offending, any nexus between the particular offence/s and the exploitation, and instructions on what advice the applicant was given during the original proceedings. 9.25 It should also be considered best practice to work from any pre-existing witness statement, already recently taken regarding the trafficking background and exploitation in other live proceedings such as an asylum claim or judicial review claim. It is common that during the process of preparing a criminal appeal an applicant will be engaging with numerous lawyers, such as immigration, public law, and community care lawyers. By taking a joint statement, the risks of exposing a victim of trafficking (‘VOT’) to unnecessary trauma and/or generating inconsistencies and inaccuracies as a by-product of trafficking can be avoided or minimised. 9.26 Transcripts of the summing up, sentencing remarks and mitigation should be obtained. Consideration should be given to obtaining a transcript of the prosecution opening for sentence, as often the discussion between a prosecutor and a judge will reveal a failure to identify a VOT. Each court will have an exclusive provider of transcription services. The requests for transcripts will need to be made through the relevant transcriber company. Permission to obtain the transcript from the court is now generally needed via the submission of a form EX107. 9.27 As shown in R v N27, it is critical to consider the factual basis set out in the plea in mitigation by the advocate. In N, the mitigation referenced clear trafficking indicators, for example, the applicant being taken to the cannabis factory and told he would have to pay off the cost incurred for passage to the UK. Further in mitigation, it was explained he was not allowed to leave the property and was exploited. The court considered that it should have been apparent to the defence advocate, the CPS, and the judge that the applicant was a possible credible victim of trafficking. In the court’s view the prosecutor should have followed published guidance, and should have sought an adjournment, in order 27 [2019] EWCA Crim 984 at [38]-[40].

343

9.28  Criminal appeal process

to fulfil its duties to make proper enquiries and to refer the defendant through the NRM to the competent authority. 9.28 In drafting grounds of appeal, consideration should be given to the Guide to commencing proceedings in the Court of Appeal Criminal Division (August 2018)28. From October 2018, it is necessary to lodge grounds of appeal with the Court of Appeal itself, rather than the original Crown Court.

Appeal against sentence 9.29 Under the Criminal Appeal Act 1968, s 9, a defendant may appeal to the Court of Appeal against a sentence imposed by the Crown Court on indictment29: ‘(3) On an appeal against sentence the Court of Appeal, if they consider that the appellant should be sentenced differently for the offence for which he was dealt with by the Court below may— (a) quash any sentence or order which is the subject of the appeal; and (b) in place of it pass such a sentence or make such an order as they think appropriate for the case and as the court below had the power to pass or make when dealing with him for the offence; but the Court shall so exercise their powers under this subsection that, taking the case as a whole, the appellant is not more severely dealt with on appeal than he was dealt with by the court below’30. 9.30 In R  v L31 the Lord Chief Justice recognised the spectrum of culpability or criminality of victims of trafficking that applied. The court emphasised, at para 14, that offences committed which were unconnected with the status of an individual as a victim of trafficking could still amount to mitigation:

28 At: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/ file/727918/Guide-to-proceedings-in-Court-of-Appeal-Criminal-Division-0818.pdf, last accessed 5 August 2020. 29 In certain circumstances a defendant may appeal against sentence imposed by the Crown Court following conviction in the magistrates’ court, including summary offences sent to the Crown Court under the Criminal Justice Act 1988, s 41. 30 Criminal Appeal Act 1968, s 11(3). 31 [2013] EWCA Crim 991, [2014] 1 All ER 113.

344

Introduction 9.34

‘These defendants are not safeguarded from prosecution or punishment for offences which were unconnected with the fact that they were being or have been trafficked, although we do not overlook that the fact that they have been trafficked may sometimes provide substantial mitigation.’ This spectrum of culpability was again highlighted at para 33, where the Court said that ‘due allowance [was] to be made in the sentencing decision for their diminished culpability.’ 9.31 It is possible that victims will not be recognised as victims of human trafficking during sentencing, they may not have been referred into the NRM at that stage, and therefore no mitigation evidence concerning trafficking would have been placed before the sentencing court. It is possible for the Court of Appeal to consider material which the sentencing judge did not have access to, or which was not in existence at the time. 9.32 Even in cases where the criminality is not directly linked to exploitation, or in cases where an MSA 2015, s 45 defence would not apply (see Chapter 5), it may be possible to appeal against a sentence where fresh evidence regarding the defendant’s victim status has come to light. 9.33 In general, the Court will be prepared to consider fresh evidence concerning the trafficking status of an applicant/appellant before considering the strict letter of s 23 of the Criminal Appeal Act 1968. A cogent explanation is, in practice, needed as to why the evidence was not placed before the Crown Court. While this would be an exceptional course in practice, the court may order a probation report where it felt it would assist, even in cases where no previous report was prepared in the Crown Court.

Grounds of appeal against sentence 9.34 When making an application for leave to appeal against sentence, an applicant should include the ground on which the sentence is being challenged, e.g. ‘manifestly excessive’ or ‘wrong in principle’. It is likely in relation to victims of trafficking that the ground of appeal will be confined to an assertion that the sentence was manifestly excessive because of the failure to advance mitigation that attaches to a person’s status as a victim of trafficking. While the Court will not interfere with sentences which are said to be too long unless they are 345

9.35  Criminal appeal process

manifestly excessive, it may be argued that a sentence is manifestly excessive by months and in some instance’s weeks. It is important to note when dealing with victims of trafficking, any reduction in sentence is likely to have a direct impact on other ongoing proceedings, such as deportation proceedings. In cases where victims of trafficking have been recommended for deportation this is a component of the sentence and maybe the subject of an appeal32.

Common grounds of challenge on appeal against conviction 9.35 Common scenarios where an appeal is brought by a defendant, who is a victim of trafficking, have historically been as follows: (1) the defendant did not disclose that he was or self-identify as a victim of trafficking at the time of the defendant’s criminal proceedings (first instance) and there were no or few indicators present of trafficking during the criminal proceedings. After conviction, the defendant is identified either through experts, supporting organisations or by the competent authority, other statutory agencies or in other legal proceedings (i.e. immigration appeal hearings) as a victim of trafficking. The defendant’s conviction is then challenged as unsafe on the premise that: (a) ECAT, Art 26 and/or the EU Anti-Trafficking Directive, Art 8 was engaged (see Chapter 4); (b) the CPS was unaware at the time when the prosecution was brought against the defendant that the defendant was: (i)

a victim of trafficking; and

(ii) the offence for which the defendant was being tried was connected to his trafficking status; and (c) had the CPS been made aware of the defendant’s status as a victim of trafficking, it would or ‘might well’ have concluded that it was not in the public interest to prosecute the defendant33; (2) the defendant presented with trafficking indicators during the course of the criminal proceedings but the CPS failed adequately, or at all, to review whether the prosecution of the defendant was in the public interest and/ or legal representatives of the defendant did not advise at all or adequately on ECAT, Art 26 or the EU  Anti-Trafficking Directive, Art 8 and did 32 Criminal Appeal Act 1968, s 50. 33 See R v O [2011] EWCA Crim 2226 and R v LZ [2012] EWCA Crim 1867. The bulk of reported cases concern cases which preceded the coming into force of s  45, MSA  2015. Following R  v DS [2020] EWCA Crim 285, where a defendant could have availed himself of s 45, this ground of appeal may no longer be available to him. Judgment in R v A is pending from the Court of Appeal (Crim Div), which will address the issue of failure to advise a defendant of a s 45 defence at the first instance trial.

346

Introduction 9.37

not make either public interest representations to the Crown or advance an abuse of process application (see Chapter  7). The Court of Appeal requires that applications be only made to the Court after due diligence34. It is therefore necessary that any new legal appellate team apprises itself fully of what happened during the criminal proceedings that might be relevant to the grounds of challenge, and ensures the facts are correct35. In pleading this ground, either actual or implied allegations of incompetence by previous legal representatives will be made. It is therefore necessary that enquiries are made of the previous lawyers concerning the particulars of implied or actual incompetence and that they are made aware of the allegation (see para 9.45). Further, it is important to secure other objective and independent evidence to substantiate the allegations made36. Any grounds which will go to the conduct of the trial are likely to require a waiver of privilege from the defendant. A formal waiver should be lodged with the grounds, or the Court should be informed if the defendant is unwilling to give a waiver. (3) The prosecution’s public interest review is flawed by a failure on the part of the police to investigate the allegation of trafficking, thereby violating ECHR, Art 4 (specifically positive obligation to investigate a credible suspicion of trafficking) and ECHR, Art 6. A  case currently pending judgment from the ECtHR considers this submission (see VCL v UK, App No 77587/12). The Supreme Court in MS (Pakistan)37 upheld that the removal of the appellant to Pakistan before a police investigation into his alleged trafficking would breach ECHR, Art 4. 9.36 Following the coming into force of s 45 of MSA 2015 (the defence for victims of trafficking and slavery who commit criminal acts), it is arguable that the above grounds might well still apply to cases (i) involving offences to which s 45 does not provide a defence by virtue of Sch4 or (ii) where there is an allegation of an ECHR, Art 6 violation for want of an Art 4 compliant investigation (see Chapter 5). 9.37 Recently, appeals have been founded on the ground that: (1) s 45 provided a defence; but (2) the appellant’s representatives overlooked its availability; and 34 R v A [2014] EWCA Crim 567. 35 R  v McCook [2014]  EWCA  Crim 734, [2016] 2 Cr App Rep 388; see further R  v Grant-Murray [2017] EWCA Crim 1228, [2017] All ER (D) 62 (Aug), para 131. 36 In R v James Lee [2014] EWCA Crim 2928 the court highlighted that as well as approaching the trial representatives, steps should be taken to obtain objective and independent evidence in support of the grounds in order to establish the facts. 37 [2020] UKSC 9 [2020] 1 W.L.R 1373.

347

9.38  Criminal appeal process

(3) did not advise the appellant that he could have deployed the defence; and (4) that deficient advice prompted the appellant to plead guilty; therefore (5) the plea was equivocal or a nullity and the conviction unsafe. 9.38 These appeals mirror the appeals which followed the enactment of s  31 of the Immigration and Asylum Act 1999 (the provision providing a defence to refugees who commit certain document offences). That ‘refugee defence’ was frequently overlooked by representatives, who proceeded to advise clients to plead guilty, when the defence was available to them, without advising them about the defence38. Appeals founded on a failure to advise an appellant on s 31 and s 45 are a product of the statutory defence appearing in legislation separate from the legislation defining the offence. In R v Dastjerti39 the Court of Appeal Criminal Division adopted a checklist for use by an appellate court determining whether a conviction was safe following a guilty plea, where it was alleged on appeal that a defendant had not deployed a defence which had been open to him40. 9.39 Tailored to s 45(1) of MSA 2015 (the defence which applies for adults), the Dastjerti checklist would read: (1) should the applicant have been advised about the possibility of availing himself of the s 45 defence? If so, (2) was he so advised? (3) was it open to the applicant, had he been so advised, to advance the defence? (4) was it (at least) quite probable that the applicant would have been able successfully to advance such a defence? That is, was it (at least) quite probable that the applicant would have been able (a) to adduce some evidence of all of the following limbs of the defence and (b) that the prosecution would not have been able to disprove to the criminal standard any one of the following limbs of the defence: (i) that the defendant did the act (which would be an offence but for the defence) because he was compelled (if an adult) to do it; 38 See R  v Mateta [2013]  EWCA  Crim 1372, [2014] 1  WLR  1516; and R  v AM, MV, RM and MN [2010] EWCA Crim 2400, [2011] 1 Cr App R 35. 39 [2011] EWCA Crim 265 at [9]. 40 The Dasjerti checklist was adapted to the facts of R v PK [2017] EWCA Crim 486 (Sir Brian Leveson P giving the judgment of the Court), at [13] and R v Idahosa [2019] EWCA Crim 1953, at [59]. As with R v Dasjerti itself, those cases concerned the refugee defence under s 31 of the Immigration and Asylum Act 1999.

348

Introduction 9.40

(ii) if an adult, that the compulsion is attributable to slavery or to relevant exploitation; (iii) that a reasonable person in the same situation as the person and having the person’s relevant characteristics would have no realistic alternative to doing that act? For full details of s 45, as applied to both adults and children, see Chapter 5.

Fresh evidence 9.40 Section 23 of the Criminal Appeal Act 1968 provides for the receipt of fresh evidence by the Court of Appeal Criminal Division.The admission of evidence under this section is at the Court’s discretion and evidence will be admitted if it is necessary or expedient in the interests of justice (s 23(1)). Section 23(2) provides factors to be considered when deciding whether the evidence should be admitted.With an application to admit fresh evidence the Court will consider whether it is capable of belief, whether the evidence may afford a ground for allowing the appeal, whether the evidence would have been admissible in the court below and whether there was a reasonable explanation for the failure to adduce the evidence in criminal proceedings below. Chapters 5 and 6 set out the types of expert evidence relevant to appeals brought by victims of trafficking. A  large proportion of fresh evidence in trafficking cases will be the competent authority trafficking identification decision (see Chapter  2), expert evidence adduced in support of an asylum claim and findings made by immigration tribunals and any witness statements served in those proceedings. All fresh evidence needs to be accompanied by a Form W with a supporting ‘Gogana statement’41 setting out how this new evidence was obtained and why it was not deployed in the original Crown Court proceedings. Applications to adduce fresh evidence will now usually require inquiries by the court as to whether privilege has been waived. If not, then an explanation should be provided as to why it is not necessary. Recommendations to the single judge as to the steps to be followed in deciding whether to grant leave in out of time cases where ‘fresh evidence’ is said to apply, are set out in R v Singh42: ‘50. First, single judges faced with an application for leave to appeal based on fresh evidence, before making any decision, should inquire whether privilege has been waived and, if not, an explanation should be provided as to why it is not necessary. ‘51. Second, if an application reaches the single judge without a Respondent’s Notice and the single judge would be assisted by one, the 41 R v Gogana (1999) Times, 12 July. 42 [2017] EWCA Crim 466.

349

9.41  Criminal appeal process

single judge should direct the Respondent to consider the application and submit a response. 52. Third, the single judge should not simply refer an application based on fresh evidence to the full court without any consideration. Once the single judge has ascertained the position from trial representatives and the Respondent, he or she may be able to determine whether the application is potentially arguable. If it is not, the application can be rejected at that stage. If it is potentially arguable, the single judge should normally not grant applications for leave or an extension of time but should refer them to the full court. 53. Fourth, if the single judge decides to refer an application to the full court, he or she should follow the course adopted by the single judge in this case and refer it for directions. The parties should then seek to agree those directions and submit them to the Registrar for approval by the court. Only if agreement cannot be reached should it be necessary for there to be an oral hearing in relation to them.’ 9.41 When preparing an application for leave to appeal, the applicant’s representatives should consider their duty of candour to the court, in disclosing material which may undermine their application. It is best practice to provide a condensed bundle of core fresh evidence material and annex any surplus material which may assist the crown and court. 9.42 The crown will also need to consider their disclosure obligations post-conviction cases, In R (Nunn) v Chief Constable of Suffolk Constabulary43 the Supreme Court held that the common law duty of disclosure exists in addition to the statutory duty of trial disclosure created by the Criminal Procedure and Investigations Act 1996 (‘CPIA  1996’). The basis of the common law duty is fairness, and what fairness requires varies depending on the stage reached by the proceedings. There is no basis for the submission that the full ‘trial’ duty of disclosure and investigation continues indefinitely: this would be contrary to the public interest in finality and to the need for finite police resources to be appropriately applied. The extent of the common law duty post-appeal is provided in the AttorneyGeneral’s guidelines: any material coming to light that might cast doubt on the safety of the conviction should be disclosed. However, the Criminal Cases Review Commission can, in appropriate cases, make enquiry to see whether a reasonable prospect of a conviction being quashed can be demonstrated, which includes a power to direct new scientific tests and similar. Moreover, the police and prosecutors can choose to accede to representations for further enquiry 43 [2014] UKSC 37.

350

Introduction 9.44

made on behalf of convicted persons and should exercise sensible judgment in relation to such representations.

Expert evidence in appeals 9.43 In recent years, there has been a relaxation of an apparent hard-line approach by the Court of Appeal to expert evidence, previously the court had been reluctant to attach any or any significant weight to expert evidence in appeals against conviction based on a failure to identify a VOT44. R v EK45 the court was prepared to admit evidence that an applicant was suffering from a ‘freeze response’ deriving from ‘Stockholm Syndrome’. However, the court highlighted that when it came ‘to the credibility of accounts given by an applicant or appellant, it is for a jury or this court to evaluate them. It is not the function of experts to do so. When it comes to the correctness of a decision to prosecute, expert evidence is ordinarily unlikely to assist.’ However, in later cases, the court has been prepared to attach greater weight to expert evidence supporting an identification of trafficking status and circumstances of criminal exploitation46. 9.44 When considering whether expert evidence might assist the Court of Appeal, similar considerations apply to those which apply in the Crown Court; see Chapter 5. It is crucial to ensure that an expert understands the limitations of his or her duty. One of the possible reasons for the Court of Appeal’s reluctance to receive expert evidence is likely to have been that experts have provided an opinion on the ‘ultimate issue’ that an applicant is a VOT, rather than highlighting indicia of trafficking revealed through their expertise. However, as observed by the Court of Appeal47 the application of the ‘ultimate issue rule’ is vexed. Lord Taylor LCJ stated: ‘The rationale behind the supposed prohibition is that the expert should not usurp the functions of the jury. But since counsel can bring the witness so close to opining on the ultimate issue that the inference as to his view is obvious, the rule can only be … a matter of form rather than substance. In our view, an expert is called to give his opinion and 44 For the hard-line approach, see the commentary of Lord Judge in R v N; R v L [2012] EWCA Crim 189, [2013] QB 379 at 86c and the commentary of Lord Thomas in R v VSJ [2017] EWCA Crim 36, [2017] 1 Cr App Rep 33 at paras 87 and 88; R v S(G) [2018] EWCA Crim 1824, [2018] 4 WLR 167, [2019] 1 Cr App R 7, [2019] Crim LR 147 at 70; R v EK [2018] EWCA Crim 2961. See also R v D [2018] EWCA Crim 2995. 45 [2018] EWCA Crim 2961. 46 See R  v GB  [2020]  EWCA  Crim 2, [2020] 1  WLUK  128; R  v JXP  [2019]  EWCA  Crim 1280; R  v N  [2019]  EWCA  Crim 984, [2019] 6  WLUK  337; R  v S  [2019]  EWCA  Crim 1280; and R  v O [2019] EWCA Crim 1389, [2019] 7 WLUK 537. 47 R v Stockwell (1993) 97 Cr App R 260.

351

9.45  Criminal appeal process

he should be allowed to do so. It is, however, important that the Judge should make clear to the jury that they are not bound by the expert’s opinion, and that the issue is for them to decide’.

McCook correspondence 9.45 The guidance by the Lord Chief Justice in R v McCook48 makes clear that in any case where fresh representatives are instructed to advise on appeal, it is necessary for them to approach the solicitors and/or counsel who acted in the Crown Court to ensure that the factual basis upon which the grounds are premised is correct. As soon as grounds are drafted, it is best practice to send a copy of the draft grounds of appeal to the previous legal representatives. As the Court in R v Grant-Murray49 highlighted: ‘it is a wholly inadequate compliance with this duty to send the lawyers instructed at the trial the grounds of appeal and to ask for comments. Inevitably the application will be made sometime after the trial and those representing the applicant at the trial must have identified for them the issues that relate to the conduct of the trial which are relevant to the appeal. Specific questions must be formulated and specifically put. Some questions will simply be for information that is not apparent from the papers. In other cases there will be implicit criticism; in such a case there can be no shying away from putting fairly and squarely the implicit criticism of those then acting for the applicant at the trial so that the appellate court has all the information before it when it commences the consideration of the application. The fact that a trial lawyer might have retired or left the profession to take up office or for some other reason does not excuse the newly instructed advocate from pursuing such inquiries with that person.’ 9.46 Any application lodged by fresh representatives should be accompanied by a declaration that due diligence in accordance with McCook has been complied with, and must be confirmed by both the appellant solicitor and counsel on the Form NG (notice and grounds of appeal). 9.47 Questions to previous representatives will be case-specific and dependent on the grounds being argued, however, general types of questions can include: 48 [2014] EWCA Crim 734. 49 [2017] EWCA Crim 1228; para [133].

352

Introduction 9.49

•

What advice, if any, was given to the applicant regarding an NRM referral?

•

What representations, if any, were made to the CPS to review the prosecution?

•

Was the applicant advised of the non-punishment provisions in Art 26 of the Council of Europe Convention against Trafficking in Human Beings 2005 and Art 8 of the EU Trafficking Directive?

•

Was the applicant advised that he had a potential defence pursuant to s 45 of the MSA 2015?

•

What were the terms of any advice that was given to the applicant?

Decisions of Competent Authority 9.48 In many appeals, a positive conclusive grounds decision of the Competent Authority, finding that on the balance of probabilities a defendant is a VOT is made following conviction. Such a decision constitutes fresh evidence. In R v VSJ,50 the Court considered that: ‘the decision of the competent authority as to whether a person had been trafficked for the purpose of exploitation is not binding on the court but, unless there was evidence to contradict it or significant evidence that had been not considered, it is likely that the criminal courts will abide by the decision.’ 9.49 Post the above, in R v JXP,51 the Court considered the fact that the ‘Competent Authority is a specialist authority with particular expertise and knowledge in the area of trafficking.’ In that case, it considered that the ‘Minute sets out in considerable detail the applicant’s account. It clearly analysed whether that account met the requirements of trafficking and concluded that it did. We accord weight to the decision of this specialist authority.’ In R  v DS,52 the Court held that it was appropriate for the Crown to challenge the assertion that a defendant is was VOT, notwithstanding a conclusive grounds decision if there was a ‘sound evidential basis’ for doing so.

50 [2017] EWCA Crim 36, [2017] 1 WLR 3153, [2017] 1 Cr App R 33, [2017] Crim LR 817, at para 20(8). 51 [2019] EWCA Crim 1280. 52 [2020] EWCA Crim 285. See para 42.

353

9.50  Criminal appeal process

Extensions of time 9.50 An application for leave to appeal must be lodged no later than 28 days after the decision which is being appealed53. The Court has the power to grant an extension of time if it decides there is merit to the application for leave. A  significant number of appeals brought by victims of trafficking against their convictions are brought out of time and therefore an application for an extension of time must be set out in the body of the grounds and set out in form NG. In most instances there will be new lawyers instructed to advise on appeal; the investigation of the facts by the new representatives and preparation of the grounds of appeal and application for leave to appeal out of time will usually take a considerable time. However, there is always a need to show expedition. It is important to set out either within the body of the grounds the steps taken to prepare the application for leave to appeal, or for solicitors to set out a chronology in Criminal Justice Act 1967, s 9 format to serve with the application to justify the extension of time needed. 9.51 In cases concerning trafficked victims it has historically been possible to overcome the hurdle of showing that exceptional leave should be granted. However, where an application for leave to appeal against conviction arises because the law has changed, or because there has been a change in practitioners’ and the courts’ understanding of the law since the conviction, the test for granting exceptional leave to appeal out of time is different. If leave to appeal is sought out of time on the ground that a guilty plea led to an unsafe conviction because an applicant failed to reveal his trafficking status or that the applicant’s representative failed to identify his trafficking status and/or failed to take steps to invoke the non-prosecution protection regime or failed to deploy a s  45, MSA 2015 defence, leave will be granted where there is a ‘clear injustice’ (see R v Mateta54 and R v Boal55). 9.52 Where an application for leave to appeal against conviction is founded on a change in law or a change in understanding of the law, a ‘substantial injustice’ must be shown to warrant the grant of exceptional leave56.

53 Criminal Appeal Act 1968, s 18(2). 54 [2013] EWCA Crim 1372, [2014] 1 WLR 1516. 55 [1992] QB 591. 56 See R v Jogee [2017] AC 387, [2016] 1 Cr App Rep 31; and R v Johnson [2016] EWCA Crim 1613, [2017] 1 Cr App Rep 12 (the well-known joint enterprise authorities).

354

Introduction 9.55

9.53 The significance of the difference between the Mateta and Boal ‘clear injustice’ test and the ‘substantial injustice’ test was laid bare in R v Ordu57. This was not a trafficking case but a document offence case in which the refugee defence under s 31 of the Immigration and Asylum Act 1999 had been available to the applicant. However, the applicant had pleaded guilty to the offence, not having been advised properly about the existence of that defence. He had had a good defence under s  31. The plea was equivocal. It was conceded by the Crown that – if leave to appeal were granted – a ‘clear injustice’ could be shown and that the conviction would be unsafe. However, the failure to appreciate the law by the applicant’s representative in the Crown Court was a product of the law changing – so that by the time of the appeal the scope of s 31 was clearer than it had been at the time. Therefore, because of that change in the understanding of the law, before the appeal could be considered, the applicant had, first, to secure leave by showing a ‘substantial injustice’.The applicant could not show a substantial injustice and leave was refused. 9.54 R v GS58 was a case where the applicant contended, he should not have been prosecuted in the public interest as a victim of trafficking. The Court, when dealing with a conviction dating back to 2007, considered that there had been a material change in the legal recognition of the rights of VOTs between 2007 and 2018. It considered there to have been limited awareness of such rights at the time and that the detailed provisions of Art 26 of ECAT and Art 8 of the EU Directive had not been in force. Furthermore, it held the contrast between the 2007 and 2013 CPS Guidance was stark. In the court’s view, it could not be argued that the law and practice as understood in 2007 would have led to a conclusion that it was an abuse of process to proceed with the prosecution but looked at through the later understanding of the law and procedure, an abuse of process argument would or might well have succeeded. Because the case turned on the change in understanding of law, the court held that exceptional leave would need to be shown, namely that to refuse leave would cause ‘substantial injustice’. 9.55 This approach to the grant of leave to appeal out of time should be contrasted with similar cases where legal advice was deficient, but not because of a change in law or a change in the understanding of law: in R v K(P),59 it was said obiter that all that was necessary for the grant of leave to appeal out of time was for

57 [2017] EWCA Crim 4, [2017] 1 Cr App Rep 391. 58 [2018] EWCA Crim 1824. 59 [2017] EWCA Crim 486.

355

9.56  Criminal appeal process

an applicant to show that there would be a clear injustice. This was approved in R v H60 as part of the ratio decidendi of the decision. 9.56 This accords with the Court of Appeal’s approach to appeals where s 31 has been overlooked by representatives because of negligent omission, as opposed to an omission in advice exposed by a change in the understanding of the law61. It also accords with the Court of Appeal’s approach to the safety of convictions in trafficking cases in the Court of Appeal Criminal Division, where the issue on appeal has been confined to ignorance of the non-prosecution procedure; see Chapter 5. 9.57 R v O,62 concerned a nine-year-old-conviction. The Court considered that the appeal did not turn on a ‘change in law’. Unlike in R v S(G), the conviction was unsafe because the CPS would (or might well) have decided not to maintain O’s prosecution had they properly applied the 2007 CPS Guidance. The outcome of the decision on appeal did not turn on any change in law between 2007 and the date of the application. Therefore, ‘exceptional leave’ was not required. An extension of time was granted: the appellant had been refused indefinite leave to remain in the UK as a direct consequence of her convictions; it was only this which had alerted her to a potential criminal appeal against conviction. 9.58 Plainly there is a different threshold for appeals based on a change in law and those based on inadequate advice. Therefore, if an applicant can show that a conviction is based on inadequate advice, it is easier to secure leave: while some exceptionality should be shown, it is not necessary to show ‘substantial injustice’.

Appeal following a guilty plea in the Crown Court 9.59 Most of the notable cases which have been brought before the Court of Appeal Criminal Division to date concerning non-punishment of victims of human trafficking have been cases where the applicants entered guilty pleas.A guilty plea does not preclude an appeal against conviction. The court has allowed appeals against conviction following guilty pleas following flawed advice. Significantly, where the appeal relates to the public interest limb of the CPS Full Code not 60 20 October 2017 (CAO Reference 201604765B5). 61 See the approach to the individual appeals in R v Mateta [2013] EWCA Crim 1372, [2014] 1 WLR 1516. 62 [2019] EWCA Crim 1389 at [41].

356

Further applications that may be made with an application for leave to appeal 9.61

being applied, the fact that a guilty plea was unequivocal will not necessarily prevent a successful appeal63. 9.60 In R  v Boateng64 the Court distilled the principles which govern whether a conviction is unsafe notwithstanding a guilty plea: ‘47. The principles in Mateta were distilled from a number of previous decisions of this court. In R. v Saik [2004] EWCA Crim 2936 the test for a plea to be held a nullity was a requirement that the facts were so strong as to demonstrate that there was no true acknowledgement of guilt with the advice going to the heart of the plea so that it was not a “free plea” at [57]. In R. v AM [2010] EWCA Crim 2400; [2011] 1 Cr. App. R. 35 (p.432), it was stated (at [12]) that it was important not to water down the underlying concept of the jurisdiction so as to bring nullity into play purely on the basis of advice alleged to be wrong. For those circumstances, there remains a basis on which this court can intervene which is firmly grounded in the safety of the conviction. In R. v Boal (1992) 95 Cr. App. R. 272; [1992] Q.B. 591, Simon Brown LJ made it clear that only most exceptionally will this court be prepared to intervene in such a situation. Only where it believes the defence would “quite probably have succeeded” and concludes, therefore, that a clear injustice has been done. 48. Mateta confirmed at [24], albeit in a slightly different factual scenario (failure to advise on a s.31 defence to a s.25 offence), that if an accused’s representatives fail to advise him about the availability of a s.31 defence, on appeal to this court, the court will assess whether the defence would “quite probably have succeeded’.

Further applications that may be made with an application for leave to appeal Applications for bail on appeal 9.61 Whilst the single judge cannot grant bail pending an appeal, the Court can grant bail pending an appeal in exceptional circumstances, where it is necessary

63 R v O [2011] EWCA Crim 2226 and R v LZ [2012] EWCA Crim 1867. 64 [2016] EWCA Crim 57, [2016] 4 WLR 70, [2016] 2 Cr App R. 5, [2016] Crim LR 495.

357

9.62  Criminal appeal process

to do justice in the case65. The application should be made at the same time as the application for leave or prior to leave being determined. 9.62 The application should be made with a Form B. In exceptional cases, where the applicant’s sentence is short or he is in very ill health, then a note should be sent to the Registrar, highlighting the immediate issues, particularly if the VOT has any mental health issues. If bail is being applied for, practitioners should liaise with the relevant first responder and support organisation where appropriate to ensure a suitable bail address can be put forward (see Chapters 7 and 11 for further considerations regarding bail).

Anonymity for applicants in the Court of Appeal Criminal Division 9.63 Requests for anonymity should always be considered when making an application for leave to appeal where the applicant is a VOT. In R v L; R v N66 the Court of Appeal reviewed the principles that govern anonymity in criminal appeals brought by victims of trafficking who have been convicted following criminal proceedings, without purporting to give general guidance. The Court of Appeal continues to deal with applications for anonymity on a case-by-case basis. An applicant’s VOT status does not trigger automatic anonymity.

General principles viz anonymity orders 9.64 Consideration should be given to the potential risk to the VOT of publishing his name and whether to do so might engage European Convention on Human Rights protections, in particular, those under Arts 2 (right to life), 3 (prohibition on torture), 4 (prohibition on slavery and forced labour (i.e. re-trafficking)) or 8 (right to respect for private and family life), or protections under ECAT and/ or the EU Trafficking Directive (see Chapter 8). 9.65 Where such a risk of harm is ruled to outweigh ECHR, Art 10 and open justice, a practice has developed in the Court of Appeal Criminal Division whereby an order will be made under the Contempt of Court Act 1981, s 11 prohibiting the publication of that name in connection with the proceedings. 65 R v Watton (1979) 68 Cr App Rep 293. 66 [2017] EWCA Crim 2129.

358

Further applications that may be made with an application for leave to appeal 9.66

9.66 A  leading authority dealing with anonymity orders by reason of risk to the appellant is the decision of the Supreme Court in A v BBC67 which involved an application by the BBC to set aside an anonymity order. Lord Reed, giving the only judgment, explained the general approach as follows: ‘47 … the right to receive and impart information, which is guaranteed by article 10(1), may be engaged where measures are taken in relation to court proceedings to prevent information from becoming publicly available. The right guaranteed by article 10(1) is however qualified by article 10(2) … 48 These qualifications reflect the fact that freedom of expression may conflict with other important values, including the rights to life and to bodily security protected by articles 2 and 3 of the Convention, the integrity of legal proceedings and the rights of litigants and accused persons, protected by article 6, and the right to respect for private life, protected by article 8 .Where there is a conflict between the right of the media to report legal proceedings and the rights of litigants or others under a guarantee which is itself qualified, such as article 8 , a balance must be struck, so as to ensure that any restriction upon the rights of the media, on the one hand, or of the litigants or third parties, on the other hand, is proportionate in the circumstances. Lord Steyn in In re S (A Child) (Identification: Restrictions on Publication) [2004] UKHL 47; [2005] 1  AC  593, and by Lord Rodger in In re Guardian News and Media Ltd [2010] UKSC 1; [2010] 2 AC 697. 49 Where the conflict is between the media’s rights under article 10 and an unqualified right of some other party, such as the rights guaranteed by articles 2, 3 and 6(1), there can be no derogation from the latter. Care must nevertheless be taken to ensure that the extent of the interference with the media’s rights is no greater than is necessary.The need for such care reflects the important role of the media in a democratic society in scrutinising the administration of justice generally, as well as their role as the conduit of information about particular proceedings which may be of public interest. 50 Article 10(2) specifically identifies “maintaining the authority and impartiality of the judiciary” as a legitimate aim which may justify interference with freedom of expression.’ Note there is no balancing exercise to be conducted between Art 3 and Art 10 in contrast to the Art 8/Art 10 balancing exercise.

67 [2014] UKSC 25, [2015] AC 588.

359

9.67  Criminal appeal process

9.67 Anonymity orders and other regulation of the court’s procedures, pursuant to inherent or Human Rights Act 1998 (‘HRA 1988’) powers, concern restrictions that a court can impose on what may be said in open court, whilst reporting restrictions concern what the media can report about what has already been aired in open court. As was recognised in Khuja (formerly known as PNM) v Times Newspapers Ltd68, ‘The distinction between these two aspects [of open justice] is not always recognised in the case law’69. In D (In the matter of D)70, Dyson J held that the same test applies both for conducting proceedings ‘in camera’ (i.e. excluding the public) and for imposing reporting restrictions although that “same test could be more easily satisfied where anonymity is sought than where what is applied for is that the proceedings be held in camera”. 9.68 Recognising that open justice has never been absolute, the Supreme Court in Khuja set out examples of the historic exceptions to open justice, in the context of the court regulating its procedures, in particular the inherent power to sit in private. The Court stated that: ‘The inherent power of the courts extends to making orders for the conduct of the proceedings in a way which will prevent the disclosure in open court of the names of parties or witnesses or of other matters, and it is well established that this may be a preferable alternative to the more drastic course of sitting in private: see R  v Socialist Worker Printers and Publishers Ltd, ex p Attorney General [1975] QB 637, 652; Attorney General v Leveller Magazine Ltd [1979] AC 440, 451–452 (Lord Diplock), 458 (Viscount Dilhorne), 464 (Lord Edmund-Davies)’71. 9.69 As far as the criminal courts are concerned, the Supreme Court confirms later in that same paragraph that: ‘…the court retains the power which it has always possessed to allow evidence to be given in such a way that the identity of a witness or other matters is not more widely disclosed in open court, if the interests of justice require it.Where a court directs that proceedings before it are to be conducted in such a way as to withhold any matter, the Contempt of Court Act 1981, s 11 allows it to make ancillary orders preventing their disclosure out of court. Measures of this kind have consistently been treated by the European Court of Human Rights as consistent with 68 [2017] UKSC 49, [2017] 3 WLR 351 at [16]. 69 See R v N; R v L [2012] EWCA Crim 189, [2013] QB 379, at [12]. 70 1 CCLR 190. 71 At para [14].

360

Further applications that may be made with an application for leave to appeal 9.71

article 6 of the Convention if they are necessary to protect the interests of the proper administration of justice: Doorson v The Netherlands (1996) 22 EHRR 330, para 71; V v United Kingdom (1999) 30 EHRR 121, para 87; cf A v British Broadcasting Corpn [2015] AC 588, paras 44–45 (Lord Reed).’ 9.70 Importantly, the Supreme Court confirmed ‘that necessity remains the touchstone of this jurisdiction’72.The court stated (at [15]) that two factors have combined to broaden the scope of the exceptions to the open justice principle, namely civil and criminal litigation raising issues of national security and the recognition of rights derived from the ECHR, which by the HRA 1998, s 6, bind the courts as public authorities. In relation to the latter, the Supreme Court said: ‘The Convention right most often engaged in such cases is the right under article  8 to respect for private and family life. Article  8 rights are heavily qualified by the Convention itself, and even when they are made good they must be balanced in a publication case against the right to freedom of expression protected by Article 10. But other Convention rights may occasionally be engaged which are practically unqualified, such as the right to life under article 2 and to protection against serious ill-treatment under Article  3: A  v British Broadcasting Corpn [2015]  AC  588. These countervailing interests have become significant, not just because they have come to be recognised as legal rights, but because the resonance of what used to be reported only in the press and the broadcasting media has been greatly magnified in the age of the internet and social media’. 9.71 An anonymity order can usually only be justified where it is strictly necessary. As Lord Roger indicated in Re Guardian News and Media Ltd73: ‘… in an appropriate case, where threats to life or safety are involved, the right of the press to freedom of expression obviously has to yield: a newspaper does not have the right to publish information at the known potential cost of an individual being killed or maimed. In such a situation the court may make an anonymity order to protect the individual’.

72 At para [14]. 73 [2010] UKSC 1, [2010] 2 AC 697 at para 26.

361

9.72  Criminal appeal process

9.72 Insofar as the HRA  1998 is concerned, Lord Roger in his judgment in Re Guardian News and Media Ltd74 addressed anonymity orders giving effect to ECHR rights as follows: ‘States are, of course, obliged by Articles 2 and 3 to have a structure of laws in place which will help to protect people from attacks on their lives or assaults, not only by officers of the state but by other individuals. Therefore, the power of a court to make an anonymity order can be seen as part of that structure’. See also Re Trinity Mirror plc75 by way of example, in which the power was also said to arise from the HRA 1998, s 6.

Anonymity orders in Criminal Appeals 9.73 Anonymity is achieved in the Court of Appeal Criminal Division through the interplay of the power under common law and/or the HRA 1998, s 6 to cause the name of the appellant not to be mentioned during the appeal hearing and the further power under the Contempt of Court Act 1981, s 11 prohibiting the publication of that name in connection with the proceedings76 (see above). 9.74 R v Z77 (which went on to be largely superseded by the fuller examination of the law in R v GL; R v N78) was an appeal (a CCRC reference) allowed on the ground that the appellant had not been given adequate advice in the context of an identity document offence concerning the application of the refugee defence under the Immigration and Asylum Act 1999, s 31. In advance of the appeal, the Vice-President asked the appellant’s counsel for assistance in relation to the principles which apply when reporting restrictions/anonymity might be appropriate in appeals: ‘Mr Thomas was asked by the Registrar to provide a note on this court’s powers to impose reporting restrictions. He has done so and he has set out the powers of the Crown Court and the powers of the Court of Appeal, Criminal Division, which are, perhaps surprisingly, different. But it is quite plain that we do have the power to impose reporting restrictions, particularly where it is necessary to protect the 74 [2010] UKSC 1, [2010] 2 AC 697 at para 26. 75 [2008] EWCA Crim 50, [2008] QB 770 at para 26. 76 See Khuja (above) at [14]. 77 [2016] EWCA Crim 1083. 78 [2017] EWCA Crim 2129.

362

Further applications that may be made with an application for leave to appeal 9.77

rights of an appellant as protected by Articles 2, 3 or 8 of the European Convention. We cannot go into the details of why it is necessary in this case to protect those rights because to do so may well lead to the inevitable identification of the appellant. Suffice it to say that we consider it appropriate on the facts of this case to follow, as the Civil Division of this court have done, the universal practice of anonymising judgments in cases involving asylum seekers. We are satisfied that the publication of the name of the appellant would create an avoidable and serious risk for her and or for other people’79. 9.75 The Court of Appeal in R v GL; R v N80 considered that in light of the need for consistency and the UK’s obligations generally it would be desirable in principle for the Criminal Division of the Court of Appeal to follow the practice adopted in the Civil Division and Immigration Tribunal of anonymising the applicant in cases raising asylum and international protection issues. However, the court (as set out above) declined to give guidance, without argument from the press because of the importance of open justice in criminal proceedings. 9.76 In GL and N81 the court considered whether the applicants’ Arts 2 and 3 rights were or were potentially engaged. On balance the court decided that anonymity should be afforded for these victims of trafficking. If their accounts were accepted, they may have a genuine or well-founded fear of reprisals on them or on their families at home. Additionally, the court found that if it did not grant anonymity it would undermine the anonymity orders in the Immigration Tribunal and in related Administrative Court proceedings. 9.77 Consideration needs to be given as to whether the applicant was a victim of trafficking for sexual exploitation (see R v O82 and R v GB83). In R v O84, the Court of Appeal granted anonymity based on the applicant’s Art 3 rights being engaged, given the threats to kill and violence and repercussions faced by her in Italy. The court considered both the risk to her, as well as her family. In R v S(G)85, the court stressed that any application for anonymity ‘should always be closely scrutinised and should not be granted unless strictly necessary.’

79 At para 39. 80 [2017] EWCA Crim 2129. 81 [2017] EWCA Crim 2129. 82 [2019] EWCA Crim 1389. 83 [2020] EWCA Crim 2. 84 [2019] EWCA Crim 1389 at [3]. 85 [2018] EWCA Crim 1824 at [5].

363

9.78  Criminal appeal process

9.78 Considering the high hurdle that needs to be overcome before anonymity will be granted, consideration should also be given to lesser measures, such as aspects of reporting restriction, which might serve to protect VOTs86. 9.79 The checklist in Marine A87 provides an essential tool for the application of anonymity principles (as reaffirmed in Khuja above). In Marine A  the Court Martial board found Marine A guilty of murder but acquitted Marines B and C. The judge advocate then lifted the prohibition on identification of the marines, on the ground that identification would not create or increase an immediate risk to their lives, although he stayed the order pending appeal. The marines applied for leave to appeal against the order lifting the prohibition on their identification and the media parties applied for leave to appeal against the rulings denying them access to the video clips and the stills which had not been made available. In a joint judgment to which Lord Thomas of Cwmgeidd CJ and Tugendhat J contributed, the Court held: ‘84 … a defendant in a criminal trial must be named save in rare circumstances. 85 However, the court has a power to withhold the name and address of a defendant in cases where circumstances justify that …’. 9.80 The Court went on to say under the heading ‘A  structured approach to restrictions on open justice in the reporting of criminal trials’: ‘86 In our view, applications to restrict reporting of criminal proceedings should be approached in a structured way. For example, in considering whether reporting restrictions should be imposed, the Court of Appeal (Criminal Division) set out in Ex p The Telegraph Group plc [2001] 1 WLR 1983, para 22 a three-stage test. That was approved in Independent Publishing Co Ltd v Attorney General of Trinidad and Tobago [2005] 1 AC 190, para 69 by the Privy Council: “in considering whether it was ‘necessary’ both in the sense under section 4(2) of the 1981 Act of avoiding a substantial risk of prejudice to the administration of justice and therefore of protecting the defendants’ right to a free trial under article 6 of the Convention and in the different sense contemplated by article 10 of the Convention as being ‘prescribed by law’ and ‘necessary in a democratic society’ by reference to wider considerations of public policy, the factors to 86 See R v N; R v L [2012] EWCA Crim 189, [2013] QB 379 at [15]. 87 Although R v Marine A was not mentioned in GL and N, the court in GL and N was referred to it.

364

Further applications that may be made with an application for leave to appeal 9.81

be taken into account could be expressed as a three-part test; that the first question was whether reporting would give rise to a not insubstantial risk of prejudice to the administration of justice in the relevant proceedings, and if not that would be the end of the matter; that, if such a risk was perceived to exist, then the second question was whether a section 4(2) order would eliminate the risk, and if not there could be no necessity to impose such a ban and again that would be the end of the matter; that, nevertheless, even if an order would achieve the objective, the court should still consider whether the risk could satisfactorily be overcome by some less restrictive means, since otherwise it could not be said to be ‘necessary’ to take the more drastic approach; that, thirdly, even if there was indeed no other way of eliminating the perceived risk of prejudice, it still did not follow necessarily that an order had to be made and the court might still have to ask whether the degree of risk contemplated should be regarded as tolerable in the sense of being the lesser of two evils; and that at that stage value judgments might have to be made as to the priority between the competing public interests represented by articles 6 and 10 of the Convention …” 87 We consider that the court should approach the making of an order that a defendant be not identified in a similar way.The starting point is, in our judgment, the duty of the court, as a public authority, to ensure compliance with the principles (1) of open justice, and (2) that there be no interference with an individual’s rights under articles 2 and 3, and (3) no unnecessary or disproportionate interference with (a) the rights of the public under article 10 (having regard to the position of the media under section 12 of the Human Rights Act 1998), and (b) of any relevant individuals under article 8 . 88 As open justice is so important a principle, an order that a defendant be not identified will not be necessary if some other measure is available to protect those rights of the individuals, and that other measure would be proportionate. In other cases, alternative measures have been taken, most notably in Venables v News Group Newspapers Ltd [2001] Fam 430. No order was made at the trial of Venables and Thompson that they be not named (there was an order restricting reporting of their names, which was lifted at the end of the trial). Subsequently those defendants changed their names, and orders were made to prohibit the disclosure of their identities under their new names.’

Requests to expedite the hearing 9.81 VOT applicants are some of the most vulnerable. Practitioners should consider submitting a note attached to the application for leave to appeal highlighting 365

9.82  Criminal appeal process

that the case concerns a victim of modern slavery/trafficking and asking that the Registrar consider expediting the hearing. The Registrar has the power to refer the case to the full court immediately for a hearing, where the application for leave and final appeal can be determined together.

Applications for funding 9.82 When applying for leave to appeal, representatives must indicate on the form NG if they are applying for a funding certificate, which ordinarily will only be granted for counsel if leave is granted. See Chapter 13 on funding. It is also possible for the court to grant a retrospective representation order, particularly where there has been continued involvement of the applicant’s solicitor after lodging the application for leave to appeal88.

Request for transcripts 9.83 It is likely in most cases where slavery or human trafficking is put forward as a ground of appeal that a transcript will have been obtained in preparation for making the application, particularly where there are new representatives. However, the Registrar routinely obtains copies of the summing up, sentencing remarks and the prosecution opening of the facts where relevant. If the application seeks any other transcripts of part of the proceedings, representatives should indicate why they are being requested89.

Request for an oral leave hearing 9.84 An application for an oral hearing to argue grounds of appeal is rarely made and, if made, rarely, granted, although historically in cases concerning victims of human trafficking the court has allowed such applications.

Absconding/missing 9.85 It is important to appreciate that there are risks of a victim of trafficking applicant being re-trafficked.The Court of Appeal, Criminal Division, provided guidance 88 R v Singh [2017] EWCA Crim 466. 89 Criminal Procedure Rules 2015, r 5.5.

366

Further applications that may be made with an application for leave to appeal 9.87

as to the approach to be taken when defendants’ representatives apply for leave to appeal or appeal against conviction and/or sentence in circumstances where the defendant has absconded during the appeal process. First, it allows legal representatives to lodge appeals even in the absence of their clients, providing that they have actual or implied authority or where, in any event, the court may wish to intervene in the public interest. It is, however, incumbent upon representatives to notify the Registrar of the position. In R  v Okedare90, the applicant went missing/absconded before the application for leave to appeal against conviction was lodged.The court considered that he ‘may well have been re-trafficked or simply absconded.’There had been written consent provided to the defence representatives from that appellant that he wished to appeal against the conviction. This consent was in the absence of anything to suggest that the applicant wished to withdraw his appeal. The court, in assessing the case, said that ‘in any event there remains the possibility that his disappearance was not his fault’. On account of this, the Court of Appeal considered that it had no option but to stay the application for permission to appeal sine die91, until the applicant was able to satisfy the evidential requirements as to whether or not he had in fact been trafficked and/or whether he had been compelled to commit the offence. 9.86 If leave has been granted and a waiver of legal privilege has been signed, it is possible to continue with the determination of the appeal in the absence of the appellant. Representatives will, however, need to notify the court as to the applicant’s status92. In circumstances where a victim of trafficking has absented himself, representatives should ensure they obtain evidence to submit to the court regarding the circumstances of the appellant going missing. For those appellants who are minors, the local authority and police will be engaged, and the appellant’s legal team should obtain a crime reference number and information regarding the circumstances of the child going missing. Other evidence can be obtained from the support organisation or first responder involved in the care of the victim of trafficking. 9.87 If a missing victim of trafficking, whose appeal has been stayed, subsequently comes into contact with the authorities, the Court of Appeal and defence representatives will not automatically be made aware of this and the stay may be left in place for many years, even if the applicant is again known to the authorises. Many victims who have been re-trafficked will continue in a cycle of further criminalisation and prosecution. In cases that are stayed sine die, the court may direct the police to put an intelligence marker against the 90 [2014] EWCA Crim 228, [2014] 1 WLR 4071. 91 See also R v Joseph [2017] EWCA Crim 36, [2017] 1 WLR 3153. 92 R v L [2013] EWCA Crim 991, [2014] 1 All ER 113.

367

9.88  Criminal appeal process

applicant’s details on the Police National Computer, so that in the event of an apprehension or arrest of the applicant the Court of Appeal Criminal Division and his representatives can be notified. The Court in R v VSJ93 in relation to a missing applicant (‘N’) held that ‘should he still be in this country and he comes to the attention of the police then this Court is to be notified forthwith so that these applications may be then heard as speedily as possible’. The court relisted N’s case in November 2018 to reconsider whether the adjournment sine die should continue. It determined that that was appropriate.

Applications to the Criminal Cases Review Commission 9.88 The CCRC is a body corporate created under the auspices of the Criminal Appeal Act 199594. It should consist of at least 11 commissioners, at least two thirds of whom must appear to the prime minister to have knowledge of the criminal justice system. 9.89 Where a person has been: (1) convicted on indictment in England and Wales; (2) sentenced following conviction; (3) found not guilty by reason of insanity; or (4) found to be under a disability, and that he did the act or made the omission charged against him the CCRC may refer the case to the Court of Appeal95. A reference is then taken as if leave to appeal had been granted by the Court of Appeal. 9.90 Where a person has been convicted of an offence by a magistrates’ court in England and Wales the CCRC may at any stage refer the conviction to the Crown Court. It may also refer any sentence imposed following the conviction to the Crown Court96.The reference to the Crown Court is treated as an appeal under the Magistrates’ Court Act 1980, s 108.The Crown Court cannot impose a more severe penalty than was originally imposed following the reference. It may grant bail pending the hearing. 9.91 The CCRC can only make a reference if: (i)

93 94 95 96

it ‘… considers that there is a real possibility that the conviction, verdict, finding or sentence would not be upheld were the reference to be made’; [2017] EWCA Crim 36, [2017] 1 WLR 3153. Criminal Appeal Act 1995, s 8. Criminal Appeal Act 1995, s 9. Criminal Appeal Act 1995, s 11.

368

Further applications that may be made with an application for leave to appeal 9.93

(ii) because of an argument, or evidence, not raised in the proceedings which led to the conviction, verdict, finding or sentence or in the case of a sentence, because of an argument on a point of law, or information, not raised; and (iii) an appeal has been determined or leave to appeal refused97.The statute sets out that nothing ‘… shall prevent the making of a reference if it appears to the Commission that there are exceptional circumstances which justify making it’. 9.92 In R v Mateta98 the Court of Appeal praised the CCRC for its work in identifying wrongful convictions in the context of refugees whose possible defences under the Immigration and Asylum Act 1999, s  31 had been overlooked. Four of the five cases in that combined appeal were CCRC references where the exceptionality provision had been invoked99. However, in R v YY; R v Nori100 the Court of Appeal invited the CCRC to consider a ‘triage system’ so that the exceptional procedure was not deployed as a matter of routine in cases where a defence had been overlooked in the Crown Court, where the Registrar could refer the consideration of leave to the Full Court. This was by way of an ‘… attempt to ensure that those cases in which there is no available means of redress other than through the CCRC are investigated and dealt with as expeditiously as possible’101. The court noted that the exceptional procedure should be available to defendants seeking a reference to the Crown Court following a guilty plea in the magistrates’ court because of the ‘… constraints put on the Crown Court (sitting on appeal) in relation to unequivocal pleas of guilty’102. 9.93 The CCRC must have regard to matters including ‘… any application or representations made to the Commission by or on behalf of the person to whom it relates’103. Those representing prospective appellants should consider whether to make an application for leave to appeal to the Court of Appeal or to make an application to the CCRC for a reference. Following R v YY; R v Nori it will almost invariably be appropriate for first appeals to be the subject of an application for leave to appeal to the Court of Appeal.

97 Criminal Appeal Act 1995, s 13. 98 [2013] EWCA Crim 1372, [2014] 1 WLR 1516. 99 See para 57. 100 [2016] EWCA Crim 18, [2016] 1 Cr App Rep 435. 101 See paras 38–45. 102 See para 42 and the Magistrates’ Courts Act 1980, s 108. 103 Criminal Appeal Act 1995, s 14(2).

369

9.94  Criminal appeal process

9.94 Examples (‘illustrative categories’104) of what may amount to exceptional circumstances are set out in the CCRC’s Formal Memorandum on Exceptional Circumstances105. They include: (i) sensitive information that cannot be disclosed by the CCRC to the applicant (or representatives); (ii) evidence of a compelling or compassionate need for the case to be considered quickly by an appellate court (such as terminal illness of the applicant); (iii) where the applicant has a mental illness or disability placing him at a serious disadvantage in securing legal representation and/or pursuing an application for leave to appeal; (iv) summary matters where the applicant pleaded guilty and there is a real possibility that the conviction would not be upheld; (v) conviction is referred to the Commission by a prosecuting authority with concerns about some aspect of the evidence on which the Crown has previously relied, in circumstances where relevant evidence/information cannot be disclosed due to its sensitivity or where the Commission’s involvement is in the public interest; (vi) the Commission’s powers under the Criminal Appeal Act 1995, s  17 might secure relevant information which the applicant would be unable to obtain; (vii) new scientific, medical, or expert evidence that an applicant could not reasonably be expected to discover or present; (viii) the applicant is linked with co-defendants whose cases have been or are to be referred by the Commission and, in all the circumstances, it would not be in the public interest to require the co-defendant to appeal directly; (ix) the applicant’s case is linked to other cases by a common nexus, such as a material witness, a criticised expert or a point of law and the Commission’s involvement is in the public interest. 9.95 Where an application is made to the CCRC, there is a form to complete which provides for details of the application to be set out, but it will assist the Commission and the prospective appellant if submissions akin to grounds of and an advice on appeal and a chronology are sent to the Commission, as this will (by the Criminal Appeal Act 1995, s  14(2)) inform the way the 104 See para  13 of the February 2019 updated version of the Formal Memorandum: Exceptional Circumstances, available on the CCRC website. 105 See para 14, ibid.

370

Further applications that may be made with an application for leave to appeal 9.98

CCRC approaches the review of the case. From a practical perspective the case managers at the CCRC will provide advice on procedure. Sometimes it will be of assistance for the assigned Commissioner to meet with the applicant’s legal representative. While there is no right to an ‘oral hearing’ before the CCRC, the Commission may decide that oral submissions to the Commission are appropriate106. 9.96 Whether the CCRC sees fit to refer a case to the Court of Appeal (or Crown Court) or not, it will prepare a statement of reasons107. An applicant aggrieved by the decision of the CCRC not to refer a case (or in relation to an interim issue) may be able to rely on judicial review in the event that the decision is unlawful in a public law sense (i.e. Wednesbury unreasonable, perverse, etc). It will rarely be the case that such a challenge will be successful, as there is a very high threshold for such challenges108. 9.97 Representatives submitting applications to the CCRC should be alive to the power of the CCRC to conduct investigations for the Court of Appeal. The Court of Appeal may direct the CCRC to conduct inquiries into matters directed to it and report back to the Court of Appeal. Such investigations may have broad scope and are not restricted to cases where a reference is applied for109. Practitioners should have in mind that the CCRC has the power to obtain ‘… a document or other material which may assist the Commission in the exercise of any of their functions’110. Where it is ‘reasonable to do so’, the Commission may require the appropriate person in relation to a public body to produce the document or other material to the Commission or to give the Commission access to it and take away the material to copy or take away a copy of it. The Commission may also direct that person that the document or other material must not be destroyed, damaged, or altered. 9.98 The documents and other material include, in particular, items obtained or created during an investigation or proceedings relating to the case being considered by the CCRC and any other case which may be in any way connected with that case (whether or not any function of the Commission

106 R v Criminal Cases Review Commission, ex p Pearson [1999] 3 All ER 498, [2000] 1 Cr App Rep 141. 107 Criminal Appeal Act 1995, s 14(4) in respect of a positive decision to refer and s 14(6) in respect of a decision not to refer. 108 R (on the application of Cleeland) v Criminal Cases Review Commission [2009] EWHC 474 (Admin) at 48. 109 Criminal Appeal Act 1995, s 15. See, eg, Coles (unreported) (960227313) 11 November 1997. 110 Criminal Appeal Act 1995, s 17.

371

9.99  Criminal appeal process

could be exercised in relation to that other case)111. The duty to comply with a CCRC requirement is not affected by secrecy or any limitation on disclosure112.

Appeals by a prosecutor against a ‘terminating’ ruling 9.99 Section 58 of the Criminal Justice Act 2003 provides the prosecution with a right of appeal in relation to a ‘terminating’ ruling, namely a ruling where the prosecution agrees to the defendant’s acquittal if the appeal is not successful. 9.100 The prosecution must inform the court that it intends to appeal or request an adjournment to consider whether to appeal, which will be until the next business day. 9.101 Leave to appeal can be sought from the trial judge immediately after the ruling or the granted adjournment (CrimPR 38.5). Leave should only be granted where the judge considers there is a real prospect of success. If the judge expedites the appeal, then the notice and application to appeal (Form NG- Pros) must be served on the Crown Court, Registrar and every defendant affected by the ruling the next business day. If the judge does not expedite the appeal, the Crown has five days after telling the judge of the decision to appeal to serve the appeal notice. 9.102 The defence must provide grounds of opposition in a respondent’s notice and serve this the next business day if the trial judge has expedited the appeal, or within five business days if not expedited. 9.103 R v DS113 is an example of such an appeal in the context of a terminating ruling concerning a defendant VOT.

111 Criminal Appeal Act 1995, s 17(3). 112 Criminal Appeal Act 1995, s 17(4). 113 [2020] EWCA Crim 285.

372

10 International protection and human rights claims brought by victims of human trafficking and modern slavery Michelle Brewer and Gemma Loughran

Introduction 10.1 Victims of trafficking who have escaped or are rescued from their traffickers may fear serious harm, including being re-trafficked, by the individuals and/ or criminal gangs that trafficked them, if they are returned to their country of origin. In addition, victims of trafficking may be more vulnerable to retrafficking or further exploitation by other individuals or criminal gangs, as in many cases they would be returning to the same, similar or worse conditions that originally placed them at risk. Some victims could be at risk on return where they may be without a support network and/or due to their ongoing vulnerability. The trauma they have experienced can impact on their ability to function and survive, and in some cases may give rise to a real risk of suicide.

The role of the NRM identification decision1 in Tribunal decision making 10.2 It was common ground between the parties in the Supreme Court case of MS (Pakistan)2 that the tribunal is required to determine the relevant factual issues for itself on the basis of the evidence before it and that it was in no way bound by the trafficking identification decision reached under the National Referral Mechanism (‘NRM’). Nor does it have to look for public law reasons why that decision was flawed (see below in respect of positive decisions as a concession of fact). The Supreme Court endorsed the Upper Tribunal’s observation in 1 2

See Chapter 2 which sets out in detail the NRM decision-making process. MS (Pakistan) v Secretary of State for the Home Department [2020] UKSC 9 at para 11.

373

10.3  International protection and human rights claims brought by victims of human trafficking

MS (Pakistan)3 that the tribunal is better equipped than the authority to make pertinent findings. The Supreme Court concurred with the Upper Tribunal4 stating that the decision of the competent authority was essentially a factual decision and both the First-tier Tribunal (Immigration and Asylum Chamber) and the Upper Tribunal were better placed than the competent authority to decide whether the appellant was a victim of trafficking. 10.3 In MS (Pakistan)5 Lady Hale explained that there were several reasons why the tribunal cannot be bound by the NRM decision6: (1) The tribunal’s jurisdiction is to hear appeals against the immigration decisions of officials (Nationality, Immigration and Asylum Act 2002, s 82(1)); (2) Those appeals are clearly intended to involve the hearing of evidence and the making of factual findings on relevant matters in dispute; (3) That this was the role of the tribunal was made crystal clear in Huang7. Discussing the predecessor to the 2002 Act, in s 65 of the Immigration and Asylum Act 1999, Lord Bingham of Cornwall said: ‘These provisions, read purposively and in context make it plain that the task of the appellate immigration authority, on an appeal on a Convention ground against a decision of the primary official decisionmaker refusing leave to enter or remain in this country, is to decide whether the challenged decision is unlawful as incompatible with a Convention right or compatible and so lawful. It is not a secondary, reviewing function dependent on establishing that the primary decision-maker misdirected himself or acted irrationally or was guilty of procedural impropriety. The appellant immigration authority must decide for itself whether the impugned decision is lawful and, if not, but only if not, reverse it.’ (para 11) 10.4 Lady Hale emphasised that ‘the proper consideration and weight’, which the Secretary of State says should be given to any previous decision of the authority, will depend upon the nature of the previous decision in question and its relevance to the issue before the tribunal. 10.5 It must be borne in mind, however, that a positive identification decision (whether a reasonable grounds decision or a conclusive grounds decision) 3 See para 46 of the Upper Tribunal decision. 4 See MS (Pakistan) v Secretary of State for the Home Department [2020] UKSC 9 at para 15. 5 MS (Pakistan) v Secretary of State for the Home Department [2020] UKSC 9. 6 Ibid at 11–15. 7 Huang v Secretary of State for the Home Department [2007] UKHL 11.

374

Refugee Convention 10.7

by the Home Office will amount to a concession that the appellant is telling the truth about specific matters and the tribunal should not go behind that concession8. However, a finding that an applicant is a victim of trafficking does not necessarily lead to a grant of asylum or humanitarian protection. To qualify for protection an applicant needs to demonstrate that he is at risk of persecution and/or serious harm on return to his country of origin9.

Refugee Convention Introduction 10.6 The Palermo Protocol10 and ECAT11 both expressly provide that they do not affect individuals’ and states’ rights, obligations, and responsibilities under international law and in particular, under the Refugee Convention and protocol. The EU Trafficking Directive is without prejudice to the principle of non-refoulement under the Refugee Convention12. The Secretary of State cannot lawfully delay determining whether a potential victim of trafficking should secure ECAT leave under article14 of ECAT while an asylum claim is pending13.

Definition 10.7 The legal definition of the term ‘refugee’ is set out at Art 1A(2) of the Refugee Convention, which defines a refugee as a person who:

8 See R (on the application of Ganidagli) v Immigration Appeal Tribunal [2001] EWHC 70 Admin; Carcabuk and Bla (00TH01426) (18 May 2000, unreported), IAT. In Davoodipanah v Secretary of State for the Home Department [2004]  EWCA  Civ 106, [2004]  INLR  341, [2004]  All ER (D) 285 (Jan), the Court of Appeal held that a concession made by either party may be formally withdrawn on appeal if the appeal court considers that there is good reason to take that course, but otherwise, the appeal court should not revisit issues relevant to a concession clearly made to a first instance immigration judge who had relied on it. See also NR (Jamaica) v Secretary of State for the Home Department [2009] EWCA Civ 856, [2010]  INLR  169, [2009]  All ER (D) 43 (Aug); and CD (Jamaica) v Secretary of State for the Home Department [2010] EWCA Civ 768, [2010] All ER (D) 34 (Feb). 9 Home Office, Victims of modern slavery – Frontline Staff guidance (18 March 2016) p 61. 10 Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children, supplementing the United Nations Convention against transnational organised Crime 2000, Art 14(1). 11 Council of Europe Convention on Action against Trafficking in Human Beings 2005, Art 40(4). 12 Directive 2011/36/EU of the European Parliament and of the Council of 5 April 2011 on preventing and combating trafficking in human beings and protecting its victims, and replacing Council Framework Decision 2002/629/JHA, preamble recital (10). 13 R(JP) v SSHD [2019] EWHC 3346 (Admin) (see paras136–139, 150, 161–165).

375

10.8  International protection and human rights claims brought by victims of human trafficking

‘Owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion is outside the country of his nationality and is unable or owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence is unable or, owing to such fear, unwilling to return to it’.

Well-founded fear of persecution Trafficking as persecutory treatment 10.8 There must be a genuine subjective fear of persecution.The fear of persecution by a victim of trafficking could be reprisals from traffickers or criminal networks and/or re-trafficking. It is also sometimes the case that victims of trafficking fear persecution from their family members or other non-state actors. 10.9 Many acts associated with trafficking such as ‘abduction, incarceration, rape, enforced prostitution, forced labour, removal of organs, physical beatings, starvation, the deprivation of medical treatment … constitute serious violations of human rights which will generally amount to persecution’14.The experience of being trafficked should, in most instances, be regarded as persecution. 10.10 The EU Qualification Directive defines acts of persecution as those which are ‘sufficiently serious by their nature or repetition as to constitute a severe violation of basic human rights, in particular, the rights from which derogation cannot be made under Art 15(2) of the European Convention for the Protection of Human Rights and Fundamental Freedoms’15. Trafficking commonly has those characteristics. It ‘constitutes a violation of human rights and an offence to the dignity and integrity of the human being’16; it is ‘a gross violation of fundamental rights and explicitly prohibited by the 14 UNHCR ‘Guidelines on International Protection:The application of Art 1(A)2 of the 1951 Convention and/or Protocol relating to the status of refugees to victims of trafficking and persons at risk of being trafficked’ (2006) HCR/GIP/06/07, para 15. 15 Council Directive 2004/83/EU of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugee or as persons who otherwise need international protection and the content of the protection granted, Art 9(1)(a). 16 ECAT, preamble.

376

Refugee Convention 10.13

Charter of Fundamental Rights of the European Union’17 and it falls within the scope of the ECHR, Art 418, which is one of the non-derogable rights identified in Art 15(2). 10.11 If an adult victim of trafficking consents to the trafficking, it may still constitute persecution given that the individual’s consent is irrelevant if one of the ‘means’ contained in the trafficking definition is used19. A child cannot not consent to his trafficking and this is therefore immaterial to the question of persecution20. See Chapters 1 and 2 for a fuller exploration of ‘consent’ in trafficking cases.

Past persecution and assessment of future risk 10.12 The fear of persecution is not sufficient in itself but must also be well-founded. There is no requirement that persecution must have occurred in the past, but past persecution will always be of great significance because, as recognised by the immigration rules, it is ‘a serious indication of the person’s well-founded fear of persecution or real risk of suffering serious harm, unless there are good reasons to consider that such persecution or serious harm will not be repeated’21. Past persecution takes on significance in trafficking cases because as the Upper Tribunal has recognised a trafficked person may be, ‘even more vulnerable to re-trafficking’ because she has ‘been through the business and knows how to be compliant … the “breaking in” period has already taken place’22. 10.13 Assessment of the risk that an individual will be trafficked necessitates consideration of the individual’s age23, gender, marital status, domestic circumstances, availability of family support, educational level, qualifications, work experience, availability of employment and state of mind24. In AM and BM (Trafficked women) Albania CG25 the tribunal considered the stigma attached to having been trafficked prevented the individual from receiving family or social support. Further, the tribunal recognised that being traumatised by the 17 EU Trafficking Directive, Recital (1). 18 Rantsev v Cyprus and Russia (2010) 51 EHRR 1, 28 BHRC 313, para 282; MS (Pakistan) v Secretary of State for the Home Department [2020] 1 WLR 1373 at [25]. 19 ECAT, Art 4(b); AM and BM (trafficked women) Albania CG [2010] UKUT 80 (IAC). 20 Home Office, Modern Slavery Act 2015 – Statutory Guidance for England and Wales, v.1 (March 2020) at 2.11. 21 Immigration Rules 339K. 22 AZ (Trafficked women) Thailand CG [2010] UKUT 118 (IAC) at [150]. 23 MS (Pakistan) v Secretary of State for the Home Department [2020] 1  WLR  1373 at [19] and the EU Trafficking Directive 2011/36/EU, preamble recital 8). 24 TD and AD (Trafficked women) CG [2016] UKUT 00092 at [119(h)] and HD (Trafficked women) Nigeria CG [2016] UKUT 00454 (IAC) at para 190. 25 [2010] UKUT 80.

377

10.14  International protection and human rights claims brought by victims of human trafficking

trafficking experience may compromise the individual’s capacity to integrate; and resorting to government facilities to assist victims of trafficking may result in the individual’s vulnerability being identified to traffickers who target such facilities26.The vulnerability to re-trafficking was echoed in HD (Trafficked women) Nigeria CG27. As observed by the tribunal, it is not the poverty, destitution, or vulnerability itself which is the basis of claim for the returning victim, but the harm that ensues from this vulnerability, namely the risk of further exploitation. 10.14 In assessing risk to an individual, it is essential to understand the prevalence and patterns of trafficking in his or her country of origin as well as the individual’s own specific vulnerabilities. As the Court of Appeal observed in PO (Nigeria)28: ‘It is common ground that trafficking by a gang or network gives rise to an increased risk on return to the country where the gang or network is based. However, I agree with an observation made by Thomas LJ in the course of the hearing that “gang” and “network” are elusive concepts and no more than shorthand for the ability, resources and ruthlessness to exercise illegal power over individuals on a significant scale.’

Burden and standard of proof 10.15 The burden of establishing a well-founded fear is on the applicant. For a fear to be well-founded the question is whether there is a ‘real and substantial risk’ or a ‘reasonable degree of likelihood’ of persecution for a Refugee Convention reason29. It is a lesser standard than proving that persecution will occur on the balance of probabilities. The correct approach to the assessment of past events was authoritatively set out by the Court of Appeal in Karanakaran30, and would include any account of past persecution, including trafficking, as follows: ‘There may be circumstances in which a decision-maker must take into account the possibility that alleged past events occurred even though it finds that these events probably did not occur.The reason for this is that the ultimate question is whether the applicant [in an asylum case] has a real substantial basis for his fear of future persecution. The decisionmaker must not foreclose reasonable speculation about chances of the future hypothetical event occurring’.

26 27 28 29 30

AZ (Trafficked women) Thailand CG [2010] UKUT 118 (IAC) at para 144. [2016] UKUT 00454 (IAC) at para 168. PO (Nigeria) v Secretary of State for the Home Department [2011] EWCA Civ 132 at 31. R v Secretary of State for the Home Department, ex p Sivakumaran [1998] AC 958. Karanakaran v Secretary of State for the Home Department [2000] 3 All ER 449.

378

Refugee Convention 10.19

10.16 In PO (Nigeria)31 the tribunal had found that the appellant had been a victim of an individual trafficker rather than a gang with the result that she was not in the enhanced risk category. Maurice Kay LJ observed32,‘I agree with Miss Rose that the imposition of a burden on a victim to establish that she was trafficked by a gang is not only a gloss on the guidance. It imposes an inappropriate burden that honest and meritorious victims would often be unable to discharge.’

For reasons of race, religion, nationality, membership of a particular social group or political opinion 10.17 The definition of refugee requires the reasons for the persecution to be considered.The fact of facing persecution is not sufficient: it must be connected to one of the reasons assigned by the Refugee Convention: ‘for reasons of race, religion, nationality, membership of a particular social group or political opinion’. 10.18 Victims of trafficking are most likely to face persecution for reason of their particular social group.The dictum of Sedley J in R v Immigration Appeal Tribunal, ex p Shah33, as to the nature of the task involved in identifying a particular social group has been widely cited and approved: ‘Its adjudication is not a conventional lawyer’s exercise of applying a legal litmus test to ascertained facts; it is a global appraisal of an individual’s past and prospective situation in a particular cultural, social, political and legal milieu, judged by a test which, though it has legal and linguistic limits, has a broad humanitarian purpose’. 10.19 By a majority, their Lordships held in the case of Islam and Shah34 that women in Pakistan constituted a ‘particular social group’ because as members of a group sharing innate characteristics of sex they were discriminated against because of their gender35. Women who have been victims of sexual violence in the PO (Nigeria) v Secretary of State for the Home Department [2011] EWCA Civ 132. Ibid para 37. [1997] Imm AR 145 at 153. Islam v Secretary of State for the Home Department (United Nations High Comr for Refugees intervening); R v Immigration Appeal Tribunal, ex p Shah (United Nations High Comr for Refugees intervening) [1999] 2 AC 629. 35 Lord Steyn at 644E, Lord Hoffmann at 652CF, Lord Hope at 658E. 31 32 33 34

379

10.20  International protection and human rights claims brought by victims of human trafficking

past may also form a particular social group, because they are linked by an immutable characteristic, independent of, and the cause of, their ill-treatment36. 10.20 The EU Qualification Directive deals with the ‘particular social group’ at Art 10(1)(d) and states: ‘A group shall be considered to form a particular social group where in particular (i) members of that group share an innate characteristic or common background that cannot be changed, or share a characteristic or belief that is so fundamental to their identity or conscience that a person should not be forced to renounce it; and (ii) that group has a distinct identity in the relevant country, because it is perceived as being different by the surrounding society.’ 10.21 The tribunal has recently held that both limbs do not need to be met37; this approach is consistent with the Refugee Convention as authoritatively interpreted by the House of Lords38. 10.22 Victims of trafficking share a common background that cannot be changed and, in many countries, will be perceived as being different. Former victims of trafficking have been found to be a particular social group in Moldova, Nigeria, Thailand, Albania and China39.

Unable or … unwilling to avail himself of the protection of that country 10.23 To qualify as a refugee an applicant must be unable or unwilling to avail themselves of the protection of his own country. In Horvath v Secretary of State for the Home Department40 Lord Clyde found that sufficient protection would involve the following: R v Special Adjudicator ex p Hoxha [2005] 1 WLR 1063 at 37. DH (Particular Social Group: Mental Health) [2020] UKUT 223. Fornah v Secretary of State for the Home Department [2006] UKHL 46, [2007] 1 AC 412. SB (PSG – Protection Regulations – Reg 6) Moldova CG [2008] UKAIT 00002; PO (Trafficked Women) Nigeria CG [2009] UKAIT 00046; AZ (Trafficked women) Thailand CG [2010] UKUT 118 (IAC); AM and BM (Trafficked women) Albania CG [2010] UKUT 80 (IAC); HC & RC (Trafficked women) China CG [2009] UKAIT 00027; HD (Trafficked women) Nigeria CG [2016] UKUT 00454 (IAC) and TD and AD (Trafficked women) Albania CG [2016] UKUT 00092. 40 [2001] 1 AC 489 at 510H. 36 37 38 39

380

Refugee Convention 10.25

‘There must be in place a system of domestic protection and machinery for the detection, prosecution and punishment of actions contrary to the purposes which the Convention requires to have protected. More importantly there must also be an ability and a readiness to operate that machinery’. 10.24 The EU  Qualification Directive provides that protection ‘can be provided by a state or by parties or organisations, including international organisations, controlling the state or by parties or organisations, including international organisations, controlling the state or a substantial part of the territory of the state’41. 10.25 In R (on the application of Bagdanavicius) v Secretary of State for the Home Department42 the House of Lords left undisturbed the proposition set out by Auld LJ on real risk and sufficiency of protection in the Court of Appeal43: ‘Summary of conclusions on real risk/sufficiency of state protection. The common threshold of risk 1) The threshold of risk is the same in both categories of claim; the main reason for introducing section 65 to the 1999 Act was not to provide an alternative, lower threshold of risk and/or a higher level of protection against such risk through the medium of human rights claims, but to widen the reach of protection regardless of the motive giving rise to the persecution. Asylum claims 2)

An asylum seeker who claims to be in fear of persecution is entitled to asylum if he can show a well-founded fear of persecution for a Refugee Convention reason and that there would be insufficiency of state protection to meet it; Horvath [2001] 1 AC 489.

3)

Fear of persecution is well-founded if there is a ‘reasonable degree of likelihood’ that it will materialise; R v SSHD, ex p Sivakumaran [1988] AC 956, per Lord Goff at 1000F-G.

41 Council Directive (2004/83/EU) of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugee or as persons who otherwise need international protection and the content of the protection granted, art 7(1)(a)(b). 42 R (on the application of Bagdanavicius) v Secretary of State for the Home Department [2005] UKHL 38, [2005] 2 AC 668. 43 R (on the application of Bagdanavicius) v Secretary of State for the Home Department [2003] EWCA Civ 1605, [2004] 1 WLR 1207.

381

10.25  International protection and human rights claims brought by victims of human trafficking

4)

Sufficiency of state protection, whether from state agents or nonstate actors, means a willingness and ability on the part of the receiving state to provide through its legal system a reasonable level of protection from ill-treatment of which the claimant for asylum has a well-founded fear; Osman v UK [1999] 1 FLR 193, Horvath, Dhima [2002] EWHC 80 (Admin), [2002] Immigration Judge AR 394.

5)

The effectiveness of the system provided is to be judged normally by its systemic ability to deter and/or to prevent the form of persecution of which there is a risk, not just punishment of it after the event; Horvath; Banomova [2001] EWCA Civ 807; McPherson [2001] EWCA Civ 1955 and Kinuthia [2001] EWCA Civ 2100.

6)

Notwithstanding systemic sufficiency of state protection in the receiving state a claimant may still have a well-founded fear of persecution if he can show that its authorities know or ought to know of circumstances particular to his case giving rise to his fear, but are unlikely to provide the additional protection his particular circumstances reasonably require; Osman.

Article 3 claims 7)

The same principles apply to claims in removal cases of risk of exposure to Art 3 ill-treatment in the receiving state, and are, in general, unaffected by the approach of the ECtHR in Soering; which, on its facts, was, not only a state-agency case at the highest institutional level, but also an unusual and exceptional case on its facts; Dhima, Krepel [2002]  EWCA  Civ 1265 and Ullah [2004] UKHL 26.

8)

The basis of an article 3 entitlement in a removal case is that the claimant, if sent to the country in question, would be at risk there of Art 3 ill-treatment.

9)

In most, if not all, Art 3 cases in this context the concept of risk has the same or closely similar meaning to that in the Refugee Convention of a ‘well-founded fear of persecution’, save that it is confined to a risk of Art 3 forms of ill-treatment and is not restricted to conduct with any particular motivation or by reference to the conduct of the claimant; Dhima, Krepel, Chahal v UK [1996] 23 EHRR 413.

10) The threshold of risk required to engage Art 3 depends on the circumstances of each case, including the magnitude of the risk, the nature and severity of the ill-treatment risked and whether the risk emanates from a state agency or non-state actor; Horvath. 11) In most, but not necessarily all, cases of ill-treatment which, but for state protection, would engage Art 3, a risk of such ill-treatment 382

Refugee Convention 10.26

will be more readily established in state-agency cases than in nonstate actor cases – there is a spectrum of circumstances giving rise to such risk spanning the two categories, ranging from breach of a duty by the state of a negative duty not to inflict Art 3 illtreatment to a breach of a duty to take positive protective action against such ill-treatment by non-state actors; Svazas. 12) An assessment to the threshold of risk appropriate in the circumstances to engage Art 3 necessarily involves an assessment of the sufficiency of state protection to meet the threat of which there is such a risk – one cannot be considered without the other whether or not the exercise is regarded as ‘holistic’ or to be conducted in two stages; Dhima, Krepel, Svazas [2002] EWCA Civ 74. 13) Sufficiency of state protection is not a guarantee of protection from Art 3 ill-treatment any more than it is a guarantee of protection from an otherwise well-founded fear of persecution in asylum cases – nor, if and to the extent that there is any difference, is it eradication or removal of risk of exposure to Art 3 ill-treatment; Dhima, McPherson; Krepel. 14) Where the risk falls to be judged by the sufficiency of state protection, that sufficiency is judged, not according to whether it would eradicate the real risk of the relevant harm, but according to whether it is a reasonable provision in the circumstances; Osman. 15) Notwithstanding such systemic sufficiency of state protection in the receiving state, a claimant may still be able to establish an Art 3 claim if he can show that the authorities there know or ought to know of particular circumstances likely to expose him to risk of Art 3 ill-treatment; Osman. 16) The approach is the same whether the receiving country is or is not a party to the ECHR, but, in determining whether it would be contrary to Art 3 to remove a person to that country, our courts should decide the factual issue as to risk as if ECHR standards apply there – and the same applies to the certification process under section 115(1) and/or (2) of the 2002 Act’. 10.26 Points (6) and (15) are of particular relevance in cases involving victims of trafficking. A  victim of trafficking may be able to demonstrate that whilst it could not be said that such a general insufficiency of state protection had been established, having regard to his particular circumstances (and in particular that he had already been subjected to persecution) the authorities in his country 383

10.27  International protection and human rights claims brought by victims of human trafficking

of origin would be unlikely to provide the additional protection which the circumstances particular to that applicant reasonably required44. 10.27 In HD (Trafficked women) Nigeria CG45 the Upper Tribunal observed that in Kacaj (Article 3 – Standard of proof – non state actors) Albania46, the tribunal held that Horvath was not to be read as deciding that there will be a sufficiency of protection whenever the authorities in the receiving state are doing their best. If this best can be shown to be ineffective, it may be that an applicant can establish that there is an inability to provide the necessary protection. But it is a practical standard. The fact that a system may break down because of incompetence or venality of individual officers is generally not to be regarded as establishing unwillingness or inability to provide protection. In many cases the existence of the system will be sufficient to remove the reality of the risk.The Upper Tribunal observed47 in respect of Nigeria, that merely because Nigeria is ‘doing its best’ to meet its international obligations to prevent trafficking does not necessarily result in a finding that there is sufficiency of protection for those identified as being at risk of being trafficked. Sufficiency of protection is the combination of willingness and ability to provide protection to a level that can reasonably be expected to meet and overcome the real risk of serious harm from non-state agents. The ‘reasonable protection’ required is assessed in the context of the risk, absent that protection, against which it must provide. The Upper Tribunal noted that the state shelters did not monitor those who left48, women stayed in the shelter for only short periods49 thus rendering the protection available to an individual to abuse insufficient. The Upper Tribunal concluded, viz sufficiency of protection, ‘in making an assessment whether an individual is vulnerable to abuse a careful analysis of all her personal characteristics is required to assess whether the indicators of risk, including any mistreatment in her previous exploitative situation and the consequences of that for her personally’50. 10.28 In TD and AD (Trafficked women) Albania CG51 the Upper Tribunal observed52 that notwithstanding systemic sufficiency of state protection in the receiving state, an appellant may still have a well-founded fear of persecution if she can show that the authorities know or ought to know of circumstances particular to her case giving rise to her fear, but are unlikely to provide the additional protection her particular circumstances reasonably require. In the case of 44 See AW (sufficiency of protection) Pakistan [2011] UKUT 31(IAC) at 34–35, 39–40. 45 [2016] UKUT 00454 (IAC), see para 71. 46 [2001] UKIAT 00018 at [21]. 47 See para 172. 48 See para 174. 49 Ibid. 50 See para 175. 51 [2016] UKUT 00092. 52 Ibid para 114.

384

Refugee Convention 10.31

Albanian trafficked women, the Upper Tribunal set out a non-exhaustive list of individual circumstances that must be considered in determining whether they are able to access sufficiency of protections ((H) of headnote): (1) The social status and economic standing of her family. (2) The level of education of the victim of trafficking or her family. (3) The victim of trafficking’s state of health, particularly her mental health. (4) The presence of an illegitimate child. (5) The area of origin. (6) Age. (7) What support network will be available.

Internal relocation 10.29 As outlined above, the Refugee Convention provides international protection to those unable to receive protection in their own country. Accordingly, a purely localised risk will generally be insufficient to qualify for refugee status because the victim could relocate to another area within his own country. 10.30 The correct approach to internal relocation was confirmed by the House of Lords in AH (Sudan) v Secretary of State for the Home Department53. Lord Bingham recalled what he had said in Januzi v Secretary of State for the Home Department54 at [21]: ‘The decision-maker, taking account of all relevant circumstances pertaining to the claimant and his country of origin, must decide whether it is reasonable to expect the claimant to relocate or whether it would be unduly harsh to expect him to do so’. 10.31 Lord Bingham continued in AH (Sudan) at para 5: ‘It is, or should be, evident that the enquiry must be directed to the situation of the particular applicant, whose age, gender, experience, health, skills and family ties may all be very relevant.There is no warrant for excluding, or giving priority to, consideration of the applicant’s way 53 [2007] UKHL 49, [2008] 1 AC 678. 54 [2006] UKHL 5, [2006] 2 AC 426.

385

10.32  International protection and human rights claims brought by victims of human trafficking

of life in the place of persecution. There is no warrant for excluding, or giving priority to, consideration of conditions generally prevailing in the home country’. 10.32 Lord Hope explained at para 47: ‘The words “unduly harsh” set the standard that must be met for this to be regarded as unreasonable. If the claimant can live a relatively normal life there judged by the standards that prevail in his country of nationality generally, and if he can reach the less hostile part without undue hardship or undue difficulty, it will not be unreasonable to expect him to move there.’ 10.33 In AB (Jamaica)55 Lloyd LJ held: ‘31. It is plain from what Lord Bingham said that the test that he enunciated … which has in itself made reference to “a relatively normal life”, is one which needs to be addressed by decision makers in relation to the facts of a particular case and, accordingly, by reference to those aspects of the facts which are said to … be relevant to the question of unreasonableness or undue harshness …’ ‘35 … to say that “destitution is the test” is oversimplified and could lead into error a reader who did not pursue the cross-reference to Januzi’. 10.34 In AS (Afghanistan)56 the Court of Appeal declined the Secretary of State for the Home Department’s invitation to subordinate the overall test to a relative approach focusing on whether a ‘significant minority’ of a country’s population live in similarly poor conditions to those in the proposed place of relocation, and accepted the appellant’s and UNHCR’s (who intervened) submission that there is ultimately a threshold below which such conditions would be unreasonable.  10.35 Particular considerations are likely to arise when considering removing a victim of trafficking to his country of origin. In AA (Uganda)57 in applying the factors identified by Lord Bingham in AH (Sudan) to the female appellant, the Court 55 AB (Jamaica) v Secretary of State for the Home Department [2008] EWCA Civ 784. 56 AS (Afghanistan) v the Secretary of State for the Home Department [2019] EWCA Civ 873. 57 AA (Uganda) v Secretary of State for the Home Department [2008] EWCA Civ 579, [2008] INLR 307.

386

Refugee Convention 10.37

of Appeal highlighted that she was ‘faced not merely with poverty and lack of any sort of accommodation, but with being driven to prostitution’. Buxton LJ concluded that enforced prostitution in the place of relocation would be unacceptable to the extent that it would be unduly harsh58. 10.36 As observed by the Upper Tribunal in HD (Trafficked women) Nigeria CG59 in determining whether the proposed place of internal relocation is unduly harsh, the assessment should include not only the particular personal circumstances of the individual, but those characteristics in the context of the potential area of relocation.The Upper Tribunal considered the prevalence of internal trafficking within Nigeria, not simply the risk of transnational trafficking and how readily identifiable an individual would be as an ‘outsider’ in place of relocation. The Upper Tribunal stated that, ‘it is not possible to state, on the evidence before us, that internal relocation is never a viable option. An individual factual analysis will always be required of a victim of trafficking’s vulnerability and its impact on the possibility of internal relocation if she is at real risk of being persecuted in her home area. However, the evidence before us indicates that where an individual has been identified as being at real risk of being trafficked, the possibility of internal relocation will be severely limited; particularly where she is vulnerable to abuse because of lack of skills, mental and psychological problems and isolation’60. 10.37 In TD and AD (Trafficked women) Albania CG61 the Upper Tribunal stated that, ‘the assessment on the individual characteristics of the claimant must include her personal history, and its relevance in the society in which she is relocating’. As stated by Wilson LJ (as he then was) in VNM62: ‘it is obvious that the reasonableness of her relocation in a different part of Kenya requires consideration of the practicability of her settling elsewhere; consideration of her ability convincingly to present to those in her new milieu a false history relating to herself and to her daughter, including the latter’s paternity, and a false explanation for their arrival there; and, in the light of her substantial psychological vulnerability, consideration of her ability to sustain beyond the short term a reasonable life for them both on that false basis’.

58 AA (Uganda) v Secretary of State for the Home Department [2008] INLR 307 at 17. 59 [2016] UKUT 00454 (IAC) see para 185. 60 See para 186. 61 [2016] UKUT 00092. 62 VNM v Secretary of State for the Home Department [2006] EWCA Civ 47 at para 25.

387

10.38  International protection and human rights claims brought by victims of human trafficking

Credibility 10.38 Whether a victim of trafficking can discharge the burden of proof is clearly linked with his credibility. It is important to look at this in detail because the Secretary of State frequently rejects asylum claims by rejecting an applicant’s credibility63.The Home Office is a first responder and can refer a potential victim of modern slavery into the NRM64 for a trafficking identification decision. For a detailed description of the NRM process, see Chapter 2. An applicant can be identified as a potential victim of trafficking and referred to the NRM at any stage of the asylum process. The Home Office Asylum Policy Instruction, Assessing Credibility and Refugee Status states that Home Office competent authority caseworkers are responsible for deciding whether someone referred to the NRM is a victim of trafficking65. Accordingly, caseworkers determining an applicant’s asylum/human rights claim usually adopt the decisions of the competent authority as to whether the applicant is a victim of trafficking unless an applicant has been accepted as a victim of trafficking and there is clear evidence to the contrary66. Given that a higher standard of proof is required for a positive conclusive grounds decision (balance of probabilities) and that the Single Competent Authority is the Home Office, a positive reasonable or conclusive grounds decision that an asylum applicant is a victim of trafficking, should be treated as a concession67 in the context of the asylum claim (i.e. the appellant is a victim of trafficking). 10.39 Cases will be referred to the Single Competent Authority (‘SCA’)68. The SCA is entitled to consider credibility as part of their decision-making process at both the reasonable grounds and conclusive grounds stages and are advised when assessing the credibility of an account to consider both the external and internal credibility of the material facts69. 10.40 There is detailed guidance for public authorities on how to identify a victim of trafficking70. The Home Office Guidance accepts that the identification 63 The House of Commons, Home Affairs Committee, Seventh Report of Session 2013–2014, paras 12–13. 64 Home Office, Modern Slavery Act 2015 – Statutory Guidance for England and Wales, v.1 (March 2020), Part 4. 65 Home Office, Asylum Policy Instruction: Assessing Credibility and Refugee Status (6 January 2015) p 7. 66 Home Office, Asylum Policy Instruction: Assessing Credibility and Refugee Status (6 January 2015) p 15. 67 See fn 23. 68 Home Office, Modern Slavery Act 2015 – Statutory Guidance for England and Wales, v.1 (March 2020), Part 4. 69 Home Office, Modern Slavery Act 2015 – Statutory Guidance for England and Wales, v.1 (March 2020), Part 3 and Annex E. 70 Ibid Part 3.

388

Refugee Convention 10.42

decision-making process may be influenced by the views of the experts71. The statutory guidance recognises that there may be ‘mitigating reasons’ why a potential victim of trafficking is ‘incoherent, inconsistent or delays giving material facts’ and directs that the competent authority must take those reasons into account when considering the credibility of a claim. In particular, the guidance states that such factors may include: •

trauma (mental, psychological, or emotional);

•

inability to express themselves clearly;

•

mistrust of authorities;

•

feelings of shame;

•

painful memories (including those of a sexual nature).

Children may be unable to disclose or give a consistent credible account due to additional factors such as: • their age; •

the ongoing nature of abuse throughout childhood;

•

fear of traffickers or modern slavery facilitators, violence, or witchcraft72.

10.41 Whilst the guidance acknowledges the reasons why a victim of trafficking may be incoherent, inconsistent or delay in giving material facts, the guidance also directs that it is ‘reasonable to assume that a potential victim who has experienced an event will be able to recount the central elements in a broadly consistent manner’ and an ability to remain consistent throughout may lead the competent authority to disbelieve his claim73. 10.42 A negative reasonable or conclusive grounds decision which fails to take into account either the indicators pointing in favour of a positive trafficking decision or a failure of the SCA to consider the statutory guidance specifically on credibility and factors which may impact on the ability to provide a consistent or coherent account, will likely be unlawful74. If a decision refusing an asylum claim adopts the reasoning of the SCA in a negative reasonable or conclusive grounds decision, it is good practice to consider whether the SCA placed weight on the indicators of trafficking and/or specifically considered and rejected the mitigating factors identified above. 71 Ibid Annex E at 14.24. 72 Ibid Part 6, Annex D and E. 73 Ibid Annex E. 74 See R(SF) v Secretary of State for the Home Department [2015] EWHC 2705 (Admin); R(FK) v Secretary of State for the Home Department [2016] EWHC 56 (Admin) and R(EK) v Secretary of State for the Home Department [2019] EWHC 1696 (Admin).

389

10.43  International protection and human rights claims brought by victims of human trafficking

European Convention on Human Rights Introduction 10.43 Where a victim of trafficking is not a refugee, he may be entitled to humanitarian protection if there are substantial grounds for believing that he will face a real risk of ‘serious harm’ under the Immigration Rules75 or requires human rights protection if there is a real risk that his removal would engage a breach of the ECHR.

Article 3 10.44 Article 3 of the ECHR states that ‘no one shall be subjected to torture or to inhuman or degrading treatment’. The right not to be tortured or subjected to inhuman or degrading treatment is an unqualified right and can never be balanced or given way to other competing considerations76. 10.45 The ECtHR has repeatedly held that the benchmark for the necessary level of severity required to prove torture or inhuman and degrading treatment is relative, and depends on factors including the duration of the treatment, its physical or mental effects, and the age, sex, vulnerability and state of health of the victim77. It could include the risk of reprisals or re-trafficking from the victim of trafficking’s former traffickers and/or other forms of exploitation from others. 10.46 The assessment of the risk is carried out by reference to the applicant’s personal history and to the human rights conditions in the country of origin in much the same way as the Refugee Convention assessment. However, there is no requirement that the torture or inhuman or degrading treatment be for reason of a Convention reason (i.e. for reasons of race, religion, nationality, membership of a particular social group or political opinion).

75 Immigration Rule 339C. 76 See MSS v Belgium and Greece (2011) 53 EHRR 28. 77 For example, see Soering v UK (1989) 11 EHRR 439 at 100.

390

European Convention on Human Rights 10.49

10.47 The ECHR does not provide a definition of torture, but the acts must be deliberately inflicted and must cause suffering to a high degree of intensity. Severe pain or suffering can be inflicted by physical acts, but also by non-physical acts. There are two types of torture, physical and psychological. Psychological or mental torture includes, for example, threats to kill or torture relatives, being kept in constant uncertainty in terms of space or time and the threat of torture in and of itself can be a form of psychological torture78. The ECtHR does not require that these acts be instigated or undertaken by public officials79. There is no requirement that the treatment be inflicted to obtain information for a finding of torture80. Rape81 has been recognised as torture. 10.48 A  risk of sexual abuse and gang attacks has been held to engage Art 382. In Ranstev v Cyprus and Russia83 the Court held that the ill-treatment was ‘inherently linked to the alleged trafficking and exploitation.’ Consequently, the Court assessed it was not necessary to consider a violation of ECHR, Art 3 separately. In Opuz v Turkey84 the Court held that the physical injuries and psychological pressure committed by the applicant’s husband amounted to ill-treatment within Art 3. Concerning children, the Committee on the Rights of the Child defines torture and inhuman or degrading treatment or punishment as ‘violence in all its forms against children in order to […] punish children for unlawful or unwanted behaviours, or to force children to engage in activities against their will’85.

Trauma-based claims Suicide risk and mental health deterioration 10.49 On account of the trauma victims of trafficking have experienced, some cases may raise a real risk of suicide. In J v Secretary of State for the Home Department86, 78 UN Economic and Social Council, Commission on Human Rights, Report by the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, P Koojmans, E/CN.4/1986/15(1986), paras.118–119 and C Ingelese, the UN Committee against Torture – An Assessment (2001), p 226 79 HLR v France (1997) 26 EHRR 29, para 40. 80 Selmouni v France (1999) 29 EHRR 403, para 101; R v Secretary of State for the Home Department, ex p Singh [1999] INLR 632 at 637. 81 Aydin v Turkey (1998) 25 EHRR 251, paras 80-87. 82 A v Secretary of State for the Home Department [2003] EWCA Civ 175, [2003] All ER(D) 151 (Jan) at para 32. 83 (2010) 51 EHRR 1. 84 (App No 33401/02) (9 June 2009). 85 UN Committee on the Rights of the Child, CRC General Comment No.13: The right of the child to freedom from all forms of violence, CRC/C/GC/13 (18 April 2011), para 26. 86 [2006] EWCA Civ 1238.

391

10.50  International protection and human rights claims brought by victims of human trafficking

the Court of Appeal found that Art 3 may be breached if there is a real risk of committing suicide as a foreseeable consequence of the decision to remove, whether on being informed of the removal direction, in the course of removal or after arrival in the country of origin87.The court drew a distinction between ‘domestic cases’ and ‘foreign cases’88. The risk of suicide on being informed of an adverse immigration decision and in the course of being removed from the UK (both of which are ‘domestic cases’), the tribunal would be entitled to assume that the UK authorities would take all reasonable steps in accordance with its obligations under the Human Rights Act 1998 to protect the individual from self-harm, including by the practice of arranging escorts to accompany the person on removal89. A  real risk that the person would commit suicide after arrival in the receiving State might not be sufficient to establish an Art 3 breach, because what happens to the person on and after arrival is treated as a ‘foreign case’ (i.e. one in which the alleged violation takes place outside of the jurisdiction of the sending State), making the Art 3 threshold particularly high90. An issue of considerable relevance in this context is whether the removing and the receiving states have effective mechanisms for reducing the suicide risk and whether those mechanisms are accessible to the particular individual91. It remains to be seen how the Art 3 procedural safeguards considered by the Supreme Court in AM (Zimbabwe)92 and the ECtHR judgment of Savran v Denmark93 will be applied in suicide risk cases. 10.50 In Y v Secretary of State for the Home Department94 the Court of Appeal that the removal of a brother and sister to Sri Lanka would breach Art 3. This was in circumstances where they had both been tortured and the sister raped, where they subjectively feared similar treatment if returned, notwithstanding that their fear was not objectively well-founded, and where they would have no family or other social support, created such a likelihood that they would commit suicide in order to escape isolation and fear. 10.51 In AXB (Art 3 health: obligations; suicide) Jamaica95 the Upper Tribunal rejected the appellant’s argument that the ‘exceptional circumstances’ test did not apply in suicide risk cases. The Upper Tribunal concluded that following the case of RA (Sri Lanka) v Secretary of State for the Home Department96 the factors in 87 [2005] Imm AR 409. 88 Ibid at 16–17. 89 Ibid at 57, 61–62. 90 Ibid at 28. 91 AJ (Liberia) v Secretary of State for the Home Department [2006] All ER (D) 230 at 27–31. 92 [2020] UKSC 17. 93 (App No 57467/15) [2019] ECHR 651. 94 [2010] INLR 178. 95 [2019] UKUT 00397 (IAC). 96 [2008] EWCA Civ 1210.

392

European Convention on Human Rights 10.53

J are merely an expression of how that exceptional circumstances test should be applied. As the ECtHR clarified in Paposhvili v Belgium97 that ‘such other very exceptional cases’ should be understood to refer to ‘situations involving removal of a seriously ill person which substantial grounds have been shown for believing that he or she, although not at imminent risk of dying, would face a real risk, on account of the absence of appropriate treatment in the receiving country or the lack of access to such treatment, of being exposed to a serious, rapid and irreversible decline in his or her state of health resulting in intense suffering or to a significant reduction in life expectancy’. The Supreme Court in AM (Zimbabwe)98 observed that ‘it is for the applicant to raise a ‘prima facie case’ of potential infringement of Art 3. This means a case, which, if not challenged or countered, would establish the infringement.’99 Once the applicant has presented evidence to establish a prima facie case of infringement it will be for the returning state to counter it in the manner outlined in the Paposhvili v Belgium100 case. 10.52 In Savran v Denmark101, the ECtHR observed: ‘…It is not a question of ascertaining whether the care in the receiving state would be equivalent or inferior to that provided by the healthcare system in the returning state (see paragraph  46 above). Rather, the question is whether the applicant, if he were not able to receive “appropriate” treatment in Turkey, would be exposed to a serious, rapid and irreversible decline in his state of health, resulting in intense suffering (see paragraph 45 above).’ The ECtHR went on to reiterate that the existence of a social and family network is also one of the important elements to consider when assessing whether an individual has access to medical treatment102.

Article 4 10.53 Article 4 of the ECHR states that: ‘1

No one shall be held in slavery or servitude.

2

No one shall be required to perform forced or compulsory labour.

97 (App No 41738/10) (13 December 2016) at para 183. 98 AM (Zimbabwe) v Secretary of State for the Home Department [2020] UKSC 17 99 See para 32 of the judgment. 100 At paras 187–191. 101 (App No 57467/15) (1 October 2019). 102 At para 62.

393

10.54  International protection and human rights claims brought by victims of human trafficking

For the purposes of this Article the term ‘forced or compulsory labour’ shall not include: (a) any work required to be done in the ordinary course of detention imposed according to the provisions of Article 5 of this Convention or during conditional release from such detention; (b) any service of a military character or,in the case of conscientious objectors in countries where they are recognised, service exacted instead of compulsory military service; (c) any service exacted in case of an emergency or calamity threatening the life or well-being of the community; (d) any work or service which forms part of normal civic obligations.’ Trafficking and Art 4

10.54 In Rantsev v Cyprus and Russia103 the ECtHR considered on the one hand, evidence about the increasing scale of trafficking in human beings as a global phenomenon, and on the other the proliferation of measures necessary to combat it.Whilst noting that the ECHR,Art 4 makes no reference to trafficking, it reminded itself that the Convention is ‘a living instrument which must be interpreted in the light of present-day conditions. The increasingly high standards required in the area of protection of human rights and fundamental liberties correspondingly and inevitably require greater firmness in assessing breaches of the fundamental values of democratic societies’104. It also reminded itself of the obligation to interpret the ECHR in harmony with other rules of international law105 and cited in particular the definitional provisions in the Palermo Protocol and ECAT106. Having done so, it held107: ‘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 of [ECAT], falls within the scope of Article 4 of the Convention.’

103 (2010) 51 EHRR 1. 104 Ibid at 277. 105 Ibid at 274. 106 Palermo Protocol, Art 3 and ECAT, Art 4. 107 Rantsev v Cyprus and Russia at 282.

394

European Convention on Human Rights 10.56

Chapter 1 sets out in detail the definition of a victim of trafficking as applied both domestically and by the ECtHR.

Slavery 10.55 The ECtHR defines slavery as that contained in the 1926 Slavery Convention, which is that slavery is ‘the status or condition of a person over whom any or all of the powers attaching to the rights of ownership are exercised’108. The Supplementary Convention on the Abolition of Slavery, the Slave Trade and Practices similar to Slavery 1956, Art 1, defined ‘institutions and practices similar to slavery’ as including the following: debt bondage109; serfdom110; forced and servile forms of marriage111 and the delivery of a child by his or her parents or guardians for the exploitation of the child’s labour.

Servitude 10.56 ‘Servitude’ is an obligation to provide one’s services that is imposed by the use of coercion and is linked with the concept of slavery112. In CN and V v France113, the Court noted that servitude was a specific form of forced or compulsory labour, or, in other words, ‘aggravated’ forced or compulsory labour. The fundamental distinguishing feature between servitude and forced or compulsory labour within the meaning of Art 4 of the Convention lies in the victims’ feeling that their condition is permanent, and that the situation is unlikely to change. 108 Siliadin v France (App No 73316/01) (2005) 43 EHRR 287, 20 BHRC 654. 109 ‘[T]hat is to say, the status or condition arising from a pledge by a debtor of his personal services or of those of a person under his control as security for a debt, if the value of those services as reasonably assessed is not applied towards the liquidation of the debt or the length and nature of those services are not respectively limited and defined’. 110 That is to say, the condition or status of a tenant who is by law, custom or agreement bound to live and labour on land belonging to another person and to render some determinate service to such other person, whether for reward or not, and is not free to change his status. 111 Any institution or practice whereby: (i) a woman without the right to refuse, is promised or given in marriage on payment of a consideration in money or in kind to her parents, guardian, family or any other person or group; or (ii) the husband of a woman, his family, or his clan has the right to transfer her to another person for value received or otherwise; or (iii) a woman on the death of her husband is liable to be inherited by another person. See also OSCE, Unprotected Work, Invisible Exploitation:Trafficking for the Purposes of Domestic Servitude (June 2010) p 44. Payment of money to a woman’s parents in respect of a marriage would not necessarily be ‘considered to amount to a price attached to the transfer of ownership, which would bring into play the concept of slavery. The court reiterates that marriage has deep-rooted social and cultural connotations which may differ largely from one society to another. According to the court, this payment can reasonably be accepted as representing a gift from one family to another, a tradition common to many different cultures in today’s society’: M v Italy (2013) 57 EHRR 29, para 161. 112 Siliadin v France (Application 73316/01) (2005) 43 EHRR 287, 20 BHRC 654. 113 Application No 67724/09 (2012), see para 91.

395

10.57  International protection and human rights claims brought by victims of human trafficking

The Court found it sufficient that this feeling be based on the feeling of an impossibility of altering his/her condition or be brought about or kept alive by those responsible for the situation. 10.57 In R  v Khan, Khan and Khan114 the Criminal Court of Appeal upheld the appellants’ convictions for forced labour, despite the complainants returning to their employers after spending some time in their home country. The Court concluded that the extreme vulnerability of the victims meant that there were limited from a financial point of view. Their relative economic poverty and their dependency on the victims and the employers ‘abuse of their vulnerability’ was an accepted indicator of recruitment into forced labour. The Court held at [18], ‘the return of the workers does not constitute evidence that the conditions to which the workers were subjected were acceptable but, in the circumstances of the present case, is evidence of further exploitation by the offenders of personal circumstances of which they knew they could take advantage.’ 10.58 The decision of the Court of Appeal in R  v Connors115 is notable for the following observations of the Lord Chief Justice on what he described as ‘the troublesome crime of exploitation of labour’, at [5]: ‘The problem has been with us for some time, and has been growing. Unhappily different forms of exploitation are found in the sex industry, the construction industry, agriculture and residential care. That list is not comprehensive. Those who are exploited are always and inevitably vulnerable, and just because they are so vulnerable, profoundly reluctant to report what has happened or is happening to them.The Asylum and Immigration Act 2004 criminalised the exploitation of labour when it was connected to trafficking in human beings, but not otherwise. Therefore, it did not prevent vulnerable but un-trafficked individuals from being subjected to forced or compulsory labour. The Gang Masters’ Licensing Act 2004 established a system for licensing those who employed workers in specified industries. Nevertheless, this legislation, too did not address the entire problem. The end result was that many men and women continued to remain vulnerable to exploitation without any counter-balancing protection against exploitation.’ 10.59 In the Dutch Supreme Court, the Court gave guidance on the concept of ‘abuse of a vulnerable position’.The case concerned six irregular migrants who, desperate for work and afraid of being discovered by authorities, approached a 114 [2010] EWCA Crim 2880. 115 [2013] EWCA Crim 324.

396

European Convention on Human Rights 10.61

Chinese restaurant owner for work. They were provided with accommodation and work that paid well below the minimum wage. The Supreme Court disagreed with the lower courts that the perpetrator must ‘intentionally abuse’ the vulnerable position of the victims. The Court held that ‘conditional intent’ is sufficient: it was enough that the perpetrator was aware of the state of affairs that must be assumed to give rise to power or a vulnerable position116. 10.60 In CN  v UK117 the ECtHR underlined that domestic servitude is a specific offence and involves a complex set of dynamics, involving both overt and more subtle forms of coercion to force compliance, investigation of which requires an understanding of the many subtle ways an individual can fall under the control of another.The ECtHR understanding of servitude and forced labour has been informed by the findings of the Parliamentary Assembly of the Council of Europe that ‘today’s slaves are predominantly female and usually work in private households, starting out as migrant domestic workers’118. The International Labour Organization’s (‘ILO’) Domestic Workers Convention119 recognises that domestic work is ‘mainly carried out by women and girls, many of whom are migrants or members of disadvantaged communities and who are particularly vulnerable to discrimination in respect of conditions of employment and of work, and to other abuses of human rights’. It aims to protect them by regulating relations between domestic workers and their employers, e.g. by requiring specified terms and conditions of employment120; a contract of employment for a worker recruited in one country to be employed in another121; the worker to retain possession of his passport and identity card122 and regular payment of wages123. An employer’s non-compliance with such requirements may support an inference that there is a situation of servitude or forced labour. 10.61 A number of decisions by the ECtHR have concerned such workers. In Siliadin v France124 the court found a young woman to have been held in servitude given the circumstances: that she was brought to France as a child by a relative; her relatives transferred her to her employers; her employers manipulated her fear of being arrested owing to her unlawful immigration status; she was made to work long hours, seven days each week without remuneration; she was not permitted 116 Supreme Court, 27 October 2009, LJN: B17099408. 117 (2012) 56 EHRR 24. 118 Siliadin v France [2005]  ECHR  545, para  88, noting the Parliamentary Assembly’s Recommendation 1663 (2004), adopted on 22 June 2004 cited in para 49. 119 C189 – Domestic Workers Convention 2011 (No  189); Convention concerning decent work for domestic workers. 120 Ibid, Art 7. 121 Ibid, Art 8. 122 Ibid, Art 9. 123 Ibid, Art 12. 124 (App No 73316/01) (2005) 43 EHRR 287, 20 BHRC 654.

397

10.62  International protection and human rights claims brought by victims of human trafficking

to leave the house in which she worked, save to take the children to school; she had no freedom of movement and no free time; the promise that she would be sent to school was broken and she had no hope of her situation improving125. In a subsequent case the Court found the applicant’s claimed circumstances to be ‘remarkably similar’ and to give rise to a credible suspicion that she had been held in domestic servitude126.

Forced or compulsory labour 10.62 The drafters of the ECHR relied on the definition of ‘forced or compulsory labour’ contained in the ILO’s Forced Labour Convention127 and the ECtHR has relied on the ILO  Conventions which are binding on almost all of the Council of Europe Member States for the purpose of interpreting Art 4128. The Forced Labour Convention defines ‘forced or compulsory labour’ as meaning ‘all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily’129.The ECtHR noted in CN and V v France130 that in the global report ‘The cost of coercion’ adopted by the International Labour Conference in 1999, the notion of ‘penalty’ is used in the broad sense, as confirmed by the use of the term ‘any penalty’. It therefore considered that the ‘penalty’ may go as far as physical violence or restraint, but it can also take subtler forms, of a psychological nature, such as threats to denounce victims to the police or immigration authorities when their employment status is illegal. 10.63 The ECtHR treats the ILO definition as ‘a starting point’ for interpreting Art 4, whilst bearing in mind that the ECHR is a living instrument to be read in the light of currently prevailing notions131. It is noteworthy that the ILO definition refers to ‘all work or services’ and so encompasses all types of work, employment or occupation, irrespective of the nature of the activity performed, its legality or illegality under national law or its recognition as an ‘economic activity’; thus it can apply as much to factory work as to prostitution or begging132.

125 Siliadin v France [2005] ECHR 545, para 129. 126 CN v UK (App No 4239/08) [2012] ECHR 1911. 127 Van der Mussele v Belgium (App No 8919/80) (1983) 6 EHRR 163, [1983] ECHR 8919/80, at 32. 128 Siliadin v France [2005] ECHR 545 at 115. 129 Forced Labour Convention 1930 (No 29), Art 2(1). 130 (App No 67724/09) (2012), see para 77. 131 Van der Mussele v Belgium (App No 8919/80) (1983) 6 EHRR 163, [1983] ECHR 8919/80, at 32. 132 Joint UN Commentary on the EU Directive – A Human Rights-Based Approach (2011) p 102, citing ILO, The Cost of Coercion (2009).

398

European Convention on Human Rights 10.65

10.64 The ILO has developed indicators of forced labour, described by the ECtHR in CN v United Kingdom133 as ‘a valuable benchmark in the identification of forced labour’134. As listed by the court they were: ‘1

threats or actual physical harm to the worker;

2

restriction of movement and confinement to the workplace or to a limited area;

3

debt bondage: where the worker works to pay off a debt or loan, and is not paid for his or her services. The employer may provide food and accommodation at such inflated prices that the worker cannot escape the debt;

4

withholding of wages or excessive wage reductions that violate previously made agreements;

5

retention of passports and identity documents, so that the worker cannot leave, or prove his/her identity and status;

6

threat of denunciation to the authorities, where the worker is in an irregular immigration status’135.

In Chowdury v Greece136 the ECtHR held that freedom of movement is not determinative of whether there is forced labour or trafficking. 10.65 In CN  v United Kingdom137 the ECtHR held the UK’s investigation of an allegation of trafficking to have been inadequate because it failed to give any weight to features of the applicant’s situation that were among the ILO’s indicators of forced labour138. The Supreme Court in Hounga v Allen139 applied the ILO’s indicators of forced labour to hold that the appellant was (at least for the purposes of that case) a victim of trafficking on the basis that there had been physical harm or threats of physical harm from her employers; there had been withholding of wages and there had been threats of denunciation to the authorities in circumstances where she had irregular immigration status140. In Siliadin the ECtHR held that the applicant domestic worker was in a situation 133 (App No 4239/08) [2012] ECHR 1911. 134 Ibid at 35. 135 Ibid at 35. An ILO publication, ILO Indicators of Forced Labour lists 11 indicators that are ‘derived from the theoretical and practical experience of the ILO’s Special Action Programme to Combat Forced Labour’. 136 (App No 21884/15), at para 123. 137 (App No 4239/08) [2012] ECHR 1911. 138 Ibid para 80. Those features were ‘the applicant’s allegations that her passport had been taken from her, that [her employer] had not kept her wages for her as agreed and that she was explicitly and implicitly threatened with denunciation to the authorities’. 139 [2014] UKSC 47, [2014] 1 WLR 2889, [2014] IRLR 811. 140 Ibid at 49.

399

10.66  International protection and human rights claims brought by victims of human trafficking

of forced labour. Whilst not threatened by a ‘penalty’ she was nevertheless in an equivalent position: ‘she was an adolescent girl in a foreign land, unlawfully present on French territory and in fear of arrest by the police. Indeed, [her employers] nurtured that fear and led her to believe that her status would be regularised’141. Lady Hale explained that the ’breakthrough in Siliadin was recognising that Art 4 imposed, not only negative, but positive obligations upon the state.’142 10.66 Giving prior consent to undertaking the labour does not by itself establish that the individual offered himself voluntarily: account has to be taken of all the circumstances of the case, including whether it imposed a burden which was so excessive or disproportionate to the anticipated rewards or advantages that resulted in the consent being given143.

Child labour 10.67 The employment of children may constitute servitude or forced labour. Employment of children is prohibited by the Charter of Fundamental Rights of the EU144. There is no specific definition of what constitutes forced labour of children. Therefore, the generic definition contained in the Forced Labour Convention is applied. However, the concepts of ‘involuntariness’ and ‘penalty/ menace of a penalty’ presented above for adults, need to be reassessed in the case of forced labour of children145. 10.68 Forced labour, the notion of ‘offering oneself voluntarily’ must be interpreted in light of the fact that, in legal terms, a child below the age of legal majority cannot him or herself give consent to work, and therefore the consent of the parent(s) must be considered instead. Likewise, the ‘penalty’ can be applied to the parents, rather than directly to the child.The ILO considers four dimensions of forced labour of children as indicators to assist: (1) Unfree recruitment of children (forced and deceptive recruitment) – made either to child or the child’s carers.

141 Siliadin v France [2005] ECHR 545 at 118. 142 MS v Secretary of State for the Home Department [2020] UKSC 9 at 23. 143 Van der Mussele v Belgium (App No 8919/80) (1983) 6 EHRR 163, [1983] ECHR 8919/80 at 37. 144 Art 32. 145 ILO, Harder to see, harder to count: Survey guidelines to estimate forced labour of adults and children (June 2012).

400

European Convention on Human Rights 10.69

(2) Work and life of children under duress – this may entail excessive volume of work or tasks beyond what is reasonably expected of a child (physical and mental capacity) – excessive dependency imposed on the child. (3) Impossibility for children to leave their employer – this may be something seemingly less significant than for an adult, for example, an inference that his or her parents would be extremely unhappy or disappointed if he were to leave, and that the family would suffer as a result. (4) Coercion of children – six sub-categories of coercion in ILO indicators of adults also apply. However, given the young age and heightened vulnerability of children, the details for each sub-category require some modification, such as: the non-wage benefits promised to children may differ, including schooling or financial assistance for their future wedding; the mere fact of being unable to contact his or her parents may constitute isolation for a young child, whereas this would not be the case for an adult; less physical coercion or fewer threats may be needed to intimidate and subordinate a child than an adult; and the abuse of vulnerability can take many more and different forms with children than with adults. 10.69 ILO  Conventions reiterate the need for states to set a minimum age for children to work and to prohibit those under 18 from engaging in work likely to jeopardise the health, safety or morals of young persons. Child domestic servitude is an increasingly prevalent form of exploitation, often facilitated by socially and culturally-accepted practices of placing a child with a wealthier family or household in the belief that doing so will improve the child’s access to education and life chances146. These practices, rooted in misplaced trust, are prohibited by the Supplementary Convention on the Abolition of Slavery, the Slave Trade and Practices similar to Slavery 1956147.

146 OSCE, Unprotected Work, Invisible Exploitation: Trafficking for the Purposes of Domestic Servitude (June 2010) p 24. Arrangements are often made as a purported ‘private fostering’ whereby a child may enter the UK on another child’s passport to live with a ‘relative’ or to join someone claiming asylum or may be left behind in the UK when the parents leave. Although a regulatory system is in place for social services to assess and monitor bone fide private fostering arrangements of which they are notified, those involving trafficked children exploited for domestic servitude or benefit fraud remain hidden: see www.ecpat.org. uk/sites/default/files/understanding_papers/understanding_private_fostering.pdf. 147 Art 1(d) prohibiting ‘any institution or practice whereby a child or young person under the age of 18 years, is delivered by either or both of his natural parents or by his guardian to another person, whether for reward or not, with a view to the exploitation of the child or young person or of his labour.’

401

10.70  International protection and human rights claims brought by victims of human trafficking

10.70 Members States of the ILO are obliged to eliminate ‘the worst forms of child labour’148.The ILO Worst Forms of Child Labour Convention at Art 3(c) states that the worst forms of child labour, comprise of: the use, procuring or offering of a child for illicit activities, in particular for the production and trafficking of drugs as defined in the relevant international treaties, as echoed in Art 33 of the UN Convention on the Rights of the Child 1989.There is increasing prevalence that children are targeted by organised criminal networks or gangs for drug production and movement of drugs (see Chapter 15 for further information). Article 3(d) of the ILO Convention also states that a worst form of child labour is work which, by its nature or the circumstances in which it is carried out, is likely to harm the health, safety or morals of children. See Chapter 1 for a detailed account of the interplay between these international instruments and the meaning of ‘exploitation’ within child trafficking.

Positive obligations under ECHR, Art 4 10.71 Article 4 of the ECHR imposes a range of positive obligations on signatory states. National legislation must contain a spectrum of safeguards ‘adequate to ensure the practical and effective protection of victims or potential victims of trafficking’149. 10.72 The state’s potential obligations under ECHR, Art 4 are to: (1) make specific provisions in their criminal law (see Chapter 4); 148 ILO  Convention concerning the prohibition and immediate action for the elimination of the worst forms of child labour No 182 (1999), Art 6(1). The ‘worst forms of child labour’ are identified in Art 3 as: ‘a. all forms of slavery or practices similar to slavery, such as the sale and trafficking of children, debt bondage and serfdom and forced or compulsory labour, including forced of compulsory recruitment of children for use in armed conflict; b. the use, procuring or offering of a child for prostitution, for the production of pornography or pornographic performances; c. the use, procuring or offering of a child for illicit activities, in particular for the production and trafficking of drugs as defined in the relevant international treaties; d. work which, by its nature or the circumstances in which it is carried out, is likely to harm the health, safety or morals of children’. Hazardous work may include: work which exposes children to physical, psychological or sexual abuse; work underground, under water, at dangerous heights or in confined spaces; work with dangerous machinery, equipment or tools; work in an unhealthy environment exposing children to hazardous substances, agents or processes; work under particularly difficult conditions such as work for long hours or during the night or whether the child is unreasonably confined to the premises of the employer: ‘ILO  Worst Forms of Child Labour, Recommendation No 190, paragraph 3 (1999); ILO Convention concerning decent work for domestic workers No 189 Art 4 – setting a minimum age for domestic workers that is consistent with the Minimum Age Convention No 138 and the Worst Forms of Child Labour Convention No 182. ILO Domestic Worker Recommendation No 201. The ILO Declaration on Fundamental Principles and Rights at Work, 1998, declares that the effective abolition of child labour is an obligation arising from membership of the ILO. 149 Rantsev v Cyprus and Russia (2010) 51 EHRR 1 at 283.

402

European Convention on Human Rights 10.74

(2) identify victims of trafficking (see Chapter 2); (3) investigate/identify situations of potential trafficking (see Chapters 2 and 17); and (4) compensate victims of trafficking (see Chapter 12). This chapter is limited to reviewing how the state’s obligations may impact on a victim of trafficking’s proposed removal. 10.73 The Supreme Court in MS (Pakistan)150 observed that because of the defective NRM decision as to whether the appellant was a trafficked victim, he was denied the protective measures required by the Council of Europe Convention against Trafficking in Human Beings, 2015 (‘ECAT’), including the immigration status necessary for him to co-operate in the investigation and prosecution of the perpetrators. However, the appellant had effectively been removed from the risk of further exploitation, and the Upper Tribunal had decided that he would not be at further risk if returned to Pakistan. Nevertheless, there had not yet been an effective investigation of the breach of Art 4. The authorities were under a positive obligation to rectify that failure. It was clear that an effective investigation could not take place if the appellant was removed to Pakistan. As held by the Upper Tribunal in MS (Trafficking – Tribunal’s Powers – Art.4 ECHR) Pakistan, an attempt to remove a trafficking victim from the UK in circumstances where the procedural obligations have not been discharge will normally be unlawful and in breach of Art 4151. 10.74 The Upper Tribunal in EK (Article  4  ECHR: Anti-Trafficking Convention: Tanzania)152 held that removal directions made in respect of a victim of trafficking were unlawful and in breach of ECHR, Art 4. The Secretary of State had failed to consider the link between the UK’s breach of protective obligations (failure to apply specific domestic worker safeguards pre-entry) and the state of the appellant’s health as a consequence of her exploitation in the UK. Further, the Secretary of State had failed to consider Arts 12 (Assistance to victims),14 (Residence Permit) and 16 (Repatriation and return of victims) of ECAT when deciding to remove this appellant.

150 MS (Pakistan) v Secretary of State for the Home Department [2020] UKSC 9 paras 34–46. 151 [2016] UKUT 00226 (IAC) at para 58. 152 [2013] UKUT 00313 (IAC).

403

10.75  International protection and human rights claims brought by victims of human trafficking

Article 8 10.75 Article 8 of the ECHR provides a right to respect for one’s ‘private and family life, his home and his correspondence’, subject to certain restrictions that are ‘in accordance with law’ and ‘necessary in a democratic society’. Accordingly, the victim of trafficking’s private life will need to be balanced against the interests of immigration control in considering whether his removal would breach his Art 8 rights. 10.76 On 13 June 2012, the Secretary of State laid amendments to the immigration rules, which came into force on 9 July 2012. These were intended to define the ambit of ECHR, Art 8. Paragraph  276ADE of the Immigration Rules sets out the circumstances in which the Secretary of State will grant leave to remain in the UK on the ground of private life. With effect from 28 July 2014, para 276ADE(1)(vi) reads as follows: ‘is aged 18 years or above, has lived continuously in the UK for less than 20 years (discounting any period of imprisonment) but there would be very significant obstacles to the applicant’s integration into the country to which he would have to go if required to leave the UK’. 10.77 The Secretary of State’s Immigration Directorate Instruction on Family Migration153 provides guidance on this. It states: ‘The decision maker must consider all the reasons put forward by the applicant as to why there would be obstacles to their integration in the country of return. These reasons must be considered individually and cumulatively to assess whether there are very significant obstacles to integration. In considering whether there are very significant obstacles to integration, the decision maker should consider whether the applicant has the ability to form an adequate private life by the standards of the country of return – not by UK standards.The decision maker will need to consider whether the applicant will be able to establish a private life in respect of all its essential elements, even if, for example, their job, or their ability to find work, or their network of friends and relationships may be differently constituted in the country of return.’

153 Home Office, Immigration Directorate Instruction on Family Migration, Appendix FM Section 1.0b Family Life (as a Partner or Parent) and Private Life: 10-Year Routes (August 2015).

404

European Convention on Human Rights 10.81

10.78 There are clear reasons why there may be very significant obstacles to a victim of trafficking integrating into the country of origin, even if he was not at risk. These include, but are not limited to, his physical or mental health, the stigma and discrimination he may suffer from his family members, community or wider society. 10.79 In any event, it is now clear that whilst the Immigration Rules are a ‘relevant and important’ consideration which decision-makers are required to take into account in assessing proportionality, they are not a complete code that defines the ambit of the ECHR, Art 8154.The Immigration Rules and ECHR, Art 8 are not coterminous. Cases can succeed under Art 8 even when they fail under the Immigration Rules155. 10.80 The Secretary of State introduced the Art 8 public interest considerations, which apply in all cases where a court or tribunal is required to determine whether a decision made under the Immigration Acts breaches a person’s rights under Art 8156.This includes a provision that: ‘(5) Little weight should be given to a private life established by a person at a time when the person’s immigration status is precarious’. 10.81 This provision can have an impact on victims of trafficking. However, the public interest considerations detailed in the Nationality, Immigration and Asylum Act 2002 are not exhaustive157. In the context of a victim of trafficking’s Art 8 claim it may be prefaced on the need to rehabilitate from his trafficking experience or premised on the support network he has developed in the UK as a part of that process. Public interest within the context of Art 8 does afford decision-makers a degree of flexibility to uphold an Art 8 claim on the basis of the applicant’s right to respect for private life, even if it was established when the applicant’s status was precarious158. Both in criminal and employment claims the Supreme

154 Hesham Ali v Secretary of State for the Home Department [2016] UKSC 60. 155 MM v Secretary of State for the Home Department [2017] UKSC 10. 156 Nationality, Immigration and Asylum Act 2002, ss 117A and 117B, which are found in Part 5A, headed ‘Article 8 ECHR: Public Interest Considerations’. 157 Forman (ss 117A-C considerations) [2015] UKUT 00412 (IAC). 158 R( Rhuppiah) v Secretary of State for the Home Department [2018] UKSC 58 at para 49.

405

10.82  International protection and human rights claims brought by victims of human trafficking

Court and the Criminal Court of Appeal (presided over by the Lord Chief Justice) have considered public interest in the context of trafficking159.

Expert evidence in asylum and immigration proceeding 10.82 A  trafficking expert can be instructed to comment on whether a victim’s account meets the trafficking definition and/or chimes with his knowledge of trafficking cases from that particular region. A country expert can be instructed to comment on whether the victim of trafficking’s account is plausible in light of his knowledge of that particular country and risks on return for that victim. 10.83 In addition, expert evidence can be used to comment on issues that the victim of trafficking is unable or unwilling to comment on. For example, (i)

the power and reach of the traffickers160;

(ii) whether the victim of trafficking may still be under the control of the traffickers and therefore reluctant to provide full disclosure and/or be at risk of returning to them willingly; (iii) the ability and/or willingness of the authorities in the country of origin to provide protection; (iv) what support there is, if any, for victims of trafficking in the country of origin and the nature of that support; (v) whether the victim of trafficking would be able to access accommodation, employment, healthcare, etc in his country of origin161. This is not intended to be an exhaustive list, merely an indicator of the sort of matters an expert may be instructed to comment on. 10.84 All experts will need to demonstrate that they have the requisite expertise to comment on the matter that they are being instructed on. There are no set 159 In Hounga v Allen [2014] UKSC 47 Lord Wilson (with whom the majority agreed) found that the Court of Appeal’s decision to uphold a defence of illegality to a complaint by an employee that an employer had discrimination against her ran ‘counter to the prominent strain of current public policy against trafficking and in favour of its victims’ and allowed the employee’s appeal at 52. In R v L [2013] EWCA Crim 991, [2014] 1 All ER 113 at para 13, the public interest to prosecute must be considered against the culpability of the appellant, whose criminality may be effectively extinguished or significantly reduced because the criminality was a manifestation of the trafficking of the appellant. 160 An expert may be able to comment on whether the traffickers’ modus operandi indicates that they are likely to have been operated as an organised crime network. 161 This is relevant in assessing whether they would be at risk of destitution/further exploitation in the country of origin. See Internal Relocation at para 34.

406

Expert evidence in asylum and immigration proceeding 10.87

criteria to judge whether a person is qualified to be an expert witness. He should have particular expertise on the matters upon which he is being asked to comment, but that can have been obtained through study and qualifications or work experience. A trafficking expert may have gained expertise on trafficking through his work in specialist NGOs or the police force. 10.85 In AA (unattended children) Afghanistan CG162, the Upper Tribunal rejected the Home Office’s objection that an archaeologist did not qualify as a country expert ‘as his professional expertise is as an archaeologist’.The tribunal observed that ‘We accept that he is not one who has conventionally come to be described as a ‘country expert’; but his considerable personal and recent experience of Afghanistan, and of the political situation within that country, together with the objectivity that is implicit in his professional qualifications and experience, give the authority to his evidence’. 10.86 In AAW (expert evidence – weight) Somalia163 the Upper Tribunal found that it was able to attach little weight to the expert evidence of a journalist as an expert witness because it lacked objectivity. However, the Upper Tribunal acknowledged that the expert’s evidence was not to be disregarded as it stood as ‘the view of an experienced journalist with personal experience of the city from her regular visits.’ 10.87 Expert evidence is regulated by guidance provided in case law, practice directions and procedure rules. In MS (Trafficking – Tribunal’s Powers – Art 4 ECHR) Pakistan164 the President of the Upper Tribunal considered that there was ‘some force in the criticisms levelled’ at the expert evidence in that case and highlighted the detailed treatment of the duties of expert witnesses in the decision of the Tribunal in MOJ (Return to Mogadishu) Somalia165 (set out in detail below).The President directed that: ‘those engaging expert witnesses should, in every case, ensure that the expert is provided with a copy of this section of the MOJ decision, as a matter of course, at the initial stage of receiving instructions. Each expert’s report should, in turn, make clear that these passages have been received and read by the mechanism of a simple declaration to this effect’.

162 [2012] UKUT 00016 (IAC) at 116. 163 [2015] UKUT 00673 (IAC) at 46. 164 [2016] UKUT 00226 (IAC) at 69. 165 [2014] UKUT 00442 (IAC).

407

10.88  International protection and human rights claims brought by victims of human trafficking

10.88 The relevant passages of MOJ (Return to Mogadishu) Somalia CG166 are as follows: ‘23 We consider it appropriate to draw attention to this subject, given the prevalence and importance of expert evidence in Country Guidance cases. Mindful that substantial quantities of judicial ink have been spilled on this subject, we confine ourselves to highlighting and emphasising what appear to us to be amongst the most important considerations. The general principles are of some vintage. In National Justice CIA  Naviera SA  v Prudential Assurance Company Ltd [1993] 2 Lloyds Reports 68, Cresswell J stated, at pp 81–82: “The duties and responsibilities of expert witnesses in civil cases include the following: 1

Expert evidence presented to the court should be, and should be seen to be, the independent product of the expert uninfluenced as to form or content by the exigencies of litigation ….

2

An expert witness should provide independent assistance to the Court by way of objective unbiased opinion in relation to matters within his expertise …. An expert witness in the High Court should never assume the role of an advocate …

3

An expert witness should state the facts or assumption upon which his opinion is based. He should not omit to consider material facts which could detract from his concluded opinion. ….

4

An expert witness should make it clear when a particular question or issue falls outside his expertise.

5

If an expert’s opinion is not properly researched because he considers that insufficient data is available, then this must be stated with an indication that the opinion is no more than a provisional one. In cases where an expert witness who has prepared a report could not assert that the report contained the truth, the whole truth and nothing but the truth without some qualification, that qualification should be stated in the report ….

6

If, after exchange of reports, an expert witness changes his view on a material matter having read the other side’s expert’s report, or for any other reason, such change of view should be communicated (through legal representatives) to the other side without delay and when appropriate to the Court.”

166 [2014] UKUT 00442 (IAC), paras [23]–[27].

408

Expert evidence in asylum and immigration proceeding 10.88

This code was duly approved by the Court of Appeal: see [1995] 1 Lloyds Reports 455, at p  496. It has been considered in a series of subsequent report cases: see, for example, Vernon v Bosley (No 2) [1997] 1 All ER 577, at page 601. In the latter case, Evans LJ stated, at page 603: “… Expert witnesses are armed with the court’s readiness to receive the expert evidence which it needs in order to reach a fully informed decision, whatever the nature of the topic may be. But their evidence ceases to be useful, and it may become counterproductive, when it is not marshalled by reference to the issues in the particular case and kept within the limits so fixed.” Judicial condemnation of an expert who does not appreciate his responsibilities is far from uncommon: see, for example, Stevens v Gullis [2000] 1 All ER 527, where Lord Woolf MR at pp 532–533 stated that the expert in question had: “… demonstrated by his conduct that he had no conception of the requirements placed upon an expert under the CPR … 19 It is now clear from the rules that, in addition to the duty which an expert owes to a party, he is also under a duty to the court.” 24. The requirements of CPR  31 also featured in Lucas v Barking Hospitals NHS Trust [2003] EWCA Civ 1102, where the emphasis was on CPR 31 and CPR 35. These provide (inter alia) that: (i) a party may apply for an order for inspection of any document mentioned in an expert’s report which has not already been disclosed, (ii) every expert’s report must state the substance of all material instructions, whether written or oral, on the basis of which the report was written, and (iii) such instructions are not privileged against disclosure. Laws LJ made the following noteworthy observation: “[42] As it seems to me the key to this case …. is the imperative of transparency, a general theme of the CPR but here specifically applied to the deployment of experts’ reports.Thus, the aim of rule 35.10(3) and (4) is broadly to ensure that the factual basis on which the expert has prepared his report is patent.” 25. Thus in the contemporary era the subject of expert evidence and experts’ reports is heavily regulated. The principles, rules and criteria highlighted above are of general application. They apply to experts giving evidence at every tier of the legal system. In the specific sphere of the Upper Tribunal (Immigration and Asylum Chamber), these standards apply fully, without any qualification. They are reflected in the Senior President’s Practice Direction No  10 (2010) which, 409

10.88  International protection and human rights claims brought by victims of human trafficking

in paragraph  10, lays particular emphasis on a series of duties. We summarise these duties thus: (i) to provide information and express opinions independently, uninfluenced by the litigation; (ii) to consider all material facts, including those which might detract from the expert witness’ opinion; (iii) to be objective and unbiased; (iv) to avoid trespass into the prohibited territory of advocacy; (v) to be fully informed; (vi) to act within the confines of the witness’s area of expertise; and (vii) to modify, or abandon one’s view, where appropriate. 26. In the realm of expert testimony, important duties are also imposed on legal practitioners.These too feature in the aforementioned Practice Direction. These duties may be summarised thus: (i)

to ensure that the expert is equipped with all relevant information and materials, which will include information and materials adverse to the client’s case;

(ii) to vouchsafe that the expert is fully versed in the duties rehearsed above; (iii) to communicate, promptly, any alterations in the expert’s opinion to the other parties and the Tribunal, and (v) to ensure full compliance with the aforementioned Practice Statement, any other relevant Practice Statement, any relevant Guidance Note, all material requirements of the Rules and all case management directions and orders of the Tribunal. These duties, also unqualified in nature, are a reflection of the bond between Bench and Representatives which features throughout the common law world. 27.The interface between the role of the expert witness and the duty of the Court or Tribunal features in the following passage in the judgment of Wilson J  in Mibanga v Secretary of State for the Home Department [2005] EWHC 367: “[24] It seems to me to be axiomatic that a fact finder must not reach his or her conclusion before surveying all the evidence relevant thereto … The Secretary of State argues that decisions as to the credibility of an account are to be taken by the judicial fact finder and that, in 410

Expert evidence in asylum and immigration proceeding 10.88

their reports, experts, whether in relation to medical matters or in relation to in-country circumstances, cannot usurp the fact finder’s function in assessing credibility. I agree. What, however, they can offer is a factual context in which it may be necessary for the fact finder to survey the allegations placed before him; and such context may prove a crucial aid to the decision whether or not to accept the truth of them. … It seems to me that a proper fact finding enquiry involves explanation as to the reason for which an expert view is rejected and indeed placed beyond the spectrum of views which could reasonably be held.” To this we would add that, as the hearing of the present appeals demonstrated, this Tribunal will always pay close attention to the expert’s research; the availability of empirical data or other information bearing on the expert’s views; the quality and reliability of such material; whether the expert has taken such material into account; the expert’s willingness to modify or withdraw certain views or conclusions where other evidence, or expert opinion, suggests that this is appropriate; and the attitude of the expert, which will include his willingness to engage with the Tribunal. This is not designed to be an exhaustive list.’

411

11 Safeguarding child and adult victims of trafficking and immigration detention Shu Shin Luh and Christine Beddoe

Safeguarding and immigration detention: children Introduction 11.1 To effectively advise and prepare a case involving a victim of trafficking, it is essential to understand the individual safeguarding needs of victims. Since the first edition was printed, there has been little change in terms of the legal and policy framework for safeguarding and protecting child victims of trafficking. Five years on from the passage of the Modern Slavery Act 2015, the independent child trafficked victims’ advocate scheme has not yet been rolled out nationally1. However, the new interim guidance for guardians in the six pilot areas was published in July 20192. In March 2020, the government published long-awaited statutory guidance under s 49(1) of the Modern Slavery Act 2015 (‘MSA 2015’)3, which for the first time addresses child-specific aspects of trafficking. The 2018 edition of Working together to safeguard children guidance4 remains the primary safeguarding procedure for trafficked and exploited children but there is now a greater understanding of the vulnerabilities of children and their personal safety and protection needs in the context of trafficking and modern slavery. A welcome addition to the MSA 2015 statutory guidance is the inclusion of explanatory details and a definition of child criminal exploitation5, including county lines and an enhanced list of risk indicators6. Also, included is the recognition that child victims of criminal exploitation may also be victims of 1 See s 48 of the Modern Slavery Act 2015. 2 Home Office, Interim Guidance for Independent Child Trafficking Guardians – Early Adopter Sites (January 2017, updated July 2019), available at: www.gov.uk/government/publications/child-traffickingadvocates-early-adopter-sites, last accessed 5 August 2020. 3 Home Office, Modern Slavery Act 2015 – Statutory Guidance for England and Wales (Version 1.00) (March 2020) (‘Statutory Guidance’), available at: https://www.gov.uk/government/publications/modernslavery-how-to-identify-and-support-victims, last accessed 5 August 2020. 4 Department for Education, Working together to safeguard children (March 2015), available at: https://www.gov. uk/government/publications/working-together-to-safeguard-children--2, last accessed 5 August 2020. 5 Statutory Guidance, pp 60–61. 6 Statutory Guidance, pp 62–67.

413

11.2  Safeguarding child and adult victims of trafficking and immigration detention

sexual exploitation. However, there remain gaps in policy and practice guidance in respect of the protection of particularly vulnerable groups of children and young adults.

Policy and guidance 11.2 An assessment of whether a child is being exploited or is at risk of exploitation, including where there is reason to believe a child has been trafficked, is a child protection decision. Where vulnerable children are detained in immigration or criminal proceedings it is essential that all responsible persons engage with the correct policy, procedures and guidance. The Children Act 2004, s  11(2) requires specified public authorities in England, including children’s services, police, youth offending teams, schools and health authorities to exercise their functions having due regard to the need to safeguard and promote the welfare of children, and s 10 requires all authorities to cooperate with each other in doing so. In Wales, the Social Service and Well-Being Act 2014, ss 5–7 impose duties to promote the well-being of children in need of care and support and to do so having specified regard to the UK’s obligations under the UN Convention on the Rights of the Child. 11.3 In 2011, the Department for Education and the Home Office jointly published the practice guidance, Safeguarding children who may have been trafficked7. This followed an update of earlier guidance and it sits under the primary multiagency policy framework for safeguarding children in England and Wales, referred to as Working together to safeguard children8. The practice guidance covers the broader responsibilities of all authorities who may have first contact with children suspected to be trafficked or exploited. Similar multi-agency guidance exists in Scotland and Northern Ireland. The 2011 practice guidance is now supplemented by Care of unaccompanied migrant children and child victims of modern slavery: Statutory guidance for local authorities, issued under the Local Authority Social Services Act 1970, s 7, which requires local authorities exercising their social services functions to act under the general guidance of the Secretary of State9. Although the statutory guidance is addressed to Chief Executives, Directors of Children’s Services and Lead Members for Children’s Services, 7 Department for Education/Home Office, Safeguarding children who may have been trafficked (October 2011), available at: www.gov.uk/government/publications/safeguarding-children-who-may-have-beentrafficked-practice-guidance, last accessed 3 February 2020. 8 Last updated in July 2018, available at: www.gov.uk/government/publications/working-together-tosafeguard-children--2. 9 Department for Education, Care of unaccompanied migrant children and child victims of modern slavery Statutory guidance for local authorities (November 2017), available at: https://www.gov.uk/government/publications/ care-of-unaccompanied-and-trafficked-children, last accessed 5 August 2020.

414

Safeguarding and immigration detention: children 11.5

it is also relevant to police and Home Office due to the joint responsibility to cooperate with the local authority in safeguarding the child. This guidance applies only to England. There is separate guidance in Wales in the form of the Child Trafficking: Operational Handbook10 which is to be used in conjunction with All Wales Child Trafficking Protocol; Safeguarding Children who may have been trafficked and All Wales Safeguarding and Promoting the Welfare of Children at risk of or abused through Sexual Exploitation (2008). 11.4 The Children Act 2004, s  13 requires each local authority in England to establish a Local Safeguarding Children Board (‘LSCB’) for its area. LSCBs are responsible for developing multi-agency policy and guidelines for safeguarding children in their areas and should have integrated the statutory guidance into their own localised policy documents. Local police forces must be represented on the LSCB. The localised version of the trafficked children policy and guidance should be publicly available and is often accessible via the LSCB website. The equivalent in Wales is made under the Social Services and Well-Being Act 2014, s 134.

Assessment of vulnerability 11.5 All children and young people are vulnerable because of their age and lack of maturity, but the assessment of vulnerability requires professionals to look beyond what children say and to understand, observe and record emotional, behavioural and presentational indicators of risk and to act quickly to put in place the appropriate protection measures even if the child has not disclosed. Guidance on trafficked children provided by the Association of Directors of Children’s Services (‘ADCS’) states: ‘… Aside from the physical, sexual, or emotional abuse they may have suffered, many trafficked children have been forced by their traffickers to learn a story to tell if they are questioned. Many children and young people are under threat directly themselves or may have family members elsewhere who are under threat, or perceived threat. Children and young people may not know who they can trust. As a result, they may give information that is later contradictory to information provided initially. This is not necessarily an indication that a child or

10 Welsh Government, Child Trafficking: Operational Handbook (September 2015), available at: https://gov. wales/sites/default/files/publications/2019-05/operational-handbook-child-trafficking.pdf, last accessed 5 August 2020.

415

11.6  Safeguarding child and adult victims of trafficking and immigration detention

young person is trying to deceive social workers and should not be considered as such …’11. 11.6 On discovery, children who are victims of human trafficking or modern slavery may not show any obvious signs of distress or imminent harm. PTSD and trauma responses in children at different developmental stages may vary significantly from adult presentations. As with adults, children may seem unaware that their situation is exploitative, harmful, or abnormal. An enhanced list of child specific indicators is now included in the MSA  2015 statutory guidance12 and both the general and child specific indicators should be consulted, and concerns recorded. 11.7 The College of Policing guidance on modern slavery directs that: ‘Child victims of modern slavery are amongst the most vulnerable, the easiest to control and the least likely to admit to their situation. They may not show obvious signs of distress, as they may not realise that they have been enslaved or see themselves as being at risk of harm and in danger. Parents and relatives may also be involved in the exploitation of the child. Children are likely to be extremely loyal to their parents or carers so it is not likely that they will, of their own initiative, seek protection against such people. It is also possible that a child’s experiences of modern slavery perpetrated by adults, and experience of corruption and abuse by police, officials and/or authorities in their home countries, may make them wary of all adults, including police officers. They may, therefore, be reluctant to disclose any information in an interview until they have built a trusting relationship with those interviewing. Interviews should take place in a child-friendly environment. During the interview, the child should be asked what measures would make them feel safe, how they perceive authority figures and people in uniform, and the police should clearly explain their role to the child. The child should be provided with emergency contact numbers, including 999, and know that these are free of charge. If a child is housed and goes missing before or after the interview, and is suspected of being enslaved or exploited, they should be treated as a missing person. A suitably trained person should conduct a debrief ’13.

11 ADCS, Age Assessment Guidance (October 2015), available at: http://adcs.org.uk/assets/documentation/ Age_Assessment_Guidance_2015_Final.pdf, last accessed 3 February 2020. 12 Statutory Guidance, pp 66–67. 13 First response and the national referral mechanism, available at: www.app.college.police.uk/app-content/ major-investigation-and-public-protection/modern-slavery/national-referral-mechanism/, last accessed 3 February 2020.

416

Safeguarding and immigration detention: children 11.11

Children detained in immigration or criminal proceedings 11.8 When the first 24–48 hours of contact focuses only on addressing the child as an offender, the result is that the specific statutory safeguarding and identification procedures for children who may be trafficked are less likely to be triggered. Early indicators of trafficking and exploitation, including behavioural and psychological indicators, are thus not observed, or recorded, and this has implications for subsequent immigration, criminal or care proceedings. If a child is subsequently released on bail into the community or into local authority care without a robust risk assessment, then special protection measures will not be put into place and the risk of harm to the child escalates. The policy framework for safeguarding children and the MSA  2015 should prevent this from happening, but there are still significant gaps in training and management practices across the country. 11.9 The College of Policing accepts that all potential victims are vulnerable and should, therefore, be interviewed in compliance with Ministry of Justice guidance14. 11.10 In circumstances where a victim of trafficking is involved in criminality and has been charged with offences linked to his exploitation, protective bail conditions should be a consideration when making an application for bail. Bail is a key issue to consider in the context of trafficking. As a minimum, a National Referral Mechanism (‘NRM’) conclusive grounds decision will not be made for at least 45 days (the recovery and reflection period). In practice it can be significantly longer. 11.11 When preparing and presenting any bail application on behalf of a victim, consideration should be given to protective conditions such as no unsupervised use of phones or electronic equipment. It is common for victims who are being controlled by their traffickers or in debt bondage to contact either traffickers or those who are involved in the organised criminal network. For other safeguarding measures and considerations see Chapters 7 and 8. It should be highlighted that proposed bail addresses should be suitable and not in an

14 Achieving Best Evidence in Criminal Proceedings: Guidance on interviewing victims and witnesses, and guidance on using special measures, available at: www.app.college.police.uk/app-content/ major-investigation-and-public-protection/modern-slavery/risk-and-identification/, last accessed 3 February 2020.

417

11.12  Safeguarding child and adult victims of trafficking and immigration detention

area where the victim’s exploitation has taken place and where the traffickers operate.

The duty to notify 11.12 From 1 November 2015, specified public authorities have a duty to notify the Secretary of State of any person encountered in England and Wales whom they believe may be a victim of slavery or human trafficking. This duty is discharged by either referring a potential victim into the NRM where they are a child or consenting adult, or by notifying the Home Office where an adult does not consent to enter the NRM. Both a referral and a notification can be made through the Modern Slavery Portal15. Similar provisions are set out, but are not yet in force, in s 38 of the Human Trafficking and Exploitation (Scotland) Act 2015. In Northern Ireland, these provisions are in s 13 of the Human Trafficking and Exploitation (Criminal Justice and Support for Victims) Act (Northern Ireland) 2015. UK  Visas and Immigration, Border Force and Immigration Enforcement must comply with the duty16. 11.13 Following an NRM referral, the Single Competent Authority (‘SCA’) must make the police aware of all modern slavery cases involving a child victim. In addition, the SCA must also contact the local authority (and independent child trafficked guardian where available). In child cases, information is shared under the Principle of Information Sharing17.The police must record all referrals from the NRM as notifiable incidents as soon as they are received. The SCA will then notify the force of the outcome of the reasonable grounds decision. If the decision is positive, the case must then be recorded as a crime and counted as such. Cases where a negative reasonable grounds decision is made or where the alleged criminality is entirely outside the UK will be retained for intelligence purposes as a crime-related incident; forces are not mandated to record this as a crime, although they have discretion to do so. Where a crime is recorded, the crime reference number must be shared with the SCA to add to the case record. When providing the crime reference number to the SCA, the police should, wherever possible, indicate if an investigation is underway or likely to be undertaken18.

15 The portal can be accessed at: https://www.modernslavery.gov.uk/start, last accessed 5 August 2020. 16 Statutory Guidance, pp 34–36; MSA 2015, s 52. 17 Statutory Guidance, para 11.26. 18 Statutory Guidance, paras 11.18–11.19.

418

Safeguarding and immigration detention: children 11.16

Missing children 11.14 Vulnerable children at risk of going missing should not be detained as a de facto way to stop them absconding. In November 2016 the organisations ECPAT UK and Missing People published a report into unaccompanied and trafficked children who went missing from care, which found that more than a quarter of all trafficked children and over 500 unaccompanied asylum-seeking children went missing at least once in the year to September 2015, while 207 have not been found19. 11.15 Some groups of children are at very high risk of going missing because they are under instructions from traffickers, have been groomed or given instructions, feel unable to trust anyone in authority or are very frightened of what will happen to them or their family if they do not return to the trafficker. For example, children held under debt bondage or who owe a debt for their journey are particularly vulnerable to returning to the trafficker. Children arrested for criminal offences may also be highly vulnerable, as witnesses to organised crime, and frightened about retribution from those who control them. Acknowledging the risk of going missing and then putting in place robust multi-agency planning to mitigate it is central to safeguarding children procedures. Measures such as placing children in specialist foster care out of the area, temporarily removing mobile phone and internet access and having the child escorted outside the home should be considered as part of wider safeguarding procedures on release from detention along with a safety plan shared with the child and with police. 11.16 The statutory guidance on children who run away or go missing from home or care and the addendum flowchart, showing roles and responsibilities when a child goes missing from care, were issued in 2014 and contain information on procedures for children who have gone missing, suspected trafficked20. Paragraphs 73–79 of the guidance reinforce the joint responsibility between local authorities, police, the Home Office, and others in collecting, recording, and sharing data to monitor and assess on-going risk. Risk is not static and can rapidly increase when the child is under stress if, for example, the child receives a phone call or is due to attend court. A child fitting the profile of a victim of trafficking and who has gone missing but is not yet referred into the NRM

19 ECPAT UK and Missing People, Heading back to Harm (November 2016), available at: www.ecpat.org. uk/heading-back-to-harm-a-study-on-trafficked-and-unaccompanied-children-going-missing-fromcare-in-the-uk, last accessed 3 February 2020. 20 Available at: www.gov.uk/government/publications/children-who-run-away-or-go-missing-fromhome-or-care, last accessed 3 February 2020.

419

11.17  Safeguarding child and adult victims of trafficking and immigration detention

should still be treated as a high-risk missing person by police21. High-risk is where: •

the risk posed is immediate and there are substantial grounds for believing that the child is in danger through his own vulnerability;

•

the child may have been the victim of a serious crime; or

•

the risk posed is immediate and there are substantial grounds for believing that the public is in danger.

County lines trafficking 11.17 A specific cohort of children who go missing are those subject to county lines exploitation. The Serious Violence Strategy sets out a definition of county lines: ‘County lines is a term used to describe gangs and organised criminal networks involved in exporting illegal drugs into one or more importing areas [within the UK], using dedicated mobile phone lines or other form of “deal line”. They are likely to exploit children and vulnerable adults to move and store the drugs and money and they will often use coercion, intimidation, violence (including sexual violence) and weapons.’ Children who are victims of county lines type activities may go missing from care or from their family homes periodically and be encountered elsewhere across the UK. Early identification is important in safeguarding children who are involved in county lines type activity. Co-operation between services to reduce risks to them and their families and prevent exploitation in all its forms is important. Detailed guidance is contained in the Home Office’s Criminal Exploitation of children and vulnerable adults: County Lines guidance22 and in the MSA 2015 statutory guidance.

Child trafficking guardians 11.18 Section 48 of the MSA  2015 legislates for Independent Child Trafficking Advocates, a model of guardianship for children who may be trafficked. In line with a recommendation from the Independent Review of the Modern Slavery 21 See R(TDT) v Secretary of State for the Home Department [2018] EWCA Civ 1395, [2018] 1 WLR 4922. 22 Home Office, Criminal Exploitation of children and vulnerable adults: County Lines guidance (September 2018), available at: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_ data/file/863323/HOCountyLinesGuidance_-_Sept2018.pdf, last accessed 5 August 2020.

420

Safeguarding and immigration detention: children 11.19

Act published in 2019, the service was amended to be called Independent Child Trafficking Guardians (‘ICTG’)23. In June 2016, the government began to roll out a small pilot and published Interim Guidance for the three Independent Child Trafficking Advocates Early Adopter Sites – Greater Manchester, Wales and Hampshire. The government extended the roll out of ICTGs to the West Midlands (October 2018); East Midlands (January 2019); and the London Borough of Croydon (April 2019) and in July 2019 published updated guidance.24 In locations where ICTGs are available, public authorities including Immigration Enforcement, Border Force and UK Visa and Immigration, who take decisions regarding, or provide services, to the child must recognise and pay due regard and provide information to the ICTG.This is required by regulations made under s 48(6)(e)(i) and (ii) of MSA 2015.There could be occasions where the child only provides an indication that he has been trafficked during his asylum interview or police interview. In such circumstances, a referral to the ICTG  Service should be made as soon as possible or at least on the same calendar day as the information is provided. A 24/7 support line number for the ICTG Service is available for advice25. Referrals can also be made by an authorised first responder via secure email26.

Policy versus practice 11.19 The precautionary measures for keeping child victims safe go beyond the core statutory safeguards, should be triggered as soon as possible and in most circumstances prior to an NRM decision being made. Earlier guidance was published as Safeguarding children who may have been trafficked, in recognition that special protection measures must apply from the moment of first contact in order to keep the child safe while investigations are ongoing. The policy framework recognises that even when a child has been taken into local authority care, or is in detention or in custody, the child could still be under the control of the trafficker. This has implications for the immediate safety of the child. This is why recommended practice that may seem overly intrusive in other circumstances is considered to be in the child’s best interest, as long as it is used in the correct way: for example, monitoring children’s contact with others, monitoring phone calls, identifying and tracing phone numbers found in their clothes or possessions, removing sim card for examination, tracking internet use and so on. Due to the high risk of trafficked children going missing and being 23 Home Office, Independent Review of the Modern Slavery Act. 2015: final report, presented to Parliament by the Secretary of State for the Home Department by Command of Her Majesty in May 2019. Available at: https://www.gov.uk/government/publications/independent-review-of-the-modern-slavery-act-finalreport, last accessed 5 August 2020. 24 Available at: https://www.gov.uk/government/publications/child-trafficking-advocates-early-adoptersites (January 2017, updated December 2019), last accessed 5 August 2020. 25 Tel: 0800 043 4303. 26 Email: [email protected].

421

11.20  Safeguarding child and adult victims of trafficking and immigration detention

re-trafficked, it is recommended that the child is photographed immediately, and notes taken of what he is wearing when first placed in care.Where children are in immigration detention or in police custody with co-defendants extra precautions must be exercised because the child may be under threat of harm and have been coached in what to say by someone being held in the same facility. An assessment of current and future risk should be recorded and shared with the local authority to enable the social work team to make decisions about safe accommodation arrangements and the level of security needed for the child’s protection27.

Safeguarding children who may be affected by immigration control 11.20 In September 2008, the UK announced that it would lift reservations on the UN Convention on the Rights of the Child in respect of immigration matters concerning children. That announcement marked a significant step toward bringing the Home Office’s obligations to safeguard and promote children’s welfare closer in line with the established framework for safeguarding and promoting children’s welfare that had applied to other public authorities (including the police, youth offending team, social services, schools, hospitals)28, since the Children Act 2004 came into force. In 2009, the Borders Citizenship and Immigration Act 2009, s 55 was enacted, providing that the Secretary of State for the Home Department must make arrangements for ensuring that in the discharge of his functions relating to immigration, asylum, nationality, he must have regard to the need to safeguard and promote the welfare of children who are in the United Kingdom.

The s 55 safeguarding duty 11.21 Under the Borders Citizenship and Immigration Act 2009, s  55(2)(b), immigration officers making decisions on behalf of the Home Secretary under the powers of the Immigration Acts must have regard to the safeguarding welfare duty, and further must have regard to any statutory guidance given by the Secretary of State under s 55(3).

27 ‘Child victims shall not be returned to a State, if there is indication, following a risk and security assessment, that such return would not be in the best interests of the child’ ECAT, Art 16(7). 28 See the Children Act 2004, s 11(1) for the full list.

422

Safeguarding and immigration detention: children 11.24

11.22 Although the statute itself does not define ‘welfare’, the statutory guidance does provide the following at para 1.4: •

protecting children from maltreatment;

•

preventing impairment of children’s health and development (where health means ‘physical or mental health’ and development means ‘physical, intellectual, emotional, social or behavioural development’);

•

ensuring that children are growing up in circumstances consistent with the provision of safe and effective care;

•

undertaking that role to enable those children to have optimum life chances and to enter adulthood successfully.

11.23 This is not dissimilar to the description of welfare set out in the mirror provision of the Children Act 2004, s  11. The jurisprudence around both provisions makes clear that the duty to safeguard welfare must in terms comply with the spirit, if not the language, of the obligations under the UN  Convention on the Rights of the Child and in particular Art 3(1), which requires that ‘in all actions concerning children … the best interests of the child shall be a primary consideration’29.Whilst the best interests of the child is not the supreme consideration or trump card, the Supreme Court’s judgment in ZH (Tanzania) v Secretary of State for the Home Department made clear that the child’s best interests is a factor of the highest rank which should only be displaced or rendered of less importance if there are very strong countervailing factors30. 11.24 Statutory guidance issued under the Borders Citizenship and Immigration Act 2009, s 55(3) provides expanded guidance governed by the following principles: •

the Home Office must maintain ‘clear arrangements’ and ‘operation and policy instructions’ to ensure the effectiveness of arrangements for safeguarding and promoting the child’s welfare: paras 2.12 and 2.13;

•

the duty is not limited to a requirement by the Home Office to put in place policies and a system for safeguarding children. It applies to individual decision-making across all areas of immigration law and is underpinned by a recognition that ‘children cannot put on hold their growth or personal development until a potentially lengthy application

29 ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4, [2011] 2 AC 166 per Lady Hale at [23]. 30 See Lady Hale at [25]–[27] and [33], Lord Hope at [44], and Lord Kerr at [46].

423

11.25  Safeguarding child and adult victims of trafficking and immigration detention

process is resolved’: para  2.20. See also AAM  v Secretary of State for the Home Department31; •

work with the child should be child-centred, take account of the child’s views, informed by evidence, and have regard to the professional views and information available from other agencies involved with the child: paras 1.16 and 2.27;

•

the onus is on the Home Office to demonstrate how a decision was made in compliance with the Borders Citizenship and Immigration Act 2009, s 55 both by the implementation of an operational policy and/or on an individual basis. In Nzolameso v Westminster City Council32, the Supreme Court held (at [24]–[27]) that the analogous Children Act 2004, s  11 applies not only to the formulation of general policies and practices, but also to their application in an individual case. This entails identifying ‘the principal needs of the children, both individually and collectively, and having regard to the need to safeguard and promote them when making the decision’: per Baroness Hale at [27].

Detention and safeguarding of children 11.25 The obligation to safeguard children arises in two principal ways in the context of immigration detention: firstly, when children (including those whose age may be disputed) are detained, and secondly, when dependent children are separated from parents and primary carers who are detained.

Safeguarding unaccompanied children 11.26 Paragraphs 16(2), (2A) and 18B of Sch 2 to the Immigration Act 1971 provides that an unaccompanied child may only be detained in a short-term holding facility for a maximum of 24 hours so long as two conditions are met: first, directions are in force to require the child to be removed from the UK within the relevant 24-hour period or a decision on whether to give directions is likely to result such removal directions; and second, the immigration officer under whose authority the child is being detained reasonably believes that the child will be removed from the short-term holding facility within the relevant 24-hour period in accordance with those directions. The only exception to such strict conditions for detaining an unaccompanied child is if he is being transferred to or from a short-term holding facility, or where he has been 31 [2012] EWHC 2567 (QB) at [119]. 32 [2015] UKSC 22, [2015] 2 All ER 942.

424

Safeguarding and immigration detention: children 11.28

removed from a short-term holding facility to be detained elsewhere and then moved back to a short-term holding facility. This provision applies to anyone who is under the age of 18, including those who are objectively children even if their age has been disputed by the Home Secretary. 11.27 Prior to the amendment to the detention power under para 16(2) and 18B of Sch 2 to the Immigration Act 1971, para 16(2), as unamended, gave the power (without statutory fetter but to be exercised in accordance with published policy) lawfully to detain persons if there were ‘reasonable grounds for suspecting’ that the person was someone in respect of whom removal directions may be given. That power thus, on the face of it, would potentially extend to persons who were in fact unaccompanied children but for whom there were reasonable grounds at the time of detention for suspecting to be adults liable to removal. Thus, even where the Home Secretary had mistakenly (although reasonably) suspected a person to be an adult at the point of detention but who turned out to be in fact a child, it would not have been an unlawful exercise of the statutory power to detain. This was confirmed by the Supreme Court in R (AA) (Afghanistan) v Secretary of State for the Home Department33. 11.28 By amendment, para 16(2), now qualified by paras 16(2A) and 18B, means that the power to detain on a ‘reasonable suspicion’ that a person is an adult is now subordinate to the requirements of para 18B.The definition of ‘unaccompanied child’ in para 18B (7) is in this regard specific: it requires that the person is under the age of 18. There is no qualification by reference to reasonable grounds of belief or suspicion: which, moreover, is to be compared and contrasted with the language elsewhere used in the same paragraph, at para 18B (4). The legal landscape has thus changed since the decision of the Supreme Court in AA (Afghanistan). This means that if the Home Secretary detains a person who is in fact a child, that detention will be unlawful: R (Ali) v Secretary of State for the Home Department34. The effect of the new constraint on the power to detain unaccompanied children is to reflect the UK’s clear international obligations under the UN Convention on the Rights of the Child, Art 37, which provides that detention of a child shall be used ‘only as a measure of last resort and for the shortest appropriate period of time’. The Home Office’s general detention policy, Chapter  55 of the Enforcement Instructions and Guidance (EIG  55) was amended to reflect the amended position arising from para 16(2) Sch 2 to the Immigration Act 1971. The policy was further amended with the insertion of EIG 55.9.3A which provides an exceptional circumstance for detaining children where it is necessary to deal with unexpected situations for example in order to await collection by a parent or relative or local authority children’s services. 33 [2013] UKSC 49 [2013] 1 WLR 2224. 34 [2017] EWCA Civ 138 [2017] 1 WLR 2894.

425

11.29  Safeguarding child and adult victims of trafficking and immigration detention

Detaining to interview a newly-arrived unaccompanied child at port would not fall within the ambit of ‘very exceptional circumstances’. The Court of Appeal held in R (AN and FA) v Secretary of State for the Home Department35 that once basic information has been obtained at port of entry from a newly-arrived unaccompanied child, the Home Office must immediately refer the child to a relevant local authority children’s services. At this early stage, the Home Office should not be asking the child questions relating to why he has come to the UK. That is a question that should be asked in the presence of an appropriate adult. The priority, consistent with the duty under the Borders Citizenship and Immigration Act 2009, s 55, is to safeguard and promote the child’s immediate welfare and to refer the child for safe accommodation and support from a local authority children’s services department. 11.29 In the light of the amendment to the detention power as it applies to children, the Home Office’s approach to detention in cases where a dispute is raised in respect of the child’s age has had to change. The Home Office’s longstanding policy is to treat an age disputed child as a child until verification, unless the child’s physical appearance and demeanour very strongly suggests that he is significantly over 18 years of age and no other credible evidence exists to the contrary. This is, on its face, a high threshold and requires an individualised consideration. It also operates in a precautionary way to ensure that the presumption of minority applies with a benefit of doubt afforded to the child,36 but as to what constitutes ‘significantly over 18’ has never been clearly defined previously. This issue arose in R (BF) v Secretary of State for the Home Department37. In that case, the Court of Appeal criticised the imprecision of the word ‘significantly over’, finding that printing it in bold or underlining it does not provide any clarification as to what it signifies. In the absence of guidance, one immigration officer may take the view that the appearance and demeanour of a young person whom he is assessing very strongly suggests that he is at least 20. On the face of the policy, it would be perfectly reasonable for them to do so, in the absence of any guidance, to regard that as ‘significantly’ over 18; yet the evidence shows that the margin of error is at least five years and maybe more – that is, an 17-year old young person may ‘look’ as old as 22, or perhaps 23. There was, the Court of Appeal held, a need to restrict ‘significantly over 18’ to obvious cases, or to give the young person the benefit of any real doubt. To do so, the Home Office’s policy needs to attempt to quantify the extent of the margin of error that must be allowed. In the light of the BF judgment, the Home Office amended EIG 55.9.3.1 to state that ‘significantly over 18’ means that the person’s physical appearance and demeanour ‘very strongly suggests that they are 25 years of age or over.’ This is further reflected in a newly issued 35 [2012] EWCA Civ 1636. 36 EIG 55.9.3.1. and the Home Office’s asylum policy instruction Assessing Age. 37 [2019] EWCA Civ 872 [2020] 4 WLR 38.

426

Safeguarding and immigration detention: children 11.32

Detention Services Order 02/2019, Care and Management of Post Detention Age Claims. 11.30 In respect of the Home Office’s general approach to verifying age, the general principles remain unchanged. Whilst documentary evidence may sometimes be available, the Home Office’s guidance on assessing age recognises that documents may frequently be obtained by traffickers and smugglers under false pretence to make the child appear older than he actually is in order to evade the attention of the authorities. Similarly, the mere existence of a visa application in the child’s name (or with the child’s photograph), with a date of birth used that is older than claimed, should not be deemed to be determinative documentary evidence of a claimed child being over 18. The precautionary approach applies even where a putative child previously gave a date of birth that would make them an adult. The clarification of the ‘significantly over 18’ as meaning 25 years of age or over means that unless it is an obvious case, the Home Office ought to be applying the benefit of the doubt strongly in favour of the putative child and ensure that the putative child is referred for investigation as to his age through a Merton-compliant age assessment. An individual who is defined as an age dispute case must not remain in detention pending a Merton-compliant age assessment. He will be released into the care of the local authority. Case workers should make referrals to the local authority as quickly as possible. 11.31 Putative children who had previously been sentenced by the criminal courts as adults, the Home Office’s policy states that they will be treated as being over 18 years of age (irrespective of any late disclosure of their minority) unless new documentary evidence has come to light38. This approach illustrates why it is imperative in the context of criminal proceedings for the fact of age to be resolved properly and correctly. If the criminal courts make a factually wrong finding as to age, it can have significant repercussions for a putative child who is subject to immigration control. See also Chapter 3 on age disputes.

Safeguarding child victims of trafficking 11.32 The arrangements for safeguarding child victims of trafficking should, in principle, fit within the overall framework of child safeguarding under the Borders Citizenship and Immigration Act 2009, s 55, the UN Convention on the Rights of the Child and ECHR, Art 8.The Home Office acknowledges the specific vulnerabilities of separated children. However, it would be naïve not 38 DSO 14/2012, section 10.

427

11.33  Safeguarding child and adult victims of trafficking and immigration detention

to recognise the particular needs of the subset of separated children who have been subject to trafficking and modern slavery. 11.33 There is currently a significant gap in arrangements available to ensure specific measures are implemented to safeguard child victims of trafficking who are identified in detention. If an NRM referral has been made in respect of the child whilst in detention, the local authority should be contacted to make care arrangements in the community. However, there is currently no joined-up work done by the Home Office and local authority children’s services to conduct risk assessments and convene safeguarding meetings prior to the release of a child victim of trafficking (including an age-disputed one) from immigration detention, particularly to ensure that any risks of re-trafficking are mitigated to the extent possible. In R (TDT) v Secretary of State for the Home Department39 the failure to put measures in place to safeguard against the risk of re-trafficking led to the claimant going missing on release. The court held, in that case, that the Home Office had failed to implement proper systems for ensuring compliance with the duty to protect a potential child victim of trafficking and thus the failure did breach ECHR, Art 4.

Detention of families 11.34 Detaining families with children is controversial. The Home Office operates a policy whereby families with children can be detained for the purposes of ensured return of families to their country of origin using pre-departure accommodation. There are restrictions on when this can be used, stays being limited to a maximum of 72 hours save in the exceptional circumstances where ministerial authority is given for a total of seven days. In criminal casework cases, mothers with infant children may be detained in a prison mother and baby unit at end of sentence and pending deportation. Decision-making in this respect can only be done with the Home Office having properly applied the Borders Citizenship and Immigration Act 2009, s  55 and ECHR, Art 8 considerations to the best interests of the child as a primary consideration40. 11.35 The Borders Citizenship and Immigration Act 2009, s  55/ECHR, Art 8 approach ought to be applied in the context of detention of parents or primary carers where the consequence is separation of children from their carers. This happens most frequently in the context of cases where the primary carer or parent is subject to deportation. 39 [2018] EWCA Civ 1395, [2018] 1 WLR 4922. 40 See EIG 55.9.4.

428

Safeguarding and immigration detention: children 11.38

11.36 The ECtHR has interpreted the ECHR,Art 8 to encompass a positive obligation to protect an individual’s right to ‘physical and psychological integrity,’ an aspect of the right to private life41. In Beoku-Betts v Secretary of State for the Home Department42 the House of Lords held that where a breach of a claimant’s right to respect for his family life was alleged the public authority must consider the complaint with reference to the family unit as a whole. The assessment of proportionality under Art 8(2) must be carried out in the context where each affected family member was to be regarded as a victim in his own right. 11.37 In ZH (Tanzania) v Secretary of State for the Home Department43 the Supreme Court had to grapple with the respective Art 8 rights of a mother, whom the defendant proposed to deport, and her children, who would be left behind in the UK as British citizens.The Supreme Court (per Lady Hale at [23]) held that the jurisprudence in the Strasbourg Court expects national authorities to apply the UN Convention on the Rights of the Child, Art 3(1) and treat the child’s best interests as a primary consideration. Article 3(2) provides that: ‘States Parties undertake to ensure the child such protection and care as is necessary for his or her wellbeing, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and to this end, shall take all appropriate legislative and administrative measures.’ 11.38 Article 9(1) deals with the separation of parent and child, providing that: ‘States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents, or one where the parents are living separately and a decision must be made as to the child’s place of residence.’ Arguably this would apply to primary carers, even if they are not the child’s parents.

41 Botta v Italy (1998) 26 EHRR 241, para 39. 42 [2008] UKHL 39, [2009] 1 AC 115. 43 [2011] UKSC 4, [2011] 2 AC 166.

429

11.39  Safeguarding child and adult victims of trafficking and immigration detention

11.39 Article 12 is also relevant. It provides: ‘1

States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.

2

For this purpose, the child shall in particular be afforded the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.’

11.40 Thus, whilst the Home Office may consider a parent or carer to pose risks of absconding, harm and re-offending, these considerations are distinct considerations from the welfare of the children, which is equally relevant in the context of considering the decision to detain44. The onus is on the Home Office to make reasonable inquiries to gather the facts necessary to inform a proper consideration of the child’s welfare in this context, bearing in mind that the child’s best interests is a primary consideration (per Lord Kerr at [46] in ZH (Tanzania)) and the starting point.

Safeguarding and immigration detention: adults 11.41 The various statutory powers of immigration detention45 have in common that, provided the broad statutory conditions for detention are met (liability to removal or deportation, plus in some cases service of a decision to remove), there are no express statutory limits on the exercise of the power by the defendant. The width of the statutory provisions to detain, however, has been limited by policies published by the Home Office, secondary legislation, in the form of the Detention Centre Rules 2001 and the obligations under the Human Rights Act 1998.

44 R (on the application of NXT) v Secretary of State for the Home Department [2011] EWHC 969 (Admin). 45 Most notably, the Immigration Act 1971, Sch  2, para  16(2), used to detain pending administrative removal, and various powers to detain pending deportation in Sch 3, para 2 to that Act and (for automatic deportation cases) the UK Borders Act 2007, s 35.

430

Safeguarding and immigration detention: adults 11.44

11.42 For over 20 years, until September 2016, the Home Office adopted a policy46 of not detaining certain vulnerable persons, save in very exceptional circumstances. This included not detaining children, the elderly, pregnant women, those suffering from serious medical conditions, the mentally ill, people with serious disabilities and those who had independent evidence that they may have been victims of torture. The inclusion of those who have been tortured as a separate category was in explicit recognition of the particular vulnerability of torture victims and the harm that detention could do to them47. Once it appeared that the individual fell within a category of vulnerable persons, the burden shifted to the Home Office to demonstrate that there were ‘very exceptional circumstances’ to justify detention of the person. This has been judged to be a high threshold by the courts48. Thus, the mere fact of removal within a reasonable period or a criminal conviction in and of itself does not suffice to meet the high threshold. Under the Enforcement Instructions and Guidance, section 55.10, there was also no additional requirement for a detainee with independent evidence of a history of torture to demonstrate that detention was likely to be injurious or harmful. The policy proceeded on a precautionary basis, accepting that detention per se will be harmful for victims of torture. 11.43 A framework of rules and further policy was put in place to ensure compliance with this overarching policy relating to the detention of vulnerable adults and children. For adults, this included the Detention Centre Rules 2001, EIG 55, the Detention Rule 35 Process Guidance, and the Detention Service Order 17/2012. 11.44 The Detention Centre Rules 200149, introduced under the Immigration and Asylum Act 1999, s 153, provides as follows: ‘Rule 33 Medical practitioner and health care team (1) Every detention centre shall have a medical practitioner, who shall be vocationally trained as a general practitioner and a fully registered person within the meaning of the Medical Act 1983.’

46 The policy regarding detention of vulnerable persons first appeared in Chapter 38 of the Operational Enforcement Manual (‘OEM’), and then under EIG 55.10. It had not been significantly altered (save for the addition of ‘satisfactory management condition’, viz health conditions) since its introduction in 2000 until 12 September 2016, when the statutory guidance, Immigration Act 2016: Adults at Risk Guidance came into force. 47 Paras 12.3–12.4 of the White Paper Fairer, Faster and Firmer. 48 R (on the application of Das) v Secretary of State for the Home Department [2014] EWCA Civ 45. 49 SI 2001/238.

431

11.45  Safeguarding child and adult victims of trafficking and immigration detention

‘Rule 34 Medical examination upon admission and thereafter (1) Every detained person shall be given a physical and mental examination by the medical practitioner (or another registered medical practitioner in accordance with rules 33(7) or (10)) within 24 hours of his admission to the detention centre. (2) Nothing in paragraph (1) shall allow an examination to be given in any case where the detained person does not consent to it. (3) If a detained person does not consent to an examination under paragraph (1), he shall be entitled to the examination at any subsequent time upon request.’ ‘Rule 35 Special illnesses and conditions (including torture claims) (1) The medical practitioner shall report to the manager on the case of any detained person whose health is likely to be injuriously affected by continued detention or any conditions of detention. (2) The medical practitioner shall report to the manager on the case of any detained person he suspects of having suicidal intentions, and the detained person shall be placed under special observation for so long as those suspicions remain, and a record of his treatment and condition shall be kept throughout that time in a manner to be determined by the Secretary of State. (3) The medical practitioner shall report to the manager on the case of any detained person who he is concerned may have been the victim of torture. (4) The manager shall send a copy of any report under paragraphs (1), (2) or (3) to the Secretary of State without delay. (5) The medical practitioner shall pay special attention to any detained person whose mental condition appears to require it, and make any special arrangements (including counselling arrangements) which appear necessary for his supervision or care.’ 11.45 The Detention Centre Rules 2001, r 35 is the statutory mechanism for bringing those detainees who may be vulnerable and whose detention may be unsuitable to the attention of those officers responsible for deciding whether to maintain detention, as well as those responsible for considering the individual’s asylum application, if any. It operates with r 34 to displace any notion that the burden is on the detainee to demonstrate a vulnerability within the three limbs50. 50 R (on the application of D and K) v Secretary of State for the Home Department [2006] EWHC 980 (Admin).

432

Safeguarding and immigration detention: adults 11.47

The obligation is on the Home Office, as a detaining authority, to ensure that detainees can access the r 35 safeguard by arranging medical appointments and identifying those who require consideration for a report. 11.46 Rule 35(3) is the most used of the three limbs of r 35. As to the meaning of the word ‘torture’ under r 35(3), it was held in R (on the application of EO) v Secretary of State for the Home Department51 to mean: ‘any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person has committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind’. In coming to this conclusion, Burnett J  (as he then was) explicitly rejected the defendant’s contention for a definition of torture by reference to the UN  Convention against Torture, Art 1, finding that ‘the word “torture” in the 2001 Rules and policy documents governing this detention has a broader meaning than that found in [the UN Convention].’ Burnett J (as he then was) expressed particular concerns about the difficulty a caseworker or a doctor may have if a technical definition of torture such as that in the UN  Convention against Torture were to be applied because ‘unravelling state involvement or complicity … might be difficult at the best of times, but virtually impossible at a short medical examination in a detention centre or necessarily fairly brief review by a case worker’52. Following judgment in EO, the Home Office decided not to implement a new policy that would introduce a narrower UN Convention against Torture definition (that is, until September 2016: discussed below). 11.47 The Home Office’s compliance with her detention policy and the efficacy of the r 35 statutory mechanism has been the subject of criticisms from statutory and non-governmental organisations, such as the HM Chief Inspector of Prisons53, and HM  Chief Inspector of Borders and Immigration54. There have been a number of successful individual challenges to the failures in the implementation of r 35 resulting in unlawful detention of individuals who should not normally 51 [2013] EWHC 1236 (Admin) (at [82] and [98]). 52 At [98] of R (on the application of EO) v Secretary of State for the Home Department [2013] EWHC 1236 (Admin). 53 Report on Harmondworth IRC (November 2011), which found that r 35 reports and responses were often insufficient and formulaic; the quality of r 35 reports were often poor, often providing no clinical judgment; none of the healthcare staff had received training. Since the case of EO, HM Chief Inspector of Prisons has made criticisms of r 35 reports and/or their consideration by the defendant in all but one of the ten inspections of immigration removal centres it has conducted.These included reports of inspections on Yarl’s Wood, The Verne, Dungavel, Tinsley House, Campsfield, Haslar, Dover and Harmondsworth. 54 Joint Report of HMCIP and HMCIBI, The effectiveness and impact of immigration detention casework (December 2012).

433

11.48  Safeguarding child and adult victims of trafficking and immigration detention

be detained55, as well as findings by the Court of general evidence of failure in the system56. There had also been two audits of the operation of the detention policy relating to vulnerable persons (see further below). 11.48 In January 2016, the Home Office published Stephen Shaw’s Review into the Welfare in detention of Vulnerable Persons. This independent inquiry was commissioned in February 2015 by the then Home Secretary,Theresa May MP, following criticisms relating to the welfare of vulnerable detainees. The Shaw Review made a wide range of findings and recommendations, particularly in respect of the identification and handling of detainees with vulnerabilities. It made recommendations for the improvements to the existing policy framework toward vulnerable persons under EIG 55.10. Amongst the findings were that: •

r 35 ‘does not do what it was intended to do – that is, to protect vulnerable people who find themselves in detention’. Recommending that ‘the Home Office immediately consider an alternative to the current rule 35 mechanism’57;

•

on a literature review of the effects of detention on the mental health, that detention has a negative impact per se on detainees’ mental health, that impact increasing the longer detention continues and enduring after release. Asylum seekers, victims of torture, children and women are particularly vulnerable to adverse mental health outcomes in detention58;

•

there should be an expanded list of vulnerable persons who would have the protective benefit of the presumption against detention including: victims of sexual or gender-based violence, transsexuals, those with a diagnosis of post-traumatic stress disorder, and/or learning difficulties59. A  further category of vulnerability generally should also be added ‘to reflect the dynamic nature of vulnerability, and thus encompass ‘persons otherwise identified as being sufficiently vulnerable that their continued detention would be injurious to their welfare’60;

55 R (Detention Action) v Secretary of State for the Home Department [2014] EWHC 2245 (Admin) per Ouseley J at [133]; R (on the application of JM) v Secretary of State for the Home Department [2015] EWHC 2331 (Admin). 56 See EO per Burnett J observing (at [3]) that the evidence of the operation of r 35 to be ‘disturbing’. See also R (Detention Action) v Secretary of State for the Home Department [2014] EWHC 2245 (Admin) per Ouseley J at [133] and R (on the application of JM) v Secretary of State for the Home Department [2015] EWHC 2331 (Admin) per Blake J reading into the court record the defendant’s concession that ‘the safeguards in the DFT including screening and r 35 of the Detention Centre Rules 2001 did not operate sufficiently effectively to prevent an unacceptable risk of vulnerable or potentially vulnerable individuals, whose claims required further investigation, being processed in the DFT’. 57 Section 4.118. He observed that ‘The Home Office’s approach has been to focus on whether forms can be clearer or more user-friendly, and on better training for medical staff. Both of these might help, but they will not fundamentally change the issue at hand, which is – and I put this bluntly – that the Home Office does not trust the mechanisms it has created to support its own policy. 58 Shaw Review, section 8.9. 59 Shaw Review, sections 4.24, 4.40, 4.42, 4.44. 60 Shaw Review, section 4.51.

434

Safeguarding and immigration detention: adults 11.50

•

as for the approach to the mentally ill, it should be accepted that those with serious mental illness should be removed because it is difficult to see how their treatment and care in detention can equate to good psychiatric practice (whether or not it is satisfactorily managed) and their detention would be ‘an affront to civilised values’61.

11.49 The government, in a Written Statement dated 14 January 2016, accepted ‘the broad thrust of [Mr Shaw’s] recommendations’, in particular the recommendation ‘to adopt a wider definition of those at risk … and to recognise the dynamic nature of vulnerabilities’62. In a note published in March 2016, the government further announced the introduction of a new ‘adults at risk’ concept into decision-making on immigration detention with a clear presumption that people who are at risk should not be detained. The purpose is directed at fewer vulnerable people being detained, and even where detention is necessary, for the period to be shorter than at present63.

Adults at risk: Immigration Act 2016 and statutory guidance 11.50 Following the Shaw Review, the government introduced into the Immigration Act 2016 a new s 59, entitled ‘Guidance for adults at risk’ which required the Home Secretary to issue guidance specifying matters to be taken into account by a Home Office detaining officer in determining: ‘whether a person (‘P’) would be particularly vulnerable to harm if detained or if P were to remain in detention, and if P is identified as being particularly vulnerable to harm in those circumstances, whether P should be detained or remain in detention’. The guidance must be approved by Parliament pursuant to s 59(4) before it is issued. It was said by the government that the Adults at Risk statutory guidance would build on EIG  55.10 and improve the protections from detention for particularly vulnerable individuals64.

61 Shaw Review, section 4.36. 62 604 HC Official Report (6th series) HCWS470 by James Brokenshire. 63 See Annex B: Detaining individuals for the purposes of Immigration Control – Consideration of Risk Issues (1 March 2016). 64 Lord Keen, at 768  HL  Official Report (5th series) col 1693, 1  February 2016; Immigration Minister James Brokenshire MP, at 608 HC Official Report (6th series) col 1190, 25 April 2016, Lord Keen, at 771 HL Official Report (5th series) col 1652, 10 May 2016.

435

11.51  Safeguarding child and adult victims of trafficking and immigration detention

11.51 The Adults at Risk statutory guidance was laid before Parliament on 21 July 2016 (and was implemented from 12  September 2016 together with a new Detention Service Order 9/2016 Detention Centre Rule 35). Casework guidance in Chapter 55b of the EIG was also issued, which gave more detail than the statutory guidance on the implementation of the Immigration Act 2016, s 59. By the implementation of this new Adults at Risk framework, the previous iteration of the policy relating to detaining vulnerable adults, namely EIG 55.10, was withdrawn. 11.52 The new Adults at Risk framework has already been subject to criticism for its adoption of the definition of torture to the UN Convention against Torture definition, a definition that had previously been subject to litigation and found to be inappropriate in this context65. The use of the UN Convention against Torture definition of torture has been declared to be unlawful by Ouseley J in a judgment handed down on 10 October 201766. Ouseley J held that the UN  Convention against Torture definition was overly restrictive, in limiting torture to that which has been perpetrated by or with the acquiescence of the state.This definition did not align with the statutory purpose of the Immigration Act 2016, s  59, which was to afford a strong protective presumption against immigration detention for a wide cohort of vulnerable persons. In this context, the definition of torture ought, as held by the judge, to be construed widely. 11.53 In March 2018, apparently in response to Ouseley J’s judgment, the Home Secretary introduced a new definition of torture by amendment to r 35 of the Detention Centre Rules 2001 and a revision of the Adults at Risk statutory guidance. The statutory instruments implementing these decisions – the Detention Centre (Amendment) Rules 201867 and the Immigration (Guidance on Detention of Vulnerable Persons) Regulations 201868 – were laid before Parliament on 27 March 2018.The same new definition of torture was included in reg  32 of the new Short-Term Holding Facilities Regulations 201869 (‘STHF Regulations’), also made and laid before Parliament on the same dates. These came into force on 2 July 2018. The new definition of torture set out in a new r 35(6) of the Detention Centre Rules provided that: ‘“torture” means any act by which a perpetrator intentionally inflicts severe pain or suffering on a victim in a situation in which- (a) the 65 See R (on the application of EO) v Secretary of State for the Home Department [2006] EWHC 980 (Admin). 66 Medical Justice v Secretary of State for the Home Department [2017] EWHC 2461 (Admin). 67 SI 2018/411. 68 SI 2018/410. 69 SI 2018/409.

436

Safeguarding and immigration detention: adults 11.55

perpetrator has control (whether mental or physical) over the victim, and (b) as a result of that control, the victim is powerless to resist’. The new definition therefore has four elements: (a) severe pain or suffering; (b) intentionally inflicted; and (c) mental or physical control over the victim; and (d) as a result of that control, the victim is powerless to resist. 11.54 This definition of torture, which depends on the victim being powerless to resist, was challenged as being similarly restrictive as a person may well be vulnerable because of torture but be able to resist and escape. The new definition was again the subject of a legal challenge70 and permission was granted to pursue the challenge. In December 2018, the Home Secretary agreed to amend r 35(6) to replace ‘powerless to resist’ to ‘situations of powerlessness’ and to clarify caseworker guidance for doctors in the detention estate and caseworkers to ensure they understand what is required in showing powerlessness. The Home Secretary also confirmed there will be a general consultation on the Detention Centre Rules during which further concerns about the definition of torture under r 35(6) could be raised. The Home Secretary has not undertaken this full consultation yet at the time of writing.

Adults at risk: statutory guidance and practice 11.55 The Adults at Risk statutory guidance is not intended to alter the strong presumption in favour of liberty in respect of vulnerable detainees. There remains a clear presumption that detention will not be appropriate if a person is ‘at risk’. The intention is that fewer people with a confirmed vulnerability will be detained in fewer instances and that where detention becomes necessary, it will be for the shortest period necessary. However, the determination of who is at risk, and what weight to be placed on the evidence of ‘at risk’ is more prescriptive under the new Adults at Risk framework. At section 7, the Adults at Risk statutory guidance regards an individual as an adult at risk if: •

he declares that he is suffering from a condition, or has experienced a traumatic event (such as trafficking, torture or sexual violence), that would be likely to render him particularly vulnerable to harm if he is placed in detention or remains in detention

•

those considering or reviewing detention are aware of medical or other professional evidence, or observational evidence, which indicates that an individual is suffering from a condition, or has experienced a traumatic event (such as trafficking, torture or sexual violence), that would be likely

70 R (Medical Justice) v Secretary of State for the Home Department (CO/2382/2018).

437

11.56  Safeguarding child and adult victims of trafficking and immigration detention

to render him particularly vulnerable to harm if he is placed in detention or remains in detention – whether or not the individual has highlighted this himself. 11.56 Indicators that a person may be at risk include those identified at section 11, such as a person71: •

suffering from a mental health condition or impairment (this may include more serious learning difficulties, psychiatric illness or clinical depression, depending on the nature and seriousness of the condition);

•

having been a victim of torture (individuals with a completed Medico Legal Report from reputable providers will be regarded as meeting level 3 evidence, provided the report meets the required standards);

•

having been a victim of sexual or gender-based violence, including female genital mutilation;

•

having been a victim of human trafficking or modern slavery;

•

suffering from post-traumatic stress disorder (which may or may not be related to one of the above experiences);

•

being pregnant (pregnant women will automatically be regarded as meeting level 3 evidence);

•

suffering from a serious physical disability;

•

suffering from other serious physical health conditions or illnesses;

•

being aged 70 or over;

•

being a transsexual72 or intersex person.

11.57 The Adults at Risk statutory guidance, section 9, considers the weight to be placed on indicators that a person is an adult at risk: •

self-declaration of being at risk should be afforded limited weight and be regarded as ‘Level 1 evidence’;

•

professional evidence (e.g. from a social worker, medical practitioner, or NGO), or official documentary evidence, which indicates that the individual is an adult at risk, should be afforded greater weight. Individuals in these circumstances will be regarded as being at evidence level 2;

71 This is not an exhaustive list. 72 This is more a medical term and persons with a trans history may prefer the terms ‘trans’ persons or transgender persons. See: https://www.stonewall.org.uk/help-advice/faqs-and-glossary/glossary-terms, last accessed 5 August 2020.

438

Safeguarding and immigration detention: adults 11.60

•

professional evidence (e.g. from a social worker, medical practitioner or NGO) stating that the individual is at risk and that a period of detention would be likely to cause harm – for example, increase the severity of the symptoms or condition that have led to the individual being regarded as an adult at risk – should be afforded significant weight. Individuals in these circumstances will be regarded as being at evidence level 3.

11.58 Casework Guidance EIG  55b supplements the statutory guidance by setting out further details of how to assess the balance of evidence of risk (as an adult at risk) against immigration factors which may justify the exercise of the power to detain or continue detention. The weightier the evidence of risk, the graver the immigration factors would need to be to displace the strong presumption in favour of liberty. For example, if a person is treated as an adult at risk with level 3 evidence (the highest level), then EIG 55b recognises that this is a person for whom detention is ‘likely to lead to a risk of significant harm’, thus detention should only be considered in a limited set of circumstances, such as when a removal date has been set for a date in the immediate future, there are no barriers to removal and escorts and other appropriate arrangements have been made to ensure safe management of the individual’s return. Or detention may be considered in a Level 3 adult at risk’s case if the person poses significant public protection concerns or poses a serious relevant national security concern. The variety of factors under EIG 55b that need to be considered is set out in detail in the policy.

Adults at risk and trafficking 11.59 In respect of victims of trafficking and potential victims of trafficking, the Adults at Risk framework needs to be read with the statutory guidance, which replaced the previous guidance set out in the Victims of Modern Slavery: Competent Authority Guidance.This states that pending identification of a potential victim of trafficking or modern slavery (i.e. from the point of NRM referral), no removal action should be taken until a conclusive grounds’ decision has been made73. 11.60 In respect of detention, the statutory guidance states that those potential victims with a positive reasonable grounds decision do not need to be released ‘where there are reasons of public order not to do so’74. It is said that detention may constitute appropriate accommodation. This is a nuanced change of policy 73 See Statutory Guidance at paras 14.45 and 14.88. 74 Ibid at para 15.29.

439

11.61  Safeguarding child and adult victims of trafficking and immigration detention

position from the previous Competent Authority Guidance which had stated that those victims with a positive reasonable grounds decision will not be detained save in ‘limited circumstances i.e. where their detention is necessary on grounds of public order.’ It remains unclear the basis upon which detention could be considered appropriate accommodation when the European Court of Human Rights case law suggests that detention in circumstances of an ongoing victim identification process, instead of safe accommodation and support for the victim during the reflection and recovery period amounted to a breach of ECHR, Art 475. In contrast to the Strasbourg court, in H v Secretary of State for the Home Department76 the court refused permission to bring a challenge that the Home Secretary had failed to provide a victim of trafficking with the required level of support and assistance whilst he was detained under immigration powers. The judgment did not consider L.E v Greece77. 11.61 As for those potential victims who are awaiting a reasonable grounds decision, the statutory guidance is still silent on whether they can be detained. Chapter 9 of the EIG (which was in force until 12 September 2016) was highly suggestive that potential victims (pre-identification decision) should not be detained because they are generally considered to be vulnerable. However, in R (XYL) v Secretary of State for the Home Department78 the High Court found that there was no bar to detention of a potential victim pending a reasonable grounds decision. Whilst that may be so,79 any decision to detain would still be subject to the strong presumption of liberty, as potential victims of trafficking will inevitably be considered adults at risk. R(XYL) should be read alongside the later Court of Appeal judgment in R  (TDT) v Secretary of State for the Home Department 80, where Art 4 duties arose before a formal identification decision had been made because there was a credible suspicion that the claimant was a victim of trafficking. Arguably, where a potential victim has been referred by a first responder to the NRM, this will be considered professional evidence and thus at least level 2 evidence of being an adult at risk.

Safeguarding and release 11.62 By Detention Service Order 8/2016 (published in February 2017 and updated in July 2019), there is now a clearer pathway for release of vulnerable adults 75 L.E. v Greece (App No 71545/12), 21 January 2016. 76 [2018] EWHC 2191 (Admin), [2018] 8 WLUK 156. 77 (App No 71545/12), 21 January 2016. 78 [2017] EWHC 773 (Admin). 79 XYL v Secretary of State for the Home Department is pending consideration of an application for permission to appeal to the Court of Appeal. 80 [2018] EWCA Civ 1395, [2018] 1 WLR 4922.

440

Safeguarding and immigration detention: adults 11.64

at risk from immigration detention. In cases where IRC or healthcare staff have significant concerns about releasing a detainee considered to be at risk, a multi-disciplinary meeting (or teleconference if a physical meeting is not possible due to time constraints), should be held to agree a plan to safely release the individual. This should be expedited to avoid any impact on release timings as the Home Office will use the outcome of the meeting to inform implementation of the release decision. In cases where the detainee requires support or accommodation from the local authority, a referral should be made for a needs assessment prior to release. 11.63 Part 1 of the Care Act 2014 set out the framework within which local authority adult social care services should act where there appears to be a vulnerable adult in its area. By the Care Act 2014, s 9(1), the local authority is required to undertake an assessment where it appears there is an adult who may have needs for care and support. The threshold for a request for an assessment is low. Questions about whether a person will require services at the end of the assessment process should form a part of the assessment process rather than be used as a barrier to the assessment process commencing. 11.64 The Care Act assessment is for the purposes of determining what needs, if any, the adult has; what impact the needs have on the adult’s well-being; and what support is required. Regulation 3 of the Care and Support (Assessment) Regulations 201481 set down further requirements of the needs assessment, importantly including the requirement that the adult is able to participate in the process as effectively as possible and the assessment is conducted in a proportionate way. It is important for the local authority to have regard to the wishes and preferences of the adult, the outcome the adult seeks from assessment and the severity and overall extent of the adult’s needs. By reg  5, the local authority is obliged to ensure that anyone carrying out an assessment has the relevant skills, knowledge and competence and is appropriately trained. The local authority must also consult a person who has ‘expertise in relation to the condition or other circumstances of the individual whose needs are being assessed in any case where it considers that the needs of the individual concerned require it to do so’. This should be done before or during the assessment process. The need to draw on appropriate expertise, particularly where there are complex needs and specific clinical conditions, is reiterated by the statutory guidance to the Care Act 2014 at paras 6.7, 6.86 and 6.88.

81 SI 2014/2827.

441

11.65  Safeguarding child and adult victims of trafficking and immigration detention

11.65 Where an assessment identifies needs, the local authority must decide if any of the needs are sufficient to meet the eligibility criteria82 and, if so, consider with the individual how to meet those needs83. To be eligible, the individual must satisfy three requirements under the Care Act (Eligibility Criteria) Regulations 201584, reg 2. The test is: •

his needs must be the result of a physical or mental impairment or illness;

•

as a result, he must be unable to achieve two or more specified outcomes (under reg 2(2));

•

as a consequence, there is (or there is likely to be) a significant impact on his well-being.

11.66 ‘Outcomes’ is specified in the Care Act (Eligibility Criteria) Regulations 2015, reg 2(2).These are broadly drawn and cover managing and maintaining nutrition; maintaining personal hygiene; managing toilet needs; being appropriately clothed; being able to make use of the home safely; maintaining a habitable home environment; developing and maintaining family or other personal relationships; accessing and engaging in work, training, education or volunteering; making use of necessary facilities or services in the local community including public transport, and recreational facilities or services. ‘Significant impact’ carries its ‘everyday meaning’ and includes ‘whether the adult’s needs and their consequent inability to achieve the relevant outcomes will have an important consequential effect on their daily lives, their independence and their wellbeing’85. 11.67 Paragraph  6.106 of the statutory guidance elaborates on what is meant by ‘unable to achieve’ an outcome under reg  2(3) and includes the following circumstances, where the adult: •

is unable to achieve the outcome without assistance: including where the adult may need prompting: for example, some adults may be physically able to wash but need reminding of the importance of personal hygiene;

•

is able to achieve the outcome without assistance but doing so causes the adult significant pain, distress or anxiety: for example, an adult may be able to prepare a meal, but this would leave him in pain and unable to eat the meal;

•

is able to achieve the outcome without assistance, but doing so endangers or is likely to endanger the health or safety of the adult, or of others: for example, if the

82 Care Act 2014, s 13(1). 83 Care Act 2014, s 13(3). 84 SI 2015/313. 85 Statutory Guidance, para 6.110.

442

Safeguarding and immigration detention: adults 11.69

health or safety of others could be endangered when an adult attempts to complete a task or an activity without relevant support; •

is able to achieve the outcome without assistance but takes significantly longer than would normally be expected: for example, an adult with a physical disability is able to dress himself in the morning, but it takes him a long time to do this, leaves him exhausted and prevents him from achieving other outcomes.

11.68 Eligible needs can, in principle, be met by the provision of accommodation, particularly if the care and support would be rendered ineffective if accommodation is not provided86. However, the Care Act 2014 is not directed at meeting a bare need for accommodation because of destitution87. Access to Care Act support may also depend on a person’s immigration status.The starting point is that if someone has no leave to remain in the UK, is a failed asylum seeker or an overstayer, the individual is not normally eligible for support under the Care Act 201488. However, if withholding (or withdrawing) support from someone who is otherwise ineligible would cause a breach of his rights under the ECHR or under EU law, then he will become eligible for the support if it is necessary to avoid such a breach89. 11.69 Pending an assessment, the local authority has a power to provide interim care and support under the Care Act 2014, s  19. This would apply to vulnerable adults referred by the Home Office for assessment and who can be released into the community pending assessment. There is no reason in law for there to be delay in release simply because the assessment has not been completed, particularly where the criteria for detention are no longer met.

86 Care Act 2014, ss 8 and 18. 87 Care Act 2014, s 21(1). 88 Nationality Immigration and Asylum Act 2002, Sch 3, paras 4–7A. 89 R (on the application of Limbuela) v Secretary of State for the Home Department [2004] EWCA Civ 540 and R (on the application of Clue) v Birmingham City Council [2010] EWCA Civ 460.

443

12 Compensation for victims of trafficking Maya Sikand

Introduction 12.1 As recognised by professionals working in the field of human trafficking and modern slavery, effective compensation has an important role to play in the recovery process of survivors. Focus on Labour Exploitation (‘FLEX’) put it this way in its working paper Access to Compensation for Victims of Human Trafficking: ‘Compensation awards can provide economic empowerment, facilitating reintegration into society and reducing individual victims’ vulnerability to re-trafficking. Obtaining fair compensation can contribute to a sense of justice and closure and can play an important role in a survivor’s psychological recovery’1. 12.2 The difficulty is that the available routes to compensation present very specific challenges to victims of trafficking, in particular where there has been no, or no successful, criminal prosecution of the alleged traffickers.Where there are successful criminal prosecutions, there is the possibility of the court making a compensation order for the benefit of the victim(s) or a Slavery and Trafficking Reparation Order pursuant to the Modern Slavery Act 2015 (‘MSA 2015’), s 8.The very small number of such convictions annually means that practitioners must find alternative, creative solutions to obtain compensation for the majority of trafficked victims. 12.3 This chapter will examine the following potential routes to compensation: •

compensation available in criminal proceedings;

•

the Criminal Injuries Compensation Scheme;

•

statutory claims for miscarriages of justice;

•

Human Rights Act 1998 claims against public bodies;

•

claims against traffickers.

1 FLEX (July 2016).

445

12.4  Compensation for victims of trafficking

Compensatory obligations 12.4 The UK does have compensatory obligations to trafficked victims, as set out in the two key regional instruments in this area (see Chapter 1 for a full discussion as to their legal effect). The relevant parts are set out below: Article 15 of ECAT2 ‘Compensation and legal redress 1 … 2 … 3

Each Party shall provide, in its internal law, for the right of victims to compensation from the perpetrators.

4

Each Party shall adopt such legislative or other measures as may be necessary to guarantee compensation for victims in accordance with the conditions under its internal law, for instance through the establishment of a fund for victim compensation or measures or programmes aimed at social assistance and social integration of victims, which could be funded by the assets resulting from the application of measures provided in Article 23’3.

Article 17 of the EU Trafficking Directive4 ‘Compensation to victims 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’. 12.5 The UK seeks to satisfy ECAT, Art 15(4) and the EU  Trafficking Directive, Art 17 through the Criminal Injuries Compensation Scheme. Article 15(3) is broadly framed, and whilst there are various avenues for redress, explored below, often the right is more illusory than real.

2 The Council of Europe Convention on Action against Trafficking in Human Beings (‘ECAT’). 3 ECAT, Art 23 deals with the provision of sanctions and measures, both criminal and non-criminal, including confiscation, for those who are criminally liable for trafficking in human beings. 4 Directive 2011/36/EU of the European Parliament and of the Council of 5 April 2011 on preventing and combating trafficking in human beings and protecting its victims, and replacing Council Framework Decision 2002/629/ JHA (‘the EU Trafficking Directive’).

446

Compensation in criminal proceedings 12.9

Compensation in criminal proceedings Compensation orders 12.6 Compensation orders are governed by the Powers of Criminal Courts (Sentencing) Act 2000, ss 130–133, as amended by the Legal Aid, Sentencing and Punishment of Offenders Act 2012. The power to make an order arises upon conviction of any offence. It does not require a victim to apply to the court for an order to be made5. Section 130(2A) of the Powers of Criminal Courts (Sentencing) Act 2000 provides that ‘A  court must consider making a compensation order in any case where this section empowers it to do so. Section 130(3) requires the court to ‘give reasons … if it does not make a compensation order …’. 12.7 The order is for compensation ‘for any personal injury, loss or damage resulting from that offence or any other offence which is taken into consideration by the court when determining sentence…’ (s  130(1)(a)). Courts will order compensation for such amount as the court considers appropriate, taking into account any evidence and representations made by or on behalf of the accused or the prosecutor (s 130(4)). The maximum amount a magistrates’ court can order in relation to a young offender is £5,000 per charge (s 131)6. Otherwise, the court has unlimited powers, but should have regard to the means of the offender (s 130(11)). 12.8 To maximise a compensation application, prosecutors (via the police) should seek evidence in support. Distress and anxiety are recoverable losses7 but evidence is necessary8. 12.9 Historically the criminal courts have only made compensation orders in a ‘simple, straightforward case where the amount of compensation can be readily and easily ascertained’9, avoiding the technicalities of claims for loss in the civil courts. In some cases, a more modern approach has been adopted, given the criminal courts’ familiarity with more complex financial assessment in

5 6 7 8 9

Holt v DPP [1996] 2 Cr App Rep (S) 314, [1996] Crim LR 524. Which also sets out the position in relation to offences taken into consideration. R v Godfrey (1994) 15 Cr App Rep (S) 536. R v Vaughan (1990) 12 Cr App Rep (S) 46. R v Donovan (1981) 3 Cr App Rep (S) 192.

447

12.10  Compensation for victims of trafficking

confiscation proceedings10. However, in R v Bewick11 the Court of Appeal held that since the sentence can only hear submissions from the prosecution and the defence, not third parties (including victims12), policy demands that complex issues should not be dealt with in the criminal courts. 12.10 Victims of offences will not receive the compensation ordered until there is no further possibility of an appeal in which the compensation order could be varied or set aside (s 132(1)). Further, the offender can apply to the magistrates’ court, any time before the whole amount has been paid, to vary or discharge the amount ordered on several grounds (see s 133). Double recovery in subsequent civil proceedings is not possible (see s 134). Enforcement of a compensation order is the function of the magistrates’ courts, which can impose a period of imprisonment in default of payment. 12.11 As the above demonstrates, this is very unlikely to be a fruitful source of compensation for the majority of victims of trafficking not just because it requires a successful prosecution of a trafficker as well as full co-operation with the police by victims, but also because it requires revelation of the details of loss to the trafficker himself, with only a remote prospect of receiving the money within any reasonable period of time, if at all.

Slavery and trafficking reparation orders 12.12 Section 8 of the MSA 2015 introduces slavery and trafficking reparation orders (‘STROs’) against defendants convicted of an offence under ss  1, 2 or 4 of the Act (as to which see Chapter 4) and where a confiscation order is made. A reparation order requires the defendant to pay compensation to the victim for any harm resulting from the offence (s  9(1)), but must not be made if a compensation order has been made under the Powers of Criminal Courts (Sentencing) Act 2000, s  130 (see para  12.6 above) (s  10(1)). In any case in which the court has power to make a STRO, it must consider making one, whether or not the prosecutor applies for one to be made, and it must give reasons if it does not make one (s 8(7)).

10 See for example R v Pola [2009] EWCA Crim 655, [2010] 1 Cr App Rep (S) 32. 11 [2007] EWCA Crim 3297, [2008] 2 Cr App Rep (S) 184. 12 The criminal court should consider and take into account a Victim’s Personal Statement and any evidence in support, prior to passing sentence, see R v Perkins; Bennett; Hall [2013] EWCA Crim 323, [2013] Crim LR 533.

448

The Criminal Injuries Compensation Scheme 12.15

12.13 Like compensation orders, courts will order compensation for such amount as the court considers appropriate, having regard to any evidence and representations made by or on behalf of the accused or the prosecutor (s 9(3)). The maximum amount cannot exceed the amount the convicted person is required to pay under the confiscation order (s 9(4)) and the court must have regard to the person’s means (s 9(5)). Section 10(3) imports the same powers to appeal, review etc a compensation order available under the Powers of Criminal Courts (Sentencing) Act 2000, ss  132–134. Section 10 of the MSA  2015 demonstrates that the confiscation order and STRO are to be dealt with in tandem: if the confiscation order is varied, discharged, or quashed, so can the STRO be dealt with in the same way. 12.14 Given the low number of successful prosecutions under the MSA 2015 to date and the difficulties already identified in relation to compensation orders (which apply equally), this is also highly unlikely to be a fruitful source of compensation for the majority of victims of trafficking. Indeed, the Independent Review in to the MSA 2015 (May 2019), notes as follows: ‘We were disappointed to note that between the coming into force of the Modern Slavery Act to December 2017 (latest available data) no Reparation Orders were made. Although we have been informed anecdotally of at least two cases in which a Reparation Order has been made, which we expect to be evidenced in future data releases, it is clear that this intention is not being realised. The lack of Reparation Orders also means it has not been possible for us to assess their effectiveness.’13

The Criminal Injuries Compensation Scheme 12.15 The first Criminal Injuries Compensation Scheme was introduced in 1964. It was non-statutory and provided for ex gratia payments. The Criminal Injuries Compensation Act 1995 was enacted and schemes from that time have been statutory, pursuant to the Act.The schemes are government funded and designed to compensate ‘blameless’ victims of violent crime. The current scheme is the Criminal Injuries Compensation Scheme 2012, which came into force in September 201214. It is administered by the Criminal Injuries Compensation Authority (‘CICA’). There is a right of appeal to the First-tier Tribunal. 13 See https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/ file/803406/Independent_review_of_the_Modern_Slavery_Act_-_final_report.pdf, last accessed 17 April 2020. 14 Criminal injuries compensation: a guide (March 2014) is available at www.gov.uk/guidance/criminalinjuries-compensation-a-guide, last accessed 17 April 2020.

449

12.16  Compensation for victims of trafficking

12.16 The Scheme specifically contemplates victims of trafficking and on the face of it meets the requirements of ECAT and the EU Trafficking Directive set out at para 12.4 above. Whilst it does not require a criminal conviction of an assailant as a condition precedent, the Scheme poses other significant difficulties for victims of trafficking. 12.17 Firstly, it compensates violent crimes only and those must have been committed in Scotland, England and Wales15. The definition includes threats and causing fear of immediate violence, but does not cover, for example, deception or forced labour or other exploitation. Secondly, it requires reporting of the crime to the police and co-operation in bringing the assailant to justice, otherwise the award will be withheld. Many victims of trafficking are extremely reluctant to report crimes or assist in prosecutions for fear of reprisals from traffickers and for fear of being prosecuted themselves (for example, those who have been trafficked for sexual exploitation or forced criminality). Thirdly, awards can be withheld or reduced if victims have unspent previous convictions, even if they were committed in the context of being trafficked (see Chapter 9 for guidance on appealing criminal convictions of victims of trafficking). Fourthly, if a decision to award a claim is initially refused or reduced (which is common), the appeal to the First-tier Tribunal will usually require a victim of trafficking to give evidence and be subject to cross-examination by CICA and/or questioning from the tribunal itself. Those who are traumatised and/or suffering with significant psychiatric conditions because of their trafficking experience may not wish to be pressed about their injuries and the details of how they were sustained. Fifthly, there is a two-year time limit to apply from the date of the incident. Further, there are practical difficulties: there is no public funding available to get assistance in completing the application form (see Chapter 13 for guidance on public funding) and CICA decision-making is very slow.

Eligibility 12.18 Paragraph 4 of the 2012 Scheme provides that: ‘A  person may be eligible for an award under this Scheme if they sustain a criminal injury which is directly attributable to their being a direct victim of a crime of violence committed… The meaning of ‘crime of violence’ is explained in Annex B …’

15 Northern Ireland has its own scheme.

450

The Criminal Injuries Compensation Scheme 12.23

12.19 ‘Criminal injury’ means an injury which appears in Part A or B of the tariff in Annex E: •

Part A: physical and psychological injuries;

•

Part B: physical and sexual abuse.

12.20 The accompanying note states that ‘mental injury’ must be disabling and does not include temporary mental anxiety and similar temporary conditions. A mental injury is disabling if it has a substantial adverse effect on a person’s ability to carry out normal day-to-day activities for the time specified (e.g. impaired work or school performance or effects on social relationships or sexual dysfunction). 12.21 The definition of ‘crime of violence’ includes a physical attack and sexual assault without consent16 but also ‘a threat against a person, causing fear of immediate violence in circumstances which would cause a person of reasonable firmness to be put in such fear’. However, any criminal injury sustained must be directly attributable to that threat. 12.22 In relation to those who are not ordinarily resident in the UK, para 10(c) of the Scheme provides that: ‘A person is eligible for an award under this Scheme only if: …One of the conditions in paragraph 13 is satisfied in relation to them on the date of their application under this Scheme’. 12.23 Paragraphs 13–16 provide: ‘13.The conditions referred to in paragraph 10(c) are that the person has: (a) been referred to a competent authority as a potential victim of trafficking in human beings; or (b) made an application for asylum under Immigration Rules made under section 3(2) of the Immigration Act 1971. 16 See the discussion on consent and sex trafficking in G Hutt, H Dykes and H Lovells, ‘Compensation Claims by Victims of Trafficking under the Criminal Injuries Compensation Scheme’ in P Chandran (ed), Human Trafficking Handbook (LexisNexis, 2011).

451

12.24  Compensation for victims of trafficking

14. A  person who has made an application under this Scheme and satisfies a condition in paragraph 13 may request that their application under this Scheme is deferred until a final decision has been taken in relation to the referral or application mentioned in that paragraph. 15.Where a person is eligible for an award under this Scheme by virtue of paragraph 10 only because a condition in paragraph 13 is satisfied in relation to them, that person will not be eligible for an award unless, as a result of the referral or application mentioned in paragraph 13, they have been: (a) conclusively identified by a competent authority as a victim of trafficking in human beings; or (b) granted temporary protection, asylum, or humanitarian protection. 16. In paragraphs 13 and 15: (a) a person is conclusively identified as a victim of trafficking in human beings when, on completion of the identification process required by Article  10 of the Council of Europe Convention against Trafficking in Human Beings (CETS  No.197, 2005), a competent authority concludes that the person is such a victim; (b) “competent authority” means a person who is a competent authority of the United Kingdom for the purpose of that Convention; and (c) “victim of trafficking in human beings” has the same meaning as under that Convention.’

Time limits 12.24 If the applicant is an adult at the time of the incident, he must apply as soon as reasonably practicable and no later than two years after it occurred. If the applicant was under 18 at the time of the incident, later applications may be considered (particularly in historic child sexual abuse cases). Paragraph  89 of the Scheme states that time may be extended where the claims officer is satisfied that: ‘(a) due to exceptional circumstances the applicant could not have applied earlier; and (b) the evidence presented in support of the application means that it can be determined without further extensive enquiries by a claims officer.’ 452

The Criminal Injuries Compensation Scheme 12.28

12.25 In MJ v FTT (No 3)17, a case decided under the old test for extension in the 2008 Scheme, the Upper Tribunal held that (a) and (b) were conditions precedent for the exercise of a discretion to waive the time limit, not exceptions to it. Where a decision-maker accepted that (a) and (b) were both satisfied, then there would have to be good reasons to justify not exercising discretion in the applicant’s favour. The Upper Tribunal said that where a claim was made in respect of historic sexual abuse of a child, it was not enough simply to decide that the application was out of time. That would be to ignore the very real reasons such an individual would have for not disclosing either the abuse itself, or the full extent of such abuse, and the time that it takes to begin to come to terms with such traumatic experiences, citing JM, petitioner18.There may well be parallels in relation to delay in making claims by victims of trafficking, particularly those who have been sexually assaulted.

Level of awards 12.26 Section 2(1) of the Criminal Injuries Compensation Act 1995 provides ‘The amount of compensation payable under an award shall be determined in accordance with the provisions of the Scheme’. The value of the payments made is calculated by reference to a Parliament-set tariff of injuries (Annex E to the S scheme). The size of the award will be altered to reflect the seriousness of the injury. 12.27 Types of payment which can be made include: •

injury payments;

•

loss of earnings payments: where the applicant has no/limited capacity to work as a direct result of a criminal injury (Annex F sets out the multiplier tables);

•

special expenses payments.

12.28 The maximum award which can be made, before any reductions, is £500,000. The amount of any injury payment will be determined according to the tariff. Where an application concerns two separate injuries, the award will be for the full tariff amount for the injury with the highest payment, and 30 per cent of 17 [2014] UKUT 279 (AAC). 18 [2013] CSOH 169, 2014 SLT 475.

453

12.29  Compensation for victims of trafficking

the tariff for the second injury.Where there are three or more criminal injuries, it will be 15 per cent of the tariff amount for the criminal injury with an equal or third highest payment. Where a person has sustained a mental injury as a result of a sexual assault, the victim will be entitled to an injury payment for whichever of the sexual assault or the mental injury would give rise to the highest payment under the tariff. If an injury does not fall within the tariff, the claims officer may refer it to the Secretary of State for inclusion if considered of equivalent seriousness.

Grounds for withholding or reducing an award 12.29 Paragraph  86 of the Scheme provides that ‘An application for an award will be determined by a Claims Officer in the authority in accordance with this Scheme.’ Paragraphs 22–29 set out grounds for withholding or reducing an award from those who would otherwise have been entitled to one pursuant to paras 4–21. Paragraphs 22–29 reflect the requirements of s 3(1) of the Act, which provides ‘The Scheme may, in particular, include provision – a.

As to the circumstances in which an award may be withheld or the amount of compensation reduced …’

12.30 The grounds for withholding an award are: •

a failure to report the incident to the police as soon as reasonably practicable (in deciding whether this requirement is met, particular account will be taken of: (a) the age and capacity of the applicant at the date of the incident; and (b) whether the effect of the incident on the applicant was such that it could not reasonably have been reported earlier)19;

•

a failure to co-operate as far as reasonably practicable in bringing the assailant to justice.

12.31 Where victims have been referred into the National Referral Mechanism (‘NRM’), it may be arguable that they reported and/or co-operated sufficiently.

19 The Anti Trafficking and Labour Exploitation website contains details of a decision in which it is said that the First-tier Tribunal found that withholding an award on this basis was contrary to the EU Trafficking Directive, Art 17: see http://atleu.org.uk/cases/2015/12/11/c-v-criminal-injuries-compensationauthority, last accessed 19 April 2020. A transcript of the judgment is not available.

454

The Criminal Injuries Compensation Scheme 12.34

12.32 The grounds for withholding or reducing an award include: •

where the applicant fails to take all reasonable steps to assist a claims officer or other body or person in relation to consideration of his application. Such failure includes repeated failure to respond to communications sent to the address given by the applicant;

•

where the conduct of the applicant before, during or after the incident giving rise to the criminal injury makes it inappropriate to make an award or a full award. For this purpose, conduct does not include intoxication through alcohol or drugs to the extent that such intoxication made the applicant more vulnerable to becoming a victim of a crime of violence;

•

where the applicant to whom an award would otherwise be made has unspent convictions. The award will be withheld entirely if the applicant received a sentence listed in paragraph  3 of Annex D, including a community order, and reduced if a different sentence.

12.33 In R (on the application of McNiece) v Criminal Injuries Compensation Authority20, the claimants argued that the provisions of the Scheme impose an unlawful ‘blanket ban’ on awards being made under the Scheme to those with an unspent conviction which led to a custodial or a community sentence. The grounds supporting the argument that the ‘blanket ban’ was unlawful included the following: (i) that the ban constitutes a disproportionate interference in the claimant’s rights under ECHR, Art 1 of Protocol 1; (ii) it is unjustifiably discriminatory contrary to Art 1 of Protocol 1, read together with ECHR, Art 14; (iii) it is in breach of the EU Trafficking Directive, Art 17; and (iv) Art 1 of Protocol 1, read together with ECHR, Art 4. 12.34 Wilkie J  found that the extent of the obligations of a State under Art 17 is clear. Those obligations are to ensure that victims of trafficking have access to the existing national scheme in the sense of being entitled to have their claim considered substantively. That is achieved under the Scheme by virtue of paras 10–15. He found that Art 17 does not impose an obligation on the State to compensate victims of crimes of trafficking beyond the terms of the existing national scheme. It does not require a State to change the terms of its existing scheme to comply with Art 17, save by providing access to it, which 20 [2017] EWHC 2 (Admin).

455

12.35  Compensation for victims of trafficking

it does. Although Wilkie J rejected all four grounds, he granted the appellants permission to appeal. Ultimately only two of the appellants, A and B pursued the appeal and there were just two grounds before the Court of Appeal21 (the latter being an additional one), namely: (1) Whether the terms of the Scheme amount to a breach of Art 17 of the Directive? (2) Whether the terms of the Scheme fall within the ambit of Art 4 of the ECHR and amount to unjustified discrimination against the appellants (on the ground of their ‘other status’ of having unspent convictions for offences which resulted in a custodial or community sentence) contrary to ECHR, Art 14, read with Art 4? Gross LJ, with whom Sharp LJ and Flaux LJ agreed, had no doubt that Wilkie J  was right in finding that the mandatory exclusion for unspent convictions does not give rise to a breach of Art 17 of the Directive. In relation to the second ground, Gross LJs strong inclination was that the appellants were unable to establish that the terms of access to the Scheme fall within, or sufficiently, within the ambit of Art 4, so that their discrimination claim ought to fail at the first hurdle. However, he was content not to determine the issue, given that he went on to hold that whilst the applicants did have ‘other status’, the exclusionary rule was justified. The rule struck a fair balance and was not without reasonable foundation22.

The Miscarriage of Justice Application Scheme 12.35 The Miscarriage of Justice Application Scheme is a discretionary compensation scheme administered by the Secretary of State for Justice. It provides compensation for those who have been wrongfully convicted and punished, pursuant to the Criminal Justice Act 1988, s 13323. 12.36 Section 133 was enacted to give effect to the UK’s international obligations under Art 14(6) of the International Covenant on Civil and Political Rights 1966, which was ratified by the UK in May 1976. There is an almost identical provision in Art 3 of the Seventh Protocol of the ECHR. Section 133 of the Criminal Justice Act 1988 was very significantly amended by the Anti-social Behaviour, Crime and Policing Act 2014, so as to require an applicant to 21 [2018] EWCA Civ 1534. 22 The Supreme Court has granted permission to appeal in relation to this second ground. At the time of writing, the appeal is still outstanding. 23 Guidance on how the Scheme operates is available at https://hmctsformfinder.s3.amazonaws.com/ forms/guidance/index.htm, last accessed 19 April 2020.

456

The Miscarriage of Justice Application Scheme 12.40

effectively prove innocence (as opposed to show that his conviction has been set aside because fresh evidence so undermined the case against him such that no conviction could possibly be based upon it24). 12.37 Section 133(1) of the Criminal Justice Act 1988 provides that: ‘… when a person has been convicted of a criminal offence and when subsequently his conviction has been reversed or he has been pardoned on the ground that a new or newly discovered fact shows beyond reasonable doubt that there has been a miscarriage of justice, the Secretary of State shall pay compensation for the miscarriage of justice to the person who has suffered punishment as a result of such conviction or, if he is dead, to his personal representatives25, unless the non-disclosure of the unknown fact was wholly or partly attributable to the person convicted.’ 12.38 Section 133(1ZA), as inserted by the Anti-social Behaviour, Crime and Policing Act 2014, s 175, provides there will have been a miscarriage of justice ‘if and only if the new or newly discovered fact shows beyond reasonable doubt that the person did not commit the offence.’ 12.39 Following that amendment, in R (on the application of Nealon), v Secretary of State for Justice26 the appellants contended that s 133 (as amended) was incompatible with the presumption of innocence enshrined in ECHR, Art 6(2). The Court of Appeal accepted that Art 6(2) was engaged, but not that the amended s 133 is incompatible with it. The court said that s 133 does not require the applicant to prove his innocence generally but focuses on ‘the effect of the new or newly discovered fact and nothing else’ (para 50). Any denial of compensation does not undermine his acquittal or the presumption of innocence. By a majority of 5:2, the Supreme Court dismissed the appellants’ appeals. The majority found that although ECHR, Art 6(2) had been engaged, it does not automatically follow that the ECtHR would find a violation; s 133 was compatible. 12.40 The test as currently enunciated is a high threshold to cross, given the very narrow definition of miscarriage of justice. However, if the test is satisfied (as to which see para 12.41 below), there are many advantages for those victims of 24 See R (on the application of Adams) v Secretary of State for Justice [2011] UKSC 18, [2012] 1 AC 48. 25 [2019] UKSC 2, [2020] AC 279. 26 [2015] EWHC 1565 (Admin), 165 NLJ 7657.

457

12.41  Compensation for victims of trafficking

trafficking who have been wrongly prosecuted, convicted and incarcerated to apply under this scheme rather than trying to bring a civil claim against a public authority that failed to protect him.This is because a similar approach is used by the Independent Assessor to quantify damages as in tortious claims, and as the assessment is made on written evidence, the victim of trafficking will not have to go through the trauma and stress of giving evidence in court where tortious claims do not settle. Also, Legal Help is available to assist in making the initial application, and if accepted on the Scheme, legal costs are recoverable, including counsel’s fees (see Chapter 13 on funding).

Are victims of trafficking who have had their convictions set aside eligible under the Scheme? 12.41 An applicant will be eligible if the two conditions of s 133 are met: •

the applicant’s conviction has been reversed, or he has been granted a free pardon; and

•

the conviction must have been reversed, or the pardon granted, on the ground that a new or newly discovered fact shows beyond reasonable doubt that the person did not commit the offence.

12.42 The criminal convictions of victims of trafficking (obtained before the coming into force of the MSA 2015) are usually set aside by the Court of Appeal Criminal Division not because no offence was committed but because, under ECAT, Art 26, echoed in the EU Trafficking Directive, Art 8, criminal proceedings should or would not have been brought at all if the prosecuting authorities had known at the time that the defendant was a victim of trafficking whose offending was inextricably linked with his trafficked status (see Chapters 5 and 9). 12.43 Thus, for the purposes of the Scheme, the newly-discovered fact is the fact that he was a trafficked victim (for sexual exploitation or servitude) who was compelled to commit the offence he did (these are most commonly cannabis cultivation and identity fraud) and thus the criminality of the defendant was extinguished27. Whilst the Art 26 protection is about prosecutorial discretion, the victim of trafficking was innocent (or not guilty) in that the newly discovered fact shows that he would have had a common law defence of duress available to him at trial.The words ‘did not commit the offence’ in s 133(1ZA) must, by definition, include those who are not guilty of the offence by reason of having a common 27 See R v L [2013] EWCA Crim 991, [2014] 1 All ER 113 at [13].

458

The Miscarriage of Justice Application Scheme 12.48

law or statutory defence. By analogy, in the MSA 2015, s 45(1), an adult28 is not guilty if the compulsion is attributable to slavery or relevant exploitation. 12.44 There is no case law on this point to date but the author is aware of (and has acted in) the first case where a victim of trafficking was accepted onto the Scheme under the amended definition of a miscarriage of justice and awarded compensation on this basis29.

Procedure 12.45 The applicant must submit a written application to the Miscarriages of Justice Team, along with copies of the NG form 2, Court of Appeal judgment, perfected grounds of appeal and any CCRC Statement of Reasons.The application form (which is available online) requires a clear exposition of the applicant’s personal details, case details, appeal details, and reasons for applying. 12.46 There is two-year time limit for all Criminal Justice Act 1988, s 133 applications, beginning with the date on which the applicant has been pardoned, or their conviction reversed. Out of time applications may exceptionally be allowed. However, ignorance of the scheme does not constitute ‘exceptional’ circumstances. 12.47 Following a decision of eligibility (which falls solely to the Secretary of State under s 133(3)), the Independent Assessor30 will determine the amount of the award. The applicant must put in his submissions to the Miscarriages of Justice Team within six months from the date of the notice of eligibility. Funding for a barrister to draft these can be approved by the assessor. 12.48 The onus is on the applicant to quantify all relevant losses flowing from the miscarriage of justice, and to support it with documentary evidence (including loss of earnings and medical and expert reports). Funding for such reports can be approved by the assessor in advance. The applicant must provide signed and 28 The elements of the defence are different in relation to child victims of trafficking: see Chapter 5. 29 The successful applicant’s conviction was set aside because she should have had the protection of Art 26: R v Y [2015] EWCA Crim 123. 30 See www.gov.uk/government/news/new-independent-assessor-of-compensation-for-miscarriages-ofjustice, last accessed 17 December 2017.

459

12.49  Compensation for victims of trafficking

dated statement of evidence, including a brief personal history, account of his time in prison and any resultant difficulties, and an account of his life since release. The assessor will then aim to make final assessment of the applicant’s case within three months.

The award 12.49 The total amount of compensation payable cannot exceed the overall compensation limit: £1 million for cases where applicant has been detained for at least ten years (s 133B) and £500,000 in any other case. Interim payment may be granted, depending on the information available to the assessor on the miscarriage of justice, and attendant consequences. 12.50 There are two parts to the award: •

non-pecuniary: loss of liberty, hardship, distress and injury to feelings, inconvenience, damage to reputation and possible psychiatric damage;

•

pecuniary: loss of past/future earnings, expenses and legal costs related to the miscarriage of justice. Claims for loss of earnings for any one year limited to 1.5 times the median annual gross earnings at the time (s 133A(6)).The assessor may make a deduction from any pecuniary award for saved living expenses – the cost an applicant would have had to pay for essentials from his net income, had he not been wrongly imprisoned31.

12.51 The overall objective of s 133, as described by Lord Bingham is ‘that the State representing the public at large should make fair recompense to victims of miscarriages of justice’32. In assessing the amount payable to the applicant, the Independent Assessor will have particular regard to the seriousness of the offence of which the applicant was convicted, and the severity of the punishment suffered as a result, and the conduct of the investigation and prosecution of the offence (s  133A(2)). It is open to the assessor to reduce the award if he believes that the applicant has contributed towards his circumstances or has a bad criminal record.

31 R (on the application of O’Brien) v Independent Assessor [2007] UKHL 10, [2007] 2 AC 312. 32  Ibid.

460

The Miscarriage of Justice Application Scheme 12.55

Non-pecuniary loss 12.52 In making an award, the assessor must have regard to the amounts awarded by the courts in personal injury cases, although no direct analogy can be drawn between physical injuries and the effect of a miscarriage of justice. The assessor also needs to be aware of the awards made in civil wrong cases, in particular malicious prosecution and false imprisonment33. 12.53 In assessing an award for loss of liberty, the assessor will have regard to cases decided in the context of false imprisonment by the police and other detaining authorities, such as Thompson v Metropolitan Police Comr34 and Muuse v Secretary of State for the Home Department35. An applicant can also be awarded a sum for any features that aggravated the loss of liberty. 12.54 In Thompson Lord Woolf MR recommended the following brackets for basic damages: £500 for the first hour of detention, £3,000 for the first day, with a progressively reducing rate thereafter. These figures need to be adjusted for inflation. The Thompson guidelines were approved in R  (on the application of Miller) v Independent Assessor in relation to any s 133 assessment. The respondent submitted that Thompson did not indicate the scale of any tapering award, and that any extrapolation from a period of relatively short detention would presume an artificial tariff. However, it was held that the guidelines were an ‘essential starting point’, from which a longer period of detention had to be related proportionately, ‘not by means of a simple arithmetical progression’36. Accordingly, an award for loss of liberty of £55,000 for a period of over four years’ custodial detention was set aside. 12.55 In Muuse, an award of basic damages for £25,000 (to be uprated) was made for a period of 128 days’ (just over four months) unlawful detention. This award accounted for the fact that the claimant had been lawfully imprisoned for 147 days prior to this period, pursuant to criminal justice powers. The relevance of any preceding period of lawful detention was affirmed in R v Governor of Brockhill Prison, ex p Evans (No 2)37, where the House of Lords upheld the Court of Appeal’s award of £5,000 (to be uprated) for a 59-day detention of a prisoner whose release date was miscalculated. One of several factors justifying this lower 33 R (on the application of Miller) v Independent Assessor [2009] EWCA Civ 609. 34 [1998] QB 498, [1997] 2 All ER 762. 35 [2010] EWCA Civ 453. 36 At para 46. 37 [2001] 2 AC 19, [2000] 4 All ER 15.

461

12.56  Compensation for victims of trafficking

level of damages was the fact that the unlawful extension of detention occurred in the context of a custodial sentence of two years, of which ten months had been served following a proper conviction. As such, the appellant had ‘already made the necessary adjustments to serving a prison sentence’38. 12.56 In assessing an award for psychiatric damage, the assessor has no power to make an award for compensation for the effects of the trafficking, but rather must focus solely on the effect of the wrongful conviction and sentence. Where an applicant has suffered psychiatric damage because of his trafficking, any expert report must address to what extent the conviction and sentence exacerbated or caused any psychiatric condition. 12.57 Any final award is not to be negotiated but can be challenged by way of judicial review. Of course, if there is a civil claim made for a failure to investigate (see below), which in turn resulted in incarceration, there cannot be double recovery for the same loss.

Human Rights Act 1998 claims against public bodies 12.58 In deciding whether or not to bring such a claim, it is important to bear in mind, that HRA 1998 claims have a short limitation period of one year, subject to the court finding it equitable to extend the period. Section 7(5) of the HRA 1998 provides that: ‘(5) Proceedings under subsection 1(a) must be brought before the end of— (a) the period of one year beginning with the date on which the act complained of took place; or (b) such longer period as the court considers equitable having regard to all the circumstances, but that is subject to any rule imposing a stricter time limit in relation to the procedure in question.’ 12.59 In addition, the civil legal aid process can take some time. Although the decided cases extensions under the HRA  1998 are generally unhelpful, in R  (on the 38 [1999] QB 1043 at 1060D.

462

Human Rights Act 1998 claims against public bodies 12.62

application of D) v Metropolitan Police Comr39 (the beginning of the litigation relating to the ‘Black Cab rapist’, John Worboys), Eady J  overturned Master Leslie’s refusal to exercise his discretion under s 7(5)(b) to extend time to allow a claim to be brought under the ECHR, Art 3. D claimed that the police had infringed her Art 3 rights by failing to properly investigate her complaint of rape. The man whom D had accused had been arrested, tried, and acquitted in 2006. The trial judge criticised the police for serious failings in their evidence gathering. 12.60 The essence of D’s complaint was that the unit responsible for investigating rape and other serious sexual offences was under-resourced and inadequately staffed, and the trainee in charge of her case was inexperienced, untrained, and overworked. She brought proceedings in February 2010, three years after the expiry of the one-year time limit. The Master in the QBD focused on the delay between March 2009 (when he found that D had become aware of the potential claim), and February 2010. D argued that during that period she had suffered from depression, domestic violence and struggled with drug-taking, as well as twice attempting suicide. In October 2009, D applied for legal aid, and issued proceedings when it was granted. The Master found that D need not have waited for the legal aid determination before issuing the claim – and expressly based his decision solely on that finding. However, Eady J found that, while it was a ‘relatively simple matter’ to issue a claim form, it was reasonable to wait to have legal representation before making an application for anonymity. D  had, in addition, wished to avoid committing herself to any costs liability while awaiting the legal aid grant. 12.61 Furthermore, unless the claim settles, victims of trafficking will need to be advised that they will have to give evidence at trial and likely to be subject to robust cross-examination, notwithstanding their vulnerabilities.

The investigative duty 12.62 In Rantsev v Cyprus and Russia40, the ECtHR held that ‘[l]ike Articles 2 and 3, Article 4 also entails a procedural obligation to investigate situations of potential trafficking’. That investigation must be effective, and, in that regard, the court held as follows41: 39 [2012] EWHC 309 (QB). 40 (2010) 51 EHRR 1. 41 At 288–289.

463

12.63  Compensation for victims of trafficking

‘[…] For an investigation to be effective, it must be independent from those implicated in the events. It must also be capable of leading to the identification and punishment of individuals responsible, an obligation not of result but of means. A requirement of promptness and reasonable expedition is implicit in all cases but where the possibility of removing the individual from the harmful situation is available, the investigation must be undertaken as a matter of urgency. The victim or the nextof-kin must be involved in the procedure to the extent necessary to safeguard their legitimate interests. Finally, the Court reiterates that trafficking is a problem which is often not confined to the domestic arena. When a person is trafficked from one state to another, trafficking offences may occur in the state of origin, any state of transit and the state of destination. Relevant evidence and witnesses may be located in all states. Although the Palermo Protocol is silent on the question of jurisdiction, [ECAT] explicitly requires each Member State to establish jurisdiction over any trafficking offence committed in its territory. Such an approach is, in the Court’s view, only logical in light of the general obligation, outlined above, incumbent on all states under Article 4 of the Convention to investigate alleged trafficking offences. In addition to the obligation to conduct a domestic investigation into events occurring on their own territories, Member States are also subject to a duty in cross-border trafficking cases to co-operate effectively with the relevant authorities of other states concerned in the investigation of events which occurred outside their territories. Such a duty is in keeping with the objectives of the Member States, as expressed in the preamble to the Palermo Protocol, to adopt a comprehensive international approach to trafficking in the countries of origin, transit and destination. It is also consistent with international agreements on mutual legal assistance in which the respondent states participate in the present case.’ 12.63 In OOO  v Commissioner of Police for the Metropolis42 the claimants (young Nigerian women) claimed that the police had infringed their rights under the ECHR, Arts 3 and 4. Each of the claimants was trafficked into the UK from Nigeria when a girl, for the purpose of domestic servitude and each alleged that thereafter and over a number of years they were made to work for no pay in a household in and around London and subjected to physical and emotional abuse by the householders. They argued that their treatment over these years was such that they were subject to inhuman and degrading treatment and that they were held in slavery or servitude contrary to Arts 3 and 4 respectively of the ECHR. The claimants’ complaints against the police were essentially 42 [2011] EWHC 1246 (QB).

464

Human Rights Act 1998 claims against public bodies 12.65

that when officers of the Metropolitan Police were asked to investigate the treatment that had been meted out to them, they had failed to undertake any such investigation. It was the first time the domestic courts had to consider the scope of the investigative duty under Arts 3 and 4. 12.64 The police contended that whilst the householders had breached the claimants’ Art 3 and 4 rights, the scope of the investigative duty was such that it had not been breached. The High Court found that the view of the ECHR upon the scope of the investigative duty arising under Arts 3 and 4 of the Convention was sufficiently explained by reference to the decision in Rantsev, in that the police were under a duty to carry out an effective investigation of an allegation of a breach of Art 4 once a credible account of an alleged infringement had been brought to their attention. The trigger for the duty would not depend upon an actual complaint from a victim or near relative of a victim. The investigation, once triggered, would have to be undertaken promptly.

The scope of the investigative duty revisited 12.65 The scope of the investigative duty under the ECHR, Art 3 was revisited in the watershed judgment of Commissioner of Police of the Metropolis v DSD43. The claimants were victims of John Worboys, a serial sex offender known as the Black Cab Rapist and thought to be responsible for the drugging and sexual assault of over 100 women. Both NBV and DSD reported their assault to the police, and in NBV’s case Worboys was quickly arrested as a suspect but released without charge. In DSD’s case, he was never identified. Worboys was eventually charged with 23 offences relating to 14 victims and convicted of 19 counts (including the assault on NBV). Both women brought damages proceedings against the police, alleging failure to carry out effective investigations into their complaints that amounted to inhuman or degrading treatment contrary to Art 3. In the High Court44, Green J found that there had been a series of systemic and operational errors, which included the following: (i) a substantial failure to train relevant officers in the intricacies of sexual assaults and, in particular, drug-facilitated sexual assaults; (ii) serious failures by senior officers properly to supervise investigations by more junior officers and to ensure that investigations were being conducted in accordance with standard procedure; (iii) serious failures in the collection and use of intelligence sources to crosscheck complaints to see if there were linkages between them; 43 [2018] UKSC 11. 44 [2014] EWHC 436 (QB).

465

12.66  Compensation for victims of trafficking

(iv) failures to allocate proper resources to sexual assaults including pressure from borough management to focus resources on other allegations; and (v) a failure to maintain the confidence of victims in the integrity of the investigative process. 12.66 The police argued that insofar as a duty to investigate arose at all it was a limited duty which arose only where the State was in some way itself complicit in a breach of Art 3. Green J rejected this argument and found that the claimants’ Art 3 rights had been breached. In a separate judgment (as to which see below), he also awarded damages. The Court of Appeal dismissed the police’s appeal45. The Supreme Court considered the following two issues: (i) whether there is an obligation under the HRA  1998, s  6, read with ECHR, Art 3, to investigate ill-treatment which has been perpetrated by a private individual without any complicity of a public authority; and/or (ii) whether in the case of such ill-treatment any positive obligation is confined to a requirement to put in place the necessary structure to enable such investigation to be conducted but does not extend to the conduct of an individual investigation into a particular alleged crime. 12.67 The argument that the investigative duty does not apply in the absence of state complicity was roundly rejected by the Supreme Court.The majority judgment, given by Lord Kerr, held that the ECHR,Art 3 investigative duty did not require State complicity and applied to both systemic and operational failures. There was a clear and consistent line of Strasbourg authority on the nature and scope of the investigative duty and there was no good reason for the Supreme Court to depart from it. The Court held that serious failures (also described by Lord Kerr as ‘conspicuous or substantial’ and ‘egregious and significant’) by the police in an investigation into serious offences against the person (described by Lord Kerr as ‘serious violence to an individual’), even where these fall short of a structural or system failing, will amount to a breach of the investigative obligation under Art 3. A credible or arguable claim of serious crime will trigger the duty to carry out an effective investigation.

Just satisfaction 12.68 Damages are not automatically recoverable for a failure to investigate. In OOO v Commissioner of Police for the Metropolis46,Wyn Willams J awarded £5,000 to each 45 DSD v Metropolitan Police Commissioner [2015] EWCA Civ 646, [2016] QB 161. 46 [2011] EWHC 1246 (QB), [2011] HRLR 29, [2011] UKHRR 767.

466

Just satisfaction 12.71

of the claimants for the significant frustration and distress (none had psychiatric conditions), over and above a declaration that Art 4 had been breached. 12.69 In the quantum decision of DSD  v Commissioner of Police for the Metropolis47 (which was not challenged on appeal), the essential question for the court was whether it was ‘necessary’ to award damages in order to ‘afford just satisfaction’ to DSD and NBV within the meaning of the HRA 1998, s 8. Green J reviewed the relevant Strasbourg authorities in this area and awarded both women damages. He said at [118]: ‘The main factors that I  take into account are: the nature of the harm suffered and treatment costs; the duration of the breach by the Defendant; the nature of the failings and whether they were operational and/or systemic; the overall context to the violations; whether there was bad faith on the part of the Defendant or whether there is any other reason why an enhanced award should be made; where the award sits on the range of awards made by Strasbourg and in similar domestic cases; other payments; totality and “modesty”’. 12.70 He awarded to DSD the sum of £22,25048 comprising a sum (£20,000) for (more general) non-pecuniary harm which was calculated to cover the period to the date of judgment and a small incremental component (£2,500) for future treatment. He awarded NBV the sum of £19,000. This comprised £17,000 for the fact of the rape and the post-rape psychological harm to the date of judgment, and £2,000 as a contribution to future treatment costs. 12.71 Whilst the damages in DSD were primarily about the psychiatric harm caused by the investigative failure (which was separate from the harm caused by the sexual violence itself), in victims of trafficking cases, there may be the additional element of a prosecution and incarceration of a victim of trafficking who commits an offence and should have had the non-prosecution/ non-penalty protection (see Chapter 5). If the loss of liberty can be shown to flow directly from the failure to investigate, then damages for that loss can be included. The approach to loss of liberty damages is dealt with at para 12.52 above. Importantly, in DSD49, the Supreme Court confirmed that the award of compensation was not affected by the fact that the victims had received compensation from CICA, and a civil claim against Worboys himself. Lord Kerr explained at [64]–[65] that different wrongs were being compensated: 47 [2014] EWHC 2493 (QB). 48 Figures to be uprated. 49 [2018] UKSC 11.

467

12.72  Compensation for victims of trafficking

‘It is well settled … that the award of compensation for breach of a Convention right serves a purpose which is distinctly different from that of an order for the payment of damages in a civil action. As Lord Brown said in Van Colle at para 138: “… Convention claims have very different objectives from civil actions. Where civil actions are designed essentially to compensate claimants for their losses, Convention claims are intended rather to uphold minimum human rights standards and to vindicate those rights. That is why time limits are markedly shorter. … It is also why section 8(3) of the [HRA] provides that no damages are to be awarded unless necessary for just satisfaction …” Laws LJ said in para  68 of his judgment in the Court of Appeal [in DSD], that the inquiry into compliance with the article 3 duty is “first and foremost concerned, not with the effect on the claimant, but with the overall nature of the investigative steps to be taken by the State”. I agree with that. The award of compensation is geared principally to the upholding of standards concerning the discharge of the state’s duty to conduct proper investigations into criminal conduct which falls foul of article 3. In paras 72-78 of his judgment, Laws LJ set out the systemic and operational failures of the appellant, quoting extensively from the judgment of Green J as to the first of these. That catalogue of failures was considered to warrant the award of compensation to the respondents, irrespective of the fact that they had received damages from both Worboys and CICA. I cannot find any flaw in the judge’s decision to award that compensation nor in the Court of Appeal’s decision to uphold that decision.’

Claims against traffickers Tortious claims against individual traffickers 12.72 Whilst civil claims against traffickers for a host of torts (for example, false imprisonment, harassment, assault, battery) are available in theory, such claims are rare, not least because victims of trafficking are usually terrified of their traffickers and the reprisals that would follow if a civil claim was initiated, and even if they were successful, enforcing any judgment would be problematic.The case of R (on the application of Tirkey) v Director of Legal Aid Casework50 is a chilling demonstration of how the statutory charge can wipe out even a large award for 50 [2017] EWHC 3403 (Admin).

468

Claims against traffickers 12.74

damages.The claimant was an Indian national who was trafficked into the UK by an Indian couple, for whom she was forced to work in conditions of servitude. She brought proceedings against them in the employment tribunal for which she was granted exceptional case funding by the Legal Aid Agency. The claim was successful and resulted in a substantial award of damages (£266,536.14) but, owing to delays by Central London County Court in dealing with an application by the claimant’s solicitor for an interim charging order, the couple dissipated their assets before a charge could be obtained over them. The total sum ultimately recovered by the claimant was £35,702.80, and once the Legal Aid Agency had exercised its statutory charge under s  25 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 to recover the cost of the legal aid provided to the claimant, she was left with nothing. Her judicial review, relying on the EU  Charter of Fundamental Rights, ECAT and the ECHR failed on all grounds. 12.73 In AT  v Dulghieru51, the only known civil claim of its kind, four Moldovan women in their twenties brought claims based on their allegation that they were victims of an unlawful conspiracy to traffic them into the UK from Moldova for the purposes of sexual exploitation and prostitution. The two defendants were significant players in that conspiracy and each of them has been convicted of criminal offences and sentenced to long terms of imprisonment. In this case, the claimants were granted anonymity and eventually judgment was entered in default of a proper defence. The judgment turns on the assessment of damages after hearing from each claimant (which fortuitously for them was in the absence of either defendant, who, although invited by the court to participate, did not). The total amount awarded to the claimants against the defendants, who were liable jointly and severally, was, in the case of AT £175,000, NT £162,000.00, in the case of ML £132,000 and in the case of AK £142,00052. However, it is unlikely that those damages were ever recovered from the defendants, given that they were incarcerated, and any assets would be difficult to trace53.

Tortious and other claims against a company 12.74 In Galdikas v DJ Houghton Catching Services Ltd54, the first civil case of its kind, the claimants, six individuals who alleged they were trafficked from Lithuania and subjected to severe labour exploitation, brought civil claims against a limited company engaged in the supply of labour to chicken farms in the 51 [2009] EWHC 225 (QB). 52 Figures to be uprated. 53 For a detailed analysis of this litigation see J Luqmani, ‘Traffickers in the UK Courts for Harm Associated with Trafficking’ in P Chandran (ed), Human Trafficking Handbook (LexisNexis, 2011). 54 [2016] EWHC 1376 (QB), [2016] IRLR 859.

469

12.75  Compensation for victims of trafficking

UK. The claimants were recognised by the NRM as victims of trafficking. The claims encompassed claims in, inter alia, breach of contract, breach of the Agricultural Wages Act 1948, negligence, harassment, and assault. The claimants alleged that they suffered loss and damage, including personal injury, distress, and unpaid wages, because of the defendants’ wrongful acts. They also joined the Gangmasters Licensing Authority55 (a statutory regulatory body responsible for the licensing of gangmasters) as a defendant. The judgment deals with various preliminary applications for strike out/summary judgment by both the claimants and DJ Houghton (the latter failed). The claimants were granted summary judgment in relation to their claims for breaches of the Agricultural Wages Orders and the Gangmasters (Licensing Conditions) Rules 200956 relating, inter alia, to their inadequate wages and unlawful withholding of wages and inadequate working facilities. The case settled in December 2016, some four years after the claimants were exploited57.

Employment tribunal claims 12.75 Claims against traffickers are more usually brought in the employment tribunal for employment-related abuses such as failure to pay the minimum wage, failure to pay holiday pay and race discrimination. 12.76 In Hounga v Allen58, Miss Hounga knowingly illegally entered the UK from Nigeria in January 2007, when aged 14. For the following 18 months Miss Hounga lived in the home of Mrs Allen and of her husband (who had facilitated her illegal entry). 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, unpaid, to look after her children in the home.There Mrs Allen inflicted serious physical abuse on Miss Hounga and threatened her if she reported the abuse. In July 2008, Mrs Allen forcibly evicted Miss Hounga from the home and thereby dismissed her from the employment.The appeal proceeded on the basis that, by dismissing her, Mrs Allen discriminated against Miss Hounga on racial grounds, namely on ground of nationality, she treated Miss Hounga less favourably than she would have treated others. The Court of Appeal 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. The Supreme Court unanimously allowed her appeal in relation to her claim for the statutory tort of discrimination, committed during dismissal. The majority in the Supreme 55 Now the Gangmasters and Labour Abuse Authority: http://www.gla.gov.uk/, last accessed 19 April 2020. 56 SI 2009/307. 57 See www.leighday.co.uk/News/News-2016/December-2016/Joy-for-trafficked-workers-while-UKsWorst-Gangma, last accessed 19 April 2020. 58 [2014] UKSC 47, [2014] 1 WLR 2889.

470

Claims against traffickers 12.78

Court held that it would be an affront to current anti-trafficking public policy to allow an employer to evade liability to an employee by reference to the illegality of the contract of employment entered into between them, where the employer had trafficked the employee for domestic servitude. The UK authorities are striving in various ways to combat trafficking and to protect its victims. The public policy in support of the application of the defence of illegality, to the extent that it exists at all, should give way to the public policy to which its application is an affront. 12.77 It should be noted that in Taiwo v Olaigbe59, the Supreme Court held that those who are exploited due to their vulnerable immigration status cannot bring a race discrimination claim, as immigration status (as distinct from nationality) is not a protected characteristic within the meaning of the Equality Act 2010. Ms Taiwo had entered the UK on a false basis, had her passport taken from her by her employer and she was expected to work during most of her waking hours for minimal wages. She was starved and subject to physical and mental abuse. She escaped and brought successful claims in the employment tribunal for the failure to pay her the minimum wage, for unlawful deductions from wages, for failure to provide rest periods and to give her written terms of employment. She was awarded compensation in respect of these claims but her claim for race discrimination, which would have entitled her to damages for the fear and distress she suffered, was dismissed. The tribunal found that her mistreatment was because she was a vulnerable migrant worker who was reliant on the respondents for her continued employment and residence in the UK, not because she was Nigerian. The Supreme Court dismissed her appeal (as well as that of another related appellant). Lady Hale noted that the present law does not offer redress for all the harm suffered by the appellants. She stated that Parliament might wish to consider extending the remedy available under the MSA 2015 to give employment tribunals jurisdiction to grant compensation for ill-treatment meted out to workers. 12.78 Lastly, in Reyes v Al-Malki60, a domestic worker who alleged that she was a victim of trafficking brought claims for direct and indirect discrimination, unlawful deductions from wages (failure to pay the national minimum wage), and breach of the Working Time Regulations, against a Saudi Arabian diplomatic agent and his wife. Mr and Mrs Al-Malki left the UK when Mr Al-Malki’s posting came to an end. The Court of Appeal held that the Employment Tribunal had no jurisdiction because Mr Al-Malki was entitled to diplomatic immunity under Art 31 of the Vienna Convention on Diplomatic Relations, and Mrs Al-Malki was entitled to a derivative immunity under Art 37(1) as a member of his family. 59 [2016] UKSC 31, [2016] 1 WLR 2653. 60 [2017] UKSC 61, [2017] 3 WLR 923.

471

12.78  Compensation for victims of trafficking

The Supreme Court unanimously allowed the appeal but on a narrow basis. In short, it held that once a diplomat’s posting has come to an end, his immunity after leaving the receiving state is ordinarily limited to a ‘residual immunity’ under Art 39(2). That residual immunity applies only to acts performed in the exercise of ‘official functions’. Acts performed in the exercise of a diplomat’s official functions are limited to acts which are part of the diplomatic functions of the diplomatic mission, performed on behalf of the state which that diplomat represents. Mr and Mrs Al-Malki left the UK at the end of Mr Al-Malki’s posting, so the only potentially relevant immunity is the ‘residual immunity’ in respect of official acts. The employment of Ms Reyes to carry out domestic tasks in the residence of Mr and Mrs Al-Malki was not an act in the exercise of the diplomatic functions of the mission. Nor was it done on behalf of Saudi Arabia, even though it assisted Mr Al-Malki in the performance of his official functions. It was not there the exercise of an official function. Consequently, neither Mr Al-Malki nor Mrs Al-Malki could rely on that residual immunity.

472

13 Public funding for victims of trafficking Steven Bird and Lindsay Cundall

13.1 Victims of trafficking will generally require public funding if they are to be able to benefit from legal advice in relation to the various legal issues that they encounter. Public funding is administered by the Legal Aid Agency (‘LAA’) and is commonly referred to as ‘legal aid’. The nature and extent of the funding available depends on the type of legal problem under consideration. Eligibility for the relevant public funding is not uniform across the various legal aid schemes.

Advice on arrest for a criminal offence 13.2 The Police Station Advice and Assistance Scheme provides for free and independent legal advice to be available to any person arrested for a criminal offence in England and Wales regardless of his nationality or means. Advice under the scheme can only be provided by a firm of solicitors which holds a Standard Crime Contract 2017 (‘SCC  2017’)1 and must be provided by a solicitor or accredited police station representative. 13.3 If the individual arrested does not know a solicitor to contact on arrest, he is entitled to advice from the duty solicitor. Most firms holding the SCC 2017 will have solicitors who are qualified as duty solicitors and who are allocated slots on the rota for the specific police stations local to their office. The LAA has to ensure that a solicitor is available at every police station at all times, and does so through the duty solicitor scheme. 13.4 The scope of advice under the scheme can be limited and, in some circumstances, the advice will be provided not by the requested solicitor or the duty solicitor 1 The SCC 2017 started on 1 April 2017. For police station attendances prior to that date the firm would have had to hold the SCC 2010. The SCC 2017 currently runs to 31 March 2021 and for attendances after that date the firm would need to have signed the new Contract unless the SCC 2017 is further extended.

473

13.5  Public funding for victims of trafficking

but by Criminal Defence Direct (‘CDD’).The following matters fall within the scope of the CDD scheme2: (i)

an individual detained in relation to any non-imprisonable offence;

(ii) someone arrested on a bench warrant for failing to appear and being held for production before the court, except where the individual’s solicitor has clear documentary evidence available that would result in him being released from custody, in which case attendance may be allowed provided that the reason is recorded on the solicitors’ file; (iii) anyone arrested on suspicion of: •

driving with excess alcohol, who is taken to the police station to give a specimen (Road Traffic Act 1988, s 5);

•

failure to provide a specimen (Road Traffic Act 1988, ss 6, 7 and 7A); or

•

driving whilst unfit/drunk in charge of a motor vehicle (Road Traffic Act 1988, s 4); or

(iv) anyone detained in relation to breach of police or court bail conditions. 13.5 The matter is removed from the CDD scheme if3: •

an interview or an identification procedure is going to take place;

•

the person arrested is eligible for assistance from an appropriate adult under the PACE codes of practice;

•

the individual is unable to communicate over the telephone;

•

the individual complains of serious maltreatment by the police;

•

the investigation includes another alleged offence which does not fall within the above restrictions;

•

the solicitor is already at the same Police Station, albeit that the fee payable is limited to the Police Station Telephone Advice Fixed Fee;

•

the advice relates to an indictable offence; or

•

the request is a Special Request4.

2 SCC Specification para 9.9. 3 SCC Specification para 9.10. 4 A ‘Special Request’ is a defined in SCC Specification para 1.2 as a request identified to the solicitor as such by the DSCC. Special Requests may include, for example: requests where CDD considers that, because of a conflict of interest, the request should be handled by the solicitor (instead of by a CDD Telephone Adviser); or considers that Advocacy Assistance is required.

474

Advice on arrest for a criminal offence 13.9

13.6 When an individual is arrested, the custody officer at the police station will provide him with his rights and entitlements under the Police and Criminal Evidence Act 1984. One such entitlement is to speak to a solicitor free of charge5. The custody officer will notify a central agency called the Defence Solicitor Call Centre (‘DSCC’), who will allocate the case a reference number without which no claim for fees will be paid. It is possible to receive instructions for an attendance by agreement or via a third party but the DSCC has to be informed within 48 hours of the attendance and a number allocated to the case6. 13.7 If the case falls within the CDD scheme, advice will initially be provided by CDD, an agency contracted directly by the LAA to provide such advice. If CDD considers that the circumstances take the matter outside of the CDD scheme, the nominated solicitors will be called. 13.8 Those arrested who may be victims of trafficking will not always have been identified as victims of trafficking at this very early point after initial arrest. It is therefore possible that a victim of trafficking will be directed to CDD instead of his own (or the duty) solicitor in circumstances where advice from his solicitor would be appropriate and remunerable under the Police Station Advice and Assistance Scheme (for example the entitlement to an appropriate adult). It is equally likely that unless specifically trained to identify the potential signs of a victim of trafficking, the CDD adviser will not pick up the issue of trafficking at this stage. 13.9 Funding for legal advice under the police station Legal Advice and Assistance scheme is not subject to a financial eligibility test. It is, however, subject to a form of merits test known as the Sufficient Benefit Test. For police station advice the Sufficient Benefit Test is deemed to be satisfied in circumstances where a person arrested has a right to legal advice, for example under PACE 1984 or the Terrorism Act 2000, at the police station and has requested such advice. The right to non-means tested legal advice arises where a suspect is to be interviewed either at a police station or another location and includes advice to a person detained under the Terrorism Act 2000, Sch 7 in accordance with Sch 8 thereof, either at a port or in a police station7.

5 PACE 1984, s 58. 6 SCC Specification para 9.20. 7 SCC Specification para 9.14.

475

13.10  Public funding for victims of trafficking

13.10 The SCC prescribes that the solicitor may provide further legal advice to the client immediately following charge. However, attendance upon the client thereafter, whilst fingerprints, photographs and swabs are taken, will not meet the Sufficient Benefit Test except where the client requires further assistance owing to his particular circumstances, in which case the relevant factors must be noted on the solicitors’ file. The solicitor may remain at the police station if required to make representations about bail, provided that this justification is noted on the file8. It is likely that the particular vulnerabilities of a victim of trafficking will enable the solicitor to remain at the police station until all postcharge procedures have been completed. 13.11 Once a police station matter has been accepted from the DSCC by the solicitors, a telephone call should be made to the police station to provide initial advice and make contact with the police. Unless there are exceptional circumstances, the following is mandatory: attendance at the police station to attend all police interviews with the arrested person in connection with an offence, to attend any identification parade, group identification or confrontation, or in circumstances where there is a complaint of serious maltreatment by the police9. Attendance at video identification parades is discretionary10. 13.12 Once instructed, the solicitors should conduct the matter throughout the investigation stage (i.e. up to the point where a charging decision is made).There are restrictions on another firm taking over the case at the investigation stage and being entitled to claim a fee under the scheme. This may cause problems with victims of trafficking who are released on bail by police or released under investigation and then latterly come into contact with solicitors who have an expertise in this area (i.e. trafficking expertise). 13.13 The solicitor must not make a claim under the SCC for Police Station Advice and Assistance given to a client who has received Police Station Advice and Assistance for the same matter from another firm within the six months except where: •

there is a gap in time and circumstances have changed materially between the first and second or subsequent occasions when the Police Station Advice and Assistance was sought;

8 SCC Specification para 9.16. 9 SCC Specification para 9.38. 10 SCC Specification para 9.40.

476

Advice on arrest for a criminal offence 13.17

•

the individual has reasonable cause to transfer from the first solicitor; or

•

the first solicitor has confirmed that no claim for payment for the Police Station Advice and Assistance will be made11.

13.14 The second firm should not take on the case and claim for a fee where: •

the client simply disagrees with the first advice and wants a second opinion;

•

there is only a short time between the first and second occasions when the Police Station Advice and Assistance is sought and no material change of circumstances has occurred;

•

the change requested is from a second to a third solicitor (unless exceptionally it is reasonable for a further change); or

•

there is no reasonable explanation for the client seeking further Police Station Advice and Assistance from a new solicitor12.

13.15 The most likely provision to apply in cases concerning victims of trafficking will be the victim of trafficking having reasonable cause to transfer from one firm to another based on the second firm’s specialist knowledge of trafficking issues, especially in circumstances where the first firm has not identified that the individual may be a victim of trafficking. The second firm takes the risk of non-payment in these circumstances and should justify the change with a detailed file note of the client’s concerns and reasons for transfer. There is no formal transfer process at this stage and the second firm can merely request the papers from the first firm who will then close and bill the case. 13.16 Remuneration for police station advice is on a fixed fee structure subject to a threshold at which hourly rate claims become available. There is a fixed fee for telephone only advice. The fee for providing advice at the police station is also fixed and depends on the location of the police station. The telephone advice fee is not payable in addition, but forms part of the attendance fee. 13.17 If the ‘escape fee’ threshold is reached, a fixed fee is payable plus a fee based on hourly rates for work done beyond the threshold figure. The firm calculates the fee by reference to hourly rates and once that figure exceeds the stated 11 SCC Specification para 9.67. 12 SCC Specification para 9.70.

477

13.18  Public funding for victims of trafficking

threshold for the police station attended, further fees are paid – but only for the work done beyond the threshold. 13.18 In very general terms, the fixed fee is roughly one-third of the threshold figure, so the firm will be paid a fixed fee and then have to undertake further work unpaid until the threshold is reached. The unpaid portion is never recouped on an escape fee claim, which is also assessed for reasonableness by the LAA using a CRM18 form. 13.19 Only one fee is payable for the whole of the investigation stage of a case. This means that where an individual is released on bail or under investigation and subsequently re-interviewed, there is no further payment available for that attendance (unless it takes the case beyond the escape threshold). 13.20 It is possible to undertake work during the bail period or where someone is released under investigation but only if they are financially eligible for advice under the freestanding Advice and Assistance scheme13.This work is included in the calculation as to whether the case passes the escape threshold but, unless it takes the case beyond that threshold, no further fee is payable beyond the Police Station fixed fee. 13.21 The Police Station Advice and Assistance scheme applies to those attending the police station voluntarily to be interviewed under caution about criminal offences. The individual does not need to be under arrest to qualify for the funding. 13.22 Advice and Assistance is also available under the Advocacy Assistance provisions14, where there is an application for a warrant of further detention, to vary police bail conditions or to extend police bail. 13.23 Each individual case is billed using a CRM11 form but the submission of bills to the LAA for payment is via the monthly aggregated submission form on a

13 See details below at paras 13.24–13.28 and 13.94 (re appeals and reviews), and SCC 2017 Specification paras 9.113–9.140. 14 SCC 2017 Specification paras 9.141–9.187.

478

Work after release from police station but before charge 13.28

CRM6 form. Files are audited and can be selected for review by the LAA at any time.

Work after release from police station but before charge 13.24 Once a client is released from the police station but where a decision on charge has not been made, legal advice is available under the Advice and Assistance scheme if the client is financially eligible. The eligibility limits are very low, but most clients who are potential victims of trafficking would usually meet the criteria. 13.25 This funding requires the client to sign a CRM1 and CRM2 form and for the financial eligibility details to be provided and checked. The client will need to provide proof of his income even if he is being supported by a charity or friend. A letter from that person or organisation setting out what support they are providing will suffice, as long as it covers the date that the form was signed. 13.26 This funding will enable the solicitors to make representations to the Crown Prosecution Service against charging the client with criminal offences. 13.27 However, the reality of the situation for the solicitors is that this work will not add to the fee they are paid for representing the client at the investigation stage. The work done under this scheme will only be remunerated if it takes the work done in the investigation stage above the fixed fee threshold. If it does not, and in most cases it will not, no further fee is payable in addition to the fixed fee for attending the police station. 13.28 The financial limit on the Advice and Assistance Scheme (see below)15 applies and can be extended by online request using the CRM5 format. Disbursements for interpreters, experts, translators or any other necessary disbursement expense can be funded, subject to approval by the LAA. The disbursements will be funded additionally to the fixed fee.

15 See para 13.101.

479

13.29  Public funding for victims of trafficking

Witnesses at risk of self-incrimination 13.29 On occasion a victim of trafficking may be requested to provide an account to police as a witness in a case, in particular where there is an investigation into that person’s trafficked status and into the person allegedly responsible for the trafficking. This may be contemporaneous to a criminal investigation of the victim of trafficking or independent of it.These interviews are normally carried out under the Achieving Best Evidence video procedure. 13.30 In such interviews the victim of trafficking is likely to be in a position where he may potentially admit to having committed criminal offences, albeit under coercion. Consequently, there is a risk of self-incrimination and therefore a ‘complicating factor’16. 13.31 Advice and Assistance is available to a victim of trafficking in such circumstances under the SCC  201717 subject to a means test and passing the Sufficient Benefit Test. 13.32 The details of the Advice and Assistance Scheme are set out below18.The scheme is very strictly means tested, but potential victims of trafficking would normally expect to qualify for the funding subject to proof of their income.

Advice during criminal court proceedings at first instance 13.33 If a victim of trafficking is charged with a criminal offence, legal aid from a firm of solicitors with an SCC 2017 may be available, subject to means and passing a merits test. An application is made online and the defendant has to sign a hard copy of a declaration form confirming that the information provided is correct. 13.34 The online application requires details of the defendant’s income, outgoings and capital as well as details about the nature of the case being prosecuted against them. Most victims of trafficking will qualify for legal aid if the offence 16 SCC 2017 Specification para 9.3. 17 SCC 2017 Specification paras 9.3, 9.4, 9.113–9.140. 18 See para 13.91 ff.

480

Advice during criminal court proceedings at first instance 13.40

passes the merits test. The online application is on the combined CRM14 and CRM15 forms. 13.35 As a rough guide, anyone earning under £20,000 per annum is likely to qualify for legal aid for summary proceedings. For proceedings on indictment the financial limit is an annual disposable household income of £37,500. It should be noted that this is the disposable income after mortgage, rent and other expenses are deducted. 13.36 Legal aid is assessed on income initially but it may be that in Crown Court cases a contribution from capital is ordered at the end of the case if the defendant is convicted and has assets in excess of £30,000. At this stage the LAA may request a contribution from capital. 13.37 If legal aid is granted, a representation order will be issued. This will cover the work indicated on the order.

Magistrates’ court proceedings 13.38 If legal aid is granted for the magistrates’ court in summary proceedings it will allow the solicitor to obtain experts’ reports, interpreters and translations as necessary during the course of the case, as long as the work undertaken is reasonable. The funding regime for magistrates’ court cases is set out in section 10 of the Specification to the SCC 2017 and a firm must have a Contract to undertake the work. 13.39 It is advisable to make an application for prior authority from the LAA for any disbursement in excess of £100 using the CRM4 process on the LAA online portal. An estimate of the fees from three providers should be sought, although the LAA may not insist on this if the rates are within legal aid guidelines and the amount of time is reasonable. In cases of unusual expertise, it may be that higher rates might be agreed by the LAA and only one estimate may be possible in any event. 13.40 In most summary proceedings, the representation order will provide for representation by solicitors. Counsel can be instructed but would be paid by the 481

13.41  Public funding for victims of trafficking

solicitors rather than by the LAA. In these circumstances counsel is ‘unassigned’ and becomes an overhead of the firm. A fee will be agreed between the firm and chambers and the times worked by the advocate would be included in the solicitors’ bill as if it were work undertaken by the firm. 13.41 In exceptional cases heard before the magistrates’ court an advocate may be ‘assigned’ if the proceedings relate to an extradition hearing under the Extradition Act 2003 or an indictable (including either way) offence and the relevant court determines that because there are circumstances which make the proceedings unusually grave or difficult, representation by an advocate would be desirable19. An advocate cannot be assigned on summary only offences. 13.42 Assigned counsel is paid directly by the LAA but the bill is submitted by the solicitors’ firm on a CRM8 form to accompany the firm’s CRM7 claim form (which is submitted online). 13.43 The fees for magistrates’ court cases are calculated on a fixed fee matrix but using underlying hourly rates excluding travel and waiting (except in certain (usually) rural areas). If the work done does not reach the ‘lower limit’, the lower fixed fee is payable. If the work done exceeds the lower limit but not the ‘higher limit’, the higher standard fee is claimed. If the work done exceeds the higher limit a non-standard fee is claimed whereby the work is claimed entirely at hourly rates and assessed for reasonableness by the LAA. There is a different fixed fee depending on whether the case is a trial (including a case that cracks at the last minute) or a guilty plea (or equivalent) and whether on a guilty plea the case was summary only or either way20. 13.44 Standard fees are claimed by using a CRM11 to calculate the bill and then submitted as one line on the monthly CRM6 to the LAA.All bills are potentially subject to audit by the LAA on request. 13.45 Non-standard fees are submitted online using the CRM7 form. These are assessed on a case-by-case basis.

19 Criminal Legal Aid (Determinations by a Court and Choice of Representative) Regulations 2013, 2013/614, reg 16(2). 20 The full list of categories is set out at SCC para 10.90.

482

Advice during criminal court proceedings at first instance 13.49

13.46 It is possible to claim enhanced hourly rates for all or part of the work undertaken and if such rates are claimed, the bill is submitted as a CRM7 for assessment. Enhanced rates should be claimed where it is considered, taking into account all the relevant circumstances of the case and compared to the generality of proceedings, that: •

the work was done with exceptional competence, skill or expertise; or

•

the work was done with exceptional dispatch; or

•

the case involved exceptional circumstances or complexity21.

13.47 If the work or part of it attracts an uplift, the LAA will decide what rate to apply up to a maximum of 100% and having regard to the degree of responsibility accepted by the firm; the care, speed and economy with which the case was prepared; and the novelty, weight and complexity of the case22. Any assessment can be appealed to an Independent Funding Adjudicator (also known as an Independent Costs Assessor).

Crown Court proceedings 13.48 In the Crown Court, solicitors are paid via the Litigator Graduated Fee Scheme (‘LGFS’) and advocates by the Advocates Graduated Fee Scheme (‘AGFS’). In the LGFS the fees for the work undertaken are fixed by a series of proxies, namely the nature of the charge (which will fall into one of eleven categories), whether it is a guilty plea, cracked trial or trial (or equivalent outcome), the number of pages of prosecution evidence and the trial length. In the AGFS page count is no longer applicable and the number of offence bands has been increased. The scheme now allows for a basic fee according to the new offence banding and level of advocate and a daily attendance fee for each day of the trial. Standard appearances attract separate payments. Guilty pleas are paid on the basic fee alone. Cracked trial fees depend on the stage at which the trial cracked after the PTPH and before trial.23 13.49 The fee payable is not related to the amount of work undertaken. Disbursements are paid in addition to the lawyers’ fees via the solicitors who include them in their fee submission. 21 SCC 2017 Specification para 10.99. 22 SCC 2017 Specification paras 10.101–10.102. 23 See Criminal Legal Aid (Remuneration) (Amendment) Regulations 2018, SI 2018/220.

483

13.50  Public funding for victims of trafficking

13.50 The number of pages of prosecution evidence in a LGFS claim is capped at 10,000 pages and any work above that is paid on an hourly rate (not subject to enhancement) and assessed on submission of the bill for reasonableness. In AGFS cases, the 10,000-page threshold applies to all cases except drugs offences (where it is 15,000 pages) and dishonesty offences (30,0000 pages). This is known as special preparation. 13.51 Work on unused material is not specifically remunerated but is deemed to be included in the fixed rates paid.

Prior authority for disbursements 13.52 Experts, such as trafficking and country experts, as well as psychiatric and phycological experts may need to be instructed on human trafficking cases. As stated above, if a disbursement expense is to be incurred, an application for prior authority should be made to the LAA if the amount involved exceeds £100. This application is made online using the CRM4 form. The LAA may require three estimates from experts but this is not always essential. There are prescribed rates for experts of different types and it is occasionally possible to exceed those rates if no suitable expert can be found for the usual legal aid rate, or if the case requires a specific expert who will not undertake the work at those rates. Refusals to grant the prior authority requested can be appealed to an Independent Costs Assessor. 13.53 Once prior authority has been granted and the work undertaken, an interim claim can be made for the disbursement if the case is in the Crown Court under the LGFS. No such claim can be made in magistrates’ court cases unless the payment claimed is likely to exceed the value of the next monthly payment24. In effect this means that such payments are very rarely made in magistrates’ court proceedings. 13.54 Any work in excess of the prior authorised figure cannot be guaranteed payment and would have to be justified to the LAA at the conclusion of the case. Experts must therefore know that their fees are fixed by their estimates and the solicitor will not make up any shortfall if the final bill exceeds the estimate 24 SCC Specification para 10.107.

484

Advice during criminal court proceedings at first instance 13.60

and is not reimbursed by the LAA. A provision to this effect should be put into the solicitors’ letter of instruction to the expert.

Defendant intermediaries 13.55 An intermediary acts as a facilitator for a witness or defendant to ensure complete, accurate and coherent communication between the vulnerable individual and the legal professionals concerned. The core concept is to ensure the individual’s general understanding of the process and an ability to provide coherent instructions to his legal team. 13.56 If the solicitor or advocate instructed considers that the individual client requires the assistance of an intermediary, the court must be notified so that the issues can be further explored and a timetable set to accommodate assessments. 13.57 A psychologist (with specific experience of adults or children) will have to be instructed in order to carry out specific communication assessments. Funding for this assessment is obtained via the LAA by making an online CRM4 application to cover the assessment and report fee. 13.58 Should the psychologist conclude that an intermediary ought to be appointed, a specific intermediary report should be obtained. This will require a further assessment of the individual by an intermediary to determine the individual’s difficulties, specific needs and proposed requirements. The intermediary should be provided with information about the case prior to assessment, in addition to any medical records and reports previously obtained. Again, funding can be obtained via the CRM4 procedure. 13.59 The intermediary report once prepared shall provide specific recommendations as to language, breaks and general approach which must be adopted to ensure the most effective participation and understanding of the vulnerable individual in the case. Such issues shall be considered by the court in determining the application. 13.60 Once an intermediary report has been prepared, it must be sent to the relevant court. There is no statutory power to appoint an intermediary for a defendant 485

13.61  Public funding for victims of trafficking

and the court must be expressly invited to exercise its inherent power to appoint an intermediary. 13.61 The application shall be determined by the allocated judge and if the criteria is met, an intermediary shall be appointed by the court. The fees are then met by the court and do not come from the defendant’s legal aid.

Extension of legal aid to Queen’s Counsel or two advocates 13.62 Legal aid in the Crown Court automatically includes representation by solicitors and an advocate. It can be extended to include representation by Queen’s Counsel, either alone or with a junior advocate by application to the Crown Court25. Very exceptionally Queen’s Counsel or two advocates can be instructed in the magistrates’ court in extradition proceedings where the court determines that the defendant could not otherwise be adequately represented26. 13.63 In Crown Court proceedings legal aid can be extended to include Queen’s Counsel alone if the case involves substantial novel or complex issues of law or fact which could not be adequately presented except by a Queen’s Counsel, and either the ‘exceptional condition’ is met or the ‘counsel condition’ is met. 13.64 The ‘counsel condition’ means that a Queen’s Counsel or senior Treasury Counsel has been instructed on behalf of the prosecution. The ‘exceptional condition’ means that the case is exceptional compared with the generality of cases involving similar offences. 13.65 Legal aid can be extended to two junior advocates if the case involves substantial novel or complex issues of law or fact which could not be adequately presented by a single advocate, including a Queen’s Counsel alone, and either the ‘exceptional condition’ is met or the ‘prosecution condition’ is met.

25 Criminal Legal Aid (Determinations by a Court and Choice of Representative) Regulations 2013, SI 2013/614, reg 18. 26 Criminal Legal Aid (Determinations by a Court and Choice of Representative) Regulations 2013, reg 17.

486

Advice during criminal court proceedings at first instance 13.70

13.66 The ‘prosecution condition’ means either two or more advocates have been instructed on behalf of the prosecution and the relevant court is satisfied that the individual will be, or will be likely to be, prejudiced if they too are not represented by two or more advocates; or the number of prosecution witnesses exceeds 80; or the number of pages of prosecution evidence exceeds 1,000. 13.67 Legal aid can be extended to include a Queen’s Counsel and a junior advocate if the case involves substantial novel or complex issues of law or fact which could not be adequately presented except by a Queen’s Counsel assisted by a junior advocate, and either the exceptional condition is met, or the counsel condition and the prosecution condition are met.

Transfers of legal aid 13.68 If a defendant is not happy with his solicitors, he may apply to the court to transfer the legal aid to another firm.This is not always a straightforward process and courts are often unwilling to transfer representation orders where they fear that the system is being manipulated by the defendant or where large extra costs will be incurred. In fact, in most cases the extra costs incurred to the legal aid fund are not large, especially if the application is made at an early stage in proceedings and before any papers have been served or prior to the Plea and Trial Preparation Hearing. 13.69 The application is made by the defendant completing a form (available on the Justice website)27 setting out his reasons for requiring a transfer of representation. This is then sent to the proposed new solicitor to complete and then to the currently instructed solicitor. The form is then submitted to the court for a decision by a judge at the Crown Court. 13.70 The transfer application is more likely to succeed if the incumbent firm does not object. In seeking a transfer, clients may be critical of their current solicitors. In trafficking cases, it may be justified by the client being a potential victim of trafficking, and this not having been identified by the solicitor, the solicitors 27 See www.justice.gov.uk/courts/procedure-rules/criminal/docs/october-2015/rep001-eng.pdf, accessed 4 June 2020.

487

last

13.71  Public funding for victims of trafficking

having failed to make representations about the case continuing as a result of the State’s non-prosecution obligations or not having advised on an NRM referral or defence under MSA  2015, s  45. Even in these circumstances, the incumbent firm may object to the transfer request. 13.71 In order for legal aid to be transferred, the defendant has to demonstrate that28: •

there has been a breakdown in the relationship between the individual and the original solicitor such that effective representation can no longer be provided by the original solicitor; or

•

there is some other compelling reason why effective representation can no longer be provided by the original solicitor.

13.72 Alternatively legal aid may be transferred if the original solicitor considers there to be a duty to withdraw from the case in accordance with his professional rules of conduct or is no longer able to represent the individual through circumstances outside the solicitor’s control. In such circumstances the original solicitor has to supply the relevant court with details as to the nature of any such duty to withdraw from the case or the particular circumstances that renders him unable to represent the individual. 13.73 There will be issues of privilege involved and the form contains a box to tick if privilege is to be waived for the purposes of considering this application. In effect where there are criticisms of the current solicitor, privilege will have to be waived so that the solicitors can deal with the issue. 13.74 It is helpful for the proposed new solicitors to set out a reasoned argument as to why legal aid should be transferred, bringing the client’s own reasons within the regulation. Where solicitors object to transfer requests and the court refuses to grant the application, this leaves a vulnerable defendant with a firm that he does not want to be represented by, and this firm is aware that he has made complaints about their conduct of the case. This does not make for effective representation, particularly given the importance of building the trust of a potential victim of trafficking.

28 Criminal Legal Aid (Determinations by a Court and Choice of Representative) Regulations 2013, reg 14 and Criminal Procedure Rules 46.3.

488

Advice on appeal against conviction and/or sentence where the solicitors acted at trial 13.80

13.75 If the defendant chooses to revoke legal aid, it is extremely unlikely that a fresh application for legal aid will be granted and there is a significant risk that he will be unrepresented. In a potential victim of trafficking case, that situation could give rise to significant injustice. 13.76 It may be that the incumbent firm, while not accepting any overt criticism, would nonetheless agree that the transfer should take place in order that the defendant has a functional working relationship with his solicitors to prepare the case for trial. Even not objecting in principle on the basis that the client should be able to trust his legal representative implicitly, especially when the defendant is particularly vulnerable, will not guarantee a transfer of legal aid.

Billing time limits 13.77 Bills should be submitted within three months of the conclusion of the part of the case to which they relate.

Advice on appeal against conviction and/or sentence where the solicitors acted at trial Appeals from the magistrates’ court to the Crown Court 13.78 Legal aid granted for the magistrates’ court includes advice on appeal to the Crown Court. If the advice is positive and an appeal is lodged, a new legal aid application has to be made to the LAA via the online portal. 13.79 Appeals against conviction and sentence in the Crown Court attract a fixed fee for advocates and litigators regardless of the nature of the case or its complexity. The fee payable is generally considered to be derisory, not providing adequate remuneration. 13.80 The Law Society has provided guidance to solicitors that they are not obliged to take on legal aid cases if the fee is not economic.This guidance is particularly apt for appeals to the Crown Court. 489

13.81  Public funding for victims of trafficking

Appeals from the Crown Court to the Court of Appeal 13.81 Legal aid in the Crown Court includes advice on appeal to the Court of Appeal (Criminal Division). If the advice to appeal from the Crown Court is negative, there is no additional fee to the LGFS or AGFS trial fee. 13.82 If the advice is positive, a claim for the work done by solicitors in considering the advice, advising the client and preparing and submitting the appeal can be made to the Court of Appeal once the decision on leave has been made.The fee is paid on an hourly rate basis and per item for telephone calls and out-going correspondence.

Funding in the Court of Appeal (Criminal Division) 13.83 If leave is granted, legal aid will also be granted but this would normally be for the advocate only as long as the box indicating that legal aid was required was ticked on the form NG. Legal aid is not means tested at this stage and there are no forms to complete or submit to the court or the LAA. The Court may in due course require a means form to be completed, as costs may be an issue should the appeal fail. 13.84 Legal aid can be extended to include representation by solicitors as well as counsel and/or for two counsel. If the advocate considers that the assistance of a solicitor in preparing and presenting the appeal is required or that the case is suitable for representation by two advocates, a written application should be sent to the Registrar for an extension of the representation order. There is no prescribed form for such an application. 13.85 The Court of Appeal frequently limits representation orders granted to solicitors to include only specific work. This may not include all the work that the solicitor might wish to undertake to prepare a case for the appeal. Any work outside the limitations will not be remunerated. 13.86 It should be noted that the Advice and Assistance Scheme cannot be used to bridge any gap in funding and ceases once the appeal is lodged. If work has been undertaken by solicitors after the lodging of the appeal, it is possible to 490

Applications to the Court of Appeals out of time and CCRC applications 13.91

request at the final hearing of the appeal that the Court allows funding under legal aid for that work29. It may be possible to ask the Court of Appeal to allow funding post lodging and pre-leave where work is required and requested of the solicitors by the Court. Although it is rarely granted, the Court has the ability to grant a representation order in these circumstances as illustrated by the decision to allow funding retrospectively in R v JXP. 13.87 If the Single Judge refuses leave, any advice and representation thereafter is on a pro bono basis unless the client is willing and able to pay privately. The client is entitled to advice as to whether to renew the application for leave to the full court and the potential consequences if such an application is unsuccessfully made. This would normally be by way of an advice from the advocate or letter from the solicitor and should be included in the bill to the court. It would not cover a meeting with the client unless specifically agreed with the court in advance. 13.88 For litigators it is possible to claim enhanced rates on the work undertaken up to 100% on the same basis as for work in the magistrates’ court (see para 13.46). 13.89 It is also possible to instruct experts if the representation order allows for their instruction. There are no prior authority provisions at this stage, but the court will sometimes pay in advance on specific request. Such payment will be subject to recoupment at the final assessment of the bill at the end of the case. Given that no agreement on rates or hours is given, the solicitors remain at risk if payment is made in this way. 13.90 Bills should be submitted within three months of the conclusion of the case to the Costs Department at the Court of Appeal.

Applications to the Court of Appeal out of time and CCRC applications: Advice and Assistance Scheme 13.91 In many cases the individual may not be identified as a victim of trafficking until after his conviction. In such circumstances it may be possible to appeal to the Court of Appeal or indeed the Crown Court out of time. Usually this will 29 R v JXP [2019] EWCA Crim 1280.

491

13.92  Public funding for victims of trafficking

mean the instruction of a firm that did not represent the victim of trafficking at trial, there being at least an implication that the trial firm should have identified the issue earlier. 13.92 Public funding is available under the Advice and Assistance Scheme for work within the Appeals and Reviews class30. The client will need to sign and complete a CRM1 and CRM2 form.

Sufficient Benefit Test 13.93 In order to receive Advice and Assistance under the scheme the case must meet the Sufficient Benefit Test: ‘Advice and Assistance may only be provided on legal issues concerning English (or Welsh) law and where there is sufficient benefit to the Client, having regard to the circumstances of the matter, including the personal circumstances of the Client, to justify work or further work being carried out’31. This is an ongoing test throughout the life of the case, and must be considered at all times. As soon as it ceases to apply, no more work should be done on the case.

Financial test 13.94 In order to obtain advice under this scheme the potential client also has to meet the financial criteria. There is both an income and a capital limit so on occasions even people in prison will not qualify for advice under the scheme if they have too much capital. The limits are very low and have not changed for over a decade, currently set at £99 per week disposable income (only deducting tax and not items such as rent). There is a fixed deduction to take into account for dependants of £33.65 for a partner and £47.45 for each child. 13.95 Insofar as capital is concerned the limits depend on whether the client has any dependants. The limit is £1,000 if there are no dependants, £1,335 if 30 See SCC 2017 Specification at section 11. 31 SCC 2017 Specification para 3.10.

492

Applications to the Court of Appeals out of time and CCRC applications 13.100

one, £1,535 if two and an extra £100 is added for each extra dependant. The income and capital of any partner of the victim of trafficking is included, even if the victim of trafficking is in prison, if he had been living as a couple prior to the incarceration. It may be possible to argue that it would be inequitable or impractical to include the partner’s resources32 in certain circumstances but the solicitor takes a risk that the claim will be disallowed on audit (if selected for audit) if the LAA takes a contrary view. It would be advisable to seek a determination on this from the LAA before undertaking any work and keeping a note of any positive decision on file. 13.96 Victims of trafficking, who are foreign nationals, are often in the position whereby they cannot work legitimately or claim benefits. They are often supported by friends or by a charity. It will be essential for the solicitor to obtain documentary proof of the support that the victim of trafficking is getting to ensure that he is below the threshold. 13.97 A  letter from the person providing the support setting out how much he provides will be sufficient and it must cover the time at which the legal advice and assistance forms (CRM1 and CRM2) are signed by the victim of trafficking. 13.98 If the client does not pass both parts of the financial assessment, advice under the scheme is not available to them. There is no contribution-based system and no other public funding for this advice.

Previous advice 13.99 If the victim of trafficking has received an adverse opinion on appeal and wishes to obtain a further opinion, the scheme is not automatically available as the solicitor must consider how long it was since the first opinion was given. If it was recent and it appears that all issues have been considered, no further work should normally be undertaken33. 13.100 However, where there is further evidence or the solicitor believes there may be some defect in the opinion or the proceedings, then further work may 32 Criminal Legal Aid (Financial Resources) Regulations 2013, SI 2013/471, reg 9. 33 SCC 2017 Specification para 11.5.

493

13.101  Public funding for victims of trafficking

be justified for a further opinion, regardless of when the first opinion was obtained34. In relation to victim of trafficking cases, it is often the case that the fact that the defendant was a victim of trafficking was not identified at trial and therefore any advice given will automatically be flawed. This is rarely a bar to advice on these cases.

Financial limits and applications to extend 13.101 The scheme has an initial financial limit of £273.75 (approximately 6 hours’ work) for out of time appeals and £456.25 for CCRC applications (approximately 10 hours’ work). Up to the point that the limit of work has been reached, an application can be made to the LAA to extend it. If the limit is exceeded before an extension application is made, the work undertaken above the limit will not be funded. 13.102 An application for authority to exceed the upper limit must be made to the LAA online on a CRM5 form which should explain what work has been done, what needs to be done and the amount of any disbursements required or already incurred within the limit. 13.103 Advice and Assistance includes the solicitors’ fees at the contracted hourly rate (not subject to any uplift) and any disbursements, including an advocate’s fees which are properly incurred by the solicitor in connection with the giving of Advice and Assistance (VAT is not included within the limit calculations). Disbursements will include experts, interpreters, transcripts, and translation of documents. 13.104 Once a limit has been granted it can be further extended, but at no point will work be remunerated if it exceeds the limit as then granted. It is important to note that extensions cannot be granted retrospectively and do not operate retrospectively. 13.105 If the LAA refuses to grant an extension to the upper limit, a right of review arises to the Independent Funding Adjudicator.

34 SCC 2017 Specification para 11.6.

494

Applications to the Court of Appeals out of time and CCRC applications 13.110

CCRC applications 13.106 Applications to the Criminal Cases Review Commission are funded under this scheme and come about where the victim of trafficking has already unsuccessfully appealed his conviction but something new has materialised since the time of the appeal which was not known about at the time of trial or appeal. It may be that a victim of trafficking is identified as such after an appeal has been lodged. 13.107 In addition, in cases where there has been a conviction in the magistrates’ court on a guilty plea but it then transpires that the person is a victim of trafficking, the only recourse is to the CCRC under exceptional circumstances and this funding is available for such applications.

Postal application 13.108 In terms of the practical aspects of this funding, it may be more cost effective to send application forms for signature in the post. This is allowed ‘where there is good reason to do so’35 and the reason must be noted on the file36. 13.109 In appellate work, the client may be in custody. It would be reasonable in those circumstances to send the client the CRM1 and CRM2 forms in the post, as this will be more cost effective than a visit, especially when the case is at such an early stage that a visit may not be necessary.

Telephone advice 13.110 Although unusual with victims of trafficking, the solicitor may claim payment for advice given to a client over the telephone before that client has signed the application form where the client cannot for good reason attend the office and the client meets the qualifying criteria and has subsequently signed the application form37. The solicitor would have to consider that in all the 35 SCC 2017 Specification para 11.11. 36 SCC 2017 Specification para 11.12. 37 SCC 2017 Specification para 11.13.

495

13.111  Public funding for victims of trafficking

circumstances it was appropriate to provide the advice in this way and the reasons relied upon should always be noted and kept on the file38. 13.111 The client does not have to attend the office to sign the application form after having been given the telephone advice. Instead, the solicitor may send the form to the client, after having given the advice, for signature and return.

Outward travel 13.112 The solicitor may claim for the mileage or cost of public transport for outward travel but not travelling time to visit a client away from the office before the application form is signed where the visit is justified for good reason (and noted on file) and the client meets the qualifying criteria and has subsequently signed the application form39. 13.113 It is sometimes advisable to see victims of trafficking away from the solicitor’s office, even if the individual is not in custody, where he is particularly vulnerable or needs the assistance of other parties to communicate effectively. 13.114 If the individual is in detention, prison or hospital a claim may also be made for the travelling time at the appropriate rate40. Costs must be reasonably incurred taking account of all the circumstances41 including, for example, the distances involved as against the availability of advice from a more local firm and the justification for travelling to attend on the client at all, bearing in mind that telephone advice can be given and applications accepted by post. 13.115 With victims of trafficking it may not be possible for them to find firms more local to their place of detention with sufficient expertise to advise in traffickingrelated matters, and travel may be more justifiable over a longer distance. The use of interpreters will mean that telephone advice will be of limited use and indeed even the use of video links to the prison can be problematic with extremely vulnerable individuals who do not speak English.

38 SCC 2017 Specification paras 11.14 and 11.15. 39 SCC 2017 Specification para 11.16. 40 SCC 2017 Specification para 11.17. 41 SCC 2017 Specification para 11.18.

496

Applications to the Court of Appeals out of time and CCRC applications 13.118

Previous advice under the Legal Advice and Assistance Scheme 13.116 In some cases the victim of trafficking may have received previous advice under this scheme. The solicitor must not claim for Advice and Assistance provided to a client who has received Advice and Assistance for the same matter from another solicitor within the six months preceding the application, except where: •

there is a gap in time and circumstances have changed materially between the first and second occasions when the Advice and Assistance was sought; or

•

the client has reasonable cause to transfer from the first solicitor; or

•

the first solicitor has confirmed to the new solicitor that they will not be making a claim for payment for the Advice and Assistance42.

If the solicitor provides Advice and Assistance in these circumstances, he must record the justification for so doing on the file. 13.117 Where a client is requesting a further advice from a new firm under the Advice and Assistance scheme, there should be no claim under that scheme by the second solicitor where: •

the client simply disagrees with the first advice and wants a second opinion;

•

there is only a short time between the first and second occasions when the Advice and Assistance is sought and no material change of circumstances has occurred;

•

the change requested is from a second to a third solicitor (unless exceptionally it is reasonable for a further change); or

•

there is no reasonable explanation for the client seeking further Advice and Assistance from a new solicitor43.

13.118 Where the work is nonetheless justifiable, the solicitor must make a note on the file to confirm that Advice and Assistance has been given previously by another solicitor and the client must complete a fresh application form and must meet the qualifying criteria.

42 SCC 2017 Specification para 11.26. 43 SCC 2017 Specification para 11.29.

497

13.119  Public funding for victims of trafficking

Counsel’s fees 13.119 There is no fixed rate for counsel in the Contract. The LAA therefore relies on its own Guidance44 to fix an appropriate rate. The Guidance applies to all Advice and Assistance matters (not just appellate work) and states that counsel often provides advice for a fixed fee of £200–£400. Where higher sums are requested a full breakdown of times should be submitted. 13.120 However, it would be an extremely rare appeal case upon which counsel could advise for a fixed fee as low as those set out in the Guidance. It may be possible on other Advice and Assistance matters but is extremely unlikely on appeal cases. The Guidance recognises this, as it states that ‘it should be noted that in Appeals cases, as the issues are likely to be more complex, it is more likely that the fixed fee will not be appropriate and that hourly rates and a full breakdown will be required’. 13.121 The Guidance seeks to fix an hourly rate for counsel, which it says should not exceed £80 per hour (unless a reasonable fixed fee is charged). However, if solicitors provide sufficient and detailed justification as to why a case may be considered to be exceptional, a higher rate can be authorised. A  higher rate (e.g. £100 per hour) may be agreed in exceptional cases and certainly has been in the past. Cases involving victims of trafficking may well be considered complex or involving novel or complex points of law. If the case is exceptional, a higher fee should be sought. The LAA have become more entrenched in not allowing fees for counsel above £80 per hour but their own guidance allows it in exceptional cases. Any refusal can be appealed to an Independent Financial Adjudicator.

Applications to re-open the case in the magistrates’ court 13.122 In some cases where a client has pleaded guilty in the magistrates’ court and it transpires he should not have been prosecuted, it may be possible to apply to the magistrates’ court to re-open the case45 instead of applying to the CCRC to refer the case to the Crown Court by way of appeal.

44 Last version is from 2010. 45 Magistrates Court Act 1980, s 142.

498

Applications for compensation under s 133 13.129

13.123 In such circumstances, initial work on the case to establish how the case should be dealt with and to gather the evidence that the client is a victim of trafficking and should not have been prosecuted should be undertaken under the Advice and Assistance Scheme. 13.124 However, if the application is to be made to reconsider the case at the magistrates’ court, a fresh application for legal aid should be made by the LAA online portal using the CRM14 and CRM15 forms as if the matter were a new case in the magistrates’ court. 13.125 If the LAA refuses to grant a representation order on the basis that one already exists for that case, an application for a transfer of legal aid will have to be made.

Applications for compensation under s 133 13.126 Applications for compensation for being the victim of a miscarriage of justice are made to the Ministry of Justice. The initial work involved in preparing representations to the Ministry of Justice as to whether the applicant qualifies for compensation can be funded by way of Legal Help. It is necessary for the firm to have a Civil Contract to use this funding scheme as it does not appear to be included within the definition of Associated Civil Work in the SCC 2017. If the firm wishes to argue that this work should be included as Associated Civil Work, the position should be checked with the firm’s contract manager at the LAA. 13.127 If the claim is accepted, the work is undertaken effectively as a privately-funded case and the legal fees are part of the claimant’s damages. The firm will have to obtain permission from the Ministry of Justice to incur any disbursement such as experts or to instruct counsel. 13.128 The rates payable are legal aid rates unless the firm can justify higher rates due to the circumstances of the case. In fact, the Ministry of Justice is likely to allow rates at the equivalent of private rates as this work is unusual and specialised. 13.129 The firm will also have to agree with its client how to deal with the situation where legal fees are requested but not paid in full as part of the compensation 499

13.130  Public funding for victims of trafficking

by the Ministry of Justice. The shortfall may come from the balance of the compensation, the firm could write it off or a compromise could be reached. Such agreement should be set out in writing in advance with the client.

The availability of legal aid for potential victims of trafficking on immigration matters 13.130 The Legal Aid, Sentencing and Punishment of Offenders Act (LASPO) 2012 removed many categories of immigration law from the scope of legal aid. Providers should refer to LASPO 2012, Sch 1 for the full list of matters which remain in scope, as there are some discrete categories which –although not commonly relevant to potential victim of trafficking claims – may be relevant to a case, such as representation for victims of domestic violence. However, subject to the individual satisfying the financial means and merits test, the immigration civil legal aid categories which remain in scope and that are most relevant to such cases are as follows: (i)

Legal Help •

rights to enter or remain in the UK arising from the Refugee Convention 1951 or ECHR, Arts 2 and 3 (asylum/international protection claims)46;

•

representation on any immigration claim where an individual has been granted a positive reasonable grounds decision or conclusive grounds decision47;

•

if a potential victim of trafficking is detained in an Immigration Removal Centre (IRC), he can receive Legal Help for advice and assistance on detention and bail48; and

•

restrictions on residence, such as a challenge to a requirement for a potential victim of trafficking to report to the Home Office or police on a regular basis, or a curfew, of asylum seekers or pending deportation49;

•

representation on any immigration/nationality claim where the individual is a separated child50;

46 LASPO 2012, Sch 1, Part 1, para 30(1). 47 LASPO 2012, Sch 1, Part 1, para 32(1). 48 LASPO 2012, Sch 1, Part 1, paras 25–26. 49 LASPO 2012, Sch 1, Part 1, para 27. 50 LASPO 2012, Sch 1, Part 1, para 31A.

500

The availability of legal aid for potential victims of trafficking on immigration matters 13.131

(ii) Controlled Legal Representation (Help at Court; CLR) •

representation at a First-tier Tribunal or Upper Tribunal statutory appeal in relation to rights to enter or remain in the UK arising from the Refugee Convention 1951 or ECHR, Arts 2 and 3 (asylum/ international protection claims)51;

•

representation at a First-tier Tribunal to appeal a refusal of any type of immigration claim where an individual has been granted a positive reasonable grounds decision or conclusive grounds decision52; and

•

if a potential victim of trafficking is detained, representation at a tribunal to represent him at a bail hearing53;

•

representation on any immigration/nationality claim where the individual is a separated child54;

(iii) Civil Legal Aid •

civil legal services provided in relation to judicial review of an enactment, decision, act or omission, subject to the exclusions set out in LASPO  2012 (discussed below)55 or an Upper Tribunal statutory appeal.

13.131 It should be noted that where an individual has a positive reasonable grounds or conclusive grounds decision, this opens up the possibility of legal aid representation for that individual in immigration matters which are normally out of scope for legal aid. The most common relevant claims for (potential) victims of trafficking are claims based on ECHR, Art 8 (family and private life), claims based on the free movement rights of EEA nationals and/or their family members (relying on the EU Directives and Regulations which flow from their ‘Treaty rights’ under Art 45 of the Treaty on the Functioning of the European Union) and representations made to request a grant of discretionary leave to remain as a victim of trafficking in the UK. Further, whilst many areas of immigration law are out of scope for Legal Help and CLR, an individual can potentially later secure legal aid to fund a judicial review challenge of a decision, act or omission of a public body taken in respect of an out of scope area of law.

51 LASPO 2012, Sch 1, Part 1, para 30(1). 52 LASPO 2012, Sch 1, Part 1, para 32(1). 53 LASPO 2012, Sch 1, Part 1, paras 25–26. 54 LASPO 2012, Sch 1, Part 1, para 31A. 55 LASPO 2012, Sch 1, Part 1, para 19.

501

13.132  Public funding for victims of trafficking

The gap in legal aid provision for victims of trafficking 13.132 Notwithstanding this advantage for potential victims of trafficking, LASPO 2012 created a gap in the legal aid available for such persons who have not received a positive reasonable grounds decision or who have a negative reasonable/ conclusive grounds decision (in Legal Help/CLR matters). This lacuna is concerning, particularly given that potential victims of trafficking can be at their most vulnerable before receiving a positive reasonable grounds decision or after receiving a negative reasonable or conclusive grounds decision. Legal intervention is often critical at these stages. 13.133 There are some practical solutions available to the legal aid practitioner in these circumstances. Firstly, it is possible to provide advice and assistance to a potential victim of trafficking if the trafficking claim is inextricably linked to a matter that is within scope under LASPO 2012. A common example is a potential victim of trafficking who also has an international protection claim. For example, if a potential victim of trafficking fears return to his country of origin because he fears his traffickers, or if he is at risk of re-trafficking on return and faces conditions of destitution, this is likely to be so intertwined with his protection claim that the provider is justified in advising and making representations in relation to the trafficking claim, as the asylum claim cannot be properly determined without first considering the trafficking claim. Secondly, another common scenario arises where an advice on a potential/refused trafficking claim is linked to advice and assistance on detention and immigration bail (which is within scope under LASPO 2012). The Home Office guidance provides that if someone is a potential victim of trafficking, it is an indication that he may be vulnerable within detention, and progressing that person’s trafficking claim can be essential to securing his release from immigration detention and/or challenging the legality of his detention56. It is advisable to set out in a detailed attendance note justification for providing advice and representation specific to the trafficking claim by detailing how the trafficking claim is linked to the ‘in scope’ aspects of the case. 13.134 An alternative approach is to open a Legal Help for pre-action work only. This may be suitable if the potential victim of trafficking already has a negative reasonable grounds or conclusive grounds decision at the point of instruction, or there is an issue in a pre-reasonable grounds case which may be challenged

56 Home Office, Adults at Risk in Immigration Detention (6 March 2019), p11; Home Office, Modern Slavery Act 2015: Statutory Guidance for England and Wales v1.00 (24 March 2020) p 138.

502

The availability of legal aid for potential victims of trafficking on immigration matters 13.137

by way of judicial review. A pre-action Legal Help is funded as an hourly-rates matter with a limit of £500 for profit costs and £400 for disbursements57.

Exceptional case funding 13.135 When LASPO 2012 removed large swathes of legal aid assistance for the general population, provision for legal aid funding to be granted in exceptional cases on any out of scope matter was provided for through the possibility of a grant of Exceptional Case Funding (‘ECF’). The aim of ECF is to provide a mechanism by which to avoid a breach of ECHR, or a breach of Art 47 of the Charter of Fundamental Rights of the European Union. 13.136 If funding is granted under ECF the individual can access legal aid representation. An ECF team within LAA deals with such applications and cases. To qualify for ECF, the person must meet the ECF criteria as set out in LASPO 2012 and described in the Lord Chancellor’s funding guidance;58 he must be financially eligible for legal aid and his case must meet the merits criteria. Form CIV ECF1 should be completed and signed by the potential victim of trafficking. The application should be sent with a copy of the CW1 (Legal Help form) or CW2 (controlled legal representation) (depending on the type of matter), along with the relevant evidence to meet the ECF criteria and sent by post to Legal Aid Agency: Post Point 8.51, Eighth Floor, 102 Petty France London SW1H 9AJ or Legal Aid Agency, DX 161440 Westminster 8. Applications may also be scanned and submitted by e-mail to the ECF team e-mail address at contactECC@ legalaid.gsi.gov.uk. At present the LAA aim to process claims within 20 working days (5 days if urgent) and if funding is granted, it will be backdated to the date the CIV ECF1 was signed. If a decision is required urgently, this should be flagged up with the ECF team. If a provider is applying for a civil legal aid in a non-judicial review matter which is out of scope, exceptional case funding can be applied for online via the Client and Cost Management System (see para 13.164 below). 13.137 An ECF grant of funding can apply to part of a case, if only part of the case is in scope for legal aid funding. For example, the provider may be providing Legal Help advice on a protection claim and a trafficking claim, however there may be an additional element of the case, such as a claim under Art 8 ECHR, 57 2018 Standard Civil Contract Specification: Immigration and Asylum, section 8. 58 Legal Aid: Exceptional Cases Funding: Provider Pack, 22 July 2016, available at https://assets.publishing. service.gov.uk/government/uploads/system/uploads/attachment_data/file/588924/ecf-provider-pack. pdf, last accessed 11 February 2020.

503

13.138  Public funding for victims of trafficking

which will require a grant of exceptional case funding. If the potential victim of trafficking is then granted a positive reasonable or conclusive grounds decision, all immigration legal work is then in scope. Conversely, providers may also need to be alert to potentially having to apply for exceptional case funding part way through a case. For example, if Legal Help was initially provided on the basis of a positive reasonable grounds decision, but subsequently the potential victim of trafficking is given a negative conclusive grounds decision and there is no other way of justifying representation.

Legal aid for potential victims of trafficking in immigration detention 13.138 It is common to encounter potential victims of trafficking who are detained in an Immigration Removal Centre. All detainees are able to sign up to receive 30 minutes free legal advice from the duty solicitor at advice surgeries that are held regularly (normally a few times per week) at all the detention centres around the UK.The detainees should put their name on the list for legal advice at the library or the welfare office within the detention centre. The 30 minutes advice can be in relation to any immigration/detention matter, even if it is out of scope. However, if the detainee is signed up for legal aid, the detainee must be financially eligible for legal aid and the legal matter must be a matter that is within scope under LASPO 2012, otherwise ECF must be applied for. 13.139 At present only specific legal aid providers who have an exclusive schedule agreement with the LAA can attend the duty advice surgeries. The exclusive schedule agreement providers are contractually obliged to take on all cases which meet the financial means and merits eligibility requirements. These providers are also allocated the cases of detainees whose asylum claims are being processed in the detained asylum casework process through a rota. Only exclusive schedule agreement providers can take on cases for Legal Help and Controlled Legal Representation through the rota or the detention advice surgeries59. Other than via the detention advice surgeries, detainees can only be represented by a legal aid provider without an exclusive schedule agreement if: (i) the provider has already carried out at least five hours of work on the case; (ii) they already represent a close family member and it is in the detainee’s best interests to continue to be represented by that legal aid provider instead of an exclusive schedule agreement provider; or (iii) where there are no exclusive

59 2018 Standard Civil Contract Specification: Immigration and Asylum, section 8, para 8.5, available at https:// assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/849761/ Immigration_and_Asylum_Specification_December_2019.pdf, last accessed 31 March 2020.

504

Practical steps needed to represent a potential victim of trafficking under legal aid 13.142

schedule agreements where the person is detained60. If the provider has a public law legal aid contract, a detainee could be represented on a pre-action legal help matter or on a civil certificate (immigration or public law legal aid contract).

What practical steps are needed to represent a potential victim of trafficking under legal aid in immigration matters? Legal help 13.140 In order for an immigration legal representative to begin assisting a potential victim of trafficking, the common starting point is by opening a Legal Help matter so that the legal representative can take initial instructions and give initial advice. The legal aid provider will complete a CW1 form61 with the client, and once the declaration has been fully understood and signed by the client, the practitioner can open a file and begin work.

Evidence of means 13.141 Detailed guidance as to what evidence of means (evidence of a client’s income and savings showing his financial eligibility for legal aid) is required is set out in the LAA Guidance. All practitioners should comply with this guidance62. 13.142 Certain individuals are ‘passported’ and do not require evidence of means other than evidence that they are in receipt of the passported benefit. The relevant benefits are Income Support, Income-based Jobseeker’s Allowance, Incomerelated Employment and Support Allowance or Guarantee Credit or asylum support provided by the Home Office63. In all other cases, evidence of the potential victim of trafficking’s income (and his partner’s income if necessary) which was received during the exact month prior to the client signing the form 60 2018 Standard Civil Contract Specification: Immigration and Asylum, section 8, para 8.5, available at https:// assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/849761/ Immigration_and_Asylum_Specification_December_2019.pdf, last accessed 31 March 2020. 61 CW1 form, available at www.gov.uk/government/uploads/system/uploads/attachment_data/ file/346196/legal-aid-controlled-work-1.pdf, last accessed 31 March 2020. 62 Legal Aid Agency, Guide to Determining Financial Eligibility for Controlled Work and Family Mediation (April 2019), available at https://assets.publishing.service.gov.uk/government/uploads/system/ uploads/attachment_data/file/793459/Guide_to_determining_controlled_work_.pdf, last accessed 31 March 2020. 63 Support provided under the Immigration and Asylum Act 1999, s 4 and s 95.

505

13.143  Public funding for victims of trafficking

(the computation period) is required. For example, bank statements, pay slips and a tenancy agreement. If a potential victim of trafficking has no income and is supported by friends or a third party, a letter of support from the person/ third party supporting them should be provided, confirming what support is provided and since when. 13.143 In practice many potential victims of trafficking are destitute or have a very low income, and are likely to be eligible for legal aid. In order to be eligible, after deducting income needed for outgoings for dependants, housing costs and other specified expenses, the individual qualifies if he has £733 per calendar month or less in disposable income and £8,000 or less in savings. In some cases, a potential victim of trafficking may state that he has no access to any income or capital, and he has no documentary evidence showing this. It would be for the provider to decide and make a detailed note on the file whether such a statement was credible and whether or not it was therefore impracticable to obtain evidence of means. A  common scenario is for a potential victim of trafficking to instruct his legal representative whilst in prison or detention where he has been detained for the computation period, and the only income received by the client is a small amount of pocket money provided to all those detained/incarcerated. It is not necessary to provide evidence of the income from this pocket money in such cases and an explanation should be provided on the file/legal aid form. A  further common scenario is where a potential victim of trafficking has recently escaped a trafficking situation and it is not practical or safe for him to obtain evidence of any past income. Again, a detailed explanation should be provided on file.

Merits 13.144 To open a Legal Help file the provider should be satisfied that there is likely to be sufficient benefit to the individual, having regard to all the circumstances of the case, including the circumstances of the individual, to justify the cost of provision of Legal Help. The test for sufficient benefit is whether a reasonable private paying individual of moderate means would pay for the legal advice and assistance64. The guidance recognises that even in a matter with poor prospects of success, it may well be considered worthwhile for an individual to pay for initial advice, including the advice that the case is not worth pursuing further. The low threshold of the Sufficient Benefit test allows practitioners to open a Legal Help file in most cases in the first instance. However, the Sufficient Benefit test should be continually reviewed as the case continues, as the more 64 Lord Chancellor’s Guidance, para  4.2.13, available at www.gov.uk/government/uploads/system/ uploads/attachment_data/file/330878/legal-aid-LAA-lord-chancellors-guidance.pdf, last accessed 31 March 2020.

506

Practical steps needed to represent a potential victim of trafficking under legal aid 13.146

Legal Help is provided, the more that the benefits deriving from the costs incurred will need to be taken into account65.

Controlled Legal Representation 13.145 Controlled Legal Representation (‘CLR’ or ‘Help at Court’) may be granted by a legal aid provider to represent a client at the First Tier Tribunal and the matter is either in scope for legal aid or ECF funding has been granted. There is no statutory right of appeal in the event of negative reasonable grounds or conclusive grounds decision. However, as explained above, the potential victim of trafficking may also have an international protection claim which is inextricably linked to his trafficking claim, and therefore it is common for providers to grant CLR to represent clients at the Tribunal in relation to their protection claim and trafficking claim on this basis. Further, although an NRM decision is not an immigration decision, in MS (Pakistan) v Secretary of State for the Home Department66, the Supreme Court held that: the Tribunal is not bound by a previous negative NRM decision; it is not necessary to find public law errors in that decision; and the Tribunal does have jurisdiction to make its own decision on whether an appellant was a victim of trafficking or whether the respondent failed to follow its published policy in making an NRM decision. The proper consideration and weight to be given to a previous NRM competent authority’s decision will depend on the nature of that decision and its relevance to the issue before the tribunal. 13.146 The Civil Legal Aid (Remuneration) Regulations 201367 and the LAA guidance provide detailed information as to which matters are funded by hourly rates for the work carried out, and which cases are paid by the graduated fixed fee scheme, in addition to how much is payable for profit costs and disbursements. However, the profit costs and disbursements limits for CLR are higher than for Legal Help68. For graduated fixed fee matters in CLR matters, payment is divided into stage 2A (where CLR is granted to prepare an appeal but the matter concludes prior to the substantive hearing) and stage 2B (where a substantive hearing takes place)69. CLR can also be granted to represent a detainee at a First-tier Tribunal 65 Lord Chancellor’s Guidance, para 4.2.14, see fn 57. 66 [2020] UKSC 9. 67 SI 2013/422. 68 Civil Legal Aid (Remuneration) Regulations 2013, Sch 1; 2018 Standard Civil Contract Specification: Immigration and Asylum, Part D, available at https://assets.publishing.service.gov.uk/government/ uploads/system/uploads/attachment_data/file/849761/Immigration_and_Asylum_Specification_ December_2019.pdf, last accessed 31 March 2020. 69 2018 Standard Civil Contract Specification: Immigration and Asylum, section 8, paras 8.64, available at https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/ file/849761/Immigration_and_Asylum_Specification_December_2019.pdf, last accessed 31 March 2020.

507

13.147  Public funding for victims of trafficking

bail hearing, which is an hourly-rates matter with a limit of £500, including disbursements. The legal aid provider will complete a CW2 IMM form70 with the potential victim of trafficking, and once the declaration is fully understood and signed by the client, the practitioner can open a file and begin work.

Evidence of means 13.147 The evidence of means required is the same as set out for Legal Help (see paras 13.141–13.143). Note, however, that for a grant of CLR, the capital savings limit is £3,000, rather than £8,000. The computation period is also one exact month prior to signing the CW2 IMM form.

Merits 13.148 CLR can only be granted where there is likely to be sufficient benefit to the individual, having regard to all the circumstances of the case, including the circumstances of the individual, to justify the cost of provision of help at court. The nature and circumstances of: (i) the proceedings; (ii) the particular hearing; and (iii) the individual, must be such that advocacy is appropriate and will be of real benefit to that individual71. The provider should be satisfied that there is more than a 50-50 chance of success. If a provider deems there is insufficient merit, he must advise the client of a right of review to the LAA of the provider’s decision and assist him in completing a CW4 form72.

Legal Help and CLR: extensions, costs limits and experts 13.149 The Civil Legal Aid (Remuneration) Regulations 2013 and the LAA guidance provide detailed information as to which matters are funded by hourly rates for the work carried out and which cases are paid by the graduated fixed fee scheme, in addition to how much is payable for profit costs and disbursements73. A provider will only be paid the fixed fee for a case, even if he has carried out 70 Available at www.gov.uk/government/uploads/system/uploads/attachment_data/file/346246/legal-aidcontrolled-work-2-immigration.pdf, last accessed 31 March 2020. 71 Civil Legal Aid (Merits Criteria) Regulations 2013, SI 2013/104, reg 33. 72 Available at https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_ data/file/711264/cw4-form.pdf, last accessed 31 March 2020. 73 Civil Legal Aid (Remuneration) Regulations 2013, Sch 1; 2018 Standard Civil Contract Specification: Immigration and Asylum, section 8, Part D, available at https://assets.publishing.service.gov.uk/ government/uploads/system/uploads/attachment_data/file/849761/Immigration_and_Asylum_ Specification_December_2019.pdf, last accessed on 31 March 2020.

508

Practical steps needed to represent a potential victim of trafficking under legal aid 13.153

more work than the fixed fee value, unless the work carried out has reached three times the value of the fixed fee, when it will then become payable by hourly rates, subject to being assessed and accepted as the same by the LAA as an ‘Escape Fee Case’ before payment is approved. In practice, given that many trafficking cases are complex, the clients are vulnerable and it may be necessary to instruct experts, it is common to reach the escape fee threshold. 13.150 Instructing experts to assess potential victims of trafficking and produce expert reports can be crucial to the prospects of success of a case and case planning should always consider whether an expert should be instructed to address any material issue. When representing victims of trafficking, experts that are commonly instructed include psychologists, psychiatrists, scarring experts and trafficking experts. Providers should refer to the detailed LAA guidance on requesting funding for experts before applying for funding for experts on Legal Help and CLR cases74. Funding for expert reports in a pre-decision Legal Help case can be difficult to secure, therefore it may be preferable to consider whether funding can be obtained for expert reports after the grant of a legal aid certificate or for a CLR appeal matter. 13.151 Extensions for disbursements in graduated fixed fee cases are applied for via form CW3C, and hourly rates cases via form CW3B. A  paper form can be completed and scanned; however, it is envisaged that eventually extensions will only be submitted via the electronic online form. At present, both can be submitted via email to [email protected].

Civil legal aid for judicial review 13.152 As there is no right of appeal against a negative reasonable or conclusive grounds decision, providers have to apply for a civil legal aid certificate to fund potential judicial review proceedings to challenge such negative decisions.

Evidence of means 13.153 The evidence of means required for an application for a civil legal aid certificate is similar to controlled representation, although providers should refer to the 74 Legal Aid Agency, Escape Cases Electronic Handbook, Controlled Work (updated 4 September 2019), available at https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/ file/830019/Escape_Cases_Electronic_Handbook.v1.12_.pdf, last accessed 31 March 2020.

509

13.154  Public funding for victims of trafficking

guidance specific to certificated legal aid75. Evidence of income and savings for the three months prior to instruction is required, rather than one month. In practice many potential victims of trafficking are destitute or have a very low income, and are likely to be eligible for legal aid. The maximum income threshold per calendar month is still £733, however if a client earns between £316 and £733 per calendar month, or has capital savings over £3,000, a monthly contribution is payable76.The maximum capital savings limit is £8,000.

Merits 13.154 The provider must firstly be satisfied of the standard criteria for determinations of legal representation: that the client could not pay for his legal case by any other means, that the client has exhausted other remedies and that there is a need for legal representation, considering the complexity, the interests of the parties and existence of other proceedings77. As many potential victims of trafficking have limited resources, there is no statutory right of appeal against a negative trafficking decision and a judicial review challenge is likely to be complex, the standard criteria for civil legal aid is likely to be met in most cases. 13.155 When the representative has considered the merits of the case, he must then decide whether to apply for investigative representation or full representation.

Investigative representation 13.156 Investigative representation is defined as: ‘legal representation which is limited to the investigation of the strength of the contemplated proceedings and includes the issuing and conducting of proceedings but only so far as necessary: (a) to obtain disclosure of information relevant to the prospects of success of the proceedings; (b) to protect the position of the individual or legal person applying for investigative representation in relation to an urgent hearing; or (c) to protect the position of the individual or legal person applying for investigative representation in relation to the time limit for the issue of the proceedings’78. 75 Legal Aid Agency, Means Assessment Guidance (5 April 2019), available at https://assets.publishing.service. gov.uk/government/uploads/system/uploads/attachment_data/file/793462/Means_Assessment_ Guidance.pdf, last accessed 31 March 2020. 76 Ibid, App 11. 77 Civil Legal Aid (Merits Criteria) Regulations 2013, reg 39. 78 Civil Legal Aid (Merits Criteria) Regulations 2013, reg 18.

510

Practical steps needed to represent a potential victim of trafficking under legal aid 13.159

13.157 A  legal aid certificate for investigative representation is appropriate in cases where: (i) the prospects of success of the case are ‘unclear’ and substantial investigative work is required before those prospects can be determined; and (ii) there are reasonable grounds for believing that, once the investigative work is completed, the case will satisfy the criteria for full representation (discussed below)79. For a potential judicial review, funding under investigative help would only be granted if the LAA accepts that: (a) the act, omission or other matter complained of in the proposed proceedings appears to be susceptible to challenge; and (b) the individual exhausted all administrative appeals and other alternative procedures which are available to challenge the act, omission or other matter before bringing a public law claim80. It should be noted that investigative representation is not available for a potential challenge of a trafficking decision (however, investigative funding could be granted if the matter were inextricably linked to other decisions under challenge)81. 13.158 Before applying for investigative representation, the representative has to notify the proposed defendant of the individual’s potential challenge, which can be done by way of a simple letter to the Home Office caseworker and litigation team. If this is not done, the representative must provide the LAA with evidence as to why doing so would be impracticable82.

Full representation 13.159 As noted above, it is not possible to issue judicial review proceedings on an investigative representation certificate if the issue under challenge is solely a trafficking matter83, therefore a full representation legal aid certificate is almost always more appropriate. To meet the merits test for full representation the prospects of success at a final hearing should be: •

‘very good’ (80% or more chance of obtaining a successful outcome);

•

‘good’ (60% or more chance, but less than 80%); or

•

‘moderate’ (at least 50%, but less than 60%)84.

79 Ibid reg 40. 80 Ibid reg 53. 81 Ibid reg 22. 82 Ibid reg 54. 83 Ibid reg 22. 84 Ibid reg  60(3)(a), amended by the Civil Legal Aid (Merits Criteria) (Amendment No  2) Regulations 2015, SI 2015/1571.

511

13.160  Public funding for victims of trafficking

13.160 If the prospects of success are: •

‘borderline’ (at least 50% chance of success); or

•

‘unclear’ (not possible, by reason of disputed law, fact or expert evidence to decide whether the case is ‘moderate’ or ‘poor’),

the test is only met if it is necessary to represent the client to prevent a breach of: (i) the case is of significant wider public interest; (ii) the case is one with overwhelming importance to the individual; or (iii) the substance of the case relates to a breach of Convention rights85. 13.161 Note the distinction between ‘unclear’ merits as opposed to ‘borderline’ or ‘poor’ merits. In ‘unclear’ prospect cases, there must be identifiable preliminary investigations that can be undertaken, after which it should be possible to assess prospects as within one of the other categories. By contrast, the prospects of success of a case assessed as borderline may remain uncertain up to a final hearing itself86. 13.162 The cost benefit criteria must also be met. In many cases, challenging a negative trafficking decision where the claim is not primarily for damages is likely to meet the test of ‘overwhelming importance to the individual’, and accordingly, the cost benefit criteria is met if the Director of Legal Aid Casework is satisfied that a reasonably private paying individual would pay for the legal services87. For damages claims, the specific cost benefit ratio should be satisfied, which is set out in the regulations88.

Application process 13.163 An application for investigative or full civil legal aid representation is now done online via the LAA online portal, Client and Cost Management System (‘CCMS’)89. To complete the application, the client (and his partner, if relevant) would need to attend the representative’s office with his evidence relating to his financial eligibility and the merits of his case. At the appointment, the legal representative then uploads all the relevant information and evidence to CCMS with the client, the declarations relating to means and merits must be read to 85 Ibid reg 60(3)(b), amended by the Civil Legal Aid (Merits Criteria) (Amendment No 2) Regulations 2015. 86 Lord Chancellor’s Guidance, para 4.1.3 87 Civil Legal Aid (Merits Criteria) Regulations 2013, reg 42(3). 88 Ibid reg 42(2). 89 See https://portal.legalservices.gov.uk, last accessed 5 August 2020.

512

Practical steps needed to represent a potential victim of trafficking under legal aid 13.165

the client and, if he agrees, the application is submitted, printed and signed by the client (and his partner, if relevant) at the same appointment.

Emergency certificate 13.164 It is frequently necessary to apply for an emergency legal aid certificate. For example, if a client is detained, if a client has received a notice of a scheduled removal/deportation from the UK (with or without notice), or the limitation period is due to expire or has already expired. In such circumstances an emergency certificate can be applied for. The LAA aim to process emergency certificates within 48 hours, therefore the representative must factor in the time required to wait for the certificate to be considered and processed by the LAA when advising clients on whether it is feasible to issue judicial review proceedings on an emergency basis. For example, if an advisor encountered a potential victim of trafficking at a detention surgery with a viable judicial review challenge and a flight to remove that person from the UK had been scheduled, the representative would usually need to factor in four clear working days in order to prevent a removal by issuing judicial review proceedings: 24 hours to send pre-action correspondence (if a truncated timescale for a response is required owing to the urgency) and wait for a response, 48 hours to apply for emergency legal aid and wait for a response, 24 hours for counsel to draft grounds and issue proceedings. If the emergency certificate is granted, it will be to cover all steps up to the decision on permission on the papers, to the value of £2,500. The emergency certificate expires eight weeks after the grant and the representative must ensure that he applies to amend the emergency certificate to a substantive certificate within seven calendar days of the grant of the emergency certificate. It should be noted that it is also possible to request that an emergency certificate is backdated, so that a provider can begin working on an urgent matter straight away if it is in the interests of justice to do so. Justification for backdating should be submitted on the CCMS application, however, the legal aid provider should be alive to the financial risks of this, given that the LAA could still refuse to grant the emergency certificate and any work carried out until the provider receives the decision on the emergency certificate is at risk.

Substantive certificate 13.165 A substantive certificate can be applied for either by amending an emergency certificate within seven calendar days of the grant of the emergency certificate, or by applying for a substantive certificate in the first instance. At present it 513

13.166  Public funding for victims of trafficking

takes between one week and three weeks to wait for a grant of a substantive certificate. If granted, funding is granted for all steps and all costs (including counsel’s fees, disbursements and expert’s fees) until a decision on permission on the papers to a value of £5,000.

Declaration against instructions 13.166 As above, a legal aid practitioner representing a potential victim of trafficking should be ready for a potential judicial review from the point of instruction, and to potentially do so on an emergency basis. For this reason, in addition to completing the relevant legal aid forms with the client at the first interview – to enable the representative to assist the client under Legal Help or controlled legal representation, it is also prudent to take the necessary instructions/evidence needed to complete and sign the ‘declaration against instructions’ form90. This is in case it is necessary to apply for investigative or full representation on an emergency or substantive application and the client (or his partner, if relevant) is unable to attend the office for a good reason (for example, if he is hospitalised, imprisoned or detained). 13.167 Before the client (and his partner, if necessary) signs the declaration against instructions, the representative should either have first completed the paper means and merits forms (CIV APP1 and correct CIV MEANS form)91 or have drafted his own attendance note to record the client’s information about his means and the merits of his case. This information will be inputted onto CCMS once instructions have been obtained. The signed declaration against instructions will then replace the signature that would usually be obtained on the Application Summary screen on CCMS. In order to ensure the client retains the protection awarded by the existing process, the Application Summary must be sent by the provider to the client, and the client is given 14 days to advise if any of the information is incorrect. If any of the information is incorrect a further signed declaration should be obtained. The provider should give the required warnings and information as stated in the means and merits declarations to the client. Providers must comply with the full process as set out by the LAA in its guidance92.

90 See http://ccmstraining.justice.gov.uk/__data/assets/pdf_file/0010/7975/CCMS_Client-DeclarationAgainst-Instructions.pdf, last accessed 31 March 2020. 91 Available at https://www.gov.uk/government/collections/civil-legal-aid-application-forms, last accessed 31 March 2020. 92 See http://ccmstraining.justice.gov.uk/__data/assets/pdf_file/0010/7966/Client-Declaration-AgainstInstructions-v2-0.pdf, last accessed 31 March 2020.

514

Practical steps needed to represent a potential victim of trafficking under legal aid 13.170

The permission decision, amending scope 13.168 After proceedings are issued and a permission decision on the papers is received, if permission is granted, the provider must pay the continuation fee to the court and also apply to amend the scope of the legal aid certificate to cover all steps up to and including the full trial. If permission is refused, if the provider is instructed to apply for permission to be heard at an oral renewal hearing, the provider must seek counsel’s opinion on prospects of success at an oral renewal hearing. If there are sufficient merits, the provider must apply to amend the scope of the certificate to cover the costs of an oral renewal hearing. Amendments to the scope and costs limit are done on CCMS.

Experts and extensions of cost limits 13.169 Instructing experts to assess potential victims of trafficking and produce expert reports can be crucial to the prospects of success of a case and case planning should always consider whether an expert should be instructed to address any material issue in the case. It is advisable to seek counsel’s opinion as to whether experts should be instructed. The LAA  Guidance on the Remuneration of Expert Witnesses93 introduced new rates for most types of expert, instructed since 2 December 2013. The rates are set out in Annex 1 of the Guidance. The LAA cannot pay fees or rates in excess of those listed in the guidance or the Civil Legal Aid (Remuneration) (Amendment) Regulations 2013 unless the LAA has granted prior authority to exceed the fees or rates. If an expert can be instructed within the existing costs limit on the certificate, it should be within the codified rates at Annex 1 in the guidance and there should be clear justification on the file as to why an expert is needed. If the type of expert is not listed in Annex 1 and/or there are insufficient funds to pay for the expert within the existing cost limit, prior authority should be applied for before instructing the expert. The application to request prior authority or increase the cost limit should be done on CCMS.

Civil legal aid: financial risks 13.170 Unfortunately, the legal aid provider bears a disproportionate financial risk in terms of payment for judicial review cases and all providers should be fully alive 93 Legal Aid Agency, Guidance on the Remuneration of Expert Witnesses (reviewed April 2015), available at https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/ file/791497/Guidance_on_the_Remuneration_of_Expert_Witnesses_April2019.pdf, last accessed 31 March 2020.

515

13.171  Public funding for victims of trafficking

to the financial risks they are undertaking by applying for certificated legal aid on behalf of the client.The Civil Legal Aid (Remuneration) Regulations 201394 provide that the representative is only paid for the work carried out if: •

the court gives permission to bring judicial review proceedings;

•

the court neither gives nor refuses permission, and the LAA considers payment is reasonable in the circumstances: a ‘discretionary payment’;

•

the defendant withdraws the decision to which the application for judicial review relates and the withdrawal results in the court (a) refusing permission to bring judicial review proceedings, or (b) neither refusing nor giving permission;

•

the court orders an oral hearing to consider whether to give permission to bring judicial review proceedings;

•

the court orders a rolled-up hearing.

13.171 The financial risk to providers is particularly acute in this area of law where the representative may have to deal with unforeseen circumstances such as a potential victim of trafficking who goes missing/is potentially re-trafficked before judicial review proceedings are concluded.Whether a case is granted permission or not, particularly on a decision made on the papers, is not necessarily an indication of the merits of the case. In cases where a potential victim of trafficking has gone missing, it may be advisable to seek a stay in proceedings to protect the client’s position. However, this is also a difficult financial burden for the representative who has a refusal of permission on papers and was awaiting an oral permission hearing. In such circumstances, the provider cannot expect payment unless the client is encountered, his claim is continued and thereafter a positive permission decision is made. However, if no decision has been made on the papers, it is possible to apply for a discretionary payment (as above). It should also be noted that the provider will be paid for work carried out in relation to applications for interim relief and some disbursements, even if the rest of the work is not paid for under the Civil Legal Aid (Remuneration) Regulations 201395.

94 Regulation 5A, as inserted by the Civil Legal Aid (Remuneration) (Amendment) Regulations 2015, SI  2015/898. The position now generally reflects the previous position, as set out by the Civil Legal Aid (Remuneration) (Amendment) (No  3) Regulations 2014, SI  2014/607, while additionally taking into account the findings of the High Court in R (on the application of Ben Hoare Bell Solicitors) v The Lord Chancellor [2015] EWHC 523 (Admin). 95 As amended by the Civil Legal Aid (Remuneration) (Amendment) Regulations 2015, regs 2(2) and (3).

516

14 Extradition Mary Westcott

Introduction 14.1 Extradition proceedings are a sub-set of general crime but follow their own timetable and do not involve a finding of guilt or innocence. Whether an individual who is subject to extradition proceedings (‘the requested person’) has been, is, or might also be a victim of trafficking is likely to be an important issue, both procedurally and substantively. Most UK extradition cases are based on a European Arrest Warrant (‘EAW’), under what is intended to be a simplified procedure pursuant to Part 1 of the Extradition Act 2003, although it is expected that legal framework will cease to apply after the end of 2020. 14.2 The National Crime Agency (‘NCA’) record of ‘EAW’ numbers and consequent UK arrests gives a flavour of the significant growth in extradition proceedings, justifying consideration of this area in its own right, but demonstrating a recent downturn in arrests1: Fiscal year

2007– 08

2008– 09

2009– 10

2010– 11

2013– 14

2015– 16

2017– 18

EAWs certified

2,483

3,526

3,870

5,770

7,881

14,279 17,256 15,540 14,553

UK EAW arrests

546

683

1,057

1,295

1,660

2,102

1,453

2018– 19

1,412

2019– 20

1,168

14.3 With the commitment towards increased UK trafficking prosecutions, better awareness, and hopefully an increasingly effective National Referral Mechanism (‘NRM’), more extradition cases involving identified victims or potential trafficking victims seem likely.

1 NCA statistics per fiscal year are available at: https://www.nationalcrimeagency.gov.uk/what-we-do/ how-we-work/providing-specialist-capabilities-for-law-enforcement/fugitives-and-internationalcrime/european-arrest-warrants, last accessed 8 August 2020.

517

14.4  Extradition

14.4 Guidance as to how trafficking issues should be dealt with within extradition proceedings remains conspicuous by its absence. In 2015, the House of Lords Select Committee on Extradition Law briefly referred to three issues: •

‘how extradition hearings should interact with the obligations that the ECHR places on a state where a person has been the victim of trafficking;

•

how the courts can make a proper evaluation of whether the claim is true; and

•

what assessment the courts can make of what potential there might be for being re-trafficked if extradited’2.

14.5 The Committee concluded ‘further investigation [of this area] is necessary’, and so it recommended ‘the government commission a review into these matters’3.The government reply promised to ‘give further consideration to how extradition law ought to interact with … people trafficking law’4, but to date the only developments in this context have been through the courts, mostly via cases limited to their own facts and concentrating on the relevance of abuse to the more traditional bars to extradition and with issues relating to ECHR, Art 4 engaging with the substantive as opposed to procedural aspect5. 14.6 In terms of procedure, extradition cases, particularly those based on an EAW, are supposed to be fast, so they do not sit well with the longer timeframe required for an NRM assessment (see Chapter 2). 14.7 If a person is identified as a victim of trafficking then that might explain the commission of the extradition offence. However, scenarios where there is a causal link between the requested person’s extradition offence (whether convicted or merely accused) and trafficking are comparatively rare, as opposed to discrete criminal proceedings prompting an extradition request which focus on entirely distinct offending and have no nexus to the trafficking of the individual.Attempts to raise trafficking as an issue in the latter category of unrelated offending have attracted harsh commentary from the Divisional Court, endorsing an assessment 2 House of Lords Select Committee, Extradition: UK Law and Practice p 58 (Recommendation 8; para 199) (10 March 2015). 3 Ibid. 4 Government response to the second report from the Select Committee on Extradition Law, p 5 (July 2015). 5 E.g. Ministry of Justice of Lithuania v AI [2010] EWHC 2299 (Admin); Z v Poland [2014] EWHC 1242 (Admin); and NV v Czech Republic [2020] EWHC 409 (Admin).

518

Introduction 14.9

by the District Judge in place of a conclusive NRM decision6.This approach of the extradition courts sat uncomfortably with the Lord Chief Justice’s judgment in R v Joseph7, endorsing the former Lord Chief Justice’s judgment in R v L8, viz the weight to be placed on identification decisions by the competent authority. It seems likely the Supreme Court’s analysis in MS (Pakistan)9 will embolden extradition courts to make independent findings of fact, regardless of the NRM process and evidence collected. However, the gulf in awareness of trafficking and modern slavery issues between the immigration and extradition context is broad (demonstrated by the absence of clear guidance) and so it is suggested the risk of inappropriate procedural and substantive decisions remains high. 14.8 Extradition courts have been sensitive to trafficking issues, but have chosen to do so within the framework of traditional challenges. Ministry of Justice of Lithuania v AI10 considered and placed significant weight upon the evidence of AI’s trafficking and the psychological harm that had been caused as a consequence of her trafficking.The court concluded in the face of this evidence that there would be a real risk that AI’s rights under ECHR, Art 3 would be breached if she were extradited to Lithuania. In AI the trafficking had no nexus to the offending which was the subject of the extradition and had post-dated the offending. The Divisional Court in NV v Czech Republic11 considered an appeal against extradition during the NRM process (there had been a positive reasonable grounds decision, and a conclusive grounds decision was awaited), with unchallenged evidence of severe PTSD.The court in dismissing the appeal was entirely focused on possible oppression due to NV’s mental condition and proportionality as it related to ECHR, Art 8. 14.9 In the event that there is a link between the extradition offence and the trafficking of the individual, arguably the non-punishment provisions (see Chapter 5) should be considered by the requesting judicial authority or state before proceeding with the request. How this would work in practice is largely uncharted territory12. In Polish Judicial Authorities v Celinski13, the court observed that factors that mitigate the gravity of the offence or culpability will ordinarily be matters that the court in the requesting state will consider. However, where there is a nexus between the offending and the trafficking, consideration should 6 Polish Judicial Authorities v Celinski [2015]  EWHC  1274 (Admin), [2016] 1  WLR  551, paras 42–53. However, this must be read in the light of R v Joseph [2017] EWCA Crim 36, [2017] 1 WLR 3153. 7 [2017] EWCA Crim 36, [2017] 1 WLR 3153. See para 20 of the judgment. 8 [2013] EWCA Crim 991, [2014] 1 All ER 113. 9 MS (Pakistan) v Secretary of State for the Home Department [2020] UKSC 9, paras 34–46. 10 [2010] EWHC 2299 (Admin) 2010 WL 3515648. 11 [2020] EWHC 409 (Admin). 12 But referred to by Mitting J in Z v Poland [2014] EWHC 1242 (Admin), para 17 (obiter dicta) and per Lewis J in IM v Regional Prosecutor’s Office of Ruse, Bulgaria [2019] EWHC 6012 (Admin) (obiter dicta). 13 [2015] EWHC 1274 (Admin), [2016] 1 WLR 551.

519

14.10  Extradition

be given as to how the requesting state implements the identification of victims and non-punishment provisions of ECAT and the EU  Trafficking Directive. As identified by the Group of Experts on Action against Trafficking in Human Beings (‘GRETA’)14 in their country reports, there are countries that have not effectively (or at all) implemented either identification mechanisms or the nonpunishment provisions. 14.10 Nevertheless, if trafficking status is confirmed, there will normally be obvious consequences for substantive issues that are routinely raised within extradition proceedings (e.g. the passage of time, ECHR, Art 4 and Art 8)15. These should be considered through the lens of Art 16, which requires that steps must be taken to ensure that the return of a victim of trafficking is conducted with due regard to the rights, safety and dignity of the person, including protection from retaliation and re-trafficking. Authorities and statutory guidance (e.g. to the Modern Slavery Act 2015 (‘MSA 2015’)) are simply silent as to how this will be achieved, for example, in order to reduce the risk of further abuse. The apparent failure to grapple with what steps should be taken to implement ECAT in the extradition context is antithetical to the proactive, supposedly integrated victim-focused approach required in order to effectively identify and assist victims and investigate abuse.

Extradition proceedings Generally 14.11 Extradition is the legal transfer of an individual in custody for the purpose of criminal prosecution, sentencing, or the implementation of a custodial sentence previously imposed16. 14.12 Most extradition proceedings concern individuals arrested in this jurisdiction, wanted for prosecution or custodial punishment elsewhere, so-called ‘export’ extradition. ‘Import’ extradition requests issued from this jurisdiction, justifying 14 ECAT set up a mechanism to monitor compliance with the obligations contained in it. This monitoring mechanism is composed of GRETA, a multidisciplinary panel of 15 independent experts, and the Committee of the Parties to the Convention. 15 E.g. IM v Regional Prosecutor’s Office of Ruse, Bulgaria [2019] EWHC 6012 (Admin), where an appeal was allowed pursuant to ECHR, Art 8, but the Art 4 ground dismissed. 16 J Jones and R Davidson, Extradition and Mutual Legal Assistance Handbook (Oxford University Press, 2010) p 3.

520

Extradition proceedings 14.14

arrest elsewhere and requesting extradition to our courts do not involve proceedings in open court, so will only become public during consequent criminal proceedings. In those circumstances the interaction of the trafficking issue with extradition proceedings is likely to be subordinate to any trafficking issue which could be raised during the criminal trial in any event. 14.13 In ‘export’ extradition cases, proceedings will either fall under the Extradition Act 2003 (‘EA 2003’), Part 1 or 2, which codify a broad range of pre-existing schemes and police powers. Following arrest in this jurisdiction, the EA 2003 requires production in custody at Westminster Magistrates’ Court17 for a first appearance, or ‘initial hearing’ (e.g. EA 2003, ss 7–8 in Part 1 cases)18.Therefore, there will not have been a police interview prior to the first court appearance. 14.14 Most ‘export’ extradition cases before Westminster Magistrates’ Court are based on EAWs, pursuant to the EA 2003, Part 119. The object of the EAW system is to remove the complexity and potential for delay inherent within extradition proceedings, by introducing a simplified system of surrender based on mutual respect for each state within the EAW framework20. Each Member State is supposed to have confidence in other Member States honouring their preexisting obligations under the ECHR. This is, of course, subject to a person’s pre-existing fundamental human rights21. In short, surrender is the rule and refusal is the exception, in Part 1 cases at least. Although the details of the extradition arrangements that will apply after the end of 2020 in place of the EAW framework are unclear, the principles of mutual trust and expedition will undoubtedly remain prominent22.

17 Excluding Scotland, where it must be a sheriff at the sheriff ’s court. 18 To date, ongoing discussions about devolving extradition to equivalent first instance courts in regional centres such as Birmingham, Cardiff, Leeds and Manchester do not suggest any imminent change to this arrangement. 19 The EA 2003, giving effect to the Council Framework Decision on the European arrest warrant and the surrender procedures between Member States of 13 June 2012 (2002/584/JHA) (‘EAW Framework Decision’), the duty of consistent interpretation noted in Assange v Swedish Prosecution Authority (Nos 1 and 2) [2012] UKSC 22, [2012] 2 AC 471, and arguably more robustly since 1 December 2014, after the UK’s opt-back into the Framework Decision under Protocol No 36 to the Treaty of Lisbon and Case C-105/03 Criminal Proceedings against Pupino [2006] QB 83. 20 EAW Framework Decision, Recitals (1)–(11). 21 EAW Framework Decision, (12). 22 The Extradition (Provisional Arrest) Bill was debated at a second reading on 22  June 2020 having proceeded through the House of Lords (August 2020). If passed this will amend Part 2 of the 2003 Act to create a new power of arrest without needing a UK warrant for extradition when the request emanates from a designated ‘trusted’ country due to a serious offence.

521

14.15  Extradition

Time limits 14.15 The statutory framework emphasises expedition23, but provides some flexibility where an adjournment is required in the interests of justice24. Where a person is facing an undetermined charge in this jurisdiction, the EA 2003 requires an adjournment 25. 14.16 In theory, an EAW extradition hearing should occur within 21 days of a person’s arrest. In a Part 2 case the period will vary but is usually two months from either the date of arrest26, or when the full extradition request is supplied27. 14.17 The EAW Framework Decision requires that an EAW ‘shall be dealt with and executed as a matter of urgency’28 and that ‘the final decision’ on surrender, so including any appeal, should be taken within 60 days of arrest29. An additional 30-day delay is allowed ‘in specific cases’30, but any more must be communicated to Eurojust with a full explanation31. 14.18 As in any litigation, common causes of delays include legal aid, obtaining evidence on behalf of the requested person, particularly expert evidence, the Crown Prosecution Service (‘CPS’) seeking evidence in reply from the requesting judicial authority or state, and the preparation of first instance judgments. 14.19 In practice, an extradition case including a statutory appeal (further protracted by a permission stage) will be far in excess of the 60-day time limit that applies in Part 1 cases. Nevertheless, following concerted attempts by Westminster Magistrates’ Court over several years, anecdotally first instance proceedings are often concluded within two to three months, which constitutes an improvement. 23 E.g. Criminal Procedure Rules, 50.2 and Criminal Practice Directions 50A(1). 24 EA 2003, ss 8(5) and 75(3) and 76(4). 25 E.g. the mandatory provisions of the EA 2003, ss 8A and 22; there is a discretion to adjourn in the event of an incomplete UK custodial penalty via EA 2003, ss 8B and 23; and related ss 97–98 that apply to the Secretary of State’s decision in Part 2 cases. 26 EA 2003, s 75(2). 27 EA 2003, s 76(3). 28 EAW Framework Decision, Art 17(1). 29 EAW Framework Decision, Art 17(3). 30 EAW Framework Decision, Art 17(4). 31 EAW Framework Decision, Art 17(7).

522

Extradition proceedings 14.24

The Crown Prosecution Service and the NCA 14.20 The CPS and NCA have key roles in any EAW case. The CPS act as an agent for the requesting judicial authority, making representations in favour of extradition. In this role, the CPS will not ‘take a view’ about whether to pursue a prosecution, as it might in routine criminal proceedings. 14.21 The NCA is the UK’s designated ‘central authority’32 for the receipt and certification of EAWs. The NCA has a power to refuse to certify an EAW in very limited circumstances, particularly following the introduction of a proportionality test. The NCA also facilitates communication between the CPS and the requesting judicial authority throughout the extradition process in a Part 1 case, for example, notifying the judicial authority of the date of arrest, transmitting requests for further evidence and details of remand time, and liaising regarding practical removal arrangements. NCA communications will usually be via the CPS and not directly with individuals or their representatives, contrary to previous role of the NCA within the NRM. 14.22 There are also cases where Eurojust has played a role in providing information about common practice across EAW Member States to our Supreme Court or assisted in drafting EAWs arising from Joint Investigation Team projects that concern international crime. Eurojust’s role appears somewhat opaque to the average extradition practitioner, as it seems focused on judicial liaison, out of the public sphere.

Common challenges 14.23 Representatives should be prepared to identify issues early and to substantiate them quickly with evidence33. 14.24 The EA  2003 sets out specific ‘bars’ to extradition34 and requires a specific finding that extradition would be compatible with the requested person’s

32 EAW Framework Decision, Art 7. 33 Criminal Procedure Rules, Pt 50. 34 EA 2003, ss 11, 79(1) and 93(2).

523

14.25  Extradition

rights under the ECHR35. Technical arguments aside, common challenges to surrender include, but are not limited to: (i)

injustice and/or oppression due to the passage of time;

(ii) injustice and/or oppression due to the requested person’s mental condition36; and (iii) incompatibility with ECHR, Arts 2, 3, 6 and 8. 14.25 Whether a requested person is a fugitive from the requesting judicial authority or state is an issue which is often in dispute during extradition proceedings. It is not just relevant to any bail decision, but also, if proved to the criminal standard, it can block a requested person from relying on the passage of time in the substantive extradition proceedings37. A  finding that an individual has been using the UK as a safe-haven will also enhance the already weighty public interest in favour of extradition38. In the context of trafficking there should be consideration of whether the requested person had been trafficked out of the requesting state and/or was at risk of trafficking in the requested state and/or had been trafficked within the requested state. These factors could and should reduce the public interest in favour of extradition39. Similarly, if a person is convicted in his absence, whether or not that was deliberate can be key40. Findings about the extent of a person’s awareness of the criminal case behind the extradition request and whether he has actively evaded that case are therefore ubiquitous. This is fertile ground for findings being made that a person has not been trafficked because of a ‘choice’ to be trafficked, albeit by coercion. 14.26 Particularly in an EAW or Council of Europe case such as Norway, there is a rebuttable, but nevertheless strong, presumption of compliance with fundamental rights41.

35 EA 2003, ss 21 and 87. 36 EA 2003, ss 25 and 91. 37 Gomes v Government of Trinidad and Tobago [2009] UKHL 21, [2009] 1 WLR 1038, para 26, but note the narrow exception preserved at para 29. 38 Polish Judicial Authorities v Celinski [2015] EWHC 1274 (Admin), [2016] 1 WLR 551, paras 6 and 9. 39 An analogy can be drawn to Hounga v Allen [2014] UKSC 47, [2014] 1 WLR 2889, where the illegal entry and employment in the UK was deemed irrelevant where that individual had been trafficked to the UK and then subjected to forced labour in the UK. 40 EA 2003, ss 20 and 86. 41 Krolik v Regional Court in Czestochowa, Poland [2012]  EWHC  2357 (Admin), [2013] 1  WLR  490, para  4 (‘clear, cogent and compelling evidence to the contrary’) and para  7 (‘something approaching international consensus is required’); but now see the CJEU on the need to examine specific facts when looking at the risk of breach in Cases C-404/14 and C-659/15/PPU Criminal Proceedings against Aranyosi and Caldararu [2016] QC 921, paras 88–103.

524

Procedural issues 14.29

Procedural issues Evidence 14.27 If a requested person instructs that he has been trafficked, the first stage will be to obtain evidence and reasons for any NRM determination, or perhaps from a foreign NRM. There is no strict duty of disclosure within extradition proceedings, so although the NCA are by definition involved in any EAW case, experience suggests any decision minute(s) will not be disclosed unless specifically requested by the CPS and Home Office. Now the statutory guidance further to the MSA 2015 confirms obligations to disclose minutes of reasonable and conclusive grounds decisions, it is hoped these documents will become more readily available (see Chapter 2). 14.28 The absence of mutual recognition of trafficking victim status across jurisdictions and the prevalence of re-trafficking, means that despite a previous conclusive decision in another country, it may still be necessary to refer an individual, with his consent, into the NRM in this jurisdiction. The reverse also applies: a requested person designated as a victim in the UK may have to go through the arduous process of ‘victim identification’ all over again if extradited42. It is essential to determine whether the victim identification process in the requesting state is human-rights compliant, and/or whether the process would of itself further traumatise the requested person and thus breach his Art 3 rights (see the fact-specific example of The Government of Lithuania v AI43). 14.29 It is a standard direction for a requested person to provide a signed proof of evidence early on during extradition proceedings (allowing the CPS to seek instructions from the judicial authority) but this may be a difficult exercise for obvious reasons, particularly without access to relevant NRM material. Representatives must tread a delicate line between providing a full account yet endeavouring to submit evidence which will be consistent with previous and subsequent statements made during the NRM. It is helpful to be aware of the nuances of the different means of trafficking, so the position does not change during proceedings and undermine credibility. Regrettably, given fear of retaliation, a client may be simply unwilling to provide information that will enter the public domain via the open nature of the proceedings and be

42 E.g. IM v Regional Prosecutor’s Office of Ruse, Bulgaria [2019] EWHC 6012 (Admin), para 40. 43 [2010] EWHC 2299 (Admin), 2010 WL 3515648.

525

14.30  Extradition

transmitted to the requesting jurisdiction. The possibility of closed extradition proceedings exists but is extremely rare44. 14.30 Depending on the facts, it may be necessary to obtain expert psychiatric and/or psychological assessments of the impact of trafficking and the risk of further abuse. In the more extreme case, such as a client with a very low IQ, an intermediary may be required, or at least a ground rules hearing may be needed prior to any substantive extradition hearing45. The use of expert evidence in cases concerning trafficking victims is set out in Chapters 2 (identification), 5 (Criminal defences available to victims of trafficking), 7 (criminal court process) and Chapter 10 (International protection and human rights claims brought by victims of human trafficking and modern slavery). 14.31 As in the immigration context, open source material will of course be relevant to demonstrate what anti-trafficking framework exists in theory and practice in the requesting jurisdiction46.

Victim identification 14.32 In practice, and contrary to well-established principles, for the most part victim establishment frequently depends on a complaint by the victim in extradition proceedings contrary to both ECAT and the EU Trafficking Directive. 14.33 The arrest precipitating the extradition case may well be the first contact between a person and UK authorities, so it cannot be assumed the issue will have been raised previously. Even if raised, there is no guarantee that a historical or current NRM referral47 will be relayed to the requested person’s representative, usually the duty solicitor. 14.34 Historically, the CPS and the court have been reluctant to become involved in referring a requested person into the NRM as a potential victim.The court and 44 E.g. VB v Westminster Magistrates’ Court [2014] UKSC 59, [2015] AC 1195 (SC) and Antonov v Prosecutor General’s Office Lithuania [2015] EWHC 1243 (Admin), [2015] All ER (D) 58 (May). 45 Although the court will rarely use its inherent powers to appoint intermediaries for vulnerable defendants, a ground rules hearing is good practice in any event (Criminal PD 3E(3)). 46 E.g. US Department of State Trafficking in Persons Reports; GRETA reports; UN commentary; regional human rights decisions; independent local experts etc. 47 See Chapter 2, which sets out in full the NRM process.

526

Procedural issues 14.37

the CPS are not designated first responders in the NRM; however, the NCA is (see Chapter 2), but in the extradition process the NCA has very limited direct contact with the subject of an extradition request. In practice, if the issue has not arisen previously the burden has fallen to the defence to facilitate a referral via a designated first responder. This is despite the extradition District Judges often adopting a more inquisitorial role, in the absence of strict rules of criminal evidence applying to extradition proceedings48. 14.35 Defence representatives may find themselves at the front line of the NRM and may struggle to provide clear advice about the NRM and possible outcomes without creating an additional stressor, particularly early on in the relationship with a client which might already be tainted by mistrust following trauma. The need for more training about trafficking in general crime is clear49 and extradition cases are no exception. Advice regarding a referral into the NRM may not be a top priority at an initial hearing, but it should be encouraged. It can be particularly difficult, given that the legal representative is already likely to be overloaded with forms to fill and instructions to take from an understandably unforthcoming client. A  lack of awareness, alongside already challenging proceedings may be even more powerful factors behind the anecdotally scarce referrals to first responders parallel to extradition proceedings. 14.36 If the issue of possible abuse is not identified early, it may be treated with increasing scepticism and there may not be time to gather the necessary evidence. Frequently embedded within extradition proceedings in ‘conviction’ cases is an incentive artificially to prolong cases, because of an obligation that periods of detention due to extradition result in a corresponding deduction in the extradition penalty. The extradition courts are therefore particularly sensitive to what might be perceived a ‘delaying tactics’. 14.37 Extradition clients may be remanded in custody, most often in the South East to allow for production at the extradition courts50. This presents additional difficulties in the event of a reasonable grounds decision and subsequent police investigation. Investigative teams may have to delegate interviews to the Metropolitan police and the advice and support offered during the recovery and reflection period is likely to be fettered by the prison (by extension problematic for ECAT,Art 12). Practically, there is little advice, support and assistance that can

48 The District Judge ‘has the same powers (as nearly as may be) as a magistrates’ court would have if the proceedings were the summary trial of an information against the person’, EA 2003, s 7(6). 49 E.g. R v L [2013] EWCA Crim 991, [2014] 1 All ER 113. 50 In England and Wales, physically at Westminster Magistrates’ Court and the Royal Courts of Justice.

527

14.38  Extradition

be offered to victims whilst detained in prison and there are few opportunities to keep clients up to date about subsequent police investigations.

Undermining the NRM? 14.38 The need for speed in extradition cases is compounded where there are concerns about a requested person’s mental health condition, which is highly likely in this context51. Expedition grates against the imperative of a victimbased approach towards trafficking and the structure dictated by the NRM, requiring five days for a reasonable grounds decision, and incorporating a 45day recovery and reflection period. 14.39 Extensive litigation has proven that the NRM is not without its difficulties, but there have been extradition cases where it has been disregarded as a process completely. Instead, some District Judges have simply made their own findings, in the level of detail required by the extradition case, as opposed to reflecting the level of scrutiny demanded as part of the NRM.The process at first instance is relatively ad hoc because there is scope to adjourn extradition proceedings where it is in the interests of justice, which arguably it is if it were to allow for NRM progress. The justification for deciding whether trafficking occurred in the course of the extradition case has not been merely expedition, but also assumptions about the NRM not being provided with all the evidence from the extradition case (the NRM possessing evidence that was not before the extradition court has not been mentioned) and not having had the ‘benefit’ of seeing the requested person ‘perform’ in the witness box. 14.40 It is suggested that findings of fact about trafficking and/or slavery in extradition proceedings should be explicit when they relate to identification of victims. Moreover, the fact finder (whether judicial or not) should give consideration of the statutory guidance on assessment of credibility of a victim (see Chapters 2 and 10) and general indicators of trafficking and other scenarios (e.g. criminal exploitation in county lines cases). 14.41 An early case example of judicial fact finding parallel to the NRM52 is Mr Pavol Cambal’s ultimately unsuccessful extradition challenge, considered 51 Wolkowicz v Regional Court of Bialystock, Poland [2013] EWHC 102 (Admin), [2013] 1 WLR 2402, paras 14–15. 52 Although for a different set of facts, but a broadly similar approach, see Igbinovia v President of The Criminal Division [2014] EWHC 4512 (Admin).

528

Procedural issues 14.43

within Celinski53. The extradition case began on 1 May 2014 and the District Judge decided to discharge Mr Cambal on 11 December 2014 (on an ECHR, Art 8 ground), despite a finding of a concocted trafficking account and that Mr Cambal was a fugitive from Slovakia. It had taken until November 2014 for Mr Cambal to self-refer to the UK  Human Trafficking Centre54 and the District Judge made clear he was satisfied there were not reasonable grounds to believe Mr Cambal was trafficked. The Slovakian judicial authority appealed the discharge decision, which was joined as one of several Art 8 test cases before a specially convened Divisional Court55. By the time the appeal was heard, the UK Human Trafficking Centre had conclusively determined that Mr Cambal was a victim of trafficking, contrary to the District Judge’s finding. Chapter 2 should be referred to in terms of the referral process into the NRM. 14.42 The focus of the decision in Celinski was on the Art 8 determination, which was overturned and remitted for reconsideration, but the court also chose to comment on the trafficking issue. It was held that trafficking per se creates no bar to extradition and that a UK Human Trafficking Centre decision ‘is in no way binding on a District Judge’. Further the court found56: ‘52. A district judge, having heard the evidence, must therefore himself determine the issue as to whether the requested person has been trafficked, having been assisted by the Crown Prosecution Service and the UKHTC by provision of the relevant evidence in their possession, subject to principles of public interest immunity from disclosure. Judges should not normally adjourn hearings for a referral to the UK competent authority, nor defer the effect of their extradition decisions pending a decision on a referral by the UK competent authority. 53. In the present case, therefore, the fact that the UKHTC has made the determination to which we have referred can make no difference. The judge has heard the evidence of Cambal and rejected it. Although the issue of his fugitive status was a factor considered in the appeal, the findings of fact below must be respected.’ 14.43 The Celinski judgment did not refer to the Court of Appeal Criminal Division decision of R v L57. There, the Lord Chief Justice held at para 28:

53 [2015] EWHC 1274 (Admin), [2016] 1 WLR 551, paras 42–53. 54 Then the responsible body as part of the NRM. 55 Lord Thomas of Cwmgiedd CJ (as he then was), Ryder LJ, Ouseley J. 56 Celinski [2015] EWHC 1274 (Admin), [2016] 1 WLR 551, paras 52–53. 57 [2013] EWCA Crim 991, [2014] 1 All ER 113.

529

14.44  Extradition

‘Neither the appellants nor the interveners accept that the conclusive decision of UKBA (or whichever department becomes a competent authority for these purposes) is determinative of the question whether or not an individual has been trafficked. They, of course, are concerned with the impact of a decision adverse to the individual. We are asked to note that the number of concluded decisions in favour of victims of trafficking is relatively low, and it seems unlikely that a prosecutor will challenge or seem to disregard a concluded decision that an individual has been trafficked, but that possibility may arise. Whether the concluded decision of the competent authority is favourable or adverse to the individual it will have been made by an authority vested with the responsibility for investigating these issues, and although the court is not bound by the decision, unless there is evidence to contradict it, or significant evidence that was not considered, it is likely that the criminal courts will abide by it.’ A subsequent application to certify a point of law of public importance was refused. See the more recent modification of that approach in R v S (G)58, R v VSJ59 and R v DS60. 14.44 This approach obviously weakens applications to adjourn first instance hearings to obtain relevant evidence while awaiting a conclusive grounds decision.61 Whilst (MS) Pakistan endorses judicial fact finding in the arguably analogous immigration context, it is suggested that decision signifies a progressive approach on two counts. Lady Hale referred to the ‘breakthrough’ in the Siliadin analysis whereby positive obligations flow from ECHR, Art 4; and the Supreme Court were careful to ensure any judicial fact finding placed due weight on existing NRM decisions. 14.45 Whilst extradition courts are adept at assessing extradition issues, it does not follow they are able safely to stand in for the purpose of investigating potential trafficking/slavery issues to the level required in order to discharge the positive obligations towards the individuals involved and to allow for effective identification. An appropriate process is likely to be far more nuanced than the tools available to an extradition judge can manage, encompassing obligations to seek further information, put inconsistencies and adverse inferences and investigate protection needs. Put another way, however the victim finding is

58 [2018] EWCA Crim 1824, [2018] 4 WLR 167, [2019] 1 Cr App R 7, [2019] Crim LR 147. See para 76. iii. 59 [2017] EWCA Crim 36, [2017] 1 WLR 3153. 60 [2020] EWCA Crim 285. See para 42. 61 But see Gross LJ’s observations in R v HHD [2018] EWCA Crim 2995 at para 19.

530

Substantive issues 14.47

made, whether successful or not, ‘ … the claimant is entitled to know that her or his specific circumstance has been critically and properly analysed’62. 14.46 It is hoped the absence of guidance and awareness about the positive obligations in this context will soon be rectified. There is a marked contrast between the possibility of extradition decisions and physical removal from the jurisdiction mid-NRM. It is suggested this is obviously out of kilter with the anti-trafficking framework generally63 and the positive obligations owed to potential victims of trafficking. Although concerning, this approach has not been the subject of any more general reported judicial comment64. As statutory extradition appeals usually last several months, any pending conclusive grounds decision has usually been made before an appeal is determined. It is hoped that greater awareness will eventually prompt a different analysis, perhaps guided by experience in the immigration context where trafficking issues are less scarce.

Substantive issues 14.47 As noted in Celinski, a finding that a requested person is or was a trafficking victim is not a trump card to prevent extradition65. In a particularly compelling case, it is possible that an abuse of process argument could be raised, but on the law as it stands it would be extremely difficult to succeed in this. Starting points for an abuse argument could use unrelated scenarios where the CPS have previously conceded that extradition would be an abuse of process, where extradition would be for no real purpose (for example, where a requested person has already completed the full custodial penalty whilst awaiting extradition), or by arguing that extradition would be antithetical to principles of non-refoulement if a person had claimed asylum in this jurisdiction from the requesting country66. However, abuse of process is a residual jurisdiction, to be considered after the mandatory issues have been determined by the court.

62 R (on the application of WEN) v Secretary of State for the Home Department [2019] EWHC 2104 (Admin) at para 74. 63 Arguably including the status to be given to NRM decisions within criminal proceedings noted in R v L [2013] EWCA Crim 991, [2014] 1 All ER 113. 64 Subsequent decisions concerning scenarios where it is common ground that the requested person was trafficked, eg. Olga C  v Prosecutor General’s Office of the Republic of Latvia [2016]  EWHC  2211 (Admin); Vilionis v Vilnius County Court [2017]  EWHC  336 (Admin); R  v Polish Judicial Authority [2018] EWHC 3696 (Admin); and IM v Regional Prosecutor’s Office of Ruse, Bulgaria [2019] EWHC 6012 (Admin). 65 Contrast, for example, a scenario where a requested person’s surrender is sought from a jurisdiction that he has previously been granted asylum from. 66 E.g. District Court in Ostroleka, Poland v Dytlow [2009] EWHC 1009 (Admin) at paras 11–31.

531

14.48  Extradition

14.48 More straightforwardly, a trafficking finding will be relevant to the more commonplace extradition challenges67. The extent of the impact on standard challenges will depend on whether or not it is possible to show that the trafficking was linked to the index extradition offence, or perhaps the reason behind breach of bail abroad, or breach of a suspended sentence68. 14.49 As a person’s fugitive status is to be decided on each set of facts, demonstrating trafficking may not automatically settle that issue in the requested person’s favour. 14.50 Decisions of the ECtHR regarding ECHR, Art 4 are undoubtedly useful in rebutting presumptions of ECHR compliance in Member States. In LE  v Greece69 the emphasis is on a global approach, incorporating indirect action by public bodies and affirming the prospective scope such that Art 4 includes prevention, protection and combatting of trafficking. Despite the best intentions it appears that the anti-trafficking provisions in many jurisdictions are still in their infancy, even within the Council of Europe, and that the whole system is only as effective as its weakest link. As above, the extradition court’s substantive consideration of these issues has not extended to a breach of positive obligations, although following MS (Pakistan) this is arguably fertile ground for argument, especially if unlike in MS the facts establish a risk of repeated abuse70.

67 Supra, para  23; and leading to the successful Art 8 ground in IM  v Regional Prosecutor’s Office of Ruse, Bulgaria [2019] EWHC 6012 (Admin). 68 Although that argument did not find favour in Vilionis, ibid. 69 App No 71545/12, final 21 April 2016, paras 64–68 (general principles of Art 4). 70 Although by definition a victim of trafficking is at greater risk of ‘repeat victimisation’, e.g. Recital 57 to Directive 2012/29/EU.

532

15 Trafficking operations and modus operandi Hossein Zahir QC, Philippa Southwell, Phil Brewer and Steve Harvey

Introduction 15.1 Human trafficking is one of the most lucrative illicit businesses globally, with criminal gangs and individuals making an estimated $3 billion from it per year. It is estimated that 0.3 million people are in some form of slavery worldwide1. 15.2 There have been relatively low convictions of human trafficking related offences, both pre- and post-enactment of the Modern Slavery Act (‘MSA  2015’)2. This crime is known by a few labels in the English language: modern slavery, trafficking in human beings, trafficking in persons, and human trafficking They are all directly linked to the text of the national legislation that guides the state’s response in its prevention, investigation, prosecution, and victim support (see Trafficking offences at Chapter 4). 15.3 The common denominator in trafficking cases is exploitation and the criminal profit that is generated by an individual’s exploitation. Some form of profit or gain is the reason why people are trafficked and it is a global, multi-billion pound criminal industry.That is not to say trafficking cannot occur on a smaller scale – it does. This type of trafficking is often seen in the overseas domestic workers cases, where workers, often with visas tied to their employers, have to work for little or no economic benefit, or in the trafficking of children for domestic labour or other small-scale labour exploitation. 15.4 The UK is a source, transit, and destination country for men, women, and children subjected to sex trafficking, forced criminality and forced labour, including domestic servitude. In 2014, the UK government estimated up to 13,000 persons were subject to trafficking in the UK, with about one quarter to 1 See https://www.globalslaveryindex.org/2019/findings/foreword/, last accessed 10 August 2020. 2 Her Majesty’s Inspectorate of Constabulary and Fire & Rescue Services Report, ‘Stolen Freedom: the policing response to modern slavery and human trafficking’, October 2017.

533

15.5  Trafficking operations and modus operandi

one third of these victims being children. In 2019, a total of 10,627 individuals were referred into the National Referral Mechanism (‘NRM’).The three main sources of data to identify the scale of trafficking in the UK derives from (i) NRM referrals (ii) referrals of victims under the ‘duty to notify’ provision and (iii) the number of modern slavery crimes recorded by the police. As recognised by the UK government these sources cannot provide a complete assessment of the actual prevalence of trafficking in the UK3. The most common reported exploitation in the UK was forced labour followed by sexual exploitation4. Most foreign trafficking victims come from Africa, Asia, and Eastern Europe. Albania, Vietnam, China, India, Eritrea, Sudan and Romania were the top countries of origin during the past year. Children are particularly vulnerable to criminal exploitation. Approximately 28% of victims referred into the NRM were exploited entirely outside of the UK5. 15.5 In the UK, human trafficking has existed in its ‘modern’ form for longer than it has been routinely investigated. Currently, the agencies with responsibility for investigating and collecting intelligence on human trafficking and modern slavery are the National Crime Agency (‘NCA’), which has primacy on national investigations, all UK  Police Forces, the UK  Border Force, UK  Immigration Enforcement and the Gangmasters and Labour Abuse Authority. 15.6 All identified victims are reported to the Home Office who oversee the NRM. In April 2019, The Home Office took over responsibility as the UK’s Single Competent Authority (‘SCA’) from the National Crime Agency (‘NCA’) and UK Visas and Immigration (‘UKVI’). The identification and protection of potential victims of modern slavery requires collaboration from many agencies and organisations. If one were to combine the law enforcement response with the support provided by international organisations, NGOs, charities and other civil society actors working in the field of preventing and combating human trafficking within and into the UK, the national response looks substantial.

3 See: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/ file/840059/Modern_ Slavery_Report_2019.pdf, last accessed 10 August 2020. Police Recorded Crime (‘PRC’) includes all offences in law that are indictable (those that must or may be dealt with at Crown Court). In the year to March 2019, the police recorded 5,059 offences of modern slavery in England and Wales.This is a 49% increase compared with the previous year (3,393 offences). Between September 2018 and August 2019, Police Scotland has recorded a total of 159 crimes for human trafficking. In the year to March 2019, the Police Service of Northern Ireland (‘PSNI’) recorded 38 offences. 4 Ibid. 5 US Department of State Trafficking in Persons (‘TIP’) Report 2019.

534

Exploitation typologies and common control methods 15.7

Exploitation typologies and common control methods 15.7 Victims of modern slavery are preyed upon due to a backdrop of complex issues. It is not possible to document all forms of exploitation in a short format, and there is no definitive list as human trafficking and associated exploitation is not static but evolves to meet demand. Common forms of exploitation in the UK are criminal exploitation, sexual exploitation, forced labour and domestic servitude. Traffickers are often professional criminals and will seek to exploit vulnerable people wherever they can. Just as exploitation can come in many forms, so does vulnerability. In this respect, and in all cases, an open mind is vital. Every jurisdiction has varying trafficking typologies; this can be seen both internationally and domestically. The Polaris Project6 recently recorded 25 typologies of trafficking throughout the USA. Each has its own business model, trafficker profiles, recruitment strategies, victim profiles and methods of control that facilitate human trafficking. In 2017, the Home Office published a paper entitled ‘A Typology of Modern Slavery Offences’7 which identified 17 different typologies. Until 2018, the NCA broke down referral statistics8 into four types only. These were domestic servitude, labour exploitation, sexual exploitation and unknown exploitation type as forms of exploitation in the UK. However, since taking over as SCA, the Home Office has also included criminal exploitation in the 2019 statistics9. The Crown Prosecution Service (‘CPS’) guidance on human trafficking acknowledges that exploitation typologies, particularly involving children, are often varied, multimodal and can include: •

domestic servitude;

•

labour exploitation;

•

criminal activity (e.g. cannabis cultivation, drug supply including ‘county lines’, petty street crime, illegal street trade, drug mules etc);

•

sexual exploitation (brothels, closed community, for child abuse images);

•

application of residence;

•

benefit fraud;

•

forced begging;

•

illegal adoption; and

•

sham marriages.

6 See https://polarisproject.org/typology, last accessed June 2020. 7 Available at https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_ data/file/652652/typology-modern-slavery-offences-horr93.pdf, last accessed 14 April 2020. 8 Available at www.nationalcrimeagency.gov.uk/publications/national-referral-mechanism-statistics/2016nrm-statistics/765-human-trafficking-national-referral-mechanism-statistics-april-to-june-2016-v2/file, last accessed 17 December 2017. 9 Available at https://www.gov.uk/government/statistics/national-referral-mechanism-statistics-uk-endof-year-summary-2019, last accessed 14 April 2020.

535

15.8  Trafficking operations and modus operandi

15.8 Perpetrators use a variety of control methods to engage or coerce vulnerable individuals10. The Home Office Guidance for Competent Authorities stipulates that an adult victim of human trafficking must have been subject to a ‘means’ – the threat or use of force or other form of coercion to achieve the consent of a person having control over another person. It is not necessary for there to have been ‘means’ for a child to be a victim, because children cannot give informed consent. Any child who is recruited, transported, or transferred for the purposes of human trafficking is a potential victim, whether or not he has been forced or deceived11 (see Chapter 1). 15.9 Adults and children can be controlled through subtle, sometimes invisible, forces that even the victims themselves might not be able to fully understand or be able to articulate. Understanding how perpetrators abuse and exploit a position of vulnerability is fundamental in the investigation of trafficking but the less obvious signs often get overlooked. Common control methods are discussed in the following paragraphs; these are often multimodal.

Physical and sexual violence 15.10 When physical abuse is used as a means of control, it can be single or repeated violent episodes of abuse. Alternatively, it can be manipulation of the victims by making them witness beatings given to someone else, combined with the threat that it will happen to them if they do not do what they are told. Sexual violence, including rape, is a form of control that often goes undetected and unreported in situations of labour exploitation, domestic servitude and criminal exploitation. Traffickers will sexually abuse for their own gratification, but also as a means to control, to intimidate and silence the victim. Sexual abuse can affect children, women and men but embarrassment, shame and stigma can prevent or delay disclosure. Non-consensual sex is exploitation even if there is no monetary gain12.

Deception 15.11 The promise of a better life is a common form of deception used by traffickers. This is the point at which a web of deception traps victims into believing 10 College of Policing, www.app.college.police.uk/app-content/major-investigation-and-publicprotection/modern-slavery/risk-and-identification/#control-methods, last accessed June 2020 11 Home Office, Victims of modern slavery – Competent Authority guidance (21 March 2016) pp 31–32. 12 NCA, Types of modern slavery crime, available at www.nationalcrimeagency.gov.uk/crime-threats/humantrafficking/types-of-human-trafficking, last accessed 17 December 2017. See Chapter 1.

536

Exploitation typologies and common control methods 15.13

that the first steps they are taking will lead to a life better than the one they have now. This could be the promise of a job, or education, or to reunite with family or other promises that never materialise. The deception can be quite sophisticated, for example by using a fake job agency, advertising online, using family members as facilitators, or using other victims as recruiters. In other cases, the ongoing deception and manipulation associated with withholding of wages or illegitimate wage deductions acts as a further means of control. The deception can shift and evolve over time.

Debt 15.12 A  close partner to deception is debt. Traffickers and their agents routinely use the accrual of debt and usury, where the rates of interest on loans are exorbitantly high, as a means to control victims. For example, what might appear as a genuine loan by an agent to finance travel arrangements traps the victim into a contract or agreement (verbal or otherwise) with the trafficker to pay back that debt. Debt bondage is a term often considered in situations where a victim is tied to one person or group for an unspecified amount of time and often for an unspecified amount. However, in human trafficking debt accrual as the means of control does not always have to conform to the strict notion of debt bondage.Victims can be sold or exchanged between traffickers and the debt rolls over. In some cultures, the stigma of not being able to pay back debt or the deep shame of asking family members to sell their assets to pay back the debt, is enough to hold victims bonded to the trafficker or their agents. The threat of being exposed for non-payment of debt is a common tactic when the abuser and abused come from the same culture, family or kinship group. The use of debt as a means to control can manifest in different ways. It can be used to control both adults and children and is a significant contributor to why some victims go missing and are later found to have been re-trafficked. It is common within Vietnamese trafficking models for an agent and/or trafficker to hold the property documents of a victim’s family to ensure that the victim will pay back the debt. The property will be claimed if the debt is not paid off. The debt will often be inflated, variable and bear no relation to what the victim has been given (i.e. travel costs, accommodation, documents etc). See Chapter 1 in respect of debt bondage.

Isolation 15.13 Keeping victims housed together, locking rooms and monitoring or removing any means of communication to the outside world are ways that traffickers keep control through isolating vulnerable people. Moving frequently from place to 537

15.14  Trafficking operations and modus operandi

place reduces the likelihood of victims being identified by the public or police, and it also means that it is less likely the victim will be able to build trusting relationships with anyone or ask for help. Isolation can be both physical and emotional in nature. The circumstances can be just as controlling where the victim is not physically locked inside, because the terror of not knowing who to trust, whether the person with you is in similar circumstances or is an agent, can be debilitating. Isolation of a victim is often easy to achieve where the victim does not speak the language well, or at all, in the destination country and en route, and where a victim has irregular immigration status in these countries. A common tactic is for victims to be told that if they speak to outsiders including authorities they will be arrested and/or deported. Sometimes modes of communication are provided to victims (i.e. laptops and mobile phones) under the pretence of assisting them but are another means of controlling and monitoring the victim.

Dependency 15.14 Perpetrators knowingly and deliberately create a situation of dependency that increases the vulnerability of the victim and strengthens the control over them. Providing the only source of food and accommodation and taking away identification papers are common ways in which dependency is created. However, it can also involve the perpetrator deceiving, coercing or forcing the victim to take on a new identity by providing a different name on arrival, or the use of false documents and then subsequently threatening to report the victim to immigration officials. In other instances, it can involve the supply and withholding of drugs or alcohol or always being with the victim and speaking on his behalf, for example, when presenting at Accident and Emergency. In the case of children, a situation of dependency can be created quickly and with little effort due to their young age and immaturity. It is well known that a common ploy in respect of child victims of domestic servitude is that they are brought through British airports with a visa. Often this visa will be for an ‘adult’ rather than a child to avoid closer scrutiny and checks. Or the children are not detected because the accompanying adult, often masquerading as a family member, presents a passport and speaks to the Immigration Officer on the child’s behalf. The child only later finds out the implications of entering the country on false documents and the trafficker threatens him with being handed over to immigration and police, something the child fears through his own knowledge of corrupt authorities in his home country.

Emotional control 15.15 Emotional control can take many different forms, and some of this is already covered in other parts of this chapter. Inducing fear by threatening to harm the 538

Exploitation typologies and common control methods 15.17

victim’s family is a corrosive means of controlling the victim. Even after the victim has been removed from the situation of exploitation, the paralysing fear of threats to family has long-term consequences, including refusal to disclose and the high risk of re-trafficking. Making victims collude in crimes and then threatening to expose them to police unless they acquiesce is another pernicious form of control that has consequences for safeguarding and in later immigration and legal proceedings. Threats or action taken to expose the victim’s sexual history, including taking sexually explicit photographs or distributing images online, has a devastating impact on women and girls, but it can also affect boys and men in the same way, particularly, but not only, in cultures or in faiths where homosexuality is considered taboo. Less obvious, but just as important, are signs of emotional control seen in situations described as ‘Stockholm Syndrome’, where through calculated manipulation by the perpetrator the victim forms a bond or strong emotional tie even though he may have suffered abuse. This is sometimes known as the ‘Loverboy’ model. Stockholm Syndrome can also be seen in cases of domestic servitude, where the victim has spent years living with the family in appalling conditions but has been responsible for every aspect of caring for the children and by developing a bond with them they do not want to be responsible for the parents being arrested and taken away from the children.

Culture and faith 15.16 There are several ceremonial practices linked to spirit possession that are used by human trafficking networks to control victims. It would be wrong to group all of them together as ‘juju’, as this is not the case.There are several quite different belief systems across the continent of Africa and around the world that traffickers have exploited. Many of them as means of control can be incomprehensible if you are not familiar with them; this can lead to victims not being believed or in some instances being derided for lacking credibility. Very subtle references to the oath or other aspects of control can be overlooked if you are unaware but can, if engaged with, assist in obtaining the victim’s account in a way that reduces this risk of trauma or poor disclosure. 15.17 Juju, according to Andy Desmond, a former Metropolitan police detective and trafficking consultant, is commonly used by human traffickers of Edo and Delta States of Nigeria. Traffickers have hijacked the cultural beliefs in juju to blackmail their victims. This often involves traditional priests paid to carry out the ceremonies, the strong belief in the spirits makes this a powerful weapon for traffickers. Once a potential victim has been put through and sworn an oath of obedience, he is often easy to control without the need for physical restraints. The bondage is in the beliefs: there is no requirement to lock up 539

15.18  Trafficking operations and modus operandi

victims and have them watched. Juju has been used extensively to control Nigerian children trafficked to the UK and via the UK into other European countries for servitude and sexual exploitation. Practices such as Kindoki, from the Democratic Republic of the Congo, or Obi, Obeah, or Obia known in parts of Nigeria and the West Indies may also be methods of control and relate to spirit possession and mysticism. 15.18 A  related area of abuse is the practice of denouncing children as practising witchcraft. This at times was ‘proved’ because bad luck has befallen the family, for instance illness or for poverty. It is these children who are singled out, isolated and highly vulnerable to trafficking. Traffickers exploit their vulnerability and knowingly use the community condemnation of alleged witchcraft as a form of control. These children lose any sense of self-worth, feel rejected, blame themselves and are reluctant to speak out13.

Family involvement 15.19 Human trafficking does happen with the knowledge, acquiescence and involvement of family members, husbands, boyfriends, or close acquaintances. Even after victims recognise and understand that they have been trafficked, the bonds of loyalty to the family or fear of the consequences of breaking free can be overwhelming. In cases of forced marriage young females can be forced by families to enter an arrangement of marriage which is a cover for servitude in exchange for some form of benefit. This can also be an arranged marriage, agreed to by the victim, which on arrival becomes a servile marriage. 15.20 It would be naïve to think that some families do not know what will happen to their children when they send them away with local agents and facilitators even if the children themselves do not know all the arrangement details. Unaccompanied or separated children are especially vulnerable to trafficking and re-trafficking, in part because of the potential for risk if the child is reunited with family. In some cases, the family will have had complicit involvement, especially if a debt has to be repaid or where the stigma of sexual abuse makes the child an outcast. In other situations, filial piety, the deeply-entrenched cultural bond of loyalty to elders that exists in the Confucian beliefs found in Chinese and Vietnamese society, is part of a much more complex landscape of why children do not disclose abusive and exploitative relationships. 13 More detail on this subject is available at www.starsfoundation.org.uk/awards/organisations/steppingstones-nigeria-child-empowerment-foundation, last accessed 17 December 2017.

540

Modus operandi of known modern slavery cases 15.25

Modus operandi of known modern slavery cases 15.21 In January 1998, West Sussex Police set up ‘Operation Newbridge’ to gather intelligence on children of West African origin and ethnicity who, having arrived in the UK at Gatwick Airport as unaccompanied minors, were routinely going missing after being placed in care.The suspicion was that they were being trafficked into the UK for sexual exploitation. 15.22 The investigation into the deaths of 23 Chinese nationals who drowned in Morecambe Bay on 5  February 2004 is probably the best example of a crime that had not yet registered on the law enforcement ‘radar’ until it came under significant public attention and was then scrutinised by criminal justice authorities. ‘Trafficking in human beings’ was not part of the UK law enforcement lexicon in 2004, yet there were clear indications almost four years earlier that the UK was being targeted by people smugglers and human traffickers. 15.23 On 18 June 2000, 58 Chinese illegal migrants were found suffocated in the back of a lorry that had arrived in Dover from Rotterdam via a channel ferry, driven by Perry Wacker, a Dutch national. Sentencing the driver at Maidstone Crown Court the following year, Mr Justice Moses said that ‘human trafficking of this kind added to the climate of hostility against asylum seekers and encouraged government to take ever more draconian measures’. 15.24 Two months before the fatal shipment, Leo Nijveen, a close friend of Wacker’s, was arrested by Kent Police after arriving at Dover with 50 Chinese migrants in his lorry.They had almost suffocated in transit and had been released by Nijveen on the crossing. Nijveen was released without charge by the UK authorities and returned to the Netherlands. Today, it is likely that he would have been investigated as a people smuggler and human trafficker 15.25 It is highly likely that once the migrants had been smuggled into the UK they would have been trafficked within the UK to pay the costs of their facilitated illegal entry, the ‘debt bondage’ that is now so familiar in current human trafficking investigations. The Chinese nationals who died in Morecambe Bay in 2004 were victims of human trafficking. They were paying off the costs of their smuggling by collecting shellfish in hazardous conditions. 541

15.26  Trafficking operations and modus operandi

15.26 The Chinese migrants who died in Dover and in Morecambe Bay had been smuggled by Chinese ‘Snakehead’ gangs into the UK, and their internal trafficking would have been/was controlled by Chinese traffickers. The Gangmasters Licensing Authority (since replaced by the Gangmasters and Labour Abuse Authority) was established in 2005 as a direct result of this investigation and the facts established about the role of those persons managing the migrants as ‘a workforce’, so called gangmasters. 15.27 In 2007 ‘Operation Troy’ led in the UK by SOCA and the UKHTC, working with police counterparts in Sweden, Denmark and Norway, investigated the trafficking of British males to Scandinavia by a ‘traveller family’. The men, all homeless and vulnerable, were trafficked and forced to work laying tarmac at residential properties. 15.28 These widely-publicised cases emphasise that human trafficking is not a recent phenomenon. However, even today investigations, prosecutions and convictions for human trafficking are not routine. So much so that they are routinely heralded and commented upon as ‘breakthroughs’ against organised crime. 15.29 The Council Framework Decision of 13 June 2002 provided the legal basis for EU  Member States to operate in Joint Investigation Teams (‘JITs’). It would take another six years before the first ever JIT against an organised human trafficking network was established. 15.30 In 2008, JIT Golf, led by the UK’s Metropolitan Police Service in cooperation with the Romanian National Police, investigated an organised ethnic Roma child trafficking network operating across the EU. Romanian Roma children were trafficked to EU Member States and exploited for the purpose of ‘street crime’. This coordinated two-year international investigation led to the first conviction for child trafficking, 10 years after West Sussex Police first investigated the phenomenon. 15.31 What the above-mentioned cases illustrate is that state authorities have been slow to respond effectively to an emerging criminal threat that was first recognised in the late 1990s. 542

Post Modern Slavery Act 2015 15.35

Post Modern Slavery Act 2015 15.32 On 23 October 2019, 39 Vietnamese nationals were discovered dead inside a refrigerated lorry trailer in Grays, Essex. The trailer had travelled from Belgium to Purfleet and had been collected by an Irish registered lorry cab. This investigation continues with a number of individuals facing prosecution. This case highlights the complexities of these crimes with manslaughter, smuggling and human trafficking offence considerations. 15.33 There is a rising awareness of British victims of trafficking who are trafficked within the UK and also outside of the UK. Common forms of trafficking of British victims outside of the UK are for forced marriage and as drug mules. In respect of the latter, this is often trafficking within an organised criminal framework, with the organised criminal gangs operating over several jurisdictions. 15.34 In 2014, the Metropolitan Police identified several children being forced to transport and sell drugs on behalf of a London gang. This resulted in one of the first human trafficking prosecutions involving child criminal exploitation. As professional practice was shared across the UK, the possibility of using the Modern Slavery Act to prosecute exploiters has increased. Individuals under the age of 18 and involved in the supply of drugs are far more likely to be assessed by police and local authorities as potential victims alongside any decision to prosecute. Those individuals identified as controlling and exploiting children for a criminal purpose could be charged with modern slavery offences.This can be achieved using evidence such as financial and communications data, without always relying on the exploited child giving evidence (see Chapter 17).

Sexual exploitation 15.35 In May 2017, following a lengthy police investigation, Romelia Florentina Radu, Petre Niculescu and George Maracineanu were convicted of offences relating to human trafficking and sexual exploitation at Kingston Crown Court. This was the first case prosecuted under the Modern Slavery Act 2015 involving a child victim. Radu and Niculescu had been trafficking Romanian women from their own Roma community to the UK for several years. The victims would be forced to work as prostitutes in West London. Believing they were coming to the UK for a better life, many of the girls and women found themselves 543

15.36  Trafficking operations and modus operandi

working ‘on-street’, meeting customers and then often using gardens or alleys in which to have sex. Failure to comply would result in violence being used against them. Despite their situation, none of the women sought help from the UK authorities.The threat of violence and the risk of rejection by their families were two significant contributing factors preventing them from doing so. 15.36 The group came to the notice of police in 2016. Maracineanu had been in contact with a Romanian woman via a dating website. He convinced her to travel to the UK on the promise of a relationship helping her secure work as a waitress. When she arrived in London, Maracineanu handed her over to Radu and Niculescu.They forced her into work as a prostitute, threatening to tell her family if she refused to comply. The woman remained in this situation for three weeks until she found the courage to seek help from the Metropolitan Police. 15.37 This was the start of an investigation that lasted almost a year. In collaboration with Romanian law enforcement, the Metropolitian Police Modern Slavery and Kidnap Unit formed a Joint Investigation Team (‘JIT’) coordinated through Eurojust. Witnesses were located in Romania and the UK resulting in over 20 potential victims being identified. Evidence was gathered and an arrest phase instigated. During that phase a number of victims still being exploited were located and taken to safety. This included a 15-year-old girl who Radu and Niculescu had trafficked when she was 14 years old. 15.38 Radu and Niculescu pleaded guilty to trafficking eight women and a child for the purpose of sexual exploitation. They received sentences of 14 years each in prison. Maracineanu was sentenced to two years and eight months’ imprisonment for his role in this crime.

Labour exploitation 15.39 David Lupu, a Romanian National, was convicted of labour exploitation in 2018. He recruited men from impoverished communities in Romania, offering them £50 a day plus accommodation to work on construction sites. The accommodation Lupu provided was a one-bedroomed flat in Leyton, East London where up to 15 workers were housed in extremely poor conditions. He withheld their travel documents, controlled their movements, and assaulted them if they challenged him. He told the workers they would be arrested if they contacted the police. 544

Crime 15.43

15.40 Lupu arranged subcontract demolition work on large construction sites in London. Although he was paid in full for the work, he retained most of this, telling the workers the deductions were for outstanding debts they owed him. They also were made to work very long hours by Lupu. 15.41 The construction companies Lupu subcontracted from were unaware of the exploitation his victims faced daily. This was in part due to how he controlled them. Language barriers ensured there was little interaction with other contstruction workers on-site. It was not until two of his victims approached the police to complain they were being kept as slaves that the crime was uncovered. Lupu was sentenced to seven years’ imprisonment. 15.42 The targeting of vulnerable individuals for the purpose of labour exploitation is not uncommon. In 2019, West Midlands Police investigated the largest UK labour exploitation case to date. The initial two trials resulted in eight convictions with the police believing the Polish organised crime network was responsible for the exploitation of over 400 individuals. It targeted the most vulnerable in society. Victims were from impoverished Polish communities, had drug or alcohol dependencies or suffered from mental illness. They were attracted with offers of a better life, accommodation, and food. However, they found themselves in horrendous conditions, hardly fed and paid little or no money. Their exploiters arranged low-skilled work as well as claiming benefits in victims’ names. When the victims challenged their exploiters, they were told money had been deducted to pay off debts and on occasions they were beaten. Following a tip off, the police launched an investigation resulting in the discovery of the extent of the crime. Following two trials, the eight accused were sentenced to between three and 11 years’ imprisonment.

Crime 15.43 Organised crime is involved in human trafficking, which is often referred to as ‘an organised crime’. The following definition is helpful in explaining what that means: ‘Organized criminal group’ shall mean a structured group of three or more persons, existing for a period of time and acting in concert with the aim of committing one or more serious crimes or offences established in accordance with this Convention, in order to obtain, directly or indirectly, a financial or other material benefit’14. 14 UN Convention against Trans National Organised Crime 2000, Art 2a.

545

15.44  Trafficking operations and modus operandi

15.44 Most traffickers identified by state authorities, while investigating trafficking activity, worked in a group with at least two others, so in almost all cases, they were part of an organised crime group (‘OCG’). That said, the dynamic or profile of an OCG will vary from case to case and its activity or operation will be driven or influenced by a range of factors, i.e. the push and pull factors which are the cause of an individual’s vulnerability and susceptibility, the socio economic and environmental conditions or market forces and the ability or capacity of the criminals involved. 15.45 For example, ethnic Roma trafficking networks operating across the EU solely engaged in the trafficking of ethnic Roma victims. These trafficking networks are often successful because of the significant discrimination suffered by the Roma across Europe. The structure of these trafficking groups is clan- and extended family-based. These networks often come to notice when there are investigations into the activities of children who are involved in organised street crime, such as pickpocketing and begging. 15.46 In a significant number of investigations where Roma children are exploited as street criminals, the traffickers are their parents or immediate family members. These networks operate in the capital cities of the EU’s most wealthy countries, moving routinely and when necessary, swiftly from one country to another, taking advantage of the Schengen Free Travel Zone. For obvious reasons, a major challenge in an investigation involving ethnic Roma victims is obtaining a statement or testimony from the victim.The traffickers are aware of the challenges a child victim will present to the authorities and the ‘use’ of children has become a modus operandi, with the child victim being ‘recycled’ after initial detection. 15.47 Different trafficking groups active in the UK are also involved in defrauding ‘the benefits system’ using adults and children trafficked to the UK. The adults and children will be presented to the local authority as a newly arrived family, corroborated by good quality forged documents. Usually the fake family will be one parent and multiple children and will be entitled to a full range of benefits. Bank account details provided to the local authority will often be the traffickers and any payment or debit cards will be handed to the traffickers. The fake family will be presented in another area to repeat the process or be returned to their country of origin. The traffickers will then maintain the pretence and receive all benefit payments. 15.48 The ‘Loverboy’ method is the term often used to describe the trafficking of a girl or young woman into forced prostitution where the recruitment involves 546

Criminal exploitation 15.53

a young, good looking man befriending the victim. The victim is in almost all cases a young woman who has no or limited experience of meeting or speaking with a boy or young man, who quickly becomes flattered by his attention, his conduct, and often apparent good financial circumstances.Very quickly the girl or young woman will be convinced she is in a loving and committed relationship with her new boyfriend, which she will inevitably keep secret from her family due to cultural and customary practices surrounding arranged relationships and marriage. 15.49 Early in the relationship the boyfriend will suggest that ‘they’ go to meet his parents (or something similar) in another city or even country with the intention of getting the girl to leave her home environment. On arrival in the new location the girl will then be forced into prostitution by her ‘boyfriend’ or be handed over to others to do the same. This methodology is often seen in the investigation of Albanian trafficking networks, where both traffickers and victims are ethnic Albanian and other Eastern European gangs. 15.50 The mono-ethnic exploitation by traffickers is also a common occurrence within the UK, especially where an established or substantial diaspora exists. A  common language, culture and knowledge of the environment provide leverage for an established migrant or a UK national in the UK over the newly arrived. The vulnerability of the migrant new to his or her surroundings leads to exploitation, and this is often found in the labour market which in many regions of the UK is dependent on a migrant labour force. 15.51 Other prevalent organised crime networks in the UK include Vietnamese, Chinese and, more recently, gangs from Latin America.

Criminal exploitation 15.52 Trafficking for criminal exploitation is often overlooked and misunderstood.Very little data has been recorded on the characterisation of criminal exploitation. Data collection systems are currently inadequate for a complete picture of the scale of criminal exploitation. Domestically we have seen the evolution of different types of criminal exploitation. This is manifesting in county lines drug running, and attached to this is possession of offensive weapons, targeted burglaries and robberies, and serious offences against a person. 15.53 The control mechanisms and grooming processes in many cases are similar, irrespective of the criminality. Routinely they will include physical and sexual 547

15.54  Trafficking operations and modus operandi

violence, debt, dependency, isolation, culture and faith. In some cases, they are used to radicalise victims as well as to control or groom them.Victims are also groomed via social media and online. 15.54 Labour exploitation is the most common type of exploitation of adult victims in the UK, whilst criminal exploitation is the most common exploitation type for children15. It is of note that the highest number of referrals into the NRM for victim identification are British nationals. The second highest cohort are Albanian, Vietnamese and Chinese. The statistics reflect the rising issue of domestic child criminal exploitation of British nationals.

Criminal exploitation and ‘county lines’ 15.55 Over the last six years, the UK’s approach to modern slavery and human trafficking has evolved and expanded. Prior to the introduction of the Modern Slavery Act in 2015, the majority of law enforcement activity focused on sexual exploitation. For example, specialist officers targeting vice activity in Central London began to focus more on addressing the exploitation of those working in the industry. This saw the London Metropolitan Police Clubs and Vice Unit become the Trafficking and Prostitution Unit. In 2012, it evolved again into a dedicated Human Trafficking Unit, investigating a much wider range of exploitation, although trafficking for sexual exploitation received most attention. 15.56 The term ‘county lines’ is one modern slavery modus operandi that has received significant focus in the past two years. As the UK’s understanding of modern slavery evolves, how exploitation is recognised is also developing. The use of children by established gangs to run drugs is an example of that development. Historically, children’s involvement in the transportation and dealing of drugs across the country would have resulted in their being convicted of serious offences. However, law enforcement agencies, along with local authorities and prosecutors, are now recognising the importance of identifying the underlying issues that may have caused a young person to commit such a serious criminal act in the first place. Recognising and investigating the coercion and control used by older gang members resulted in the first trafficking convictions for this particular modus operandi in 2019.

15 NRM referral statistics UK, Quarter 1, 2020 – January to March.

548

Criminal exploitation 15.60

15.57 Professionals, particularly non-government organisations working within child safeguarding, had long been aware of how criminals had used control and coercion to manipulate and exploit children or the vulnerable. However, children caught transporting or dealing drugs on behalf of organised crime networks were until recently routinely arrested and charged with serious criminal offences. 15.58 There are many permutations as to how and why a child can become involved in criminal exploitation. There is not a single community, social standing or familial set-up that gives a clear vulnerability ‘red flag’ to help prevent the exploitation of children. There are, without doubt, certain situations that can make one child more vulnerable than another, but it would be extremely difficult to create a scenario that would remove all risk of a child becoming a victim. Although child poverty plays a significant role. 15.59 The benefits for gangs and organised criminal networks targeting children are numerous. They can be easily coerced and controlled with tried and tested methods. Targeting and using children for the hands-on element of crimes offers senior gang members a cushion of protection from detection by law enforcement agencies and reduces the risk of prosecution. Coercion and control techniques are varied. They can include exerting or introducing the fear of violence, including sexual abuse. Creating a scenario of belonging to a particular group or gang can also be a draw factor. It offers a child a sense of security that may be lacking in his life.The promise of earning significant amounts of money or receiving expensive presents such as phones or designer clothing, particularly for those children with very little, can often be seen as a once in a lifetime opportunity. It is often this financial return for transporting or dealing drugs and carrying out other criminal acts on behalf of the gang that is the greatest draw. This can also be the greatest control tool for exploiters. It is not uncommon for exploiters to orchestrate a robbery or theft of drugs from the child. The child is then told he is indebted to the gang and must pay back the cost of the drugs he lost. Through fear of the consequences, a child can become even more tied to his exploiters and likely to take bigger risks on their behalf. Seeking help from the authorities to escape his situation is often not an option. No matter how exploited a child has become, being labelled an informant or ‘snitch’ by peers can place him and his family at even greater risk of harm. Many do not consider themselves a victim and they may believe their exploiters are their protectors. This means they are unlikely to seek help, disclose their circumstances when faced with prosecution or help bring their exploiters to justice. 15.60 Repeat offending in county lines cases means many children and young adults involved in criminal exploitation, drug running and weapon running will 549

15.61  Trafficking operations and modus operandi

routinely be repeat offenders and the criminality escalates in severity. This is often because victims come to owe larger and larger debts to their exploiter(s) each time they are arrested and drugs, money and criminal property are seized. 15.61 There is currently a fragmented approach in how we protect British national victims. It is difficult to break the exploitation cycle in such cases because the British national victim/offender will have family ties and ties to a particular area and community. It is very difficult to relocate entire families into different areas in the UK to protect them from the organised criminal networks, it is far easier for safeguarding measures to be put in place for foreign national victims. On a practical level, for example, an unaccompanied foreign national minor can be transferred to a different authority within the UK and can be easily rehoused in a suitable and safe location.This is far more challenging when it involves a British national child. 15.62 Criminal exploitation remains a complex issue which requires a case-bycase assessment of the facts of the case. It is imperative that any ‘county lines’ investigation considers and actively investigates the potential exploitation of those involved. 15.63 Examples of criminal exploitation may not be immediately obvious and range from minor non-recordable offences to indictable only offences and those of the most serious nature. Organised criminal networks, and individuals who use human beings as commodities in this manner, continually evolve and adapt their modus operandi to evade the attention of the authorities and to increase profitability. 15.64 Often those who have been criminalised and prosecuted remain in a cycle of exploitation and will go on to be re-trafficked and re-criminalised several times. Criminalising victims in this way significantly reduces the possibility of the victims providing evidence or intelligence against their traffickers, so it is unsurprising that the UK continues to have low conviction rates of trafficking related offences. 15.65 The Law Society Practice Note on criminal prosecutions of victims of trafficking16 lists common indicators of trafficking. Further non-exhaustive lists are provided by UN Office on Drugs and Crime17 (see further indicators at 16 Available at www.lawsociety.org.uk/support-services/advice/practice-notes/criminal-prosecutions-ofvictims-of-trafficking/, last accessed June 2020. 17 See www.unodc.org/pdf/HT_indicators_E_LOWRES.pdf, last accessed 17 December 2017.

550

Trafficking and terrorism 15.66

Chapter 2). Common trafficking indicators in the context of forced criminality are as follows: •

showing signs that their movement has been restricted or monitored;

•

unable to recall facts about identity, location or situation;

•

giving false accounts to authorities;

•

giving the impression they are bonded by debt;

•

being ashamed of having committed a criminal act;

•

being fearful, anxious, withdrawn and/or apathetic;

•

showing signs of physical, emotional or sexual abuse;

•

living in undignified/cramped conditions/malnourishment;

•

speaking as though they have been coached/instructed;

•

not possessing their own passport and/or identity documents or having false documents;

•

going missing from care or missing episodes;

•

hiding phones or sim cards;

•

showing fear for family in country of origin;

•

exhibiting distrust of the authorities;

•

fear of revealing immigration status;

•

often receiving phone calls when at court;

•

pressure to plead guilty to offences and sudden changes in plea;

•

inconsistent about age;

•

inconsistent account;

•

physical signs of abuse such as scarring, malnourishment, migraines, tattoos and branding on the skin, drug and alcohol dependency;

•

evidence of older or other individuals present during the commission of the offence.

Trafficking and terrorism An international perspective 15.66 The United Nations has documented a five-fold increase in the number of children detained in the context of armed conflict since 2012. This increase 551

15.67  Trafficking operations and modus operandi

must be considered against many countries adopting much more aggressive counterterrorism measures. 15.67 In 2019, the UN Security Council Counter-Terrorism Committee Executive Directive (‘CTED’) published a report ‘Identifying and exploring the nexus between human trafficking, terrorism and terrorism finances’. 15.68 In this report it recognised the following: •

Numerous studies have demonstrated a clear nexus between human trafficking and terrorism. Nonetheless, the two phenomena continue to be treated separately.

•

Human trafficking has become increasingly attractive to non-State armed groups – most notably terrorist entities.

•

Member states have little understanding of their vulnerability to the two phenomena and to the potential links between them

15.69 Research into a nexus between trafficking and terrorism has revealed sophisticated recruiting methods used by terrorist groups: •

social media and with propaganda identifying and targeting individuals – intensive contact – moving to private communication where recruiters seek to influence and secure the trust of the individual. Common ‘push/ pull’ factors include: –

limited employment opportunities;

–

family breakdown;

–

social isolation/disenfranchised from wider society/sense of being ‘other’;

–

behavioural issues, psychological problems or behaviours;

– joining the ‘cause’ is necessary – building of a conviction – accompanied increasing isolation (micro-communities) – radicalisation strategies. 15.70 In the context of the Western foreign fighter, for example, recruited by IS, there was a targeted recruitment strategy to recruit women and girls. This was to serve the following purposes: (i)

To promote the creation of a new generation of fighters. 552

Trafficking and terrorism 15.75

(ii) The presence of ‘wives’ and ‘sex slaves’ was used as a means to encourage recruitment of foreign fighters and retention of those fighters. (iii) Often foreign fighters and their intended wives would be deceived about their living conditions, their movement would be restricted, they would be required to produce multiple off-spring and women and girls would be required to re-marry if their husband died. (iv) Defection would be classified as apostacy carrying the death penalty. (v) Isolation methods would be adopted. 15.71 In short, indicators of forced labour were identified in the recruitment and control of Western Foreign Fighters and their wives.

A domestic perspective 15.72 The definition of terrorism is very broad (Terrorism Act 2000, s 1) – by design. The spectrum of criminal conduct encompassed as such is diverse, for example, sending trainers to a ‘brother’ fighter in a war zone; circulating a video or publication; or carrying out an attack in the UK targeting civilians. 15.73 The domestic terrorism legislation does not distinguish between causes, ideologies and the merits of different organisations.Those engaged in an armed struggle fighting for democracy against an oppressive dictatorship can fall within the definition in the same way as it might to apply to ISIS or far-right organisations. 15.74 Terrorism and the activities of those non-state actors engaged in violence for political, religious, or ideological reasons have, in recent years, garnered enormous attention and analysis. 15.75 There are various strands to the UK’s response to acts of terrorism. Diversion is a significant limb of counter-terrorism strategy developed over the years. Whilst frequently controversial, the police and prosecuting authorities purport to engage in a multi-agency approach to identify those who are vulnerable to such recruitment or grooming approaches. There is a recognition that the recruitment strategies go far beyond the development and discussion of political or religious ideas and debates. 553

15.76  Trafficking operations and modus operandi

15.76 Running alongside this counter terrorism strategy are prosecutions for widely defined offences not generally used in other areas of criminal litigation. Upon conviction defendants face very lengthy and often uncertain sentences with an unparalleled degree of intrusion into their lives upon release.

Child soldiers and Western foreign fighters or supporters 15.77 As identified above, at least some groups/movements engaged in what is now defined as terrorism seek to target for recruitment those who are vulnerable and deploy various strategies to do so. 15.78 A distinction can be drawn between those who are ‘trafficked’ and those who join because they are politicised and even radicalised by objective social and economic forces that lead them to (perhaps erroneously but rationally and of their own free will) conclude that the armed struggle in pursuit of a given cause is legitimate. The attraction of idealistic young people to a cause, including one that engages the ‘armed struggle’ is not a modern phenomenon.This distinction becomes more nuanced in respect of children as evident in the county lines cases. Children recruited to fight in movements engaged in terrorist activities are children engaged in a proscribed worst form of child labour (ILO Convention 182). As dealt within in Chapter 1, such activities would amount to exploitation and children cannot consent to their own exploitation.

Mitigation 15.79 R v Boular [2019] EWCA Crim 798 illustrates the limitations and difficulties of diversion as a strategy and provides an insight into the way traffickers can manipulate political and religious beliefs to achieve their ends. 15.80 Safaa Boular’s was a vulnerable 15-year-old girl targeted and radicalised by a female ISIS supporter and then by a much older man who purported to engage her in an online relationship. She was then directed to a male who was in his 30s and based in Syria (though originally from the UK). The groomer purported to be in love with Safaa and she in turn believed herself (despite the two never having met in person) to be married to him. He couched his approach in religious terminology but rapidly the exchanges became sexually explicit. The 554

Trafficking and terrorism 15.83

‘relationship’ had the support and encouragement of Safaa’s mother and sister who subscribed to the views of the groomer. 15.81 The initial intention of the groomer (who was targeting other vulnerable women at the same time) was to recruit Safaa to travel to Syria and join him. When unsuccessful due to the intervention of the authorities, it was alleged by the prosecution that he recruited her for a plot to attack targets in the UK. There were various attempts at diversion by the authorities, but none were successful as it was suggested she had been taught to anticipate the intervention and view it as a hostile act. Safaa was convicted by a jury of two counts of engaging in conduct preparatory to terrorism (contrary to the Terrorism Act 2006, s 5) relating to alleged plans to carry out attacks in Syria and/ or the UK in support of ISIS. She was sentenced to custody for life. 15.82 On appeal, when considering the issue of grooming and exploitation, the Court observed that ‘exploitation is a mitigating factor18’ and that the question for the Court was the extent to which she was ‘vulnerable to exploitation, influence and radicalisation’19’. The appellate court concluded that the original trial judge had given insufficient weight to the twin key factors of Safaa’s age and ‘grooming (or indoctrination) taken in combination … it is necessary to take into account the fact that, throughout her adolescence, she had been in a home which was not only very dysfunctional, but which specifically exposed her to radicalisation … the effect was that she was all the more vulnerable when first the female ISIS recruiter and then Naweed Hussain turned their attentions to influencing her and directing her actions’. Her sentence was reduced by a reduction in her minimum term. She was sentenced to custody for life (a life sentence) with a minimum term of 11 years). 15.83 Safaa’s case was one of the rare cases under the terrorism legislation to come before the courts where a defendant, in terms, advanced a defence based upon the agreed fact that she was groomed and exploited.The appeal court’s judgment reflects the tension between protection of the public and the protection of the victim of grooming.

18 See para 53 of the appeal judgment. 19 See para 55 of the appeal judgment.

555

15.84  Trafficking operations and modus operandi

Common forms of forced criminality 15.84 Throughout England and Wales common offences committed by victims of modern slavery through criminal exploitation are as follows: Sex offences20 Rape Assault by penetration Sexual assault Causing a person to engage in sexual activity without consent Rape of a child under 13 Assault of a child under 13 by penetration Sexual assault of a child under 13 Causing or Inciting a child under 13 to engage in sexual activity Sexual activity with a child Causing or Inciting a child to engage in sexual activity Engaging in sexual activity in the presence of a child Causing a child to watch a sex act Arranging or facilitating commission of a child sex offence Meeting a child following sexual grooming Sexual communication with a child Sexual activity with a child family member Inciting a child family member to engage in sexual activity Sexual exploitation of children

Sexual Offences Act 2003, s 1 Sexual Offences Act 2003, s 2 Sexual Offences Act 2003, s 3 Sexual Offences Act 2003, s 4 Sexual Offences Act 2003, s 5 Sexual Offences Act 2003, s 6 Sexual Offences Act 2003, s 7 Sexual Offences Act 2003, s 8 Sexual Offences Act 2003, s 9 Sexual Offences Act 2003, s 10 Sexual Offences Act 2003, s 11 Sexual Offences Act 2003, s 12 Sexual Offences Act 2003, s 14 Sexual Offences Act 2003, s 15 Sexual Offences Act 2003, s 15A Sexual Offences Act 2003, s 25 Sexual Offences Act 2003, s 26 Sexual Offences Act 2003, s 47

20 It is common that those trafficked for the purpose of sexual exploitation will graduate into senior roles while still under the control of their trafficker. This is particularly common in females trafficked from countries such as Morocco, Nigeria and Eastern Europe. Many may incite sexual activity and have a role within a brothel, such as grooming others. Sex offences are also associated with other human trafficking and modern slavery offences, where victims will be forced into the trafficking of others. Such offences are excluded offences to an MSA 2015, s 45 defence (see Chapter 5 for full Sch 4 excluded offences).

556

Common forms of forced criminality 15.84

Causing or inciting sexual exploitation of a child Controlling a child in relation to sexual exploitation Arranging or facilitating sexual exploitation of a child Causing or inciting prostitution for gain Controlling prostitution for gain Paying for sexual services of a prostitute subjected to exploitative conduct Trafficking people for sexual exploitation Keeping a brothel Soliciting Theft offences21 Theft Robbery Burglary Burglary with intent Aggravated burglary Abstracting electricity22 Going equipped Handling stolen goods Begging23

Sexual Offences Act 2003, s 48 Sexual Offences Act 2003, s 49 Sexual Offences Act 2003, s 50 Sexual Offences Act 2003, s 52 Sexual Offences Act 2003, s 53 Sexual Offences Act 2003, s 53A Sexual Offences Act 2003, s 59A Sexual Offences Act 1956, s 33, s 33A Street Offences Act 1959, s 1 and Sexual Offences Act 2003, s 51A Theft Act 1968, s 1 Theft Act 1968, s 8 Theft Act 1968, s 9 Theft Act 1968, s 9(1)(a) Theft Act 1968, s 10 Theft Act 1968, s 13 Theft Act 1968, s 25 Theft Act 1968, s 22 Vagrancy Act 1824, s 3

21 Victims are used to commit theft offences, ranging from pick pocketing to robberies and burglaries. Commonly children of Roma descent will be used to pick-pocket for organised gangs and by elder family members. There is a significant discrepancy between the number of children identified by authorities as victims of trafficking and the number who have been charged with dishonesty offences such as theft, pick-pocketing. It is also common for Eastern European victims who are trafficked for forced labour to also be forced to collect and provide fraudulent charity bag and money collections, and be involved in the theft of metals from industrial sites. 22 Commonly associated with cannabis production. 23 Commonly Roma organised crime networks will use younger family members, often minors, to beg. Such cases are often unrecorded, as individuals are not arrested.

557

15.84  Trafficking operations and modus operandi

Fraud offences24 Fraud by false representation Fraud by failing to disclose information Possession or control of articles for use in fraud Making or supplying articles for use in fraud Obtaining services dishonestly Making a false instrument (forgery) Copying a false instrument Using a false instrument Using a copy of a false instrument Having custody or control of specified kinds of false instruments Making or having custody etc of machines, paper etc for making false instruments of that kind Possession of false ID document Possession of false ID document with intent Counterfeiting notes or coins Passing, tendering or delivering counterfeit notes or coins Custody or control of counterfeit notes or coins

Fraud Act 2006, s 2 Fraud Act 2006, s 3 Fraud Act 2006, s 6 Fraud Act 2006, s 7 Fraud Act 2006, s 11 Forgery and Counterfeiting Act 1981, s 1 Forgery and Counterfeiting Act 1981, s 2 Forgery and Counterfeiting Act 1981, s 3 Forgery and Counterfeiting Act 1981, s 4 Forgery and Counterfeiting Act 1981, s 5(1) Forgery and Counterfeiting Act 1981, s 5(3) Identity Documents Act 2010, s 4 Identity Documents Act 2010, s 6 Forgery and Counterfeiting Act 1981, s 14 Forgery and Counterfeiting Act 1981, s 15 Forgery and Counterfeiting Act 1981, s 16

24 Victims will often be charged with possession of false passports or identity documents or because they have made an illegal entry. It is common that fraudulent identity documents will then be used to open bank accounts and commit various forms of fraud, including benefit fraud. Traffickers will apply for benefits or arrange for a victim to take up legitimate work under a false identity. The bank account that their official salary will go into from a legitimate employer is commonly only accessible to the trafficker and the victim will receive minimal or no money for their work.

558

Common forms of forced criminality 15.84

Making or having materials and implements for counterfeiting25 Importation and exporting of counterfeit notes or coins Obtaining services dishonestly Dishonest representations to obtain benefits Shoplifting Criminal damage26 Criminal damage Aggravated criminal damage Threats to destroy or damage property Possession with intent to destroy or damage property Offensive weapons27 Possession of a firearm or ammunition without certificate Possessing shot gun without certificate Possessing prohibited weapons or ammunition Possessing prohibited weapons designed for discharge of noxious liquid etc Possessing firearm disguised as other object Possessing other prohibited weapons Possessing firearm with intent to cause fear of violence

Forgery and Counterfeiting Act 1981, s 17 Forgery and Counterfeiting Act 1981, s 20, s 21 Fraud Act 2006, s 11 Social Security Administration Act 1992, s 111A, s 112 Magistrates’ Court Act 1980, s 22A Criminal Damage Act 1971, s 1(1) Criminal Damage Act 1971, s 1(2) Criminal Damage Act 1971, s 2 Criminal Damage Act 1971, s 3

Firearms Act 1968, s 1(1) Firearms Act 1968, s 2(1) Firearms Act 1968, s 5(1)(a), (ab), (aba), (ac), (ad), (ae), (af), (c) Firearms Act 1968, s 5(1)(b) Firearms Act 1968, s 4(1A)(a) Firearms Act 1968, s 5(1A)(b), (c), (d), (e), (f), (g) Firearms Act 1968, s 16A

25 Victims may be forced to produce and sell counterfeit goods, such as coins, DVDs, counterfeit cosmetics and designer products. Frequently this offence involves Eastern European, Vietnamese and Chinese national victims. 26 It is not uncommon for victims who have been re-trafficked to be prosecuted for criminal damage as a result of breaking electronic monitoring tags off, which they may be subject to whilst on bail and licence. Victims may also be charged with damaging property while trying to escape a trafficking situation. Such offences are listed in Schedule 4 excluded offences to defence under the MSA 2015, s 45 (see the Annex to Chapter 5 for the full schedule). 27 It is common for victims, once they have arrived in the UK, to be used to transport weapons for their traffickers. This is commonly associated with running drugs and county lines cases, see fn 21.

559

15.84  Trafficking operations and modus operandi

Carrying firearm or imitation in public place Possession of offensive weapon Possession of a bladed article Minding a dangerous weapon Drugs offences28 Possession of controlled drug Production or supply of controlled drug Being concerned in the supply of controlled drug Possession with intent to supply controlled drug Importing/exporting controlled drug Cultivation of cannabis Supplying articles for administering or preparing controlled drug Producing psychoactive substance

Firearms Act 1968, s 19 Prevention of Crime Act 1953, s 1 Criminal Justice Act 1988, s 139(1) Violent Crime Reduction Act 2006, ss 28, 29 Misuse of Drugs Act 1971, s 5 Misuse of Drugs Act 1971, s 4 Misuse of Drugs Act 1971, s 4(3) (b) Misuse of Drugs Act 1971, s 5 Misuse of Drugs Act 1971, s 3 Misuse of Drugs Act 1971, s 6 Misuse of Drugs Act 1971, s 9A

Psychoactive Substances Act 2016, s 4 Supplying or offering to supply Psychoactive Substances Act psychoactive substance 2016, s 5 Possession of psychoactive substance with Psychoactive Substances Act intent to supply 2016, s 7 28 It is common that victims will be put to work in domestic houses adapted for the purpose of drug production, commonly cannabis cultivation. This involves extraction of electricity and use of hydroponic equipment to cultivate and grow cannabis plants. It is common for Chinese and Vietnamese nationals to be trafficked for this purpose. Other common drugs offences include drug importation. Many victims will be trafficked from their country of origin for the purpose of couriering drugs into the UK or be used as a mule or courier throughout their destination country. Domestic national victims, often minors, are used in this way to transport drugs and weapons throughout one jurisdiction. The CPS guidance on Human Trafficking, Smuggling and Slavery guidance on running county lines cases gives the following guidance: ‘Offending through “County Lines” is a national issue involving the exploitation of vulnerable children and adults by violent gang members in order to move and sell crack and heroin across the country, often associated with city-based organised crime gangs. The victims are often children, aged 14 to 17 years, who are groomed with money, gifts or through relationships and forced to carry out day to day dealing. Children as young as 11 years of age have been reported as being recruited.Violence is used against drug users to coerce them to become runners, enforce debts, and use their accommodation as an operating base. Prosecutors are encouraged to consider all available charges when considering a prosecution in connection with County Lines offending, including the Modern Slavery Act in circumstances where there has been deliberate targeting, recruitment and significant exploitation of young and vulnerable people. Prosecutors should, however, be alert to the challenge of securing a conviction for a Modern Slavery Act offence.’

560

Common forms of forced criminality 15.84

Money laundering offences29 Concealing etc criminal property

Proceeds of Crime Act 2002, s 327 Proceeds of Crime Act 2002, s 328 Proceeds of Crime Act 2002, s 329

Money laundering Acquires, uses or has possession of criminal property Immigration offences30 Entry without leave Obtaining leave by deception Facilitating unlawful immigration Failure to produce immigration documents Failure to comply with requirement to provide information required to obtain travel documents Illegal working Offences of human trafficking, slavery and forced labour31 Slavery Human trafficking Driving offences32 Dangerous driving Driving or being in charge when under the influence of drink or drugs Using a vehicle in a dangerous condition Driving otherwise than in accordance with a licence

Immigration Act 1971, s 24 Immigration Act 1971, s 24A Immigration Act 1971, s 25 Asylum and Immigration (Treatment of Claimants) Act 2004, s 2 Asylum and Immigration (Treatment of Claimants) Act 2004, s 35 Immigration Act 1971, s 24B

Modern Slavery Act 2015, s 1 Modern Slavery Act 2015, s 2 Road Traffic Act 1988, s 2 Road Traffic Act 1988, s 4 Road Traffic Act 1988, s 40A Road Traffic Act 1988, s 87

29 Commonly associated with those who have been forced into prostitution and charged with trafficking and controlling prostitution offences, victims are often involved in money laundering offences in these circumstances. 30 Victims who are trafficked from outside the UK will frequently be charged with numerous immigration offences. If victims travel with an agent, they are likely to have possession of immigration documents for only a short period. Those who travel with legitimate documents commonly have their documents held by traffickers and then will over-stay visas or have their passports expire. 31 See fn 22. 32 European national victims are commonly trafficked to the UK for forced labour exploitation and frequently have car insurance policies and vehicles registered in their names and/or with fraudulent documents. They may also be forced to drive vehicles without proper driving licences or insurance, and will commit numerous road traffic offences as a result.

561

15.84  Trafficking operations and modus operandi

Driving while disqualified Using vehicle without insurance Forced and sham marriages33 Forced marriage

Road Traffic Act 1988, s 103 Road Traffic Act 1988, s 143 Family Law Act 1996, s 63CA; Anti-Social Behaviour Crime and Policing Act 2014, s 121 Criminal Law Act 1977, s 1(1)

Sham marriages

Conspiracy to facilitate breach of immigration law. Immigration Act 1971, s 25(1) Assisting unlawful immigration (facilitation)

33 These offences commonly involve EU nationals trafficked to marry non-EU nationals in order for the latter to gain residency; traffickers usually obtain the payment for the marriage.

562

16 Ethics and professional conduct Felicity Gerry QC and Philippa Southwell 16.1 Legal representatives acting for potential victims of trafficking (‘PVOTs’) (including all those who are possible victims of exploitation) regularly encounter difficult issues involving professional ethics and conduct. Legal representatives have to act with considerable caution if they identify that their client is or may be a victim of trafficking (‘VOT’). At a minimum, the following factors need to be considered.

Whether to refer a client through the National Referral Mechanism 16.2 With a client PVOT accused of a criminal offence, the decision to refer him via the National Referral Mechanism (‘NRM’) involves ethical considerations. Exposing a VOT’s traffickers may involve a significant risk to the VOT, which will need a careful approach. Here the client’s age is important. Consent is required for the referral if the client is over 18 years old. Consent is not required for any client under the age of 181. If the client’s age is not clear, it will usually be appropriate to accept the client’s instructions as to his age. Consideration may need to be given as to motivation to misstate age. Age may have to be revisited with the client if an age assessment is undertaken and it is found that the client is an adult (see Chapter 3 for age assessments). A defence under the Modern Slavery Act 2015 (‘MSA  2015’) does not require a NRM referral, but the consequences of such a referral may provide evidence to support the defence and/or a review of any decision to prosecute2. Gathering such evidence may be particularly difficult for defence lawyers, particularly where it may exist as intelligence concerning the operation of a particular trafficking gang, so the balance will be in favour of referral3. Lawyers should bear in mind that evidence 1 The NRM is a framework for identifying victims of human trafficking and ensuring they receive the appropriate protection and support. It was implemented in 2009 for VOTs to give effect to obligations under ECAT; see Chapter 2. 2 See CPS guidance, Human Trafficking, Smuggling and Slavery (updated April 2020), available at https://www. cps.gov.uk/legal-guidance/human-trafficking-smuggling-and-slavery, last accessed 14 September 2020. 3 See also Home Office, Victims of modern slavery – Competent Authority guidance (2  December 2019), available at https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_ data/file/828756/victims-modern-slavery-competent-auth-v8.0.pdf, last accessed 13 February 2020.

563

16.3  Ethics and professional conduct

collated, including confession evidence, in the course of a NRM referral may be admissible in a subsequent criminal trial and, as noted in Chapter 7, raising trafficked status on a court form can be admissible in evidence. 16.3 There are routine misunderstandings by lawyers regarding consent and NRM referrals. While a child PVOT does not have to give his consent to be referred into the NRM (see Chapter 2 for full details on the operation of the NRM), it is extremely important that for both adult and children PVOTs, consent should be obtained by a legal representative initiating contact with a first responder as a precursor to a NRM referral. Disclosing information to a first reconsider without consent is likely to breach the duty of to keep the affairs of a client confidential4.

How to advise a client in a police interview 16.4 Ethical issues arise when there is evidence or information or where a client gives instructions to the effect that the client has been trafficked. This can include being a trafficked perpetrator involved in trafficking others within a criminal network5. Guidance issued by the National College of Policing after the implementation of MSA 2015 in relation to the victim/perpetrator paradigm is that: ‘if a person is arrested and so enters the criminal justice system as a perpetrator, and officers discover through the police interview under caution that the person committed a modern slavery offence through coercion and may also be a victim, the interview should continue and evidence should be obtained. On conclusion of the interview the person should be referred through the NRM if they consent’. For further consideration of ethical issues at the police station stage, see Chapter 6. 16.5 The National College of Policing notes that the roles of victim, witness and suspect can be interchangeable in this context6. Legal representatives will also need to consider whether disclosure of coercion in committing a trafficking offence could affect the decision to charge. 4 See para 6.3 of Code of Conduct for Solicitors. 5 A  Baxter, ‘When the Line between Victimization and Criminalization Blurs: The Victim-Offender Overlap Observed in Female Offenders in Cases of Trafficking in Persons for Sexual Exploitation in Australia’ (2019) Journal of Human Trafficking 1-12, 3. 6 P Ahluwalia, ‘Poacher Turned Gamekeeper’ (2015) 3 CBQ 5.

564

Privilege and confidentiality issues 16.9

Privilege and confidentiality issues 16.6 Generally, the law of England and Wales can be summarised as follows: Legal advice privilege protects written or oral confidential communications between a lawyer and a client for the purpose of giving or receiving legal advice. Litigation privilege protects confidential written or oral communications between client or lawyer, on the one hand, and third parties, on the other, or other documents created by or on behalf of the client or his lawyer, which come into existence once litigation is in contemplation or has commenced and which is for the dominant purpose of use in the litigation. 16.7 There is also a privilege against self-incrimination. The rule of privilege against self-incrimination states that no person is bound to answer any question if the answer would have a tendency to expose him to any criminal charge or penalty under the law. The test is whether the relevant criminal charge or penalty is reasonably likely to be pursued, and whether the answer would have a tendency to incriminate the accused. It can also apply to incrimination of a spouse/civil partner and to the production of documents. There must be a ‘real and appreciable’ danger of incrimination rather than a mere possibility for the privilege to apply. 16.8 This is only a simple outline of what can be a potential minefield in human trafficking/modern slavery cases. Privilege issues were considered in Director of The Serious Fraud Office v Eurasian Natural Resources Corporation Ltd7 where the Court of Appeal made plain that once confidentiality is lost, so is privilege. In that case, it defined a narrow lawyer-client group. It is notable for present purposes that the judge at first instance gave examples of what may qualify as ‘betraying the trend of legal advice’, namely: the lawyers’ qualitative assessment of the evidence, thoughts about its importance or relevance to the inquiry, or indications of further areas of investigation that might be fruitful in light of what the witness had said (although the latter on its own would not suffice). 16.9 Issues of privilege in trafficking cases are not straightforward and require conscious engagement so that they are properly considered, particularly when confronting whether or not it is appropriate to waive privilege.

7 [2018] EWCA Civ 206.

565

16.10  Ethics and professional conduct

16.10 An individual may set out details of his experiences of exploitation in some court proceedings (e.g. immigration proceedings) which are needed in support of issues arising in another jurisdiction (e.g. criminal proceedings). For example, in a criminal appeal, fresh evidence may arise from what has been related by a VOT to his immigration lawyers. Disclosing that material may constitute a waiver of privilege. A decision as to whether or not to waive privilege can be particularly complex where it involves a confession to a criminal offence. The client’s informed consent needs to be obtained to ensure that he knows the potential implications of waiver. 16.11 Separately, lawyers should also bear in mind that discussions with third parties such as NGOs assisting with the protection of VOTs may not be privileged. 16.12 In the Court of Appeal Criminal Division, it is likely that an appellant seeking to appeal on the ground that his lawyers overlooked or mishandled aspects of his trafficking circumstances or the implications of them in the criminal proceedings will be required to waive privilege in order to comply with requirements in R v McCook8 and R v Grant-Murray9. This is addressed further in Chapter 9. 16.13 VOTs will often have numerous parallel or historical legal proceedings, such as immigration, public law challenges criminal, family and civil claims. Dialogue should be had with other legal teams acting in these proceedings and consideration should be given when sharing material as to whether it is privileged, disclosable and whether it may be used without a court order. 16.14 Documents from Social Services, the Home Office, the National Crime Agency, criminal and immigration proceedings should be obtained, so as properly to assess all aspects of a client’s case. Lawyers should be mindful of unauthorised disclosure, particularly of documents pertaining to family proceedings where s 12 of the Administration of Justice Act 1960 and Rule 12.73 of the Family Procedure Rules 2010 apply. The disclosure of such documents in those circumstances would be a contempt of court unless the Family Court has given permission for the disclosure. In the case of R v Nasrullah Mursalin10 a barrister was sentenced to six months’ imprisonment for contempt of court 8 [2014] EWCA Crim 734. 9 [2017] EWCA Crim 1228. 10 [2019] EWCA Civ 1559.

566

Privilege and confidentiality issues 16.15

for disclosure of family proceedings documentation in subsequent immigration proceedings11. 16.15 Victims of human trafficking and modern slavery do not always identify as such and do not make disclosures. They often do not trust authorities and/or their own legal representatives. It is also common that a client will have been coached by his traffickers to give a particular account of his trafficking history. There may be circumstances where a client will display or make disclosures regarding exploitation. There are no specific exceptions to the duty of confidentiality12. However, it is possible that where a child reveals information which indicates continuing sexual or other physical abuse, but refuses to allow such disclosure of information to an appropriate authority, a conflict may arise between the duty of confidentiality and the solicitor’s ability to act with integrity (principle 2 of the SRA Handbook). Whether the solicitor’s duties conflict will depend on how material the information in question is. It must be considered whether the threat to the child’s life or health, both mental and physical, is sufficiently serious to justify a breach of the duty of confidentiality13.

11 There is an invaluable table in Practice Direction 12G – Communication of Information – of the Family Procedure Rules practice directions, which sets out who is allowed to communicate what information or document relevant to family proceedings to whom. 12 See Bar Standard Book CD2 and SRA Chs 4 and 3. 13 Law Society Practice Note, Criminal prosecutions of victims of trafficking, available at www.lawsociety.org.uk/ support-services/advice/practice-notes/criminal-prosecutions-of-victims-of-trafficking/, last accessed 14 February 2020.

567

17 Investigating trafficking and exploitation offences Caroline Haughey OBE, QC, Phil Brewer, Michelle Brewer and Ben Douglas-Jones QC

17.1 By their very nature modern slavery, exploitation and trafficking offences are complex and challenging. Often the complainant is reluctant to engage, allegations can be over a lengthy period and the identification and recovery of evidence difficult. A  central principle within the Europe Convention on Action against Trafficking in Human Beings (‘ECAT’), the EU Trafficking Directive and ECHR, Art 4, is that self-identification by a victim is not a pre-requisite to an investigation into their trafficking1. Where there is a credible suspicion2 of trafficking, there should be an ECHR, Art 4 compliant criminal investigation (see below).

The complainant 17.2 The allegation can come to police attention in a variety of ways, including: •

through the complainant himself – upon recovery from his situation or as an accused who discloses that his alleged criminality derived from being a victim of exploitation or criminality;

•

through intelligence gathering;

•

through a proactive and/or reactive operation;

•

through a safeguarding report; or

•

through a member of the public reporting a matter to the police.

17.3 Complainant care is covered to a large degree by the statutory guidance to the Modern Slavery Act 2015 (‘MSA 2015’) for England and Wales published by 1 See EU Trafficking Directive at preamble (15) and Rantsev v Cyprus and Russia (App No 25965/04). 2 See R (on the application of TDT, by his litigation friend) v Secretary of State for the Home Department & Equality and Human Rights Commissioner intervening [2018]  EWCA  Civ 1395 for a judicial analysis of ‘credible suspicion’

569

17.4  Investigating trafficking and exploitation offences

the Home Office3.The guidance also provides clear definitions and examples of the relevant terms and should be the starting point for all practitioners. 17.4 The guidance also reminds of the statutory obligation to notify the Home Office when a potential victim of modern slavery/human trafficking has been identified. This can be achieved either by reference to the National Referral Mechanism (‘NRM’) or if the potential victim refuses to engage with the NRM by direct notification to the Home Office via the Modern Slavery Portal4.

Investigatory interviews5 17.5 Complainants can be reluctant to engage with the authorities, ashamed to admit that they are6 the victims of exploitation. They may not recognise, through their vulnerabilities such as their cultural or social background, mental health, alcoholism etc, that their conditions are exploitative or that they have been trafficked, or they may consent to the conditions in which they are trafficked or enslaved, e.g. sex workers being exploited in brothels7. As set out in Chapter 8, the psychological impact of trafficking can: •

result in PTSD/depression/anxiety disorders;

•

stem from multiple forms of maltreatment such as physical, emotional, and sexual abuse;

•

result in victims finding it extremely difficult to trust adults (children) or individuals in authority,

•

stem from exploitation from an early age or for a prolonged period likely to result in victims suffering complex, long-term mental health problems;

•

stem from the effect of trauma on the brain.

3 Home Office, Modern Slavery Act 2015 – Statutory Guidance for England and Wales (v 1.0, 24 March 2020), available at: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_ data/file/875281/March_2020_Statutory_Guidance_under_the_Modern_Slavery_Ac_2015.pdf, accessed 5 August 2020. 4 See https://www.modernslavery.gov.uk/start, accessed 5 August 2020. 5 In the writing of this section we are grateful for the assistance of Kalvir Kaur, Legal Advisor at Freedom from Torture. 6 Or perceive that they have allowed themselves to be. 7 Consent in sex trafficking is irrelevant, however, note the ‘consent’ issue in labour exploitation cases – freely given consent as opposed to least worst option consent is explored further in R v Nguyen,Tran and Nguyen [2019] EWCA Crim 670; R v Rooney [2019] EWCA Crim 681; and R v K, W, A [2018] EWCA Crim 1432. – county lines/consent.

570

Investigatory interviews 17.10

17.6 The primary focus of any investigation should be on obtaining an account from the complainant by the most appropriate route for them. Complainants in MSA 2015 cases are ‘vulnerable’ for the purposes of special measures8 and accounts can be obtained by means of pre-recorded Achieving Best Evidence (‘ABE’) interviews or s 9 statements. It is vital to ensure that when such accounts are being obtained, and particularly when there are multiple accounts, that complainants are separated from each other to prevent allegations of witness contamination. 17.7 In larger operations, when dealing with multiple complainants of the same nationality, care should be taken in selecting interpreters who speak the correct dialect and are otherwise independent of the investigation. 17.8 Cultural awareness and understanding are also vital: isolated foreign national complainants will often return to the very people they accuse of exploiting them as they are considered the closest thing to continuity and family in this country. Investigation officers should initiate the involvement with appropriate charities and organisations to ensure that the complainant does not feel isolated – this is particularly important with adolescent complainants in any form of exploitation who may view their perpetrators as the closest thing they have to a family. Effective working relationships between other agencies ensures that the number of accounts that complainants are required to give is reduced, the trauma of their experience is also lessened, and the complainant is subsequently more likely to commit to participating in the criminal justice system 17.9 Obtaining the account itself provides its own challenges. Often complainants are recruited and/or targeted because of their vulnerabilities – alcoholism, mental health issues, financial desperation; the same vulnerabilities which may impact on recollection and understanding of what has occurred. 17.10 Experience has shown that, when obtaining such accounts, following a chronological approach has been most successful. Questions should be shorter and tailored to a complainant’s demeanour and educational needs and ‘memory coat hangers’ – birthdays, significant family events, significant public events e.g. Christmas etc – should be used as triggers.

8 Youth Justice and Criminal Evidence Act 1999, s 33(6)(d).

571

17.11  Investigating trafficking and exploitation offences

17.11 As a matter of course, those who make allegations should be referred via the NRM (adults must consent) and any notes made of the account upon which the Single Competent Authority makes its finding obtained for the purposes of potential disclosure should the matter progress to trial. The same approach should be adopted with any of the NGOs or other agencies involved as any account provided may become relevant if the credibility of the complainant is the matter in issue.

Children 17.12 For children, ‘… aside from the physical, sexual or emotional abuse they may have suffered, many trafficked children have been forced by their traffickers to learn a story to tell if they are questioned. Many children and young people are under threat directly themselves, or may have family members elsewhere who are under threat, or perceived threat. Children and young people may not know at this stage who they can trust. As a result, they may give information that is later contradictory to information provided initially. This is not necessarily an indication that a child or young person is trying to deceive social workers, and should not be considered as such.’9 17.13 The College of Policing guidance on modern slavery directed: ‘Child victims of modern slavery are amongst the most vulnerable, the easiest to control and the least likely to admit to their situation. They may not show obvious signs of distress … Parents and relatives may also be involved in their exploitation. Children are extremely loyal to their parents. So it is unlikely they will seek protection against such people … [They] may [be] wary of all adults, including police officers … [and] may therefore be reluctant to disclose any information in an interview until they have built a trusting relationship …’ 10

9 ADCS, Age Assessment Guidance (October 2015). 10 College of Policing Authorised Professional Practice.

572

PEACE model of investigatory interviewing 17.15

PEACE model of investigatory interviewing 17.14 The PEACE Model of investigative interviewing was developed in the early 1990s as a collaborative effort between law enforcement and psychologists in England and Wales. The model takes a conversational, non-confrontational approach to getting information from an investigation interview subject. With trafficking investigations, it is necessary to consider adapting the PEACE framework.

Planning and preparation 17.15 A pre-interview plan is vital in identifying the areas that need to be covered (see below). An interviewer needs to understand the following matters prior to embarking on the interview: •

likely ‘push and pull’ factors that led to the complainant being a target of trafficking (individual vulnerability, familial vulnerability, socio-economic vulnerability, structural vulnerability, and situational vulnerability);

•

if a service provider is supporting the complainant, investigators should gather information to understand any triggers for the complainant that may impede any interview (e.g. colours, clothing, the layout of the room etc);

•

the victim’s mental health as this will have an impact on recollection (see Chapter 8);

•

what, if any, special measures may be needed before the interview begins (e.g. an intermediary etc);

•

the process of interviewing the victim, collecting corroborating evidence and investigating perpetrators will be more effective when the victim has continued presence in the country (if a foreign national) and the importance of accessing care and protection from a service provider as early in the process as possible;

•

the importance of avoiding multiple interviews, as this risks re-traumatising the victim, which can result in conflicting accounts;

•

gender issues can significantly affect the interviewer’s capacity to obtain information and they need to be considered in advance of the interview. This is irrespective of the gender of the complainant (i.e. some male victims of trafficking who have been raped may find it difficult to make disclosure to a male interviewer); 573

17.16  Investigating trafficking and exploitation offences

•

the background to the trafficker’s modus operandi and the dynamics of the trafficking (e.g. if the complainant is Nigerian and the trafficker(s) are Nigerian or from another west African country, consider whether JuJu was used to maintain silence; or if the complainant is Vietnamese, consider whether he is in a current debt bond and whether there is a risk of the family in Vietnam being targeted if evidence is given against the traffickers).

17.16 Other pre-interview considerations, which are primarily relevant to children but could also be relevant to adults, should include: •

the physical location and layout of the interviewing room;

•

positioning of parties;

•

making the environment free from distracting noises (e.g. a ticking clock) and smells;

•

avoiding distracting or blinding light;

•

ensuring refreshments are available;

•

the presence of others;

•

the use of an interpreter.

It is also important to be culturally aware of the individual being interviewed.

Engage and explain 17.17 The goals of the interview should be explained. It is advisable to begin with topics designed to set the complainant/witness at ease. It is also important to personalise the interview. In particular, in respect of children (and in some cases, adults), the following points should be considered as good practices: •

introducing oneself by name and greeting the child by name;

•

wearing informal clothes;

•

beginning with a brief conversation on a totally unrelated issue;

•

adapting the communication level to that of the witness/interviewee;

•

emphasising that the witness/interviewee should describe everything that comes into his or her mind;

•

explaining that the appointment will require concentration; 574

PEACE model of investigatory interviewing 17.20

•

discouraging the child from guessing or inventing things when he does not remember or does not know;

•

transferring control;

•

avoiding filtering;

•

explaining that the witness/interviewee will be asked details of the event;

•

asking the witness/interviewee to describe all that comes to his mind.

17.18 Consider the language used: •

Ask short, simple questions. Avoid ‘front-loading’, e.g. ‘I  suggest to you that …’; ‘I put it to you …’; ‘I believe you told us …’.

•

Avoid phrases such as ‘Do you follow?’ at the end of questions.

•

Who/what/where questions are usually most easily understood.

•

In respect of children, or those with poor mental health, complex questions are likely to result in incorrect or ‘I don’t know’ responses, even though the individual does know the answer and could respond if the question were phrased simply.

•

Present one topic at a time.

•

Avoid closed questions (requiring or suggesting yes or no answers).

•

Avoid questions suggesting the answer.

•

Avoid ‘Do you remember … ’ questions.

•

Avoid forced choice questions.

17.19 In respect of children, the following concepts are important: •

It is necessary to probe into the child’s understanding and use of words.

•

Children may struggle to locate the correct words to describe their experiences.

•

Without probing, the possibility will remain that an accurate account has not been elicited.

•

If the child understands the purpose of the questions, he is more likely to be engaged.

17.20 For both children and adults, it is important to be culturally aware. Specifically, in respect of children it should be understood that: 575

17.21  Investigating trafficking and exploitation offences

•

a child’s status in his home and in wider society varies;

•

cultural differences may be misinterpreted, such as: –

lack of eye contact;

–

deference to adults;

–

not referring to adults by their name.

Account and challenge 17.21 The account sought should be an open narrative at the outset.This can be then reviewed, and matters may be clarified with the victim. The fine grain detail for exploration will include: •

Travel: how the traffickers were recruited; by whom? what was understood to be the offer vis-à-vis travel? what route was to be taken? what means of travel was to be used? what route was subsequently taken? who arranged the journey? how was it arranged? who controlled the journey? when did they leave? from where did they depart? when did they arrive? what was their point of arrival? who met them? how did they get to their final destination? who controlled that address? were they were moved at any point after arrival? if so, for what purpose? by whom? how? and who arranged it? etc.

•

Exploitation: what did the traffickers do? who arranged the travel? how were they paid? by whom? how much? how much of it did they keep? where did they live? in what conditions did they live? was this what they were offered when they were recruited? was this voluntary? did they consent to the control/exploitation/employment, etc? what alternatives were there? were any threats made? were identity documents controlled? were bank accounts obtained or controlled?

•

Intelligence to assist in financial investigations: other businesses: who held the money? who was renting the property(ies)? etc (see below).

17.22 Interviewers/questioners should be aware that when a child is activating imaginative pictures of events: •

every single act of evoking a new representation interrupts the process of memory scanning and requires some mental effort;

•

hopping from representation to representation may seriously reduce the amount of information recalled by the child. 576

Investigations beyond the complainant’s account 17.25

Closure 17.23 Bringing the interview to a close should encompass the following: •

briefly summarising what the complainant/witness has said;

•

explicitly telling the witness to correct the interviewer if he has missed anything out or has got something wrong;

•

thanking the complainant/witness for his time and effort and asking if there is anything more he wishes to communicate;

•

explaining the next steps.

Investigations beyond the complainant’s account 17.24 Investigations and subsequent prosecutions do not rest exclusively on the reliability or indeed the existence of an account from the complainant.The fact of someone being found in specific circumstances (even to which he consents) may be sufficient to amount to trafficking and/or exploitation11. Vital to any investigation and prosecution is corroborative evidence – caveated with the concept of the absence of some evidence being equally compelling. Taking an investigative decision to focus on corroborative evidence capable of proving the case has significant benefits. It offsets the total reliability on individuals, who may be hostile to the prosecution or who may be in fear of the repercussions of having to give evidence in court. It will also reduce the risk of a trial collapsing if victims or witnesses can no longer be located.

Other lines of enquiry 17.25 Most members of society in the UK have a social or electronic footprint. For a child this may be his NHS records, education, Department for Work and Pensions (‘DWP’) or local authority records – the absence of the existence of these can be as compelling as the existence of them – raising the question if it does not exist why not?

11 R v Nguyen,Tran and Nguyen [2019] EWCA Crim 670; R v K,W, A [2018] EWCA Crim 1432.

577

17.26  Investigating trafficking and exploitation offences

17.26 The same test can be applied to adults – an absence of social media or absence from an otherwise active social media account can lend support to someone being in a non-consenting/controlled/exploitative environment. Absence of medical, social services, employment, DWP, financial records, etc12 or a pause in activity gives rise to the same question – if not, why not? 17.27 Corroborative evidence can be found in a variety of forms and ‘best evidence’ is usually found from objective sources such as banks, utility providers, phone records and so forth, eg: •

Travel records – Who travelled and when, who made the booking, in what name and how was it paid for, together with any other information regarding the journeys of any of the complainants – this is of course applicable to any form of transport used, e.g. flight records etc. Checks should also be done at each port of entry and with the ferry companies to ascertain what other material that they are in possession of, e.g. the manifest. It is particularly helpful to have booking payment details as often this will show an element of involvement required under the trafficking legislation.

•

Banking – This should include all account opening documents and the transaction history. This is relevant to demonstrate who was accessing which account and when. It also assists in demonstrating which account was being used to funnel the monies for other fraudulent activity being undertaken on the account(s). It is not unusual that some form of fraud is perpetuated as a means of control, e.g. wage diversion, loan fraud, money laundering, DWP fraud etc – and it is when such financial analysis is undertaken that further linked criminality is often disclosed. Statements from the DWP and local authority confirming what benefits each of the complainants were in receipt of, who completed the forms to obtain those benefits and which accounts were in receipt of those benefits is also useful corroborative material, particularly when the same phone number is used to claim benefits for multiple apparently unrelated individuals. It is also suggested that Experian checks should be conducted on each complainant as often the perpetrators open accounts and register with utilities companies in complainants’ names in order to conduct further fraudulent activity and/or exert control over the account. Conducting the Experian check may be a means of identifying what, if any, loans have been taken out in complainants’ names and for what other purposes their identities have been used, as well as revealing other connected addresses.

12 Similar lines of investigation are explored in ‘proof of life enquiries’.

578

Investigations beyond the complainant’s account 17.27

•

CCTV from banks – Where possible this should be obtained to cover the account opening as well as any footage showing the use of victims’ accounts via cash machines – this can be strong corroborative evidence of account control.

•

NI numbers – These are often obtained under the direction of the perpetrators and the contact details provided can either corroborate the complainant’s account based on dates and addresses or disclose further addresses.

•

Housing – Information pertaining to control of an address can be compelling – who rents the address; who pays rent; and how; is the address a multiple occupancy address? Tenancy agreements are often taken out in complainants’ names but not verified with their identity documents and with other people paying the rent; the names on tenancy agreements are frequently at odds with who is listed as paying utilities and/or council tax. Such enquiries should also be cross-referenced with DWP records of who is claiming benefits at the address. For each address an enquiry into what, if any, police attendance has been made to the address, is a useful means of identifying who was at an address and when, as is any information held in respect of the address by the local authority, e.g. data collection records.

•

Employment records – Often legitimate employment is used, be it through agencies or other means, which will generate a paper trail. This should be obtained to demonstrate which bank accounts wages were going into and which addresses employees/complainants were living at. Next of kin details and phone numbers provided can also be useful sources of further evidential enquiry.

•

GLAA – A  particularly useful agency when dealing with labour exploitation allegations, the Gangmasters’ and Labour Abuse Authority should be asked to confirm that none of the alleged perpetrators are known to them as having applied for a licence and if they have any further information on them.

•

NHS – Complainants may refer to attending hospital/medical centres. These notes should be obtained as they are capable of corroborating not only accounts of the complainants but also contact details provided. They may also include confirmatory evidence of further separate counts of violence.

•

Local authority – Local authority records range from data collection records to council tax information. Often local authorities will conduct brothel checks or other address checks recording persons present.

•

Utilities companies – These will show whose name was registered at what address and when.

•

Communications data evidence – Often complainants will have no phone or if they do have one it will have limited contacts on it. The 579

17.28  Investigating trafficking and exploitation offences

absence of contacts may be equally compelling and can be demonstrative of control being exerted. It also gives snapshots into an individual’s life. Data downloads can evidence caller identity, times and durations of calls that may corroborate allegations of control and coercion against named individuals. Cell site or Wi-Fi data can place handsets at specific locations or areas at certain times. •

Social media – This is often how recruitment has occurred (e.g. Facebook adverts etc) and a subsequently active account becoming disused can be corroborative evidence of control.

•

NRM support services – Potential victims referred into the NRM receive care and support through the government’s contractor. Care professionals work with victims throughout their recovery. It is important for the investigation team to remain in regular contact with both the victim and support providers as it provides invaluable reassurance, particularly if a victim is likely to be called to give evidence at trial.Through the recovery period, the victim may remember or disclose additional facts linked to his case to a support worker. This can often be additional information that will help the prosecution case.

International material 17.28 This includes: •

International letters of request – Often material will need to be obtained from foreign jurisdictions: the early identification of this line of enquiry is vital. Letters of request will be required which will need to specify in some detail the exact material required – and note that statements obtained in foreign jurisdictions will be in the form appropriate for that jurisdiction’s procedural code.

•

Joint Investigation Teams – A  Joint Investigation Team (‘JIT’) ‘is an international cooperation tool based on an agreement between competent authorities – both judicial (judges, prosecutors, investigative judges …) and law enforcement – of two or more states, established for a limited duration and for a specific purpose, to carry out criminal investigations in one or more of the involved states’13. One of the particular benefits of a JIT is that evidence properly obtained in the parallel jurisdiction, admissible in the courts of that jurisdiction and compliant with the European Convention on Human Rights is admissible in the courts of the other parties to the agreement – eg, phone intercept material obtained in Hungary could then be admissible in a trial in England and Wales.

13 See https://www.europol.europa.eu/activities-services/joint-investigation-teams, accessed 5 August 2020.

580

Investigations beyond the complainant’s account 17.30

The accused 17.29 Enquiries into the accused and particularly his financial background can be informative. Often the motive for the alleged offending is greed and a careful review of bank accounts and the like can either confirm or undermine the complainant account and/or raise questions that require an explanation. 17.30 As with complainants, similar enquiries should be made about: •

Travel records – This includes vehicular ownership and how vehicles were purchased.

•

Banking – Financial evidence offers significant benefits to a modern slavery investigation. As offending is often money-driven, case officers should always consider a parallel financial investigation. Not only is it likely to support the modern slavery case, it can also offer other alternative prosecution opportunities, such as money laundering, where a trafficking case cannot be proved. As with complainants, enquiries should include all account opening documents and the transaction history together with DWP material detailing what benefits individuals are receiving; whether the accused is living beyond his means; and, if so, how.When dealing with foreign nationals, enquiries about their property ownership and financial background in their country of origin are useful, as this is often where profit from the criminal enterprise is directed.

•

Money transfers – Inevitably, there is a need for the criminal property to be concealed or removed from the jurisdiction. When dealing with foreign national offenders an analysis of cash transfers abroad through money transfer organisations will often shed light on the hierarchy of, and control within, a criminal structure.

•

Housing – What addresses are rented; by whom; who is a party to the lease; and how long have they been there, are all matters of possible relevance to an investigation.

•

Local authority – Council tax returns and other data provide information as to who was living at what address and when is likely to be of relevance to an investigation.

•

Utilities companies – Whose name was registered at what address and when may be important.

•

Communications data evidence – This type of evidence will very frequently show who was exerting control over whom, and when: it will be of particular importance in a conspiracy or joint enterprise as it may be that the agreement can be demonstrated from the data. Contact with 581

17.31  Investigating trafficking and exploitation offences

complainants and/or employees together with the length of contact (both date parameters of contact and call length) may be relevant. The use of communications data may also provide evidence of the user’s lifestyle. Analysing cell site information may evidence the location of a handset. Used alongside other information, such as Automatic Number Plate Reader (‘ANPR’) data, it may also confirm vehicles used by suspects in the context of offences or certain acts which may be pinpointed to specific times. •

Websites – This evidence is particularly relevant in sexual exploitation cases. Sex sale platforms are now the most used means by which prostitution occurs in the UK. Although obtaining evidence from, or in relation to, some of these websites can be fraught with difficulty14, open source material may be admissible. Use of the same postcode and/or contact number on image pages of sex workers can be deployed as evidence of control for the purposes of sexual exploitation (whether consenting or not). Likewise, payments from accounts of such websites can be demonstrative of control of the sex worker(s) page. Service providers, in some circumstances, can detail locations of where accounts were accessed from or the type of device used when an account was set up.

17.31 Prosecutors, investigators and defence representatives must all be alive to the possibility that an accused in an exploitation/trafficking case may themselves have been the victim of trafficking and/or compelled to commit the alleged criminal act(s) at the direction of others15. The appropriate procedures should therefore be followed (see Chapter 5).

Charging 17.32 Exploitation and trafficking cases can be historical, complex, and multifaceted insofar as the criminality that is exposed is concerned. It is not uncommon for offending to predate MSA  2015. Charges must reflect that: a course of conduct spanning the implementation of the Act requires charges under the old legislation to be considered. Offences of trafficking into/within the UK, contrary to s 4 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004; acting as a gangmaster, of being in possession of false documents, or of entering into arrangements with gangmasters, contrary to ss 13 and 14 of the Gangmasters Licensing Act 2004, and of slavery, servitude and forced or compulsory labour, contrary to s 71 of the Coroners and Justice Act 2009 should 14 Many are registered/based abroad and reluctant to engage with UK or indeed any authorities and/or provide information in forms that are not compliant with court procedures. 15 MSA 2015, s 45. See Chapter 7.

582

Charging 17.35

be considered.With effect from 6 April 2013, two further offences of trafficking people set out in ss  109 and 110 of the Protection of Freedoms Act 2012, trafficking people for sexual exploitation and trafficking people for labour and other exploitation, respectively, were brought into force, before being repealed when s 2 of MSA 2015 came into force.The first of these offences substituted a new s 59A in the Sexual Offences Act 2003, directed at covering the trafficking of individuals within and outside the UK with a view to sexual exploitation, and the second substituted a new s 4(1A) into the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004; an offence to cover trafficking within and outside the UK with a view to non-sexual exploitation, largely directed at exploitation through labour (s 4(11)). Sections 1 to 4 of MSA 2015 came into force on 31 July 2015 (see Chapter 4 for further detail of offences under MSA 2015). 17.33 Notably in trafficking and exploitation offending, it is not uncommon for there to be linked offending. This can range from the obvious associated acquisitive offence, such as money laundering, benefit fraud, account cloning which derives from the exploitation, etc to drug trafficking, sham marriages, excessive violence used as a form of control, and sexual violence. Where appropriate separate charges should be preferred16. 17.34 When indicting counts of slavery and trafficking, consideration should be given to R  v K  (S)17. This case suggests in the context of s  4 Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 counts, that specificity in particularising elements of an offence is likely to be necessary where a charge needs to encompass different ways of committing the offence (see Chapter 4). 17.35 Those considering an indictment involving trafficking and/or slavery offences need to weigh up the criminality which may be encapsulated in any identified charge and balance that against the principle of totality in sentencing, with the permutations of possible convictions in mind. Simplifying how cases which are frequently complex should be presented to the jury is key, as is the way in which the trial judge will be enabled to sum the case up to the jury.

16 In some cases, violence should properly be subsumed within the facts of trafficking or slavery allegations as part of the general nature of the offending. It can then be considered as comprising aggravating features of offending for sentence. Offending that is connected specifically to the exploitation can often properly be approached in this way. On the other hand, sexual offences (e.g. sexual assault, rape etc) should invariably be separately charged, due to the serious nature of the offences, the different gravamen of the offending entailed in those charges and to assist courts with appropriate sentencing powers and ancillary orders available post-conviction. 17 [2011] 2 Cr App R 34, paras 44 and following.

583

17.36  Investigating trafficking and exploitation offences

Risk orders 17.36 MSA  2015 has brought into force the ability to use slavery, trafficking risk orders (‘STROs’). An STRO is a civil order which may be made by a court in respect of an individual who has not been convicted of a slavery or trafficking offence. The court must be satisfied that there is a risk that the defendant may commit a slavery or human trafficking offence and that the STRO is necessary to protect against the risk of harm from the defendant committing the offence. STROs enable action to be taken where this is necessary to prevent serious harm to the public notwithstanding the absence of a conviction. The standard of proof which applies is the enhanced civil standard. 17.37 These orders are invaluable, particularly when dealing with larger organised crime groups or where there is evidence of ongoing conduct despite police intervention. Maintaining complainant confidence in the criminal justice system is vital and orders such as STROs are vital in achieving this.

Disclosure 17.38 In most cases, the credibility of complainants’ accounts of events in evidence will be in issue. Thus, any account provided by them to any agency will be potentially relevant and potentially disclosable. Obtaining this material early in the investigation enables a pragmatic evaluation of the weaknesses in accounts to be conducted. Investigators and prosecutors should be alive to elements of dishonesty that may appear in accounts. These are often not fatal to a case but merely symptomatic of the complainant’s vulnerabilities and associated shame and fear. 17.39 International material may be required as it may show or comprise complainants’ and defendants’ bad character. It may also include psychiatric, state agency or other material that is relevant to a defence. This may need to be obtained via a letter of request. Early interaction with defence teams is often desirable or necessary. 17.40 Where credibility is in issue, the first account to the Single Competent Authority is also material that should fall to be considered as potentially disclosable. It is unlikely that an NRM finding concerning an adult could 584

Trial 17.44

be used as corroborative support that a complainant is a victim of trafficking or exploitation in a criminal trial. This position may alter when the appellate courts have determined the status of a Competent Authority decision in the context of defendant’s defence at trial (see Chapter 5). 17.41 It is not unusual for complainants to have criminal backgrounds and issues which render their accounts susceptible to being challenged on credibility grounds. Such backgrounds and issues are often the cause or product of their vulnerability and subsequent exploitation. A sensitive approach to nondefendant bad character is commended. It may be appropriate for the court to give a balanced direction as to how exploitation may lead to the commission of offences or the giving of different accounts. Where ostensibly reprehensible behaviour is unproven, care should be taken to ensure that, before reliance is placed on it as bad character, consideration is given as to whether the alleged perpetrator acted criminally or whether, notwithstanding that it was a prima facie criminal activity, his criminality was expunged by the dominant force of compulsion of traffickers; see R v L and others18. 17.42 Given the transnational nature of modern slavery, significant quantities of documents or exhibits may require interpreting before they can be properly assessed by the disclosure officer. This can be extremely costly and time consuming. Early consultation with prosecutors to agree a review policy – with the input of the defence and the court where necessary and appropriate – is critical where bulk data exists.

Trial 17.43 The presentation of a complainant’s account may be fraught with difficulty. Often lengthy periods of time are covered, complainants may be reluctant to detail the extent of what has occurred to them through fear or shame, and engaging the complainant with the court process should be a priority. 17.44 Complainants are by their nature vulnerable. How that vulnerability manifests itself must be something that the court, advocates and investigation officers consider, to enable best evidence to be given (see Chapter 8).

18 [2013] EWCA Crim 991.

585

17.45  Investigating trafficking and exploitation offences

17.45 The vulnerable witness training course provided by the Inns of Court should be the starting point for any advocate. Consideration of specific needs such as an intermediary, interpreter, screens, video link, should also be key considerations, as should the location from where the complainant gives evidence. See Chapter 8. 17.46 The use of graphics packs as an aid to telling the story of the case is becoming increasingly accepted by courts generally. It has particular value in exploitation/ trafficking cases, where it allows complainants to be asked about the source of documents relevant to them. Many documents may contain personal information irrelevant to the case but relevant to the complainant, such as family phone numbers, etc, which he would not want to be shown in open court. This should be borne in mind when displaying any such material. 17.47 Graphics bundles should also allow for the centralisation of evidence in a single place and allow evidence to be easily contextualised, theoretically reducing court time. As with many forms of criminality, breaking down matters chronologically and/or into specific areas of evidence, e.g. phones, accommodation etc leads to an easier presentation of the case. 17.48 In cases with larger numbers of complainants, their specific accounts may become lost in the accounts of others and their exploitation diluted, so careful thought should be given to presentational aids. Consideration must be given to each account and to how that individual complainant was trafficked/exploited. 17.49 Special measures applications should be made for those complainants who request them. Supporting witness statements must detail what special measures are requested and why. Many complainants wish to see their perpetrators in open court as a means of reclaiming ownership of their account (see Chapter 8). 17.50 There are no hard and fast rules for prosecuting such cases; however, the needs of the complainant to understand, participate and engage with the criminal justice process are vital. Early understanding by them of what is to take place coupled with committed and culturally aware engagement by the investigating and prosecuting team will lead to a more effective, cogent and concise presentation of the case. 586

Trial 17.52

17.51 Foreign complainants who have returned to their home country are often reluctant to return to the UK to give evidence. Giving sufficient time for video link evidence as well as ensuring the appropriate documents are with the venue from which the evidence is to be given via the correct channels is vital. The following guidance provides an overview of how prosecutors can obtain evidence from overseas for use in criminal investigations or proceedings in England and Wales: •

CPS guidance, ‘International Enquiries’19;

•

Joint Investigations Teams, Proceeds of Crime Legal Guidance20;

•

Extradition Legal Guidance.

17.52 The CPS Guidance helpfully provides: ‘Evidence can be obtained from abroad in a variety of ways. The UK’s domestic legislation regarding obtaining evidence from overseas is widely drafted. Section 7 Crime (International Cooperation) Act 2003 (CICA) permits an application to be made by ILOR but does not require it. The method you will need to use in a particular case will depend on the type of evidence/assistance you are requesting (see below) as well as the country you are seeking evidence from. Wherever possible, police to police channels should be used to obtain the assistance sought. A prosecutor should make the request where the evidence can only be obtained from the country concerned through MLA (using an ILOR) or, for participating EU Member States, through the EIO.Where the requested country is unable to provide the assistance via police to police channels, an ILOR or EIO should be considered and, as long as the material (whether intelligence or evidence) is being sought in relation to an ongoing criminal investigation and represents a reasonable line of enquiry, the prosecutor should issue an ILOR or EIO. Where a request from a prosecutor is not necessary, cooperation between domestic police and an overseas police authority can and should be used.’

19 See https://www.cps.gov.uk/legal-guidance/international-enquiries, accessed 5 August 2020. 20 See http://www.eurojust.europa.eu/Practitioners/JITs/Pages/JITs-sitemap.aspx, accessed 5 August 2020.

587

18 Forced criminality and non-criminalisation of trafficked persons in the International Criminal Court Wayne Jordash QC*

Introduction 18.1 Trafficking in the guise of forced criminality has frequently featured in the International Criminal Court (‘ICC’). Because of the serious nature of the charges that the ICC deals with, the interplay between criminality and forced criminality has exposed the most difficult questions of law. This chapter addresses how the issues have arisen and the possible ways in which the law might develop, particularly, following the Dominic Ongwen case. 18.2 The exploitation of trafficked victims for the purposes of criminal gain has received much less attention in an international law context than trafficking for forced labour and sexual exploitation. It has particular significance when it occurs during armed conflicts. A course of conduct may see the individual forcibly recruited by armed groups to fight or to provide support services, including as guards, sexual slaves or porters or miners in extractive industries, or to resource combat activities. If criminal conduct is the result, victims are transformed into perpetrators, even though genuine choice may be lacking. This victim-perpetrator conundrum has come into sharper focus over recent years in the context of human trafficking by terrorist organisations, such as ISIS in Syria and Iraq and Boko Haram in northern Nigeria, wherein captives are forced to join criminal enterprises and go on to take part in mass atrocities that amount to genocide, war crimes or crimes against humanity. Consequently, the moral and legal culpability of these individuals ends up resting on difficult and contested questions concerning volition, voluntariness and intent.

* With gratitude to Nlriksha Sanghvi, junior advisor at GRC, for her comprehensive research and comments on the text.

589

18.3  Forced criminality and non-criminalisation of trafficked persons in the ICC

18.3 The on-going trial of Dominic Ongwen at the ICC is a case in point. Ongwen, once a child soldier, forcibly conscripted into the Lord’s Resistance Army (‘LRA’), a notorious rebel army in Uganda: now an accused at the ICC, alleged as a senior commander to be responsible for an array of international crimes, including war crimes and crimes against humanity. The prosecution alleges criminal intent. The defence denies this, claiming that Ongwen was forcibly recruited, exploited and lacked autonomy to form the requisite mental state and, therefore, to be held responsible for his actions. 18.4 At present, there is no consensus in international criminal law on whether, or rather how, those that commit core international crimes (genocide, crimes against humanity or war crimes) through threat or use of force (akin to that impacting trafficked persons) should be held responsible for international crimes. At best, non-criminalisation is viewed through the narrow defence of duress, entailing that the accused admits to committing criminal acts, but pleading that his actions were understandable in relation to the circumstances prevalent at the time, and therefore he should not be held criminally responsible. As will be discussed in this chapter, the defence of duress has generated a lot of discussion amongst scholars1,yet, despite the expansion of international criminal law since the 1990s, duress has been a much-neglected areas of practice at the international level2.

Current status on recognition of non-criminalisation under international law Non-criminalisation generally Criminal gain 18.5 Human trafficking is a widespread phenomenon that encompasses a variety of conduct and harm, including forced labour, sexual slavery, sexual exploitation, removal of vital organs and, the lesser acknowledged, exploitation of trafficked victims for the purposes of exploiting for criminal gain. The range of activities 1 For example: Marcus Joyce, ‘Duress: From Nuremberg to the International Criminal Court, Finding the Balance Between Justification and Excuse’ (2015) 28(03) LJIL 623–642; Peter Rowe, ‘Duress as a Defence to War Crimes after Erdemovic´: A Laboratory for a Permanent Court?’ (1998) 1 YIHL 210228; Noam Wiener, ‘Excuses, Justifications, and Duress at the International Criminal Tribunals’ (2014) 26(2) Pace ILRev. 88–131. 2 Nadia Grant, ‘Duress as a Defence for Former child soldiers?: Dominic Ongwen and the International Criminal Court’ (2016) ICD Brief No. 21, 4.

590

Current status on recognition of non-criminalisation under international law 18.7

for criminal gain are broad and may range from the commission of petty crimes, such as the use of victim’s names as false identities to acts constituting core international crimes, namely war crimes, crimes against humanity and genocide. See Chapters 1 and 5 on the international legal framework on non-prosecution. 18.6 Arguably, the proper recognition of the victim status of trafficked persons requires the application of the principle of non-criminalisation. Criminalisation ‘may be viewed as the antithesis of the victim-centred approach, inevitably operating to deny trafficked persons the rights to which they are entitled under international law’3. The ‘idea that a trafficked person should not be punished for criminal acts in certain circumstances is really based on the appreciation that the trafficked person is not a free agent, that they are compelled to commit unlawful acts by those who control and exploit them, that they are victims of crime rather than criminals, that they are acting under duress and are in no position to object.’4 Put differently: ‘… trafficking in human beings, by its very nature and aim of exploitation, is based on the exercise of powers attaching to the right of ownership. It treats human beings as commodities to be bought and sold and put to forced labour, often for little or no payment, usually in the sex industry but also elsewhere… It implies close surveillance of the activities of victims, whose movements are often circumscribed… It involves the use of violence and threats against victims, who live and work under poor conditions.’5 18.7 Despite these statements of fact and principle, it is apparent from a brief review of international agreements regulating trafficking (see below), that a customary international law norm is yet to emerge on the non-criminalisation of trafficked victims6. Indeed, much of the primary legislation fails to provide

Anne T. Gallagher, The International Law of Human Trafficking (CUP, 2010) p 283; Mohammed Y. Mattar, ‘Incorporating the Five Basic Elements of a Model Anti-trafficking In Persons Legislation in Domestic Laws: From the United Nations Protocol to the European Convention’ (2006) 14  TJICL  380-381. The principle is known as the non-punishment principle or the non-liability principle (eg, UNODC, Model Law against Trafficking in Persons (5 August 2009)) or ‘non-criminalisation principle’ (UNHCR, Recommended Principles and Guidelines on Human Rights and Human Trafficking: Commentary (2010) (‘UN Trafficking Principles and Guidelines – Commentary’)). 4 Ryszard Piotrowicz, ‘The Non-Punishment Principle in International Law’ (Paper presented at Promoting the Implementation of the Non-Punishment Principle for Victims of Human Trafficking: A  Workshop for Judicial and Prosecutorial Officials, Strasbourg, 9–10  October 2014), 3, as cited in Andrea Schloenhardt and Rebekkah Markey-Towler, ‘Non-Criminalisation of Victims of Trafficking in Persons — Principles, Promises, and Perspectives’ (2016) 4(1) GroJIL 21. 5 Rantsev v Cyprus and Russia a (2010) 51 EHRR 1 [281]. 6 For further discussion, see Bijan Hoshi, ‘The Trafficking Defence: A  Proposed Model for the NonCriminalisation of Trafficked Persons in International Law’ (2013) GroJIL 56, 69. 3

591

18.8  Forced criminality and non-criminalisation of trafficked persons in the ICC

even a definition of exploitation in international law7, let alone a definition that includes exploitation for criminal purposes. For example, the Palermo Protocol did not explicitly provide for the non-criminalisation of trafficked individual, and instead opted for a broad based, non-exclusive definition (‘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 organ’8) that provides no criteria to assess what other practices might fall within this definition.

Legal instruments applicable to the Council of Europe and the EU Member States 18.8 Whilst this lack of specificity may also be viewed as an advantage insofar as it allows the recognition of new forms of trafficking to be included, law generally benefits from specificity and certainty, especially when it concerns criminal law. Indeed, as one commentator has pointed out in relation to approaches by the Council of Europe and the EU, ‘the definitions in legal instruments applicable to the Council of Europe and the EU Member States, and its (lack of) application by domestic courts lack the type of specificity that would translate into clear and effective practical implementation, let alone ensure a response that prioritizes victim protection, rather than crime control’9.

UNHCR Recommended Principles and Guidelines 18.9 Notwithstanding, the need to exclude trafficked victims from criminal processes has gained traction over the recent years. Indeed, despite not being expressly referenced in the Palermo Protocol, the exploitation of trafficked victims for the purposes of criminal gain has been recognised as a form of labour exploitation10. Moreover, the UNHCR Recommended Principles and Guidelines that were promulgated shortly after the Palermo Protocol in 200211, and which provide practical, rights-based policy guidance on the prevention of trafficking and the protection of victims of trafficking, contain numerous principles and guidelines Roger Plant,‘Modern Slavery:The Concepts and Their Practical Implications’ (2015) ILO Working Paper, 3. See also The Concept of Exploitation in The Trafficking in Persons Protocol UNODC (2015); Bärbel Heide Uhl, ‘Lost in implementation? Human Rights Rhetoric and Violations – a Critical Review of Current European Anti-trafficking Policies’ (2010) 2 SHRS 125. 8 Article 3(c) of the Palermo Protocol. 9 Marija Jovanovic´ stating: ‘The Anti-Trafficking Monitoring Group (ATMG) pointed to “a widespread culture of disbelief in the [UK] Home Office decision-making process and how it impacts on the successful identification and support of victims”’, ATMG, The National Referral Mechanism: A Five Year Review (February 2014) 13. 10 Carolina Villacampa and Katherine Flórez,‘Human trafficking for criminal exploitation and participation in armed conflicts: the Colombian case’ (2018) 69 Crime, Law and Social Change 421–445. 11 UNHCR, Recommended Principles and Guidelines on Human Rights and Human Trafficking (2002), included as an addendum to report of the United Nations High Commissioner for Human Rights, E/2002/68/Add. 1, (hereinafter ‘UNHCR Recommended Principles and Guidelines’). 7

592

UN Model Law against Trafficking in Persons (2009) 18.10

urging states to ensure that trafficked persons are not detained, charged or prosecuted for the illegality of their entry into or residence in countries of transit and destination, or for their involvement in unlawful activities to the extent that these acts are the direct consequence of their situation as trafficked persons12. In addition, the principle of non-punishment of human trafficking victims has been affirmed in a number of other international and regional instruments, even though these are of a non-binding nature13.

UN Model Law against Trafficking in Persons (2009) 18.10 The UN  Model Law against Trafficking in Persons (2009) is another nonbinding instrument providing for non-liability of trafficked victims for criminal activities undertaken as a direct consequence of their situation as trafficked persons14. However, it is noteworthy that it does not extend non-criminality for crimes of a particularly serious nature as defined under national law15. In 2010, the UN Working Group of Trafficking in Persons formed by the Conference of the Parties to the UN Convention against Transnational Organised Crime recognised the need for non-criminalisation and non-prosecution of trafficked victims for ‘for unlawful acts committed by them as a direct consequence of their situation as trafficked persons or where they were compelled to commit such unlawful acts.’16 The UN Global Report on Human Trafficking of 2014 has also recognised ‘trafficking for committing crimes’ as a form of recognisable exploitation17. However, this recognition has only extended to consideration of less severe crimes, including drug trafficking, as activities constituting criminal exploitation. The commission of more ‘high impact crimes’, such as those committed during armed hostilities are excluded18. 12 Principle 7, Guidelines 2 & 7 of the UNHCR Recommended Principles and Guidelines. 13 See Marija Jovanovic´, ‘The Principle of Non-Punishment of Victims of Trafficking in Human Beings: A Quest for Rationale and Practical Guidance’ (2017) 1(1) Journal of Trafficking and Human Exploitation 47; UNODC  Model Law against Trafficking in Persons (5  August 2009); UNHCR, Recommended Principles and Guidelines; OSCE, Special Representative and Coordinator for Combating Trafficking in Human Beings, Policy and Legislative Recommendations towards the Effective Implementation of the Non-Punishment Provision with Regard to Victims of Trafficking (22 April 2013) SEC.GAL/73/13 (hereinafter ‘OSCE Guidance’). 14 Article 10 of the UNODC Model Law against Trafficking in Persons. 15 Article 10(4) of the UNODC Model Law against Trafficking in Persons. 16 Report on the meeting of the UN Working Group on Trafficking in Persons (14–15 April 2009,Vienna) CTOC/COP/WG.4/2009/2. 17 UNODC, Global report on trafficking in persons (2014), 34 available at: https://www.unodc.org/documents/ data-and-analysis/glotip/GLOTIP_2014_full_report.pdf, accessed 5 August 2020. 18 UNODC, Global report on trafficking in persons (2014), 29-31; Villacampa and Flórez (2018). Likewise, in the EU Anti-Trafficking Directive the more serious crimes are effectively excluded. The definition of ‘exploitation of criminal activities’ limits the definition to ‘the exploitation of a person to commit, inter alia, pick-pocketing, shop-lifting, drug trafficking and other similar activities which are subject to penalties and imply financial gain’, as well as ‘trafficking in human beings for the purpose of the removal of organs … [and] … other behaviour such as illegal adoption or forced marriage in so far as they fulfil the constitutive elements of trafficking in human beings’ (Section 11 of the EU Trafficking Directive).

593

18.11  Forced criminality and non-criminalisation of trafficked persons in the ICC

Non-criminalisation in armed conflict 18.11 Recent armed conflicts in the past decade or so reveal a pattern of using human trafficking as a war tactic, especially by insurgent/rebel groups and terrorist organisations to advance their strategic aims and expand their military capabilities. Modern day conflicts are rife with conduct that involves the forcible recruitment of civilians for the purpose of exploitation in forced labour, slavery and slavery-like practice, as well as the trafficking of women and children more generally19.Trafficked victims are often forced or coerced to work as combatants, spies, suicide bombers etc20. 18.12 As outlined above, whilst the non-criminalisation principle is gradually moving towards greater recognition and acceptability, there is little to indicate that some of the big questions concerning the relevant trafficking experience have been addressed. For example, while developments since the adoption of the Trafficking Protocol demonstrate that there is broad consensus at the international level that the principle of non-criminalisation is an essential element of the framework for protecting trafficked persons, there exists no international legal provision that is capable of binding national courts21. Moreover, of particular concern, is the lack of agreement concerning how the principle of non-criminalisation operates in relation to crimes that are not the direct consequence of the trafficking but are merely linked to the trafficking experience by a more remote chain of causation. These issues are addressed in the section below. Equally, as referenced in the above section, there is a growing consensus evident in the international and regional legal instruments that non-criminalisation should be available for only specific crimes related to human trafficking22, generally less serious crimes such as prostitution and street begging23. However, this apparent consensus is a long way from being settled24. 18.13 As indicated above, at least in part, the problem is a dearth of analysis and application, especially in relation to the non-criminalisation of ‘trafficked persons’ who commit crimes during armed conflicts, a process that may see the 19 UNODC, Global report on trafficking in persons (2016), 64–66, available at: https://www.unodc.org/ documents/data-and-analysis/glotip/2016_Global_Report_on_Trafficking_in_Persons.pdf, accessed 5 August 2020. 20 Jamile Bigid, ‘Human Trafficking Helps Terrorists Earn Money and Strategic Advantage’, Foreign Policy (31  January 2020) available at: https://foreignpolicy.com/2020/01/31/human-trafficking-helpsterrorists-earn-money-and-strategic-advantage/, accessed 5 August 2020. 21 Hoshi (2013), 68. 22 See Chapters 1, 5, 7 for further analysis on non-prosecution principles. 23 See, for example, the Modern Slavery Act 2015, s 45, Sch 4 – excluded offences to which a s 45 defence cannot be raised. 24 Schloenhardt and Markey-Towler (2016), 33.

594

UN Model Law against Trafficking in Persons (2009) 18.16

individual transformed from victim to perpetrator.Whilst there is a large body of expertise focused upon the prevention, protection and rehabilitation of ‘victims’ of human trafficking, especially women and children, in armed conflict25, the focus rarely extends beyond cautionary or aspirational admonishments. 18.14 For example, addressing the issue of human trafficking related to armed conflict, the President to the UN  Security Council in a 2015 statement urged states to ‘ensure that victims of trafficking in persons are treated as victims of crime and in line with domestic legislation not penalised or stigmatised for their involvement in any unlawful activities in which they have been compelled to engage.’26 Similarly, in 2018 in relation to the human trafficking practices of the LRA, ISIL, Boko Haram and other non-state armed groups involved in armed conflict, the Security Council recognised that ‘non-punishment of victims of trafficking for offences committed during their trafficking experience remains closely connected to their prompt identification … particularly relevant when persons are released from the captivity of armed and terrorist groups’27. 18.15 As noted, even though these pronouncements have recognised the complex linkages between trafficking in persons and conflict in various contexts,28 detailed analysis of the methods, means and purposes at the core of these violations is lacking. For example, the 2016  UN  Global Report on Human Trafficking recognises the links between conflict and human trafficking, including the vulnerability of certain individuals and groups in armed conflict due to factors such as violence, including increased gender-based violence, a lack of economic opportunities, and discrimination, but fails to offer any analysis that might allow a deeper understanding of the nature of the crimes committed and the causal links. 18.16 In the end, the analysis is limited to a cursory review of the modern-day phenomena of the forcible recruitment of child soldiers, the recruitment of civilians for the purpose of exploitation in forced labour, slavery and slavery25 See, for example, UNODC,Trafficking in Persons in the context of armed conflict (2018); UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (2000); Report of the Secretary-General on the implementation of measures to counter trafficking in persons (S/2016/949); Claire Healy, ‘Targeting Vulnerabilities: The Impact of the Syrian War and Refugee Situation on Trafficking in Persons – A  Study on Syria, Turkey, Lebanon, Jordan and Iraq’ (Vienna, International Centre for Migration Policy Development, 2015); Report of the Special Rapporteur on trafficking in persons, especially women and children (3 May 2016) A/HRC/32/41 (hereinafter ‘Report of the Special Rapporteur’). 26 Statement by the President of the Security Council (16 December 2015) S/PRST/2015/25. 27 Report of the Secretary General on trafficking in persons in armed conflict pursuant to Security Council resolution 2388 (2017) (21 November 2018) S/2018/1042, para 38. 28 See, for example, Report of the Special Rapporteur (3 May 2016) A/HRC/32/41; Statement by the President of the Security Council (16 December 2015) S/PRST/2015/25; and Report of the SecretaryGeneral on conflict related sexual violence (20 April 2016) S/2016/361, para 7.

595

18.17  Forced criminality and non-criminalisation of trafficked persons in the ICC

like practice, as well as the trafficking of women and children more generally in modern conflicts. It refers to the: use of children by Boko Haram in suicide bombing; the recruitment of children for exploitation in armed conflict by the different armed factions involved in the Syrian conflict, including the Islamic State in Iraq and the Levant (ISIL, also known as Da’esh), the Kurdish People’s Protection Units (‘YPG’) and the Nusra Front29; the use of young girls and women and suicide bombers by both Boko Haram and Al-Shabaab30; and the systematic abduction of people from villages during the Sierra Leone civil war (1991 to 2002) to carry arms and ammunition, to provide food, to farm and to mine for diamonds. However, like many similar enquiries, it fails to offer any meaningful analysis of the trafficking experience and how it leads to crime.

Non-criminalisation in international criminal law 18.17 The most detailed examination of these experiences takes place in the international justice sphere, particularly at the international criminal tribunals that sprang up after 1994, including at the ICC. However, here the focus is not the specific liability (or non-liability) of the trafficked person for acts done pursuant to any coercive circumstances, but on the trafficker and whether his acts led to (trafficked) victims being used as tools to further genocide, crime against humanity or war crimes. The trafficked victim’s experience is relevant only to the extent that it represents a necessary link or departure point for assessment of the individual responsibility of the political or military leader’s (that is, the ‘traffickers’) for international crimes. 18.18 Whilst international criminal law has developed a range of crimes, modes of liability, and approaches to evidential assessments that allow some focus on the means deployed to coerce or force trafficked victims to carry out criminal acts, this focus means that the chain of causation from trafficked victim to the criminal conduct and the mental state of the trafficked victim turned perpetrator is of little relevance to the most salient questions. Any duress is relevant only in relation to the instigator and not the victim. Indeed, as will be discussed at para 18.28 below, until the enactment of the Rome Statute, duress of any nature or severity could not form the basis of any defence, irrespective of its impact upon voluntariness or intent.

29 UNODC, Global report on trafficking in persons (2016), 64-66. 30 Statement by the President of the Security Council (31  December 2015)  S/PRST/2015/25, paras 17, 18.

596

UN Model Law against Trafficking in Persons (2009) 18.19

18.19 To this extent, the trafficked victim is called to testify concerning his own trafficking experience only inasmuch as it is relevant and probative of the trafficker’s individual criminal responsibility. In this regard, it is noteworthy that, even though such witnesses are rarely at risk of being prosecuted for any crimes committed as a consequence of their trafficking experience, they do not benefit from any express statutory immunity. Instead, they avoid prosecution by dint of the limited jurisdictional reach of the various international criminal courts31, or, in the rare circumstances where prosecution might be possible, (express or implied) prosecutorial promises not to prosecute for any crimes disclosed often operate to ensure cooperation and protect the witness from the risk of (foreseeable) prosecution32.

31 ICC, Paper on some policy issues before the Office of the Prosecutor (September 2003) states that ‘the Office of the Prosecutor should focus its investigative and prosecutorial efforts and resources on those who bear the greatest responsibility, such as the leaders of the State or organisation allegedly responsible for those crimes’; Article  1 of the Statute of the SCSL  (2002) seeks to prosecute persons with the greatest responsibility; UN  Security Council Resolution 1503 (28  August 2003) described ICTY’s completion strategy to focus on ‘the most senior leaders suspected of being most responsible for crimes within ICTY’s jurisdiction’, which led to addition of a new provision Rule 28(A) in the ICTY Rules of Procedure and Evidence granting the Bureau of the Tribunal to determine indictments on whether they focus on one or more of the most senior leaders suspected of being the most responsible; Article 2 of the Law on the Establishment of the ECCC states the competence is ‘ … to bring to trial senior leaders of Democratic Kampuchea and those who were most responsible for the crimes and serious violations …’. 32 Additionally, these types of witnesses are likely to benefit from a range of protective measures that clearly identify them as witnesses, and not prospective accused. Each ICC has developed a sophisticated regime of protection that seeks to counter objective security risks arising from any witness’ participation in the trial process. For example, at the ICC, the Court as a whole bears responsibility for ensuring that all victims and witnesses are not placed at undue risk because of their participation in the proceedings (Rome Statute, Arts 68(1) and 43(6)). The Registry has the responsibility to provide protective measures and security arrangements for participating victims and witnesses. The Registry’s Victims and Witnesses Unit (‘VWU’) is responsible for specific aspects of witness protection. The ICC may order protective measures upon the application of the prosecution, defence or the victim/witness, after having consulted with the VWU. Additionally, under Arts 54(3)(f) and 68(1) of the ICC Statute, the prosecution has the responsibility to adopt necessary protective measures during the investigation and prosecution stages, although this does not extend to the preventive relocation of witnesses. Pursuant to Art 64 of the ICC Statute and with respect to Rules 87 and 88 of the Rules of Procedure and Evidence (‘RPE’), the Chamber is also responsible for ensuring that appropriate steps are undertaken to protect victims and witnesses and particularly those who have suffered trauma or who are in a vulnerable situation. Under Rules 87 and 99 of the RPE, the chamber will determine the merits of individual applications for protection. Protective measures at the ICC include many of the same measures applied at the ICTY and ICTR. They include, the filing of proceedings under seal; disclosing redacted filings and documents (after expunging names and identifying details from the record); ordering specific instructions for accessing and handling information; prohibiting participants from disclosing identifying information; non-disclosure or delayed disclosure of witness identities and other information identifying the witness to the defendant; allowing testimony via electronic means (such as a video-link); allowing testimony to be given from behind a screen; allowing testimony using voice/image distortion; ordering the use of pseudonyms throughout the proceedings; holding proceedings in camera (private sessions); reading all or part of a witness’ statement in private sessions; relocating witnesses from locations where they may be in danger; and permitting a legal representative, psychologist or family member to attend court during the testimony of the victim or witness. Further, during trial, Chambers are duty bound to control the manner of questioning of a witness or victim so as to avoid any harassment or intimidation (ICC RPE, Rule 88(5)).

597

18.20  Forced criminality and non-criminalisation of trafficked persons in the ICC

Non-criminalisation and nexus between the trafficking and offending 18.20 At present, there is no agreement as to how the principle of non-criminalisation might operate in relation to crimes that are not the direct consequence of the trafficking but are nonetheless linked to the trafficking experience. This is something which has been explored in a number of cases in England and Wales (see Chapter 5) but which is left unresolved in the ICC. 18.21 Currently, there are two principal approaches to this question: the causationbased approach and the compulsion-based approach. Both concern the correlation between the victim’s criminal offence and the trafficking experience and require engaging with the questions of causation, coercion and the lack of agency. However, the compulsion-based approach requires the criminal act to be committed under such a high degree of pressure from the trafficker(s) that the victim is essentially compelled by the trafficker to commit the crime33. This model is premised on the acceptance that threats, use of force, abduction, fraud, deception, abuse of power or of a position of vulnerability or other forms of coercion may so severely impair the capacity for acting that the individual lacks true autonomy and is derived from the well-established defence of duress under criminal law34. On the other hand, the causation-based approach takes a more liberal approach to linkage, requiring only that the criminal act is the direct result of the trafficking situation, rather than the result of compulsion, before the principle of non-criminalisation can operate to exclude any criminal process. 18.22 In the following paragraphs the arguments for and against each model are set out to help inform practitioners as to how argument might be marshalled. 18.23 The compulsion model is emerging as the internationally accepted model. The UNHCR Recommended Principles and Guidelines and the UN Model Law have both adopted this approach. They contain a number of express, compulsion-based non-criminalisation provisions that, for the first time, 33 UN  Working Group of Trafficking in Persons, ‘Background Paper on Non-punishment and nonprosecution of victims of trafficking in persons: administrative and judicial approaches to offences committed in the process of such trafficking’, (December 2009) CTOC/COP/WG.4/2010/4, para 11; Also, see Hoshi (2013), 55. 34 UN  Working Group of Trafficking in Persons, CTOC/COP/WG.4/2010/4, paras 11, 17. Also, see Schloenhardt and Markey-Towler (2016), 35.

598

UN Model Law against Trafficking in Persons (2009) 18.25

expressly provide for non-criminalisation upon a showing that the unlawful acts were the ‘direct consequence’ of the trafficked situation35. These provisions have been ‘extensively cited as the accepted standard’ for the principle of noncriminalisation36. 18.24 Since their promulgation, they have increasingly been supported at the international level37. For example, the principle of non-criminalisation has been expounded in a series of UN  General Assembly Resolutions38. Further, the principle has been recognised in a series of reports by the UN Secretary-General, the UN Committee on the Rights of the Child and the UN Committee on the Elimination of Discrimination Against Women, major international and regional policy documents and soft-law instruments and national anti-trafficking laws39. An examination of the European legal framework also suggests that the principle of non-criminalisation in the European context is compulsion-based40. 18.25 Despite this emerging consensus, the compulsion-based model may be criticised for its failure to recognise that, even in the absence of any threat or force or coercion, a trafficked person may be left with no real choice but to commit a criminal offence to evade the consequences of his trafficked experience: ‘it fails to grasp the subtle and nefarious methods by which traffickers can exert total dominance over trafficked persons, such that even in the absence of a high degree of pressure (or, indeed, any overt pressure at all), the trafficked person may, in reality, have little choice but to commit the criminal act’41. 35 For example, Principle 7 of the UNHCR Recommended Principles and Guidelines provides:‘Trafficked persons shall not be detained, charged or prosecuted for the illegality of their entry into or residence in countries of transit and destination, or for their involvement in unlawful activities to the extent that such involvement is a direct consequence of their situation as trafficked persons’. Similar provisions can be found in Guideline 2 and Guideline 4.5 of the UNHCR Recommended Principles and Guidelines. 36 Hoshi (2013), 60. 37 Commentary on the UNHCR  Recommended Principles and Guidelines (November 2010), HR/ PUB/10/2, 131, available at: https://www.refworld.org/docid/4d2eb7cf2.html, accessed 5 August 2020. 38 UN General Assembly Resolution 63/156 (30 January 2009), para 12. See also UN General Assembly Resolutions: 61/144 (1 February 2007) para 18; 59/166 (10 February 2005), paras 8 and 18; 57/176 (30 January 2003), para 8; 55/67 (31 January 2001) paras 6 and 13; 52/98 (6 February 1998), para 4; and 51/66 (31 January 1997), para 7. 39 UNHCR Recommended Principles and Guidelines, 132 notes 264–269; Gallagher (2010) 286–287. 40 For example, Art 26 of the EU Trafficking Convention, 2005 is entitled ‘Non-punishment provision’ and provides for the possibility of protection from criminal sanction: 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; See also: Art 8 of the III.2. The EU Trafficking Directive 2011 is entitled ‘Non-prosecution or non-application of penalties to the victim’ and provides: ‘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 any of the acts referred to in Article 2.’ 41 Hoshi (2013), 55.

599

18.26  Forced criminality and non-criminalisation of trafficked persons in the ICC

Accordingly, Hoshi defends the causation based model as more accurately and fairly encompassing the criminal acts committed by the trafficked person ‘when under the control of the trafficker, when attempting to flee the control of the trafficker or when otherwise acting to try to protect or assist him or herself on account of their trafficked status’42. 18.26 Undoubtedly, the causation model provides much more scope for understanding the realities of the trafficking experience and fulfilling the obligation to protect and assist trafficked victims, even if it may raise some tricky questions in practice concerning the precise causal relationship between the trafficking situation and the criminal acts. In sum, the causation-based approach provides a broader protection to include all criminal acts performed as a consequence of human trafficking and is more focused on a broader view of the causal relationship between the trafficker and the victim43. This model extends noncriminalisation, non-prosecution or non-punishment to offences committed ‘as a direct consequence’ of being a victim of trafficking. Reference to the causation model can be found in the UN  Working Group on Trafficking in Persons, the UNODC Model Law, and the UNHCR Recommended Principles and Guidelines, which all refer to offences committed ‘as a direct consequence’ of the trafficking situation. The reference to ‘a direct result of them having been trafficked’ in the OSCE Action Plan can be understood in the same way. 18.27 Unlike the compulsion model, the causation model approach does not require the nexus to any force, coercion or duress exercised by the traffickers. It does not require a proof of coercion or duress or a lack of choice. In other words, a victim may resort to these offences while still under the influence of the traffickers, or as a means to break free from them. The causal connection between the trafficking situation and the offending are the principal focus of the causation model of non-criminalisation. The causation model has been followed mostly in national human trafficking frameworks, including in Argentina44, Kosovo45, Philippines46 and United States47.

42 Hoshi (2013), 55. Also see, Peter Carter and Parosha Chandran, ‘Protecting against the Criminalisation of Victims of Trafficking: Representing the Rights of Victims of Trafficking as Defendants in the Criminal Justice System’, in Peter Carter and Parosha Chandran (eds), Human Trafficking Handbook: Recognizing Trafficking and Modern-Day Slavery in the UK, (LexisNexis, 2011), 425. 43 Schloenhardt and Markey-Towler (2016), 36. 44 Article 5 of the Prevention and Criminalization of Trafficking in Persons and Assistance to Victims of Trafficking (Argentina Law 26.364, 2008). 45 Section 8 of the Regulation 2001/14 on the Prohibition of Trafficking in Persons in Kosovo, United Nations Interim Administrative Mission in Kosovo. 46 Section 17 of the Anti-Trafficking in Persons Act, RA No. 9208, (Philippines, 2003). 47 Section 112 of the Victims of Trafficking and Violence Protection Act (United States, 2000).

600

Duress as a defence under international criminal law 18.30

Duress as a defence under international criminal law 18.28 Questions of non-criminalisation of those coerced into committing international crimes have been brought into much sharper relief by the adoption by many modern day, non-state armed groups, including ISIS and the Nusra Front in Iraq and Syria, Boko Haram in Nigeria, and the RUF in Sierra Leone, to name but a few, of forcible recruitment of soldiers or slaves as a means of servicing the ‘needs’ of their armed forces. However, as discussed above (at para 18.17), the question of how those trafficked for these purposes may be compelled to commit acts constituting international crimes has not received any focused attention in international criminal law. 18.29 Crucially, there is no specific defence in international criminal law that reflects the non-criminalisation principle for trafficked victims. As discussed above, the issue of trafficked victims and their role in the commission of international crimes has been a focus only inasmuch as these issues are relevant to the assessment of the individual responsibility of the alleged criminal mastermind (the trafficker), that is, whether the trafficker procured those victims to further crime and whether those crimes amount to genocide, crime against humanity or war crimes. Most of the relevant questions concerning the trafficked victim’s lack of choice or voluntariness when engaging in criminal conduct are necessarily at the margins of that assessment. 18.30 Meanwhile, even though the defence of duress has generated a lot of discussion amongst scholars48, it remains a singularly neglected area of practice at the international level49. Any meaningful exploration of the non-criminalisation issue has only occurred in the rare occasion when a mastermind/trafficker has raised the question of duress as a defence, denying criminal responsibility on the basis that whilst he committed a crime his actions are, nonetheless, understandable in relation to the coercive circumstances prevalent at the time the crime was committed. On these rarest of occasions, the enquiry has been primarily restricted to overarching questions of whether duress might constitute a complete defence or whether it should be taken into account as a mitigating factor. 48 For example: Marcus Joyce, ‘Duress: From Nuremberg to the International Criminal Court, Finding the Balance Between Justification and Excuse’ (2015) 28(03) LJIL 623–642; Peter Rowe, ‘Duress as a Defence to War Crimes after Erdemovic´: A Laboratory for a Permanent Court?’ (1998) 1 YIHL 210– 228; Noam Wiener, ‘Excuses, Justifications, and Duress at the International Criminal Tribunals’ (2014) 26(2) Pace ILRev. 88–131. 49 Nadia Grant, ‘Duress as a Defence for Former child soldiers?: Dominic Ongwen and the International Criminal Court’ (2016) ICD Brief No. 21, 4.

601

18.31  Forced criminality and non-criminalisation of trafficked persons in the ICC

18.31 The lack of practice at the international level in some respects is unsurprising. It reflects the nature of the international criminal justice project that revolves around the prosecution of those who bear the greatest responsibility for crimes in a given situation50. These generally, including at the ICC, tend to be those whose roles and function place them at the top of the political and military leadership, some distance from any reasonable suggestion of coercion, involuntariness or otherwise lack of agency. In other respects, this lack of consideration also concerns the nature of the crimes being adjudicated, namely war crimes, crimes against humanity and genocide.These crimes are most likely to be considered the most serious of all crimes – crimes of all crimes – and as such are reflexively considered to be both unjustifiable and inexcusable51. In these circumstances, defences or even mitigating factors are generally restrictive in their nature and application52.

The ICC’s Rome Statute Evolution of duress in international criminal law 18.32 When considering duress in international criminal law, it helps in understanding the defence to look at it in the context of its evolution. Prior to the adoption of the Rome Statute in 1998 and the first codification of the defence of duress 50 ICC, Paper on some policy issues before the Office of the Prosecutor (September 2003) 7 states that ‘the Office of the Prosecutor should focus its investigative and prosecutorial efforts and resources on those who bear the greatest responsibility, such as the leaders of the State or organisation allegedly responsible for those crimes’; Article 1 of the Statute of the SCSL (2002) seeks to prosecute persons with the greatest responsibility; UN Security Council Resolution 1503 (28 August 2003) described ICTY’s completion strategy to focus on ‘the most senior leaders suspected of most responsible for crimes within ICTY’s jurisdiction’, which led to addition of a new provision Rule 28(A) in the ICTY Rules of Procedure and Evidence granting the Bureau of the Tribunal to determine indictments on whether they focus on one or more of the most senior leaders suspected of being the most responsible; Article 2 of the Law on the Establishment of the ECCC states the competence is ‘ … to bring to trial senior leaders of Democratic Kampuchea and those who were most responsible for the crimes and serious violations … ’. 51 Article 1 of the Rome Statute (2002) establishes ICC’s jurisdiction ‘over persons for the most serious crimes of international concern’; Article 1 of the ICTY and ICTR Statutes (1993) states the competence for prosecution of ‘serious violations of international humanitarian law’; Article 1 of the Statute of the SCSL  (2002) also gives the power to prosecute for ‘serious violations of international humanitarian law’; Article  1 of the Law on the Establishment of the ECCC prosecutes ‘those responsible for the crimes and serious violations of Cambodian penal law, international humanitarian law and custom, and international conventions recognized by Cambodia’; Phillippe Sands, East West Street: On the Origins of Genocide and Crimes Against Humanity (Weidenfeld & Nicolson, 2016) 380: ‘In the years after the Nuremberg judgment, the word genocide gained traction in political circles and in public discussion as the “crime of crimes … “; Prosecutor v Kambanda, Judgment and Sentence, 4 September 1998, ICTR-9723-S, para 16. 52 Albin Eser, ‘Article 31 Grounds for excluding criminal responsibility’ in Otto Triffterer and Kai Ambos (eds), The Rome Statute of the International Criminal Court: A  Commentary (3rd edn, CH  Beck, Hart, Nomos, 2016), 1151; Carsten Stahn, Critical Introduction to International Criminal Law (CUP, 2019) 147.

602

The ICC’s Rome Statute 18.34

at the international level under Art 31(1)(d) of the Statute, the most significant and influential statements on duress and its status in international law were contained in the International Criminal Tribunal for the Former Yugoslavia’s (‘ICTY’) Appeals Chamber decision and the multiple separate opinions in the case of Erdemovic´ 53. The case involved the unlawful killing of 1,200 victims. Erdemovic´ asserted that he had only shot a number of the victims because he was ‘under duress and without the possibility of another moral choice, that is, in extreme necessity, and that he was not accountable for his acts at the time of the offence, nor was the offence premeditated’54. 18.33 The majority of the ICTY Appeals Chamber held that, as a matter of policy, duress was not available as a defence where the killing of innocent civilians was involved. Purporting to be basing their policy considerations on national approaches to duress, the majority opined, ‘If national law denies duress as a defence even in a case in which a single innocent life is extinguished due to action under duress, international law, in our view, cannot admit duress in cases which involve the slaughter of innocent human beings on a large scale. It must be our concern to facilitate the development and effectiveness of international humanitarian law and to promote its aims and application by recognising the normative effect which criminal law should have upon those subject to them.’55 18.34 Instead the majority considered that duress could be mitigation. As they concluded, ‘One cannot superficially gauge what the law “expects” by the existence of only two alternatives: conviction or acquittal. In reality, the law employs mitigation of punishment as a far more sophisticated and flexible tool for the purpose of doing justice in an individual case. The law, in our view, does not “expect” a person whose life is threatened to be hero and to sacrifice his life by refusing to commit the criminal act demanded of him. The law does not “expect” that person to be a hero because in recognition of human frailty and the threat under which he acted, it will mitigate his punishment.’56

53 Prosecutor v Drazen Erdemovic´, IT-96-22-A, (1997) ICTY paras 19–39, 41–55 (hereinafter ‘Erdemovic´’). See also: Shane Darcy, ‘Defences to International Crimes’, as cited in William Schabas and Nadia Bernaz (eds), Handbook of International Criminal Law (Routledge, 2011) 231–245, 239. 54 Erdemovic´, Judgment, 17 October, IT-96-22-A, para 11(a). 55 Erdemovic´, para 75. 56 Erdemovic´, para 85.

603

18.35  Forced criminality and non-criminalisation of trafficked persons in the ICC

Adoption of Art 31(1)(d) of the Rome Statute 18.35 The adoption of Art 31(1)(d) of the Rome Statute was a significant development in international criminal law, for the first time codifying in a major international criminal law statute that duress could be a ground for excluding criminal liability for core international crimes. 18.36 Whilst there is no specific mention of non-criminalisation of trafficked victims, duress is provided for in Art 31(1)(d) as a full defence to these crimes. In sum, Article 31(1)(d) states that: ‘The conduct which is alleged to constitute a crime within the jurisdiction of the Court has been caused by duress resulting from a threat of imminent death or of continuing or imminent serious bodily harm against that person or another person, and the person acts necessarily and reasonably to avoid this threat, provided that the person does not intend to cause a greater harm than the one sought to be avoided. Such a threat may either be: (i) Made by other persons; or (ii) Constituted by other circumstances beyond that person’s control.’57

Article 31(1)(d) and unlawful killing 18.37 As may be seen, the essence of the Art 31(1)(d) defence is the loss of the ability to exercise free will due to the imminent threat and gravity of the risk58. The definition is proximate to the views expressed by the late Judge Cassese in his dissenting opinion in the Erdemovic´ case. In the opinion, Judge Cassese disagreed with the majority and concluded that duress, under strict requirements, may be a complete defence for war crimes and crimes against humanity, even for unlawful killings59. He identified four common, strict conditions that must be met for duress to be available as a defence60.

57 58 59 60

Article 31(d) of the Rome Statute (2002). Triffterer and Ambos (2016), 1152. Erdemovic´, ‘Separate and Dissenting Opinion of Judge Cassese’, para 50. Erdemovic´, ‘Separate and Dissenting Opinion of Judge Cassese’, para 16: ‘These four conditions consisted of: 1) the act was committed under an immediate threat 2) there were no adequate means of averting the threat 3) the crime committed was not disproportionate to the evil threatened and 4) the situation leading to duress must not have been voluntarily brought about by the person coerced.’

604

The ICC’s Rome Statute 18.41

18.38 Cassese reasoned that there was ‘no special rule of customary international law’ that precluded this defence provided that certain stringent requirements were met, including the fourth condition that prevented its applicability in circumstances where an individual had brought the situation of duress by ‘freely and knowingly’ choosing ‘to become a member of a unit, organisation or group institutionally intent upon actions contrary to international humanitarian law’61. 18.39 Citing with approval from the Einsatzgruppen case by the United States Military Tribunal II sitting at Nuremberg, that acted under Control Council Law No. 10 (to be ‘regarded as an international agreement among the four Occupying Powers (subsequently transformed, to a large extent, into customary law’), ‘let it be said at once that there is no law which requires that an innocent man must forfeit his life or suffer serious harm in order to avoid committing a crime which he condemns. The threat, however, must be imminent, real and inevitable’62. 18.40 Despite this significant divergence from the majority, Cassese’s conception of the defence of duress in his dissenting opinion was still extremely narrow. Cassese went on to say that with regard to ‘the killing of innocents’ the proportionality criterion (meaning that the remedy should not be disproportionate to the evil or that the lesser of two evils should be chosen) ‘will, in practice, be the hardest to satisfy’. Cassese concluded that this requirement may never be satisfied where the accused is saving his own life at the expense of his victim, since there are enormous, perhaps insurmountable, philosophical, moral and legal difficulties in putting one life in the balance against that of others in this way: how can a judge satisfy himself that the death of one person is a lesser evil that the death of another? 18.41 Accordingly, although disagreeing with the majority concerning the applicability of duress in circumstances of unlawful killing, Cassese was still doubtful as to whether the question of proportionality in practice was capable of being fulfilled. However, in the final analysis, he thought that this should be a matter for trial judges to decide. As he opined, in exceptional circumstances this requirement might still be met, ‘for example, when the killing would be in any case perpetrated by persons other than the one acting under duress (since then it is not a question of saving your own life by killing another person, but

61 Erdemovic´, ‘Separate and Dissenting Opinion of Judge Cassese’, para 18. 62 Erdemovic´, ‘Separate and Dissenting Opinion of Judge Cassese’, para 27.

605

18.42  Forced criminality and non-criminalisation of trafficked persons in the ICC

of simply saving your own life when the other person will inevitably die, which may not be ‘disproportionate’ as a remedy’. 18.42 According to Cassese, this might arise in a situation where an execution squad has been assembled to kill the victims, and the accused participates, in some form, in the execution squad, either as an active member or as an organiser, albeit only under the threat of death. In this case, if an individual member of the execution squad first refuses to obey but has then to comply with the order as a result of duress, he may be excused. In these circumstances, ‘[w]ere he to comply with his legal duty not to shoot innocent persons , he would forfeit his life for no benefit to anyone and no effect whatsoever apart from setting a heroic example for mankind (which the law cannot demand him to set): his sacrifice of his own life would be to no avail. In this case the evil threatened (the menace to his life and his subsequent death) would be greater than the remedy (his refraining from committing the crime, i.e., from participating in the execution)’63. 18.43 It might also arise in the case an inmate of a concentration camp, starved and beaten for months, who is then told, after a savage beating, that if he does not kill another inmate, who has already been beaten with metal bars and will certainly be beaten to death before long, then his eyes will be gouged out. Consequently, he kills the other inmate. As Cassese noted, ‘[p]erhaps a hero could accept a swift bullet in his skull to avoid having to kill, but it would require an extraordinary – and perhaps impossible – act of courage to accept one’s eyes being plucked out. Can one truly say that the man in this example should have allowed his eyes to be gouged out and that he is a criminal for not having done so? This example, and one can imagine still worse, is one of those rare cases, in my opinion, where duress should be entertained as a complete defence. Any answer to the question of duress has to be able to cope with such examples which the war in Yugoslavia.’64 18.44 As Cassese suggests, he was deeply concerned that the majority view set ‘intractable standards of behaviour which require mankind to perform acts of martyrdom, and brand as criminal any behaviour falling below those standards’65. Accordingly, ‘where it is not a case of a direct choice between the life of the person acting under duress and the life of the victim – in situations, in other words, where there is a high probability that the person under duress will not be 63 Erdemovic´, ‘Separate and Dissenting Opinion of Judge Cassese’, para 43. 64 Erdemovic´, ‘Separate and Dissenting Opinion of Judge Cassese’, para 47. 65 Erdemovic´, ‘Separate and Dissenting Opinion of Judge Cassese’, para 44.

606

The ICC’s Rome Statute 18.47

able to save the lives of the victims whatever he does – then duress may succeed as a defence’66. Cassese considered that limiting the question to mitigation only, as the majority view did, was unjust: ‘No matter how much mitigation a court allows an accused, the fundamental fact remains that if it convicts him, it regards his behaviour as criminal, and considers that he should have behaved differently’67. 18.45 As outlined above, Art 31(1)(d) appears, to a large degree, to be premised upon Cassese’s views68. Article 31(1)(d) appears to combine two concepts of duress and necessity thereby allowing duress to be both a justification and an excuse69. If established, it would result in complete acquittal of the accused for any of the core international crimes.

Article 31(1)(d) conditions 18.46 Article 31(1)(d), requires three essential conditions to be established before an acquittal, namely that the conduct that is alleged to constitute a crime within the jurisdiction of the Court has been caused by duress: (1) resulting from a threat of imminent death or of continuing or imminent serious bodily harm; (2) the person acted necessarily and reasonably to avoid the threat; and (3) that the person acted proportionally, in that he did not intend to cause a greater harm than the one sought to be avoided.These will be briefly considered below.

Threat of imminent death or of continuing or imminent serious bodily harm 18.47 The threat must be objectively present and should not merely exist in the perpetrator’s mind.70 It has to be real to satisfy the threshold. An ‘abstract threat 66 Erdemovic´, ‘Separate and Dissenting Opinion of Judge Cassese’, para 42. 67 Erdemovic´, ‘Separate and Dissenting Opinion of Judge Cassese’, para 48. 68 It should be noted that while the Rome Statute allows grounds under Art 31 to act as complete defence, the judges at the ICC have the discretion to relegate the circumstances falling short of duress to consider mitigating factors while sentencing the accused. See Jérémie Gilbert, ‘Justice not revenge: The International Criminal Court and the “grounds to exclude criminal responsibility” – defences or negation of criminality?’ (2006) 10(02) IJHR 145. 69 Eser, in Triffterer and Ambos (2016), 1149–1150. William Schabas, however, favours this structure and states that ‘necessity is a defence with great affinities to duress and it is for this reason that the two are combined’, see William Schabas, The International Criminal Court: A Commentary on the Rome Statute (2nd edn, OUP, 2016 ), 647. For more on the controversial discussions on duress as a justification or as an excuse, see Noam Wiener and Sarah J Heim, ‘The Applicability of the Duress Defense to the Killing of Innocent Persons by Civilians’ (2013) 46 CoILJ. 70 Triffterer and Ambos (2016), 1149–1150. Also see, Gerhard Werle et al, Principles of International Criminal Law (TMC Asser Press, 2005), para 560.

607

18.48  Forced criminality and non-criminalisation of trafficked persons in the ICC

or increased likelihood of death or serious bodily harm would not suffice’71.The harm threatened or posed to amount to duress is required to be higher than superficial wounds which can healed easily72. 18.48 Such threat can be made by either other person(s) or circumstances beyond the person’s control, insinuating that self-induced risk or voluntary creation of such circumstances would rule out duress73. Lastly, such threat can be made towards either the accused or any other third person. The Statute does not need the accused to have any special relationship with the stranger threatened. However, acting upon ‘altruistic motives’ might impact the question of whether the threat was grave enough to satisfy the reasonable person test as required in the second element74.

The person acted necessarily and reasonably to avoid the threat 18.49 This element essentially captures Cassese’s ‘choice of lesser evil approach’75 where the harm inflicted is borne out of necessity in that no other means was available and the harm done was reasonably required to achieve the desired result. The reasonable person test is a well-defined concept under criminal law. The term ‘reasonable’ here refers to an ordinary reasonable person and the test is if, under the given set of circumstances, such a person would feel threatened and without a moral choice76.

The person acted proportionally in that he did not intend to cause a greater harm than the one sought to be avoided 18.50 Article  31(1)(d) uses the phrase, that the ‘person does not intend to cause a greater harm than the one sought to be avoided’ which refers to an objective balancing test between two options and the intention to choose the lesser evil

71 Triffterer and Ambos (2016), 1151; Robert Cryer et al (eds), An Introduction to International Criminal Law and Procedure (3rd edn, CUP, 2014), 408; Duress in Ongwen, ICD 6. 72 Triffterer and Ambos (2016) 1151. 73 Wiener and Heim (2013), 187–189. 74 Triffterer and Ambos (2016), 1152. 75 Triffterer and Ambos (2016) ,1153; also see Erdemovic´, ‘Separate and Dissenting Opinion of Judge Cassese’, para 42. 76 Gilbert (2006), 154. Gilbert breaks it down further to three criteria: the accused must have reasonably believed in the existence of the threat; he must have had some reason to believe that such a threat would have been executed; and that the accused must have been reasonably brave.

608

Article 31(1)(d) defence of duress for trafficked persons 18.53

one77. As outlined above (and discussed at length by Cassese in the Erdemovic´ case), in practice, the proportionality requirement is likely to prove the most difficult element to fulfil and assess fairly.

Article 31(1)(d) defence of duress for trafficked persons The Ongwen defence 18.51 To-date, Art 31(1)(d) has not been applied in any trial at the ICC.The on-going trial of Dominic Ongwen is the first one to plead duress as a complete defence for a series of war crimes and crimes against humanity at the ICC, including for direct and indirect perpetration of crimes including attack against the civilian population, murder and attempted murder, rape, sexual slavery, torture, cruel treatment, outrages upon personal dignity, destruction of property, pillaging, the conscription and use of children under the age of 15 to participate actively in hostilities, enslavement, forced marriage as an inhumane act, persecution, and other inhumane acts78. 18.52 It is common ground between the prosecution and the defence that Ongwen was nine years old when he was forcibly conscripted into the LRA, a rebel army then fighting the Ugandan army. As a child solider, he was indoctrinated and subsequently rose to be a senior commander and participated in various ways in an array of international crimes, including war crimes and crimes against humanity. The trial at the ICC began on 6 December 2016, with the opening statements and presentation of evidence by the prosecution and the victims’ representatives79. The defence presented two mental health experts as witnesses, who testified about Ongwen’s mental state80. After a trial lasting four years, and closing arguments between 10 and 12 March 2020, the Trial Chamber has now retired to deliberate on the fate of Dominic Ongwen81. 18.53 The accused’s not guilty plea rests upon his claim that he was recruited, exploited and lacked autonomy to form the requisite mental state to be held responsible for his actions that include direct and indirect participation in an array of war crimes and crimes against humanity. Inevitably, Ongwen’s trial 77 78 79 80 81

Werle (2005), para 564. Ongwen, Confirmation Decision, ‘Conclusion’, 71–104. Ongwen Prosecution Opening Statement, ICC-02/04-01/15-T-26-eng, 6 December 2016. Ongwen Defence Witness Presentation, ICC-02/04-01/15-T-248-Red-eng, 18 November 2019. Ongwen Case, Timeline, available at: https://www.icc-cpi.int/uganda/ongwen#icc-timeline, accessed 5 August 2020.

609

18.54  Forced criminality and non-criminalisation of trafficked persons in the ICC

has attracted considerable interest and diverging views concerning causation, coercion and the lack of agency. Relying on Art 31(1)(d), the defence have claimed that Ongwen was a victim who was transformed into a perpetrator under the ‘keen watch of Joseph Kony and his spy network’ and because he truly believed ‘he was helpless under the spell of Kony’s spiritualism’82. Ongwen asserts that that he faced the choice between committing the crimes or being killed. He claims that he has spent ‘most of his life under duress’ and ‘remained under the apprehension of fear or imminent death, especially if he were to flee [from the LRA and the overall commander, Joseph Kony]’83. On this view, the relationship between Ongwen’s role as a child soldier (abductee) and recruiter of child soldiers (abductor) is a relationship of cause and effect84. The defence claim that the mental disposition ruled out the ability to act independently as a reasonable man even after attaining physical adulthood85; Ongwen was nothing more than a cog in the LRA instrument and that the real perpetrator is the LRA as a criminal organisation86.

How will the ICC approach Ongwen’s Art 31(1)(d) defence? 18.54 For the prosecution and Ongwen’s detractors more generally, his defence is little more than a claim that Ongwen ‘developed a criminal state of mind because of his or her past experiences’87, an impermissible defence to criminal charges at the ICC. The ICC’s Pre-Trial Chamber in their confirmation of charges decision when rejecting the defence’s attempt to have the case dismissed, expressed a significant degree of scepticism, opining that the intended defence could open the floodgates to a ‘blanket immunity to members of criminal organisations which have brutal systems of ensuring discipline’88. Sceptics also doubt the associated and necessary claim that Ongwen did not have a single opportunity to escape in the 27 years that he was allegedly under the complete control of Kony89. 18.55 As noted, the case is on-going at the time of writing. Accordingly, it is not known how the Trial Chamber at the ICC will interpret the elements of Art 82 Ongwen, Defence Opening Statement, ICC-02/04-01/15-T-179-conf-eng, 18 September 2018, 5. 83 Ongwen, Defence Brief for the Confirmation of Charges Hearing, ICC-02/04-01/15-404-Conf, 18 January 2016, para 4. 84 Raphael Pangalagan, ‘Dominic Ongwen and the Rotten Social Background Defense: The Criminal Culpability of Child Soldiers Turned War Criminals’ (2018) 33(03) AUILR 631. 85 Ongwen, Defence Opening Statement (2018), 5. 86 ‘Just or Unjust? Mixed Reactions on Whether Ongwen Should be on Trial’, JusticeHub, 24 April 2017. 87 Alex Whiting, ‘There is Nothing Extraordinary about the Prosecution of Dominic Ongwen’, Justice in Conflict, 18 April 2016. 88 Ongwen, Decision of Confirmation of Charges, ICC-02/04-01/15, 23 March 2016, para 153. 89 Lino Owor Ogora, ‘Just or Unjust? Mixed Reactions on Whether Ongwen Should be on Trial’ (24 April 2017), International Justice Monitor.

610

Article 31(1)(d) in action 18.57

31(1)(d) and how they will apply the law to the facts. However, as the below brief discussion of the likely approach of the ICC to the underling facts in Ongwen’s case shows, despite a significant expansion of the function of duress compared with the role it played in the Nuremberg Trials and the ICTY jurisprudence90, the Art 31(1)(d) concept of duress is considerably narrower than the general concept of duress reflected in even the compulsion-based approach to noncriminalisation of trafficking victims more generally.

Article 31(1)(d) in action Mere possibility of death not sufficient 18.56 First, and most obviously: not all trafficking experiences correspond to the extremities imagined by Art 31(1)(d) that requires as a departure point a threat of death or of continuing or imminent serious bodily harm. Whilst, any coercion, conditioning, stigma, or factor otherwise indicative of an infringement of choice (characteristic of many trafficking experiences), will be relevant, Art 31(1)(d) requires a real, concrete and severe threat; a mere abstract or increased likelihood of a threat will not suffice91.A mere possibility of death in the future is unlikely to amount to a sufficient threat for the purposes of Art 31(1)(d). Nor is an abstract danger or an elevated probability that a dangerous situation might occur92.Additionally,Art 31(1)(d) looks likely to exclude threats of psychological harm, as argued by the Ongwen as part of the duress93. As Art 31(1)(d) makes clear, the harm threatened must be either death or ‘bodily harm’. Further, the threat must result in duress which in turn causes the alleged criminal action94.

Crime and threat analysis 18.57 Moreover, these exacting requirements demand such threat needs to be established, not only at the point when the victim was trafficked but must also have been operating throughout the trafficking experience. Ongwen’s 70 alleged offences occurred in the period between 1 July 2002 and 31 December 200595. However, as argued by the prosecution, the text of Art 31(1)(d) consistently uses 90 To understand the jurisprudence of duress from moral choice test as developed in the Nuremberg Tribunal to the broader moral and policy considerations followed in ICTY, see Joyce (2015) above. 91 Werle (2005), para 560. 92 Eser, in Triffterer and Ambos (2016), 1151. 93 Ongwen, Defence Opening Statement (2018), 40. 94 Eser, in Triffterer and Ambos (2016), 1152. 95 Ongwen, Confirmation Decision, para 2.

611

18.58  Forced criminality and non-criminalisation of trafficked persons in the ICC

the relevant terms in singular form: ‘a crime’, ‘a threat’, ‘this threat’, ‘a greater harm’. It follows that to exclude criminal responsibility for any one of them, the ICC is likely to demand an individualised approach, requiring that the elements of duress are assessed in relation to each of the 70 charged crimes96. The duress analysis must be threat- and crime specific97. Accordingly, in relation to the various threats that are relied upon by the defence, including alleged threats from Joseph Kony and the LRA disciplinary regime; of collective punishment against Mr Ongwen’s home village (in case of escape); from spies within the LRA; from, or enhanced by, spirits; a threat of ‘arrest’, demotion, or other punishment, will need to be shown, not only at the point when he was forcibly recruited into the LRA as a child, but throughout his time in the LRA98. Any divergence from this approach is likely to be seen, as it was by the ICC’s Pre-Trial Chamber, as providing an unacceptable form of blanket immunity to perpetrators that are members of organisations with brutal disciplinary systems99. 18.58 As argued by the prosecution in relation to these alleged threats, an increased danger of death or serious punishment will unlikely suffice, other than as relevant contextual evidence. For example, according to the prosecution, in relation to any threat posed by Kony, there was evidence that tended to show that he could be challenged without serious consequences100. In relation to the threat of collective punishment, such that it existed, the prosecution argue that it was not imminent. In this respect, they consider that the imminence requirement would require more than the possibility that Kony might, in a later revenge attack, send LRA fighters to Mr Ongwen’s village to commit atrocities, or perhaps that the LRA might attack the village next time it was in the area. It requires that the LRA fighters were stationed near Mr Ongwen’s home village, waiting to launch a revenge attack in the event Mr Ongwen escaped. 18.59 As for the threat posed by the spies, again, the prosecution assert that the imminence requirement is not made out. There ‘was no indication that spies would be prepared to personally kill or harm Mr Ongwen’, only that the spies would send information back to Kony, who could then issue orders regarding

96 Ongwen, Confirmation Decision, para 153. See also Prosecutor v Mrd¯a, IT-02-59-S, Sentencing Judgment, 31  March 2004, para  65-68; Prosecutor v Kaing Guek Eav, 001/18-07-2007/ECCC/TC, Judgment, 26 July 2010, paras 553–558. 97 Ongwen, Prosecution Closing Brief, 24 February 2020, para 474. 98 Grant (2016), 13. 99 Ongwen, Confirmation Decision, para 153 states ‘Duress is not regulated in the Statute in a way that would provide blanket immunity to members of criminal organisations which have brutal systems of ensuring discipline as soon as they can establish that their membership was not voluntary’. 100 Ongwen, Prosecution Closing Brief, para 485.

612

Article 31(1)(d) in action 18.61

Mr Ongwen101. According to the prosecution anything less than this type of imminence would be ‘a speculative risk, merely an increased possibility that the threatened harm might occur. As such, it lacks the imminence required by article 31(1)(d)’102.

Avoiding the Threat 18.60 Similarly, the Art 31(1)(d) requirement that the person acted necessarily and reasonably to avoid the threat will likely be applied restrictively and is likely to create insuperable obstacles for the defence of duress on the facts of Ongwen’s case. Plainly, these criteria demand that the operating threat precludes any practical degree of voluntariness or even meaningful choice. Concerning necessity, the ICC is likely to demand that the reaction to the threat – the crime – was the only means possible to deter the threat103. In order to satisfy this requirement, it must be shown that Ongwen had no adequate means of escaping the LRA and, thus, the continuing threat of harm against him104. It will not be enough to show the seriousness of the threat or the reasonableness of his action (see below). He must have been under a constant threat and the only way Ongwen could avoid the threat was to commit crimes in order to avoid his own death or serious bodily injury. 18.61 For conduct to be considered ‘reasonable’, it must be proportionate to the threat posed105. In the case of the perpetration of such an array of core international crimes, this will require a considerable degree of projection. On the one hand, there may be those who argue that a reasonable person would accede to almost any demand when faced with an imminent threat to his life106. On this point, the majority in Erdemovic´ may be criticised for a conclusion that individuals are expected to have chosen their own death in order to not be criminally liable. As observed above, the enactment of Art 31(1)(d) appears to move away from this view and towards those expressed by Judge Cassese, namely that such 101 Ongwen, Prosecution Closing Brief, para 493 states that ‘the threat from Kony was itself not imminent for article 31(1)(d) purposes, and the threat posed from any LRA spies was even more attenuated.’ The OTP thus argues that there is no evidence connecting a threat posed by LRA spies to any of the charged crimes. No witness suggested that Kony planted LRA spies to ensure that Mr Ongwen raped his forced wives or ordered the torture of civilians at Odek, for example. Absent any connection between the alleged role of spies and any of the charged crimes, the application of Art 31(1)(d) must therefore be rejected according to the OTP. 102 Ongwen, Prosecution Closing Brief, para 490. 103 Werle (2005), para 561. 104 Grant (2016), 14. 105 Eser, in Triffterer and Ambos (2016), 1153–1154; Prosecutor v Erdemovic´, IT-96-22-A, Separate and dissenting opinion of Judge Cassese, 7 October 1997, para 41-42. 106 For further discussion, see: Benjamin J Risacher, ‘No Excuse: the Failure of the ICC’s Article 31 “Duress” Definition’ (2014) 89 Notre Dame L. Rev. NDLR 1424; See Grant (2016), 16.

613

18.62  Forced criminality and non-criminalisation of trafficked persons in the ICC

an obligation would require acts of heroism, which is not the type of duty that should be made of individuals107. Nonetheless, however the Trial Chamber approaches this requirement, it will remain exacting. The evidence will need to show there existed a set of circumstances that prove the ‘ordinary, reasonable person’ would have believed he was in such grave danger that the threat deprived him of his ability to make any other choice. In other words, that a reasonable man, in the same circumstances, would have acted in that way.

Assumptions of resilience 18.62 Moreover, there may be an additional complexity depending upon the circumstances deemed relevant to the ordinary reasonable person test. In the Erdemovic´ case both the majority and the dissenting judges, including Cassese, agreed that soldiers, and others with a special duty, should be expected to exercise a higher level of resistance to coercion108. In other words, Ongwen is likely to be judged according to the reasonable man in his position as a commander in the LRA. He will likely be adjudged to be expected to have possessed resilience to a degree of threat and danger that others, such the reasonable and ordinary civilian, would not have. 18.63 There is of course a danger to this restrictive approach. First, while it may be true that soldiers have to face higher levels of threat and risk than those of ‘ordinary’ persons who do not work daily in situations of conflict, it is said that soldiers cannot be obliged to accept their death or serious bodily harm from another person109. Moreover, whilst it may be true that career soldiers may possess or develop a higher level of resistance to threats than the ordinary person, it is debatable whether, as an abducted child and forced recruit of a rebel group, this assumption automatically applies to Ongwen. Nonetheless, in light of the brutality of the LRA, Ongwen’s longstanding experience and exposure to brutality, and the likelihood that the Trial Chamber will be keen to avoid providing blanket immunity to perpetrators that are members of organisations with brutal disciplinary systems, it may be expected that the Trial Chamber will approach this requirement carefully: the level of resistance displayed may be adjudged to have changed over time, depending, for example, on his age, and continued observance and experience of the brutality of the LRA.

107 Erdemovic´, ‘Separate and Dissenting Opinion of Judge Cassese’, para 47. 108 Wiener and Heim (2013), 179. 109 Kai Ambos, ‘Defences in International Criminal Law’, in Bartram S. Brown (ed), Research Handbook on International Criminal Law (Edward Elgar, 2011), 313.

614

Article 31(1)(d) in action 18.65

18.64 In this regard, the prosecution’s arguments concerning the question of Ongwen’s reasonableness in avoiding his own certain death do appear to have considerable merit.They rely upon a variety of evidence to cast doubt on the reasonableness of Ongwen’s actions, arguing that Mr Ongwen had a range of alternative choices and that he ‘could have refused to commit the charged crimes, could have chosen to remain inactive or in sickbay, or could have escaped the LRA as did so many others’110. The evidence included his non-compliance with orders on a number of occasions (e.g., continuing to abduct women despite Kony’s prohibition on the practice without adverse consequence111; and reports of Kony’s dissatisfaction with discipline in the LRA more generally112). There was also evidence of his ability to remain inactive if he had chosen to do so (eg, through feigning sickness or injury or taking advantage of injuries he did suffer to avoid taking part in operations). There was evidence ‘that escape from the LRA was not only possible, but was in many ways the norm’113, including for senior commanders, and that his seniority would have increased and not decreased his opportunities for escape114. If the Trial Chamber finds these underlying facts established on the evidence, Ongwen’s defence is likely to be severely, if not decisively, undermined. 18.65 Moreover, in light of the grotesque and specific nature of some of the crimes115, and the alleged cruelty seen in some of Ongwen’s acts, is likely to face an even greater up-hill battle in showing that the commission of those crimes remained his only choice. The cruelty that can be seen in some of Ongwen’s acts, a trademark of the LRA, raises a serious question as to whether a reasonable person, faced with the same ‘kill or be killed’ scenario, would have acted in the same way. As argued by the prosecution, further evidence that Mr Ongwen’s conduct was not necessary or reasonable is that, on a number of occasions, Mr Ongwen behaved with extreme violence towards his victims, including stating 110 Ongwen, Prosecution Closing Brief, para 474. 111 Ongwen, Prosecution Closing Brief, para 504. 112 Ongwen, Prosecution Closing Brief, para 504. 113 Ongwen, Prosecution Closing Brief, para 508. 114 Ongwen, Prosecution Closing Brief, paras 508–515. 115 Ongwen, Confirmation Decision: ‘After her abduction, P-0099 in coercive circumstances, became Dominic Ongwen’s forced exclusive conjugal partner – his forced wife. As Dominic Ongwen’s forced wife, she had to maintain an exclusive sexual relationship with him, have sexual intercourse with him on demand, bear children, perform domestic chores and otherwise do what Dominic Ongwen instructed her to do … Dominic Ongwen exercised any or all of the powers attaching to the right of ownership over (P-0099) for the entire period of her forced marriage to him’ (paras 69–70). ‘P-0101 was first raped by Dominic Ongwen on the day of her abduction. Dominic Ongwen pinned her down and penetrated her vagina with his penis, using physical force as well as threatening to shoot her if she refused’ (para 76). ‘As a result of rape by Dominic Ongwen, P-0214 became pregnant four times while in LRA captivity’ (para 88). ‘Dominic Ongwen contributed to the realization of the common plan by personally using children under 15 as escorts who participated in hostilities alongside him; ordering his subordinates to abduct children to replenish the ranks of his troops, who proceeded to abduct and conscript children under 15 into Sinia brigade as a result of his orders’ (para 129).

615

18.66  Forced criminality and non-criminalisation of trafficked persons in the ICC

that ‘when civilians die he feels happy’; and private sexual violence committed in private where ‘nobody was present to know whether Mr Ongwen performed any particular act at all’116.

Proportionality and the gravest of crimes 18.66 Finally, as discussed above, the final element of Ongwen’s Art 31(1)(d) defence requires the Chamber to find that any of the crimes intended by Ongwen were proportionate to any threat posed. Ongwen must have acted proportionally in that he did not intend to cause a greater harm than the one sought to be avoided. In other words, it is not explicitly required that the individual causes less harm in fact, but rather that subjectively the person intended to cause no greater harm. Some have argued a close reading of the wording of this provision suggests that, since the harm caused must not be greater than the harm sought to be avoided, the harm caused may be of equal damage in order to fall under the defence of duress117. 18.67 Of course, this tends to suggest that the proportionality analysis will vary according to the nature of the crime. Logically, the more egregious the crime, the more difficult this condition of the defence of duress would be to satisfy. It will be the hardest to satisfy in the case of Ongwen, especially since the alleged acts include the killing of innocent civilians. As argued by the prosecution, ‘Mr Ongwen is charged with serious war crimes and crimes against humanity, including murder, torture, crimes of sexual violence, and crimes against children. Even if Mr Ongwen had been faced with a threat of imminent death, specifically connected to his commission of these crimes, that risk would not have justified, for example, the murder of numerous innocent civilians, including women and children’118. 18.68 It is highly likely that the ICC will, at least in part, agree with the prosecution.As discussed above, these issues were, perhaps, the most contentious in the Erdemovic´ case, with the majority refusing to countenance the availability of duress as a defence against crimes against humanity or war crimes which involved the killing of innocent civilians due to the alleged impossibility to balance one person’s life against another119. Even Cassese observed the unlikelihood of the

116 Ongwen, Prosecution Closing Brief, paras 516–518. 117 Risacher (2014), 1418. 118 Ongwen, Prosecution Closing Brief, para 519. 119 Erdemovic´ (1997), para 373.

616

Duress and trafficking 18.70

proportionality requirement being met in these circumstances120. However, he rejected the idea that the defence of duress could never be applicable to crimes involving the killing of innocents. He considered that the general rule of duress must be applied to all types of crimes on a case-by-case basis, regardless of whether the case involved the killing of innocent civilians121.Whilst Art 31(1)(d), as enacted, supports the Cassese view concerning the availability of the defence, there is little to suggest that his hardline views concerning the unlikelihood of a finding of proportionality in such cases will also not be adopted. In these circumstances, proportionality is likely to remain the most difficult requirement for Ongwen to meet. As convincingly argued by the prosecution, ‘[d]ue to the sheer brutality of the LRA’s acts and the signature cruelty with which they are carried out, it is doubtful whether it can be found that Ongwen’s acts were proportionate to the threat against him’. Some who witnessed Ongwen’s life in the LRA even said that Ongwen went too far and killed to ‘thrive’122, rather than survive, and if this can be found to be true, then the proportionality requirement will not be satisfied123.

Duress and trafficking 18.69 As an examination of the precise elements of Art 31(1)(d) and their prospective application to the facts of Ongwen’s case at the ICC show, there is little in the physical and mental elements of the defence that suggest that it has the nuance or reach to describe, let alone justify or excuse, the commission of core international crimes associated with many trafficking experiences. 18.70 Moreover, putting aside Art 31(1)(d)’s restrictive requirements and its inapplicability to many trafficking experiences, the normative force of the conventional principles of international criminal law, that mandate the attribution of individual responsibility upon fulfilment of the physical and mental elements (actus reus and mens rea) for the most gravest of crimes, promises to ensure that even this rarest of defences remains highly contested and controversial. Even though Art 31(1)(d) represents a significant improvement in this respect, eschewing the policy considerations that were the driving force behind the majority rejection of duress as a defence in the Erdemovic´ case, there is little to suggest that it represents any kind of sea change in the overall approach to allowing trafficking experiences to be taken into account in international criminal law. 120 Erdemovic´ (1997), para 373. 121 Erdemovic´ (1997), para 41. 122 Mark A Drumbl, ‘The Ongwen trial at the ICC: tough questions on child soldiers’ (14 April 2015), Open Democracy. 123 Grant (2016), 18.

617

19 Compliance and trafficking Philippa Southwell, Michelle Brewer and Ben Douglas-Jones QC

Corporate compliance, business and human rights 19.1 Corporate enterprises can face significant challenges in complying with national and international legal obligations. The UN  Guiding Principles for Business and Human Rights (‘UNGPs’) and other international standards were designed to assist businesses with understanding corporate responsibilities and safeguard against human rights violations when operating businesses.

Section 54: Modern Slavery Act 2015 Modern slavery compliance statement 19.2 Section 54 of the Modern Slavery Act 2015 (‘MSA 2015’) concerns transparency in supply chains. It addresses the role of businesses in preventing modern slavery in their supply chains. Section 54 requires any commercial organisation in any sector supplying goods or services, which carries on a business or part of its business in the UK, and has over £36m turnover, to produce a slavery and human trafficking statement for each financial year of the organisation. Section 54 is in the following terms: ‘54 Transparency in supply chains etc (1) A commercial organisation within subsection (2) must prepare a slavery and human trafficking statement for each financial year of the organisation. (2) A commercial organisation is within this subsection if it— (a) supplies goods or services, and (b) has a total turnover of not less than an amount prescribed by regulations made by the Secretary of State. 619

19.2  Compliance and trafficking

(3) For the purposes of subsection (2)(b), an organisation’s total turnover is to be determined in accordance with regulations made by the Secretary of State. (4) A slavery and human trafficking statement for a financial year is— (a) a statement of the steps the organisation has taken during the financial year to ensure that slavery and human trafficking is not taking place— (i)

in any of its supply chains, and

(ii) in any part of its own business, or (b) a statement that the organisation has taken no such steps. (5) An organisation’s slavery and human trafficking statement may include information about— (a) the organisation’s structure, its business and its supply chains; (b) its policies in relation to slavery and human trafficking; (c) its due diligence processes in relation to slavery and human trafficking in its business and supply chains; (d) the parts of its business and supply chains where there is a risk of slavery and human trafficking taking place, and the steps it has taken to assess and manage that risk; (e) its effectiveness in ensuring that slavery and human trafficking is not taking place in its business or supply chains, measured against such performance indicators as it considers appropriate; (f)

the training about slavery and human trafficking available to its staff.

(6) A slavery and human trafficking statement— (a) if the organisation is a body corporate other than a limited liability partnership, must be approved by the board of directors (or equivalent management body) and signed by a director (or equivalent); (b) if the organisation is a limited liability partnership, must be approved by the members and signed by a designated member; (c) if the organisation is a limited partnership registered under the Limited Partnerships Act 1907, must be signed by a general partner; (d) if the organisation is any other kind of partnership, must be signed by a partner. 620

Section 54: Modern Slavery Act 2015 19.2

(7) If the organisation has a website, it must— (a) publish the slavery and human trafficking statement on that website, and (b) include a link to the slavery and human trafficking statement in a prominent place on that website’s homepage. (8) If the organisation does not have a website, it must provide a copy of the slavery and human trafficking statement to anyone who makes a written request for one, and must do so before the end of the period of 30 days beginning with the day on which the request is received. (9) The Secretary of State— (a) may issue guidance about the duties imposed on commercial organisations by this section; (b) must publish any such guidance in a way the Secretary of State considers appropriate. (10) The guidance may in particular include further provision about the kind of information which may be included in a slavery and human trafficking statement. (11) The duties imposed on commercial organisations by this section are enforceable by the Secretary of State bringing civil proceedings in the High Court for an injunction or, in Scotland, for specific performance of a statutory duty under section 45 of the Court of Session Act 1988. (12) For the purposes of this section— “commercial organisation” means— (a) a body corporate (wherever incorporated) which carries on a business, or part of a business, in any part of the United Kingdom, or (b) a partnership (wherever formed) which carries on a business, or part of a business, in any part of the United Kingdom, and for this purpose “business” includes a trade or profession; “partnership” means— (a) a partnership within the Partnership Act 1890, (b) a limited partnership registered under the Limited Partnerships Act 1907, or (c) a firm, or an entity of a similar character, formed under the law of a country outside the United Kingdom; 621

19.3  Compliance and trafficking

“slavery and human trafficking” means— (a) conduct which constitutes an offence under any of the following— (i)

section 1, 2 or 4 of this Act,

(ii) section 1, 2 or 4 of the Human Trafficking and Exploitation (Criminal Justice and Support for Victims) Act (Northern Ireland) 2015 (c. 2 (N.I.)) (equivalent offences in Northern Ireland), (iii) section 1 or 4 of the Human Trafficking and Exploitation (Scotland) Act 2015 (asp 12) (equivalent offences in Scotland), or (b) conduct which would constitute an offence in a part of the United Kingdom under any of those provisions if the conduct took place in that part of the United Kingdom.’ 19.3 The statement must include steps the organisation has taken during the financial year to ensure that modern slavery is not occurring in their supply chains and within their own organisation. What the provision does not require is that the organisation guarantees that the entire supply chain is slavery-free. If an organisation has not taken steps, they must publish a statement stating this to be the case. This statement must be published on the organisation’s website (where they have one). If the company does not have a website, a copy of the statement is to be provided to anyone who makes a written request for one. It should be provided within 30 days of receipt of the request. 19.4 The Home Office recommends that organisations use the statement to show they are (i) acting transparently, and showing risks identified and steps taken concerning them; (ii) ‘targeting actions’ by ‘prioritising … risks’; and (iii) ‘making year-on-year progress to address … risks and improve outcomes for workers’1.

Differing organisational structures 19.5 For organisations operating under a franchise model, where the turnover of a franchiser is above the £36m threshold the franchiser will be required to produce 1 Home Office, Transparency in Supply Chains etc.: A  practical guide (October 2015), available at https:// assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/649906/ Transparency_in_Supply_Chains_A_Practical_Guide_2017.pdf (last accessed 17 August 2020).

622

Section 54: Modern Slavery Act 2015 19.9

a slavery and human trafficking statement. In determining the total turnover of a business operating a franchise model, only the turnover of the franchiser will be considered. The turnover of any franchisee using the franchiser’s brand and distributing goods or providing services under the franchise brand will not be used in calculating the franchiser’s turnover. However, franchisers who meet the turnover threshold may wish to consider the impact on their brand of the activities of franchisees in relation to modern slavery, and in so doing report on the steps taken to ensure the franchisee as a whole is free from modern slavery. The Home Office advises that businesses with ‘a demonstrable business presence in the UK’, meeting the s 54 criteria for publishing a statement should do so. Matters which might give rise to such presence include being registered at Companies House in the UK, having UK offices, having service or support functions in the UK, having an income in the UK and having any other visible business presence in the UK, such as a website. 19.6 Each parent and subsidiary organisation (whether it is UK-based or not) will be required to produce a statement where they meet the following requirements: •

they are a body corporate or a partnership (described as an ‘organisation’ in this document), wherever incorporated;

•

they carry on a business, or part of a business, in the UK;

•

they supply goods or services; and

•

they have an annual turnover of £36m or more.

19.7 The Home Office advises that company groups could publish a compendious statement or separate statements for subsidiary companies. Where a global statement is published it should make clear what organisations are included in the statement and publish it on all the companies’ websites. 19.8 The Home Office recognises that holding companies may not meet the criteria for publishing a statement because, for example, they do not provide goods or services. However, where they meet the criteria, they must publish a statement or be included in a group statement. 19.9 The Home Office advises that charities must publish an annual statement if they meet the criteria, including turnover. Turnover is governed by whether charity income is received from business activities, e.g. the provision of goods and services for a fee. Turnover does not generally include donations, legacies, and grants. However, the purpose of a grant, whether the grant giver receives 623

19.10  Compliance and trafficking

any benefit or whether there are any specific conditions as to what the charity can use the grant for determine whether grant income might be seen to be derived from business activities. 19.10 The Home Office advises that those involved in investment funds must publish an annual statement if they meet the criteria, including turnover.Turnover does not include investment income from dividends and shares but does include turnover from goods and services, e.g. fund management services. 19.11 If in or entering administration, an organisation must consider whether it meets the criteria for the relevant financial year. It will not generally meet the requirement if no longer trading. If the organisation is trading, and meets the criteria, it must publish a statement. 19.12 Smaller companies who do not meet the turnover can voluntarily ‘produce a slavery and human trafficking statement’.

Content of the statement 19.13 Section 54 of MSA 2015 is not prescriptive about the layout or specific content of a slavery and human trafficking statement.The provision does provide a nonexhaustive list of information that may be included: •

the organisation’s structure, its business, and its supply chains;

•

its policies in relation to slavery and human trafficking;

•

its due diligence processes in relation to slavery and human trafficking in its business and supply chains;

•

the parts of its business and supply chains where there is a risk of slavery and human trafficking taking place, and the steps it has taken to assess and manage that risk;

•

its effectiveness in ensuring that slavery and human trafficking is not taking place in its business or supply chains, measured against such performance indicators as it considers appropriate;

•

the training and capacity building about slavery and human trafficking available to its staff.

The content of the statement must be approved and signed by a director, member, or partner of the organisation. 624

Section 54: Modern Slavery Act 2015 19.18

Consequences of non-compliance 19.14 If the business which has the specified turnover fails to produce a slavery and human trafficking statement for a particular financial year, the Secretary of State may seek an injunction through the High Court requiring the organisation to comply. If the organisation fails to comply with the injunction, it will be in contempt of court, which is punishable by an unlimited fine. A  failure of the business to comply with a s  54 provision may damage the reputation of the business. 19.15 The UK government estimates 9,000–11,000 companies are required to report under MSA  2015. It is estimated that there are 16 million victims working within the private sector worldwide2. There is a current climate for ethical business practices and frequently investors require comprehensive human rights due diligence and risk management when entering into business transactions. 19.16 In October 2018, the Home Office wrote to the chief executives of 17,000 UK companies who had not published a s 54-compliant modern slavery statement and who were required to do so under the Act. It warned that the Home Office would publish a list of non-compliant companies following an audit of statements. 19.17 In 2019, the government ordered an official audit of companies who were required to report but had not. It is anticipated that the government will publish a list of companies who have failed to comply. At the time of writing, the outcome of that audit is still unknown; and no proceedings have been bought by the government under s  54(11), which permits the Secretary of State to bring civil injunctive action in the High Court.

Corporate criminal offences 19.18 Section 54 has been the focus of large organisations. However, companies are persons by virtue of the Interpretation Act 1978. The existence of and compliance with s  54 does not prevent corporate criminal 2 See https://www.globalslaveryindex.org/ (last accessed June 2020).

625

19.19  Compliance and trafficking

liability for persons who commit offences of slavery, servitude and forced or compulsory labour (MSA  2015, s  1); human trafficking (MSA  2015, s  2) or another offence with intent to commit a human trafficking offence (MSA 2015, s 4). 19.19 Furthermore, prosecutors may consider charging companies, officers, and employees with inchoate offences under the Serious Crime Act 2007, i.e.: • intentionally encouraging or assisting an offence (s 44); •

encouraging or assisting an offence believing it will be committed (s 45); or

• encouraging or assisting offences believing one or more will be committed (s 46). 19.20 Such inchoate offences are likely to be easier to prove than the substantive offences under ss 1, 2 and 4 of MSA 2015 and in the event of conviction would render the company or individual ‘… liable to any penalty for which he would be liable on conviction of the anticipated or reference offence’ (Serious Crime Act 2007, s 58).

Section 54 statements: effectiveness and the future of compliance 19.21 The UK government has committed to strengthening the transparency in supply chains requirements of s  54 of MSA  2015. Organisations should be proactive in anticipating how s  54 will be strengthened. If organisations do no more than comply with s 54 as it currently stands, they may be at risk of reputational damage and / or exposure to civil or criminal liability. 19.22 Three principal resources show how the law is likely to be changed: (1) The House of Lords and House of Commons Joint Committee on Human Rights, Report on Human Rights and Business 2017: Promoting responsibility and ensuring accountability3 (‘joint committee report’);

3 Sixth Report of Session 2016–17: HL Paper 153 HC 443, published on 5 April 2017 by authority of the House of Lords and House of Commons, paras 89 to 114.

626

Section 54 statements: effectiveness and the future of compliance 19.26

(2) The Independent Review of the Modern Slavery Act 2015 conducted by Frank Field MP (chair), Maria Miller MP and Baroness Butler-Sloss (Final Report of May 2019)4; and (3) The Home Office ‘Transparency in supply chains’ consultation, which ended on 17 September 2019.

Joint committee report 19.23 The joint committee report noted that studies had shown that many statements failed to meet basic requirements, such as being signed off by the company director. It noted that over a third of statements said nothing of their risk assessment processes, which the joint committee described as ‘surprising’ because statements are intended to be ‘based around a due diligence approach’. The joint committee observed that two-thirds of the statements did not identify priority risks, whether in terms of countries, supply chains or business areas. 19.24 The joint committee report noted findings of a consultancy that found many statements ‘contain[ed] nearly identical wording’; i.e. there was a concern that they were boilerplate statements which did not reflect respective organisations’ information. Statements were of varying quality because the Home Office guidance was not prescriptive as to what should be included. Statements did not reveal much, if anything, about the practical steps being taken to tackle modern slavery. The joint committee noted that the Institute for Human Rights and Business and UNICEF thought that many statements reflected a cautious, legalistic approach which did not reveal ‘operational human rights risks’. 19.25 The joint committee report noted the justified criticism that a statement may simply set out that no due diligence had been undertaken by an organisation and that would constitute compliance. 19.26 The joint committee report observed that there was not a list of companies which were required to comply with s 54 and no central repository of statements. 4 Available at https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_ data/file/803406/Independent_review_of_the_Modern_Slavery_Act_-_final_report.pdf (last accessed 17 August 2020).

627

19.27  Compliance and trafficking

That had prompted two ‘important projects’ by separate NGOs who had set up their own repositories. It also noted the concerns of an MP who had pointed out that the companies meeting the £36 million turnover threshold would vary year on year. 19.27 It was noted that the scope could be widened from tackling ‘transparency in relation to slavery’ to address ‘the many other human rights issues that may arise in [organisations’] supply chains.’ The views of an academic who suggested reporting on all four International Labour Organization (‘ILO’) core labour obligations, rather than merely modern slavery, were recorded in the report, particularly focusing on existence of freedom of association and collective bargaining and the relationships that companies have with trade unions throughout their operations: ‘That duty should be complied with in a way whereby trade unions are consulted about the content of the report in order to ensure that there is a level of veracity and reliability about the report’. 19.28 The joint committee report recorded the views of lawyers from firms that represent victims in claims against businesses. They were in favour of legislation to require ‘companies or any businesses over a certain size … to conduct and report on human rights due diligence’ to help create an evidence trail. 19.29 Concern was noted that many companies did not know about MSA 2015. 19.30 The joint committee report recorded the argument that there was a ‘missed … opportunity’ because s 54 had not been enacted to include public bodies. 19.31 The joint committee report also noted the aims of the Modern Slavery (Transparency in Supply Chains) Bill, a private member’s Bill of 2016. The Bill sought to amend s 54 to: include public bodies; require companies and public bodies to publish their statements in their company reports, lodging them with appropriate bodies such as Companies House or the Charity Commission; require the Secretary of State to compile a list of companies that should be compliant with transparency in supply chains, to make it possible for NGOs, civil society and the general public to find the information required for effective monitoring; and prevent public bodies from procuring services from companies that have not conducted due diligence. 628

Section 54 statements: effectiveness and the future of compliance 19.35

19.32 The joint committee report concluded by suggesting that there should be a central list of companies required to report, observing, ‘… reporting requirements on transparency in supply chains are weak, [which] makes it very difficult to hold companies to account; the Modern Slavery (Transparency in Supply Chains) Bill should be enacted, failing which … the Government [should] bring forward its own legislation in the next session to achieve a similar objective’. It further recommended that the government bring forward legislative proposals to make reporting on due diligence for all other relevant human rights, not just the prohibition of modern slavery, compulsory for large businesses, with a monitoring mechanism and an enforcement procedure.

Independent Review of MSA 2015 19.33 The Independent Review of the Modern Slavery Act (Final Report of May 2019) was conducted by Baroness Elizabeth Butler-Sloss, Maria Miller MP and Frank Field MP. It was established to consider the operations and effectiveness of the Act and to put forward potential improvements. In particular, the Review focused on four topics: transparency in supply chains (s  54), the role of the Independent Anti-Slavery Commissioner, the Act’s legal application, and the safeguarding of child victims of modern slavery. 19.34 In the context of s 54, the review found that there was insufficient regulation of companies and partnerships. Furthermore, it noted s 54 was widely regarded as lacking teeth. 19.35 The review recommended a number of changes which are likely to serve as indicators of how organisations’ due diligence may be made more robust. It recommended there should be an internal government list of companies which are required to produce a statement; the government should check that such companies are within scope; companies should remain responsible for determining whether they need to produce a statement (whether or not they are in the government list); compliance through stating that no steps had been taken should be removed; it should be mandatory to include the six areas in s 54(5); companies must consider the entirety of their supply chains; and, if they have not done so, to explain why not and what future steps they will take; the modern slavery statement should be referred to in companies’ annual reports; s 54 should be extended to public bodies; and the duties of the Independent Anti-Slavery Commissioner should be extended to monitor compliance. 629

19.36  Compliance and trafficking

19.36 The review recommended that the statutory guidance should include a template of information expected on each of the six areas. And further, the guidance should make clear that the statement should include how businesses have carried out due diligence and what future steps they intend to take. 19.37 The review also recommended that a breach of reporting requirements in the statement or to act when slavery is found should be an offence under the Company Directors Disqualification Act 1986. It suggested a gradual approach should be adopted in relation to penalties, beginning with initial warnings, fines (as a percentage of turnover), court summons and directors’ disqualification. This gradual approach would give companies time to adapt.

Home Office consultation 19.38 In the ‘Transparency in supply chains’ consultation paper, the Home Office stated, ‘We want to ensure that the transparency requirements and reporting process is as clear and straightforward as possible for organisations in scope of the legislation. Any changes to the present approach would be phased to enable affected organisations to prepare.’ 19.39 In the context of the s  54(5) six areas it stated: ‘To facilitate transparent, comprehensive reporting, we are considering making reporting on specific topics compulsory.’ 19.40 The consultation paper set out that ‘[t]he UK Government will be developing an online registry for modern slavery statements published under the Act, and in parallel we intend to amend the legislation to mandate publication on this registry [as well as on the organisation’s website].’ It further stated that reporting on the register would be required on a date common to all organisations; indicators of reporting quality could be incorporated into the registry; and a civil ‘variable monetary penalty’ scheme could be introduced to ensure compliance. Further guidance is likely to be published concerning public bodies.

Ethical Trading Initiative’s modern slavery statements evaluation framework Overview 19.41 The Ethical Trading Initiative (‘ETI’) comprises member companies, trades unions and voluntary organisations who work together to tackle the complex 630

Ethical Trading Initiative’s modern slavery statements evaluation framework 19.44

questions about what steps companies should take to trade ethically, and how to make a positive difference to workers’ lives. 19.42 The ETI’s evaluation framework gives a helpful rubric for organisations composing a slavery and human trafficking statement5. While the guidance is not formal statutory guidance, the approach is likely to help organisations to comply with s 54 to a high standard. It breaks the statement into six sections.

Section 1: Structure, business and supply chains 19.43 The ETI recommends that section 1 of the statement sets out the following: • registered name of company; • name of director or equivalent signing off report; • main products and services; • suppliers to include goods, services, goods not for resale, labour provider and contractors; • supplier business relationships (e.g. seasonal, long-term, percentage of factory product supplied); • description of the nature of the labour force in own operations and supply chains (e.g. use of temporary/seasonal workers; home workers, migrant workers recruited through labour agencies, agency workers); • countries and regions of operation (of business, supply chain, etc.); • main changes in structure since last statement; • structured working relationship with trade unions/worker organisations to help manage modern slavery risk; • cross-departmental senior leadership of modern slavery work; • indication of plans to work with unions or other workers’ organisations to address modern slavery risks.

Section 2: Policies in relation to slavery and human trafficking 19.44 Section 2 allows organisations to focus on risk within particular areas of the business and supply chains: 5 See https://www.ethicaltrade.org/issuesmodern-slavery/modern-slavery-statements-evaluation-framework (last accessed 17 August 2020).

631

19.45  Compliance and trafficking

•

codes of conduct for: employees, suppliers, contractors, business partners;

•

human resource policies (recruitment, pay, etc.);

•

purchasing and procurement policies;

•

specific policies on issues relevant for the reporting organisation (such as homeworkers, migrant workers, child labour, remedy for victims of labour exploitation, etc.);

•

policies on freedom of association and collective bargaining;

•

information on how employees, suppliers etc. can access relevant policies (including where their native language is not English and/or local literacy rates are low);

•

enforcement mechanisms for policies – this is particularly important since policies only matter to the extent that they are put into practice;

•

assessment of relevant policies from third party organisations (suppliers, contractors, partners);

•

processes for development, sign-off and ownership of policies within business.

Section 3: Risk assessment, prevention and mitigation 19.45 The ETI recommends ‘disaggregate[ing]’ risks by: country, region, sector, relationship (with supplier, contractor, partner), good or service supplied. It recommends considering data on likely risks associated with e.g. country or region taken from authoritative sources such as the US  State Dept Annual TIP Report; ITUC Human Rights Index, Global Slavery Index.

Section 4: Due diligence processes 19.46 For the purposes of addressing due diligence in the statement, the ETI suggests including: •

changes in operational practices or in business relationships designed to minimise modern slavery risks;

•

a description of specific cases of modern slavery (risk) discovered and what steps were taken;

•

a description of any programmes or initiatives undertaken to manage and mitigate modern slavery risk; 632

Anticipated changes to s 54 19.49

•

evidence of direct engagement with suppliers and with workers – going beyond audits and contractual compliance;

•

a description of grievance mechanisms for workers or other ways in which they can access remedy – in the core business, among contractors and in the supply chain – aligned with relevant best practice;

•

evidence of participation in peer-learning groups or other collaborative initiatives for sharing lessons learned and best practice and for taking forward specific programmes;

•

evidence of developed incident response plans to be implemented in the event that a case of modern slavery is discovered within the business or its supply chain;

•

evidence of stakeholder engagement in responding to specific instances of modern slavery.

Section 5: Effectiveness, measured against appropriate key performance indicators 19.47 The ETI suggests devising bespoke key performance indicators (‘KPIs’) for the organisation or parts of it, in which evidence of outcomes is monitored and reviewed through audits, inspections and reviews and evidence of the organisation’s stakeholders’ compliance is included.

Section 6:Training and capacity building 19.48 The ETI suggests including in the statement details of which staff/groups have been given training, by whom, through what medium, what the objectives and outcomes are, the frequency of training and stakeholder compliance with training.

Anticipated changes to s 54 19.49 Drawing on the joint committee report and the Independent Review of MSA 2015, organisations meeting the £36 million threshold may expect the introduction of measures which render the preparation of a detailed slavery and human trafficking statement mandatory. The obligations on companies will become more onerous. Organisations and individuals (personally) may 633

19.50  Compliance and trafficking

be rendered civilly liable for failing to comply with aspects of compliance concerning the statement. There may be sanctions through directors’ disqualification. Reputation management will become more important as a repository of compliant and non-compliant organisations will be established and publicly accessible. The nature and degree of compliance will become obvious to members of the public and to other organisations who identify the organisation as a stakeholder or as a component of their supply chain. This will impact on the willingness of other organisations to do business with those whose practices need refinement. 19.50 The outcome of the government audit has yet to be concluded. It is anticipated that a list of non- complainant organisations will be published in the public domain. 19.51 The government should not rely on consumer boycotts to police non-compliance. Whilst the impact of consumer purchasing power is not underestimated, the Secretary of State has the power to pursue legal action for those companies who fail to comply6. 19.52 It remains a concern that many NGOs are offering advice on supply chain due diligence and services to draft these statements. It may be advisable for companies to engage lawyers to conduct this work, which attaches legal professional privilege, particularly in relation to trade secrets, and in cases where breaches have been discovered, which are likely to attach serious criminal and civil liability.

Wales 19.53 Organisations with business in Wales must bear in mind the ‘[the] 12 commitments expected from recipients of public money when procuring goods and services’ deriving from the Welsh government’s March 2017 ‘Ethical Employment in Supply Chains – Code of Practice’, published in support of the Well-being of Future Generations (Wales) Act 2015. All public sector organisations in Wales as well as businesses and third-sector organisations in receipt of Welsh public sector funding are expected to sign up to the Code, which centres on guaranteeing good employment practices across six key areas. Other organisations operating in Wales from any sector are encouraged to adopt 6 MSA 2015, s 54(11) permits the Secretary of State to bring civil injunctive action in the High Court.

634

California Supply Chains Act 2012 – a model for compliance 19.56

the Code. In signing up to the Code, organisations agree to comply with the 12 commitments, which are designed to eliminate modern slavery and support ethical employment practices. The Code of Practice is supported by a Toolkit to assist organisations in complying.

California Supply Chains Act 2012 – a model for compliance 19.54 Organisations in the UK could benefit from the California model when considering measures to eradicate slavery and trafficking from their businesses and supply chains. By considering the California Transparency in Supply Chains Act (Senate Bill 657) (‘CTSCA’) and by adhering to guidance concerning the CTSCA, UK organisations could improve the quality of, and create more meaningful modern slavery statements to comply with s 54. For that reason, the key features of the CTSCA and guidance are discussed below. 19.55 In the US, many private codes to monitor supply chains and workplace standards were developed. In recent years there have been state-based initiatives to create more oversight and accountability across global value chains. In January 2012, the CTSCA was enacted.The CTSCA requires that retailers and manufacturers doing business in California, with annual worldwide gross receipts of $100 million or more, must disclose their efforts to eradicate slavery and human trafficking, and to protect basic human rights, along their entire supply chain. The overall goal of the CTSCA was to ensure companies operate with much greater caution when selecting suppliers and sourcing products and services. 19.56 The companies to which the CTSCA applies must disclose their efforts, if any, to ensure that products in their supply chain are slavery-free. Specifically, in their supply chains disclosure, companies must disclose to what extent, if any, they: 1.

Engage in verification of product supply chains to evaluate and address risks of human trafficking and slavery. The disclosure shall specify if the verification was not conducted by a third party.

2.

Conduct audits of suppliers to evaluate supplier compliance with company standards for trafficking and slavery in supply chains. The disclosure shall specify if the verification was not an independent, unannounced audit.

3.

Require direct suppliers to certify that materials incorporated into the product comply with the laws regarding slavery and human trafficking of the country or countries in which they are doing business. 635

19.57  Compliance and trafficking

4.

Maintain internal accountability standards and procedures for employees or contractors failing to meet company standards regarding slavery and trafficking.

5. Provide company employees and management, who have direct responsibility for supply chain management, training on human trafficking and slavery, particularly with respect to mitigating risks within the supply chains of products. 19.57 There must be a conspicuous link to an organisation’s CTCSA disclosure on its website. 19.58 The CTSCA is enforced by the California Franchise Tax Board (‘CFTB’) and the California Attorney-General’s Office.The CTSCA does not impose a direct penalty for non-compliance but allows for an injunction by the California Attorney-General to correct corporate behaviour. 19.59 In 2015, the Attorney General of California and the California Department of Justice published a CTSCA ‘resource guide’7, within which are recommendations as to what a ‘model disclosure’ would contain under each of the five heads.This guidance indicates how organisations in the UK might ensure compliance with s 54 and avoid reputational damage: 19.60 Verification: the company might describe the general methodology the company uses to verify entities in the product supply chain in assessing those risks, including general information about the frequency of verifications; and describe whether the company assesses and manages potential risks related to the presence of labour brokers or third-party recruiters in its supply chain. 19.61 Audits: it is recommended that companies should explain the extent to which they engage in auditing by generally describing the ‘audit methodology’, how the company selects suppliers to audit, and by providing statistics on the general timeline, frequency, and number of announced and unannounced audits.

7 California Department of Justice, The California Transparency in Supply Chains Act: A Resource Guide (2015), available at https://oag.ca.gov/sites/all/files/agweb/pdfs/sb657/resource-guide.pdf?. (last accessed 17 August 2020).

636

California Supply Chains Act 2012 – a model for compliance 19.64

19.62 Supplier certification: the recommended practice is for companies to provide a general description of the certification requirement and the consequences for violating it; to disclose whether they require their direct suppliers further to certify they comply with the labour laws of the countries in which they do business; and to discuss any additional actions the companies take to encourage direct suppliers to comply with all relevant laws. 19.63 Internal accountability: the resource guide recommends that companies generally describe those standards and procedures, including who has responsibility for monitoring compliance; provide a link to their code of conduct related to supplier workplace standards; provide general information on the types of preventative and corrective actions they take; and disclose any mechanisms in place to help workers understand their fair labour requirements, including protections for workers who lodge grievances or report violations. 19.64 Training: the recommendation is that companies identify levels of employees being trained by category or type; and provide a general description of the nature of relevant training, including topics and general statistics regarding the duration and frequency of the training sessions conducted.

637

Index [all references are to paragraph number] A Absconders appeals, and, 9.85–9.87 Crown Court process, and, 7.136–7.143 Abuse of position of vulnerability means of trafficking, and, 1.17–1.21 Abuse of process Council of Europe Convention on Action against Trafficking in Human Beings, 5.12 Immigration and Asylum Act 1999, s 31, 5.61 introduction, 5.3 magistrates’ court process, and, 7.55–7.58 Modern Slavery Act 2015, s 45 generally, 5.55–5.57 introduction, 5.37–5.38 Accommodation age disputes, and, 3.8–3.9 Achieving Best Evidence (ABE) training conclusive grounds decisions, and, 2.130 police station procedure, and, 6.160–6.166 Adult safeguarding at risk, 11.50–11.61 Detention Centre Rules, 11.43–11.48 generally, 11.41–11.49 release, 11.62–11.69 victims of trafficking, 11.59–11.61 Adverse inferences conclusive grounds decisions, and, 2.128 Crown Court process, and, 7.122–7.126 Advice police station procedure, and, 6.61–6.86 professional ethics and conduct, and, 16.4–16.5 Advice and Assistance Scheme see also Public funding applications to CCRC, 13.106–13.107 applications to Court of Appeal, 13.83– 13.121 post-release, pre-charge work, 13.24–13.32 Advocacy Assistance see also Public funding generally, 13.22 Advocates Graduated Fee Scheme see also Public funding generally, 13.48–13.51

Age disputes accommodation arrangements, 3.8–3.9 ADCS guidance, 3.30–3.31 assessment of age generally, 3.27–3.34 immigration law, 3.35–3.40 social security law, 3.35–3.40 youth justice, 3.41–3.52 bail, 3.21–3.23 ‘child’, 3.2 CPS Guidance, 3.32–3.33 decision to prosecute, 3.19 educational placements, 3.10 first appearances, 3.20 immigration detention, 3.15 immigration law, and assessment of age, 3.35–3.40 importance and relevance, 3.12–3.15 importance immigration law, 3.12–3.15 social security law, 3.6–3.11 youth justice, 3.16–3.26 introduction, 3.1–3.5 ‘looked-after’ children, 3.8–3.11 mode of trial, 3.24–3.26 problem areas, 3.4 relevance immigration law, 3.12–3.15 social security law, 3.6–3.11 youth justice, 3.16–3.26 social security law, and assessment of age, 3.35–3.40 importance and relevance, 3.6 UN Convention on the Rights of the Child immigration, 3.13 introduction, 3.1–3.2 youth justice, 3.17 United Nations Declaration on the Rights of the Child, 3.1 voluntary care, 3.8 youth justice, and assessment of age, 3.41–3.52 bail, 3.21–3.23 decision to prosecute, 3.19 first appearances, 3.20

639

Index Age disputes – contd youth justice, and – contd importance and relevance, 3.16–3.26 mode of trial, 3.24–3.26 Age of victim magistrates’ court process, and, 7.53–7.54 police station procedure, and, 6.102–6.104 Ancillary orders on conviction civil orders, 4.121–4.125 confiscation, 4.119 forfeiture, 4.120 Anonymity of defendants appeals criminal appeals, in, 9.73–9.80 general principles, 9.64–9.72 introduction, 9.63 Crown Court direction, 7.68 generally, 8.103–8.108 Anonymity of witnesses criminal proceedings, in necessity, 8.99–8.101 serious gang related crime, 8.98 sexual offences, 8.96–8.97 Tribunal proceedings, in, 8.49 Appeals absconding, 9.85–9.87 anonymity criminal appeals, in, 9.73–9.80 general principles, 9.64–9.72 introduction, 9.63 bail, 9.61–9.62 Court of Appeal, to see also Appeals to Court of Appeal conviction, against, 9.17–9.28 decisions of competent authority, 9.48–9.49 expert evidence, 9.43–9.44 extensions of time, 9.50–9.58 grounds, 9.34–9.39 guilty plea, after, 9.59–9.60 McCook correspondence, 9.45–9.47 sentence, against, 9.29–9.34 Criminal Cases Review Commission, to, 9.88–9.98 Criminal Injuries Compensation Scheme, and, 12.15 Crown Court, to, 9.4–9.8 expedited hearings, 9.81 fresh evidence, 9.40–9.42 funding, 9.82 grounds, 9.34–9.35 guilty plea, after, 9.59–9.60 introduction, 9.1–9.3 oral leave hearings, 9.84

Appeals – contd prosecutor against a ‘terminating’ ruling, 9.99–9.103 public funding, and Court of Appeal, to, 13.83–13.121 Crown Court, from, 13.81–13.82 magistrates’ court, from, 13.78–13.80 re-opening cases committal for sentence, and, 9.15 effect, 9.16 generally, 9.9–9.14 ‘terminating’ ruling, against, 9.99–9.103 transcripts, 9.83 Appeals to Court of Appeal absconding, 9.85–9.87 anonymity for applicants criminal appeals, in, 9.73–9.80 general principles, 9.64–9.72 introduction, 9.63 bail, 9.61–9.62 conviction, against defence investigation, 9.17–9.19 disclosure 9.17–9.23 expert evidence, 9.43–9.44 fresh evidence, 9.40–9.42 grounds, 9.35–9.39 preparation, 9.17–9.28 subject access requests, 9.20–9.23 transcripts of previous proceedings, 9.26 decisions of competent authority, 9.48–9.49 defence investigation, 9.17–9.19 disclosure 9.17–9.23 expert evidence, 9.43–9.44 extensions of time, 9.50–9.58 fresh evidence, 9.40–9.42 grounds conviction, against, 9.34–9.35 sentence, against, 9.40–9.42 guilty plea, after, 9.59–9.60 McCook correspondence, 9.45–9.47 public funding, and applications out of time, 13.91–13.92 counsel’s fees, 13.119–13.121 financial limits, 13.101–13.105 financial test, 13.94–13.98 generally, 13.83–13.90 introduction, 9.82 out of time, 13.91–13.92 outward travel, 13.112–13.115 postal applications, 13.108–13.109 previous adverse opinion, 13.99–13.100 previous advice under LAAS, 13.116– 13.118 sufficient benefit test, 13.93 telephone advice, 13.110–13.111

640

Index Appeals to Court of Appeal – contd sentence, against generally, 9.29–9.33 grounds, 9.34 subject access requests, 9.20–9.23 transcripts of previous proceedings, 9.26 Appropriate adult police station procedure, and, 6.105–6.112 Arraignment Crown Court process, and, 7.100 Arrest public funding, and Criminal Defence Direct, 13.4–13.7 Defence Solicitor Call Centre, 13.8 ‘escape fee’, 13.17 fixed fees, 13.16–13.19 generally, 13.2–13.3 Police Station Advice and Assistance Scheme, 13.2 Standard Crime Contract, 13.10–13.14 sufficient benefit test, 13.9–13.10 transfer between solicitors, 13.15 Art 31(1)(d) Rome Statute defence adoption of, 18.35–18.36 avoidance of threat, 18.60–18.61 conditions to be established, 18.46–18.50 continuing or imminent serious bodily harm, 18.47–18.48 crime and threat analysis, 18.57–18.59 generally, 18.32–18.34 Ongwen defence, 18.51–18.55 overview, 18.70 person acted necessarily and reasonably to avoid threat, 18.49 person acted proportionately etc, 18.50 possibility of death not sufficient, 18.56 practice, in, 18.56–18.69 proportionality, 18.66–18.69 resilience, 18.61–18.65 threat or imminent death or…serious bodily harm, 18.47–18.48 trafficked persons, for, 18.51–18.55 unlawful killing, 18.37–18.45 Asylum determination of trafficking status, and, 2.116–2.117 Asylum seekers conclusive grounds decisions, and, 2.156– 2.159 B Bad character applications Crown Court process, and, 7.105–7.112 Bail age disputes, and, 3.21–3.23

Bail – contd appeals, and, 9.61–9.62 determination of trafficking status, and, 2.118 magistrates’ court process, and, 7.33–7.38 police station procedure, and, 6.118–6.131 Balance of probabilities conclusive grounds decisions, and, 2.123– 2.124 Better case management (BCM) form magistrates’ court process, and, 7.49 C California Supply Chains Act 2012, and audits, 19.61 generally, 19.54–19.59 internal accountability, 19.63 supplier certification, 19.62 training, 19.64 verification, 19.60 Cannabis production criminal offences, and, 4.108–4.109 Case management magistrates’ court process, and, 7.49–7.52 Charging decision criminal process, and, 7.12–7.21 investigation of offences, and, 17.32–17.37 police station procedure, and, 6.136–6.144 Child abduction generally, 4.87–4.91 sentencing, 4.92 Child criminal exploitation (CCE) reasonable grounds decision, and, 2.54–2.59 Child labour prohibition of slavery, servitude or forced or compulsory labour, and, 10.67– 10.70 Child safeguarding ADCS guidance, 11.5 assessment of vulnerability, 11.5–11.7 College of Policing guidance, 11.7 county lines trafficking, 11.17 detention families, 11.34–11.40 introduction, 11.25 unaccompanied children, 11.26–11.31 victims of trafficking, 11.32–11.33 duty to notify, 11.12–11.13 duty under Borders Citizenship and Immigration Act 2009, s 55, 11.21– 11.24 families, 11.34–11.40 generally, 11.8–11.11 guardians, 11.18 guidance, 11.2–11.4

641

Index Child safeguarding – contd immigration control, and, 11.20 Independent Child Trafficking Advocates, 11.18 Interaction between policy and practice, 11.19 introduction, 11.1 Local Safeguarding Children Board, 11.4 missing children, 11.14–11.16 policy, 11.2–11.4 practice guidance, 11.3 unaccompanied children, 11.26–11.31 victims of trafficking, 11.32–11.33 ‘Working Together’ guidance, 11.1–11.3 Children see also Child safeguarding age see also Age disputes definition of ‘child’, 3.2 approach of policy credibility of account, 1.27 exploitation of children, 1.24–1.26 attendance with parent/guardian at court, 8.86 communication adjustments, 8.87 conclusive grounds decisions, 2.130 credibility of account, 1.27 criminal investigations, 17.12–17.13 defendants, as attendance with parent/guardian at court, 8.86 communication adjustments, 8.87 generally, 8.83–8.85 other matters, 8.88 means of trafficking, 1.14 non-prosecution/punishment, 5.28–5.29 special measures defendants, 8.83–8.88 witnesses, 8.66–8.67 witnesses, as, 8.66–8.67 Civil orders criminal offences, and, 4.121–4.125 Code for Crown Prosecutors criminal offences, and, 4.3 defences available to victims, and, 5.19 Coercion means of trafficking, and, 1.15 Committal for sentence re-opening cases, and, 9.15 Common law offences defences available to victims, 5.30–5.35 false imprisonment elements, 4.80–4.81 introduction, 4.74 mens rea, 4.81

Common law offences – contd false imprisonment – contd recklessness, and, 4.79 sentencing, 4.82–4.86 introduction, 4.74 kidnapping consent, and, 4.77 elements, 4.75 introduction, 4.74 ‘lawful excuse’, 4.78 recklessness, and, 4.79 sentencing, 4.82–4.86 ‘taking or carrying away’, 4.76 Compensation CICS administration, 12.15 appeals, 12.15 awards, 12.26–12.28 background, 12.15 ‘crime of violence’, 12.21 ‘criminal injury’, 12.19 eligibility, 12.18–12.23 introduction, 12.15–12.34 level of awards, 12.26–12.28 ‘mental injury’, 12.20 reduction of award, 12.29–12.34 scope, 12.16–12.17 time limits, 12.24–12.25 violent crimes, 12.17 withdrawal of award, 12.29–12.34 compensation orders, 12.6–12.11 criminal proceedings, in compensation orders, 12.6–12.11 criminal injuries scheme, 12.15–12.34 slavery and trafficking reparation orders, 12.12–12.14 ECAT obligations, 12.4–12.5 employment tribunal claims, 12.75– 12.78 EU Trafficking Directive obligations, 12.4–12.5 Human Rights Act 1998 claims generally, 12.58–12.61 investigative duty, 12.62–12.64 just satisfaction, 12.68–12.71 scope, 12.65–12.68 introduction, 12.1–12.3 just satisfaction, 12.68–12.71 miscarriages of justice, for awards, 12.49–12.51 eligibility, 12.41–12.44 generally, 12.35–12.40 non-pecuniary loss, 12.52–12.57 procedure, 12.45–12.48 obligations, 12.4–12.5

642

Index Compensation – contd public bodies, against generally, 12.58–12.61 investigative duty, 12.62–12.64 just satisfaction, 12.68–12.71 scope, 12.65–12.68 slavery and trafficking reparation orders, 12.12–12.14 tortious claims companies, against, 12.74 individual traffickers, against, 12.72– 12.73 traffickers, against employment tribunal claims, 12.75– 12.78 tortious claims, 12.72–12.74 Competent authority (SCA) determination of trafficking status, and, 2.27 Compliance by business California Supply Chains Act 2012, and audits, 19.61 generally, 19.54–19.59 internal accountability, 19.63 supplier certification, 19.62 training, 19.64 verification, 19.60 Ethical Trading Initiative (ETI) evaluation framework capacity building, 19.48 due diligence processes, 19.46 effectiveness measured against KPIs, 19.47 overview, 19.41–19.42 policies as to slavery and trafficking, 19.44 risk assessment , prevention and mitigation, 19.45 structure, business and supply chains, 19.43 training, 19.48 introduction, 19.1 s 54 MSA statements consequences of non-compliance, 19.14–19.17 content, 19.13 criminal offences, and, 19.18–19.20 differing organisational structures, 19.5–19.12 effectiveness, 19.21 ETI evaluation framework, 19.41–19.48 franchises, 19.5 future developments, 19.21–19.40, 19.49–19.52 generally, 19.2–19.4

Compliance by business – contd s 54 MSA statements – contd groups, 19.7 Home Office consultation, 19.38–19.40 Independent Review (2019), and, 19.33–19.37 insolvency, and, 19.11 investment funds, 19.10 Joint Committee Report (2017), and, 19.23–19.32 parent organisations, 19.6 publication, 19.3 small companies, 19.12 subsidiaries, 19.6 turnover criteria, 19.9 use, 19.4 UN Guiding Principles for Business (UNGPs), 19.1 Wales, and, 19.53 Compulsory or forced labour ‘all of the circumstances’, 4.30–4.31 child labour, and, 4.26–4.29 consent, and, 4.32 construction in accordance with ECHR, 4.6–4.29 elements ‘all of the circumstances’, 4.30–4.31 consent, and, 4.32 construction in accordance with ECHR, 4.6–4.29 required acts, 4.5 European Convention on Human Rights child labour, 10.67–10.70 forced or compulsory labour, 10.62– 10.66 introduction, 10.53 positive state obligations, 10.71–10.74 servitude, 10.56–10.61 slavery, 10.55 trafficking, 10.54 forced or compulsory labour, 4.16–4.25 introduction, 4.4 purpose of exploitation, and, 1.23 required acts, 4.5 regard to be had to all circumstances, 4.30–4.31 sentencing, 4.55–4.70 servitude, 4.10–4.15 slavery and similar practices, 4.7–4.9 Conclusive grounds decisions Achieving Best Evidence training, 2.130 adverse inferences, 2.128 assessment of evidence, 2.125–2.131 asylum seekers, and, 2.156–2.159 balance of probabilities, 2.123–2.124

643

Index Conclusive grounds decisions – contd challenge to negative decisions application of policy, 2.162 generally, 2.162–2.169 grounds of review, 2.165 introduction, 2.147 standard of review, 2.163 child interviews, 2.130 consequences negative decision, 2.143–2.146 positive decision, 2.133–2.142 discretionary leave to remain, and, 2.137– 2.141 historical victims, and, 2.160–2.161 introduction, 2.4 investigation, 2.127 leave to remain, and, 2.137–2.141 missing victims, 2.151–2.155 multi-agency assurance panels (MAAPs), 2.148–2.150 ‘necessary information’, 2.125 negative decisions, and challenges, 2.147 generally, 2.143–2.146 multi-agency assurance panels, 2.148– 2.150 notification, 2.135 ‘personal circumstances’, 2.138 positive decision, and discretionary leave to remain, 2.137– 2.141 generally, 2.133–2.142 residence permits, and, 2.136 standard of proof, 2.123–2.124 statutory guidance assessment of evidence, 2.125 asylum seekers, 2.157 multi-agency assurance panels, 2.149 timing, 2.132 victims who go missing, 2.151–2.155 Confidentiality professional ethics and conduct, and, 16.8 Confiscation orders criminal offences, and, 4.119 Council of Europe Convention on Action against Trafficking in Human Beings (ECAT) compensation, 12.4–12.5 defences available to victims definitions, 5.10 generally, 5.8–5.12 implementation in UK, 5.8 introduction, 5.1 purpose and scope, 5.9 definition of trafficking, 1.4

Council of Europe Convention on Action against Trafficking in Human Beings (ECAT) – contd determination of trafficking status, 2.1–2.2 extradition, and, 14.9 special measures criminal proceedings, in, 8.54–8.56 Immigration and Asylum Tribunal proceedings, in, 8.34 County lines modus operandi of traffickers, and, 15.55– 15.65 reasonable grounds decision, and, 2.52–2.59 Court dress special measures, and, 8.43 Court of Appeal appeals absconding, 9.85–9.87 anonymity for applicants criminal appeals, in, 9.73–9.80 general principles, 9.64–9.72 introduction, 9.63 bail, 9.61–9.62 conviction, against defence investigation, 9.17–9.19 disclosure 9.17–9.23 expert evidence, 9.43–9.44 fresh evidence, 9.40–9.42 grounds, 9.35–9.39 preparation, 9.17–9.28 subject access requests, 9.20–9.23 transcripts of previous proceedings, 9.26 decisions of competent authority, 9.48–9.49 defence investigation, 9.17–9.19 disclosure 9.17–9.23 expert evidence, 9.43–9.44 extensions of time, 9.50–9.58 fresh evidence, 9.40–9.42 grounds conviction, against, 9.34–9.35 sentence, against, 9.40–9.42 guilty plea, after, 9.59–9.60 McCook correspondence, 9.45–9.47 public funding, and applications out of time, 13.91–13.92 counsel’s fees, 13.119–13.121 financial limits, 13.101–13.105 financial test, 13.94–13.98 generally, 13.83–13.90 introduction, 9.82 out of time, 13.91–13.92 outward travel, 13.112–13.115 postal applications, 13.108–13.109 previous adverse opinion, 13.99–13.100 previous advice under LAAS, 13.116– 13.118

644

Index Court of Appeal appeals – contd public funding, and – contd sufficient benefit test, 13.93 telephone advice, 13.110–13.111 sentence, against generally, 9.29–9.33 grounds, 9.34 subject access requests, 9.20–9.23 transcripts of previous proceedings, 9.26 Court process appeals see also Appeals absconding, 9.85–9.87 anonymity, 9.63–9.80 bail, 9.61–9.62 Court of Appeal, to, 9.17–9.59–9.60 Criminal Cases Review Commission, to, 9.88–9.98 Crown Court, to, 9.4–9.8 expedited hearings, 9.81 fresh evidence, 9.40–9.42 funding, 9.82 grounds, 9.34–9.35 introduction, 9.1–9.3 oral leave hearings, 9.84 prosecutor against a ‘terminating’ ruling, 9.99–9.103 re-opening cases, 9.9–9.16 sentence, against, 9.29–9.33 transcripts, 9.83 bail applications appeals, 9.61–9.62 generally, 7.33–7.38 better case management (BCM) form, 7.49 charging at police station, 7.12–7.21 Crown Court absconders, 7.136–7.143 adverse inferences, 7.122–7.126 anonymity direction, 7.68 arraignment, 7.100 bad character applications, 7.105–7.112 defence statements, 7.101–7.102 defendant giving evidence, 7.127– 7.135 disclosure requests, 7.103–7.104 disposal rather than sentence, 7.78 disposal where defendant suffering from mental disorder 7.84–7.85 exclusion of interview, 7.121 expert evidence, 7.86–7.95 failure to mention facts in police interview, 7.122–7.126 first appearance, 7.66 fitness to plead, 7.69–7.75 indictment, 7.96–7.99

Court process – contd Crown Court – contd plea and trial preparation hearing form, 7.67–7.68 pre-sentencing applications to vacate guilty plea, 7.144–7.148 questioning ‘officer in the case’, 7.118– 7.120 sentencing, 7.149–7.163 severance, 7.98–7.99 trial issues, 7.113–7.117 trial of acts or omissions, 7.76–7.77 determination of trafficking status, and, 2.115 either way offences, 7.63–7.65 entry of plea, 7.39–7.44 expert evidence adducing, 7.89–7.91 admissibility, 7.92–7.95 generally, 7.86–7.88 first appearance Crown Court, 7.66 magistrates’ court, 7.31 fitness to plead current test, 7.70–7.73 generally, 7.69 magistrates’ court, and, 7.79–7.83 procedure, 7.74–7.75 introduction, 7.1–7.11 magistrates’ court abuse of process, 7.55–7.58 age assessments, 7.53–7.54 assessment of evidence, 7.32 bail application, 7.33–7.38 case management forms, 7.49–7.52 custody time limits, 7.45–7.48 either way offences, 7.63–7.65 entry of plea, 7.39–7.44 first appearance, 7.31 fitness to plead, 7.79–7.83 section 45 MSA 2015 defence, 7.59–7.60 summary only offences, 7.61–7.62 preparation for effective trial (PET) form, 7.49 police station, in charging, 7.12–7.21 post-charge, 7.22–7.30 sentencing, 7.149–7.163 special measures accused persons who are children, 8.83–8.88 accused persons who are trafficked persons, 8.78–8.82 anonymity of adult defendants, 8.103– 8.108

645

Index Court process – contd special measures – contd anonymity of witnesses, 8.96–8.101 applications, 8.68 best practice methods for legal practitioners, 8.16–8.32 child defendants, 8.83–8.88 child witnesses, 8.66–8.67 competence of witnesses, 8.57 CPS Guidance, 8.59 ECAT, 8.54–8.56 eligibility of witnesses, 8.63–8.65 EU Trafficking Directive, 8.57 general principles, 8.1–8.15 ground rules hearings, 8.69–8.77 Guidance, 8.58 in camera hearings, 8.111 intermediaries, 8.93–8.95 introduction, 8.52–8.58 procedure, 8.68–8.77 moving proceedings, 8.109–8.110 reporting restrictions, 8.102 trafficked person defendants, 8.78–8.82 transfer of proceedings, 8.109–8.110 trauma-informed approach, 8.59–8.62 vulnerable adult defendants, 8.89–8.92 witness anonymity, 8.96–8.101 summary only offences, 7.61–7.62 CPS Guidance age disputes, 3.32–3.33 defences available to victims, 5.3 extradition, 14.20 modus operandi of traffickers, 15.7 special measures in criminal proceedings, 8.59 Credibility purpose of exploitation, and, 1.27 reasonable grounds decision, and, 2.74–2.84 Crime recording police station procedure, and, 6.98 Criminal activities purpose of exploitation, and, 1.23 Criminal Cases Review Commission (CCRC) generally, 9.88–9.98 public funding, and, 13.106–13.107 Criminal Defence Direct see also Public funding generally, 13.4–13.7 police station procedure, and, 6.22–6.24 Criminal exploitation common forms, 15.84 county lines, 15.55–15.65 generally, 15.52–15.54

Criminal Injury Compensation Scheme (CICS) administration, 12.15 appeals, 12.15 awards, 12.26–12.28 background, 12.15 ‘crime of violence’, 12.21 ‘criminal injury’, 12.19 eligibility, 12.18–12.23 introduction, 12.15–12.34 level of awards, 12.26–12.28 ‘mental injury’, 12.20 reduction of award, 12.29–12.34 scope, 12.16–12.17 time limits, 12.24–12.25 violent crimes, 12.17 withdrawal of award, 12.29–12.34 Criminal investigations reasonable grounds decision, and, 2.98– 2.100 Criminal offences acquisition, use and possession of criminal property, 4.118 ancillary orders on conviction civil orders, 4.121–4.125 confiscation, 4.119 forfeiture, 4.120 cannabis production, and, 4.108–4.109 charging, 17.32–17.37 child abduction generally, 4.87–4.91 sentencing, 4.92 child labour, and, 4.26–4.29 civil orders, 4.121–4.125 Code for Crown Prosecutors, 4.3 committing any offence with intent to commit s.2 offence, 4.71–4.72 common law, at false imprisonment, 4.80–4.81 introduction, 4.74 kidnapping, 4.75–4.79 confiscation orders, 4.119 defences common law, at, 5.30–5.35 domestic protection, 5.18–5.29 duress, 5.30–5.35 Immigration and Asylum Act 1999, s 31, under, 5.58–5.68 international protection, 5.5–5.17 introduction, 5.1–5.4 Modern Slavery Act 2015, s 45, under, 5.36–5.57 non-punishment of victims, 5.5–5.29 disclosure, 17.38–17.42 drug offences, 4.108–4.109

646

Index Criminal offences – contd exploitation generally, 4.49–4.54 sentencing, 4.55–4.70 exploitation of workers generally, 4.110–4.113 proceeds of crime, 4.115–4.118 false imprisonment elements, 4.80–4.81 introduction, 4.74 mens rea, 4.81 recklessness, and, 4.79 sentencing, 4.82–4.86 forced or compulsory labour ‘all of the circumstances’, 4.30–4.31 child labour, and, 4.26–4.29 consent, and, 4.32 generally, 4.16–4.25 introduction, 4.4 required acts, 4.5 regard to be had to all circumstances, 4.30–4.31 sentencing, 4.55–4.70 servitude, 4.10–4.15 slavery and similar practices, 4.7–4.9 forfeiture orders, 4.120 harbouring, 4.43 human trafficking arranging or facilitating, 4.35–4.37 committing any offence with intent to commit offence, 4.71– 4.72 consent, and, 4.38 elements, 4.34 extra-territorial effect, 4.46–4.48 facilitating travel for exploitation, 4.35–4.37 harbouring, 4.43 introduction, 4.33 mens rea, 4.39–4.42 scope of offence, 4.44–4.45 sentencing, 4.55–4.70 sexual exploitation, 4.34 ‘with a view to’, 4.42 immigration law, under generally, 4.93–4.98 sentencing, 4.99–4.100 introduction, 4.1–4.3 investigation beyond complainant’s account, 17.24– 17.31 children, 17.12–17.13 complainants, 17.2–17.4 interviews, 17.5–17.11 introduction, 17.1

Criminal offences – contd investigation – contd PEACE model of interviewing, 17.14– 17.23 kidnapping consent, and, 4.77 elements, 4.75 introduction, 4.74 ‘lawful excuse’, 4.78 recklessness, and, 4.79 sentencing, 4.82–4.86 ‘taking or carrying away’, 4.76 Modern Slavery Act 2015, under commentary, 4.126–4.134 committing any offence with intent to commit s.2 offence, 4.71–4.72 exploitation, 4.49–4.54 human trafficking, 4.33–4.48 introduction, 4.1 sentencing, 4.55–4.70 slavery, servitude and forced or compulsory labour, 4.4–4.32 money laundering, 4.115–4.118 proceeds of crime generally, 4.115–4.118 orders, 4.119 sentencing child abduction, 4.92 common law, at, 4.82–4.86 immigration law, under, 4.99–4.100 Modern Slavery Act 2015, under, 4.55–4.70 serious crime prevention orders, 4.123– 4.124 servitude ‘all of the circumstances’, 4.30–4.31 child labour, and, 4.26–4.29 consent, and, 4.32 forced or compulsory labour, 4.16–4.25 generally, 4.10–4.15 introduction, 4.4 required acts, 4.5 regard to be had to all circumstances, 4.30–4.31 sentencing, 4.55–4.70 slavery and similar practices, 4.7–4.9 sexual exploitation, 4.102–4.107 sexual harm prevention orders, 4.125 slavery and similar practices ‘all of the circumstances’, 4.30–4.31 child labour, and, 4.26–4.29 consent, and, 4.32 forced or compulsory labour, 4.16–4.25 generally, 4.7–4.9 introduction, 4.4

647

Index Criminal offences – contd slavery and similar practices – contd required acts, 4.5 regard to be had to all circumstances, 4.30–4.31 sentencing, 4.55–4.70 servitude, 4.10–4.15 slavery and traffic prevention orders, 4.121 slavery and traffic risk orders, 4.122 travel prohibition, 4.122 trial, 17.43–17.52 unlawful restriction of liberty child abduction, 4.87–4.92 false imprisonment, 4.80–4.81 introduction, 4.73 kidnapping, 4.75–4.79 ‘use’ of victims, as to drug offences, 4.108–4.109 exploitation of workers, 4.110–4.113 introduction, 4.101 proceeds of crime, 4.114–4.118 sexual exploitation, 4.102–4.107 worker exploitation, 4.110–4.113 Criminal proceedings appeals see also Appeals absconding, 9.85–9.87 anonymity, 9.63–9.80 bail, 9.61–9.62 Court of Appeal, to, 9.17–9.59–9.60 Criminal Cases Review Commission, to, 9.88–9.98 Crown Court, to, 9.4–9.8 expedited hearings, 9.81 fresh evidence, 9.40–9.42 funding, 9.82 grounds, 9.34–9.35 introduction, 9.1–9.3 oral leave hearings, 9.84 prosecutor against a ‘terminating’ ruling, 9.99–9.103 re-opening cases, 9.9–9.16 sentence, against, 9.29–9.33 transcripts, 9.83 bail applications appeals, 9.61–9.62 generally, 7.33–7.38 better case management (BCM) form, 7.49 charging at police station, 7.12–7.21 compensation, and compensation orders, 12.6–12.11 criminal injuries scheme, 12.15–12.34 slavery and trafficking reparation orders, 12.12–12.14

Criminal proceedings – contd Crown Court absconders, 7.136–7.143 adverse inferences, 7.122–7.126 anonymity direction, 7.68 arraignment, 7.100 bad character applications, 7.105–7.112 defence statements, 7.101–7.102 defendant giving evidence, 7.127–7.135 disclosure requests, 7.103–7.104 disposal rather than sentence, 7.78 disposal where defendant suffering from mental disorder 7.84–7.85 exclusion of interview, 7.121 expert evidence, 7.86–7.95 failure to mention facts in police interview, 7.122–7.126 first appearance, 7.66 fitness to plead, 7.69–7.75 indictment, 7.96–7.99 plea and trial preparation hearing form, 7.67–7.68 pre-sentencing applications to vacate guilty plea, 7.144–7.148 questioning ‘officer in the case’, 7.118– 7.120 sentencing, 7.149–7.163 severance, 7.98–7.99 trial issues, 7.113–7.117 trial of acts or omissions, 7.76–7.77 determination of trafficking status, and, 2.115 either way offences, 7.63–7.65 entry of plea, 7.39–7.44 expert evidence adducing, 7.89–7.91 admissibility, 7.92–7.95 generally, 7.86–7.88 first appearance Crown Court, 7.66 magistrates’ court, 7.31 fitness to plead current test, 7.70–7.73 generally, 7.69 magistrates’ court, and, 7.79–7.83 procedure, 7.74–7.75 introduction, 7.1–7.11 magistrates’ court abuse of process, 7.55–7.58 age assessments, 7.53–7.54 assessment of evidence, 7.32 bail application, 7.33–7.38 case management forms, 7.49–7.52 custody time limits, 7.45–7.48 either way offences, 7.63–7.65

648

Index Criminal proceedings – contd magistrates’ court – contd entry of plea, 7.39–7.44 first appearance, 7.31 fitness to plead, 7.79–7.83 section 45 MSA 2015 defence, 7.59– 7.60 summary only offences, 7.61–7.62 preparation for effective trial (PET) form, 7.49 police station, in charging, 7.12–7.21 post-charge, 7.22–7.30 sentencing, 7.149–7.163 special measures accused persons who are children, 8.83–8.88 accused persons who are trafficked persons, 8.78–8.82 anonymity of adult defendants, 8.103– 8.108 anonymity of witnesses, 8.96–8.101 applications, 8.68 best practice methods for legal practitioners, 8.16–8.32 child defendants, 8.83–8.88 child witnesses, 8.66–8.67 competence of witnesses, 8.57 CPS Guidance, 8.59 ECAT, 8.54–8.56 eligibility of witnesses, 8.63–8.65 EU Trafficking Directive, 8.57 general principles, 8.1–8.15 ground rules hearings, 8.69–8.77 Guidance, 8.58 in camera hearings, 8.111 intermediaries, 8.93–8.95 introduction, 8.52–8.58 procedure, 8.68–8.77 moving proceedings, 8.109–8.110 reporting restrictions, 8.102 trafficked person defendants, 8.78–8.82 transfer of proceedings, 8.109–8.110 trauma-informed approach, 8.59–8.62 vulnerable adult defendants, 8.89–8.92 witness anonymity, 8.96–8.101 summary only offences, 7.61–7.62 Crown Court absconders, 7.136–7.143 adverse inferences, 7.122–7.126 anonymity direction, 7.68 appeals to, 9.4–9.8 arraignment, 7.100 bad character applications, 7.105–7.112 defence statements, 7.101–7.102

Crown Court – contd defendant giving evidence, 7.127–7.135 disclosure requests, 7.103–7.104 disposal rather than sentence, 7.78 disposal where defendant suffering from mental disorder 7.84–7.85 exclusion of interview, 7.121 expert evidence adducing, 7.89–7.91 admissibility, 7.92–7.95 generally, 7.86–7.88 failure to mention facts in police interview, 7.122–7.126 first appearance, 7.66 fitness to plead current test, 7.70–7.73 generally, 7.69 magistrates’ court, and, 7.79–7.83 procedure, 7.74–7.75 indictment, 7.96–7.99 plea and trial preparation hearing form, 7.67–7.68 pre-sentencing applications to vacate guilty plea, 7.144–7.148 public funding, and billing time limits, 13.77 contribution from capital, 13.36 defendant intermediaries, 13.55–13.61 disbursements, 13.52–13.54 financial eligibility, 13.35–13.36 generally, 13.48–13.51 introduction, 13.33–13.37 merits eligibility, 13.33–13.34 Queen’s Counsel, 13.62–13.67 transfers of legal aid, 13.68–13.76 questioning ‘officer in the case’, 7.118–7.120 sentencing, 7.149–7.163 severance, 7.98–7.99 special measures see also Special measures best practice methods for legal practitioners, 8.16–8.32 criminal proceedings, in, 8.52–8.111 general principles, 8.1–8.15 Tribunal proceedings, in, 8.33–8.51 trial issues, 7.113–7.117 trial of acts or omissions, 7.76–7.77 Crown Prosecution Service (CPS) age disputes, 3.32–3.33 defences available to victims, 5.3 extradition, 14.20 modus operandi of traffickers, 15.7 Culture and faith modus operandi of traffickers, and, 15.16– 15.18

649

Index Custody rights attendance of solicitor arrival at police station, 6.26–6.28 initial contact, 6.25 calling defence adviser, 6.22–6.24 generally, 6.13–6.21 Custody time limits magistrates’ court process, and, 7.45–7.48 D Debt modus operandi of traffickers, and, 15.12 Deception means of trafficking, and, 1.16 modus operandi of traffickers, and, 15.11 Decision to prosecute age disputes, and, 3.19 Defence Solicitor Call Centre (DSCC) see also Public funding generally, 13.8 police station procedure, and, 6.21 Defence statements Crown Court process, and, 7.101–7.102 Defences abuse of process Council of Europe Convention, 5.12 Immigration and Asylum Act 1999, s 31, 5.61 introduction, 5.3 Modern Slavery Act 2015, s 45, 5.55– 5.57 Code for Crown Prosecutors, 5.19 common law, at, 5.30–5.35 Council of Europe Convention on Action against Trafficking in Human Beings definitions, 5.10 generally, 5.8–5.12 implementation in UK, 5.8 introduction, 5.1 purpose and scope, 5.9 CPS Guidance, 5.3 domestic protection children, 5.28–5.29 compulsion, 5.22–5.27 introduction, 5.4 nexus, 5.22–5.27 prosecutorial staged inquiry, 5.18–5.19 reason to believe, 5.20–5.21 duress, 5.30–5.35 EU Trafficking Directive 2011/36 definitions, 5.15 generally, 5.13–5.17 implementation in UK, 5.13 introduction, 5.1

Defences – contd Immigration and Asylum Act 1999, s 31, under application, 5.63 elements, 5.62 generally, 5.58–5.61 good cause, 5.68 immunity from prosecution, 5.64 presentation without delay, 5.65–5.67 international protection Council of Europe Convention, 5.8– 5.12 EU Trafficking Directive, 5.13–5.17 Palermo Protocol, 5.5–5.7 introduction, 5.1–5.4 Modern Slavery Act 2015, s 45, under abuse of process, 5.55–5.57 burden of proof, 5.41–5.47 elements, 5.39 excluded offences, 5.69 expert evidence, 5.48–5.50 generally, 5.36–5.40 introduction, 5.4 public interest to prosecution, 5.51–5.54 standard of proof, 5.41–5.47 non-prosecution/punishment of victims CPS Guidance, 5.3 domestic protection, 5.18–5.29 generally, 5.5–5.29 international protection, 5.5–5.17 introduction, 5.1–5.2 statutory provision, 5.4 Palermo Protocol, 5.5–5.7 Refugee Convention 1951, Article 31, 5.60–5.62 Defendant intermediaries public funding, and, 13.55–13.61 special measures, and criminal proceedings, 8.93–8.95 Immigration and Asylum Tribunal proceedings, 8.46–8.48 Dependency modus operandi of traffickers, and, 15.14 Disbursements public funding, and, 13.52–13.54 Disclosure investigation of offences, and, 17.38–17.42 Disclosure requests Crown Court process, and, 7.103–7.104 Discretionary leave to remain (DLM) conclusive grounds decisions, and, 2.137– 2.141 Domestic servitude reasonable grounds decision, and, 2.60

650

Index Drug offences generally, 4.108–4.109 Duress Art 31(1)(d) Rome Statute (1998) adoption of, 18.35–18.36 avoidance of threat, 18.60–18.61 conditions to be established, 18.46–18.50 continuing or imminent serious bodily harm, 18.47–18.48 crime and threat analysis, 18.57–18.59 generally, 18.32–18.34 Ongwen defence, 18.51–18.55 overview, 18.70 person acted necessarily and reasonably to avoid threat, 18.49 person acted proportionately etc, 18.50 possibility of death not sufficient, 18.56 practice, in, 18.56–18.69 proportionality, 18.66–18.69 resilience, 18.61–18.65 threat or imminent death or…serious bodily harm, 18.47–18.48 trafficked persons, for, 18.51–18.55 unlawful killing, 18.37–18.45 domestic law, 5.30–5.35 generally, 18.28–18.31 trafficking, and, 18.70 Duty to notify first responder, and, 2.26 police station procedure, and, 6.94–6.97 safeguarding child victims, 11.12–11.13 E Educational placements age disputes, and, 3.10 Either way offences magistrates’ court process, and, 7.63–7.65 Emotional control modus operandi of traffickers, and, 15.15 Employment tribunal claims compensation, 12.75–12.78 Entry of plea magistrates’ court process, and, 7.39–7.44 ‘Escape fee’ public funding, and, 13.17 Ethical Trading Initiative (ETI) modern slavery statement evaluation framework capacity building, 19.48 due diligence processes, 19.46 effectiveness measured against KPIs, 19.47 overview, 19.41–19.42 policies as to slavery and trafficking, 19.44

Ethical Trading Initiative (ETI) – contd modern slavery statement evaluation framework – contd risk assessment , prevention and mitigation, 19.45 structure, business and supply chains, 19.43 training, 19.48 Ethics advice to client in police interview, 16.4– 16.5 fresh evidence, 16.10 interaction of roles of victim, witness and suspect, 16.5 introduction, 16.1 legal advice privilege, 16.6 legal professional privilege, 16.6 loss of confidentiality, 16.8 privilege, 16.6–16.14 privilege against self-incrimination, 16.7 referral of client through NRM, 16.2–16.3 waiver of privilege, 16.9–16.12 EU Trafficking Directive 2011/36 compensation, 12.4–12.5 defences available to victims definitions, 5.15 generally, 5.13–5.17 implementation in UK, 5.13 introduction, 5.1 definition of trafficking, 1.4 extradition, and, 14.9 position of vulnerability, 1.17 special measures criminal proceedings, in, 8.57 Immigration and Asylum Tribunal proceedings, in, 8.34 Eurojust extradition, and, 14.22 European arrest warrants (EAW) extradition, and, 14.1–14.2 European Convention on Human Rights determination of trafficking status, and, 2.1–2.2 extradition, and, 14.5, 14.8 introduction, 10.43 prohibition of slavery, servitude or forced or compulsory labour child labour, 10.67–10.70 forced or compulsory labour, 10.62– 10.66 introduction, 10.53 positive state obligations, 10.71–10.74 servitude, 10.56–10.61 slavery, 10.55 trafficking, 10.54

651

Index European Convention on Human Rights – contd prohibition of torture or inhuman or degrading treatment assessment of risk, 10.46 gang attacks, 10.48 introduction, 10.44–10.45 mental health deterioration, 10.49–10.52 pain and suffering, 10.47 sexual abuse, 10.48 suicide risk, 10.49–10.52 trauma-based claims, 10.49–10.52 right to respect for private and family life, 10.75–10.81 Exclusion of interview Crown Court process, and, 7.121 Expedited hearings appeals, and, 9.81 extradition, and, 14.38–14.46 Expert evidence asylum and immigration proceedings, in, 10.82–10.88 Crown Court process, and adducing, 7.89–7.91 admissibility, 7.92–7.95 generally, 7.86–7.88 ‘due weight’, 2.87 other experts, from, 2.88–2.95 special measures, and, 8.17–8.18 support organisations, from, 2.85–2.87 Exploitation children, of, 1.24–1.26 generally, 4.49–4.54 proceeds of crime, and, 4.115–4.118 prostitution of others, by, 1.23 purpose of exploitation, and children, 1.24–1.26 prostitution of others, 1.23 sentencing, 4.55–4.70 workers, of, 4.110–4.113 Extradition ‘bars’, 14.24 common challenges, 14.23–14.26 Crown Prosecution Service, and, 14.20 ECAT, 14.9 EU Trafficking Directive, 14.9 Eurojust, and, 14.22 European arrest warrants (EAW), 14.1–14.2 European Convention on Human Rights, 14.5, 14.8 expedition, and, 14.38–14.46 ‘export’ extradition, 14.12–14.14 guidance, and, 14.4 identification of victims, 14.32–14.37 ‘import’ extradition, 14.12

Extradition – contd introduction, 14.1–14.10 National Crime Agency (NCA), 14.21 National Referral Mechanism, 14.3 Problem areas, 14.38–14.46 proceedings common challenges, 14.23–14.26 evidence, 14.27–14.31 expedition, and, 14.38–14.46 generally, 14.11–14.14 role of CPS and NCA, 14.20–14.22 time limits, 14.15–14.19 victim identification, 14.32–14.37 prohibition of slavery, servitude or forced or compulsory labour, 14.5 prohibition of torture or inhuman or degrading treatment, 14.8 right to respect for private and family life, and, 14.8 statistics, 14.2 substantive issues, 14.47–14.50 time limits, 14.15–14.19 victim identification, 14.32–14.37 F Failure to mention facts in police interview Crown Court process, and, 7.122–7.126 False imprisonment elements, 4.80–4.81 introduction, 4.74 mens rea, 4.81 recklessness, and, 4.79 sentencing, 4.82–4.86 Family involvement modus operandi of traffickers, and, 15.19– 15.20 First appearance Crown Court process, and, 7.66 magistrates’ court process, and, 7.31 First instance proceedings see also Crown Court; Magistrates’ court public funding, and billing time limits, 13.77 contribution from capital, 13.36 Crown Court, in, 13.48–13.51 defendant intermediaries, 13.55–13.61 disbursements, 13.52–13.54 financial eligibility, 13.35–13.36 generally, 13.33–13.37 magistrates’ court, in, 13.38–13.47 merits eligibility, 13.33–13.34 Queen’s Counsel, 13.62–13.67 transfers of legal aid, 13.68–13.76

652

Index First responders duty to notify, 2.26 generally, 2.18–2.25 introduction, 2.4 single competent authority, 2.27 Fitness to plead Crown Court, and current test, 7.70–7.73 generally, 7.69 procedure, 7.74–7.75 magistrates’ court, and, 7.79–7.83 Fixed fees public funding, and, 13.16–13.19 Forced labour or services, slavery or servitude ‘all of the circumstances’, 4.30–4.31 child labour, and, 4.26–4.29 consent, and, 4.32 construction in accordance with ECHR, 4.6–4.29 elements ‘all of the circumstances’, 4.30–4.31 consent, and, 4.32 construction in accordance with ECHR, 4.6–4.29 required acts, 4.5 European Convention on Human Rights child labour, 10.67–10.70 forced or compulsory labour, 10.62– 10.66 introduction, 10.53 positive state obligations, 10.71–10.74 servitude, 10.56–10.61 slavery, 10.55 trafficking, 10.54 forced or compulsory labour, 4.16–4.25 introduction, 4.4 purpose of exploitation, and, 1.23 required acts, 4.5 regard to be had to all circumstances, 4.30–4.31 sentencing, 4.55–4.70 servitude, 4.10–4.15 slavery and similar practices, 4.7–4.9 Forfeiture orders criminal offences, and, 4.120 Fraud means of trafficking, and, 1.16 Fresh evidence appeals, and, 9.40–9.42 professional ethics and conduct, and, 16.10 Funding administration, 13.1 Advice and Assistance Scheme applications to CCRC, 13.106–13.107

Funding – contd Advice and Assistance Scheme – contd applications to Court of Appeal, 13.83– 13.121 post-release, pre-charge work, 13.24– 13.32 advice on arrest Criminal Defence Direct, 13.4–13.7 Defence Solicitor Call Centre, 13.8 ‘escape fee’, 13.17 fixed fees, 13.16–13.19 generally, 13.2–13.3 Police Station Advice and Assistance Scheme, 13.2 Standard Crime Contract, 13.10–13.14 sufficient benefit test, 13.9–13.10 transfer between solicitors, 13.15 Advocacy Assistance, 13.22 Advocates Graduated Fee Scheme, 13.48– 13.51 appeals against conviction and/or sentence Crown Court, from, 13.81–13.82 magistrates’ court, from, 13.78–13.80 appeals to Court of Appeal applications out of time, 13.91–13.92 counsel’s fees, 13.119–13.121 financial limits, 13.101–13.105 financial test, 13.94–13.98 generally, 13.83–13.90 introduction, 9.82 out of time, 13.91–13.92 outward travel, 13.112–13.115 postal applications, 13.108–13.109 previous adverse opinion, 13.99–13.100 previous advice under LAAS, 13.116– 13.118 sufficient benefit test, 13.93 telephone advice, 13.110–13.111 appeals where solicitor acted at trial, 13.78–13.82 applications for compensation, 13.126– 13.129 applications to CCRC, 13.106–13.107 applications to re-open cases, 13.122– 13.125 Criminal Defence Direct, and, 13.4–13.7 Crown Court proceedings, in billing time limits, 13.77 contribution from capital, 13.36 defendant intermediaries, 13.55–13.61 disbursements, 13.52–13.54 financial eligibility, 13.35–13.36 generally, 13.48–13.51 introduction, 13.33–13.37 merits eligibility, 13.33–13.34

653

Index Funding – contd Crown Court proceedings, in – contd Queen’s Counsel, 13.62–13.67 transfers of legal aid, 13.68–13.76 Defence Solicitor Call Centre, and, 13.8 defendant intermediaries, 13.55–13.61 disbursements, 13.52–13.54 ‘escape fee’, 13.17 first instance proceedings, during billing time limits, 13.77 contribution from capital, 13.36 Crown Court, in, 13.48–13.51 defendant intermediaries, 13.55– 13.61 disbursements, 13.52–13.54 financial eligibility, 13.35–13.36 generally, 13.33–13.37 magistrates’ court, in, 13.38–13.47 merits eligibility, 13.33–13.34 Queen’s Counsel, 13.62–13.67 transfers of legal aid, 13.68–13.76 fixed fees, 13.16–13.19 immigration law advice amending scope, 13.168 Civil Legal Aid, 13.130, 13.149–13.151 Controlled Legal Representation, 13.130, 13.145–13.148 declaration against instructions, 13.166– 13.167 emergency certificates, 13.164 exceptional case funding (ECF), 13.135– 13.137 expert witnesses, 13.169 extension of cost limits, 13.169 financial risk, 13.170–13.171 full representation, 13.159–13.163 gap in provision for VOTs, 13.132– 13.134 Help at Court, 13.130 immigration detention, in, 13.138– 13.139 introduction, 13.130–13.131 investigative representation, 13.156– 13.158 judicial review, 13.152–13.155 Legal Help, 13.130, 13.140–13.144 permission decision, 13.168 practical steps, 13.140–13.144 substantive certificates, 13.165 types of legal aid, 13.130 intermediaries, 13.55–13.61 introduction, 13.1 Legal Aid Agency, 13.1 Litigator Graduated Fee Scheme, 13.48– 13.51

Funding – contd magistrates’ court proceedings, in applications to re-open cases, 13.122– 13.125 billing time limits, 13.77 contribution from capital, 13.36 defendant intermediaries, 13.55–13.61 disbursements, 13.52–13.54 financial eligibility, 13.35–13.36 generally, 13.38–13.47 introduction, 13.33–13.37 merits eligibility, 13.33–13.34 Queen’s Counsel, 13.62–13.67 transfers of legal aid, 13.68–13.76 Police Station Advice and Assistance Scheme, 13.2–13.23 post-release work, 13.24–13.32 pre-charge work generally, 13.24–13.28 witnesses at risk of self-incrimination, 13.29–13.32 prior authority for disbursements, 13.52– 13.54 Queen’s Counsel, 13.62–13.67 representation orders appeals to Court of Appeal, 13.85 billing time limits, 13.77 contribution from capital, 13.36 Crown Court, in, 13.48–13.51 defendant intermediaries, 13.55–13.61 disbursements, 13.52–13.54 financial eligibility, 13.35–13.36 generally, 13.33–13.37 magistrates’ court, in, 13.38–13.47 merits eligibility, 13.33–13.34 Queen’s Counsel, 13.62–13.67 transfers of legal aid, 13.68–13.76 Standard Crime Contract generally, 13.10–13.14 introduction, 13.2 sufficient benefit test advice on arrest, 13.9–13.10 generally, 13.93 immigration law matters, 13.144, 13.148 witnesses at risk of self-incrimination, 13.31–13.32 transfers of legal aid, 13.68–13.76 two advocates, 13.62–13.67 G Giving or receiving of payments or benefits to achieve consent of persons having control over another person means of trafficking, and, 1.22

654

Index H Harbouring act of trafficking, and, 1.11 generally, 4.43 Historical victims conclusive grounds decisions, and, 2.160– 2.161 Home Office see Single competent authority Human Rights Act 1998 see also European Convention on Human Rights compensation generally, 12.58–12.61 investigative duty, 12.62–12.64 just satisfaction, 12.68–12.71 scope, 12.65–12.68 Human trafficking arranging or facilitating, 4.35–4.37 committing any offence with intent to commit offence, 4.71–4.72 consent, and, 4.38 elements, 4.34 extra-territorial effect, 4.46–4.48 facilitating travel for exploitation, 4.35– 4.37 harbouring, 4.43 introduction, 4.33 mens rea, 4.39–4.42 scope of offence, 4.44–4.45 sentencing, 4.55–4.70 sexual exploitation, 4.34 ‘with a view to’, 4.42 I Identification of trafficking victims asylum context, and, 2.116–2.117 challenge to negative decisions application of policy, 2.162 conclusive grounds decision, 2.147 generally, 2.162–2.169 grounds of review, 2.165 standard of review, 2.163 competent authority (SCA), 2.27 conclusive grounds decision Achieving Best Evidence training, 2.130 adverse inferences, 2.128 assessment of evidence, 2.125–2.131 asylum seekers, and, 2.156–2.159 balance of probabilities, 2.123–2.124 challenges to negative decisions, 2.147 child interviews, 2.130 consequences of positive decision, 2.133–2.142

Identification of trafficking victims – contd discretionary leave to remain, and, 2.137–2.141 historical victims, and, 2.160–2.161 introduction, 2.4 investigation, 2.127 leave to remain, and, 2.137–2.141 missing victims, 2.151–2.155 multi-agency assurance panels (MAAPs), 2.148–2.150 ‘necessary information’, 2.125 negative decision, and, 2.143–2.150 notification, 2.135 ‘personal circumstances’, 2.138 positive decision, and, 2.133–2.142 residence permits, and, 2.136 standard of proof, 2.123–2.124 statutory guidance, 2.125 timing, 2.132 victims who go missing, 2.151–2.155 Council of Europe Convention on Action against Trafficking in Human Beings, 2.1–2.2 criminal proceedings, and, 2.115 duty to notify, 2.26 effect of failure to identify victim, 2.10 European Convention on Human Rights, 2.1–2.2 expert evidence ‘due weight’, 2.87 other experts, from, 2.88–2.95 support organisations, from, 2.85–2.87 extradition, and, 14.32–14.37 first responders duty to notify, 2.26 generally, 2.18–2.25 introduction, 2.4 single competent authority, 2.27 grounds of challenge to negative identification decisions, 2.162–2.169 human rights context, and, 2.116–2.117 identification decision-making process challenge to negative decisions, 2.162– 2.169 conclusive grounds decision, 2.123– 2.161 reasonable grounds decision, 2.28–2.122 identification of victims of trafficking, 2.15–2.17 immigration context, and, 2.116–2.117 immigration detention and bail, and, 2.118 introduction, 2.1–2.13 National Referral Mechanism first responders, 2.18–2.27

655

Index Identification of trafficking victims – contd National Referral Mechanism – contd generally, 2.14–2.17 identification of victims of trafficking, 2.15–2.17 introduction, 2.4 reasonable grounds decision, 2.28– 2.122 status of decision in Tribunal decisionmaking, 2.7–2.9 notification duty, 2.26 obligation to identify, protect and support, 2.1 online portal duty to notify, 2.26 generally, 2.21–2.22 protective duty, and, 2.10–2.13 purpose, 2.5 reasonable grounds decision assessment of evidence, 2.34–2.42 burden of proof, 2.31–2.33 child criminal exploitation (CCE), 2.54–2.59 complex issues in identification, 2.52– 2.63 conduct of investigators, 2.64–2.70 conduct of traffickers, 2.71–2.73 consequences of negative decision, 2.119–2.121 consequences of positive decision, 2.101–2.114 county lines cases, 2.52–2.59 credibility, 2.74–2.84 criminal investigations, and, 2.98–2.100 domestic servitude, 2.60 experiences of victims, 2.64–2.70 expert evidence, 2.85–2.95 generally, 2.28–2.30 indicators of trafficking, 2.43–2.51 introduction, 2.4 material facts, 2.75 mitigating factors, 2.79–2.80 negative decision, and, 2.119–2.121 notification, 2.101 ‘recovery and reflection’ period, 2.102– 2.114 positive decision, and, 2.101–2.114 reconsideration, 2.122 relevance in other proceedings, 2.115– 2.118 request to reconsider, 2.122 standard of proof, 2.31–2.33 terrorism, 2.62–2.63 timing, 2.96–2.97

Identification of trafficking victims – contd reasonable grounds decision – contd treatment of potential victim during investigation, 2.64–2.70 ‘recovery and reflection’ period generally, 2.102–2.114 introduction, 2.4 rights of victims, 2.5 single competent authority (SCA), 2.27 statutory guidance, 2.3 Immigration determination of trafficking status, and, 2.116–2.117 Immigration and Asylum Act 1999, s 31 application, 5.63 elements, 5.62 generally, 5.58–5.61 good cause, 5.68 immunity from prosecution, 5.64 presentation without delay, 5.65–5.67 Immigration and Asylum Tribunal proceedings special measures anonymity, 8.49 court dress, 8.43 ECAT, 8.34 EU Trafficking Directive, 8.34 examples of measures, 8.43–8.45 generally, 8.33–8.38 Guidance, 8.39–8.41 informality, 8.43 intermediaries, 8.46–8.48 Practice Direction, 8.39–8.41 private hearings, 8.50–8.51 procedure, 8.33 Procedure Rules, 8.42 reasonable adjustments, 8.43–8.45 seating arrangements, 8.43 Immigration detention age disputes, and, 3.15 determination of trafficking status, and, 2.118 Immigration law age disputes, and assessment of age, 3.35–3.40 importance and relevance, 3.12–3.15 criminal offences, and generally, 4.93–4.98 sentencing, 4.99–4.100 public funding, and amending scope, 13.168 Civil Legal Aid, 13.130, 13.149–13.151 Controlled Legal Representation, 13.130, 13.145–13.148

656

Index Immigration law – contd public funding, and – contd declaration against instructions, 13.166– 13.167 emergency certificates, 13.164 exceptional case funding (ECF), 13.135– 13.137 expert witnesses, 13.169 extension of cost limits, 13.169 financial risk, 13.170–13.171 full representation, 13.159–13.163 gap in provision for VOTs, 13.132– 13.134 Help at Court, 13.130 immigration detention, in, 13.138– 13.139 introduction, 13.130–13.131 investigative representation, 13.156– 13.158 judicial review, 13.152–13.155 Legal Help, 13.130, 13.140–13.144 permission decision, 13.168 practical steps, 13.140–13.144 substantive certificates, 13.165 types of legal aid, 13.130 Independent Child Trafficking Advocates safeguarding children, and, 11.18 Indictment Crown Court process, and, 7.96–7.99 Inhuman or degrading treatment assessment of risk, 10.46 gang attacks, 10.48 introduction, 10.44–10.45 mental health deterioration, 10.49–10.52 pain and suffering, 10.47 sexual abuse, 10.48 suicide risk, 10.49–10.52 trauma-based claims, 10.49–10.52 Intermediaries public funding, and, 13.55–13.61 special measures, and criminal proceedings, 8.93–8.95 Immigration and Asylum Tribunal proceedings, 8.46–8.48 International Criminal Court (ICC) Art 31(1)(d) Rome Statute (1998) adoption of, 18.35–18.36 avoidance of threat, 18.60–18.61 conditions to be established, 18.46–18.50 continuing or imminent serious bodily harm, 18.47–18.48 crime and threat analysis, 18.57–18.59 generally, 18.32–18.34 Ongwen defence, 18.51–18.55 overview, 18.70

International Criminal Court (ICC) – contd Art 31(1)(d) Rome Statute (1998) – contd person acted necessarily and reasonably to avoid threat, 18.49 person acted proportionately etc, 18.50 possibility of death not sufficient, 18.56 practice, in, 18.56–18.69 proportionality, 18.66–18.69 resilience, 18.61–18.65 threat or imminent death or…serious bodily harm, 18.47–18.48 trafficked persons, for, 18.51–18.55 unlawful killing, 18.37–18.45 duress Art 31(1)(d) Rome Statute, 18.32–18.69 generally, 18.28–18.31 trafficking, and, 18.70 introduction, 18.1–18.4 non-criminalisation armed conflict, in, 18.11–18.16 Council of Europe instruments, and, 18.8 criminal gain, 18.5–18.7 duress, 18.28–18.31 EU instruments, and, 18.8 generally, 18.5–18.9 international criminal law, in, 18.17–18.19 nexus between trafficking and offending, 18.20–18.27 UN Model Law against Trafficking (2009), 18.10–18.27 UNHCR Recommended Principles and Guidelines, 18.9 Ongwen trial, 18.3 International protection for victims European Convention on Human Rights introduction, 10.43 prohibition of slavery, servitude or forced or compulsory labour, 10.53–10.74 prohibition of torture or inhuman or degrading treatment, 10.44–10.52 right to respect for private and family life, 10.75–10.81 expert evidence, 10.82–10.88 introduction, 10.1 prohibition of slavery, servitude or forced or compulsory labour child labour, 10.67–10.70 forced or compulsory labour, 10.62– 10.66 introduction, 10.53 positive state obligations, 10.71–10.74 servitude, 10.56–10.61 slavery, 10.55 trafficking, 10.54

657

Index International protection for victims – contd prohibition of torture or inhuman or degrading treatment assessment of risk, 10.46 gang attacks, 10.48 introduction, 10.44–10.45 mental health deterioration, 10.49– 10.52 pain and suffering, 10.47 sexual abuse, 10.48 suicide risk, 10.49–10.52 trauma-based claims, 10.49–10.52 Refugee Convention assessment of future risk, 10.13–10.14 assigned reasons, 10.17–10.22 burden of proof, 10.15–10.16 credibility, 10.38–10.42 definition of ‘refugee’, 10.7 ‘for reasons of…’, 10.17–10.22 internal relocation, 10.29–10.37 introduction, 10.6 ‘particular social group’, 10.18–10.20 past persecution, 10.12 standard of proof, 10.15–10.16 trafficking, 10.8–10.10 ‘unable or unwilling to avail himself of the protection of that country’, 10.23–10.28 well-founded fear of prosecution, 10.8–10.16 right to respect for private and family life, 10.75–10.81 role of NRM identification decision, 10.2–10.5 Interpreters police station procedure, and, 6.29–6.37 Interviews See also Police station procedure account and challenge, 17.21–17.22 Achieving Best Evidence investigation of offences, during, 17.6 police station, at, 6.160–6.166 children, 17.12–17.13 closure, 17.23 disclosure made, where Achieving Best Evidence interviews, 6.160–6.166 generally, 6.136–6.145 interviewing vulnerable witnesses, 6.147–6.159 PEACE model, 6.150 engage and explain, 17.17–17.20 exclusion at trial, 7.121 generally, 17.5–17.11

Interviews – contd investigation of offences, during account and challenge, 17.21–17.22 children, 17.12–17.13 closure, 17.23 engage and explain, 17.17–17.20 generally, 17.5–17.11 PEACE model, 17.14–17.23 planning and preparation, 17.15–17.16 PEACE model account and challenge, 17.21–17.22 closure, 17.23 disclosure made, where, 6.150 engage and explain, 17.17–17.20 generally, 17.14 planning and preparation, 17.15–17.16 police station, at disclosure made, where, 6.136–6.145 generally, 6.99–6.101 preparation and planning, 17.15–17.16 special measures, and generally, 8.21–8.28 Home Office statutory guidance, 8.29–8.32 Investigation of offences ABE interviews, 17.6 accused-related information, 17.29–17.31 banking transaction history, 17.27 beyond complainant’s account information about the accused, 17.29– 17.31 international material, 17.28 introduction, 17.24 UK material, 17.25–17.27 CCTV, 17.27 children, 17.12–17.13 communications data, 17.27 complainants, 17.2–17.4 ECAT, and, 17.1 employment records, 17.27 EU Trafficking Directive, and, 17.1 European Convention on Human Rights, and, 17.1 Gangmasters’ and Labour Abuse Authority information, 17.27 housing records, 17.27 international letters of request, 17.28 interviews account and challenge, 17.21–17.22 children, 17.12–17.13 closure, 17.23 engage and explain, 17.17–17.20 generally, 17.5–17.11 PEACE model, 17.14–17.23 planning and preparation, 17.15–17.16

658

Index Investigation of offences – contd introduction, 17.1 Joint Investigation Teams, 17.28 local authority records, 17.27 National Referral Mechanism, and, 17.4 NHS records, 17.27 NI numbers, 17.27 NRM support services, 17.27 s 9 statements, 17.6 social media, 17.27 statutory guidance, 17.3–17.4 travel records, 17.27 utility bills, 17.27 Isolation modus operandi of traffickers, and, 15.13 J Just satisfaction compensation, 12.68–12.71 K Kidnapping consent, and, 4.77 elements, 4.75 introduction, 4.74 ‘lawful excuse’, 4.78 recklessness, and, 4.79 sentencing, 4.82–4.86 ‘taking or carrying away’, 4.76 L Labour exploitation modus operandi of traffickers, and, 15.39– 15.42 Leave to remain conclusive grounds decisions, and, 2.137– 2.141 Legal advice privilege professional ethics and conduct, and, 16.6 Legal aid administration, 13.1 Advice and Assistance Scheme applications to CCRC, 13.106–13.107 applications to Court of Appeal, 13.83– 13.121 post-release, pre-charge work, 13.24– 13.32 advice on arrest Criminal Defence Direct, 13.4–13.7 Defence Solicitor Call Centre, 13.8 ‘escape fee’, 13.17 fixed fees, 13.16–13.19 generally, 13.2–13.3 Police Station Advice and Assistance Scheme, 13.2

Legal aid – contd advice on arrest – contd Standard Crime Contract, 13.10–13.14 sufficient benefit test, 13.9–13.10 transfer between solicitors, 13.15 Advocacy Assistance, 13.22 Advocates Graduated Fee Scheme, 13.48– 13.51 appeals against conviction and/or sentence Crown Court, from, 13.81–13.82 magistrates’ court, from, 13.78–13.80 appeals to Court of Appeal applications out of time, 13.91–13.92 counsel’s fees, 13.119–13.121 financial limits, 13.101–13.105 financial test, 13.94–13.98 generally, 13.83–13.90 introduction, 9.82 out of time, 13.91–13.92 outward travel, 13.112–13.115 postal applications, 13.108–13.109 previous adverse opinion, 13.99–13.100 previous advice under LAAS, 13.116– 13.118 sufficient benefit test, 13.93 telephone advice, 13.110–13.111 appeals where solicitor acted at trial, 13.78–13.82 applications for compensation, 13.126– 13.129 applications to CCRC, 13.106–13.107 applications to re-open cases, 13.122– 13.125 Criminal Defence Direct, and, 13.4–13.7 Crown Court proceedings, in billing time limits, 13.77 contribution from capital, 13.36 defendant intermediaries, 13.55–13.61 disbursements, 13.52–13.54 financial eligibility, 13.35–13.36 generally, 13.48–13.51 introduction, 13.33–13.37 merits eligibility, 13.33–13.34 Queen’s Counsel, 13.62–13.67 transfers of legal aid, 13.68–13.76 Defence Solicitor Call Centre, and, 13.8 defendant intermediaries, 13.55–13.61 disbursements, 13.52–13.54 ‘escape fee’, 13.17 first instance proceedings, during billing time limits, 13.77 contribution from capital, 13.36 Crown Court, in, 13.48–13.51 defendant intermediaries, 13.55–13.61 disbursements, 13.52–13.54

659

Index Legal aid – contd first instance proceedings, during – contd financial eligibility, 13.35–13.36 generally, 13.33–13.37 magistrates’ court, in, 13.38–13.47 merits eligibility, 13.33–13.34 Queen’s Counsel, 13.62–13.67 transfers of legal aid, 13.68–13.76 fixed fees, 13.16–13.19 immigration law advice amending scope, 13.168 Civil Legal Aid, 13.130, 13.149–13.151 Controlled Legal Representation, 13.130, 13.145–13.148 declaration against instructions, 13.166– 13.167 emergency certificates, 13.164 exceptional case funding (ECF), 13.135– 13.137 expert witnesses, 13.169 extension of cost limits, 13.169 financial risk, 13.170–13.171 full representation, 13.159–13.163 gap in provision for VOTs, 13.132– 13.134 Help at Court, 13.130 immigration detention, in, 13.138– 13.139 introduction, 13.130–13.131 investigative representation, 13.156– 13.158 judicial review, 13.152–13.155 Legal Help, 13.130, 13.140–13.144 permission decision, 13.168 practical steps, 13.140–13.144 substantive certificates, 13.165 types of legal aid, 13.130 intermediaries, 13.55–13.61 introduction, 13.1 Legal Aid Agency, 13.1 Litigator Graduated Fee Scheme, 13.48– 13.51 magistrates’ court proceedings, in applications to re-open cases, 13.122– 13.125 billing time limits, 13.77 contribution from capital, 13.36 defendant intermediaries, 13.55–13.61 disbursements, 13.52–13.54 financial eligibility, 13.35–13.36 generally, 13.38–13.47 introduction, 13.33–13.37 merits eligibility, 13.33–13.34 Queen’s Counsel, 13.62–13.67 transfers of legal aid, 13.68–13.76

Legal aid – contd Police Station Advice and Assistance Scheme, 13.2–13.23 post-release work, 13.24–13.32 pre-charge work generally, 13.24–13.28 witnesses at risk of self-incrimination, 13.29–13.32 prior authority for disbursements, 13.52– 13.54 Queen’s Counsel, 13.62–13.67 representation orders appeals to Court of Appeal, 13.85 billing time limits, 13.77 contribution from capital, 13.36 Crown Court, in, 13.48–13.51 defendant intermediaries, 13.55–13.61 disbursements, 13.52–13.54 financial eligibility, 13.35–13.36 generally, 13.33–13.37 magistrates’ court, in, 13.38–13.47 merits eligibility, 13.33–13.34 Queen’s Counsel, 13.62–13.67 transfers of legal aid, 13.68–13.76 Standard Crime Contract generally, 13.10–13.14 introduction, 13.2 sufficient benefit test advice on arrest, 13.9–13.10 generally, 13.93 immigration law matters, 13.144, 13.148 witnesses at risk of self-incrimination, 13.31–13.32 transfers of legal aid, 13.68–13.76 two advocates, 13.62–13.67 Legal professional privilege professional ethics and conduct, and, 16.6 Litigator Graduated Fee Scheme public funding, and, 13.48–13.51 Local Safeguarding Children Board generally, 11.4 ‘Looked-after’ children age disputes, and, 3.8–3.11 M Magistrates’ court abuse of process, 7.55–7.58 age assessments, 7.53–7.54 assessment of evidence, 7.32 bail application, 7.33–7.38 better case management (BCM) form, 7.49 case management forms, 7.49–7.52 charging at police station, 7.12–7.21 custody time limits, 7.45–7.48 either way offences, 7.63–7.65

660

Index Magistrates’ court – contd entry of plea, 7.39–7.44 first appearance, 7.31 fitness to plead, 7.79–7.83 introduction, 7.1–7.11 preparation for effective trial (PET) form, 7.49 public funding, and applications to re-open cases, 13.122– 13.125 billing time limits, 13.77 contribution from capital, 13.36 defendant intermediaries, 13.55–13.61 disbursements, 13.52–13.54 financial eligibility, 13.35–13.36 generally, 13.38–13.47 introduction, 13.33–13.37 merits eligibility, 13.33–13.34 Queen’s Counsel, 13.62–13.67 transfers of legal aid, 13.68–13.76 section 45 MSA 2015 defence, 7.59–7.60 sentencing, 7.149–7.163 summary only offences, 7.61–7.62 Material facts reasonable grounds decision, and, 2.75 McCook correspondence appeals to Court of Appeal, and, 9.45–9.47 Means of trafficking abuse of position of vulnerability, 1.17–1.21 children, and, 1.14 coercion generally, 1.15 statutory guidance, 1.29 deception, 1.16 fraud, 1.16 generally, 1.14 giving or receiving of payments or benefits to achieve consent, 1.22 introduction, 1.6 statutory guidance, 1.29–1.30 threat of a penalty, 1.30 Medical evidence see also Expert evidence special measures, and, 8.17–8.18 Mental health post-traumatic stress disorder complex, 8.7–8.11 generally, 8.6 introduction, 8.5 prohibition of torture or inhuman or degrading treatment, 10.49–10.52 trauma-based, 8.3–8.5 Miscarriages of justice compensation, and awards, 12.49–12.51

Miscarriages of justice – contd compensation, and – contd eligibility, 12.41–12.44 generally, 12.35–12.40 non-pecuniary loss, 12.52–12.57 procedure, 12.45–12.48 Missing victims conclusive grounds decisions, and, 2.151– 2.155 safeguarding children, and, 11.14–11.16 Mode of trial age disputes, and, 3.24–3.26 Modern Slavery Act 2015 abuse of process generally, 5.55–5.57 introduction, 5.37–5.38 compliance statements under s 54 see also Modern slavery compliance statements anticipated changes, 19.49–19.52 consequences of non-compliance, 19.14–19.17 content, 19.13 criminal offences, and, 19.18–19.20 differing corporate structures, 19.5– 19.12 evaluation framework, 19.41–19.48 future developments, 19.21–19.40 introduction, 19.2–19.4 criminal offences see also Criminal offences commentary, 4.126–4.134 committing any offence with intent to commit s.2 offence, 4.71–4.72 exploitation, 4.49–4.54 human trafficking, 4.33–4.48 introduction, 4.1 sentencing, 4.55–4.70 slavery, servitude and forced or compulsory labour, 4.4–4.32 defences under s 45 abuse of process, 5.55–5.57 burden of proof, 5.41–5.47 elements, 5.39 excluded offences, 5.69 expert evidence, 5.48–5.50 generally, 5.36–5.40 introduction, 5.4 magistrates’ court process, and, 7.59–7.60 public interest to prosecution, 5.51–5.54 standard of proof, 5.41–5.47 known modern slavery cases, 15.32–15.42 Modern slavery compliance statements California Supply Chains Act 2012, and audits, 19.61

661

Index Modern slavery compliance statements California Supply Chains Act 2012, and generally, 19.54–19.59 internal accountability, 19.63 supplier certification, 19.62 training, 19.64 verification, 19.60 consequences of non-compliance, 19.14– 19.17 content, 19.13 criminal offences, and, 19.18–19.20 differing organisational structures, 19.5– 19.12 effectiveness, 19.21 Ethical Trading Initiative (ETI) evaluation framework capacity building, 19.48 due diligence processes, 19.46 effectiveness measured against KPIs, 19.47 overview, 19.41–19.42 policies as to slavery and trafficking, 19.44 risk assessment , prevention and mitigation, 19.45 structure, business and supply chains, 19.43 training, 19.48 franchises, 19.5 future developments anticipated changes, 19.49–19.52 Home Office consultation, 19.38– 19.40 Independent Review, 19.33–19.37 introduction, 19.21–19.22 Joint Committee Report, 19.23–19.32 generally, 19.2–19.4 groups, 19.7 Home Office consultation, 19.38–19.40 Independent Review (2019), and, 19.33– 19.37 insolvency, and, 19.11 introduction, 19.1 investment funds, 19.10 Joint Committee Report (2017), and, 19.23–19.32 parent organisations, 19.6 publication, 19.3 small companies, 19.12 subsidiaries, 19.6 turnover criteria, 19.9 UN Guiding Principles for Business (UNGPs), 19.1 use, 19.4 Wales, and, 19.53

Modus operandi of traffickers control methods, 15.7–15.20 county lines, 15.55–15.65 CPS guidance, 15.7 criminal exploitation common forms, 15.84 county lines, 15.55–15.65 generally, 15.52–15.54 culture and faith, 15.16–15.18 debt, 15.12 deception, 15.11 dependency, 15.14 emotional control, 15.15 exploitation typologies culture and faith, 15.16–15.18 debt, 15.12 deception, 15.11 dependency, 15.14 emotional control, 15.15 family involvement, 15.19–15.20 introduction, 15.7–15.9 isolation, 15.13 violence, 15.10 family involvement, 15.19–15.20 introduction, 15.1–15.6 isolation, 15.13 known modern slavery cases, in generally, 15.21–15.31 post-Modern Slavery Act, 15.32–15.42 labour exploitation, 15.39–15.42 National Referral Mechanism, 15.4 organised crime, 15.43–15.51 physical violence, 15.10 sexual exploitation, 15.35–15.38 sexual violence, 15.10 terrorism child soldiers, 15.77–15.78 domestic perspective, 15.72–15.76 foreign fighters or supporters, 15.77– 15.78 international perspective, 15.66–15.71 mitigation, 15.79–15.83 Money laundering criminal offences, and, 4.115–4.118 Multi-agency assurance panels (MAAPs) conclusive grounds decisions, and, 2.148– 2.150 N National Crime Agency (NCA) extradition, and, 14.21 National Referral Mechanism (NRM) see also Determination of trafficking status definition of victim of modern slavery, 1.28

662

Index National Referral Mechanism (NRM) – contd extradition, and, 14.3 first responders, 2.18–2.26 generally, 2.14–2.17 identification of victims of trafficking, 2.15–2.17 introduction, 2.4 modus operandi of traffickers, 15.4 police station procedure advice, 6.61–6.62 duty to notify, 6.94–6.97 identification as potential victim, 6.44 instructions not to disclose, 6.48–6.50 introduction, 6.2–6.3 reasonable grounds decision, 2.28–2.122 role in Tribunal decision making, 10.2–10.5 safeguarding children, 11.11–11.13 status of decision in Tribunal decisionmaking, 2.7–2.9 Non-criminalisation see also Non-prosecution/punishment armed conflict, in, 18.11–18.16 Council of Europe instruments, and, 18.8 criminal gain, 18.5–18.7 duress, and see also Duress Art 31(1)(d) Rome Statute, 18.32–18.69 generally, 18.28–18.31 trafficking, and, 18.70 EU instruments, and, 18.8 generally, 18.5–18.9 international criminal law, in, 18.17–18.19 introduction, 18.1–18.4 nexus between trafficking and offending, 18.20–18.27 Ongwen trial, 18.3 UN Model Law against Trafficking (2009), 18.10–18.27 UNHCR Recommended Principles and Guidelines, 18.9 Non-prosecution/punishment see also Non-criminalisation Council of Europe Convention on Action against Trafficking in Human Beings definitions, 5.10 generally, 5.8–5.12 implementation in UK, 5.8 introduction, 5.1 purpose and scope, 5.9 CPS Guidance, 5.3 domestic protection children, 5.28–5.29 compulsion, 5.22–5.27 introduction, 5.4

Non-prosecution/punishment – contd domestic protection – contd nexus, 5.22–5.27 prosecutorial staged inquiry, 5.18–5.19 reason to believe, 5.20–5.21 EU Trafficking Directive 2011/36 definitions, 5.15 generally, 5.13–5.17 implementation in UK, 5.13 introduction, 5.1 international protection Council of Europe Convention, 5.8– 5.12 EU Trafficking Directive, 5.13–5.17 Palermo Protocol, 5.5–5.7 introduction, 5.1–5.2 Palermo Protocol, 5.5–5.7 statutory provision, 5.4 Notification conclusive grounds decisions, and, 2.135 determination of trafficking status, and, 2.26 reasonable grounds decision, and, 2.101 O Offences acquisition, use and possession of criminal property, 4.118 ancillary orders on conviction civil orders, 4.121–4.125 confiscation, 4.119 forfeiture, 4.120 cannabis production, and, 4.108–4.109 charging, 17.32–17.37 child abduction generally, 4.87–4.91 sentencing, 4.92 child labour, and, 4.26–4.29 civil orders, 4.121–4.125 Code for Crown Prosecutors, 4.3 committing any offence with intent to commit s.2 offence, 4.71–4.72 common law, at false imprisonment, 4.80–4.81 introduction, 4.74 kidnapping, 4.75–4.79 confiscation orders, 4.119 defences common law, at, 5.30–5.35 domestic protection, 5.18–5.29 duress, 5.30–5.35 Immigration and Asylum Act 1999, s 31, under, 5.58–5.68 international protection, 5.5–5.17 introduction, 5.1–5.4

663

Index Offences – contd defences – contd Modern Slavery Act 2015, s 45, under, 5.36–5.57 non-punishment of victims, 5.5–5.29 disclosure, 17.38–17.42 drug offences, 4.108–4.109 exploitation generally, 4.49–4.54 sentencing, 4.55–4.70 exploitation of workers generally, 4.110–4.113 proceeds of crime, 4.115–4.118 false imprisonment elements, 4.80–4.81 introduction, 4.74 mens rea, 4.81 recklessness, and, 4.79 sentencing, 4.82–4.86 forced or compulsory labour ‘all of the circumstances’, 4.30–4.31 child labour, and, 4.26–4.29 consent, and, 4.32 generally, 4.16–4.25 introduction, 4.4 required acts, 4.5 regard to be had to all circumstances, 4.30–4.31 sentencing, 4.55–4.70 servitude, 4.10–4.15 slavery and similar practices, 4.7–4.9 forfeiture orders, 4.120 human trafficking arranging or facilitating, 4.35–4.37 committing any offence with intent to commit offence, 4.71–4.72 consent, and, 4.38 elements, 4.34 extra-territorial effect, 4.46–4.48 facilitating travel for exploitation, 4.35–4.37 introduction, 4.33 mens rea, 4.39–4.42 scope of offence, 4.44–4.45 sentencing, 4.55–4.70 sexual exploitation, 4.34 ‘with a view to’, 4.42 immigration law, under generally, 4.93–4.98 sentencing, 4.99–4.100 introduction, 4.1–4.3 investigation beyond complainant’s account, 17.24– 17.31 children, 17.12–17.13

Offences – contd investigation – contd complainants, 17.2–17.4 interviews, 17.5–17.11 introduction, 17.1 PEACE model of interviewing, 17.14– 17.23 kidnapping consent, and, 4.77 elements, 4.75 introduction, 4.74 ‘lawful excuse’, 4.78 recklessness, and, 4.79 sentencing, 4.82–4.86 ‘taking or carrying away’, 4.76 Modern Slavery Act 2015, under commentary, 4.126–4.134 committing any offence with intent to commit s.2 offence, 4.71–4.72 exploitation, 4.49–4.54 human trafficking, 4.33–4.48 introduction, 4.1 sentencing, 4.55–4.70 slavery, servitude and forced or compulsory labour, 4.4–4.32 money laundering, 4.115–4.118 proceeds of crime generally, 4.115–4.118 orders, 4.119 sentencing child abduction, 4.92 common law, at, 4.82–4.86 immigration law, under, 4.99–4.100 Modern Slavery Act 2015, under, 4.55–4.70 serious crime prevention orders, 4.123– 4.124 servitude ‘all of the circumstances’, 4.30–4.31 child labour, and, 4.26–4.29 consent, and, 4.32 forced or compulsory labour, 4.16–4.25 generally, 4.10–4.15 introduction, 4.4 required acts, 4.5 regard to be had to all circumstances, 4.30–4.31 sentencing, 4.55–4.70 slavery and similar practices, 4.7–4.9 sexual exploitation, 4.102–4.107 sexual harm prevention orders, 4.125 slavery and similar practices ‘all of the circumstances’, 4.30–4.31 child labour, and, 4.26–4.29 consent, and, 4.32

664

Index Offences – contd slavery and similar practices – contd forced or compulsory labour, 4.16–4.25 generally, 4.7–4.9 introduction, 4.4 required acts, 4.5 regard to be had to all circumstances, 4.30–4.31 sentencing, 4.55–4.70 servitude, 4.10–4.15 slavery and traffic prevention orders, 4.121 slavery and traffic risk orders, 4.122 travel prohibition, 4.122 trial, 17.43–17.52 unlawful restriction of liberty child abduction, 4.87–4.92 false imprisonment, 4.80–4.81 introduction, 4.73 kidnapping, 4.75–4.79 ‘use’ of victims, as to drug offences, 4.108–4.109 exploitation of workers, 4.110–4.113 introduction, 4.101 proceeds of crime, 4.114–4.118 sexual exploitation, 4.102–4.107 worker exploitation, 4.110–4.113 Online portal determination of trafficking status, and duty to notify, 2.26 generally, 2.21–2.22 Organ removal purpose of exploitation, and, 1.23 Organised crime modus operandi of traffickers, and, 15.43– 15.51 P Palermo Protocol defences available to victims, and, 5.5–5.7 PEACE interview model account and challenge, 17.21–17.22 closure, 17.23 disclosure made, where, 6.150 engage and explain, 17.17–17.20 generally, 17.14 planning and preparation, 17.15–17.16 ‘Personal circumstances’ conclusive grounds decisions, and, 2.138 Physical violence modus operandi of traffickers, and, 15.10 Plea magistrates’ court process, and, 7.39–7.44 Plea and trial preparation hearing (PTPH) form Crown Court process, and, 7.67–7.68

Police Station Advice and Assistance Scheme see also Public funding generally, 13.2–13.23 Police station procedure Achieving Best Evidence interviews, 6.160–6.166 advice, 6.61–6.86 age of potential victim, 6.102–6.104 appropriate adult, 6.105–6.112 arrival notification of rights, 6.13–6.21 risk assessment, 6.4–6.12 attendance of solicitor arrival at police station, 6.26–6.28 initial contact, 6.25 bail, 6.118–6.131 charging decision, 6.136–6.144 crime recording, 6.98 Criminal Defence Direct, 6.22–6.24 custody rights attendance of solicitor, 6.25–6.28 calling defence adviser, 6.22–6.24 generally, 6.13–6.21 Defence Solicitor Call Centre, 6.21 duration of detention without charge, 6.132–6.135 duty to notify, 6.94–6.97 identification of client as potential victim, 6.40–6.46 initial meeting with client, 6.38–6.39 instructions not to disclose trafficking, 6.47–6.60 interaction with detainee advice, 6.61–6.86 age of potential victim, 6.102–6.104 appropriate adult, 6.105–6.112 crime recording, 6.98 duty to notify, 6.94–6.97 identification as potential victim, 6.40– 6.46 initial meeting, 6.38–6.39 instructions not to disclose, 6.47–6.60 interpreters, 6.29–6.37 police interview, 6.99–6.101 positive obligations owed by state, 6.87–6.93 interpreters, 6.29–6.37 interviews, 6.99–6.101 interviews where disclosure made Achieving Best Evidence interviews, 6.160–6.166 generally, 6.136–6.145 interviewing vulnerable witnesses, 6.147–6.159

665

Index Police station procedure – contd introduction, 6.1–6.3 investigative interviewing techniques, 6.147–6.159 magistrates’ court process, and charging, 7.12–7.21 post-charge, 7.22–7.30 National Referral Mechanism advice, 6.61–6.62 duty to notify, 6.94–6.97 identification as potential victim, 6.44 instructions not to disclose, 6.48–6.50 introduction, 6.2–6.3 notification of rights, 6.13–6.21 PEACE interview model, 6.150 police bail, 6.118–6.131 police interview, 6.99–6.101 police training and development, 6.9– 6.12 positive obligations owed by state, 6.87– 6.93 post-interview actions charging decision, 6.136–6.144 duration of detention without charge, 6.132–6.135 generally, 6.113–6.117 police bail, 6.118–6.131 provision of rights, 6.13–6.21 recording of crime, 6.98 removal of detainee to safe accommodation, 6.114 risk assessment generally, 6.4–6.8 police training and development, 6.9–6.12 state obligations, 6.87–6.93 translators, 6.29–6.37 Positive obligations owed by state police station procedure, and, 6.87–6.93 prohibition of slavery, servitude or forced or compulsory labour, and, 10.71– 10.74 Post-traumatic stress disorder (PTSD) special measures, and complex, 8.7–8.11 generally, 8.6 introduction, 8.5 Preparation for effective trial (PET) form magistrates’ court process, and, 7.49 Pre-sentencing applications to vacate guilty plea Crown Court process, and, 7.144–7.148 Private hearings special measures, and, 8.50–8.51

Privilege generally, 16.6–16.15 legal advice privilege, 16.6 legal professional privilege, 16.6 self-incrimination, 16.7 waiver, 16.9–16.12 Proceeds of crime criminal offences, and generally, 4.115–4.118 orders, 4.119 Professional conduct advice to client in police interview, 16.4– 16.5 fresh evidence, 16.10 interaction of roles of victim, witness and suspect, 16.5 introduction, 16.1 legal advice privilege, 16.6 legal professional privilege, 16.6 loss of confidentiality, 16.8 privilege, 16.6–16.15 privilege against self-incrimination, 16.7 referral of client through NRM, 16.2– 16.3 waiver of privilege, 16.9–16.12 Prohibition of slavery, servitude or forced or compulsory labour child labour, 10.67–10.70 extradition, and, 14.5 forced or compulsory labour, 10.62–10.66 introduction, 10.53 positive state obligations, 10.71–10.74 servitude, 10.56–10.61 slavery, 10.55 trafficking, 10.54 Prohibition of torture or inhuman or degrading treatment assessment of risk, 10.46 extradition, and, 14.8 gang attacks, 10.48 introduction, 10.44–10.45 mental health deterioration, 10.49–10.52 pain and suffering, 10.47 sexual abuse, 10.48 suicide risk, 10.49–10.52 trauma-based claims, 10.49–10.52 Prostitution of others purpose of exploitation, and, 1.23 Protective duty determination of trafficking status, and, 2.10–2.13 Public bodies compensation, and generally, 12.58–12.61 investigative duty, 12.62–12.64

666

Index Public bodies – contd compensation, and – contd just satisfaction, 12.68–12.71 scope, 12.65–12.68 slavery and trafficking reparation orders, 12.12–12.14 Public funding administration, 13.1 Advice and Assistance Scheme applications to CCRC, 13.106–13.107 applications to Court of Appeal, 13.83– 13.121 post-release, pre-charge work, 13.24– 13.32 advice on arrest Criminal Defence Direct, 13.4–13.7 Defence Solicitor Call Centre, 13.8 ‘escape fee’, 13.17 fixed fees, 13.16–13.19 generally, 13.2–13.3 Police Station Advice and Assistance Scheme, 13.2 Standard Crime Contract, 13.10–13.14 sufficient benefit test, 13.9–13.10 transfer between solicitors, 13.15 Advocacy Assistance, 13.22 Advocates Graduated Fee Scheme, 13.48– 13.51 appeals against conviction and/or sentence Crown Court, from, 13.81–13.82 magistrates’ court, from, 13.78–13.80 appeals to Court of Appeal applications out of time, 13.91–13.92 counsel’s fees, 13.119–13.121 financial limits, 13.101–13.105 financial test, 13.94–13.98 generally, 13.83–13.90 introduction, 9.82 out of time, 13.91–13.92 outward travel, 13.112–13.115 postal applications, 13.108–13.109 previous adverse opinion, 13.99–13.100 previous advice under LAAS, 13.116– 13.118 sufficient benefit test, 13.93 telephone advice, 13.110–13.111 appeals where solicitor acted at trial, 13.78–13.82 applications for compensation, 13.126– 13.129 applications to CCRC, 13.106–13.107 applications to re-open cases, 13.122– 13.125 Criminal Defence Direct, and, 13.4–13.7

Public funding – contd Crown Court proceedings, in billing time limits, 13.77 contribution from capital, 13.36 defendant intermediaries, 13.55–13.61 disbursements, 13.52–13.54 financial eligibility, 13.35–13.36 generally, 13.48–13.51 introduction, 13.33–13.37 merits eligibility, 13.33–13.34 Queen’s Counsel, 13.62–13.67 transfers of legal aid, 13.68–13.76 Defence Solicitor Call Centre, and, 13.8 defendant intermediaries, 13.55–13.61 disbursements, 13.52–13.54 ‘escape fee’, 13.17 first instance proceedings, during billing time limits, 13.77 contribution from capital, 13.36 Crown Court, in, 13.48–13.51 defendant intermediaries, 13.55–13.61 disbursements, 13.52–13.54 financial eligibility, 13.35–13.36 generally, 13.33–13.37 magistrates’ court, in, 13.38–13.47 merits eligibility, 13.33–13.34 Queen’s Counsel, 13.62–13.67 transfers of legal aid, 13.68–13.76 fixed fees, 13.16–13.19 immigration law advice amending scope, 13.168 Civil Legal Aid, 13.130, 13.149–13.151 Controlled Legal Representation, 13.130, 13.145–13.148 declaration against instructions, 13.166– 13.167 emergency certificates, 13.164 exceptional case funding (ECF), 13.135– 13.137 expert witnesses, 13.169 extension of cost limits, 13.169 financial risk, 13.170–13.171 full representation, 13.159–13.163 gap in provision for VOTs, 13.132– 13.134 Help at Court, 13.130 immigration detention, in, 13.138– 13.139 introduction, 13.130–13.131 investigative representation, 13.156– 13.158 judicial review, 13.152–13.155 Legal Help, 13.130, 13.140–13.144 permission decision, 13.168 practical steps, 13.140–13.144

667

Index Public funding – contd immigration law advice – contd substantive certificates, 13.165 types of legal aid, 13.130 intermediaries, 13.55–13.61 introduction, 13.1 Legal Aid Agency, 13.1 Litigator Graduated Fee Scheme, 13.48– 13.51 magistrates’ court proceedings, in applications to re-open cases, 13.122– 13.125 billing time limits, 13.77 contribution from capital, 13.36 defendant intermediaries, 13.55–13.61 disbursements, 13.52–13.54 financial eligibility, 13.35–13.36 generally, 13.38–13.47 introduction, 13.33–13.37 merits eligibility, 13.33–13.34 Queen’s Counsel, 13.62–13.67 transfers of legal aid, 13.68–13.76 Police Station Advice and Assistance Scheme, 13.2–13.23 post-release work, 13.24–13.32 pre-charge work generally, 13.24–13.28 witnesses at risk of self-incrimination, 13.29–13.32 prior authority for disbursements, 13.52– 13.54 Queen’s Counsel, 13.62–13.67 representation orders appeals to Court of Appeal, 13.85 billing time limits, 13.77 contribution from capital, 13.36 Crown Court, in, 13.48–13.51 defendant intermediaries, 13.55–13.61 disbursements, 13.52–13.54 financial eligibility, 13.35–13.36 generally, 13.33–13.37 magistrates’ court, in, 13.38–13.47 merits eligibility, 13.33–13.34 Queen’s Counsel, 13.62–13.67 transfers of legal aid, 13.68–13.76 Standard Crime Contract generally, 13.10–13.14 introduction, 13.2 sufficient benefit test advice on arrest, 13.9–13.10 generally, 13.93 immigration law matters, 13.144, 13.148 witnesses at risk of self-incrimination, 13.31–13.32

Public funding – contd transfers of legal aid, 13.68–13.76 two advocates, 13.62–13.67 Purpose of exploitation child-sensitive approach, 1.24–1.27 credibility of account, 1.27 exploitation for criminal activities, 1.23 exploitation of children, 1.24–1.26 exploitation of prostitution of others, 1.23 forced labour or services, slavery or servitude, 1.23 generally, 1.23 introduction, 1.6 organ removal, 1.23 practices similar to slavery, 1.23 sexual exploitation, 1.23 slavery practices, 1.23 Q Queen’s Counsel public funding, and, 13.62–13.67 Questioning ‘officer in the case Crown Court process, and’, 7.118–7.120 R Reasonable adjustments special measures, and, 8.43–8.45 Reasonable grounds decision assessment of evidence of trafficking, 2.34–2.42 burden of proof, 2.31–2.33 challenge to negative decisions application of policy, 2.162 generally, 2.162–2.169 grounds of review, 2.165 standard of review, 2.163 child criminal exploitation (CCE), 2.54– 2.59 complex issues in identification, 2.52–2.63 conduct of investigators, 2.64–2.70 conduct of traffickers, 2.71–2.73 consequences negative decision, 2.119–2.121 positive decision, 2.101–2.114 county lines cases, 2.52–2.59 credibility, 2.74–2.84 criminal investigations, and, 2.98–2.100 domestic servitude, 2.60 experiences of victims, 2.64–2.70 expert evidence ‘due weight’, 2.87 other experts, from, 2.88–2.95 support organisations, from, 2.85–2.87 generally, 2.28–2.30 indicators of trafficking, 2.43–2.51

668

Index Reasonable grounds decision – contd introduction, 2.4 material facts, 2.75 mitigating factors, 2.79–2.80 negative decision, and challenges to, 2.162–2.169 consequences, 2.119–2.121 notification of decision, 2.101 ‘recovery and reflection’ period, 2.102– 2.114 positive decision, and challenges to, 2.162–2.169 consequences, 2.101–2.114 reconsideration, 2.122 relevance in other proceedings, 2.115– 2.118 request to reconsider, 2.122 standard of proof, 2.31–2.33 statutory guidance child criminal exploitation, 2.54 county lines, 2.52–2.59 credibility, 2.74 expert evidence, 2.87 indicators of trafficking, 2.46–2.49 introduction, 2.30 mitigating factors, 2.80 ‘recovery and reflection’ period, 2.111 request to reconsider, 2.122 standard of proof, 2.32 terrorism, 2.62–2.63 timing, 2.96–2.97 treatment of potential victim during investigation, 2.64–2.70 Receipt of persons act of trafficking, and, 1.13 Reconsideration reasonable grounds decision, and, 2.122 Recording of crime police station procedure, and, 6.98 ‘Recovery and reflection’ period generally, 2.102–2.114 introduction, 2.4 Recruitment act of trafficking, and, 1.9 Refugee Convention 1951 assessment of future risk, 10.13–10.14 assigned reasons, 10.17–10.22 burden of proof, 10.15–10.16 credibility, 10.38–10.42 defences available to victims, and, 5.60– 5.62 definition of ‘refugee’, 10.7 ‘for reasons of…’, 10.17–10.22 internal relocation, 10.29–10.37 introduction, 10.6

Refugee Convention 1951 – contd ‘particular social group’, 10.18–10.20 past persecution, 10.12 standard of proof, 10.15–10.16 trafficking, 10.8–10.10 ‘unable or unwilling to avail himself of the protection of that country’, 10.23– 10.28 well-founded fear of prosecution, 10.8– 10.16 Removal of organs purpose of exploitation, and, 1.23 Re-opening cases committal for sentence, and, 9.15 effect, 9.16 generally, 9.9–9.14 public funding, and, 13.122–13.125 Representation orders see also Public funding appeals to Court of Appeal, 13.85 billing time limits, 13.77 contribution from capital, 13.36 Crown Court, in, 13.48–13.51 defendant intermediaries, 13.55–13.61 disbursements, 13.52–13.54 financial eligibility, 13.35–13.36 generally, 13.33–13.37 magistrates’ court, in, 13.38–13.47 merits eligibility, 13.33–13.34 Queen’s Counsel, 13.62–13.67 transfers of legal aid, 13.68–13.76 Residence permits conclusive grounds decisions, and, 2.136 Right to respect for private and family life extradition, and, 14.8 generally, 10.75–10.81 Risk assessment police station procedure, and generally, 6.4–6.8 police training and development, 6.9–6.12 Rome Statute, Art 31(1)(d) defence adoption of, 18.35–18.36 avoidance of threat, 18.60–18.61 conditions to be established, 18.46–18.50 continuing or imminent serious bodily harm, 18.47–18.48 crime and threat analysis, 18.57–18.59 generally, 18.32–18.34 Ongwen defence, 18.51–18.55 overview, 18.70 person acted necessarily and reasonably to avoid threat, 18.49 person acted proportionately etc, 18.50

669

Index Rome Statute, Art 31(1)(d) defence – contd possibility of death not sufficient, 18.56 practice, in, 18.56–18.69 proportionality, 18.66–18.69 resilience, 18.61–18.65 threat or imminent death or…serious bodily harm, 18.47–18.48 trafficked persons, for, 18.51–18.55 unlawful killing, 18.37–18.45 S Safeguarding adult victims at risk, 11.50–11.61 Detention Centre Rules, 11.43–11.48 generally, 11.41–11.49 release, 11.62–11.69 victims of trafficking, 11.59–11.61 Safeguarding child victims ADCS guidance, 11.5 assessment of vulnerability, 11.5–11.7 College of Policing guidance, 11.7 county lines trafficking, 11.17 detention families, 11.34–11.40 introduction, 11.25 unaccompanied children, 11.26–11.31 victims of trafficking, 11.32–11.33 duty to notify, 11.12–11.13 duty under Borders Citizenship and Immigration Act 2009, s 55, 11.21– 11.24 families, 11.34–11.40 generally, 11.8–11.11 guardians, 11.18 guidance, 11.2–11.4 immigration control, and, 11.20 Independent Child Trafficking Advocates, 11.18 Interaction between policy and practice, 11.19 introduction, 11.1 Local Safeguarding Children Board, 11.4 missing children, 11.14–11.16 policy, 11.2–11.4 practice guidance, 11.3 unaccompanied children, 11.26–11.31 victims of trafficking, 11.32–11.33 ‘Working Together’ guidance, 11.1–11.3 Seating arrangements special measures, and, 8.43 Sentencing appeals, and generally, 9.29–9.33 grounds, 9.34

Sentencing – contd child abduction, 4.92 common law, at, 4.82–4.86 generally, 7.149–7.163 immigration law, under, 4.99–4.100 Modern Slavery Act 2015, under, 4.55– 4.70 Serious crime prevention orders criminal offences, and, 4.123–4.124 Severance Crown Court process, and, 7.98–7.99 Sexual abuse prohibition of torture or inhuman or degrading treatment, and, 10.48 Sexual exploitation criminal offences, and, 4.102–4.107 modus operandi of traffickers, and, 15.35– 15.38 purpose of exploitation, and, 1.23 Sexual harm prevention orders criminal offences, and, 4.125 Sexual violence modus operandi of traffickers, and, 15.10 Single competent authority (SCA) determination of trafficking status, and, 2.27 safeguarding children, and, 11.13 Slavery and traffic prevention orders criminal offences, and, 4.121 Slavery and traffic risk orders criminal offences, and, 4.122 investigation of offences, and, 17.36–17.37 Slavery-related practices purpose of exploitation, and, 1.23 Slavery, servitude and forced or compulsory labour ‘all of the circumstances’, 4.30–4.31 child labour, and, 4.26–4.29 consent, and, 4.32 construction in accordance with ECHR, 4.6–4.29 elements ‘all of the circumstances’, 4.30–4.31 consent, and, 4.32 construction in accordance with ECHR, 4.6–4.29 required acts, 4.5 European Convention on Human Rights child labour, 10.67–10.70 forced or compulsory labour,10.62–10.66 introduction, 10.53 positive state obligations, 10.71–10.74 servitude, 10.56–10.61 slavery, 10.55 trafficking, 10.54

670

Index Slavery, servitude and forced or compulsory labour – contd forced or compulsory labour, 4.16–4.25 introduction, 4.4 purpose of exploitation, and, 1.23 required acts, 4.5 regard to be had to all circumstances, 4.30–4.31 sentencing, 4.55–4.70 servitude, 4.10–4.15 slavery and similar practices, 4.7–4.9 Smuggling generally, 1.31–1.33 Social security law age disputes, and assessment of age, 3.35–3.40 importance and relevance, 3.6 Special measures anonymity criminal proceedings, in, 8.96–8.101 necessity, 8.99–8.101 serious gang related crime, 8.98 sexual offences, 8.96–8.97 Tribunal proceedings, in, 8.49 best practice methods for legal practitioners expert evidence, 8.17–8.18 general principles, 8.16 interviews, 8.21–8.32 medical evidence, 8.17–8.18 working methods, 8.19–8.20 court dress, 8.43 criminal proceedings, in accused persons who are children, 8.83–8.88 accused persons who are trafficked persons, 8.78–8.82 anonymity of adult defendants, 8.103– 8.108 anonymity of witnesses, 8.96–8.101 applications, 8.68 child defendants, 8.83–8.88 child witnesses, 8.66–8.67 competence of witnesses, 8.57 CPS Guidance, 8.59 ECAT, 8.54–8.56 eligibility of witnesses, 8.63–8.65 EU Trafficking Directive, 8.57 ground rules hearings, 8.69–8.77 Guidance, 8.58 in camera hearings, 8.111 intermediaries, 8.93–8.95 introduction, 8.52–8.58 procedure, 8.68–8.77 moving proceedings, 8.109–8.110 reporting restrictions, 8.102

Special measures – contd criminal proceedings, in – contd trafficked person defendants, 8.78–8.82 transfer of proceedings, 8.109–8.110 trauma-informed approach, 8.59–8.62 vulnerable adult defendants, 8.89–8.92 witness anonymity, 8.96–8.101 expert evidence, 8.17–8.18 general principles, 8.1–8.15 Immigration and Asylum Tribunal proceedings, in anonymity, 8.49 court dress, 8.43 ECAT, 8.34 EU Trafficking Directive, 8.34 examples of measures, 8.43–8.45 generally, 8.33–8.38 Guidance, 8.39–8.41 informality, 8.43 intermediaries, 8.46–8.48 Practice Direction, 8.39–8.41 private hearings, 8.50–8.51 procedure, 8.33 Procedure Rules, 8.42 reasonable adjustments, 8.43–8.45 seating arrangements, 8.43 informality, 8.43 intermediaries, 8.46–8.48 interviews generally, 8.21–8.28 Home Office statutory guidance, 8.29–8.32 medical evidence, 8.17–8.18 non-visible physical injuries, 8.12 private hearings, 8.50–8.51 psychological impact of trafficking, and children, 8.13–8.15 generally, 8.2 non-visible physical injuries, 8.12 trauma-based problems, 8.3–8.11 young people, 8.13–8.15 post-traumatic stress disorder (PTSD), and complex, 8.7–8.11 generally, 8.6 introduction, 8.5 reasonable adjustments, 8.43–8.45 seating arrangements, 8.43 trauma-based mental health, and generally, 8.3–8.5 post-traumatic stress disorder, 8.6–8.11 working methods, 8.19–8.20 Standard Crime Contract see also Public funding generally, 13.10–13.14 introduction, 13.2

671

Index Standard of proof conclusive grounds decisions, and, 2.123– 2.124 reasonable grounds decision, and, 2.31–2.33 State obligations police station procedure, and, 6.87–6.93 Statutory guidance conclusive grounds decisions, and assessment of evidence, 2.125 asylum seekers, 2.157 multi-agency assurance panels, 2.149 determination of trafficking status, and, 2.3 first responders, and, 2.18 means of trafficking, and, 1.29–1.30 reasonable grounds decision, and child criminal exploitation, 2.54 county lines, 2.52–2.59 credibility, 2.74 expert evidence, 2.87 indicators of trafficking, 2.46–2.49 introduction, 2.30 mitigating factors, 2.80 request to reconsider, 2.122 standard of proof, 2.32 ‘recovery and reflection’ period, 2.111 Sufficient benefit test public funding, and advice on arrest, 13.9–13.10 generally, 13.93 immigration law matters, 13.144, 13.148 witnesses at risk of self-incrimination, 13.31–13.32 Suicide risk prohibition of torture or inhuman or degrading treatment, and, 10.49–10.52 Summary only offences magistrates’ court process, and, 7.61–7.62 T ‘Terminating’ rulings appeal by prosecutor, 9.99–9.103 Terrorism modus operandi of traffickers, and child soldiers, 15.77–15.78 domestic perspective, 15.72–15.76 foreign fighters or supporters, 15.77– 15.78 international perspective, 15.66–15.71 mitigation, 15.79–15.83 reasonable grounds decision, and, 2.62–2.63 Tortious claims compensation, and companies, against, 12.74 individual traffickers, against, 12.72– 12.73

Torture or inhuman or degrading treatment assessment of risk, 10.46 gang attacks, 10.48 introduction, 10.44–10.45 mental health deterioration, 10.49–10.52 pain and suffering, 10.47 sexual abuse, 10.48 suicide risk, 10.49–10.52 trauma-based claims, 10.49–10.52 Trafficking act of trafficking generally, 1.8 harbouring, 1.11 introduction, 1.6 receipt of persons, 1.13 recruitment, 1.9 transfer, 1.11 transportation, 1.10 child-sensitive approach credibility of account, 1.27 exploitation of children, 1.24–1.26 Council of Europe Convention of 2008, 1.4 criminal offences ancillary orders on conviction, 4.119– 4.134 child abduction, 4.87–4.92 common law, at, 4.74–4.86 immigration Acts, under, 4.93–4.100 introduction, 4.1–4.3 Modern Slavery Act 2015, under, 4.4–4.73 ‘use’ of victims, as to, 4.101–4.118 definition constituent elements, 1.6–1.23 ECAT Article 4, 1.5 introduction, 1.1 legal and policy framework, 1.2–1.4 determination of status conclusive grounds decision, 2.123–2.161 expert evidence, 2.85–2.122 first responders, 2.18–2.27 grounds of challenge to negative identification decisions, 2.162– 2.169 identification decision-making process, 2.28–2.84 introduction, 2.1–2.13 National Referral Mechanism, 2.14–2.17 elements act, 1.8–1.13 introduction, 1.6–1.7 means, 1.14–1.22 purpose, 1.23–1.27

672

Index Trafficking – contd EU Directive 2011/36, 1.4 legal and policy framework, 1.2–1.4 means abuse of position of vulnerability, 1.17–1.21 children, and, 1.14 coercion, 1.15 deception, 1.16 fraud, 1.16 generally, 1.14 giving or receiving of payments or benefits to achieve consent, 1.22 introduction, 1.6 statutory guidance, 1.29–1.30 modus operandi of traffickers control methods, 15.7–15.20 criminal exploitation, 15.52–15.65 culture and faith, 15.16–15.18 debt, 15.12 deception, 15.11 dependency, 15.14 emotional control, 15.15 exploitation typologies, 15.7–15.20 family involvement, 15.19–15.20 forced criminality, 15.84 introduction, 15.1–15.6 isolation, 15.13 known modern slavery cases, in, 15.21– 15.42 organised crime, 15.43–15.51 physical violence, 15.10 sexual violence, 15.10 terrorism, 15.66–15.83 purpose of exploitation child-sensitive approach, 1.24–1.27 credibility of account, 1.27 exploitation for criminal activities, 1.23 exploitation of children, 1.24–1.26 exploitation of prostitution of others, 1.23 forced labour or services, slavery or servitude, 1.23 generally, 1.23 introduction, 1.6 organ removal, 1.23 practices similar to slavery, 1.23 sexual exploitation, 1.23 slavery practices, 1.23 regional instruments, 1.4 smuggling, 1.31–1.33 victims of slavery, servitude and forced or compulsory labour, 1.28 Transcripts appeals, and conviction, against, 9.26

Transcripts – contd appeals, and – contd generally, 9.83 Transfer act of trafficking, and, 1.11 Translators police station procedure, and, 6.29–6.37 Transportation act of trafficking, and, 1.10 Trauma-based claims prohibition of torture or inhuman or degrading treatment, and, 10.49–10.52 psychological impact of trafficking, and generally, 8.3–8.5 post-traumatic stress disorder, 8.6–8.11 special measures, and, 8.59–8.62 Travel prohibition criminal offences, and, Trials Crown Court process, and acts or omissions, 7.76–7.77 general issues, 7.113–7.117 investigation of offences, and, 17.43–17.52 Two advocates public funding, and, 13.62–13.67 U UN Convention on the Rights of the Child (UNCRC) age disputes, and immigration, 3.13 introduction, 3.1–3.2 youth justice, 3.17 exploitation of children, and, 1.25 UN Guiding Principles for Business (UNGPs) modern slavery compliance statements, and, 19.1 UN Model Law against Trafficking (2009) non-criminalisation, and, 18.10–18.27 armed conflict, in, 18.11–18.16 generally, 18.10 international criminal law, in, 18.17– 18.19 nexus between trafficking and offending, 18.20–18.27 Unaccompanied children safeguarding, and, 11.26–11.31 UNHCR Recommended Principles and Guidelines non-criminalisation, and, 18.9 United Nations Declaration on the Rights of the Child age disputes, and, 3.1

673

Index Unlawful restriction of liberty child abduction generally, 4.87–4.91 sentencing, 4.92 false imprisonment elements, 4.80–4.81 introduction, 4.74 mens rea, 4.81 recklessness, and, 4.79 sentencing, 4.82–4.86 introduction, 4.73 kidnapping consent, and, 4.77 elements, 4.75 introduction, 4.74 ‘lawful excuse’, 4.78 recklessness, and, 4.79 sentencing, 4.82–4.86 ‘taking or carrying away’, 4.76 V Victims of slavery, servitude and forced or compulsory labour definition, 1.28 Victims of trafficking (VOTs) see also Identification of victims compensation CICS, 12.15–12.34 criminal proceedings, in, 12.6–12.57 employment tribunal claims, 12.75–12.78 Human Rights Act 1998 claims, 12.58– 12.67 introduction, 12.1–12.3 just satisfaction, 12.68–12.71 Miscarriage of Justice Application Scheme, 12.35–12.57 obligations, 12.4–12.5 public bodies, against, 12.58–12.71 tortious claims, 12.72–12.78 traffickers, against, 12.72–12.78 international protection European Convention on Human Rights, 10.43–10.81 expert evidence, 10.82–10.88 introduction, 10.1 Refugee Convention, 10.6–10.42 role of NRM identification decision, 10.2–10.5 meaning, 1.28 police station, at arrival, 6.4–6.28 interaction with detainee, 6.29–6.112 interviews where disclosure made, 6.145–6.166 post-interview actions, 6.113–6.144

Victims of trafficking (VOTs) – contd police station, at – contd introduction, 6.1–6.3 public funding administration, 13.1 advice on arrest, 13.2–13.23 appeals to Court of Appeal, 13.83–13.90 appeals where solicitor acted at trial, 13.78–13.82 applications for compensation, 13.126– 13.129 applications to CCRC, 13.106–13.107 applications to Court of Appeal out of time, 13.91–13.121 applications to re-open cases, 13.122– 13.125 defendant intermediaries, 13.55–13.61 disbursements, 13.52–13.54 first instance proceedings, 13.33–13.77 immigration law advice, 13.130–13.171 introduction, 13.1 pre-charge work, 13.24–13.32 Queen’s Counsel, 13.62–13.67 transfers of legal aid, 13.68–13.76 special measures best practice methods for legal practitioners, 8.16–8.32 criminal proceedings, in, 8.52–8.111 general principles, 8.1–8.15 Tribunal proceedings, in, 8.33–8.51 Voluntary care age disputes, and, 3.8 W Wales modern slavery compliance statements, and, 19.53 Witness anonymity criminal proceedings, in necessity, 8.99–8.101 serious gang related crime, 8.98 sexual offences, 8.96–8.97 Tribunal proceedings, in, 8.49 Worker exploitation criminal offences, and, 4.110–4.113 Y Youth justice age disputes, and assessment of age, 3.41–3.52 bail, 3.21–3.23 decision to prosecute, 3.19 first appearances, 3.20 importance and relevance, 3.16–3.26 mode of trial, 3.24–3.26

674