Guest post by Nogah Ofer. Nogah completed an MA in Sept 2018 at University College London, Political Science Department, where her Masters dissertation explored the prosecution of victims of trafficking in England. She is a solicitor at the Centre for Women’s Justice.

Does the UK adhere to its international commitment not to penalise victims of trafficking? Three years after its introduction, the UK’s Modern Slavery Act 2015 is currently undergoing a Government-sponsored Independent Review which addresses the operation of Section 45 of the Act. This post considers whether UK law is providing protections for this largely hidden and voiceless population, many of them children.

Legal protections

Section 45 is intended to implement the ‘non-punishment principle’: a legal norm that individuals should not bear criminal responsibility for acts they were forced to commit whilst under the control of others. It represents the domestic incorporation of Article 26 of the Council of Europe Convention on Action Against Trafficking in Human Beings, adopted by the UK’s Crown Prosecution Service (CPS) in 2007, when the UK signed the Convention. Article 8 of EU Directive 2011/36 also prohibits not only the conviction, but also the bringing of charges against trafficking victims. Under CPS guidelines an individual should not be charged where they clearly benefit from a statutory defence.

Implementation

This raft of measures is meant to end the double victimisation of those who suffer first at the hands of traffickers and then at the hands of the state. So why is it that, eleven years after the UK first applied an international legal standard, and three years after its introduction into UK law, victims of trafficking are still found within England’s prisons and Young Offender Institutions and wrongful convictions are regularly identified by NGOs and lawyers?

The prevalence of prosecutions in breach of the non-punishment principle in the UK has never been systematically researched. Even the extent of trafficking for forced criminal activities is not reported within official statistics. The UK’s National Referral Mechanism (NRM) data subsumes this category within its figures for ‘labour exploitation’.

However, several sources provide snapshots, each suggesting dozens of such prosecutions:

  • Southwell, a leading specialist criminal defence solicitor representing prosecuted victims of trafficking, has a caseload of approximately 50 meritorious cases at any one time, 80% of them appeals against conviction;
  • Burland’s survey of press reports over approximately two years following the introduction of the 2015 Act identified 27 court cases in which 38 Vietnamese nationals pleaded guilty and were imprisoned for cannabis cultivation. In all of these cases, there were strong trafficking indicators, or lawyers, judges or police referred to trafficking or enslavement;
  • Two charities providing services to victims of trafficking interviewed as part of my Masters research (Hope For Justice and another which requested anonymity) report that prosecutions arise for around 10-20% of their service users. Between them, they have worked with well over 200 victims of trafficking in the last two years;
  • Hales & Gelsthorpe, in a detailed study into criminalisation of migrant women, found that out of 103 incarcerated women who faced criminal charges that could relate to modern slavery or immigration offences, 43 had been trafficked (in 2010-11, post-Convention but pre-Modern Slavery Act).

It is widely assumed amongst human rights scholars, such as Simmons and Goodman & Jinks, that democracies, associated as they are with the rule of law, are likely to respect human rights norms. The indications are that the UK is sincere in its drive to support victims of modern slavery and that Section 45 is not the result of mere lip service. This statutory defence imposes greater obligations on the State than either the Convention or Directive require. Numerous Government initiatives have sought to grapple with this emerging social ill, including the 2007 UK Action Plan on Tackling Human Trafficking, the 2014 Modern Slavery Strategy, various official strategic assessments and annual reports. So why, in this ‘most-likely case’ for implementation, does international law not filter down to many victims on the ground?

How do protections operate in practice?

Examining the process through which victims of trafficking pass, from arrest to trial, reveals that at almost every stage there have not been sufficient proactive steps taken to elicit change amongst professionals, so that business as usual often prevails on the frontline. There is widespread ignorance of Section 45 and the issues surrounding it amongst police officers, criminal defence lawyers, prosecutors and judges.

A key finding of a police Inspectorate report on modern slavery in late 2017 is poor awareness by police officers of trafficking indicators across all victim types and a lack of knowledge of the Section 45 defence. Police guidance on use of the defence is confusing and ineffective. The College of Policing Authorised Professional Practice fails to provide a clear link between offences for which victims of trafficking are commonly arrested (criminal exploitation indicators) and the statutory defence. Police training for rank and file officers largely consists of a 40-minute e-learning module on trafficking, within which just two screens relate to Section 45. This module is not compulsory in many forces and where it is, there is sometimes no monitoring of whether it is actually completed and whether the contents have been absorbed.

Specialist lawyers and NGOs working with trafficking victims interviewed for my research report that many criminal defence solicitors do not identify trafficking indicators and are unaware of the Section 45 defence, even when full accounts of trafficking are given by their clients. When a trafficking defence is spotted, legal aid lawyers operating on low fixed fees per case frequently fail to make representations to the CPS that the prosecution should be discontinued before trial. CPS lawyers themselves have ‘limited knowledge’ of Section 45, as noted by the CPS Inspectorate.

Frequently, even when trafficking concerns have been identified by the police, victims of trafficking are remanded in custody as a flight risk pending further enquiries, although there would otherwise be insufficient evidence to charge (so-called ‘threshold charging’). Once charged, their cases are not reviewed by CPS lawyers until the Government’s NRM mechanism makes a conclusive decision on victim status, even if solicitors and charities repeatedly submit evidence of trafficking. In the meantime, their clients remain behind bars, usually for many months. The average time for a non-EU citizen’s conclusive decision is almost six months according to the National Audit Office. Practitioners report that the time spent on remand can often be as long as would have been served as a custodial sentence, in cases where the trafficking victim is never convicted. In some cases that are not dropped pre-trial, where both prosecution and defence lawyers proceed without raising Section 45, judges are also oblivious, and trafficking is treated as mitigation, rather than a defence, according to my interviewees and Burland.

If the Independent Review fails to address the shortcomings in implementation of Section 45, this protection measure risks suffering the same fate as the statutory defence introduced in 1999 to prevent prosecutions of refugees for immigration-related offences. Well over a decade later, and more than 50 years after the UK ratified the 1951 Refugee Convention, wrongful convictions of refugees remained prevalent. In 2012 the Criminal Cases Review Commission (CCRC), an arms-length body charged with investigating potential miscarriages of justice, raised concerns of ‘widespread’ wrongful convictions, after receiving numerous similar applications. The Chair noted that ‘many hundreds’ may remain unidentified. Sato, Hoyle and Speechley describe how the CCRC took steps to tackle this as a systemic problem, contacting the CPS, immigration service, legal professional bodies and the legal press (Criminal Law Review 2017(2)). The problem may persist, as in 2018 the CCRC continued to refer cases to the Court of Appeal. The phenomenon of refugee prosecution has attracted the attention of a number of academics, notably Hoyle, Aliverti and Holiday writing in these pages.

The experiences of refugees and victims of trafficking suggest that, regardless of the existence of good intentions at a policy level, a change in the law may not be implemented in practice if positive intervention is not prioritised and funded. Without research and campaign work by academics and practitioners, the continuing unjust prosecution of utterly powerless people is unlikely to find its way onto the political agenda.

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How to cite this blog post (Harvard style) 

Ofer, N. (2019) Prosecuting Victims of Trafficking in the UK: The Difference between Law and Practice. Available at: https://www.law.ox.ac.uk/research-subject-groups/centre-criminology/centreborder-criminologies/blog/2019/02/prosecuting (Accessed [date])