This is a guest post by Eleri Haf Davies. Eleri is a Public Law Caseworker at Duncan Lewis Solicitors.
On 10th June 2014, Home Secretary Theresa May presented the ‘historic’ Modern Slavery Bill to parliament. The primary aim of the Bill is to project a zero tolerance stance on human trafficking whilst the protection afforded to victims is made a secondary consideration.
The Home Secretary commented that,
“It will send the strongest possible signal to criminals that if you are involved in this disgusting trade you will be arrested, you will be prosecuted and you will be locked up.”
The Bill purports to strengthen the response of law enforcement and the courts by:
- Consolidating and simplifying existing modern slavery offences into one Act.
- Increasing the maximum sentence available for the most serious offenders from 14 years to life imprisonment, with those who have a previous conviction for a serious sexual or violent offence facing an automatic life sentence.
- Introducing Slavery and Trafficking Prevention Orders and Slavery and Trafficking Risk Orders to restrict the activity of individuals where they pose a risk of causing harm
- Strengthening law enforcement powers at sea and
- Ensuring that perpetrators convicted of slavery or trafficking face the toughest asset confiscation regime.
It is clear that the Bill serves to pacify mounting public interest in tackling ‘modern slavery’ and indeed it can be no bad thing that politicians and legislators alike acknowledge the gravity of this truly heinous crime. Whilst it is often the case that punitive measures are an effective deterrent, in the context of human trafficking however, the balance between prosecution and protection is a delicate one.
It is widely accepted among the human rights community that an excessively punitive approach can impinge on the rights of victims where they themselves are mistakenly criminalised.
The Bill proposes to assert the rights of victims by:
- Giving the courts new powers to order perpetrators of slavery and trafficking to pay Reparation Orders to their victims;
- Extending special measures so that all victims of modern slavery can be supported through the criminal justice process. This covers screening of witnesses, giving evidence by live link, in private or video recorded;
- Providing statutory guidance on victim identification and victim services;
- Creating a statutory duty for public bodies including the police, local authorities and immigration personnel to notify the National Crime Agency about potential victims of modern slavery; and
- Creating a statutory defence for victims of modern slavery so that those who are compelled to commit an offence are not treated as criminals by the criminal justice system.
As Human Rights Watch note, the Bill fails to address the gap in protection afforded to migrant domestic workers;
“In April 2014, a special parliamentary committee looking into the new bill recommended that the government restore the right for [migrant domestic] workers to change employer, having found that the tied visa “institutionalises their abuse.” But the government’s response today makes it clear that it is more concerned about the politics of migration than protecting victims.”
With regard to the proposal to create a statutory defence for victims, it should be noted that there are existing legislative and procedural mechanisms in place, including;
The EU Directive of the European Parliament (2011/36/EU) states at Article 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”.
Additionally, CPS Guidance advises prosecutors that when reviewing a case in which there are suspicions that the suspect might be a victim of trafficking they should be pro-active in causing enquiries to be made and obtain further information about the circumstances in which the suspect was apprehended.
The Guidance draws particular attention to cases where victims have been trafficked here specifically to commit criminal offences, such as:
- Causing or inciting/controlling prostitution for gain: Sexual Offences Act 2003, ss 52 and 53;
- Keeping a brothel: Sexual Offences Act 1956, ss 33 or 33A;
- Theft (in organised ‘pick pocketing’ gangs) under Theft Act 1968, s1;
- Cultivation of cannabis plants, under the Misuse of Drugs Act 1971, s6
The importance of CPS compliance with the Guidelines was emphasised in R v. O  EWCA Crim 2835 and again in R v. LM  EWCA Crim 2327.
However as senior policy advisor Pam Bowen asserts,
“Some trafficked victim’s experiences are likely to be outside the knowledge and experience of prosecutors. For example young female victims may be subject to cultural and religious practices such as witchcraft and juju rituals inherent in their culture which binds them to their traffickers through fear of repercussions.
Other trafficked victims may be held captive, physically and sexually assaulted and violated, or they may be less abused physically but are psychologically coerced and are dependent on those who are victimising them”.
Additionally, Bowen submits that even where a defence for duress is not strictly applicable, prosecutors should take the public interest into consideration before issuing a conviction.
Whilst there are well-established legislative and procedural safeguards in place, their implementation is varied and often ineffectual due to the lack of guidance on the complex issues affecting trafficking victims. It is encouraging to note that the Bill proposes statutory guidance on victim identification, although we are given no indication as to the extent and nature of the guidance.
A renowned and highly successful approach to prevention of trafficking is the ‘Nordic model’ as adopted by Sweden, Norway and Iceland. It briefly comprises a set of laws and policies that penalises the demand for commercial sex while decriminalising individuals in prostitution and providing them with support services, including help for those who wish to exit prostitution. The Nordic model has two main goals: to curb the demand for commercial sex that fuels sex trafficking, and promote equality between men and women.
As stated by Equality Now;
“Sex trafficking does not just exist because its victims are vulnerable – it exists because there is a demand for commercial sex that traffickers can exploit and profit from. Thus, addressing the demand for commercial sex is a key component of any plan to prevent sex trafficking and sexual exploitation.”
The International Labour Organisation also comment;
“The Nordic model challenges this construct and tries to redress these inequalities by promoting women’s and girls’ right to safety, health and non-discrimination, and by challenging men’s perceived – but non-existent – “right” to buy women’s bodies for sex. Unsurprisingly, 3 of the top 4 countries with the highest level of gender equality have adopted the Nordic model”.
In early 2014, the parliaments of the European Union and the Council of Europe both adopted non-binding resolutions recommending that member states consider the Nordic Model. Human Rights Organisations are calling for legislators to adopt this progressive approach, which recognises the realities of trafficking and holds the rights and welfare of victims at its forefront.
The success of the Bill will undoubtedly turn on its implementation however, where even greater powers are afforded to law enforcement and with prosecution at the heart of the proposal, it is difficult to see how, in the absence of appropriate training, the rights of victims will be upheld.