23 March 2010
All practitioners who may be involved in criminal cases where issues of human trafficking arises. If you are employed by the CPS you should also follow the CPS guidance on this issue.
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The number of adults and children illegally trafficked to the UK has risen significantly in recent years. Vulnerable individuals who have been trafficked to the UK may encounter the criminal justice system as a direct result of criminal activity either committed under duress or in an attempt to flee those responsible for trafficking or exploiting them.
This practice note is intended to outline the main provisions of the relevant conventions, to inform practitioners of specific Crown Prosecution Service (CPS) guidance and to highlight the duty to enquire and, if necessary, investigate further, any claim that an individual is a credible trafficking victim.
In December 2008 the UK Government ratified the Council of Europe Convention on Action against Trafficking in Human Beings and which was implemented on 1 April 2009 .
The Convention has three key aims:
For the purposes of this convention, Article 4 defines a victim of trafficking:
Article 10 of the Convention requires the signatory states to identify and protect victims of trafficking (VoTs) and Articles 12-14 state that once identified, victims must be afforded time, assistance and access to services.
These Articles are very important for any professional coming into contact with victims of trafficking who may not have been identified as such and who may have been arrested and charged for criminal offences as a direct consequence of their trafficking situation.
The National Referral Mechanism has been established to identify VoTs and ensure they receive the necessary protection and support. The procedure envisages that VoTs will be identified or come to the attention of 'first responders' who if they think that there are indicators of trafficking and the individual consents, can refer to the competent authority (CA) who will carry out the identification process.
For more details see section 4.2 Making a formal identification
Under the scheme, the UK Human Trafficking Centre and the UK Border Agency (UKBA) are designated as the 'competent authority' (CA) if there are no immigration issues.
Certain government agencies (the police, social services, UKBA) and certain non-governmental organisations (NGOs), for example The Poppy Project and Kalayaan are designated as first responders.
The CA has five days from the receipt of the referral to reach a decision on whether there are reasonable grounds to believe that the individual is a 'potential' victim of trafficking - a PVoT.
The UKBA Asylum Process Guidance Policy (APG) on victims of trafficking states:
'the "reasonable grounds" test has a low threshold and is lower than the threshold required for prima facie evidence (which is legally sufficient evidence, that if contested, would establish a fact or raise a presumption of a fact). The test that should be applied is whether the statement 'I suspect but cannot prove' would be true and whether a reasonable person would be of the opinion that, having regard to the information in the mind of the decision maker, there were reasonable grounds to suspect the individual concerned had been trafficked'.
If after five days the CA decides there are reasonable grounds it will trigger a 45 day reflection and recovery period under article 13 of the Convention.
During this time, the CA should continue its investigation and complete enquiries into whether there are conclusive grounds to believe that the individual is a victim of trafficking. This is determined on a balance of probabilities.
The purpose of the recovery and reflection period is to enable the victim to access the support and assistance necessary to escape and recover from the trafficking situation and also to take an informed decision on whether to cooperate with the authorities.
In 2007, the CPS issued policy guidance to prosecutors on the prosecution of defendants charged with criminal offences who might be trafficked victims. This guidance supports Article 26 of the Convention (to provide for the possibility of not imposing penalties on victims for their involvement in unlawful activities, to the extent they have been compelled to do so).
The guidance advises prosecutors on the steps to be taken when it comes to their notice that the suspect is a credible trafficked victim. This guidance was the subject of comment in the judgment by the Court of Appeal in R v O [2008] EWCA Crim 2835. The Court emphasised the duty of both Prosecutors and Defence lawyers? to make proper enquiries ? in criminal prosecutions involving individuals who may be victims of trafficking,
In that case a 17 year old defendant was sentenced by the Crown Court to a period of imprisonment without reference to the relevant protocols by either the prosecution or defence, and without reasonable enquiries having been made as to the defendant's trafficking history.
For details of the case see 5.2 Legal and other requirements .
If you are handling prosecution or defence work involving possible victims of trafficking you should have reference to the protocols when reviewing matters.
The Code contains two protocols which provide guidance on the treatment of defendants who might be trafficked victims:
For a full copy of the Crown Prosecution Service guidance see 5.2 Legal and other requirements
If you are representing a defendant charged with immigration or other criminal offences that may be a victim of trafficking, it is incumbent on you to make proper enquiries on this issue.
The results of these enquiries, if necessary, should be shared with the CPS and the courts, subject to the rules of client confidentiality and legal professional privilege and bearing in mind that potential difficulties may arise if it is not accepted.
Defendants who are victims of trafficking may not present on initial contact as victims, they may be angry, defensive and hostile or extremely withdrawn. Often, they will not identify their experiences as trafficking. Therefore it is important for you to be aware of some identifying factors.
The offences with which an individual is charged may provide the first indication that you may be dealing with a victim of human trafficking e.g document offences, cannabis cultivation and dishonesty offences.
The following is a non-exhaustive list of other factors which may also assist in identifying possible victims:
It is important to remember that a trafficked victim may be reluctant to reveal their trafficking history until trust has been established. This may take a number of meetings and require a sensitive approach.
Guidance on the identification of trafficked persons can be found in section 5.3 Further products and services
Once you think that you may be dealing with someone who has been trafficked, you may want to consider a number of options.
If you and your client think that formal identification as a victim of trafficking is appropriate, you should arrange for your client to be referred under the National Referral Mechanism to the competent authority. As solicitors are not designated as first responders, you will have to refer your client to someone who is; this could be the police or social services.
Formal identification will help inform decisions to be made by prosecutors in accordance with Crown Prosecution Service (CPS) guidance and enable your client to access the support and protection provisions afforded by the Convention.
You may want to consider that even if the case falls outside the remit of the CPS guidance, the authorities have an obligation under Article 26 of the Convention to not impose penalties on victims for their involvement in unlawful activities, to the extent they have been compelled to do so.
If a formal identification cannot be made then you can still use evidence gathered e.g reports from NGOs, medical reports, to use in any defence of duress or for mitigation purposes. Attention should be paid at all times to the protocols laid out in 3 Crown Prosecution Service guidance in trafficking cases .
Whether or not your client goes through the formal identification procedures, if you believe that your client (or lay client) has been trafficked you should ensure that they obtain legal advice on their immigration position (if they are subject to immigration control) as well as advising them in relation to any criminal matters.
Importantly, you should note that specific defences are available to immigration offences for victims of trafficking under s. 31 of the Immigration and Asylum Act 1999. For more details see section 5.1 Legal requirements
Further information and assistance in relation to general issues arsing from cases of human trafficking can also be obtained from the UK Human Trafficking centre. Detailed guidance on the interviewing of trafficked women is available from the World Health Organisation. For more details, see section 5.3 Further products and services
Child victims of trafficking require special protective measures. Legal professionals, whether prosecuting or defending cases play an important role in ensuring that the rights of child victims are safeguarded, subject to always having regard to the rules of client confidentiality and legal professional privilege.
Legal professionals should be especially alert to the possibility that children may be at risk of harm from those responsible for their trafficking.
The Solicitors' Code of Conduct provides for exceptions to the rule of confidentiality 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.
When and if this situation arises you 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 confidentiality.
See section 5.1 Professional conduct for details of rule 4.01 Confidentiality.
Importantly, you may also encounter age dispute cases because young people often have no identification or travel documents or have been told to lie about their age to evade detection/detention by the authorities.
The United Nations Convention on the Rights of the Child states that in cases where there is a dispute about the age of a young person, the benefit of the doubt should be given to the young person.
Accordingly, in any case where there is concern that someone identified may be under 18, until there is information to the contrary; they should be treated as a child
The following sections of the Solicitors' Code of Conduct 2007 are relevant to this issue:
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Must - a specific requirement in the Solicitor's Code of Conduct or legislation. You must comply, unless there specific exemptions or defences provided for in the code of conduct or relevant legislation.
Should - good practice for most situations in the Law Society's view. If you do not follow this, you must be able to justify to oversight bodies why this is appropriate, either for your practice, or in the particular retainer.
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The Law Society acknowledges the contribution of the following in the production of this practice note:
Changes in this practice note from the previous published version: