Defending victims of human trafficking
Philippa Southwell outlines some common indicators to identify victims of forced criminality and human trafficking, and explains what to do to help such individuals when representing them.
As a criminal defence solicitor, I regularly come across defendants who are victims of human trafficking for the purpose of forced criminal exploitation. There is an inherent dichotomy within the criminal justice system as to how these individuals should be treated and perceived in the eyes of the law - as a victim or a criminal?
I have come across an array of criminal offences that are commonly linked to forced criminality and human trafficking. Although forced criminality can manifest itself in all types of criminal activity, the most common offences include cannabis cultivation offences, pick pocketing, begging, possessing fraudulent ID documents, benefit fraud, driving offences, ATM fraud, drug importation, the sale of counterfeit goods, illegal charity bag collections and thefts.
What to look for - trafficking indicators
Firstly the circumstances of the arrest may give an indication to some form of exploitation. The classic example is a Vietnamese cannabis cultivation case, where there is a sophisticated drug cultivation operation, the electricity is tapped, there is a multi-million pound drug yield etc.
But the police and CPS seem content on prosecuting the Vietnamese minor, who speaks no English, has no ID documents, is malnourished and who is locked in the premises, forced to tend the cannabis plants. They fail to take into consideration that this is a serious organised crime and trafficking operation, where the individual they are prosecuting is, in fact, a victim of a serious crime.
Other common trafficking indicators that the defendant may display are: mistrust of the authorities; non-disclosures about their exploitation; be under perception of debt bondage to their traffickers; having their movement controlled by others; being subject to threats and violence; having injuries; being forced to work under certain conditions; being inconsistent about their age; coming from a place that is known to be a source of human trafficking; not having travel documents; and their trafficker withholding their documents and controlling their movements.
What to do
You should refer your client into the National Referral Mechanism to receive formal victim identification by the Competent Authority (CA), who will carry out the identification process.
The National Referral Mechanism has been established to identify victims of trafficking and ensure they receive the necessary protection and support. Certain government agencies, including the police, social services, and the UK Border Agency, and certain non-governmental organisations (NGOs), for example Migrant Help, the Salvation Army, the Medaille Trust, Kalayaan, and Barnardo's are designated as first responders.
Once a referral has been made, trained experts in the CA will assess the case and make a decision on whether an individual is a victim of trafficking. There are two steps in this process: stage one - "reasonable grounds" and stage two - "conclusive decision".
Legal tactics if your client has been identified as a victim of trafficking
Make representations to the CPS, raising the trafficking and public interest issues. Remind them of their detailed CPS Guidance on Human Trafficking, Smuggling and Slavery, the Council of Europe (CoE) trafficking convention, the EU Directive and its non-punishment provision and the duty to investigate.
If the prosecution continues, attempt to mount an abuse of processes argument relying on R v L & Ors  EWCA Crim 991;  2 Cr App R 23 and the CoE trafficking convention. For more details see Further notes, below.
If the prosecution continues, it may be possible to raise a statutory defence of slavery under section 45 of the Modern Slavery Act 2015. The defence is made up of four parts. The victim will need to show that they carried out the act which constituted the offence; they were compelled to commit the offence; the compulsion was attributed to their exploitation or slavery; and that a reasonable person in the same circumstances would have acted in the same way.
In the case of a child under the age of 18 years the defence has one less limb and does not include the separate requirement to show compulsion. It should be noted that schedule 4 of the Act contains a list of over 100 excluded criminal offences, where the statutory defence does not apply.
Tips on representing victims of trafficking
It is important that you ask the right questions when taking instructions from your client in order to draw out information.
Ask questions with sensitivity; many victims of trafficking will have suffered extensive trauma, including psychological and sexual abuse. Many may have come from different social and cultural backgrounds, where juju rituals and debt bondage issues will be prevalent and real.
Probe the background of their journey to, and within, the UK. Some questions may seem totally unrelated to the offence and their alleged criminality but are important, for example, where did they sleep, where did they go to the toilet, what and how often did they eat?
Be proactive and instruct independent trafficking experts if you are not happy with the Competent Authorities' trafficking finding and also to assist the court in understanding the complex issues surrounding trafficking.
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.
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 the identifying factors.
Be mindful when taking instructions of the risk of re-traumatisation, as many will suffer from post traumatic stress disorder and other physical and psychological issues as a result of their exploitation.
Be aware that inconsistencies given as to their account, age, names etc are also a trafficking indicator and do not necessarily mean that your client is not credible. Often there are inconsistencies as a result of the trauma they have experienced, but it is also common that they have been instructed by their trafficker to give a certain account if apprehended.
Overview of the human trafficking legal framework
In recent years and in the wake of landmark case law such as R v L & Ors  EWCA Crim 991;  2 Cr App R 23, which is the leading authority on the non-punishment of victims of trafficking, the Crown Prosecution Service (CPS) issued new guidance on prosecuting human trafficking victims involved in forced criminality.
Since 2008, the UK has had mechanisms of legal protection to safeguard victims of human trafficking who have been forced into criminality and to protect them from prosecution. The Council of Europe adopted the Convention on Action against Trafficking in Human Beings on 3 May 2005 and was ratified by the UK on 17 December 2008.
Article 26 of the Convention includes a non-punishment provision, whereby member states are entitled not to prosecute victims of human trafficking for their involvement in criminal activities which are committed as a direct consequence of their trafficking.
On 5 April 2011, the European Commission adopted a Directive on trafficking in human beings (EU Directive 2011/36/EU). The UK opted into this directive in July 2011 and article 8 sets out the non-punishment provisions in the same terms as article 26. The purpose behind the non-punishment provisions is 'to avoid further victimisation and to encourage them to act as witnesses in criminal proceedings against their perpetrators'.
The issues of criminal culpability of victims of modern slavery who have been compelled to commit criminal acts has now been acknowledged in the new Modern Slavery Act 2015; section 45 creates a statutory defence for slavery or trafficking for victims who commit certain criminal offences.