219 Clause 45 provides for a defence for slavery or trafficking victims who have been compelled to commit an offence as a direct consequence of their trafficking or slavery situation. This is intended to provide further encouragement to victims to come forward and give evidence without the fear of being convicted of offences that they were compelled to commit. The defence will not apply in the case of certain serious offences. Currently, in cases where a slavery or trafficking victim may have committed an offence as a direct consequence of their trafficking or slavery situation, the Crown Prosecution Service apply specific guidance as to whether or not to bring a prosecution.
220 Subsection (1) provides that a person is not guilty of an offence if they commit an offence because they are compelled to do so; they were compelled as a result of slavery or relevant exploitation; and a reasonable person with relevant characteristics in the same position as the person would have no realistic alternative to committing the offence.
221 Subsection (2) provides that the relevant characteristics of the victim claiming the defence that will be considered for the purposes of the reasonable person test in subsection (1) are age, sex, and any mental or physical illness.
222 Subsection (3) provides that a person may be compelled to commit an offence by another person or by the person’s circumstances.
223 Subsection (4) explains that compulsion is only attributable to slavery or relevant exploitation if it is part of conduct which constitutes an offence under section 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 relevant exploitation.
224 Subsection (5) sets out that ‘relevant exploitation’ is exploitation which is attributable to the person being or having been a victim of trafficking.
225 Subsection (6) provides that any reference to an act also includes an omission.
226 Subsection (7) introduces Schedule 3, which sets out those offences to which the defence will not apply. The defence will not apply to certain serious offences, mainly serious sexual or violent offences, to avoid creating a legal loophole for serious criminals to escape justice. Where the defence does not apply because the offence is too serious, the Crown Prosecution Service will still be able to decide not to prosecute if it would not be in the public interest to do so.
227 Subsection (8) enables the Secretary of State to amend Schedule 3 through regulations.
228 Clause 46 extends certain legislative provisions relating to special measures to victims of the clause 1 and 2 offences. These include provisions whereby witnesses in certain cases are automatically treated as eligible for special measures (unless they tell the court they do not want to be eligible). Special measures apply to witnesses who are giving evidence in court and include screening the witness from the accused, giving evidence by live link, giving evidence in private, removal of wigs and gowns, video recorded evidence in chief and video recorded cross-examination or re-examination. Trafficking victims are currently already covered by the relevant provisions, so the effect in practice is to extend coverage to slavery victims too, so that (for example) all victims of slavery and trafficking are automatically eligible for special measures.
229 Subsections (1) and (3) provide the Secretary of State with a duty to make such arrangements as she considers reasonable so that specialist child trafficking advocates are available to support and represent children who there is reason to believe may be victims of trafficking. Such arrangements can include paying for such advocates. This duty is subject to the commencement provision set out in clause 57, which provides that the provisions cannot be commenced until 9 months have passed from Royal Assent and resolutions to this effect have been passed by both Houses of Parliament. Child trafficking advocates are currently being trialled. The commencement provision allows the trials to finish and be evaluated, and the Secretary of State to report to Parliament (as required by subsection ( 6 ) ), before Parliament takes a decision on whether the child trafficking advocates provision should be commenced.
230 Subsection (2) requires the Secretary of State to have regard to the principle that such advocates should as far as practicable be wholly independent of those professionals responsible for making decisions about the child.
231 Subsection (4) enables the Secretary of State to make regulations about child trafficking advocates, including the circumstances and conditions under which a person may act as an advocate, arrangements for the approval of child trafficking advocates, their functions and any requirements that may be placed on public authorities to co-operate with and provide information to these advocates, to ensure the cooperation of the various agencies the advocate will need to work with when supporting the child.
232 Subsection (5) places a duty on any person exercising the functions of a child trafficking advocate to act in the child’s best interests.
233 Subsection (6) provides that the Secretary of State is required to lay a report before Parliament on the steps that the Secretary of State proposes to take in relation to advocates for victims of child trafficking under these powers. The Secretary of State is required to report back to Parliament within 9 months after the day on which this Act is passed.
234 Clause 48 requires guidance to be issued to public authorities and other persons as considered appropriate by the Secretary of State in relation to identifying and supporting victims. The guidance will cover the sorts of things which indicate that a person may be a victim of slavery or human trafficking; arrangements for the provision of assistance and support to persons who there is reason to believe may be victims of slavery or human trafficking and any arrangements for determining whether a person is to be treated as a victim of slavery or human trafficking. The purpose of the guidance is to further support effective identification of potential victims of slavery and human trafficking and to set out the assistance and support on offer to all slavery and trafficking victims, taking into account international requirements set out in the European Convention on Action against Trafficking and the EU Directive on Trafficking of Human Beings.
235 The purpose of this clause is to reflect in this Bill the presumption at Article 13(2) of the EU Directive on preventing and combating trafficking in human beings and protecting its victims that where the age of a person subject to trafficking in human beings is uncertain and there are reasons to believe that the person is a child, that person is presumed to be a child in order to receive immediate access to assistance, support and protection in accordance with Articles 14 and 15. The Council of Europe Convention on Action against Trafficking in Human Beings contains a similar provision at Article 10(3).
236 Subsection (1)(a) and (b) set out who the clause applies to. Subsection (2) sets out the terms under which the presumption may be applied and allows for the presumption to be removed when the person’s age has been determined by a lawfully compliant age assessment or other determination.
237 Subsection (3) defines " relevant arrangements " in terms of the assistance and support provided by public authorities as set out in statutory guidance under clause 4 8 .
238 Subsection (4) defines "local authority".
239 Subsection (1) places a duty on public authorities specified in regulations made by the Secretary of State to notify the NCA where there is reason to believe that a person may be a victim of slavery or human trafficking. There is a range of guidance already available to specified public authorities and wider front-line workers who may encounter potential victims of trafficking. In addition, clause 48(1)(a) places a duty on the Secretary of State to issue guidance to public authorities and other persons who the Secretary of State considers appropriate as to the sorts of things that indicate that a person may be a victim of human trafficking or slavery.
240 It is envisaged that the specified public authorities will include police forces and local authorities. It is not intended that the specified public authorities should include non-governmental voluntary organisations. This duty will be different from the existing non-statutory National Referral Mechanism ("NRM").
241 The NRM is a system for children and consenting adults to have their cases assessed by two Competent Authorities within the UK (within the NCA and the Home Office). Individuals can also gain access to support and accommodation once they have received a positive "reasonable grounds" assessment from a Competent Authority. Further advice regarding the NRM process is available on the NCA website. Currently this is the key source of data on trafficking victims in the UK, but many cases are not reported. In 2012, 1,186 individuals were referred to the NRM, but a further 1,477 were identified through the UK Human Trafficking Centre’s 2012 Strategic Assessment. This new duty to report will mean that adult potential victims of trafficking who do not wish to be referred, assessed and supported through the NRM process will still be referred through for data purposes by specified public authorities, and that additional information on victims of other forms of modern slavery will also be captured.
242 Subsection (2) enables the Secretary of State by regulations to prescribe the information that must be included in a notification under subsection (1). It is envisaged that, as a general rule, such information will include the nationality of the victim, type of exploitation experienced and the location and dates it took place.
243 Subsection (3) provides that identifying information about an adult potential victim of slavery or trafficking should only be included in a notification where the individual concerned has given their consent. In the case of child potential victims, this information can be provided without their consent.
244 Subsection (4) provides that regulations made under this section cannot require the disclosure of information in contravention of the Data Protection Act 1998.
245 Subsection (5) notes that the public authorities to whom this duty applies will be specified in regulations made by the Secretary of State.