Draft Modern Slavery Bill - Draft Modern Slavery Bill Joint Committee

Draft Modern Slavery Bill - Draft Modern Slavery Bill Joint Committee Contents

3 Victims

Background

59. Modern slavery is a heinous abuse of human rights and the UK has a moral and legal obligation to offer assistance and support. Victim protection is also fundamental to increasing the proportion of successful prosecutions for modern slavery offences. A number of respected individuals and organisations made this point very powerfully to the Modern Slavery Bill Evidence Review. Maria Grazia Giammarinaro, the Organization for Security and Co-operation in Europe's (OSCE) Special Representative and Co-ordinator for Combating Trafficking in Human Beings, told the Review that:

Luis CdeBaca, United States Ambassador-at-Large to Combat Trafficking in Persons, was clear on the US experience:

We also agree with Anti-slavery International that "victims that are adequately safeguarded and supported are more likely to be willing to participate in criminal proceedings and better testify in court".[69] Yet the draft Bill does not address either the identification or protection of victims.

Case study: "Mary was born and grew up in Nigeria. After her mother's death, Mary was forced to move to the country's capital in order to make some money. It was there that she met Tony. He told her he could offer her a good job in England. Tony organised her plane ticket, and they both left for the UK. Hours after her arrival, Mary was taken to what appeared to be a house. It was actually a brothel. She was then forced, under threat, to have sex with men who paid money to Tony. Before Mary even realised she had been deceived, she was trapped. For many months she was locked in her room and forced to have sex with as many men as Tony dictated—often up to ten or 12 men a day—and she was never allowed to say 'no'. After some time Mary fell pregnant. When Tony found out he was furious; he attacked Mary and tried to abort her baby by force. These attempts were not successful. One evening after this ordeal, Tony and his friends had a party at the brothel. Mary took her chance to escape and, with the men too drunk to notice, fled the property".[70]

Non-criminalisation of victims of modern slavery

60. Avoiding abuse of victims by the State through prosecutions which are incompatible with their status as victims is key to improving victim protection.

61. Race in Europe research found at least 142 cases between January 2011 and December 2013 of Vietnamese nationals prosecuted for cannabis cultivation where there were strong indicators of trafficking.[71] This is a severe indictment of the efficacy of previous CPS guidance. As the AIRE Centre told us,[72] and as explained by Peter Willis, by the time that the Court of Appeal heard the four appeals in R v L[73] in summer 2013:

R v. O

Case study: "In the early hours of the morning of 5 March 2012 police officers attended a house in Mansfield. They had been alerted by a number of local residents who had seen the defendant (HVN) being removed from the house by a group of men. His hands were bound. The police found him nearby, barefoot and apparently frightened. Inside the house a large quantity of cannabis was being grown, as a professional operation. The appellant was arrested. He admitted that he had been in the premises and was looking after the crop. He knew it was cannabis, but initially did not know it was illegal. He worked that out later. In the meantime the finger prints taken from the house in Derby were matched with the finger prints taken from the appellant when he was arrested. The police immediately referred HVN to the social services department of Nottinghamshire County Council. An age assessment interview was conducted. [...] The appellant had provided a date of birth which was accepted by social workers, and it was concluded that he was then just under 17 years old. They also recorded that he "described being locked in a cannabis cultivation house by gang members that recruited him in London. He was driven to Nottinghamshire - an unknown location to him at the time. He was unable to leave the property once he was locked in. [...] On 8 May 2012 at Nottingham Crown Court HVN pleaded guilty to two counts of producing a controlled drug of class B, contrary to s.4(2)(a) of the Misuse of Drugs Act 1971. On 21 May he was sentenced to 8 months detention and training concurrent on each count.[76]

62. Our evidence revealed mixed opinions on whether there should be a statutory defence of being a victim of modern slavery, with those who did not support a statutory solution, or who favoured the prosecutorial discretion status quo, raising the following arguments:

a) That the scope of the defence would be difficult to define;[77]

b) That the temporal link between the commission of the offence and the enslavement of the victim would be difficult to define and use in practice;[78]

c) That there is a potential for unintended consequences, for example, an increase in the use of victims of trafficking for the commission of serious offences;[79]

d) That the defence could be open to abuse by perpetrators of modern slavery who are inventive as to the defences they adopt and the arguments they advance in attempting to avoid or frustrate prosecution;[80]

e) That persons who are or have been trafficked can and do commit serious crimes. They may kill their exploiters. More commonly they may traffick or exploit others;[81]

f) That no such statutory defence is available for drug mules, or, in relation to terrorism, for those who assist in terrorist offences through fear, threat or coercion;

g) That the real issue is not statutory protection from prosecution, but improved identification of victims.[82]

63. In contrast, the evidence we received in favour of a statutory defence made a moral and practical case for statutory reform, highlighting the failure of guidance (since the first guidance was issued in 2004, it has been updated 12 times, mostly to reflect changes in legislation or updates in case law), while victims continue to be prosecuted, and the importance of legislation as an educational tool to create a ripple effect of knowledge through all levels of law enforcement.

64. The arguments presented by this group of witnesses suggested problems in relying solely upon an abuse of process approach, because it has traditionally been seen as a form of judicial review of a prosecutor's decision-making process, and not as a consideration of the merits of the substantive decision. They told us that, while the Court of Appeal in R v L had suggested that "the court will reach its own decision on the basis of the material advanced in support of and against the continuation of the prosecution",[83] it is not clear whether this statement expands the grounds for applications beyond the traditional abuse of process review. This confusion has been reflected in the current CPS Guidance, which focuses first upon whether there is "clear evidence of credible common law defence of duress" and if there is not, as a second stage of whether "the public interest lies in proceeding to prosecute or not". We note that there is no mention of R v L in the CPS guidance until the document discusses age assessment of children.[84]

65. Those in favour of a statutory defence also told us that the existing defence of duress was insufficiently nuanced to recognise the complexities of human trafficking.[85] It also sets a very high threshold, requiring proof that the victim was compelled to commit the crime: "that the victim has effectively lost the ability to consent to their actions or to act with free will".[86] Few thought that a victim of modern slavery could meet that threshold and we do not think they should have to.

66. The crux of their argument was that by legislating rather than relying upon guidance, the need not to prosecute victims of modern slavery was made clear and easily found. It would also ensure that victimhood was considered earlier in the decision-making process, namely at the evidential stage of the CPS Full Code test in the Code for Crown Prosecutors, rather than in "addition to applying the Full Code Test" through a separate three-stage assessment.[87] This approach recognises that the question is not whether the victim of slavery has committed the offence, but whether they should be prosecuted and, if not, the best way to prevent prosecution.

67. We have borne in mind that the guidance provided in the case of R v L has only been in place since June 2013, and that the latest CPS guidance was only published in February 2014. We also bore in mind that obligations at international level are not prescriptive, and are met by the UK's system of prosecutorial discretion and sentencing practice.[88] Nonetheless, we note that there are existing statutory defences for other crimes.[89]

68. In coming to our conclusion we have considered not only the most obvious cases, one end of the spectrum, where prosecution should not have commenced, let alone proceeded to conviction (for example, the child cannabis farmers in R v L), but also hypothetical cases at the other extreme where, for example, a victim is forced to commit theft and in doing so inflicts serious physical injuries on or kills a member of the public.

69. We conclude that there should be a statutory defence of being a victim of modern slavery, which should:

a) be clear on the causative link between the slavery of the victim and the offence committed

b) provide protection that is proportionate to the offence committed by the victim

c) include consideration of the temporal link between the slavery and the offence, and

d) make specific provision for murder, namely, that there is no full defence, but, as with the existing law on loss of self control, murder is reduced to manslaughter.

70. Our proposed defence would only be considered by the court where there is evidence (rather than mere assertion) that the accused was the victim of a Part 1 offence and the offence charged was committed as a direct and immediate result of the Part 1 offence - with the words "direct and immediate" creating a temporal and causative limitation on the circumstances in which the defence could be raised.

71. Like duress, this defence applies to every offence except murder, but it involves a more realistic evidential burden than that which applies to the defence of duress in order to protect those who really should not be prosecuted for acts committed in the throes of their slavery or in attempts to escape. Our proposed defence is proportionate because it would apply only where an ordinary person in the same circumstances as the accused might have done the same. This mirrors the wording of the existing defence of loss of self-control.[90]

72. Where the offence is murder, our clause recognises the unique nature of that crime and does not provide a complete defence. Subsection (2) allows a jury to determine whether the defence should apply, and, if the jury deems it should, the effect of the defence is not acquittal but to reduce the conviction to manslaughter. This recognises the effect of mandatory life sentences and provides for judicial discretion in sentencing; a judge may still, however, impose a life sentence for the manslaughter conviction.

73. In essence we think that it enacts a test of sympathetic reasonableness, while providing a simple and clear guide to the CPS and other prosecutors as to the test they should apply in deciding whether the evidence justifies prosecution. A prosecutor would still be able to apply the interests of justice test where, for example, the defence would not apply but the circumstances of the accused were such that a merely nominal penalty is likely.

Assistance and support for victims of modern slavery

74. The National Referral Mechanism (NRM) is the means used to identify victims of human trafficking in UK and acts as the gateway to victim support services. It is also a source of data on the extent of trafficking. The NRM was introduced in 2009 to meet the UK's obligations under the Trafficking Convention.

75. The NRM operates a three-stage system for identifying potential victims. Initially, a first responder (first responders include law enforcement bodies, local authorities and some NGOs) makes a referral to a competent authority. Second, the competent authority determines whether there are reasonable grounds to believe the person concerned is a victim of trafficking. If the competent authority finds there are reasonable grounds, the potential victim is accommodated for a reflection and recovery period of 45 days. During this period, the competent authority should make a conclusive decision on whether the person is a victim. The two competent authorities are the multi-disciplinary UK Human Trafficking Centre (UKHTC), which is part of the National Crime Agency, and UK Visas and Immigration (UKVI), which is part of the Home Office.

76. Many of the problems that we have identified in the provision of care and assistance to victims, and the issues we have considered as to how to provide that care, focus on the NRM. Referral to the National Referral Mechanism (NRM) remains a voluntary decision for the individual victim, and we expect that there will be some victims who do not use the NRM system, simply because they do not wish to be referred. There may be other victims too who do not use the NRM but to whom it is appropriate to provide some care and assistance. It is to this end that we have included an order-making clause in the Committee Bill that gives power to the Secretary of State, in consultation with the Anti-Slavery Commissioner, to publish and maintain guidance on the provision of assistance and support to victims of modern slavery.

Reforming the National Referral Mechanism

77. There are longstanding concerns about the fairness and effectiveness of the NRM.[91] In October 2013, the Home Office announced it would review the NRM's governance and functioning.[92] Six months on we have seen very little evidence of progress on this review.[93]

78. We are very disappointed that there has been so little progress on the review of the NRM. It has made our task more challenging.

A STATUTORY NRM

79. At present the NRM has no statutory basis. This has advantages: it provides for flexibility to respond to specific circumstances. We were also told that victims might perceive a statutory system as more legalistic and less empathetic than the current arrangements.[94]

80. We heard, nevertheless, a variety of arguments in favour of making the NRM statutory. Anti-Slavery International told us that the current arrangements "led to arbitrariness of application and access for victims".[95] Others pointed out that giving victims statutory rights would make claiming and enforcing those rights more straightforward.[96] Focus on Labour Exploitation (FLEX) argued that a statutory footing was necessary for reasons of transparency and accountability and that the weaknesses of the current "ad hoc structure is borne out in the experiences of victims".[97] The AIRE Centre told us that a statutory NRM was necessary both for the UK to fulfil its international obligations and to secure the most effective victim identification process. The latter, they argued, would result in better protected victims more equipped to cooperate in prosecutions.[98] The Head of the UKHTC, Liam Vernon, suggested that legislating for the NRM could raise awareness of it among front-line agencies.[99]

Case study: "Ms O was referred to the National Referral Mechanism on 27 January 2012. Whilst detained in Yarls Wood Immigration Removal Centre, the Poppy project chased the NRM for a decision repeatedly. In total Ms O spent 336 days in both prison and immigration detention without being properly identified as a trafficked person. Forty-nine of those days were after the referral had been made and three of those days were after the positive reasonable grounds decision had been issued".[100]

81. Putting the NRM on a statutory basis would also be an opportunity to establish a clear review and appeals process.[101] The Anti-Trafficking Monitoring Group (ATMG) detailed the present patchy and chaotic system of informal requests for decisions to be reconsidered. These requests can only come from a first responder or other support provider directly involved in the case, but some of these bodies lack the capacity, willingness or remit to challenge decisions.[102] Judicial review offers a more formal route but can only be used to challenge the way in which a conclusion has been reached rather than the merits of the conclusion itself. Judicial review is also expensive and potential victims are eligible to apply for legal aid only if a competent authority has established reasonable grounds to consider them a victim of trafficking.

82. We recommend that the draft Modern Slavery Bill is amended to give statutory authority for the NRM to ensure greater consistency in its operation, decision-making and provision of victim support services. This statutory basis should also provide for a mechanism for potential victims to trigger an internal review and to appeal against decisions taken by competent authorities.

COVERAGE OF THE NRM

83. The scope of operation of the NRM is at present limited to victims of human trafficking. The recent Connors cases demonstrate that those subjected to forced labour require similar support and assistance.[103] We recommend that the NRM should cover all victims of modern slavery as defined in Part 1 of the Committee's Bill.

UK VISAS AND IMMIGRATION'S COMPETENT AUTHORITY STATUS

84. UKVI came into being in April 2013, following the abolition of the UK Border Authority (UKBA) and the earlier splitting out of immigration enforcement functions to the Border Force. UKVI caseworkers take decisions in respect of potential victims from non-EEA countries identified as part of the immigration process. UKVI is also responsible for taking immigration-related decisions. Several witnesses identified this dual role as a potential source of conflict of interest.[104]

85. Statistics provided by the ATMG show that the UKHTC granted positive conclusive grounds decisions in 80 per cent of cases in 2012. UKBA (now UKVI) reached a similar conclusion in just 20 per cent of cases in the same period.[105] The Director General of UKVI, Sarah Rapson, told us that she thought her organisation was now granting positive conclusive grounds decisions in "about half" of cases, though she conceded that the data was "not very good".[106] Commenting on the same statistic, the Minister noted the added confusion caused by the high number of pending cases at UKVI.[107]

86. The Director of Asylum at UKVI, Glyn Williams, argued that the different nature of cases handled by UKHTC and UKVI should be considered in assessing their relative rates of granting positive conclusive grounds decisions. The EEA cases considered by UKHTC, he argued, often followed police investigations, and therefore were taken with the benefit of access to corroborating evidence. Police investigations were less common in the non-EEA cases handled by UKVI.[108]

87. The ATMG posited that the statistical discrepancy was not solely attributable to differences in the ways the respective individuals had been referred to the NRM. It claimed that UKVI's decision-making was characterised by a "culture of disbelief", a "disproportionate focus on [victim] credibility" and an adversarial or dismissive approach to dealing with the professional representatives of victims. It also noted a "conflation of NRM and asylum decisions" when the processes should be entirely separate. The ATMG also told us that the treatment of children in NRM decision-making was particularly inappropriate.[109]

88. In rebuttal, the Director-General of UKVI told us that the organisation aspired to cultural change and was able to focus on victims and vulnerable people in a way that its predecessor, UKBA, had been unable to do.[110] UKVI's Director of Asylum assured us that caseworkers were trained in the separate processes involved in handling trafficking and asylum cases.[111] The Minister emphasised the merits of having asylum expertise applied to trafficking cases at UKVI.[112]

89. Notwithstanding those points, the evidence provided by UKVI concerned us in a number of ways:

a) There were repeated references to a lack of "corroboration" of victims' stories from the police in non-EEA cases preventing UKVI making positive conclusive grounds decisions.[113] As the Immigration Law Practitioners' Association (ILPA), told us "since corroboration is not required at all, it should not be making a difference".[114]

b) UKVI seemed to imply that police evidence was given particular weight in conclusive grounds decision-making. The official competent authority guidance states that "due weight should also be given to reports submitted by recognised support providers and children's services".[115] The ATMG told us "treating cases where no police evidence is available differentially [...] compromises the fairness of the whole NRM process".[116]

c) UKVI referred to the "independent verification" of the stories of potential victims of trafficking.[117] Yet there is no requirement for such verification.

d) Despite asserting that the NRM and asylum decision-making were separate processes, UKVI repeatedly conflated them in evidence.[118] In response to a question about the absence of a formal appeal process in the NRM, we were referred to a statistic that "78% of trafficking claims are linked with an asylum claim, and there is appeal against an asylum decision";[119] such conflation of NRM and asylum considerations was underlined by UKVI providing its Director of Asylum as a witness on human trafficking issues.[120]

e) UKVI's evidence revealed a worrying lack of understanding of the victim support services provided by NGOs as part of the NRM.[121]

90. Officials with responsibility for determining immigration claims should not take decisions on modern slavery victimhood. There is an inherent conflict of interest in such an arrangement. The UK Human Trafficking Centre's (UKHTC) multi-disciplinary staffing model is far more appropriate.

91. The current NRM subjects victims of trafficking to a support and assistance lottery dependent on their nationality and the region where support is offered. We recommend that competent authority status be removed from UK Visas and Immigration (UKVI).

MATTERS FOR THE NRM REVIEW

92. The quality of victim support and assistance provided under the NRM varies greatly. We have privately heard from victims some harrowing stories of poor medical treatment, no access to legal advice and wholly unsuitable accommodation. FLEX told us that it was "at best patchy and at worst seriously inadequate".[122]

93. We also heard evidence that the 45 day period was insufficient for a victim properly to reflect and recover. Though the UK is more generous than the minimum of 30 days stipulated in the Trafficking Convention, the United Nations Entity for Gender Equality and the Empowerment of Women has noted several states have longer reflection periods including Chile with six months, Canada and Norway with 180 days, Germany three months, Czech Republic 60 days and Denmark a 30 to 100 day period.[123] The Minister assured us that questioning the duration of the reflection and recovery period would form part of the Home Office's review of the NRM.[124]

94. UKVI's Director-General acknowledged that it was "unacceptable",[125] but not surprising,[126] that a victim had waited 8 months for a reasonable grounds decision that was supposed to take five days. We were told that following reforms at UKVI, such decisions were now being taken within five days.[127] But the Director-General acknowledged also that subsequent conclusive grounds decisions were still not being made within 45 days and that she did not have access to statistics to tell her how long cases had been in their system.[128] A representative of ILPA told us of a client who had been waiting four months for a conclusive grounds decision.[129] The Salvation Army suggested that the quality and timeliness of NRM decisions would be improved by independent case review and audit mechanisms.[130]

95. Conclusive grounds decisions in the NRM have a different standard of proof to asylum decisions. A conclusive grounds NRM decision is subject to the "balance of probabilities" while in asylum cases the standard is "a reasonable degree of likelihood" of future harm, a lower threshold. The UKVI Director of Asylum was unable to explain why different standards are used or what impact this has in practice.[131]

96. Witnesses were also critical of the apparently haphazard way in which decisions had been made on who was and was not a first responder: there are no written criteria and some of those, including medical professionals and prison staff, who may come into contact with potential victims are excluded.[132] It was also suggested that first responders should be permitted to take reasonable grounds decisions,[133] and that public authorities should have a statutory duty to identify potential victims of human trafficking.[134]

97. It was suggested to us that the Anti-Slavery Commissioner might be given responsibility for overseeing the NRM. René Cassin thought these powers might be extended to overturning negative decisions.[135]

98. The NRM is overdue major reform. The Home Office's review should be ambitious and have a wide remit. We recommend that the Secretary of State should, by Order, and in light of the conclusions of the review, set out: the stages of the identification process; the criteria for assessing whether organisations are suitable for carrying out those stages; the timescales by which each stage should occur; the tests to be applied, including standards of proof; provisions for an independent internal review or appeal; and the minimum standards of assistance and services which shall be provided for victims and potential victims of modern slavery in the framework.

Duty to notify

99. Clause 35 of the draft Bill places a duty on specified public authorities to notify the National Crime Agency if they have reasonable grounds to suspect that an individual may be a victim of human trafficking. This measure is designed to improve data collection without requiring potential victims to be referred to the NRM. There is no similar duty proposed regarding victims of other forms of modern slavery.

100. The White Paper accompanying the draft Bill makes clear that a notification could be made without identifying the victim if the victim wished to remain anonymous.[136] But, as Human Rights Watch pointed out, the explanatory notes[137] accompanying the Bill indicate that "the nationality of the victim, type of exploitation experienced and the location and dates it took place" would be included in notifications, thus revealing "a significant amount of data on the victim and the perpetrator".[138] We also heard concern that notification could occur without the informed consent of adult victims.[139] This risks undermining the trust of victims in NGOs and public services.[140] The Impact Assessment accompanying the draft Bill implies that the "specified public authorities" for the purposes of the duty to notify would be NRM first responders, which include NGOs such as Kalayaan, the Medaille Trust and the Poppy Project.[141] Victims of exploitation might avoid using victim support or public services for fear of the consequences of being reported: it would be understandable for someone wary of authorities to think of a notification to the National Crime Agency as ominous, and exploiters could use this fear to exert further control over their victims.[142]

101. The varying descriptions of the scope and effect of clause 35 of the draft Bill in Home Office documentation suggest that it is ill thought-through. While we very much support the Government's desire to improve statistics on modern slavery, it is not clear that imposing a duty on NRM first responders to notify the National Crime Agency to potential victims of human trafficking would achieve that aim. At the same time, it risks undermining trust in, and use of, vital victim services. We recommend that the duty to notify clause is removed from the draft Bill and is reconsidered as part of the NRM review. The NRM review should also consider the merits of the Anti-Slavery Commissioner rather than the National Crime Agency receiving and collating victim notifications.

Advocates for child victims

Trafficked children

102. Trafficked children from outside the EEA have the same legal rights in the UK as those from the UK and EEA countries.[143] There are statutory duties on public bodies, including local authorities, police, youth agencies[144] and UKVI,[145] to safeguard and promote the welfare of all children. Children trafficked into the UK may be particularly vulnerable as a result of their experiences.[146] Add to this cultural and language barriers,[147] an unawareness of their rights,[148] a general suspicion of public authorities, or that victims may have been groomed to give a false account of themselves by their exploiters and it is not hard to understand why, despite efforts on the part of public authorities, it remains difficult to establish a connection between trafficked children and those with a duty to protect and provide for them.[149] Nevertheless the existing processes require trafficked children to go "from agency to agency, to meet different people, to retell their story again and again" in order to access welfare and legal assistance.[150] Other witnesses added that inadequate treatment of trafficked children was a consequence of existing services being improperly implemented and cautioned against recommending new measures.[151]

103. Trafficked children are "very vulnerable to being re-trafficked".[152] Dan Boucher of Christian Action Research and Education (CARE) told us that "between 2005 and 2010, 32% of rescued trafficked children were lost while in local authority care."[153] It is hard to be certain about the reasons for this. In part it may be because the children continue to have the same vulnerabilities that made them susceptible to trafficking in the first place, or because those who originally trafficked them continue to exert influence. But we are concerned that the barriers we have identified to trafficked children securing safe welfare services and legal assistance may force some, through desperation, to turn to their former traffickers, or another adult who offers assistance with a view to exploiting them, and thus be a contributory factor to the high proportion of children re-trafficked.

CARE ORDERS AND CAFCASS GUARDIANS

104. A child who is the subject of an application for a Care Order under section 31 of the Children Act 1989 will have an independent guardian appointed by Cafcass and may have an Independent Reviewing Officer (IRO). While this can provide some valuable remedy for trafficked children, the remit and expertise of Cafcass guardians, restricted as it is to welfare and the family courts, is too narrow to meet the particular and cross-agency needs of trafficked children.[154] Equally, IROs do not provide a sufficient service.[155] We also noted that children aged 17, or 16 if they are married, are not eligible for section 31 care orders.[156]

105. Local authority Care Orders and Cafcass guardians are an insufficient response to the particular needs of trafficked children.

OPTIONS FOR ADVOCATES

106. There was widespread agreement among our witnesses that the specific support required by a trafficked child would most appropriately be provided by an individual representative with the following characteristics:

· expertise, knowledge and training across a wide range of public services [157]

· an ability to act as a focal point for issues regarding the child

· independence, to give unbiased advice to the child and engender trust that someone is "on their side" [158]

· an ability to ensure that "the child's voice is heard",[159] and

· the right to have access to information and appropriate documents from police, social services, the NHS and other agencies.

107. 'Guardian' is the most common description of this type of role and is used in the EU Directive.[160] We prefer the term 'advocate'. It does not carry any implication of parental responsibility for the child, and best expresses the key purposes of the role—to ensure that the child's voice is heard and that decisions are taken in the child's best interest. We considered three different models for creating an advocate scheme: a Government policy initiative, an agreement among stakeholders, and a statutory scheme.

Advocates by policy

108. The Home Office announced a trial involving 'personal advocates' in January 2014.[161] The Minister for Modern Slavery and Organised Crime, Karen Bradley MP, told us that a personal advocate would be:

162

Twenty-two local authorities are expected to be involved in the trials which are planned to commence by the summer of 2014.[163]

109. While our witnesses generally welcomed the Home Office's commitment to developing an advocate scheme, we heard concerns that a solely policy-based approach would not fully meet the needs of trafficked children. Barnardo's described the Home Office's announcement as a "step in the right direction" but cautioned that personal advocates would not have "legal responsibility for the child in order to make decisions in their best interest" and would not be equipped to "hold agencies to account if they fail to support child victims of trafficking". As a result, they concluded that Home Office-appointed personal advocates would "not address the most significant issues these children face".[164]

Advocates by agreement among stakeholders

110. The Scottish Guardianship Scheme, which was extended by three years in February 2013 following a 30 month pilot, is underpinned not by legislation but by a protocol agreed between stakeholders. The Scheme's Service Manager, Catriona MacSween, described guardians as:

165

We heard evidence of the success of the Scheme,[166] including that "less than 10%" of children involved had gone missing.[167]

111. We were told that there were some initial difficulties both in assuring other professionals over the functions and motives of the guardians and in ensuring that guardians were included in discussions about social services and immigration issues.[168] We were also cautioned that the Scottish model would not necessarily translate well to England, as in Scotland both trafficked children and expertise in dealing with them are heavily concentrated in Glasgow, where partnership working is particularly well established,[169] whereas the pattern of offending in England arises in both urban and rural areas, and is the responsibility of many different police forces and local agencies.

Advocates in legislation

112. The majority of the children charities we heard from supported a statutory advocacy scheme. Legislation, they argued, would grant advocates legally enforceable powers to "take any action that is in the best interests of the child",[170] even when it went against the child's expressed desires. The Immigration Law Practitioners' Association (ILPA) told us that child victims may, often as a result of grooming by traffickers, give instructions to their lawyers that are against their own best interests which the lawyer is then required to follow. An advocate with the appropriate legal powers would be able to give instructions to a lawyer on the child's behalf even where the child's expressed wishes are against his or her best interests.[171]

113. The power to represent a child would provide advocates with a legal basis to hold agencies accountable both through complaints mechanisms and, ultimately, through legal action. This would make advocates better equipped to compel action and ensure decisions are made both accurately and in a timely fashion.[172]

114. We recommend that in the Modern Slavery Bill the Government provides for the introduction of advocates for all trafficked children. Their extreme vulnerability justifies bespoke support. Such a scheme would also further support the Bill's primary objectives by protecting children from those who would exploit them and by giving those who have been victims the support and confidence required to give evidence against their abusers in court. The introduction of advocates should not prevent local authorities taking trafficked children into care where appropriate.

115. We welcome the Home Office announcement of pilot schemes for personal advocates for trafficked children. It is not, however, a substitute for a statutory advocate scheme. The nature of the exploitation suffered by children, together with their youth and isolation, means they are frequently unable to make decisions in their own best interests. Coordinated and timely action on the part of public agencies is more likely to occur if those agencies know they will be held to account and that the advocate has a right to access information and appropriate documents. Both of these functions require an advocacy scheme underpinned by statute providing a legal basis for the advocate to represent the child.

When should an advocate be appointed and when should the appointment cease?

116. Chloe Setter of ECPAT told us that an advocate should be appointed "as soon as any relevant agency or NGO first identifies the child as a potential victim of trafficking".[173] Dr Dan Boucher of CARE agreed, noting that "children are most at risk of being re-trafficked in the early days".[174]

117. CARE suggested the advocate's role should come to an end when "the child reaches the age of 18; or...a durable solution for the child has been found".[175] Philip Ishola, of the Counter Human Trafficking Bureau, told us that an abrupt removal of support at 18 could be counter-productive and a transition period would be required, in line with the approach taken by social services to looked-after children.[176] Such a transitionary approach may reduce the risk of a child being re-trafficked at the point at which they reach adulthood and child-specific support and services are withdrawn.

118. We recommend that an advocate is appointed at the point at which a child is identified as a potential trafficking victim and that the advocate continues to represent the child until a durable solution based on the best interests of the child is found, or the child reaches the age of 21, whichever is the earlier.

Cost

119. We have commented elsewhere in this report on the shortage of reliable data about trafficking and modern slavery generally. Child trafficking is no exception and thus any estimates over the number of advocates required must by treated with caution. From the information there is, however, it would not be unreasonable to assume that more than 500, but fewer than 1,000, children would require advocates at any one time.[177] Both Cafcass and Scottish Guardianship Scheme guardians typically work with around 25 children.[178] Extrapolating from the cost of the Scottish scheme, the annual cost of our proposed scheme might be somewhere between £1.5 and £3 million.[179]

120. The Children's Society and UNICEF UK suggested that the cost of advocates would be offset by savings realised through the better decision-making and more effective legal representation they would bring, therefore reducing the number of costly appeals. They told us, for example, that the cost of an age assessment appeal "ranges from £15,000 to £75,000 per case." Similarly, substantial damages have been awarded to children wrongly detained as adults in detention centres.[180]

121. In recommending the creation of an advocate scheme for trafficked children we have been mindful of the effect on the public purse. On the basis of the evidence we have received, we do not believe the cost of an advocate scheme for the small number of highly traumatised children involved would be disproportionate.

Children and presumption of age

122. Article 13 of the EU Directive requires Member States to ensure that where the age of a trafficked person 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 (Assistance and support to child victims) and 15 (Protection of child victims of trafficking in human beings in criminal investigations and proceedings). The Trafficking Convention contains a similar provision.[181] However, the Children's Society pointed us to a study of 17 trafficked children that suggested that the presumption of childhood was not being applied in practice:

182

123. The Joint Committee on Human Rights, in its report on unaccompanied migrant children, made detailed recommendations on the recording of statistics on age disputes, and the development of a clear set of statutory guidelines for age assessment, making clear that young people should be given the benefit of the doubt unless there are compelling grounds to discount their claim.[183] The Government's response noted existing pilot schemes on collecting age dispute statistics, and work to develop a multi-disciplinary approach to age assessment. It did not believe that statutory guidance was likely to be needed, or that the age assessment process is a matter of young people being given the benefit of the doubt.[184]

124. Chloe Setter of Ecpat told us that local authorities face "a conflict of interest" in making age assessments in that if "they find that person to be a child, they have to support and accommodate them. If they find them to be an adult, they send them to London, and they have to be put through the asylum system".[185] UNICEF UK said that the appropriate response to this issue was a statutory presumption that, where age is uncertain or disputed, but there is reason to believe the victim may be a child, the victim is presumed to be under 18.[186] We recommend that a presumption of age clause be added to the draft Bill to give clear effect to the UK's international obligations.

Special measures and protection of victims

125. Special measures, such as providing screens to shield witnesses and enabling witnesses to give evidence via a video link or in private, are designed to help vulnerable and intimidated witnesses give evidence in court to the best of their ability.[187] Child witnesses are eligible for special measures under section 16 of the Youth Justice and Criminal Evidence Act 1999. Adult victims of sexual or trafficking (but not all modern slavery) offences[188] appearing as a witness in relation to those proceedings are eligible for special measures under Section 17(4) of that Act. The CPS acknowledges that it needs to use special measures more effectively to protect victims of modern slavery.[189]

126. Section 41 of the Youth Justice and Criminal Evidence Act 1999 restricts evidence or questions about a complainant's sexual history when the accused is charged with a sexual offence. There is no analogous provision in respect of modern slavery offences, leaving victims unprotected from questioning of their personal history when giving evidence.[190] We were told that victims of exploitation were often targeted because of particular vulnerabilities: "alcoholism, drug abuse, mental health problems, poverty", information which could be used by the defence to focus unfairly on the victim's background and "obfuscate the real issues in the case".[191] It was also suggested to us that "the crimes a victim commits at the behest of the trafficker should only be admissible in the trafficking trial by leave of the judge".[192]

127. A further possibility is for modern slavery offences to attract a "ticket" for Judges, whereby only specially-trained Judges would be able to sit on modern slavery trials. A similar system is in place in respect of judges hearing cases involving sexual offences.

128. We recommend that the Government

a) extends the existing special measures under section 17(4) of the Youth Justice and Criminal Evidence Act 1999 to include all modern slavery offences;

b) extends the scope of section 41 of the Youth Justice and Criminal Evidence Act 1999 to include victims of modern slavery;

c) considers, in collaboration with the Lord Chief Justice and the President of the Queen's Bench Division, the merits of a Modern Slavery Act "ticket" for judges, or similar arrangements.

Legal assistance

129. Many of the victims we met had been located, identified and assisted by lawyers working pro bono for victims' charities. The importance of legal assistance is recognised in Article 15(2) of the Trafficking Convention, which requires a signatory state to provide a "right to legal assistance and to free legal aid for victims under the conditions provided by its internal law".[193]

130. Access to and eligibility for legal aid for civil legal services is determined by the Legal Aid, Sentencing and Punishment of Offenders Act 2012 ("LASPO 2012"). Only those civil legal services expressly included within Schedule 1 of LASPO 2012 may be funded by the Legal Aid Agency, unless the case meets the strict requirements of the exceptional funding scheme, which has been heavily criticised and has made only a very small number of grants of funding to date.[194] All civil funding is also subject to a means (of the applicant) and merits (of the case) test. At present, victims of trafficking can receive legal aid for certain specified civil legal services under paragraph 32 of Schedule 1, but in order to do so they must have received a positive NRM reasonable grounds decision.

131. If a victim has received a negative NRM decision, they may seek to redress an erroneous decision by way of judicial review, which challenges the way in which a decision has been made, rather than the rights and wrongs of the conclusion reached. NRM judicial reviews currently attract legal aid funding but the Ministry of Justice's proposed residence test will mean that unless a person has accrued 12 months' lawful residence in the UK, they will be ineligible for legal aid. There is a proposed exemption from the residence test for trafficked persons but this does not extend to judicial review.[195] As the Immigration Law Practitioners' Association ("ILPA") told us:

196

197

132. ILPA suggested that the current legal aid system leaves gaps in assistance. First, the threshold requirement, which means that only those who have received a positive NRM reasonable grounds decision receive funding, automatically excludes funding for legal assistance to help a victim increase their chance of receiving that positive NRM decision.[198] Without a positive NRM decision, the victim has no access to funded civil legal services. Second, the structure of legal aid contracts restricts the number of cases taken on and therefore the number of victims who can be provided with assistance.[199]

133. We recommend the establishment of a fund for provision of legal services to victims of modern slavery consistent with our international obligations but also to meet the practical need for timely legal advice. Regardless, we recommend that the definition of victims in paragraph 32 of Schedule 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 is expanded to cover victims of all modern slavery offences and that funding is retained for judicial review challenges to negative NRM decisions. We also recommend that legal aid is available to defendants for Slavery and Trafficking Prevention Orders or Risk Orders as with other civil prevention orders.

Compensation

134. Luis CdeBaca, the United States Ambassador-at-Large to Combat Trafficking in Persons,told us that compensation payments to victims, whether as part of the exploiter's sentence, by way of civil action or through a recognised scheme or similar process, are one of the "characteristics of successful victim support legislation".[200] All of the methods Mr CdeBaca mentioned are theoretically available in the UK, though the extent to which they are used varies.

COMPENSATION ORDERS IN FAVOUR OF VICTIMS

135. Section 130 of the Powers of Criminal Courts (Sentencing) Act 2000 gives a court the power to require a person convicted of an offence to pay compensation for personal injury, loss, damage, funeral expenses or bereavement resulting from the offence. Since 2012, a court has been required to "consider making a compensation order in any case where" section 130 empowers it to do so.[201] The effect of section 130(12) of the 2000 Act and of section 13(5) and (6) of the Proceeds of Crime Act 2002 is that compensation is protected from erosion by fines or confiscation orders where the offender's means are insufficient to pay both.

136. Article 15(4) of the Trafficking Convention suggests the establishment of a fund for victim compensation or other forms of assistance to victims, funded by assets confiscated from traffickers. Professor Tsachi Keren-Paz of Keele University School of Law noted that Israel had established such a fund and, while such schemes have problems, in his opinion the absence of such a fund is worse.[202] For Professor Keren-Paz, the point is that the proceeds of fines and confiscation should be used only to compensate victims, and not for funding law enforcement or prevention. He commented that to do otherwise means that "victims, as a group, subsidise law enforcement activities".[203] The Report of the Modern Slavery Bill Evidence Review recommended that a significant element of the proceeds of the confiscation order should be allocated to a special victims compensation fund within the Criminal Injuries Compensation Scheme.[204] Similarly, the Immigration Law Practitioners' Association suggested that if cash seizure and forfeiture is pursued, "the police should have in mind the 'victim' provisions in section 301 of the Proceeds of Crime Act 2002 that allow a person who has been deprived of their cash by unlawful means to make an application for the seized money to be released to them".[205]

137. We questioned whether all victims of the exploiter or only those who appear as witnesses at the exploiter's trial should receive compensation from a compensation order. Luis CdeBaca explained that the United States has a mandatory restitution scheme where a sum ordered by a judge is paid to victims by the Government from confiscated assets. It is not a pre-condition that the victim has to give evidence in order to benefit. As Mr CdeBaca explained, this can mean that in cases with a large number of victims there may not be much paid to each victim; in the case he described there were 300 victims, not all of whom testified, but "everybody got victim services; everybody got family unification; everybody got the full panoply of victim protections".[206]

RING-FENCING

138. The Report of the Modern Slavery Bill Evidence Review recommended that some of the proceeds of confiscation orders enforced in modern slavery cases should be ring-fenced for both victim compensation and to support policing efforts in combating modern slavery.[207] We asked Mark Sedwill, Permanent Secretary at the Home Office, for his views on ring-fencing for victims and for policing. He cautioned that ring-fencing for victims would not necessarily increase the funding available, in part because it tends to displace other sources of funding, even if the original intention was to supplement them. In his opinion, the "key thing is to identify the amount of funding that is required for victims and then work on whatever funding sources might be necessary for that".[208] In relation to policing, he said that the Home Office was reviewing how to fund modern slavery investigations and would consider ring-fencing, but cautioned that the range of training and capabilities which police forces need to build are not specific to modern slavery.[209]

CIVIL CLAIMS AND THE COMPENSATION SCHEME

139. Victims of trafficking can bring claims for breach of contract, protection from harassment and false imprisonment in the County Court or High Court; and for discrimination, unpaid wages, breach of working time and unfair dismissal in the Employment Tribunal. ATLEU suggest that "the ability of victims to take such claims is severely constrained by the lack of availability of legal aid".[210]

140. In addition to claims brought in the civil courts and tribunals, the UK meets its international obligations to provide compensation to victims[211] through the Criminal Injuries Compensation Scheme 2012 ("the 2012 Scheme"). However, as our evidence from Hogan Lovells International LLP makes clear, the 2012 Scheme has not been drafted or adapted to meet the needs of victims of modern slavery.[212] To be eligible, a victim of crime must have sustained "a criminal injury which is directly attributable to their being a direct victim of a crime of violence committed in a relevant place." The existing modern slavery offences are not included within the Scheme's definition of a "crime of violence", in contrast to crimes such as arson, which are listed as part of the definition.[213] As a result, only certain victims of modern slavery receive compensation from this source, specifically those victims for whom the facts of their enslavement means that they were subject to "a threat against a person, causing fear of immediate violence in circumstances which would cause a person of reasonable firmness to be put in such fear".[214] Hogan Lovells say that this is often very difficult to prove in the absence of detailed records to evidence specific attacks or threats. Some victims' claims have been accepted under the 2012 Scheme, due to the control and exploitation involved in their enslavement, but not all and this has created a patchwork of coverage, contrary to the UK's international obligations.

141. Compensation under the 2012 Scheme is calculated according to the injury sustained and the severity of that injury. For sexual and physical abuse cases the 2012 Scheme provides a specific tariff. Hogan Lovells argue that "Having a simple award for human trafficking would take into account the psychological damage often attributable and would take into account the loss of liberty and other injuries that victims of trafficking or slavery suffer."[215]

CONCLUSIONS ON COMPENSATION

142. We recommend that paragraph 2(1) of Annex B of the Criminal Injuries Compensation Scheme 2012 is amended to make specific reference to crimes of modern slavery, and that the Scheme should be funded accordingly. Victims should be compensated not for a loss of earnings for what is illegal employment, but for the loss of opportunity to earn money freely. We also recommend that the Government considers creating a specific tariff for victims of modern slavery, and uses some of the proceeds of confiscated assets to boost the money available for victim compensation through the Criminal Injuries Compensation Scheme.

Child Rights Impact Assessment

143. Cabinet Office guidance on how the Government should consider the articles of the UN Convention on the Rights of the Child when making new policy and legislation includes the suggestion that it "would be helpful... if explanatory notes included a summary of the anticipated effects of legislation on children and on the compatibility of draft legislation with the UNCRC". No such assessment has been made for the draft Modern Slavery Bill.[216] We recommend that the Home Office complies with Cabinet Office guidance when publishing the Modern Slavery Bill and includes a summary in the explanatory notes of the anticipated effects of the Bill on children.

67 Report of the Modern Slavery Bill Evidence Review, p33. Back

68 Report of the Modern Slavery Bill Evidence Review, p34. Back

69 Written evidence from Anti-Slavery International Back

70 Case study submitted by the William Wilberforce Trust, quoted in the Centre for Social Justice, It Happens Here, March 2013, p7. Back

71 RACE in Europe Partners, Victim or Criminal? Trafficking for Forced Criminal Exploitation in Europe, UK chapter, January 2014, p18. Back

72 Written evidence from the AIRE Centre Back

73 [2013] EWCA Crim 991; [2014] 1 All E.R. 113 (hereafter R v L) Back

74 [2008] EWCA Crim 2835 (hereafter R v O) Back

75 Written evidence from Peter Willis Back

76 R v L Ibid. Back

77 Q 641 (Lord Judge) and written evidence from Dr Anne Gallagher Back

78 Written evidence from Dr Anne Gallagher Back