Human Trafficking and Modern Slavery Law and Practice

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DELETE Foreword Preface Editors’ biographies Contributors’ biographies Table of Statutes Table of Statutory Instruments Table of European Legislation Table of Cases 1 Legal policy and framework on trafficking by Michelle Brewer and Philippa Southwell Introduction The definition of human trafficking General The three elements of trafficking First element of the trafficking definition: the act Second element of the trafficking definition: the means Third element of the trafficking definition: for the purpose of exploitation Exploitation of children Definition of victims of slavery, servitude and forced or compulsory labour Overview of definition The ‘means’ element of the definition of modern slavery Smuggling legislation 2 Determination of trafficking status by Louise Hooper Introduction National Referral Mechanism Identifying victims of trafficking Identification and ECHR, Art 4 Indicators of trafficking Experiences of victims The conduct of traffickers ‘Credibility’ and mitigating factors Expert evidence Evidence from support organisations Evidence from other experts First responders Duty to notify Competent authorities Reasonable grounds decision Standard and burden of proof Assessment Timing of decision Relevance of criminal investigations to the NRM decision Consequences of positive reasonable grounds decision Recovery and reflection period Relevance of trafficking decisions in other proceedings Negative reasonable grounds decision Conclusive grounds decision Standard of proof Assessment Timing of decision Consequences of positive conclusive grounds decision Negative conclusive grounds Challenging negative decisions Victims who go missing Asylum seekers Historical victims Grounds of challenge 3 Age disputes in immigration and criminal proceedings by Shu Shin Luh Introduction Importance and relevance of age in the context of social welfare law Importance and relevance of age in the context of immigration law Importance and relevance of age in the context of youth justice Decision to prosecute First appearances Bail Mode of trial Assessing age Approach to be taken by a court to determine age in a social welfare and immigration law context Approach of criminal court to age disputes 4 Criminal offences of trafficking by Ben Douglas-Jones QC Introduction Offences under the Modern Slavery Act 2015 Slavery, servitude and forced or compulsory labour: MSA 2015, s 1 Human trafficking: MSA 2015, s 2 Exploitation: MSA 2015, s 3 Sentencing Committing any offence with intent to commit an offence under s 2 Unlawful restriction of liberty Kidnapping and false imprisonment Child abduction Sentence Immigration offences Sentence Offences related to the ‘use’ of victims of slavery and trafficking Sexual exploitation Drug offences Worker exploitation Orders on conviction Confiscation Forfeiture Civil orders Commentary on the MSA 5 Criminal defences available to victims of trafficking by Ben Douglas-Jones QC Introduction International law protection Palermo Protocol ECAT The EU Trafficking Directive Domestic law protection Prosecutorial staged inquiry Is there reason to believe the person has been trafficked? Compulsion and nexus Children Duress Modern Slavery Act 2015, s 45 Burden and standard of proof: s 45 Expert evidence: s 45 defence Is it in the public interest to prosecute the victim of trafficking? Abuse of process Immigration and Asylum Act 1999, s 31 Application of s 31 Presenting without delay Good cause Annex 6 Victims of human trafficking: at the police station by Steven Birds, Bernie Gravett and Philippa Southwell Arrival at the police station Risk assessment Police training and development Provision of rights Criminal Defence Direct Duty to attend the police station Arrival of the legal representative at the police station Interaction with the detained person Interpreters Initial meeting with the client Identifying the client as a potential victim of trafficking: disclosure Instructions not to disclose: the ethical dilemma Advice Positive obligations owed to a victim of trafficking by the state The NRM and the duty to notify The police interview Age of potential victim of trafficking Appropriate adult After the interview Police bail Limits on period of detention without charge The charging decision Interviews where disclosure has been made Police interviewing techniques with vulnerable witnesses Achieving Best Evidence interviews 7 Criminal court process by Felicity Gerry QC, Paramjit Ahluwalia, Philippa Southwell, Michelle Brewer and Ben Douglas-Jones QC Introduction Police station and charge General position following charge Magistrates’ court First appearance Assessing the evidence Entering of pleas Should a plea be entered if a trafficking identification decision from the NRM is still awaited? Completion of Better Case Management forms What issues need to be outlined in BCM form? Be mindful before setting out ‘defence under s 45’ Age assessment Challenging the decision to prosecute a victim of trafficking: raising an abuse of process Plea before venue: decision upon jurisdiction Either way offences Crown Court Completion of PTPH form Fitness to plead: Crown Court The current test for unfitness to plead Fitness to plead procedure Trial of the acts or omissions Disposal rather than sentence Fitness to plead: magistrates’ and youth courts Abuse of process and fitness to plead Disposal of defendants suffering from a mental disorder The role of expert evidence Adducing expert evidence Admissibility of expert evidence Indictment and severance Arraignment Defence statements Disclosure requests Custody time limits Bad character applications Trial issues Questioning of the officer in the case Exclusion of interview Adverse inferences from failure to mention facts in police interview Defendant giving evidence Pre-sentencing application to vacate a guilty plea Sentencing Bail applications Absconders 8 Special measures for victims of trafficking by Michelle Brewer, Rachel Witkin, Dr Eileen Walsh, Felicity Gerry QC and Philippa Southwell General principles Understanding the psychological impact of human trafficking Understanding the psychological impact of human trafficking on children and young people Best practice methods of working with victims of trafficking for legal practitioners General principles Expert medical evidence Working appropriately and effectively with victims of trafficking Special measures in Immigration and Asylum Tribunal proceedings Tribunal Guidance and Practice Directions The Tribunal Procedure Rules Examples of special measures Special measures in criminal proceedings Introduction Trauma – informed approach Eligibility for special measures for witnesses in criminal proceedings Child witnesses Applications for special measures for witnesses Ground rules hearings Special measures for accused persons/defendants who are victims of trafficking Child defendants Vulnerable adult defendants Intermediaries Witness anonymity Reporting identity of child witnesses and child defendants Adult defendant anonymity Applications to move proceedings Applications to hold a Crown Court hearing in camera 9 Criminal appeal process by Philippa Southwell, Michelle Brewer and Ben Douglas-Jones QC Introduction Appeals to the Crown Court Applications to re-open cases Effect of re-opening Appeals to the Court of Appeal Appeal against sentence Grounds of appeal against sentence Common grounds of challenge on appeal against conviction Fresh evidence Extensions of time Appeal following a guilty plea in the Crown Court Further applications that may be made with an application for leave to appeal Applications for bail Anonymity for applicants in the Court of Appeal Criminal Division Requests to expedite the hearing Applications for funding Request for transcripts Request for an oral leave hearing Absconding Applications to the Criminal Cases Review Commission 10 International protection claims brought by victims of human trafficking and modern slavery by Gemma Loughran Introduction Refugee Convention Introduction Definition Well-founded fear of persecution Burden and standard of proof Credibility and the role of NRM decisions in decision-making For reasons of race, religion, nationality, membership of a particular social group or political opinion Unable or … unwilling to avail himself of the protection of that country Internal relocation European Convention on Human Rights Introduction Slavery Servitude Forced or compulsory labour Child labour Trafficking and Art 4 Positive obligations under ECHR, Art 4 Expert evidence in asylum and immigration proceedings 11 Safeguarding child and adult victims of trafficking and immigration detention by Christine Beddoe and Shu Shin Luh Safeguarding and immigration detention: children Introduction Policy and guidance Assessment of vulnerability Children detained in immigration or criminal proceedings The duty to identify Missing children Child trafficking advocates Policy versus practice Safeguarding children who may be affected by immigration control The s 55 safeguarding duty Detention and safeguarding of children Safeguarding and immigration detention: adults Adults at risk: Immigration Act 2016 and statutory guidance Adults at risk: statutory guidance and practice Adults at risk and trafficking Safeguarding and release 12 Compensation for victims of trafficking by Maya Sikand Introduction Compensatory obligations Compensation in criminal proceedings Compensation orders Slavery and trafficking reparation orders The Criminal Injuries Compensation Scheme Eligibility Time limits Level of awards Grounds for withholding or reducing an award The Miscarriage of Justice Application Scheme Are victims of trafficking who have had their convictions set aside eligible under the Scheme? Procedure The award Non-pecuniary loss Human Rights Act 1998 claims against public bodies The investigative duty The scope of the investigative duty revisited Just satisfaction Claims against traffickers Tortious claims against individual traffickers Tortious and other claims against a company Employment tribunal claims 13 Public funding for victims of trafficking by Steven Birds and Lindsay Cundall Advice on arrest for a criminal offence Work after release from police station but before charge Witnesses at risk of self-incrimination Advice during criminal court proceedings at first instance Magistrates’ court proceedings Crown Court proceedings Prior authority for disbursements Defendant intermediaries Extension of legal aid to Queen’s Counsel or two advocates Transfers of legal aid Billing time limits Advice on appeal against conviction and/or sentence where the solicitors acted at trial Appeals from the magistrates’ court to the Crown Court Appeals from the Crown Court to the Court of Appeal Funding in the Court of Appeal (Criminal Division) Applications to the Court of Appeal out of time and CCRC applications: Advice and Assistance Scheme Sufficient Benefit Test Financial test Previous advice Financial limits and applications to extend CCRC applications Postal application Telephone advice Outward travel Previous advice under the Legal Advice and Assistance Scheme Counsel’s fees Applications to re-open the case in the magistrates’ court Applications for compensation under s 133 The availability of legal aid for potential victims of trafficking on immigration matters The gap in legal aid provision for victims of trafficking Exceptional case funding Legal aid for potential victims of trafficking in immigration detention What practical steps are needed to represent a potential victim of trafficking under legal aid in immigration matters? Legal help Controlled Legal Representation Legal Help and CLR: extensions, costs limits and experts Civil legal aid for judicial review Investigative representation Full representation Emergency certificate Substantive certificate Declaration against instructions The permission decision, amending scope Experts and extensions of cost limits Civil legal aid: financial risks 14 Extradition by Mary Westcott Introduction Extradition proceedings Generally Time limits The Crown Prosecution Service and the NCA Common challenges Procedural issues Evidence Victim identification Undermining the NRM Substantive issues 15 Trafficking operations and modus operandi by Steve Harvey, Philippa Southwell and Christine Beddoe Introduction Exploitation typologies and common control methods Physical and sexual violence Deception Debt Isolation Dependency Emotional control Culture and faith Family involvement Modus operandi of known modern slavery cases Organised crime Forced criminality 16 Ethics by Felicity Gerry QC and Philippa Southwell Whether to refer a client through the National Referral Mechanism How to advise a client in a police interview Privilege and confidentiality issues What to request by way of disclosure Index