Human Trafficking and Modern Slavery Law and Practice

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DELETE Foreword to second edition Foreword to first edition Preface Editors’ biographies Contributors’ biographies Table of Statutes Table of Statutory Instruments Table of European Legislation Table of Cases Chapter 1 Definitions, policy and legal frameworks by Michelle Brewer Introduction Legal and policy framework for definition of human trafficking General Definition The three elements of trafficking First element of the trafficking definition: the act Recruitment Transportation Transfer Harbouring Receipt of persons Second element of the trafficking definition: the means Coercion Deception and fraud Abuse of power or of a position of vulnerability The giving or receiving of payments or benefits to achieve the consent of a person having control over another person Third element of the trafficking definition: for the purpose of exploitation A child-sensitive approach Third element: exploitation of children Credibility: a child-sensitive approach Definition of victims of slavery, servitude and forced or compulsory labour The ‘means’ element of the definition of modern slavery Coercion Threat of a penalty Smuggling legislation Chapter 2 Determination of trafficking status by Emma Fitzsimons and Michelle Brewer Introduction Status of an NRM trafficking decision in First-Tier Tribunal (‘FTT’) (IAC) and Upper Tribunal decision-making Identification as a ‘protective duty’ and ECHR, Art 4 National Referral Mechanism Identifying victims of trafficking First responders Duty to notify Single Competent Authority Identification decision-making process Reasonable grounds decision Standard and burden of proof Assessment of evidence of trafficking Indicators of trafficking Complex issues in identification Experiences of victims and identification The conduct of traffickers ‘Credibility’ and mitigating factors Expert evidence Evidence from support organisations Evidence from other experts 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 Request to reconsider the decision Conclusive grounds decision Standard of proof Assessment Timing of decision Consequences of positive conclusive grounds decision Negative conclusive grounds Challenging negative decisions Multi-Agency Assurance Panels (‘MAAPs’) Victims who go missing Asylum seekers Historical victims Common grounds of challenge to negative identification decisions Chapter 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 Chapter 4 Criminal offences of trafficking by Ben Douglas-Jones QC, Michelle Brewer and Pam Bowen CBE 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 Transposition 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 Other offences Orders on conviction Confiscation Forfeiture Civil orders Commentary on MSA Chapter 5 Criminal defences available to victims of trafficking by Ben Douglas-Jones QC, Michelle Brewer and Pam Bowen CBE Introduction Non-punishment principle: International instrument Palermo Protocol Non-punishment principle: Regional instruments ECAT, Article 26 The EU Trafficking Directive Non-punishment principle: Domestic law CPS policy guidance Prosecutorial staged inquiry First stage: Is there a reason to believe that the person is a victim of trafficking or slavery? Second stage: Is there clear evidence of duress? Third stage: Is there clear evidence of a s 45 defence? Fourth stage: Is it in the public interest to prosecute? Abuse of process Excluded offences under Sch 4 Right to a fair trial and/or misconduct by the prosecution Complex cases Is it in the public interest to prosecute the victim of trafficking? Presenting without delay Good cause Article 31 Annex Chapter 6 Victims of human trafficking: at the police station by Steven Bird, Michelle Brewer 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 Crime recording 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 Chapter 7 Criminal court process by Felicity Gerry QC, Paramjit Ahluwalia, Ben Douglas-Jones QC and Philippa Southwell Introduction Police station and charge Post-charge Magistrates’ court First appearance Assessing the evidence Bail application Custody time limits Age assessments Abuse of process Section 45 Summary only offences Either way offences Crown Court PTPH – form and key issues 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 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 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 Absconders Pre-sentencing application to vacate a guilty plea Sentencing Chapter 8 Special measures for victims of trafficking by Michelle Brewer, Philippa Southwell, Rachel Witkin, Dr Eileen Walsh, Kalvir Kaur, Paramjit Ahluwalia and Felicity Gerry QC General principles Understanding the psychological impact of human trafficking Trauma-based mental health problems and legal proceedings Non-visible physical injuries 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 Effective interviewing – best practice Home Office Statutory Guidance on Interviewing Victims of Trafficking Special measures in Immigration and Asylum Tribunal proceedings Tribunal Guidance and Practice Directions The Tribunal Procedure Rules Examples of special measures and reasonable adjustments Intermediaries Anonymity Private hearings 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 Chapter 9 Criminal appeal process by Ben Douglas-Jones QC, Michelle Brewer, Philippa Southwell and Paramjit Ahluwalia Introduction Appeals to the Crown Court Applications to re-open cases under s 142 Committal for sentence – no bar to re-opening 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 McCook correspondence Decisions of Competent Authority 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 on appeal 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/missing Applications to the Criminal Cases Review Commission Appeals by a prosecutor against a ‘terminating’ ruling Chapter 10 International protection claims brought by victims of human trafficking and modern slavery by Michelle Brewer and Gemma Loughran Introduction The role of the NRM identification decision in Tribunal decision making Refugee Convention Introduction Definition Well-founded fear of persecution 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 Credibility European Convention on Human Rights Introduction Trauma-based claims Slavery Servitude Forced or compulsory labour Child labour Positive obligations under ECHR, Art 4 Expert evidence in asylum and immigration proceedings Chapter 11 Safeguarding child and adult victims of trafficking and immigration detention by Shu Shin Luh and Christine Beddoe Safeguarding and immigration detention: children Introduction Policy and guidance Assessment of vulnerability Children detained in immigration or criminal proceedings The duty to notify Missing children County lines trafficking Child trafficking guardians 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 Chapter 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 Chapter 13 Public funding for victims of trafficking by Steven Bird 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 Chapter 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 Chapter 15 Trafficking operations and modus operandi by Hossein Zahir QC, Philippa Southwell, Phil Brewer and Steve Harvey 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 Post Modern Slavery Act 2015 Sexual exploitation Labour exploitation Crime Criminal exploitation Criminal exploitation and ‘county lines’ Trafficking and terrorism An international perspective A domestic perspective Common forms of forced criminality Chapter 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 Chapter 17 Investigating trafficking and exploitation offences by Caroline Haughey OBE, QC, Phil Brewer, Michelle Brewer and Ben Douglas-Jones QC The complainant Investigatory interviews Children PEACE model of investigatory interviewing Planning and preparation Engage and explain Account and challenge Closure Investigations beyond the complainant’s account Other lines of enquiry International material The accused Charging Risk orders Disclosure Trial Chapter 18 Forced criminality and non-criminalisation of trafficked persons in the International Criminal Court by Wayne Jordash QC Introduction Current status on recognition of non-criminalisation under international law Non-criminalisation generally UN Model Law against Trafficking in Persons (2009) Non-criminalisation in armed conflict Non-criminalisation in international criminal law Non-criminalisation and nexus between the trafficking and offending Duress as a defence under international criminal law The ICC’s Rome Statute Evolution of duress in international criminal law Adoption of Art 31(1)(d) of the Rome Statute Article 31(1)(d) and unlawful killing Article 31(1)(d) conditions Threat of imminent death or of continuing or imminent serious bodily harm The person acted necessarily and reasonably to avoid the threat The person acted proportionally in that he did not intend to cause a greater harm than the one sought to be avoided Article 31(1)(d) defence of duress for trafficked persons The Ongwen defence How will the ICC approach Ongwen’s Art 31(1)(d) defence? Article 31(1)(d) in action Mere possibility of death not sufficient Crime and threat analysis Avoiding the threat Proportionality and the gravest of crimes Duress and trafficking Chapter 19 Compliance and trafficking by Philippa Southwell, Michelle Brewer and Ben Douglas-Jones QC Corporate compliance, business and human rights Section 54: Modern Slavery Act 2015 Modern slavery compliance statement Differing organisational structures Content of the statement Consequences of non-compliance Corporate criminal offences Section 54 statements: effectiveness and the future of compliance Joint committee report Independent Review of MSA 2015 Home Office consultation Ethical Trading Initiative’s modern slavery statements evaluation framework Overview Section 1: Structure, business and supply chains Section 2: Policies in relation to slavery and human trafficking Section 3: Risk assessment, prevention and mitigation Section 4: Due diligence processes Section 5: Effectiveness, measured against appropriate key performance indicators Section 6: Training and capacity building Anticipated changes to s 54 Wales California Supply Chains Act 2012 – a model for compliance Index