The current laws on human trafficking in Scotland have developed in a piecemeal fashion over several years and are located in different pieces of legislation. It has been recommended for the UK as a whole that bringing together legislation on human trafficking into one dedicated law would be beneficial. The Equality and Human Rights Commission (EHRC) Inquiry into Human Trafficking in Scotland made the same recommendation specifically for Scotland.
However, we believe that this strategic and collaborative approach needs to extend beyond 2014. Because the current process has no basis in law there is no obligation on the Scottish Government to continue the process or something similar in the future. Establishing a statutory duty for development of a multi-agency strategy to address human trafficking would guarantee this good work would continue and be developed.
The proposal to require Ministers to report publicly on progress towards the Strategy would help keep the Scottish Government focused on tackling human trafficking and provide a way to hold the Government to account if it fails to take effective action.
The proposal that the Strategy should be developed in collaboration with a wider range of agencies not currently represented in the ATPG would enable more agencies that come in to contact with victims of trafficking to contribute to the development of Scotland’s response to trafficking.
The Westminster Government has announced that it will bring in a Modern Slavery Bill to consolidate existing legislation on human trafficking. However trafficking offences are a devolved matter and the existing offences in Scotland are not identical to those in England and Wales.
The current offences on human trafficking in Scotland are inconsistent. As reported by the EHRC Inquiry the two main trafficking offences in two different laws describe the “acts” and the “means” of trafficking a person in different ways. It would be far better to have one piece of legislation and one criminal offence as proposed in which the same definition of trafficking is used whatever the form of exploitation a person is subjected to.
Moreover the existing offences do not include the full UN definition of trafficking (also used in the Council of Europe Anti-Trafficking Convention and the EU Anti-Trafficking Directive). The Group of Experts report into UK compliance with the Convention highlighted these incomplete definitions and recommended they should be addressed. We strongly support the proposal for a new single criminal offence based on international law.
It is particularly concerning that the current offences do not cover all forms of sexual exploitation nor do they explicitly cover some other forms of exploitation set out in the EU Directive. The GRETA report specifically recommended “that the Scottish authorities should expand the scope of trafficking for the purpose of sexual exploitation to cover all the activities included in the Sexual Offences (Scotland) 2009 Act.”
We agree with the proposal to create a new offence of aiding, abetting or attempting to commit human trafficking, which would fulfil the obligation of Article 3 of the EU Directive (and the similar provision in Article 21 of the European Convention).
The 2013 Anti-Trafficking Monitoring Group report supports the proposal that this multi-agency collaborating approach should formally include those involved in supporting victims of trafficking.
There is little point in having legislation to tackle human trafficking if investigators and prosecutors lack the requisite tools, training and coordination to identify victims and prosecute perpetrators. We support the proposal to create a statutory duty to investigate indicators of human trafficking and slavery and requiring the necessary resources, training and investigative tools be made available, which will fulfil the Scottish Government’s obligations under Article 9 of the EU Directive.
Evidence given by police officers to the Centre for Social Justice Inquiry on modern day slavery “suggests that most police forces do not prioritise cases of human trafficking and modern slavery because their strategic assessments and, therefore, their senior managers, do not demand it.” The proposal for a legal duty for HM Inspectorates to assess the performance of Police Scotland and the COPFS in relation to the duty to investigate human trafficking and publish these findings will ensure that human trafficking is a high priority for investigation and prosecution and one on which the performance of the Police and Prosecution services is held accountable.
The proposal for a statutory requirement to consider asset recovery in every investigation would result in seizure of more illegally obtained assets, effective disruption of organised trafficking, deterring potential traffickers and recovering some costs of enforcement and investigation. The EHRC Inquiry found little use of asset recovery powers to target human trafficking activities in Scotland and recommended that law enforcement agencies should make more use of these powers.
This proposal would prevent prosecution or the application of penalties on victims of trafficking for criminal offences they have committed as a direct consequence of having been trafficked. It would not provide a blanket immunity from prosecution.
In the case of adult victims the proposal contains the possibility for prosecutions to proceed in circumstances where it is “strictly necessary” and in the public interest similar to current COPFS guidance on prosecuting defendants who are victims of trafficking. However, we have some concerns over the term “strictly necessary” and would recommend the Human Trafficking Bill includes a more detailed definition of what circumstances might override the basic presumption not to prosecute, and that this should be restricted to the most serious and exceptional cases not just any crime that would ordinarily proceed on indictment as presently operates.
This proposal for a comprehensive Survivors Service with set standards would guarantee access to support and meet our European Convention and EU Directive obligations. National standards for care were recommended by the EHRC report and also on a UK basis by the Centre for Social Justice report.
An independent Survivors’ Service with authority to make decisions about whether there is good reason to believe a person has been trafficked would encourage more survivors of trafficking to enter the service to receive help and assistance. The current system is often criticised because one of the bodies that makes these decisions is the Visas and Immigration Directorate (formerly UK Border Agency). The Centre for Social Justice (CSJ) Inquiry reported a lack of faith in the decisions of UKBA and that victims fear their immigration status would be held against them.
We welcome the proposal for decisions about a person’s status as a victim of trafficking to be made according to a publicly available code and that the Service should publish an annual report. Another way in which transparency and accountability could be improved would be for the decision-making process to have a built in appeal mechanism which the current National Referral Mechanism (NRM) does not have. The unsuitability of judicial review as an appeal process for the NRM was noted in the GRETA report.
We would also recommend increasing the length of the reflection period proposed. The Centre for Social Justice report indicated that many aftercare providers told the inquiry that the current 45 day period was insufficient to prepare a survivor of trafficking for recovery. Research has shown that a high proportion of victims display symptoms of Post-Traumatic Stress Disorder in the first three months and that longer reflection periods can greatly improve chances of providing substantial assistance to victims of trafficking.
Many people are trafficked into and within the UK for the purpose of sexual exploitation. Trafficking is fostered by the demand for prostitution and the ability for traffickers to make money by selling women in this way. Steps need to be taken to address more effectively the demand for sexual services, which exploits the vulnerable and creates a market for human trafficking. Legislation criminalising the purchase of sexual services in Sweden and Norway has had a dramatic effect on the rates of human trafficking and prostitution. Studies have shown that prostitution has been halved since the Swedish law was introduced and researchers at Gothenburg University have shown that Sweden has much lower levels of trafficking than in neighbouring countries Denmark and Finland. The Swedish Police report that they have evidence of traffickers avoiding Sweden and considering it a “bad market” for coerced prostitution.
Sexual exploitation is included in the Palermo Protocol definition of human trafficking. Sexual exploitation and prostitution are inextricably linked. Human life is precious and no one should be bought and sold as a commodity. The Swedish government underlines this concern by stating that ‘international trafficking in human beings could not flourish but for the existence of local prostitution markets where men are willing and able to buy and sell women and children for sexual exploitation.’ (Swedish Ministry of Industry, Employment and Communication (2004) Fact sheet: Prostitution and Trafficking in Women). Further still, we would encourage that a similar approach be taken in Scotland as in Section 6 of the Human Trafficking and Exploitation (Further Provisions and Support for Victims) Bill currently going through the Northern Ireland Assembly which makes it an offence to pay for sexual services. Criminalising the purchase of sex will greatly contribute towards combating trafficking in Scotland.
Taking action to improve victims’ access to compensation
In its report GRETA underlined some of the obstacles victims face in the UK in seeking to claim appropriate compensation (Recommendation 29). Current measures have been proving inadequate as very few victims across the UK have so far been successful in their claims under the Criminal Injuries Compensation Scheme. The proposal for greater focus on asset recovery is a good thing, however, it is important that assets recovered are not only taken by the State (even if used to benefit communities). Compensation orders should also be prioritised so that those who are exploited benefit from the monies confiscated from their abusers.
The consultation period has now ended. Thank you to all who responded.