Information Note on Trafficking

Transcription

1 Information Note on Trafficking 1. Key Legal Instruments 1.1 Council of Europe Convention on Action against Trafficking in Human Beings 2005 (the "Convention") 1.2 Directive 2011/36/EU on preventing and combating trafficking in human beings and protecting its victims, and replacing Council Framework Decision 2002/629/JHA (the "Directive") 1.3 UK legislation: Modern Slavery Act 2015 (the "Modern Slavery Act") 2. Introduction 2.1 The European Union ("EU") has taken several steps towards combating trafficking in human beings through the adoption of several legal instruments, in particular the Directive which has direct effect in the United Kingdom ("UK"). The purpose of this information note is to provide lawyers and others who are representing or working with trafficking victims with an overview of the legal framework in the UK stemming from EU law. This note is not an exhaustive discussion of that framework, and readers are urged to read the substantive legislative provisions and case law themselves. It begins by considering the Convention, followed by the Directive, and then UK implementation. The state of the law is now such that there is overlap between these areas, but it nevertheless remains helpful to consider them individually. 3. The Convention 3.1 The Convention 1 entered into force on 1 February It was subsequently ratified by the UK on 17 December 2008, coming into force for the UK's purposes on 1 April However, as an international treaty, its provisions do not have direct effect in the UK unless they have been specifically incorporated. The Convention's implementation is overseen by a Council of Europe body called GRETA that assesses the UK's compliance and makes recommendations. GRETA has welcomed the UK's implementation of the Modern Slavery Act, in its 1 CETS No / _1 1

2 Recommendation CP(2016)12 dated 4 November 2016, albeit that it has made recommendations about further measures that should be made The Convention has been ratified / acceded to by 45 of the 47 Council of Europe Member States, most recently Liechtenstein on 27 January 2016 and Turkey on 2 May 2016, with the date of entry into force for these countries being 1 May 2016 and 1 September 2016 respectively. Currently it remains signed, but not ratified, by the Czech Republic. Russia is the only Council of Europe Member State that has not signed the Convention. Although not a Member of the Council of Europe, Belarus has also ratified the Convention (26 November 2013), with it in force from 1 March The Convention contains a raft of detailed substantive provisions to promote the protection, assistance and support of victims of trafficking 3. Article 4 provides the following definition: a. "Trafficking in human beings" shall mean the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs; b. The consent of a victim of trafficking in human beings to the intended exploitation set forth in subparagraph (a) of this article shall be irrelevant where any of the means set forth in subparagraph (a) have been used; c. The recruitment, transportation, transfer, harbouring or receipt of a child for the purpose of exploitation shall be considered "trafficking in human beings" even if this does not involve any of the means set forth in subparagraph (a) of this article; d. "Child" shall mean any person under eighteen years of age; 2 GRETA's Second Evaluation Round Report of 7 October 2016 is available at: 3 See eg Article 5 Prevention; Article 10 victim identification; Article 12 assistance to victims; and Article 13 Recovery and reflection period 11/ _1 2

3 e. Victim shall mean any natural person who is subject to trafficking in human beings as defined in this article." 3.4 The concept of trafficking as defined in the Convention has been confirmed by the European Court of Human Rights ("ECtHR"). In particular, the decision of the ECtHR in Rantsev v Cyprus and Russia (2010) 51 EHRR 1 held that trafficking itself, within the meaning of article 4(a) of the Convention, fell within the scope of article 4 of the European Convention on Human Rights ("ECHR") (prohibition of slavery and forced labour) (see also M v Italy (2013) 57 EHRR 29; CN v United Kingdom (2013) 56 EHRR 24). 3.5 Furthermore, the English courts have recognised, with specific regard to the definition of trafficking in the Convention, that the rationality of a gateway decision that a person is not the victim of trafficking requires a heightened or a more rigorous level of scrutiny, as opposed to an ordinary test of reasonableness: see R(SF(St Lucia)) v Secretary of State for the Home Department [2016] 1 WLR While the Convention provides clear and comprehensive protections for victims, it leaves a significant degree of discretion to signatory States in determining the correct approach towards a discreet and particularly vulnerable category of victims of trafficking, namely those who have committed criminal offences as a result of their trafficking experiences. 3.7 Chapter IV of the Convention is devoted to the substantive criminal law of signatory States, with the general emphasis being on the effective prosecution and punishment of natural and legal persons for their involvement in the trafficking of human beings, including amongst other matters: the criminalisation of trafficking in human beings 4 ; the criminalisation of the use of services of a victim 5 ; the criminalisation of attempts to commit, or to aid or abet such acts 6 ; the potential for imposing corporate liability 7 ; and the provision of sanctions and measures Also contained within Chapter IV is the Article 26 'non punishment provision', which concerns the criminalisation of victims and provides: Each Party shall, in accordance with the basic principles of its legal system, provide for the possibility of not imposing penalties on victims for their Article 18 Article 19 Article 21 Article 22 Article 23 11/ _1 3

4 involvement in unlawful activities, to the extent that they have been compelled to do so. 3.9 It is clear that this provision does not directly provide defendants with a freestanding defence against prosecution in the Member States. It is also notable that, unlike Article 4(c) of the Convention, which effectively stipulates that minors cannot validly consent to their exploitation by traffickers 9, this non punishment provision does not explicitly distinguish between adults and minors The application of Article 26 to individual examples of the prosecution and punishment of victims of trafficking does not yet appear to have been considered by the ECtHR. However, it has been tested in the UK, with varying results that, prior to the Modern Slavery Act, hinged on the application of specific guidance of the Crown Prosecution Service ("CPS") 10. This approach is now superseded (from 26 March 2015) as section 45 of the Modern Slavery Act has introduced a specific statutory defence in the UK for both adult and minor victims The application of section 45 of the Modern Slavery Act is in its relatively early stages but it is hoped at the AIRE Centre that it should be interpreted with reference to the core provisions of the Convention in addition to the Directive (which has its own non punishment provision in Article 8), and in the broader context of international human rights law and instruments, to provide for a strong presumption against the prosecution of victims of trafficking for crimes committed in that capacity. 4. The Directive 4.1 The Directive is an instrument of EU law. Prior to the adoption of the Directive, EU trafficking legislation was contained in three different instruments each of which dealt with a specific aspect of prevention or protection (Council Directive 2004/81/EC; Council Framework Decision 2001/220/JHA; and Council Framework Decision 2002/629/JHA). These instruments were drafted in line with states' obligations to put into place criminal provisions to punish perpetrators and to prevent future acts of trafficking, and much less on the need for the protection of victims ie even where there is no threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, a minor who has apparently consented to being exploited is still a victim See eg R v O [2008] EWCA Crim 2835; R v LM [2010] EWCA Crim 2327; R v N & R v Le [2012] EWCA Crim / _1 4

5 4.2 The Directive is intended to be a comprehensive legislative piece dealing with preventing and combating trafficking in human beings and protecting its victims. It adopts and expands upon the obligations and definitions contained in the Convention: many provisions are similar, including amongst other provisions the concept of trafficking for the purposes of the offences set out in the Directive, in particular in Article The deadline for implementation having expired on 6 April 2013, the Directive is binding on Member States (including the UK), albeit that Member States have some degree of discretion as to how they bring their domestic laws in line with it. This "direct effect" means that a clear, precise and unconditional provision of the Directive can be relied up on directly before a UK court or tribunal, even insofar as the Directive has not been incorporated into domestic legislation. 4.4 From the perspective of victims, protections include: Article 8 of the Directive requires Member States to take necessary measures to ensure that competent national authorities are entitled not to prosecute or impose penalties on victims of trafficking for their involvement in criminal activities which they have been compelled to commit as a direct consequence of being subjected to trafficking Article 9(1) of the Directive provides that criminal proceedings may continue even if a victim withdraws his or her statement, ie proceedings are not dependent on the reporting or an accusation by a victim Article 11(1) and (2) of the Directive require States to provide "assistance and support" to trafficking victims "as soon as" a "reasonable grounds" decision has been taken that a person is a victim of human trafficking. They require States to provide that support "before, during and for an appropriate period of time after the conclusion of criminal proceedings" Article 12(2) of the Directive obliges Member States to ensure that victims have access without delay to legal counselling, and to legal representation including for the purpose of seeking compensation. This should be free of charge when the victim does not have sufficient financial resources Articles 13(1) and 14 oblige Member States to provide assistance, support and protection to child victims of trafficking, with the child's best interests being a primary consideration. This includes in relation to 11/ _1 5

6 physical and psycho social recovery, and finding a durable solution for the child. Within a reasonable time, Member States must provide access to education to child victims, and the children of victims. The obligation to provide assistance and support extends, where appropriate and possible, to families of child victims when those families are in the territory of Member States. Article 16 provides essentially equivalent protections for unaccompanied child victims There are also protections for complainants (adults and children) in criminal investigations and proceedings, in Articles 12, 15 and 16(4) of the Directive Article 17 of the Directive obliges Member States to ensure that victims have access to existing schemes of compensation that are available to victims of violent intent. 4.5 In R(McNiece) v Criminal Injuries Compensation Authority [2017] EWHC 2 (Admin) the English court found that Article 17 does not require the UK to do more than secure for victims of trafficking access to the Criminal Injuries Compensation Scheme with all of its usual rules and exclusions, including where claimants have unspent convictions which led to custodial or community sentences. This decision is currently subject to appeal. 4.6 UK courts and tribunals can refer questions to the Court of Justice of the European Union ("CJEU") in Luxembourg if they have doubts about how to interpret or apply the Directive (and the Supreme Court must refer in such circumstances 11 ). The European Commission oversees compliance with the Directive and has the power to bring infringement proceedings against Member States before the CJEU. 5. UK Implementation 5.1 The UK initially exercised its ability to opt out of the Directive on the basis of its view that the UK already complied with much of the provisions contained in the draft version of the Directive. However, it later applied to opt in to the Directive and its request was accepted by the European Commission. The date of entry into force of the Directive for the UK was 18 October 2011 and, as explained above, the Directive has had direct effect in the UK since 6 April 2013 and is part of the UK's legal order. The UK is required to inform the European Commission as to what it has done to bring UK law in line with the Directive. 11 Per Article 267(3) TFEU, courts of final instance (such as the Supreme Court) must refer questions of interpretation to the CJEU unless the matter has already been decided or is already clear 11/ _1 6

7 5.2 In order to comply with the Directive in England and Wales, Parliament originally made changes to the Sexual Offences Act 2003 and the Asylum and Immigration (Treatment of Claimants, etc) Act 2004 through sections 109 and 110 of the Protection of Freedoms Act Section 59A of the Sexual Offences Act 2003 related to human trafficking for the purposes of sexual exploitation, and section 4 of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004 related to human trafficking for the purposes of labour or other exploitation). These were repealed by the Modern Slavery Act, which received Royal Assent on 26 March 2015, and is now the main piece of primary legislation The Modern Slavery Act provides, in section 2, for a single offence of human trafficking covering sexual and non sexual exploitation. Section 4 of the Modern Slavery Act is clear that it is an offence to commit another offence with a view to committing a section 2 trafficking offence. By section 8 of the Modern Slavery Act the Court has the power to order a convicted defendant to pay reparation to the trafficking victim, where the defendant has the means to pay. There is also a power to make confiscation orders (section 7). Whilst the Court's ability to make compensation and confiscation orders in trafficking cases is not new, it is hoped that these express provisions will increase the number of orders made in such cases. 5.4 Significantly, Part 5 of the Modern Slavery Act establishes a framework for the protection of victims. Section 45 of the Modern Slavery Act provides a defence for victims in relation to what would otherwise be offences committed by them in connection with their trafficking situation, save for in the case of certain serious offences. The test for adults (ie over the age of 18 years) is essentially that they are not guilty of offences which they are compelled to commit as a result of their trafficking situation and a reasonable person with relevant characteristics in the same position as the person concerned would have no realistic alternative to committing the offence. There is a lower threshold for victims under the age of 18 years in that they do not need to establish compulsion and the "reasonable person" test expressly takes account of age as a factor and does not require no realistic alternative to be shown. Part 5 also consolidates the various other protections that victims have including as witnesses in criminal proceedings and in relation to legal aid. 5.5 The Modern Slavery Act also establishes the Independent Anti Slavery Commissioner, an independent office holder appointed by the Home Secretary, 12 Subject to the application of the extent provisions in section 60 of the Modern Slavery Act, depending on which part of the UK is relevant in a given case. 11/ _1 7

8 whose function is to encourage good practice in the prevention, detection, investigation and prosecution of slavery and anti trafficking offences. 5.6 As for the Convention, although the Convention has not been specifically incorporated into the UK legal system through any act of Parliament, the English courts have been willing to apply its provisions (see eg R v LM and Others [2010] EWCA Crim 2327, in relation to Articles 4, 10 & 26, at paragraphs [2] [4]). Furthermore, the Convention is specifically acknowledged in the Explanatory Note to the Modern Slavery Act, in connection with the Directive. However, this is limited, since as the Court emphasised in R(BG) v Secretary of State for the Home Department [2016] EWHC 786 (Admin), although the Convention has been given effect through Government policies, it cannot be invoked as a source of freestanding rights and duties and cannot override legislation that has direct effect. 6. Suggested Practical Steps if you have a Client who you think is a Victim of Trafficking 6.1 The UK has a National Referral Mechanism ("NRM") which operates as a framework for identifying victims of human trafficking or modern slavery and ensuring they receive the appropriate support. 6.2 To be referred to the NRM, potential victims of trafficking or modern slavery must first be referred to one of the UK s two competent authorities ("CA"), namely to either the Modern Slavery Human Trafficking Unit ("MSHTU") within the National Crime Agency ("NCA"); or Home Office Visas and Immigration ("UKVI"). 6.3 Referrals to the relevant CA are made by "first responders". "First responders" include the NCA, the police, UK Border Force, UKVI, local authorities, the Salvation Army, Barnardo's and others 13. Referral to a CA is voluntary and can happen only if the potential victim gives their permission by signing the referral form which the first responder prepares consent is not required from children See the list at us/what we do/specialist capabilities/ukhuman trafficking centre/national referral mechanism The forms are at: trafficking victims referral andassessment forms 11/ _1 8

9 6.4 Following a referral to a CA, decision makers in that CA will assess and make a decision on whether an individual is a victim of trafficking. There are several stages 15 : Stage 1: The decision makers decide whether there are "reasonable grounds" to believe that an individual is a potential victim of trafficking the target timeframe for this decision is 5 days from the receipt of the referral. Further information may be requested. That a person is in fact a victim does not need to be proved at this stage. The first responder and the potential victim are notified by letter. If reasonable grounds are found, the potential victim will be entitled to support and assistance (as mentioned above). He or she will be allocated a place within Government funded safe house accommodation, if required; and granted a "reflection and recovery" period of 45 calendar days Stage 2: the CA gathers further information during the 45 day reflection and recovery period relating to the referral from the first responder and other agencies, in order to work towards a "conclusive decision" as soon as possible after the end of the 45 days depending on the circumstances of the case. The threshold for the conclusive decision is balance of probabilities ie is it more likely than not that the individual is a trafficking victim? The conclusive decision is notified to the first responder and the potential victim The steps after a conclusive decision will depend on whether an individual has been found to be a victim or not. Who to contact If you continue to have concerns or wish to seek clarification on anything contained in this information note then you can contact us at info@airecentre.org or by phone on +44 (0) If for any reason we cannot assist then we will refer or signpost you to another organisation that will be able to help. Please note: information provided in this sheet is current up to 7 June See for more detail: us/what we do/specialistcapabilities/uk human trafficking centre/national referral mechanism. See also the Government guidance at of trafficking guidance for competent bodies 11/ _1 9