Faculty seeks more protection for trafficking victims
Victims of human trafficking should have statutory protection from prosecution, rather than relying on guidelines from the Lord Advocate, the Faculty of Advocates said today.
In its written evidence to the Scottish Parliament’s Justice Committee on the Human Trafficking and Exploitation (Scotland) Bill, Faculty argues that whereas the bill relies on guidelines to save victims from being taken to court for offences committed due to their exploitation, a statutory defence should also be available because a discretion whether to prosecute may not be sufficient. This would provide "a significant additional protection", the paper states.
Although the bill would enact a statutory duty on the Lord Advocate to prepare and publish guidelines for prosecutors, Faculty responds: “We note paragraph 56 of the policy memorandum relates that the introduction of a statutory defence has been rejected because it would place a burden on victims to prove the connection between their offending behaviour and their trafficked status, running contrary to a victim-centred approach. We take no issue with the desirability of having guidelines designed to avoid inappropriate prosecution of victims of trafficking.
“We consider, however, that the availability of a statutory defence would provide a significant additional protection to victims of trafficking, and that it would be desirable to protect victims by this means as well as by means of the Lord Advocate’s guidelines. We see no reason why the Lord Advocate’s guidelines and a special defence should be regarded as mutually exclusive alternatives, as implied in the policy memorandum at paragraph 56, and recommend that both approaches be included in the legislation.
“If an individual is not recognised by the Crown as being, or appearing to be, a victim of trafficking, or the Crown does not accept that there is a link between the offending behaviour and status as a victim, the individual may have difficulty in challenging effectively a decision to prosecute. If prosecuted, it may be very difficult to establish, for example, a common law defence of necessity. This leaves a gap in the protection of the victim.”
The submission also raises concerns about “serious financial consequences” for the innocent owners of vehicles, ships or aircraft which are used in trafficking and are seized by the authorities.
Faculty argues that provisions for interim detention of vehicles, ships and aircraft may have serious financial consequences for owners, who were not the person arrested for trafficking but had supplied the vehicle, ship or aircraft under hire purchase or charter. The owner could apply to a sheriff for release of the property, but may have to provide security.
“There is no ground specified in the bill, other than the provision of security, on which an innocent owner can regain possession of property that has been detained in the interim. It seems to us that the sheriff ought to be provided with broader powers to achieve justice in a case where there has been detention but it is unlikely that forfeiture will eventuate”, the paper maintains.
It also points out that the bill contains no provision for a survivirs' service and survivors' standard code, as suggested in the preceding consultation document, in place of the National Referral Mechanism, which, it comments, is not infallible and operates under guidance which has been criticised judicially as not properly reflecting the UK's international obligations.