Lord Advocate releases draft human trafficking victim guidelines

Draft guidelines to prosecutors on dealing with alleged offences committed by people who may be victims of human trafficking or exploitation, have been released by the Lord Advocate, Frank Mulholland QC.

In a letter to the Scottish Parliament's Justice Committee, which is currently considering the Human Trafficking and Exploitation (Scotland) Bill, one of the aims of which is to support and protect victims, the Lord Advocate confirms that the draft was circulated to a wide range of interested parties last month with a request for comment by 23 April. 

Available on the Scottish Parliament's website, the draft anticipates the obligation in s 7 of the bill on the Lord Advocate to publish guidelines, including the factors to be taken into account or steps to be taken when deciding whether to prosecute a victim who has been compelled to commit an offence.

Under the draft, for a child aged 17 or under, if there is evidence that the child is "a credible victim of trafficking or exploitation", then there is a "strong presumption" that the child will not be prosecuted for the offence in question.

For individuals aged 18 or over, a similar presumption will apply if it is established that they are a credible victim of human trafficking or exploitation; that they have been compelled to carry out the offence; and that the compulsion is directly attributable to being the victim of human trafficking or exploitation.

Circumstances are suggested that point to the accused being a credible victim of human trafficking or exploitation – with a warning that the accused may not provide relevant information due to fear or misunderstanding. Lack of official immigration status, someone else having control of their important documents, inability to enter or leave their accommodation, lack of means of access to money, and lack of official records relating to them are all suggested as possible indicators.

Further guidance is provided on considering whether the accused was compelled to commit the offence due to being a victim.

In its submission to the Justice Committee, the Law Society of Scotland argued that consideration should in addition be given to the introduction of a statutory defence for a person who commits an offence as a consequence of having been trafficked.