Supporter Briefing NI: Human Trafficking Autumn 2012
On August 22nd Lord Morrow MLA launched a consultation on his draft Human Trafficking and Exploitation (Further Provisions and Support for Victims) Bill. The consultation lasts until 18 October, Anti-Trafficking Day. CARE very strongly supports the Bill in every respect for the reasons outlined in this briefing. It is vital that as many people and organisations as possible respond to this consultation and affirm its great importance and timeliness. The consultation asks questions about several different aspects of the Bill. As with any consultation, you do not need to respond to all the questions. You may prefer to simply write a letter warmly welcoming the Bill. This briefing has been designed to help you with both forms of response, considering a draft letter first and then going through each question in turn for those who are able to provide a more detailed response. Background For many people it may come as a surprise that human trafficking is taking place in Northern Ireland, but it is, and it is a growing industry. The Government has only just started to collect statistics on victims of human trafficking. The table below illustrates the extent of the problem in recent years, but it is generally acknowledged that this is just the tip of the iceberg: Year
2008/09 2009/10 2010/11 2011/12
Victims of Human Trafficking 11 25 23 27
Sexual Exploitation
Forced Labour
Domestic Servitude
6 17 18 18
3 5 5
2 1
Unknown
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As a consequence of the growing prominence of human trafficking in Northern Ireland, the Northern Ireland Assembly has become more engaged with this key subject in recent months. In February there was a debate on trafficking and also the launch of an All Party Anti-Trafficking Group. However, CARE is very concerned that when it has actually come to policy and updating the law, the Northern Ireland Executive has failed to step up. In January it became clear that the Northern Ireland Assembly would be given responsibility for achieving Northern Ireland’s compliance with the European Directive on Preventing and Combating Trafficking in Human Beings and Protecting its Victims 2011 by April 2013 – now less than a year away. Since then, however, the Department of Justice has only consulted on and proposed two new offences in the current Criminal Justice Bill. These ensure that: a) When offences are carried out abroad, British citizens and residents of Northern Ireland can be prosecuted in Northern Ireland; and b) A loophole which allowed trafficking for labour exploitation within the UK is closed and becomes a crime. 1
Supporter Briefing To only propose these two measures in response to the Directive is extraordinary given the number of changes mandated by the Directive. What a Directive mandates and what one has to do to avoid non-compliance for inadequate implementation are not necessarily the same thing. It may be that the Northern Ireland Executive considers that it only has to make these changes in order to avoid crossing the Commission. What is clear, however, is that such a strategy would constitute a huge missed opportunity and would suggest that Northern Ireland is not really interested in, or concerned about, taking this challenge seriously. The arrival of the Morrow Bill in this context is extremely timely. It has been deliberately framed mindful of what is mandated by the EU Directive, and rather than asking what is the bare minimum Northern Ireland can do to implement the Directive and avoid infringement proceedings, it asks what a fulsome application of the Directive would look like. Lord Morrow’s excellent Bill (plus the two changes proposed by the Northern Ireland Executive’s Criminal Justice Bill which Lord Morrow’s Bill does not duplicate) makes good the limitations of the Executive’s Criminal Justice Bill. Organisations like CARE, who campaigned so hard for the United Kingdom to opt-in to the EU Anti-Trafficking Directive back in 2010 and early 2011 when the Home Office announced its decision to opt-out, have been reminded that persuading the UK to opt in was only half the battle. Now we have to press the Northern Ireland Executive to properly implement the Directive. Please take time to respond to Lord Morrow’s Bill. RESPONDING BY LETTER If you are pressed for time please just send a letter warmly welcoming the Bill and expressing your support for it. The letter can be very brief. It should state that it is a response to Lord Morrow’s consultation and could include one or more of the following points: • •
•
That the Bill is essential because it closes the gap between the very limited changes proposed by the Northern Ireland Executive to make Northern Ireland compliant with the EU Anti-Trafficking Directive and what is actually mandated by the Directive; That you know that a country does not necessarily have to do everything mentioned by a Directive but that, given the seriousness of the crime, you believe that rather than doing the bare minimum in order to avoid getting into trouble with the EU, Northern Ireland should do the maximum, and indeed go beyond the Directive, so that Northern Ireland can become a model of best practice and lead the way in tackling trafficking in the UK; Explain that you recognise that the primary reason for trafficking into Northern Ireland is for sex and thus you particularly welcome his proposal to criminalise paying for sex with would directly address demand for trafficking and do so more effectively than our current laws.
You will find the address to send it to at the end of this document.
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Supporter Briefing RESPONDING TO THE QUESTIONS If you have longer, please answer some or all of the questions in the consultation. The following pages examine each question in turn and provide some relevant material that you might use in making your response. The consultation document is divided into eight sets of questions. The Proposal
Q
The first question of the consultation asks: “Do you agree that there is a case for further legislation to prevent and tackle human trafficking and support victims?”
CARE recommends that you tick the box saying “Yes” to this question. You may wish to write here that you believe strongly that further legislation is required to place Northern Ireland at the cutting edge of tackling human trafficking in the United Kingdom and to ensure that Northern Ireland is fully compliant with, and makes the most of the opportunities provided by, the European Directive on Preventing and Combating Trafficking in Human Beings and Protecting its Victims 2011. Consent of the Victim to be Trafficked The second set of questions is with regard to Clause 1(2) of the Bill, which deals with the issue of the consent of the victim. Human traffickers may attempt to argue that an individual who has been trafficked gave their consent to being trafficked. The Bill outlines a list of factors, such as the victim being a child, which will make evidence of consent or agreement irrelevant. This change is required to meet the requirements of Article 2(4) of the European Directive.
Q
The first question asks: “Do you agree that there should be a list of circumstances outlining when evidence of agreement to travel and be trafficked is irrelevant?”
CARE suggests that you tick “Yes” to this question. You may wish to outline in the comments section that this Clause is required to fulfil the requirements of the European Directive (Article 2(4)) and that it is an important change to ensure that human traffickers can be brought to justice. It is vitally important that human traffickers cannot hide behind the defence of consent where they have coerced an individual into giving their consent. Aggravating Factors The third set of questions refers to Clause 2 of the Bill. Article 4 of the European Directive outlines a list of aggravating factors which make the crime more serious and which will therefore result in a longer sentence. This Clause mirrors the Directive, bringing it into domestic legislation.
Q
The first two questions in this section ask: “Do you agree that a judge should be forced to take into account certain factors that make the crime worse?” and “Do you agree that these factors make the crime worse?”
CARE recommends that you tick “Yes” in response to both of these questions. You may wish to comment under one or both of these questions that this Clause will ensure that a judge sentencing an individual for the criminal offence of human trafficking is forced to consider aggravating factors, such as where the offence was committed against a child or vulnerable adult, or where serious violence was used. It will help to provide a deterrent against those who may consider trafficking vulnerable individuals and will ensure that the severity of the sentence is commensurate with the crime which has been committed. 3
Supporter Briefing You can also point out that this change is important if we are to be fully compliant with, and making the most of, Article 4 of the EU Directive.
Q
The following question asks “Should some of these proposed factors be removed?”
We would recommend that you tick “No”. CARE believes that all of these aggravating factors make the crime of human trafficking more serious, and should be taken into account in determining the sentence that is handed down.
Q
The final question in this section asks: “Do you agree that these factors should mean that the judge must give longer sentences?”
We recommend that you tick “Yes”. You could comment here that you want to ensure that judges are compelled to take into account these aggravating factors and that it is not left to the whim of a particular judge as to whether they are considered. Expanding the Definitions of Exploitation The fourth set of questions refers to Clause 3 of the Bill. Clause 3 proposes to expand the definition section in the Asylum and Immigration (Treatment of Claimants etc) Act 2004 to meet the requirements of Article 2 of the European Directive.
Q
The consultation asks “Do you agree the definitions related to exploitation should be expanded as proposed?”
CARE recommends that you tick “Yes” in response to this question. The European Directive includes a broader context for abuse of vulnerability and threats, and this measure in the Bill would ensure that a more satisfactory definition of human trafficking is set out in Northern Irish Law. The inclusion of “forced begging and criminal activities” contained in this Clause is especially important as this is an activity which does occur in Northern Ireland. Children in particular are trafficked for this purpose, and it is important that the law recognises this. You can also point out that this change is important if we are to be fully compliant with, and making the most of, Article 2 of the EU Directive. Making Paying for Sexual Services Illegal in Northern Ireland The fifth set of questions refers to Clause 4 of the Bill. This Clause seeks to make paying for the sexual services of a prostituted person illegal in Northern Ireland. This Clause has been the most discussed in the media coverage of the Bill so far.
Q
The first question in this section asks “Do you agree that paying for the sexual services of a prostitute should be illegal?”
CARE recommends that you tick “Yes” in response to this question. Prostitution is still the primary form of exploitation for victims of trafficking in Northern Ireland. We suggest that you may wish to write in the comments section that the best way to tackle human trafficking in Northern Ireland would be by tackling demand for the services of those exploited in prostitution. Without a market in which to operate, sexual exploitation will be dramatically reduced. 4
Supporter Briefing Currently, it is illegal in Northern Ireland to buy sex from someone if they are coerced under Article 64A of the Sexual Offences (Northern Ireland) Order 2008. This is a recent amendment to the law and represents a significant step forward. However, the problem has been in proving coercion, rather than the purchase of sexual services. Criminalising paying for sex would simplify the current law. This offence has worked on a very practical level in other jurisdictions. Criminalisation of the purchaser has been practiced in Sweden for more than a decade now, where a law similar to Clause 4 has been in operation, and has seen such success that in 2009 Norway and Iceland both followed suit. Wiretapped conversations between traffickers confirm that Sweden’s zero-tolerance approach has made it a hostile environment for the ‘business’ of selling people in prostitution. Passing a similar law in Northern Ireland is a practical step to reduce demand and turn the tide on trafficking for sexual exploitation.
Q
The second question in this section asks “Do you agree that promising to pay for the sexual services of a prostitute should be illegal, even if the act has not taken place?”
CARE recommends that you tick “Yes” in response to this question. This is because it would be illogical to only prosecute those who have actually engaged in sexual activity with a prostitute rather than those who have an intent to pay for sexual services and who have taken steps to engage in that activity (e.g. promises payment). Given the level of discussion around this particular issue, we have drafted a stand-alone briefing outlining our reasons for supporting this Clause in greater detail. Protecting the Victim from Prosecution The sixth set of questions is in reference to Clause 5(3) of the Bill, which would protect victims of human trafficking from prosecution for criminal offences they committed as a direct result of being trafficked (e.g. being forced to engage in commercial cannabis manufacture). The Bill further seeks to totally exempt children from prosecution for criminal activity if they have been trafficked.
Q
The three questions in this section address the different aspects of this issue: “Do you agree that the victim of trafficking should not be punished for crimes committed in specified circumstances?”; “Do you agree these exemptions should only apply in very limited circumstances where those crimes were the DIRECT CONSEQUENCE of the trafficking?”; and “Do you agree that children (up to the age of 18 years) should get an exemption for crimes committed that were a DIRECT CONSEQUENCE of the trafficking?”
CARE recommends that you tick “Yes” to all three of these questions. In the comment boxes with regard to these questions you might want to write that it is of real importance that victims of human trafficking who have committed an offence related to being trafficked are protected from prosecution. If we fail to enshrine this provision in statute we risk compounding one great injustice with another. Victims of human trafficking have already been subjected to one gross mistreatment, they may have been taken from their homes, usually to a foreign country, and made to work as modern day slaves. How perverse that the first thing that should happen to them when found by the authorities (perhaps working in a cannabis farm) is that they should then be prosecuted because the nature of the work that their slavery involved was illegal. Even if provisions are in place so that prosecutors are guided not to convict people in such situations, it does not change the fact that one trauma, that of being trafficked, is followed by another, that of being subjected to full prosecution in a foreign country. Moreover, there is 5
Supporter Briefing plenty of evidence that source countries have not understood the distinction between a person being prosecuted and then not convicted because they were trafficked, on the one hand, and not convicted, on the other, treating all such people as if they have been in trouble with the law and have a record. This can have a seriously detrimental effect on their ability to rebuild their lives on returning home. You could also point out that this change is important if we are to be fully compliant with, and making the most of, Article 8 of the EU Directive. Investigation, Prosecution and Reducing Trafficking The seventh set of questions refers to Clauses 6 and 13 of the Bill. Clause 6 would require effective investigative tools and training to be made available for investigators and prosecutors. Clause 13 would require the Department of Justice to publish an annual strategy with regard to raising awareness and reducing trafficking. These proposals would meet Articles 9 and 18 of the European Directive.
Q
The first question in this section asks, “Do you agree that investigative tools and training be made available for investigators and prosecutors of human trafficking cases?”
CARE suggests that you tick “Yes” with regard to this question. You may wish to comment that there is little point in having effective legislation to tackle human trafficking if investigators lack the requisite investigative tools and training to identify victims of trafficking and pursue their captors. If we want effective enforcement of the law on human trafficking, we need prosecutors and investigators to be equipped for the task at hand. Therefore it is crucial that provision is set out for this in legislation. You can also point out that this change is important if we are to be fully compliant with, and making the most of, Article 9 of the EU Directive.
Q
The second question asks whether “There should be a legal requirement for the Department of Justice to produce an annual strategy on raising awareness and reducing trafficking in human beings as part of the prevention measures?”
CARE recommends that you tick “Yes” to this question. You may wish to comment that such a strategy would ensure Northern Ireland is compliant with Article 18 of the Directive, and would be helpful in keeping the Department of Justice focused on tackling the crime of Human Trafficking in Northern Ireland. Such a provision would also allow the Department to be held to account if they fail to effectively tackle this issue. Supporting and Assisting the Victim into Recovery The eighth set of questions in the consultation refers to Clauses 8 through 12 of the Bill. These Clauses deliver support and assistance for rescued victims of human trafficking. These Clauses meet the requirements of Article 11 to 17 of the European Directive with regard to this issue.
Q
The first question in this set of questions asks “Do you agree that legislation should set out what assistance and support is required for victims of trafficking covering Article 11 of the European Directive?”
CARE recommends that you answer “Yes” to this question. You may wish to comment that having a requirement to provide assistance and support in law for victims of trafficking would make it more likely that effective assistance and support is provided to victims of this crime Although the levels of service 6
Supporter Briefing provision are currently adequate, they are not mandated by law and without this protection they are present simply at the pleasure of the current administration. It is only if the law is changed along the lines of this Bill that we can be confident that these services will be provided long term. You can also point out that this change is important if we are to be fully compliant with, and making the most of, Article 11 of the EU Directive.
Q
The second question asks “Do you agree that legislation should require clear compensation procedures in line with Article 17 of the European Directive?”
CARE recommends you tick “Yes” to this question. You may wish to comment here that having clear compensation procedures in line with Article 17 of the European Directive will help to ensure that victims of human trafficking will be able to easily discover how to claim compensation for what has happened to them. Without them, victims of trafficking could feel it is not worth claiming compensation or fail to understand that they are entitled to claim compensation. Current measures have been proving inadequate as very few victims have so far been successful in their claims. The sums involved are not vast, but even receiving a small amount can be hugely significant for the victim as it can give them a real, tangible sense that their case was believed and justice has been done, and can help them start their new life. You can also point out that this change is important if we are to be fully compliant with, and making the most of Article 17 of the EU Directive.
Q
The third question is ”Do you agree that each child trafficking victim should have a legal advocate to support them and ensure they receive suitable assistance, in line with Articles 14 and 16 of the European Directive?”
CARE recommends you tick “Yes” to this question. You may wish to comment here that having a legal advocate would ensure that effective support could be given to children who have been trafficked into Northern Ireland. In the UK as a whole 301 of 942 rescued trafficked children were lost from local authority care between 2007 and 2010. Trafficked children are particularly vulnerable and have no one person speaking for their best interests, leaving them at risk of re-trafficking. The Legal Advocate proposed by Clause 11 of Lord Morrow’s Bill will make good this shortcoming, providing a single point of contact and advocate for the child’s best interest. You can also point out that this change is important if we are to be fully compliant with, and making the most of Article 14 and 16 of the EU Directive.
Q
The fourth question asks “Do you agree that there should be “special measures” for trafficking victims if they act as witnesses, in line with Articles 12 and 15 of the European Directive?”
CARE recommends you tick “Yes” to this question. You may wish to comment here that special measures will make it much easier for trafficking victims to act as witnesses in criminal trials, as it extends to them the same treatment available to victims of all sexual crimes who are in fear or distress over testifying. Giving evidence at trial can be a stressful experience for witnesses and this can be especially so for trafficking victims, whatever form of exploitation they experienced. Consequently, any measures which would help to make this process easier (without jeopardising the trial process) would be valuable. It may also help to secure more convictions of those who have committed trafficking offences, an area where 7
Supporter Briefing the UK as a whole has not been particularly strong up to now. You can also point out that this change is important if we are to be fully compliant with, and making the most of, Articles 12 and 15 of the EU Directive.
Q
The fifth question asks “How do you think the proposed legislation will impact on human rights?”
CARE recommends you tick “Positively” to this question. You may wish to comment here that the proposed legislation will positively improve the rights of victims of trafficking in Northern Ireland as it will help to ensure that police are better equipped to tackle the crime of human trafficking and will provide better protections for victims. The Directive was drafted as a piece of human rights legislation, and Lord Morrow’s Bill relies on this human rights-based approach.
Q
The sixth question asks “How do you think the proposed legislation will impact on equality of opportunity?”
CARE recommends that you tick “Positively” here. You may wish to say that the legislation will immeasurably benefit victims of trafficking and provide them with life opportunities that they would not have without such legislation. Other Questions This final set of questions invites comments on the likely cost/financial implications of the legislation, and any other comments you may have on any aspect of the legislation. Should you have any views on the Bill not covered in the points addressed above, this is the place to include them. •
Read the Bill and Consultation papers • Bill: http://www.niassembly.gov.uk/Documents/Legislation/Bills/Private-Members-Bills/ •
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Session-2011-12/human-trafficking-bill/Human-Trafficking-and-Exploitation-Draft-Bill.pdf Consultation: http://www.niassembly.gov.uk/Documents/Legislation/Bills/Private-Members-Bills/ Session-2011-12/human-trafficking-bill/tackle-human-trafficking.pdf
Submit your comments by 18 October 2012, in any of the following ways:
Please Send Your Responses to Or by post to DUP Advice Centre, 19 Church Street, Dungannon, County Tyrone BT71 6AB
Lord Morrow MLA at: mauricemorrow@hotmail.com or maurice.morrow@mla.niassembly. gov.uk Or by post to (Assembly Office), Room 222, Parliament Buildings, Stormont, Belfast BT4 3XX
Telephone: 028 8775 2799
Public Affairs Team / CARE / 53 Romney Street / London SW1P 3RF Tel 020 7233 0455 mail@care.org.uk www.care.org.uk Executive Chariman: Lyndon Bowring Chief Executive: Nola Leach Charity no. 1066963 Scottish Charity SC038911
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