This week, TTRP made a submission to the Public Prosecution Service (PPS) to their Consultation on the PPS’ Policy on prosecuting cases of human trafficking.
1. Consultation on the PPS’ Policy on prosecuting cases of human trafficking
1.1 In the last decade, there has been an increase in human trafficking in Northern Ireland; this increase has necessitated a more coordinated and robust approach by Government and civil society. The advent of devolution has enabled Northern Ireland to develop a localised and tailored approach to this issue. Within this context, the work of the Public Prosecution Service (PPS) is vital. Northern Ireland has been previously criticised for its limited response to trafficking and for a lack of prosecutions. The conviction of Matyas Pis in April 2012 sent a strong message to both perpetrators and victims. It is therefore important that this momentum is continued.
1.2 A rights-based approach must be taken to ensure a strong response to human trafficking. For example, the preamble to the Council of Europe Convention on Action against Trafficking in Human Beings notes: “Considering that respect for victims’ rights, protection of victims and action to combat trafficking in human beings must be the paramount objectives…” and sets the stage to mainstream rights throughout the Convention. The PPS is in an excellent position to further develop this approach and place the protection and promotion of the rights of victims at the centre of Northern Ireland’s response to trafficking. However, section 8 of the PPS Policy on the ‘views and interests of the victims’ fails to mention current state obligations to include victims in the criminal justice process. Throughout the Policy, we advocate making greater reference to the relevant legal instruments and Northern Ireland’s human rights obligations.
1.3 TTRP acknowledge that victim might be the appropriate term to use in this Policy but draw attention to its potential ambiguity. For example, some victims may not self-identify as victims. Equally, not all cases will result in convictions – does this mean that the victim is not a victim of trafficking?
1.4 The Trafficking Research Project are encouraged by several aspects of this consultation, including the recognition of internal trafficking, the importance of engaging with victims and the challenges that such victims face. Considering the recent case of trafficking in Rochdale, it is important that too much emphasis is not placed upon the movement of people. While the most effective means of addressing trafficking for the PPS may well be prosecution, a fully holistic approach to the issue is vital as is a coordinated multi-agency response for trafficking victims.
1.5 TTRP are concerned about the potentially disproportionate emphasis in Northern Ireland on sex trafficking, to the detriment of effectively addressing labour exploitation and domestic servitude. The PPS’ Policy discusses the different types of trafficking which exist in Northern Ireland and it is important that greater public awareness is drawn to all aspects of this issue. The Equality Screening of the Policy places an emphasis on this particular interpretation of trafficking in Northern Ireland with reference to the PPS Policy for Prosecuting Cases of Rape, and the impact of the policy on foreign women. While the PSNI’s figures for 2010-11 on trafficking cases show that of the 23 cases of trafficking, 18 of these were women exploited for sexual purposes; it also shows one woman and four men brought to Northern Ireland for labour exploitation. Our concern is that it is this latter group who may not receive appropriate attention and assistance if the focus is too narrowly constrained by the idea of trafficking in Northern Ireland as being foreign women for the purposes of sexual exploitation. In reference to this issue, a 2011 report commented that:
“The exploitation through forced labour that was encountered was not particularly associated with human trafficking. Rather people’s vulnerability to exploitation through forced labour was more likely to be associated with factors such as an individual’s legal status, their English language skills, a lack of access to advice and information, and an absence of appropriate community-based support networks.”
Further, the authors state:
“The exploitation of migrant workers through forced labour may appear to be a relatively minor issue at present, but that makes it all the more important to address the issue with some urgency, rather than to wait until it becomes a more extensive and widespread problem.”
(Forced labour in Northern Ireland: exploiting vulnerability, by Les Allamby, John Bell, Jennifer Hamilton, Ulf Hansson, Neil Jarman, Michael Potter, Sorina Toma, p.4 and 7)
We argue that the conditions described here cannot be excluded from broader efforts to tackle human trafficking in Northern Ireland. Further, the line between forced labour and trafficking is a thin one and to assume too rigid an interpretation of trafficking does little to prevent situations of forced labour arising.
1.6 Similarly, as the prosecution of Matyas Pis showed, trafficking in Northern Ireland is not an activity only undertaken by organised crime. Moreover, our concern is that perpetrators of human trafficking in Northern Ireland have been amorphously designated as ‘organised crime’ with little exploration of what this term actually means. As far back as 2006, researchers from Northern Ireland, giving evidence before a Parliamentary Committee, indicated that there was a lack of information about traffickers and emphasised the need for further exploration. However, the most common claim is that trafficking in Northern Ireland is carried out by paramilitary groups, but this is substantiated in relatively few sources, which have been oft repeated with limited critical examination. Further, the Department of Justice’s (DoJ) Research paper investigating the issues for women in Northern Ireland involved in prostitution and exploring best practice elsewhere, cited comments made by Anna Lo MLA in 2008 at Stormont, that trafficking in Northern Ireland was being carried out by paramilitary organisations and Chinese snakehead gangs; however, the source of her information was not referenced. The DoJ report also mentioned a talk given by a PSNI Detective Inspector in 2006 in which the speaker stated that brothels in Belfast may have connections to loyalist paramilitaries, though in the written record of the event, no specific link to trafficking is made. A similar absence of evidence can be found in a report published by the Northern Ireland Assembly in June 2012, which simply cited a selection of previous reports while commenting that it is difficult to say with certainty who is involved in trafficking, but ‘it is suggested that there is significant involvement of Chinese Snakehead gangs trafficking Chinese women and African, South American and East European women being trafficked by groups linked to organised crime and paramilitary organisations.’ To effectively address human trafficking in Northern Ireland, more information is needed on the perpetrators of this crime.
1.7 It is important that the PPS disabuses human trafficking of the myths which often surround this crime, to not only ensure that prosecutions are successful, but to strengthen the ability of the criminal justice system’s response to it. This can be achieved by, for example, engaging with the media after the prosecution of cases of trafficking and during anti-trafficking training and broader outreach work by the PPS.
2. Victims and Witnesses
2.1 The approach taken by the PPS to the challenges and barriers faced by victims and witnesses is welcome. However, this approach could be further widened to consider the potential for adults to be internally trafficked within Northern Ireland. This recognition should include an acknowledgement that the challenges and barriers faced by this group may be different to those faced by non-national trafficking victims, and this will require some flexibility within service provision by the PPS and other agencies.
2.2 The special needs of trafficked children is mentioned within the Policy but we advocate making the particular vulnerability of this group more prominent and including more concise information on the steps that the PPS will take to protect children.
2.3 On page 9 of the Policy, the PPS comment that “Exploited migrant workers do not always consider themselves to be ‘victims’ of a crime” due to the fact that their situation in Northern Ireland is superior to that of their home country. There would be benefit in expanding this idea to comment on the differing interpretations between Northern Ireland and other countries, of legal work practices, particularly around domestic workers, as well as placing an emphasis on minimum work conditions such as hours, accommodation, paid leave and health and safety issues.
2.4 The provision of legal assistance to victims is important. The Trafficking Research Project have concerns that such service provision may be dependent on a victim giving evidence. This is not appropriate and undermines a victim-based approach to addressing trafficking. Effective participation in the criminal justice process will require legal assistance, which should be provided free of charge. Similarly, the Policy could be improved by developing the issue of compensation for victims, and the provision of support and advice on how to pursue this important aspect of the recovery process.
2.5 While the services, provided after the sentencing of convicted traffickers, to victims may be beyond the remit of the PPS, the organisation should effectively sign-post these services and facilitate access to such services. It is also important that the PPS build good working relationships with NGOs and others to ensure that service provision to victims is coordinated.
2.6 While we acknowledge the comments that blanket immunity may not be possible for victims of trafficking who may have committed crimes, we strongly encourage the PPS to place a heavy emphasis on not pursuing prosecution against a trafficked person where the crime has been committed as part of the trafficking experience. Criminalising victims of trafficking achieves very little and may have serious consequences: victims of trafficking will not to come forward and seek assistance if they believe they may be prosecuted. It also provides traffickers with an additional method of maintaining control over victims. Equally, it would be inappropriate to prosecute children for crimes committed when being trafficked.
2.7 TTRP note the impact on a case in which a victim has withdrawn their support for prosecution. However, we emphasise the need for the PSNI and PPS, working together, to build strong cases which can withstand the withdrawal of a victim’s participation. This may require the employment of methods used in cases such as those of domestic abuse or where victims are equally vulnerable. We have strong concerns, in cases requiring victim participation, of the impact such participation will have on their personal safety and that of their families, particularly those who may reside outside the UK. Unfortunately, the PSNI are not able to guarantee the safety and security of those outside the jurisdiction and this must be fully taken into account in such a situations. The need for victims to understand the prosecution process is vital and the provision of an interpreter may play an important role in enabling this engagement. However, it is important that interpreters have been appropriately recruited and that the privacy, dignity and safety of the victim can be assured. The Anti-Trafficking Monitoring Group previously commented on this issue:
“There were concerns about the limited access and professionalism of interpreting services available in Northern Ireland and how this sometimes forces certain practitioners to rely on interpreters working over the telephone or others whose independence and links with the community speaking their language are not sufficiently clear to be sure that they are not influenced by traffickers” (Wrong kind of victim? One year on: an analysis of UK measures to protect trafficked persons. 2010, p. 103)
2.8 The commitment to inform victims about the progress of their case is an important part of ensuring that victims are able to participate effectively in criminal justice proceedings as well as a method of upholding their dignity. There is no provision within the Policy to inform victims who may no longer be present in Northern Ireland. It is important that victims should not be excluded from participating in this process should they be compelled to leave Northern Ireland. This principle also applies to services offered after the sentencing of convicted traffickers.
2.9 The commitment to provide detailed reasons to victims where a decision not to prosecute has been taken, is important. We advocate that the minimum service provided to victims should be a face to face meeting and that this should be accompanied with relevant support services, including access to counselling, translation and immigration advice. Equally, legal statements such as ‘insufficient evidence’ should be fully explained to victims.
2.10 The opportunity to review the PPS decision to prosecute (or not) is positive; the results of any such review must be clearly communicated to victims with attention paid to the vulnerability of the victim and the impact that the process may have on this individual.
2.11 The commitment within this Policy to the potential employment of special measures in human trafficking cases is positive. It is important that the use of an intermediary as a special measure to assist victims is considered and the court is reminded of the potential of this role by the PPS.
3. Broader issues for the PPS to consider
3.1 The PPS has developed a reputation for operating in a manner which lacks transparency and accountability. Though this is now changing and a greater commitment has been made by the organisation to address this perception, though increased communication with victims and witnesses and more proactive engagement with the media, it is important that an awareness of this perception is applied to the prosecution of trafficking cases. As noted elsewhere, human trafficking is a very serious crime and it is important that the PPS is clearly communicating its approach to these crimes. We welcome the prompt and in-depth response by the PPS to our FoI request relating to human trafficking cases. As this issue is one of strong public interest, we hope that the PPS will continue with this transparent approach to its decision-making and overall operation on this issue.
3.2 The issue of delay within the criminal justice system in Northern Ireland is well-established. While recent inspection reports show that steps have been taken to mitigate this issue, more needs to be done. Considering the sensitive nature of crimes such as human trafficking, the particular vulnerability of victims including questions of immigration status and access to employment and education, it is important that this issue is effectively tackled. A recent FoI request to the PPS revealed that since 1 January 2010, “Of the 16 cases received, prosecutorial decisions have issued in 10 cases at this time involving 19 suspects”. Neither the question or response indicated how long the six cases in which a decision was pending had been ‘live’, but it is important that the response from the PPS, and other agencies, is prompt. To this end, it is vital that the PPS is properly resourced to effectively address this crime.
3.3 There would be benefit in providing more detailed information on how the PPS will train its staff in relation to this Policy. As noted above, the potential for trafficking to be misunderstood is great. It is important that prosecutors in particular, but also other staff members, are aware that not all trafficking is of foreign women for the purposes of sexual exploitation. Equally, further detail would be welcome on who will lead this training, i.e. will it be from an external organisation with expertise on trafficking? It is important that training is assessed and reviewed to ensure it is up to date and serving its purpose appropriately. With regard to the use by the PPS of external barristers in trafficking cases, it is not enough that they understand the Policy but they must also be conversant on the broader issue of human trafficking.
3.4 Finally, there is nothing within the Policy to indicate that there is a complaint procedure available to victims/witnesses in relation to this Policy.
4.1 The Trafficking Research Project broadly agree with the equality screening impact form. We encourage the PPS to pay attention to several vulnerable groups of victims whose particular experiences of trafficking may be undervalued, misunderstood or ignored. These are: those with learning disabilities, who may require special measures to fully participate in the criminal justice system; male victims of trafficking who, for a range of reasons, may find accessing assistance more difficult; and gay, bisexual or transgendered victims of trafficking. With regard to those whose first language is not English, we advise caution in the identification and use of interpreters, with attention paid to the gender of the interpreter in cases where sexual violence may have been a factor.
4.2 We have noted above our concerns about the potential impact that engaging in the criminal justice system may have on the safety and security of victims and their families. As such, we advocate that the policy should engage more robustly with the Article 2, right to life, implications.