Home » Policy » Submission to the consultation on proposed changes in the law to tackle human trafficking (Northern Ireland)

Submission to the consultation on proposed changes in the law to tackle human trafficking (Northern Ireland)

This week, TTRP made a submission to Lord Morrow’s consultation on his private Bill in the Northern Ireland Assembly on human trafficking.

1.            Introduction

1.1          The Trafficking Research Project (TTRP) welcome the opportunity to make a submission to the consultation on proposed changes in the law to tackle human trafficking.  We also welcome the positive motivation behind this Bill and the commitment to improving Northern Ireland’s response to the crime of human trafficking.  Equally important is the engagement with the European Directive on Preventing and Combating Trafficking in Human Beings and Protecting its Victims, with which this Bill seeks to comply with more robustly.

1.2          There is much in this Bill to be commended, particularly the emphasis on protecting victims.  However, there are a few aspects of the Bill which we advocate should be reconsidered to enable the development of an effective anti-trafficking response in Northern Ireland and may require further consideration.  Within this framework, we advocate a greater emphasis and inclusion of human rights and the broader articulation of the provisions set out in this Bill within the language of rights.

1.3          We are concerned about the very limited acknowledgement of the potential for internal trafficking of UK citizens.  As recent events in Rochdale, which involved a number of convictions for child sexual exploitation and trafficking offences, have highlighted, this is an issue which requires attention.  Research on trafficking and prostitution in Northern Ireland similarly found that the sexual exploitation of children was a reality. The Organised Crime Task Force 2012 Annual report commented that:

In addition to trafficking into Northern Ireland from other countries, there is also an identified problem with internal trafficking for sexual exploitation. This predominantly involves young women in their mid to late teens that are coerced using the ‘lover boy technique’. Girls in local authority care appear to be particularly vulnerable.” (p.35)

This issue needs greater attention within this Bill.

1.4          Regarding Clause 1(2), TTRP has concerns about the wording of the Bill regarding the consent of a victim to be trafficked. Primarily, consent or agreement should be irrelevant in all cases of trafficking once a victim has been identified; we are unclear as to which cases a “list of circumstances outlining when evidence of agreement to travel and be trafficked” is relevant.  This may point to a conflation between “trafficking” and “smuggling” as the creation of such a list suggests the possibility of a situation in which one could be considered a victim of trafficking but also be liable for giving consent to travel/be trafficked.  In other words, if the Bill proposes to “make evidence of consent or agreement irrelevant where it was based on” a particular set of indicators, then what are the implications for those situations which may fall outside of these indicators? Exploitation does not always begin with travel – in other words, one can consent to travel to attain proposed employment, but may be subject to forced labour which qualifies as trafficking.  We are also unclear about how this would work in practice: what is meant by “evidence of an agreement”?

2.            Paying for the sexual services of a prostitute

2.1          While we acknowledge the sentiment behind clause 4 of the Bill, which seeks to criminalise the purchase of sexual services from a prostitute, we advocate that the creation of such an offence is an inappropriate and potentially dangerous approach to the issue of trafficking.  In this respect, we concur with the comments of Amnesty International:

The Trafficking Convention and the EU Trafficking Directive expressly provide measures to be taken for discouraging and reducing the demand for trafficking victims; the criminalisation of the users of prostitutes is not one of the measures they recommend. The proposed change to the law in Lord Morrow’s Bill thus creates an offence outside the trafficking legal framework. Legislators should focus on the provision of essential support services to the victims of trafficking and steps to ensure more successful prosecution of traffickers.

Our opposition to the inclusion of this clause is based upon: our belief that the Swedish model is flawed; on the negative impact of such criminalisation on existing sex workers, particularly in their ability to access health and criminal justice services; the fact such an approach ignores and thus fails to address limitations within the criminal justice system (and other agencies) to effectively address trafficking; the negative influence it has on the broader narrative of human trafficking to the detriment of other kinds of trafficking and exploitation.  While our comments on this issue are brief due to the nature of the submission, we encourage a broader and more in-depth consideration of the issues we have raised.

2.2         The Swedish system

Much is made in anti-trafficking discourse of the Swedish model based on the assertion that, by making the purchase of sex an offence, human trafficking declines.  But as an example, a 2011 report found that:

Because, when reviewing the research and reports available, it becomes clear that the Sex Purchase Act cannot be said to have decreased prostitution, trafficking for sexual purposes, or had a deterrent effect on clients to the extent claimed. Nor is it possible to claim that public attitudes towards prostitution have changed significantly in the desired radical feminist direction or that there has been a similar increased support of the ban. We have also found reports of serious adverse effects of the Sex Purchase Act – especially concerning the health and well-being of sex workers – in spite of the fact that the lawmakers stressed that the ban was not to have a detrimental effect on people in prostitution.[1]

Equally, as Purchasing Sexual Services in Sweden and the Netherlands found, the impact of the law on sex workers was to make such work more dangerous; for example, by reducing the time available to sex workers to assess clients.[2]  Further, the evidence presented in support of the Swedish model has also been found to be lacking.  The official evaluation of the Swedish model, Valuation of the prohibition of the purchase of sexual services, undertaken by the Swedish Chancellor of Justice in 2010, has been routinely criticised for its reliance on estimates, sub-standard statistics, and poor evidence gathering, among other issues.[3]  For example, the report claims “it is reasonable to assume that the reduction in street prostitution in Sweden is a direct result of criminalisation” (p. 35) (emphasis added) and “The overall picture we have obtained is that, while there has been an increase in prostitution in our neighbouring Nordic countries in the last decade, as far as we can see, prostitution has at least not increased in Sweden” (emphasis added) (p. 36). As such, we argue that the Swedish model should be more carefully considered, especially in relation to its alleged ‘success’, and its applicability to Northern Ireland.

2.3         The negative impact of criminalisation on existing sex workers

Sex workers are one of the most marginalised and isolated groups in society.  This has an impact on their ability to access government services such as healthcare.  Clause 4 will serve to further marginalise this group.   For example, say a sex worker is raped, how can this be reported to the police?  If the purchase of sex is illegal, does this mean an end to health outreach services for sex workers?  If so, where can this group access tailored health services?

Ann Jordan notes, in relation to the impact of the Swedish law that:

Although there is no reliable study on the issue, sex workers “express fear of increased violence, as well as an actual increase (in violence)” (Dodillet and Östergren 2011, 23; see also Scoular 2010, 20; Hubbard 2008, 147; Norwegian Ministry 2004, 12-14; Östergren 2004, 2, 5) (p.9)

TTRP advocate that further assessment is needed on this issue before the applicability of this law to Northern Ireland can be established.  Similarly, it also makes those who purchase sex vulnerable.  Anecdotal evidence, which featured in Ostergren’s research, indicated that men who are the victims of crime, such as theft and assault, while using the services of sex workers are unable to report the crime for fear of prosecution.

Petra Ostergren’s critiqued this law and noted:

The National Police Board has also found the law an obstacle to prosecuting profiteers who exploit the sexual labour of others. Earlier legal cases against such men could sometimes be supported by the testimonies of sex-buyers. But these men are no longer willing to assist, since they themselves are now guilty of committing a crime. The Police Board report also points out that sexworkers have fallen into a difficult, constructed, in-between position with regard to the new law. The female sex worker sells sex, but this is not a criminal act. However, because purchasing sexual services is now a crime, the sexworker can be made to appear as a witness in the trial process. She therefore has neither the rights of the accused or the victim.[4]

This raises important issues for the role of sex workers within the criminal justice system, and must be considered more robustly than appears to have been in the development of this legislation.

This consultation document is clear on the fate of prostitutes, where Lord Morrow wishes that ‘they (find) help they need, and not to resort to selling sex’.  Without engaging in the debate as to whether women (and indeed men and transgender individuals) willingly sell sex or are victims forced by circumstance to undertake this activity due to a lack of other income generating opportunities, there is nothing within this Bill or the accompanying consultation document as to the services and ‘help’ that will be provided to this group.  If the Assembly decides to criminalise the purchase of sex, and thereby seriously undermine the livelihood of sex workers in Northern Ireland, then there must be some acknowledgement of the need to provide alternative employment options.

2.4         Ignoring existing problems

The response to human trafficking in Northern Ireland needs to be holistic and to engage with the fact that the response thus far has been relatively poor; as demonstrated in the  low number of convictions, the relatively small number of charges brought, among other issues.  In this respect, it should be noted that the use of Section 15 of the Policing and Crime Act 2009, which criminalises the payment or promise of payment for sexual services of a prostitute who has been subjected to force, has been used in Northern Ireland.  The 2012 Annual Report by the Organised Crime Task Force commented that “To date PSNI have interviewed six men in Northern Ireland in relation to paying for sexual services from a trafficked victim” (p.34 ) Two significant issues can be drawn from this comment: firstly, the lack of charges and/or convictions for this offence and secondly, the small number of those interviewed, which in turn means few charges and convictions.  As such, we argue that there would be greater merit in the effective use of existing legislation to tackle trafficking.  In England and Wales, the proliferation of anti-trafficking legislation, a piecemeal approach to the issue, has ignored the need for the implementation of legislation to be matched by sustainable resources, high-quality training of relevant staff, and commitment from the relevant agencies.

2.5         Impact on the debate on trafficking

Our concern at Clause 4 is also focused on the impact this has on the debate on trafficking in Northern Ireland.  While we acknowledge that the Bill does not ignore the issue of labour exploitation, the attention given to this issue is relatively limited.  The constant framing of the issue of human trafficking Northern Ireland (and elsewhere) through the lens of sex trafficking is potentially damaging to the development of effective services for all victims of trafficking.  In this respect, it is interesting that the issue of forced begging is touched upon in the introduction to the consultation document but then is not revisited anywhere in the Bill or the consultation document.

3.            Victim assistance

3.1          Clause 7 states that a person shall be treated as a victim of human trafficking if there are reasonable grounds to believe that the individual is such a victim and there has not been a conclusive determination that the individual is not such a victim.  There would be benefit in providing in the consultation document further details of what criteria would be used for this process and how this process will be undertaken.

3.2          Clause 5, concerned with the requirement for investigation and prosecution, is important in it recognises the difficulties faced by victims in reporting their (or others) human trafficking experiences.  Similarly, as with domestic violence cases, it is important that criminal proceedings may continue even when a victim has withdrawn their statement.  It is hoped that this aspect of the Bill leads to development of robust investigation processes by the PSNI ensuring less reliance on victims.  Equally, while this provision protects victims, it is important that the Public Prosecution Service and the PSNI work together to put in place measures, from confidence building to security, which will enable victims to participate in the criminal justice system.  Victims do and should play a role in the prosecution process and it is important that their views and interests are given due consideration.  As such, this measure should not be an excuse to ignore their role but rather function as a fall-back position if, the implementation of measures to facilitate their participation do not work.

3.3          TTRP welcome the provision at 5(3) which prevents the prosecution or imposition of penalties for victims who have committed a criminal act as a result of their trafficking.  This goes further than the protections set out at Article 26 of the Council of Europe Convention on Action against Trafficking in Human Beings.  However, it is important to note that the identification of trafficking victims is still problematic in Northern Ireland.  Improved training for relevant agencies, such as the PSNI and UKBA, should enable better recognition of trafficking victims, as well as engagement with the issues around why victims may not self-identify as trafficked (for example, for fear of retaliation against their families or mistrust of the authorities).

3.4          The need for any anti-trafficking strategy to be effectively resourced is vital, thus the commitment at clause 6 is positive.  However, as noted above, it is important that these resources are used effectively.  To enable this, monitoring and evaluation of the training of staff, the development and implementation of policies, the quality of investigations and the number of convictions, for example, should be central.  Similarly, we have found it difficult to obtain accurate data about the state of trafficking in Northern Ireland.  As such, we advocate the need for improved data collection (and the sharing of that data) by UKBA, the PSNI and the PPS, among others, to ensure that resources can be directed effectively.

3.5          TTRP welcomes the commitment to victims found in clause 8, which articulates a strong victim-centred approach to human trafficking in Northern Ireland.  We particularly welcome the fact that assistance and support is not based on the person’s willingness to act as a witness.  This was an issue we raised in our submission to the recent consultation by the Public Prosecution Service.  Under 8(1)(d)(iv) however we would like to see the inclusion of a victim’s economic recovery as part of the provision of assistance.  This is particularly relevant as substantial debts may have been undertaken by the trafficking victim or their families to facilitate their entry to Northern Ireland.  However, economic recovery should also bear in mind the need to avoid the provision of financial resources which will continue to fuel human trafficking – in other words, while the financial burden on victims need to be recognised, this needs to be undertaken within specific parameters.  The further engagement with the economic consequences for a victim of trafficking via the opportunity for victims to apply for compensation is constructive.

3.6          The provision of assistance under clause 8(2) is welcome but it should be highlighted that a number of these services are already provided to victims.  It is important the provision of legal counselling and legal representation is enabled not only in relation to any prosecution brought but also in relation to any immigration issues, thus clause 9 and the provision of civil legal services of victims of trafficking is positive.

3.7          The specific provisions for child victims of trafficking should improve their treatment by the criminal justice system.  While the principle of the legal advocate is certainly a step in the right direction, the provisions as they are set out could be improved.  For example, clause 11(2) requires the legal advocate should ‘advocate that all decisions taken are in the child’s best interests’.  This function seems unnecessary as all decisions taken in relation to children should comply with this principles set out in international and national law.  While the importance of volunteers in carrying out this role should not be under-valued, it is vital that legal advocates are subject to appropriate vetting and possess the relevant qualifications and experience to enable them to effectively undertake this role.  Child victims of trafficking are extremely vulnerable and this vulnerability needs to be taken into account with regard to legal advocates.  Equally, considering the importance of this role, there is no reason why legal advocates cannot be financially remunerated.  While clause 11(7)(b) addresses the issue of training for legal advocates, it is important that this training is accredited by the relevant bodies, takes into account national and international best practice, is the subject of regular assessment and evaluation and is appropriately resourced.

3.8          An annual strategy on awareness-raising and the reduction of trafficking is welcome.  It is hoped that this will lead to the better collation and analysis of data.  It is important that this strategy, and the supporting evidence, is publicly available and includes engagement with local NGOs who are working on this issue.

[1]              The Swedish Sex Purchase Act: Claimed Success and Documented Effects,  Susanne Dodillet and Petra

Östergren, Conference paper presented at the International Workshop: Decriminalizing Prostitution and Beyond: Practical Experiences and Challenges. The Hague, March 3 and 4, 2011, p.3.

[2]              Purchasing Sexual Services in Sweden and the Netherlands, A Report by a Working Group on the legal

regulation of the purchase of sexual services, 2004, p. 20

[3]              See, for example, Ann Jordan, The Swedish Law to criminalise clients: a failed experiment in social

engineering, April 2012, Rights Work;  Laura Agustin, http://www.lauraagustin.com/behind-the-happy-face-of-the-swedish-anti-prostitution-law; Stephen Patterson, http://stephenpaterson.wordpress.com/2010/07/05/the-swedish-sex-law-%E2%80%98we%E2%80%99re-sorry-we-haven%E2%80%99t-a-clue%E2%80%99-report-or-how-to-make-the-channel-tunnel-profitable/

[4]              See Sexworkers Critique of Swedish Prostitution policy,



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