As the trials of those accused of operating trafficking rings in Rochdale and Oxford concluded, it became clear that those agencies assigned to protect children, such as social services and the police, were faced with some difficult questions about their failure to challenge the inhibitors to the successful prevention, protection and prosecution of cases of domestic trafficking. In these cases, convictions were primarily gained under section 58 of the Sexual Offences Act 2003 for the domestic trafficking of children for the purposes of sexual exploitation.
The Home Affairs Committee recently published a critical report admonishing these agencies for failing to adequately address the vulnerability of children to trafficking, manifested through the use of “grooming” by adult men of teenage girls. Grooming was defined as
a model of child sexual exploitation in which a group of abusers target vulnerable children…the children are offered gifts and treats in exchange for sex, sometimes with dozens of men on the same occasion [victims] sometimes identify one offender as a ‘boyfriend’… [some] victims are internally trafficked within the UK, being taken to other towns for the express purpose of being ‘given’ or ‘sold’ for sexual exploitation.
The Crown Prosecution Service (CPS) was particularly criticised. Beginning with an examination of the case in Rochdale, the Committee noted that, originally, the CPS declined to prosecute the offenders on the basis of the credibility of the victims. According to evidence from Keir Starmer, Head of the CPS, and the Howard League for Penal Reform, the credibility of the victims was questioned due to multiple factors: many had a prior history of involvement with the police and social services; victim accounts often contained inconsistencies, partly as a result of drug abuse (initiated by the groomer); and some of the victims were considered to have consented to the sexual activity (exploitation). The Home Affairs Committee’s report concluded that the CPS’ “approach to credibility of victims of child sexual exploitation as witnesses was inappropriately cautious and risked leaving the whole category of child sexual exploitation victims unprotected by the criminal justice system.”
A review by the Safeguarding Children Board in Rochdale, undertaken in 2012, looked at similar issues and the lessons which could be learned from the Rochdale experience to develop best practice in protecting children. Though a range of agencies were represented at the review, the CPS was not; a commitment was instead made by the Chief Crown Prosecutor in the North West to “share the learning from the internal review of CPS practice in relation to sexual offences with the Board”. Also missing from the review were the voices and experiences of young people, which were only attached as an addendum, meaning that they were unable to play any role in the development of the new processes by the Safeguarding Children Board, social services or police.
In response to pressure to improve the manner in which the CPS handles such cases, Keir Starmer announced that prosecutors will focus on the credibility of allegations, not on whether the victims were “good victims”. He declared the formation of the National Taskforce on Sexual Violence against Children and the Vulnerable, though gave few details as to the powers or functions of this body or indeed a definition of “vulnerable.” According to the Ministry of Justice, the central objective of this body is to bring together key Government Departments, statutory and voluntary agencies and to “ensure that lessons are systematically learned, that risks are significantly reduced and that it is the perpetrators, not the victims, who feel that the criminal justice system and public institutions are bearing down on them”. As with the Rochdale review, it appears that the voices of the victims, and young people more generally, are not included in this Taskforce.
Keir Starmer also highlighted the new CPS guidance on Prosecuting Cases of Child Sexual Abuse developed in conjunction with a number of agencies concerned with child protection, which takes a more victim centred approach to the prosecution of trafficking and sexual exploitation cases. This new guidance acknowledges the vulnerability of child victims within the criminal justice system and seeks to streamline and clarify the structures of the system as they relate to such victims, making clear of the need, for
the defence agreeing who will be the lead counsel to put questions to the victim in cases with more than one defendant and the length of time given to the cross examination. The ground rules hearings should take place in advance of the day of the trial so that everyone, particularly the victim, is aware of what to expect and how long the proceedings in court should take.
This approach attempts to reduce the trauma potentially experienced by vulnerable victims, for example, by enabling their pre-trial access to counselling and in allowing the use of video evidence or closed courtrooms. This should provide the potential for a positive shift in the culture of the CPS towards vulnerable victims generally, and victims of trafficking and exploitation specifically.
However, the extent to which this guidance becomes a reality is dependent on the training afforded Crown Prosecution Service staff. Hot on the heels of the Home Affairs Committee work came a research report from Anti-Slavery International (ASI) which examined the UK’s implementation of Council of Europe Convention on Action against Trafficking in Human Beings and the EU Directive 2011/36/EU on preventing and combating trafficking in human beings and protecting its victims. The report was similarly critical of the approach taken by the CPS to trafficking cases, highlighting the lack of trafficking training for general CPS staff, the regional differentiation of trafficking expertise within the CPS, and the impact this has on the decision to prosecute. It is thus vital that robust, comprehensive and regularly evaluated training is made compulsory across the CPS on trafficking and exploitation. This training should be rolled out nationally to reduce the likelihood of regional differentiation and the potential for the disparity in the application of best practice in individual cases. This should tackle the concerns raised by the Home Affairs Committee as to a “postcode lottery” on the number and quality of the prosecutions brought based on geographical differentiations.
There is scope for the CPS guidance to be taken further; for example, where it states, “prosecutors should challenge myths and stereotypes at court”, the prosecution should be provided the opportunity to make the particular hallmarks of grooming clear to the jury. Similarly, the ASI report noted the “great variation in the way judges approach trafficking cases” and “jurors’ lack of familiarity with the existence of human trafficking”. This interlinks with the approach taken to the cross-examination of victims and witnesses. Judges should be sufficiently educated on the trauma suffered by trafficking victims and the potential for re-traumatisation within the trial process, to be able to stop further victimisation by overly aggressive or oppressive cross-examination by defence barristers, for example.
A note of caution should be sounded. While the need to improve the treatment of victims of trafficking, exploitation and abuse cannot be underestimated, this should not come at the expense of a devaluation of the rights of the accused. Starmer’s comment that “We do not instinctively question someone who reports a burglary and nor should we a complainant of sexual abuse [a catch-all term which includes trafficking and sexual exploitation]” opens up some fundamental questions about the balancing act required between the rights of victims and the rights of suspects. While better education for judges should also ensure this balance of rights is maintained within the court system, it is important that the CPS’ quest for more positive engagement with victims does not mean that evidence and the credibility of allegations are not thoroughly examined. This is particularly pertinent as the spectre of changes to legal aid hangs over the criminal justice system. The proposed cap on the eligibility threshold for legal aid (i.e. free legal advice) to a household (not individual) income of £37,500 and the new restrictions on the choice of solicitor available to those receiving legal aid, will impact the quality of defence legal advice available. More broadly, the seriousness of the offences under consideration in this post, of trafficking and child sexual exploitation, and the paucity of the response to date from key agencies, means that the impetus for a tailored and coherent response from the CPS and other agencies is pressing.