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Au pair?: the tenuous protection of live-in nannies

I have embarked on the journey dreaded by any London parent – the search for affordable childcare. My search so far has shown that rather than spending the average minimum of £12,000 a year, I could get childcare for as little as £3 per hour (well below the national minimum wage), plus bed and board, by getting an au pair. While nurseries and childminders (individuals who care for a limited number of children in their own home) are regulated and inspected by OFSTED, and nannies are considered formal employees and thus due relevant rights, the world of the au pair, who lacks the status of “worker” seems absent from oversight.  The result is that au pairs (often young women) are potentially vulnerable to harsh and inappropriate working conditions. (more…)

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Crocodile tears

The corridors of Westminster have been echoing with the sound of self-congratulation as the Home Secretary, Theresa May, launched her draft White Paper, which includes the Modern Day Slavery Bill, in Parliament on 16th December. Politicians of all hues rushed to condemn the horrors of human trafficking in the UK today. TTRP will be looking at the Bill in more detail as it progresses through Parliament, but a few aspects stand out. (more…)

Theresa May’s love affair with legislation

Theresa May, the UK Home Secretary, took the quiet summer Parliamentary recess to launch her attack on “modern day slavery”; a tiresome, over-emotive phrase which functions as political speak for human trafficking.  While the contents of her Bill have yet to be released, the press briefings on this proposed legislation promise a number of significant anti-trafficking mechanisms, though information about the actual substance of the proposals is thin.  Firstly, the introduction of trafficking prevention orders, which would function like sexual offence prevention orders, so that an individual convicted of trafficking offences “cannot simply go back to being a gangmaster”.  Secondly, the creation of a Modern Slavery Commissioner, an interesting U-turn as the Government appeared hostile to the idea of a Commissioner, previously arguing that the Inter-Departmental Ministerial Group covered the tasks proposed under such a post and that there were no plans to create this a distinct role.  Such a post would, however, increase UK compliance with the EU Directive on Human Trafficking, a positive step forward.  Thirdly, the harmonisation of existing trafficking offences, which are currently scattered across a number of Acts, into a single piece of legislation. Finally, the Bill has the noble aim to “seek a commitment from companies not to use slave labour”. (more…)

Slut-shamed: perpetuating mythologies of (underage) consent

The inevitable media backlash against the trials and convictions of “celebrities” for the sexual exploitation of girls has begun in the UK.  The long-simmering idea that children could be complicit in, and indeed consent to their own abuse, has surfaced.  For example, Eddie Shah, a former owner of the Today newspaper, found not guilty of six counts of rape of a girl under the age of 16, said in an interview:

Rape was a technical thing – below a certain age. But these girls were going out with pop groups and becoming groupies and throwing themselves at them… If we’re talking about girls who just go out and have a good time, then they are to blame.  If we talk about people who go out and actually get ‘raped’ raped, then I feel no … everything should be done against that.

A column by Richard Littlejohn in the Daily Mail focused heavily on the dropping of sexual offences charges against another entertainer, Jim Davidson, accusing the associated police operation, Yewtree, of becoming a witch-hunt.  These public pronouncements, notably by men, have been matched by worrying developments in a recent sexual assault case in which the prosecuting barrister, Robert Colover, described the 13-year-old victim as “predatory in all her actions and she is sexually experienced.”  The defendant was found guilty of sexual activity with a child, among other offences, but was given a suspended sentence.  Criticism, including from the Lord Chief Justice, was levelled at the judge in the case for his comments at sentencing that the victim “looked and behaved older”, a factor he took into account when deciding the sentence.  (more…)

Promises, promises

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.

Making the cut: blacklisting in the UK

Blacklisting is rearing its ugly head again in the UK.  The Scottish Affairs Committee published its interim report in April on the, supposedly historical, practice of blacklisting in the construction industry.  Blacklisting in this context involved placing construction workers on a list because they were part of a union, undertook union activities or raised health and safety concerns.  This list was then circulated to potential employers, so they knew which workers to avoid employing.  In a number of cases, the information provided was wholly false.  What makes blacklisting significant is not only that it has taken such a long time for victims to access any kind of justice, but that so many questions remain unanswered and that, despite legislative and policy efforts to prevent it, the practice still seems to be a feature of life in the construction industry.  For example, allegations have surfaced in Scotland that 28 workers were recently sacked for trade union activity and raising basic health and safety concerns by BFK, a conglomerate of construction companies holding substantial public sector contracts that are believe to include one with Transport Scotland, which builds Scotland’s road network.    (more…)

Economized: working towards the lowest common denominator

TTRP has been focusing on the impact of the financial crisis on employment and exploitation in the UK.  We have looked at its effect on young people obliged to take unpaid internships in the face of a rising inability to access the labour market and at the Government’s attempts to get those in receipt of job seekers allowance to take on unpaid work as a method of retaining this unemployment benefit.  The pressure on poorly paid workers in the UK is steadily increasing through a combination of a “race to the bottom” by businesses to reduce costs and the need by Government to reduce public spending.

For example, one approach has been to reduce public sector employment as the Institute for Fiscal Studies highlights, “The overall level of public sector employment fell by about 300,000, or 5%, between 2010 and 2012…” The National Health Service (NHS) has been particularly badly hit with 50,000 jobs to be cut between 2011-2015; research showed that “nearly every [NHS] trust in the country admitted that they planned to shed staff over the next four years, with some losing up to one in five employees”.  The impact of these cuts was examined in a recent report by Oxfam, which found that half a million people in the UK are now reliant on food banks.  The authors commented

Some of the increase in the number of people using food banks is caused by unemployment, increasing levels of underemployment, low and falling income, and rising food and fuel prices. The National Minimum Wage and benefits levels need to rise in line with inflation, in order to ensure that families retain the ability to live with dignity and can afford to feed and clothe themselves and stay warm. (more…)