Blog post by Dr Julia Muraszkiewicz (Trilateral Research) and Professor Ryszard Piotrowicz (Dept of Law and Criminology, Aberystwyth University).
The identification of victims of human trafficking is crucial for their protection, support and recovery. It is also vital for the effective implementation of the non-punishment principle – that people should not be penalised for offences they were compelled to commit in the course, or as a consequence, of being trafficked.
This principle is open to abuse. The exploiters may themselves claim that they have been trafficked, and significant resources are used up in trying to get to the truth. We do not advocate legal immunity from prosecution for trafficked people. Nor do we argue that all trafficked people are completely innocent. But we do contend that the courts must have access to all the relevant evidence in assessing the guilt or otherwise of a person who may have been trafficked.
Why are we saying this now? Because on 19 May 2021, the Court of Appeal of England and Wales, in Brecani v R ( EWCA Crim 731) found that a Conclusive Grounds decision made by the Single Competent Authority (SCA), finding that a person was a victim of human trafficking was not admissible evidence in the appeal of that person against his conviction for serious drug offences. The SCA is part of the Home Office, and is responsible for identifying victims of human trafficking through the National Referral Mechanism (NRM). The SCA gathers information from inside the Home Office and from other external organisations to decide if a person is a victim. The Authority made 10,608 reasonable grounds and 3,454 conclusive grounds decisions in 2020. Of these, 92% (9,765) of reasonable grounds and 89% (3,084) of conclusive grounds decisions were positive: that the person was a victim of human trafficking.
Our problem is not that there has been a miscarriage of justice. If one reads through the whole case, there is significant digital evidence, not available to the SCA case worker who had decided that the appellant was a victim of human trafficking, that he was anything but.
Our problem is rather that the evaluation of the case worker was excluded because she was not considered to be an “expert” for the purposes of giving evidence to the court. It was pointed out that “case workers in the Competent Authority are junior civil servants performing an administrative function which includes making reasonable grounds and conclusive grounds decisions” (para 54). Further, the court stated, “we do not consider that case workers in the Competent Authority are experts in human trafficking or modern slavery (whether generally or in respect of specified countries) and for that fundamental reason cannot give opinion evidence in a trial on the question whether an individual was trafficked or exploited” (para 54). We do wonder if those trained to make the decisions are not considered experts on human trafficking, then who are they?
It appears that not only could case workers not give evidence as experts in court, but also that their conclusive grounds decisions would not be taken into account as admissible expert evidence. The law on admissibility of evidence is fiendishly complex in many jurisdictions, and England and Wales is one of the most fiendish of all. We do not wish to lift up that particular stone.
But this is our point: are we really saying that the Conclusive Grounds decisions of case workers can play no role at all in the assessment in criminal trials as to whether or not the accused person actually was trafficked, and that having been trafficked explains why they committed the offence? Even if the court wanted additional evidence, that would be fine, for instance an expert in psychology who understands the nuances of coercion that is often experienced by victims. But surely, the decision of the SCA is an important piece of the puzzle? The court could then determine the weight to be afforded to the SCA decision and consider it along with a myriad of other evidence and expert testimony.
The whole essence of the non-punishment principle is to recognise the actual truth and not the apparent truth of a person’s situation, to demand an accurate assessment of the extent to which the trafficked person was compelled to act the way they did, in the circumstances at the time. Surely, even if the decision of the case worker does not have the status of “expert” evidence and is therefore not admissible, that should not mean that, conversely, it has no value at all?
It was conceded that these decisions could be taken into account in deciding whether to bring a prosecution in the first place, or in certain other situations (para 40), so they have not been entirely cast aside. But to us, the system’s rigidity in this situation risks hiding important information and insights that might actually promote just outcomes, the avoidance of detriment of the victims, the illumination of the truth, and the achievement of true justice.
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