Modern Slavery Bill

Debate between Baroness Kennedy of Cradley and Baroness Garden of Frognal

Monday 8th December 2014 Lords Chamber

[Baroness Garden of Frognal]

My Lords, in moving government Amendment 78, I wish to speak also to government Amendments 79 to 84 in this group. I thank noble Lords for tabling Amendments 80A, 82A, 83A and 84A, which are also in this group, and which all relate to the statutory defence for victims.

Since Second Reading, we have reflected on the specific circumstances of child victims who commit offences as a direct consequence of their slavery or trafficking situation, and that is why I am moving these government amendments. They remove the test of compulsion for children who commit an offence as a direct consequence of their trafficking or slavery situation.

Clause 45 establishes a statutory defence for slavery or trafficking victims where they have been compelled to commit an offence as a direct consequence of their slavery or trafficking situation. It is vital that genuine victims, trapped by their circumstances in a world of crime, can feel confident to come forward and give evidence without the fear of being inappropriately prosecuted or convicted. We currently have measures in place to meet this objective through the use of prosecutorial discretion by the CPS, backed up by bespoke guidance. Ultimately, the courts can stop an inappropriate prosecution of a victim as an abuse of process. The Director of Public Prosecutions issued revised guidance earlier this year to prosecutors, setting out clearly the policy on non-prosecution of victims.

However, the pre-legislative scrutiny committee heard significant evidence that victims, including child victims, were still being prosecuted for crimes committed while being trafficked or enslaved. The committee looked at the arguments carefully and on balance recommended the creation of a statutory defence as an added protection for victims. The pre-legislative scrutiny committee also recognised that there are risks involved in the radical step of a new defence. There is a need for appropriate safeguards to ensure that a new defence is effectively applied and is not open to abuse—for example by organised criminals, even if they have once been trafficked themselves. There is a delicate balance to be struck here and we want to get that balance right.

To be effective, the defence must work effectively for both adults and children who may commit an offence while in a slavery or trafficking situation. We have listened carefully to parliamentarians and NGOs which have raised the particular situation of children. To that end, government Amendments 78 to 84 remove the requirement for a child victim to prove that they were compelled to commit an offence. This will ensure that, regardless of whether a child felt compelled to commit an offence, they will be able to invoke the statutory defence when the offence was committed as a direct consequence of their trafficking or relevant exploitation. The other aspects of the test for the defence will remain, notably that a reasonable person of the same age and in the same situation as the child would have no realistic alternative but to commit the offence.

We all want this defence to apply when vulnerable, abused and exploited individuals are forced into criminality. I am confident that the defence as drafted will protect those people, while at the same time ensuring that criminals acting on their own volition cannot use a protection for the most vulnerable to get away with their crimes.

I look forward to listening to the debate as noble Lords move their amendments and will respond to those in due course. However, I hope that the House will support these government amendments, which improve protection for child victims. I beg to move.

[Baroness Kennedy of Cradley]

My Lords, I shall speak to Amendments 80A and 82A.

I very much welcome the Government including a non-prosecution defence in the Bill. It is right to target the real criminals who wallow in the wealth that they have made from exploiting the vulnerable. They have to be stopped from getting clean away. A non-prosecution defence for victims is critical to achieving this. Not only will it protect the human rights of adults and children and stop them being punished for the crimes of their traffickers and slave masters, it will ensure from the outset that victims are seen as witnesses to enable the successful prosecution of traffickers and slavers, so that the real criminals are brought to justice.

I also welcome the government amendments to remove the element of compulsion before the non-prosecution defence can apply for children. Where my position differs from that of the noble Baroness is that my Amendments 80A and 82A seek to remove the inclusion of a “reasonable person” test before the non-prosecution defence applies to adults and children. I shall explain as simply as I can why I think it is necessary to remove this “reasonable person” test for adults, and particularly why it has to be removed for children.

First, the addition of a reasonable person test is an extra hurdle for a non-prosecution defence that does not exist in international law. Article 8 sets just two tests for a non-prosecution defence to apply: that a person’s involvement in criminal activities needs to be compelled and a direct consequence of their being trafficked. Clause 45 therefore goes beyond what we need to do to bring the UK into compliance with our international obligations. To quote Parosha Chandran, an expert barrister in the field of human trafficking, its inclusion is “a potentially unlawful tier” that does not exist in Article 8 of the EU directive on human trafficking.

Secondly, the UK has many joint investigations with police forces in other countries. This is necessary because the organised criminal networks we all seek to prosecute operate transnationally. For example, a gang may force trafficked victims to steal from museums in London, Florence, and Paris, and threaten to harm their families if they do not do so. In this situation, Article 8 would be correctly and swiftly applied in France and Italy. Therefore, the victims would be free from the risk of prosecution and would be able to stand as credible witnesses in the criminal prosecutions of the organised criminal network which trafficked them. However, if the authorities in France and Italy asked for the assistance of the UK in approaching trafficked victims who committed robberies in London in order for them to give evidence against the network, the reasonable person test would mean that the UK could not give any guarantees in this regard. The UK would be forced to say that the trafficked victims would be acquitted only if the jury accepted that the conditions of the test were satisfied. Have the Government considered how the inclusion of this test may impact on our cross-border operations to ensure that traffickers are prosecuted?

Amendment 82A seeks to remove the reasonable person test for children. The particular vulnerabilities of children have been discussed many times in this House throughout our discussions on the Bill. Children specifically should not have to satisfy a reasonable person test before a non-prosecution defence applies for three reasons. First, the addition of a reasonable person test goes further than our own existing law for children. In the landmark case of R v L and others the Lord Chief Justice and his colleagues pronounced that only two questions must be addressed for the non-prosecution principle to apply to child victims: age and the criminal offence need to be,

“consequent on or integral to the exploitation”.

This is mirrored in the current CPS legal guidelines on human trafficking as regards children, where it states:

“When considering whether to prosecute a child victim of trafficking, prosecutors will only need to consider whether or not the offence is committed as a direct consequence of, or in the course of trafficking”.

This guidance does not put a third legal reasonable person test into the guidelines after that landmark case. The CPS guidelines repeat the two tests necessary for a non-prosecution defence to apply, namely age and if the offence is directly due to the trafficking. So if Clause 45 is passed unamended, it will go further than our existing law and our obligations under international law. Therefore, when the CPS guidance is rewritten following the passage of this Bill, it will end up being tougher than it is now. The reasonable person test keeps the compulsion test in, but in a different form of words. It will lead to more prosecutions being sought, not fewer.

--- Later in debate ---

[Baroness Garden of Frognal]

My Lords, I think, perhaps, that we will need to discuss this further before Report, because, as I said, this list was drawn up in consultation with the DPP and the CPS. I presume there was a reason for putting those particular items there; it is subject to review and the discretion of the people concerned.

[Baroness Kennedy of Cradley]

I thank the noble Baroness for her reply and the way in which she has responded. I hope she will reflect on the points made by many noble Lords. We would welcome the opportunity for further discussion on this point. If the CPS has discretion—as it always does in all cases—on the threshold of evidence brought to it by the police, I do not see why a schedule of this detail is necessary. Though it is open to amendment, the time it would take for a statutory instrument to go through this House would be time spent by a victim in the criminal justice system; the trafficker would get clean away. The most serious might still need to be included on a list, but the unintended consequence that may arise by us producing something of such length and detail is that we end up with a traffickers’ charter—a recipe for disaster, as described by a barrister and QC. Obviously, I will withdraw the amendment today, but I welcome the further discussion that the noble Baroness has offered before Report. I beg leave to withdraw the amendment.