Human Trafficking and Exploitation (Scotland) Act 2015 (Consequential Provisions and Modifications) Order 2016

Lord McAvoy Excerpts

Tuesday 18th October 2016 Grand Committee

[Lord Hope of Craighead (CB)]

My Lords, I am very grateful to the Minister for his careful introduction to this draft order. I should point out at the very outset that it goes without saying that I am entirely in sympathy with the aims of the Act itself and the draft order for the reasons which the noble Lord has given. The reason I have risen to my feet is to draw attention to two problems with the wording of Article 2, which deals with the detention of a “vehicle, ship or aircraft” in circumstances where a person has been arrested and there are “reasonable grounds” for thinking that it might be forfeited. The article itself is very well laid out and extremely clear in its terms, and it is only because of the clarity of the terms and the way it is laid out that two matters have come to my attention which I respectfully suggest may require further thought.

The broad structure is to identify first the power to detain in paragraph (1) of Article 2. The second is paragraph (2) of Article 2, which says that the,

“vehicle, ship or aircraft may be detained”,

until certain things have happened. It is important for the protection of the individual who owns the article in question, be it a vehicle, ship or aircraft, that the date at which the detention comes to an end—if, indeed, it is to be released from detention—is clearly identified. One has in mind, of course, Article 1 of Protocol 1 to the European Convention on Human Rights, which gives a right to the peaceful enjoyment of one’s possessions, of which one may be deprived only in the public interest and subject to conditions prescribed by law. This is fulfilling the requirement that the conditions should be prescribed by law and it is important that they should be properly set out.

If one works through Article 2(2), one sees that the detention may come to an end when a decision is taken as to whether or not to begin solemn proceedings or, if solemn proceedings are begun against a person arrested for the offence, until certain things happen. I have no complaint about sub-paragraph (a); it is sub-paragraph (b) that begins to open up some possible points of difficulty. Where solemn proceedings are begun, they may result in the acquittal of the individual, which is set out there. That indeed would be a point at which the article would be released from the detention. Heading (ii) refers to conviction and identifies correctly that the question of whether the article is released from detention will depend on whether the High Court or the sheriff, as the case may be,

“decides whether or not to order forfeiture”.

When that decision is taken, if it is not to order forfeiture, it is clear that the detention comes to an end. The problem arises when one looks at heading (iii), which uses the phrase “proceedings are otherwise concluded”. Very properly, the drafter has gone on to seek to identify the stage at which proceedings are otherwise concluded. It begins by saying:

“For the purposes of paragraph (2) … solemn proceedings begin”—

in well-understood circumstances where there is a first appearance or the indictment is served. I have no problem with that part of the article. The problems arise when looking at paragraph (3)(b), which says that,

“proceedings are taken to be otherwise concluded if … the proceedings are deserted simpliciter”.

That is a very clear point of time. When the Crown deserts proceedings simpliciter they are brought absolutely to an end, there are no further proceedings and it is perfectly proper that the article should no longer be detained. It identifies the point of time very accurately.

Under heading (ii), however, we are dealing with a different kind of desertion of proceedings, “pro loco et tempore”, which is a phrase used in the Scottish courts for the situation where the prosecutor decides that the case cannot proceed for the time being because, for example, the witness is seriously ill or absent and the Crown simply cannot lead the evidence needed to enable the proceedings to go on. The judge or the sheriff, as the case may be, has to decide whether it is proper that proceedings should be stayed temporarily for that purpose. He may refuse to do that, in which case it may be that the Crown is driven to deserting the proceedings simpliciter, but we are dealing with a situation where a decision is to accede to the Crown’s request that the proceedings be deserted “pro loco et tempore”, and,

“no further trial diet is appointed”.

The problem with that concluding phrase is that it leaves in the air the date at which one knows for certain that there will be no further trial diet. Under the Scottish system, the prosecution is entirely in the hands of the Lord Advocate. With great respect, I suggest that it might be better to clarify in some way the point of time at which one can be certain that no further trial diet will be appointed. That is frequently done by the Crown Office writing to the accused saying that it has decided to take no further proceedings. If a letter of that kind is written, it binds the Crown not to proceed any further and the date of the letter is be the date on which one knows for certain that the vehicle, ship or whatever it is should no longer be detained. The better way in which to phrase it might be for a certificate by the Lord Advocate himself or herself to be obtained which would identify his or her decision that there should be no further proceedings. That would achieve absolute clarity and ensure that the decision was ultimately taken by the law officer. Given the importance of what we are dealing with, which is really a very serious crime indeed, it would be best to obtain his or her decision that there should be no further proceedings.

The same point arises in paragraph (4), where we are dealing with three things that are added together. First,

“the indictment falls or is for any other reason not brought to trial”.

Secondly,

“the diet is not continued, adjourned or postponed”,

and, thirdly,

“no further proceedings are in contemplation”.

I do not have any problem with the first two, but with the last one, how does one know that,

“no further proceedings are in contemplation”?

Again, the suggestion is that the best way of ensuring certainty about that would be to obtain a certificate from a law officer—preferably the Lord Advocate—which would identify the decision at that level that there should be no further proceedings.

There are some situations in which a statute intervenes to say that if proceedings are not taken within a given period of time the indictment necessarily falls. In summary proceedings there is a cut-off date of, I think, six months—it may be 12 months—but when one is dealing with proceedings on indictment, as we are here, there is generally no absolute cut-off date in Scots law. I am subject to correction but I do not think that the statutes which we are dealing with as background to this order actually lay down a period of time within which the indictment must be brought. One is dealing with this problem in an area where there is no statutory backing to give a certain date at which the detention of the vehicle or whatever it is should be brought to an end, and therefore something has to be written into the order to make this clear.

I emphasise that I am not in any way raising these points to cause problems for the Minister. However, I suggest that in the interests of everybody it is better to be quite sure that one has identified correctly a cut-off date at each of the various stages with which this order is dealing. Article 2 has identified some of them perfectly correctly in accordance with Scots procedure, but in the two paragraphs that I have identified, in Article 2(3)(b)(ii) and Article 2(4)(c), I suggest that there is a lack of clarity and that it would be better for the Minister to take time and advice to see whether that clarity can be provided.

[Lord McAvoy (Lab)]

My Lords, I will take as long as I can so that the Minister can give some attention to what the noble and learned Lord, Lord Hope of Craighead, has said. It sounds fascinatingly complicated to me, but I am sure the Minister’s mind will be applied to it. I thank the Minister for his clear exposition—notwithstanding what the noble and learned Lord said—outlining the procedures, new offences and updating of powers, particularly the co-operation between England and Wales and the fact that the order covers Northern Ireland as well. This is quite sensible co-operation.

As outlined in the Explanatory Notes, the basis of this order, and the basis of the Act passed by the Scottish Parliament, was that the Equal Opportunities Committee of the Scottish Parliament published a report of an inquiry into migration and trafficking in December 2010. That committee heard evidence of problems and issues faced by the diverse migrant communities in Scotland, as well as of the extent of trafficking of persons in Scotland and protection available to victims of trafficking. It also states that the Act makes human trafficking unwelcome—“a more hostile place” is the phrase used. The Scottish Parliament is owed a vote of thanks for turning its attention to this matter, because Scotland has a regular, steady influx of diverse immigrants into the country. I myself am the grandson of immigrants from County Antrim and County Fermanagh in Northern Ireland. This is particularly so in the west of Scotland, but the central belt as a whole has a track record of receiving migrants and assimilating them into the community. The new wave of immigrants, especially from the European Union, the Far East and Asia, may not have precipitated this, but it brings new issues and problems and new standards for assimilating communities in Scotland. The Scottish Parliament has done a terrific job, and I hope it is successful. I thank the Minister again for outlining the issues involved in this order and look forward with interest to his reply to the noble and learned Lord.