Tumbling Lassie 2017 – seeing and freeing

Eric Robertson

Advocate Eric Robertson reflects on vital insights shared at the recent 2017 human trafficking seminar held in the Faculty of Advocates.

We don’t even know her name. From the case papers left to us we can however piece together some of her story. We can tell she was exploited and was brave enough to complain. There were people on hand astute enough to notice her situation and give her protection. Critically, she found lawyers to plead her cause and judges moved by their arguments who granted her freedom from her forced labour. The “tumbling lassie” case of 1687 - Reid v Scot of Harden - remains an inspiration to us precisely because what we see there remains shockingly contemporary.

A group of legal professionals, NGO representatives and interested individuals gathered in the Faculty of Advocates’ Mackenzie Building at the end of January to hear five interlocking perspectives on the present day battle against “modern slavery”. This second Tumbling Lassie seminar took place almost exactly 330 years after the Reid case with its stirring declaration: “But we have no slaves in Scotland.” Introducing the seminar, the Faculty of Advocates’ Dean, Gordon Jackson QC, noted how our thinking on slavery can sometimes be inadequate and complacent. The US Civil War might well have been fought over slavery - but it did not end it for all time.

The keynote legal addresses were from the twin perspectives of leading prosecutor and eminent human rights barrister - Alison di Rollo QC, the Solicitor General for Scotland and Parosha Chandran of 1 Pump Court Chambers, London. Key justice policy issues were further explored in a panel session also involving Pam Bowen CBE, Senior Policy Advisor at the Crown Prosecution Service in London with primary responsibility for human trafficking issues.

As we see in the tumbling lassie story itself, the legal issues and arguments only make full sense when viewed in their social and human context.  Andy Bevan, Regional Development Executive of International Justice Mission, explained what was needed for a properly functioning criminal justice system where police, prosecutors, judges and social workers all play their proper part. Resourcing, training, accountability and clear ethical standards are critical to a healthy system and to just outcomes for individuals such as Urmila. That amazing lady was freed from decades of bonded labour in Indian brick kilns and celebrated by voting for the first time in her life – at the age of 75. The objectives that animate IJM’s protection of the poor from violence across the globe are also vital to combatting trafficking in Scotland: rescuing victims; bringing criminal exploiters to justice; restoring survivors and strengthening justice systems.

The passing into law of the Human Trafficking and Exploitation (Scotland) Act 2015 has enabled these objectives to be pursued in an effective and systematic way. People are exploited in different contexts:  commercial sexual exploitation, bonded labour, domestic servitude and the intimidation and subjugation of individuals to carry out criminal acts such as cannabis cultivation or shoplifting. Alison di Rollo QC, as Solicitor General for Scotland, gave an authoritative account of the issues arising in investigation and prosecution in such contexts. She stressed that law enforcement involved collaborative effort, both inside Scotland and across borders – as the Joint Commitment of February 2016 signed by heads of the UK’s prosecuting authorities makes clear.

Since 2012 there have been 36 cases reported to COPFS alleging contraventions of human trafficking and exploitation legislation (involving a number of pre 2015 statutory provisions). A total of seven people have been convicted of 14 human trafficking charges. In addition to that, there have been various convictions for other offences with a trafficking background. It is simply not possible to quantify accurately the scale of human trafficking in Scotland. In 2015 there were 145 referrals of potential victims to the National Referral Mechanism (NRM) for appropriate action.  That represents a 31 per cent increase on 2014 and understates the likely real problem as many potential victims are nervous about consenting to make their situation known through the NRM. Of the 2015 figures, 49 per cent were female, 51 per cent male.  Adults were 71 per cent of the group and 29 per cent children. 66 per cent of male victims were trafficked mostly for labour exploitation; as to female victims, 27 per cent were trafficked for domestic servitude and 59 per cent for sexual exploitation.

“We want to identify victims and support them to safety and recovery.” So says Action Area 1 of the Scottish Government’s Human Trafficking Strategy.  Bronagh Andrew of TARA Scotland told the Tumbling Lassie seminar of how TARA had carried out a focus group consultation on this aim.  TARA had provided interpreters and crèche facilities for the mothers in the consultee group of survivors of exploitation. They then worked on building confidence before a graphic artist recorded experiences, ideas and conclusions on a huge flipchart for all to see. Only 2 of the 9 women had been aware of the NRM process; the women needed the involvement of lawyers and police alert to signs of trafficking before they could grasp their predicament and their route to escape. The crucial importance of tackling these problems is recognised in the joint Prosecutors’ Statement of February 2016 which commits law enforcement authorities to work closely with NGOs (such as TARA) in developing and implementing effective strategies.

There is a particular peril that faces trafficked persons who have not been encouraged or enabled to reveal their situation to the authorities. That is the significant risk that they themselves will be prosecuted for criminal activity.  The Solicitor General made very clear that non-prosecution of victims of trafficking was a matter of particular importance to her.  She remarked that it was a truism that how a society deals with its most vulnerable is a true indicator of its strength.  While England and Wales, and also Northern Ireland, have a statutory defence for slavery or trafficking victims who are accused of a criminal offence, Scotland has taken a different route. Section 8 of the 2015 Act places an obligation on the Lord Advocate to make and publish instructions about the prosecution of a person who is, or appears to be, the victim of a human trafficking offence or an offence under section 4 of the 2015 Act.

The Solicitor General then proceeded to outline the wide temporal and substantive scope of the Lord Advocate’s instructions. She stated that the policy is clear and intelligible, with its genesis in the relative European Conventions and Directive and in keeping with the Scots tradition of independent prosecution in the public interest. The instructions cover the periods of investigation of the offence, the prosecution process and after the conclusion of the proceedings. This last aspect has been applied where the Crown has sought, on the obtaining of credible and reliable information, to have an earlier conviction quashed by the Court. Offences committed in the course of being trafficked or exploited or as a consequence of the trafficking or exploitation are also covered by the instructions. In the panel session, Pam Bowen CBE of the Crown Prosecution Service noted that there was a certain admiration south of the border for the flexibility of the Scottish system. To this was added a comment from the floor that a “both and” system might be preferable still.

The perspective offered by Parosha Chandran presented a challenge in tune with the other presentations: what can each of us do to establish the recognition of the rights of the victims of trafficking? In a spirited and urgent address, she reviewed the legal and statutory roots of protection and reviewed some of the key cases and principles. For people to be given a route to freedom, it is vital that our eyes are open to the tell-tale signs of exploitation and trafficking. For the lawyers, Parosha Chandran also powerfully demonstrated the huge value of being alert to available statutory provisions and remedies -  judicial review and civil actions as well as awareness of the limits and protections within criminal law.

The shadowy world in which trafficked and exploited people move and breathe is hard to penetrate. There is however considerable encouragement from the 2017 seminar that individuals and agencies are, together, steadily gaining ground -  in seeing what is too often hidden from view, in freeing victims and giving them the support they need.

If you would like further information about the topics covered in the 2017 Tumbling Lassie Seminar please contact Eric Robertson at tumbling.lassie@gmail.com.