Faculty calls for statutory defence for offences committed by trafficking victims

Planned new anti-trafficking legislation relies on guidelines by the lord advocate to save victims from being taken to court for offences committed due to their exploitation.

However, the Faculty has argued that a statutory defence should also be available because a discretion whether to prosecute may not be sufficient.

“We consider that the availability of a statutory defence would provide a significant additional protection to victims of trafficking…” said the Faculty.

In written evidence to the Scottish parliament’s justice committee on the Human Trafficking and Exploitation (Scotland) Bill, the Faculty also raised concerns about “serious financial consequences” for the innocent owners of vehicles, ships or aircraft which are used in trafficking and are seized by the authorities.

The Scottish government said in a policy memorandum relating to the bill that current guidance from the lord advocate instructs that, where there is credible evidence the accused person is a possible victim of human trafficking and the specific offence was committed as a direct consequence of the person’s trafficked status, there should be a presumption against prosecution.

The bill would place on a statutory basis a duty on the lord advocate to prepare and publish guidelines for prosecutors, demonstrating protective measures to avoid further victimisation of those who have been exploited and to encourage them to be witnesses against traffickers, said the government.

The Faculty responded: “We note paragraph 56 of the policy memorandum relates that the introduction of a statutory defence has been rejected because it would place a burden on victims to prove the connection between their offending behaviour and their trafficked status, running contrary to a victim-centred approach.

“We take no issue with the desirability of having guidelines designed to avoid inappropriate prosecution of victims of trafficking.

“We consider, however, that the availability of a statutory defence would provide a significant additional protection to victims of trafficking, and that it would be desirable to protect victims by this means as well as by means of the lord advocate’s guidelines.

“We see no reason why the lord advocate’s guidelines and a special defence should be regarded as mutually exclusive alternatives, as implied in the policy memorandum at paragraph 56, and recommend that both approaches be included in the legislation.

“If an individual is not recognised by the Crown as being, or appearing to be, a victim of trafficking, or the Crown does not accept that there is a link between the offending behaviour and status as a victim, the individual may have difficulty in challenging effectively a decision to prosecute. If prosecuted, it may be very difficult to establish, for example, a common law defence of necessity. This leaves a gap in the protection of the victim.”

In relation to confiscation of property, the Faculty said that provisions for interim detention of vehicles, ships and aircraft may have serious financial consequences for owners, who were not the person arrested for trafficking but had supplied the vehicle, ship or aircraft under hire purchase or charter.

The owner could apply to a sheriff for release of the property, but may have to provide security.

“There is no ground specified in the bill, other than the provision of security, on which an innocent owner can regain possession of property that has been detained in the interim.

“It seems to us that the sheriff ought to be provided with broader powers to achieve justice in a case where there has been detention but it is unlikely that forfeiture will eventuate,” said the Faculty.

The full document can be seen here.