Written evidence from Hogan Lovells International LLP
Response to the consultation on "the modern slavery bill"
This submission has been prepared in response to the consultation on The Modern Slavery Bill ("the Bill"). Hogan Lovells International LLP has undertaken criminal injury compensation work for a number of years as part of our substantial commitment to provide pro bono legal advice. We assisted the majority of those injured in the 7/7 bombings obtain compensation and over the past 7 years we have concentrated on assisting victims of human trafficking obtain compensation through the Criminal Injuries Compensation Authority ("CICA").
1.1 We welcome the proposals in the Modern Slavery Bill to strengthen the powers of asset recovery and we hope that this will, in turn, increase the use of compensation orders in criminal proceedings in modern slavery cases. It is, however, important to recognise the CICA mechanism of compensating victims as there are many cases where convictions are not possible and assets irrecoverable.
1.2 The CICA scheme is intended to compensate the blameless victims of violent crime and is intended to be a scheme of last resort. The individual is expected to have first sought compensation from the person(s) who caused their injury or loss[1]. We have identified from our work with victims of human trafficking and slavery that obtaining compensation either from the perpetrator, or if that is not possible, through the CICA is fundamentally important to help them rebuild their lives, bring them out of extreme poverty and in turn prevent them being re-trafficked or exploited, as a result of their continued vulnerability. Compensation also furthers the purposes of the criminal justice system by providing some comfort to victims who cooperate with the police.
1.3 In addition to the importance of obtaining compensation for the individual, the UK is bound by its international obligations to victims of human trafficking. The Council of Europe Convention on Action against Trafficking in Human Beings ("the Convention"), specifies under Article 15 (4) 'Each Party shall adopt such legislative or other measures as may be necessary to guarantee compensation for victims in accordance with the conditions under its internal law, for instance through the establishment of a fund for victim compensation or measures or programmes aimed at social assistance and social integration of victims'. The Directive on Preventing and Combating Trafficking in Human Beings and Protecting its Victims 2011/36/EU ("the Directive"), which came into force on 6 April 2013, goes further than the Convention and specifically states under Article 17 that 'Member States shall ensure that victims of trafficking in human beings have access to existing schemes of compensation to victims of violent crimes of intent'. Our existing scheme of compensation for violent crimes of intent is the Criminal Injuries Compensation Scheme 2012 ("the 2012 Scheme"), administered by the CICA.
1.4 Victims of human trafficking are exempt from the residency requirements introduced by the 2012 Scheme. If an individual has been identified as a victim of trafficking in human beings, he or she will be eligible to apply, despite their residency, if they have been 'conclusively identified by a competent authority as a victim of trafficking in human beings'. This is a welcome concession. However, this alone is insufficient to provide victims of human trafficking with access to the compensation, as the residency requirement is not the main barrier to obtaining compensation under the 2012 Scheme. Firstly, the definition of crime of violence under the 2012 Scheme is currently to narrowly defined to allow access to victims of human trafficking and modern slavery. Secondly, the current tariff system is insufficient to adequately compensate victims of human trafficking, while the lack of clarity often makes the process lengthy and therefore expensive to administer. To comply with the UK's international obligations under the Directive, the CICA should ensure that victims of human trafficking have unequivocal and unqualified access to the scheme.
2.1 At present the definition of Crime of Violence under Annex B of the 2012 Scheme is as follows:
Annex B: Crime of Violence
1. This Annex applies in deciding whether a crime of violence has been committed for the purposes of this Scheme. Where a claims officer is satisfied that a crime has been committed it is still necessary for that crime to constitute a crime of violence in accordance with this Annex.
2. (1) Subject to paragraph 3, a “crime of violence” is a crime which involves:
(a) a physical attack;
(b) any other act or omission of a violent nature which causes physical injury to a person;
(c) a threat against a person, causing fear of immediate violence in circumstances which would cause a person of reasonable firmness to be put in such fear;
(d) a sexual assault to which a person did not in fact consent; or
(e) arson or fire-raising.
2.2 The greatest difficulty faced by victims is that the 2012 Scheme does not acknowledge trafficking as a crime of violence in and of itself. Arguably, most victims of human trafficking should fall under Annex B 2.(1)(c), even if they have not suffered a physical injury or sexual assault, as they are often threatened with either direct violence or violence against members of their family. However, this is often very difficult to prove. There are often poor or no records evidencing specific attacks or threats, either because the victims were not permitted to seek medical help, or because they did so under an alias.
2.3 In some applications, the CICA has been willing to accept that trafficking and slavery are crimes of violence, due to the control and exploitation involved. However, reform is necessary to provide certainty in this regard.
2.4 In particular, it is vitally important that trafficking and slavery are recognised as crimes of violence. Otherwise, additional uncertainty is created when awards are sought for psychological damage (such as Post Traumatic Stress Disorder ("PTSD")) resulting from the trafficking and/ or slavery itself rather than specific threats or incidents of violence.
2.5 We recommend the following amendments to Annex B: Crime of Violence, Paragraph 2(1):
2.(1) Subject to paragraph 3, a “crime of violence” is a crime which involves:
(a) a physical attack;
(b) any other act or omission of a violent nature which causes physical injury to a person;
(c) a threat against a person, causing fear of immediate violence in circumstances which would cause a person of reasonable firmness to be put in such fear;
(d) a sexual assault to which a person did not in fact consent; or
(e) arson or fire-raising.
(f) slavery, servitude, forced or compulsory labour and human trafficking.
3.1 The 2012 Scheme operates a tariff system for awards for physical and mental injury. Applicants must have a specific injury that falls within the tariff otherwise they will not be able to claim an award. The CICA appears to require that victims prove, to the criminal standard of proof (ie, through a criminal conviction) that they have suffered the injuries they claim to have suffered. This is higher than the burden of proof required under the scheme. By requiring victims of trafficking to provide this level of evidence of their injuries, and/or to show that there has been a conviction creates an extremely high barrier for applicants.
3.2 There are specific tariffs for periods of sexual abuse. It appears that the motivation for having specific tariffs in sexual abuse cases is that victims of sexual abuse will have suffered an injury of some type, including trauma. We would argue that victims of human trafficking and slavery should be treated the same under the scheme. Depriving someone of their liberty will ordinarily cause trauma to the victim. In the case of victims of human trafficking for prostitution there should be a specific award under either the rape tariff or a slavery tariff that takes into account the severity of the situations faced by the victims who will normally be repeatedly raped on a daily basis and denied the most basic human rights.
3.3 Having a simple award for human trafficking would take into account the psychological damage often attributable and would take into account the loss of liberty and other injuries that victims of trafficking or slavery suffer.
3.4 A specific tariff for trafficking and slavery would provide certainty within the 2012 Scheme and enable victims to have access to the scheme in accordance with international obligations and reduce public costs of administration of determining the correct award under the scheme.
4.1 Victims of modern slavery will almost as a matter of definition have suffered a loss of earnings due to their inability to earn while they are held in slavery. For a loss of earnings claim it is necessary to prove the following:
7. If you are unable to work as a direct result of a criminal injury you may be eligible to claim a loss of earnings payment.
8. Your criminal injury must be serious enough to have resulted in a total inability to undertake paid work, or a very limited capacity to do so. By very limited capacity we mean that the extent of your injuries means that you are not able to undertake more than a few hours of paid work per week. If you have capacity for paid work, but the type of work is limited because of your injuries, you will not qualify for a loss of earnings payment.
9. You must also be able to provide evidence to show that:
• you were in work at the time of the incident; or
• you have an established work history, or a good reason for not having such a history, during the three years immediately prior to the incident; and
• your loss lasted longer than 28 full weeks. The period of 28 weeks will usually run from the date of the injury. You cannot get loss of earnings for the first 28 weeks of loss. [2]
4.2 For victims of human trafficking in particular, it will often be very difficult if not impossible to provide the necessary proof that they were in work at the time of the incident as this would have to be sought from another country that may not have kept records. A further ground for loss of earnings should therefore be established for people who are kept captive on the basis of the length of time they were held.
5.1 There is a general lack of understanding of human trafficking and slavery within the CICA and by CICA tribunal panels. This extends to a lack of understanding of the legal definitions of human trafficking and slavery. The act of trafficking is defined under the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (Palermo Protocol) which was ratified by the UK on 9 February 2006 and Article 4 of the Council of Europe Convention on Action against Trafficking in Human Beings was ratified by the UK on 17 December 2008 and came into force on 1 April 2009. This is routinely misunderstood by the CICA who have previously considered whether a victim was in an equally awful situation in their home country. Therefore, education and training of CICA staff is essential.
5.2 There is also a widespread lack of understanding of witchcraft and juju. Women and children, particularly in Nigeria, are subject to juju rituals before they are trafficked as a means to frighten and control them. The victims are in real fear of immediate violence and harm as a result of the juju rituals. We have dealt with a number of cases in which victims have felt compelled to submit to enforced prostitution out of fear of the curse put upon them, as they were terrified that serious harm would befall them if they did not cooperate. However, in at least one case, the CICA refused to accept that someone would agree to prostitution because of a juju curse. Juju is well understood by human trafficking specialists, but CICA need additional training on the level of fear this instils into victims.
5.3 When a case is appealed, we have found the CICA tribunal panel to be aggressive in their questioning of victims. The CICA tribunal panel are obliged to follow the Practice Direction for First Tier and Upper Tribunals on Child, Vulnerable and Sensitive Witnesses. A victim of slavery, trafficking and child abuse should come under the definition of a sensitive witness, as 'the quality of the evidence given by the witness is likely to be diminished by reason of fear or distress in connection with giving evidence'. We have seen the tribunal require vulnerable witnesses, including those with PTSD, give full evidence on a matter on which judgment had been entered in their favour in the criminal, immigration or family courts, causing the victim additional unnecessary trauma. The tribunal has also on occasion acted aggressively when questioning victims, including those who suffer from PTSD, arguably breaching the victim's right to a fair trial under Article 6 of ECHR by compromising the quality of their evidence.
5.4 CICA has imposed a strict two year deadline for submission of claims, regardless of the victim's circumstances, sometimes without even considering their reasons for being late.
5.5 When victims escape their traffickers, they are usually extremely traumatised by their experience. Indeed, many victims are diagnosed as suffering from PTSD, and require a great deal of assistance to recover and rebuild their lives. They are often unable to consider making an application to CICA. Many victims are not aware that they can claim compensation through CICA until the two year deadline has passed, or do not know how to claim compensation and need assistance to do so. This is compounded by the fact that many victims are not fluent English speakers, due to the nature of human trafficking.
5.6 The reason for the two year time limit is so that CICA can investigate the circumstances of the applicant's claim and apply for relevant medical and police evidence. However, in cases where a victim has been trafficked, it is not clear that a delay in making a compensation application would significantly impact this process.
5.7 CICA has a discretion to waive the two year time limit, but appears to be more and more reluctant to so. We propose that more account should be taken of the unique circumstances and vulnerability of victims of modern slavery when considering whether the two year time limit should be waived. This should particularly be the case when the victims missed their deadline through no fault of their own or because they were too scared to consider making an application earlier due to threats.
5.8 Applications can be rejected due to a lack of cooperation with the police. CICA should have discretion to take account of each victim's reasons for any perceived lack of co-operation with the police. Some victims and their families are threatened with violence if they report their traffickers and abusers and, given the exceptional levels of violence used against these women as routine mechanisms of control, the victims take such threats seriously. Others do not trust the police as a result of bad treatment suffered at the hands of authority figures outside the UK. Further, there are instances in which victims do cooperate with the police to the best of their abilities, but their claim is still refused by CICA because they are not deemed to have cooperated sufficiently. The 2012 Scheme should be amended to take into account victims who may be too frightened or traumatised to give evidence at trial or proceed once a complaint is made.
5.9 It should also be noted that the 2012 Scheme is at odds with Crown Prosecution Service guidance which recognises that 'Trafficked victims do not always wish, or are not always able to, cooperate with the authorities as they often fear the consequences of giving evidence against their traffickers. Victims of forced labour are also reluctant to report: however bad their circumstances, they consider their situation in the UK to be better than that offered in their home country'. The Directive also states at Art 15 that 'to ensure the success of investigations and prosecutions of human trafficking offences, their initiation should not depend, in principle, on reporting or accusation by the victim.' The Directive adopts an integrated, holistic and human rights approach to the fight against trafficking in human beings.
6.1 The current level of emotional and practical support offered to victims of human trafficking has a direct impact on their ability to rebuild their lives, co-operate with the police and apply for compensation.
6.2 Victims of trafficking are often severely traumatised and require a great deal of support to rebuild their lives. The current 45 days is not enough time for this process to happen, let alone for the victim to be ready to make an application for compensation, progress their immigration status and co-operate with the police.
6.3 Applications under the 2012 Scheme take months or even years to resolve, and often do not succeed until the appeals stage due to the difficulties with the scheme mentioned above. Once victims have moved on from the 45 day reflection period, it can be difficult to keep track of where they are, and victims may miss correspondence from the CICA and therefore miss important deadlines that will prejudice their claim.
6.4 There is currently no legal aid available to assist victims of slavery or human trafficking, with applications under the 2012 Scheme, despite Article 12(2) of the Directive stating 'Member States shall ensure that victims of trafficking in human beings have access without delay to legal counselling, and, in accordance with the role of victims in the relevant justice system, to legal representation, including for the purpose of claiming compensation. Legal counselling and legal representation shall be free of charge where the victim does not have sufficient financial resources'.
6.5 An individual may not be compensated under the scheme if there is a chance that the assailant could benefit from the compensation received by the victim. This is an important safeguard to prevent the system being abused. Often until victims have received compensation they remain below the poverty line and vulnerable to being re-trafficked. Having adequate support services available while compensation is being obtained is vital to ensure they are not at threat from being found by their trafficker. If the CICA system was more appropriate and therefore quicker for victims, this would reduce the length of time support through the system would be required.
7.1 The ambiguity and uncertainty in relation to CICA claims for victims of slavery and human trafficking means an increased cost to the CICA. For claims that do not fit easily into the scheme the process lasts much longer and often involves a review and an appeal hearing with additional cost to the state. It is clear from our work with victims of human trafficking and modern slavery that the 2012 Scheme needs to be reviewed and amended in order to have clarity and certainty for victims applying for compensation through the CICA. This would in turn reduce costs. We have detailed our suggested amendments in this response to highlight the problems with the current system.
7.2 The CICA and the 2012 Scheme are governed by the Criminal Injuries Compensation Act 1995 ("the Act"). The Act does not dictate the content of the current CICA scheme. As the 2012 Scheme fails in its obligations to victims of human trafficking and as compensation and support are an important part of the recovery of victims, we suggest that these are areas which should be investigated and reported upon by the Anti-Slavery Commissioner introduced by the Bill, in conjunction with the Victims Commissioner. The public authorities that deal with compensation and support services for victims of slavery also need to be held to account and to receive proper training. We therefore suggest the following amendments to the Bill as follows:
31(1) The commissioner must encourage good practice in the following areas:
(a) prevention, detection, investigation and prosecution of offences under Part 1; and
(b) prevention orders in Part 2; and
(c) compensation and support offered to victims identified in the course of investigations under Part 1.
[1] A Guide to the Criminal Injuries Compensation Scheme 2012, Criminal Injuries Compensation Authority
[2] A Guide to the Criminal Injuries Compensation Scheme 2012, Criminal Injuries Compensation Authority