The role of victims and witnesses in criminal proceedings
Whilst it is possible to prosecute a case of human trafficking without the victim – usually in circumstances where the police have conducted a pro-active investigation and can evidence the offence through other means – it is more usual to rely on the victim’s evidence to commence a prosecution. Victims, then, are essential in most cases in bringing the crime to the attention of the police. But whilst the victim will be central to commencing a prosecution, the victim is not a party to the criminal proceedings. A criminal prosecution is brought on behalf of the Crown, but the victim is a participant as a witness in those proceedings. Whilst the views of the victim are taken into account, prosecutors do not legally represent them, and cannot act on their behalf. The adversarial system in English law does not accommodate the victim as a third party, nor does the victim have separate representation in criminal proceedings.
It is not necessary, to enable criminal proceedings to commence, for a victim of trafficking to have been referred through the National Referral Mechanism (NRM) in order to confirm their trafficking status. For adult victims of trafficking (those over 18 years), their consent is required to refer them through the NRM; however, some adult victims choose not to be referred. For child victims, their consent is not required to refer them into the NRM.
Victims’ rights in criminal proceedings are set out in the Code of Practice for Victims of Crime, of October 2015 (which incorporates the EU Victim’s Directive 2012/29/EU (the Victim’s Directive), the EU Human Trafficking Directive 2011/36/EU, and the EU Child Sexual Exploitation Directive 2011/92/EU).
Victims and witnesses regularly take significant risks in giving evidence against their traffickers; they often fear the consequences of giving evidence and may be reluctant to support criminal proceedings. Children are particularly vulnerable to trafficking and exploitation and are likely to require extra support. Consequently, victims of trafficking are automatically considered to be vulnerable or intimidated victims and, as such, are entitled to enhanced rights and services to assist them in testifying in court (see ‘Special measures’, below).
Statements from victims of human trafficking (whether adult or child) are [video] recorded as early as possible to be played later at trial. The victim will have the assistance of an interpreter at this stage to assist them in giving their evidence in their first language, or in cases where the victim lacks capacity – either through age or disability – they may have the assistance of an intermediary to facilitate communication between them and the police. In some circumstances, it may be possible to use pre-recorded video cross-examination, enabling a vulnerable victim or witness to be cross-examined by the Defence in advance of the trial. Pre-recorded cross-examination of victims of trafficking and slavery is to commence in limited areas from September 2017. The resultant recording is then played at the trial.
A victim can also make a Victim Personal Statement (VPS). The VPS gives victims an opportunity to state how the crime has affected them – physically, emotionally, psychologically, financially, or in any other way. It also enables the victim to identify the type of support they need, and whether or not they wish to claim compensation. This statement provides criminal justice agencies with a ready source of information on how the particular crime has affected the victim, and is a practical way of ensuring that the sentencing court will consider any harm which the offence caused. The VPS will be served on the court, and the court will be notified whether the victim wishes to read their VPS aloud or whether it should be read by someone else. The VPS is read only upon conviction.
During the prosecutor’s review of the case, the police will continue to inform victims of all decisions concerning prosecution. This may include, for example, the decision to amend the charges or to terminate proceedings. If they are dissatisfied with the decision to amend the charges or terminate proceedings, the victim can seek a review of the decision under the Victims’ Right to Review (VRR) scheme.
The prosecutor, generally, will not meet or discuss the evidence with victims and witnesses before they attend court to give evidence. However, there are limited circumstances when the prosecutor can undertake a pre-trial witness interview with a victim or witness. This might arise when the prosecutor considers an interview would assist in assessing the reliability of the witness’s evidence, or in understanding complex evidence. The purpose is to enable the prosecutor to reach a better informed decision about any aspect of the case, and the interview can take place at any stage in the proceedings (including pre-charge) until the witness starts to give evidence at court. The decision to hold a pre-trial interview with a child or vulnerable adult, though, would need careful consideration; generally, further interviews with children or vulnerable adult witnesses would be avoided so as to prevent trauma from repetition of the account.
Special measures
All victims of trafficking are classified as vulnerable or intimidated and are therefore eligible for special measures to assist them in giving their best evidence at court, and to help to relieve some of the stress associated with giving evidence. Special measures are defined under sections 23–30 of the Youth Justice and Criminal Evidence Act 1999, and include the use of screens to shield the witness from the defendant; live link to enable the witness to give evidence through a televised link to the courtroom; evidence given in private; exclusion from the court of members of the public and the press; removal of wigs and gowns by judges and barristers; and video-recorded interview. Further provisions enable examination of the witness through an intermediary or other aids to communication, which might range from simple letter boards to sophisticated computer equipment. The decision on which special measure will be applied for by the prosecutor will be discussed between the police and prosecutor, following assessment of the victim by the police. However, the decision on what measure is actually used will be at the discretion of the court.
In addition to the special measures outlined above, in order to encourage victims to support criminal proceedings, the prosecutor can make an application to the court for further orders for anonymity, reporting restrictions, and, in cases where the victim has decided to return to their own country but is reluctant to return to give evidence, for them to give evidence through live television link from overseas.
Presentation of the case at court
The burden of proving the guilt of a defendant lies with the Prosecution, which must prove the particulars of each offence against each defendant beyond reasonable doubt; that is, the jury should only convict if they are sure of the defendant’s guilt. There is an assumption of innocence until proof of guilt.
The Prosecution must have at court those witnesses whose statements have been served on the Defence, and upon whom the Prosecution intend to rely to provide testimony, and those that the Defence have indicated they want to attend. The Prosecution has discretion whether to call and examine a witness or to call and tender them for cross-examination. The Prosecution should decide which witnesses give direct evidence of the primary facts of the case and which are marginal, and call those who can give direct evidence. The fact that a witness gives an account at variance with a larger number of other witnesses, and one which is less favourable to the Prosecution’s case, does not necessarily affect the witness’s credibility. Where witness statements have been served on the Defence as unused material, the Prosecution are not under any duty to call the makers of those statements as witnesses.
At the Crown Court, the trial is dealt with by a judge and jury. The judge decides on matters of law, for example, whether evidence is admissible, and manages the trial, ensuring that it is run fairly and properly. The jury decides on matters of fact, and must decide whether a defendant is guilty or not guilty.
Following the opening speech by the prosecutor, each witness will be called to give their evidence. They will be assisted by the prosecutor, who will ask questions to elicit the evidence they have provided in their statements. Following each
witness examination in chief, the Defence lawyer has the opportunity to cross-examine the witness and challenge what they may have said; this will be on the basis of instructions by the defendant. After cross-examination, the Prosecution may re-examine the witness in light of any matters introduced by the Defence. Sometimes the judge may also ask a follow-up question, or seek to clarify a response from the witness.
In cases of trafficking, the challenges facing the prosecutor will not only involve ensuring that the Prosecution witness gives their best evidence and steering them, but also convincing the judge and jury that the testimony of the victims and witnesses supports all the elements of an offence of trafficking or slavery. The most frequent challenge involves the apparent consent of the victims to accept and undertake the work offered by the trafficker, or that they had choices available to them and they chose to remain, or even return to, their trafficker. The judgment in Khan, Khan and Khan,5 which involved a number of workers from the Indian sub-continent who were badly abused and exploited in restaurants owned by the defendants, illustrates this. The victims were able to return to their home country on expiry of their work permits, yet all returned to their same abusive situation, as they were tied by their economic dependency on the defendants. Here, the prosecutor had to draw out these issues from each victim, and corroborate their testimony with other evidence to prove their dependency. Proving the nature and degree of exploitation of the victim is also difficult, considering what is promised and denied, and the extent to which treatment in the workplace offends common standards in the UK.
Other challenges facing the prosecutor include the victim changing their account whilst giving testimony. Often a victim will make a number of statements which may contain inconsistencies, and then introduce further changes in their testimony. Here the Prosecution will need to convince the jury that this is likely to be a normal reaction from a victim who was traumatised, unlikely to be aware of specific dates when events happened (or what parts of the country they were in at material times), when they were not indigenous to the country, or when they may have travelled across several countries during their trafficking situation. Other evidence which can be introduced to confirm these details will be relied upon.
Challenges may also arise in cases where victims have mental health or physical disabilities, chaotic lives, or drug or alcohol dependency, and are often preyed upon by traffickers as they are vulnerable, easy to manipulate, and may be unlikely to report their situation. In such cases, medical evidence may be called to confirm this, and support is given through the use of intermediaries and other special measures to assist the victim in giving their evidence.
When the Prosecution has completed its case, the Defence will present its case by calling the defendant or, in the case of multiple defendants, each defendant will present their case. They may also introduce their own witnesses. Following the evidence of each defendant, the prosecutor will have the opportunity to cross-examine them, as well as their witnesses.
When both the Prosecution and the Defence have presented their evidence, the prosecutor and the Defence lawyer will summarise the evidence from their point of view and present arguments to support their cases: the closing speeches. The judge will then sum-up the evidence to the jury, direct them on matters of law, and send them to a jury room to deliberate and decide whether or not the defendant(s) is/are guilty. The jury will return with their verdict; if not guilty, the defendant(s) will be discharged. If the jury cannot agree, the judge will send them out again to deliberate further and reach a majority verdict (at least ten of the 12 jurors must agree). If they still cannot reach a majority verdict, the jury will be discharged, and it will be for the prosecutor to decide whether a re-trial is appropriate. In cases where the jury verdict is guilty, the defendant(s) are likely to be remanded in custody, the judge will order sentencing reports, and the case will be adjourned for a few weeks to enable the reports to be completed.
Sentencing and ancillary orders
Sentencing is a decision for the judge, but prosecutors offer assistance to the sentencing court in reaching its decision as to the appropriate sentence. Whilst there are sentencing guidelines prescribed in legislation for each criminal offence, a person found guilty of human trafficking or slavery and forced labour in the Crown Court is liable on conviction to imprisonment for life. However, this is not mandatory, and there is judicial discretion in determining the sentence in each case and for each defendant, taking into account the culpability of the defendant and the harm caused to their victim(s).
The sentence will be influenced by a number of factors, including the circumstances of the case, the impact that the crime has had on the victim, and relevant case law – especially guideline cases from the Court of Appeal. Other factors will include the seriousness of the crime and any relevant previous convictions of a defendant. It is vital that the court has all the antecedent history of a convicted person prior to sentencing; this may be indicative of the dangerousness of the offender or provide an insight into the individual’s criminal career. Foreign antecedent history should also be considered. Only previous offences which are ‘spent’ will not be considered by the court. This means that the offender is treated for all purposes in law as though he or she had not committed or been convicted of the offence. The judge must pass a sentence that is fair considering the gravity of the offence and the particular circumstances of the offender.
The judge will also consider aggravating and mitigating factors, which may increase or reduce the sentence. An aggravating factor may include the harm caused and violence used against a victim; a mitigating factor may include a lesser role played by a defendant under direction. For all cases of human trafficking and slavery and forced labour, immediate prison sentences are given, which are generally significant.
In addition to custodial sentences for convicted traffickers, a number of other ancillary orders can also be considered on request by the prosecutor. These can include confiscation of assets, slavery and trafficking prevention orders (which restrict the activities of a convicted defendant for five years following their custodial sentence), prohibitions on foreign travel, financial orders, Director Disqualification Orders (to prevent a convicted defendant from becoming a director of a company), and compensation orders to victims.
If the judge passes a sentence which the Prosecution considers to be unduly lenient, the prosecutor may ask the Attorney General (the government minister who superintends the Crown Prosecution Service) to review the sentence within 28 days of the sentencing decision. If the Attorney General thinks the sentence is unduly lenient, the case will be referred to the Court of Appeal. The Court of Appeal decides whether indeed the sentence is unduly lenient and, if it is, it will be increased. This will then form a precedent sentencing guideline for future, similar fact cases.
Victims trafficked into criminality
Victims of trafficking who are forced or coerced into committing a criminal offence as a consequence of their trafficking situation have the possibility of not being prosecuted for that offence.6 This arises in a number of ways.
In common law, where a common law defence of duress would apply, the prosecution will be discontinued on evidential grounds. For duress to succeed, a suspect must show that they committed a criminal offence because they were threatened with death or serious personal injury if they did not do so. Duress by threat was defined in A-G v. Whelan,7 when the accused was told to commit an offence and was subject to “[t]hreats of immediate death or serious personal violence so great as to overbear the ordinary powers of human resistance”. The elements of the defence were more recently considered in the House of Lords decision of R. v. Hasan.8
In cases where the offence may have been committed as a result of compulsion which falls short of duress, prosecutors should consider whether the suspect may avail themselves of the statutory defence for victims of slavery or trafficking, which arises under section 45 of the Modern Slavery Act 2015. Where it is clear that an adult victim o
f trafficking has committed an offence as a direct consequence of their trafficking situation, were compelled to commit that offence, and that a reasonable person in their situation and having their characteristics would have no realistic alternative to doing that act, they can avail themselves of the defence. For a child victim of trafficking, all that is required is that they have committed the offence as a direct consequence of their trafficking situation, and that a reasonable person having that person’s characteristics would do that act. However, there are a significant number of criminal offences for which this defence is excluded; these are set out in Schedule 4 of the Modern Slavery Act 2015.
In all other cases to which the defence of duress and the statutory defence do not apply, or the offence committed pre-dates the introduction of the statutory defence (31 July 2015), prosecutors will follow the Crown Prosecution Service Guidelines on suspects in a criminal case who might be victims of trafficking or slavery (July 2016). These Guidelines are based on prosecutorial discretion, which enables prosecutors to decide whether it would be in the public interest to proceed or continue with a prosecution. The guidelines reflect prosecutorial obligations arising under Article 4 ECHR, Article 26 of the Council of Europe Anti-Trafficking Convention, and Article 8 of the EU Anti-Trafficking Directive. It requires prosecutors to adopt a three-stage approach to the prosecution decision: in addition to determining whether the suspect is a victim of trafficking (stage 1), in the absence of clear evidence of a credible common law defence of duress sufficient to discontinue prosecution (stage 2), there must be an assessment (stage 3) of whether the victim was compelled to commit the offence. In assessing compulsion, prosecutors must consider whether the offence committed was a direct consequence, or in the course, of their trafficking or slavery situation, and whether the criminality is significantly diminished or effectively extinguished because no realistic alternative was available but to comply with the dominant force of another. For children who have committed an offence, the only consideration is the extent to which the crime alleged was consequent on their being a victim of trafficking or slavery.
Routledge Handbook of Human Trafficking Page 46