My Lords, I shall speak to Amendments 80A and 82A.
I very much welcome the Government including a non-prosecution defence in the Bill. It is right to target the real criminals who wallow in the wealth that they have made from exploiting the vulnerable. They have to be stopped from getting clean away. A non-prosecution defence for victims is critical to achieving this. Not only will it protect the human rights of adults and children and stop them being punished for the crimes of their traffickers and slave masters, it will ensure from the outset that victims are seen as witnesses to enable the successful prosecution of traffickers and slavers, so that the real criminals are brought to justice.
I also welcome the government amendments to remove the element of compulsion before the non-prosecution defence can apply for children. Where my position differs from that of the noble Baroness is that my Amendments 80A and 82A seek to remove the inclusion of a “reasonable person” test before the non-prosecution defence applies to adults and children. I shall explain as simply as I can why I think it is necessary to remove this “reasonable person” test for adults, and particularly why it has to be removed for children.
First, the addition of a reasonable person test is an extra hurdle for a non-prosecution defence that does not exist in international law. Article 8 sets just two tests for a non-prosecution defence to apply: that a person’s involvement in criminal activities needs to be compelled and a direct consequence of their being trafficked. Clause 45 therefore goes beyond what we
need to do to bring the UK into compliance with our international obligations. To quote Parosha Chandran, an expert barrister in the field of human trafficking, its inclusion is “a potentially unlawful tier” that does not exist in Article 8 of the EU directive on human trafficking.
Secondly, the UK has many joint investigations with police forces in other countries. This is necessary because the organised criminal networks we all seek to prosecute operate transnationally. For example, a gang may force trafficked victims to steal from museums in London, Florence, and Paris, and threaten to harm their families if they do not do so. In this situation, Article 8 would be correctly and swiftly applied in France and Italy. Therefore, the victims would be free from the risk of prosecution and would be able to stand as credible witnesses in the criminal prosecutions of the organised criminal network which trafficked them. However, if the authorities in France and Italy asked for the assistance of the UK in approaching trafficked victims who committed robberies in London in order for them to give evidence against the network, the reasonable person test would mean that the UK could not give any guarantees in this regard. The UK would be forced to say that the trafficked victims would be acquitted only if the jury accepted that the conditions of the test were satisfied. Have the Government considered how the inclusion of this test may impact on our cross-border operations to ensure that traffickers are prosecuted?
Amendment 82A seeks to remove the reasonable person test for children. The particular vulnerabilities of children have been discussed many times in this House throughout our discussions on the Bill. Children specifically should not have to satisfy a reasonable person test before a non-prosecution defence applies for three reasons. First, the addition of a reasonable person test goes further than our own existing law for children. In the landmark case of R v L and others the Lord Chief Justice and his colleagues pronounced that only two questions must be addressed for the non-prosecution principle to apply to child victims: age and the criminal offence need to be,
“consequent on or integral to the exploitation”.
This is mirrored in the current CPS legal guidelines on human trafficking as regards children, where it states:
“When considering whether to prosecute a child victim of trafficking, prosecutors will only need to consider whether or not the offence is committed as a direct consequence of, or in the course of trafficking”.
This guidance does not put a third legal reasonable person test into the guidelines after that landmark case. The CPS guidelines repeat the two tests necessary for a non-prosecution defence to apply, namely age and if the offence is directly due to the trafficking. So if Clause 45 is passed unamended, it will go further than our existing law and our obligations under international law. Therefore, when the CPS guidance is rewritten following the passage of this Bill, it will end up being tougher than it is now. The reasonable person test keeps the compulsion test in, but in a different form of words. It will lead to more prosecutions being sought, not fewer.
6.30 pm
Secondly, the addition of the reasonable person test will stop the traffickers and slave masters being promptly investigated, charged, tried and convicted. The test will undoubtedly influence the police to press charges and the prosecutors to proceed to prosecute on the basis that a jury can now decide. Again, this will lead to more prosecutions, not fewer.
Thirdly, it will stop children being treated as victims from the outset. As Karen Bradley MP said in Committee in the other place, the purpose of this non-prosecution defence is to give victims of slavery and trafficking the space to say, “I am a victim. I should not be prosecuted”. It should allow them to be heard by the criminal justice system. It is not to let criminals off the hook. It is to ensure that the police and CPS take a proper look into the trafficked or enslaved status of a victim. As the Joint Committee, of which I was a member, said, the question we need a non-prosecution defence to answer is not “Did the victim commit the crime?” but “Should that victim be prosecuted for it?”. The addition of the reasonable person test for children negates all this, leading to more prosecutions, not fewer.
For these three important reasons, I am disappointed that the Minister’s amendment removing the compulsion element for children stops short of removing the reasonable person test. I am very concerned that, as drafted, with the reasonable person test remaining, this could have a detrimental effect on children. I do not understand the logic of adding an additional test and an extra barrier to a non-prosecution defence to apply for children when that test is not part of our current law or guidance, is not part of Article 8, could aid the escape from justice of the evil trafficker, could stop children being seen as victims from the outset, and, finally, makes little sense for children.
I think it is very hard—if not impossible—for a person to place themselves in the mind of an enslaved or trafficked child. Many children are happy to help their trafficker—they see them as family. Many children see their enslaved circumstance as the norm and even though they are free to come and go as they please they return to the trafficker every night. Many children are brought up never to question adults and always do exactly as they say. Many children believe vehemently in the witchcraft and ju-ju rituals carried out on them that bind them to their trafficker.
A person would need to understand the cultural, supernatural and psychological impact a trafficker can have on a child as well as the fear they feel. This is a test too high for children. The addition of the reasonable person test effectively rolls back the progress that has been made as regards non-punishment of victims of trafficking. As regards children, our role should be to help and protect these vulnerable children, not make their ordeal worse. I hope that the Minister will support Amendments 80A and 82A.