Migration and Trafficking Inquiry
Good morning, everyone, and welcome to the 17th meeting in 2010 of the Equal Opportunities Committee. I remind all those present, including members, that mobile phones and BlackBerrys should be switched off completely as they interfere with the sound system even if they are switched to silent.
We have received apologies from Elaine Smith. I am pleased to welcome Tricia Marwick to her first meeting of the committee as a substitute for Christina McKelvie, who is unable to be here today. I invite her to declare any relevant interests.
I have no interests to declare, convener.
Thank you for that.
The first item on the agenda is an evidence session with the Lord Advocate. It follows on from our session last week with the Cabinet Secretary for Justice, who said that it would be more appropriate to direct our questions on prosecutions for trafficking to the Lord Advocate. I am therefore pleased to welcome the Lord Advocate, the right hon Elish Angiolini QC; Dawn Samson, senior depute at the Crown Office; and Michelle Macleod, head of policy at the Crown Office.
I express a special thank you to Elish Angiolini for attending the committee at such short notice. The committee really does appreciate it, because we are keen to get your evidence. Do you want to make an opening statement?
The Lord Advocate (Elish Angiolini)
No, I am happy to move straight to the questions that you want to pose.
Okay.
A recurring criticism has been made throughout the committee’s inquiry about the lack of any convictions in Scotland for human trafficking, particularly as there have been successful prosecutions elsewhere in the United Kingdom. Will you outline any difficulties that are being faced in securing convictions for trafficking offences in Scotland? What can be done to address those difficulties?
The criticism is not well made, on the basis that we can prosecute only what comes through the door and is reported to us. We are simply not having cases reported to us under section 4 of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004 or section 22 of the Criminal Justice (Scotland) Act 2003, which are the two main acts that relate to trafficking. There have been very few cases. Four cases have arisen, but because of the sufficiency of evidence we were able to initiate proceedings in only two of them. We took one case to trial at the High Court, but again because of the evidential difficulties, which are significant in such cases, it was not successful.
However, that is not to say that there has not been significant activity in relation to human trafficking in Scotland. There has been activity, not necessarily under those two statutes, but in relation to immoral earnings, keeping brothels and a variety of different offences that we have deployed against a background of human trafficking where we have not had sufficient evidence of trafficking itself. It is important that that is understood. Although the offences under section 4 of the 2004 act and section 22 of the 2003 act are extremely important and have penalties of 14 years attached to them—which is why, if possible, we wish to prove these cases— they do not exist in isolation. There is a significant number of tools in the armoury against human trafficking, which we require to deploy if we are to be effective in disrupting the activity as well as dealing with it and punishing it.
Thank you. We will develop and discuss the implications of that as our questioning goes on.
Thank you for that answer, which has clarified things a little. However, the committee would welcome your comments on whether there is a need for more awareness raising of trafficking issues with prosecutors and judiciary in Scotland. What is the status of the draft guidance for procurators fiscal in Scotland that was identified as a key action in the update to the “UK Action Plan on Tackling Human Trafficking”?
I cannot answer for the judiciary. Awareness raising or training for the judiciary is a matter for the Lord President and the Scottish courts administration. However, prosecutors have been very alive to the issue, particularly in the past two years. Great efforts have been made to ensure that, as far as possible, we proselytise to as many prosecutors as we can on the issue, because awareness across the service is important.
You will be aware that the prosecution service has trained more than 500 specialists in sexual crime since the review of sexual crime, and a key part of that involves an element on human trafficking and recognition of the various indicators of that. During the summer, the specialists who have been appointed to deal with human trafficking out in the areas—we have identified specialists who will deal with these cases when they are reported to them—have also undergone training, which was produced by the Crown Office in conjunction with the other agencies that support us in this.
There is now a national sexual crimes unit in the service, which considers cases from the very beginning. In the past, Crown counsel had the role of dealing with cases that came in from procurators fiscal after an investigation had taken place. The involvement of Crown counsel was at the tail end of the presentation of the case in court. We now have a group of specialist prosecutors in the Crown Office who deal with sexual crimes as soon as they are reported by the police to the specialist procurator fiscal, so we will be able to engage in the case at the earliest stage, which is useful bearing in mind the substantial evidential difficulties that we can face in such cases. That is very important.
To ensure that as much excellence and knowledge are gathered as possible, we have appointed the advocate depute Kathleen Harper, a member of the Crown counsel team, as the national lead in human trafficking. She has been specifically dealing with the two current cases that are under consideration in the Crown Office.
It is important to emphasise that many people who were referred to us from operation pentameter 2, for instance, were prosecuted, but not under the specific legislation that I have mentioned. Some of them were imprisoned and some were fined. I think that you have asked previously about the outcome of pentameter 2. There were several outcomes, ranging from fines to imprisonment.
We will have further questions on that later.
On training, the guidance is due to be issued at the end of this week, and we will send it out to procurators fiscal. It has already formed part of the training, as it has been developed. Our guidance differs from the English guidance. We have not just focused on immigration but addressed the situation across the board and raised awareness, so that, in every aspect of cases where individuals are reported as either victims or accused, prosecutors are alert to indicators that an individual might be a victim of trafficking. We have hyperlinked that guidance across to other case-marking guidelines, reinforcing the message such that it will not only be sexual crime specialists or those who deal with gangmasters or similar activities who will be alert to it—the guidance will permeate through the case-marking guidelines. That is important for the purpose of awareness—it should become bread and butter to more people.
Human trafficking is viewed by the public as still a marginal activity, although we know that it is a growth industry, with 12.3 million people across the globe being trafficked for a variety of purposes, not only sexual. Of those people who are involved in serious organised crime in Scotland, 3 per cent are involved in human trafficking. The aim is to ensure that there is not complacency about the situation, and that we are attempting to deal with it.
There is a presumption against prosecution where there are credible indicators that individuals are victims of human trafficking. That is an important step forward in how we address such cases and in encouraging people to come forward and report cases to us.
That is reassuring. The committee is becoming increasingly aware that women, in particular, are being trafficked within the UK, not just into the UK.
Yes.
It is good to hear that you have highlighted that.
The committee has had difficulty in pinpointing who has responsibility for the various parts of the justice system in this respect. I do not know whether there is a difficulty with the different organisations not meshing together properly.
I do not think that that is the case. The serious organised crime task force, which is chaired by the Cabinet Secretary for Justice and of which I am a member, along with representatives of the major agencies, has proved a useful mechanism. Over the past two years we have been examining all aspects of organised crime, using a strategic approach. In particular, an intelligence database has been developed, covering who is involved in organised crime—who is in the networks and the hierarchies. That database represents a significant development.
The police and prosecutors in Scotland work together closely, along with other agencies. It is not just the agencies in the criminal justice system that are involved—local authorities, faith groups and community groups have intelligence and background knowledge that can assist.
There has been an emphasis on training. During the past year, Dawn Samson has been involved in the training of social workers, police officers and other groups on human trafficking, to raise the issue that you identified, that is, that the issue is not just about prosecutions but permeates many areas, such as health. For example, people who come into accident and emergency units to seek treatment might be victims of human trafficking. We must ensure that all members of the community who have responsibilities and can make a difference are co-operating in that respect.
Does that still leave us with the problem of whether the judiciary is sufficiently aware of trafficking? You said that you cannot comment on the judiciary.
I cannot comment on the judiciary. However, the Judicial Studies Committee is actively looking at a number of issues. I am sure that the Lord President and the committee are planning training or awareness raising on trafficking—that might already have happened.
People who have been involved in the system for any length of time cannot be unaware of the fact that very often what we see in the context of domestic abuse cases, for example, can be evidence that a person is potentially the victim of trafficking. We have often found that individuals were not trafficked into Scotland but came here to seek refuge from the south, where there are larger metropolitan areas and more lucrative pickings from prostitution. Dawn Samson might be able to confirm this, but I think that of 49 individuals who were found to be potential victims of trafficking, only 13 had been trafficked in Scotland. The others had come from the south.
That is an important factor to be aware of. People might come north of the border to seek refuge, but there is much danger of their being further exploited when they are here, because of the very vulnerabilities that they acquired as a result of trafficking or which were the reason for their being trafficked in the first place. For instance, a person with a drug addiction can fall as quickly into the grasp of individuals who will exploit them in Scotland as they would do in England.
You mentioned the different protocols in implementing the law in England and in Scotland. When the United Kingdom Border Agency deals with the prosecution service in Scotland, does it have the knowledge base that enables it to achieve the aims?
You referred to protocols; I clarify that there is a prosecution code for the Crown Prosecution Service.
Of course, Scotland has an independent prosecution service, but we do not operate in isolation from what is taking place in England and Wales. The issue is not simply a UK matter. Pan-Europe and worldwide, the closest understanding and collaboration across borders is required, because the issue is not parochial. Prosecutors in Scotland must act along with prosecutors from other jurisdictions. There are mechanisms such as Eurojust, which ensure that there is understanding.
The UKBA, along with other agencies that report crimes to us, is very much enmeshed in the process. I think that next week senior prosecutors in Scotland will attend a workshop with the UKBA, at which idiosyncratic aspects of the system in Scotland will be highlighted. For example, members will be aware of the evidential requirement for corroboration that applies across the board in Scotland but which does not apply in England and Wales and in other jurisdictions in Europe.
Such issues might be regarded as a further challenge, given that it is extremely difficult to secure evidence of the trafficking aspect. It might be possible to prove evidence of the result of trafficking, where someone is living off immoral earnings or is keeping a brothel, but to prove that they facilitated a person’s arrival in the UK is much more difficult when, for example, distance is an issue or there is not a strong body of evidence around the arrival to show that the individual was brought over in the circumstances that are required evidentially to establish that they were trafficked.
I think that the UKBA is aware of the issues. As I said, the issue is not viewed in a parochial way. You will be aware that a few weeks ago a major operation took place, which involved Northern Irish and Scottish prosecutors and police. It is not about this jurisdiction getting a statistical plus by securing a further prosecution; it is about the public interest and how we assist other jurisdictions. We must co-operate with other jurisdictions to ensure that cases go to court elsewhere, even if they do not do so in Scotland. That does not mean an absence of activity here; a prosecution might well arise elsewhere.
09:45
Three weeks ago, I addressed the International Association of Prosecutors in The Hague and I chaired a session there with the world’s prosecutors on human trafficking. Even with the additional requirement for corroboration in Scotland, the same evidential difficulties as we face are being faced elsewhere, because of the intrinsic difficulties of victims giving evidence when they are very suspicious of authority and might be culturally opposed—if they come from parts of eastern Europe—even to speaking to police officers.
Victims are concerned about their safety—about their life and limb. A more acute concern is what might happen to their families in the countries from which they come. That concern is less immediate but is no less a persistent fear for victims in relation to the consequences of co-operation with authorities. As members can imagine, that is a formidable obstacle to overcome for those who are required to give evidence.
The answer is to support people in such circumstances as far as possible, to accelerate the prosecution process when it is used and to look laterally for other evidence to support the victim’s testimony, in order to take the weight off the victim. That other evidence might involve surveillance and undercover police officers, and it will mean a considerable passage of time, because such matters can take months. I do not want to say anything about operations that are taking place, but members can take it that investigations into human trafficking are active across the United Kingdom.
Before we leave the issue, I want to be totally clear about one point. The UK action plan said:
“In Scotland new guidance for prosecutors is in draft form and work is underway in respect of ... training”.
That new guidance was expected by the end of 2009. When we took evidence on 14 September this year, it was noted that the guidance is still in draft form. Where are we with the guidance?
As I said, the guidance will be published this week—at the end of the week, we hope. We have not simply mimicked the Crown Prosecution Service guidance, because we have had to consider the distinct evidential issues that apply in Scotland, as well as taking a broad-brush approach.
We are not simply examining prosecution under section 4 of the 2004 act and section 22 of the 2003 act; we are considering other aspects of prosecution that can be exploited. We are looking at confiscation, which is a major weapon, and encouraging the use of antisocial behaviour orders to close brothels when the evidence is clear.
Confiscation of assets when prosecution cannot be obtained for a main offence is a method of disruption. Likewise, health and safety legislation and environmental health legislation can be used as part of the process of disruption, to demotivate those who would otherwise think that Scotland might be a place to invest in human trafficking and to make them go elsewhere. That is the strong message. If proceeds cannot be confiscated, HM Revenue and Customs can become involved. That is another fairly effective weapon in dealing with the profits that can be gained in this serious area of criminality.
I presume that the guidance contains the presumption against prosecution when indicators that someone is a victim of trafficking are present, to which you referred. How does that contrast with the present situation? Is it a significant shift?
The committee heard evidence from Mr Watson of Amnesty International, who suggested that victims were not prosecuted in England and Wales. Perhaps he has misunderstood the Crown Prosecution Service guidelines, which do not say precisely that. Similarly to us, the guidelines identify credible indicators that would be taken into account in the decision to prosecute. However, no blanket statement is made that a victim of trafficking would not be prosecuted per se. No prosecutor could give such immunity.
We can say that a presumption would be made against prosecuting individuals when the indicators were present. It is clear that it would not be in the public interest to prosecute people who are victims of the process. The difficulty is similar to that which we face in those situations when someone who been abused as a child goes on in adulthood to abuse other children. The more serious the crime they commit thereafter, and the more remote it is to the act of trafficking, the higher the public interest would be in prosecuting. For example, if someone commits murder or another serious crime, or traffics in drugs at a serious level, and there is no immediate manifestation of the fact that they are acting under duress or force, or have been drugged, the public interest would promote the decision to prosecute. The situation is not absolute, but there would be a presumption in those cases that relate to trafficking itself.
Is there any shift on that in the guidance that is due to be published next week, or is it just a restatement of the current situation?
It is, I suspect, a confirmation of what procurators fiscal would do, while making it absolutely clear that there is a presumption against prosecution in those circumstances.
Do you think that that has been happening?
Prosecutors always exercise their common sense and look at the individual facts and circumstances of a case when there is a suggestion that there are strong mitigating reasons and that the person is a victim. The difficulty lies with ensuring that there is a recognition of the trafficking status. That is why the training that we have done during the summer was important to proselytise those within the service and the police to recognise that someone who might be reported for stealing a Mars bar from a shop might be involved in trafficking, what factors can be used to identify those individuals, and how to acknowledge that in a report that is utterly unrelated to trafficking. Increased knowledge might allow the referral mechanisms to ensure that that person can be protected and that action can be taken against those who are engaged in the trafficking.
It is important that there is a general understanding that trafficking is not just confined to sexual offending; it might manifest itself in other areas of criminality. That is what we have been doing as part of the training, and we have based that training on the guidance that has been published.
Is there any information about the extent to which victims of trafficking have been prosecuted for other offences, or does the uncertainty around identification of that mean that such information is not available?
Historically, there has been no research, particularly in Scotland, about the extent of that. It would be extraordinarily difficult to determine that, even from a database. Inevitably the information would be anecdotal and come from the experience of prosecutors.
I suppose that I could describe myself as a veteran prosecutor, having been one for 27 years. Even in cases in which I prosecuted those who were involved in soliciting, as it was then, at the district court in Glasgow, we rarely saw an able and whole individual dressed in furs. We often saw people who were significantly troubled by difficulties with health, mental health and drug addiction, or people whose background disclosed that they themselves had been victims of abuse or sexual abuse.
At that stage—27 years ago—and up to about 15 years ago, not many people from outwith the UK appeared in court. Most of them were from Glasgow and local to Glasgow. That has changed, and many of the people that we now see exhibit the same vulnerability, but they also come from other parts of the world and are thus even more vulnerable. They are isolated from family and other support mechanisms, they have cultural difficulties with authority, and they have a fear of being returned. Many of them came here because they thought that it would be an opportunity to get away from poverty or other problems that they might have faced at home.
Following on from Malcolm Chisholm’s observations, I will look at the specifics of prosecution in relation to operation pentameter 2. From the information that we have received, I note that 18 individuals were initially identified as victims. In light of your comments about guidelines, I am particularly interested to know how many of those who were prosecuted as a result of that operation were subsequently identified as victims of trafficking.
None. Two were identified by the police in operation pentameter 2 but were not referred to the prosecutor. We have not prosecuted any victims knowingly on that basis.
The committee requested information on the outcomes of prosecutions. We have collated that information. There have been 17 prosecutions. I do not want to keep members here while I narrate the outcomes, but I am happy to provide the committee with that information for its report in writing.
That would be welcome.
I note that the penalties for brothel keeping and immoral earnings are to increase to seven years on indictment, which will be helpful.
It is important not to compartmentalise matters into the two specific offences in section 4 and section 22. Those are important, but much of the facilitation of what is happening is taking place in other parts of the world. Often the gap between receiving and arrest of individuals is significant by the time that the police go in, so evidence of air tickets and credit card payments that have been made to facilitate someone’s arrival may not be readily available. That is why it is just as important to look at other offences, to ensure that they are as robust as possible and that we tackle the manifestation—the product—of trafficking.
The imposition of minor fines may be explained partly by a lack of appreciation of what is taking place in contemporary Scotland as a background to trafficking. It is important that the Parliament understands that and has the ability to look at the penalties that are available to deal with the product of trafficking as well as with trafficking offences. We know that there is creativity and innovation in organised crime. Some members of the community in Scotland think of organised crime as consisting of cocaine dealers—people who import drugs or firearms into the country—but that is only part of the problem. Criminals do not always specialise—they are flexible and innovative and are involved in a number of activities. They are not divided—often those who engage in trafficking are also involved in the drugs trade.
People may take a particular moral approach to prostitution, but they need to know about the background to the issue when they make decisions about it. People who snort cocaine may think that that is a fairly acceptable activity, but if they were aware of the background to the activity—which affects issues that they are extremely concerned about, such as the environment and ecology, and is associated with acts of brutality—they would not engage in it. They would be utterly horrified if they were acutely aware of what is taking place in the source countries.
Similarly, people would be horrified if they were aware of the awful exploitation of humanity that is taking place as a result of human trafficking—the violence, the rape and the servitude that is created by bonded travel. Individuals may come to this country not against their will but of their own volition, with the intention of having a career or new life here, but thereafter they may have to pay the debt for their travel, which bonds them into prostitution. We are talking about debts of £60,000 for young girls who are in their late teens or 20s. That is a formidable problem for individuals.
It is important not to look at the issue in silos but to ensure that the law in Scotland deals with each aspect of it effectively—through confiscation, the activities of HM Revenue and Customs, health and safety offences and environmental offences, as well as the central offences of which we hope we will have more reports in the future.
Those comments are helpful. I have a couple of other questions.
I am conscious of the Lord Advocate’s time.
I will make my questions brief.
I guess that you work very closely with the various police authorities. Are joint training programmes in place?
Yes.
We have received evidence on the role of the Gangmasters Licensing Authority and its ability to take forward prosecutions in Scotland. Have you encountered any difficulties in that area?
10:00
In Scotland, we had the first prosecution in the UK under the gangmasters legislation. It might not have come to the attention of the Parliament that we were the first to prosecute using that legislation. So we are well aware of it—particularly procurators fiscal in rural areas. We are also aware of other reasons for which persons are trafficked. For instance, in the drugs industry, persons are trafficked for the purposes of drugs production. The issues that do not relate specifically to sexual exploitation are dealt with by the High Court units in the Crown Office. The issues are specifically considered to ensure that the evidential challenges in what are relatively new areas of activity for prosecution are clearly understood and appropriately applied.
You asked about training with the police, which is an important aspect. We have emphasised joint training with the police on all matters, not simply trafficking, to promote better understanding from the beginning of the evidential challenges in proving any case in a Scottish context. At the sexual offences conference on Friday, which I addressed, we had a session on human trafficking that was presented by Detective Sergeant Sandra Jamieson of the Scottish Crime and Drug Enforcement Agency. Prosecutors, forensic scientists and doctors were present at that. People from across the disciplines were present while we discussed the increasing challenge of human trafficking that is presented to us. That is very much the way forward for the future.
In evidence, we were told that domestic servitude was more of a problem or, at least, there is more of it, than sexual exploitation, but that tends to get more headlines. Is it more difficult to pin down domestic servitude?
On the sharing of information, you mentioned talking to various prosecutors in other countries. What information can you get from them to help us identify people way before they ever start getting a foothold in Scotland?
Prosecution tends to be reactive. We assist the police in an investigation by providing warrants, but mainly we react to what is reported to us by the police and other agencies. The criminal justice system reacts when the evidence is produced. Before that, it is important to be able to exploit the intelligence base. Prevention is absolutely crucial. I know that European prosecutors, particularly in eastern European countries, are engaged in education in schools. They go into schools and colleges to warn girls. They have video presentations. The Council of Europe is doing a great deal of work to ensure that young girls and boys throughout Europe who might think that they were coming here for an interesting life away from the problems that they face are aware of the dangers. It is as important for prosecutors to engage in that education exercise, along with our colleagues in the justice system, as it is for us to do the actual prosecution. If we can inoculate people initially by education, we prevent them from becoming so vulnerable to becoming victims in the future.
You mentioned evidential challenges in pursuing cases under section 4 and section 22. Of those who have been charged and convicted of lesser offences, which we welcome, is it possible to say how many could have been prosecuted under section 4 and section 22 if the need for additional corroboration under Scots law had not been there?
It would be extremely difficult to disaggregate that. One main obstacle is that victims of human trafficking do not always perceive themselves as victims. There is a delicate debate about free will and exploitation of the vulnerable. There are cultural difficulties. The absence of corroboration might be because someone is not willing to give evidence. In their subjective view, that is for good reasons—they do not want to die or their family to be murdered or injured, or they might have developed what is known loosely as Stockholm syndrome. They have strong emotional bonds with those who have trafficked them. As members will know, romance is often used as a way of trafficking. A good-looking young man might engage a girl and become involved in a relationship with her, but thereafter she might be trafficked by him. That is not uncommon in Europe.
Those psychological mechanisms for seducing people can have a powerful effect when it comes to asking them to give evidence. People think that they will be deported and do not want to be. They might be earning more money than they have seen in their lifetime, so there are economic factors. They might be given some liberty and have a degree of independence after they have been groomed. In a sense, trafficking is not very different from what happens with young children. That psychological bond is difficult to overcome. It is not dissimilar to the type of situation with domestic violence in which a partner—a man or a woman—who is the victim of chronic domestic abuse for 25 or 30 years does not take any steps against it, because of the economic and emotional situation and because of the strong tie that they have with the abuser.
That completes our questioning. I thank the Lord Advocate for coming at such short notice. We became conscious as our inquiry progressed that there was a gap in our evidence. We very much appreciate your coming to fill it with such worthwhile information. We look forward to receiving the additional information that you promised the committee.