Proposed human trafficking laws for Scotland have caused a great deal of discussion and controversy, since the introduction of a bill to address current deficiencies in the law. This issue concerns whether there should be a statutory defence for those who are victims of trafficking but find themselves committing crimes as a result of their exploitation.
The Human Trafficking and Exploitation (Scotland) Bill as it is currently presented, would require the publication of guidelines for prosecutors as to the prosecution of trafficking victims for offences resulting from their exploitation.
Lord advocate, Frank Mulholland QC and James Wolffe QC, dean of the Faculty of Advocates James Wolffe QC, put forward very different opinions on the issue when speaking at a Scottish Parliament committee.
Mr Mulholland outlined that a statutory defence (as opposed to issuing instructions to prosecutors and police) would impose an onus on victims to prove their innocence to the prosecutor, which may result in “more injustices”.
Furthermore, Malcolm Graham, assistant chief constable of Police Scotland highlighted that it was felt that extensive guidelines given to police and prosecutors could be a more effective means of tacking this problem,
“I think there should be measures put in place to ensure that individuals are not criminalised where they’ve been coerced, but I’m not sure that the statutory defence is the best means of doing that and I think robust instructions from the lord advocate to the police would very adequately deal with the circumstances.”
On the other hand, bodies including the Faculty of Advocates warn that without a statutory defence enshrining protections for trafficking victims in law, victims will not be effectively protected from prosecution.
Mr Wolffe outlines the law in England under the Modern Slavery Bill, which received Royal Assent recently, which contains a statutory defence, outlining that care had been taken not to apply the defence in every case and for every crime as that may be a step too far. He said:
“The concern is that without a statutory defence, protection for victims in this jurisdiction may be less than in other parts of the UK,”
The Crown Office confirmed that proceedings have been discontinued in relation to six individuals in the last year after they have been found to be victims of human trafficking,
One of the most crucial concerns is that whilst guidelines may be useful, they are not binding. It can be difficult to ensure that guidelines are adhered to as they are just that, guidelines with discretion being afforded to prosecutors.
It will be interesting to see whether as the bill progresses through parliament whether a statutory defence for victims of human trafficking is added, and if it is not whether the law will need to be revisited in the future.
The Crown Office confirmed that proceedings have been discontinued in relation to six individuals in the last year after they have been found to be victims of human trafficking.