Significant new Court of Appeal judgment and two recent reports on the subject of victims of trafficking and modern slavery

Last week saw a significant new Court of Appeal judgment and two notable new reports on the subject of trafficking and modern slavery.

Image credit: WikipediaOn Thursday, the Court of Appeal handed down important new guidance in the judgment of AAD & Ors, R. v [2022] EWCA Crim 106 (EIN members can read it here). As noted by One Pump Court on Twitter, the judgment resets the law on victims of trafficking.

At the direction of the Registrar, three cases were listed together to be heard in a special court so that the Court could provide guidance in cases involving victims of trafficking and modern slavery who are accused of criminal offences.

In the lengthy judgment, the Court considers nine issues relating to trafficking in criminal trials.

The judgment explains: "Against the background of the various grounds of appeal advanced by the appellants …, the Registrar has invited the Court to consider giving guidance on nine issues that have general and immediate relevance in the conduct of [victims of trafficking] cases. Although we have approached this invitation with caution, the issues identified by the Registrar not only raise important questions as to how aspects of cases in this context are to be handled at first instance and on appeal, but – save for the second and fourth questions – they are directly relevant to the determination of the three appeals. In the circumstances we have considered it appropriate to address these generic issues, including the second and fourth questions which are said to involve areas of immediate importance as regards the conduct of a significant number of pending trials."

One Pump Court notes that the judgment provides an essential reference for all practitioners considering the prosecution of potential victims of trafficking, and it should limit the criminalisation of victims, allowing them to avoid prosecution and rebuild their lives.

Meanwhile, the Modern Slavery Policy Unit last week published a comprehensive new report looking at how the UK can better support victims of modern slavery. The Modern Slavery Policy Unit is a joint initiative by Justice and Care, an anti-slavery charity, and the Centre for Social Justice (CSJ), a Westminster-based think tank.

The 96-page report, A path to freedom and justice: a new vision for supporting victims of modern slavery, can be downloaded here. It explores the recovery journey of adult victims of trafficking and modern slavery from their first identification through the National Referral Mechanism (NRM) and support provided in England and Wales under the Modern Slavery Victim Care Contract onto longer-term recovery.

The report seeks to identify key principles for reform and practical solutions to the current challenges, including how to bridge gaps between the criminal justice system and support mechanisms so victims are both better safeguarded and empowered to engage with criminal investigation.

The Modern Slavery Policy Unit noted: "Too often victims of modern slavery are treated as somehow different from victims of other crimes. The provision of specialist support through the NRM is a great resource, but it is not an alternative to the services other victims of crime can access, especially those with wider and complex needs. The approach of the Nationality and Borders Bill, which incorporates modern slavery support with immigration reform, will entrench this position. It effectively creates a hierarchy of victims by putting a time limit on when victims of slavery in the immigration system can come forward to talk about their abuse and saying that victims with criminal convictions can be denied access to support. We would never do this for other victims of serious crime. It is time to reframe our response to victims of modern slavery and treat them as, first and foremost, victims of crime. This is for their benefit as they seek justice, and for the sake of relentlessly pursuing those committing these appalling crimes, who too often act with impunity."

Dame Sara Thornton, the UK's Independent Anti-Slavery Commissioner, welcomed the report.

Thornton noted: "The evidence in this report … demands a more radical recommendation to end the role of the Home Office Single Competent Authority in decisions about most trafficking victims. It is time to move away from a centralised approach which is clearly failing victims. These decisions should be made locally by multi-disciplinary teams who have the expertise and knowledge."

Also last week, the University of Nottingham highlighted the recent publication of an updated paper by the University of Nottingham's Rights Lab and the Human Trafficking Foundation examining Part 5 of the Nationality and Borders Bill concerning modern slavery.

The 77-page paper can be downloaded here. It was prepared with input from Doughty Street's Catherine Meredith.

Rights Lab explained: "This consideration paper outlines key areas of concern in relation to Part 5 of the Nationality and Borders Bill, addressing modern slavery. This includes an assessment of the implications and evidence of impact in relation to Clauses 57-68 of the Bill, as they relate to victims of modern slavery and human trafficking. This paper does not respond to the Bill in its entirety. It should be noted that other Clauses of the Bill outside Part 5—including provisions concerning nationality, asylum, and immigration—also raise issues for victims of modern slavery and trafficking. The exclusion of consideration of these provisions does not indicate any position on their content or implications for victims."

Rights Lab's Kate Garbers, lead author of the paper, said: "The Bill in its current form is woefully at odds with the government's intention to tackle modern slavery and human trafficking. The Bill poses risks to victim protection, criminal justice, and the UK's fulfilment of its obligations under international law … Our research has found that Part 5 in particular, could have long-term impacts including reduction in: victim protection, ability to break trafficking cycles, and prosecution of perpetrators."

Ahmed Aydeed of Duncan Lewis Solicitors told Rights Lab: "There is a dichotomy between the Bill, as it's currently drafted, and the commitment of successive governments to prioritise combatting modern slavery. The Bill in its current form further enshrines the hostile environment, a policy which has already led to a significant reduction in support and assistance for survivors. The Bill, in particular Part 5, will likely lead to survivors not being identified, provided with inadequate support and will also likely lead to victims being re-trafficked."