Examination of Witnesses

Modern Slavery Bill – in a Public Bill Committee am 4:41 pm ar 21 Gorffennaf 2014.

Danfonwch hysbysiad imi am ddadleuon fel hyn

Nadine Finch and Peter Carter gave evidence.

Photo of David Crausby David Crausby Llafur, Bolton North East 5:30, 21 Gorffennaf 2014

For this session we have until 6 pm. We will now hear evidence from Nadine Finch of Garden Court Chambers and Peter Carter, QC, of Red Lion Chambers.

Q 68

Photo of Diana R. Johnson Diana R. Johnson Shadow Minister (Home Affairs)

The aim of the Bill is to get more prosecutions. From the offences drafted in clauses 1 to 3, do you think we will see more prosecutions? Also,  can you comment on the Joint Committee’s proposal for a hierarchical list of offences? Would it cause confusion in the court, particularly to juries, if that was adopted?

Peter Carter: First of all, I think that having the offences consolidated in this Bill will assist in bringing more prosecutions, because it will be more obvious that this range of offences is all there. If the recommendations of the Joint Committee had been adopted, I think there would have been even more. I think the chances of success would have been far higher in the Joint Committee’s draft. I fear there is a greater risk of confusion in the offences in the draft Bill before Parliament than in the cascade of offences. I will explain why. First is the absence of a child-specific offence. When people look at this, they will wonder why on earth there is no reference to a child, because, in the international covenants and in the EU directive, there is. I do not understand why there isn’t. The suggestion that I heard this morning from the Director of Public Prosecutions, and noted in the draft I have seen of the Government’s response, is that it would be too difficult. Well, I am afraid that that is a poor answer, because we have specific offences in any event and we manage with that.

The idea of a cascade of offences was not, as the director said, to enable a thoughtless or inadequate prosecutor to throw the entire catalogue at a defendant, but to encourage a prosecutor to think carefully about what the evidence demonstrates, and to then be able to draft the appropriate charge, which will be the most serious appropriate charge that the evidence will sustain. The idea was not to draft a series of lesser charges in the hope that some kind of plea negotiation could result, but to prosecute the most serious offence that the evidence sustains. If it turns out that there is some doubt about it—for example, about whether it is a child or an adult—the prosecutor would make a decision as to whether the evidence could sustain that. If it did not, they would go for the next one down the cascade without confusing the jury. Juries are sophisticated bodies. They are used to making differential decisions, and they find it easier to make differential decisions on a cascade than they do on things that have completely different dimensions.

I know there is limited time, but may I say one other thing? One thing that concerns me is the extraterritorial extent of the two separate provisions in the Bill, which I think will cause confusion. Trafficking, in clause 2(6) and (7), has extraterritorial effect, and servitude does not. Yet part of exploitation by way of trafficking is committing the offence of slavery and servitude, so there is a partial intra-territorial and a partial extraterritorial effect. I find that rather confusing.

Nadine Finch: I would like to begin by saying something very briefly about clause 2. There has been quite a criticism about how the wording in clause 2 does not reflect international wording about trafficking. The benefit of having international wording is that there is an awful lot of expertise out there, both internationally and in Europe, where people have discussed academically or in courts the meaning of the words. So although the word “travel” used extensively in clause 2, it is not clear what travel really means. There is a kind of internal definition but I fear that in prosecutions we will go into many long defence submissions about what travel means, as opposed  to what the other definitions of trafficking mean, in the EU directive, and other things that we are also bound with. That is a minor point.

In terms of child exploitation I think it is a real pity that an offence of child exploitation did not end up in the draft Bill. In my view, as somebody who represents a lot of child victims, it is a real lacuna. Children are at a huge disadvantage in evidential terms. They very rarely understand they have been trafficked—what trafficking means—or what kind of evidence is needed. They particularly do not understand the movement part of being trafficked to the situation of exploitation; because they may well have been duped by their elders—by their parents. They may well have been too frightened, or not understood the movement. Therefore, children are more likely to be able to tell you about what happened to them when they were exploited than to be able to tell you about what happened to them when they were actually moved, or when travel was involved. That is a really important issue.

Many of my child clients can tell me about what happened when they were exploited in domestic servitude, in a restaurant or in prostitution; but they actually did not understand enough about the links between people who brought them across England, Europe or the world, and therefore they are not able to assist the police or prosecutors in terms of a trafficking offence. They can assist in the matter of exploitation, and I have got quite a few children who have been able to take the police to a house where they have been kept in domestic servitude or sexual exploitation, but they are not able to explain who brought them to that house, and therefore no prosecution happens.

Many of the children we hear about who are kept in cannabis cultivation houses actually escape from the first house. Somewhere along the line they fall back into exploitation, but the only person they come across is the immediate person who brings them their food or their drink. Therefore there is no prosecution of that person, who has been exploiting them, because they have not been involved in the rest of the chain. So there are many children who, even under the new and welcome provisions of this Bill, will not be the victims who get the satisfaction of having their exploiters prosecuted.

I would just like to say two more things. It is said by the DPP and others that the offence of child exploitation is unworkable because, I have heard them say, the issue of age assessment will be raised. I appeared last year for the Children’s Commissioner in the case of L and others and one of the issues we took up was the difficulty of addressing age assessments in a criminal court. Lord Judge, the highest judge in the criminal courts at that time, accepted that the criminal court already has case law that enables a judge to adjourn a hearing if there is an age dispute. The court can seek expert evidence on its own, but it can expect both prosecution and defence to bring evidence that will enable them to resolve an age dispute. That is set out in detail in the case, and there was no doubt in the mind of the Lord Chief Justice that it was workable. It has worked for decades in terms of age assessments, so that issue, in many ways, is a red herring.

There is also the other red herring, which is that it would mean that parents who required their children to do washing up might be guilty of child exploitation. That is an exaggerated attitude, but in my view there are  two simple ways to deal with it. One that has been suggested by some civil society members is defining exploitation of children by the worst excesses of exploitation, which are already in various international instruments. Examples are domestic slavery and many other things that we already know, such as illegal child marriage and benefit fraud. It is all these things, including street crime and begging. Most people would accept that that was exploitation of a criminal nature, as opposed to exploitation that may be of a very minor nature.

You could go about it in another way and look at the contents of the convention on the rights of the child, which includes many articles that look at child exploitation of different sorts. You could define the crime by reference to what would be a breach of that convention.

Photo of David Crausby David Crausby Llafur, Bolton North East

Quite a few hon. Members want to ask questions, so can we keep the questions short and the answers brief?

Q 69

Photo of Diana R. Johnson Diana R. Johnson Shadow Minister (Home Affairs)

I just wonder what you think about clause 39 in terms of schedule 3 and the list of offences that are not covered by the statutory defence, particularly in relation to children and how they would use clause 39.

Nadine Finch: I might come back to the non-prosecution angle, but in terms of the defence, as it is currently formulated, the defence does not actually protect children, because the word “compelled” has been used and, as one knows, the definition of trafficking accepted both in this Bill and in the EU directive and the Council of Europe convention means that children do not have to show the means. If you are prosecuting somebody for trafficking a child, you do not have to show the means; you do not have to show that the child has been compelled. A similar mistake was made in the EU directive, where there was also use of the word “compelled”. It means that you have the ridiculous situation in which you do not have to prove means to show that the child was trafficked, but you have to prove means to show that the child is entitled to a defence. That cannot be right. There is some internal inconsistency that will be used by traffickers to evade prosecution and used to make a mockery of the child’s defence, so in my view, unless the word “compelled” is removed for children, there is no defence for children.

Peter Carter: I think it is unduly complicated. I think legislating by list of exceptions is a recipe for disaster and confusion, and some of the items included in the schedule seem to me to be wholly inappropriate for trying to protect people who are victims of trafficking. People who are victims of trafficking are likely to commit offences that are immigration offences in an attempt to escape. I notice that generally there is not an identity Act offence there, but there might well be. I do not see the consistency between clause 39(1)(c), which has an overriding requirement that the act committed be an act that a reasonable person will commit in those circumstances, and then having a list of serious offences that are excluded altogether. Presumably, a reasonable person would commit a serious offence only in extreme circumstances in which their actions were justified or were regarded by normal people as justified, so scrap schedule 3.

Q 70

Photo of Andrew Stunell Andrew Stunell Democratiaid Rhyddfrydol, Hazel Grove

Earlier in the sitting, I asked the DPP whether she thought that there were any gaps in the offences in the Bill and she replied that she did not. She also said that she thought that the main effect of the changes would be a re-categorisation of prosecutions that were taking place anyway. Would you like to comment on her observations?

Peter Carter: I must say I thought, Sir Andrew, that some of the DPP’s answers about what was included clearly within the clauses in the Bill and what was not were not altogether precise—for example, whether begging would be and whether miracle babies would be—and that is a problem. Because there is not a child exploitation offence, using children for the purpose of exploitation may or may not fall within these provisions. I think that the uncertainty about that is a big problem.

Nadine Finch: I agree with Peter. If one looks at clause 3, which defines exploitation, it defines it only in relation to clause 2 trafficking, and, as I said before, many of the trafficking cases will not be proven when a child is the victim. Then you move on to clause 1, which may at first blush appear to cover everything, but it requires a person to be held in slavery or servitude or required to perform forced labour, and actually some of the things that children experience as exploitation do not fall neatly into that particularly strong definition. A child who is exploited for the purpose of benefit fraud may well be sent to school and may well celebrate Christmas, but actually they are being exploited for benefit fraud. They have been taken away from their family and their community for the purpose of benefit fraud. When they are 18, they are usually put on the streets because they are no longer economically an asset to whoever is exploiting them.

Peter also mentioned baby farms. I have been concerned for a long time about babies I have come across in the family courts who have been brought here for illegal adoption or other exploitation. The attitude is that nothing has particularly happened to the baby, because they do not understand that they have been brought here from Nigeria or somewhere else in west Africa, but of course that child has been taken away from their family for ever and will never discover their identity. They have been taken away from their culture. Every child has a right to a family and a cultural identity, and that has been stolen from them for ever. In my view, that clearly is exploitation—it is certainly a breach of the convention on the rights of the child—but somehow, people do not give babies the same rights as older children or adults, and I think that must be wrong.

Q 71

Photo of Andrew Stunell Andrew Stunell Democratiaid Rhyddfrydol, Hazel Grove

So can I summarise that as: you believe there are gaps in the Bill as it is?

Nadine Finch: Yes.

Q 72

Photo of Andrew Stunell Andrew Stunell Democratiaid Rhyddfrydol, Hazel Grove

Would you be able to write a note for the Committee to express that more precisely?

Nadine Finch: Yes, I would.

Q 73

Photo of Sarah Champion Sarah Champion Llafur, Rotherham

Ms Finch, does clause 41, on advocates, contain adequate provision for the representation and support of child victims of trafficking?

Nadine Finch: At the moment, one is not completely sure what the child trafficking advocate scheme is going to be, because the actual scheme has not been made  public. We know very broadly speaking from Barnardo’s that they are setting up the scheme in 23 different local authority areas, and we know it is going to be random selection. As yet, however, we do not know exactly what different areas will be looked at.

I was part of an expert group in Vienna that was set up by the European Union Agency for Fundamental Rights to look at child trafficking. We looked at trafficking guardians throughout Europe, and it is clear that, to be effective, the guardian has to have some legal status. Otherwise, in the wider child protection system that is operating in lots of guidance now—actually, it works here quite well, because we already have multi-agency safeguarding hubs run by the police with local authorities in local authority areas, and we have many local safeguarding children boards, which already meet with health, education, the police and NGOs to look at the situation of trafficked children in the local authority area, so we have people working on child protection. For a guardian to be truly effective, however, they have to have equal status within the statutory system to be able to say, “As guardian/advocate, I do not think that social services have put them in the correct safe accommodation,” or, “I do not think that that child has been given the proper psychological assistance.”

As Andrew said earlier, there have been a lot of complaints about local authorities not fulfilling their statutory duties, but there are other professionals from the child protection system more widely who are capable of filling some of those gaps if they work together. That will only work, in my view, if there is a legal guardian able to pull that together and get people to exchange information and skills. Unless the person has more than an advocate status, however, they may not even get into those meetings.

Q 74

Photo of Sarah Champion Sarah Champion Llafur, Rotherham

Should legal guardianship be tested within the Barnardo’s pilot that is going on?

Nadine Finch: I think it should be. I am presuming that it is not, but it should be. Otherwise, all that is being tested in that pilot is whether an advocate works. My presumption at the beginning was that various models would be tested. The evaluator is going to have difficulty evaluating the whole scheme within a year, but particularly when there is only one model there and we do not have any guardianship, so what are they going to test it against?

Q 75

Photo of Gareth Johnson Gareth Johnson Ceidwadwyr, Dartford

May I just take you back to your comments about the possibility of having an age-specific offence in the Bill? What would you say to those people who say that if you are prosecuting an offence—any kind of offence—there is a series of hurdles that you have to overcome, and that putting in an additional hurdle of having to prove the age of the person who is being enslaved would simply require more work to secure a conviction? You said earlier that there are already offences on the statute that require the prosecution to prove that someone is of a specific age. It is normally under a particular age; I guess you were thinking about sexual offences.

However, I think we can agree that, for the vast majority of offences, you do not have to prove the age of an individual, for good reason—it is dealt with in sentencing as an aggravating feature. For example, for  an assault or a murder, it seems unnecessary to require the prosecution also to show that someone is of a particular age. It would not be desirable for any prosecutor to have to prove the age of the individual in addition to everything else, when that could be dealt with as an aggravating feature on sentencing.

Peter Carter: It cannot be. That is the problem. It can be dealt with as an aggravating feature on sentence only if the age is proved at the time of sentence. The argument on appeal would be, “Wait a minute. The court has made a determination of the victim’s age. The jury could have done that, but they haven’t.” You are going to have the same issue about how you prove age at whatever stage you do it.

An offence of exploiting or trafficking a child is inherently more serious than one of exploiting or trafficking an adult. In order to be able to reflect that in the sentence, you ought to have the evidence that enables the judge to say, “My starting point for sentence is materially higher than it would be if you had been convicted of the non-child exploitation offence.”

Q 76

Photo of Gareth Johnson Gareth Johnson Ceidwadwyr, Dartford

If I may, if a judge is looking at sentencing, he can say, “This person is around 17 to 19 years of age. I will treat the sentence on that basis.” However, for a conviction, the case could fall or stand on that finding. It would create unnecessary obstacles if we asked someone to prove also what age they are.

Also, when a prosecutor is deciding what charge to bring, if they are not 100% sure of the age of an individual, they seem to have two choices: either charge for what you would describe as a lesser offence, or charge for both offences. That creates greater confusion for the jury. In your striving to simplify this, you could actually end up making this more complex.

Peter Carter: I am sorry, but I disagree. What is difficult about saying to a jury, “How old is this person? Has the prosecution proved that this person was under 18 at the time?”? That is not difficult. The answer is either yes or no.

Q 77

Photo of Gareth Johnson Gareth Johnson Ceidwadwyr, Dartford

But if you say to a jury, “You need to look at this particular charge. If you find this person of such and such age, then that charge goes, and we look at another charge,” you are creating a step process, which is not found to be necessary when you deal with any offences against the person—any kind of assaults, or murders. If you burgle the house of a particular age person, it may be an aggravating feature, but it is not necessarily the case.

There is a whole range of offences where you could, if you want to, make the law more complex, bringing in an age requirement that is not necessary. The courts deal with it quite adequately on sentencing.

Peter Carter: I am sorry, but I still disagree with the argument that it is over-complicating the matter. You either have an age that is provable, or you have, effectively, the same ingredients, minus the age. You simply have either the aggravated offence, because it relates to a child, or the less aggravated offence, which involves, essentially, the identical ingredients. If the jury are not satisfied of those, they will not convict, whatever the age. If the only issue is age, they will convict of the lesser offence.

Photo of Gareth Johnson Gareth Johnson Ceidwadwyr, Dartford

I think we could be here all day, Mr Chairman, so I am not going to continue on this.

Q78 Chloe Smith: I would like to return to Ms Finch on the point about child advocates, looking at clause 41.

Given that the clause allows for a lawyer to be instructed on the child’s behalf and ensures that they are independent and that the public authorities are required to co-operate with them, what does the clause, in your view, lack?

Nadine Finch: I will draw a broad analogy with the guardians who appear in the family courts, who have not only independence but a legal status. If you appear in the family courts, you realise that, because of that status, they are able to raise, on behalf of the child, much more forcefully what they believe is in the best interests of the child.

Legal advocates will be able to instruct the lawyer, but they will have no standing in any legal proceedings, in the same way as a legal guardian in family proceedings will be asked by the court, as somebody who stands aside, who speaks for the child but is not necessarily instructed by the child, and that is a very important thing. I am a lawyer who represents many children, but because children do not have any legal capacity, quite often it is very difficult to take instructions from them.

But there is another problem. Sometimes you, as an intelligent, well-informed person, think that the child has been trafficked, but the child, for psychological reasons and because of loyalty to family communities, steadfastly says they have not, or perhaps does not even realise they have been, whereas a guardian with legal status could stand back and say to the other adults, “You and I look at the surrounding evidence and must come to the conclusion that this child has been trafficked.” That is a role that I think an advocate could not really take, because they would still really be expressing what was told to them by the child. A guardian has an independent legal status and could stand back from the case and say, “Look at the evidence. This is what the child says and this is what I say as an independent expert with legal standing”, and that is very important in lots of cases of children.

Q 79

Photo of Chloe Smith Chloe Smith Ceidwadwyr, Norwich North

So going back to your earlier point about the way that, in your words, children may not understand the chain that they have been through, in what way is clause 2 inadequate, which seems to me to go through the different aspects of a chain fairly clearly?

Nadine Finch: In terms of clause 2 and trafficking, I do not myself think that it is impossible to get a child who has been trafficked into that clause, which is why most of civil society has asked for a provision on child exploitation, because we think it is with that group that the lacuna lies, not the trafficked children. If I could just cheekily go back to age, the issue about having a child exploitation offence and looking at the child part is actually a non-issue, because in every single exploitation and trafficking case where there is a child, age is an issue. It is an issue because the definition of trafficking is different for a child from what it is for an adult, so it necessarily has to be an issue. Age is always going to be an issue, because there is no need to prove means if it is a child, so it is going to come up.

Photo of Chloe Smith Chloe Smith Ceidwadwyr, Norwich North

I am happy to stop there, Chair. I assume others want to talk.

Q 80

Photo of Michael Connarty Michael Connarty Llafur, Linlithgow and East Falkirk

I recall, in written notes and evidence to the Joint Committee, that you, Mr Carter, had a very strong view about how supply chains should be policed or enforced, in terms of getting rid of slavery. You suggested an amendment similar to the Bribery Act 2010, which I have heard again through Anti-Slavery International, which has written to me in similar terms before. Why not just a company’s supply chain or the transparency in supply chains, like California—why the Bribery Act?

Peter Carter: It is simply for giving an indication of how importantly it is regarded—by creating a criminal offence. The California model is a good model. The alternative, which the Joint Committee proposed, was having a requirement to report, which is a starting point, but I do not see why companies should be regarded as having a less onerous obligation in respect of human trafficking and transparency in chains when it comes to modern slavery than they do, for example, over money  laundering or corruption. The Bribery Act and the Proceeds of Crime Act 2002 impose obligations on every big company, irrespective of whether they are £100 million companies, to comply with the law and to put in place proper provisions to make sure that they know whether they are breaking the law.

Photo of David Crausby David Crausby Llafur, Bolton North East

If there are no further questions from Members, I thank the witnesses for their evidence. That concludes our business for the afternoon.

Ordered, That further consideration be now adjourned. —(Damian Hinds.)

Adjourned till Tuesday 2 September at twenty-five minutes past Nine o’clock.

Written evidence reported to the House

MS 01 Professor Jean Allain