Caribbean Anti-Trafficking Law and Practice 9781509915569, 9781509915590, 9781509915576

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CARIBBEAN ANTI-TRAFFICKING LAW AND PRACTICE This monograph investigates the International, European and Commonwealth Caribbean approaches to human trafficking from an Analytical Eclectic perspective. It presents a compelling, empirically based argument that although there is currently a panoply of measures aimed at preventing human trafficking, prosecuting offenders and protecting trafficked victims in both Europe and the Commonwealth Caribbean, these measures have in practice been fraught with a number of challenges, whether of a normative, institutional or individual nature. The continued existence of these challenges strongly suggests that there exists a ‘disconnect’ between anti-trafficking law and practice which is not peculiar to small-island developing States since they also extend to developed States, including the United Kingdom. Although these challenges are not insurmountable, this monograph advances the argument that sustained social, economic, political and legal commitments are both necessary and desirable, and that without such commitments, only pyrrhic victories would be won in the fight to eradicate the scourge of the twenty-first century. Given the importance of the issue of human trafficking and its inescapable impact on victims, families, communities, nations, regions and the international community as a whole, this monograph will serve as an important resource for policy makers, scholars, students and practitioners actively working in this increasingly dynamic area of law. Volume 16 in the series Studies in International and Comparative Criminal Law

Studies in International and Comparative Criminal Law General Editor: Michael Bohlander Criminal law had long been regarded as the preserve of national legal systems, and comparative research in criminal law for a long time had something of an academic ivory tower quality. However, in the past 15 years it has been transformed into an increasingly, and moreover practically, relevant subject of study for international and comparative lawyers. This can be attributed to numerous factors, such as the establishment of ad hoc international criminal tribunals and the International Criminal Court, as well as to developments within the EU, the UN and other international organisations. There is a myriad of initiatives related to tackling terrorism, money laundering, organised crime, people trafficking and the drugs trade, and the international ‘war’ on terror. Criminal law is being used to address global or regional problems, often across the borders of fundamentally different legal systems, only one of which is the traditional divide between common and civil law approaches. It is therefore no longer solely a matter for domestic lawyers. The need exists for a global approach which encompasses comparative and international law. Responding to this development this new series will include books on a wide range of topics, including studies of international law, EU law, the work of specific international tribunals, and comparative studies of national systems of criminal law. Given that the different systems to a large extent operate based on the idiosyncracies of the peoples and states that have created them, the series will also welcome pertinent historical, criminological and socio-legal research into these issues. Editorial Committee: Mohammed Ayat (Rabat/Morocco) Robert Cryer (Birmingham/UK) Caroline Fournet (Groningen/NL) Tomoya Obokata (Belfast/UK) Alex Obote-Odora (Arusha/Tanzania) Dawn Rothe (Norfolk (VA)/USA) Silvia Tellenbach (Freiburg/Germany) Helen Xanthaki (London/UK) Liling Yue (Beijing/China) Recent titles in this series: The Concept of Mens Rea in International Criminal Law: The Case for a Unified Approach Mohamed Elewa Badar Genocide and Crimes against Humanity: Misconceptions and Confusion in French Law and Practice Caroline Fournet The Emergence of EU Criminal Law: Cyber Crime and the Regulation of the Information Society Sarah Summers, Christian Schwarzenegger, Gian Ege and Finlay Young Transitional Justice and the Prosecution of Political Leaders in the Arab Region: A Comparative Study of Egypt, Libya, Tunisia and Yemen Noha Aboueldahab

Caribbean Anti-Trafficking Law and Practice Jason Haynes

HART PUBLISHING Bloomsbury Publishing Plc Kemp House, Chawley Park, Cumnor Hill, Oxford, OX2 9PH, UK HART PUBLISHING, the Hart/Stag logo, BLOOMSBURY and the Diana logo are trademarks of Bloomsbury Publishing Plc First published in Great Britain 2019 Copyright © Jason Haynes, 2019 Jason Haynes has asserted his right under the Copyright, Designs and Patents Act 1988 to be identified as Author of this work. All rights reserved. No part of this publication may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording, or any information storage or retrieval system, without prior permission in writing from the publishers. While every care has been taken to ensure the accuracy of this work, no responsibility for loss or damage occasioned to any person acting or refraining from action as a result of any statement in it can be accepted by the authors, editors or publishers. All UK Government legislation and other public sector information used in the work is Crown Copyright ©. All House of Lords and House of Commons information used in the work is Parliamentary Copyright ©. This information is reused under the terms of the Open Government Licence v3.0 (http://www.nationalarchives.gov.uk/doc/ open-government-licence/version/3) except where otherwise stated. All Eur-lex material used in the work is © European Union, http://eur-lex.europa.eu/, 1998–2019. A catalogue record for this book is available from the British Library. Library of Congress Cataloging-in-Publication data Names: Haynes, Jason, author. Title: Caribbean anti-trafficking law and practice / Jason Haynes. Description: Chicago : Hart Publishing, 2019.  |  Series: Studies in international and comparative criminal law ; Volume 16  |  Includes bibliographical references and index. Identifiers: LCCN 2019001702 (print)  |  LCCN 2019001889 (ebook)  |  ISBN 9781509915583 (EPub)  |  ISBN 9781509915569 (hardback : alk. paper) Subjects: LCSH: Human trafficking—Law and legislation—Caribbean Area.  |  Forced labor—Law and legislation—Caribbean Area. Classification: LCC KGJ966.H85 (ebook)  |  LCC KGJ966.H85 H39 2019 (print)  |  DDC 345.729/02551—dc23 LC record available at https://lccn.loc.gov/2019001702 ISBN: HB: 978-1-50991-556-9 ePDF: 978-1-50991-557-6 ePub: 978-1-50991-558-3 Typeset by Compuscript Ltd, Shannon To find out more about our authors and books visit www.hartpublishing.co.uk. Here you will find extracts, author information, details of forthcoming events and the option to sign up for our newsletters.

FOREWORD 1 That we are dealing with Modern Slavery offences in the twenty-first century is both shocking and shaming. That these offences are increasingly prevalent in the Caribbean has a particularly depressing resonance. This trade, possibly more than any other criminal activity, diminishes us all. It has rightly been described as ‘the greatest human rights issue of our time’. Jason Haynes has approached this difficult topic with a balance of academic rigour and humanity. In addition to providing an invaluable source of information and data, he presents challenging arguments compelling everyone, especially politicians, lawyers, judges and academics to look again at the way in which we tackle these complex problems. More importantly, he obliges us all to re-examine our own attitudes. The book takes an ‘Analytical Eclectic’ approach to the question of human trafficking. I confess that this caused me to search for a definition. I learned that it is a method of analysis that achieves the benefits and insights of traditional research but consciously extends it beyond the purely academic. The goal is not simply to provide rigorous scholarly analysis but also to offer pragmatic understanding of complex problems and so encourage us to achieve practical solutions. Essentially it is a welcome blend of theory and pragmatism. The book provides a challenging intellectual workout, that such a catholic approach to the analysis of the subject might be described as ‘promiscuous’ is, at first, entertaining and intriguing to the practical lawyer but that reinforces its value as a guide to the practical application of the law as well as to a comprehension of its development. Its analysis of the issues in my own jurisdiction makes uncomfortable but invaluable reading. The exercise has been undertaken with such care and clarity that his assessment of strengths and weaknesses is compelling and authoritative. The work lucidly identifies the legal and political challenges that require domestic and international responses if true progress is to be made. Its purpose and effect is to stimulate and inform intelligent reflection and debate. It is to be hoped that these will provoke greater analysis in submissions in public law and criminal cases and so help to influence the development and application of the law in this critical area. As such this book will provide an invaluable guide to these involved in this area of practice as advisers, advocates and judges. His chapter on the Modern Slavery Act 2015 in the UK eloquently highlights the complexity of problems that our courts face in dealing with those who are guilty of trafficking in human beings but also in dealing with those who have been trafficked and might also go on to

vi  Foreword 1 commit criminal offences for which they do not have a full or partial defence. This evil trade reaches far into many aspects of legal and sociological practice: this book will inform and assist in a better understanding and development of that law and practice. Hon Mrs Justice Maura McGowan QC, DBE High Court Judge London November 2018

FOREWORD 2 This book is an essential and fundamental guide to any person or organisation that is interested or concerned about human trafficking. This type of crime is indeed horrific and is often referred to as a modern form of slavery and it is a grave violation of human rights. Every year, thousands of men, women and children fall into the hands of traffickers, in their own countries and abroad. Almost every country in the world is affected by trafficking, whether as a country of origin, transit or destination for victims and this is aptly highlighted by this monograph. It is widely accepted that the factors fuelling the human trafficking trade across the Caribbean include poverty, poor socio-economic status and inequality, often based on gender and/or ethnicity. These vulnerabilities are preyed upon by recruiters with lures ranging from the guise of ‘romantic’ relationships to deceptive information advertised in newspapers, on internet sites, and through text messaging. Dr Jason Haynes has captured the intricacies of the law relating to this area and expounded on the protections and obligations that ought to be in place by individuals, organisations and countries to meet their commitments. The monograph analyses human trafficking from an international and European perspective, but also focuses pertinently on the wider Caribbean region and the laws and regulations which may be seen as misfits in the increasingly complicated puzzle of global regulations on human trafficking. Politicians, journalists, lawyers and students who would wish to write or speak on this topic would be well advised to read this monograph, especially the ‘Situational Overview’ chapter, which is more than an overview. Dr Jason Haynes has provided detailed information and thought-provoking analyses of the existing state of affairs as regards human trafficking in the Caribbean from an Analytical Eclectic perspective in this scholarly and comprehensive monograph. All persons who are involved in this rapidly developing area of law and legal practice will benefit from this book. It is clearly evident that Dr Jason Haynes has devoted a lot of time in researching not only the cause and effects of human trafficking, but also the various international and Commonwealth Caribbean provisions and safeguards designed to protect victims of human trafficking. ­Interestingly, for example, chapter eight entitled, ‘Individual Aspects of Caribbean Anti-Trafficking Law and Practice’, addresses the appropriate threshold to be satisfied in respect of the evidential (not legal) burden imposed by the legislation on trafficked victims who commit offences they were forced to commit as a result of the trafficking experience.

viii  Foreword 2 This book is stimulating and thought-provoking and empowers those who read it to revisit the laws, practices and protocols within their countries, and to employ their best efforts to ensure that firstly human trafficking is eradicated; secondly, that victims of human trafficking, in particular, children are protected; thirdly, that adequate safeguards are put in place; and, just as importantly, there is continued informative discussion and debate about the issue. Hon Mr Justice Shiraz Aziz Supreme Court Judge Turks and Caicos Islands December 2018

PREFACE Human trafficking has quickly evolved to become one of the most sophisticated and lucrative forms of criminality in the world today. It does not discriminate. It affects the young and the old, black and white, poor and rich, big countries and small countries, affluent nations and impoverished nations. It is a scourge whose impact is as enduring as it is immeasurable. This monograph interrogates the international, European and Commonwealth Caribbean approaches to human trafficking from an Analytical Eclectic perspective. It presents a compelling, empirically based argument that although there is currently a panoply of measures aimed at preventing human trafficking, prosecuting offenders and protecting trafficked victims in both Europe and the Commonwealth Caribbean, the operationalisation of these measures has in practice been fraught by a number of challenges, whether of a normative, institutional or individual nature. The continued existence of these challenges strongly suggest that there exists a ‘disconnect’ between anti-trafficking law and practice, which is not peculiar to small-island developing states as they extend to developed states, including the United Kingdom. Although these challenges are not insurmountable, the monograph advances the argument that sustained social, economic, political and legal commitments are both necessary and desirable, and that without such commitments, only pyrrhic victories would be won in the fight to eradicate the scourge of the twenty-first century. Given the importance of the issue of human trafficking and its inescapable impact on victims, families, communities, nations, regions and the international community as a whole, it is hoped that this monograph will serve as an important resource for policymakers, scholars, students and practitioners actively working in this increasingly dynamic area of law. I have attempted to state the law as at 31 October 2018. Dr Jason Haynes Senior Legal Officer British High Commission Bridgetown, Barbados

x

ACKNOWLEDGEMENTS Completing a PhD thesis on human trafficking at Durham Law School in July 2015, and then subsequently reframing it for the purposes of publication as a specialised monograph in Hart’s Studies in International and Comparative Criminal Law has proven to be both a demanding and enlightening process. Indeed, while there were moments of intellectual bliss, there were also many moments when I questioned the value of completing what is undoubtedly the most challenging activity of my fledgling career thus far. I am, however, very pleased that this long and arduous journey that began while I was an intern at the Attorney General’s Chambers in St Vincent and the Grenadines in 2009 has finally ended, albeit 10 years later. Over the course of both my PhD and the subsequent process of reframing the thesis a number of people have provided timely assistance, invaluable feedback and willing sacrifice in helping me to complete this monograph. They include, Professor Clare McGlynn, Professor of Law, Durham Law School and Professor Fiona de Londras, Professor of Law, Birmingham Law School, who served as my incredibly brilliant and supportive doctoral supervisors; Justice Maura McGowan DBE, Presiding Judge on the South Eastern Circuit, Royal Courts of Justice, England and Wales, and Justice Shiraz Aziz, High Court Judge, Turks and Caicos Islands, for their remarkable wisdom, guidance and support; Ms Pam Bowen CBE, Senior Policy Advisor, Crown Prosecution Service (CPS), England and Wales, for her thoughtful guidance; Mrs Carla-Anne Harris-Roper, Regional Director of Labour Relations, Scotia Bank, Jamaica, whose timely interventions and prayers provided me with the moral support needed to endure the often isolating and arduous journey; Professor Stephen Vasciannie, President of the University of Technology, Jamaica, and Ms Tracy Robinson, Senior Lecturer in Law, University of the West Indies, Mona Campus, Jamaica, whose faithful mentorship has guided me to making some important decisions in my academic career, including completing this monograph, when I was very indecisive; and Ms Sirah Abraham, Criminal Justice Adviser to Barbados and the Eastern Caribbean, British High Commission, Bridgetown, Barbados, and colleagues at the British High Commission, more generally, whose enduring support, encouragement and thoughtful conversations were always appreciated. I am also personally grateful to my family and friends, namely Camelie and Dea Haynes, Remorno Hamilton, Krystal Lawrence, Jai-Len Williams, Rose-Ann Richardson, Jezeel Martin, Odelia Thomas, Lucy Theobalds, Gabrielle Myers, Bernisa Roberts, Lana Ashby, Lanasia Nicholas, Jodi-Ann Petrie and Denise Rattray for their tremendous support, patience and prayers that have no doubt contributed to my completing this monograph in a timely fashion.

xii  Acknowledgements Additionally, I am grateful to the over 50 stakeholders actively working in the anti-trafficking field in the Caribbean with whom I had the privilege of speaking. They are the real heroes of this venture! Most of all, I especially give thanks to God for providing me with the vision, insight and strength necessary to complete this monograph.

TABLE OF CONTENTS Foreword 1���������������������������������������������������������������������������������������������������������������������v Foreword 2������������������������������������������������������������������������������������������������������������������ vii Preface�������������������������������������������������������������������������������������������������������������������������� ix Acknowledgements������������������������������������������������������������������������������������������������������ xi Biography������������������������������������������������������������������������������������������������������������������� xix Table of Cases������������������������������������������������������������������������������������������������������������ xxi Table of Legislation������������������������������������������������������������������������������������������������� xxvii Table of International Conventions������������������������������������������������������������������������ xxxi 1. Introduction�������������������������������������������������������������������������������������������������������������1 I. Overview���������������������������������������������������������������������������������������������������������1 II. Locating the ‘Commonwealth Caribbean’��������������������������������������������������4 III. Situational Overview�������������������������������������������������������������������������������������5 A. The ‘Big Six’��������������������������������������������������������������������������������������������6 i. Barbados����������������������������������������������������������������������������������������6 ii. The Bahamas���������������������������������������������������������������������������������7 iii. Belize����������������������������������������������������������������������������������������������8 iv. Guyana�����������������������������������������������������������������������������������������10 v. Jamaica�����������������������������������������������������������������������������������������11 vi. Trinidad and Tobago������������������������������������������������������������������15 B. The Eastern Caribbean������������������������������������������������������������������������17 i. Antigua and Barbuda�����������������������������������������������������������������18 ii. Dominica�������������������������������������������������������������������������������������18 iii. Grenada����������������������������������������������������������������������������������������19 iv. St Kitts and Nevis������������������������������������������������������������������������20 v. St Lucia�����������������������������������������������������������������������������������������20 vi. St Vincent and the Grenadines�������������������������������������������������20 C. The Overseas Territories���������������������������������������������������������������������21 IV. Further Afield�����������������������������������������������������������������������������������������������22 A. The French Caribbean�������������������������������������������������������������������������22 B. The Spanish Caribbean�����������������������������������������������������������������������24 C. The Dutch Caribbean��������������������������������������������������������������������������25 V. Summary�������������������������������������������������������������������������������������������������������26 VI. Structure of the Monograph�����������������������������������������������������������������������26

xiv  Table of Contents 2. Theoretical Perspectives on Human Trafficking������������������������������������������������27 Introduction�����������������������������������������������������������������������������������������������������������27 I. Economic Theory�����������������������������������������������������������������������������������������27 II. Criminology Theories���������������������������������������������������������������������������������29 A. Social Disorganization Theory����������������������������������������������������������29 B. Rational Choice and Neutralization Theories����������������������������������30 C. Integrated Theory��������������������������������������������������������������������������������32 III. Feminist Theories�����������������������������������������������������������������������������������������33 A. Feminist Abolitionists�������������������������������������������������������������������������33 B. Feminist Prohibitionists���������������������������������������������������������������������35 IV. Brief Reflections�������������������������������������������������������������������������������������������36 V. Analytic Eclecticism������������������������������������������������������������������������������������37 VI. Methodology������������������������������������������������������������������������������������������������42 A. The Doctrinal Approach���������������������������������������������������������������������42 B. The Socio-Legal Approach�����������������������������������������������������������������43 C. The Comparative Approach���������������������������������������������������������������44 Conclusion��������������������������������������������������������������������������������������������������������������46 3. International Dimensions of Anti-Trafficking Law and Practice��������������������47 Introduction�����������������������������������������������������������������������������������������������������������47 I. The Criminal Justice Approach������������������������������������������������������������������48 A. General��������������������������������������������������������������������������������������������������48 i. United Nations Convention Against Transnational Organized Crime������������������������������������������������������������������������51 ii. The UN Trafficking Protocol�����������������������������������������������������53 a. A Common Definition�������������������������������������������������������53 b. Strong Emphasis on Prevention and Prosecution����������54 c. Challenges to the Protocol’s Efficacy��������������������������������55 d. Transnational Limitation or Broader Scope of Application?��������������������������������������������������������������������55 e. The Protection Obligation: A Lost Opportunity?�����������57 f. Final Impressions����������������������������������������������������������������58 iii. The Rome Statute of the International Criminal Court���������58 a. Application of the Statute of the ICC to Human Trafficking����������������������������������������������������������������������������60 B. ‘Hegemonic Assumptions’������������������������������������������������������������������62 i. Persons not Rescued by Law Enforcement Officials are not Trafficked Victims���������������������������������������������������������62 ii. A ‘Real’ Victim is a Passive Foreign Girl or Woman Who has been Trafficked for the Purpose of Sexual Exploitation���������������������������������������������������������������������������������63 iii. Only a Cooperative Victim/Witness is Worthy of Protection��������������������������������������������������������������������������������64 iv. Statistical Improvements are a Good Indicator of ‘Success’ in Responding to Human Trafficking������������������66

Table of Contents  xv II. The Human Rights Approach���������������������������������������������������������������������66 A. General��������������������������������������������������������������������������������������������������66 i. The International Covenant on Civil and Political Rights (ICCPR)���������������������������������������������������������������������������69 a. Article 8 of the ICCPR: An Interpretive Conundrum?���������������������������������������������������������������������������� 70 ii. The International Covenant on Economic, Social and Cultural Rights (ICESCR)�����������������������������������������������72 a. Challenges to the Protection of Economic, Social and Cultural Rights�����������������������������������������������74 iii. The International Convention on the Elimination of All Forms of Racial Discrimination (ICERD)�����������������76 iv. The Convention on the Rights of the Child (CRC)�������������78 a. Key Points of Contention������������������������������������������������80 v. The Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW)��������������������81 vi. Special Procedures�������������������������������������������������������������������86 a. The Special Rapporteur on Trafficking in Persons, Especially Women and Children������������������������������������86 b. The Special Rapporteur on Violence Against Women, its Causes and Consequences��������������������������87 c. The Special Rapporteur on the Sale of Children, Child Prostitution and Child Pornography�������������������88 d. The Special Rapporteur on the Human Rights of Migrants������������������������������������������������������������������������89 e. Practical Concerns������������������������������������������������������������89 vii. The Convention Relating to the Status of Refugees�������������91 a. At Risk of Being ‘Persecuted’�������������������������������������������92 b. A Member of a ‘Particular Social Group’ Requirement����������������������������������������������������������������������93 c. The Presumption of State Protection�����������������������������95 viii. The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment�������������96 a. Severe Pain and Suffering������������������������������������������������97 b. A Specific Purpose������������������������������������������������������������98 c. A Nexus Between ‘Severe Pain and Suffering’ and the ‘State or its Officials’�������������������������������������������98 ix. Reflections���������������������������������������������������������������������������������99 x. Other Relevant International Instruments���������������������������99 B. ‘Hegemonic Assumptions’����������������������������������������������������������������101 i. Preventative Measures Aimed at Raising Awareness about Human Trafficking Always Result in Positive Attitudinal Changes���������������������������������������������������������������101 ii. Measures Taken to Protect Victims of Trafficking always Operate in their Best Interests���������������������������������103

xvi  Table of Contents III. Summary��������������������������������������������������������������������������������������������������104 A. Typology of Obligations����������������������������������������������������������������105 Conclusion������������������������������������������������������������������������������������������������������������106 4. The European Approach to Human Trafficking����������������������������������������������108 Introduction����������������������������������������������������������������������������������������������������������108 I. Situational Overview������������������������������������������������������������������������������109 II. Legal Frameworks�����������������������������������������������������������������������������������110 A. The European Union (EU)������������������������������������������������������������110 B. Council of Europe��������������������������������������������������������������������������114 III. Political and Institutional Commitment����������������������������������������������115 IV. Public Awareness, Stakeholder Collaboration and Capacity Building����������������������������������������������������������������������������������������������������116 V. Criminalisation and Sanctioning����������������������������������������������������������119 VI. Investigation, Victim Identification and Referral�������������������������������127 VII. A Victim-Centred Approach�����������������������������������������������������������������132 VIII. Protection of Trafficked Victims�����������������������������������������������������������136 A. Victims’ Participation in Court Proceedings������������������������������136 B. Privacy and Confidentiality����������������������������������������������������������137 C. Information, Documentation and Interpretation/ Translation���������������������������������������������������������������������������������������138 IX. Material, Medical and Psychological Assistance and Accommodation������������������������������������������������������������������������������140 X. Protection and Support for Child Victims������������������������������������������142 XI. Regularisation of Immigration Status, Repatriation and Reintegration������������������������������������������������������������������������������������143 XII. Compensation�����������������������������������������������������������������������������������������146 XIII. Hegemonic Assumptions�����������������������������������������������������������������������147 Conclusion������������������������������������������������������������������������������������������������������������148 5. Anti-Trafficking Law and Practice in England and Wales������������������������������150 Introduction����������������������������������������������������������������������������������������������������������150 I. Criminalising Trafficking in Persons����������������������������������������������������151 II. Investigating Trafficking in Persons�����������������������������������������������������153 III. Identifying and Referring Victims of Trafficking�������������������������������160 IV. Discretionary Leave to Remain�������������������������������������������������������������163 V. Support and Assistance of Trafficked Victims�������������������������������������166 VI. Child Victims of Trafficking������������������������������������������������������������������173 VII. Criminal Proceedings�����������������������������������������������������������������������������174 VIII. Compensating Victims of Trafficking for Harm Suffered������������������178 A. Employment Tribunal��������������������������������������������������������������������179 B. The Criminal Injuries Compensation Scheme���������������������������182

Table of Contents  xvii C. Civil Litigation��������������������������������������������������������������������������������185 D. Harassment Legislation�����������������������������������������������������������������188 E. Reparation Order����������������������������������������������������������������������������189 IX. The Non-Punishment of Victims of Trafficking���������������������������������190 X. Institutional Commitment���������������������������������������������������������������������204 XI. Confiscation/Forfeiture of Assets���������������������������������������������������������208 XII. Prevention and Risk Orders������������������������������������������������������������������211 XIII. Transparency in Supply Chains�������������������������������������������������������������213 Conclusion������������������������������������������������������������������������������������������������������������215 6. Normative Aspects of Caribbean Anti-Trafficking Law and Practice�����������216 Introduction���������������������������������������������������������������������������������������������������������216 I. Domestic Legal Framework�������������������������������������������������������������������216 II. Normative Considerations���������������������������������������������������������������������218 A. Criminalising Human Trafficking������������������������������������������������218 B. Penalising Traffickers and their Associates���������������������������������223 i. Mode of Trial��������������������������������������������������������������������������228 ii. Mandatory Minimum Sentences�����������������������������������������231 iii. Sentencing������������������������������������������������������������������������������236 a. The United Kingdom�����������������������������������������������������238 b. Jamaica����������������������������������������������������������������������������244 c. Trinidad and Tobago�����������������������������������������������������246 d. The Eastern Caribbean��������������������������������������������������247 C. Forfeiture/Confiscation of Assets�������������������������������������������������250 D. Restitution/Compensation������������������������������������������������������������253 E. Investigation������������������������������������������������������������������������������������259 Conclusion������������������������������������������������������������������������������������������������������������263 7. Institutional Aspects of Caribbean Anti-Trafficking Law and Practice��������264 Introduction���������������������������������������������������������������������������������������������������������264 I. Human Trafficking on the National/Regional Agenda����������������������264 II. Capacity Building������������������������������������������������������������������������������������272 III. Stakeholder Collaboration���������������������������������������������������������������������275 IV. Victim Identification and Referral��������������������������������������������������������279 V. Court Proceedings����������������������������������������������������������������������������������285 A. Preliminary Enquiry����������������������������������������������������������������������285 B. Trial by a Judge and Jury or Judge Alone?�����������������������������������292 C. Special Measures�����������������������������������������������������������������������������293 D. Witness Anonymity������������������������������������������������������������������������295 E. Other Considerations��������������������������������������������������������������������305 F. Criminal Procedure Rules�������������������������������������������������������������308 Conclusion������������������������������������������������������������������������������������������������������������310

xviii  Table of Contents 8. Individual Aspects of Caribbean Anti-Trafficking Law and Practice�����������311 Introduction���������������������������������������������������������������������������������������������������������311 I. Primacy of Victims’ Rights��������������������������������������������������������������������311 A. Non-Punishment of Trafficking Victims�������������������������������������313 B. Witness Protection�������������������������������������������������������������������������319 II. Meeting the Basic Needs of Trafficked Victims����������������������������������321 III. Medical and Psychological Assistance�������������������������������������������������323 IV. The Special Position of Child Victims��������������������������������������������������325 V. Accommodation��������������������������������������������������������������������������������������328 VI. Privacy and Confidentiality�������������������������������������������������������������������331 VII. Information, Documentation and Interpretation/Translation���������332 VIII. Regularisation of Victims’ Immigration Status�����������������������������������335 IX. Repatriation���������������������������������������������������������������������������������������������338 X. Reintegration�������������������������������������������������������������������������������������������340 Conclusion������������������������������������������������������������������������������������������������������������342 9. Conclusion: The Way Forward���������������������������������������������������������������������������343 Introduction���������������������������������������������������������������������������������������������������������343 I. General Findings�������������������������������������������������������������������������������������343 II. Reforming Anti-Trafficking Law and Practice������������������������������������347 A. Ensuring Clarity and Consistency�����������������������������������������������348 B. Capacity Building���������������������������������������������������������������������������349 C. Affording Effective Access to Legal Processes and Redress������350 D. Improving Access to Assistance, Support and Reintegration�������352 E. Improving Coordination���������������������������������������������������������������353 F. Addressing Broader Structural Conditions��������������������������������353 III. Summary��������������������������������������������������������������������������������������������������354 Bibliography���������������������������������������������������������������������������������������������������������������355 Index��������������������������������������������������������������������������������������������������������������������������391

BIOGRAPHY Jason Haynes is the Senior Legal Officer at the British High Commission, ­Bridgetown, Barbados. He is a graduate of the University of the West Indies, Cave Hill Campus, Barbados (Bachelor of Laws, First Class Honours); the University of Nottingham (Master of Laws, Distinction); the University of Durham (PhD in Law); and the Norman Manley Law School (Legal Education Certificate). He is a barrister-at-law and solicitor admitted to practise in the State of St Vincent and the Grenadines and an attorney-at-law admitted to practise in Barbados. Jason received the Durham University Learning and Teaching Award (DULTA) and was the recipient of the Postgraduate Certificate in Academic Practice from Durham University. He is also a Fellow of the UK Higher Education Authority. He has taught law at undergraduate and postgraduate levels at Durham Law School and the University of the West Indies (Mona Campus, Jamaica, and Cave Hill Campus, Barbados). He is a former National Scholarship recipient from the State of St Vincent and the Grenadines; a former British Chevening Scholarship recipient; and a former Commonwealth Scholarship recipient. Jason has presented at conferences in Europe, Africa, North America and the Caribbean, and has published widely in a number of leading peer-reviewed journals, including the Statute Law Review, International and Comparative Law Quarterly, European Human Rights Review and Common Law World Review. He is a member of the Eastern Caribbean Supreme Court’s (ECSC) Sentencing Advisory Committee and has held a brief stint working with the ECSC in St Lucia. He is also co-author of Commonwealth Caribbean Sports Law (Routledge, London, 2018).

xx

TABLE OF CASES A v Joel Udukhokhe ABU, Teresa Mojisola ABU [2017] EWHC 3098 (QB)......................................................................................... 186, 188 A, B v Criminal Injuries Compensation Authority, Secretary of State for Justice [2018] EWCA Civ 1534............................................................... 75, 183 AG v Ray Bacchus (Guyana Court of Appeal, 24 July 2018)..................................291 Aguillera and Ors v The State Crim App Nos 5, 6, 7, 8 of 2015.............................246 Al-Khawaja v United Kingdom (2012) 54 EHRR 23...............................................300 AM and BM (Trafficked Women) Albania CG [2010] UKUT 80 (IAC)..............145 Antanas Galdikas & Others V DJ Houghton Catching Services Ltd and Ors [2016] EWHC 1376 (QB).......................................................................179 Applicant A v Minister for Immigration and Ethnic Affairs (MIEA) [1997] HCA 4; (1997) 190 CLR 225......................................................................94 Application No 339209, Conseil d’Etat, judgment of 15 June 2012.......................138 AT & Others v Dulghieru & Anor [2009] EWHC 225............................................186 Attorney General of Canada v Ward [1993] 2 SCR 688............................................93 Attorney General v Hall [2016] UKPC 28................................................................229 Attorney General v Leroy Smith and Tony Smith SCCrApp No 95 of 2014............................................................................................................ 301, 305 Attorney General’s Reference (No 1 of 2008)...........................................................242 AZ (Trafficked women) Thailand CG [2010] UKUT 118 (IAC)................... 144, 196 Bernadette Faure v Australia (2005) 1036/2001.........................................................70 Bruce Colebrooke v R SCCrimApp No 151 of 2015................................................304 C v Criminal Injuries Compensation Authority CI011/15/00026.........................182 CN v The United Kingdom, App no 4239/08 (ECtHR, 13 November 2012........................................................................................ 124, 151 C-106/89 Marleasing SA v La Comercial Internacional de Alimentacion SA [1990] ECR I-4135.................................................................................................113 C-212/04 Adeneler and Others [2006] ECR I-6057)...............................................113 C-48/93 Brasserie du Pêcheur and Factortame III [1996] ECR I-1029.................113 C-60/02 X (‘Rolex’) Criminal Proceedings against [2004] ECRI-651...................113 C-91/92 Paola Faccini Dori v Recreb Srl [1994] ECR I-3325.................................112 Case 264/96 ICI v Colmer [1998] ECR I-4695.........................................................111 Case 11/70 Internationale Handelsgesellschaft [1970] ECR 1125.........................111 Case 148/78 Pubblico Ministero v Ratti [1979] ECR 1629.....................................112 Case 152/84 Marshall v Southampton and South-West Hampshire Area Health Authority (Teaching) [1986] ECR 723..........................................112

xxii  Table of Cases Case C-266/08 Commission v Spain, Judgment of the Court (Sixth Chamber) of 14 May 2009.........................................................................115 Case 6/64 Flaminio Costa v ENEL [1964] ECR 585................................................111 Case C-188/89 Foster v British Gas [1990] ECR I-3313.........................................112 Case C-224/01 Köbler v Austria [2003] ECR-I 10239.............................................113 Case C-62/00 Marks & Spencer Plc v. Commissioners of Customs & Excise [2002] ECR I-6325.....................................................................................112 Case C-66/95 Sutton v Secretary of State for Social Security [1997] ECR I-2163, [1997] 2 CMLR 382.........................................................................113 Case CA5-00766 (2006).................................................................................................95 Case N05/50773 [2005] RRTA 103 (28 June 2005)....................................................95 Case V01/13868 [2002] RRTA 799 (6 September 2002).................................... 94–95 Case V03/16442 [2004] RRTA 474 (25 June 2004)....................................................95 Cases 14/83 Von Colson and Kamann [1984] ECR 1891.......................................113 Cheryl Thompson v The Attorney General of Antigua and Barbuda ANUHCV 2011/0830.................................................... 223, 229–30, 252 Clement Reid v R [2013] JMCA Crim 41.................................................................313 Crown Prosecution Service v Jennings [2008] UKHL 29.......................................208 Desmond Baptiste et al v The Queen, Criminal Appeal No 8 of 2003 (St Vincent and the Grenadines)..........................................................................237 Doorson v The Netherlands [1996] ECHR 14..........................................................300 Ebanks and Reeves v R HCC 112/13...........................................................................13 Edwin Bowen v PC 440 George Ferguson, Criminal Appeal No 6 of 2015..........233 Gibbons et al [2008] NICA 41....................................................................................242 H v Secretary of State for the Home Department [2018] EWHC 2191 (Admin)...........................................................................162, 187, 206 Herbie Spencer v CICB Civil Appeal No 17 of 2017...............................................258 Hilroy Humphreys v The Attorney General of Antigua and Barbuda Privy Council Appeal No 8 of 2008.....................................................................290 Hinds and Others v The Queen (1975) 24 WIR 326 (PC)......................................230 Horvath v SSHD [2000] UKHL 37 (6 July 2000).......................................................95 Hounga v Allen and another [2014] UKSC 47.........................................................179 Ireland v UK, Application no 5310/71 (18 January 1978)........................................98 Islam v SSHD, R v IAT and Another ex parte Shah UKHL [1999] 2 WLR 1015..............................................................................................................93 Jason Jones v The Attorney General of Trinidad and Tobago and The Equal Opportunity Commission, The Trinidad And Tobago Council of Evangelical Churches and The Sanatan Dharma Maha Sabha of Trinidad And Tobago TTHCV2017-00720........................................................235 Joined Cases 21-24/72 International Fruit Company [1972] ECR 1219...............112 Joined Cases C-6 and 9/90 Francovich and Bonifaci v Republic of Italy [1991] ECR I-5375............................................................................. 112–13 L and Others v R [2013] EWCA Crim 991...................................................... 195, 314

Table of Cases  xxiii LM, MB, DG, Betti Tabot and Yutunde Tijani v The Queen [2010] EWCA Crim 2327..................................................................................................191 LS v The British Red Cross Society [2014] EWCA Civ 1622......................... 167, 177 M and Others v Italy and Bulgaria Application no 40020/03 (ECtHR, 31 July 2012).................................................................................... 129–30 Case N02/13996 [2003] RRTA 56 (22 January 2003)................................................94 Case N98/24000 [2000] RRTA 33 (13 January 2000)................................................94 OOO and Others v Commissioner of Police [2011] EWHC 1246 (QB)..............129 Osman v United Kingdom (23452/94) [1998] ECHR 101............................... 128–30 Prosecutor v Furundzija 38 ILM 317 (1999) (International Criminal Tribunal for the Former Yugoslavia, Trial Chamber, No IT-95-17/1-T, 10 December 1998)..................................................................................................97 Prosecutor v Gombo, Decision on the Confirmation of charges, ICC-01/05-01/08-424..............................................................................................59 Prosecutor v Katanga, Decision on the Confirmation of charges, ICC-01/04-01/07-717..............................................................................................59 Prosecutor v Kunarac (IT-96-23 and IT-96-23-1) ICTY................................... 61, 98 Puthenveetil v Santosh Alexander and Rea George, Employment Appeal Tribunal Appeal No UKEATPA/0125/14/LA.......................................181 Queen v Matyas [2012] NICC 14...............................................................................242 R (on the application of CP (Vietnam)) v Secretary of State for the Home Department [2018] EWHC 2122 (Admin)..................... 154, 160–61, 187 R (On the Application of TDT, By His Litigation Friend Tara Topteagarden) v The Secretary of State for the Home Department v Equality and Human Rights Commission [2018] EWCA Civ 1395...............................154 R (XYL) v Secretary of State for the Home Department [2017] EWHC 773 (Admin)..............................................................................................160 R v Alexandra Dorina Craciunescu [2017] EWCA Crim 36..................................199 R v Alexis-McLymont and Elgin and Hird 2018 ONCS 1389................................234 R v Anglin GICA (Crim) No 4/2012 Ind 4/200.......................................................304 R v Chen, Dempsey and Hinton [2012] NICC 26...................................................242 R v Christopher Thomas [2017] JMSC Crim 2........................................................293 R v D’Souza 2016 ONSC 2749....................................................................................220 R v Darby [1994] BCJ No 814 (Prov Ct)...................................................................288 R v Davis [2008] UKHL 36..........................................................................295, 297–98 R v DJX, SCY and GCZ (1989) 91 Cr App R 36.......................................................293 R v GS [2018] EWCA Crim 1824 (31 July 2018).....................................................200 R v HTB [2012] EWCA Crim 211....................................................................... 196–97 R v Hermalinda Parker et al HCC 126/11.................................................................292 R v Hughes [1986] 2 NZLR 129..................................................................................296 R v Mayers [2008] EWCA Crim 2989.............................................................. 298, 300 R v Mercer 2017 NSPC 20...........................................................................................234 R v MK; R v Gega [2018] EWCA Crim 667..................................................... 202, 204

xxiv  Table of Cases R v Hines [1997] 3 NZLR 529.....................................................................................296 R v N; R v LE [2012] EWCA Crim 189....................................................192, 197, 314 R v Nur 2015 SCC 15, [2015] 1 SCR 773...................................................................234 R v O [2008] EWCA Crim 2835................................................................140, 142, 193 R v Oakes [1986] 1 SCR 103................................................................................ 235–36 R v Rezvi [2002] UKHL 1............................................................................................208 R v Sakhizada (Abdul) [2012] EWCA Crim 1036...................................................252 R v Sermanfure Joseph [2017] EWCA Crim 36.................193, 198–99, 314, 317–18 R v Stinert 2015 ABPC 4 (CanLII)...................................................................... 287–88 R v Taueki, Ridley and Roberts [2005] NZLR 372...................................................246 R v Ward [1976] OJ No 807 (HC)..............................................................................288 R v Waya [2012] UKSC 51..........................................................................................209 R v Z [2005] 2 AC 467.................................................................................................191 R v Bow Street Metropolitan Stipendiary Magistrate, Ex parte Pinochet Ugarte (No. 3), [1999] 2 WLR 827 (HL)...............................................................97 Rantsev v Cyprus and Russia [2010] ECHR 22............................... 114, 119, 123–24, 126, 128–31, 146 Rantsev v Cyprus and Russia IHRL 3632 (ECHR 2010)...........................................70 Raynor v CICB [2009] Bda LR 19..............................................................................258 (Re) DJP Decision of Canadian Immigration and Refugee Board (IRB)...............92 Regina v Andrew Clive Briggs [2018] EWCA Crim 1135......................................209 Regina v Sandor Jonas [2015] EWCA Crim 562......................................................175 Regina v Special Adjudicator, Ex parte Hoxha (FC), [2005] UKHL 19..................94 Regina v SSHD, Ex Parte Sivakumaran [1988] AC 958.............................................95 Republic of Kenya, Decision on the Authorisation of an Investigation, ICC-01/09-19............................................................................................................59 S v Leepile (1–3) 1986 (2) SA 333, (4) 1986 (3) SA 661, (5) 1986 (4) SA 187......296 Secretary of State for the Home Department v H [2016] EWCA Civ 565............153 Selassie and Pearman v Queen [2013] UKPC 29.....................................................231 Shanique Myrie v Barbados [2012] CCJ 3..................................................................20 Siliadin v France [2005] ECHR 545......................................................70, 121–24, 151 Skinner v Shew [1893] 1 Ch 413................................................................................315 Skogman v The Queen [1984] 2 SCR 93, 1984 CanLII 22 (SCC)..........................286 Smith v Illinois 390 US 129, 131 (1968)....................................................................296 SSHD v Dzhygun [2000] UKIAT 00TH00728............................................................94 Tajmal Webb v CICB Civil Appeal No 23 of 2017...................................................258 The Attorney-General of Antigua and Barbuda v Hilroy Humphreys Civil Appeal No 1 of 2007.....................................................................................291 The Queen (on the application of AG, RT, Edgaras Subatkis, Edviana Subatkis) v Secretary of State for the Home Department and Ors [2016] EWHC 942 (Admin)..............................................................................................167 The Queen on the Application of EM v The Secretary of State for the Home Department [2018] EWCA Civ 1070......................................166, 169, 323

Table of Cases  xxv The Queen on the Application of MC v London Borough of Camden, Secretary of State for the Home Department [2015] EWHC 4034 (Admin)............................................................................................170 The Queen on the Application of PK (Ghana) v The Secretary of State for the Home Department [2018] EWCA Civ 98.............................164, 168, 336 The Sussex Peerage Case (1844) 11 Cl&Fin 85.........................................................318 Thames and Mersey Marine Insurance Co v Hamilton, Fraser & Co (1887) 12 App Cas 494.......................................................................................................315 Trevor Stone v The Queen Privy Council Appeal No 11 of 1979.................... 292–93 Williams and Others v INDECOM [2012] JMFC Full 1.........................................235 XPQ v The London Borough of Hammersmith and Fulham [2018] EWHC 1391 (QB).................................................................................168, 171, 328

xxvi

TABLE OF LEGISLATION Anguilla Criminal Code (Act 14/2009)���������������������������������������������������217, 219, 228 Antigua and Barbuda Evidence (Special Provisions) (Amendment) Act 2016������������������������������������������������������������������������������������������������������������������293 Antigua and Barbuda Magistrate’s Code of Procedure Amendment (Act 13/2004)���������������������������������������������������������������������������������������������������������289 Antigua and Barbuda TIP Act��������������������������������������������219–23, 228, 251, 254–55, 259, 272, 275, 279–81, 293, 312, 316, 321, 323, 328, 333, 335, 338–39 Antigua and Barbuda Trafficking in Persons (Prevention) Act 2010 (Act 12/2010)���������������������������������������������������������������������������������������������������������217 Asylum and Immigration (Treatment of Claimants, etc) Act 2004����������������������125 Bahamas Proceeds of Crime Act 2018����������������������������������������������������������������������251 Bahamas Trafficking in Persons (Prevention and Suppression) Act 2008�����������217 Barbados Trafficking in Persons Prevention Act 2016�������������������������������������������217 Belize Criminal Procedure Rules, 2016��������������������������������������������������������������������308 Belize Evidence (Amendment) Act 2017 (Act 24/2017)����������������������������������������293 Belize Trafficking in Persons (Prohibition) Act 2013���������������������������������������������217 Bermuda Criminal Code 1907����������������������������������������������������������������������������������231 Bermuda Criminal Injuries (Compensation) Act 1973�������������������������������� 256, 258 Bermuda Evidence (Audio Visual Link) Act 2018��������������������������������������������������293 Bermuda Proceeds of Crime Act 1997���������������������������������������������������������������������251 Bermuda Transnational Organised Crime Act 2013��������������������� 217, 219, 221–23, 228, 338–39 British Virgin IslandVI Proceeds of Criminal Conduct Act 1997������������������������251 British Virgin Islands Criminal Code (Amendment) Act 2007 (Act 3/2007)�����217 California Transparency in Supply Chains Act 2010����������������������������������������������213 Canadian Criminal Code 1995������������������������������������������������������������������������� 234, 236 Cayman Islands Proceeds of Crime Law, 2018 Revision���������������������������������������251 Cayman Islands Trafficking in Persons (Prevention and Suppression) Law 2007�����������������������������������������������������������������������������������������������������������������217 Child Care and Protection Act (Jamaica) 2004������������������������������� 222, 326, 331–32 Coroners and Justice Act 2009����������������������������������������������������������125, 175, 298, 300 Criminal Evidence (Witness Anonymity) Act 2008�������������������������������������� 295, 298 Criminal Evidence (Witness Anonymity) Act 2010 (Part III)������������������������������295 Criminal Injuries Compensation Act 1995��������������������������������������������������������������182 Criminal Procedure Code (2014 Revision)�������������������������������������������������������������289

xxviii  Table of Legislation Deduction from Wages (Limitation) Regulations 2014�����������������������������������������180 Domestic Violence, Crime and Victims Act 2004��������������������������������������������������201 Dominica Protection of Witnesses Act 2012�����������������������������������������������������������293 Dominica Transnational Organized Crime (Prevention and Control) Act 2013�����������������������������������������������������������������������������������������217, 275, 293, 312 England and Wales Criminal Procedure Rules�������������������������������������������������������308 Equality Act 2010��������������������������������������������������������������������������������������������������������179 Gangmasters (Licensing Conditions) Rules 2009���������������������������������������������������179 Grenada Criminal Procedure Code, CAP 72B��������������������������������������������������������286 Grenada Prevention of Trafficking in Persons Act 2014����������������������������������������217 Grenada Proceeds of Crime Act (Act 6/2012)���������������������������������������������������������251 Grenada Protection of Witnesses Act 2014�������������������������������������������������������������293 Guyana Anti-Money Laundering Act 2009�������������������������������������������������������������251 Guyana Combating of Trafficking iIn Persons Act 2005 (Act 2/2005)����������������217 Guyana Evidence Act (as amended by Act 19/2008)����������������������������������������������293 Human Trafficking and Exploitation (Criminal Justice and Support for Victims) Act (Northern Ireland) 2015���������������������������������������������������������166 Human Trafficking and Exploitation (Scotland) Act 2015������������������������������������166 The Indictable Offences (Committal Proceedings) Act 2014��������������������������������289 Interception of Communications Act 2010�������������������������������������������������������������259 Jamaica Child Care and Protection Act 2004����������������������������������������������������������222 Jamaica Evidence (Special Measures) Act 2012������������������������������������������������������293 Jamaica Proceeds of Crime Act 2007������������������������������������������������������������������������251 Jamaica Trafficking in Persons (Prevention, Suppression and Punishment) Act 2007 (Act 1/2007)���������������������������������������������������� 12, 217, 260 Jamaica Trafficking in Persons (Prevention, Suppression and Punishment) Act 2018������������������������������������������������������������������������������������������������������������������292 Labour Officers (Powers) Act Cap 203 (Law 26/1956 (Jamaica))�������������������������259 Legal Aid, Sentencing and Punishment of Offenders Act 2012������������������� 177, 181 Magistrate’s Code of Procedure Amendment (Act 13/2004)�������������������������� 289–90 Magistrate’s Courts Chapter 116A����������������������������������������������������������������������������289 Magistrate’s Code of Procedure Amendment) Act 2018 (Act 4/2018)�����������������289 Modern Slavery Act (2015)������������������������������������������� v, 125, 150–54, 156, 158, 160, 166, 171, 173–78, 189–91, 201, 204–09, 211–15 Montserrat Penal Code, CAP 4:02����������������������������������������������������������������������������219 Occupational Safety and Health Act (Act 1/2004, Trinidad and Tobago)�����������259 Offences Against the Person Act 1861����������������������������������������������������������������������201 Police and Criminal Evidence Act 1984���������������������������������������������������������� 116, 154 Powers of the Criminal Courts (Sentencing Act) 2000������������������������������������������190 Proceeds of Crime Act (POCA) 2002��������������������������������������������������������208–09, 211 Protection from Harassment Act 1997���������������������������������������������������������������������188 Protection of Witnesses Act 2013 (Part II)��������������������������������������������������������������295

Table of Legislation  xxix Regulation of Investigatory Powers Act 2000����������������������������������������������������������154 Sexual Offences Act 2003, Chapter 8:03���������������������������125, 194, 243–44, 289, 291 St Kitts and Nevis Evidence Act 2011 (Act 30/2011)������������������������������������� 293, 302 St Kitts and Nevis Proceeds of Crime Act, CAP 4.28���������������������������������������������251 St Kitts and Nevis Trafficking in Persons (Prevention) Act 2008 (Act/32 2008)���������������������������������������������������������������������������������������������������������217 St Lucia Counter–Trafficking Act 2010 (Act 7/2010)���������������������������������������������217 St Lucia Criminal Procedure Rules (22/2015)���������������������������������������������������������308 St Lucia Evidence Act, CAP 4.15�������������������������������������������������������������������������������293 St Lucia Proceeds of Crime Act, CAP 3.04��������������������������������������������������������������251 St Vincent and the Grenadines Prevention of Trafficking in Persons Act 2011������������������������������������������������������������������������������������������������������������������217 St Vincent and the Grenadines Proceeds of Crime Act 2013��������������������������������251 St Vincent and the Grenadines Witness (Special Measures) Act 2013�����������������293 The Bahamas Evidence Act (Ch 65), as amended by the Evidence (Amendment) Act 2011���������������������������������������������������������������������������������������293 The Committal Proceedings Act 2013����������������������������������������������������������������������289 The Evidence (Amendment) Act 2015���������������������������������������������������������������������331 The Evidence (Special Provisions) Act 2009 (Part Ill)��������������������������������������������295 The Evidence Act 2011 (Part IV)�������������������������������������������������������������������������������295 The Justice Protection Act 2001���������������������������������������������������������������������������������331 Trafficking in Persons (Prevention) (Amendment) Act 2015 (Act 13/2015)������230 Trafficking People for Exploitation Regulations 2013 (England and Wales)�������155 Trinidad and Tobago Criminal Injuries Compensation Act, Chapter 5:31 (Act 21/1999) as amended by Act 14/2011)������������������������������������������������������256 Trinidad and Tobago Criminal Procedure Rules 2016�������������������������������������������308 Trinidad and Tobago Data Protection Act 2011 (Act 13/2011)����������������������������332 Trinidad and Tobago Proceeds of Crime Act, CAP 11:27�������������������������������������251 Trinidad and Tobago Trafficking in Persons Act 2011 (Act 14/2011)������������������217 Turks and Caicos Islands Audio Visual Link Ordinance, CAP 2:08��������������������293 Turks and Caicos Islands Proceeds of Crime Act 2007������������������������������������������251 Turks and Caicos Islands Trafficking in Persons (Prevention) Ordinance 2016 (Ordinance 1/2016)�����������������������������������������������������������������217 US Virgin Islands Code Annotated��������������������������������������������������������������������������217 US Virgin Islands Criminal Code�����������������������������������������������������������������������������219 Witness (Public Enquiries) Protection Act (Jamaica) 2004�����������������������������������331 Witness (Special Measures) Act 2013 (Part II)���������������������������������������293, 295, 331 Youth Justice and Criminal Evidence Act 1999�������������������������������������������������������175

xxx

TABLE OF INTERNATIONAL CONVENTIONS Abolition of Forced Labour Convention 1957 (No 105)����������������������������������������100 American Convention on Human Rights (adopted 22 November 1969, entered into force 18 July 1978) 1144 UNTS 123�������������������������������������� 67, 218 Charter of Fundamental Rights of the European Union (entered into force 21 December 2009)��������������������������������������������������������������111 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1465 UNTS 85���������������������������������������������������� 96–99 Convention Against Transnational Organised Crime (adopted 15 November 2000, entered into force 29 September 2003) 40 ILM 335��������48 Convention against Transnational Organized Crime, 8 January 2001, A/RES/55/25����������������������������������������������������������������������������������������������� 49, 50, 51 Convention concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour C182 (adopted on 17 Jun 1999, entered into force on 19 November 2000)��������������67 Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data ETS 108�����������������������������������������������������������������138 Convention on the Elimination of All Forms of Discrimination against Women (adopted 18 December 1979, entry into force 3 September 1981)�������������������������������������������������������������������������������54, 67, 81–85, 218, 351 Convention on the Rights of the Child (adopted 20 November 1989, entered into force 2 September 1990) 1577 UNTS 3����������������������67–68, 78–81, 218, 350 Convention Relating to the Status of Refugees 189 UNTS 137������������������ 68, 91–96 Council Directive 2004/81/EC of 29 April 2004 on the residence permit issued to third-country nationals who are victims of trafficking in human beings or who have been the subject of an action to facilitate illegal immigration, who cooperate with the competent authorities�������������������������112 Council Framework Decision 2008/675/JHA of 24 July 2008 on taking account of convictions in the Member States of the European Union in the course of new criminal proceedings��������������������������������������������������������126

xxxii  Table of International Conventions Council of Europe Convention on Action against Trafficking in Human Beings (adopted 16 May 2005, entered into force 1 February 2008) (2005, CETS No 197)����������������������������������������42, 114, 116–22, 125–28, 132–33, 136–39, 141–44, 146, 149, 163–64, 166, 169, 193, 337, 348–50 Directive 2004/80/EC of 29 April 2004 relating to compensation to crime victims�����������������������������������������������������������������������������������������������������112 Directive 2011/36/EU of the European Parliament and of the Council of 5 April 2011 on preventing and combating trafficking in human beings and protecting its victims, and replacing Council Framework Decision 2002/629/JHA��������������������������������������������������������111–13, 117, 119–21, 125–28, 132–34, 136–43, 146, 149, 167, 182–83 Directive 2012/29/EU of the European Parliament and of the Council of 25 October 2012 establishing Minimum Standards on the Rights, Support and Protection of Victims of Crime, and replacing Council Framework Decision 2001/220/JHA������������������������������������������������������������������112 Directive 2014/42/EU of the European Parliament and of the Council of 3 April 2014 on the freezing and confiscation of instrumentalities and proceeds of crime in the European Union�������������������������������������������������127 European Convention for the Protection of Human Rights and Fundamental Freedoms, as amended by Protocols Nos. 11 and 14, 4 November 1950, ETS 5������������������������������������������������������ 70, 114, 122, 153, 299 Forced Labour Convention C29, 28 June 1930���������������������������������������� 67, 100, 122 General Assembly resolution (A/RES/54/263 of 25 May 2000 (entered into force on 18 January 2002)���������������������������������������������������������������79 ILO Forced Labour Convention 1930 (No 29)����������������������������������������������� 100, 122 International Convention on the Elimination of All Forms of Racial Discrimination 660 UNTS 195����������������������������������������������������������������� 68, 76–78 International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families, 18 December 1990, A/RES/45/158��������������������������������������������������������������������������������������������������� 67–68 International Covenant on Civil and Political Rights 999 UNTS 171����������������������������������������������������������������������������������������������67, 69–72, 96 International Covenant on Economic, Social and Cultural Rights 993 UNTS 3������������������������������������������������������������������������������������������������������� 67, 72–73, 75–76, 329 Optional Protocol on the Sale of Children, Child Prostitution and Child Pornography������������������������������������������������������������������������������������������������������������79 Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, New York, 18 December 2002, General Assembly resolution 57/199���������������������������������96

Table of International Conventions  xxxiii Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Convention against Transnational Organized Crime (adopted 15 November 2000, entered into force 25 December 2003)���������������������������������� 3, 34, 48–50, 53–58, 60–61, 66, 68, 95–96, 98, 151, 265, 272, 275 Rome Statute of the International Criminal Court (adopted 17 July 1998, entered into force 1 July 2002) 2187 UNTS 90���������������������������������48–49, 58–60 Treaty on the Functioning of the European Union (2009)����������������������������� 110–13 Universal Declaration of Human Rights, 10 December 1948, 217 A (III)�������������69 Worst Forms of Child Labour Convention 1999 (No 182)������������������������������������100

xxxiv

1 Introduction I. Overview From time immemorial, criminality has known no boundaries. This should come as no surprise, however, for, as some have repeatedly argued, it is a reflection of the general condition of the human heart and imagination – desperately wicked.1 Whether it be the slave trade and practices that constitute slavery,2 genocide of particular societal groups,3 attacks on innocent civilians by nefarious terrorist organisations,4 or the widespread trafficking of arms and drugs,5 criminality is ruthless and, indeed, relentless. It is driven by an insatiable appetite for wealth and power at the expense of the sanctity of human life, and robs individuals, families and societies of their inherent dignity, liberty and security. This explains why criminality in all its forms remains a Sisyphean challenge for governments the world over. For many countries across the world, criminality has taken on a new, though no less diabolical, shape in the last century or so: namely the phenomenon of ‘human trafficking’.6 Every day across the globe, thousands of persons become victims of human trafficking.7 The stories detailing the experiences of trafficked victims, whether told or untold, are as horrifying as they are malevolent. Victims are typically recruited, coerced and, ultimately, exploited in the sex industry, agricultural and construction sectors, and even in domestic spaces.8 The traffickers, who come from all walks of life, facilitate this multi-billion-dollar criminal industry, using

1 P Downey, Desperately Wicked: Philosophy, Christianity and the Human Heart (Intervarsity Press, 2009). 2 H Thomas, The Slave Trade: The Story of the Atlantic Slave Trade: 1440–1870 (Simon & Schuster, 1997). 3 E Staub, The Roots of Evil: The Origins of Genocide and Other Group Violence (Cambridge University Press, 1989). 4 B Hoffman, Inside Terrorism (Columbia University Press, 2006). 5 M Bowman, Transnational Threats: Smuggling and Trafficking in Arms, Drugs, and Human Life (Greenwood Publishing Group, 2007). 6 L Shelley, ‘Human Trafficking as a Form of Transnational Crime’ (2013) 6 Human Trafficking 128. 7 See UNODC, Human Trafficking: People for Sale (United Nations Office for Drugs and Crime, 2011). 8 K Dunn, ‘Human Trafficking: Children or Commodity? International and Domestic Child Sex Trafficking’ (ProQuest, 2007) 16.

2  Introduction their well-resourced networks to escape detection.9 In some countries, traffickers even operate with impunity.10 The phenomenon of human trafficking does not discriminate. It affects the young and the old, black and white, poor and rich, big countries and small countries, affluent nations and impoverished nations. It is a scourge whose impact is as enduring as it is immeasurable. Perhaps the most graphic illustration of the devastating impact of this phenomenon can be gleaned from the abduction and subsequent exploitation in the sex industry and domestic spaces of some 276 Chibok girls by the terrorist organisation, Boko Haram, on the night of 14–15 April 2014 in Nigeria.11 It is unfathomable that these girls were ripped from the safety of their families, violently abducted, raped, forced to marry men twice their age, and continuously intimidated and harassed in an endless cycle of humiliation and bondage. The kidnapping and coercion of thousands of Yazidi women to marry, or perform sexual services for, members of the Islamic State (ISIS), a terrorist organisation, in Iraq and Syria is another disturbing illustration of the deleterious impact of human trafficking on individuals,12 families, nation states13 and the international community as a whole.14 While, for a long time, some countries, including those in the Commonwealth Caribbean, described themselves as havens, untroubled by the havoc wreaked by human trafficking in ‘other parts’ of the globe, in the last two decades, the pendulum has shifted. Today, all countries, including those in the Commonwealth Caribbean, have been forced, whether out of practical necessity or in apprehension of the threat of sanction by the United States,15 to recognise both the existence and impact of human trafficking.16 This recognition, though slow in coming, has gradually gained momentum in recent years, especially since the entry into force of the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against 9 L Shelley, Human Trafficking: A Global Perspective (Cambridge University Press, 2010) 138 (citing figures of between 10–32 billion dollars in profits on an annual basis, making trafficking the fastest growing form of organised crime). 10 V Mishra, ‘Combating Human Trafficking: Gaps in Law Enforcement’ in V Mishra (ed), Human Trafficking: The Stakeholders’ Perspective (SAGE Publications, 2013) 282. 11 B Maiangwa and OB Amao, ‘Daughters, Brides, and Supporters of the Jihad: Revisiting the Gender-Based Atrocities of Boko Haram in Nigeria’ (2015) 12(2) African Renaissance 117. 12 P Murthy, R Persaud and M Toda, ‘Human Trafficking: A Modern Plague’ in P Murthy and C Smith (eds), Women‘s Global Health and Human Rights (Jones & Bartlett Learning, 2010) 63. 13 UNODC, The Globalization of Crime: A Transnational Organized Crime Threat Assessment (UNODC, 2010) 1. 14 J Lobasz, ‘Beyond Border Security: Feminist Approaches to Human Trafficking’ (2009) 18 Security Studies 319, 326. 15 K Adair, ‘Human Trafficking Legislation in the Commonwealth Caribbean: Effective or Effected?’ in D Berry and T Robinson (eds), Transitions in Caribbean Law: Lawmaking Constitutionalism and the Confluence of National and International Law (Ian Randle Publishers, 2013). 16 J Quirk, ‘New Approaches to Combating Modern Slavery’ (2009) 31 Human Rights Quarterly 257, 258 (arguing that ‘while forms of human bondage had attracted a relatively modest amount of interest in earlier decades, their global profile underwent a major transformation from the mid-1990s onwards, with growing concerns over post-Cold War human trafficking serving as a decisive catalyst’).

Overview  3 Transnational Organized Crime in 2003,17 an international instrument to which there are, at the time of writing, 189 States Parties. The Protocol provides the first internationally accepted definition of human trafficking, which is discussed in more detail in subsequent chapters: [T]he recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs.18

Despite the existence of the Protocol and related instruments, however, human trafficking continues to challenge policymakers and practitioners the world over,19 not least in the Commonwealth Caribbean, a region which has for a long time considered the phenomenon of human trafficking to be a distant pebble, far removed from its blissful shores. In response to the evolving dynamics of human trafficking, countries all across the world, including those in the Commonwealth Caribbean, have been quick to enact anti-trafficking legislation, often times at the behest of the United States’ hegemony and exceptionalism in the form of the Annual US Department of State Trafficking in Persons Report.20 While the passage of legislation in this context has undoubtedly raised the profile of the phenomenon in the region, it has also become apparent that some pieces of legislation at best represent misfits in the increasingly complicated puzzle of global regulations on human trafficking. The added complexity that arises in this regard lies in the fact that due to the absence of political will in some countries and inadequate financial and ­technical

17 T Obokata, ‘Human Trafficking’ in N Boister and R Currie (eds), Routledge Handbook of Transnational Criminal Law (Routledge, 2014) 185 (arguing that ‘while there were early treaties on the subject [such as the International Agreement for the Suppression of White Slave Traffic 1904, the International Covenant for the Suppression of White Slave Traffic 1910, the International Convention for the Suppression of the Traffic of Women and Children 1921, the International Convention for the Suppression of Traffic in Women of Full Age 1933, the Convention for the Suppression of Traffic in Person and of the Exploitation of the Prostitution of Others 1949], the modern understanding of this crime as stipulated in Art 3 of the UN Trafficking Protocol should be the starting point because previously there was no agreement as to what constituted human trafficking’). 18 Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and ­Children, supplementing the United Nations Convention against Transnational Organized Crime (signed 15 November 2000, entered into force 25 December 2003) 2237 UNTS 319, s 3. 19 M Capous-Desyllas, ‘A Critique of the Global Trafficking Discourse and US Policy’ (2007) 34 Journal of Sociology & Social Welfare 57. 20 J Musto, ‘What‘s in A Name? Conflations and Contradictions in Contemporary US Discourses of Human Trafficking’ (2009) 32 Women’s Studies International Forum 281; G Soderlund, ‘Running from the Rescuers: New US Crusades Against Sex Trafficking and the Rhetoric of Abolition’ (2005) 17(3) National Women’s Studies Association Journal 64.

4  Introduction resource capacity in others, human trafficking as a socio-legal phenomenon remains both under-researched, poorly theorised and ineffectively regulated in the Caribbean. For this reason, gleaning the effectiveness of anti-trafficking law and attendant state practice is of paramount importance. It is against this backdrop that this monograph has been conceptualised. Apart from exploring the modalities of human trafficking in the ­Commonwealth ­Caribbean, this monograph represents an important contribution to the ­burgeoning literature on human trafficking by presenting an incisive and e­ mpirically grounded critique of anti-trafficking law and practice as it has existed and continues to exist in the Commonwealth Caribbean from an Analytical Eclectic perspective. The conclusion arrived at is that, in many countries across the Caribbean, there exists a ‘disconnect’ between anti-trafficking law and practice.

II.  Locating the ‘Commonwealth Caribbean’ The Caribbean is an archipelago of mainland territories, islands and cays, spanning the entire Caribbean Basin area. Although each territory, island or cay is unique, they are, collectively, tropical landmasses located to the north of the equator, whose economies have traditionally been built around tourism,21 agriculture22 and manufacturing23 and, in the case of Trinidad and Tobago, petroleum.24 The states that comprise the Caribbean fall into four geopolitical taxonomies, largely representing their colonial heritage and mother tongue. At one end of the spectrum lies the Spanish Caribbean, which incidentally comprise the largest portion of the Caribbean, both in terms of population size and landmass. The Spanish-speaking territories are Cuba, The Dominican Republic and Puerto Rico. These territories’ colonial history lies in conquest and occupation by Spain in the fifteenth century, and, in the case of Puerto Rico, political control by the United States in 1899, following the Spanish–American War in which the United States acquired the island under the terms of the Treaty of Paris. At the other end of the spectrum are the French Caribbean Islands of Haiti, which shares a border on the island of Hispaniola with the Spanish-speaking Dominican Republic, and which is incidentally the poorest country in the western hemisphere, notwithstanding the fact that it was the first country to experience formal emancipation from slavery; as well as the relatively more affluent French Overseas Departments of French Guiana, Martinique, Guadeloupe, Sint Martin and Saint Barthélemy. Also, on the

21 C Jayawardena, ‘Mastering Caribbean Tourism’ (2002) 14 International Journal of Contemporary Hospitality Management 88. 22 D Barker, ‘Caribbean Agriculture in a Period of Global Change: Vulnerabilities and Opportunities’ (2012) 40(2) Caribbean Studies 41. 23 H Millar and S Russell, ‘The Adoption of Sustainable Manufacturing Practices in the Caribbean’ (2011) 20 Business Strategy and the Environment 512. 24 G Higgins, A History of Trinidad Oil (Trinidad Express Newspapers, 1996).

Situational Overview  5 spectrum of Caribbean countries are the Dutch-speaking Caribbean islands of Aruba, Bonaire, Curaçao, Saba, Sint Eustatius, Sint Maarten and Suriname. Although human trafficking reportedly occurs in some of the above-mentioned islands and cays, the primary focus of this monograph lies in interrogating the law and practice on human trafficking in the English-speaking Caribbean. The territories and islands that comprise the English-speaking Caribbean are scattered across the Caribbean Basin, and, for historical and cultural reasons, include Belize which is located in Central America25 and Guyana26 which is located in South America. The law and practice on human trafficking in the following territories and islands will be interrogated in the context of this monograph: Anguilla; Antigua and Barbuda; Barbados; The Bahamas; Belize; Bermuda; the British Virgin Islands (BVI); the Cayman Islands; Dominica; Grenada; Guyana; Jamaica; Montserrat; St Kitts and Nevis; St Lucia; St Vincent and the Grenadines; Trinidad and Tobago; the Turks and Caicos Islands; and the United States Virgin Islands (USVI). The common threads that connect these islands, apart from their shared geography, are the fact that they have all retained English as their designated official language27 as well as the fact that they all share a unique history and culture, marked by slavery, emancipation and colonial rule. Today, with the exception of Anguilla, Bermuda, the BVI, the Cayman Islands, Montserrat, the Turks and Caicos Islands and the USVI, which are all British overseas territories, with the exception of USVI, which is an unincorporated territory of the United States, the other territories and islands referred to above are independent nations. Indeed, all these territories and islands are relatively stable common law and, indeed, constitutional, democracies that operate under the rubric of the rule of law.28

III.  Situational Overview The Caribbean is world renowned for its refreshingly beautiful sunrises and sunsets, turquoise seas, majestic skies and warm and friendly people. As a leading tourism destination, the Caribbean offers an unmatched leisure experience that continues to attract millions of visitors from across the world. In recent years, however, there has been a noticeable increase in criminal activity in the region,29 undoubtedly resulting from fluctuating revenues from tourism and agriculture and a corresponding increase in inflation, unemployment and, in some countries, poverty. Criminality, in this context, has not been restricted to arms and drugs trafficking, but increasingly the trafficking of human beings. 25 J Booth, Understanding Central America: Global Forces, Rebellion and Change (Routledge, 2018). 26 D Berry, Caribbean Integration Law (Oxford University Press, 2014) 8. 27 Note that, for the purposes of this volume, non-independent English-speaking Caribbean countries (eg, Anguilla, the British Virgin Islands, the Cayman Islands, Montserrat, and the US Virgin Islands) are not included in this definition of the ‘Commonwealth Caribbean’. 28 E Ventose, Commonwealth Caribbean Administrative Law (Routledge, 2012) 300. 29 D Lashin, Crime in the Caribbean (De Auteur, 2005).

6  Introduction Although official statistics on human trafficking in most Commonwealth Caribbean countries either do not exist or only paint a partial picture of the existing state of affairs, the limited available data appears to suggest the unmistakable, if not uncomfortable, reality that human trafficking does, in fact, occur in the region. While providing exact estimates that account for all incidents of human trafficking across 18 territories and islands is admittedly beyond the scope of this monograph, it suffices to note that sex trafficking remains the predominant form of human trafficking in the Commonwealth Caribbean, followed by forced labour and domestic servitude. Indeed, in keeping with international trends, women and girls have accounted for the largest proportion of trafficked victims, although there is an increasing number of men and boys who have been trafficked, particularly in the agriculture, mining and construction industries. Although domestic or internal trafficking does occur in some territories and islands – and in particular in Belize, Guyana, Jamaica, and Trinidad and Tobago – by far the greatest proportion of victims have been subject to transnational trafficking. Indeed, both official and anecdotal data strongly suggests that persons from the Dominican Republic, Haiti, Venezuela, India and China are at the greatest risk of being trafficked across the Commonwealth Caribbean. For ease of understanding, the modalities of human trafficking in the respective Commonwealth Caribbean territories and islands are discussed below under three taxonomies, namely the ‘Big Six’, the ‘Eastern Caribbean’ and the ‘Overseas Territories’, which admittedly represent an artificial, but convenient, segmentation of the territories and islands based on their colloquial heritage.

A.  The ‘Big Six’ For the purpose of this discussion, the ‘Big Six’ territories and islands are Barbados, The Bahamas, Belize, Guyana, Jamaica, and Trinidad and Tobago. These territories and islands have colloquially been referred to as the ‘Big Six’ because they are precisely that: the six biggest states in the Commonwealth Caribbean based not only on their relative population sizes, but also the size of their respective landmasses. Interestingly, although Guyana is by far the biggest of these six states, having an estimated landmass of 83,000 square miles, its population of just over 750,000 pales in comparison to Jamaica, which boasts a population of nearly three million, and Trinidad and Tobago, which is home to nearly 1.4 million people. The above-mentioned states can be collectively described as source, transit and destination countries in so far as human trafficking is concerned.

i. Barbados Although the state of affairs in Barbados as it relates to human trafficking is not dismal, it appears that, given its relative economic prosperity, Barbados has quickly become a destination country for persons trafficked for sex and, to a lesser

Situational Overview  7 extent, labour exploitation. These victims have reportedly originated from as far as Ukraine and India and as near as Guyana and the Dominican Republic. The first case of human trafficking in Barbados was reportedly investigated in 2004, when authorities identified two adult Guyanese women as having been trafficked for sexual exploitation.30 A year later, one female minor was found to have been a victim of sexual exploitation.31 This was followed by a number of Indian nationals who were identified as having been trafficked for the purposes of forced labour, having worked for a construction company in Barbados for wages of about US $1 per week.32 It was not until 2013 that another case of human trafficking was recorded in Barbados, this time involving five Guyanese girls who were reportedly rescued by police from a bar in Nelson Street, Bridgetown.33 Reports are that these girls were forced into prostitution by their traffickers, who demanded that they offer their sexual services for as little as BBD $10, which was immediately taken away from them by a 76-year-old woman, who sources say posed as a grandmother of young recruits from Guyana. Of the amounts made weekly by the girls, $150 was then deducted by the alleged traffickers to cover rent, albeit that the girls reportedly shared make-shift rooms. The girls were reportedly not allowed to have friends; their conversations in the bar with prospective clients were frequently interrupted; and their shopping expeditions into Bridgetown for clothes were allowed only if they were accompanied by the accused or her associates.34 Although the full scale of human trafficking in Barbados remains unclear, it has been suggested that traffickers in that country typically have a particular preference for young, vulnerable Guyanese girls, who are reportedly easily forced into prostitution due to their poor education and job prospects and unfavourable living conditions at home. Many of these victims never escape the psychological and physical constraints imposed by their traffickers, partly because they themselves believe that living in Barbados affords them a better quality of life than remaining in Guyana, but also because human trafficking does not appear to be high on the national agenda in Barbados.35

ii.  The Bahamas According to the former Special Rapporteur on Trafficking in Persons, Joy Ngozi Ezeilo, following her official visit to The Bahamas, The Bahamas is a transit and

30 T Durbin and J St George, ‘Human Trafficking in Barbados: Achievements and Continuing Hurdles’ (2013) 38(1–2) Journal of Eastern Caribbean Studies 126. 31 ibid. 32 ‘Internationally Recognised Core Labour Standards in Barbados Report for The WTO General Council Review of the Trade Policies of Barbados’ (International Trade Union Confederation, Geneva, 17 and 19 September 2008). 33 ‘Barbados duo charged with trafficking in five Guyanese women’ Stabroek News (23 April 2013). 34 ‘Done in by $10 … The Guyana–Barbados human trafficking case’ Kaieteur News (7 May 2013). 35 George Alleyne, ‘Barbados Branded Negligent on Human Trafficking’ Caribbean News Life (10 July 2018).

8  Introduction destination country for trafficked persons from the Caribbean region and from Central and South America. Due to its geographical location, its relative close proximity to the United States and its porous coastal borders which span about 100,000 square miles, authorities in The Bahamas have increasingly been confronted with the challenge of human trafficking.36 The vast majority of trafficked victims are women and girls from the Dominican Republic and Jamaica who are reportedly trafficked for the purpose of sexual exploitation. These persons are reportedly lured by means of deception, namely through responding to misleading advertisements about jobs as nannies and cashiers, transported by their traffickers, and subsequently blindfolded and exploited and, in some cases, abandoned post-exploitation. Their passports are typically confiscated upon arrival in The Bahamas, and debt bondage is in a number of instances used by traffickers as a means of supposedly recovering the costs of travel and fees associated with obtaining visas. Aside from sexual exploitation, there is reportedly also a growing number of persons from Haiti, the Philippines, China, Colombia and India37 who have been trafficked for the purpose of labour exploitation in The Bahamas. Undocumented Haitians, in particular, remain particularly vulnerable to exploitation by means of domestic servitude, especially since the devastating earthquake in 2010 and Hurricane Matthew in 2016. While, traditionally, men have been primarily implicated in human trafficking, Bahamian authorities have reported that, increasingly, women have become engaged in human trafficking, albeit to a lesser degree than their male counterparts. For example, a 24-year-old Jamaican woman was convicted of human trafficking in 2014 and imprisoned for 15 years after she reportedly lured two Jamaican women to The Bahamas, seized their passports once they arrived in that country, and demanded that they prostitute themselves. The women alleged that the accused dressed them up in provocative clothing and took pictures of them for prospective clients. While the accused in this case was the first to be convicted of human trafficking in The Bahamas, it is widely felt that exploitation of this nature is not an isolated case.

iii. Belize Belize is the only English-speaking country on the Central American mainland. It borders Mexico to the north, Guatemala to the south and shares maritime borders with Honduras. Belize is a country of contrasts; although it is a relatively affluent country compared with some of its Central American neighbours, there are pockets of impoverished communities whose economic vulnerability and

36 Human Rights Council, ‘Report of the Special Rapporteur on trafficking in persons, especially women and children, Joy Ngozi Ezeilo – The Bahamas’ (A/HRC/26/37/Add.5, 5 June 2014). 37 IP Singh, ‘6 Punjabis go missing from Bahamas, were to enter US illegally’ Chandigarh News Times of India (7 November 2017).

Situational Overview  9 social disenfranchisement place particularly young and impressionable members of those communities at risk of being exploited by traffickers. For this reason, Belize can properly be described as a source, transit and destination country for human trafficking. Justice Ann-Marie Smith, in a paper presented at the Caribbean Association of Judicial Officers Third Biennial Conference, has opined that Belize’s strategic geographical location in Central America makes it particularly vulnerable to trafficking in persons.38 In this context, Belize has proven to be an attractive destination to those who are fleeing unemployment in Honduras, Guatemala and El Salvador.39 More specifically, Belizean brothel operators reportedly make direct contact with traffickers in those neighbouring countries to bring vulnerable women and girls into Belize to then forcibly require that they engage in prostitution.40 These women and girls reportedly remain in Belize, notwithstanding the forcible confiscation of their travel documents41 and subsequent exploitation, because their quality of life is assumed to be better than that obtained in their countries of origin.42 An unfortunate case which demonstrates the grave nature of transnational trafficking in the Belizean context was documented by former UN Special R ­ apporteur on Trafficking in Persons, Joy Ngozi Ezeilo, who, during her official visit to that country, found that a Guatemalan girl was transported to Belize when she was 13 years old on a promise of a babysitting job.43 Upon arrival, her trafficker, a woman originally from Guatemala who grew up in Belize, took her to work in a bar in a small village in Belize where she was made to sell sexual services. She was never paid for the services she provided, and was deprived of her freedom for one year, threatened by the trafficker that she would be detained by the police on account of her illegal entry into the country if she tried to escape, and even sexually abused by a local police officer who was complicit in her exploitation. An unrelated case, also documented by the then UN Special Rapporteur, involved a woman from El Salvador who was promised domestic work in Belize, but who, upon her arrival in Belize, had her passport withheld by her trafficker, was kept in bondage for two months and forced to work in a bar in a small village. Her trafficker reportedly exercised control over her by withholding her small child.44 The former

38 A-M Smith, ‘Human Trafficking – The Belizean Experience’ (Caribbean Association of Judicial Officers Third Biennial Conference: Equality, Justice and Caribbean Realities – the Way Forward, 2014). 39 ibid. 40 ibid. 41 ‘In Modern Bondage: Sex Trafficking in the Americas’ (International Human Rights Law Institute, DePaul University College of Law, October 2005). 42 AP Mano, ‘An Innovative Approach to Sex Trafficking Research: The Methodological Advancement of Attride-Stirling’s Thematic’ (2017) 55 International Annals of Criminology 40. 43 Human Rights Council, ‘Report of the Special Rapporteur on trafficking in persons, especially women and children, Joy Ngozi Ezeilo – Mission to Belize’ (A/HRC/26/37/Add.6, 11 June 2014). 44 ibid.

10  Introduction UN Special Rapporteur on Trafficking in Persons also identified a situation in which 60 Nepali nationals were identified as having been subject to labour exploitation by a Chinese company. Five persons involved in the case opted to remain in Belize and assist with the prosecution of the case.45 Belizeans, and in particular young and impressionable individuals with poor educational and job prospects, are widely acknowledged to be at a highest risk of being trafficked. For example, it was only recently that a number of Belizean teenagers were reportedly lured across the Belize/Mexico border by male escorts for the purpose of exploitation, though they were, fortunately, rescued by a Belizean senator who reported the suspicious activity to the police.46 The police subsequently arrested nine Honduran nationals who had apparently been operating a trafficking ring in El Salvador, Guatemala, Belize and Mexico. Long before this case transpired, however, it had been reported that a young Belizean girl was transported to the United States, where she was later sold into domestic servitude for over 10 years before she was eventually rescued and identified as a victim of trafficking.47 Since 2012, reports indicate that just over 20 cases of human trafficking have been investigated in Belize,48 albeit that only a handful of these cases have resulted in successful prosecutions. One of the earliest cases to have been successfully prosecuted in Belize occurred in 2012, when a 54-year-old woman was convicted and sentenced to 18 months’ imprisonment for attempted human trafficking. In that case, the court heard that the accused had hired a young woman to work for her as a domestic helper, but later forcibly encouraged the young woman to prostitute herself, instructing the victim, ‘while you are young and pretty, you should take on the opportunity of prostituting yourself ’.49 Additionally, in 2012, another woman was convicted of human trafficking and sentenced to 12 months’ imprisonment in circumstances where she instructed a 17-year-old female employee to engage in sexual activity with patrons of her tavern, despite objections from the employee.50

iv. Guyana Research into human trafficking in Guyana strongly suggests that, of all the English-speaking Caribbean countries discussed in this monograph, Guyana consistently records the highest rates of human trafficking. In fact, conservative estimates suggest that, in the last five years alone, over 200 people have been

45 ibid Addendum [21]. 46 William Ysaguirre, ‘Human trafficking – a growing problem in Belize’ The Reporter (13 October 2017). 47 Daniel Ortiz, ‘Belizean woman victim of human trafficking’ Amandala (25 February 2011). 48 Human Rights Committee, ‘Consideration of reports submitted by States parties under article 40 of the Covenant – Belize’ (CCPR/C/BLZ/1, 26 September 2017); ‘Trafficking in Persons Report – Belize’ (Office to Monitor and Combat Trafficking in Persons, US Department of State, 2018). 49 ‘Two Human Trafficking Convictions Mark a Major Step Forward for Belize’s Justice System’ (American Bar Association, February 2012). 50 ibid.

Situational Overview  11 subject to exploitation in Guyana, the overwhelming majority of whom have been women and girls (89 per cent).51 The majority of these victims are ­Guyanese nationals, while some 41 per cent of victims so identified are non-nationals.52 Quite astonishingly, in 2016 alone, some 103 children were reportedly trafficked.53 In this connection, the United Nations Children’s Fund (UNICEF) has explained that the high rate of child trafficking in Guyana is triggered by the fragile economic situation in which many families find themselves, particularly those in the ‘hinterland’ communities who are often nomadic and thus lacking strong familial, social and economic support.54 UNICEF has not only pointed to the trafficking of children for the purpose of sexual exploitation in the hinterland communities, but also labour trafficking in Guyana’s gold mines, including mines located near the borders of Brazil, Suriname and Venezuela. Trafficking, in this context, appears to occur with greater frequency in these locales because of limited law enforcement presence and complicity of some law enforcement officers in victims’ exploitation.55 In short, child trafficking in Guyana is fuelled by myriad structural conditions, including a culture of tolerance, disintegration of the family structure, an acute lack of knowledge on the schemes used by traffickers, lack of employment opportunities and lack of adequate law enforcement presence, legal protection and prosecution or sanctions, among other things.56 Aside from the trafficking of children, Guyanese women have also been exploited abroad in a number of countries, both within and outside the Caribbean, including Barbados, Jamaica, Suriname, Venezuela and Brazil. While a number of these women are trafficked for the purpose of domestic servitude, the vast majority of them are trafficked for the purpose of sexual exploitation. The stories are harrowing as they are endless. Most of these women are reportedly recruited through the promise of jobs or better living conditions overseas only to find themselves, once in the receiving country, in physical and psychological bondage, often being forced to provide their sexual services to traffickers, their associates and clients, and threatened with the prospect of being detained and immediately sent back home were they to escape.57

v. Jamaica Jamaica, like its Commonwealth Caribbean neighbours, has not escaped the scourge of human trafficking. In fact, conservative estimates suggest that in the 51 ‘ECD man jailed for human trafficking’ Guyana Chronicle (5 January 2018). 52 ibid. 53 ‘Trafficking of children’ Guyana Times (11 November 11 2016). 54 ‘Situation Analysis of Children and Women’ (United Nations Children’s Fund (UNICEF), July 2016). 55 ibid. 56 ‘Recent Activities’ (Government of Guyana Ministry of Public Security Ministerial Task Force on Trafficking in Persons, 13 December 2017). Note that the 19–25 age group is the second most at-risk age group locally after the 12–18 age group. 57 ‘50% of Guyanese trafficked are children – UNICEF’ (INews Guyana, 22 October 2016).

12  Introduction last decade, over 70 victims of trafficking have been rescued by authorities in that country, while four convictions have to date been obtained.58 A large proportion of these victims have been trafficked for the purpose of sexual exploitation,59 though an increasing number of persons, including male victims, have been trafficked for the purpose of forced labour. Myriad factors account for the relatively frequent occurrence of human trafficking in Jamaica, including poverty, unemployment, the country’s porous borders which expose it to trafficking from neighbouring countries such as Haiti and the Dominican Republic, and the operation of organised criminal groups with links to human trafficking enterprises, especially those which reportedly exist in some of Jamaica’s ‘inner-city communities’.60 One of the earliest cases to have captured the attention of Jamaican authorities involved the trafficking of some 21 Honduran boys who were transported into Jamaican waters and then forced to engage in deep-sea diving for conchs and lobsters.61 There have also been a number of cases in which both Jamaican women and girls as well as foreign women and girls have been trafficked into sexual exploitation, particularly at nightclubs. For example, as a result of a sting operation carried out at a nightclub in St Andrew, Jamaica, a number of young Guyanese girls were identified as having been recruited under the guise of spending the summer vacation in Jamaica, and subsequently forced to work at the club dancing and performing various sexual acts. The accused, in this case, allegedly told the victims that they had to engage in these activities in order to pay for their living expenses and as recompense for their airfare. Their passports were allegedly confiscated by an immigration officer who reportedly was complicit in their exploitation.62 As intimated above, to date, despite the identification of over 70 victims of ­trafficking, there have been very few convictions, though an estimated 10 cases are, at the time of writing, before Jamaican courts.63 One of the earliest convictions under Jamaica’s Trafficking in Persons (Prevention, Suppression, and ­Punishment) Act 2007 was that of R v Rajesh Gurunani.64 In that case, the defendant was convicted on three counts of human trafficking, three counts of withholding travel documents and three counts of facilitating trafficking in persons in circumstances where he recruited a number of persons from India through a promise of jobs as managers in his Jamaican stores. On their arrival in Jamaica, the defendant 58 ‘Traffickers in Jamaica turning to Bitcoin’ Nation News Barbados (22 May 2018). 59 G Angus, ‘Persons Urged to be Cautious in Responding to Job Offers’ (Jamaica Information Service, 1 December 2016). 60 ‘Jamaica: Child Labour Legislative Gap Analysis’ (International Programme on the Elimination of Child Labour, March 2012). 61 Angus (n 59); ‘Jamaica gets help from CARICOM neighbours in human trafficking fight’ Jamaica Observer (18 June 2014). 62 ‘Ex-night club owner in Jamaica remanded over trafficking of Guyanese girl, others’ Stabroek News (1 October 2011). 63 GR Smith and L Palmer-Hamilton, ‘Human Trafficking: Modern Day Slavery or Child Abuse or What?’ (Jamaica Bar Association, 2015). 64 Jamaica Gleaner (3 July 2015).

Situational Overview  13 c­ onfiscated their passports and forced them to work long hours as lower-level staff for little pay. These victims spoke Hindi and thus understood very little English. Their movements were restricted, communication with their families was limited to one five-minute supervised phone call per month and they lived in a small basement with poor ventilation, having access to only one bathroom. This basement was a shared living quarters for 10 to 14 males. They worked both during the days and at nights; they were not permitted to interact with the locals; and were given no spending money in hand. Although, upon conviction, the defendant escaped a prison sentence, he was ordered to pay more than JMD $4.5 million in fines and compensation arising from his conviction. More recently, in Ebanks and Reeves v R,65 the Court of Appeal of Jamaica imposed a 10-year prison sentence on Ebanks and a three-year suspended sentence and a fine of $50,000 on his common-law wife, Reeves, after they were both convicted of trafficking-related offences. The circumstances of the case were that Ebanks, a fisherman, travelled to Haiti, and brought home a 14-year-old girl subsequent to promising her mother he would send her to school. Once the child arrived at the couple’s St Elizabeth home in Jamaica, she was reportedly kept there for three years as Ebanks’ household helper, in addition to having been physically assaulted and raped by him. In the Supreme Court, the Court heard that Ebanks demonstrated inhumane and menacing conduct to both the 14-year old victim of trafficking and his spouse. More specifically, in a probation report, Reeves reportedly informed the Court that, although not trafficked, she herself had been abused physically and verbally by Ebanks who she said treated her like his personal possession.66 She said he dictated to her what she could and could not do and caused her not to have a good relationship with her family, partly by beating her in front of relatives when she ran away. She also said that from time to time he kept her locked up in the house for days. She admitted to exercising poor judgement in getting involved with Ebanks but noted that she had objected to him bringing in the girl but was afraid to do anything about it. In any event, the Supreme Court had sentenced Ebanks to 14 years’ ­imprisonment for his role in the trafficking of the 14-year-old girl in 2016, but Ebanks subsequently appealed both his sentence and conviction, arguing that the evidence did not support a finding that the elements of the offence were satisfied and/or the sentence imposed was disproportionate to the nature of the offence allegedly committed. Although Justice C Dennis Morrison, Justice Paulette Williams and Justice Leighton Pusey, in the Court of Appeal, ultimately dismissed Ebanks’ submission that his conviction should be set aside, they nonetheless substituted the 14-year term of imprisonment for 10 years’ imprisonment. While it would certainly be interesting to know the rationale behind this reduction in sentence, at the time of writing, a written judgment had unfortunately not yet been published. 65 HCC 112/13. See ‘Court of Appeal affirms conviction in first human trafficking case’ Jamaica Observer (8 October 2018). 66 Tanesha Mundle, ‘Human trafficking arrest saved my life’ Jamaica Observer (12 July 2016).

14  Introduction On another note, one of the more intriguing questions that has arisen in recent years in the anti-trafficking field in Jamaica is the extent to which trafficked children are accounted for in Jamaica’s ‘missing children’ phenomenon. Although the vast majority of children who are reported as ‘missing’ eventually return to their families, research suggests that the ‘missing children’ phenomenon accounts for over eight thousand children in any five-year cycle.67 In respect of the estimated 20 per cent of this figure who remain unaccounted for, the question has arisen as to whether at least some of these children have been trafficked.68 While state officials remain adamant that there is no concrete correlation between children going missing and human trafficking, NGO interlocutors remain confident that at least some of these missing children are caught up in some form of exploitation.69 Discussions with interlocutors in Jamaica did not provide a definitive answer to this vexing question, but some have argued that the missing children phenomenon, which is particularly prevalent in ‘inner-city communities’ which are typically run by criminal ‘dons’,70 might reflect families’ desire to ensure that their children have a brighter future with friends and family outside their impoverished communities, similar to the Haitian restavèk practice, discussed later in the chapter, where children are sent abroad, even with strangers, in search of better opportunities. That said, it should be noted that human trafficking not only occurs on Jamaican soil, but in multiple places across the world, regrettably involving Jamaicans as either victims or perpetrators. More specifically, it should be noted that the most recently published UK National Referral Mechanism (NRM) statistics suggest that 21 Jamaicans in 2017 and 14 in 2016 were referred to the NRM as either potential or actual victims of trafficking.71 The majority of these victims have reportedly been trafficked for the purpose of sexual exploitation, although a sizeable minority are alleged to have been trafficked for the purpose of labour exploitation.72 Jamaican traffickers have increasingly become implicated in human trafficking in a number of jurisdictions, including The Bahamas, the United States, Canada and even as far away as Botswana. For example, a Jamaican woman was convicted of trafficking two women into prostitution and unlawfully withholding their travel documents in The Bahamas.73 Another unfortunate instance of Jamaican traffickers becoming implicated in human trafficking arose in the United States where the accused, a 29-year-old man, was arrested for having lured, harboured and forced a

67 T Hill, ‘An Investigation into the State’s Response to the Trafficking of Women and Girls in Jamaica’ (2016) 10 Caribbean Review of Gender Studies 127. 68 ibid. 69 ‘The Mystery of Missing Children in Jamaica’ (Hear the Children Cry, 15 June 2016). 70 H Johnson and J Soeters, ‘Jamaican Dons, Italian Godfathers and the Chances of a “Reversible Destiny”’ (2008) 56 Political Studies 166. 71 ‘National Referral Mechanism Statistics – End of Year Summary 2017’ (EOY17-MSHT, National Crime Agency, 26 March 2018). 72 ibid. 73 L Johnson, ‘Court of Appeal quashes Jamaican woman’s human trafficking conviction’ The Tribune (21 January 2016).

Situational Overview  15 14-year-old girl to have sex with him on multiple occasions and then with various other men for money that he then pocketed. According to reports, the accused threatened the victim with physical violence and then physically assaulted her until she was compelled to engage in prostitution.74 In an unrelated case, a Jamaican man was arrested and charged in the United States for having lured a 16-year-old girl to model tattoos using Facebook, and then subsequently forcing her to engage in prostitution. He reportedly ensured the victim’s compliance with his ­unlawful demands through intimidation and threats of inflicting physical injury if she reported the matter to the police.75 More recently, five Jamaican men were charged with the sex trafficking of minors in the United States after they allegedly lured young girls across state borders, and repeatedly engaged in unlawful sexual intercourse with them. The men then allegedly advertised the victims on adult websites dedicated to escort services and in classified ads.76 In an unrelated matter, a Jamaican man was alleged to have recruited, beaten, raped and forced six women into his prostitution racket, an operation that extended from Australia to Dubai to Miami.77 The accused, who allegedly used fraudulent American identity documents to travel to Australia, the United Arab Emirates and the United States, reportedly used psychological coercion and physical abuse to intimidate and coerce his victims, effectively treating them as ‘sex slaves’. He then is allegedly to have bragged about being a member of the LA street gang, ‘The Bloods’, to further intimidate the women, and thus prevent them from reporting the matter to the police. Further afield, a Jamaican man was arrested and charged in Botswana after evidence surfaced that he was involved in an international human trafficking syndicate that exploited women in both Ethiopia and Botswana.78

vi.  Trinidad and Tobago The final of the ‘Big Six’ islands to be addressed in this section is the twin-island Republic of Trinidad and Tobago. Although this island is relatively affluent, owing to the presence of oil reserves, it has not escaped the scourge of human trafficking. In fact, Trinidad and Tobago is widely acknowledged to be a source, transit and destination country for human trafficking. Indeed, since 2011, conservative estimates indicate that over 40 victims of trafficking have been identified in Trinidad and Tobago, the majority of whom

74 Naeisha Rose, ‘Jamaica man pleads guilty to sex trafficking of teen girl: DA’ TimesLedger (22 April 2018). 75 Emily Davenport, ‘Jamaica man charged with pimping out and raping a 16-year-old girl’ (QNS, 23 January 2018). 76 ‘Feds charge five from Jamaica as child pimps’ Queens Chronicle: Central/Mid Queens News (11 August 2016) 77 ‘Miami jury finds Jamaican guilty of sex trafficking’ Miami Herald (2 July 2014). 78 Innocent Tshukudu, ‘Jamaican in Human Trafficking Charges’ (TheVoiceBW, 30 December 2015).

16  Introduction being women trafficked for the purpose of sexual exploitation, though there is an increasing number of persons who have been trafficked for the purpose of forced labour and domestic servitude.79 Although Trinidadians are from time to time trafficked both at home and abroad, the vast majority of victims originate from Venezuela, Guyana, Columbia, the Dominican Republic, Bolivia, and St Vincent and the Grenadines.80 It is noteworthy that not only adults have been trafficked, but increasingly also children, particularly migrant children.81 Both Trinidadians and non-nationals alike have been implicated in the over 20 trafficking matters that are, at the time of writing, before the courts, including local law enforcement officers, business owners and corporate executives.82 For example, it was recently reported that a 67-year-old Trinidadian business woman was arrested and charged for allegedly recruiting a 27-year-old male Bolivian by promising him a job and a substantial salary, but later confiscating his passport upon his arrival in Trinidad, and then forcing him to work at her home and then at her business place for two years, while underpaying him for his services.83 In an unrelated matter, the managing director of a promotions and advertisement company based in Trinidad was arrested and charged for receiving two female Venezuelan nationals for the purpose of sex trafficking. The accused and his associates allegedly made frequent trips to Venezuela to meet and accompany young Venezuelan women to Trinidad, by air and by sea, offering them jobs in promoting Latin cultural events in Trinidad and Tobago, but then subsequently exploiting their sexual services.84 The issue of Venezuelan nationals being trafficked to the twin-island Republic is a real and pressing one for policymakers in Trinidad and Tobago given its close proximity to Venezuela and the relative ease with which persons from that country, in light of ongoing extreme economic pressures and impoverishment, can enter Trinidad and Tobago. This issue raised its ugly head recently when over one hundred Venezuelans were identified as potential victims of ­trafficking in the T ­rinidad and Tobago leg of an Interpol-coordinated anti-trafficking operation.85 This should come as no surprise, however, as the Director of the Counter-­Trafficking Unit in Trinidad and Tobago had, for a long time, warned that human trafficking was taking place between the twin-island Republic and Venezuela, evidenced by Venezuelan women being brought into Tobago and then 79 ‘2018 Trafficking in Persons Report’ (Office to Monitor and Combat Trafficking in Persons, US Department of State, 2018). 80 Yvonne Baboolal, ‘CTU director on human trafficking: Most cases sex related’ Trinidad Guardian (1 December 2016). 81 ‘Ministry of National Security counteracts human trafficking incident’ Trinidad and Tobago Government News (8 July 2016). 82 ‘Trinidad and Tobago improves in global fight against Human Trafficking’ Loop News (28 June 2017). 83 ‘Businesswoman charged with labour exploitation’ (CNC3, 2018). 84 ‘Counter Trafficking Unit continues to arrest and charge business owners for human trafficking offences’ (Ministry of National Security of Trinidad & Tobago, 27 May 2017). 85 Julien Neaves, ‘146 Venezuelans, Caribbean nationals held in human trafficking bust’ Trinidad and Tobago Newsday (2 May 2018).

Situational Overview  17 s­ urreptitiously transported over to Trinidad, where they are thereafter forced to have sex with multiple men across the island. According to the Director, human trafficking, in this context, has been facilitated by a combination of a lack of security controls and turbulent economic conditions in Venezuela. In this regard, the Director has quite poignantly opined: Many of the Latino girls come up on the boat and you won’t detect them at all. There is no checking for vehicles, there is no checking for identification, there is no checking for anything. Even at the airports, there is no major kind of security taking place. So, you can have victims of human trafficking … they will come and service clients that are here in Tobago and they will take them back by boat or plane to Trinidad. We actually had a young boy, 17 years old, who ended up in Trinidad and became exploited. He was a homosexual boy who was looking for a job, and he joined an online social group. He wanted to get out of the island that he was in and he was offered a job in that social group which landed him in Trinidad. He ended up working in a legitimate business place but after hours he had to service the owners of the business, who were bisexual. The young man was also forced to provide sexual services to many other men. This 17-year-old boy had to do some unimaginable things and some unimaginable things was done [sic] to him. All that came as a result of joining a social online group. Additionally, what was noticed was that amongst the drugs and the illegal guns, they saw people starting to come in and people being exchanged along with guns and drugs.86

More generally, it is noteworthy that women and girls from the Dominican Republic, like Venezuelans, also represent a group that is highly susceptible to human trafficking, in relation to which officials in Trinidad and Tobago have become increasingly wary. This renewed focus on addressing human trafficking involving Dominican victims was prompted by an incident a few years ago where a Syrian man and three Trinidadians were arrested and charged in connection with the alleged trafficking of 22 women of Dominican nationality, some of whom were reportedly forced into prostitution at a nightclub in the south of the country, while others were forced to pose naked and yet still others tied to a bed and exploited.87

B.  The Eastern Caribbean For the purposes of this chapter, the islands that comprise the Eastern Caribbean are Antigua and Barbuda, Dominica, Grenada, St Kitts and Nevis, St Lucia, and St Vincent and the Grenadines. These islands are, in general, middle-income constitutional democracies, heavily reliant on tourism, agriculture and, more recently, citizenship by investment. Although Antigua and Barbuda and St Kitts and Nevis can now properly be described as high-income territories, they, like their Eastern Caribbean counterparts, have not escaped the taint of criminality.

86 ‘Sex-trafficking of Venezuelan women in Tobago’ Trinidad and Tobago Newsday (6 December 2017).

87 ‘Trinidad

rescues 22 Dominican women “forced” into prostitution’ (EFE, 19 October 2015).

18  Introduction

i.  Antigua and Barbuda In Antigua and Barbuda, reports suggest that human trafficking is increasingly becoming a vexing issue, especially the transnational sex trafficking of women and girls from Jamaica and the Dominican Republic. In fact, from as far back as 2010, the Antiguan Minister of National Security has repeatedly suggested that women and girls are being brought to Antigua and Barbuda and thereafter forced to perform sexual services in various nightclubs, while others are reportedly held in debt bondage.88 In more recent years, the same minister has been quite frank in detailing his concerns about human trafficking in Antigua, noting that the ‘trade is alive and well and flourishing’, though he has admitted that ‘everything seems to have gone underground’.89 In explaining that the general modus operandi is for women and girls to be lured to Antigua on the promise of jobs, the minister cited several instances in which these victims have been met at the VC Bird International Airport by Antiguan nationals, who reportedly welcome these vulnerable individuals under the guise of being family or friends, but thereafter forcing them into a life of exploitation.90 While the exact details of the eight cases91 which are currently being investigated by Antiguan authorities have not been made public, the Trafficking in Persons (Prevention) Committee has explained that young and impressionable persons and young single mothers with heavy financial dependency are being targeted by traffickers.92 Other sources suggest that Antigua’s geographical location and porous borders,93 high tourist activity and the growing presence of bars, taverns and brothels continue to expose the most vulnerable segments of that society to trafficking.94 For example, 19 potential victims of human trafficking were only recently reportedly rescued from allegedly exploitative conditions at two nightclubs in Antigua.95

ii. Dominica Meanwhile, Dominica, a country which was only recently decimated by the passage of Hurricane Maria, faces similar challenges to Antigua and Barbuda. Although no official statistics are available to account for the existing state of affairs in so far as human trafficking is concerned, a number of Dominican interlocutors are of the 88 ‘Antigua passes human trafficking legislation’ Jamaica Gleaner (11 June 2010). 89 ‘Human Trafficking Activities Detected’ (ABS TV Radio Antigua & Barbuda November 2016). 90 ibid. 91 ‘2018 Trafficking in Persons Report – Antigua and Barbuda’ (Refworld, 28 June 2018). 92 ‘Antigua and Barbuda’s Annual Report on Trafficking in Persons 2017’ (Trafficking in Persons (Prevention) Committee, December 2017). 93 Carol Williams, ‘Antigua & Barbuda Ready to Crack Down on Human Trafficking, Sex Tourism’ (Caribbean News Digital, 2 April 2011). 94 ‘Situation Analysis of Children in Antigua & Barbuda’ (United Nations Children’s Fund (UNICEF) and the Government of Antigua and Barbuda, August 2017). 95 ‘Human trafficking crackdown at two nightclubs’ Antigua Observer (10 February 2018).

Situational Overview  19 view that women and girls from the Carib territory are at the greatest risk of being trafficked for the purpose of sexual exploitation and domestic servitude, particularly in light of the recent destruction of infrastructural and social support systems brought about by the passage of the hurricane. Another interesting dynamic which has been observed in the Dominican context is the influx of a growing number of Haitian women into Dominica, who have allegedly found themselves either exploited in the coastal community of Portsmouth96 or transported to the nearby French islands of Martinique and Guadeloupe,97 where they are at risk of being subject to sexual exploitation. Although women from the Dominican Republic reportedly frequent the Portsmouth community, it is the nuanced relationship between Haiti and Dominica which potentially exposes Haitian women and girls to the possibility of being trafficked. In this context, it must be borne in mind that although Dominica’s official language is English, it has a strong French creole heritage, in addition to porous borders, which make it relatively easy for potential victims of trafficking to be transported to Dominica, exploited there and then assimilated into the society. It should therefore come as no surprise that two Dominican men were recently arrested and charged for allegedly trafficking a Haitian national,98 whose body was eventually found floating in the water in an area close to Portsmouth.

iii. Grenada Although official data on human trafficking in Grenada remains unavailable, there has reportedly been at least one instance in which a group of young Nepalese students were unlawfully recruited and transported into Grenada and allegedly exploited by a Ghanaian national who resided in Trinidad and Tobago.99 While the outcome of this particular case was unknown at the time of writing, Grenadian policymakers remain alert to the fact that Grenada, though relatively economically stable, is not immune to the scourge of human trafficking. In this context, a former Grenadian Prime Minister has brought attention to Grenada’s vulnerability to trafficking, citing Tropical Storm Ivan, for example, which badly affected Grenada in 2004, and which reportedly resulted in a number of Grenadians being offered bogus invitations to study and work abroad.100 The former Prime Minister has also brought attention to the Caribbean Community (CARICOM) free movement of persons regime,101 which he indicated creates opportunities for traffickers to move 96 Ken Richards, ‘Dominica fights human trade’ (BBCCaribbean.com, 28 October 2005). 97 ‘National Security minister concerned about human trafficking’ (Dominica News Online, 2 February 2010). 98 ‘Bail denied in human trafficking case’ (Dominica News Online, 24 January 2013). 99 ‘Ghanaian Charged with Human Trafficking’ Grenada Informer (30 April 2015); ‘Trafficked ­Nepalese students detained in Grenada’ Jamaica Observer (22 April 2015). 100 ‘PM wants urgent action against human trafficking’ Antigua Observer (8 April 2010). 101 Oluatoyin Alleyne, ‘Sex tourism growing in favoured destinations in Caribbean’ Stabroek News (15 October 2010).

20  Introduction freely between CARICOM Member States for up to six months at a time, although the Caribbean Court of Justice (CCJ) has held that they may be refused entry if they constitute a charge on public funds or pose a genuine, present and sufficiently serious threat to public security, public health, public order and public morality.102

iv.  St Kitts and Nevis St Kitts and Nevis, like Grenada, has been fortunate to not have to contend with high rates of human trafficking. Indeed, since a single charge was reportedly laid in relation to labour trafficking in 2014,103 St Kitts and Nevis has not been confronted with confirmed cases of human trafficking, though some sources have intimated that the trafficking of women for the purpose of prostitution remains a real concern in that jurisdiction.

v.  St Lucia Meanwhile, in St Lucia, although there are no official estimates as to human trafficking cases, at least one case involving the alleged trafficking of a group of Asian students, who were pawned of substantial sums of money after they were promised enrolment at a fake Lambirds Academy, has surfaced.104 Further afield, at least three St Lucians have, in recent years, been referred to the UK’s NRM as potential victims of trafficking. These potential victims alleged that they were trafficked for the purpose of sexual exploitation in the United Kingdom.105

vi.  St Vincent and the Grenadines Finally, the multi-island State of St Vincent and the Grenadines has increasingly been confronted by the phenomenon of human trafficking in recent years, particularly in the realm of sexual exploitation, but also forced labour. Indeed, while there has been no successful conviction for human trafficking in that country to date,106 over 20 suspected cases of human trafficking have reportedly been investigated by the country’s Anti-Trafficking Unit since it became fully operationalised.107 At the time of writing, the latest of these investigations involved allegations that a

102 Shanique Myrie v Barbados [2012] CCJ 3. 103 ‘Ninth Follow-Up Report – St Kitts and Nevis’ (CFATF, 2 December 2014). 104 ‘Four foreigners on human trafficking charges in St Lucia’ Jamaica Observer (3 March 2015). 105 ‘National Referral Mechanism Statistics – End of Year Summary 2016’ (National Crime Agency, 7 April 2017). 106 ‘Case collapses, but investigators lauded’ The Vincentian (15 April 2016). The Prosecution, in this case, withdrew its case for a want of evidence in an alleged labour trafficking case involving three ­Jamaican nationals. 107 ‘2018 Trafficking in Persons Report’ (Office to Monitor and Combat Trafficking in Persons, US Department of State, 2018).

Situational Overview  21 number of Asian employees at a certain factory in St Vincent had been stripped of their passports, made to be completely dependent on their alleged trafficker for food and lodging and forced to work for said person, without commensurate remuneration.108 Despite repeated high-level statements from policymakers in St Vincent and the Grenadines which suggest that the country does not have a human trafficking problem,109 it is nonetheless widely accepted that the multifarious nature of the islands and cays that comprise this jurisdiction, their porous borders and a lack of adequate surveillance, especially of uninhabited internal areas and hard to reach coastal regions, render the country at risk of becoming a source, transit and destination country for human trafficking, particularly the trafficking of women from Venezuela, Guyana and the Dominican Republic for sexual exploitation.110

C.  The Overseas Territories Despite their porous borders, relatively small population sizes, weak coastal surveillance systems and relative economic stability, the Overseas Territories have, quite fortuitously, not in large part been tarnished by the scourge of human trafficking. In fact, in most of the Overseas Territories, trafficking is simply not viewed as a major challenge, albeit that human smuggling continues to pose serious concerns for policymakers. Notwithstanding the foregoing, however, there have been isolated cases of human trafficking that have implicated a few of the Overseas Territories, which remind us that no country is impervious to the enduring threat that trafficking poses. In Anguilla, for example, a person was only recently arrested and charged with a human trafficking offence;111 a Caymanian national resident in Canada was recently arrested and charged for forcing a woman into prostitution by verbally and physically assaulting her and abusing her dog;112 while in the USVI, a woman was reportedly arrested and charged for allegedly forcing a 13-year-old female minor into the sex trade.113 While these cases are admittedly isolated incidents of human trafficking in the Overseas Territories, they nonetheless do strongly suggest that the phenomenon of trafficking potentially affects all countries, including relatively affluent ones.

108 ‘Police free human trafficking victims across the Caribbean‘ WLNS (30 April 2018); ‘St Vincent: Victims of Human Trafficking Rescued By INTERPOL’ (NEWS784, 30 April 2018). 109 ‘Interpol “overextended” facts about SVG’s human trafficking raid’ IWitness News (3 May 2018). 110 ‘Vincentian PM: Men complained after suspected sex workers deported’ Loop News (4 May 2018). 111 ‘Anguilla Police Report 3rd January 2018’ 721 News (4 January 2018). 112 James Whittaker, ‘More victims possible in human trafficking case’ Cayman Compass (24 July 2016). In this case, investigators believed that the woman earned approximately C$200,000 (CI$125,000) for the accused, which they say he spent on jewellery, expensive clothing, rent and food for himself. 113 ‘US Virgin Islands: Efforts to Combat Human Trafficking’ (US Department of Health and Human Services, December 2016).

22  Introduction

IV.  Further Afield Although it is beyond the scope of this monograph to fully address the dynamics of human trafficking in other parts of the Caribbean aside from the English-­speaking territories and islands examined above, it suffices here to note that human trafficking does in fact exist with alarming and calamitous consequences in the French, Spanish and, to a lesser extent, Dutch-speaking Caribbean.

A.  The French Caribbean While there have been no reliable reports of human trafficking occurring in the French Overseas Departments, the same cannot be said for trafficking in the context of Haiti, whose history and legal landscape are inescapably linked to mainland France. In many ways, Haiti represents an intriguing paradox of bondage, even after over a century’s formal emancipation. Aside from being the poorest country in the western hemisphere,114 Haiti’s already precarious and, indeed, fragile social and economic infrastructure continues to be placed in the spotlight by a number of unfortunate circumstances, including the 2010 earthquake,115 ­Hurricane Matthew, a 2016 deadly tropical cyclone, and frequent cholera outbreaks. Against the backdrop of these circumstances, it should come as no surprise that Haitians have, for a number of years, been identified as the most vulnerable people in the Caribbean in so far as exposure to human trafficking is concerned. In fact, conservative estimates suggest that in any one year, over two thousand Haitians are formally identified as victims of trafficking,116 a large proportion of whom are children.117 The question of child trafficking in Haiti is a particularly acute problem to which the Haitian government and the international community as a whole has struggled to find innovative solutions. More specifically, although child trafficking and the related restavèk practice are prohibited in Haiti, it continues to be the case that children who have been sent by their impoverished Haitian families to informal adoption centres, particularly in the Dominican Republic, in the hope of these children achieving a better education and therefore social mobility, they

114 C Cloud, ‘Human Rights Abuses along the Dominican–Haitian Border’ (Human Rights and Human Welfare, 2009) 58. 115 Joshua Philipp, ‘Child Trafficking Through International Adoption Continues Despite Regulations’ The Epoch Times (28 March 2018). Noting that, in the wake of Haiti’s 2010 earthquake, ‘trafficking networks were springing into action immediately after the disaster and taking advantage of the weakness of local authorities and relief coordination’ to kidnap children. 116 ‘Child Labour in Haiti – What is the Government doing about it?’ (Haiti Now, 2017). 117 Julian Vigo, ‘Child Trafficking and Adoption in Haiti’ (Counter Punch, 17 September 2013).

Further Afield  23 are frequently exploited, whether sexually or in domestic servitude.118 According to practitioners and scholars in the field, the inescapable connection between the restavèk phenomenon and the human trafficking phenomenon became quite evident following the 2010 earthquake, which provided a platform for children to be exploited both in Haiti and abroad.119 A similarly disturbing trend which is increasingly being recognised by the international community as representing a particularly distressing form of trafficking is the trafficking of Haitian children for the purpose of their adoption by individuals and organisations parading as ‘missionaries’ in Haiti. In this context, it has only recently been reported that some 31 underage girls were being held in hotel rooms by so-called ‘missionaries’, who were intending on trafficking these children to the neighbouring country of the Dominican Republic where they would have potentially been forcibly adopted or otherwise exploited.120 Cases of this nature are not isolated occurrences, however, as, for over a decade, antitrafficking stakeholders have been calling on the Haitian government to adopt stringent measures to protect against the recruitment of children into orphanages for the purpose of exploitation.121 Sadly, because of a lack of political will and/or a lack of human and infrastructural resources, these calls have seemingly fallen on deaf ears. This has meant that a sizeable number of Haitian children continue to be exploited by so-called missionaries. More generally, given the calamities that have consistently befallen Haiti, UN Peacekeepers have been deployed to assist the country in restoring some semblance of peace. Unfortunately, however, many of these Peacekeepers have brought anything but peace to Haiti; in fact, there is strong evidence to suggest that they have brought further poverty, abuse and disenfranchisement to an already vulnerable society. Indeed, a recent Associated Press report has detailed the devastating impact which the exploitation meted out by ‘Peacekeepers’ from Bangladesh, Brazil, Jordan, Nigeria, Pakistan, Uruguay and Sri Lanka has had on already vulnerable Haitians.122 Citing interviews with various UN sources, the report pointed out that Sri Lankan Peacekeepers harboured both male and female Haitian children, offered them money, cookies and other snacks to gain their trust, and eventually forced them to engage in unthinkable acts of a grave sexual nature. While over one hundred of these so-called ‘Peacekeepers’ were reportedly sent

118 Nadege Green, ‘Broward College Conference Highlights Haiti‘s Attempts to Curb Child Slavery’ (WLRN, 25 March 2015). 119 T Borysthen-Tkacz, A Zack and J Zumbach, ‘Legal Curriculum on Restavèk Children in Haiti’ (Boston University School of Law, 2014). 120 Whitney Webb, ‘31 Underage Haitian Girls Rescued from Alleged Human Trafficking Operation’ (True Activist, 8 February 2017). 121 Rachel Belt, ‘A Form of Child Trafficking in Haiti: The Orphanage Business’ (OHRH, 17 December 2013). 122 Paisley Dodds, ‘AP Exclusive: UN child sex ring left victims but no arrests’ (Associated Press, 12 April 2017).

24  Introduction home, none was reportedly ever imprisoned,123 although the harrowing stories of exploitation continue to send shockwaves throughout Haiti.

B.  The Spanish Caribbean The Spanish-speaking Caribbean islands collectively account for the largest proportion of trafficked victims in the region. Interestingly, although there is much political agitation against Cuba, just over 50 persons have been identified as victims of trafficking in that country,124 which is truly remarkable when viewed in light of the fact that Cuba’s population exceeds 11 million people. Indeed, while it is true that Cuban nationals, in particular women and girls, have been trafficked for the purpose of sexual exploitation in Ecuador,125 the United States,126 Columbia, Costa Rica and Mexico,127 the UN Special Rapporteur on Trafficking in Persons has publicly expressed that traffickers do not operate with impunity in Cuba, since its strong political will to exorcise the phenomenon, the relative social equality that characterises the state’s socialist system of governance, high levels of education and widespread access to health and social services prevent many Cubans from becoming victims of trafficking.128 Though not impervious, Cuba has demonstrated that there is not an inescapable correlation between the size of its population and the number of victims who are trafficked. By contrast, in the Dominican Republic, nearly one thousand victims of trafficking are identified on an annual basis, which accounts for one of the largest proportions of trafficked victims in the entire region.129 The majority of these victims, who incidentally are of Haitian heritage, are trafficked for the purpose of sexual exploitation. The relationship between Haiti and the Dominican Republic is an interesting one, which raises more questions than answers. On the one hand, both of these states share the island of Hispaniola, but on the other, Haiti is the poorest country in the western hemisphere while the Dominican Republic is relatively more affluent. The distinct social and economic profiles of these two countries have invariably led to myriad geopolitical tensions, which have only escalated in the last decade in the wake of the earthquake of 2010 and the passage of legislation amending 123 ibid. 124 ‘Cuba warns of human trafficking, forced prostitution dangers’ (Xinhua, 21 January 2018). 125 ‘Cuban Busted in Human Trafficking Ring Sent Packing’ (NewsAmericas, 22 July 22). 126 ‘Miami Resident Sentenced to 30 Years in Prison for Sex Trafficking’ (Department of Justice, 7 July 2017). 127 ‘Cuba needs new laws and stronger action targeting human trafficking, says UN rights expert’ (OHCHR, Geneva, 20 April 2017). 128 ‘Cuba Welcomes First Visit from UN Special Rapporteur in Nearly 10 Years’ (International Justice Resource Center, 19 April 2017). 129 IM Peña, ‘Legal Remedies for the Right to Asylum for Qualifying Victims of Human Trafficking: A Comparative Analysis between United States, Mexico and the Dominican Republic’ (Centre for Civil and Human Rights, University of Notre Dame, 2015).

Further Afield  25 the Dominican Constitution to effectively render thousands of Haitians stateless, and therefore vulnerable to abuse, including human trafficking. In this context, Haitians are reportedly ten times more likely to be trafficked to the Dominican Republic as part of the restavèk system,130 as described earlier in this chapter, as well as exploited in the commercial sex industry in bars and on the streets131 and beaches of tourist towns.132 Interestingly, although Haitians are, from a regional perspective, at the ­greatest risk of being trafficked, it is somewhat paradoxical that Dominican women and girls are also at a high risk of being trafficked, and have in fact been trafficked to a number of other Caribbean countries, including Antigua and Barbuda, ­Barbados, The Bahamas, Jamaica, and Trinidad and Tobago, as described earlier in this chapter. Finally, it is noteworthy to note that although human trafficking does occur in Puerto Rico, it is not remotely of the scale that occurs in the Dominican Republic. In fact, official statistics suggest that although some Puerto Ricans are exploited in the sex and labour industries, there have consistently been fewer than 30 cases of human trafficking in this territory in any one year,133 which is remarkable when one considers the fact that it boosts a population of almost 3.4 million people.

C.  The Dutch Caribbean Although the Dutch Caribbean islands maintain a high standard of living and are relatively prosperous nations with very little criminality, the phenomenon of human trafficking has managed to find its way into these otherwise stable societies. While, because of their close proximity to Venezuela, none of the Dutch Caribbean islands are immune from human trafficking, it is Curacao and Aruba that have reportedly had to contend most with the evolving dynamics of human trafficking. More specifically, in light of the recent social and economic unrest in ­Venezuela, an increasing number of Venezuelan women have been lured to Curacao and Aruba under the guise of obtaining jobs, only to thereafter be physically and psychologically coerced, having their personal belongings and travel documents confiscated, and being forced to engage in sexual activity of a commercial nature.134 Interestingly, it has been alleged that law enforcement officials, including

130 S Pena, ‘A Qualitative Analysis of Child Trafficking in Haiti and the Dominican Republic Using the Capitalist Theory’ (Proceedings of the National Conference on Undergraduate Research (NCUR) Weber State University, Ogden, Utah, March 2012). 131 ‘Haitian child victims of trafficking in Dominican Republic receive assistance’ (International Organization for Migration, 21 May 2013). 132 ‘Commercial Sexual Exploitation of Children in the Dominican Republic’ (International Justice Mission, 2015). 133 ‘Puerto Rico: Efforts to Combat Human Trafficking’ (US Department of Health and Human Services, 2016). 134 ‘First deportation to Colombia for human trafficking crime’ Curaçao Chronicle (2 April 2013).

26  Introduction immigration officers135 and police officers,136 are at times complicit in the exploitation of these vulnerable victims by turning a blind eye or facilitating the unlawful entry of these individuals. These developments have led to calls by the prosecutors’ departments in those jurisdictions to impose stiff jail sentences in an effort to curtail the recalcitrant activities of traffickers.137

V. Summary The foregoing discussion aptly demonstrates that human trafficking exists in the Caribbean and is arguably here to stay. The cases cited above are not exhaustive but point to the inescapably harsh realities faced by trafficked victims in the region who, because of poor educational and/or job prospects and the desire to exercise their agency in search of better opportunities, are easily recruited, controlled and exploited. This applies as much in relation to adults as it does to children. In short, then, having regard to the discussion above, it is clear that human trafficking is a dynamic and quickly evolving phenomenon in the Caribbean, which continues to challenge policymakers to find innovative solutions in the hope of addressing its myriad externalities.

VI.  Structure of the Monograph This chapter has provided a useful analysis of the existing state of affairs as regards human trafficking in the Caribbean from an Analytical Eclectic perspective. In chapter two, the theoretical and analytical approaches to problematising human trafficking will be explored, followed by a critical analysis of international law’s patchy response to the phenomenon in chapter three. Chapter four addresses revolutionary developments in the anti-trafficking field in Europe, while chapter five attempts to assess the law and practice on human trafficking in England and Wales against the backdrop of international and European anti-trafficking best practices and standards. Meanwhile, chapters six, seven and eight present an authoritative, empirically grounded and incisive interrogation of the law and practice on human trafficking in the Commonwealth Caribbean from an Analytical Eclectic perspective. The monograph culminates in chapter nine, which explores the ways in which the ‘disconnect’ between anti-trafficking law and practice could be best ameliorated. 135 ‘Head of Immigration Service suspected of 9 cases of human trafficking’ Curaçao Chronicle (12 April 2018). 136 ‘Two police officers arrested in human trafficking case’ Curaçao Chronicle (21 November 2016). 137 ‘Intervene now, Ministry of Labor and Social Affairs facilitates women trafficking (part 2)’ Curaçao Chronicle (10 June 2015); ‘Prosecutor’s Office demands stiff jail sentences in Papegaai-investigation’ Curaçao Chronicle (15 March 2017).

2 Theoretical Perspectives on Human Trafficking Introduction Although the body of research on human trafficking has grown exponentially in recent years, there has not, unfortunately, been a correlative improvement in the manner in which the phenomenon is theoretically problematised.1 Indeed, as will be illustrated in this chapter, part of the reason for this lacklustre approach to ­problematising human trafficking lies in the fact that the existing theoretical approaches are generally poorly developed, weak in their epistemological and ontological underpinnings and not sufficiently pluralistic to capture the multidimensional nature of human trafficking. By contrast, this monograph adopts Analytic Eclecticism as its theoretical framework. According to Rudra Sil and Peter Katzenstein, Analytic Eclecticism represents, ‘an intellectual stance that supports efforts to complement, engage, and selectively utilize theoretical constructs embedded in contending research traditions to build complex arguments that bear on substantive problems of interest’.2 In short, employing Analytic Eclecticism attempts to correct the glaring shortcomings inherent in existing research traditions by crossing the epistemological divide in order to apply the best contemporary stocks of opinions and assumptions to critically and holistically address the challenges, complexities and opportunities relative to the law and practice on human trafficking across multiple jurisdictions.

I.  Economic Theory Economic Theory attempts to explain human trafficking through an exploration of the business model, in relation to which various market variables are at work,

1 M Joarder, A Munim and P Miller, ‘A Theoretical Perspective on Human Trafficking and ­Migration-Debt Contracts’ (2013) 49 The Journal of Development Studies 1332 (arguing that ‘despite the policy relevance, theoretical analysis in the area of human trafficking is relatively scarce’). 2 R Sil and P Katzenstein, ‘Analytic Eclecticism in the Study of World Politics: Reconfiguring ­Problems and Mechanisms across Research Traditions’ (2010) 8 Perspectives on Politics 411.

28  Theoretical Perspectives including supply, demand, regulators and competitors.3 On the demand side, ­economists, such as Alexis Aronowitz, Gerda Theuermann and Elena T ­ yurykanova, contend that the level of demand for the services of trafficked victims depends on the price of the services that they are capable of offering as well as their availability in the first place.4 According to these scholars, once victims are in high demand, consumers will pay any price to use their services, while increased availability of victims at lower prices results in more customers entering the market. In so far as supply is concerned, the authors argue that traffickers generally have a regular supply of potential victims, since a number of vulnerable individuals, particularly those migrating from developing countries, are willing to exercise their agency in search of better opportunities abroad.5 To disrupt the demand and supply matrix, Siddharth Kara considers that several key entities, including wholesalers (traffickers), retailers (exploiters) and customers (consumers of sexual and cheap labour services), must be subject to proactive, intelligence-led investigations, as well as the confiscation of instrumentalities and profits.6 Undoubtedly, Economic Theory has allowed for a better understanding of the myriad market variables that underlie the prevalence of human trafficking, and has, in fact, informed the promulgation of legislative provisions which seek to disrupt the demand and supply of services by victims, while taking the profit out of the crime. That said, from an Analytical Eclectic perspective, it is submitted that the Economic Theory is an inadequate theoretical approach for the purposes of problematising the law and practice on human trafficking because its nearubiquitous focus is on the economics of the phenomenon, which, although useful, represent an oversimplification of a rather complex issue. Indeed, it is clear from even a cursory reading of the work of economists that it is limited to economic variables and correlations, which invariably mean that more tendentious questions surrounding the content of anti-trafficking law and its operation in practice are pushed into obscurity.7 In short, while economists usefully explain the implications of state policies on the trafficking market and vice versa, their parochial epistemic orientation does not allow for Economic Theory to be applied more broadly to address the complex and multidimensional phenomenon of human trafficking.

3 A Aronowitz, G Theuermann and E Tyurykanova, Analysing the Business Model of Trafficking in Human Beings to Better Prevent the Crime (OSCE Office of the Special Representative and Co-ordinator for Combating Trafficking in Human Beings, 2010). 4 ibid 34. 5 ibid. 6 S Kara, Sex Trafficking: Inside the Business of Modern Slavery (Columbia University Press, 2013). 7 E Wheaton, E Schauer and T Galli, ‘Economics of Human Trafficking’ (2010) 48(4) International Migration 114, 117.

Criminology Theories  29

II.  Criminology Theories In recent years, a number of criminologists have developed and applied v­ arious theoretical constructs to the study of the conditions under which human ­trafficking occurs, the choices typically made by traffickers to engage in exploitation of others, as well as the impact of exploitation on victims of trafficking. These constructs, while undoubtedly related, are addressed separately hereafter for the purposes of clarity.

A.  Social Disorganization Theory The central premise underlying the Social Disorganization Theory, as advanced by Önder Karakuş, and Oğuzhan Başibüyük, is that human trafficking emerges as a result of a lack of, or breakdown in, formal and informal social controls, as well as increased criminal opportunities created against the backdrop of changed sustenance activities and related migratory movements.8 Essentially, the Social Disorganization Theory argues that structural forces such as poverty, political and economic shifts and the disruption of family relationships, increased mobility, unemployment, and increased female participation in the workforce account for the high rates of human trafficking in some jurisdictions. Related to the latter point, Karakuş and Başibüyük, quite controversially, contend that the absence of appropriate guardianship, largely resulting from women exercising their agency in search of better opportunities abroad, increases exposure to being trafficked, as the proximity between victims and traffickers becomes greatly reduced in the migratory process.9 While the Social Disorganization Theory provides an excellent narrative on the role of structural conditions in increasing the vulnerability of particular groups of persons to being trafficked, such as women and children, it is nonetheless arguable, from an Analytical Eclectic perspective, that the Social Disorganization Theory fails to critically engage in a balanced discourse on the question of the agency of trafficked victims, and discounts the victimhood of women, particularly from developing countries, who are exploited while exercising their right to seek better opportunities abroad. More specifically, given its strong emphasis on effective guardianship as a precondition for avoiding exposure to human trafficking, the Social Disorganization Theory implicitly situates women in the home which, in effect, has implications for the way in which women are viewed both in the existing literature as well as in their homes and communities and by criminal 8 Ö Karakuş, and O Başibüyük, ‘Social Disorganization Theory and Human Trafficking: A Systemic Control Approach to the Phenomenon’ (2010) 12(2) Turkish Journal of Police Studies 23. 9 ibid 27.

30  Theoretical Perspectives justice stakeholders. To implicitly suggest that the absence of female guardianship correlates to increased incidents of human trafficking is to simultaneously suggest that women who exercise their agency in search of better opportunities abroad, and who are trafficked in the process of attempting to do so, are somehow responsible for the breakdown in formal social controls. Such a parochial and anachronistic view also risks blaming these victims for being complicit in their own exploitation, notwithstanding the fact that international law does not countenance the notion that victims can consent to their exploitation.10 More than this, however, the near ubiquitous focus on the conditions leading up to victims of ­trafficking being exploited, while an important policy consideration, is nevertheless an inadequate theoretical framework for comprehensively assessing the law and practice on human trafficking, since it ignores the fact that in countries like the United States where there is, comparatively speaking, high levels of guardianship and overall economic prosperity, trafficking still occurs in large numbers. From an Analytical Eclectic perspective, therefore, while the Social Disorganization Theory is useful in informing analyses relating to the prevention of human trafficking, it cannot be applied, without modification, to address broader questions regarding the prosecution of trafficking-related incidents and the provision of assistance and protection to victims of trafficking.

B.  Rational Choice and Neutralization Theories The Rational Choice and Neutralization theories are very much related, if not dependent on each other, to the extent that their primary focus is on the choices made by traffickers as well as the rationalisations that underlie these choices. In this context, the central premise of the Rational Choice Theory is that traffickers engage in a cost–benefit analysis to determine whether the benefits of exploiting vulnerable people outweigh the costs and risks associated with being caught and prosecuted.11 According to Elizabeth Wheaton, Edward Schauer and Thomas Galli, if the gains do, in fact, outweigh the risk of identification, apprehension and the imposition of severe punishments, traffickers will, in all likelihood, choose to engage in human trafficking.12 Meanwhile, Neutralization theorists, like Aronowitz, Theuermann and Tyurykanova, argue that traffickers seek to rationalise their involvement in ­ criminal activity through a number of means.13 For example, they may deny responsibility for engaging in the activity by blaming related factors, such as their poor upbringing. They may also deny that injury was sustained by arguing that 10 Art 3(b) Palermo Protocol. 11 B Simmons and P Lloyd, ‘Subjective Frames and Rational Choice: Transnational Crime and the Case of Human Trafficking’ (International Studies Association Annual Meeting, Montreal, 2011) 3. 12 Wheaton, Schauer and Galli (n 7). 13 Aronowitz, Theuermann and Tyurykanova (n 3).

Criminology Theories  31 the victims were not physically harmed and that any psychological injury alleged to have been suffered is contrived. There may also, in some instances, be a denial of victims’ victimhood by traffickers. In this context, traffickers may attempt to rationalise their choices by contending that the trafficked person is not truly a victim as he or she chose to exercise his or her agency or that their circumstances of exploitation are not as bad as that which previously obtained, particularly if they are from a developing or post-conflict community. In many instances, traffickers also seek to rationalise their conduct by condemning the criminal justice system, citing corruption on the part of state officials as the central reason underlying their decision to become involved in trafficking. More recently, with the increasing involvement of family members in trafficking-related cases, traffickers have appealed to higher loyalties, such as close ties of love and affection, as justifications for their involvement in human trafficking. In some parts of the world also, including a number of countries in Africa, Neutralization theorists explain that traffickers often appeal to religious priorities as a basis for entrapping victims, and often seek to establish correlations between failure to be obedient to their demands and consequential serious physical and psychological ailments related to voodoo practices.14 Against this backdrop, to counter traffickers’ inclination to use these rationalisations as justifications for their involvement in trafficking, Neutralization theorists contend that opportunities for committing the crime must be eliminated and, wherever possible, the profits associated with the crime must be eradicated.15 In short, as far as the Rational Choice and Neutralization theorists are concerned, traffickers will only desist from engaging in human trafficking if they believe that their crime will no longer generate profits or that there is a high risk of prosecution. Notwithstanding the need to understand traffickers’ choices and motivations as these inform targeted counter-trafficking responses, from an Analytical Eclectic perspective, it is submitted that the Rational Choice and Neutralization theories, both individually and collectively, do not offer a comprehensive nor, indeed, adequate theoretical framework for assessing the law and practice on human trafficking. While, admittedly, these theories buttress the argument advanced in this monograph that forfeiture of traffickers’ assets as well as proactive investigations are key factors in dissuading traffickers from becoming involved in trafficking, these theories do, however, marginalise issues related to the protection of trafficked victims, such as the provision of material assistance and psychological assistance, compensation and adequate accommodation, which are evidently important attributes of a truly robust anti-trafficking framework. For this reason, the Rational Choice and Neutralization theories will not be uncritically applied in the context of this monograph, although some of the more workable assumptions

14 A Dunkerley, ‘Exploring the use of Juju in Nigerian Human Trafficking Networks: Considerations for Criminal Investigators’ (2018) 19 Police Practice & Research 83. 15 Aronowitz, Theuermann and Tyurykanova (n 3) 72.

32  Theoretical Perspectives that underlie these theories would, from time to time, be referenced in the ­Analytical Eclectic discourse.

C.  Integrated Theory In an attempt to overcome the criticism as to the oversimplification of the ­criminological discourses described above, Thozama Lutya and Mark Lanier have advanced an ‘Integrated Theory’ that merges concepts from diverse areas of criminology to explain the complexities associated with the phenomenon of human trafficking.16 The Integrated Theory begins by relying on the Rational Choice framework described in the foregoing section to advance the argument that traffickers make a conscious decision to commit trafficking-related offences after carefully engaging in a cost–benefit analysis of the risks and opportunities associated with their involvement therein. Lutya and Lanier then draw on Economic Theory to argue that cultural attitudes associated with prostitution, violence against women as well as the mass production of sexualised images fuel the demand for trafficked victims. In their view, if demand is augmented by the inclination on the part of ­traffickers to engage in human trafficking, victims, who are described by the authors as ‘­innocent, precipitating and provocative’,17 invariably become prone to ­victimisation and are, in many instances, actually exploited. Victimisation, in this context, is triggered not only by the adverse conduct of traffickers, but also the interconnected conditions of inequality as well as loss and pain experienced by victims. Provided that the gains from trafficking outweigh the likelihood of prosecution, Integrated theorists argue that traffickers will continue to commit the crime, possibly with impunity in some countries. While the Integrated Theory promises an integrated approach, it is submitted that it fails to deliver a truly integrated solution to the phenomenon of human trafficking, particularly because it draws heavily from, and is therefore informed by, partial criminological approaches that focus on preventative and p ­ rosecutorial efforts, thereby ignoring the important objective of protecting and assisting victims. Additionally, the Integrated Theory appears to be highly parochial in its orientation, focusing on the distinctions between different classes of victims, effectively labelling some victims as ‘innocent’ and others as ‘provocative’. From an Analytical Eclectic perspective, it is submitted that this does little to assist in eradicating the ‘hegemonic assumptions’ that often pervade anti-trafficking discourses, since it reinforces a simplified and flawed approach to the identification and protection of victims that is out of sync with basic tenets of international law. 16 T Lutya and M Lanier, ‘An Integrated Theoretical Framework to Describe Human Trafficking of Young Women and Girls for Involuntary Prostitution’ in J Maddock (ed), Public Health: Social and Behavioral Health (INTECH Open Access Publishing, 2012). 17 ibid 560.

Feminist Theories  33

III.  Feminist Theories Feminist theories on human trafficking attempt to challenge the traditional security framework within which states operate.18 Instead of focusing on the state as the central frame of reference, Feminist theories prioritise the security of trafficked women and girls, in particular, and argue for the adoption of measures aimed at their protection and assistance, having regard to their lived experiences.19 Traditionally, Feminist theories have not only emphasised that human trafficking is essentially a human rights violation, but more profoundly that both men and the state itself threaten women, primarily through their harmful exercise of power and discourses that rely on and reproduce gender and racial stereotypes.20 While feminists typically agree on the necessity of protecting trafficked women and girls, they disagree – quite fundamentally – on who should be considered a victim and, by extension, what should be done to protect victims of the crime.21 Two leading, though divergent, feminist theoretical perspectives on human trafficking have been advanced in the existing literature.

A.  Feminist Abolitionists Feminist Abolitionism, which has been strongly influenced by the pioneering work of Catherine Mackinnon22 and Kathleen Barry,23 views prostitution and human trafficking as inextricably linked, with the only distinction between the two being that the latter involves ‘crossing international borders’.24 According to Abolitionists, efforts aimed at eradicating human trafficking must invariably address the issue of prostitution, since it is illogical to view the latter as an activity to which ‘prostituted people’ could consent.25 More profoundly, as explained by Michelle Dempsey, Abolitionists believe that, because both sex trafficking and prostitution harm women in ways that tend to sustain and perpetuate patriarchal structural inequalities,26 both prostituted as well as trafficked women must be provided with valuable and realistic alternatives, such as shelter, nutrition, healthcare, drug rehabilitation, education and employment opportunities, while traffickers and pimps 18 J Lobasz, ‘Beyond Border Security: Feminist Approaches to Human Trafficking’ (2009) 18 Security Studies 319. 19 A Lansink, ‘Human Rights Focus on Trafficked Women: An International Law and Feminist Perspective’ (2006) 70(1) Agenda: Empowering Women for Gender Equity 45, 54. 20 Lobasz (n 18) 322. 21 ibid 334. 22 See, eg, C MacKinnon, ‘Trafficking, Prostitution, and Inequality’ (2011) 46 Harvard Civil Rights–Civil Liberties Law Review 271. 23 K Barry, Female Sexual Slavery (New York University Press, 1979). 24 ibid 7. 25 K Barry, The Prostitution of Sexuality (New York University Press, 2005) 17. 26 M Dempsey, ‘Sex Trafficking and Criminalization: In Defense of Feminist Abolitionism’ (2010) University of Pennsylvania Law Review 1729, 1735.

34  Theoretical Perspectives must be held accountable for the harm caused to these vulnerable persons.27 In short, then, Abolitionists’ main goal is not only to lobby governments to view human trafficking and prostitution as largely one and the same, but also to implore prosecutorial authorities to institute prosecutions against both traffickers and customers, notwithstanding the fact that a prostituted person might not have been coerced, intimidated or threatened into performing sexual activities. Admittedly, Feminist Abolitionists have succeeded in placing human t­rafficking on the global agenda, particularly through their advocacy initiatives that have dramatically presented the deleterious harm typically sustained by trafficked victims.28 Despite this commendable achievement, however, from an Analytical Eclectic perspective, it is submitted that the assumptions underlying Abolitionism are open to challenge because they are inherently flawed in their underpinnings. The central arguments against Feminist Abolitionism have been usefully summarised by Ronald Weitzer, who regards Abolitionist discourse as essentially a ‘moral crusade against prostitution’.29 Building on the critical sentiments earlier expressed by feminist scholars, such as Jennifer Tobasz, Cynthia Wolken and Shelley ­Cavalieri, Weitzer contends that Abolitionists violate standard canons of scientific enquiry in a number of ways. First, notwithstanding the internationally agreed definition of human trafficking contained in the Palermo Protocol, Abolitionists continue to deliberately conflate sex trafficking with prostitution in a manner that is both anachronistic and intellectually dishonest. Similarly, by situating human trafficking in the realm of international border crossing, Abolitionists also margin­ alise victims who may have been internally trafficked. Further, while Abolitionists typically argue that their central aim within the context of the anti-trafficking movement is to end sex trafficking, their real goal, although often unstated, is to engage in a moral crusade against prostitution. Indeed, by transforming the issue of human trafficking into a ‘battle ground for different positions on prostitution’, Abolitionists ignore the socio-economic forces that fuel human trafficking, fixating instead on individual actors, such as traffickers, pimps, clients and female victims. Moreover, despite Abolitionists’ sweeping claims as to the prevalence of human trafficking and its link to prostitution, there remains some level of uncertainty over whether the decriminalisation or legalisation of prostitution is, in fact, determinative of there being an increase in human trafficking,30 though recent research 27 ibid 1749. 28 J Doezema, ‘Who gets to Choose? Coercion, Consent, and the UN Trafficking Protocol’ (2002) 10(1) Gender & Development 20. 29 R Weitzer, ‘The Social Construction of Sex Trafficking: Ideology and Institutionalization of a Moral Crusade’ (2007) 35 Politics & Society 447. 30 R Akee, A Basu, N Chau and M Khamis, ‘Ethnic Fragmentation, Conflict, Displaced Persons and Human Rrafficking: An Empirical Analysis’ in G Epstein and I Gang (eds), Migration and Culture: Frontiers of Economics and Globalization Vol 8 (Emerald Group Publishing Limited, 2010) (­finding that prostitution laws have no effect on whether there is any reported incidence of trafficking). cf N Jakobsson and A Kotsadam, ‘The Law and Economics of International Sex Slavery: Prostitution Laws and Trafficking for Sexual Exploitation’ (2013) 35 European Journal of Law and Economics 87 (finding a positive effect of legalised prostitution on human trafficking).

Feminist Theories  35 by Seo-Young Cho, Axel Dreher and Eric Neumayer argues in the affirmative.31 The fact that Abolitionism typically ignores the agency and, indeed, lived experiences of many victims of trafficking in its discourse, is not only another significant criticism of this theoretical framework but, more so, one of the reasons why the Analytical Eclectic does not uncritically apply this perspective to the prolematisation of human trafficking in the context of this monograph. This does not, however, mean that some of the more pragmatic ideas countenanced by this approach, such as the need for awareness-raising and the protection of victims, will not be countenanced; rather, an uncritical version of Feminist Abolitionism will not be wholly relied upon in this monograph, as to do so would paint only a partial picture of the challenges and complexities involved in combating human trafficking across multiple jurisdictions.

B.  Feminist Prohibitionists In contradistinction to the largely parochial sentiments typically espoused by Abolitionists, Feminist Prohibitionists contend that there is a marked distinction between sex trafficking and prostitution, and that both should therefore not be conflated.32 In this context, leading Prohibitionist feminists, such as Kamala Kempadoo,33 Jo Doezema34 and Martha Nussbaum35 contend that rather than lobbying to criminalise prostitution, the central focus of feminism should be that of eradicating human trafficking. Implicit in the distinction drawn between the two phenomena is the issue of consent: that is, human trafficking should be prosecuted because victims cannot consent to their exploitation while, in the case of prostitution, ‘sex work’ is viewed as a legitimate and arguably consensual form of economic activity, seemingly a natural corollary of women’s agency. In short, the central premise of Prohibitionists is that women’s individual autonomy remains unconstrained even in the face of limited choices, and that punitive action should only be taken to protect these women when there is evidence that they have been coerced, threatened or exploited. While Feminist Prohibitionists appear to have provided a more nuanced account of the distinction between sex trafficking and prostitution than their Abolitionist counterparts and have arguably succeeded in embedding this ­ 31 S-Y Cho, A Dreher and E Neumayer, ‘Does Legalized Prostitution Increase Human Trafficking?’ (2013) 41 World Development 67. 32 K Kempadoo, ‘From Moral Panic to Global Justice: Changing Perspectives on Trafficking’ in K Kempadoo, J Sanghera and B Pattanaik (eds), Trafficking and Prostitution Reconsidered: New Perspectives on Migration, Sex Work and Human Rights (Paradigm Publishes, 2005) vii. 33 K Kempadoo, ‘Victims and Agents of Crime: The New Crusade Against Trafficking’ in J Sudbury (ed), Global Lockdown: Race, Gender, and the Prison-Industrial Complex (Routledge, 2014) 35. 34 J Doezema, ‘Loose Women or Lost Women? The Re-Emergence of The Myth of White Slavery in Contemporary Discourses of Trafficking in Women’ (1999) 18(1) Gender Issues 23. 35 M Nussbaum, ‘Whether from Reason or Prejudice: Taking Money for Bodily Services’ (1998) 27 Journal of Legal Studies 693.

36  Theoretical Perspectives approach in the Palermo Protocol,36 some of the underlying epistemological assumptions countenanced by this perspective have not gone unchallenged. In her thought-provoking article, Cavalieri contends that Feminist Prohibitionists indirectly create a dangerous dichotomy between ‘innocent’ and ‘complicit’ women by virtue of overemphasising the role of consent vis-a-vis coercion.37 In other words, by sharply distinguishing prostitution from trafficking on the basis of consent/ coercion, it is argued that Prohibitionists run the risk of marginalising those victims who exert agency, such as those who seek better opportunities in the sex industry abroad, while affording primacy to the needs of those who are supposedly more passive. In addition, it has been argued that by overemphasising the inviolability of women’s choices, Prohibitionists run the risk of indirectly imploring law enforcement authorities, charged with the task of victim identification, to ignore the structural conditions that might render victims’ choices to engage in prostitution ineffective in reality. According to Tobasz, the fact that Prohibitionists, like Abolitionists, focus near-ubiquitously on sex trafficking in their discourse is problematic, as it marginalises and isolates other victims of trafficking, including men and boys, who are frequently trafficked for non-sexual purposes.38 For the foregoing reasons, while recognising the agency of women as well as the distinction between prostitution and sex trafficking, the Analytical Eclectic does not uncritically accept, or rely on, the Prohibitionist Theoretical framework in its discourse on human trafficking.

IV.  Brief Reflections As recently pointed out by Wolken, given that both Abolitionist as well as ­Prohibitionist theories ‘have proven inadequate as applied to human trafficking’,39 a more comprehensive and nuanced theoretical framework is apposite. This is not to suggest that Feminist theories on human trafficking have no merit, but rather, the ‘ideological chasm that divides’ these theories will prove to be problematic if these theories are uncritically applied to a monograph of this nature, which is concerned with providing a thorough and nuanced analysis on the law and practice on human trafficking across multiple jurisdictions. The challenge with Feminism, as Cavalieri has rightly pointed out, lies in the fact that while scholars from both ends of the divide continue to ‘engage in a public policy death match

36 A George, U Vindhya and S Ray, ‘Sex Trafficking and Sex Work: Definitions, Debates and D ­ ynamics – A Review of Literature’ (2010) 45(17) Economic and Political Weekly 24. 37 S Cavalieri, ‘Between Victim and Agent: A Third-Way Feminist Account of Trafficking for Sex Work’ (2011) 86 Indiana Law Journal 1409, 1435. 38 Lobasz (n 18) 341. 39 C Wolken, ‘Feminist Legal Theory and Human Trafficking in the United States: Towards a New Framework’ (2006) 6 University of Maryland Law Journal of Race, Religion, Gender & Class 407, 419.

Analytic Eclecticism  37 for t­heoretical primacy, [trafficked victims] continue to face tangible harms that purportedly concern these Feminists’.40

V.  Analytic Eclecticism Analytic Eclecticism, also referred to as ‘post-paradigmatic’ or ‘pluralistic’ scholarship, does not hold rigidly to a single set of assumptions, but draws on multiple theoretical approaches and methods to gain complementary insights into a particular subject matter. Although this intellectual stance has a long history, particularly in the fields of sociology, politics and international relations, it has never been expressly applied to the study of human trafficking, which is both curious and disappointing. It is disappointing because, for a long time, human trafficking has been identified as a multidimensional problem that necessarily requires multidimensional solutions; but yet, traditional theoretical approaches have been anything but pluralistic in their orientation. International relations scholars, Katzenstein and Sil, have been among the loudest proponents of Analytic Eclecticism over the last two decades, adopting what they describe as a ‘pragmatic’ approach to their study of various phenomena, which eschews ‘metatheoretical and methodological battles in favour of approaches that explicitly explore the interfaces between, and build bridges across, problematics and analyses originally constructed within seemingly incommensurable research traditions’.41 Katzenstein and Sil’s Eclectic mode of scholarship ‘trespasses deliberately and liberally across competing research traditions with the intention of defining and exploring substantive problems in original and creative ways’.42 This necessarily involves selectively drawing upon a variety of existing and emerging research traditions in order to contribute to what they describe as ­‘theoretical progress’.43 Craig Parsons, who, like Katzenstein and Sil, describes himself as an Eclectic scholar, has argued that Analytic Eclecticism allows for ‘ontological open-­ mindedness’ as well as ‘epistemological humility’.44 In this connection, Parsons contends that Eclectic scholarship encourages engagement across the ­epistemological divides, and, in so doing, gains valuable insights from myriad perspectives, effectively selecting and applying what appears to be the best ­assumptions, analyses and methods from existing traditions. 40 Cavalieri (n 37) 1444. 41 P Katzenstein and R Sil, ‘Eclectic Theorizing in the Study and Practice of International Relations’ in C Reus-Smit and D Snidal (eds), The Oxford Handbook of International Relations (Oxford University Press, 2010) 110. 42 M Terhalle, The Transition of Global Order: Legitimacy and Contestation (Springer, 2015) 155 (citing Katzenstein and Sil, among others). 43 ibid 16. 44 C Parsons, ‘Before Eclecticism: Competing Alternatives in Constructivist Research’ (2015) 7 ­International Theory 501.

38  Theoretical Perspectives Katzenstein and Sil see the value of Eclectic scholarship as extending beyond academia, reaching into areas of law and policy.45 The ‘self-conscious trespassing across research traditions’, according to Katzenstein and Sil, helps us to make better use of existing innovative and creative scholarship, the natural corollary of which is the production of interpretations and points of view that are ‘analytically coherent, intellectually interesting and responsive to normative concerns’.46 Indeed, it is these very interpretations and points of view that help to solve concrete problems, like human trafficking, since they are devoid of ‘excessively abstract ontologies and rigid analytical principles’.47 Analytic Eclecticism, which places a ‘high premium on a fluid and open process of communication and deliberation among actors’,48 attempts to uncover the ‘truth’ so that policymakers can have the necessary tools to do their work efficiently. In this connection, it avoids a number of problematic features which are inherent in the wide spectrum of research traditions examined in the previous section. Among other things, Analytic Eclecticism avoids the excessive compartmentalisation that currently exists among the research traditions examined in the previous section, since such compartmentalisation shows a lack of concrete effort by scholars in these disparate fields to illuminate ‘connections and complementarities across clusters of empirical puzzles, normative concerns, and theoretical interpretations’.49 Additionally, enquiries that are limited to the singular sphere of each tradition are ‘inherently restricted’ because they are linked to existing partial and incomplete assumptions and methodologies.50 Furthermore, the lack of intellectual versatility resulting from the fact that each tradition is confined to its specific research paradigm invariably means that a genuine search for an acceptable solution to the problem of human trafficking has been stymied as only an incomplete and partial picture of the challenges and complexities associated with the phenomenon is ever painted. The fact that existing research traditions pride themselves on cultivating a recognisable professional identity that is linked to funding streams explains why the conventional stock of knowledge on human trafficking is limited. Analytic Eclecticism, by contrast, provides both social commentary and political action,51 given its inherently pragmatic ethos. Indeed, because this approach guards against excessive reliance on singular analyses, it is more likely than other approaches to supply innovative and long-term solutions to human trafficking. By not becoming ‘trapped in unending and unresolvable debates over epistemic commitments and analytical principles’,52 Analytic Eclecticism offers attractive 45 Katzenstein and Sil, ‘Eclectic Theorizing in the Study and Practice of International Relations’ (n 41) 111. 46 ibid. 47 ibid 113. 48 ibid 114. 49 ibid 125. 50 ibid 116–17. 51 Sil and Katzenstein, ‘Analytic Eclecticism in the Study of World Politics’ (n 2). 52 ibid.

Analytic Eclecticism  39 solutions which ‘dead-end’ monolithic theories do not.53 The ‘explanatory richness’ provided by this approach is largely due to the fact that it draws on, and treats, various theories with equanimity.54 Analytic Eclecticism acknowledges that law exerts authority over society and yet, in so doing, is restrained and influenced by social and political as well as economic factors.55 In the field of human trafficking, while anti-trafficking law is itself a distinct social phenomenon with its own character and features, it nevertheless interacts with society in real ways. In this interaction, anti-trafficking law is frequently modified, compromised, overridden or even ignored.56 This is because, while anti-trafficking law influences and affects attitudes and actions of state officials and those subject to their jurisdiction, its effectiveness is also influenced by the attitudes and actions of those who are charged with its implementation. Analytic Eclecticism, rather than focusing on the conceptual basis of law alone, goes even further by analysing how anti-trafficking law works in practice across multiple jurisdictions. Apart from allowing for a critique of law’s gaps and inconsistencies in view of state practice, Analytic Eclecticism also provides a robust framework for reform against the backdrop of what Denis Galligan describes as ‘practical experience’.57 Given that Analytic Eclecticism is concerned with issues of implementation, several assumptions underlie this perspective. The first is that, despite states’ commitment to implementing anti-trafficking law, the operation of this law may nevertheless encounter obstacles in practice, which may be practical in nature, such as a lack of resources, or conceptual in nature, such as uncertainty, inconsistency or vagueness. In view of these obstacles, states may often take a minimalist approach by engaging in ‘creative compliance’,58 particularly when there are competing interests at work. More importantly, Analytic Eclecticism provides a road map for answering the monograph’s central question, which is whether, and to what extent, there exists or has existed a ‘disconnect’ between anti-trafficking law and practice in the Commonwealth Caribbean. This road map involves, first, mapping international, regional and domestic laws on human trafficking as accurately and completely as possible by identifying, describing and analysing key features and concepts underlying said laws. Second, it involves assessing how states, through their competent authorities, respond to anti-trafficking law. In particular, Analytic Eclecticism explores the meanings ascribed to anti-trafficking law by the various emanations of the state as evidenced by their state practice, and the patterns that can be identified in so far as implementation is concerned. Third, Analytic Eclecticism 53 C Borch, ‘Functional Eclecticism: On Luhmann’s Style of Theorizing’ (2012) 259 Revue ­Internationale de Philosophie 123, 125. 54 ED Agustin, ‘Arguments for or Against an (Emerging) Eclectic Theory of Law’ (2016) 2 I­ nternational Comparative Jurisprudence 61, 65. 55 D Galligan, Law in Modern Society (Oxford University Press, 2007) 10. 56 ibid 6. 57 ibid 13. 58 D Galligan, A Reader on Administrative Law (Oxford University Press, 1996) 177.

40  Theoretical Perspectives examines conventions and understandings which shape the effectiveness of law in practice, which I describe in this monograph as ‘hegemonic assumptions’ or the harmful exercise of state power in the mistaken belief that such exercise of power serves a legitimate objective. These assumptions are tied to social, political and economic factors, and shape how anti-trafficking law is implemented in practice. Finally, Analytic Eclecticism seeks to explain the implications of deficits in implementation, and suggests, where appropriate, suitable possibilities for reform. Notwithstanding the pragmatic underpinnings of Analytic Eclecticism, however, it must be remembered that no theoretical approach, including Analytic Eclecticism, is impervious. Indeed, Analytical Eclectics have been subject to a barrage of criticisms over the years, with some scholars even describing it as ‘opportunistic’, ‘promiscuous’ and ‘cold hearted’,59 effectively not falling ‘in love with any of her instruments, but exploit[ing] them all indifferently, as occasion requires’.60 Other criticisms levelled against Analytic Eclecticism include the argument that because it moves between research traditions founded on competing ontological and epistemological assumptions, it runs the risk of introducing ‘conceptual fuzziness’ into its analyses.61 In other words, as argued by some critics, Eclectic scholars seemingly muddy the theoretical waters by engaging with multiple analytical languages, methodologies and perspectives, which Christopher Borch contends results in a lack of ‘logical consistency’.62 While there is some merit in the argument that Analytic Eclecticism draws on fundamentally opposing metaphysical assumptions and theoretical concepts and principles, thereby giving rise to the perception that it results in logical or epistemological incompatibility, Eclectic scholars vehemently oppose this contention, arguing that ontological and epistemological principles are not static and may not, in fact, be as far apart as often assumed.63 Indeed, as far as Eclectic scholars are concerned, these assumptions or principles are malleable; they can be adjusted from time to time to avoid weaknesses inherent in the disparate research traditions from which Eclecticism draws, thereby rendering the approach fit for purpose. Once there is clarity in respect of relevant concepts and definitions, Eclectic scholars are unapologetic in their borrowing from multiple research traditions and, in so doing, liberally and deliberately moving across the proverbial epistemological divides. In any event, it is not every assumption or principle that an Eclectic scholar would borrow from existing research traditions; rather, Eclectics are ‘very eclectic in their eclecticism’.64 59 A Vermeule, ‘Eclectic Decision Theory’ (Constitutional Law JOTWELL, 27 October 2009). 60 ibid. 61 Katzenstein and Sil, ‘Eclectic Theorizing in the Study and Practice of International Relations’ (n 41) 118. 62 Borch (n 53) 127. 63 Katzenstein and Sil, ‘Eclectic Theorizing in the Study and Practice of International Relations’ (n 41) 118. 64 Borch (n 53) 130.

Analytic Eclecticism  41 In short, Eclectics are extremely selective in how they make use of theories or principles, and invariably only choose those concepts or assumptions that have a heuristic value. Another argument advanced against the Eclectic approach is that it ignores the intellectual products generated within separate traditions by selectively borrowing from different traditions without respecting the specific assumptions that undergird these traditions and the loyalty that should naturally characterise adherence to these traditions. In response, Eclectic scholars argue that Eclecticism, despite the seeming lack of loyalty, borrows from existing research traditions so as to achieve socially laudable purposes, namely the development of complex explanations that solve real world problems. In fact, Eclectic scholars not only borrow from existing traditions, but seek to actively expand the repertoire of assumptions, analytical tools, theoretical concepts, methodological devices and empirical data of existing singular research traditions.65 Yet, still, it has been argued by those opposed to Analytic Eclecticism that Eclecticism fails in its attempt to build a unified theory because Eclectics do not have the discipline to dismantle existing research traditions and then construct a new unified system of concepts, assumptions and principles.66 This argument is, however, a gross mischaracterisation of the goal of Analytic Eclecticism. Indeed, Eclecticism does not attempt to formulate a unified theory, but is itself based on the continued existence of, and continuous engagement between, research traditions built on competing meta-theoretical foundations. Eclecticism, therefore, does not neglect existing scholarship or research traditions, but self-consciously engages them in the pursuit of empirical or conceptual connections that recognise the complexity of the phenomenon with which we are confronted, in this case human trafficking. Interestingly, it has also been argued that Eclecticism represents research where ‘anything goes’ or is at least indicative of caution through ‘hedging one’s bet’.67 This, again, is a mischaracterisation of Analytic Eclecticism. Rather than being ‘promiscuous’, as some would argue, Eclecticism is focused; it selectively seeks out the best available answers to a given problem by drawing on existing scholarship without reinventing the wheel. Indeed, as Agnes Tellings has argued, Eclecticism represents ‘critical and open-minded selection of the best existing theories’ to apply to the resolution of a problem and is therefore not an ‘inconsistent and amorphous ragbagging of ideas’.68

65 Katzenstein and Sil, ‘Eclectic Theorizing in the Study and Practice of International Relations’ (n 41) 118. 66 ibid. 67 ibid. 68 A Tellings, ‘Eclecticism and Integration in Educational Theories: A Metatheoretical Analysis’ (2001) 51 Educational Theory 277.

42  Theoretical Perspectives

VI. Methodology This monograph employs the doctrinal, socio-legal and comparative methodological approaches to problematising the phenomenon of human trafficking. These approaches, both individually and collectively, served to inform the important processes of research design, data collection and analysis. While the doctrinal approach was employed to ascertain and evaluate the law on human trafficking, the socio-legal approach was employed to assess the concomitant practice of states pursuant to these laws, so as to determine whether there is, or has been, a ‘disconnect’ between anti-trafficking law and practice. By contrast, the comparative approach was employed to compare and contrast different approaches to addressing human trafficking across multiple jurisdictions.

A.  The Doctrinal Approach Through the doctrinal approach, this monograph seeks to ascertain the precise state of the existing law69 on human trafficking across multiple jurisdictions by engaging in a thorough and rigorous analysis of applicable legal norms to be found therein.70 This process involves the critical examination of a variety of primary source materials, including treaties, legislation and case law, in order to determine what the applicable law is in respect of human trafficking, as well as to explore and, where possible, clarify the conceptual and normative concerns relating to the law’s coherence, relevance and applicability.71 Analyses of the primary source materials relied upon in this context were buttressed by engagement with myriad secondary source materials, including official reports, particularly those emanating from the Group of Experts on Action against Trafficking in Human Beings (GRETA)72 and the EU Commission, policy papers, books, journal articles, encyclopaedias, conference papers, blogs and leading newspaper articles. Secondary materials were methodically employed so as to better understand, interpret and analyse applicable anti-trafficking norms73 as encapsulated 69 I Dobinson and F Johns, ‘Qualitative Legal Research’ in M McConville and WH Chui (eds), Research Methods for Law (Edinburgh University Press, 2007) 19 (arguing that the doctrinal research methodology is concerned with ‘ascertaining the precise state of the law on a particular point’). 70 T Hutchinson and N Duncan, ‘Defining and Describing What We Do: Doctrinal Legal Research’ (2012) 17 Deakin Law Review 1. 71 M McConville and WH Chui (eds), Research Methods for Law (Edinburgh University Press, 2007). 72 GRETA is the authoritative monitoring mechanism for the Council of Europe Convention on Action against Trafficking in Human Beings. Its reports, which are closely produced in consultation with Council of Europe (CoE) Member States, are both comprehensive and authoritative in nature. As such, they will be the primary sources relied upon in this volume when examining the state practice of European countries with respect to human trafficking. For commentary of the impact of GRETA, see J Planitzer, ‘GRETA’s First Years of Work: Review of the monitoring of implementation of the Council of Europe Convention on Action against Trafficking in Human Beings’ (2012) 1 Anti-Trafficking Review 31. 73 E Campbell and D Harding, ‘Australian Law Schools: A Discipline Assessment’ (Commonwealth Tertiary Education Commission, 1987).

Methodology  43 in primary source materials, thereby facilitating the achievement of a clear and complete picture as to the state of the existing law on human trafficking, while also contributing to the formulation of appropriate conclusions74 and recommendations for reform wherever ambiguities or inconsistencies are found to exist.

B.  The Socio-Legal Approach The Socio-Legal Approach was employed so as to augment the monograph’s doctrinal approach.75 This approach involved the use of empirical research methods, including semi-structured interviews.76 These interviews were conducted with over 40 stakeholders in the anti-trafficking field across the Commonwealth Caribbean, including with members of the judiciary, prosecutors, counsel (both state and defence), policymakers, academics, social workers and representatives of non-governmental organisations. Although the majority of the interviews were concentrated in Guyana, Jamaica, St Vincent and the Grenadines, and Trinidad and Tobago owing to logistical and human/financial resource limitations, the findings and insights emanating from the study are truly regional, and reflective of what obtains in jurisdictions beyond the shores of these four independent Caribbean nations. Although stakeholders who were interviewed demonstrated tremendous knowledge about the subject matter, they generally expressed a high degree of reticence to being identified by name or affiliation in this monograph. As such, to respect their request for confidentiality, I have omitted any information which may identify these stakeholders. Beyond ethical concerns about respect for confidentiality, however, it would appear that a number of factors influenced stakeholders’ wish not to be specifically identified in a publication of this nature. The first concern is an elementary one: stakeholders who work in small jurisdictions like those in the Commonwealth Caribbean simply do not wish to be publicly identified for their role in combating human trafficking, as this may inadvertently expose them to an increased risk of being targeted for retaliation by trafficking enterprises. A more subtle concern, however, appears to be the possibility that if sensitive and potentially negative sentiments are expressed in relation to states’ progress, or the lack thereof, in combating human trafficking, unwanted negative externalities may result, whether on an individual or wider societal level. At the individual level, 74 C Enright, Legal Reasoning (Maitland Press, 2011) ch 6 (by legal norms, reference is being made to relevant rules, concepts and doctrines). 75 McConville and Chiu (n 71) 5 (arguing that the doctrinal research methodology is ‘intellectually inflexible, inward-looking’ and too narrow in scope and application). 76 While these methods were specifically chosen because they best support the objectives of this volume, it must be noted that generally, in socio-legal research, there are no particular methods as such, and researchers gather ‘data wherever appropriate to the problem’ and use any variety of methods which will generate that data’. See, A Bradshaw, ‘Sense and Sensibility: Debates and Developments in Socio-Legal Research Methods’ in P Thomas (ed), Socio-Legal Studies (Dartmouth, 1997) 99.

44  Theoretical Perspectives stakeholders who appear to have provided too much information or information which places their country of origin in a negative light may potentially be subject to adverse sanctions, which could range from a reprimand to more serious consequences, including suspension or dismissal. At the wider societal level, there appears to be a fear that if sensitive or highly critical information provided by stakeholders is publicly reported, United States authorities who administer the annual Trafficking in Persons (TIP) report may use this information against the states in question, thereby resulting in unfavourable rankings and possibly the imposition of financial sanctions. Notwithstanding these concerns, however, a number of stakeholders were fully prepared to provide genuine and useful insights into the operationalisation of anti-trafficking law in their respective jurisdictions, such insights having been validated through the process of triangulation. On a practical level, the Socio-Legal approach proved to be of tremendous import, as it served to buttress the assessment of ‘(anti-trafficking) law in action’,77 thus providing nuanced answers to the question of the extent to which state practice in the jurisdictions examined comports with international, regional and domestic anti-trafficking norms.78 This is a notable contribution to the existing body of scholarship79 which, to date, has been primarily concerned with purely doctrinal questions, rather than with the practice of states pursuant to their enactment of anti-trafficking norms.80 In short, because the Socio-Legal approach is less concerned with the law ‘on the books’,81 and more concerned with the ‘social-auditing of law’, it has helped to successfully unearth the ‘gaps’ which currently exist or which have existed between ‘legal idealism’ and ‘social reality’82 in so far as efforts to combat human trafficking are concerned.

C.  The Comparative Approach The third methodological approach employed in the development of this monograph is that of the Comparative Approach. In conventional terms, the Comparative 77 R Cotterrell, ‘Why Must Legal Ideas be Interpreted Sociologically?’ (1998) 25 Journal of Law and Society 171. 78 H Genn, M Partington and S Wheeler, Law in the Real World: Improving Our Understanding of How Law Works, Final Report and Recommendations (London, The Nuffield Foundation, 2006) (arguing that because socio-legal research uses empirical data, it provides vital insights into the law in context, ie, how the law works in the real world). 79 G Tyldum, ‘Limitations in Research on Human Trafficking’ (2010) 48(5) International Migration 13 (pleading for more empirically based studies as these will immensely assist in policy development and evaluation). 80 See E Goździak, Data and Research on Human Trafficking: Bibliography of Research-Based ­Literature (Diane Publishing, 2011). 81 P Hillyard and J Sim, ‘The Political Economy of Socio-Legal Research’, in P Thomas (ed), Socio-Legal Studies (Dartmouth, 1997) 45 (noting that socio-legal research ‘takes all forms of law and legal institutions, broadly defined, and attempts to further our understanding of how they are constructed, organised and operate in their social, cultural, political and economic contexts’). 82 E Jones, ‘Some Current Trends in Legal Research’ (1962) 15 Journal of Legal Education 121.

Methodology  45 Approach is concerned with examining how a particular problem is solved in two or more legal systems and exploring the similarities and differences in the respective methods employed to treat the problem.83 Whereas ‘integrative’ comparative scholars have traditionally stressed the similarities between legal systems, ‘contrastive’ scholars stress the differences between legal systems.84 In the specific context of this monograph, both the ‘integrative’ and ‘contrastive’ approaches have been employed, against the backdrop of the horizontal dimensions of comparative law.85 In this connection, the monograph attempts to draw useful comparisons between the approaches to the operationalisation of anti-trafficking law in several Commonwealth Caribbean countries, and how this compares with the approach in England and Wales. This comparative process, while recognising the important role played by different contextual factors86 in shaping the law and practice on human trafficking across the various jurisdictions examined, nevertheless takes account of the fact that human trafficking is often times a cross-border criminal activity, with cross-border implications, which may sometimes require legal transplantation if it is to be better regulated.87 Against this backdrop, and notwithstanding the various contextual differences between the jurisdictions examined,88 the comparative approach was nevertheless employed, as it provides useful insights89 into the

83 D Gerber, ‘Sculpting the Agenda of Comparative Law: Ernst Rabel and the Façade of Language’ in A Riles (ed), Rethinking the Masters of Comparative Law (Hart Publishing, 2001) 199. 84 A Platsas, ‘The Functional and the Dysfunctional in the Comparative Method of Law: Some ­Critical Remarks’ (2008) 12(3) Electronic Journal of Comparative Law 1. 85 A Momirov, and AN Fourie, ‘Vertical Comparative Law Methods: Tools for Conceptualising the International Rule of Law’ (2009) 2 Erasmus Law Review 291 (noting that legal comparison is primarily ‘horizontal’ when it occurs among legal systems belonging to the same ‘level’ or ‘echelon’), or ‘vertical’ (when it occurs among legal systems not belonging to the same ‘level’, ie, ‘cross-echelon’). 86 See P Legrand ‘The Impossibility of Legal Transplants’ (1999) 4 Maastricht Journal of European and Comparative Law 111, 114 (explaining the importance of taking contextual factors into account when engaging in a comparative legal exercise). 87 See generally D Nelken, ‘Human Trafficking and Legal Culture’ (2010) 43 Israel Law Review 479. 88 See E Eberle, ‘The Methodology of Comparative Law’ (2011) 16 Roger Williams University Law Review 51 (referring to ‘sub-structural forces’). Note that the contextual differences between the jurisdictions under investigation are myriad. Some examples include: (i) population size and landmass (Caribbean countries typically have smaller population sizes and smaller land masses in contrast to European countries); (ii) location and geography; (iii) language; (iv) homogeneity of populations; (v) education levels (Caribbean countries typically have lower access to educational opportunities compared with their European counterparts); (vi) ideology (Caribbean countries are typically conservative societies, whereas their European counterparts are largely more liberal in their approach); (vii) level of development (Caribbean countries are typically middle-income countries, compared with most European countries, which are largely industrialised nations); (viii) key industries (Caribbean countries typically rely on the tourism industry, whereas European countries generally rely on manufacturing, business and trade in goods and services); (ix) historical antecedents (Caribbean countries are marked by a colonial past, that was characterised by slavery, rebellion and indentureship, whereas many European countries have traditionally been liberal democracies, with few having communist roots, ie, East European countries); (x) social constructs (Caribbean countries are typically patriarchal societies, whereas many European countries are typically more egalitarian). This is not an exhaustive list of factors. 89 K Zweigert and H Kötz, An Introduction to Comparative Law, 3rd edn (Oxford University Press, 1998) 2, 34, 36.

46  Theoretical Perspectives nuances associated with how the phenomenon of human trafficking is regulated across different jurisdictions, thereby potentially informing renewed efforts for reform, based largely on the lessons learnt from these jurisdictions.

Conclusion This chapter sought to provide an overview of the increasing number of ­theoretical perspectives which have been employed in recent years to p ­roblematise the phenomenon of human trafficking. A critical analysis of these theoretical approaches, from an Analytical Eclectic perspective, revealed a number of shortcomings inherent in the application of these approaches to the study of human trafficking. Among other things, this chapter highlighted the fact that traditional research traditions such as feminism, criminology and economic theories only paint a partial and incomplete picture of the evolving dynamics of human trafficking, and that, accordingly, there is a need to traverse the epistemological divides for more effective solutions. Notwithstanding the challenges of employing an eclectic approach to the study of anti-trafficking law and practice, this chapter has argued that the pragmatic assumptions, principles and methods offered by this approach provide a truly pluralistic and nuanced answer to the central questions raised by this monograph.

3 International Dimensions of Anti-Trafficking Law and Practice Introduction Trafficking in persons is not only a matter of domestic concern, but invariably also one of profound international concern. In keeping with the increasing sophistication of transnational criminal groups, victims of trafficking are increasingly being recruited from abroad and transported across borders, where they are subsequently exploited, primarily in the sex and labour industries. The real incentive behind engaging in cross-border trafficking lies in the fact that despite increasing securitisation at national borders, particularly in the United States and United Kingdom, traffickers continue to find loopholes to maximise profits, including through nefarious connections with corrupt State officials, while the risk of being apprehended and punished remains, to a large degree, remote. In response to these challenges, over the last two decades, two broad international frameworks have emerged as regulatory approaches for the ­ purposes of conceptualising anti-trafficking efforts at the international level. These approaches, which are typically framed in contemporary anti-trafficking discourse as the ­‘criminal justice’ and the ‘human rights’ models,1 are comprised of binding ­normative commitments derived from international human rights law, international criminal law and transnational criminal law.2 In the context of the existing literature, the criminal justice and human rights approaches have been made out as being in constant ‘tension’ with each other.3 This tension arguably stems from the fact that whereas the former approach is primarily concerned with investigating and prosecuting trafficking-related offences, with victim protection only being a secondary consideration, the latter is invariably concerned with protecting the rights of trafficked victims through the provision of appropriate support and assistance,4 with investigations and prosecutions being 1 C Wuiling, ‘Assessing Criminal Justice and Human Rights Models in the Fight against Sex T ­ rafficking: A Case Study of the ASEAN Region’ (2006) 3(1) Essex Human Rights Review 46, 48. 2 T Obokata, Trafficking of Human Beings from a Human Rights Perspective: Towards a More Holistic Approach (Martinus Nijhoff Publishers, 2006) 167. 3 S Kneebone and J Debeljak, Transnational Crime and Human Rights: Responses to Human ­Trafficking in the Greater Mekong Sub-region (Routledge, 2012) 226. 4 A Brysk and A Choi-Fitzpatrick, ‘Rethinking Trafficking’ in A Brysk and A Choi-Fitzpatrick (eds), From Human Trafficking to Human Rights: Reframing Contemporary Slavery (University of ­Pennsylvania Press, 2012) 6.

48  International Dimensions only a secondary consideration. Scholars who demonstrate support for the human rights approach argue that trafficked victims are, by their very nature, vulnerable individuals, whose rights and interests could be easily circumvented by a disproportionate focus on criminal justice considerations.5 Notwithstanding the existence of this apparent ‘tension’, however, very little is presently known about the underlying ‘hegemonic assumptions’6 or ‘discourses’7 which undergird the criminal justice and human rights approaches to human trafficking. ‘Hegemonic assumptions’, a term of art coined by Stephen Brookfield, is used in the context of this book to describe ‘the stock of opinions, conventional wisdoms, or common-sense beliefs’8 about the efficacy of the criminal justice and human rights approaches, which we uncritically accept as truth, without realising that these same beliefs are counterproductive in practice as they are grounded in harmful exercises of state power. Given the significance and potential implications of these assumptions, this chapter will not only explore the normative obligations that arise under international law with respect to trafficking in persons, but also critically explore the challenges, complexities, hegemonic assumptions and opportunities that underlie international law’s approach to human trafficking in practice from an Analytical Eclectic perspective.

I.  The Criminal Justice Approach A. General The UN Convention Against Transnational Organized Crime,9 its annexed ­Trafficking Protocol,10 as well as the Rome Statute of the International ­Criminal 5 P Mahdavi, From Trafficking to Terror: Constructing a Global Social Problem (Routledge, 2013) 53. 6 ‘Hegemonic assumptions’ can be described as discourses that we uncritically accept, and which may appear to be ideal responses to human trafficking, but which may nevertheless prove to be counterproductive in practice. The concept was coined by Stephen Brookfield. See S Brookfield, ‘Using the Lenses of Critically Reflective Teaching in the Community College Classroom – New Directions for Community Colleges’ (2002) 18 Wiley Periodicals 118, 32 (‘An assumption becomes hegemonic when it begins to exercise a dangerous control over our practice and we still accept it uncritically’.) See also, S Brookfield, ‘The Concept of Critically Reflective Practice’ in A Wilson and E Hayes (eds), Handbook of Adult and Continuing Education (John Wiley & Sons, 2000) 40–41 (‘Hegemonic assumptions [are] assumptions about practice that we believe represent common wisdom and that we accept as being in our own best interests, without realizing that these same assumptions actually work against us in the long term by serving the interests of those oppose to us’.) 7 M Capous-Desyllas, ‘A Critique of the Global Trafficking Discourse and US Policy’ (2007) 34 Journal of Sociology & Social Welfare 57, 58 (explaining that ‘discourses describe the set of accepted and relevant concepts related to trafficking which have become socially legitimized as knowledge and truth within society’.) 8 See S Brookfield, ‘Assessing Critical Thinking’ (1997) 75 New Directions for Adult and Continuing Education 17, 18, 20. 9 UN Convention Against Transnational Organized Crime (adopted 15 November 2000, entered into force 29 September 2003) 40 ILM 335. 10 Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and ­Children, Supplementing the United Nations Convention against Transnational Organized Crime (adopted 15 November 2000, entered into force 25 December 2003) (UN Trafficking Protocol).

The Criminal Justice Approach  49 Court (ICC),11 provide the normative underpinnings of what has in recent years been described as the ‘criminal justice approach’ to human trafficking.12 The central premise underlying the criminal justice approach is that the ­criminal law, and its attendant enforcement institutions, must be employed to ‘subject [perpetrators] to punishment’.13 This, according to criminal justice scholars, is essential to curtailing the illicit activities of traffickers,14 while emancipating trafficked victims from exploitative conditions.15 Against this backdrop, the criminal justice approach demands that sustained efforts be undertaken by states to fortify national security,16 under the ‘toughness rhetoric’17 of intelligence, surveillance, increased border controls and harsh punishments.18 These measures, which have increasingly been countenanced by a number of states, as well as international, regional and domestic organisations in the anti-trafficking field, have as their ultimate goal winning the proverbial ‘war on human trafficking’.19 The first ingredient of the criminal justice approach is the enactment of anti-­ trafficking laws that are designed to criminalise the full spectrum of ­trafficking-related activities identified by international law.20 More specifically, these laws must stipulate, in no uncertain terms, the prohibited conduct,21 thereby sending ‘a clear message to traffickers that their actions will not be tolerated’.22 Apart from serving as the statutory basis for the prosecution of trafficking-related offences,23 the enactment of anti-trafficking laws also facilitates the identification of trafficked victims,24 as law enforcement personnel, armed with the specific indicators of what constitutes the crime, can better exercise their jurisdiction to

11 Rome Statute of the International Criminal Court (adopted 17 July 1998, entered into force 1 July 2002) 2187 UNTS 90. 12 M Segrave, ‘Surely Something is Better than Nothing? The Australian Response to the Trafficking of Women into Sexual Servitude in Australia’ (2004) 16 Current Issues in Criminal Justice 85, 89. 13 See D Husak, ‘The Criminal Law as a Last Resort’ (2004) 24 Oxford Journal of Legal Studies 207, 232. 14 M Leishman, ‘Human Trafficking and Sexual Slavery: Australia’s Response’ (2007) 27 Australian Feminist Law Journal 193, 198; E Kotnick, M Czymoniewicz-Klippel and E Hoban, ‘Human Trafficking in Australia: The Challenge of Responding to Suspicious Activities’ (2007) 42 Australian Journal of Social Issues 369, 372. 15 This idea of freeing victims from trafficking situations is based on the harm-reduction model. See C MacKinnon, ‘Pornography as Trafficking’ (2005) 26 Michigan Journal of International Law 993, 1009. 16 C Aradau, Rethinking Trafficking in Women: Politics out of Security (Palgrave Macmillan, 2008) 3. 17 P Boukli, ‘Imaginary Penalties: Reconsidering Anti-trafficking Discourses and Technologies’ (PhD Thesis, London School of Economics and Political Science, 2012) 3. 18 C Aradau, ‘The Perverse Politics of Four-Letter Words: Risk and Pity in the Securitisation of Human Trafficking’ (2004) 33(2) Journal of International Studies 251, 252. 19 A DeStefano, The War on Human Trafficking: US Policy Assessed (Rutgers University Press, 2007) 130. 20 Art 5(1) UN Trafficking Protocol; Art 5(1) UN Organized Crime Convention. 21 See generally, S Mariconda, ‘Breaking the Chains: Combating Human Trafficking at the State Level’ (2009) 29 Boston College Third World Law Journal 15. 22 Human Rights Law Network, Trafficking and the Law, 2nd edn (Socio-Legal Information Centre, 2011) 507. 23 See generally, S Richard, ‘State Legislation and Human Trafficking: Helpful or Harmful?’ (2004) 38 University of Michigan Journal of Law Reform 447. 24 A Farrell, J McDevitt and S Fahy, ‘Understanding and Improving Law Enforcement Responses to Human Trafficking: Final Report’ (US Department of Justice, 2008) 18–19.

50  International Dimensions remove victims from exploitative conditions.25 The enactment and, indeed, rigorous enforcement26 of anti-trafficking laws, is also a precondition to securing successful convictions.27 Apart from enacting anti-trafficking criminal laws, the criminal justice approach demands that states operationalise a robust, proactive and intelligenceled investigative machinery,28 that includes targeted raids on suspected premises where trafficking might be occurring; identifying routes used by traffickers; surveillance; as well as planned border operations.29 These techniques are intended to assist in uncovering the full gamut of available evidence that might be used to prosecute traffickers,30 and may, in some instances, even shed light on the number of state officials that might be complicit in the commission of trafficking-related offences.31 To ensure that the investigative techniques identified above are adequately operationalised, the criminal justice approach also envisages that states will ­cooperate with each other at the regional and, where appropriate, international level. Cooperation, in this context, is envisaged to take many forms, but should include, at a minimum, extradition;32 mutual legal assistance;33 the transfer of criminal proceedings;34 the transfer of sentenced persons;35 the confiscation of criminal assets;36 the exchange of information;37 as well as shared inquiries and joint investigations.38 These methods, according to criminal justice practitioners, serve to ensure that, as far as possible, all safe havens for traffickers are eradicated,

25 F Casale, ‘International Trafficking in Persons: Suggested Responses to a Scourge of Humankind’ (2008) 3 Intercultural Human Rights Law Review 343, 263. 26 S Tiefenbrun, ‘Sex Slavery in the United States and the Law Enacted to Stop it Here and Abroad’ (2005) 11 William & Mary Journal of Women and the Law 317, 323. 27 M Rickert, ‘Though the Looking Glass: Finding and Freeing Modern-Day Slaves at the State Level’ (2009) 4 Liberty University Law Review 1, 31. 28 Art 4 UN Trafficking Protocol; Arts 19 and 20 UN Organized Crime Convention; A Gallagher and P Holmes, ‘Developing an Effective Criminal Justice Response to Human Trafficking: Lessons from the Front Line’ (2008) 18 International Criminal Justice Review 318, 324. 29 See generally, UNODC, ‘Anti-human Trafficking Manual for Criminal Justice Practitioners, Module 2: Indicators of Trafficking in Persons’ (United Nations Office for Drugs and Crime, 2009). 30 See generally, UNODC, ‘Anti-human Trafficking Manual for Criminal Justice Practitioners, Module 7: Crime scene and Physical Evidence Examinations in Trafficking in Persons Investigations’ (United Nations Office for Drugs and Crime, 2009). 31 Gallagher and Holmes (n 28) 324 (arguing that front-line officials, through the use of intelligence gathering and management, human and technical surveillance, undercover operations, controlled deliveries, and parallel financial and money-laundering investigations, often discover public sector complicity in human trafficking). 32 Art 16 UN Organized Crime Convention. 33 ibid Art 18. 34 ibid Art 21. 35 ibid Art 17. 36 ibid Arts 12–14. 37 ibid Art 28. 38 ibid Arts 19 and 20; see also, UNODC, ‘Anti-human Trafficking Manual for Criminal Justice Practitioners, Module 6: International Cooperation in Trafficking in Persons Cases’ (United Nations Office for Drugs and Crime, 2009).

The Criminal Justice Approach  51 and that the underlying impetus for committing the crime in the first place – profits – is minimised, if not eliminated.39 Moreover, in those circumstances where available evidence reveals that a trafficking-related offence has been committed, the criminal justice approach demands that traffickers be penalised to the full extent of the law.40 Indeed, the criminal justice approach demands that ‘effective, proportionate and dissuasive’41 penalties be imposed on traffickers, thereby sending a firm message that there is, unequivocally, no tolerance for the types of exploitation which characterise their operations.42 Apart from securing deterrence at the individual level, these penalties are also intended to deter potential traffickers at the wider societal level, thereby making a ‘significant dent into the multi-billion dollar business of human trafficking’.43 In short, therefore, the criminal justice approach to human trafficking, with its strong emphasis on criminalisation, investigations and prosecutions, has the advantage of providing a robust framework for penalising traffickers in a sufficiently dissuasive manner, as well as ensuring that victims are effectively protected from the recalcitrant practices of traffickers and their associates. The international criminal justice framework on human trafficking owes its origin and substantive content to the following international instruments.

i.  United Nations Convention Against Transnational Organized Crime With the signing of the United Nations Convention against Transnational Organized Crime in Palermo, Italy, in December 2000, the international community sought to demonstrate its political will to answer a global challenge – human trafficking – with a truly global response. The Convention acknowledges that trafficking, particularly of women and children, is one of the most egregious violations of human rights that the United Nations now confronts, and accordingly obliges states to adopt punitive measures to eradicate the phenomenon. The Convention, which was described by the former UN Secretary-General, Kofi Annan, as ‘a watershed event in the reinforcement of our fight against organized crime’,44 places an obligation on states to criminalise not only trafficking in persons,45 in keeping

39 See Gallagher and Holmes (n 28) 336. 40 ibid. 41 UNODC, ‘Anti-human Trafficking Manual for Criminal Justice Practitioners, Module 14: Considerations in Sentencing in Trafficking in Persons Cases’ (United Nations Office for Drugs and Crime, 2009). 42 M Cameron and A Schloenhardt, ‘Punishing Trafficking in Persons: International Standards and Australian Experiences’ (2012) 24(1) Bond Law Review 1, 9. 43 See Rickert (n 27) 28. 44 NS Ameresekere, UN Convention Against Corruption to Combat Fraud & Corruption: A Cancerous Menace with Mere Rhetoric Subverts UN Convention (AuthorHouse, 2011) 112. 45 Art 5 UN Organized Crime Convention.

52  International Dimensions with the Convention’s Palermo Protocol, but also a number of related offences, which drive human trafficking or which are the consequences of human trafficking. More specifically, the Convention criminalises acts of corruption, including complicity on the part of public officials, such as police and immigration officers, soliciting or accepting undue advantages or benefits from traffickers to act in a particular way or to refrain from properly executing their lawful duties,46 as well as money laundering, which involves attempts to convert or transfer property or money with the aim of concealing or disguising the fact that said property or money represents the proceeds of the crime of human trafficking.47 The Convention also incentivises States Parties to impose sufficiently stringent sanctions that reflect the gravity of the offence of human trafficking,48 including imprisonment, freezing of assets and, where appropriate, confiscation and seizure of property and the proceeds of crime and instrumentalities used in the commission of the offence of trafficking in persons. In recognition of the fact that human trafficking is, in many instances, a crossborder criminal activity in relation to which joined-up law enforcement and prosecutorial responses are required, the Convention implores states to collaborate with each other not only in the context of formal requests for extradition49 and mutual legal assistance,50 but also in the context of joint cross-border ­investigations,51 including the use of special investigative techniques.52 From an Analytical Eclectic perspective, the primary weakness inherent in the application of the Convention lies in the fact that because its focuses so heavily on the criminal justice dimensions of human trafficking, it only makes passing reference to general protection and assistance measures for victims of trafficking and witnesses, such as measures to prevent against potential retaliation or intimidation in the context of criminal proceedings.53 Although there is reference to the need for States Parties to provide ‘assistance and protection to victims’, the general tenor of such assistance is seemingly linked to their participation in criminal proceedings, which may potentially have negative implications for victims who do not wish, or are not able, to participate in criminal proceedings. This, among other challenges, is replicated in respect of the Convention’s Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children.

46 ibid Art 8. 47 ibid Art 6. 48 ibid Art 11. 49 ibid Art 16. 50 ibid Art 18. 51 ibid Art 19. 52 ibid Art 20. 53 ibid Art 24. Examples of such measures include non-disclosure of information concerning the identity and whereabouts of victims and witnesses and the use of various forms of communications technology, such as video links.

The Criminal Justice Approach  53

ii.  The UN Trafficking Protocol The UN Trafficking Protocol, widely regarded as the most encompassing54 ­instrument to address the crime of trafficking in persons from an international and transnational perspective,55 creates the first internationally agreed upon ­definition of trafficking in persons,56 provides a framework for the prevention57 and ­prosecution58 of the crime as well as the protection of trafficked victims.59 The Protocol, which offers States Parties practical guidance on what their anti-­ trafficking framework should look like in practice,60 is, at the time of writing, ratified by some 173 countries, and compliance therewith is monitored by the Conference of the Parties to the UN Convention against Transnational Organized Crime.61 a.  A Common Definition One of the greatest contributions of the UN Trafficking Protocol to the global fight against trafficking in persons is the provision of a common and, for the most part, internationally agreed definition of the term ‘trafficking in persons’. This is an overly important contribution since an intricate understanding of the offence aids in the effective criminalisation of the prohibited conduct, the prompt identification of trafficked victims, and forms the basis of inter-state cooperation, particularly in the area of law enforcement, which often necessitates requests 54 J Salt, ‘Trafficking and Human Smuggling: A European Perspective’ (2000) 38(3) International Migration 31, 33 (arguing that although the United Nations’ definition of trafficking uses terms that are largely gender neutral and apply to persons of all ages, the debate has centred on women and children). See also, M Wijers and L-C Lin, ‘Trafficking in Women Forced Labour and Slavery-like Practices in Marriage, Domestic Labour and Prostitution’ (Women Ink, 1997) (arguing that ‘trafficking in persons’ is a misnomer because it obscures the gendered nature of trafficking). 55 J Raymond, ‘The New UN Trafficking Protocol’ (2002) 25 Women’s Studies International Forum 491, 491. 56 K Hyland, ‘The Impact of the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children’ (2001) 8(2) Human Rights Brief 31. 57 Arts 9–13 UN Trafficking Protocol address mandatory prevention measures, in particular, mass media information campaigns, close cooperation with NGOs, and the creation of social and economic incentives. Art 9(4) calls upon states ‘to alleviate the factors that make persons, especially women and children, vulnerable to trafficking, such as poverty, underdevelopment and lack of equal opportunity’. 58 Art 5 obligates State Parties to criminalise trafficking, attempted trafficking, and to adopt measures, such as checking travel documents, boarding vehicles for inspection, as well as increasing the quality of travel documents to reduce fraud. 59 ibid Art 6. This specifies that for their ‘physical and psychological recovery’, victims require medical care, housing, mental health counselling, job training, legal assistance, and physical safety. Art 7 requires State Parties to ‘consider’ providing temporary or permanent residence for victims. 60 K Abramson, ‘Beyond Consent, Toward Safeguarding Human Rights: Implementing the United Nations Trafficking Protocol’ (2003) 44 Harvard International Law Journal 473. 61 Art 32 of the UN Convention against Transnational Organized Crime places an obligation upon States Parties to provide the Conference of the Parties to the Convention with information on their programmes, plans and practices, as well as legislative and administrative measures, related to implementation of the Convention.

54  International Dimensions for extraditions and mutual legal assistance.62 Even further, the Protocol’s opentextured definition closes the well-acknowledged definitional loopholes which plagued a number of international instruments hitherto.63 Additionally, despite explicit reference to ‘women and children’ in the Protocol’s title, its Article 3 definition of ‘trafficking in persons’ is undoubtedly both gender and age neutral. This is an important stipulation, since, unlike the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), for example, which defines trafficking as a form of ‘violence against women’, the Protocol does not privilege a specific group of victims by deeming them to be more ‘worthy’ of protection than others by virtue of their sex. b.  Strong Emphasis on Prevention and Prosecution The Protocol adopts a three-pronged approach to combating human trafficking, namely prosecution, prevention and protection, albeit that considerably more emphasis is placed on the former two prongs, compared with the latter. Among other things, the Protocol has succeeded in encouraging states to enact sui generis anti-trafficking laws, whereas previously, only a handful of states even prohibited trafficking in persons as a distinct or specific criminal offence.64 Apart from expressly penalising the commission of human trafficking, however, the Protocol goes further by obliging states to adopt a range of preventative ­measures to reinforce law enforcement efforts, thereby constricting the supply side of trafficking.65 In particular, the Protocol recognises the specific vulnerability caused by structural socio-economic and political challenges, such as chronic poverty and unemployment, and requires that states take appropriate measures to prevent the victimisation and revictimisation of trafficked victims.66 To a lesser extent, the Protocol has also made some contribution to victim protection, expressly recognising, for example, the principle of non-criminalisation,67 whereby trafficked victims ought to be immune from prosecution in circumstances where they engage in criminal activities, such as immigration or prostitution-related offences, as a result of having been trafficked.

62 OSCE, ‘Human Trafficking: Fastest Growing Form of Organized Crime’ (Organization for Security and Co-operation in Europe, 1 November 2001); L Potts, ‘Global Trafficking in Human Beings: Assessing the Success of the United Nations Protocol to Prevent Trafficking in Persons’ (2003) 35 George Washington International Law Review 227, 227. 63 J Seabrook, No Hiding Place: Child Sex Tourism and the Role of Extraterritorial Legislation (Zed Books, 2000) 5. 64 M Mattar, ‘Incorporating the Five Basic Elements of a Model Antitrafficking in Persons Legislation in Domestic Laws: From the United Nations Protocol to the European Convention’ (2006) 14 Tulane Journal of International and Comparative Law 357, 363–64. 65 K Fredette, ‘Revisiting the UN Protocol on Human Trafficking: Striking Balances for More Effective Legislation’ (2009) 17 Cardozo Journal of International and Comparative Law 101. 66 ibid 128. 67 A Gallagher, The International Law of Human Trafficking (Cambridge University Press, 2010) 336.

The Criminal Justice Approach  55 c.  Challenges to the Protocol’s Efficacy In one of the leading empirical studies to have been conducted since the adoption of the Protocol, researchers Seo-Young Cho, Axel Dreher and Eric Neumayer used their newly developed Anti-Trafficking Policy Index68 to determine the level of compliance by states with the Protocol’s three main anti-trafficking policy areas: prevention, protection and prosecution (3Ps). The index on each of the three policy measures was coded on a scale of 1–5, where the highest value indicated full compliance and the lowest value no compliance. The study found that ratification of the Protocol leads to the strongest effect on compliance with the prevention paradigm because prevention reflects the key interests of most countries, which triggers less domestic resistance and political costs to implement. Therefore, it is the most ‘efficient’ form of compliance.69 In contrast, the prosecution paradigm, which invariably requires lengthy and expensive judicial processes,70 does not command effective implementation by the majority of States Parties. Similarly, compliance with the Protocol’s protection paradigm, which, among other things, requires amendments to immigration laws as well as the recognition of trafficked persons as victims rather than criminals, was found to be sub-optimally implemented across multiple jurisdictions. This is presumably the case because, unlike prevention measures which can be implemented in cooperation with international organisations and NGOs, prosecution and, to a greater extent, protection measures require proactive government action, with potentially serious financial implications, which is likely to trigger domestic resistance. In the same vein as Horace Bartilow,71 Cho, Dreher and Neumayer also found that decreases in the number of women in cabinet and parliament correlates to a decrease in the likelihood of compliance with the Protocol. d.  Transnational Limitation or Broader Scope of Application? A major discussion point surrounding the relative efficacy of the UN ­Trafficking Protocol is whether, and to what extent, it applies to internal trafficking in persons.72 Under Article 4 of the Protocol, it is expressly indicated that ‘the ­Protocol shall apply … to the prevention, investigation and prosecution of the offences ­established in accordance with Article 5 of this Protocol, where those

68 S-Y Cho, A Dreher and E Neumayer, ‘The Spread of Anti-Trafficking Policies – Evidence from a New Index’ (2011) CESIFO Working Paper No 3376. 69 ibid 23. 70 ibid 9. 71 H Bartilow, ‘Gender Representation and International Compliance against Human Trafficking’ (Department of Political Science, the University of Kentucky, Kentucky, 2010). 72 N Ray, ‘Looking at Trafficking through a New Lens’ (2006) 12 Cardozo Journal of Law & Gender 909, 918 (arguing that if cross-border transport is considered an integral part of the definition of ­trafficking, a citizen trafficked internally is afforded less protection than a non-citizen transported from another state).

56  International Dimensions offences are transnational in nature and involve an organized criminal group’. Based on a textual interpretation of this provision, it is clear that the Protocol was intended to apply only to instances of transnational trafficking, and not internal trafficking, which has been described by one scholar as having implications that are ‘devastating for most enslaved persons’.73 Even a teleological approach to treaty interpretation does not assist in widening the limited scope of this provision, since the Protocol is inextricably linked to the UN Convention against Transnational Organized Crime,74 which itself, in Article 3(1), provides that: This Convention shall apply … to the prevention, investigation and prosecution of: (a) The offences established in accordance with articles 5, 6, 8 and 23 of this ­Convention; and (b) Serious crime as defined in article 2 of this Convention; where the offence is transnational in nature and involves an organized criminal group (emphasis added).

Under Article 3(2) of the Convention, an offence is transnational in nature if: (a) It is committed in more than one State; (b) It is committed in one State but a substantial part of its preparation, planning, direction or control takes place in another State; (c) It is committed in one State but involves an organized criminal group that engages in criminal activities in more than one State; or (d) It is committed in one State but has substantial effects in another State.

Notwithstanding the seemingly obvious transnational underpinnings of this provision, it is submitted that, having regard to subsequent state practice which recognises and criminalises internal trafficking,75 a rather expansive interpretation should be given to the term ‘transnational,’ as the ‘substantial effects’ condition works to criminalise activities which would otherwise be characterised as purely domestic, but for their transnational impact.76 Indeed, the term ‘substantial’ here, while ambiguous, appears to be wide enough to include much of the trafficking activity that occurs internally, since no matter how small of an impact it might have when measured individually, ‘if assessed collectively with other like activity, will be of such a scale as to have substantial impact on at least one other State’.77 Furthermore, as the parent Convention requires that the offence of trafficking be established in the domestic law of every State Party, independently of

73 J Hathaway, ‘The Human Rights Quagmire of “Human Trafficking”’ (2008) 49 Villanova Journal of International Law 50. 74 Fredette (n 65) 119 (arguing that ‘the Protocol is not a “stand alone” instrument; rather it was adopted mutatis mutandis to the Convention’). 75 C Rijken and D Koster, ‘A Human Rights Based Approach to Trafficking in Human Beings in Theory and Practice’ (2008) Social Science Research Network Working Paper No 1135108. 76 ibid 118. 77 ibid.

The Criminal Justice Approach  57 its ­transnational nature or the involvement of an organised criminal group,78 it is hardly a strong argument that internal trafficking is not contemplated by ­international law.79 In short, therefore, there is nothing inherent in the concept of ‘trafficking in persons’ that would preclude it from applying to internal incidents.80 e.  The Protection Obligation: A Lost Opportunity? Another important question which has arisen in the context of the normative content of the Protocol relates to the robustness of its protection obligation. While Article 6 of the Protocol provides for myriad measures aimed at protecting and assisting victims of human trafficking, such as assistance during legal proceedings, the provision of residence permits, housing, medical treatment, job training, assistance for rehabilitation and assistance for repatriation, these measures have come under intense scrutiny by some scholars for being overly oriented towards a trafficked person’s utility as merely a witness, and not so much a victim.81 More specifically, whereas those obligations which involve the victim playing a major role in advancing criminal justice processes robustly stipulate that states ‘shall ensure’,82 those obligations which are directed at a victim’s physical, psychological and social recovery outside this context use the hortatory terminology ‘shall consider’.83 Terminologies of this nature render victim protection inescapably weak84 and, in practice, only a minority of states have actually adopted mechanisms even to ‘consider’ the protection of trafficked persons.85 The provisional nature of assistance to trafficked victims under the Protocol86 should, however, come as no surprise given that the UN Trafficking Protocol is essentially a criminal

78 Art 34 (2) UN Transnational Organized Convention. 79 A Gallagher, ‘Human Rights and Human Trafficking: Quagmire or Firm Ground? A Response to James Hathaway’ (2009) 49(4) Virginia Journal of International Law 789, 813. 80 H Cullen, The Role of International Law in the Elimination of Child Labor (Brill Publishing, 2007) 50. 81 E Defeis, ‘Protocol to Prevent, Suppress and Punish Trafficking in Persons – A New Approach’ (2004) 10 ILSA Journal of International & Comparative Law 485, 486, 448. See also, Hyland (n 56) 38 (arguing that ‘because victim assistance is discretionary, victims who remain in a country in order to be witnesses for the prosecution could be detained for months without critical services or employment. Many victims may be unwilling to offer testimony without these provisions, which works to the detriment of the prosecutor and undermines the law enforcement objectives of this Protocol’). 82 Art 6(2) Palermo Protocol. 83 A Jordan, ‘Human Rights or Wrongs? The Struggle for a Rights-Based Response to Trafficking in Human Beings’ (2002) 10(1) Gender & Development 28, 34. See also, H Askola, Legal Responses to Trafficking in Women for Sexual Exploitation in the European Union (Hart Publishing, 2007) 139. 84 J Srikantiah, ‘Perfect Victims and Real Survivors: The Iconic Victim in Domestic Human Trafficking Law’ (2007) 87 Boston University Law Review 157. 85 L Smith and M Mattar, ‘Creating International Consensus on Combating Trafficking in Persons: US Policy, the Role of the UN, and Global Responses and Challenges’ (2004) Fletcher Forum of World Affairs 160, 161. 86 A Gallagher, ‘Human Rights and the New UN Protocols on Trafficking and Migrant Smuggling: A Preliminary Analysis’ (2001) 23 Human Rights Quarterly 975, 990–93.

58  International Dimensions law instrument with, quite naturally, an overt focus on criminal investigation and prosecution,87 albeit with a human rights dimension.88 Nevertheless, it has been argued that even accepting this position as correct, it is simply unacceptable that no provision speaks to the reintegration of t­rafficked victims or other rehabilitative measures that would not only enable them to ­seamlessly re-enter society, but also not be re-trafficked.89 The failure to effectively grapple with these human rights concerns has, perhaps unsurprisingly, led some scholars to argue that the Protocol has placed the international community into ‘an endless cycle of seeking to prosecute perpetrators and aid victims after the harm has occurred’.90 f.  Final Impressions On balance, despite the challenges identified above to the effective implementation of, and compliance with, the UN Trafficking Protocol, it is undeniable that the Protocol is ‘better than no Protocol at all’.91 It is also undeniable that the Protocol has, for the most part, served international law very well as a framework and impetus for the generation of a comprehensive range of rights-based international, regional, and national norms and standards that articulate, with much greater clarity than was ever previously possible, the obligations of States in relation both to ending impunity for traffickers and providing support, protection and justice for those who have been exploited.92

iii.  The Rome Statute of the International Criminal Court The Rome Statute of the International Criminal Court (ICC)93 entered into force at the end of the twentieth century, at a time when human trafficking was fast ­becoming one of the three leading international crimes,94 with a demonstrated potential to ‘threaten the peace, security and well-being of the world’.95 The Statute embodies the international community’s commitment to fighting against i­ mpunity while effectively strengthening international recourse to justice.96 87 D Haynes, ‘(Not) Found Chained to a Bed in a Brothel: Conceptual, Legal, and Procedural Failures to Fulfil the Promise of the Trafficking Victims Protection Act’ (2007) 21 Georgetown Immigration Law Journal 337, 345–46. 88 R Piotrowicz, ‘The Legal Nature of Trafficking in Human Beings’ (2009) 4 Intercultural Human Rights Law Review 175, 176. 89 Hyland (n 56) 38. 90 J Todres, ‘Widening Our Lens: Incorporating Essential Perspectives in The Fight Against Human Trafficking’ (2011) 33 Michigan Journal of International Law 53, 65. 91 Gallagher, ‘Human Rights and Human Trafficking: Quagmire or Firm Ground?’ (n 79) 814. 92 ibid 846. 93 Rome Statute of the International Criminal Court (n 11). 94 JN Aston and V Paranjape, ‘Abolishment of Human Trafficking: A Distant Dream’ (2012) SSRN Working Paper No 2112455. 95 Rome Statute of the International Criminal Court (n 11) Preamble [3]. 96 T Flores-Acuña, ‘The Rome Statute’s Sexual Related Crimes: An Appraisal under the Light of ­International Humanitarian Law’ (2004) 9 Revista IIDH 170.

The Criminal Justice Approach  59 In accordance with Article 5 of the Rome Statute, the ICC’s jurisdiction is limited to the most serious crimes of concern to the international community as a whole, including ‘crimes against humanity’.97 ‘Crimes against humanity’ are defined by Article 7 as including any of a list of enumerated acts, such as ‘enslavement’,98 which are committed ‘as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack’.99 ‘Enslavement’ is understood to mean the exercise of ‘any or all of the powers attaching to the right of ownership over a person and includes the exercise of such power in the course of trafficking in persons, in particular, women and children’.100 For the ICC to make a finding of enslavement, the requisite ‘Elements of the Crime’101 specifically require102 that: i. The perpetrator exercised any or all of the powers attaching to the right of ownership over one or more persons, such as by purchasing, selling, lending or bartering such a person or persons, or by imposing on them similar deprivation of liberty. ii. The conduct was committed as part of a widespread103 or systematic104 attack105 directed against a civilian population.106 iii. The perpetrator knew that the conduct was part of or intended107 the conduct to be part of a widespread or systematic attack directed against a civilian population. Footnote 11 adds that ‘deprivation of liberty’, referred to in paragraph (i) above, may, in some circumstances, include exacting forced labour or otherwise reducing a person to a servile status as defined in the Supplementary Convention on the Abolition of Slavery, the Slave Trade, and 97 Rome Statute of the International Criminal Court (n 11) Art 5(1)(b). 98 ibid Art 7(1)(c). 99 ibid Art 7(1). 100 ibid Art 7(2)(c). 101 International Criminal Court, Elements of Crimes’, UN Doc. PCNICC/2000/1/Add.2 (2000). 102 Rome Statute of the International Criminal Court (n 11) Art 7(1)(c), Elements of the Crime. 103 See Prosecutor v Gombo, Decision on the Confirmation of charges, ICC-01/05-01/08-424 [82–83]. A widespread act connotes the large-scale nature of the attack, either over a large geographical area or directed against a large number of targeted persons. See, J Kim, ‘Prosecuting Human Trafficking as a Crime against Humanity under the Rome Statute’ (2011) SSRN Working Paper No 1779263. 104 See Prosecutor v Katanga, Decision on the Confirmation of charges, ICC-01/04-01/07-717, [394], [397]. A ‘systematic act’ refers to the organised nature, pattern, or policy of the acts of violence and consists of ‘non-accidental repetition of similar criminal conduct on a regular basis’, improbable of random occurrence. 105 See, Republic of Kenya, Decision on the Authorisation of an Investigation, ICC-01/09-19, [80]. The acts must constitute an ‘attack’ which broadly refers to a course of conduct, campaign, mistreatment, or operation involving the multiple commission of the established act carried out against the civilian. 106 See, G Werle, Principles of International Criminal Law (Oxford University Press, 2005) 224. A civilian population must be the primary objective of the attack; this does not mean that an entire population of a state or territory must be affected, but rather, that the crime must have a collective nature, ruling out individual, incidental and isolated acts of violence. 107 See Prosecutor v Gombo (n 103) [87–88]. The perpetrator must have been aware of the consequences of his or her conduct, but it does not mean that the perpetrator must have knowledge of all the characteristics of the attack or the precise details of the plan or policy of the state or organisation.

60  International Dimensions I­nstitutions and Practices Similar to Slavery of 1956. It is also understood that the conduct described above includes trafficking in persons, in particular, women and children.108

a.  Application of the Statute of the ICC to Human Trafficking While ‘trafficking in persons’ is clearly referred to in the definition of ‘enslavement’ as one of the crimes over which the ICC has jurisdiction, the question arises as to how to define ‘trafficking in persons’, in the absence of an explicit definition for this phrase under the Rome Statute. This has been recognised as an important question in light of the divergent ways in which trafficking is defined both nationally and internationally, the internationally accepted right that the accused person must know the content of the charge of enslavement,109 as well as the lack of legal certainty resulting from the fact that the ICC has yet to hear a case involving allegations of trafficking as a crime against humanity. While the answer to this question has been regarded by some as ‘quite complex’,110 it is submitted that this need not be the case in light of the now widely accepted definition of ‘trafficking in persons’, as espoused by the UN Trafficking Protocol.111 Indeed, as one leading commentator has argued, imbedded in the [UN Trafficking Protocol’s] definition of ‘trafficking in persons’ is the term ‘slavery’, a manifestation of enslavement, which despite meeting the other elements of the definition ‘trafficking in persons’, constitutes not ‘trafficking in persons’ but ‘enslavement’ before the International Criminal Court.112

In other words, while ‘trafficking in persons’ is not an independent crime against humanity,113 it can nevertheless be prosecuted as a form of enslavement,114 provided, of course, that the claim meets the ICC’s admissibility criteria115 and satisfies the requisite ‘Elements of the Crime’. In short, a situation of trafficking in persons will be identifiable as enslavement under the Rome Statute if it involves, for example, the recruitment or harbouring of a person by coercive means ­resulting in

108 Rome Statute of the International Criminal Court (n 11). 109 J Allain, ‘The Definition of “Slavery” in General International Law and the Crime of Enslavement within the Rome Statute’ (Guest Lecture Series of the Office of the Prosecutor, 2007) 12. 110 Gallagher, The International Law of Human Trafficking (n 67) 214. 111 Art 3 UN Trafficking Protocol. 112 Allain (n 109) 15. 113 During the drafting process of the ICC Statute, this argument was rejected by the Committee. See, United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court (Discussion Paper, A/CONF.183/C.1/L.53, 6 July 1998) 2. 114 M Cherif Bassiouni, Crimes Against Humanity in International Criminal Law (Martinus Nijhoff Publishers, 1999) 311. 115 Art 17 Rome Statute of the International Criminal Court. A case is not admissible if the case is being investigated or prosecuted by a state which has jurisdiction over it, unless the state is unwilling or unable to genuinely carry out the investigation or prosecution; or the case is not of sufficient gravity to justify further action by the Court.

The Criminal Justice Approach  61 the person being subject to the ‘exercise of any or all of the powers attached to the right of ownership’.116 Should the offence of trafficking of persons within the context of enslavement arise for consideration by the ICC in future, it is likely that the ICC will be influenced by the jurisprudence of the International Criminal Tribunal for the former Yugoslavia (ICTY). More specifically, in Prosecutor v Kunarac,117 the ICTY dealt with a situation whereby the defendants kept two girls in a house for several months, using them as personal property, for example, by requiring that they do all household chores and comply with all sexual demands under the threat of being killed.118 In the ensuing case of ‘enslavement’ before the Appeals Chambers, the judges upheld the Trial Chamber’s finding that the traditional concept of ‘slavery’ has evolved to encompass various contemporary forms of slavery which are ‘based on the exercise of any or all of the powers attaching to the right of ownership’.119 While not accepting the argument that a conviction under the ‘enslavement’ provision is based on the exercise of a ‘right of ownership over a person’, but rather situations where ‘any or all of the powers attaching to the right of ownership are exercised’, which covers de facto as well as de jure slavery, the Appeals Chamber nevertheless considered that the question of whether a particular phenomenon is a form of enslavement will depend on the operation of the indicia of enslavement. These factors include the ‘control of someone’s movement, control of physical environment, psychological control, measures taken to prevent or deter escape, force, threat of force or coercion, duration, assertion of exclusivity, subjection to cruel treatment and abuse, control of sexuality and forced labour’.120 As the above-mentioned list is not exhaustive, it appears that the ICC may likely assert jurisdiction in respect of all contemporary forms of slavery, including servitude and forced labour in appropriate circumstances. More generally, in keeping with Article 3(b) of the UN Trafficking Protocol,121 the Appeals Chamber endorsed the view that the alleged consent of a victim of enslavement is not an element of the crime, since the circumstances of enslavement are such that they ‘render it impossible to express [such] consent’.122 In the same vein, the duration of the enslavement is not an element of the crime, though this will be considered in order to determine the nature of the relationship between the accused and the victim. 116 Gallagher, The International Law of Human Trafficking (n 67) 190. 117 Prosecutor v Kunarac et al (International Criminal Tribunal for the former Yugoslavia, IT-96-23 &-IT-96-23/1-A, Judgment, 12 June 2002). 118 International Labour Organization, ‘Forced Labour and Human Trafficking: Handbook for Labour Inspectors’ (ILO, 2008) 19. 119 Prosecutor v Kunarac et al ICTY, Trial Chamber II, Case No IT-96 & 23/1) [117]. 120 ibid. 121 These circumstances would presumably include: threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person (Art 3(a) UN Trafficking Protocol). 122 Prosecutor v Kunarac (n 119) [120].

62  International Dimensions Notwithstanding the foregoing, however, from a purely Analytical Eclectic perspective, it is likely that the vast majority of trafficking cases will be unable to satisfy the high threshold of having taken place in the context of a sufficiently widespread or systematic attack directed against a civilian population,123 since acts of trafficking are typically haphazard criminal acts, as opposed to systematic in nature,124 and may, in any event, not be specifically directed at a civil population.

B.  ‘Hegemonic Assumptions’ Notwithstanding the axiomatic importance of the criminal justice approach towards the eradication of human trafficking, a number of hegemonic assumptions continue to plague this approach in practice, which, in many respects, challenge the overall efficacy of this approach. These assumptions are addressed hereafter from an Analytical Eclectic perspective.

i.  Persons not Rescued by Law Enforcement Officials are not Trafficked Victims An often unsaid, yet pervasive, hegemonic assumption that underlies the criminal justice approach to human trafficking is the notion that only those who are rescued by law enforcement authorities are trafficked victims. This assumption stems from the belief that law enforcement officials are best placed to identify victims, and that in the vast majority of cases, unless a victim is rescued, she or he is at best passively complicit in her or his exploitation or, at worst, an illegal alien who deserves to be deported. A nuanced analysis of this assumption was recently provided by Dina Haynes,125 who has argued that the criminal justice approach to human t­ rafficking continues to fail a number of trafficked victims who are ‘not found chained to a bed in a brothel’.126 More specifically, Haynes contends that these victims continue to be denied access to the ‘beds, medical care, and legal advocacy’127 that are reserved for ‘rescued’ victims. On a related point, Haynes, like other scholars in the field,128 further argues that a growing number of these non-rescued victims are in

123 BS Moshan, ‘Women, War, And Words: The Gender Component in the Permanent International Criminal Court’s Definition of Crimes Against Humanity’ (1998) 22 Fordham International Law ­Journal 154, 179. 124 N Tavakoli, ‘A Crime that Offends the Conscience of Humanity: A Proposal to Reclassify ­Trafficking in Women as an International Crime’ (2009) 9 International Criminal Law Review 77, 81. 125 Haynes, ‘(Not) Found Chained to a Bed in a Brothel’ (n 87). 126 ibid 349. 127 ibid 347. 128 S Hepburn and R Simon, Human Trafficking Around the World: Hidden in Plain Sight (Columbia University Press, 2013) 193.

The Criminal Justice Approach  63 fact being treated as criminals.129 Citing practical examples to substantiate her contention, Haynes advances the argument that even where non-rescued victims are not treated as criminals, their stories are typically treated with extreme scepticism by criminal justice practitioners, the consequence of which is that trafficking-related investigations are not systematically initiated against many perpetrators whose victims demonstrate some degree of agency in freeing themselves from the bondage of exploitation.130 From an Analytical Eclectic perspective, this parochial approach to the ­identification of victims needs to be expanded to ensure that all trafficked persons, whether rescued or escapees, are treated as ‘real’ victims, since the ‘the exercise of agency to escape at some point in the trafficking exploitation does not indicate that a victim is somehow less authentic’.131 Indeed, as Jayashri Srikantiah correctly asserts, ‘trafficking does not always involve chains and physical bondage’.132

ii.  A ‘Real’ Victim is a Passive Foreign Girl or Woman Who has been Trafficked for the Purpose of Sexual Exploitation When a ‘raid’ or ‘rescue’ operation is conducted by law enforcement officials, a particular type of victim is envisaged: a passive foreign woman or girl who is trafficked for the purpose of sexual exploitation.133 This notion of an ‘iconic victim’, as described by Srikantiah has, in many states, ‘seeped into prosecutors’ and investigators’ identification of traffick[ed] victims, with tragic consequences for victims of labour or sex trafficking who do not describe their stories consistently with it’.134 Nevertheless, it appears that painting a picture of an ‘iconic victim’ is tacitly an important aspect of the criminal justice approach, as it allows ­prosecutors to describe the victim as completely blameless and the trafficker as maximally ­culpable.135 In this regard, a victim who is assumed to have exercised any degree of agency, such as taking steps to migrate from her or his country of origin in order to better her or his economic prospects or to free herself or himself from exploitative conditions in the destination country, is quickly discredited as a victim and, in some instances, even treated as a criminal.136 In the same vein, a local man who has been subject to internal, as opposed to transnational, t­ rafficking, for e­ xample,

129 Haynes, ‘(Not) Found Chained to a Bed in a Brothel’ (n 87) 349. 130 ibid 347. 131 Srikantiah (n 84) 198. 132 ibid. 133 See N Bandyopadhyay, ‘Streetwalkers Show the Way: Reframing the Debate on Trafficking from Sex Workers’ Perspective’ (2004) 35(4) IDS Bulletin 104 (rejecting the ‘raid and rescue’ approach favoured by law enforcement officials). 134 See Srikantiah (n 84) 160. 135 ibid 161. 136 N Demleitner, ‘The Law at a Crossroads: The Construction of Migrant Women Trafficked into Prostitution’ in D Kyle and R Koslowski (eds), Global Human Smuggling: Comparative Perspectives (JHU Press, 2001).

64  International Dimensions into the mining or agricultural industry, may also be regarded as unworthy of ­protection.137 From an Analytical Eclectic perspective, the practical implications of this particular hegemonic assumption are manifold, but include, at the very least, an incomplete description of trafficked persons’ victimhood and the complex socio-economic realities surrounding their diverse experiences;138 the misclassification of victims who do not meet the pervading criteria as ‘illegal aliens’;139 misleading the public into believing that only one form of trafficking – sex trafficking – is recognisable and, indeed, capable of being legally addressed; ‘essentialising’ and ‘othering’140 a large cadre of foreign victims who are already subject to pervasive forms of cultural stereotypes, racism and gender discrimination;141 and, potentially, legitimising the use of the services of men who are trafficked into forced labour.142 These consequences are far-reaching, and would suggest that a reassessment of the existing criminal justice approach to human trafficking is of utmost necessity.

iii.  Only a Cooperative Victim/Witness is Worthy of Protection Another pervasive, though often unstated, hegemonic assumption underlying the criminal justice approach to human trafficking is that to be a ‘real’ victim, a person who alleges that she or he has been trafficked must demonstrate that she or he is willing and able to cooperate with law enforcement officials, and that once criminal proceedings have been commenced against her or his trafficker(s), she or he will act the part of a good witness.143 According to Bo Cooper, the most practical illustration of such an assumption arises in the context of c­ riminal proceedings wherein which victims are typically required to cooperate with

137 See K Richards, ‘The Trafficking of Migrant Workers: What are the Links between Labour Trafficking and Corruption?’ (2004) 42(5) International Migration 147 (citing instances where these victims’ ‘testimonies have been intentionally ignored or destroyed to protect certain powerful alliances’). 138 Srikantiah (n 84) 209. 139 K Johnson, ‘Images of the Immigrant, Political Power of Noncitizens, and Immigration Law and Enforcement’ (1993) Boston University Law Review 1139, 1234 (arguing that victims who do not fit established criminal justice criteria fall into the category of ‘illegal aliens’). 140 See J Todres, ‘Law, Otherness, and Human Trafficking’ (2009) 49 Santa Clara Law Review 605 (‘essentialism’ is defined as the attribution of certain [negative] characteristics to certain groups of people, ie, trafficked victims from the ‘South’; while ‘othering’ involves the devaluation of these individuals, communities, and even nations, and a privileging of those who are members of the dominant group, class, or country). 141 Haynes, ‘(Not) Found Chained to a Bed in a Brothel’ (n 87) 356–57. 142 J Lopiccolo, ‘Where are the Victims? The New Trafficking Victims Protection Act’s Triumphs and Failures in Identifying and Protecting Victims of Human Trafficking’ (2008) 30 Whittier Law Review 851 (arguing that the ‘uneven focus on sex trafficking reflects western ideals that condemn the sale of sex, but participate in creating the demand for inexpensive products that require the use of cheap or forced labour. Therefore, it is easier to turn a blind eye to labour exploitation than sexual exploitation’). 143 For critique of this approach, see Committee Against Torture, ‘Concluding observations of the Committee against Torture on Czech Republic, adopted at Forty-eighth session (CAT/C/CZE/CO/4–5, 13 July 2012) [16].

The Criminal Justice Approach  65 competent ­authorities in order to qualify for the temporary regularisation of their immigration status144 or, indeed, benefit from the attendant physical and material assistance that anti-trafficking law typically envisages. Regrettably, this approach fails to account for contemporary humanitarian principles,145 such as those provided for in the UN Trafficking Guidelines,146 which implore states to afford trafficked victims at least 30 days to recover from the trafficking experience without being pressured into cooperating with criminal justice practitioners.147 Moreover, by overemphasising the need for victims to cooperate in the institution of criminal proceedings, rather than applying proactive investigation and prosecutorial techniques, the foregoing hegemonic assumption does not adequately take account of the fact that said victims might very well be ‘frightened, numb, confused, or still under the psychological control of the trafficker’148 at the relevant time. In such circumstances, victims who might very well have been trafficked risk losing out on support and assistance measures,149 and may even be deported should they refuse to cooperate.150 On a related issue, it is clear that trafficked victims run the risk of being ­revictimised where the circumstances are such that they are lured into c­ ooperating with criminal justice practitioners through the provision of ‘false or unrealistic promises regarding their safety and that of their families’.151 Whenever promises of this nature are made, but are not kept in practice, victims, as well as potential victims who might otherwise have been inclined to institute criminal proceedings against their traffickers, might lose trust in the criminal justice system, thus widening the gap between the number of victims identified and the number of ensuing convictions.152 Against this backdrop, the Analytic Eclectic argues for an acknowledgement of this hegemonic assumption, and a recalibration of investigatory and prosecutorial practices on the part of criminal justice practitioners.

144 B Cooper, ‘A New Approach to Protection and Law Enforcement under the Victims of Trafficking and Violence Protection Act (TVPA)’ (2002) 51 Emory Law Journal 1041 (arguing that s 107 of the TVPA serves a purely law enforcement purpose). 145 Lopiccolo (n 142) (arguing that the requirement to cooperate with law enforcement officials ‘does not help those victims who are too paralyzed by fear, or traumatized by their experience to testify against their morally bankrupt captors’). 146 UN High Commissioner for Human Rights, Recommended Principles and Guidelines on Human Rights and Human Trafficking (United Nations, E/2002/68/Add.1, 2002) (UN, Trafficking Guidelines). 147 See UN High Commissioner for Human Rights, ‘Commentary to the UN High Commissioner for Human Rights, Recommended Principles and Guidelines on Human Rights and Human Trafficking’ (UNCHR, 2010) 151. 148 See Srikantiah (n 84) 180. 149 Committee on the Elimination of All Forms of Racial Discrimination, ‘Concluding Observations on the sixteenth to nineteenth periodic reports of Belgium’ (CERD/C/BEL/CO/16–19, 14 March 2014) [21]. 150 See D Haynes, ‘Used, Abused, Arrested and Deported: The Case for Extending Immigration ­Benefits to Protect Victims of Trafficking and Secure Prosecution of Traffickers’ (2004) 26 Human Rights Quarterly 221. 151 Gallagher and Holmes (n 28) 333. 152 T Keren-Paz, Sex Trafficking: A Private Law Response (Routledge, 2013) 7.

66  International Dimensions

iv.  Statistical Improvements are a Good Indicator of ‘Success’ in Responding to Human Trafficking The rapid expansion in measures aimed at combating human trafficking since the entry into force of the UN Trafficking Protocol has led to increasing calls for two important criminal justice determinants to be measured: the prevalence of trafficking-related incidents and the rates of criminal prosecutions/convictions.153 Unfortunately, while the growing corpus of data on these determinants has arguably been useful in informing anti-trafficking policy, these have nevertheless been appropriated by criminal justice practitioners in a way that seeks to bolster the assumption that ‘success’, however defined, is achieved where there has been an increase in trafficking-related prosecutions/convictions or, alternatively, a decrease in the perceived prevalence of the phenomenon.154 As Anne Gallagher has rightly pointed out, this assumption is often misplaced, particularly when viewed in light of the fact that changes in these determinants are ‘crude and potentially misleading success indicators’.155 In other words, changes in prosecution rates, for example, may be attributable to the implementation of new anti-trafficking laws, improvements in the way in which data is collected or, in some cases, poor quality prosecutions which place a disproportionate amount of attention on prosecuting ‘easy cases’.156 In the same vein, a decrease in the perceived prevalence of incidents of human trafficking may not in all cases be indicative of ‘success’ in responding to human trafficking, but rather the adaptation of traffickers to new modes of operation that drive victims further underground, thus making it more difficult for them to be identified by competent national authorities. In short, from an Analytical Eclectic perspective, it is dangerous to unequivocally assume, as some criminal justice practitioners have done, that changes in patterns on the criminal justice front reflect ‘success’ in responding to human trafficking. Indeed, while there is a need for sustained evaluations of every aspect of a state’s anti-trafficking machinery, the output from such exercises must necessarily be treated with a degree of caution given the difficulties inherent in establishing correlations in respect of the key criminal justice determinants discussed above.

II.  The Human Rights Approach A. General In contrast to the criminal justice’s ‘offender-centric’ approach, the human rights approach’s primary focus lies in effectively securing the rights and interests of 153 C Seelke, Trafficking in Persons in Latin America and the Caribbean (DIANE Publishing, 2010) 14. 154 A Gallagher and R Surtees, ‘Measuring the Success of Counter-Trafficking Interventions in the Criminal Justice Sector: Who Decides – and How?’ (2012) 1 Anti-Trafficking Review 10, 23. 155 ibid. 156 ibid 24.

The Human Rights Approach  67 ­trafficked victims.157 At an elementary level, this approach considers that in order to effectively protect victims of trafficking, the offence of trafficking must itself be prohibited.158 In fact, this elementary commitment has been explicitly enshrined in a number of international human rights instruments, including the Convention on the Elimination of All forms of Discrimination against Women (CEDAW),159 the Convention on the Rights of the Child,160 the American Convention on Human Rights,161 and the ILO Convention 182 on the Worst Forms of Child Labour,162 which respectively place an obligation on States to prohibit, in particular, the trafficking of women and children.163 Apart from the obligation to prohibit human trafficking, however, the human rights approach goes further by emphasising the critical importance of the obligation enshrined in international human rights law to prevent human trafficking164 by, for example, addressing the root causes that fuel the continued existence of the phenomenon, including poverty, discrimination, and the absence of employment and educational opportunities.165 157 C Rijken, ‘A Human Rights Based Approach to Trafficking in Human Beings’ (2009) 20 Security and Human Rights 212. 158 Obokata, Trafficking of Human Beings from a Human Rights Perspective (n 2) 148. 159 Convention on the Elimination of All Forms of Discrimination against Women (adopted 18 December 1979, entered into force 3 September 1981). Art 6 requires that these countries ‘take all appropriate measures, including legislation, to suppress all forms of traffic in women’. See also Committee on the Elimination of All Forms of Discrimination against Women, ‘Concluding Comments – Croatia’ (UN Doc CEDAW/C/CRO/CC/2–3, 2005) [37]–[38]; Committee on the Elimination of All Forms of Discrimination against Women, ‘Concluding comments of the Committee on the Elimination of Discrimination against Women: Mauritania’ (UN Doc CEDAW/C/MRT/CO/1, 2007) [31]. 160 Art 35, Convention on the Rights of the Child (adopted 20 November 1989, entered into force 2 September 1990) 1577 UNTS 3. 161 Art 6, American Convention on Human Rights (adopted 22 November 1969, entered into force 18 July 1978) 1144 UNTS 123. 162 Convention concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour C182 (adopted 17 June 1999, entered into force 19 November 2000). Art 1 obliges states to prohibit and eliminate the worst forms of child labour as a matter of urgency. ‘Child labour’ is defined in Art 3 of said instrument as including the ‘trafficking of children’. 163 Note that other international instruments, such as the International Covenant on Civil and Political Rights (Art 8); the Forced Labour Convention (Art 2); and the International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families (Art 11) prohibit slavery, forced labour and servitude. In their recommendations, the respective Committees charged with monitoring the implementation of these Conventions have noted the need for effective action against human trafficking. See, eg, UN Human Rights Committee, ‘Concluding observations of the Human Rights Committee: Philippines’ (UN Doc CCPR/CO/79/PHL, 2003) [13]; UN Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families, ‘Concluding observations of the Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families: Mali’ (UN Doc CMW/C/MLI/CO/1, 2006) [8]; ILO, Report on the Application of Conventions and Recommendations – Bangladesh: Forced Labour Convention No 29’ (Committee of Experts, 2012) [250]. 164 Convention on the Rights of the Child (n 160). Art 35 requires that states ‘take all appropriate national, bilateral and multilateral measures to prevent the … traffic in children for any purpose or in any form’. See also CRC, ‘Concluding observations of the Committee on the Rights of the Child: Bangladesh’ (UN Doc CRC/C/15/Add.221, 2003) [74(c)] 165 International Covenant on Economic, Social and Cultural Rights (ICESCR) See, eg, Arts 2(2), 6, 7, 11 and 13–14; See also Committee on Economic, Social and Cultural Rights, ‘Concluding observations of the Committee on Economic, Social and Cultural Rights: Slovenia’ (UN Doc E/C.12/SVN/CO/1, 2006) [33]; Committee on Economic, Social and Cultural Rights, ‘Concluding observations of the

68  International Dimensions Furthermore, in contrast to the criminal justice approach which places considerable emphasis on the criminalisation of both state and non-state actors, the human rights approach to human trafficking primarily concerns itself with the duties owed by states to respect, protect and fulfil166 their international human rights obligations. In this context, the human rights approach countenances the notion that states must give primacy to the rights of trafficked victims on all fronts, and in particular, in so far as support and assistance is concerned.167 Human rights practitioners have increasingly pressured states to view human trafficking as a continuum of violence168 over the course of which the rights of trafficked victims are systematically violated.169 To counter this perennial challenge, the human rights approach envisages that effective measures will be adopted by states that are aimed at ensuring the physical safety of victims, their active participation in court proceedings, and the provision of appropriate compensation so that victims could achieve some degree of vindication and, indeed, empowerment.170 The human rights approach not only borrows from the UN Trafficking Protocol, but also from the strong normative commitments that characterise international human rights law. These commitments emphasise respect for, and, where appropriate, the fulfilment of, a number of important obligations relating, in particular, to the regularisation of victims’ immigration status,171 safe ­repatriation172 and reintegration.173 The human rights approach serves as a robust ‘framework of action’ that ensures that pressure is consistently applied to states to not only prohibit incidents

Committee on Economic, Social and Cultural Rights: Uzbekistan’ (UN Doc E/C.12/UZB/CO/1, 2006) [56]. See generally, Arts 1 and 5 of the International Convention on the Elimination of All Forms of Racial Discrimination; see also Committee on the Elimination of All Forms of Racial ­Discrimination, ‘Concluding observations of the Committee on the Elimination of Racial Discrimination: ­Azerbaijan’ (UN Doc CERD/C/AZE/CO/4, 2005) [11]; Committee on the Elimination of All Forms of Racial Discrimination, ‘Concluding observations of the Committee on the Elimination of Racial Discrimination: Nigeria’ (UN Doc CERD/C/NGA/CO/18, 2005) [22]. 166 T Obokata, ‘A Human Rights Framework to Address Trafficking of Human Beings’ (2006) 24 Netherlands Human Rights Quarterly 377, 379. 167 Z Lasocik, ‘Human Trafficking: A Challenge for the European Union and its Member States (with Particular Reference to Poland)’ in L Holmes (ed), Trafficking and Human Rights: European and Asia–Pacific Perspectives (Edward Elgar, 2010) 30. 168 R Barberet, Women, Crime and Criminal Justice: A Global Enquiry (Routledge, 2014) 130. 169 See generally Y Kojima, Women in the Trafficking–Migration Continuum: From the Perspectives of Human Rights and Social Justice (Shaker Publishing, 2007). 170 Human Rights Council, ‘Report of the Special Rapporteur on Trafficking in Persons Especially Women and Children – The Right to an Effective Remedy for Trafficked Persons’ (A/HRC/17/35, 2011) [20]. 171 See, eg, Art 8 of the International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families (Adopted by General Assembly Resolution 45/158, on 18 December 1990, entered into force 1 July 2003). 172 See, eg, Arts 1A(2) and 33(1) of the Convention Relating to the Status of Refugees. See also UNHCR, ‘Guidelines on International Protection: Gender-related persecution within the context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol relating to the Status of Refugees’ (UN Doc HRC/GIP/02/01, 2002). 173 See also Art 39 of the Convention on the Rights of the Child (n 160).

The Human Rights Approach  69 of human trafficking, but also to actively investigate such matters in keeping with their due diligence obligation and, where appropriate, address the structural conditions, such as poverty, discrimination and violence against women, that contribute to the continued existence of the phenomenon.174 Moreover, the human rights approach serves as a framework of action that empowers victims of human trafficking by affording them improved access to justice as well as non-discriminatory access to essential services commensurate with their needs.175 The human rights approach also serves to unpack the lived experiences of trafficked victims.176 A number of international human rights instruments address, either explicitly or implicitly, the phenomenon of human trafficking; these are critically examined below from an Analytical Eclectic perspective.

i.  The International Covenant on Civil and Political Rights (ICCPR) Rooted in the express recognition of the inherent dignity and equal and inalienable rights of all members of the human family, the ICCPR177 expresses the international community’s commitment to ensuring that freedom, justice and peace are realised in an ever-changing world. The ICCPR was born out of the need to render human rights more than just political proclamations; it sought to provide an operational paradigm for effectively shaping the lives of individuals and nations. Against this backdrop, the ICCPR could be said to give substantive meaning to the Universal Declaration on Human Rights (UDHR) by concretising the civil and political rights of citizens which states are obliged to respect, protect and fulfil. Among the most significant obligations expressed under the ICCPR is the prohibition against slavery, servitude and forced labour, which is contained in Article 8, which effectively repeats Article 4 of the UDHR. This obligation permits no reservations by States Parties,178 and is closely monitored in practice by the Human Rights Committee, which, apart from receiving periodic reports from States Parties and issuing Concluding Observations, is also empowered, under the Optional Protocol to the ICCPR, to consider communications from individuals who claim to be victims of a violation by a State Party of any of the rights set forth in the Covenant.179

174 Obokata, Trafficking of Human Beings from a Human Rights Perspective (n 2) 121. 175 Jordan, ‘Human Rights or Wrongs? (n 83) 33. 176 S Inglis, ‘Expanding International and National Protections Against Trafficking for Forced Labour Using a Human Rights Framework’ (2001) 7 Buffalo Human Rights Law Review 55, 100. 177 UN General Assembly, International Covenant on Civil and Political Rights (entered into force 16 December 1966) 999 UNTS 171. 178 C Tomuschat, ‘International Covenant on Civil and Political Rights’ (UN Treaty, 5 December 2012). 179 Optional Protocol to the International Covenant on Civil and Political Rights (entered into force 23 March 1976) Art 1.

70  International Dimensions a.  Article 8 of the ICCPR: An Interpretive Conundrum? An ordinary and natural reading of Article 8 ICCPR may give the impression that the provision does not expressly contemplate trafficking in persons, since there is evidently no explicit mention of ‘trafficking in persons’. Indeed, a conservative reading of the provision appears to exclude Article 8’s application to trafficking in persons since it is arguable that the provision is aimed at circumventing three distinct forms of exploitative conduct,180 with slavery being at the helm of the hierarchy and servitude and forced labour being the ‘lesser’ alternatives to slavery.181 Unfortunately, neither the travaux preparatories to the ICCPR nor the Slavery Convention are particularly helpful on this point as, although the 1953 report to the UN Economic and Social Council182 sought to provide insights into what the term ‘slavery’ encompasses, it did not address the question as to whether trafficking in persons is contemplated by either Convention.183 A similar argument can be made in relation to the jurisprudence emanating from international courts and tribunals, such as the European Court of Human Rights (ECtHR) which, in the case of Siliadin v France,184 accepted that human trafficking fell within Article 4 of the European Convention on Human Rights (ECHR) which is couched in terms similar to Article 8 ICCPR, but cautioned that ‘being deprived of personal autonomy, even in the most brutal way, is not, of itself, sufficient to constitute slavery’.185 In the same vein, the ECtHR case of Rantsev v Cyprus and Russia186 is not particularly helpful on this point either, since the ECtHR did not explicitly indicate why trafficking amounts to slavery, apart from superficially stating that ‘it is described as the modern form of the old worldwide slave trade’.187 Moreover, Article 3 of 180 Bernadette Faure v Australia (2005) 1036/2001. The Committee considered that while the ICCPR does not spell out in detail the precise meaning of the terms ‘forced’ or ‘compulsory labour’, drawing on the relevant ILO instruments, forced or compulsory labour covers ‘particularly coercive, exploitative or egregious conditions’, though it may also entail the threat of punishment as a sanction if the labour directed is not performed. In short, the exercise of labour, not forming part of normal civil obligations, which is exceptional in nature, having a punitive purpose or effect and degrading or dehumanising to the individual will constitute forced or compulsory labour. 181 Allain (n 109) 12. 182 Economic and Social Council, Resolution 475 (XV), 27 April 1953. 183 Gallagher, The International Law of Human Trafficking (n 67) 165. ‘Slavery’ appears to have been viewed as the de facto (condition) as well de jure (status) of the person in question. It can occur even where there is no legal right of ownership over the victim, provided of course that the attributes which would normally be associated with the right of legal ownership are exercisable and exercised. These include: (i) the individual being made an object of purchase; (ii) the master may use the individual, in particular, his or her capacity to work in an absolute manner; (iii) the products of the individual’s labour become the property of the master without any compensation commensurate to the value of the labour; (iv) the ownership of the individual can be transferred to another person; (v) the status/ condition of the individual is permanent in the sense that it cannot be terminated at the will of the individual; and (vi) the status/condition is inherited/inheritable. 184 Siliadin v France (2005) ECHR 545. 185 ibid. 186 Rantsev v Cyprus and Russia IHRL 3632 (ECHR 2010). 187 ibid [282].

The Human Rights Approach  71 the Palermo Protocol does not specifically equate human trafficking with slavery, servitude or forced labour, although it recognises that certain acts (for example, recruitment or transportation) committed by certain means (for example, force or coercion) for the purpose of slavery, servitude or forced labour could be construed as trafficking in persons. Notwithstanding the foregoing interpretive difficulties, however, the Human Rights Committee has, over the last decade, repeatedly requested that States Parties include express data and information on trafficking in persons in their periodic reports. Interestingly, the Human Rights Committee has not engaged in any systematic analysis into why trafficking in persons is covered by Article 8 ICCPR, but given the now large and ever-expanding corpus of Concluding Observations that address trafficking within the context of Article 8, it would appear that States Parties are viewed by the Human Rights Committee to be under certain positive obligations, pursuant to Article 2 of the ICCPR. Couched in the obligation to ‘respect and to ensure’ the rights contained in the Covenant, including that of Article 8, the Human Rights Committee, in General Comment No 31, has recognised that States Parties ‘may not invoke the provisions of [their] internal law as justification for [their] failure to perform [the] treaty’.188 As intimated above, in its Concluding Observations in response to States Parties’ periodic reports, the Human Rights Committee appears to have accepted that States Parties are under myriad duties in accordance with Article 8 ICCPR. Among other things, the Committee has expressly indicated that States Parties are obliged to conduct thorough investigations into allegations of trafficking, and ­vigorously prosecute all incidents of trafficking,189 including internal trafficking.190 As a necessary corollary to investigations, the Committee has also expressed the view that effective victim identification, particularly through the ­operationalisation of a robust referral mechanism, is apposite191 in fulfilment of the positive obligation imposed by Article 2 in conjunction with Article 8. Additionally, the C ­ ommittee has pointed to the need for States Parties to guarantee victims’ access to adequate ­medical, social and legal assistance, including adequate accommodation ­facilities.192

188 Human Rights Committee, ‘General Comment No 31, Nature of the General Legal Obligation Imposed on States Parties to the Covenant’ (CCPR/C/21/Rev.1/Add.13, 2004) [4]. 189 Human Rights Committee, ‘Concluding observations on the seventh periodic report of Poland’ (CCPR/C/POL/CO/7, 23 November 2016) [28.d]. 190 Human Rights Committee, ‘Concluding observations on the seventh periodic report of Colombia’ (CCPR/C/COL/CO/7, 17 November 2016) [27]. 191 Human Rights Committee, ‘Concluding observations on the second periodic report of Thailand’ (CCPR/C/THA/CO/2, 25 April 2017) [24.b]; Human Rights Committee, ‘Concluding observations on the sixth periodic report of Costa Rica’ (CCPR/C/CRI/CO/6, 21 April 2016) [26]. 192 Human Rights Committee, ‘Concluding observations on the fifth periodic report of Romania’ (CCPR/C/ROU/CO/5, 11 December 2017) [38]; Human Rights Committee, ‘Concluding observations on the sixth periodic report of the Dominican Republic’ (CCPR/C/DOM/CO/6, 27 November 2017) [20].

72  International Dimensions In keeping with its special focus on the rights of victims, the ­Committee has also requested that States Parties provide compensation or ­restitution to victims of trafficking,193 and that effective measures be put in place to ensure that these victims are not prosecuted for offences which they have committed as a result of having been trafficked.194 Preventative measures have also been within the contemplation of the Committee, which has repeatedly indicated that awareness-raising,195 training and other forms of capacity building, adequate resource ­provision,196 and comprehensive data collection and analysis are indispensable in combating the phenomenon of human trafficking.197

ii.  The International Covenant on Economic, Social and Cultural Rights (ICESCR) The ICESCR was adopted by the UN General Assembly in 1966198 and, in tandem with the ICCPR, forms an integral part of the ‘International Bill of Human Rights’.199 The implementation of the Covenant is monitored by the Committee on Economic, Social and Cultural Rights (CESCR).200 Substantively, the Covenant is founded upon a number of important tenets, including the principles of non-discrimination,201 non-derogation with regard to certain rights,202 positive obligations to respect, protect and fulfil

193 Compensation/restitution – Human Rights Committee, ‘Concluding observations on the sixth periodic report of Hungary’ (CCPR/C/HUN/CO/6, 9 May 2018) [28]. 194 Human Rights Committee, ‘Concluding observations on the fifth periodic report of Iraq’ (CCPR/C/ IRQ/CO/5, 3 December 2015) [32]. 195 Human Rights Committee, ‘Concluding observations on the second periodic report of Greece’ (CCPR/C/GRC/CO/2, 3 December 2015) [22]. 196 Training/capacity building/resource provision – Human Rights Committee, ‘Concluding observations on the fourth periodic report of Jamaica’ (CCPR/C/JAM/CO/4, 22 November 2016) [38]. 197 Human Rights Committee, ‘Concluding observations on the sixth periodic report of Costa Rica’ (CCPR/C/CRI/CO/6, 21 April 2016) [26]. 198 GA Resolution 200A (XXI), 21 UN GAOR Supp (No 16) at 49, UN Doc A/6316 (1966); 993 UNTS 3; 6 ILM 368 (1967). 199 F Coomans, ‘Application of the International Covenant on Economic, Social and Cultural rights in the Framework of International Organisations’ (2007) 11 Max Planck Yearbook of United Nations Law 359, 361. 200 United Nations Economic and Social Council Resolution 1985/17 of 28 May 1985. 201 International Covenant on Economic, Social and Cultural Rights Art 2(2). Non-discrimination requires States Parties to substantively ensure equality between all individuals in the allocation and distribution of Covenant rights. This principle renders as discriminatory any ‘law or policy that maintains or aggravates the disadvantage of a persistently disadvantaged group’, and unlike other economic and social rights, must be afforded immediate effect, even if this means taking temporary special measures. 202 Committee on Economic, Social and Cultural Rights, ‘General Comment No 14’ (E/C.12/2000/4, 11 August 2000) [47]. This principle applies to, for example, the ‘highest attainable standard of health’, non-compliance with which cannot, under any circumstances whatsoever, be justified.

The Human Rights Approach  73 ­enumerated rights,203 the progressive realisation of certain rights204 and minimum core obligations.205 Although trafficking in persons is not explicitly addressed in the ICESCR, scholars maintain that the Covenant is nonetheless applicable because a number of economic, social and cultural rights of both potential and actual victims are implicated before, during and after the trafficking ordeal,206 including the right to work,207 the right to just and favourable working conditions,208 the right to an adequate standard of living,209 and the right to education.210 In practice, however, the CESCR has not articulated any defensible explanation of the relationship between trafficking in persons and the Covenant,211 although in a number of Concluding Observations, reference has been made to Article 10 of the ICESCR which, in part, requires that States Parties ‘recognise’ the ‘widest possible protection’ for the family and the need for states to take ‘special measures of protection and assistance’ for children and young people who are subject to economic and social exploitation, including harmful work conditions. In its Concluding Observations, the CESCR has touched on various aspects of anti-trafficking law and practice, though at times in less than forceful language. Among other things, the CESCR has called upon States Parties to address the root

203 In essence, the obligation to respect rights obliges the state not to interfere directly or indirectly with an individual’s pursuit of their economic and social rights; the obligation to protect, which arises under Art 3 of the ICESCR, requires the adoption of constitutional and legislative measures to ensure that economic and social rights are not violated (CESCR, General Comment No 16 (E/C.12/2005/4, 2005) [19]; and the obligation to fulfil entails the adoption of appropriate legislative, administrative, budgetary, judicial and other measures towards the full realisation of such rights; see also, M Craven, ‘The Violence of Dispossession: Extra-Territoriality and Economic, Social, and Cultural Rights’ in M Baderin and R McCorquodale (eds), Economic, Social and Cultural Rights in Action (Oxford ­University Press, 2007) 77. 204 Committee on Economic, Social and Cultural Rights, General Comment No 3: The Nature of States Parties’ Obligations (E/1991/23, 14 December 1990). This requires that, in accordance with Art 2, the state moves expeditiously and effectively as possible towards the maximum of available resources for the progressive achievement of the economic and social rights. 205 ibid CESCR, General Comment No 3 [9]. These obligations serve to ensure that states satisfy at the very least, minimum essential levels of each of the rights. These core obligations exist with respect to the right to an adequate standard of health (CESCR, General Comment No 14 (2000)); the right to food (CESCR, General Comment No 12); the right to clean water (CESCR, General Comment No 15); the right to adequate housing (General Comment No 4); and the right to work (CESCR, General Comment No 18). 206 Jordan, ‘Human Rights or Wrongs? (n 83) 30. 207 Art 6 ICESCR; forced labour, for example, is necessarily antithetical to the realisation of this right. The right to work requires that individuals freely choose or accept work. 208 Art 7 ICESCR. This requires equal remuneration for equal value, safe and healthy working conditions, and reasonable limitations on working hours. 209 Art 11 ICESCR. This includes the provision of adequate food, clothing and housing, and continuous improvement of living conditions. 210 Arts 13–14 ICESCR. This includes free and compulsory primary education and equal access to all levels of educational institution. 211 J Chuang, ‘Beyond a Snapshot: Preventing Human Trafficking in the Global Economy’ (2006) 13 Indiana Journal of Global Legal Studies 137.

74  International Dimensions causes of human trafficking, including poverty, unemployment, discrimination and political instability.212 The Committee has also taken the opportunity to ask that States Parties allocate requisite resources to tackle all aspects of trafficking in persons, as well as increase exposure to training, improve data collection,213 and progressively sensitise both the population and competent national authorities as to the evolving dynamics of human trafficking.214 With regard to the penalisation of perpetrators, the Committee has called upon States Parties to conduct effective investigations into allegations of human trafficking, and prosecute those who are found to have engaged therein.215 On a related issue, States Parties have also been encouraged to take all necessary measures to eradicate the complicity of law enforcement officials in trafficking-related offences.216 Upon the investigation of allegations into human trafficking, the Committee has further recommended that victims be correctly identified at the earliest possible opportunity,217 and that they be afforded assistance, recovery and reintegration programmes,218 and compensation.219 Finally, the Committee has expressly mandated that States Parties take all necessary measures to guarantee the non-punishment of trafficked victims for offences, such as prostitution, which they engage in as a result of having been trafficked.220 a.  Challenges to the Protection of Economic, Social and Cultural Rights Even accepting the applicability of the Covenant to the phenomenon of human trafficking in the absence of an explicit provision to this effect, a number of practical challenges nonetheless stymie the use of the Covenant as a platform for guaranteeing compliance by States Parties with the anti-trafficking norms which the Committee often so elegantly enunciates. First, there are serious flaws in the existing methodology used to promote and deliver the economic and social rights 212 Committee on Economic, Social and Cultural Rights, ‘Concluding observations on the combined fifth and sixth periodic reports of the Philippines’ (E/C.12/PHL/CO/5-6, 26 October 2016) [42.a]. 213 Committee on Economic, Social and Cultural Rights, ‘Concluding observations on the second periodic report of Lithuania’ (E/C.12/LTU/CO/2, 24 June 2014) [16]. 214 Committee on Economic, Social and Cultural Rights, ‘Concluding observations on the third periodic report of Nepal’ (E/C.12/NPL/CO/3, 12 December 2014) [22.b]. 215 Committee on Economic, ‘Social and Cultural Rights Concluding observations on the initial report of Montenegro’ (E/C.12/MNE/CO/1, 15 December 2014) [18.a]. 216 Committee on Economic, Social and Cultural Rights, ‘Concluding observations on the combined fifth and sixth periodic reports of the Philippines’ (E/C.12/PHL/CO/5–6, 26 October 2016) [42.d]; Committee on Economic, Social and Cultural Rights, ‘Concluding observations on the second periodic report of Serbia’ (E/C.12/SRB/CO/2, 10 July 2014) [25/b]. 217 Committee on Economic, Social and Cultural Rights, ‘Concluding observations on the combined initial and second periodic reports of Thailand’ (E/C.12/THA/CO/1–2, 19 June 2015) [26]. 218 Committee on Economic, Social and Cultural Rights, ‘Concluding observations on the third ­periodic report of the Republic of Moldova’ (E/C.12/MDA/CO/3, 19 October 2017) [47]. 219 Committee on Economic, Social and Cultural Rights, ‘Concluding observations on the initial report of Montenegro’ (E/C.12/MNE/CO/1, 15 December 2014). 220 Committee on Economic, Social and Cultural Rights, ‘Concluding observations on the second periodic report of Bosnia and Herzegovina’ (E/C.12/BIH/CO/2, 16 December 2013) [22].

The Human Rights Approach  75 of both potential and actual trafficked persons.221 Simply referencing Article 10 as the legal basis for issuing recommendations to States Parties is wholly insufficient, as we are still left unclear as to why exactly human trafficking implicates this provision rather than other provisions of the Covenant and, even further, there is still a lack of clarity about the normative content of the provision itself when applied to human trafficking. Additionally, because the Committee adopts a feeble approach to its recommendations to States Parties, it has failed to deconstruct some of the more difficult operational questions which confront states that have been asked to implement its recommendations. For example, why should more of a state’s budget be spent on delivering assistance, recovery and reintegration programmes to trafficked victims when there are competing demands for the building of roads, bridges and other infrastructure projects, especially in post-conflict, transitional, or post-natural disaster societies? Should a victim of trafficking whose country of residence is regarded as developed benefit from assistance, recovery and reintegration programmes provided by competent authorities in a transitional economy where the exploitation might have taken place? How will a recalcitrant state be held accountable for failure to deliver social, economic or cultural rights to trafficked victims, even where there now exists a new communications procedure under the ICESCR Optional Protocol? These considerations were expressed in the England and Wales Court of Appeal case of A, B v Criminal Injuries Compensation Authority, Secretary of State for Justice,222 where their Lordships noted that: Inevitably, there is and must be sympathy for those trafficked. But that sympathy is at best an uncertain guide to the determination of these proceedings because combating trafficking and assisting those trafficked are not the only matters to be taken into account. The challenge before us also gives rise to issues going to the allocation of scarce taxpayer funding by way of a gesture of public solidarity for victims of crime.223

From an Analytical Eclectic perspective, it is submitted that even where there are methodologies available for dealing with the quagmire caused by the fraught delivery of competing economic and social rights by states, effectively assessing governments’ compliance with their obligations under the ICESCR, particularly those rights which are subject to progressive realisation, remains highly problematic. The existing methodologies range from those which use indicators and benchmarks against which governmental interventions are, over a period of time, assessed,224 to those involving a ‘scoping exercise’ to determine whether benchmarks set by governments are sufficiently ambitious, to those which identify

221 K Roth, ‘Defending Economic, Social and Cultural Rights: Practical Issues Faced by an ­International Human Rights Organization’ (2004) 26 Human Rights Quarterly 63, 65. 222 A, B v Criminal Injuries Compensation Authority, Secretary of State for Justice [2018] EWCA Civ 1534. 223 ibid [5]. 224 P Hunt, ‘State Obligations, Indicators, Benchmarks and the Right to Education’ (1999) 4 Human Rights Law and Practice 109.

76  International Dimensions violations of the ICESCR that would signify negative compliance,225 to those identifying clear violations of the ICESCR.226 In practice, these methodologies offer very little guidance on how to judge whether benchmarks set by governments are sufficiently challenging, whether governments are in a position to maintain expenditure in certain sectors despite pitiable fiscal conditions, or whether, and how much, resources should be earmarked to address the psychological and emotional needs of the (migrant) trafficked victim.227

iii.  The International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) The ICERD defines and prohibits racial discrimination228 and requires that States Parties implement laws and policies to eliminate all forms of racial ­discrimination.229 More specifically, the Covenant places an obligation on States Parties not to sponsor, defend, or support racial discrimination,230 to take e­ ffective measures to review governmental, national and local policies to determine whether they comport with the prohibition against racial discrimination,231 and to prohibit racial discrimination by any person, group or organisation in their territory.232 The implementation of the Convention is overseen by the Committee on the ­Elimination of Racial Discrimination (CERD). Although there is no express mention of ‘trafficking in persons’ in the ICERD, from as far back as September 2001 when the World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance was held in Durban, South Africa, a link was established between trafficking in persons, especially of women and children, and racism, racial discrimination, xenophobia and related intolerance.233 Since 2001, the CERD has repeatedly, in the context of its Concluding Observations, referenced Articles 2, 5 and 6 of the ICERD in its discussion about the anti-trafficking obligations owed by States Parties under the ICERD. While the CERD has been slow to articulate the precise normative content of

225 A Chapman, ‘A “Violations Approach” for Monitoring the International Covenant on Economic, Social and Cultural Rights’ (1996) 18 Human Rights Quarterly 23. 226 Roth (n 221). 227 M Foresti, ‘Assessing Compliance: The Challenges for Economic and Social Rights’ (2009) 1 J­ ournal of Human Rights Practice 469. 228 Art 1 ICERD. ‘Racial discrimination’ means ‘any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life’. 229 ibid Art 2(1)(a). 230 ibid Art 2(1)(b). 231 ibid Art 2(1)(c). 232 ibid Art 2(1)(d). 233 UN General Assembly, ‘Report of the World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance’ (UN Doc A/CONF.189/12, 2001) [30].

The Human Rights Approach  77 these provisions as applied to situations of human trafficking, it would appear that Article 2 applies to the extent that it requires States Parties to prohibit racial ­discrimination against potential and actual trafficked victims by both state and non-state actors.234 Similarly, Article 5 applies to the extent that it requires that States Parties put in place all necessary measures to protect persons against violence or bodily harm,235 while Article 6 obliges States Parties to provide effective remedies to repair the harm caused by racism and racial discrimination. Naturally, whether before or after the trafficking experience, a number of other rights articulated by the ICERD are implicated in human trafficking, including the right to freedom of movement, the rights to work, to free choice of employment, to just and favourable conditions of work, the right to housing, the rights to public health, medical care, social security and social services, and the right to education and training. In its Concluding Observations to date, the CERD has pointed to a number of areas in relation to which States Parties are obliged to take prompt and effective action. Among the main recommendations issued by the CERD is the requirement for States Parties to combat racism, particularly where it is a root cause fuelling the trafficking of certain groups of vulnerable people.236 Furthermore, the CERD has called on States Parties to investigate, prosecute and sanction perpetrators of trafficking in persons,237 particularly where their criminal activities are directed at certain ethnic groups, such as the Dalits and other marginalised castes in Nepal.238 The CERD has also encouraged states to take all necessary preventative measures to tackle trafficking in persons, including awareness-raising campaigns, cooperation with neighbouring countries239 and the gathering of official data on trends to inform policy responses.240 In so far as victim protection is concerned, the CERD has also been quite forceful in advocating for more effective access by victims to legal and psychological assistance and social services, including housing, rehabilitation and reintegration.241

234 Art 2(d) ICERD. 235 ibid Art 5(b). 236 Committee on the Elimination of Racial Discrimination, ‘Concluding observations on the first to third periodic reports of Thailand’ (CERD/C/THA/CO/1–3, 15 November 2012) [24]. 237 Committee on the Elimination of Racial Discrimination, ‘Concluding observations on the combined twentieth to twenty-third periodic reports of Belarus’ (CERD/C/BLR/CO/20–23, 21 December 2017) [20]. 238 Committee on the Elimination of Racial Discrimination, ‘Concluding observations on the combined seventeenth to twenty-third periodic reports of Nepal’ (CERD/C/NPL/CO/17–23, 11 May 2018) [27]. 239 Committee on the Elimination of Racial Discrimination, ‘Concluding observations on Belize’ (CERD/C/BLZ/CO/1, 3 May 2013) [12]. 240 Committee on the Elimination of Racial Discrimination, ‘Concluding observations on the thirteenth and fourteenth periodic reports of the Dominican Republic’ (11 February–1 March 2012)’ (CERD/C/DOM/CO/13–14, 19 April 2013) [24]. 241 Committee on the Elimination of Racial Discrimination, ‘Concluding observations on the combined twentieth and twenty-first periodic reports of Algeria’ (CERD/C/DZA/CO/20–21, 21 December 2017) [23.c].

78  International Dimensions Despite its commendable attempt in recent years to publicly highlight the relationship between racism, racial discrimination and trafficking in persons, it is, however, arguable that the language used by the CERD in its Concluding Observations is often vague in its content and unpersuasive in its pitch, implicitly suggesting that the treatment of trafficked victims is merely a matter of subsidiary consideration. Another of the main concerns associated with the Covenant lies in the fact that its operationalisation in the majority of developing countries remains less effective than in more developed jurisdictions. A related observation is that in a number of reports, the CERD has consistently failed to flag the uneasy relationship between racial discrimination and trafficking in the context of countries like Albania, Romania and Hungary. The well-acknowledged ‘othering’ of Roma communities in these countries by competent authorities in the anti-trafficking field has resulted in the poor identification of trafficked Roma people; the criminalisation of these individuals for criminal activities which they were forced to commit as a result of the trafficking experience, such as forced begging; and the failure to provide, in many instances, for the material and physical needs of victims from these communities, as repeatedly pointed out by the Council of Europe’s Group of Experts on Action against Trafficking in Human Beings (GRETA).242 More specifically, GRETA, but unfortunately not the CERD, has pointed to the fact that there is evidence that Roma, in particular Roma women and children, are highly vulnerable to trafficking due to structural forms of ethnic and gender discrimination, poverty and social exclusion which result in low educational achievement, high levels of unemployment, domestic violence and difficult living conditions that affect predominantly women and children.243

GRETA has accordingly called upon States Parties, including Albania, Bulgaria, Croatia, Montenegro, the Republic of Moldova, Romania and the Slovak Republic, to ‘intensify their efforts to prevent trafficking in children, including by paying special attention to Roma children, their inclusion in education and the prevention of child, early and forced marriages’.244

iv.  The Convention on the Rights of the Child (CRC) The CRC245 is a comprehensive instrument that represents the international community’s commitment to affording persons under the age of 18 years246 a full range of civil, political, social, cultural and economic rights. The Convention’s

242 Group of Experts on Action against Trafficking in Human Beings, ‘6th General Report on GRETA’S Activities’ (Council of Europe, March 2017) 42. 243 ibid. 244 ibid. 245 Convention on the Rights of the Child (n 160). 246 ibid Art 1.

The Human Rights Approach  79 preamble affirms this commitment by noting that children should be brought up in the spirit of peace, dignity, tolerance, freedom, equality and solidarity.247 The Convention is supplemented by two Optional Protocols: the Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography248 and the Optional Protocol on the Involvement of Children in Armed Conflict.249 The Committee on the Rights of the Child monitors compliance with, and implementation of, both the Convention and its supplementary Protocols.250 In the context of the international approach to trafficking in children, several provisions of the CRC are of direct relevance. Article 32 of the CRC, for example, calls upon States Parties to protect against child labour, in circumstances where such could be regarded as ‘dangerous’ or might in some way harm the child’s health or education. Article 34 further calls upon States Parties to protect children against all forms of sexual exploitation and abuse, while Article 35 specifically requires that States Parties ‘take all measures possible to make sure that children are not trafficked’.251 From 1996, the Committee on the Rights of the Child252 has specifically and repeatedly called upon States Parties to strengthen awareness-raising and education programmes, as well as training and community-based programmes aimed at preventing and effectively responding to cases of trafficking of children, with a particular focus on certain vulnerable communities, such as Roma, Ashkali and Egyptian children, and asylum-seeking and refugee children.253 Additionally, the Committee has specifically requested that States Parties step up investigations into, and the prosecutions of, trafficking-related offences, in particular, in respect of officials found to be complicit in human trafficking.254 In the same vein, States Parties have been repeatedly called upon to further strengthen regional and international cooperation to combat trafficking in children, including through the conclusion of bilateral and multilateral agreements.255 In recent years, the Committee has also

247 ibid Preamble. 248 General Assembly resolution (A/RES/54/263 of 25 May 2000, entered into force on 18 January 2002). 249 ibid). 250 Arts 43 and 44 of the Convention on the Rights of the Child (n 160). 251 This provision in the Convention is augmented by the Optional Protocol on the Sale of Children, Child Prostitution and Child Pornography. 252 Committee on the Rights of the Child, ‘General Guidelines for Periodic Reports’ (UN Doc CRC/C/58, 1996). 253 Committee on the Rights of the Child, ‘Concluding observations on the combined second and third periodic reports of Montenegro’ (CRC/C/MNE/CO/2–3, 22 June 2018) [54]; Committee on the Rights of the Child, ‘Concluding Observations on the Second Periodic Report of Barbados’ (CRC/C/ BRB/CO/2, 3 March 2017) [59.b]. 254 Committee on the Rights of the Child, ‘Concluding observations on the Combined Fourth and Fifth Periodic Report of the Republic of Moldova’ (CRC/C/MDA/CO/4–5, 20 October 2017) [44.c]. 255 Committee on the Rights of the Child, ‘Concluding observations on the Combined Second to Fourth Periodic Reports of Antigua and Barbuda’ (CRC/C/ATG/CO/2–4, 30 June 2017) [53.e].

80  International Dimensions repeatedly called upon states to enhance their approach to the identification of child victims of trafficking,256 and to increase the resources allocated to support the physical and psychological recovery of these victims,257 including through the provision of rehabilitation services.258 Interestingly, the Committee has strongly recommended that States Parties apply the principle of non-refoulement in respect of trafficked children who are required to return to their countries of origin where they may face a substantial risk of persecution or of being re-trafficked.259 a.  Key Points of Contention Despite the relative success of the CRC in terms of raising awareness surrounding the extent to which children’s rights are violated before, during and after the trafficking ordeal, several weaknesses inherent in the CRC continue to adversely affect both its effective implementation and enforcement in practice. The primary of these weaknesses relates to the fact that an increasing number of states have not submitted their period reports highlighting their efforts to combat child trafficking on time or at all.260 Without these reports being submitted on time, the Committee has not, and cannot, adequately assess the extent of the trafficking situation on the ground in some countries. In the same vein, even where these reports are eventually submitted, they are likely to be of little practical utility since the phenomenon of human trafficking is rapidly changing and becoming increasingly sophisticated, coupled with the fact that governments may very well claim that the observations issued by the Committee bear no relation to the current situation in their respective states.261 Apart from the fact that the Committee’s recommendations on trafficking in children are non-binding, and largely dependent upon the responsiveness of States Parties and international pressure – the mobilisation of shame – which is quite ineffective in the majority of cases,262 the CRC and its concomitant Optional Protocols are also inept at challenging existing attitudes, customs and practices which continue to engender inequality between boys and girls, and subsequently

256 Committee on the Rights of the Child, ‘Concluding observations on the Combined Fifth and Sixth Periodic Reports of Spain’ (CRC/C/ESP/CO/5–6, 5 March 2018) [46.a]; Committee on the Rights of the Child, ‘Concluding Observations on the Combined Second and third Periodic Reports of Serbia’ (CRC/C/SRB/CO/2–3, 7 March 2017) [63.a]. 257 Committee on the Rights of the Child, ‘Concluding Observations on the Combined Fifth and Sixth Periodic Reports of Sri Lanka’ (CRC/C/LKA/CO/5–6, 2 March 2018) [44.d]. 258 Committee on the Rights of the Child, ‘Concluding observations on the fifth periodic report of Romania’ (CRC/C/ROU/CO/5, 13 July 2017) [43.a]. 259 Committee on the Rights of the Child, ‘Concluding observations on the combined second and third periodic reports of Saint Vincent and the Grenadines’ (CRC/C/VCT/CO/2–3, 13 March 2017) [63.c]. 260 O Ruppel (ed), Children’s Rights in Namibia (Konrad Adenauer Foundation, 2009) 60–62. 261 Cullen (n 80) 177. 262 C Tomás, ‘Childhood and Rights: Reflections on the UN Convention on the Rights of the (2008) 2(2) Childhoods Today 9, 11.

The Human Rights Approach  81 men and women, in many societies across the globe. Indeed, in some regions, although the Convention may have been formally ratified, it continues to be socially acceptable for men to purchase sex from children, for families to use children as domestic servants, or for children to work long hours on agricultural lands. Further, the culturally engrained perception that children should ‘be seen but not heard’ and the materialistic view that children are merely ‘future investments’ continue to impede the effective operationalisation of the Convention in so far as child trafficking is concerned.263 Additionally, despite the Committee’s growing corpus of jurisprudence in the field of child trafficking, countries like the United States continue to display alarming exceptionalism and even contempt for the work of the Committee by, for example, consistently returning trafficked children to countries like Mexico without giving due consideration for their safety.264

v.  The Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) Also known as the ‘International Bill of Women’s Rights’, CEDAW represents an important milestone in the advancement of women’s rights,265 as its ultimate goal is to end discrimination faced by women in their pursuit of civil, political, economic and cultural rights.266 The Convention, which calls upon States Parties to guarantee women’s exercise and enjoyment of human rights and fundamental freedoms on an equal basis with men,267 is supplemented by an Optional Protocol,268 which affords individual as well as groups of women the opportunity to make complaints before the Committee on the Elimination of Discrimination against Women about violations of the Convention.269 Article 6 of CEDAW places a positive obligation on States Parties to ‘take all appropriate measures, including legislation, to suppress all forms of traffic in

263 A Ramesh, ‘UN Convention on Rights of the Child: Inherent Weaknesses’ (2001) 36 (22) Economic and Political Weekly 1948, 1950. 264 Committee on the Rights of the Child, ‘Concluding Observations on the Combined third and fourth Reports Submitted by the United States of America under Article 12(1) of the Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography’ (CRC/C/OPSC/USA/CO/3–4, 12 July 2017) [36]. 265 FG Isa, ‘The Optional Protocol for the Convention on the Elimination of All Forms of Discrimination Against Women: Strengthening the Protection Mechanisms of Women’s Human Rights’ (2003) 20 Arizona Journal of International and Comparative Law 291. 266 Discrimination is defined, in Art 1, as ‘any distinction, exclusion, or restriction made on the basis of sex’, which impairs the enjoyment by women of ‘human rights and fundamental freedoms in political, economic, social, cultural, civil or any other field’. Unintentional as well as intentional discrimination is prohibited; private as well as public actions are regulated. 267 H Gilchrist, ‘The Optional Protocol to the Women’s Convention: An Argument for Ratification’ (2000) 39 Columbia Journal of Transnational Law 763. 268 K-L Tang, ‘The Leadership Role of International Law in Enforcing Women’s Rights: The Optional Protocol to the Women’s Convention’ (2000) 8(3) Gender & Development 65. 269 This is an expert body, established in 1982, and is composed of 23 experts on women’s issues from around the world.

82  International Dimensions women’. Although this provision has been described by some scholars as ‘extremely vague and indeterminate’270 because it gives no guidance on what exactly states must do in practice so as to be deemed to be taking ‘appropriate measures’,271 the Committee has repeatedly, in the context of its Concluding Observations, provided some insights into the normative content of Article 6. More specifically, the Committee has interpreted the obligation to ‘suppress’ trafficking as having prevention, prosecution and protection dimensions. At the prevention end of the spectrum, the Committee has repeatedly called upon States Parties to address the root causes of trafficking, including poverty, unemployment and discrimination272 and, in the context of its report on Bangladesh, the stigmatisation, forced evictions and frequent police harassment which continue to adversely affect Rohingya victims of trafficking.273 Other preventative measures frequently recommended by the Committee include bilateral, regional and international cooperation to prevent trafficking, including through information exchange and harmonisation of procedures to prosecute traffickers,274 as well as the intensification of awareness-raising efforts and increased allocation of human, technical and financial resources to bolster anti-trafficking efforts.275 These efforts, according to the Committee, are to be coupled with the training of judges, prosecutors, police officers and immigration officers on the ‘strict application of criminal law provisions to prosecute traffickers, as well as on gender-sensitive ways to approach victims of trafficking’.276 From a prosecutorial perspective, the Committee has specifically indicated its desire for States Parties to investigate and prosecute trafficking-related offences and, in particular, official complicity and wider incidents of corruption.277 Meanwhile, in so far as the protection of trafficked victims is concerned, the Committee has repeatedly recognised that trafficking in women is a form of violence against women,278 and has accordingly called on States Parties to implement an effective

270 Askola (n 83) 146. 271 ibid (arguing that the obligation is ‘rooted in cultural and social notions of female inferiority’.). 272 Committee on the Elimination of Discrimination against Women, ‘Concluding observations on the eighth periodic report of Kenya’ (CEDAW/C/KEN/CO/8, 22 November 2017) [27.a]. 273 Committee on the Elimination of Discrimination against Women, ‘Concluding observations on the eighth periodic report of Bangladesh’ (CEDAW/C/BGD/CO/8, 25 November 2016) [20]. 274 Committee on the Elimination of Discrimination against Women, ‘Concluding observations on the combined fifth to eighth periodic reports of Barbados’ (CEDAW/C/BRB/CO/5–8, 24 July 2017) [26.d]. 275 Committee on the Elimination of Discrimination against Women, ‘Concluding observations on the combined seventh and eighth periodic reports of Nigeria’ (CEDAW/C/NGA/CO/7–8, 24 July 2017) [28b – d]. 276 Committee on the Elimination of Discrimination against Women, ‘Concluding observations on the combined fifth and sixth periodic reports of Armenia’ (CEDAW/C/ARM/CO/5–6, 25 November 2016) [19.c]. 277 Committee on the Elimination of Discrimination against Women, ‘Concluding observations on the combined sixth and seventh periodic reports of Thailand’ (CEDAW/C/THA/CO/6–7, 24 July 2017) [24.c]. 278 Committee on the Elimination of Discrimination against Women, ‘General Recommendation No 19’ (UN Doc HRI/GEN/1/Rev.8, 302, 8 May 2006).

The Human Rights Approach  83 system of early identification of trafficked victims,279 as well as ensure adequate access to residence permits, medical and psychological care, rehabilitation and reintegration support,280 access to compensation281 and, quite fundamentally, the elimination of practices leading to the criminalisation of trafficked victims for offences they are compelled to commit.282 Notwithstanding the relative success of the Committee to date in ­highlighting the seeming umbilical connection between vulnerable women and girls and human trafficking, some scholars maintain that the Committee has over-­emphasised the powerlessness of trafficked women by ‘gloss[ing] over elements of agency which women exhibit in their own trafficking’283 and by supporting a ‘false ­dichotomization between the deceived, “innocent victim” and apparently “consented”’,284 a theme which is further explored later in the chapter. Another critical issue which has arisen in recent years is how successful has CEDAW been in achieving the indeterminate goal of ‘suppress[ing] the traffic in women and girls’. While there is no clear answer to this question or, indeed, to assessing the ubiquitous notion of ‘success’,285 the argument has been advanced that the international demand for trafficked women and girls seemingly continues to spiral out of control,286 a reality that is fuelled by both the increasing desire for commercial sex as well as for cheap goods and services.287 Indeed, in reviewing the work of the Committee charged with monitoring the implementation of CEDAW, it cannot be argued with any degree of authority that it has

279 Committee on the Elimination of Discrimination against Women, ‘Concluding observations on the sixth periodic report of Israel’ (CEDAW/C/ISR/CO/6, 17 November 2017) [34.a]; Committee on the Elimination of Discrimination against Women, ‘Concluding observations on the combined seventh and eighth periodic reports of Romania’ (CEDAW/C/ROU/CO/7–8, 24 July 2017) [21.d]. 280 Committee on the Elimination of Discrimination against Women, ‘Concluding observations on the combined fourth to sixth periodic reports of Suriname’ (CEDAW/C/SUR/CO/4–6, 14 March 2018) [29.b]. 281 Committee on the Elimination of Discrimination against Women, ‘Concluding observations on the seventh periodic report of Italy’ (CEDAW/C/ITA/CO/7, 24 July 2017) [30.h]. 282 Committee on the Elimination of Discrimination against Women, ‘Concluding observations on the combined fifth and sixth periodic reports of Armenia’ (CEDAW/C/ARM/CO/5–6, 25 November 2016) [18.e]. 283 Fredette (n 65) 111. 284 Ray (n 72) 914. 285 The effectiveness of CEDAW has been rarely studied, particularly in quantitative studies, despite its prominence among international human rights treaties. Notable exceptions include ‘The First CEDAW Impact Study’ (Centre for Feminist Research and the International Women’s Right Project, Toronto, 2000) (documenting country cases where the participation in the Convention has led to progress in women’s rights; for instance, Turkey); see also A Boer, ‘Evaluating CEDAW’s Impact on Women’s Empowerment’ (International Studies Association Conference, San Francisco, 26–29 March 2008); M Gray, M Kittilson and W Sandholtz, ‘Women and Globalization: A Study of Quality of Life and Status Indicators in 180 Nations, 1975–2000’ (Annual Meeting of the American Political Science ­Association, 2–5 September 2004); B Simmons, ‘Women’s Equality: Education, Work and ­Reproduction in ­International Law Compliance and Human Rights’ (Annual Meeting of the International Studies Association, Montreal, 17– 21 March 2004). 286 Askola (n 83). 287 Todres, ‘Widening our Lens’ (n 90) 63.

84  International Dimensions effectively persuaded some States Parties, particularly in some developing countries, to address the myriad factors which underlie the demand for women in the trafficking industry,288 such as the media’s seemingly favourable depiction of sexual violence. Indeed, while the ‘violence against women’ rhetoric has engaged States Parties in constructive dialogue, it remains the case that there is still, on the part of the Committee, little practical understanding289 of whether there is specifically a demand for trafficked women and girls,290 the age at which men first initiate sexual violence against these women and girls,291 how often these men so engage, as well as their motives for doing so.292 It is submitted that without fully understanding the answers to these vexing questions, any attempt at addressing the demand side of trafficking in women and girls will largely be unsuccessful. Furthermore, the CEDAW Committee’s gender-based rhetoric does not, for the most part, appear to have effectively persuaded some States Parties to deal more efficaciously with the increasing profitability of the trafficking in women and girls,293 nor the increasing links between trafficking and other forms of

288 N Hotaling, and L Levitas-Martin, ‘Increased Demand Resulting in the Flourishing Recruitment and Trafficking of Women and Girls: Related Child Sexual Abuse and Violence against Women’ (2002) 13 Hastings Women’s Law Journal 117. 289 This is largely due to the fact that assumptions are often made rather than critical engagement in dialogue on these issues. 290 Only one study has specifically engaged with this question, albeit in a limited sense: see, B Anderson and J O’Connell Davidson, ‘Is Trafficking in Human Beings Demand Driven? A Multi-Country Pilot Study’ (International Organization for Migration, Geneva, December 2003). (The researchers make it clear that problems of defining terms such as ‘sexual exploitation’ and ‘exploitation of the prostitution of others’, make it ‘virtually impossible to specify who has or has not been trafficked into the commercial sex trade’. Nevertheless, they found that, for the most part, men from India, Italy, Thailand and Japan looked for ‘youthful’ women.) 291 This question has not been specifically addressed in the context of trafficking but has been elaborated upon in the context of the prostitution debate. See, M Monto, ‘Focusing on the Clients of Street Prostitutes: A Creative Approach to Reducing Violence Against Women – Summary Report’ (Report submitted to National Institute of Justice, 30 October 1999). (The author concludes that the average age when men first purchased a sex act was 24 (with a median of 21); the range was from nine to 62.) 292 A frequent assumption about why men purchase sex acts is that they are single, lonely or have an unsatisfactory sexual relationship with their partner. Research findings from surveys and interviews of men who purchase sex acts indicate that this may be an incorrect assumption for many men. See, S Sawyer, M Metz, J Hinds and R Brucker, ‘Attitudes Towards Prostitution Among Males: A Consumers’ Report’ (2001) 20 Current Psychology 363. (The authors argue that in the US, 80% of the men who had been caught soliciting a sex act said that their marriage or steady relationship was sexually satisfying.) 293 Trafficking in persons continues to generate billions of dollars in profits for traffickers. See, UNODC, ‘Global Report on Trafficking in Persons’ (United Nations, 2016). Profits from all forced commercial sexual exploitation amount to US$ 33.9 billion, with almost half – US$ 15.4 billion – realised in industrial countries. Asia is the region with the second highest profits (US$ 11.2 billion), followed by transition countries (US$ 3.5 billion), Latin America (US$ 2.1 billion), and the Middle-East and North Africa (US$ 1.1 billion). Sub-Saharan Africa is the region where these criminal profits are lowest (US$ 0.5 billion). Profits from all forced economic exploitation amount to US$ 10.4 billion. The profits are highest in industrial countries and Latin America (about US$ 3.5 billion each). In Asia, profits are slightly lower (US$ 2.5 billion) despite the high number of victims. This reflects the fact that most people in forced labour are workers with a very low average value-added. The profits are by far highest in industrial countries (US$ 2.2 billion). In the other regions, profits vary between US$ 40 million in

The Human Rights Approach  85 transnational criminal activity, such as terrorism, drug trafficking and money laundering;294 nor the increasing discrepancy between the numbers of women and girls trafficked and those identified as victims; nor the increasing incidents of re-trafficking, detention of female victims, and rescue and raids which have had the (in)advertent effect of further victimising the already victimised.295 More generally, one study which attempted to empirically analyse whether the ratification of CEDAW affects the level of protection of women’s rights in States Parties, including the right to be free from trafficking, found that the effects of CEDAW are significant and positive for women’s social rights if combined with a higher level of democracy. Interestingly, however, given that human trafficking is quite often pervasive in non-democratic or semi-democratic countries, it is arguable that at least with respect to these countries, CEDAW is less than effective. This unfortunate situation is not helped by the CEDAW Committee’s massive ­backlog of reports,296 and the resultant burdens placed upon States Parties, with often limited capacity, to update their reports in respect of their anti-trafficking efforts on a consistent basis.297

sub-Saharan Africa and US$ 776 million in Latin America. See also P Belser, ‘Forced Labor and Human Trafficking: Estimating the Profits’ (International Labour Office, 2005) (noting that it is expected that within the next 10 years, human trafficking will surpass drug and arms trafficking in its incidence, cost to human wellbeing, and profitability to criminals). 294 L Shelley, ‘Human Trafficking: Transnational Crime and Links with Terrorism’ (US House Committee on International Relations, Subcommittee on International Terrorism, Non-proliferation, and Human Rights, 25 June 2003). In many parts of the world, arms, drug and human trafficking are reportedly linked to terrorism. Potentially, terrorists could use trafficking routes to transport operatives and may use the profits from trafficking to finance their terrorist activities. See, G Curtis, ‘Involvement of Russian Organized Crime Syndicates, Criminal Elements in the Russian Military, and Regional ­Terrorist Groups in Narcotics Trafficking in Central Asia, the Caucasus, and Chechnya’ (Washington, DC, Federal Research Division, Library of Congress, 2002). 295 Gallagher, ‘Human Rights and Human Trafficking: Quagmire or Firm Ground?’ (n 79) 832. Gallagher argues that in many parts of the world, measures taken in the name of addressing trafficking and related exploitation have had a highly adverse impact on individual rights and freedoms. These ‘negative human rights externalities’, she argues, include detention of trafficked persons in immigration or shelter facilities; prosecution of trafficked persons for status-related offences including illegal entry, illegal stay and illegal work; denial of exit or entry visas or permits; raids, rescues and ‘crack downs’ that do not include full consideration of and protection for the rights of individuals involved; forced repatriation of victims in danger of reprisals or re-trafficking; conditional provision of support and assistance; denial of a right to a remedy; and violations of the rights of persons suspected or convicted of involvement in trafficking and related offences, including unfair trials and inappropriate sentencing. 296 M Etienne, ‘Addressing Gender-Based Violence in an International Context’ (1995) 18 Harvard Women’s Law Journal 139, 149; L Malone, ‘Exercising Environmental Human Rights and Remedies in the United Nations System’ (2002) 27 William & Mary Environmental Law and Policy Review 365, 390; Isa (n 265) 304 (arguing that the two-week limitation is insufficient for an examination of the reports, and is the source of the Committee’s backlog). See also A Byrnes, ‘The “Other” Human Rights Treaty Body: The Work of the Committee on the Elimination of Discrimination Against Women’ (1989) 14 Yale Journal of International Law 13, 27 (arguing that were it not for the failure of many States Parties to submit their reports on time, or to submit reports at all, the Committee’s workload would be even more crippling). 297 A Afsharipour, ‘Empowering Ourselves: The Role of Women’s NGOs in the Enforcement of the Women’s Convention’ (1999) 99 Columbia Law Review 129, 140, 144–45.

86  International Dimensions

vi.  Special Procedures Special Procedures were initially created on an ad hoc basis298 by the now defunct UN Commission on Human Rights to provide independent, impartial and expert assessments on specific thematic issues or particular human rights concerns in certain regions. Now operationalised under the auspices of the Human Rights Council, Special Procedures continue to play an important role in providing the Council with expert guidance on the application and interpretation of human rights standards from a practical standpoint,299 while shoring up awareness on how to better protect human rights across the globe.300 Special Procedures mandate holders execute their duties largely by reference to both ‘hard’301 and ‘soft’ law.302 These mandate holders engage in country visits; have direct communications with victims and their representatives regarding specific violations;303 send letters of allegation and urgent appeals to governments;304 submit thematic and country reports at least annually to the Human Rights Council and, where appropriate, to the General Assembly; issue press statements, both individually and jointly; and hold press conferences.305 In the context of the international response to trafficking in persons, four Special Procedures are of direct relevance. a.  The Special Rapporteur on Trafficking in Persons, Especially Women and Children The Special Rapporteur on Trafficking in Persons, especially Women and ­Children has played an instrumental role in not only raising awareness of the evolving dynamics of the phenomenon of human trafficking in the numerous countries that she has visited, but also in providing practical recommendations on how best to tackle existing challenges where the protection of trafficked victims is concerned. In keeping with the terms of reference of her mandate, the Special Rapporteur 298 J Symonides, Human Rights: International Protection, Monitoring, Enforcement (Ashgate, 2003) 51. See also T van Boven, ‘“Political” and “Legal” Control Mechanisms Revisited’ in M Bergsmo (ed), Human Rights and Criminal Justice for the Downtrodden (BRILL, 2003) 544. 299 JI Naples-Mitchell, ‘Defining Rights in Real Time: The UN Special Procedures’ Contribution to the International Human Rights System’ (2011) 15 International Journal of Human Rights 232. 300 J Flood, The Effectiveness of UN Human Rights Institutions (Greenwood Publishing Group, 1998) 42. 301 This refers to principles which have been codified in the form of conventions, case law and statutes. 302 This refers to relevant declarations, resolutions and guiding principles which are non-binding in nature. 303 C Douzinas, The End of Human Rights: Critical Legal Thought at the Turn of the Century (Hart Publishing, 2000) 145 (arguing that Special Procedures have made human rights relevant to victims by examining topics that would otherwise not have been discussed). 304 cf M Lempinen, ‘Challenges Facing the System of Special Procedures of The United Nations Commission on Human Rights’ (Turku/Åbo, Institute for Human Rights, Åbo Akademi University, 2001) 11 (arguing that it is not the task of Special Procedures to improve human rights in a country, but to raise awareness). 305 O Hoehne, ‘Special Procedures and the New Human Rights Council – A Need for Strategic ­Positioning’ (2007) 4(1) Essex Human Rights Review 3.

The Human Rights Approach  87 on Trafficking in Persons has, from the very outset, made it abundantly clear that ­trafficking in persons should not simply be viewed as a ‘law and order’ problem, but rather, as a human rights issue,306 which requires protecting, assisting and providing redress to victims.307 In fact, all of her recent annual reports repeatedly call for the proper identification of trafficked persons,308 as well as their non-criminalisation for offences which they have committed as a result of being trafficked.309 The Special Rapporteur has also emphasised the need for States Parties to facilitate the safe and productive involvement of victims in the prosecution of traffickers,310 as well as the need for more effective cooperation between criminal justice and victim support agencies.311 Even further, she has made it clear that trafficked victims are entitled to an effective remedy, and that, substantively, such a remedy should include, at a minimum, restitution, which is aimed at restoring the situation that existed prior to the violation,312 access to information, legal advice313 and social services;314 compensation where there is assessable damage but such damage cannot be made good by restitution;315 and satisfaction, which is designed to compensate victims for any moral damage or damage to the dignity or reputation which they suffered.316 The Special Rapporteur has also issued guidance regarding the physical, psychological and psychosocial ‘harm suffered by trafficked children and their increased vulnerability to exploitation’.317 b.  The Special Rapporteur on Violence Against Women, its Causes and Consequences The Special Rapporteur on Violence against Women, its Causes and ­Consequences, has played a significant role in shaping counter-trafficking policies in several countries based on practical observations and workable recommendations issued to States Parties. Indeed, from the very outset, the Special Rapporteur has recognised that structural vulnerabilities, such as the fact of belonging to an indigenous ­community, statelessness and ethnic targeting, conflict and post-conflict ­situations,318 and the demand for women’s cheap labour and low wages, expose 306 Human Rights Council, ‘Report of the Special Rapporteur on trafficking in persons, especially women and children’ (UN Doc E/CN.4/2005/71, 9–10, 2004) [56]. 307 ibid [11]. 308 Human Rights Council, ‘A Human Rights-Based Approach to the Administration of Criminal Justice in Cases of Trafficking in Persons’ (A/HRC/20/18, 2012) [88]. 309 ibid [89]. 310 ibid [91–95]. 311 ibid [95]. 312 ‘The Right to an Effective Remedy for Trafficked Persons’ (n 170) [20]. 313 ibid [47]. 314 ibid [24]. 315 ibid [28]. 316 ibid [40]. 317 ibid [53]. 318 R Manjoo, ‘Multiple and Intersecting Forms of Discrimination and Violence against Women’ (UN Doc A/HRC/17/26, 2011) [88].

88  International Dimensions women and girls to increasing incidence of trafficking, though this reality is not always reflected in media reports.319 Not only do these societal attitudes about the role of women and girls normalise the exploitation of women in some communities, but the situation is further complicated by the already challenging circumstances which these women encounter as a result of migration and trade liberalisation.320 While this unfortunate situation could, in some respects, also be attributed to the hidden nature of the practice as well as its complex international definition, States Parties have nevertheless been called upon by the Special Rapporteur to provide periods of reflection for trafficked women and speedy routes to settlement in their homes as well as refrain from treating these vulnerable individuals as criminals, while actively assisting in their rehabilitation, taking into account their economic agency and respect for their myriad human rights.321 c.  The Special Rapporteur on the Sale of Children, Child Prostitution and Child Pornography The Special Rapporteur on the Sale of Children, Child Prostitution and Child Pornography has also played an important role in the fight against trafficking in persons, albeit from the perspective of children. In a number of reports, the Special Rapporteur has highlighted that violence against children, including sexual violence, continues to be shrouded by stigma and secrecy, even amidst widespread anti-trafficking policies.322 In this connection, the Special Rapporteur has called upon States Parties to not only open up the channels for the discussion of this pertinent issue, but to also provide access to counselling, complaint and reporting procedures to those affected children. States Parties have also been called upon to take special measures to safeguard children’s rights, and to ensure that they receive adequate support from well-resourced institutions, services and professionals in a sensitive, relevant and ethical manner.323 Importantly, the Special Rapporteur has recognised that the time is ripe for States Parties to adopt a holistic approach towards the elimination of child trafficking by addressing structural factors, such as underdevelopment, poverty, economic disparities, inequitable socio-economic structures, and dysfunctional families, lack of education, urban–rural migration, gender discrimination, irresponsible adult sexual behaviour and harmful traditional practices.324 In this regard, states are not only urged to report on these 319 Y Ertürk, ‘The Intersections between Culture and Violence against women’ (UN Doc A/HRC/4/34, 2007) [62]. 320 Y Ertürk, ‘Political Economy of Women’s Human Rights’ (UN Doc A/HRC/11/6, 2009) [77]. 321 Y Ertürk, ‘Indicators on Violence Against Women and State Response’ (UN Doc A/HRC/7/6, 2008) [113]. 322 OHCHR, ‘Joint report of the Special Rapporteur on the Sale of Children, Child Prostitution and Child Pornography and the Special Representative of the Secretary-General on Violence against ­Children’ (A/HRC/16/56, 2011) [20]. 323 ibid [21]. 324 JM Petit, ‘Assistance and Rehabilitation Programmes for Child Victims of Trafficking and Sexual Commercial Exploitation’ (A/HRC/7/8, 2008) [25].

The Human Rights Approach  89 factors, but also to investigate allegations of trafficking and ensure effective criminal sanctions are imposed against traffickers. Even further, States Parties have been asked to effectively deal with the rather unfortunate, yet recurrent, situation whereby some women who give birth to children after they have been trafficked are then rescued and returned to their home country, but without taking their children with them. Against this backdrop, States Parties have been urged by the Special Rapporteur to ‘do whatever it takes to acknowledge the fears and concerns of these mothers’.325 d.  The Special Rapporteur on the Human Rights of Migrants Like the other Rapporteurs identified above, the Special Rapporteur on the Human Rights of Migrants has also taken the opportunity to address the issue of trafficking in persons. In fact, in a number of his reports, the Special Rapporteur has expressed particular concern over the growing numbers of children who make migratory journeys on their own and who invariably become easy targets for traffickers.326 Others who fall into the category of easy targets, according to the Special Rapporteur, include women and persons with disabilities who are often exploited because of their irregular status and the attendant fear of being deported. In this connection, the Special Rapporteur has called upon States Parties to recognise these persons as victims and not criminals. Specifically, States Parties have been urged to refrain from holding victims of trafficking in immigration detention or other forms of custody,327 a troubling phenomenon which arises as a result of misdirected migration policies, plans and programmes.328 These policies and programmes not only victimise the already victimised, but also expose these individuals to sexual and gender-based violence, especially where they are returned to their countries of origin.329 In this connection, states have been repeatedly asked to guarantee the protection of these individuals as well as provide access to medical, psychosocial and legal assistance.330 e.  Practical Concerns Despite the relatively effective work of special procedures in raising awareness and incentivising States Parties to take innovative strategies to more effectively combat trafficking in persons, several challenges nevertheless arise in practice which threaten to subvert the overall efficacy of the special procedures system. The most profound of these challenges relates to the regrettable lack of financial and human 325 ibid [42]. 326 F Crépeau, ‘Detention of Migrants in an Irregular Situation’ (A/HRC/20/24, 2012) [41]. 327 ibid [72.a]. 328 J Bustamante, ‘Recapitulation of Main Thematic Issues’ (A/HRC/17/33, 2011) [24]. 329 J Bustamante, ‘Enjoyment of the Rights to Health and Adequate Housing by Migrants’ (A/HRC/14/30, 2010) [25]. 330 J Bustamante, ‘Protection of Children in the Context of Migration’ (A/HRC/11/7, 2009) [125].

90  International Dimensions resources which would otherwise enable Special Rapporteurs to more effectively dispense with on-site visits and in-depth studies, thereby engaging more holistically with the trafficking situation on the ground across different regions.331 This challenge is linked to the increasing number of new mandates which have been created over the years, albeit with no simultaneous increases in financial and personnel resources from the UN regular budget.332 In fact, at one point, only a mere 7 per cent of the UN’s total spending was allocated to the work of Special Rapporteurs,333 an amount which is simply not enough for Special Rapporteurs to deal effectively with the increasing challenging work of encouraging states to better comply with human rights standards and practices with respect to combating the increasingly sophisticated phenomenon of trafficking in persons. Even further, Special Rapporteurs continue to face the challenge of poor visibility and low profile, which may in part be due to the misconception that UN Treaty Bodies are somehow more legitimate structures than Special Procedures.334 Not only does poor visibility affect the extent to which governments are willing to respond to standing invitations, but even where Special Rapporteurs are granted permission to conduct on-site visits, their presence is often not felt by those who are most in need of a medium to voice their concerns.335 Related to this concern is the fact that in many instances, Special Rapporteurs are simply unable to visit certain countries because governments either do not recognise their legitimacy or simply lack the political will to expose their existing human rights situation. This is a rather unfortunate scenario as non-cooperating states with serious human trafficking situations have managed to easily evade scrutiny by Special Rapporteurs, while other states that allow visits inevitably receive more attention.336 Apart from the conspicuous selectivity which arises in this connection, it must also be noted that even where permission has been granted for on-site visits and recommendations have been issued to governments by Special Procedures mandate holders, it is generally hard to glean the effectiveness of the work of these mandate holders, as many governments, for one reason or another, are not inclined to give credit to Special Procedures for their positive anti-trafficking actions.337 Yet another issue faced by Special Rapporteurs in the context of the international response to trafficking in persons is the lack of an institutionalised mechanism for follow-up to their country visits. While the Universal Periodic Review mechanism

331 Lempinen (n 304) 46. 332 T Buergenthal, ‘A Court and Two Consolidated Treaty Bodies’ in A Bayefsky (ed), The UN Human Rights Treaty System in the 21st Century (Kluwer and Manfred Nowak, 2000). 333 OHCHR, ‘Annual Report on Activities and Results’ (United Nations, 2009) 19. 334 A Clapham, ‘The UN Human Rights Reporting Procedures: An NGO Perspective’ in P Alston and J Crawford (eds), The Future of Human Rights Treaty Monitoring (Cambridge University Press, 2000) 175. 335 ‘Curing the Selectivity Syndrome’ (Human Rights Watch, 2010) 17. 336 T Piccone, ‘The Unique Contribution of the UN’s Independent Experts on Human Rights’ (The Brookings Institution, 2010) 14. 337 ibid 15.

The Human Rights Approach  91 (UPR) does allow Special Procedures mandate holders’ recommendations issued to specific countries to receive renewed attention at least once during these countries’ four-year cycle of peer reviews, it is certainly premature at this point to state with any degree of assurance what effect this would have on States Parties’ implementation of these recommendations. A final concern that has arisen with respect to the work of Special ­Procedures in the context of the international response against human trafficking relates to the fact that, unlike UN Treaty Bodies which have formal individual complaints procedures, there is no formalised or consistent procedure for cataloguing c­ orrespondence received from persons requesting intervention by Special R ­ apporteurs. Indeed, as Special Rapporteurs ultimately have the discretion to decide which allegations to act upon, it remains impossible to determine how many appeals for action have been received by these mandate holders on an annual basis or to determine what percentage of requests has been acted upon.

vii.  The Convention Relating to the Status of Refugees The Refugee Convention is the central international instrument on refugee ­protection,338 and is supplemented by the 1967 Protocol which extends its temporal and geographical application.339 The Convention, which represents a ‘profound re-orientation’ in refugee protection,340 has the overarching aim of assuring ‘refugees the widest possible exercise of … fundamental rights and freedoms’.341 Accordingly, the Convention establishes practical and universal standards for the rights of refugees that go beyond the lowest common denominator, given that it ‘would hardly be useful if it contained only the minimum acceptable to everyone’.342 Importantly, Article 1A(2) of the Convention establishes a ‘universal’ refugee definition, requiring refugees to demonstrate a well-founded fear of ‘persecution’ based on nationality, religion, race, membership of a particular social group, or political opinion.343 This definition represents a ‘coalescence’ of three approaches: individual (subjective fear); social (objectively determined group factors); and the juridical element of a lack of de jure protection by the country of origin.344 Whether a trafficked person is successful in attempting to invoke the 338 J McAdam, ‘Complementary Protection in International Refugee Law’ (2007) 60 Order 48. 339 S Davies, ‘Start Looking South: The Refugee Convention Fifty Years On’ (2004) 8 The International Journal of Human Rights 355. 340 G Goodwin-Gill, ‘Editorial: The International Protection of Refugees: What Future?’ (2000) 12 International Journal of Refugee Law 1, 2. 341 ‘Summary Record of the 25th Meeting’ (New York 10 February 1950) (UN Doc E/AC.32/SR.25, 17 February 1950) [68]. 342 ‘Draft Report of the Ad Hoc Committee on Statelessness and Related Problems’ (UN Doc E/AC.32/L.38,16 January–February 1950) 31. 343 ‘Provisional Draft of Parts of the Definition Article of the Preliminary Draft Convention Relating to the Status of Refugees’ (Working Group, UN Doc E/AC.32/L.6, 23 January 1950). 344 D Perluss and J Hartman, ‘Temporary Refuge: Emergence of a Customary Norm’ (1986) 26(3) Virginia Journal of International Law 551; G Goodwin-Gill, ‘Non-Refoulement and the New Asylum Seekers’ (1986) 26(3) Virginia Journal of International Law 897, 583.

92  International Dimensions principle of non-refoulement under Article 33 of the Convention345 will i­ nvariably depend upon whether she or he overcomes these challenging hurdles, thereby being considered a ‘refugee’.346 a.  At Risk of Being ‘Persecuted’ Although the term ‘persecution’ is not defined by the Refugee Convention, it has been construed to mean a threat to life or freedom in accordance with Article 1A(2) read in conjunction with Article 33 of the Convention.347 In other words, the term ‘persecution’ implies that there exists a ‘sustained or systematic failure of state protection in relation to one of the core entitlements which has been recognised by the international community’.348 In the context of the international response against trafficking in persons, although the UN Trafficking Guidelines349 make it clear that many acts involved in the process of human trafficking (such as abductions, beatings and rape, among others) could be characterised as having violated the basic human rights of trafficked victims, and thus could be regarded as ‘persecution’,350 trafficked victims continue to face significant hurdles in so far successfully establishing that they have or will suffer serious harm.351 Indeed, while the Australian case of VXAJ352 is a welcome development in that it generously recognises that victims of human trafficking fearing reprisals or revictimisation by non-state parties, such as trafficking enterprises, have a well-founded fear of persecution,353 it remains the case that repercussions from traffickers are seen by the majority of states as falling below the ‘persecution’ threshold since they are, for the most part, regarded as merely ‘acts of criminality which are not systemic in nature’.354 This presents a significant hurdle to trafficked persons desirous of seeking protection under the Refugee Convention. 345 Art 33(1) Refugee Convention provides that ‘No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion. (2) The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgement of a particularly serious crime, constitutes a danger to the community of that country’. 346 U Jayasinghe and S Baglay, ‘Protecting Victims of Human Trafficking Within a ‘Non-Refoulement’ Framework: Is Complementary Protection an Effective Alternative in Canada and Australia?’ (2011) 23 International Journal of Refugee Law 489, 494. 347 G Goodwin-Gill, The Refugee in International Law (Oxford University Press, 1996) 68; UNHCR, ‘Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the status of Refugees’ (UN Doc HCR/IP/4/Eng/REV.1, 1992) [51]. 348 J Hathaway, The Law of Refugee Status (Butterworths, 1991) 112. 349 UNHCR, ‘Guidelines on International Protection: Gender-related persecution’ (n 172). 350 UN, Trafficking Guidelines (n 146) [15]. 351 Jayasinghe and Baglay (n 346) 494. 352 VXAJ v Minister for Immigration and Multicultural Affairs (2006) FMCA 234. 353 Minister for Immigration and Multicultural Affairs v Khawar (2002) 210 CLR 1, 603 holding that ‘persecution equates to serious harm and a failure by the state to protect’ (Kirby J) (Khawar). 354 (Re) DJP Decision of Canadian Immigration and Refugee Board (IRB) [1999] CRDD No 155.

The Human Rights Approach  93 b.  A Member of a ‘Particular Social Group’ Requirement It is now fairly well established that solely being vulnerable is not enough to substantiate a claim for refugee status. Rather, this ‘vulnerability’ must be attributable to membership of a particular social group.355 In Case AA/02964/2012, heard before the UK Immigration and Asylum Chamber, it was held that a young Vietnamese boy who had been trafficked into forced labour in the UK was entitled to international protection under the Refugee Convention as he was deemed to be a member of ‘a particular social group’ by virtue of his ‘past experience’ of having been trafficked and his ‘present continuing vulnerability and the absence, in his case, of sufficient state protection’. The Tribunal, having regard to all the circumstances of the case, found that the applicant was entitled to international protection because there was ‘a real risk of the appellant suffering serious harm … following return to Vietnam’.356 In practice, two approaches have been suggested for determining whether a trafficked victim falls to be protected as a ‘member of a particular social group’: (i) the ‘Protected Characteristics’ Approach; and (ii) the ‘Social Perception’ Approach. The ‘Protected Characteristics’ Approach This approach requires that persons claiming refugee status on the basis of being a member of a particular social group demonstrate the existence of some distinct ‘innate or unchangeable characteristic’,357 such as sex or gender.358 While this is, indeed, an important avenue through which trafficked women and girls could claim refugee protection where they can prove that because of their sex/gender they will face severe forms of discrimination in their country of origin, this approach, unfortunately, is not without its own limitations. Indeed, in the typical trafficking situation, there is hardly ever sufficient evidence available to prove that severe forms of discrimination operate in a widespread fashion throughout a population, ‘only affects women’, and is not the result of generalised hardship, something which the Refugee Convention does not envisage.359 Given this r­ elatively high threshold,

355 A Aleinikoff, ‘Protected Characteristics and Social Perceptions: An Analysis of the Meaning of “Membership of a Particular Social Group”’ in Refugee Protection in International Law: UNHCR’s Global Consultations on International Protection (UNHCR, 2003) 263, 265. 356 The Tribunal held, ‘The appellant’s history of exploitation in Birmingham is, we consider, strongly indicative of what lies in wait for him, upon return to Vietnam … In his particular case, we do not consider that this alleviates the real risk of exploitation of this vulnerable young person. He is at real risk of being subjected to forced labour, including being re-trafficked for that purpose, with the likely potential for additional ill-treatment’. 357 Attorney General of Canada v Ward [1993] 2 SCR 688 [75] (La Forest J). 358 Islam v SSHD, R v IAT and Another ex parte Shah UKHL [1999] 2 WLR 1015. The House of Lords recognised that ‘women in Pakistan’ comprised a particular social group given that their sex/gender was an innate and unchangeable characteristic. The Court considered that deeply entrenched discrimination against women in Pakistan, which was condoned or tolerated by the state, meant that the women in question could claim refugee status. 359 UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the status of Refugees (UN Doc. HCR/IP/4/Eng/REV.1,

94  International Dimensions it is at least arguable that there is a risk that the vast majority of trafficked victims will be excluded from protection.360 Notwithstanding this, however, a more promising development appears to be that of construing the notion of a ‘particular social group’ to include those who have been previously trafficked,361 given that this is a historic fact common to all victims and is therefore u ­ nchangeable.362 While the exact scope of this new development has not been fully delineated as yet, it is nevertheless hoped that, in time, a greater number of trafficked victims will gain solace under its burgeoning wings. The ‘Social Perception’ Approach This approach has largely developed from Australian jurisprudence which has interpreted the ‘particular social group’ requirement to mean a ‘collection of persons who share a certain characteristic or element which unites them and enables them to be set apart from society at large’.363 This approach supports the idea that ‘women in any society are a distinct and recognisable group’,364 although one tribunal has limited its scope to women of a ‘particular age’.365 While this approach is, indeed, a welcome development for many trafficked women seeking refugee protection, it nevertheless appears that its once envisaged expansive scope may not actually exist in reality following the Columbian case of N98/24000 which recognised that ‘young (vulnerable) Colombian women’ could not constitute ‘a particular social group’.366 A subsequent ruling affirms this narrow approach in relation to a claim that homelessness, abandonment and unemployment367 meant that the applicant should be treated as a member of a ‘particular social group’. In short, refugee protection under the ‘social perception’ approach appears to be in a state of flux.

1992) [66ff]. See also SSHD v Dzhygun [2000] UKIAT 00TH00728 [27f], holding that while women in the Ukraine face discrimination on account of their gender, such discrimination was not sufficiently deep rooted for them to be considered to be members of a ‘particular social group’. The court considered that ‘women’ are not sufficiently distinct from the general society, though ‘women in the Ukraine who are forced into prostitution against their will’ might qualify for protection. 360 S Cotterill, ‘A Study of the Protection Afforded to Persons at Risk of Trafficking by Article 1(A) of the Geneva Convention Regarding the Status of Refugees (1951) as amended by the Protocol relating to the Status of Refugees (1967)’ (Göteborgs Universitet, 2009). 361 Regina v Special Adjudicator, Ex parte Hoxha (FC), [2005] UKHL 19 [37]. Baron Hale advanced the view that ‘women who have been victims of sexual violence in the past are linked by an immutable characteristic which is at once independent of and the cause of their current ill-treatment’. 362 R Piotrowicz, ‘The UNHCR’s Guidelines on Human Trafficking’ (2008) 20 International Journal of Refugee Law 250. 363 Applicant A v Minister for Immigration and Ethnic Affairs (MIEA) 250. Applicant A v Minister for Immigration and Ethnic Affairs (MIEA) [1997] HCA 4; (1997) 190 CLR 225, 9.23 364 Khawar (Gleeson CJ held that ‘women in Pakistan’ can be classed as a ‘particular social group’). 365 Case V01/13868 [2002] RRTA 799 (6 September 2002) [19]. 366 N98/24000 [2000] RRTA 33 (13 January 2000) [10]. 367 Case N02/13996 [2003] RRTA 56 (22 January 2003).

The Human Rights Approach  95 c.  The Presumption of State Protection A third requirement in the process of attempting to invoke refugee protection under the Refugee Convention relates to the need to counteract the presumption that the state of origin offers adequate protection to the person concerned.368 In accordance with this presumption, harmful acts perpetrated by private actors would not implicate the state, unless ‘they are knowingly tolerated by the authorities, or if the authorities refuse, or prove unable, to offer effective protection’.369 This sentiment has been affirmed in the case of Horvath v SSHD,370 in which it was held that the presumption will only be rebutted where ‘the alleged lack of protection is such as to indicate that the home state is unable or unwilling to discharge its duty to establish and operate a system for the protection against persecution of its own nationals’. Given that in most cases trafficking is committed by private perpetrators,371 and not the state, a more discursive exploration of this requirement is necessary here. Recent case law seems to indicate that where States Parties accept the responsibility to protect women from being trafficked, and are in practice willing to so do, the presumption of state protection is unlikely to be rebutted.372 This is a particularly troubling development since, despite the fact that legislative and administrative mechanisms and their effectiveness in preventing and combating trafficking and protection and assisting victims are required to be analysed before coming to a decision on whether the presumption of state protection has been rebutted,373 some tribunals have been prepared to superficially rely upon one measure of states’ efforts to combat trafficking in persons: the US ­Department of State Trafficking in Persons Reports.374 While these reports have received varying degrees of criticism with regard to their lack of reliability and political ­securitisation,375 states continue to rely on the data presented in these reports,376 in effect, ignoring the UN Trafficking Guidelines’ express stipulation that states should be held liable when trafficking activities are ‘de facto tolerated, condoned 368 Regina v SSHD, Ex Parte Sivakumaran [1988] AC 958. 369 UNCHR, ‘Guidelines On International Protection: Gender-related persecution’ (n 172) [19]. 370 Horvath v SSHD [2000] UKHL 37 (6 July 2000) (Lord Hope of Craighead). 371 UN, Trafficking Guidelines (n 146) [21]. 372 Case V01/13868 (n 365); Case V03/16442 [2004] RRTA 474 (25 June 2004). 373 Part II UN Trafficking Protocol; UN, Trafficking Guidelines (n 146) [23]. 374 Case N05/50773 [2005] RRTA 103 (28 June 2005). 375 A Gallagher, ‘Improving the Effectiveness of the International Law of Human Trafficking: A Vision for the Future of the US Trafficking in Persons Reports’ (2011) 12 Human Rights Review 381. 376 See, eg, Case CA5-00766 (2006). The Immigration Review Board held that although trafficking in women and violence against women continues to be a problem in Venezuela, and that the police and judicial systems are weak and corrupt in some areas, the presumption of state protection was not rebutted, given that protection for all citizens at all times cannot be expected; that the state was making serious efforts to curb trafficking of women: trafficking in persons was criminalised; anti-trafficking workshops were being conducted; and that there was a telephone hotline and a number of shelters to assist victims of violence.

96  International Dimensions or facilitated by corrupt State officials’.377 This blatant disregard for more generous protection based on principles elaborated upon at the international level is cause for concern, and arguably, requires serious reconsideration by all concerned. In short, therefore, given the procedural challenges highlighted above, it is unlikely that the vast majority of transnational trafficked victims will be considered as ‘refugees’ for the purposes of the Refugee Convention, and would accordingly not benefit from protection against refoulement under the Convention. However, it is arguable that the non-refoulement obligation may in fact arise under other international instruments, such as Article 8(2) of the UN Trafficking Protocol, which requires that States Parties pay ‘due regard to the safety’ of trafficked victims whom they wish to repatriate, and the ICCPR. In fact, in General Comment No 31, the Human Rights Committee expressed the view that although the ICCPR does not explicitly impose a non-refoulement obligation, this obligation could nevertheless be subsumed under Article 2, in circumstances where the person to be extradited, deported or expelled has ‘substantial grounds for believing that there is a real risk of irreparable harm’, such as torture, inhuman or degrading treatment, as prohibited by Article 7 of the ICCPR. To benefit from the consequential protection, however, the victim would have to prove that she or she will face a real risk of serious harm upon removal,378 evidenced by, for example, a real risk of being re-trafficked, resulting from the inability or unwillingness of her or his state of nationality to protect her or him.379 The fact of having been trafficked in the first place will, however, not on its own be sufficient to engage the apparent nonrefoulement obligation under the ICCPR.380

viii.  The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment The Convention Against Torture is the primary international instrument that addresses the jus cogens prohibition against torture. The Convention is supplemented by an Optional Protocol381 which establishes a system of regular visits by international and national bodies to places of detention in order to prevent torture and other cruel, inhuman or degrading treatment or punishment. The overall implementation of the Convention, as well as its Optional Protocol, is overseen by the Committee against Torture. The Convention places an obligation upon States Parties to take effective legislative, administrative, judicial or other measures to prevent acts of torture382 377 UN, Trafficking Guidelines (n 146) [24]. 378 J McAdam, Complementary Protection in International Refugee Law (Oxford University Press, 2007) 150. 379 ibid. 380 ibid. 381 Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, New York, 18 December 2002, General Assembly resolution 57/199. 382 Art 2 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or ­Punishment (UNGA res 39/46 of 10 December 1984).

The Human Rights Approach  97 and, particularly relevant in the context of human trafficking, an obligation not to deport or extradite a trafficked victim to a state where there are substantial grounds for believing that he would be in danger of being subjected to torture.383 The issue of trafficking in persons has in fact been addressed by the Torture Committee, which has repeatedly recommended that States Parties investigate all alleged cases of human trafficking, prosecute those found guilty and provide victims with redress and fair and adequate compensation,384 as well as access to medical, social rehabilitative and legal services, including counselling services, as appropriate.385 That said, it remains fundamentally unclear as to whether trafficking amounts to ‘torture’ within the meaning of Article 1 of the Convention against Torture. Under this provision, ‘torture’ is defined as, any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.

If, indeed, trafficking in persons amounts to torture, trafficked victims could benefit from the non-refoulement obligation which arises under Article 3 of the Convention against Torture, provided that there are substantial grounds for believing that they would be in danger of being subjected to torture if returned to their countries of origin.386 a.  Severe Pain and Suffering In accordance with Article 1 of the Convention against Torture, the first hurdle which must be overcome by a trafficked victim in order to benefit from the Convention’s non-refoulement obligation is proving that the ‘pain and suffering’ she or he experienced or is likely to experience equates to that experienced by victims of torture.387 It is submitted that as trafficking includes a wide range of 383 ibid Art 3. 384 UN Committee against Torture, ‘Conclusions and recommendations of the Committee against Torture: Bosnia Herzegovina’ (UN Doc CAT/C/BIH/CO/1, 2005) [21]. 385 UN Committee against Torture, ‘Conclusions and recommendations of the Committee against Torture, Ukraine’ (UN Doc CAT/C/UKR/CO/5. 2007) [14]. 386 The Convention against Torture does not permit any exceptions to the principle of non-­ refoulement. The prohibition on torture is considered a jus cogens, peremptory norm of international law, regarded as fundamental by the international community. Art 3 establishes an evidentiary threshold of ‘substantial grounds’ to believe that a person would be in danger of torture on removal. This standard has been interpreted as a ‘foreseeable, real and personal risk’ of torture. See Prosecutor v Furundzija 38 ILM 317 (1999) (International Criminal Tribunal for the Former Yugoslavia, Trial Chamber, No. IT-95-17/1-T, 10 December 1998); R v Bow Street Metropolitan Stipendiary Magistrate, Ex parte Pinochet Ugarte (No 3), [1999] 2 WLR 827 (HL). 387 Art 1 Convention against Torture.

98  International Dimensions serious physical as well as emotional abuses which are similar to torture,388 such as beatings, sexual aggression,389 isolation and sensory deprivation as well as threats to kill or torture relatives and disappearance of relatives, there might very well be circumstances in which a trafficked person, having proved such abuses, would be regarded as having experienced ‘severe pain and suffering’. However, it must be noted that even where some of these acts, though extremely egregious, are found to exist, the trafficked victim may still have her or his case decided upon outside the formal parameters of ‘torture’ because they do not possess the degree of s­ everity necessarily required by the Convention. b.  A Specific Purpose The second requirement which must be met – a specific purpose – requires that the aforementioned acts be committed for the purpose of ‘obtaining from [the victim] or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind’. It is submitted that this hurdle is a relatively easy threshold to cross as trafficked victims will, more often than not, be able to prove, consistent with the definition of ‘human trafficking’ under Article 3 of the UN Trafficking Protocol, that they were subjected to ‘intimidation or coercion’. c.  A Nexus Between ‘Severe Pain and Suffering’ and the ‘State or its Officials’ The real difficulty comes with proving the third element, which requires a link to be established between the infliction of ‘severe pain or suffering’ and the ‘state or its officials’. The Committee against Torture has taken a rather broad view of the phrase the ‘state or its officials’ ruling that de facto regimes can so qualify where they ‘exercise certain prerogatives that are comparable to those normally exercised by legitimate governments’.390 Against this backdrop, it will be extremely difficult for a trafficked person to prove that the typical trafficking network or gang is a de facto regime, or even worse, an armed group seeking political power. 388 The non-exhaustive list includes burns, suffocation, exposure to excessive light or noise, administration of drugs, prolonged denial of sleep, food, hygiene or medical assistance and being kept in total uncertainty with respect to time and place. 389 In certain circumstances, rape (which may be part of the human trafficking experience) could constitute torture. In Prosecutor v Kunarac, the International Criminal Tribunal for the Former Yugoslavia stated that sexual violence gives rise to severe pain or suffering that, in turn, justifies its classification as amounting to ‘torture’. The ECHR has also held that rape could constitute torture in Ireland v UK, App no 5310/71 (18 January 1978) [167]. It must, however, be noted that although all rapes constitute inhuman or degrading treatment, they may not always constitute torture. The severity of the harm will demonstrate whether or not ‘torture’ has been made out. See, C McGlynn, ‘Rape, Torture and the European Convention on Human Rights’ (2009) 58 International & Comparative Law Quarterly 565, 579–80. 390 Sadiq Shek Elmi v Australia, Communication No 120/1998, UN Doc CAT/C/22/D/120/1998 (1999) [6.5].

The Human Rights Approach  99 With the exception of groups like Boko Haram and the Islamic State (IS), whose goal is to create a highly radicalised generation, the majority of trafficking networks are criminal syndicates, striving for increased profitability. Nevertheless, it is submitted that it is not absolutely impossible to envisage circumstances where traffickers operate with the consent or acquiescence391 of corrupt public officials who are involved in, for example, illegal border crossings, issuing bogus documents, protecting safe houses en route, protecting the brothels and factories in which trafficked persons are held, and even ensuring that trafficked persons who escape are returned to their traffickers.392 It is also not unfathomable for these officials to engage in violence against and rape of victims, and generally contribute to an atmosphere of fear and hopelessness among victims who know they have no option but to submit to the demands of their traffickers.393 In these circumstances, it is submitted that officials who collaborate with traffickers and have knowledge of the tactics used by the traffickers to control, punish and intimidate victims into obedience and submission, would implicate the state directly in acts of torture. In short, therefore, while the threshold of state complicity or acquiescence is ­necessarily a high one, it is not insurmountable.

ix. Reflections In sum, it is submitted that provided that a trafficked victim is able to meet the aforementioned requirements, she or he stands a relatively reasonable chance of making out the claim that there exists a risk of torture394 if returned to her or his country of origin. In these circumstances, she or he may benefit from the non-refoulement obligation under Article 3 of the Convention against Torture. However, as this question is far from resolved in both the academic circles and in practice, this area remains fertile soil for further discussion.

x.  Other Relevant International Instruments There are a number of other international instruments which inform anti-­ trafficking law and practice, the primary of which are the ILO Forced Labour

391 ‘Acquiescence’ should be interpreted broadly. In cases where a state is unable or disinclined to protect the person, the state may be seen as having acquiesced to torture and, therefore, Art 3 would apply. See Dzemajl v Yugoslavia, Communication No 161/2000, UN Doc CAT/C/29/D/161/2000 (11 November 1999) [9.2]. 392 A Jordan, ‘Human Trafficking: Is it Torture? (2010) Panel III: Interpretation and Implementation of the Convention against Torture Article 22 (Petitions)’ (2010) 17 Human Rights Brief 4, 9–11. 393 ibid. 394 The existence of a ‘consistent pattern of gross, flagrant or mass violations of human rights’ may be used to establish whether ‘substantial grounds’ exist for the belief that there is a risk of torture if refouled. However, this should not be taken to mean that a pattern of human rights violations in itself automatically signifies that a person would be at risk of torture. See Art 3(2) Convention against Torture.

100  International Dimensions Convention 1930 (No 29),395 the Abolition of Forced Labour Convention (No 105)396 and the Worst Forms of Child Labour Convention 1999 (No 182).397 Each of these Conventions require that states not only refrain from imposing or tolerating forced labour, but also prosecute it as a crime when committed by private entities.398 In its reports, the ILO’s Committee of Experts399 has repeatedly called upon States Parties take all necessary measures to strengthen their law enforcement mechanisms in order to effectively investigate and prosecute cases of trafficking in persons, both for sexual and labour exploitation, and to correctly identify victims of trafficking.400 States have also been called upon to adopt comprehensive anti-trafficking legislation aimed at prosecuting traffickers, particularly those who exploit women and children,401 with adequate penal sanctions. The need for the provision of rehabilitation and social integration has also been emphasised by the Committee.402 Despite potentially addressing the recruitment, transportation or harbouring of persons by means of coercion or the threat or use of force for the purpose of forced labour, the extent to which trafficked victims could exercise their agency in vindicating their rights under the various ILO Conventions is quite limited, since the ILO does not allow for individual complaints, though they allow for complaints by governments, employers’ associations, and workers’ associations.403 This mechanism reflects the tripartite structure of the ILO and its bodies, which includes representatives of governments, employers, and workers, but not individual complainants. While, in theory, this does in fact allow for the investigation of complaints and the issuance of decisions and recommendations, it has been argued that it has not, for the most part, been utilised, ‘even tangentially, to address human trafficking’.404 Furthermore, while the Committee of Experts405 examines States Parties’ reports on the implementation of the respective ILO Conventions, 395 ILO Forced Labour Convention, 1930 (No 29) (adopted 28 June 1930, entered into force 1 May 1932). 396 Abolition of Forced Labour Convention (No 105) (adopted 25 June 1957, entered into force 17 January 1959). 397 Worst Forms of Child Labour Convention, 1999 (No 182) (adopted 17 June 1999, entered into force 19 November 2000). 398 Art 2(a) ILO Convention (No 29); Article 1(b) ILO Convention (No 105); s 3(a) ILO Convention (No 182). 399 The Committee of Experts on the Application of Conventions and Recommendations is appointed by the Governing Body of the International Labour Office to examine the information and reports submitted under Arts 19, 22 and 35 of the ILO’s Constitution by Member States on the action taken with regard to Conventions and Recommendations. 400 ILO, ‘Report on the Application of Conventions and Recommendations to Bangladesh’ (Committee of Experts, International Labour Conference, 2012) 250. 401 ILO, ‘Report on the Application of Conventions and Recommendations to Brazil’ (Committee of Experts, International Labour Conference, 2012) 307. 402 ibid. 403 Art 26 ILO Constitution. 404 E Bruch, ‘Models Wanted: The Search for an Effective Response to Human Trafficking’ (2004) 40 Stanford Journal of International Law 24. 405 This is an independent body appointed by the Governing Body on the recommendation of the Director General.

The Human Rights Approach  101 there is no dialogue process analogous to that of the Human Rights Council or the Committee on the Rights of the Child. In consequence, even where trafficking is referenced in the Committee’s reports, only a very few, namely the most serious, cases will ever be discussed in public. Additionally, while direct requests to states on the basis of these issues may be made, it is hardly ever the case that trafficking in persons induce the issuance of an ‘Observation’, which is a more serious form of criticism.406 This is complicated by the fact that NGOs do not play a significant role in ILO supervision procedures. There are also serious concerns about the effectiveness of state reporting procedures,407 in light of there being substantial non-compliance with reporting obligations in practice.408 Thus, while it is arguable that the ILO’s Conventions go some way in helping to buttress the international approach to the trafficking of persons for forced labour, they remain inadequate for dealing with the full range of human rights issues that are implicated in the vicious cycle of human trafficking, particularly in developing countries409 and, in any event, are not comprehensive enough to tackle trafficking for purposes other than forced labour.

B.  ‘Hegemonic Assumptions’ The human rights approach to human trafficking, like the criminal justice approach, is characterised by hegemonic assumptions. These assumptions are examined below from an Analytical Eclectic perspective.

i.  Preventative Measures Aimed at Raising Awareness about Human Trafficking Always Result in Positive Attitudinal Changes Over the last decade, a number of preventative measures have been directed at raising global awareness about human trafficking.410 As a central tenet of the human 406 Cullen (n 80) 162. 407 ibid 163. 408 Two contentious procedures applies where states fail to comply with ratified obligations: (i) a complaints procedure under Art 26 ILO Constitution which is purely intergovernmental and which requires that both the complaining state and the state that is subject to the complaint must have ratified the convention in question; and (ii) the representation procedure under Art 24 of the ILO Convention which could be invoked by employer/worker organisations. These representations may, however, be converted into complaints. Note also that Art 33 ILO Constitution stipulates that in the event of any Member State failing to carry out within the time specified the recommendations contained in the report of the Commission of Inquiry, or in the decision of the ICJ, the Governing Body may recommend to the Conference such action as it may deem wise and expedient to secure compliance therewith. 409 Bruch (n 404). Bruch argues that the ILO’s system is less suited to address issues of freedom of movement, security of the person, and cruel, inhuman and degrading treatment. She also argues that the framework is limited in the means by which it can hold governments accountable. 410 See generally C Nieuwenhuys and A Pécoud, ‘Human Trafficking, Information Campaigns, and Strategies of Migration Control’ (2007) 50 American Behavioral Scientist 1674.

102  International Dimensions rights approach, it is assumed that these measures have succeeded in changing deep-seated attitudes about human trafficking, thereby aiding in reducing the demand for the services of victims, while simultaneously creating an avenue for the proper identification and referral of trafficked victims.411 However, without providing empirical evidence relating to the efficacy of these measures, it appears that it is often assumed by human rights practitioners that these measures have achieved their intended objectives, and that, accordingly, more of these measures are warranted. The reality, however, is far more complex, and, in some instances, even antithetical to the basic premise underlying this assumption. As Cynthia Wolken has ably demonstrated in this context, the current portrayals of human trafficking in awareness-raising programmes, rather than inevitably resulting in positive attitudinal changes, may in fact be marginalising those victims who do not conform to the ‘Hollywood-created mould of a victim’s colour, gender and country of origin’.412 In other words, the near ubiquitous portrayal of victims as passive, sexually exploited women from the global South by many human rights practitioners, ‘perfectly satiates the public demand for sexual violence using education as the perfect cover’.413 Unfortunately, such images only serve to buttress the public’s already skewed image of human trafficking. From an Analytical Eclectic perspective, the numerous awareness-raising measures that have been undertaken to date in keeping with the basic tenets of the human rights approach cannot be uncritically assumed to result in positive attitudinal changes.414 In this regard, human rights activists must be ever cognisant that the stereotypical images used in their public education campaigns may result in what Wolken describes as the failure of ordinary citizens to ‘identify the … invisible male victims or victims of colour who might be working or living within blocks of them’.415 In short, as the UN Special Rapporteur on Human Trafficking has herself concluded, it is not that the human rights approach sets out to embrace this hegemonic assumption, but rather that existing practice suggests that awareness-raising measures undertaken to date under the guise of human rights education do not always produce positive attitudinal changes.416 411 V Samarasinghe and B Burton, ‘Strategising Prevention: A Critical Review of Local Initiatives to Prevent Female Sex Trafficking’ (2007) 17 Development in Practice 51, 58–59. 412 C Wolken, ‘Feminist Legal Theory and Human Trafficking in the United States: Towards a New Framework’ (2006) 6 University of Maryland Law Journal of Race, Religion, Gender & Class 407, 414. 413 ibid. 414 N Weiner and N Hala, ‘Measuring Human Trafficking: Lessons from New York City’ (Vera Institute of Justice, 2008) 1 (arguing that the proliferation of awareness-raising programmes, in the absence of reliable data, ‘presents the distinct risk of misdirected interventions and missed opportunities’). 415 Wolken (n 412) 416. 416 See UN General Assembly, ‘Report of the Special Rapporteur on Trafficking in Persons, especially Women and Children’ (A/65/2889 August 2010 [44]–[45] (noting that awareness-raising campaigns undertaken pursuant to the human rights approach ‘do not always reach groups that are at higher risk, that many of them use detrimental images of women and girls and convey distorted messages about the risks involved in trafficking and that their impact is barely monitored and evaluated … Many a­ wareness-raising campaigns simply use scare tactics to prevent people from leaving home. Such campaigns are counterproductive and cause unintended negative effects. There are reports,

The Human Rights Approach  103

ii.  Measures Taken to Protect Victims of Trafficking always Operate in their Best Interests Over the last decade, human rights practitioners have made tremendous strides in convincing the international community of the need to articulate a comprehensive catalogue of rights that are intended to secure the best interests of trafficked victims.417 While this is a positive development, both in terms of victims’ increased access to services essential to their successful recovery as well as improved accountability and transparency on the part of states that provide these services, it should not be uncritically assumed that these measures always operate in victims’ best interests. Rather, one must be ever cognisant of the fact that, in some instances, trafficked women, in particular, might be ‘infantilized in the name of protecting and saving them … which takes away their agency and power’.418 In other words, by uncritically assuming that protection-based measures undertaken pursuant to the human rights approach are always operating in the best interests of victims of trafficking, human rights practitioners run the risk of denying the agency of victims who migrate in search of better opportunities or who make choices regarding whether they are willing to accept the services afforded to them, such as accommodation in state-run facilities. This point is strongly articulated by one of the leading scholars in the anti-trafficking field, Anne Gallagher, whose empirical findings suggest that ‘measures taken in the name of addressing trafficking … have had a highly adverse impact on individual rights and freedoms’.419 In this context, Gallagher cites a number of ‘negative human rights externalities’,420 including the unwarranted detention of trafficked persons in immigration or shelter facilities under the guise of protection, which invariably results in their freedom of movement being curtailed; the invasion of victims’ privacy under the guise of protection; as well as unfair trials that do not comport with the basic principles of the legal system in question.421 While these externalities might not in all circumstances be the result of wilful acts or omissions, their very existence, according to the

for instance, that awareness-raising campaigns resulted in a decrease in children’s school attendance because the parents were afraid that their children might be abducted and refusal by some to travel overseas because the traveller thought she would be trafficked if she left the village. Furthermore, some awareness-raising campaigns may result in the unintentional stigmatization of certain groups of trafficked persons, such as women … Many of the images and messages used in awareness-raising campaigns tend to focus on women trafficked for forced prostitution, thereby giving the public the wrong impression that trafficking is about prostitution and that all trafficked women are prostitutes. In some countries, such misdirected awareness raising efforts have reportedly produced overly suspicious law enforcement officers who hinder the exercise by women and girls of the freedom to travel abroad. In addition, such stereotyping and stigmatization may pose obstacles to the reintegration process upon their return to their communities’). 417 Gallagher, ‘Human Rights and the New UN Protocols on Trafficking and Migrant Smuggling’ (n 86) 990. 418 Capous-Desyllas (n 7) 72. 419 Gallagher, ‘Human Rights and Human Trafficking: Quagmire or Firm Ground?’ (n 79) 831. 420 ibid. 421 ibid.

104  International Dimensions UN Special Rapporteur on Human Trafficking, does, however, suggest that in their thrust to secure the protection of victims of trafficking, there is a need for human rights practitioners to critically and consistently evaluate the efficacy of their work so as to ensure that intended objectives are achieved in a manner that does not (in) advertently re-victimise the already victimised.422

III. Summary A large-scale empirical study recently commissioned by Richard Frank and Beth Simmons of Harvard University suggests that, statistically, the criminal justice approach has made a significant contribution to reducing the likelihood of a ‘trafficking corridor’ developing between neighbouring countries.423 The study further indicates that stringent law enforcement efforts on the part of several states result in a significant reduction in observed trafficking that is ‘well above and beyond the benefits of one-sided enforcement’.424 As such, it would appear that compatible policies on the part of both source and destination countries are needed in order to better combat human trafficking. Notwithstanding this positive outlook, however, it is perhaps axiomatic that the criminal justice approach alone is a wholly insufficient regulatory framework for comprehensively addressing the phenomenon and, indeed, the myriad needs of trafficked victims. Equally, however, although the human rights approach offers practical solutions that could address the ‘broader social aspects of t­rafficking’,425 as well as the immediate and long-term needs of trafficked victims, such an approach – in the absence of a robust criminal justice framework – is also an ­insufficient regulatory framework. Against this backdrop, it is submitted that in order to avert what Gallagher and Holmes describe as possible ‘irrelevance and failure’,426 both the human rights and criminal justice approaches must work synergistically, ‘mutually reinforcing, and not necessarily conflicting with each other’,427 as suggested by Tomoya Obokata.

422 UN General Assembly, ‘Report of the Special Rapporteur on Trafficking in Persons, especially Women and Children: A Human Rights-based Approach to the Administration of Criminal Justice in Cases of Trafficking in Persons’ (A/HRC/20/18, 6 June 2012) [100] (noting that ‘as States work to adopt a rights-based approach, they should be cognisant of the fact that certain laws and policies may have unintended negative consequences for victims of trafficking. Laws or policies that infringe the right to movement for victims or that impose mandatory detention or rehabilitation in the name of protection are in violation of human rights laws and may deny victims the right to a proper remedy’). 423 R Frank and B Simmons, ‘National Law Enforcement in a Globalized World: The Case of Human Trafficking’ (APSA Annual Meeting Paper, 2013) 12. 424 ibid 14. 425 Boukli (n 17) 19. 426 Gallagher and Holmes (n 28) 321. 427 Obokata, Trafficking of Human Beings from a Human Rights Perspective (n 2) 169.

Summary  105 The underlying tenets of the criminal justice and human rights approaches have informed the typology of obligations that will be utilised in this monograph. More specifically, while criminal justice considerations primarily inform the normative paradigm, human rights considerations inform the individual paradigm. And, finally, the institutional paradigm is informed by both criminal justice as well as human rights tenets.

A.  Typology of Obligations I have applied the ‘NII’ typology to extrapolate, in a taxonomical manner, the main international obligations by which states are bound. Though not exhaustive, these obligations or ‘benchmarks’428 are derived from the international criminal justice and human rights instruments extensively discussed above. These benchmarks serve as the backdrop against which the law and practice on human trafficking in the Commonwealth Caribbean will be assessed. The key consideration, in this regard, is the extent to which anti-trafficking law, when viewed in light of state practice, has aligned itself with the myriad obligations imposed by international law. As illustrated in the table below, the ‘NII’ typology consists of three paradigms. The first is the ‘Normative’ paradigm. This is concerned with the substantive norms that serve as standards with which states must comply in order to effectively prosecute traffickers, thereby implementing core aspects of their international criminal justice obligations. While the norms that potentially fall under the normative paradigm are manifold in nature, only five of these norms are dealt with in this monograph, primarily because of space limitations.429 The second element of the typology, the ‘Institutional’ paradigm, is concerned with the interaction between competent authorities and the agencies within which they operate. The key areas of interest in this regard relate to the role that these personnel and bodies play in making, applying and enforcing anti-trafficking law. The ‘Institutional’ paradigm raises a number of key questions about organisational capacity, procedures, practices, attitudes and understandings that invariably influence how anti-trafficking law is implemented in practice.430 Finally, the third element of the ‘INI’ typology can be described as the ‘Individual’ paradigm because it is concerned with the state’s substantive human rights obligations towards victims.431 For the purposes of this monograph, this paradigm is essential, as it allows for an assessment of the law and practice with respect to how the rights of trafficked victims have been operationalised in practice across multiple jurisdictions.

428 ibid 312. 429 Other normative issues which could be considered in greater detail include the exercise of ­jurisdiction, the existence of sentencing guidelines, and the cooperation of victims. 430 D Galligan, Law in Modern Society (Oxford University Press, 2007) 324–25. 431 ibid 123.

106  International Dimensions Table 1 below outlines the core benchmarks that are applicable under the respective paradigms of the NII typology, as extrapolated from the criminal justice and human rights approaches to human trafficking. Table 1  Typology of Obligations Normative Paradigm The obligation to: a. b. c. d. e.

Criminalise trafficking in all its forms, and to address official complicity. Impose commensurate penalties. Confiscate/forfeit criminal property and proceeds. Provide compensation/restitution to victims. Conduct effective investigations.

Institutional Paradigm The obligation to: a. Place human trafficking on the national agenda by, among other things, raising awareness. b. Conduct effective victim identification and referral. c. Conduct efficacious criminal proceedings. d. Collaborate nationally, regionally and internationally. e. Build the capacity of stakeholders working in the anti-trafficking field. Individual Paradigm The obligation to: a. b. c. d. e. f. g. h. i. j.

Give primacy to the rights of victims. Provide basic supplies to victims. Provide medical and psychological assistance to victims. Afford children specialised care and treatment. Provide safe and secure accommodation. Protect the privacy of victims and ensure confidentiality. Provide information, documentation and interpretation/translation. Regularise victims’ immigration status. Ensure the safe repatriation of victims. Assist in the reintegration of victims.

Conclusion This chapter sought to provide a thorough and informed analysis of the international regulatory approaches to human trafficking from an Analytical Eclectic perspective. Among other things, this chapter has identified a large and everexpanding corpus of international norms and jurisprudence on human trafficking, which fall along the criminal justice and human rights continuum. The chapter has also explored the tension between the criminal justice and human rights

Conclusion  107 approaches to human trafficking and has argued that while the relationship between these two approaches is complex and often conflicting, there is nonetheless room for mutual complementarity, based on a shared endeavour across the proverbial divide to eliminate all forms of trafficking. Notwithstanding the typology of obligations explored, which is derived from the duties imposed on states by various international anti-trafficking instruments, this chapter has argued that a number of harmful hegemonic assumptions continue to arise in practice, which challenge how we conceive the answer to the question of how effective international law has been, in light of state practice, in curtailing the quickly evolving dynamics of human trafficking.

4 The European Approach to Human Trafficking Introduction Europe1 is no stranger to the phenomenon of human trafficking. In fact, since the dawn of the twentieth century,2 European countries have been faced with the perennial problem of human trafficking, the dynamics of which are constantly evolving.3 In more recent years, following the collapse of the Soviet Union,4 and the gradual expansion in free movement rights in the European Union,5 the struggle against the phenomenon has greatly intensified.6 In view of the serious threat posed by traffickers to the security of Europe,7 the two leading regional organisations in this region8 – the European Union (EU) and the Council of Europe (CoE) – have individually and collectively resolved to combat human trafficking through the adoption of various measures. Although the relative effectiveness of these measures, as a matter of practice, remains questionable,9 it is widely acknowledged 1 For the purposes of this monograph, ‘Europe’ is broadly construed to include those countries which are members of the European Union and the Council of Europe, although there is, of course, some overlap in membership. In short, 47 countries are deemed to comprise ‘Europe’ for the purposes of this volume. 2 J Doezema, ‘Loose Women or Lost Women? The Re-Emergence of the Myth of White Slavery in Contemporary Discourses of Trafficking in Women’ (1999) 18(1) Gender Issues 23, 24 (discussing the struggle to combat ‘White Slave Traffic’ in Europe in the early parts of the twentieth century). 3 A Jonsson, Human Trafficking and Human Security (Routledge, 2012) 39. 4 M Palmiotto (ed), Combating Human Trafficking: A Multidisciplinary Approach (CRC Press, 2015) xx. 5 P Bąkowski, ‘The Problem of Human Trafficking in the European Union’ (European Parliamentary Research Service, 2014) 3. 6 I Jonsson, ‘Prostitution and Trafficking in a European Context: Recent Trends and Developments’ in M Koch, L McMillan and B Peper (eds), Diversity, Standardization and Social Transformation: Gender, Ethnicity and Inequality in Europe (Ashgate, 2011) 46. 7 D Hughes, ‘Trafficking in Human Beings in the European Union: Gender, Sexual Exploitation, and Digital Communication Technologies’ (2014) 4(4) SAGE Open 1. 8 Focus on the EU and CoE is without prejudice to the work of the Organization for Security and Co-operation in Europe (OSCE). Special consideration of the EU and CoE is, however, warranted on the basis that, unlike the OSCE, these two organisations have enacted several pieces of hard law, as opposed to mere soft law, instruments. The OSCE has, however, produced academic commentaries in the areas of trafficking for the removal of organ, trafficking as amounting to torture and other forms of ill-treatment, as well as the non-punishment of trafficked victims. 9 S Maier and F Schimmelfenning, ‘Shared Values: Democracy and Human Rights’ in K Weber, M Smith and M Baun (eds), Governing Europe’s Neighbourhood: Partners Or Periphery?

Situational Overview  109 that the introduction of these measures has had a real and lasting impact in a number of European countries. Against this backdrop, this chapter aims to present an authoritative overview of European anti-trafficking law by identifying some of the main obligations by which the United Kingdom (UK) is bound. These obligations will serve as the benchmarks against which the effectiveness of the UK’s domestic anti-trafficking law and practice will be assessed in chapter five.

I.  Situational Overview With the exception of Andorra10 and San Marino,11 the vast majority of European countries have reported the occurrence of at least one form of human trafficking. In a comprehensive statistical study recently published by the Statistical Office of the EU (EUROSTAT),12 it was reported that, although the vast majority of victims of trafficking are women and girls (80 per cent), a growing number of men (17 per cent) and boys (3 per cent) are also being trafficked. The majority of these victims are trafficked into sexual exploitation (69 per cent), a sizeable minority into labour exploitation (19 per cent) and a small minority (12 per cent) into other forms of exploitation, such as the removal of organs, forced begging and other criminal activities. Contrary to sensationalist reports which may sometimes give the impression that it is only ‘foreign’ women who are trafficked,13 the study concluded that the majority (65 per cent) of trafficked victims come from within Europe, with the top five countries of origin being Romania, Bulgaria, the Netherlands, Hungary and Poland.14 The study also found that the majority of non-European victims of trafficking come from Nigeria, Brazil, China and Viet Nam.15 In terms of the likelihood of being trafficked, the study suggests that Bulgarian, Romanian, Latvian, Hungarian, Slovakian, Lithuanian and Dutch citizens are most likely to come into contact with authorities as victims of trafficking.16 In so far as the profile of traffickers is concerned, although the study conceded that the vast majority of traffickers are male (70 per cent), it was also considered (Manchester University Press, 2007) 52; L Blum, Sex Trafficking and Political Discourse: A Case Study of the ­Perceptions and Definition of the Problem and its Victims in Moldova (ProQuest, 2008) 198. 10 GRETA, Report on Andorra (GRETA(2014)16, 2014) [10]. 11 GRETA, Report on San Marino (GRETA(2014)19, 2014) [10]. 12 EUROSTAT, Trafficking in Human Beings, 2nd edn (European Union, 2014) 10. This report included statistical data from all 28 EU Member States and the following EU Candidate and EFTA/ EEA (Iceland, Norway) countries: Montenegro, Serbia, Switzerland and Turkey. Given that 13 other countries are omitted from this study, the statistics provided must be treated with caution, as they may only paint a partial picture of the existing profile of human trafficking in Europe, broadly defined. 13 M Hajdukowski-Ahmed, ‘Reconceptualizing Identities’ in M Hajdukowski-Ahmed (ed), Not Born a Refugee Woman: Contesting Identities, Rethinking Practices (Berghahn Books, 2013) 26. 14 EUROSTAT, Trafficking in Human Beings (n 12) 11. 15 ibid. 16 ibid.

110  European Approach to Human Trafficking that a growing number of females are being implicated in trafficking-related offences.17 Additionally, the study dispelled the view that traffickers primarily originate from outside Europe, finding instead that about two-thirds of suspected traffickers are actually European citizens (69 per cent).18 In this context, the study found that the top five countries of citizenship of traffickers are Bulgaria, Romania, Belgium, Germany and Spain, although a growing number of traffickers originate from Nigeria, Turkey, Brazil and Morocco. These statistics, while not intending to be an exhaustive account of the profile of human trafficking in Europe, suggest that human trafficking, in its myriad forms, is a contemporary challenge faced by most European countries. More specifically, these statistics indicate in no uncertain terms that trafficking is a problem that adversely affects men and women, boys and girls, the rich and the poor, black and white; no one is immune.

II.  Legal Frameworks The EU and CoE have, for several decades, been at the forefront of anti-­trafficking efforts in Europe. Notwithstanding the fact that both organisations share the common goals of preventing human trafficking, prosecuting traffickers and protecting victims, it must be borne in mind that they aim to achieve these important goals through different means. This section therefore briefly explores the legal underpinnings of these organisations, which in practice impact the scope and method of anti-trafficking regulation in Europe.

A.  The European Union (EU) In accordance with Article 2(2) of the Treaty on the Functioning of the European Union (TFEU), both the EU and its 28 Member States have, in principle, shared competence in the area of freedom, justice and security,19 which includes action against human trafficking.20 That said, once the EU, as it has done, decided to adopt legally binding instruments in this area, Member States have effectively been pre-empted from exercising competence that was previously shared.21 The EU’s exercise of competence in respect of human trafficking has not, however, 17 ibid 12. 18 ibid. 19 Art 4(2)(J) TFEU. 20 ibid Art 79(1) and 2(d). 21 See generally, D Chalmers, G Davies and G Monti, European Union Law: Cases and Materials (Cambridge University Press, 2010) 208; H-J Blanke and S Mangiameli, The European Union after Lisbon: Constitutional Basis, Economic Order and External Action (Springer, 2011) 318; D Ashiagbor, N Countouris and I Lianos, The European Union After the Treaty of Lisbon (Cambridge University Press, 2012) 63.

Legal Frameworks  111 been unchecked. In purporting to legislate in this area, the EU has had to comply with the principle of conferral,22 which stipulates that it could only act within the limits of the competence conferred upon it by the Member States so as to attain the objective of ‘combat[ing] trafficking in human beings’.23 The EU has also had to comply with the principle of subsidiarity;24 that is, before Directives on human trafficking could be adopted, the Commission, in particular, had to demonstrate that the objective of combating human trafficking could not have been sufficiently achieved by Member States and could, therefore, by reason of the scale and effects of the action required, be better achieved at Union level.25 In addition, the EU has also had to demonstrate, in accordance with the principle of proportionality,26 that the respective Directives on human trafficking did not ‘go beyond what [was] necessary’ to achieve the objective of combating trafficking in persons. Moreover, the EU, in seeking to introduce Directives on human trafficking, has also had to comply with the fundamental rights recognised by the Charter of Fundamental Rights (CFR), including Article 5(3) which expressly prohibits human t­ rafficking.27 If these requirements had not been satisfied, EU Member States could have, ex post, applied to the Court of Justice of the European Union (CJEU) to have the relevant Directives rendered null and void.28 Having satisfied the preconditions identified above, EU anti-trafficking law, primarily in the form of Directives, has to be afforded primacy in the domestic jurisdiction of each EU Member State.29 In other words, given the supranational status of EU law, as well as the need to secure its effectiveness,30 domestic laws of EU Member States, including their constitutions,31 must be consistent with EU anti-trafficking law, failing which they will be disapplied to the extent of their inconsistency.32 On a related note, it must be acknowledged that, pursuant to Article 83(1) TFEU, the EU has been empowered to adopt Directives so as combat human trafficking, a phenomenon which has been explicitly identified by the Treaty as a ‘serious crime with a cross-border dimension’.33 More specifically, the EU has to 22 Art 5(1) Treaty on European Union (TEU). 23 Art 79(1) TFEU. 24 Art 5(3) TEU. 25 See, eg, Recital 32 of Directive 2011/36/EU (Anti-Trafficking Directive). 26 Art 5(4) TEU. 27 Charter of Fundamental Rights of the European Union (entered into force 21 December 2009) Art 5(3) (CFR). 28 Ex ante control in respect of subsidiarity, for example, is achieved through the application of ­Protocol 2 attached to the Treaty of Lisbon, Arts 1–7. In contrast, ex post control is achieved by virtue of Art 263 TFEU. See, eg, Case C-376/98 Ban on Advertising of Tobacco Products [2000[ ECR I-8419. See also, H-J Blanke and S Mangiameli, The Treaty on European Union (TEU): A Commentary (Springer, 2013) 261; K Mathis, Law and Economics in Europe: Foundations and Applications (Springer, 2013) 292. 29 Case 6/64 Flaminio Costa v ENEL [1964] ECR 585. 30 L Woods and P Watson, Steiner & Woods EU Law, 12th edn (Oxford University Press, 2014) 86. 31 Case 11/70 Internationale Handelsgesellschaft [1970] ECR 1125. 32 Case 264/96 ICI v Colmer [1998] ECR I-4695. 33 Art 83 (1) TFEU.

112  European Approach to Human Trafficking date adopted a number of Directives aimed at achieving the Article 79(1) TFEU objective of preventing and combating trafficking in persons. The most relevant of these Directives,34 for the purposes of this monograph, are the Anti-Trafficking Directive,35 the Standing of Victims Directive,36 the Residence Permit Directive37 and the Compensation Directive.38 Although these Directives are not directly applicable in the national law of EU Member States,39 they may nevertheless be relied upon in domestic courts (direct effect)40 in those circumstances where sufficiently clear, precise and unconditional41 provisions of the Directives have been incorrectly transposed or, though correctly transposed, are not properly applied in practice.42 Of note, however, is the fact that any action brought in this regard ought to be against the infringing Member State,43 and not against other private individuals, as the latter would amount to horizontal,44 as opposed to vertical, direct effect.45 That said, even those provisions of the relevant EU Anti-trafficking Directives which are not sufficiently precise, clear and unconditional may nevertheless be subject to the principle of indirect effect,46 wherein which national courts are under an obligation to interpret, in

34 Note that although the EU has signed, but not ratified, the Trafficking Protocol to date, a vast majority of the Protocol’s provisions are included in the relevant EU anti-trafficking directives. See, ‘Ratification Status’ (UN Treaty Collection, 6 September 2006), available at: treaties.un.org/Pages/ ViewDetails.aspx?src=TREATY&mtdsg_no=XVIII-12-a&chapter=18&lang=en. On the effect of international instruments in the EU legal order, See Joined Cases 21-24/72 International Fruit Company [1972] ECR 1219. 35 Directive 2011/36/EU of the European Parliament and of the Council of 5 April 2011 on preventing and combating trafficking in human beings and protecting its victims, and replacing Council Framework Decision 2002/629/JHA (OJ L 101/1) (Anti-Trafficking Directive). 36 Directive 2012/29/EU of the European Parliament and of the Council of 25 October 2012 establishing Minimum Standards on the Rights, Support and Protection of Victims of Crime, and replacing Council Framework Decision 2001/220/JHA. 37 Council Directive 2004/81/EC of 29 April 2004 on the residence permit issued to third-country nationals who are victims of trafficking in human beings or who have been the subject of an action to facilitate illegal immigration, who cooperate with the competent authorities. Note that the UK has opted out of this Directive. 38 Council Directive 2004/80/EC of 29 April 2004 relating to compensation to crime victims. 39 Art 288 TFEU (Directives are binding on Member States as to the result to be achieved, but leave the means of implementation to those states). 40 A Kaczorowska, European Union Law (Routledge, 2013) 271. 41 Joined Cases C-6 and 9/90 Francovich and Bonifaci v Republic of Italy [1991] ECR I-5375; Case 148/78 Pubblico Ministero v Ratti [1979] ECR 1629. (The deadline for transposition of the ­Directive was 6 December 2013.) See C Malmström, ‘EU takes eradication of trafficking in human beings from words to action’ (European Commission, 17 October 2014). 42 Case C-62/00 Marks & Spencer Plc v Commissioners of Customs & Excise [2002] ECR I-6325. 43 Case 152/84 Marshall v Southampton and South-West Hampshire Area Health Authority (Teaching) [1986] ECR 723. 44 For the rationale behind the rejection of horizontal direct effect of the Directive, see C-91/92 Paola Faccini Dori v Recreb Srl [1994] ECR I-3325. 45 Case C-188/89 Foster v British Gas [1990] ECR I-3313, [20]. 46 See generally, C Barnard and S Peers, European Union Law (Oxford University Press, 2014) 154 (noting that if a private entity carries out a public service, it could be treated as having special powers conferred by the state, and therefore an action on the basis of direct effect will be entertained).

Legal Frameworks  113 so far as it is possible to do so,47 conflicting national legislation in a way which ensures that the objectives of EU anti-trafficking law are achieved.48 Additionally, in those circumstances where a trafficked victim can prove that a provision of an EU anti-trafficking Directive conferred a right upon her or him, that that right was breached in a sufficiently serious way,49 and that damage resulted as a consequence of the breach, she or he will be able to recover compensation for any harm caused50 under the principle of state liability.51 The European Commission may also, pursuant to Article 258 TFEU, exercise its discretion52 to bring infringement actions before the CJEU so as to ensure that Member States which do not comply with their EU anti-trafficking obligations are held accountable.53 Apart from the EU Commission, the EU Anti-Trafficking Coordinator,54 as well the EU Group of Experts on Trafficking in Human Beings (EUGET),55 also play an important role in ensuring accountability in the field of EU anti-trafficking law.

47 C-106/89 Marleasing SA v La Comercial Internacional de Alimentacion SA [1990] ECR I-4135. 48 Cases 14/83 Von Colson and Kamann [1984] ECR 1891. Note that such interpretation cannot, however, circumvent the rules relating to contra legem, the non-imposition of criminal sanctions and the principle of non-retroactivity (C-60/02 X (‘Rolex’), Criminal Proceedings against [2004] ECRI-651). Note also that national courts are under a negative obligation to refrain from interpreting requisite domestic legislation in a way which would be incompatible with the objectives of un-transposed EU Directives (Case C-212/04 Adeneler and Others [2006] ECR I-6057). 49 See R Schütze, European Constitutional Law (Cambridge University Press, 2012) 401. In considering the seriousness of the alleged breach, the CJEU will have regard to, inter alia, the clarity and precision of the rule breached; the measure of discretion left to national authorities; whether the infringement or damage was caused voluntarily or intentionally; whether there exist any errors of law which were excusable or inexcusable; whether the position taken by an EU institution contributed to the Member State’s omission; and whether the Member State continues to adopt or retain the allegedly infringing practice. 50 Case C-66/95 Sutton v Secretary of State for Social Security [1997] ECR I-2163, [1997] 2 CMLR 382 [33]–[34]. National courts have the jurisdiction to assess the amount of damage, whenever the national law does not treat breaches of EC law less favourable than similar domestic claims, nor make it virtually impossible/excessively difficult to obtain reparation. 51 Joined Cases C-6 and 9/90 Francovich and Bonifaci v Republic of Italy [1991] ECR I-5375; C-48/93 Brasserie du Pêcheur and Factortame III [1996] ECR I-1029. Note that claims are not n ­ ecessarily restricted to the allegedly infringing actions of the legislature or executive; they also extends to the allegedly unlawful actions of courts of last instance (see Case C-224/01 Köbler v Austria [2003] ECR-I 10239). 52 Communication from the Commission to the Council and the European Parliament ‘Updating the handling of relations with the complainant in respect of the application of Union law’ COM/2012/0154, final. Five steps must be taken by the Commission: (1) issuance of a letter of notification; (2) issuance of a formal notice if the state remains non-compliant; (3) issuance of a reasoned opinion; (4) provision of an opportunity for the Member State to challenge the reasoned opinion; and (5) bringing of formal proceedings before the CJEU if the Member State remains non-compliant. 53 If the CJEU finds that there was a failure to comply with EU law, it may impose a lump sum payment or penalty payment (Article 260(2) TFEU). See also, P Craig and G de Búrca, EU Law: Text, Cases, and Materials (Oxford University Press, 2011) 443. 54 ‘Myria Vassiliadou: EU Anti-Trafficking Coordinator’ (Europa, March 2011). She also oversees the implementation of the EU Anti-Trafficking Strategy. See ‘Communication on the EU Strategy towards the Eradication of Trafficking in Human Beings 2012–2016’ COM(2012) 286, final. 55 ‘Commission Expert Group’ (Europa, 5 December 2011).

114  European Approach to Human Trafficking

B.  Council of Europe For the purposes of this monograph, two main CoE legislative instruments will be examined;56 these are the European Convention on Human Rights (ECHR) and the CoE Anti-Trafficking Convention. As will be discussed later in this chapter, although the ECHR does not contain a specific provision against ‘human trafficking’, at least one recently decided case – Rantsev v Cyprus and Russia – appears to suggest that the European Court of Human Rights (ECtHR) is nevertheless prepared to rely on the teleological approach so as to construe trafficking as falling within the ambit of Article 4 of the ECHR.57 Less controversial, however, is the Anti-Trafficking Convention, which has been ratified by some 42 European countries to date58 and, as discussed below, is arguably the most comprehensive regional anti-trafficking treaty in existence today. The implementation of this Convention is supervised by the Group of Experts on Action against Trafficking in Human Beings (GRETA) and the Committee of the Parties (CoP). The former is composed of 15 independent and impartial human rights experts, and serves to regularly evaluate the legal situation regarding human trafficking in each Member State that is party to the Convention, drawing on information collected from a variety of sources, including country visits.59 GRETA regularly issues ‘country reports’ on the implementation of the Convention which, while drawn up in a cooperative spirit, are intended to assist States Parties to the Convention in their anti-trafficking efforts. The CoP, by contrast, is composed of representatives from the Committee of Ministers of the Parties to the Convention, as well as representatives of non-member parties of the CoE.60 On the basis of GRETA’s reports, the CoP frequently adopts recommendations addressed to States Parties concerning the measures to be taken to implement GRETA’s conclusions.61

56 cf since the 1990s, the CoE has adopted a number of Recommendations regarding several aspects of human trafficking. These were, however, non-binding, and not effectively implemented by Member States. See, eg, Parliamentary Assembly Recommendation 1663 (2004) on domestic slavery: servitude, au pairs and mail-order brides (text adopted by the Assembly on 22 June 2004 (19th Sitting)); Recommendation 1545 (2002) on a campaign against trafficking in women (adopted 21 January 2002) (1st Sitting). 57 Rantsev v Cyprus and Russia [2010] ECHR 22 [282] (Rantsev). 58 To date, the Convention has not been ratified by Estonia and Turkey. The Greek Parliament has recently voted for the ratification and is expected to formally deposit the instrument soon. Four CoE Member States (the Czech Republic, Liechtenstein, Monaco and the Russian Federation) have not even signed the Convention as yet. 59 GRETA, First General Report on GRETA’s activities covering the period from February 2009 to July 2011 (Council of Europe, 2011) 10. 60 Note that the CoE Anti-Trafficking Convention allows for ratification by non-CoE State Parties. See Council of Europe Convention on Action Against Trafficking in Human Beings (adopted 16 May 2005, entered into force 1 February 2008) CETS 197 (CoE Anti-Trafficking Convention) Art 42. 61 For a full list of Recommendations, see Council of Europe, ‘Action Against Trafficking in Human Beings’ (Council of Europe, 26 September 2011).

Political and Institutional Commitment  115

III.  Political and Institutional Commitment Human trafficking is not a new phenomenon within the context of Europe.62 What is relatively new, however, is sustained action against the phenomenon that is both targeted and comprehensive.63 Indeed, a diachronic assessment of European anti-trafficking law and practice reveals that, for a long time, human trafficking in Europe was largely addressed in a piecemeal and inconsistent manner, with a near ubiquitous criminal justice focus on sexual exploitation.64 It was only at the beginning of the twenty-first century that this narrow, and largely inefficacious, approach was supplanted by a more pragmatic approach that viewed trafficking from a multidisciplinary perspective.65 In more recent years, a so called ‘victimcentered’ approach has emerged so as to better reflect the lived experiences of trafficked victims.66 The successful development of the institutional framework to combat human trafficking in Europe is largely due to the pioneering work of several key actors and institutions.67 At the EU level, the European Commission, with assistance from EUGET, has been at the forefront of regional action against human trafficking.68 More specifically, the Commission has periodically assessed EU Member States’ implementation of their anti-trafficking obligations; provided guidance on areas where improvements have been required; and, in rare cases, has even taken enforcement action against EU Member States for their alleged infringement of the obligations imposed by EU anti-trafficking law.69 The work of the 62 G Campani, ‘Trafficking for Sexual Exploitation and the Sex Business in the New Context of International Migration: The Case of Italy’ in J Arango and M Baldwin-Edwards (eds), Immigrants and the Informal Economy in Southern Europe (Routledge, 2014) 238. 63 J Goodey, ‘Sex Trafficking in Women from Central and East European Countries: Promoting a “Victim-Centred” and “Woman-Centred” Approach to Criminal Justice Intervention’ (2004) 76(1) Feminist Review 26, 30. 64 H Askola, Legal Responses to Trafficking in Women for Sexual Exploitation in the European Union (Hart Publishing, 2007) 99. 65 S FitzGerald, ‘Putting Trafficking on the Map: The Geography of Feminist Complicity’ in M della Giusta and V Munro (eds), Demanding Sex: Critical Reflections on the Regulation of Prostitution: Critical Reflections on the Regulation of Prostitution (Ashgate Publishing, 2013) 102. cf S Krieg, ‘Trafficking in Human Beings: The EU Approach between Border Control, Law Enforcement and Human Rights’ (2009) 15 European Law Journal 775, 790 (arguing that ‘using multi-facets of different legal fields to answer the problem of human trafficking is limited by its dominant representation as criminal conduct’). 66 J Bell et al, ‘Fortress Europe: Restrictive Immigration Policies as a Trigger of Potential Conflict(s)? in P Lopes and S Ryan (eds), Rethinking Peace and Security: New Dimensions, Strategies and Actors (Universidad de Deusto, 2009) 117. 67 C Friesendorf, ‘Pathologies of Security Governance: Efforts against Human Trafficking in Europe’ (2007) 38 Security Dialogue 379, 382. 68 M Ventrella, The Control of People Smuggling and Trafficking in the EU: Experiences from the UK and Italy (Ashgate Publishing, 2013) 51. 69 See, eg, Case C‑266/08 Commission v Spain, Judgment of the Court (Sixth Chamber) (14 May 2009). The CJEU held that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with the Residence Permit Directive, and by failing to communicate to the Commission of the European Communities the provisions of national law intended to contribute to ensuring such compliance, the Kingdom of Spain has failed to fulfil its obligations under that Directive. See also S Peers, EU Justice and Home Affairs Law (Oxford University Press, 2011) 557.

116  European Approach to Human Trafficking Commission has been augmented by the EU Anti-Trafficking Coordinator, who is responsible for improving coordination and coherence among EU institutions, Member States and international actors in the anti-trafficking field.70 Additionally, the EU Network of National Rapporteurs has played an important role in raising the profile of human trafficking across the EU, by monitoring the implementation of EU anti-trafficking law by the respective EU Member States.71 In more recent years, the work of these institutions has been strongly augmented by the ongoing activities of several European agencies, including the European Union Agency for Law Enforcement Cooperation (EUROPOL), the European Union’s Judicial Cooperation Unit (EUROJUST) and the European Border and Coast Guard Agency (Frontex).72 At the CoE level, apart from GRETA and the CoP,73 which, as intimated above, have done an exceptional amount of work in monitoring Member States’ implementation of their anti-trafficking obligations, the Parliamentary Assembly of the CoE (PACE) as well as the Committee of Ministers (CoM) have also worked assiduously in an effort to place pressure on CoE Member States to effectively implement, and comply with, European anti-trafficking law.74 Collectively, these institutions, as well as the various country-specific National Rapporteurs, have sought to ensure that action against human trafficking in Europe is afforded the level of primacy that it deserves.75

IV.  Public Awareness, Stakeholder Collaboration and Capacity Building It is perhaps axiomatic that without an acute awareness of the unique and, indeed, evolving dynamics of human trafficking, it is difficult to properly identify, refer or support victims of trafficking.76 More specifically, without a firm appreciation of the nuances associated with the phenomenon, there will be, among other things, conflation between trafficking and other closely related criminal activities such as smuggling, as well as misplaced hegemonic assumptions about who ‘real’ victims of

70 ‘Myria Vassiliadou: EU Anti-Trafficking Coordinator’ (Europa, 2014). 71 ‘National Rapporteurs and/or Equivalent Mechanisms’ (Europa, 2014). 72 J Winterdyk, B Perrin and P Reichel, Human Trafficking: Exploring the International Nature, Concerns, and Complexities (CRC Press, 2011) 43. 73 In all these recommendations, the Committee set a period of two years for the Party concerned to provide information on the measures taken to comply with the recommendation. 74 R Pardo, Handbook for Parliamentarians: The Council of Europe Convention on Action against Trafficking in Human Beings (Council of Europe, 2009) 12–14. 75 E Savona and S Stefanizzi, Measuring Human Trafficking: Complexities and Pitfalls (Springer, 2007) 42. 76 E O’Brien, ‘Ideal Victims in Trafficking Awareness Campaigns’ in K Carrington, M Ball, E O’Brien and J Tauri (eds), Crime, Justice and Social Democracy: International Perspectives (Palgrave Macmillan, 2012) 315.

Public Awareness, Stakeholder Collaboration and Capacity Building  117 trafficking are.77 In view of this, European anti-trafficking law places an obligation on competent national authorities to take the necessary measures to educate the public about the risks associated with human trafficking, the practical steps which can be taken to correctly identify, refer and support victims, as well as that which can be done to discourage the demand for the services of these victims.78 Cognisant of the significance of this obligation, as well as the challenges associated with its implementation, European anti-trafficking law also envisages that this obligation will be executed in a multidisciplinary manner that embraces the contribution of the average citizen, civil society, the media as well as public authorities and ­policymakers.79 The means through which European anti-trafficking law ­envisages the operationalisation of awareness-raising programmes are manifold, but include, at a minimum, research and education programmes, as well as the utilisation of modern forms of technology.80 Given that human trafficking is a quickly evolving, multidimensional, and often transnational, phenomenon, it is clear that it cannot be effectively combated by one country, agency or actor.81 Rather, collaboration at the international, regional and domestic levels must be actively embarked upon in a systematic, as opposed to fragmented or spasmodic, way.82 Against this backdrop, European anti-trafficking law explicitly obliges European countries to collaborate with each other in an effort to facilitate and enhance action against trafficking in human beings.83 Collaboration, in this regard, is not restricted to formal interstate ­cooperation; in fact, European anti-trafficking law envisages that information, research, as well as best practices will be shared among the various agencies – both state and civil s­ ociety84 – that constitute a country’s anti-trafficking machinery.85 Collaboration, in the form of intelligence sharing, capacity building and joint investigations, is also envisaged as between the competent national authorities of European countries and third countries, as well as with various international and regional organisations, including European Union agencies.86 77 S Schatral, ‘Awareness Raising Campaigns against Human Trafficking in the Russian Federation: Simply Adding Males or Redefining a Gendered Issue?’ (2010) 28(1) Anthropology of East Europe Review 239, 240. 78 Art 18(1) EU Anti-Trafficking Directive; Arts 5(2) and (4) and 6 CoE Anti-Trafficking Convention. 79 Art 18(2) EU Anti-Trafficking Directive; Art 26(2) Standing of Victims Directive; Art 5(1) CoE Anti-Trafficking Convention. 80 Art 18(2) EU Anti-Trafficking Directive; Art 26(2) Standing of Victims Directive. 81 J Sheldon-Sherman, ‘The Missing “P”: Prosecution Prevention Protection and Partnership in the Trafficking Victims Protection Act’ (2012) 117(2) Penn State Law Review 443, 475. 82 M McSween, ‘Investing in the Business against Human Trafficking: Embracing the Fourth P-Partnerships’ (2011) 6 Intercultural Human Rights Law Review 283, 286; A Gallagher, ‘Trafficking, Smuggling and Human Rights: Tricks and Treaties’ (2002) 12(25) Forced Migration Review 8, 27. 83 Recital 5 EU Anti-Trafficking Directive; Art 26(1) Standing of Victims Directive; Art 9 CoE Anti-Trafficking Convention. 84 Recital 6 EU Anti-Trafficking Directive; Arts 12(5) and 35 CoE Anti-Trafficking Convention. 85 Arts 5(1), 32 and 34 CoE Anti-Trafficking Convention. 86 Recital 5 EU Anti-Trafficking Directive. (This Recital envisages that EU Member States will make use of EU agencies, such as EUROPOL and EUROJUST, to facilitate investigations and prosecutions of trafficking in persons.)

118  European Approach to Human Trafficking In practice, it is certainly commendable that, through the coordinating efforts and oversight of the International Criminal Police Organization (INTERPOL)87 and the EU Fundamental Rights Agency (FRA),88 EUROPOL has facilitated highlevel anti-trafficking investigations at the European level;89 Frontex has coordinated Joint Operations in which the issue of human trafficking was a major priority;90 and EUROJUST has initiated criminal investigations into human trafficking cases and successfully facilitated the prosecution of traffickers as a result of joint judicial cooperation.91 It is also commendable that, at the CoE level, GRETA and the COP, in conjunction with the aforementioned EU agencies,92 the Organization for Security and Co-operation in Europe (OSCE), the UN Special Rapporteur on Human Trafficking, the United Nations Office on Drugs and Crime (UNODC) and the International Organization for Migration (IOM), have successfully hosted a number of consultations, workshops and capacity-building programmes which have helped to raise the profile of human trafficking in Europe.93 On the issue of capacity building, it is important to note that stakeholders in the anti-trafficking field across Europe are frequently called upon to perform the difficult tasks of investigating trafficking-related offences, identifying and referring victims of trafficking, as well as adjudicating on a number of other sensitive issues which may involve competing rights and interests. Given the importance of these undertakings, a failure on the part of stakeholders to properly execute their respective mandate(s) could have devastating repercussions on both the human rights and criminal justice fronts.94 Against this backdrop, European anti-trafficking law obliges European countries to systematically train key stakeholders working in the anti-trafficking field.95 Training must not only target law enforcement personnel, such as police officers, labour officers and immigration personnel, but also judicial officers, such as lawyers, prosecutors and judges, as well as healthcare, consular 87 ‘Partnerships’ (Interpol, 2014). 88 European Union Agency for Fundamental Rights, Fundamental rights: challenges and achievements in 2011 (European Union, 2012) 110. 89 EUROPOL, The EU Serious and Organised Crime Threat Assessment (European Union, 2013) (‘Operation Veerde’, involving the Czech Republic and the UK, resulted in 11 arrests); see also, EUROPOL, Europol Review – General Report on Europol Activities (European Union, 2011) (Europol supported joint investigation teams (JITs), including ‘Operation Gulf ’ which resulted in the rescuing of 28 trafficked children between the UK and Romania and some 126 arrests); EUROPOL, Joint Action to Tackle West African Human Trafficking Networks (Europol, 26 October 2012) (Europol conducted a joint action initiative to tackle West African trafficking networks). 90 See, eg, Frontex, ‘Joint Operation Agelaus’ (Frontex, 2010); Frontex, ‘Joint Operation Minerva’ (Frontex, 2011); Frontex, ‘Joint Operation Indalo’ (Frontex, 2011). 91 EU Judicial Cooperation Unit, Strategic Report ‘Eurojust’s action against trafficking in human beings Final report and action plan’ (Eurojust, 2012) 33. 92 Memorandum of Understanding Between the Council of Europe and the European Union (10 May 2007). 93 GRETA, First General Report on GRETA’s activities (n 59) 13–15. 94 On the importance of training, see D Wilson, W Walsh and S Kleuber, ‘Trafficking in Human Beings: Training and Services among US Law Enforcement Agencies’ (2006) 7 Police Practice & Research 149. 95 Art 5(2) CoE Anti-Trafficking Convention.

Criminalisation and Sanctioning  119 and civil society personnel.96 This training must necessarily be robust enough to enable these stakeholders to treat victims in an impartial, respectful, professional and non-discriminatory manner.97 As the case of Rantsev affirms, this obligation is not merely hortatory; the training of those working in the anti-trafficking field must be conducted.98

V.  Criminalisation and Sanctioning Human trafficking is not only the fastest growing form of organised crime in the world today, but also a significant source of profits for those who engage therein as perpetrators.99 In view of this, it is perhaps not surprising that European antitrafficking law places an obligation on European countries to criminalise human trafficking in all its forms. More specifically, the EU Anti-trafficking Directive provides, in Article 2(1), that: Member States shall take the necessary measures to ensure that the following intentional acts are punishable: The recruitment, transportation, transfer, harbouring or reception of persons, including the exchange or transfer of control over those persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation.100

On a plain textual construction of this provision, several points are noteworthy. The first is that this provision not only embodies transnational trafficking as between states, but also internal trafficking, defined as trafficking within the borders/territory of a particular state.101 The second is that this provision implicitly countenances the international approach to defining human trafficking, in so far as the ‘action’, ‘means’ and ‘purpose’ elements are concerned.102 In relation to the ‘purpose’ element, it is noteworthy that this provision broadly defines ‘exploitation’ to ‘include’, ‘the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, including begging, slavery or practices similar to slavery, servitude, or the exploitation of criminal activities, or

96 ibid Art 29(2)–(5); Recitals 15 and 25 and Arts 9(3) and 18(3) EU Anti-Trafficking Directive. 97 Art 25(1) Standing of Victims Directive; Art 29(2)–(3) CoE Anti-Trafficking Convention. 98 Rantsev (n 57) [296]. 99 S Kara, Sex Trafficking: Inside the Business of Modern Slavery (Columbia University Press, 2013) 16–17. 100 Art 2(1) EU Anti-Trafficking Directive; see also Arts 4 and 18 CoE Anti-Trafficking Convention. 101 In relation to the CoE’s equivalent provision see, eg, Art 2 CoE Anti-Trafficking Convention. 102 Council of Europe, ‘Explanatory Report to the Council of Europe Convention on Action against Trafficking in Human Beings’ (2009) [74].

120  European Approach to Human Trafficking the removal of organs’.103 It would appear that, unlike the now defunct 2002 EU Framework Decision against Human Trafficking,104 the Anti-Trafficking Directive, in much the same manner as the CoE Anti-Trafficking Convention,105 is nonexhaustive in its approach to defining ‘exploitation’. In other words, the use of the non-exhaustive term ‘include’ suggests that, although the most prominent forms of exploitation – sexual exploitation and forced labour – are explicitly addressed by the foregoing definition of exploitation, the provision does not restrict itself to these forms of exploitation; other forms of exploitation are also captured by this provision. These include, for example, the recent trend of trafficking of pregnant women for their babies;106 trafficking for welfare benefits;107 and the increasingly prevalent phenomenon of trafficking for forced marriage.108 Moreover, it is also important to note that, although the phrase ‘exploitation of criminal activities’ is a relatively new addition to European, and, indeed, international, anti-trafficking law, such a phrase nevertheless appears to be broad enough to encompass the ‘exploitation of a person to commit, inter alia, pick-pocketing, shop-lifting, drug trafficking and other similar activities which are subject to penalties and imply financial gain’.109 This is an important development, which places the European anti-trafficking framework ahead of the curve in respect of the regulation of newer forms of trafficking. More generally, based on GRETA’s authoritative interpretation of the provision criminalising human trafficking in the CoE,110 it appears that exploitation need not actually occur for human trafficking to be found to exist.111 Rather, because human trafficking is a crime of specific intent, the presence of at least one of the ‘actions’ listed above, in addition to at least one of the applicable ‘means’, with evidence of an intention to commit one of the ‘purposes’ described above, will give rise to trafficking. There is, however, one caveat to this. For there to be child trafficking, only the ‘action’ and ‘purpose’ elements must necessarily be satisfied;112 103 Art 2(1) EU Anti-Trafficking Directive; see also Art 4 CoE Anti-Trafficking Convention. 104 EU Framework Decision against Human Trafficking 2002/629/JHA: Council Framework Decision of 19 July 2002 on combating trafficking in human beings. 105 Art 4(a) CoE Anti-Trafficking Convention 106 L Shelley, Human Trafficking: A Global Perspective (Cambridge University Press, 2010) 15. 107 EUROPOL, Trafficking in Human Beings in the European Union (2565-84, 2011) 14. 108 GRETA, Report on Bosnia and Herzegovina (GRETA(2013)7, 2013) [10]. 109 Recital 11 EU Anti-Trafficking Directive. 110 GRETA, Report on Italy (GRETA(2014)18, 2014) [48]. 111 GRETA, Report on Macedonia (GRETA(2014)12, 2014) [187]. 112 Art 2(5) EU Anti-Trafficking Directive; Art 4(c) CoE Anti-Trafficking Convention; see also T Obokata, ‘Implementing International Law on Human Trafficking: Case Studies of the United Kingdom and Ireland’ (2015) 2 State Practice & International Law Journal 85, 86 (arguing that ‘the … definition [of human trafficking] does not require that victims must be exploited for an act to be classified as trafficking. This is so because the purpose element relates to mens rea, ulterior intention in particular, rather than actus reus of the crime. A good comparison is the offence of burglary in the United Kingdom. This offence is complete as soon as one enters into premises as a trespasser with intention to steal, even when one does not actually steal anything. An important question here is what one is thinking at the time of entry. By analogy, the definition under the Trafficking Protocol suggests that trafficking is established when a trafficker moves people from one place to another with

Criminalisation and Sanctioning  121 that is, there will be child trafficking if, for example, a trafficker recruits a child with the intention of subsequently sexually exploiting her or him, though actual exploitation need not occur. The ‘means’ element is an irrelevant consideration in this regard. On a related issue, it is also important to note that the alleged consent of a trafficked victim is, by law, irrelevant for the purposes of determining whether such a person was exploited, provided that any of the ‘means’ described above was used.113 Apart from the foregoing forms of exploitation, European anti-trafficking law also envisages that European countries will criminalise other illegal activities linked to human trafficking. These might include, for example, inciting, aiding and abetting or attempting to commit a trafficking-related offence;114 concealing, damaging or destroying a trafficked victim’s identity documents;115 and, more controversially, unlawfully using the services of individuals with the knowledge that they are victims of trafficking.116 In view of the deleterious effect which human trafficking has on its victims, the ECtHR has, in recent years, been at the forefront of judicial efforts aimed at ensuring that CoE Member States have in place effective laws designed to criminalise human trafficking. The Court’s activist approach in stipulating in no uncertain terms that states are under a positive obligation to, among other things, criminalise activities falling within the scope of Article 4 of the ECHR is of special import, given that the ECHR does not itself expressly mention ‘human trafficking’. Several cases are instructive in this regard. The first is that of Siliadin v France.117 In that case, a Togolese girl, aged 15, was brought to France to work in the home of a Mrs D, supposedly until she had reimbursed the cost of her flight. While it was initially agreed that the girl would be permitted to attend school after her immigration status had been regularised, this never materialised. Rather, Siliadin became an unpaid housemaid for Mrs D’s family; her passport was taken away; and she was even ‘lent’ to a Mr and Mrs B as a housemaid – cooking, cleaning and taking care of their children seven days a week from 7.30 am to 10.30 pm. Having been made aware of this situation, French authorities brought criminal actions against Mr and Mrs B, who were initially prosecuted, but later acquitted following a successful appeal. In view of this unfavourable outcome, the applicant alleged that Article 4 of the ECHR118 had been violated in light of the fact that France had failed to comply with its positive obligation under the ECHR to, inter alia, provide intention to exploit them subsequently or with full knowledge that they will be exploited by others at their destination. When trafficked victims are actually exploited, that would technically be regarded as a separate offence of slavery or forced labour and/or as an aggravating factor which would increase the level of punishment’). 113 Art 2(4) EU Anti-Trafficking Directive; Art 4(b) CoE Anti-Trafficking Convention. 114 Art 21 CoE Anti-Trafficking Convention. 115 ibid Art 20. 116 Art 18 EU Anti-Trafficking Directive; Art 19 CoE Anti-Trafficking Convention. 117 Siliadin v France [2005] ECHR 545. 118 Art 4 ECHR provides that, ‘[N]o one shall be held in slavery or servitude’ (para 1) and that ‘[n]o one shall be required to perform forced or compulsory labour’ (para 2).

122  European Approach to Human Trafficking adequate c­ riminal law provisions so as to prevent and punish the perpetrators of the exploitation committed against her. Although the ECtHR did not consider the situation complained of as amounting to slavery,119 it nevertheless found that the applicant’s situation qualified as forced labour120 and servitude.121 More profoundly, for the purposes of this discussion, the Court concluded that the criminal law legislation in force at the material time did not afford the applicant, a minor, practical and effective protection against the actions complained of122 and, that accordingly, France had breached its positive obligation under Article 4 of the Convention.123 Notwithstanding the jurisprudential significance124 of this decision, from an Analytical Eclectic perspective, several concerns are nonetheless worth noting. The first is that, apart from the Court’s misconstruction of the concept of ‘slavery’, it could also be faulted for having failed to establish a clear link between human trafficking and Article 4 ECHR,125 although brief references to the Anti-­Trafficking Convention can be found in the judgment.126 It is submitted that, although the case was decided on the basis of the prohibition of forced labour and servitude, the Court should have been more pragmatic in at least considering whether the situation complained of by the applicant did in fact amount to trafficking and, more importantly, whether Article 4 ECHR was broad enough to be construed to include the prohibition of trafficking. Indeed, given the facts of the case, one might very well be correct in arguing that the ‘action’ and ‘purpose’ elements of the definition of human trafficking,127 as contained in Article 4(a) of the CoE Anti-Trafficking Convention, were satisfied, given that the applicant was brought to France by a relative of her father’s; she was a minor who was uneducated, she was without resources and isolated; as well as the fact that she was forced to work for Mr and Mrs B without remuneration. In short, therefore, notwithstanding

119 Siliadin v France (n 117) [122]. 120 ibid. The Court referred to the definition of forced labour as contained in Art 2(1) of the ILO Forced Labour Convention (‘all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily’). 121 ibid [129]. The Court defined servitude as ‘an obligation to provide one’s services that is imposed by the use of coercion, and is to be linked with the concept of “slavery”’. 122 ibid [148]. 123 ibid [149]. 124 See H Cullen, ‘Siliadin v France: Positive Obligations under Article 4 of the European C ­ onvention on Human Rights’ (2006) 6 Human Rights Law Review 585; J Allain, ‘Trafficking in Human Beings: Modern Slavery’ (2009) 20 European Journal of International Law 453; V Munro, ‘Of Rights and ­Rhetoric: Discourses of Degradation and Exploitation in the Context of Sex Trafficking’ (2008) 35 ­Journal of Law and Society 240; S Kara, ‘Designing More Effective Laws Against Human Trafficking’ (2010) 9 North Western Journal of International Human Rights 123. 125 V Stoyanova, ‘Dancing on the Borders of Article 4: Human Trafficking and the European Court of Human Rights in the Rantsev Case’ (2012) 30 Netherlands Quarterly of Human Rights 182 (arguing that the Court did not explicitly state the specific link between slavery and servitude). 126 Siliadin v France (n 117) [50]. 127 Note that in the case of persons under the age of 18, the ‘means’ element need not be satisfied for trafficking to exist. See Art 4(c) CoE Anti-Trafficking Convention.

Criminalisation and Sanctioning  123 the importance of Siliadin in explicating the positive obligations that arise under Article 4 ECHR, the Court was perhaps too timid in its assessment of the factual matrix of the case, to the extent that it considered, but did not ultimately decide on, the issue of human trafficking. The opposite is, however, true in relation to the latter case of Rantsev v Cyprus and Russia.128 In that case, Rantseva, the applicant’s daughter, had been recruited from Russia by Cypriot cabaret owners to work on an artiste visa in a cabaret in Cyprus. Upon arrival in Cyprus, she decided to quit after only three days of work. Upon realising that Rantseva had attended a discotheque instead of work, her employer took her to the police, requesting that they deport her back to Russia on the ground that she was an illegal migrant. Having reviewed Rantseva’s status, the police however indicated that she was in the country legally and therefore handed her back over to her employer. On the following day, however, Rantseva was found dead in the street below her apartment’s balcony. In a complaint by Rantseva’s father before the ECtHR, the Court ultimately ruled in favour of the applicant on several grounds. One of the most significant findings of the ECtHR was that, ­notwithstanding the absence of an explicit provision against human trafficking in the ECHR, ­‘trafficking itself, within the meaning of Article 3(a) of the Trafficking Protocol and Article 4(a) of the Anti-Trafficking Convention, falls within the scope of Article 4 of the Convention’.129 By seemingly adopting the teleological approach to ­interpretation,130 the ECtHR considered that ‘it was unnecessary to identify whether the treatment about which the applicant complained constituted slavery, servitude or forced and compulsory labour’.131 Instead, the Court concluded that, in light of the proliferation of both trafficking itself and of measures taken to combat it, it was appropriate on the facts of the case to only examine the extent to which trafficking itself may be considered to run counter to the spirit and purpose of Article 4 of the Convention such as to fall within the scope of the guarantees offered by that Article without the need to assess which of the [three] proscribed conduct [slavery, forced labour or servitude] were engaged by Rantseva’s treatment.132

While it is clear that the Court was inclined, following the criticisms levelled against it in respect of the prior Siliadin judgment, to be proactive in its approach, it is nonetheless regrettable that it failed to explain precisely how the factual circumstances of this case amounted to human trafficking within the meaning of Article 4 ECHR. In other words, in finding that it was ‘unnecessary to indicate



128 Rantsev

(n 57). [279]. 130 S Peers et al, The EU Charter of Fundamental Rights: A Commentary (Hart Publishing, 2014) 116. 131 Rantsev (n 57) [282]. 132 ibid. 129 ibid

124  European Approach to Human Trafficking which of the elements of Article 4 were engaged’, the Court arguably opened itself up to the criticisms of intellectual incoherence133 and uncertainty, which were also levelled against it in its prior decision of Siliadin.134 Notwithstanding this, however, it is important to note that while Cyprus was found to have had an appropriately robust legislative framework in place at the time that adequately criminalised human trafficking, which was in contradistinction to France in the Siliadin case, the ECtHR was nevertheless emphatic in stating that one of the primary positive obligations that arises under Article 4 is the obligation to criminalise human trafficking. At least one later case has shed some light on the precise scope of this obligation. In CN v The United Kingdom,135 the ECtHR ruled that the criminalisation obligation under Article 4 ECHR does not merely require that states adopt laws to this effect; rather, such laws must be specific enough to distinguish between ‘trafficking for the purposes of domestic servitude’, for example, and the separate offence of ‘domestic servitude’. The case of CN concerned a Ugandan woman who was trafficked to the UK on falsified identity documents to allegedly escape from the sexual and physical violence which she had experienced at home. While in the UK, she stayed with a relative who not only confiscated her travel documents, but also constantly reminded her that she would be seriously reprimanded if she made contact with anyone. During this time, the applicant was, however, allowed to work for a man in London, caring for one of his patients who was at the time suffering from Parkinson’s disease. Notwithstanding having collapsed, and then later identified as HIV-positive,136 British police n ­ evertheless refused to find that she was a victim of trafficking. Against this ­backdrop, she brought an action before the ECtHR alleging that, at the time of her ill-­treatment, the British government was in breach of its positive obligation under Article 4 to have in place criminal laws penalising forced labour and servitude. While the Court ultimately found in the applicant’s favour, holding that she was a victim of domestic servitude, perhaps the most striking aspect of this judgment was the Court’s finding that, in the context of Article 4 ECHR, ‘trafficking for the purpose of domestic servitude’ and ‘domestic servitude’ are two separate offences which must be criminalised separately. As the UK had failed to do so at the relevant time, it was held to be in breach of Article 4 ECHR.

133 R Piotrowicz, ‘States’ Obligations under Human Rights Law towards Victims of Trafficking in Human Beings: Positive Developments in Positive Obligations’ (2012) 24 International Journal of Refugee Law 181. 134 See generally, J Allain, ‘Rantsev v Cyprus and Russia: The European Court of Human Rights and Trafficking as Slavery’ (2010) 10 Human Rights Law Review 546. Noting that one the problems with the Siliadin judgment was the fact that it provided an incorrect definition of ‘slavery’. It ruled that slavery arises when a perpetrator exercises a genuine right of ownership over another person. On the contrary, however, and as later accepted by the Court in Rantsev, slavery arises where a perpetrator exercises powers attaching to the right of ownership. 135 CN v The United Kingdom App no 4239/08 (ECHR, 13 November 2012). 136 At the time of the incident, the ‘Poppy Project’ was the relevant authority vested with power by the state to identify and assist victims of trafficking.

Criminalisation and Sanctioning  125 Since this decision, and in light of the many criticisms levelled against the country’s piecemeal legislative approach to human trafficking,137 the UK has recently passed the Modern Slavery Act, the provisions of which will be substantively examined in the next chapter.138 On another note, it is important to appreciate that European anti-trafficking law applies not only to natural persons, but also legal persons. Indeed, in light of an increasing number of incidents whereby legal entities have reportedly been engaged in the exploitation of trafficked victims,139 European anti-trafficking law expressly obliges European countries to take the necessary legislative and administrative measures so as to hold legal persons liable for their involvement in the commission of trafficking-related offences. Such liability will only arise, however, where the offence in question is committed for that entity’s benefit by a natural person who either acts individually or as part of an organ of the legal person.140 In other words, where that person exercises a power of representation in respect of that entity;141 or has authority to take decisions on behalf of that entity;142 or exercises control within that entity,143 courts must not hesitate to find such persons guilty of trafficking-related offences and, by extension, the entity, by way of attribution. Moreover, such a person does not, in principle, escape liability in those circumstances where a lack of supervision or control over the legal person has resulted in the commission of a trafficking-related offence.144 This obligation extends to commercial carriers as well, who are required, for example, to ascertain whether each passenger is in possession of valid travel documents.145 The relevant sanctions envisaged by European anti-trafficking law include criminal penalties, such as fines, as well as administrative penalties, such as the closure of infringing establishments.146 In all circumstances, though, such penalties must be effective, proportionate and dissuasive.147 137 Before the Modern Slavery Act 2015, there were several applicable pieces of legislation in the UK regarding the criminalisation of various aspects of human trafficking, including: (a) ss 57, 58, 58A or 59 of the Sexual Offences Act 2003 (trafficking for sexual exploitation); (b) s 4 of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004 (trafficking for exploitation); (c) s 71 of the Coroners and Justice Act 2009 (slavery, servitude and forced or compulsory labour). See J Spencer, ‘International Law, People Trafficking and the Power to Stay Criminal Proceedings for Abuse of Process’ (2014) 73 Cambridge Law Journal 11, 14 (referring to the UK’s approach to the regulation of human trafficking as ‘sprawling untidily across a range of different statutes’.) 138 Modern Slavery Act 2015 (this Act received Royal Assent on 26 March 2015. Apart from consolidating the current offences relating to trafficking and slavery, the Act also creates two new civil orders to prevent modern slavery; establishes an Anti-Slavery Commissioner; and makes provision for the protection of modern slavery victims). 139 See generally, OSCE, ‘Ending Exploitation – Ensuring that Businesses do not Contribute to ­Trafficking in Human Beings: Duties of States and the Private Sector’ (2014) OSCE Occasional Paper Series 7. 140 Art 5 EU Anti-Trafficking Directive; Art 22(1) CoE Anti-Trafficking Convention. 141 Art 5(1)(a) EU Anti-Trafficking Directive; Art 22(1)(a) CoE Anti-Trafficking Convention. 142 Art 5 (1)(b) EU Anti-Trafficking Directive; Art 22(1)(b) CoE Anti-Trafficking Convention. 143 Art 5 (1)(c) EU Anti-Trafficking Directive; Art 22(1)(c) CoE Anti-Trafficking Convention. 144 Art 5(2) EU Anti-Trafficking Directive; Art 22(2) CoE Anti-Trafficking Convention. 145 Art 7(3) CoE Anti-Trafficking Convention. 146 Art 6 (a)–(e) EU Anti-Trafficking Directive; Art 23(2) CoE Anti-Trafficking Convention. 147 Art 23(2) CoE Anti-Trafficking Convention.

126  European Approach to Human Trafficking The importance of European countries complying with the foregoing obligation was recently explored in the Rantsev decision. In that case, the ECtHR considered the role of Cypriot cabarets in the commission of alleged traffickingrelated incidents, and held that, in view of circumstances which gave rise to a credible suspicion that trafficking might have been occurring, it was incumbent upon Cyprus to not only to put in place an effective criminal law for the purposes of punishing traffickers, but also take adequate measures designed to ‘regulate businesses which are often used as a cover for human trafficking’.148 On the broader question of sanctions, it is noteworthy, as intimated above, that European anti-trafficking law places an obligation on European states to impose ‘effective, proportionate and dissuasive penalties’ on those who are found to have engaged in trafficking-related offences.149 More specifically, at the EU level, these penalties, in accordance with the Council of Ministers Conclusions of 2002, must fall into one of two distinct levels: level 3, which entails terms of imprisonment of between 5 and 10 years; or level 4, which embodies terms of imprisonment of, at the very least, 10 years.150 In determining the appropriate sentence to be imposed in each particular case, European countries are also required to take account of traffickers’ previous convictions in other European countries.151 The obligation to penalise trafficking-related offences makes theoretical as well as practical sense. Without the imposition of stringent penalties, traffickers act with impunity, which, in turn, not only has a deleterious effect on the rights of victims of trafficking, but also circumvents the rule of law.152 This is perhaps why the ECtHR in Rantsev considered that not only are European countries under a positive obligation to put in place a robust framework that criminalises trafficking-related offences, but also to penalise such offences.153 While this is, indeed, a positive development, which has resulted in a growing number of traffickers being convicted and penalised for their involvement in trafficking-related incidents across Europe,154 the reality is that there remains a ‘disconnect’ between what obtains as a matter of European anti-trafficking law, on the one hand, and the practices of a vast majority of European countries, on the other. Perhaps the most striking consideration in this connection is the fact that, in a number of jurisdictions, the penalties imposed in respect of trafficking-related offences are

148 Rantsev (n 57) [284]. 149 Art 4(4) EU Anti-Trafficking Directive; Art 23 CoE Anti-Trafficking Convention. 150 Council of Ministers, 2423rd Council meeting Luxembourg (25/26 April 2002 (7991/02 [Presse 104], 2002)) 15. 151 Council Framework Decision 2008/675/JHA of 24 July 2008 on taking account of convictions in the Member States of the European Union in the course of new criminal proceedings. 152 K Touzenis, Trafficking in Human Beings – No 3 – Human Rights and Transnational Criminal Law, Developments in Law and Practices (UNESCO, 2010) 52. 153 Rantsev (n 57) [285]. 154 J Van Dijk and F Klerx-Van Mierlo, ‘Quantitative Indices for Anti-human Trafficking Policies: Based on Reports of the US State Department and the Council of Europe’ (2014) 61(2) Crime, Law and Social Change 229.

Investigation, Victim Identification and Referral  127 not generally commensurate with the gravity of the offence in question,155 which raises questions about the dissuasiveness of such penalties.156 Notwithstanding these practical challenges, however, it must be noted that European anti-trafficking law goes well beyond the imposition of terms of imprisonment and fines to include confiscation/forfeiture. Indeed, because human trafficking is essentially a profit-driven crime that is fuelled by the exploitation of persons, while simultaneously fuelling the often lavish lifestyles of traffickers,157 European anti-trafficking law obliges European countries to take the necessary measures to seize and confiscate the instrumentalities used in, and proceeds derived from, trafficking-related offences.158 Forfeiture, in this context, is intended to act as a deterrent against the commission of such offences; if traffickers are deprived of the benefits involved in the exploitation of others, it is felt that it is more likely that they will be hesitant to engage in exploitation in the first place, as the risks will outweigh the benefits.159 Despite the existence of elaborate provisions on forfeiture, however, the ­European Commission has recently decried the lack of ‘systematic enforcement’ of the forfeiture obligation across the majority of European countries.160 More specifically, it has expressed its concern that without forfeiture of traffickers’ assets, traffickers might be inclined to continue to engage in trafficking-related offences, since the proceeds of the crime would, in all likelihood, outweigh the risks associated therewith. Notwithstanding this, however, the continued efforts of various EU agencies, including EUROPOL,161 in respect of forfeiture must be commended. These efforts have enhanced by the recently adopted Confiscation Directive in 2016.162

VI.  Investigation, Victim Identification and Referral Without effective investigations into trafficking-related offences, traffickers will operate with such impunity that the foundational principle of the rule of law might 155 See, eg, Committee against Torture, ‘Concluding observations on the fifth periodic report of Estonia, adopted by the Committee at its fiftieth session (6–31 May 2013)’, CAT/C/EST/CO/5, 17 June 2013 [8]. 156 Committee on the Elimination of Discrimination against Women, ‘Concluding observations on the combined fourth and fifth periodic reports of the Republic of Moldova’, CEDAW/C/MDA/CO/4-5, Adopted by the Committee at its fifty-sixth session (30 September–18 October 2013) [21]. 157 M Liu, Migration, Prostitution, and Human Trafficking: The Voice of Chinese Women (Transaction Publishers, 2013) 135. 158 Art 7 EU Anti-Trafficking Directive; Art 23 CoE Anti-Trafficking Convention. 159 A Aronowitz, G Theuermann and E Tyurykanova, Analysing the Business Model of Trafficking in Human Beings to Better Prevent the Crime (OSCE Office of the Special Representative and Co-ordinator for Combating Trafficking in Human Beings, 2010) 31. 160 EU Commission, ‘Mid-term Report on the Implementation of the EU Strategy towards the Eradication of Trafficking in Human Beings’ COM (2014) 635 final. 161 Winterdyk, Perrin and Reichel (n 72) 138. 162 Directive 2014/42/EU of the European Parliament and of the Council of 3 April 2014 on the freezing and confiscation of instrumentalities and proceeds of crime in the European Union.

128  European Approach to Human Trafficking be undermined. Against this backdrop, European anti-trafficking law obliges European countries to conduct proactive investigations into trafficking-related incidents in an effort to uncover the involvement of traffickers, while liberating victims from their exploitative conditions.163 To achieve this objective, ­European countries are required to utilise various mechanisms, including telephone surveillance, secret searches, controlled delivery, controlled purchase, sting operations, wiretapping, and surveillance of correspondence, among others.164 Of note, however, is the fact that in the process of utilising these mechanisms, competent national authorities must have regard to the rights of trafficked victims.165 The importance of the obligation to investigate trafficking-related offences was considered in the Rantsev case. In that case, the ECtHR implicitly ruled that there were at least three facets to the investigation obligation. The first is general in nature, and requires that states take operational measures to investigate human trafficking where the authorities are aware, or ought to have been aware, of circumstances giving rise to a credible suspicion that an identified individual had been, or was at real and immediate risk of being, trafficked or exploited within the meaning of Article 3(a) of the Palermo Protocol and Article 4(a) of the Anti-Trafficking Convention.166

While this obligation is not absolute, and cannot therefore be interpreted in such a way as to impose an impossible or disproportionate burden on the authorities,167 investigations into trafficking-related offences must nonetheless be effective. The concept of effectiveness was construed by the ECtHR in Rantsev to mean that not only must the authorities who investigate trafficking-related offences be independent from those implicated in those offences, but also that the investigation must be capable of leading to the identification and punishment of perpetrators. The latter is, however, an obligation of means and not result.168 That said, competent national authorities must also ensure that investigations into trafficking-related offences are both prompt and reasonable. The decision to remove a trafficked victim from her or his exploitative situation must be taken as a matter of urgency.169 While the foregoing is quite revolutionary within the context of Article 4 ECHR, at least one author, Vladislava Stoyanova, remains sceptical about the Court’s apparent modification of the traditional positive obligation to investigate criminal activities,170 as posited by the Court itself in the earlier case of Osman v United Kingdom.171 In Osman, although the ECtHR had held that the UK was not



163 Art

9(1)–(2) EU Anti-Trafficking Directive; Art 27 CoE Anti-Trafficking Convention. 15 EU Anti-Trafficking Directive. 165 Art 33 (2)(a)–(d) Standing of Victims Directive. 166 Rantsev (n 57) [286]. 167 ibid [219]. 168 ibid [288]. 169 ibid. 170 Stoyanova (n 125). 171 Osman v United Kingdom App no 23452/94 [1998] ECHR 101. 164 Recital

Investigation, Victim Identification and Referral  129 in breach of its positive obligation to investigate the circumstances surrounding the wounding of a 15-year-old schoolboy and the death of his father by an obsessive former teacher, in principle, public authorities would nevertheless be held to have failed to prevent the treatment complained of where they knew, or ought to have known, of a real and immediate risk to the life of an identified individual and that they had failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk.172

Having reviewed Osman, Stoyanova contends that, in using the formulation ‘circumstances giving rise to a credible suspicion’ in Rantsev, the Court may have, albeit slightly, modified the Osman test. Given that the Rantsev formulation, albeit in respect of Article 4 ECHR, was repeated in the subsequent case of M and Others v Italy and Bulgaria,173 the controversial question arises as to whether it can be said that the Osman test was in fact modified in Rantsev. At least one domestic court has attempted to provide some clarification as to how this difficult question is to be addressed. In the England and Wales case of OOO and Others v Commissioner of Police,174 three Nigerian women, who had been trafficked to the UK for the purpose of domestic servitude in London, brought a claim alleging that the Metropolitan Police had breached Articles 3 and 4 of the ECHR by virtue of having failed to investigate the treatment meted out to them. Faced, for the first time, with the question of whether the police should be held liable for this alleged failure to investigate, Justice Williams in the High Court began his analysis by first explaining that, although the common law imposes no duty on police officers in England and Wales to investigate crime in general, such a duty nevertheless arises by virtue of the operation of the ECHR where it is alleged that Articles 2, 3 and 4 of said instrument were breached.175 He then proceeded to consider how the ECtHR has construed the investigative duty, and concluded that, on the basis of Rantsev, once a credible allegation of an infringement of Article 4 has come to the attention of the police, they are under a duty to act on their own motion.176 In other words, the existence of a duty to investigate does not depend upon an actual complaint from a victim or next of kin. The second significant point made by Justice Williams was that the duty to investigate carries with it a requirement to investigate promptly and/or with reasonable expedition.177 Third, once the duty to investigate has been triggered, the investigation must be effective, that is, it must be capable of leading to the identification and punishment of the individual(s) responsible.178 Against this backdrop, the Court ultimately found that the police officers in question were in

172 ibid

116. and Others v Italy and Bulgaria App no 40020/03 (ECtHR, 31 July 2012). 174 OOO and Others v Commissioner of Police [2011] EWHC 1246 (QB). 175 ibid [158]. 176 ibid [152]. 177 ibid. 178 ibid. 173 M

130  European Approach to Human Trafficking breach of their investigative duty by virtue of having failed to commence an effective investigation when the victims’ names, as well as their desire to have their complaints investigated, were made known.179 More profoundly, Justice Williams considered that while some strands of the reasoning in Osman were relevant to the case at hand, such as the fact that a police officer’s decision about the manner, scope or timing of an investigation may be informed by available resources and priorities as between different investigations, the ‘Osman test [was] not applicable, directly, in the present case’.180 In short, his Lordship was of the view that ultimately, Osman is concerned to lay down the test for determining whether a public authority has failed in its duty to prevent a person from suffering treatment which amounts to an infringement of Articles 2, 3 and 4 ECHR. The specific test formulated in the second paragraph of paragraph 116 of Osman cannot be used to determine the scope of the duty to investigate alleged infringements of those Articles when the infringements alleged have taken place ie when they are historical.181

Based on this view, it would seem that for the purposes of determining the scope of the duty to investigate the offence of trafficking in persons within the context of Article 4 ECHR, reliance must be placed on the sentiments expressed in Rantsev, and not on those expressed in Osman. In other words, the duty to investigate would appear to arise when police officers are aware, or ought to have been aware, of circumstances giving rise to a credible suspicion that an identified individual had been, or was at real and immediate risk of being, trafficked. The subsequent, and altogether different, question of whether police officers have failed in the fulfilment of the duty to prevent that identified person from suffering exploitation appears, however, to be determined on the basis of the Osman test. Bearing these considerations in mind, on the facts of the instant case, it was held that the police officers in question did in fact breach their investigative duty, which warranted the award of damages in the amount of £5,000 to each claimant.182 Suffice it to say, another important question that arose in Rantsev was whether it can be said that investigating authorities in European countries are under an obligation to investigate situations of potential trafficking. This question was emphatically answered in the affirmative in Rantsev, when the ECtHR concluded that the Russian authorities were in breach of their obligation to investigate ­potential trafficking because they had failed to undertake an investigation into how and where Rantseva was recruited.183 This line of reasoning was also countenanced by the ECtHR in the subsequent case of M and Others v Italy and Bulgaria.184 In that case, one of four applicants, a teenage girl of Roma origin residing in Bulgaria, petitioned the ECtHR alleging, among other things, a breach of Article 4 ECHR in relation to beatings, death threats, constant surveillance, forced

179 ibid

[178]. [147]. 181 ibid [157]. 182 ibid [190]. 183 Rantsev (n 57) [308]–[309]. 184 App no 40020/03 (ECtHR, 31 July 2012). 180 ibid

Investigation, Victim Identification and Referral  131 stealing and repeated rapes committed against her while in Italy. The circumstances of the case were such that the applicants had travelled to Italy in search of jobs as domestic workers, but having been unable to find work, were required to leave Italy, albeit without the young girl who stayed behind after allegedly getting married to a man according to Roma customs. Upon their return to Bulgaria, the parents of the teenage girl filed a report with the relevant authorities alleging that their daughter had been kidnapped and forced into prostitution in Italy. Within two weeks of their complaint being lodged, Italian police raided the house of the alleged perpetrator, making a number of arrests. However, in view of the alleged failure of Italian authorities to proactively institute criminal proceedings against the perpetrator, the teenage applicant argued before the ECtHR that, among other things, Italy had failed in its positive obligation to take the necessary measures to ensure that she received an adequate level of protection. While, on the facts, the ECtHR ultimately concluded that the teenage girl had not been trafficked, it nevertheless found that Italy had breached its positive obligation to investigate the potential trafficking of the first applicant, in light of the serious nature of the allegations made by her.185 The fact that no medical examination was conducted to determine if she was, indeed, raped and beaten, as well as the untenable excuse provided by the Italian authorities that they considered that the applicant’s situation well within the context of a Roma marriage, appear to bear heavily on the ECtHR’s conclusion that Italy was liable for having breached its positive obligation to investigate potential trafficking.186 The final facet of the positive obligation to investigate trafficking-related offences, according to Rantsev, arises in those circumstances where the offences in question have cross-border elements. In those situations, an investigative obligation is placed on the authorities of one state to cooperate effectively with the authorities in other states in the investigation of events occurring outside their territory.187 This is, indeed, a positive development, as it recognises the fact that trafficking is, in a number of respects, a transnational issue, the eradication of which requires that all states actively cooperate in the investigation of its various elements. On the question of victim identification and referral, it is perhaps axiomatic that the identification and referral of trafficked victims is indispensable to any effective anti-trafficking framework.188 The consequences associated with failing to correctly identify and refer victims of trafficking are numerous, but include, inter alia, an improper diagnosis of the actual nature and scale of human t­rafficking; the inability on the part of trafficked victims to benefit from the myriad rights

185 ibid [157]. 186 ibid [106]. 187 Rantsev (n 57) [289]. 188 Office of the High Commissioner for Human Rights, ‘Preliminary Report Consultation on the right to an effective remedy for trafficked persons’ (United Nations, 2013) 6; EU Commission, Guidelines for the identification of victims of trafficking in human beings, especially for Consular Services and Border Guards (2013) 3.

132  European Approach to Human Trafficking provided for in relevant legislation; the inability of these victims to access justice, and, in particular, compensation; the treatment of these persons as criminals, rather than victims; and re-trafficking.189 Against this backdrop, European antitrafficking law obliges European countries to establish appropriate mechanisms to correctly identify and refer victims for assistance and support commensurate with their needs.190 More specifically, such assistance must be provided as soon as there are reasonable grounds for believing that such persons might have been trafficked, and should be afforded irrespective of victims’ willingness to act as witnesses.191 Moreover, the identification and referral of victims of trafficking must be undertaken by trained and qualified professionals and must, in all circumstances, accord with the principles of a victim-centred approach.192 While a number of European countries adopt a liberal approach to the identification of trafficked victims, some countries, quite regrettably, adopt a narrow and conservative approach to defining who is a ‘victim of trafficking’, which risks compromising the proper identification of victims of forced labour, domestic servitude and forced begging, for example, who may not have suffered any discernible physical damage, but who may nevertheless have suffered mental trauma, as well as the loss of several years of remuneration. More specifically, the narrow judicial construction of who is a ‘real’ victim of trafficking in the UK,193 which is addressed in chapter five, raises some tendentious questions.

VII.  A Victim-Centred Approach Ensuring that victims of trafficking are viewed by competent national authorities as particularly vulnerable individuals whose needs must be met to the greatest extent possible is perhaps one of the most important functions of European anti-trafficking law.194 Unfortunately, though, what is today described as a ‘victim-centred’ approach to human trafficking was not always countenanced at the European level prior to 2001.195 In fact, it can be argued that the majority of anti-trafficking instruments which were adopted in both the 1990s and early 2000s at the European level 189 See generally, E Hopper, ‘Under-Identification of Human Trafficking Victims in the United States’ (2004) 5(2) Journal of Social Work Research and Evaluation 125; D Okech, Wy Morreau and K Benson, ‘Human Trafficking: Improving Victim Identification and Service Provision’ (2012) 55 International Social Work 488; S Jones, ‘Human Trafficking Victim Identification: Should Consent Matter?’ (2011) 45 Indiana Law Review 483. 190 Art 11(4) EU Anti-Trafficking Directive; Arts 8(2) and 22(1) Standing of Victims Directive; Art 7(1) CoE Anti-Trafficking Convention. 191 Recital 18 and Art 11(2) EU Anti-Trafficking Directive; Art 10(2) CoE Anti-Trafficking Convention. 192 Art 22(3) Standing of Victims Directive; Art 10(1) CoE Anti-Trafficking Convention. 193 See OSCE, ‘Report by the Special Representative on her visit to the UK, 7–10 March 2011’, SEC. GAL/200/11, 18 January 2012 [8]. 194 A Gallagher, The International Law of Human Trafficking (Cambridge University Press, 2010) 112. 195 V Roth (ed), Defining Human Trafficking and Identifying its Victims: A Study on the Impact and Future Challenges of International, European and Finnish Legal Responses to Prostitution-Related Trafficking in Human Beings (Martinus Nijhoff Publishers, 2011) 292.

A Victim-Centred Approach  133 appeared to take a distinctly criminal justice approach,196 giving primacy to the need to prosecute traffickers, often times at the expense of victim protection.197 More recent legislative instruments at the European level seem to have, however, brought about a drastic change not only in the way in which victims’ rights are viewed, but also in the way in which such rights are protected. Among the principal provisions which seek to achieve these objectives are those which oblige states, from the very outset, to provide protective measures commensurate with the differing needs of female and male victims;198 those which recognise the special position of pregnant, physically and psychologically unwell and disabled victims199 as well as those which recognise the highly adverse impact that exploitation has on child victims of trafficking, and thus call for the adoption of appropriate measures to ensure their protection in accordance with their best interests.200 In short, it can be argued that, in contradistinction to what obtained in Europe less than two decades ago, current European anti-trafficking law appears to have adequate mechanisms in place to effectively take account of the myriad rights and interests of trafficked victims. The mechanisms envisaged to achieve this objective must, in principle, be implemented in a sensitive, professional, informed, consensual, tailored and non-discriminatory manner.201 One of the most important, yet overly controversial,202 provisions of European anti-trafficking law is that of the ‘non-punishment’ provision. In general, such a provision is couched in the following terms: Member States shall, in accordance with the basic principles of their legal systems, take the necessary measures to ensure that competent national authorities are entitled not to prosecute or impose penalties on victims of trafficking in human beings for their involvement in criminal activities which they have been compelled to commit as a direct consequence of being subjected to [trafficking-related offenses].203

On a textual construction of this provision, four main points can be gleaned. First, this provision does not provide complete immunity for trafficked victims who engage in conduct prohibited by Member States’ laws;204 rather, it only applies

196 Askola (n 64) 99. 197 S Peers and N Rogers, EU Immigration and Asylum Law: Text and Commentary (Martinus Nijhoff Publishers, 2006) 817. 198 Recital 3 EU Anti-Trafficking Directive; Arts 5(3) and 17 CoE Anti-Trafficking Convention. 199 Art 11(7) EU Anti-Trafficking Directive. 200 Art 28(3) CoE Anti-Trafficking Convention. Art 11(7) EU Anti-Trafficking Directive; Art 10 Standing of Victims Directive. 201 Art 12(7) CoE Anti-Trafficking Convention; Art 1 Standing of Victims Directive. 202 A Gallagher and F David, The International Law of Migrant Smuggling (Cambridge U ­ niversity Press, 2014) 578 (noting the concerns about the ‘cautious approach’ countenanced by European anti-trafficking law regarding the non-punishment obligation). 203 Art 8 EU Anti-Trafficking Directive; see also Art 26 CoE Anti-Trafficking Convention which is couched in similar terms: ‘Each Party shall, in accordance with the basic principles of its legal system, provide for the possibility of not imposing penalties on victims for their involvement in unlawful ­activities, to the extent that they have been compelled to do so’. 204 Gallagher, The International Law of Human Trafficking (n 194) 288.

134  European Approach to Human Trafficking where the victim in question has been compelled205 to engage in unlawful activities in the course, and as a result, of the trafficking ordeal. The second point is that such a provision envisages some variation in Member States’ implementation of the non-punishment obligation, evidenced by the phrase ‘in accordance with the basic principles of its legal systems’.206 Third, the provision also envisages that trafficked victims, to the extent that they have been compelled, will not be prosecuted for a non-exhaustive list of unlawful activities,207 including, but not limited to soliciting, illegal border crossing, the cultivation of cannabis, and the possession of forged identity documents, among others. And, fourth, where the circumstances are such that the victim has been compelled to commit illegal activities, the provision envisages that such a person will not only be precluded from prosecution within the context of criminal proceedings, but also from administrative penalties,208 such as detention in irregular migrant facilities. The overarching objective of this provision, in keeping with the distinctly human-rights orientation of European anti-trafficking law, is to protect vulnerable victims of trafficking who, while on the face of it, may have committed an offence, have nevertheless done so without the exercise of any real autonomy. In other words, because of the degree of control exercised by traffickers over these individuals, European anti-trafficking law regards it as being unjust, as well as an avenue of revictimisation, for competent national authorities to hold these persons criminally responsible for offences which, had they been free from exploitation, they would not have committed.209 Notwithstanding the significance of the non-punishment provision, however, there appears to be uneven implementation in a number of European countries. On the one hand, in a few countries, such as Belgium and the Netherlands, among others, there are increasingly positive results in the implementation of the non-punishment obligation, evidenced by the few cases decided to date in 205 ibid 284. Note that the notion of ‘compulsion’ is linked to the ‘means’ element found in the definition of human trafficking under the Trafficking Protocol and European anti-trafficking law: threats, use of force, fraud and deception, inducement, abuse of power or of a position of vulnerability, or use of debt bondage. It does not, however, require physical force or constraint. cf In the case of children, consent to exploitation is not possible; as such, when assessing compulsion reference must be had to factors such as children’s age, maturity and understanding, and not necessarily the ‘means’ element detailed above. See M Brewer, ‘The Prosecution of Child Victims of Trafficking’ (Garden Court Chambers, 2013) 4–5. 206 Council of Europe Committee of Ministers, ‘Explanatory Report to the Council of Europe Convention on action against trafficking in human beings’ CM(2005)32 Addendum 2 final (3 May 2005) [274] (explaining that the non-punishment obligation can be complied with in a variety of ways; eg, some Member States may choose to provide for a substantive criminal or procedural criminal law provision, while others may take any other measure which they may deem serves the purpose of allowing for the possibility of not punishing victims when they are compelled to commit offences). 207 OSCE, Policy and Legislative Recommendations towards the Effective Implementation of the non-punishment provision with regard to victims of trafficking (OSCE, 2013) [57]. (‘As there is no exhaustive list of offences that might be committed by victims of trafficking in the course of, or as a consequence of, being trafficked, and since new forms of exploitation may, and do, emerge, States should consider adopting an open-ended list of offences typically related to trafficking in human beings, with regard to the commission of which victims of trafficking shall be immune from punishment’.) 208 ibid [14]. 209 Recital [14] EU Anti-Trafficking Directive.

A Victim-Centred Approach  135 those countries. For example, in a Belgian case decided by the Criminal Court of Turnhout in 2012,210 20 trafficked victims were allegedly recruited from Romania to work in Belgium under the guise of finding better jobs. Once they had arrived in Belgium, they were, however, forced to steal clothes from shops in order to repay their travel and living expenses. One of the victims was also forced into prostitution. After receiving several reports of thefts, Belgian police began an investigation into the matter, which revealed that a criminal organisation comprising of some 15 perpetrators was forcing the victims to commit the illegal activities in question. In view of this, all 20 victims were regarded as having been forced into criminality and were accordingly not prosecuted for the thefts and prostitution which they were compelled to commit. A similar conclusion was reached in a Dutch case decided in 2010.211 In that case, an Albanian minor was sold by her parents to a trafficker. Upon arrival in the Netherlands, she was held in slave-like conditions, and was reportedly exploited by her trafficker, both within his household, and on the streets, where she was forced to steal. In an effort to negate the credibility of the victim, the trafficker argued at his trial that the victim had written a ‘love letter’ which, among other things, indicated that she had committed the thefts voluntarily. The judge, after having considered all the circumstances of the case, however, held that the victim had written the letter under coercion, and that, given that she was forced to steal, she could not be prosecuted for theft. While these two examples are not by any means an exhaustive account of the increasing level of awareness on the part of prosecutors and, indeed, judicial authorities across Europe with regard to the implementation of the non-­ punishment obligation, they do, however, serve as examples which other countries may very well be advised to emulate.212 That said, at least one leading European anti-trafficking scholar – Professor Ryszard Piotrowicz – remains convinced that, ‘a significant number of countries fail to apply [the non-punishment provision], either because of a lack of awareness of it, or a failure to appreciate the rationale for the principle, or because of a failure to identify people as victims of trafficking in the first place’.213 The far-reaching implications of Piotrowicz’s observation were highlighted by the OSCE’s Coordinator for Combating Trafficking in Human Beings: The punishment of victims of trafficking for crimes directly related to their trafficking is a violation of their fundamental dignity. It constitutes a serious denial of reality and 210 See Centre for Equal Opportunities and Opposition to Racism, Presentation of Alliance Expert Coordination Team Meeting (December 2012) (includes a discussion of the judgment from the Criminal Court of Turnhout (Belgium, 17 October 2012). 211 Dutch National Rapporteur on Trafficking in Human Beings, ‘Trafficking in human beings, Seventh Report of the Dutch National Rapporteur’ (2010) 248. 212 For further details on Belgium’s implementation of the non-punishment obligation, see P Le Cocq, ‘The Non-punishment Principle as an Essential Element of a Human Rights-based Approach to Action against Trafficking in Human Beings’ (Council of Europe–OSCE workshop, Strasbourg, 9–10 October 2014). 213 R Piotrowicz, ‘Human Trafficking and the Non-Punishment Principle’ (OSCE and CoE Not for Sale – Joining Forces against Trafficking in Human Beings Conference, Vienna, 17 February 2014).

136  European Approach to Human Trafficking of justice. Such punishment blames victims for the crimes of their traffickers, for crimes that, but for their status as trafficked persons, they would not have perpetrated. The criminalization of trafficked victims may be tantamount to persecution of victims by the State: not only does it fail to take into account the serious crimes committed against the victim by the traffickers, which should be investigated, it fails to recognize trafficked persons as victims and witnesses of those serious crimes and exacerbates their victimization and/or trauma by imposing on such persons State-imposed, unjust punishment. Instead of being treated as victims, they are treated as criminals. This practice furthermore promotes trafficking in human beings by failing to confront the real offenders, by dissuading trafficked victims from giving evidence against their traffickers and by enabling traffickers to exert even further control over their victims by threatening exposure to punishment by the State … Traffickers will favour the punishment of victims as it simply plays into their hands: it ensures that their victims are the ones to bear the criminal penalties while the real offenders can operate with impunity.214

On another note, apart from the non-punishment of trafficked victims, European anti-trafficking law also envisages that European countries will adopt a comprehensive witness protection scheme aimed at protecting victims, witnesses, as well as their family members from retaliation or intimidation from traffickers and their associates.215 This scheme must, at the very minimum, include physical protection, relocation and, in appropriate cases, identity changes.216

VIII.  Protection of Trafficked Victims Through a variety of means, European anti-trafficking law seeks to protect trafficked victims from the stigma, and potential intimidation and retaliation often associated with their participation in criminal proceedings, as detailed below.

A.  Victims’ Participation in Court Proceedings Court proceedings, though an indispensable part of any effective anti-trafficking machinery, have traditionally proven to be a deeply traumatic experience for victims of trafficking, not only because of their inherently adversarial nature, but also because victims are often called upon to repeat the specific and often deeply disturbing details of their exploitation on multiple occasions.217 Against this backdrop, European anti-trafficking law establishes a robust criminal justice framework which has the objective of ensuring that criminal proceedings against traffickers 214 OSCE, Policy and Legislative Recommendations towards the Effective Implementation of the Non-punishment Provision with regard to Victims of Trafficking (n 207) [4]. 215 Recital [19] and Art 12 EU Anti-Trafficking Directive; Arts 12(2) and 28 CoE Anti-Trafficking Convention; Art 18 Standing of Victims Directive. 216 ibid. 217 UNIFEM, Trafficking in Women and Children in India (Orient Blackswan, 2005) 233.

Protection of Trafficked Victims  137 are instituted in a timely fashion, while simultaneously ensuring that victims are not subject to secondary victimisation. More specifically, this framework envisages that European countries will grant victims access to free legal counselling and representation218 for the purposes of enabling them to present their views and concerns before the courts,219 as well as claim compensation in appropriate cases.220 Any assistance and support afforded victims in the context of criminal proceedings221 must be robust enough to ensure that these vulnerable individuals are protected from secondary victimisation.222 The protective mechanisms to be taken in this regard must include, inter alia, the avoidance of unnecessary interviews with victims223 and, in particular, questioning in respect of specific details about their private life;224 the avoidance of visual contact between victims and perpetrators to the greatest extent legally possible,225 through, for example, the establishment and use of court facilities having separate waiting areas;226 the avoidance of intimidation, especially in respect of child victims of trafficking;227 as well as in camera hearings.228 Wherever possible, European anti-trafficking law also envisages that audio-visual technology will be utilised in the context of criminal proceedings, including video and telephone conferencing.229 In those circumstances where victims’ property has been seized or where they incur expenses as a result of participating in criminal proceedings, such property must be returned to these victims,230 and any expenses incurred reimbursed.231 Moreover, where the prosecution decides not to institute proceedings against traffickers, European countries, in accordance with their national law, must afford trafficked victims the right to review the decision not to prosecute.232

B.  Privacy and Confidentiality It is now an axiomatic recognition that trafficked victims are vulnerable individuals whose physical and psychological wellbeing can be further compromised 218 Recital 19 and Art 12(1) and (2) EU Anti-Trafficking Directive; Art 7(4) Residence Permit ­Directive; Art 13 Standing of Victims Directive; Art 15(2) CoE Anti-Trafficking Convention. 219 Art 12 (1)(e) CoE Anti-Trafficking Convention. 220 Recital 19 and Art 12(2) EU Anti-Trafficking Directive. 221 Art 11(1) EU Anti-Trafficking Directive. 222 Recital 20 EU Anti-Trafficking Directive. 223 Art 12(4)(a) EU Anti-Trafficking Directive; Art 20(c) Standing of Victims Directive. 224 Art 12(4)(d) EU Anti-Trafficking Directive; Art 30(a) CoE Anti-Trafficking Convention. 225 Arts 19(1) and 23(a) Standing of Victims Directive. 226 ibid Art 19(2). 227 Art 30(b) CoE Anti-Trafficking Convention. 228 Art 12(4)(c) EU Anti-Trafficking Directive; Art 23(d) Standing of Victims Directive. 229 Art 17(1)(b) Standing of Victims Directive. 230 ibid Art 15. 231 ibid Art 14. 232 ibid Art 11(1) and (2).

138  European Approach to Human Trafficking should they be exposed to adverse circumstances in the aftermath of having been identified.233 In an effort to ensure that these circumstances do not arise, European anti-trafficking law provides that victims of trafficking must be afforded privacy and confidentiality to the greatest extent possible.234 More specifically, European countries are under an obligation to ensure that the identities of trafficked victims in the context of both identification and criminal justice proceedings are not revealed to the public, including to the press, and that any data about victims is adequately stored and used in conformity with basic principles of European law.235 The objective underlying these supranational stipulations is to protect victims and, by extension, their family members from unnecessary exposure and intimidation that might otherwise prevent them from successfully recovering from the trafficking ordeal or, indeed, from participating in criminal proceedings against traffickers.236

C.  Information, Documentation and Interpretation/ Translation Without the timely and accurate provision of information, trafficked victims cannot fully understand their rights or make informed choices regarding the options available to enable their recovery, protection, or participation in criminal proceedings.237 Against this backdrop, European anti-trafficking law provides that trafficked victims should be provided with information on a number of issues, including, but not limited to, the relevant recovery and reflection period, possibilities for compensation, the types of support services available, the nature and risks associated with their participation in criminal proceedings,238 and the possibilities and risks associated with restorative justice programmes.239 The importance of the obligation to provide timely and accurate information to victims of trafficking was explored in a French case decided in mid-2012.240 In that case, the appellant was arrested by police for illegally entering and residing

233 J Beeson, ‘Psychology of Human Trafficking’ in M Palmiotto (ed), Combating Human Trafficking: A Multidisciplinary Approach (CRC Press, 2014). 234 Art 11 CoE Anti-Trafficking Convention; Art 21 Standing of Victims Directive. cf The right to privacy is not an absolute right, given that it has to be balanced against the Art 10 ECHR right to ­freedom of expression. 235 See, eg, The Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data (ETS No 108). 236 UNODC, Combating Trafficking in Persons: A Handbook for Parliamentarians (United Nations, 2009) 52. 237 Art 11(5) and (6) EU Anti-Trafficking Directive; Art 5 Residence Permit Directive; Arts 3(2), 4 and 9 Standing of Victims Directive. 238 ibid. 239 Art 12(1)(b) Standing of Victims Directive. 240 App no 339209, Conseil d’Etat, judgment (15 June 2012).

Protection of Trafficked Victims  139 in France. She was made subject to a deportation order the same day of her arrest, without any consideration of the fact that she might have been trafficked. She challenged this order before the Administrative Court of Appeal, but her application was rejected. On the basis of a subsequent appeal, however, the Conseil d’État found that, contrary to the provisions of the French Code of Entry and Stay of Foreigners and Asylum Seekers, the appellant was not provided with services appropriate to her needs, despite the fact that the authorities had reasonable grounds to believe that she was a victim of trafficking for forced labour. More importantly, the Court found that in failing to inform the victim in question as to her right to a 30-day recovery and reflection period, the police were in breach of their obligation under the requisite statute. In consequence of this, the Court annulled the decree that was issued to have the appellant deported, and ordered the payment of €3,000 to her in recognition of the breach of her right to receive adequate information as a victim of trafficking. In so far as the obligation to provide trafficked victims with necessary documentation is concerned, it should be noted that European anti-trafficking law envisages that passports and identity cards, travel documents and residence permits should be issued in a timely manner so as to enable victims not only to access basic services, but also to return to their places of origin, if they so desire.241 Meanwhile, on the question of interpretation/translation, European antitrafficking law provides that victims of trafficking must be afforded both the opportunity to be understood, as well as the opportunity to understand, the options available to them.242 In practice, the UK faces a number of practical challenges in respect of the provision of interpretation/translation services to victims of trafficking. The first of these challenges relates to the quality of such services, particularly in areas outside the major cities.243 The second relates to the fact that some first responders are limited in their capacity to provide interpretation/translation, primarily because state funding for such services is inadequate at present.244 Furthermore, it appears from a review of a number of cases decided by ­British courts to date that the obligation to provide interpretation/translation is not always afforded the level of primacy it deserves. For example, in R v HVN,245 the Court of Appeal recalled that when the appellant, a child victim of trafficking who was ­prosecuted for controlling cannabis, first appeared via video link at Nottingham Crown Court, no interpreter was present, which resulted in the case being adjourned. As a result of this adjournment, the victim in question could not benefit from the protection measures which the Court of Appeal later found that he was entitled to as a victim of trafficking.

241 Art 16(4) CoE Anti-Trafficking Convention. 242 Art 11(1) EU Anti-Trafficking Directive; Art 7(3) Residence Permit Directive; Arts 5(3) and 7(1), (3) and (7) Standing of Victims Directive; Art 12(1)(c) CoE Anti-Trafficking Convention. 243 GRETA, Report on the United Kingdom (GRETA(2012)6, 2012) [184]. 244 ibid. 245 L, HVN, THN and T v R [2013] EWCA Crim 991.

140  European Approach to Human Trafficking By contrast, in the case of R v O,246 the Court of Appeal found that the lack of interpretation/translation did not ‘of itself undermine the fairness of the proceedings or the safety of the conviction’247 of a trafficked victim, despite its earlier statement that, ‘it is plain that there were some difficulties in understanding the appellant’ and that ‘she [was] clearly not literate in English or it seems at all’.248 This ruling appears to have been based on several (questionable) assumptions; for example, letters from the appellant’s then solicitor which stated that, having met with the appellant, he ‘was satisfied that she understood and spoke sufficient English without the necessity of finding an Edo interpreter’,249 as well as a statement from the counsel for the appellant to the effect that at no time did the appellant appear to have difficulty understanding what was being said to her, though her ‘strong accent’ meant ‘taking her account in stages’.250 While it is arguable that the decision ultimately reached by the Court of Appeal was correct, the fact that it was prepared to adopt a minimalist approach to the obligation to provide interpretation/translation is troubling, and sets a worrying precedent for other courts which may in future encounter victims who have ‘strong accent[s]’.251 It is submitted that any negative externalities which are likely to ensue from a failure to provide adequate interpretation/translation, particularly in the context of court proceedings, would adversely affect victims from the global ‘South’, since these persons are more likely than not to have ‘strong accents’.

IX.  Material, Medical and Psychological Assistance and Accommodation It is perhaps axiomatic that as a first step towards facilitating victims’ recovery, these vulnerable persons must be afforded appropriate basic supplies commensurate with their individual needs. In the specific context of European anti-trafficking law, this obligation is couched in the following general terms: Member States shall take the necessary measures to ensure that a person is provided with assistance and support as soon as the competent authorities have a reasonablegrounds indication for believing that the person might have been subjected to any of the offences referred to in Articles 2 and 3.252 …

246 R v O [2008] EWCA Crim 2835. 247 ibid [12]. 248 ibid [11]. 249 ibid. 250 ibid. 251 cf Art 7(7) Standing of Victims Directive. (‘Victims may challenge a decision not to provide interpretation or translation. The procedural rules for such a challenge shall be determined by national law’.) 252 Art 11(2) EU Anti-Trafficking Directive.

Material, Medical and Psychological Assistance and Accommodation   141 assistance and support measures … shall include at least standards of living capable of ensuring victims’ subsistence through measures such as the provision of … material assistance.253

Although this provision does not specifically explain the scope of the obligation to provide ‘material assistance’, it is implicit that such assistance should include, at a minimum, the provision of food and clothing as well as other basic supplies.254 Apart from material assistance, European Anti-trafficking law also ­recognises that the exploitation of trafficked victims often results in them developing a number of medical and psychological problems, both of a transient and permanent nature.255 These problems are numerous, but include, inter alia, HIV/AIDS and other forms of sexually transmitted diseases,256 tuberculosis,257 and post-­traumatic stress disorder.258 In recognition of the deleterious effects which exploitation has on victims of trafficking, European anti-trafficking law makes provision for measures to be taken, on an informed and consensual basis, to attend to the medical and psychological needs of victims.259 Moreover, in keeping with the ‘victim-centred’ approach to human trafficking, European anti-trafficking law obliges European countries to provide ‘appropriate and safe accommodation’ to victims of trafficking.260 For accommodation to be ‘appropriate’, it must necessarily take account of any sex-specific needs of individual adult victims as well as child victims of trafficking, such needs varying greatly depending on their pre-existing vulnerabilities, the type and duration of exploitation they have had to endure, as well as the nature of rehabilitation that is specifically required.261 ‘Appropriate’ accommodation also implies that victims must be cared for by trained professionals;262 their freedom of movement must not be unnecessarily curtailed;263 and their privacy must, to the greatest extent

253 ibid Art 11(5); see also Art 12 CoE Anti-Trafficking Convention. 254 Council of Europe Committee of Ministers, ‘Explanatory Report to the Council of Europe ­Convention on action against trafficking in human beings’ (n 102) [156]. Note that ‘material ­assistance’ is to be distinguished from ‘financial assistance’ on the basis that the former is not limited to the ­provision of money; it may include the provision of food and clothing. 255 M Burke, Human Trafficking: Interdisciplinary Perspectives (Routledge, 2013) 244. 256 D Mason, J Leavitt and M Chaffee, Policy and Politics in Nursing and Healthcare (Elsevier Health Sciences, 2013) 736. 257 A Aronowitz, Human Trafficking, Human Misery: The Global Trade in Human Beings (Greenwood Publishing Group, 2009) 84. 258 S Firsing, Disturbing Times: The State of the Planet and its Possible Future (South Publishers, 2008) 61. 259 Art 11(5) EU Anti-Trafficking Directive; Art 12 (1)(a) CoE Anti-Trafficking Convention; Arts 7 and 9(2) Residence Permit Directive; Art 9(1)(c) and 20(d) Standing of Victims Directive. 260 Art 11(5) EU Anti-Trafficking Directive; Art 12(1)(a) CoE Anti-Trafficking Convention; Art 9(3) (a) Standing of Victims Directive. 261 L Mair and C Warren, Securing Housing After Trafficking (AIRE Centre, 2013) 18. 262 L Shuker, ‘Safe Accommodation for Sexually Exploited and Trafficked Young People’ (University of Bedfordshire, 2011) 2. 263 GRETA, Second General Report on GRETA’s activities covering the period from 1 August 2011 to 31 July 2012 (GRETA(2012)13) 57.

142  European Approach to Human Trafficking ­ ossible, be respected while in accommodation.264 Such treatment should not p merely be afforded for a fixed period of time, but for as long as it takes for victims to adequately recover from the trauma of exploitation.265 ‘Safe’ accommodation, on the other hand, implies that shelters must be designed and guarded in such a way as to protect trafficked victims from harassment from traffickers and their associates.266

X.  Protection and Support for Child Victims In recognition of the fact that children are one of the most vulnerable groups of persons to trafficking and revictimisation post-exploitation,267 European antitrafficking law provides a number of measures that are aimed at protecting and supporting these persons, in accordance with their best interests. More specifically, the types of assistance envisaged by European anti-trafficking law not only includes the provision of material assistance,268 but also access to ­education,269 and protection from secondary victimisation in the context of criminal ­proceedings.270 In relation to this issue, European anti-trafficking law envisages the use of appropriate technologies to facilitate child victims’ participation in criminal proceedings;271 the use of specially designed premises aimed at protecting child victims from unnecessary encounters with traffickers;272 limitations on the number of interviews conducted with child victims by trained professionals;273 as well as the appointment of legal guardians to represent children where the actions of parents raise conflicts of interests274 or where they are unaccompanied or separated from their parents.275 Furthermore, European anti-trafficking law envisages that European countries will pay special attention to the needs of unaccompanied child victims, and where appropriate, provide requisite assistance to family members of these persons.276 More profoundly, as the case of R v O277 emphasises, European anti-trafficking law also places an obligation on states to ensure that where the age 264 ibid. 265 Recital [18] EU Anti-Trafficking Directive. See also, IOM, The IOM Handbook on Direct Assistance for Victims of Trafficking (International Organization for Migration, 2007) 101. 266 Council of Europe, ‘Explanatory Report to CoE Anti-Trafficking Convention’ (n 102) [154]. 267 D Hodge and C Lietz, ‘The International Sexual Trafficking of Women and Children A Review of the Literature’ (2007) 22 Affilia: Journal of Women and Social Work 163. 268 Art 11 EU Anti-Trafficking Directive; See also Art 12 CoE Anti-Trafficking Convention. 269 Art 14(1) EU Anti-Trafficking Directive; Art 12(1)(f) CoE Anti-Trafficking Convention. 270 Art 15(2) and (3) EU Anti-Trafficking Directive. 271 ibid Art 15(4); Art 24(1)(a) Standing of Victims Directive. 272 Art 15(3)(b) EU Anti-Trafficking Directive. 273 ibid Art 15(3)(a), (d) and (e). 274 ibid Arts 14(1) and 15(1); Art 24(1)(b) Standing of Victims Directive. 275 Art 16(3) and (4) EU Anti-Trafficking Directive; Art 10(4)(a) CoE Anti-Trafficking Convention; Art 24(1)(b) Standing of Victims Directive. 276 Art 14(3) EU Anti-Trafficking Directive. 277 [2008] EWCA Crim 2835 [13].

Regularisation of Immigration Status, Repatriation and Reintegration   143 of a young victim is uncertain, that that person is presumed to be a child, and thus provided with assistance commensurate with her or his needs.278

XI.  Regularisation of Immigration Status, Repatriation and Reintegration Cognisant of the precarious position in which many victims of trafficking often find themselves, particularly those who do not have the citizenship of the destination country, European anti-trafficking law specifically provides for an obligatory recovery and reflection period, as well as for the granting of discretionary residence permits. The recovery and reflection period, the duration of which is unspecified in the Residence Permit Directive279 but specified to be at least 30 days in the CoE Anti-Trafficking Convention,280 ought to be issued by competent national authorities once there are reasonable grounds for believing that a person has been trafficked.281 Such a period of recovery and reflection has the objectives of affording victims the opportunity to escape the influence of their traffickers, while temporarily benefiting from appropriate assistance and support measures commensurate with their needs.282 It also has the objective of affording victims the opportunity to make an informed decision as to whether they wish to cooperate with competent national authorities in the institution of criminal proceedings.283 By contrast, residence permits afford victims of trafficking the opportunity to remain in the destination country for an extended period of time following the expiration of the recovery and reflection period, either where this is necessary for the purposes of cooperating with competent national authorities in the institution of criminal proceedings against traffickers284 or on the basis of their personal situation,285 which may include their age, disability or medical status, among others. Such residence permits ought to be renewable, provided that the f­ oregoing conditions continue to exist.286 In principle, the issuance of residence permits must be without prejudice to a victim’s right to seek refugee status/asylum.287

278 Art 13(2) EU Anti-Trafficking Directive; Art 10(3) CoE Anti-Trafficking Convention; Art 24(2) Standing of Victims Directive. 279 Art 6(1) Residence Permit Directive. (‘The duration and starting point of the period referred to in the first subparagraph shall be determined according to national law’.) 280 Art 13(1) CoE Anti-Trafficking Convention. 281 ibid. 282 ibid; Art 6(1) Residence Permit Directive. 283 S Egan, ‘Protecting the Victims of Trafficking: Problems and Prospects’ (2008) 1 European Human Rights Law Review 106, 111. 284 Art 14(1)(b) CoE Anti-Trafficking Convention. 285 ibid Art 14(1)(a). 286 Art 13(1) Residence Permit Directive; Art 14(3) CoE Anti-Trafficking Convention. 287 Art 14(5) CoE Anti-Trafficking Convention.

144  European Approach to Human Trafficking In accordance with EU anti-trafficking law, the recovery and reflection period may be terminated if the victim in question actively, voluntarily and on her or his own initiative renews contacts with her or his traffickers,288 or where public policy or national security interests justify such termination.289 On the other hand, the residence permit can be terminated if the authorities have decided to bring an end to the criminal proceedings wherein which the victim was a participant;290 where the victim ceases to cooperate with competent national authorities;291 where the victim voluntarily renews contact with her or his traffickers;292 or where public policy or national security interests warrant its termination.293 On the question of reintegration, it is important to note that victims of trafficking oftentimes experience isolation, discontent and immense frustration after having been identified and referred to appropriate service providers, even if granted the recovery and reflection period, especially in foreign countries to which they have been trafficked.294 This situation is typically made worse where the circumstances are such that they do not speak the language(s) of destination countries or where they have no material resources of their own or no familial support.295 Cognisant of this reality, European anti-trafficking law obliges European countries of origin to facilitate and accept, without delay, the return of their nationals who have been trafficked abroad.296 In addition, it places an obligation on destination countries to return foreign victims of trafficking to their countries of origin in appropriate cases, having due regard to their rights, safety and dignity, as well as the status of ongoing criminal proceedings.297 As a matter of practice, one particularly important positive development in this field relates to the offering of complementary protection to an increasing number of trafficked victims based on the Refugee Convention. By way of example, in the England and Wales case of AZ (Trafficked Women) Thailand CG,298 the Upper Tribunal of the Immigration and Asylum Chamber was prepared to find that a Thai victim of trafficking could benefit from refugee protection, in accordance with Article 1(A)(2) of the Refugee Convention. Briefly, the facts of the case were that the victim in question was brought to the UK, and subsequently trafficked

288 Art 6(4) Residence Permit Directive. 289 ibid. 290 ibid Art 14(e). 291 ibid Art 14(d). 292 ibid Art 14(a). 293 ibid Art 14(c). 294 D Brennan, ‘Competing Claims of Victimhood? Foreign and Domestic Victims of Trafficking in the United States’ (2008) 5 Sexuality Research and Social Policy 45, 55. 295 E Hopper and J Hidalgo, ‘Invisible Chains: Psychological Coercion of Human Trafficking Victims’ (2006) 1 Intercultural Human Rights Law Review 185, 195. 296 Art 16(1) CoE Anti-Trafficking Convention. 297 ibid Art 16(2). (This can be following a victim’s request to be returned home or upon expiration of the recovery and reflection period or residence permit.) 298 AZ (Trafficked Women) Thailand CG [2010] UKUT 118 (IAC).

Regularisation of Immigration Status, Repatriation and Reintegration   145 into sexual exploitation for eight months by a man with whom she had begun a relationship in Thailand. The Tribunal heard evidence that she was threatened that her child, whom she had left in Thailand, would be killed if she did not comply with the demands of the trafficker in question, as well as other gruesome accounts of her being injected with drugs, forced to perform perverse sexual fantasies, and being held in a dark room wherein she was left hungry when she attempted to escape. When she eventually managed to escape, and attempted to return to Thailand, she was arrested at a British airport and later sentenced to nine months’ imprisonment for attempting to use a false passport. On appeal to the Upper Tribunal, however, the judges found that, for the purposes of refugee protection, she had a ‘well-founded fear of persecution’,299 on the basis of having fallen into a ‘particular social group’.300 More specifically, the Tribunal considered that she fell into a ‘particular social group’ because she shared the immutable characteristic of having been a victim of trafficking for the purpose of sexual exploitation.301 It also found that she had a ‘well-founded fear of prosecution’ on a number of accounts: there was a strong possibility that she might have been re-trafficked if she had returned to Thailand, given that she was poorly educated and did not have strong familial support in that country; the possible complicity of immigration officials in Thailand; and the possible difficulties that she might face when attempting to reintegrate into her community.302 Notwithstanding this positive ruling, however, the Tribunal was careful to note that it is not in every case that a trafficked victim’s claim for refugee status, and therefore protection against repatriation, would be countenanced: several stringent conditions, particularly in respect of the well-founded fear of persecution requirement, must necessarily be satisfied.303 More generally, on another note, upon their return to their countries or communities of origin, victims of trafficking often find it extremely difficult to live a ‘normal’ life.304 In fact, many of these victims have been reported to have become destitute and, in some cases, have even been re-trafficked.305 In view of

299 ibid [116]. 300 ibid [140]. 301 ibid. 302 ibid [148]. 303 See, eg, AM and BM (Trafficked Women) Albania CG [2010] UKUT 80 (IAC). The Tribunal highlighted a list of non-exhaustive conditions, eg, whether the trafficker has reason to further pursue the victim; whether the victim will face severe ostracism, punishment (such as forced marriage) or discrimination if returned home; whether the victim has had a child as a result of trafficking, who will be deemed to be illegitimate and therefore unwelcome in the country of origin; whether the state is unwilling or unable to protect the victim against the prosecution feared; whether internal relocation is possible; and whether the victim is at a real (and not merely fanciful) risk of suicide, among others. 304 M Lusk and F Lucas, ‘The Challenge of Human Trafficking and Contemporary Slavery’ (2009) 25 Journal of Comparative Social Welfare 49, 55. 305 C Adams, ‘Re-Trafficked Victims: How a Human Rights Approach Can Stop the Cycle of Re-Victimization of Sex Trafficking Victims’ (2011) 43 George Washington International Law Review 201.

146  European Approach to Human Trafficking this, E ­ uropean anti-trafficking law obliges European states which are ­destination countries to adopt necessary rules to afford victims of trafficking who have become lawful residents (ie, those with residence permits) access to the labour market, vocational training and education.306 Similarly, those States Parties which are source countries are under an obligation, following the receipt of nationals who have previously been trafficked abroad, to make their best effort to secure the reintegration of these individuals by affording them access to the labour market, the education system and vocational training.307

XII. Compensation Trafficked victims face some of the most degrading forms of physical and emotional harms that can be imagined.308 These harms are often further compounded by victims’ existing vulnerabilities, which might include large-scale disenfranchisement at both the social and economic levels, as well as the multitude of costs typically associated with the post-exploitation recovery process. In view of these challenges, European anti-trafficking law obliges European countries to put in place the necessary framework to ensure that these persons are afforded compensation.309 More specifically, compensation is envisaged to be paid either by those convicted of trafficking-related offences and/or through the respective states’ compensation funds/schemes.310 Any compensation that is awarded must be ‘fair and appropriate’,311 and, in light of the ECtHR decision of Rantsev, such compensation must be capable of covering both pecuniary as well as nonpecuniary losses.312 Additionally, trafficked victims must be given requisite information so as to enable them to be aware of, and make informed choices about, possible options for compensation.313

306 Arts 11 and 12 EU Anti-Trafficking Directive; Art 12(4) CoE Anti-Trafficking Convention. 307 Art 16(5) CoE Anti-Trafficking Convention. 308 C Farrell, Human Trafficking (ABDO, 2011) 77. 309 Art 17 EU Anti-Trafficking Directive; Articles 1–9 Compensation Directive; Art 16 Standing of Victims Directive; Art 15 CoE Anti-Trafficking Convention. 310 Art 15(4) CoE Anti-Trafficking Convention. 311 Art 12(2) Compensation Directive. 312 On the facts of Rantsev, the Court held that as Cyprus had not been responsible for Rantseva’s death, it was not appropriate to make any award in respect of pecuniary damage arising from her death. However, on the question of non-pecuniary damage, the Court, having found that the Cypriot ­authorities had failed to take steps to protect Rantseva from trafficking and to investigate whether she had been trafficked, held that the applicant had suffered anguish and distress as a result of the ­unexplained circumstances of his daughter’s death, which merited the award of €40,000 in damages. With regard to Russia, as it was found to be in breach of its procedural violation under Art 4, the ­applicant was awarded €2,000 in non-pecuniary damages. 313 GRETA, Third General Report covering the period from 1 August 2012 to 31 July 2013 (GRETA(2013)17) [61].

Hegemonic Assumptions  147

XIII.  Hegemonic Assumptions Although the next chapter is dedicated to addressing England and Wales’ ­compliance with the myriad obligations imposed by European anti-trafficking law, as fully described above, it suffices here to note that, in practice, a number of hegemonic assumptions have been observed to be in operation across Europe. By way of example, competent authorities in a number of European countries continue to harbour the hegemonic assumption that people of Roma descent who are trafficked into forced marriages are somewhat less worthy of protection because of their ethnicity and traditions which supposedly predispose them to becoming tacitly complicit in their own exploitation.314 Another hegemonic assumption that has been observed to exist on the part of competent authorities315 appears to be the view that access to compensation ought to be restricted to nationals and residents, effectively excluding third-country migrants who are deemed to be the ‘other’, and therefore unworthy of protection.316 From an Analytical Eclectic perspective, this process of ‘othering’ migrant victims of trafficking is seemingly based on a flawed perception that if victims are allowed to seek compensation, this may inadvertently create an enabling environment for other migrants to exercise their agency, which might in the process result in them becoming victims of trafficking, thereby placing a strain on the public purse. This particular hegemonic assumption has been manifested in a number of ways, including the erection of various procedural barriers that have the effect of preventing migrant victims from accessing compensation for harm suffered,317 such as the requirement that the offence must have been committed in the territory of the state and requiring proof of physical injury, which effectively excludes a number of victims of forced labour from accessing compensation. Regrettably, this approach appears to be rooted in the flawed assumption that victims of labour exploitation who might not have suffered discernible physical injury are less worthy of protection than victims of sexual exploitation. On a related issue, because of the near ubiquitous focus on the trafficking of women for sexual exploitation in many countries across Europe, non-sexual forms of exploitation, such as the trafficking of men and boys for labour exploitation, have for a long time been overlooked in the development of anti-trafficking law and policy, as well as in programmes aimed at identifying, supporting and assisting this particular group of victims. From an Analytical Eclectic perspective, this is, however, unsurprising, given the hegemonic assumption countenanced in a number of European countries that non-sexual forms of exploitation are implicitly lesser crimes.318 314 GRETA, Report on Montenegro (GRETA(2012)9 [134]. 315 GRETA, Report on Slovenia (GRETA(2013)20) [140]. 316 GRETA, Report on Poland (GRETA(2013)6) [186]. 317 GRETA, Report on Croatia (GRETA(2011)20 [108]. 318 GRETA, Report on Albania (GRETA(2011)22) [58]; GRETA, Report on Cyprus (GRETA(2011)8) [50]; GRETA, Report on Latvia (GRETA(2012)15) [51]; GRETA, Report on Malta (GRETA(2012) [59].

148  European Approach to Human Trafficking In many European countries, the pre-existing prejudice, stereotypes and a reported lack of sensitivity on the part of competent national authorities arguably impede the proper identification of many victims of trafficking and, in particular, those victims who, because of prevailing hegemonic assumptions, are perceived to be prostitutes, street children or undocumented migrants. From an A ­ nalytical Eclectic perspective, this suggests that a number of victims of trafficking, who might be irrationally perceived in a negative light by competent national authorities because of their status, might not be properly accounted for in the formal victim identification and referral process.319 More generally, it appears that a minimalist approach has been countenanced in respect of the provision of medical services to victims of trafficking in some European countries to the extent that only emergency medical services are provided in the vast majority of cases to victims of trafficking, and some countries place additional, and often unnecessary, restrictions on victims’ access to both medical and psychological assistance, which largely reflect their hegemonic assumptions about who is and who isn’t a ‘real’ victim. Finally, it appears that a number of European countries320 do not, in general, provide designated accommodation to male victims of trafficking. This general reluctance on the part of these countries to provide such accommodation reflects the hegemonic assumption that male victims are not ‘real’ victims and, accordingly, do not require support and assistance, including accommodation. This approach not only means that male victims of trafficking are treated in a discriminatory manner by competent authorities in some countries, but also that these victims are particularly at risk for becoming secondarily victimised. In short, it is the view of the Analytical Eclectic that such hegemonic assumptions about who is a ‘real’ victim, and who is therefore deserving of accommodation, prevent male victims from self-identifying, and may deter many from participating in criminal proceedings against traffickers.

Conclusion This chapter sought to provide a thorough and critical analysis of the European approach to human trafficking. Among other things, this chapter has made it clear

319 GRETA, Report on Romania (GRETA(2012)2) [143]; US Department of State, Trafficking in Persons Report – Hungary (2014) [201]; US Department of State, Trafficking in Persons Report – Ukraine (2014) [391]. 320 US Department of State, Trafficking in Persons Report – Germany (2014) [185]; GRETA, Report on Luxembourg (GRETA(2013)18) [105]; GRETA, Report on Armenia (GRETA(2012)8) [128]; GRETA, Report on Austria (GRETA(2011)10) [94]; GRETA, Report on Bulgaria (GRETA(2011)19) [165]; GRETA, Report on Denmark (GRETA(2011)21 [137]; GRETA, Report on Iceland (GRETA(2014)17) [136]; GRETA, Report on Italy (GRETA(2014)18) [147]; GRETA, Report on Latvia (GRETA(2012)15 [136].

Conclusion  149 that European countries are bound by a range of obligations stemming from the application of the EU Anti-Trafficking Directive and the CoE Anti-Trafficking Convention, some of which have been operationalised in practice with a greater degree of success than others. Although this chapter did not explore the range of state practices that touch and concern these obligations, it nonetheless highlighted a number of challenges that arise in practice across the multiple domains of protection, prosecution and prevention, including the existence of hegemonic assumptions. Indeed, as Professor Piotrowicz has pointed out, ‘we do not need more law; we need full and effective implementation of the existing law’.321 The extent to which England and Wales has fully and effectively implemented European anti-trafficking law is accordingly considered in the next chapter.

321 R Piotrowicz, Co-operation between Member States in Fighting Human Trafficking (Home Office, European Commission, EMN National Network and British Library, 2013) [7].

5 Anti-Trafficking Law and Practice in England and Wales Introduction Human trafficking is an insidious plague that continues to pose a Sisyphean ­challenge for policymakers all across the globe, including the United Kingdom (UK). In fact, conservative estimates suggest that over 13,000 persons are ­trafficked on an annual basis in the UK, primarily for labour and sexual exploitation, with some 47 per cent females and 52 per cent males passing through the National Referral Mechanism (NRM).1 The main source countries from which these victims originate are Albania, Vietnam, China, Nigeria and Romania. However, it would be incorrect to assume that trafficking in the context of the UK is purely a transnational problem, as a sizeable number of victims are reportedly internally trafficked.2 The stories of the exploitation which victims of trafficking have had to endure are shocking, disturbing and heart-wrenching. For example, in recent years, urban gangs have targeted vulnerable children, particularly those with irregular immigration status, to cultivate and supply drugs, mainly heroin and crack cocaine, to suburban areas, market and coastal towns, which is referred to by some police forces as the ‘county lines’ phenomenon.3 In the realm of sexual exploitation, victims report being introduced to prescription drugs by their traffickers, being made to take intimate photos which were then used as a blackmailing device, and being violently raped by hundreds of men across different locations around the country.4 Yet, still, other victims report being promised decent jobs, but later having their passports confiscated, being forced to work for up to 20 hours a day, seven days a week, for little or no wages, and being required to live in shared, squalid and grossly overcrowded accommodation5 not even fit for animals. 1 ‘National Referral Mechanism Statistics – End of Year Summary 2017’ (National Crime Agency, EOY17-MSHT, 26 March 2018). 2 ibid. 3 ‘Child Criminal Exploitation: County lines gangs, child trafficking and modern slavery defences for children’ (Youth Justice Legal Centre, January 2018); ‘Criminal Exploitation of children and vulnerable adults: County Lines guidance’ (Home Office, July 2017). 4 ‘British woman tells of sex trafficking horror in the UK’ (ITV News, 29 November 2014). 5 ‘The CPS response to the Modern Slavery Act 2015’ (HM Crown Prosecution Service Inspectorate, December 2017).

Criminalising Trafficking in Persons  151 Despite these admittedly saturnine scenes, the UK has progressively sought to combat the scourge of human trafficking, with its latest revolutionary legislative commitment coming in the form of the Modern Slavery Act in 2015.6 This Act not only criminalises human trafficking, but seeks to prevent the phenomenon and protect and support victims of trafficking, in keeping with the UK’s international and European anti-trafficking obligations respectively described in chapters three and four. Notwithstanding the pragmatic orientation of this relatively new Act, however, a number of institutional and operational challenges arise in practice, which not only question the efficacy of the new legislation and its future application, but strongly suggest that there exists a ‘disconnect’ between anti-trafficking law and practice. This chapter aims to highlight and explore the nature of these challenges, and to assess their likely implications on victims and perpetrators. It also aims to extrapolate best practices and standards which could inform the development and enhancement of anti-trafficking law and practice in the Commonwealth Caribbean.

I.  Criminalising Trafficking in Persons In chapter four, reference was made to the European Court of Human Rights (ECtHR) decisions of Siliadin v France,7 Rantsev v Cyprus and Russia8 and CN v The United Kingdom,9 which collectively impose a positive obligation upon European countries, including the UK, to criminalise trafficking in persons, in accordance with the provisions of the UN Trafficking Protocol. The Modern Slavery Act criminalises a person who arranges or facilitates the ‘travel’ of another person (V) with a view to that person being exploited.10 Put another way, a person commits the offence of trafficking in persons, and is thus liable to imprisonment for life on conviction on indictment or to imprisonment for a term not exceeding 12 months or a fine or both on summary conviction,11 where he recruits, transports, transfers, harbours, receives or exchanges control over another person,12 whether in respect of his or her arrival, departure or travel within any country,13 in circumstances where he demonstrates an intention to

6 See generally, ‘Information Note on Trafficking’ (AIRE and Herbert Smith Freehills, 7 June 2017); P Ahluwalia, ‘Modern Slavery’ (Garden Court Chambers, Lexis Nexis, 2015); ‘Modern Slavery Strategy’ (HM Government, 2014); ‘Developments in The UK’s Response to Child Trafficking and Child Sexual Exploitation’ (GECPAT UK, March 2016). 7 Siliadin v France [2005] ECHR 545. 8 Rantsev v Cyprus and Russia (2010) 51 EHRR 1. 9 CN v The United Kingdom App no 4239/08 (ECHR, 13 November 2012). 10 s 2(1) Modern Slavery Act 2015. 11 ibid s 5(1). 12 ibid s 2(3). 13 ibid s 2(5).

152  Law and Practice in England and Wales exploit V during or after the travel or knows or ought to know that another person is likely to exploit V during or after the travel.14 In this context, jurisdiction by UK courts is exercisable over a UK national who commits the offence, irrespective of where the offence takes place15 and, in more limited circumstances, is also exercisable over a non-UK national where any part of the offence takes place in the UK or involves entry into, departure from or travel within the UK.16 This effectively captures both transnational and internal trafficking. The purposes for which V’s travel is arranged or facilitated are non-­exhaustively outlined by the Act, and include, at a minimum, slavery, servitude and forced labour,17 sexual exploitation18 and the removal of organs.19 While the various forms of exploitation contemplated by the Act represent those explicitly prohibited by European, and indeed international anti-trafficking, law, it is evident that the UK’s approach is somewhat nuanced, if not inconsistent,20 with the need for ‘acts’, ‘means’ and ‘purpose’ elements as constitutive features of the offence of trafficking in persons. Indeed, while the new legislation contemplates the ‘acts’ element, such as recruitment, transportation and harbouring, as well as the ‘purpose’ element, namely forced labour, servitude, sexual exploitation and the removal of organs, the ‘means’ element, namely threat, use of force, coercion and abuse of a dominant position, are noticeably absent, at least in respect of the main substantive offences. While in principle this should represent an easier hurdle for ­prosecutorial authorities to cross, and may thereby potentially increase the number of ­trafficking-related convictions, it does not appear that this has produced the positive results envisaged in practice. Furthermore, in diluting, and, in effect, casting aside the essential definitional requirements for establishing the offence as outlined by international and European anti-trafficking law, the Act not only relegates decades-long debates and compromise on the question of what constitutes the offence of trafficking in persons, but also muddies the elementary distinction between the trafficking of an adult and the trafficking of a child. Indeed, what distinguishes the former from the latter, at least in international and European law, is the fact that whereas the former necessarily requires the ‘means’ element to establish the offence, the latter does not. This begs the question as to whether the benefits envisaged as a result of the adoption of this approach justify the jurisprudential quagmire that it is likely to produce in practice.21

14 ibid s 2(4)(a)–(b). 15 ibid s 2(6). 16 ibid s 2(7). 17 ibid s 3(2). 18 ibid s 3(3). 19 ibid s 4(4). 20 GRETA, Report concerning the implementation of the Council of Europe Convention on Action against Trafficking in Human Beings by the United Kingdom (Second Evaluation Round, GRETA(2016)21, Secretariat of the Council of Europe, 7 October 2016) [261]–[262]. 21 J Haynes, ‘The Modern Slavery Act (2015): A Legislative Commentary’ (2015) 37 Statute Law Review 33.

Investigating Trafficking in Persons  153 Interestingly, however, it should be noted that the ‘means’ element has not altogether been disposed of by the Act. In fact, in respect of one offence in ­particular, namely ‘securing services’,22 the ‘means’ element is required, so that the tripartite concepts of ‘acts’, ‘means’ and ‘purpose’ are strictly present, in accordance with European anti-trafficking law. In short, if a person, for example, recruits another, by means of threat or force, in order for that person to provide services of any kind, such as the cultivation or transportation of cannabis, the offence of trafficking in persons is committed. On another note, the use or attempted use of the services of a trafficked victim is expressly criminalised23 where the accused has specifically chosen to exploit that person’s services on the ground that he or she is a child or is mentally ill or disabled or is a family member or, in the case of an adult, that person would likely refuse to be used for that purpose. While a penalty of imprisonment for life may be imposed on conviction on indictment, the Act contemplates the imposition of a term of imprisonment not exceeding 12 months and/or a fine on summary conviction upon the commission of this offence.24 By contrast, a term of 10 years’ imprisonment (on conviction on indictment) or 12 months (on summary conviction)25 is contemplated where a person aids, abets, counsels or procures the commission of a trafficking-related offence,26 unless that offence involves kidnapping or false imprisonment, in which case the guilty party is liable, on conviction on indictment, to imprisonment for life.27 On a final note, on the question of consent, the Modern Slavery Act deems as irrelevant an allegation that the victim of trafficking has consented to his or her arrival, departure or travel within any country.28

II.  Investigating Trafficking in Persons In Rantsev v Russia and Cyprus, discussed extensively in chapter four, the ECtHR ruled that European states, including the UK, are under a positive obligation to take requisite operational measures to effectively investigate human trafficking. According to the Court of Appeal of England and Wales in the 2018 case of S­ ecretary of State for the Home Department v H,29 the investigative obligation inherent in Article 4 of the European Convention on Human Rights (ECHR) is targeted at identifying and bringing perpetrators to justice, and that it is the police who have



22 s

3(6) Modern Slavery Act 2015. 3(6). 24 ibid s 5(1). 25 ibid s 5(2)(a)–(b). 26 ibid s 4. 27 ibid s 5(3). 28 ibid s 2(2). 29 Secretary of State for the Home Department v H [2016] EWCA Civ 565. 23 ibid

154  Law and Practice in England and Wales primary responsibility for discharging this important obligation. Additionally, the 2018 High Court case of R (on the application of CP (Vietnam)) v Secretary of State for the Home Department30 makes it clear that there may be circumstances, such as uncertainty over the whereabouts of a missing potential victim of trafficking, where an investigation of some sort is required if the protective obligation inherent in Article 4 ECHR is to be properly discharged. Another significant jurisprudential statement arising from the recent decision of R (On the Application of TDT, By His Litigation Friend Tara Topteagarden) v The Secretary of State for the Home Department v Equality and Human Rights Commission31 is that if there is awareness by the state of material which gives rise to a credible suspicion that a person has been trafficked, which in the circumstances of this case meant that he or she was also at real and immediate risk of being (re-)trafficked if released, the state would be in breach of its protective duty under Article 4 ECHR, as interpreted by the ECtHR in Rantsev, if it fails to take operational steps to protect that person from falling back into the hands of his traffickers. In this case, the state was held to have breached this duty because, after a reasonable grounds decision was issued that the Vietnamese migrant was a potential victim of trafficking, the Secretary of State nevertheless released the applicant without taking any steps to ensure that he was not re-trafficked, which he ultimately was, on the facts. Efforts to investigate trafficking-related incidents in England and Wales are spearheaded by the National Crime Agency (NCA), with operational support and coordination provided by a number of other agencies, including specialised antitrafficking units, which form part of some individual police forces’ law enforcement machinery, and the Gangmasters and Labour Abuse Authority,32 whose remit is limited to regulating the employment conditions of workers in the agricultural, horticultural and shellfish industries, sectors in relation to which labour trafficking has increasingly been found to exist. The operational aspects of investigations into human trafficking in England and Wales are statutorily governed by the Police and Criminal Evidence Act (PACE) (1984), and its accompanying Codes of Practice, the Regulation of Investigatory Powers Act (2000), which makes provision for the interception of communication (wiretapping), intrusive surveillance (bugging houses/vehicles) and covert human intelligence sources (informers, undercover officers), as well as a Memorandum of Understanding (MoU) between the Crown Prosecution Service (CPS), the National Police Chiefs’ Council, the NCA and Her Majesty’s Revenue and Customs. This (MoU) provides detailed guidance on obtaining and using ‘best evidence’ in respect of financial, internet and communications data to progress investigations into human trafficking. 30 R (on the application of CP (Vietnam)) v Secretary of State for the Home Department [2018] EWHC 2122 (Admin). 31 R (On the Application of TDT, By His Litigation Friend Tara Topteagarden) v The Secretary of State for the Home Department v Equality and Human Rights Commission [2018] EWCA Civ 1395. 32 s 55 Modern Slavery Act 2015.

Investigating Trafficking in Persons  155 With regard to investigations into victims’ circumstances of exploitation, it is noteworthy that the Trafficking People for Exploitation Regulations 2013 (England and Wales) provides for measures of protection applicable to both children and adult potential and actual victims of trafficking. Regulation 3, for example, states that, without prejudice to the rights of the accused, and in accordance with an individualised assessment of the personal circumstances of the victim, the relevant chief officer of police must ensure that victims of trafficking receive specific treatment aimed at preventing secondary victimisation by avoiding, as far as possible, during an investigation of a human trafficking offence, unnecessary repetition of interviews; visual contact between the victim and the accused; and unnecessary questioning concerning the complainant’s private life; and emphasises the need to use appropriate alternative means of communication, including communication technologies. To date, investigating authorities in England and Wales have not only been able to successfully investigate instances of internal trafficking, but also transnational trafficking, particularly in respect of trafficking syndicates operating across multiple European countries, where Joint Investigation Teams (JITs) have frequently been deployed.33 JITs are an international cooperation tool based on an agreement between competent authorities – both judicial and law enforcement – of two or more states, established for a limited duration and for a specific purpose, namely to carry out criminal investigations in one or more of the involved states. As a participating state in JITs, competent authorities in England and Wales have begun to reap tremendous benefits, particularly in investigations that involve traffickers operating in France, Hungary and Romania, where intelligence ­sharing and overall evidence gathering capabilities have led to a number of successful arrests and prosecutions for trafficking-related offences. By way of example, in July 2015, 11 defendants were arrested, and later prosecuted and sentenced to a total of 60 years’ imprisonment, in circumstances where they trafficked over 250 ­Hungarian women into sexual exploitation in 50 brothels in London and Peterborough.34 The arrests resulted from the successful operation of a JIT between the CPS, the Metropolitan Police Service and Hungarian authorities, with the coordinating support of EUROJUST. Had a JIT not been established, UK authorities would have had to make repeated requests for Mutual Legal Assistance, which might have proven to be time consuming given the complex nature of the case. Closely connected to JITs are the European Arrests Warrants (EAWs), which enable the speedier and more streamlined extradition of wanted individuals between EU Member States. The EAWs, which are facilitated by EUROJUST, have been utilised by UK authorities in a number of cases, including the successful extradition in 2016 of Romanian national Razvan Nedelea from Romania to the

33 B Gravett, ‘Countering Human Trafficking: The UK’s Efforts’ (Migration and the Security Sector Paper Series, DCAF, November 2015). 34 ‘Brexit & the UK’s fight against modern slavery’ (Anti-Trafficking Monitoring Group, July 2017).

156  Law and Practice in England and Wales UK to stand trial alongside nine others for trafficking women for the purposes of sexual exploitation. Apart from JITs and EAWs, the UK also participates in a number of other schemes, which undoubtedly assist its authorities in the investigation and prosecution of trafficking-related offences. For instance, the UK currently has access to a range of EU databases and data-sharing mechanisms, including the European Criminal Records Information System, which provides easy access to the criminal history of an individual in Member States; the Schengen Second Generation Information Services, which provides live alerts regarding individuals and objects of interest to law enforcement; and Prüm Decisions, which allow access to national databases containing DNA profiles, fingerprints and vehicle registration data across the EU. In practice, apart from growing concerns as to whether these arrangements will continue after the UK leaves the EU following ‘Brexit’, a number of other operational and technical challenges touch and concern the investigation of human trafficking in the UK, which suggest that there is, in some respects, a ‘disconnect’ between anti-trafficking law and practice. More specifically, at the institutional level, it has been observed that only some police forces have a dedicated human trafficking unit (such as the Metropolitan Police, Greater Manchester, and West Yorkshire), a reality which has certain adverse implications in practice, including limited knowledge-base and appreciation among generalist officers of the evolving dynamics of human trafficking and a lack of sensitivity to the immediate needs, concerns and interests of victims whose first point of contact is often the police. Indeed, as Caroline Haughey has pointed out, some forces, particularly those with specialised anti-trafficking units, are ‘significantly better equipped to address intelligence sharing challenges than others’, noting that this represents ‘a real disparity in approach’.35 Haughey also points to the fact that communication between forces was ‘patchy, resulting in missed opportunities to collect and use important intelligence’, as well as a ‘lack of coordination in this field’ among forces.36 Another significant institutional challenge which reportedly impedes effective investigations into human trafficking in England and Wales relates to the fact that the police service continues to face budgetary cuts which has meant that complex, time-consuming, lengthy and costly investigations into human trafficking have become lesser and lesser an institutional priority for some forces.37 In attempting to recalibrate the challenges that invariably arise in connection with resource constraints of this nature, Ruth van Dyke has noted that some police forces focus more attention on ‘the rescue of victims and the disruption of the criminal

35 C Haughey, ‘The Modern Slavery Act Review’ (Home Office, 31 July 2016) 16. 36 ibid. 37 R van Dyke, ‘The Law Enforcement Response to Modern Slavery in the United Kingdom’ (St Mary’s University, London, 2018) 3.

Investigating Trafficking in Persons  157 ­ usiness, which is a cheaper option than pursuing a comprehensive investigation b that may in time result in prosecution of key individuals’.38 From a practical perspective, victims of trafficking face a number of difficulties when interfacing with the police in the UK. Among the main challenges faced by victims is the fact that some forces countenance ‘hegemonic assumptions’ about which cases should be investigated, which effectively de-prioritises labour trafficking as this is not a form of exploitation which is viewed as ‘criminal’. Indeed, as the Anti‐Trafficking Monitoring Group has observed, many of these victims are routinely refused assistance when they present themselves at police stations, being told that ‘their problem is not a police matter’.39 Regrettably, where investigations are, in fact, initiated, the impression is frequently given that these efforts are not mandated by law, but highly dependent upon the goodwill and perseverance of individual officers, which admittedly flies in the face of the ECtHR decision in Ranstev v Russia and Cyprus, which imposes a positive obligation on the police to investigate human trafficking where they are aware, or ought to have been aware, of circumstances giving rise to a credible suspicion that an identified individual has been, or is, at real and immediate risk of being trafficked or exploited within the meaning of Article 3(a) of the Palermo Protocol and Article 4(a) of the Anti-Trafficking Convention. In a comprehensive review of the policing response to human trafficking in the UK, Her Majesty’s Inspectorate of Constabulary and Fire & Rescue Services has provided some incredibly revealing, if not disconcerting, insights into the ‘disconnect’ between anti-trafficking law and practice on the question of investigations into human trafficking in the UK.40 Among the scathing criticisms identified is the fact that across most of the forces inspected, a reactionary approach to the investigation of trafficking in persons was being countenanced, evidenced by a ‘lack of intelligence-gathering taking place at the force level to understand local threats and high-risk locations’.41 The reticence to conduct proactive investigations effectively means that a number of victims of trafficking continue to remain silent, and therefore unidentified, voices in England and Wales, while traffickers continue to reap the lucrative rewards associated with the vicious cycle of exploitation. While the lack of adequate resources in some forces might explain this unfortunate reality, it is clear that other factors are at work, which belies the considerable progress described earlier in this chapter in respect of the use of internet, financial and communications data, JITs and EAWs, among other things.

38 ibid. 39 ‘Written submission to the European Commission on the UK’s implementation of the EU ­Directive (2011/EU/36)’ (The Anti‐Trafficking Monitoring Group, 2017) 11 (‘Written submission on EU D ­ irective (2011/EU/36’). 40 ‘Stolen freedom: the policing response to modern slavery and human trafficking’ (Her Majesty’s Inspectorate of Constabulary and Fire & Rescue Services, October 2017) (‘Stolen freedom’). 41 ibid 10.

158  Law and Practice in England and Wales Another of the main concerns highlighted by Her Majesty’s Inspectorate of Constabulary and Fire & Rescue Services is the fact that, in a number of cases, police officers do not speak with some victims of trafficking during investigations, particularly when these persons do not wish to support a prosecution. Apart from the fact that potentially valuable intelligence is lost by failing to interface with victims who do not wish to support a prosecution, the parochial approach of these police officers serves only to cement the hegemonic assumption that if a victim is not willing to participate in criminal proceedings that person is somehow complicit in his or her own exploitation, and thus not worthy of protection and assistance. A striking example of this was reported by the Inspectorate, which pointed to an instance in which a group of 14 Romanian workers attended a police station, complaining of exploitation on a building site, but not as much as a formal statement was taken because the group had said they did not wish to support a prosecution.42 In fact, members of the exploited group were reportedly repatriated back to Romania within days without the police understanding whether human trafficking offences had taken place, and without the victims receiving the requisite protection envisaged by European anti-trafficking law. A related concern, as again pointedly expressed by the Inspectorate, relates to the fact that across multiple police forces, the level of awareness and understanding of human trafficking, especially by call handlers and desk enquiry officers, is ‘generally patchy and inconsistent’.43 More specifically, it appears that a number of police personnel are simply not confident about recognising the indicia of human trafficking, though training has been conducted across most forces. For example, a Romanian individual who had his identity documents confiscated by his employer and was forced to work without pay, made a report to the police about his exploitation, but this was not initially recognised as potentially an instance of human trafficking by the front desk officer; it was simply recorded as theft. The patchy and inconsistent state of knowledge and awareness about human trafficking not only characterise the situation of call handlers and desk enquiry officers, but also front-line officers across multiple forces. In fact, the Inspectorate reports that in one force, most officers and staff were unable to recognise the indicators of human trafficking, while in other forces, the ‘hegemonic assumption’ lingered among some officers that human trafficking is ‘rare and only affect(s) certain communities’.44 The palpable failure to recognise at least the possibility that human trafficking might be happening locally makes officers less likely to be alert to this type of offending, and thus less likely to be able to identify it when encountered. Additionally, the lack of awareness of the statutory defence created by section 45 of the Modern Slavery Act, discussed later in the chapter, effectively means that officers attending incidents or crime scenes do not routinely consider



42 ibid

39. 41. 44 ibid 43. 43 ibid

Investigating Trafficking in Persons  159 or gather sufficient evidence to help determine whether individuals are offenders or potentially victims forced to commit offences. Regrettably also, the Inspectorate has observed ‘troubling examples’ in some forces of officers who appeared reluctant to identify and uncover cases of human trafficking due to the volume of complex work that such cases may generate, or because of uncertainty about how to proceed.45 Apart from the potential breach of Article 4 ECHR’s positive obligation to investigate incidents of human trafficking, this cowardly approach of some officers demonstrates that despite the fact that much progress has been made, there remains a ‘disconnect’ between law and practice on the question of investigations into trafficking in persons, which has serious implications for victims who are unable to liberate themselves from situations of exploitation. This is, indeed, cause for concern, especially when coupled with the fact, as found by the Inspectorate, that a number of officers do not yet have a good understanding of the NRM, discussed later in this chapter, such that they have failed to routinely explain what options for support and assistance are available to victims of trafficking whom they encounter. More generally, there appear to be substantial problems in the way in which trafficking investigations are handled at the lower levels of the policing machinery. In fact, in some instances, investigations have been so poor that they produced little evidence capable of being used by the prosecution,46 while in other cases, investigations have been finalised prematurely when lines of enquiry remained outstanding. The ‘clear tendency to close cases prematurely,47 sometimes without speaking to victims or witnesses’ is some cause for concern, as are the extensive delays in initiating investigations (of seven and eight months in some instances), and the lack of effective supervision of investigations. Furthermore, a poor attitude towards victims and a lack of professional curiosity in understanding the circumstances behind victims’ exploitation remain central weaknesses of many police forces across England and Wales. As highlighted by the Inspectorate, these poor attitudes manifest themselves in, for example, police officers, on occasions, contacting victims by telephone rather than face to face to discuss difficult experiences, especially in instances of sexual exploitation; police officers refusing to speak to victims who have been referred to them by third parties, particularly where these victims are held in immigration detention; some forces referral of victims without legal status in the UK to immigration authorities rather than investigating the crimes to which they have been subjected;48 and repeated delays in debriefing victims. The negative externalities that arise in this connection are profound, and include victims losing commitment to the investigatory and prosecutorial process, victims harbouring negative perceptions about police interest and support, and the trust between police and victims being undermined. 45 ibid 45. 46 ibid 64. 47 ibid 66. 48 Shanta Martin, ‘Modern Slavery lawyer comments on “damning” report’ (Leigh Day, 24 October 2017).

160  Law and Practice in England and Wales

III.  Identifying and Referring Victims of Trafficking In keeping with the requirements of European anti-trafficking law, the Modern Slavery Act envisages that appropriate steps will be taken to correctly identify persons in relation to whom there are reasonable grounds for believing that they have been trafficked, and necessary arrangements made for their support and assistance.49 Although the Act gives legislative force to the obligation on national ­stakeholders to identify trafficked victims, it should be noted that the idea of an NRM is not a new one in England and Wales. In fact, since 2009, an NRM has been in existence. In practice, ‘first responders’,50 which include a broad range of state and nonstate actors, such as the NCA, police forces from across the UK, Border Force, HMRC, the Salvation Army, the Poppy Project, Kalayaan, and Barnardos,51 identify and refer potential victims of trafficking. In their capacity as the first point of contact between victims and the NRM, these first responders not only provide immediate material, physical and psychological support and assistance to these persons, but also build rapport so that statements and other evidence supporting a possible referral to competent authorities can be obtained. Following the completion of necessary interviews and other evidence gathering processes, potential victims of human trafficking are referred to the relevant competent authority of the NRM to investigate the case further. Referral to the competent authority is voluntary for adults, who must provide their consent by signing the referral form, but no such consent is required from potential child victims of trafficking.52 Referrals by first responders are in practice directed to one of two competent authorities – the NCA’s Modern Slavery Human Trafficking Unit, which deals with referrals from UK and European Economic Area (EEA) nationals or the Home Office Visas and Immigration (UKVI), which deals with referrals from non-EEA nationals. Thereafter, the appropriate competent authority follows a two-stage process to determine whether or not the person in question is a victim of human trafficking. First, the competent authority assesses, usually within five working days, whether there are reasonable grounds, based upon statements from the victim and information from the first responder or other sources, to believe that the individual is a potential victim of human trafficking. Although the court in R (XYL) v Secretary of State for the Home Department53 intimated that the expectation that a reasonable grounds decision will be made within five working days does not give rise to a hard-edged rule, the 2018 decision of R (on the application of CP (Vietnam)) v Secretary of State for the Home

49 ss

41(1)(b), 49(1), 50 Modern Slavery Act 2015. Annual Report on Modern Slavery’ (HM Government & Ministry of Justice, October 2017). 51 ‘Information Note on Trafficking’ (n 6). 52 ‘Child Criminal Exploitation’ (n 3). 53 R (XYL) v Secretary of State for the Home Department [2017] EWHC 773 (Admin). 50 ‘UK

Identifying and Referring Victims of Trafficking  161 ­ epartment54 makes it undeniably clear that where there has been significant delay D in reaching the reasonable grounds decision, it is incumbent upon the competent authority to provide some good explanation for this delay. Where there is an unexplained failure to expeditiously investigate a person’s status for the purposes of coming to a reasonable grounds decision, there will be a breach of the competent authority’s policy, which is actionable before the courts. In this case, when the competent authority recognised the claim as one of re-trafficking, it still took over nine weeks for a reasonable grounds decision to be made, which was deemed by the court to be unlawful. The threshold at the first stage – the ‘reasonable grounds’ stage – is ‘from the information available so far I believe but cannot prove’ that the individual is a potential victim of trafficking.55 If such reasonable grounds exist, the potential victim is afforded not only accommodation and material assistance at the state’s expense, but also a 45 calendar day recovery and reflection period, which is beyond the 30-day period contemplated by European anti-trafficking law as discussed in chapter four. During the recovery and reflection period, the appropriate competent authority seeks to obtain further information from the first responder that made the initial referral, as well as other agencies, in order to subsequently make a conclusive determination as to whether the individual is a victim of human trafficking. In practice, however, it has been observed that children often do not benefit from a recovery and reflection period as the Home Office makes ­decisions within the NRM and on immigration status concurrently and requires that children apply for asylum before the recovery and reflection period has started or has been completed.56 In any event, at the second stage – the ‘conclusive grounds’ stage – the appropriate competent authority, having regard to the available evidence, bases its decision on the balance of probabilities; that is, is it more likely than not that the individual is a victim of human trafficking? If the answer to this question is in the affirmative, the person may be afforded appropriate support and assistance for up to 14 days or a longer period as the circumstances demand, and, in the case of a person from a third country, he or she may be granted discretionary leave to remain in the UK for one year,57 which can be extended to allow him or her to cooperate in any police investigation and/or legal action.58 It is important to note that, following the 2018 case of R (on the application of CP (Vietnam)) v Secretary of State for the Home Department, the competent authority’s decision that there is sufficient information to make a negative conclusive grounds decision when in fact there is 54 [2018] EWHC 2122 (Admin). 55 C Feikert-Ahalt, ‘Training Related to Combating Human Trafficking: England and Wales’ (Library of Congress, 2016). 56 GRETA, Report concerning the implementation of the Council of Europe Convention on Action against Trafficking in Human Beings by the United Kingdom (n 20). 57 If the victim is cooperating with the police in respect of criminal proceedings, the police force must apply for discretionary leave on behalf of the victim in question. 58 ibid.

162  Law and Practice in England and Wales no such sufficient information (ie, no available information which raises a credible suspicion that the person had been trafficked), as well as the decision itself, could be challenged before the court as being irrational and unfair.59 That said, as pointed out in H v Secretary of State for the Home Department,60 because the Home Office Guidance indicates that no target is set for making a conclusive grounds decision, in order to successfully challenge such a decision, the time taken must be so egregious as to make the delay unlawful. Although the NCA has reported that over the last few years there have been consistent increases in the number of referrals of potential victims of trafficking through the NRM,61 these successes have, it is submitted, been counterbalanced by a number of logistical, operational and tactical challenges in practice.62 Among the main issues faced by the UK in this connection include the fact that a number of first responders have adopted a plainly reactive approach to the identification of potential trafficked victims, which has meant that a substantial cadre of these victims are being ‘held in plain sight’, having the appearance of living in society, but in fact having little or no freedom, as pointed out by Caroline Haughey.63 A closely related concern is that even in cases where potential victims make ­themselves known to first responders, these authorities frequently fail to spot indicators of human trafficking,64 often treating potential victims as asylum seekers, troublemakers or mere prostitutes. There is reportedly also a tendency in some forces to refer both suspects and victims without legal status in the UK to immigration authorities, rather than investigate human trafficking offences and enable potential victims to understand and access the services available to them.65 Additionally, as the Anti-Trafficking Monitoring Group has indicated, not only do first responders ignore obvious indicators of human trafficking, but also competent authorities often make adverse findings on the credibility of victims, in light of their migrant status or sexual history.66 It also appears that in their assessment of the victimhood of persons claiming to be victims of trafficking, competent authorities give more weight to the adverse opinion of police officers than specialist victim support services, which in practice condones hostile perceptions of some victims of trafficking.67 These challenges are further compounded 59 [2018] EWHC 2122 (Admin). 60 H v Secretary of State for the Home Department [2018] EWHC 2191 (Admin). 61 ‘National Referral Mechanism Statistics’ (n 1). For example, in 2017, the NRM received 5145 referrals of potential victims (PV); this represents a 35% increase on 2016 referral totals. Reportedly, the PVs originated from 116 countries; this represents a 7% increase on 2016 country of origin totals. 62 ‘Modern Slavery Strategy 2017–2019’ (Cheshire Police, 2017). Noting that the ‘majority of crimes of modern slavery are unidentified, underreported and there are very significant barriers to victims identifying themselves, including a fear of reprisal’. 63 Haughey (n 35). 64 ‘Written submission on EU Directive (2011/EU/36)’ (n 39) 8. 65 ‘Stolen freedom’ (n 40). 66 ‘Written submission on EU Directive (2011/EU/36)’ (n 39) 8. 67 ibid.

Discretionary Leave to Remain  163 by the fact that trafficked victims aggrieved by negative reasonable grounds or conclusive grounds decisions find it difficult in practice to formally appeal against these decisions, particularly in light of inconsistent and unequal access to legal aid services.68 More generally, the UK’s Independent Anti-Slavery Commissioner has pointed out that there are real concerns over the manner in which referrals to support programmes have been conducted, almost exclusively by police and immigration officials, calling for a more inclusive panel of experts which will include law enforcement, but will also include health, housing, social services and local government so that the safeguarding and the future of that victim can be properly managed beyond 45 days to much longer than 45 days, and so they can get whatever is necessary to support them and also get support through the criminal justice system.69

A related concern is that the 45-day recovery and reflection period really is not a sufficient amount of time, at least in some cases, for victims to understand the reality of their situation and to build the kind of trust that is necessary to effectively prosecute trafficking.

IV.  Discretionary Leave to Remain The UK has not enacted domestic legislation to give legal effect to Article 14 of the Council of Europe (CoE) Anti-Trafficking Convention, which provides that: Each Party shall issue a renewable residence permit to victims, in one or other of the two following situations or in both: (a) the competent authority considers that their stay is necessary owing to their personal situation; (b) the competent authority considers that their stay is necessary for the purpose of their co-operation with the competent authorities in investigation or criminal proceedings.

In lieu of legislation, the UK has sought to comply with Article 14 through legal guidance, which addresses the concept of ‘discretionary leave to remain’, the ­practical equivalent to a ‘residence permit’. Under the Guidance, such a permit may be granted by the Secretary of State upon a conclusive decision being made that a person is a victim of trafficking, following the conclusion of the recovery and reflection period.

68 ibid 9. 69 Joint Standing Committee on Foreign Affairs, ‘Hidden in Plain Sight’ (Commonwealth of Australia, December 2017) 150.

164  Law and Practice in England and Wales For a long time, the relevant Guidance, apart from requiring victims’ ­cooperation with the police in their initiation of criminal proceedings against traffickers,70 also required, as a necessary precondition, that the victim’s ‘personal circumstances [be] compelling’ before discretionary leave to remain could be granted. Where such leave is granted, the person could remain in the UK and benefit from various measures aimed at their protection and assistance for not less than 12 months and not ordinarily more than 30 months, barring exceptional circumstances. In 2018, the legality of this Guidance was challenged before the England and Wales Court of Appeal in The Queen on the Application of PK (Ghana) v The Secretary of State for the Home Department,71 a decision which represents a monumental shift in the quality of protection afforded victims of trafficking. In this case, a Ghanaian man who was trafficked into the UK for forced labour sought an order setting aside relevant aspects of the Guidance as being unlawful in circumstances where it allegedly imposed a higher threshold for qualifying for discretionary leave to remain than Article 14 of the CoE Anti-Trafficking Convention. The background of the case was that after the appellant’s mother died, he was sold at the age of three to a couple in northern Ghana where he was prevented from attending school and had to work many hours a day without pay as a street seller. He was reportedly beaten and sexually abused, and even after he managed to escape from the ‘uncle’ and ‘auntie’ in northern Ghana, he again fell under the control of another person, who abused him, and subjected him to rituals and threats as a means of instilling fear and controlling him. When the appellant was 25 years old, traffickers obtained a passport and travel documents for him, and he later entered the UK ostensibly as a student migrant. He, however, never studied, and was subject to forced labour while in the UK, where he was detained and taken to work in a warehouse for 14 to 15 hours a day, his passport having been taken away. He was subject to mental and verbal abuse and given limited amounts of food. After escaping from these exploitative conditions, he eventually found a job and entered into a relationship with a woman, and they had a child together. Upon his leave to remain as a student having expired, he applied for an EEA Registration Certificate, but was on multiple occasions refused leave. He was also prosecuted for knowingly possessing improperly obtained identity documents and was sentenced to 15 months’ imprisonment. Upon his release, he made several applications for judicial review of various adverse immigrations decisions, none of which met with success, notwithstanding the fact that he received a conclusive grounds decision that he was a victim of trafficking. At the Court of Appeal, the appellant successfully contended that the formulation in the guidance – that discretionary leave should be granted only if the individual’s personal circumstances were ‘compelling’ or ‘so compelling’ – failed 70 Leave may also be granted to allow victims the opportunity to seek compensation in respect of their trafficking experience. 71 The Queen on the Application of PK (Ghana) v The Secretary of State for the Home Department [2018] EWCA Civ 98.

Discretionary Leave to Remain  165 to properly reflect Article 14(1)(a) of the Convention which imposes a necessity criterion and was thus unlawful. On the facts, the Court adopted a refreshingly purposeful construction of the relevant provision, finding that: ‘Necessary’, in this context, means required to achieve a desired purpose, effect or result. In Article 14(1)(b), the purpose for which it is necessary for a person to stay in the country is express: the competent authority has to consider that the person staying in the country ‘is necessary for the purpose of their cooperation with the competent authorities in investigation or criminal proceedings’. In Article 14(1)(a), the purpose is not express: but the provision is deep within the Trafficking Convention which … must be construed purposively. Thus, ‘necessary’ in Article 14(1)(a) has to be seen through the prism of the objectives of the Convention: and the competent authority has to consider whether the person staying in the country is necessary in the light of, and with a view to achieving, those objectives72 (emphasis added).

In the Court’s view, competent authorities charged with deciding upon discretionary leave applications must adopt a methodical approach to doing so, beginning with the identification of the individual’s relevant personal circumstances, and then an assessment of whether, as a result of those circumstances and in pursuance of the objectives of the Convention, it is necessary to allow that person to remain in the United Kingdom. The overarching objective, in this context, is the protection and assistance of victims of trafficking. Whether the appellant’s personal circumstances are such as to make it necessary for him to stay in the United Kingdom could only be assessed by reference to that objective. Because the Secretary of State’s guidance was entirely silent as to the purpose for which it must be necessary for the victim to remain in the country, and because the guidance imposed a requirement that the individual’s personal circumstances be ‘compelling’ or ‘so compelling’, it was incompatible with the Convention. More specifically, the Court explained that the ‘compelling’ requirement as contained in the Guidance imposed a ‘particularly high threshold’, which was inconsistent with the Convention, since it gave the general impression that trafficking cases are to be treated in the same way as any other application for discretionary leave to remain. In short, Article 14(1)(a) of the Convention merely requires consideration of whether it is necessary for the victim to remain in a country because of his or her personal circumstances, without the higher threshold implicit in the word ‘compelling’. The practical effect of this decision is that if a victim of trafficking who has received a conclusive grounds decision seeks discretionary leave to remain, the competent authorities must apply the lower ‘necessity’ threshold in respect of personal circumstances, rather than the higher ‘compelling’ threshold. This will likely benefit a greater number of trafficked victims whose circumstances may not fall into the rarest of circumstances contemplated by the now inapplicable ‘compelling’ threshold. Additionally, and indeed quite profoundly, as confirmed

72 ibid

[44].

166  Law and Practice in England and Wales by the Court, a victim of trafficking who has received a conclusive grounds decision and who has been afforded discretionary leave to remain must benefit from the support and assistance measures contemplated by Article 12 of the Convention, ‘unless and until [he] is returned to another state’.73 These measures include material assistance and psychological assistance, medical treatment and accommodation, among other things.

V.  Support and Assistance of Trafficked Victims It is necessary for victims of trafficking to be able to exercise their rights effectively. Therefore, assistance and support must necessarily be available to them as soon as there are reasonable grounds to regard them as victims of trafficking. In this context, as explained in chapter four, European anti-trafficking law obliges states to provide adequate resources to ensure victim assistance, support and protection. Under section 50 of the Modern Slavery Act, there is no express incorporation of the myriad rights-based prescriptions provided for by European anti-trafficking law, as the provision simply empowers the Secretary of State to make regulations providing for assistance and support to be provided to persons who there are reasonable grounds to believe may be victims of human t­rafficking or who are conclusively deemed to be victims human trafficking. This is in contrast with the Human Trafficking and Exploitation (Scotland) Act 2015 and the Human ­Trafficking and Exploitation (Criminal Justice and Support for Victims) Act (Northern Ireland) 2015, which respectively include provisions on support and assistance74 whereby victims must receive access to safe and appropriate accommodation, material assistance, healthcare services, relevant information, translation and interpretation, legal advice and repatriation. That said, even before the Modern Slavery Act came into force, requisite guidance was in place which spoke to the manner in which the UK seeks to afford support and assistance to victims of trafficking. Indeed, as the Court has recently stated, although the CoE Anti-Trafficking Convention is not directly effective in UK law because it has not been specifically incorporated in accordance with the well-established principle of dualism, to the extent that the Secretary of State has adopted parts of the Convention as her own policy in guidance, she must follow that guidance, unless there is good reason not to do so.75 In part, this guidance requires the provision of medical and psychological assistance, accommodation and related forms of assistance to victims of trafficking. In practice, the Home

73 ibid [46]. 74 J Haynes, ‘Northern Ireland’s Human Trafficking and Exploitation Act (2015): A Preliminary Assessment’ (2016) 42 Commonwealth Law Bulletin 181. 75 The Queen on the Application of EM v The Secretary of State for the Home Department [2018] EWCA Civ 1070 [19].

Support and Assistance of Trafficked Victims  167 Office and Ministry of Justice jointly fund a national support service for all adult victims of trafficking in England and Wales identified through the NRM under a victim care contract delivered by the Salvation Army. The Salvation Army itself subcontracts elements of the service to a number of charities and like organisations under service agreements. The Salvation Army’s own contract and its contracts with subcontractors require both initial and detailed assessments and access to specialist services to be provided by fully qualified professionals with a proven track record of competence. The exact time from which this obligation is triggered, and the precise nature of this duty, have been considered in a number of cases recently decided upon by the courts in England and Wales. On the first question, the decision of LS v The British Red Cross Society76 is instructive, as it confirms that the obligation to support and assist only arises upon the making of a reasonable grounds decision as to whether a person is a victim of trafficking, and not before. The grant of support and assistance following a reasonable grounds decision is not limited to the duration of criminal proceedings, but extends well beyond this phase, as recently explained by the Court in The Queen (on the application of AG, RT, Edgaras Subatkis, Edviana Subatkis) v Secretary of State for the Home Department and Ors,77 which considered Article 11 of the EU Anti-Trafficking Directive: 1. Member States shall take the necessary measures to ensure that assistance and support are provided to victims before, during and for an appropriate period of time after the conclusion of criminal proceedings in order to enable them to exercise the rights set out in Framework Decision 2001/220/JHA, and in this Directive. 2.  Member States shall take the necessary measures to ensure that a person is provided with assistance and support as soon as the competent authorities have a reasonablegrounds indication for believing that the person might have been subjected to any of the offences referred to in Articles 2 and 3. 5.  The assistance and support measures referred to in paragraphs 1 and 2 shall be provided on a consensual and informed basis, and shall include at least standards of living capable of ensuring victims’ subsistence through measures such as the provision of appropriate and safe accommodation and material assistance, as well as necessary medical treatment including psychological assistance, counselling and information, and translation and interpretation services where appropriate.

The question which ultimately arose for consideration in this case was whether there was merely one obligation contained under Article 11, which is set out in Article 11(1), or whether there was in addition to the obligation in Article 11(1), a separate obligation in Article 11(2) of the Directive. For several reasons, the Court held that although the existence of criminal proceedings is required for a claim under Article 11(1), there is no such requirement for the other provisions in

76 LS v The British Red Cross Society [2014] EWCA Civ 1622. 77 The Queen (on the application of AG, RT, Edgaras Subatkis, Edviana Subatkis) v Secretary of State for the Home Department and Ors [2016] EWHC 942 (Admin).

168  Law and Practice in England and Wales Article 11 and, in particular in Article 11(2), because it is a free-standing provision separate from Article 11(1). More specifically, it considered that, the background to the Directive shows that it was not intended that it would discriminate between those victims of trafficking who had been connected with criminal proceedings, and those victims of trafficking who had not been so connected. Article 4 ECHR contains the right to freedom from slavery and forced labour. In Rantsev v Cyprus and Russia (2010) 51 EHRR 1, it was held that trafficking fell within its scope and that it imposed a duty to protect victims. There is no suggestion that there should be different benefits for those victims of trafficking involved in criminal proceedings and those victims who had not been so involved. Frequently, it might be fortuitous or a coincidence if a victim of trafficking was or might be involved in criminal proceedings; that might depend, for example, on whether the trafficker had fled or had died. There is no logical or other reason why the absence of criminal proceedings could or should deprive a trafficked person of relief or why those victims of trafficking should be deprived of benefits simply because for some reason criminal proceedings could not take place.78

The practical importance of this ruling had immediate implications for the victims in this case who had been trafficked, but who were all denied support and assistance by the UK after the 45-day recovery and reflection period elapsed. The Court rightly rejected the narrow interpretation placed on Article 11(2) of the Directive by the respondent, finding that irrespective of whether the victims were participating in criminal proceedings, post-recovery and reflection, the UK was obliged to provide them with assistance and support, though it stopped short of specifically indicating when the Article 11(2) duty comes to an end. This latter point was, however, recently considered in XPQ v The London Borough of Hammersmith and Fulham,79 a case in which it was opined that: It does not seem to me that the rights to which Article 11 refers are subject to any time limit as such. They are there to fulfil a purpose, which expressed broadly is to protect a victim of trafficking against both the immediate consequences of her being compelled to live a life she would not freely have chosen, and the dangers that she might be re-trafficked if left without subsistence, including accommodation: in my judgment, the Directive is intended to and should be construed purposively. The question is not how long the obligation should last, but whether circumstances have now changed for the better such that the protection afforded by Article 11 is no longer necessary; the assessment necessary to judge this is qualitative not quantitative.80

This ruling echoes the sentiment recently expressed in The Queen on the ­Application of PK (Ghana) v The Secretary of State for the Home Department81



78 ibid

[43]. v The London Borough of Hammersmith and Fulham [2018] EWHC 1391 (QB). 80 ibid [44]. 81 [2018] EWCA Civ 98. 79 XPQ

Support and Assistance of Trafficked Victims  169 that ‘if a ­conclusive decision is made, the State’s obligations under Article 12 [CoE Anti-Trafficking Convention], once arisen, continue, irrespective of any other rights they might have, unless and until the victim is returned to another state’.82 On the question of what forms of support and assistance must be provided to trafficked victims, and indeed, the standard of such assistance, upon the grant of a reasonable grounds decision, several cases highlight, as a minimum, the provision of standards of living capable of ensuring victims’ subsistence; appropriate and safe accommodation and material assistance; necessary medical treatment, including psychological assistance; counselling and information; and translation and interpretation services, where appropriate. Litigation surrounding the quality of medical or psychological service provided to a trafficked victim arose in the recent case of The Queen on the Application of EM v The Secretary of State for the Home Department.83 Here, the appellant, who was Nigerian, moved to the UK to find work, but was thereafter forced to engage in prostitution in order to send money back to Nigeria. Her passport was confiscated, and she was told that if she went to the police she would be arrested and her family would suffer. After about six months, she escaped with the assistance of a customer, who arranged accommodation for her and a cleaning job. An agent helped her to get a false Nigerian passport with fake immigration stamps. When she tried to use this to open a bank account, she was arrested and was sentenced to 12 months’ imprisonment for using a false document. She was then detained for the first time at the Immigration Removal Centre, and made the subject of a deportation order. She challenged her detention. The Secretary of State then issued a positive ‘reasonable grounds’ decision, namely that there was reason to believe that she was a potential victim of trafficking and was entitled to a 45-day reflection and recovery period. However, a negative ‘conclusive grounds’ decision was later arrived at, which exposed the appellant to deportation. On appeal, the appellant argued that Article 11 of the Directive was breached because she was not, while detained in an IRC following the reasonable grounds decision, afforded an individualised assessment nor, indeed, an assessment of her medical and psychological status carried out by a trafficking specialist. The crux of her contention was that the failure to replicate external arrangements (ie, in relation to victims who were not detained) within IRCs was a systemic failure, giving rise to an unacceptable risk that the support duty would not be met for detained potential victims of trafficking. On the facts, however, the Court held that the appellant’s mental health was reviewed by qualified mental health professionals no fewer than seven times during the reflection period, as well as by two psychological wellbeing assessments and several further appointments with a nurse. Accordingly, she was held to have been provided with a level of medical



82 ibid

[46]. EWCA Civ 1070.

83 [2018]

170  Law and Practice in England and Wales treatment that exceeded the minimum necessary to assist her. More specifically, the Court explained that: As to that element of the duty that requires the provision of necessary medical treatment including psychological assistance, counselling and information, the treatment provided must respond to the welfare needs of the individual, objectively assessed in each case. The obligations arising under the Directive and Guidance, read alongside the Convention, do not extend to a requirement that the assessment or treatment must be provided by specialists in trafficking, or that it be targeted towards one aspect of an individual’s needs (the consequences of trafficking) as opposed to his or her overall psychological needs. The support duty calls for the provision of support, not the accomplishment of physical, psychological or social recovery. There is nothing in the Convention, Directive, or Guidance to warrant the extended interpretation of the duty argued for by the Claimant. That interpretation would require significant additions to the texts to prescribe specific obligations that would undoubtedly have been spelt out, had they been intended.84

While this is, indeed, a correct articulation of the legal position on the question of the requisite standard of medical and psychological care to be afforded trafficked victims, from an Analytical Eclectic perspective, it is arguable that in finding that ‘the fact that different, or better, provision might be made for those not in detention does not of itself equate to a breach of duty’, the Court appeared to have countenanced the hegemonic assumption that a detained victim is less worthy of protection than a non-detained victim. Although some might contend that this sentiment represents an over-exaggeration of the issue, it must be borne in mind that the primary victims of trafficking who would be held in detention centres are trafficked victims from third countries, usually victims of transnational trafficking, who may be implicitly deemed, by virtue of exercising their agency to seek work abroad, as somehow complicit in their own exploitation and therefore worthy of a lower quality of medical or psychological treatment compared to victims who are not detained. This, it is submitted, is a potentially harmful exercise of state power, which may have serious negative implications in practice for detained victims of trafficking whose treatment and support require a ‘trafficking-specific’ approach rather than a global, generic approach. On another note, it is interesting to note that the obligation to provide safe and appropriate accommodation has also been litigated upon in courts in England and Wales in the last few years. If such accommodation meets the ‘objectively minimum standard’ of being ‘appropriate and suitable’, but the trafficked victim refuses to pursue the options provided by the relevant authorities, namely the Salvation Army or its sub-contractors, the Court has indicated, in The Queen on the Application of MC v London Borough of Camden, Secretary of State for the Home Department,85 that the state cannot be held to be in breach of its duty. 84 ibid [66]. 85 The Queen on the Application of MC v London Borough of Camden, Secretary of State for the Home Department [2015] EWHC 4034 (Admin).

Support and Assistance of Trafficked Victims  171 Another important caveat appears to be that the nature and standard of accommodation provided is not fixed, so that in XPQ v The London Borough of Hammersmith and Fulham,86 for example, there was no automatic breach of duty even though the Court noted that it was undesirable, if it can reasonably be avoided, that a woman who has been the victim of trafficking for sex should be accommodated in premises where there is no selfcontained accommodation of her own where other men may be present and thus share such bathing, toileting and cooking facilities as there are.87

More controversially, the Court in XPQ refused to regard the EU provision on accommodation as having direct effect: First, is Article 11 of the Directive of direct effect, and second, if so, has the Defendant Council failed to fulfil such of its obligations as are of direct effect? As to both of these questions, the language is broad: what is to be provided to victims by Article 11(1), (2) and (3) are ‘assistance and support’, without specifying what form this should take except within [Article] 11(5). This again is silent as to the precise measures to be adopted, though [it is] clear that the result must ‘ensure victims’ subsistence’. I would be prepared, without deciding it, to hold that a broad view is to be taken of ‘subsistence’, as indicated by the words which follow which relate not just to physical matters such as ‘accommodation’ but also to measures such as ‘psychological assistance, counselling and information’. However, the definition of what accommodation is ‘appropriate’ is not further defined, and it is plainly related to ‘subsistence’ which even in its broader sense gives rise to considerable discretion. It is common ground before me that ‘safe’ means safe from the risks of re-trafficking. Though I do not exclude parts of the Directive (which do not fall for more detailed consideration here) being sufficiently precise and unconditional for those parts to have direct effect, in Article 11(1) there is a very great degree of choice given to the Member State. It is for that State to decide what is appropriate, and what is appropriate may vary between Member States across the Union such that it is not sensible to think that what is ‘appropriate’ has an autonomous meaning for the purposes of EU law. So far as accommodation in the UK is concerned, what is appropriate is for the local housing authority to determine.88

On the facts, while the Court accepted that there was a duty to provide safe accommodation, in the sense of accommodation that does not expose the victim to any additional risk of being re-trafficked, there was nothing which made it an essential requirement that the claimant should have self-contained rather than bed and breakfast hotel accommodation, or that she should be housed in single sex (women only) accommodation, even though this would have been better. More generally, in practice, a central argument that has been made against the current system of victim support and assistance in the UK is the fact that such measures are not set out in the Modern Slavery Act, but rather in guidance, which is particularly malleable in contrast to legislation. For many scholars in the field,

86 [2018]

EWHC 1391 (QB). [73]. 88 ibid [39]. 87 ibid

172  Law and Practice in England and Wales the fact that measures to ensure victim support and assistance are not specifically included as binding obligations in the Act is indicative of the Act’s primarily criminal justice/law enforcement focus, at the expense of human rights considerations. It has also been argued that such an approach creates a perception to the keen observer that the interests of victims are merely secondary matters, compared with the state’s interest in securitising its borders.89 This position may, however, change soon as, at the time of writing, The Modern Slavery (Victim Support) Bill was receiving its second reading before the House of Commons. This Bill, if passed, would place the support and assistance of trafficked victims who have received both a reasonable grounds and conclusive grounds decision on a statutory footing. The Bill gives statutory force to the recovery and reflection period, the right to apply for discretionary leave to remain, and a range of support measures, including appropriate and safe accommodation; material assistance, including financial assistance; medical advice and treatment (including psychological assessment and treatment); counselling; access to a support worker; appropriate information on any matter of relevance or potential relevance to the particular circumstances of the person; translation and interpretation services; assistance in obtaining specialist legal advice or representation (including with regard to access to compensation); and assistance with repatriation. Until that time, however, innovative solutions need to be found for the recurrent challenges experienced by persons in relation to whom there are indicators of trafficking, but who have not received a reasonable grounds decision as yet, since the jurisprudence discussed above suggests that these persons cannot expect support or assistance until after the reasonable grounds decision is made. There is also a need to address the difficulties that victims continue to face when transitioning from the NRM to a normal life, in particular the challenges associated with finding jobs and being enrolled in schools against the backdrop of the prevailing stigma attached to victims with previous criminal convictions.90 Additionally, it has become evident that more needs to be done to provide prompt assistance to possible victims who reportedly have to go through the National Health Service where waiting lists are sometimes several weeks or even months long.91 This not only adversely affects the number of victims who receive medical and psychological assistance, but also serves as a disincentive to victims who might otherwise have been willing to participate in ensuing criminal proceedings against their traffickers.

89 ‘Submission to the UN Special Rapporteur on Contemporary forms of Slavery’ (Anti-Trafficking Monitoring Group and Human Trafficking Foundation, March 2017); Gravett (n 35). 90 May Bulman, ‘Human trafficking cases hit record high amid “worrying” decline in conviction rates’ The Independent (11 October 2017) (highlighting the fact that victims of trafficking are required to leave the housing just two weeks after a final decision is made, meaning some victims end up ­destitute as a result of insufficient support). 91 GRETA, Report concerning the implementation of the Council of Europe Convention on Action against Trafficking in Human Beings by the United Kingdom (n 20).

Child Victims of Trafficking  173

VI.  Child Victims of Trafficking The Modern Slavery Act does not create a specialised regime for the protection of child victims of trafficking. Rather, it envisages that the generic support and assistance measures described above, namely appropriate and safe accommodation and material assistance, as well as necessary medical treatment including psychological assistance, counselling and information, and translation and interpretation services, will equally be afforded trafficked children, though necessarily tailored to meet their individual needs. As with adult victims, the modalities of these measures are prescribed in non-statutory guidance. Under the Modern Slavery Act, children who have received a reasonable grounds decision that they are victims of trafficking are entitled to benefit from the assistance of Independent Child Trafficking Advocates (ICTA). Although the ICTA scheme is only now being piloted across select areas in the UK, the role of these individuals appears to be the provision of representation and support to children, having regard to their wellbeing and best interests, including legal or other advice and, in appropriate circumstances, appointing and instructing legal representatives to act on the child’s behalf. While the significance of ICTAs is undeniable, particularly in relation to unaccompanied migrant children, it should be noted, as expressed by the NGO ‘Every Child Protected Against Trafficking’ (ECPAT), that an ICTA is not synonymous with a legal guardian, as the former’s remit is limited to legal advice and assistance whereas the latter serves somewhat like a parent, acting at all times in the child’s best interests. Additionally, while the introduction of this new scheme has been welcomed by some, others have argued that ICTAs’ achieving cooperation with statutory bodies remains an area of considerable unease.92 More generally, although the Home Office has recently announced a Child Trafficking Protection Fund of up to £3 million, which aims to provide specialist care to trafficked children and reduce their vulnerability to exploitation, a number of concerns have repeatedly been expressed about the manner in which the rights of trafficked children are protected in practice. Among other things, it is particularly concerning that, on average, about 60 per cent of trafficked children in local authority care go missing on an annual basis. A number of reasons account for this, including the absence of appropriate accommodation, traffickers’ prevailing influence on children and children’s disenfranchisement with the often restrictive conditions of care to which they are subject. Many of these children are therefore left destitute and, in some cases, even re-trafficked, particularly migrant children who have little or no familial support in the UK.93 Not only are these individuals re-trafficked, but they are often later misidentified as traffickers, for example, in the production and cultivation of cannabis, and penalised with serious sanctions by

92 ‘UK

Annual Report on Modern Slavery’ (n 50) [180]. children and missing’ (ECPAT UK, 2013).

93 ‘Trafficked

174  Law and Practice in England and Wales courts, notwithstanding the non-punishment provision contained in the Modern Slavery Act. The challenges that children face are not, however, restricted to the postidentification phase. In fact, in a large number of cases trafficked children are not correctly identified, especially migrant children, who are sometimes treated as criminals rather than victims, against the backdrop of the increasing securitisation of state borders.94 A lack of adequate training, awareness and understanding of the nuances of child trafficking, as well as prevailing hegemonic assumptions about children who exercise their agency or who allegedly give ‘consent’ to exploitation, reportedly account for the low numbers of trafficked victims currently being identified. Additionally, where there are disputes about a trafficked child’s age, such disputes are in some instances simply not decided in their favour, notwithstanding section 51 of the Modern Slavery Act which gives statutory footing to the presumption that a possible victim is under 18 years of age until an age assessment is carried out. Age assessments themselves have proven to be both expensive and time-consuming, and are often carried out in unsuitable settings such as police stations. The reality, however, is that an incorrect age assessment and overall failure to identify child victims invariably result in these individuals not being afforded access to medical and psychological assistance, accommodation and other forms of support to which they are entitled and, in fact, many have ended up in adult prisons or IRCs. Another challenge which arises in practice is the reportedly wide variance between the relatively high number of child victims who receive a reasonable grounds decision and the low number of victims who receive a positive conclusive grounds decision.95 A number of factors could account for this. Some practitioners have argued that negative perceptions about who is a ‘real’ child victim of trafficking, victims going missing before conclusive grounds decisions are made, and the general failure to obtain relevant evidence to support a conclusive grounds decision are key determinants. A related concern is that there remains some unease about the lack of long-term support for trafficked victims who receive a positive reasonable grounds decision but a negative conclusive grounds decision. Indeed, research has found that while the immediate needs of trafficked children are often taken care of, insufficient attention is paid to longer-term solutions.96

VII.  Criminal Proceedings Victims of trafficking who have already suffered the abuse and degrading treatment which trafficking commonly entails must necessarily be protected from secondary 94 ‘Written on EU Directive (2011/EU/36)’ (n 39) 7. 95 GRETA, Report concerning the implementation of the Council of Europe Convention on Action against Trafficking in Human Beings by the United Kingdom (n 20) [150]. 96 ibid.

Criminal Proceedings  175 victimisation during ensuing criminal proceedings. Threats from traffickers and their associates, invasive cross-examination, inadequate legal representation, and public access to confidential information concerning victims’ individual circumstances can, and have in the past, exacerbated victims’ trauma, resulting in a number of these victims withdrawing from criminal proceedings, and others even being re-trafficked. It should, therefore, come as no surprise that European anti-­trafficking law, and indeed the Modern Slavery Act,97 make provision for the protection of trafficked victims within the context of criminal proceedings. More specifically, the Modern Slavery Act amends the Youth Justice and ­Criminal Evidence Act 1999 to include trafficked victims and witnesses who are fearful or distressed about testifying to benefit from a range of protective measures, including screening from the accused; giving evidence by live link; giving evidence in private; the removal of wigs and gowns; the giving of video recorded evidence-in-chief; video recorded cross-examination and re-­examination; the examination of witnesses through intermediaries; and the use of various aids to communication.98 Under the Youth Justice and Criminal Evidence Act, ­restrictions are also imposed on the questions which may be asked about a complainant’s sexual history,99 and restrictions may be imposed to prevent the reporting of alleged offences involving child victims,100 or indeed certain vulnerable adult victims.101 Additionally, under the Coroners and Justice Act 2009, the court may grant an anonymity order which anonymises the victim/witness. This order may involve voice modulation during the pre-trial and trial stages, if the person in respect of whom the order is made has reasonable grounds to fear intimidation or harm if they were identified as assisting with the criminal proceedings. These protective measures are buttressed by the fact that the Criminal Procedure Rules and good trial management encourage a ‘ground rules hearing’ setting out the parameters of questioning of victims and witnesses. The importance of ‘protected questioning’ of victims/witnesses was considered in the Court of Appeal decision of Regina v Sandor Jonas,102 a case in which the Court explained that: The judge has a duty to control questioning. Over-rigorous or repetitive cross examination of a child or a vulnerable witness must be stopped. In a multi-handed trial the judge must ensure that the witness is treated fairly overall, and not asked questions on the same topics, to the same end, by each and every advocate. Advocates must accept that the courts will no longer allow them the freedom to conduct their own cross-examination where it involves simply repeating what others have asked before, or exploring precisely the same territory. For these purposes defence advocates will now be treated as a group and, if necessary, issues divided amongst them, provided, of course, there is no unfairness in so doing.103

97 s

46 Modern Slavery Act 2015. 23–30 Youth Justice and Criminal Evidence Act 1999. 99 ibid s 41. 100 ibid s 44. 101 ibid s 46. 102 Regina v Sandor Jonas [2015] EWCA Crim 562. 103 ibid [34]. 98 ss

176  Law and Practice in England and Wales The court is minded in practice to enforce a number of protective approaches to questioning by counsel, including restrictions on repeated questions, and requirements to only ask short, single-strand questions and questions that are focused only on the matters in dispute. Operationally, although there are continuing reports by victims/witnesses of intimidation and harassment at the hands of traffickers and their associates, for example, in a recent case involving 11 defendants and 250 victims, many of whom faced threats from Romanian traffickers, measures are increasingly being taken to protect these persons, including through the NCA’s UK Protected Persons Service. This service provides protection to victims/witnesses who are considered to be at risk of serious harm. It includes relocation and change of identity and applies across the UK. In practice, stakeholders have expressed a high degree of satisfaction with the increasing use of intermediaries, who ably assist victims and witnesses who are uneducated, lacking in mental/social skills or who are otherwise particularly vulnerable, to share their testimonies in a way that is capable of being understood by the court. However, the availability of intermediaries remains problematic, particularly in rural communities.104 Stakeholders have also shared that the ‘ground rules’ hearing provides a strong incentive for counsel to understand the peculiarities that adversely affect victims/witnesses, and to act accordingly by tailoring their questions in a manner that does not further traumatise these vulnerable individuals. However, stakeholders report that, at times, defence counsel flout the ground rules laid down. For example, very recently, where a victim had been trafficked to the UK as a victim of domestic servitude, although the judge had laid down ground rules, defence counsel continued to ask impermissible questions, which prompted the judge to intervene. More generally, it has been observed that, in practice, the presentation of victim/witness testimony in trafficking cases remains lengthy in a number of cases, and is often hampered by communication or translation issues.105 These challenges are compounded by the fact that victims/witnesses are often reluctant to follow through with the presentation of their evidence or present their evidence so poorly that the criminal standard of proof is not met, although there has admittedly been a recent push towards victimless prosecutions. Evidently, in a vast majority of cases, victims do not deliberately give poor evidence, but the quality of their evidence is often circumscribed by the fact of them suffering from Stockholm syndrome or other psychiatric/psychological conditions while in other cases they are simply unable to fully articulate the extent of their exploitation. Unfortunately, the very vulnerabilities that led to their exploitation in the first place often undermine their credibility as complainants/witnesses in criminal proceedings. Indeed, although



104 ‘The

CPS response to the Modern Slavery Act 2015’ (n 5). (n 35) 11.

105 Haughey

Criminal Proceedings  177 jury perceptions about victims of trafficking are changing, there is still a long way to go to convince criminal justice stakeholders that victims who, for example, exercise their agency and end up being trafficked or those with a long criminal history or a tainted sexual history, are not inevitably complicit in their exploitation. Additional challenges relate to the fact that with the recent change in legislation, there is now more than ever a greater demand for experienced legal practitioners, particularly in so far as litigation on the non-punishment provision is concerned. These concerns are further complicated by weaknesses in disclosure by the prosecution, which have come to the fore in a number of recent trafficking cases. These weaknesses have tainted the credibility of some prosecutors and discredited the overall efficacy of the criminal justice system in delivering justice. For example, just recently, a judge heavily criticised prosecutors after a trafficking trial collapsed through failure by the prosecution to disclose crucial evidence, namely about 65,000 lines of social media and text messages downloaded from mobile phones and medical records, which could have exculpated defendants in a case involving the alleged trafficking of a woman from Romania into the UK for the purposes of prostitution. Interestingly, the undisclosed medical evidence suggested that the alleged victim was already pregnant when she arrived in the UK, a fact which was only disclosed after the trial began.106 Institutional challenges also reportedly continue to adversely affect victims of trafficking who participate in criminal proceedings. For example, a number of trafficking trials may have collapsed due to poor victim support/contact.107 On the question of legal aid in cases involving trafficked victims, the Modern Slavery Act108 amends the Legal Aid, Sentencing and Punishment of Offenders Act 2012 so as to ensure that civil legal aid is afforded to victims who wish to apply for leave to enter or remain in the UK where there has been a conclusive determination that the individual is a victim of trafficking or there are reasonable grounds to believe that the individual is such a victim and there has not been a conclusive determination that the individual is not such a victim. Legal aid may also be provided in relation to a claim under employment law arising in connection with the conduct of an employer which constitutes exploitation or in respect of a claim for damages. The decision of LS v The British Red Cross Society,109 briefly referred to earlier, discusses the nature of legal aid in respect of trafficked victims. This case is authority for the proposition that the obligation to afford victims legal aid in certain civil cases only arises after a reasonable grounds decision has been made, and not before. The nuanced aspect of this case, however, lies in the ingenious argument advanced by the appellant, a Nigerian potential victim of trafficking who 106 Owen Bowcott, ‘People trafficking trial collapses after serious disclosure failures’ The Guardian (31 January 2018). 107 ‘Written submission on EU Directive (2011/EU/36)’ (n 39) 4. 108 s 47 Modern Slavery Act 2015. 109 [2014] EWCA Civ 1622.

178  Law and Practice in England and Wales had allegedly been trafficked into forced labour in the UK and who had not at the relevant time received a reasonable grounds decision, that legal aid would have enabled him to obtain expert legal advice as to his claim to be a victim of trafficking, thereby informing his decision as to whether to seek a referral. In essence, his argument was that by such a referral, he was making himself known to the competent authority and may be at risk of detention and removal if at the end of the process he was not found to be a victim of trafficking, and that accordingly the advice of counsel was needed to inform his decision as to whether to proceed with the referral. In short, his view was that it was important for him to have received advice about available options before agreeing to a referral, given the complex questions of law and policy guidance in issue. While the Court accepted that there was force in the argument that without legal advice some (perhaps many) potential victims of trafficking will distance themselves from the NRM process when they would otherwise have entered it, it nonetheless held that the relevant international instruments make an affirmative reasonable grounds decision the trigger for the provision of legal aid, thereby excluding the possibility of legal aid being provided before such a decision is made. In short, the Court’s conclusion was that it did ‘not consider that there [was] any general requirement to provide legal aid at the prior stage or that the particular circumstances of LS’s case necessitated it’.110 As intimated above, this approach appears to find legislative approval in the Modern Slavery Act, which limits the provision of legal aid to only after a reasonable grounds decision has been made. Interestingly, in LS, the Court also considered that if a reasonable grounds decision is initially made and a person thereby becomes entitled to legal aid, that entitlement comes to an end if a negative conclusive grounds decision is thereafter made.

VIII.  Compensating Victims of Trafficking for Harm Suffered The provision of compensation to victims of trafficking plays a vitally important role in their recovery. Not only does compensation aid in victims’ achieving a sense of closure, justice and overall vindication of their infringed rights, but it also helps to instil basic confidence in the ability of the justice system to deliver on its promise of protecting society’s most vulnerable. In short, compensation not only allows victims to rebuild their lives, but serves as one of the means through which anti-trafficking law deprives traffickers of their ill-gotten gains. To give effect to the express requirement to afford access to compensation to victims of trafficking under European anti-trafficking law, the law in England and



110 ibid

[123].

Compensating Victims of Trafficking for Harm Suffered  179 Wales provides various routes through which victims of trafficking may obtain compensation for both pecuniary and non-pecuniary losses.111

A.  Employment Tribunal The first route through which victims of labour trafficking may obtain compensation is making an application to the Employment Tribunal alleging, inter alia, unfair dismissal, discrimination and breach of contract. A claim may also be made for the payment of unpaid wages. One of the most intriguing jurisprudential developments which has taken place in this area in the last few years is the courts’ explicit recognition that where a migrant trafficked victim for forced labour enters into an illegal contract of employment with a national of the UK, that person’s claim, in the event of unfair dismissal or discrimination, is not per se excluded by virtue of allegations of illegality. This question arose in the UK Supreme Court case of Hounga v Allen and another.112 In this case, a young woman of Nigerian nationality was brought to the UK at the age of 14 years under an illegal arrangement that involved the family of the respondent, a British national, procuring her entry into the UK on a false passport. On arrival in the UK, the applicant, despite having no right to work, was employed by the respondent to look after her children in the home. For a period of 18 months, before the applicant was eventually evicted from the respondent’s home and dismissed from her employment, the respondent inflicted serious physical abuse on the applicant, refused to pay her the promised wages, refused to secure her the promised education, and caused her extreme concern by telling her that, were she to leave the house and be found by the police, she would be sent to prison because her presence in the UK was illegal. The applicant brought an action before the Employment Tribunal alleging that, by dismissing her, the respondent discriminated against her on racial grounds, that is, on the ground of her nationality, she was treated less favourably than others in similar circumstances. Before the UK Supreme Court, the novel question that arose was: in what circumstances should the defence of illegality defeat a complaint by an employee that an employer has discriminated against her by dismissing her contrary to section 39(2)(c) of the Equality Act 2010? In contrast to the Court of Appeal which held that the illegality defence defeated the complaint of discrimination, the

111 Note also that, in addition to the causes of action discussed below, an award of damages to a trafficked victim of forced labour may also be possible for a breach of the Gangmasters (Licensing Conditions) Rules 2009. See, eg, Antanas Galdikas & Others V DJ Houghton Catching Services Ltd and Ors [2016] EWHC 1376 (QB) in which such an award of damages was made in circumstances where the defendants breached several provisions of the Rules, including Condition 7 (prohibition on charging fees) and Condition 13 (deductions from wages) of the Rules, and Standards 4.3 and 6.3 in respect of lack of facilities to wash, rest, eat and drink. 112 Hounga v Allen and another [2014] UKSC 47.

180  Law and Practice in England and Wales Supreme Court took a victim-centred, and highly progressive, approach, finding that although it was unlawful (and indeed, a criminal offence) for the applicant to have entered into the contract of employment with the respondent, the defence of illegality did not per se preclude her from enforcing it. Citing public policy considerations, the Supreme Court explained that the Tribunal’s award of compensation to the applicant would not have allowed her to profit from her wrongful conduct in entering the contract, since it represented an award for injury to feelings consequent upon her dismissal, and in particular the abusive nature of it. Furthermore, the Court considered that the award would not have permitted the evasion of a penalty prescribed by the criminal law, since the applicant had not been prosecuted for her entry into the contract and, even had a penalty been thus imposed upon her, it would not represent evasion of it. While it was arguable that the application of the defence of illegality so as to defeat the award had the potential to compromise the integrity of the legal system by appearing to encourage those in the situation of the applicant to enter into illegal contracts of employment, having regard to all the circumstances of the case, the Court concluded that ‘the considerations of public policy which militate in favour of applying the defence so as to defeat [the applicant’s] complaint scarcely exist’.113 Citing the Article 4 jurisprudence of the ECtHR, the European Anti-Trafficking Convention and the then Draft Modern Slavery Bill, the Court considered that, the decision of the Court of Appeal to uphold Mrs Allen’s defence of illegality to her complaint runs strikingly counter to the prominent strain of current public policy against trafficking and in favour of the protection of its victims. The public policy in support of the application of that defence, to the extent that it exists at all, should give way to the public policy to which its application is an affront; and Miss Hounga’s appeal should be allowed.114

While this judgment is to be heralded for invoking public interest considerations to enhance the protection of migrant trafficked victims, and thereby sidelining the hegemonic assumption that migrant victims of trafficking are less worthy of protection than other victims of trafficking, accessing justice through employment tribunals has in recent years reportedly proved to be a challenging experience for some victims of trafficking. For example, since the introduction of the Deduction from Wages (Limitation) Regulations in 2014, a number of trafficked victims have reportedly been prevented from claiming more than two years of wages through the Employment Tribunal, which effectively excludes genuine claims from trafficked victims who may have worked for decades for payments below the national minimum wage in terribly inhospitable conditions. As pointed out by the Anti-Trafficking Monitoring Group and the Human Trafficking Foundation, this Regulation not only has the effect of penalising ‘long term victims of trafficking,



113 ibid 114 ibid

[45]. [52].

Compensating Victims of Trafficking for Harm Suffered  181 but also to shift the cost-benefit balance of exploiting workers, since any benefit obtained by exploiters exceeding the two-year limit cannot be recovered’.115 The introduction of a fee to initiate proceedings in an employment tribunal has reportedly resulted in an 89 per cent reduction in claims brought by victims before the tribunal. Furthermore, while there have been cases where victims had obtained significant awards through employment tribunals, most of the payments remain unsatisfied as the onus is on the victim to pursue enforcement of the judgment. In this context, although some victims receive pro bono assistance from law firms in securing enforcement of judgments, this does not guarantee equal access to an effective remedy for all victims. Moreover, a recent requirement to enter mediation prior to making a claim to an employment tribunal does not contain any exemption for victims of trafficking, which raises concerns about the relative negotiating position of persons who have been exploited by their employers, as victims of trafficking.116 Despite these challenges, however, a recent decision of the Employment Appeal Tribunal – Puthenveetil v Santosh Alexander and Rea George117 – appears to enhance victims’ access to justice. In that case, the claimant, an Indian native, was both illiterate and spoke little English with no assets or income. She was employed by the respondents as a domestic worker but was reportedly paid £57 a week for which she was required to work 91 hours. The respondents controlled her movements by holding her passport, and she was reportedly abused by them. Before the Employment Appeal Tribunal, the claimant alleged unfair dismissal, race discrimination, arrears of pay based on the minimum wage, holiday pay claims and claims to other payments. The claim of discrimination, in particular, proceeded on the basis that no British national would have been treated in the way that she was. The UK Border Agency had written a letter saying that there were reasonable grounds to believe that she had been trafficked, but before the conclusive grounds decision was made, she applied for an adjournment of her action before the Employment Tribunal in order to obtain legal representation. Her application for an adjournment and legal aid, pursuant to section 10(2) the Legal Aid, Sentencing and Punishment of Offenders Act 2012 was, however, refused, hence her appeal to the Employment Appeal Tribunal. The Appeal Tribunal found that: There can be no doubt that such representation would be desirable. Indeed I expressed the view during the hearing that, with her acting in person, the hearing would be a ‘nightmare’. I may have been putting that too high, but I think there can be no doubt that, as a litigant in person, speaking little English and being illiterate and emotionally 115 ‘Submission to the UN Special Rapporteur on Contemporary forms of Slavery’ (n 89) 15. 116 GRETA, Report concerning the implementation of the Council of Europe Convention on Action against Trafficking in Human Beings by the United Kingdom (n 20) [241]. 117 Puthenveetil v Santosh Alexander and Rea George Employment Appeal Tribunal Appeal No UKEATPA/0125/14/LA.

182  Law and Practice in England and Wales involved and making the very serious allegations about trafficking, the hearing would be very difficult for the Claimant if she was unrepresented and that she would be at a substantial disadvantage.118

In considering the case to be an exceptional one for determination, the Tribunal noted that refusing the claimant’s request for an adjournment and, indeed, legal aid, would, in principle, amount to a breach of the EU Anti-Trafficking Directive which makes provision for victims of trafficking to obtain access to compensation.

B.  The Criminal Injuries Compensation Scheme A second route available to trafficked victims seeking access to compensation is through the Criminal Injuries Compensation Scheme, which was established by the Criminal Injuries Compensation Act 1995. Under this Scheme, compensation may be awarded to a person who has been identified as a trafficked victim by a competent authority in circumstances where the crime of trafficking occurred in England, Wales or Scotland, and it was reported to the police within 2 years of it happening. Compensation, in this context, may be afforded to a victim of trafficking for physical, disabling mental injuries or sexual or physical abuse sustained, or for loss of earnings and expenses.119 The availability of this compensation is, however, limited to victims of trafficking who have sustained violence or threats of violence as part of their trafficking experience. While this is a particularly frustrating feature for some victims of trafficking whose experience does not fit the traditional perception of ‘violence’, especially those victims whose exploitation has been of a grave psychological, rather than physical, nature, for a number of years, the most disabling feature of the Scheme was the requirement for victims to cooperate with the authorities. This requirement was closely linked to the hegemonic assumption that victims who refuse to cooperate with the authorities are somehow less worthy of protection and assistance because they do not demonstrate the aptitude of a ‘real victim’, which had serious negative externalities for a number of victims, especially those whose refusal to cooperate was on account of fear of retaliation to themselves or their families. Thankfully, this position has seemingly been reversed through judicial intervention in the case of C v Criminal Injuries Compensation A ­ uthority.120 In that case, C was trafficked to the UK for the purpose of domestic servitude. 118 ibid [7]. 119 Note that para 10 of the Scheme addresses, inter alia, the position of victims of trafficking, essentially by broadening the eligibility criteria. Thus, whereas the basic provisions are that a person is only eligible for an award under the Scheme if ordinarily resident in the United Kingdom (para 10(a)) or satisfies citizenship or related requirements (paras 10(b) and 11), para 10(c) extends eligibility to a person in respect of whom ‘one of the conditions in paragraph 13 is satisfied …. on the date of their application under this Scheme’. In turn, the condition in para 13(a) is satisfied if the person in question has ‘been referred to a competent authority as a potential victim of trafficking in human beings’. 120 C v Criminal Injuries Compensation Authority CI011/15/00026.

Compensating Victims of Trafficking for Harm Suffered  183 While in the UK, she was required to work up to 18 hours a day carrying out domestic tasks as well as caring for the trafficker’s child; her movements were tightly controlled, and she was not allowed to interact with others without the trafficker’s express permission. It was alleged that during the first year of employment, C received payments of £10–£20 every few months, but thereafter received no salary at all, and when she moved on to work as a cleaner, she was required to hand over her wages to the trafficker. Following her escape from the situation, the trafficker contacted her relatives abroad in an attempt to locate C in order to pressure her to withdraw her complaints. Although C reported this to the police, police in the UK could offer no protection to her family abroad, so she felt that she had no choice but to withdraw her complaints. When she later submitted an application to the Criminal Injuries Compensation Authority (CICA) for compensation, the Authority refused to grant an award on the basis that C had, in withdrawing her complaint, failed to comply with a police investigation. On appeal before the First Tier Tribunal, however, it was held that barring a victim of trafficking from obtaining compensation from CICA due to non-compliance with the police in their investigations amounted to a breach of the UK’s obligations to victims of trafficking under European anti-trafficking law. Notwithstanding the progressive nature of this ruling, however, a 2018 England and Wales Court of Appeal decision – A, B v Criminal Injuries Compensation Authority, Secretary of State for Justice121 – appears to counterbalance the progress made to date in this area. In that case, the appellants, Lithuanian twin brothers, who had a very difficult childhood and who had respectively committed the offences of burglary and theft in Lithuania before they were trafficked to the UK, challenged the decision of CICA to deny them compensation in respect of their exploitation into forced labour. The CICA Claims Officer had written to each of the appellants, refusing to make an award of compensation for their criminal injuries, citing paragraph 26 of the Scheme, Annex D, which sets out that an award under this Scheme will be withheld or reduced where the applicant had unspent convictions. The appellants, both of whom had unspent convictions, challenged the decision arrived at on the grounds that the terms of the Scheme amounted to a breach of Article 17 of the EU Anti-Trafficking Directive, which affords victims of trafficking access to compensation, and that the terms of the Scheme, having fallen within the ambit of Article 4 ECHR, amounted to unjustified discrimination against them on the basis of their ‘other status’ of having unspent convictions for offences which resulted in a custodial or community sentence, contrary to Article 14 ECHR. On the first issue, the Court concluded that the mandatory exclusion from obtaining compensation for unspent convictions resulting in custodial or ­community sentences contained in the Scheme did not give rise to a breach of 121 A, B v Criminal Injuries Compensation Authority, Secretary of State for Justice [2018] EWCA Civ 1534.

184  Law and Practice in England and Wales Article 17 of the Directive for a number of reasons. First, it held that the appellants did, in fact, enjoy access to the compensation scheme; they were not denied recovery by virtue of being victims of trafficking, but rather they were excluded by reason of their convictions pre-dating their subsequent trafficking. Second, the Directive intimated that arrangements for compensation are left to national law; nothing in the Directive required victims of trafficking to enjoy rights under national compensation schemes free of any limiting or exclusionary terms and not enjoyed by other potential applicants for compensation who are not victims of trafficking. Third, in the Court’s view, the argument that the appellants may have been ‘vulnerable’ before they were trafficked was inconsequential, though it explicitly recognised that if the offences in issue were committed as a result of the trafficking experience, there would be no basis for excluding the victims from claiming compensation under the Scheme. Fourth, the exclusionary rule was deemed by the Court to have been proportionate in its application, since it was not triggered by a criminal conviction alone; it only had effect where a custodial or community sentence was imposed, and the conviction remained unspent. On the question of discrimination, the Court refused to accept the arguments that the exclusionary rule discriminated against those with relevant unspent criminal convictions or that it treated victims of trafficking in the same way as other applicants for compensation when their position was different. Although the Court was prepared to assume that the terms of access to the Scheme fell within the ambit of Article 4 ECHR, which concerns the prohibition of slavery, servitude and forced labour, it nonetheless concluded that the exclusionary rule was justified as serving a legitimate objective, being rationally connected to the objective pursued and striking a fair balance between the right of the accused and the societal interest in restricting compensation to morally non-blameworthy individuals. In the Court’s view, the rule was proportionate, as the legitimate aim pursued could not have been achieved by a less intrusive measure. Although the Court is to be commended for explicitly recognising that if a trafficked victim commits an offence as a direct result of being trafficked, that person ought not to be excluded from obtaining compensation under the Scheme, the ruling appears to be fraught with a number of terminological and contextual difficulties which the Analytical Eclectic considers to be problematic from a rights-based perspective. Apart from adopting a minimalist interpretation of the word ‘access’ as contained in European anti-trafficking law, the Court could be faulted for countenancing an antiquated notion of ‘vulnerability’. Even accepting that there was no evidential basis for linking the appellants’ convictions to the vulnerability that led them to be trafficked, the Court showed a remarkable lack of sympathy for the plight of the victims, whose difficult childhood may have indirectly planted the seed for their commission of the crimes for which they were convicted in Lithuania and their subsequent experience of having been trafficked. It is one thing to expect persons to pay for their crimes – which the appellants did on the facts since they served periods of imprisonment – but it is quite another to hold them to such a high level of culpability, post-serving their sentence, that

Compensating Victims of Trafficking for Harm Suffered  185 their experience as ­trafficked victims and their attendant continuing vulnerability does not even remotely matter for the purposes of compensation. If, indeed, their vulnerability at the time of committing the offence at home did not matter, shouldn’t it at least matter after they have been trafficked where, without compensation, they would obviously be left more vulnerable than ever before? Should they be penalised twice – once for their prior convictions and then again for the experience of being trafficked before their convictions have become spent? Additionally, the Court’s countenancing of the view that ‘it is, in general, permissible to limit eligibility for compensation to those who are morally ­deserving of it’122 reinforces the hegemonic assumption discussed in chapter three that there is, in practice, a de facto hierarchy of trafficked victims – those who are deemed to be more blameworthy at the bottom while those who are morally blameless are at the top. Those at the bottom, like the appellants, are told that no relaxation of the rules will be made to accommodate their present vulnerabilities because they are, by virtue of their checkered past, less worthy of protection than blameless victims. While accepting that states have a margin of appreciation in matters such as who obtains compensation, it is undeniable that invoking moral culpability for past wrongs incorrectly judges the needs and vulnerability of trafficked victims on their past misgivings, offering them very little hope of redemption, unless and until their convictions become spent, which may be over a decade for some victims. A final argument relates to the primacy which the Court appears to afford resource considerations as a basis for excluding ‘morally blameworthy’ victims of trafficking from obtaining compensation. In fact, the Court’s judgment is replete with references to the effective use of available resources and reducing the burden on taxpayers as strong policy considerations militating against affording compensation to morally blameworthy trafficked victims. This raises the question as to whether the Court really sees the obligation to provide compensation as important as European anti-trafficking law appears to suggest it is when set against the countervailing challenges of resource allocation. Indeed, reference to compensation as ‘a gesture of public solidarity for victims of crime’123 gives the uncanny impression that the obligation to provide compensation is a hortatory act of goodwill, which the state may choose to ignore in cases where it considers to do so is economically prudent.

C.  Civil Litigation A third route through which victims of trafficking may be able to obtain compensation is through the initiation of a civil claim. This claim may involve several causes of action, including assault, battery, false imprisonment, or personal injury.



122 ibid 123 ibid

[83]. [5].

186  Law and Practice in England and Wales The advantages of bringing such a claim include the fact that a lower standard of proof has to be satisfied for liability to ensue than in criminal proceedings, namely proof on a balance of probabilities; a significant monetary award can assist the complainant’s successful reintegration into society, breaking the chain of poverty, exploitation and social ostracism which is common to exploited victims; and it may also serve to deter unscrupulous persons, including employers, from engaging in abusive practices.124 One of the few cases in which a victim of trafficking has been able to successfully bring a civil claim for damages is that of AT & Others v Dulghieru & Anor.125 In this case, the Court awarded a total of £601,000 to four female nationals of Moldova who were recruited through false promises, and then subsequently trafficked into sexual exploitation in the UK. The two defendants, who were a married couple, were first convicted in the context of criminal proceedings, and sentenced to nine and five years’ imprisonment, respectively. Subsequently, however, in view of the fact that the victims had not received compensation in those proceedings, an action for damages was brought in the torts of assault, battery, false imprisonment and harassment. Mr Justice Treacy, in reviewing the facts of the case, felt compelled to award substantial damages to the claimants for the pain, suffering and loss of amenity they sustained,126 notwithstanding the fact that they had already been awarded a sum of money by CICA. Additionally, his Lordship awarded substantial sums in aggravated damages to cover injury to the victims’ feelings, humiliation, loss of pride and dignity.127 More importantly, for the purposes of this discussion, it is also noteworthy that his Lordship went even further by awarding exemplary damages which were intended to compensate for the defendants’ cynical disregard for the victims’ rights, evidenced by the calculated manner in which they sought to engage in a cost–benefit analysis of the risks.128 Of note, however, is the fact that the Court did not award exemplary damages so as to punish the defendants, but rather to prevent unjust enrichment in light of the fact that the criminal proceedings did not result in any order of compensation being afforded the victims. An award of damages may also be awarded against a trafficker for breach of contract, a scenario which primarily arises in the context of trafficking for domestic servitude or forced labour. In A v Joel Udukhokhe ABU, Teresa Mojisola ABU,129 for example, the claimant, a Nigerian national who was brought to the UK by the defendants and thereafter subject to forced labour in their home, successfully obtained an award of damages for breach of contract. More specifically, the 124 Joint Standing Committee on Foreign Affairs, ‘Hidden in Plain Sight’ (n 69) 175. 125 AT & Others v Dulghieru & Anor [2009] EWHC 225. 126 ibid [51]. Awards under the head of ‘pain, suffering and loss of amenity’ were made to AT (£125,000.00); NT (£117,000.00); ML (£82,000.00); and AK (£97,000.00). 127 ibid [66]. Awards under the head of ‘aggravated damages’ were made to AT and ML (£35,000.00) as well as NT and AK (£30,000.00). 128 ibid [75]. A sum of £60,000.00 was awarded by way of exemplary damages, divided equally between the four victims. 129 A v Joel Udukhokhe ABU, Teresa Mojisola ABU [2017] EWHC 3098 (QB).

Compensating Victims of Trafficking for Harm Suffered  187 Court considered that the defendants were in breach of the relevant contract of employment by failing to pay the claimant in accordance with their own terms and conditions, and by failing to afford her opportunities for independent days off and holidays. Damages may not only be awarded against traffickers, but also against the state for unlawful detention. Such an award of damages was considered in principle in the case of H v Secretary of State for the Home Department,130 where the Court accepted that damages in tort against the state for unlawful detention are intended to put a claimant in as good a position (so far as money can do so) as if the tort had not been committed. It noted the value which the law attaches to a trafficked person’s right to liberty and considered that it is highly likely that such a person’s experience of detention in the UK, where it compounds psychological harm, may increase the damages to which that person would be entitled for his unlawful detention. In R (on the application of CP (Vietnam)) v Secretary of State for the Home Department, briefly averred to earlier in the chapter, the Court awarded compensatory damages to a trafficked Vietnamese national, who had the misfortune of being re-trafficked, largely due to the state’s poor implementation of relevant policy guidance. On the facts, the claimant was transported to France, where he was subsequently trafficked into the UK into cannabis production. He was interviewed by police officers, and a referral was made to the NRM. However, while awaiting a reasonable grounds decision, he was released from custody with no protective measures being afforded him. Inevitably, he was later re-trafficked, and was also subsequently convicted and sentenced to four months’ imprisonment for engaging in the cultivation of cannabis and the abstraction of electricity. Although, while detained, a referral was made indicating that the claimant was a victim of re-trafficking, the competent authority took over nine weeks before it could arrive at a reasonable grounds decision, during which time the claimant remained detained. Regrettably, even after the reasonable grounds decision was made, the relevant personnel refused to release the claimant from detention on the ground of public policy, namely the claimant’s previous negative immigration history and medium risk of reoffending and harm to the public, notwithstanding the fact that the relevant guidance established a presumption that the claimant would be released from detention. In fact, the guidance on release was to the effect that if a positive reasonable grounds decision was made, a potential victim of trafficking will be ‘temporarily released’ from detention, if already detained, unless, in the particular circumstances, their detention can be justified on grounds of public order. But even with a score of ‘high’ for risk of absconding, the Competent Authority Guidance indicated that the claimant ought to have been released (with or without bail) in the absence of public order grounds justifying detention.



130 [2018]

EWHC 2191 (Admin).

188  Law and Practice in England and Wales On the facts, the Court held that the state had acted unlawfully, having regard to the fact that when it recognised the claim as one of re-trafficking, it still took over nine weeks for a reasonable grounds decision to be made, notwithstanding that the claimant was in detention. Further, even when a positive reasonable grounds decision was made, the claimant was not immediately released from detention which, in any event, could not be justified on public order grounds. The Court also considered that even if lawful at the outset, the claimant’s detention became unlawful when an adequate detention review did not take place (ie, identification, scrutiny and weighing of the factual matters pointing towards and against the risk of absconding, reoffending and harm to the public that is said to underpin the decision to detain) and his detention remained unlawful until his release. Additionally, detaining the claimant following a report by a doctor, which pointed out that the claimant was suffering from post-traumatic stress disorder and his detention was perpetuating his symptoms, was unlawful, thus justifying the award of compensatory damages. Despite the significance of the aforementioned rulings, however, it must not be forgotten that civil litigation may not in practice be the most attractive approach to obtaining compensation for trafficked victims for a number of reasons. First, in civil claims, the claimant must be prepared to be cross-examined by the defendant or the defendant’s representative, which may only serve to reinforce the victims’ stress and trauma, and may be a significant impediment to other victims pursuing such a claim.131 Additionally, funding a civil claim is also likely to be difficult as legal aid is not easily obtainable in cases of this nature, coupled with the fact that ascertaining the evidence needed to substantiate a claim, such as medical reports, receipts and other forms of corroborating evidence, may prove insurmountable for victims of trafficking.

D.  Harassment Legislation A claim may be brought by a person under sections 1 and 3 of the Protection from Harassment Act 1997 for damages for harm sustained as a result of a course of conduct which amounts to ‘harassment’ and which the defendant knows or should know amounts to harassment. As a matter of principle, in addressing a claim of this nature, courts have been enjoined to consider whether the conduct complained of is ‘oppressive and unacceptable’ as opposed to merely ‘unattractive, unreasonable or regrettable’. The issue as to whether a trafficked victim may successfully bring a claim under the 1997 Act was recently considered in the case of A v Joel Udukhokhe ABU, Mrs Teresa ­Mojisola ABU, briefly averred to earlier. In this case, the Court found the actions of

131 ‘Modern slavery: legal remedies for victims of labour exploitation’ (Law Centre (NI) Law & Policy Briefing, 2017).

Compensating Victims of Trafficking for Harm Suffered  189 the defendants to amount to a course of harassing conduct warranting the award of damages for the ‘acute distress’ experienced by the Claimant. More specifically, the Court considered that a course of harassing conduct was evident on the basis of: first, the confiscation of the claimant’s keys to the house, following an argument, which had the effect of causing alarm and distress to the claimant as she had no other accommodation to go to and, in any event, had very little by way of financial means to assist her if she had to find alternative accommodation given her lack of regular payment from the defendants. Second, the defendants’ letter of dismissal to the claimant was deemed to be part of a course of conduct calculated to cause the claimant alarm and distress. While accepting that the defendants were entitled to dismiss the claimant as her employers, the Court nonetheless considered that the dismissal letter was particularly oppressive, since it required her to leave the house, when the defendants knew that she had no access to or means to pay for alternative accommodation. The terms of the letter and the requirement that the claimant leave the family home, bearing in mind the unequal relationship between the parties and the claimant’s vulnerability as to finding alternative accommodation, amounted to harassment. Finally, placing the claimant’s belongings on the street and locking her out of the house was an act of harassment within the meaning of the 1997 Act, particularly in light of the fact that the claimant was a young woman in a very vulnerable position. Simply packing up the claimant’s belongings and putting them out on the street, without warning, while the claimant was out of the house, so that she returned finding herself unable to gain entrance even though the family were inside, was deemed by the Court to have been calculated to cause alarm and distress, thereby justifying the award of damages.

E.  Reparation Order The final route through which victims of trafficking may obtain compensation in the UK lies in the Court’s power to make a reparation order following the conviction of a trafficker and the attendant imposition of a confiscation order, as provided by section 8 of the Modern Slavery Act. While, in principle, this appears to be an important development as it affords victims of trafficking yet another means through which they may obtain compensation for the exploitation which they may have had to endure, a number of practical challenges nonetheless arise in practice. The first challenge lies in the fact that the defendant must have been convicted for the offence of human trafficking.132 Given the contrast between the high number of victims who are annually conclusively identified as having been trafficked and the corresponding low number of convictions recorded, it does not appear that this approach inspires much confidence that trafficked victims will be able to have their infringed rights vindicated. Second, the provision of reparation

132 ‘Submission

to the UN Special Rapporteur on Contemporary forms of Slavery’ (n 89) 5.

190  Law and Practice in England and Wales is necessarily linked to the imposition of a confiscation order. Given the challenges associated with the imposition and enforcement of confiscation orders to date, as detailed later in this chapter, it does not appear that this provision will have any real impact in practice. Indeed, if there are no assets to confiscate, there can be no reparation under the current scheme.133 More generally, since the coming into effect of the Act in 2015, an extremely low number of reparation orders have been made, which begs the question as to the extent to which these orders benefit the vast majority of trafficked victims.134 The low number of such orders being made might be on account of a general lack of awareness about their existence,135 but should come as no surprise judging from the experience of low numbers of compensation orders being awarded under sections 130–34 of the Powers of the Criminal Courts (Sentencing Act) 2000. In fact, in the last decade, there have only been three cases where a criminal convicted of a principal offence of human trafficking has been ordered to pay compensation in this way under that Act.136

IX.  The Non-Punishment of Victims of Trafficking As expressed in chapter four, the non-punishment of trafficked victims is perhaps one of the most important features of European anti-trafficking and, indeed, of the victim-centred approach which it encourages States Parties to adopt. The punishment of trafficked victims who have committed criminal offences, including immigration and prostitution-related offences, as a result of the trafficking experience is not only morally wrong, but incompatible with foundational principles of law and public policy. Indeed, the punishment of trafficked victims not only misdirects state power against the wrong actor, but also serves to marginalise genuine victims, revictimising them in a manner that is both unjust and problematic, as it reinforces antiquated hegemonic assumptions about who is and who is not worthy of protection. Evidently also, such an approach to the treatment of trafficked victims undermines basic trust and confidence in the justice system’s ability to deliver justice to society’s most vulnerable. The UK implements the non-punishment obligation through a number of different methodologies, including the CPS’s discretion not to prosecute in

133 ‘Modern slavery: legal remedies for victims of labour exploitation’ (n 131) 4. 134 K Kiskyte, ‘Legal Remedies for Human Trafficking in the United Kingdom and Lithuania’ (Notre Dame Law School, 2016). 135 ‘Submission to the Joint Standing Committee on Foreign Affairs, Defence and Trade for the Inquiry into establishing a Modern Slavery Act in Australia by the Advisor Committee of the Modern Slavery Registry’ (Focus on Labour Exploitation (FLEX), 18 May 2017). 136 ‘Modern Slavery Bill Factsheet: Reparation Orders’ (Clauses 8–10) (Home Office, November 2014).

The Non-Punishment of Victims of Trafficking  191 a­ ppropriate cases; the conventional defences of ‘duress’ and ‘necessity’; the court’s power to stay a prosecution or quash a conviction where to do otherwise would amount to an abuse of process; and, more recently, the application of section 45 of the Modern Slavery Act. For over a decade, the CPS has published guidance regarding its role as the primary agency in England and Wales responsible for the prosecution of criminal offences, including offences committed by trafficked victims. This guidance makes explicit reference to the Code for Crown Prosecutors, which provides for a ‘Full Code Test’. Under this test, prosecutors, before arriving at a decision as to whether to prosecute a trafficked victim who has committed an offence, take account of two mandatory considerations – the evidential and public interest tests. The evidential test requires that prosecutors be satisfied that there is sufficient evidence to provide a realistic prospect of conviction against the defendant; while the public interest test requires consideration of whether it would be in the public interest to prosecute the person, regardless of whether there is sufficient evidence to support a conviction. In most cases where the non-punishment provision is in issue, the evidential test is usually easily satisfied, so that the only other consideration with which prosecutors must contend is whether the public interest demands a prosecution.137 In addressing this latter question, both factors that support and undermine a decision to proceed with a prosecution are considered, including the circumstances in which the offence was committed, any perceptible compulsion that might be present; the age, physical and mental state of the defendant at the time of the offence; the seriousness of the offence; and the likely sentence to which the defendant might be subject if convicted, among other things. If the prosecutor is satisfied that, having regard to all the circumstances of the case, it is in the public interest to proceed with the prosecution, there are several other options available to victims of trafficking. The first is through invoking the conventional criminal defences of ‘duress’ or, alternatively, ‘necessity’. In principle, the duress defence precludes a trafficked victim from being prosecuted where the unlawful offence at issue had been committed as a direct (not indirect) result of a threat of death or serious injury aimed at him or her or someone sufficiently close to him or her,138 while the defence of ‘necessity’ arises in those circumstances where the commission of the unlawful offence was necessary or was reasonably believed to have been necessary so as to avoid or prevent death or serious injury where, objectively viewed, ‘the commission of the [offense] was reasonable and proportionate, having regard to the evil to be avoided or prevented and the [offense] would not have been ­committed without 137 ‘Human Trafficking, Smuggling and Slavery’ (Crown Prosecution Service, 2014). On the interpretation of the CPS Guidance, see LM, MB, DG, Betti Tabot and Yutunde Tijani v The Queen [2010] EWCA Crim 2327. 138 Note that the defence of ‘duress’ is inapplicable in cases alleging where murder or attempted murder is at issue. See R v Z [2005] 2 AC 467.

192  Law and Practice in England and Wales that necessity’.139 Although the contours of these defences are now well settled, it should perhaps come as no surprise that trafficked victims have in large measure been unable to successfully rely on these defences in practice, primarily because of the cogent evidence required to satisfy the evidential burden contemplated by these defences.140 For this reason, trafficked victims have, in general, resorted to applying to the court for a stay of criminal proceedings or to quash a conviction as being an abuse of process. The court’s power to stay is a power to ensure that the state complies with its international obligations and properly applies its mind to the possibility of not imposing penalties on victims. If proper consideration had not been given to all the circumstances of the case, then a stay is usually granted. However, where proper consideration had been given, the court does not usually substitute its own judgment for that of the prosecutor. If the court concludes that the trial court would have stayed the indictment had an application been made, the proper course is to quash the conviction. To benefit from the court’s exercise of jurisdiction, the jurisprudence from courts in England and Wales appears to suggest that two different approaches are adopted in relation to adults and children, respectively. With regard to adults, the key considerations are: i. Whether there is credible evidence that the defendant falls within the definition of a victim of trafficking. ii. Whether there is a nexus between the trafficking experienced by the victim and the offence he or she has committed; in other words, consideration must be given to the extent to which the offence with which the person is charged (or of which he has been found guilty) was integral to or consequent on the exploitation of which the person was a victim or simply put, is the offence directly connected to his having been trafficked? iii. If the answer to the above question is in the affirmative, the next consideration is whether the level of compulsion in question was such that it would not be in the public interest for the prosecution to proceed; in other words, was the compulsion at the level where his culpability for the offence was, in reality, extinguished? Was the compulsion continuing and were there reasonable alternatives available to defendant/victim? iv. If culpability was diminished, but still significant, the prosecution should proceed. However, if, having regard to all the circumstances of the case, including the gravity of the crime, culpability was insignificant as a result of the high degree of compulsion, then the prosecution should not proceed, and if it has resulted in a conviction, that conviction may be quashed by the court as an abuse of process. 139 See LM & Othrs v The Queen (n 37) [8]. 140 See R v N; R v LE [2012] EWCA Crim 189, [45] (noting that the defence of duress is unlikely to succeed where a trafficked victim has had an opportunity to escape).

The Non-Punishment of Victims of Trafficking  193 By contrast, a seemingly lower threshold appears to be required when the court invokes its jurisdiction in circumstances involving a child victim/defendant. In such a case, the court will be concerned with the following considerations: i. Was the child a victim of trafficking? The burden of proving the child’s age in circumstances where there is uncertainty over his age does not rest on the child, but on the prosecution. ii. Was there a sufficient nexus between the trafficking of the child and the offence committed? If the offence is a direct consequence of the trafficking experience, the child should not be prosecuted. As the court has expressed in R v Sermanfure Joseph: Once it is established that a child is a victim of trafficking for the purposes of exploitation, the relevant consideration is whether there is a sufficient nexus between the trafficking for the purposes of exploitation and the offence; it is not necessary to go so far as to show there was compulsion to commit the offence required in the case of an adult.141

A number of cases decided upon by courts in England and Wales have attempted to address these considerations over the last decade, albeit with varying degrees of clarity and accuracy. One of the earliest cases to address these issues was that of R v O.142 Although the UK had not yet at the time ratified the CoE Anti-Trafficking Convention, the Court of Appeal was nonetheless called upon to decide whether to quash a conviction for an abuse of process where a victim of trafficking was prosecuted and convicted for an offence allegedly committed as a direct result of being trafficked. Here, a girl in her mid-teens had entered the UK lawfully in an apparent attempt to escape from her father’s threat to kill her for refusing to submit to a forced marriage to a much older man who already had five wives. She was subsequently forced into prostitution, but managed to escape, and was provided with false identity documents. She was, however, subsequently arrested in Dover when attempting to leave the UK. Without having examined a report from the Poppy Project which stated that she had been trafficked, the Crown Court imposed a sentence of imprisonment. The Court of Appeal considered that the ‘shameful concatenation of circumstances’ was so extreme that the conviction had to be quashed on the basis that a fair trial had not taken place. In the years that immediately followed R v O, however, the Court demonstrated remarkable reticence in countenancing applications by victims of trafficking for ‘stay’ on the ground of abuse of process. For example, in Tijani v R,143 the appellant was convicted and sentenced to nine months’ imprisonment on account that she produced a fraudulent identity document when applying for a job at a

141 R

v Sermanfure Joseph [2017] EWCA Crim 36. v O [2008] EWCA Crim 2835. 143 LM & Othrs v The Queen (n 37). 142 R

194  Law and Practice in England and Wales care home. Although the Court accepted that she had been a victim of trafficking in the past,144 to the extent that she was forced into prostitution, it, however, narrowly construed the non-punishment provision, holding that the necessary nexus between compulsion by the trafficker and the offence in question had not been satisfied, since several months had elapsed between the trafficking incident and the offences at issue. While, on the facts of this case, it can be argued that this was perhaps the correct approach, the decision arrived at does, however, beg the question as to whether the subjective perception of compulsion on the part of a victim was even remotely a relevant consideration in the Court’s assessment of whether the offence was actually committed as a result of having been trafficked. This factor might be especially relevant in those cases involving victims trafficked for the removal of organs, for example, who, as a result of the grave physical consequences of their exploitation, may subjectively believe that they are still under compulsion when attempting to access medical services using falsified identity documents given to them by their traffickers, notwithstanding the fact that some time might have elapsed between the actual end of their exploitation and the commission of the offence. The question which arises in this regard is: should the fact that the exploitation had ended a few months before the commission of an unlawful offence completely extinguish the presence of compulsion, notwithstanding the fact that a victim might still subjectively perceive himself or herself as being under compulsion? Would it make a difference that the victim genuinely believed himself or herself to be under a voodoo spell, as is often the case?145 Would the outcome in such a case be different if the victim’s family was threatened in the country of origin, and the victim used falsified identity documents to return home to allay these threats? Given the sensitive nature of these questions, as well as the overriding public policy considerations that arise in this context,146 British courts should be open to the possibility of being a little more flexible in their approach to construing the notion of compulsion, especially in relation to past or historic victims of trafficking. That said, there is some indication that British courts are perhaps now more willing than ever to quash convictions obtained in contravention of the nonpunishment obligation, where the facts of the case in question demonstrate a clear nexus between the trafficking ordeal and the offences at issue. In LM & Others,147 for example, the three appellants in question were initially regarded as being in breach of the Sexual Offences Act 2003 by allegedly controlling the prostitution of 144 ibid [47]. 145 K Cullen-DuPont, Human Trafficking (Infobase Publishing, 2009) 80. 146 See P Bowen, ‘Trafficking-related Criminal Legislation in the UK, Special Measures for Victims and Sentencing Guidelines’ in P Chandran (ed), Human Trafficking Handbook: Recognising ­Trafficking and Modern-Day Slavery in the UK (LexisNexis, 2011) 401 (noting that the policy considerations against complete immunity for victims of trafficking include the fact that such immunity will act as a pull factor to traffickers to exploit more vulnerable victims since they would know that victims would not be prosecuted for these offences. Complete immunity might also open the floodgates to a litany of claims by arrested persons that they were victims of trafficking). 147 [2010] EWCA Crim 2327.

The Non-Punishment of Victims of Trafficking  195 two Eastern European women. Later, however, the prosecution accepted that they had engaged in such unlawful activity under compulsion by their traffickers and entered into a plea agreement with them to the effect that they would have been treated as victims, rather than perpetrators. When the hearing was held, however, the prosecutors nevertheless went ahead and sought prosecutions against the victims, notwithstanding the non-punishment obligation. On appeal, the Court of Appeal quashed the convictions on the basis that, had the prosecution considered the non-punishment obligation at the relevant time, it would have arrived at the conclusion that the victims in question had engaged in the unlawful activity of controlling prostitution as a direct result of having been compelled to do so by their traffickers. In other words, in ignoring the non-punishment obligation when it had become clear that the victims in question were compelled to commit the unlawful activity, the prosecution had failed to correctly discharge its duty.148 The type of evidence which will engage the Court’s jurisdiction to ‘stay’ proceedings because of an abuse of process was considered in L and Others v R,149 a case which jointly dealt with the non-punishment obligation in the context of three children and one adult who were trafficked for the production of cannabis and prostitution, respectively. The Court began its assessment by reiterating that the non-punishment obligation does not protect trafficked victims from penalties imposed where the offence at issue is wholly unconnected with the trafficking ordeal.150 That said, the Court, however, pointed out that, in general, trafficking cases involving the non-punishment of victims must be treated with greatest sensitivity.151 Without being too prescriptive, the Court noted that if the facts of a particular case show that the victim was under levels of compulsion which meant that in reality their culpability was extinguished, then it will exercise its jurisdiction to ‘stay’ a prosecution.152 In other cases, however, such as where the victim only provides a ‘colourful excuse for criminality’, that is, where the offences at issue are unconnected with the trafficking situation, an abuse of process claim, it held, will fail.153 Applying these general principles to the facts of the instant case, the Court found that the decision to sentence the first appellant, THN, after he was brought in a freezer container from Vietnam to the UK, and then compelled to cultivate cannabis, could no longer stand, given that ‘his criminal activities were integral to the circumstances in which he was a victim’.154 In other words, the Court considered that if the evidence available to it had been available to the lower court at the time when the matter was first heard, a decision to prosecute would have amounted to an abuse of process. The same ruling ensued in R v T, which concerned a 17-year-old who was sentenced to two years at a Young Offender

148 ibid

[34]. and Others v R [2013] EWCA Crim 991; [2014] 1 All ER 113. 150 ibid [14]. 151 ibid [13]. 152 ibid [33]. 153 ibid. 154 ibid [45]. 149 L

196  Law and Practice in England and Wales I­nstitution for cultivating cannabis. The Court considered that at the time this sentence was imposed, no proper consideration was given to the question of whether T was a victim of trafficking, and that ‘his presence in the cannabis factory formed part and parcel of the process in which he was victimized’.155 In R v HVN, a child, aged 17, was sentenced to eight months of detention and training on each count of cultivating cannabis. Although he was compelled to engage in this unlawful activity, the UK Border Agency’s assessment that he was a ‘credible victim’ of trafficking was not communicated to the lower court in time, which ultimately resulted in him being convicted and sentenced. On appeal, the Court quashed the conviction on the basis that had the new evidence been available to the lower court, HVN would not have been convicted, and that if he was, this would have amounted to an abuse of process.156 A similar ruling was arrived at in R v L, a case in which a native of Uganda who was trafficked into prostitution in the north of England and London, respectively, was nevertheless sentenced to six months’ imprisonment for the possession of a false passport. On appeal, the Court of Appeal considered that: Given the appellant’s prolonged exposure to involuntary prostitution and enforced control, the offence she actually committed appears to us to have arisen as a result of her being a victim of trafficking who was provided with a forged passport for her to use as if it were genuine, and the use of it represented a step in a process by which she would escape. On the basis of the facts which are now known, if this appellant had been prosecuted, an abuse of process argument would have been advanced with a realistic prospect of success.157

In view of the foregoing, it can be argued that, although it is certainly a positive development that UK Courts, cognisant of the country’s European anti-trafficking commitments, have increasingly been prepared to exercise their jurisdiction to render the prosecution of trafficked victims an ‘abuse of process’ where it is found that such persons have been compelled to commit unlawful activities as a result of the trafficking ordeal, such an exercise of jurisdiction often comes a little too late, when most of the damage has already been done.158 For example, in R v HTB,159 155 ibid [55]. 156 ibid [67]. 157 ibid [74]. 158 In the immigration context, see AZ (Trafficked women) Thailand CG [2010] UKUT 118 (IAC) [170]. Here, the appellant, a Thai victim of trafficking, who was forced into prostitution for eight months in the UK, was nevertheless prosecuted and sentenced to nine months’ imprisonment for using a false passport when attempting to return to Thailand after escaping from her trafficker. When the matter was heard, on appeal, by the Upper Tribunal of the Immigration and Asylum Chamber, two immigration judges considered that, ‘although there is a non-punishment provision included in the Convention, the appellant was prosecuted for using a false passport and sentenced to nine months in prison. We accept, however, that this was not a breach of the Convention by the respondent as he was not aware at the time of the prosecution that the appellant was a victim of trafficking as she did not disclose this fact until after her sentence was completed’. Note, however, the reality is that at the time, the CPS Guidelines on human trafficking had in fact stated that the failure of a trafficking victim to disclose information should not count against her as it can be explained for many reasons. 159 R v HTB [2012] EWCA Crim 211.

The Non-Punishment of Victims of Trafficking  197 a young Vietnamese girl was trafficked to the UK and exploited for cannabis cultivation. She was convicted of drug offences and sentenced to 20 months’ imprisonment. When the matter was heard in the lower court, the judge found that the trafficked person had been aware that she was coming to the UK ­illegally, and that upon arrival in the UK, it must have been clear to her that she was cultivating an illegal crop. In view of the sentencing guidelines in operation at the time, the judge imposed what he considered to be the shortest sentence in all the circumstances. On appeal, however, the Court of Appeal decided that the appellant was a child at the relevant time when she was compelled to commit the unlawful offence and, accordingly, quashed the custodial sentence and replaced it with a non-custodial sentence. Unfortunately, however, by the time her appeal was heard, she was already six months into the original sentence, which meant that she would have already been revictimised. Apart from R v HTB, however, the victims in the cases discussed above who were eventually released from their sentences upon the quashing of their respective convictions had effectively been denied the myriad support and assistance measures provided for by European anti-trafficking law, simply because of their initial treatment by competent national authorities as criminals rather than victims. Moreover, it can also be argued that where a finding of ‘abuse of process’ is only made after several months following the conviction of a victim for unlawful activities,160 and the victim has therefore had to spend the intervening period in detention centres, such as prisons, with seasoned criminals, secondary victimisation might very well be an inevitable consequence. This second layer of victimisation not only exposes victims to the prospect of being re-trafficked, as reportedly transpired in the case of THN,161 but also militates against any reasonable prospect of them adequately recovering from the trafficking ordeal. Added to this is the fact that when victims are convicted for unlawful activities which they have been compelled to commit – whether for a week or a day – they are then placed in the rather precarious position of possibly being exposed to stigma and discrimination upon their return to smaller, close-knit communities, where news of their conviction might in all likelihood not be well received. Notwithstanding these challenges, however, the Court has certainly provided much-needed clarity on the twin requirements of the nexus between t­rafficking

160 Note the troubling sentiments of the Court of Appeal in R v N; R v LE [2012] EWCA Crim 189 [86.e]: ‘an abuse of process argument in the context of the Convention which is advanced long after conviction is most unlikely to succeed on the basis that subsequent events show that if the decision to prosecute were to be taken at this later stage, the result might be different from the decision actually taken in the light of contemporary standards and guidance as they existed when it was taken’. The practical effect of these sentiments is that once several months have passed since the conviction of a trafficked victim who has been prosecuted for an unlawful activity which she was compelled to commit, it will be very unlikely that the court’s jurisdiction to ‘stay’ the prosecution on a basis of an ‘abuse of process’ could be invoked. This appears to be in contravention of European anti-trafficking law, since quashing the conviction should exist as a matter of principle in these cases. 161 L & Othrs v R [2013] EWCA Crim 991, [43].

198  Law and Practice in England and Wales and the offence committed and the notion of compulsion in recent years. For example, in R v Sermanfure Joseph,162 the Court refused to find an abuse of process in circumstances where an application for a stay was made by the applicant, a St Lucian resident, who was convicted for smuggling cocaine into the UK. The circumstances of the case were that the applicant, a mother of eight children, including Marcia, aged 14 at the time, was subject to an armed invasion into her home by a gang of which the father of the youngest of her children was a member. The gang reportedly trashed her house and shop and kidnapped Marcia, albeit that Marcia was later returned by the gang. Later, the applicant reportedly went to stay at a relative’s house where she thought she would be safe, but gang members found her, kidnapped her and held her at gunpoint. They drove her to a house where they tied her to a chair and started to torture her in an attempt to get her to reveal her boyfriend’s whereabouts. They stubbed cigarettes out on her and pulled her toes and ears with pliers, pushed a gun into her mouth, and starved her for 16 days and raped her. Although she subsequently managed to escape, she was told by the gang that they had men watching her, and that she was responsible for paying her boyfriend’s debt of $25,000. They also threatened to kill her and her children if she did not pay or do as they said. They explained that she had to go to England and that when she got to the airport in St Lucia someone would give her a bag which she had to take to England. She took the bag, travelled from St Lucia and arrived at Manchester airport. When her suitcase was searched, officers discovered four wine bottles, containing 5.13 kg of liquid in which was dissolved a total of 2.12 kg of cocaine at 100 per cent purity, which had an estimated street value of £271,658. After having failed to successfully invoke the defence of duress, the applicant sought leave to appeal on the ground that the decision to prosecute her amounted to an abuse of process. The Court of Appeal, however, rejected her argument, finding that although she was placed under ‘some kind of pressure to become involved in drugs smuggling’ and had in fact been subjected to serious violence and sustained serious injuries, this was not sufficient to invoke the Court’s jurisdiction to stay the proceedings. This was because the evidence suggested that the applicant did involve herself willingly in smuggling Class A drugs, with her first drugs trip being to Trinidad and Tobago at some point earlier, and that it was only when that operation went wrong that she and her boyfriend faced the wrath of the gang. In any event, several months then passed between the kidnapping and torture, and her being sent to the UK. Accordingly, the applicant failed to establish a sufficient nexus between her becoming involved in a very serious offence and her ill treatment to justify not proceeding with the prosecution. The Court’s view was that the judge properly reflected the reduced culpability by the reduction in sentence he made. In short, the competent authority’s decision that the applicant was a credible victim of human trafficking was not such as to diminish significantly or effectively

162 [2017]

EWCA Crim 36.

The Non-Punishment of Victims of Trafficking  199 extinguish the high level of criminality involved in the international smuggling of Class A drugs. From an Analytical Eclectic perspective, it is submitted that this decision, although providing some clarity as to the nature of the twin requirements of nexus and compulsion, appears to adopt a problematic approach to the non-punishment provision in relation to victims who have not been morally blameless. Indeed, the judgment is replete with examples of the Court addressing, almost exclusively, the seriousness of the offence committed and the appellant’s blameworthiness in getting involved in the scheme in the first place, rather than the circumstances of her exploitation which seemingly led her to smuggle the drugs to the UK. While, evidently, public policy does not allow for a person who has committed a serious crime as drug trafficking to easily escape liability, it is submitted that the question is one of emphasis; the Court’s over-emphasis on the appellant’s past blameworthiness is cause for some concern. That said, a similar outcome to R v Sermanfure Joseph was arrived at in the conjoined appeal involving R v Alexandra Dorina Craciunescu,163 a case in which the Court once again refused to invoke its jurisdiction to stay proceedings on the ground that there was no sufficient nexus between the trafficking of the applicant and the commission of a drug smuggling offence. In that case, a Romanian national, who was reportedly trafficked to the UK, and forced to work for minimal wage and had her passport taken away, travelled to Brazil from the UK where she obtained two packages which, on her arrival and arrest back in the UK, contained 1.16 kg of pure cocaine with an approximate street value of £220,000. The competent authority made a conclusive determination that the applicant was a victim of trafficking on the basis that she was driven to Heathrow airport by her trafficker and another man and was given her passport, plane tickets, $1,000 in cash and the address of a hotel to stay in. While in Brazil, an associate of her trafficker took the money from her and acted as her minder until the drugs were delivered. She was told what to say if caught returning through customs, and did so because she was afraid for her safety and that of her family in Romania. Although the Court accepted that she was a victim of trafficking, it nonetheless considered that the evidence did not show a nexus, let alone a sufficient nexus, between the trafficking and the commission of the offence. It found that there was no real evidence of compulsion, in that the circumstances were not such as to diminish significantly or effectively extinguish the high level of criminality involved in the international smuggling of Class A drugs. By contrast, in R v NTN, the Court found, in a case involving a child victim of trafficking, that the requirement for a nexus between the trafficking and the offence committed was satisfied, and there was no further requirement for compulsion. Here, the applicant, a Vietnamese citizen, had been smuggled into the UK and had been forced to work in a Chinese restaurant. He subsequently escaped,

163 R

v Alexandra Dorina Craciunescu [2017] EWCA Crim 36.

200  Law and Practice in England and Wales and reported the matter to UK authorities, but was then seized by a gang which brought him to another area where he had been made to work in the cannabis factory, his job being to water the plants and make sure the equipment was working properly and for which he was fed in return. He was later arrested in a private house and charged with a drug-related offence. However, the Court granted a stay of proceedings on the basis that he had been used and manipulated by an unscrupulous gang, acting out of fear of what would happen if he did not do as instructed, and had made no money. In short, there was a direct nexus between the trafficking and the offence, and it would accordingly not be in the public interest to prosecute him or maintain the prosecution against him. On the question of compulsion, which is required to be established in the case of adults, but not children, the case of R v GS164 is instructive. Here, the applicant, a Jamaican national, had lived with her cousin (W) in Birmingham for a period of about four months. W’s partner was a Jamaican man named B. Her cousin, B and B’s brother (D) were all involved in drug dealing. B claimed that the applicant owed him money and told her that she had to go to the Bahamas in order to obtain money to pay him back what he was allegedly owed. He obtained a false passport for her to do so, in the event, the same false passport that she used on her flight to the UK from Trinidad when she was arrested. B told her that she had to bring back drugs hidden in bags of coffee. The applicant, however, used her own money to escape from The Bahamas to Miami. She stayed in Miami for a few months, at which point she said that she had to return to the UK for medical treatment for HIV, which she could not obtain in the US. Subsequent to her return, she encountered B and one of his associates in the UK, who told her to walk with him and that she could not go anywhere because he knew where her son lived. She was taken to a house overnight and kept under constant observation. A ticket to Trinidad was purchased for a flight leaving the next day. She claimed that she saw B had a firearm and believed what he had said about her son’s life being in danger. On arrival in Trinidad, she was taken to a house where she was again kept under observation. She was ordered to swallow a large number of drugs packages. She could not manage to swallow them all and so placed one inside her vagina and one under her breast. When she arrived at London Heathrow airport on a flight from Trinidad, the x-ray machine revealed that she had foreign objects inside her body. She was arrested. A second x-ray and a medical examination confirmed the findings. In due course, 23 packages were recovered from her; 22 of those packages contained cocaine with a gross weight of 253 grams (221 grams at 100 per cent purity). The drugs had a street level value of £37,578.40. The ­applicant was convicted of being knowingly concerned in the fraudulent evasion of the prohibition on the importation of cocaine.



164 R

v GS [2018] EWCA Crim 1824 (31 July 2018).

The Non-Punishment of Victims of Trafficking  201 Upon her defence of duress being rejected, she sought to argue that her conviction was unsafe and that it should be quashed as amounting to an abuse of process. The Court of Appeal, however, rejected her application, finding that it could not be said, on the evidence presented, that the applicant was under such a level of compulsion that her criminality or culpability was reduced to below a point where it was not in the public interest for her to be prosecuted. This was because the applicant had in fact committed a serious offence, whose gravity could not be minimised, and it could not be said that there were no reasonable alternatives available to the applicant to escape from the compulsion, since on two occasions (one before the incident resulting in her conviction and one subsequent to her conviction) that was precisely what she did. Aside from invoking the Court’s jurisdiction to ‘stay’ a prosecution or conviction, the final and most recently introduced mechanism through which victims of trafficking may be exonerated for offences which they have committed as a result of having been trafficked lies in the non-punishment provision contained in section 45 of the Modern Slavery Act.165 This provision contains separate threshold conditions for adult and child victims of trafficking, respectively. With regard to an adult,166 such a person is not guilty of an offence if: a. b. c. d.

the person is aged 18 or over when the person does the act which constitutes the offence; the person does that act because the person is compelled to do it; the compulsion is attributable to slavery or to relevant exploitation;167 and a reasonable person in the same situation as the person and having the person’s relevant characteristics168 would have no realistic alternative to doing that act.

By contrast, for child victims of trafficking, the requirements are that: (a) the person is under the age of 18 when the person does the act which constitutes the offence,

165 Note that Schedule 4 of the Modern Slavery Act 2015 sets out those offences that are excluded from the defence under s 45. The long list of excluded offences includes murder, manslaughter, piracy, false imprisonment, kidnapping and perverting the course of justice; the most serious offences of violence under the Offences Against the Person Act 1861 (including offences under ss 18 and 20); sexual offences; offences under the Domestic Violence, Crime and Victims Act 2004, cruelty to children, female genital mutilation; certain firearms offences, robbery, burglary, blackmail, hostage-taking, hijacking and other offences endangering the safety of aircraft, offences under the Explosive Substances Act 1883; and terrorism offences. While Schedule 4 excludes many serious offences, including offences of violence, it does not exclude other serious offences which may result in the imposition of long sentences of imprisonment on a convicted defendant, such as the supply of, or conspiracy to supply, Class A drugs, or their importation. 166 s 45(1) Modern Slavery Act 2015. 167 ibid s 45(3): compulsion is attributable to slavery or to relevant exploitation only if – (a) it is, or is part of, conduct which constitutes an offence under s 1 or conduct which constitutes relevant exploitation, or (b) it is a direct consequence of a person being, or having been, a victim of slavery or a victim of relevant exploitation. 168 ibid s 45(5): ‘relevant characteristics’ mean age, sex and any physical or mental illness or disability.

202  Law and Practice in England and Wales (b) the person does that act as a direct consequence of the person being, or having been, a victim of slavery or a victim of relevant exploitation; and (c) a reasonable person in the same situation as the person and having the person’s relevant characteristics would do that act.169

It is noteworthy that, in respect of child victims of trafficking who have committed an offence, there is no requirement for compulsion, and there is also no requirement for there to have been ‘no realistic alternative’ to doing the act in question. Although section 45 appears to be precise and clear in its orientation, a number of intriguing practical and jurisprudential questions have arisen since its coming into effect in 2015. These were recently addressed in the case of R v MK; R v Gega.170 In each of these cases, the applicant was an Albanian national who claimed to have been a victim of trafficking and who sought to rely on the statutory defence afforded to such victims under section 45 of the 2015 Act. The common issue raised in both these otherwise unrelated appeals was whether the legal burden of proof rests on the defendant when a defence is raised under section 45 of the Act, or whether the defendant bears only an evidential burden with the prosecution having to disprove to the criminal standard one or more of the elements of the defence. Here, MK was convicted of two offences, namely conspiracy to supply cocaine and of being in possession of an identity document with improper intention. She was sentenced to eight years’ imprisonment on the offence of conspiracy and five months’ imprisonment on the second count, to run concurrently. The second appellant, Persida Gega, was convicted of a single count of possession of an identity document with improper intention, for which she was sentenced to 15 months’ imprisonment. Both applicants appealed against their convictions and sentences. On appeal, the Court adopted a very pragmatic approach, holding that the prosecution had, at all times, to prove all the elements of the underlying criminal offence, in this case, the drug and identity offences. But, even if the prosecution had proved the ingredients of the criminal offence to the criminal standard (beyond a reasonable doubt), section 45 states that a person ‘is not guilty’, and so is innocent of the offence, if all the specified elements under section 45 are established. In finding that ‘a reverse legal or persuasive burden would be tantamount to requiring a defendant to prove specific elements establishing his or her innocence’, the Court considered that: There is force in the point that a reverse burden would undermine the protection that section 45 of the 2015 Act is designed to afford to vulnerable people who are likely to be traumatized by their experiences and potentially still at the mercy of those who exploited them. The United Kingdom has enacted legislation which in some respects affords greater protection than that envisaged by Recital 14 [of the Directive]. Nevertheless, if the legal burden of proof is reversed, there is a danger of frustrating Parliament’s



169 ibid 170 R

s 45(4). v MK; R v Gega [2018] EWCA Crim 667.

The Non-Punishment of Victims of Trafficking  203 objective that victims (including children) of trafficking or slavery should be protected against the further stigma of a criminal conviction for an offence committed in consequence of their initial victimization.171

In short, in the Court’s assessment, section 45 does not implicitly require the defendant to bear the legal or persuasive burden of proof of any element of the defence. The burden on a defendant is merely evidential. It is for the defendant to raise evidence of each of those elements and for the prosecution to disprove one or more of them to the criminal standard, namely beyond a reasonable doubt. In any event, the task that the prosecution faces if it bears the legal burden is unlikely to be very different from the task it faces when disproving the common law defence of duress. On the question of the potential hurdle which placing the legal burden on the prosecution to disprove the elements of the section 45 defence might entail, the Court explained that: The prosecution is likely to have less difficulty in establishing to the criminal standard that an adult offender in the defendant’s position had a realistic alternative to committing the offence, than the defendant would have in establishing on the balance of probabilities that a reasonable person in his or her position would have had no realistic alternative but to do what was done. That final element of the defence is the safeguard against a defendant being absolved from liability for what otherwise would be a serious criminal offence simply because the jury cannot be sure that his or her account of being exploited and victimized is untruthful. It also serves to safeguard against the twin dangers that (i) the defence under section 45 will be perceived as affording an easy means for an unscrupulous defendant to avoid liability by making up a story about being trafficked or enslaved, and (ii) the apparent ease with which defendants can set up a defence under the section will result in their controllers being encouraged, rather than discouraged, to continue their exploitation, and through them commit offences.172

A second important aspect of this case is that, in so far as child victims of trafficking are concerned, the Court ruled that if there is any uncertainty as to their age for the purposes of relying on the section 45 defence, the legal burden rests on the prosecution to prove the person’s age, and not the victim/defendant. In the Court’s assessment, the prosecution plainly has more resources available than the defendant, particularly a young defendant, to investigate the age of the defendant in cases where that is going to be in issue. In our judgment, Parliament cannot have intended that such a defendant should not have the benefit of any reasonable doubt on the issue of age. If the legal burden of proof in respect of age rests on the prosecution, as we consider it does, that is yet another indication that Parliament did not intend to shift the burden of proof of the other elements of the defence under section 45.173



171 ibid

[36]. [39]. 173 ibid [44]. 172 ibid

204  Law and Practice in England and Wales Notwithstanding the progressive and, indeed, groundbreaking approach adopted by the Court in R v MK; R v Gega, prosecutors in England and Wales remain adamant that it is almost impossible in practice for them to discharge their legal burden of proof after a victim has raised evidential proof that they were compelled to commit a criminal act. In this regard, prosecutors appear to have a strong appetite for Parliament to amend the Modern Slavery Act on the question of the section 45 defence often invoked by victims, as there is, at least in their view, a real fear that current case law sets a bad precedent.

X.  Institutional Commitment As demonstrated throughout this chapter, human trafficking is a multifaceted phenomenon which necessarily requires multidimensional solutions that are both realistic and programmatic. In the last decade, the UK has demonstrated strong institutional commitment to combating the phenomenon of human trafficking through collaboration, increased awareness about the modalities of trafficking and its impact in practice, capacity building and monitoring and evaluation. Indeed, collaboration in the fight against the scourge of human trafficking has taken a domestic, regional and international focus, producing variable levels of success.174 At the domestic level, through a number of projects, including Project AIDANT, several important agencies, including the NCA, Border Force and the UKVI, have been brought together under one umbrella to investigate trafficking and identify victims of the phenomenon. This exercise has produced fruitful results, namely: the arrests of a number of traffickers operating from both within and outside the UK; the designation of business premises as hotspots for human trafficking; and financial investigations into lucrative trafficking enterprises leading to high-profile cases being prosecuted.175 A number of UK anti-trafficking agencies have also successfully collaborated with NGOs actively working in the anti-trafficking field to buttress the identification and referral of trafficked victims and their support and assistance, as well as in training and raising awareness about the threat of trafficking.176 Despite best efforts, however, some degree of unease still exists between NGOs and state funded anti-trafficking stakeholders, in particular, in respect of the manner in which competent authorities seemingly relegate referrals made by NGOs, as well as concerns over the fact that some NGOs do not at times disclose notes of conversations with complainants or contact logs or thirdparty interventions.177

174 Gravett (n 35). 175 ‘UK Annual Report on Modern Slavery’ (n 50). 176 GRETA, Report concerning the implementation of the Council of Europe Convention on Action against Trafficking in Human Beings by the United Kingdom (n 20). 177 Haughey (n 35) 27.

Institutional Commitment  205 Efforts to achieve effective stakeholder collaboration have not only been ­ perationalised locally, but also regionally, particularly through the participation o of UK authorities in JITs,178 which have produced commendable results in transnational trafficking cases, as described in earlier sections of this chapter. On the international front, the Foreign and Commonwealth Office, the ­Department for International Development, the Home Office and the CPS (through its criminal justice advisers) have also contributed to efforts to combat human trafficking, particularly in Nigeria179 and Vietnam, countries from which high numbers of trafficked victims originate. These efforts include joint investigations, ­training of stakeholders, assistance with identifying, and supporting victims and awareness-raising. On the issue of awareness-raising, the approach of the UK to informing and educating the public about human trafficking has evolved tremendously over the last decade in keeping with the evolving dynamics of the phenomenon. Apart from television and radio broadcasts which provide detailed information to the general public about trafficking, media partnerships have been forged with the press to highlight the plight of victims of trafficking and to incentivise the public to report situations of exploitation.180 Awareness-raising efforts, which have been multiagency in nature, have increasingly been adopted to make it easier for victims to report their exploitation, for example, through simply touching coloured buttons on restroom doors at Birmingham International airport,181 which alert investigators that there is a possible case of trafficking. Importantly, efforts to inform and educate both potential and actual victims of trafficking have not only found resonance in the UK, but also abroad, and in particular in countries with high numbers of trafficked victims, such as Hungary, Bulgaria, Croatia, Lithuania and Ukraine. Despite these efforts, however, challenges remain. There, for example, remains a strong culture of disbelief both among the public and state-funded agencies that trafficking occurs in the UK.182 In respect of migrant women and girls, particularly from African and Asian countries, these persons are still reportedly viewed by some agencies as ‘not our girls’.183 In some instances also, despite reports about the occurrence of trafficking, some police forces remain under-exposed to the dynamics of trafficking, while the public appears to be generally unsympathetic to the plight of victims,184 particularly those who are viewed as less deserving of protection. To address some of these challenges, the UK has, through a number of departments, rolled out training programmes on human trafficking aimed at equipping 178 ‘Brexit & the UK’s fight against modern slavery’ (n 34) 9. 179 ‘The CPS response to the Modern Slavery Act 2015’ (n 5) 22. 180 GRETA, Report concerning the implementation of the Council of Europe Convention on Action against Trafficking in Human Beings by the United Kingdom (n 20). 181 Amardeep Bassey, ‘This New Colour-Coding System in Airport Toilets can Help Victims Escape FGM And Forced Marriage’ (HuffPost, 31 August 2018). 182 ‘Written submission on EU Directive (2011/EU/36)’ (n 39) 8. 183 ‘Stolen freedom’ (n 40) 76. 184 ibid.

206  Law and Practice in England and Wales stakeholders with the tools needed to investigate and prosecute trafficking and support victims of the phenomenon. Although training for police forces is still in its infancy and its impact has not yet fully been evaluated, the College of Policing, in collaboration with various other agencies, continue to deliver training on best practices for dealing with situations of exploitation.185 Not only has the College of Policing provided training, but also the CPS, the Law Society of England and Wales, the Judicial College and a number of NGOs. Training, in this context, has targeted not only judicial officers and prosecutors, but also a number of front-line workers in the anti-trafficking field,186 including healthcare workers, who often are the first point of contact for trafficked victims. Despite these efforts, however, there is reportedly still a lack of standardisation across agencies with regard to the content of training undertaken,187 coupled with a reported lack of impact of training undertaken by some agencies in changing hegemonic assumptions about certain victims of trafficking, including migrant children who have been trafficked. Cognisant of these challenges, the Modern Slavery Act creates the position of the Independent Anti-Slavery Commissioner (IASC),188 whose role is multifaceted as it is critically important, as recently pointed out by the Court in H v Secretary of State for the Home Department, when it stated: The role of the Court is to adjudicate on specific legal disputes. Bodies such as the Public Accounts Committee and the Anti-Slavery Commissioner have a wider remit. They can survey the performance of the Home Office more generally in discharging its antitrafficking functions and make recommendations.189

Indeed, under the Modern Slavery Act, the IASC is envisaged to play a leading role in encouraging best practice in preventing and detecting human trafficking, and in investigating and prosecuting situations of exploitation and supporting and assisting victims of trafficking.190 The execution of this role involves the provision not only of research, education, information and training, but also the preparation of strategic plans191 on the practical steps which can be taken to achieve compliance with international and European anti-trafficking law. To date, since his appointment, the IASC has taken effective steps to train members of the judiciary, inspect victim identification processes, raise awareness about trafficking in supply chains, and make specific recommendations on the risks faced by vulnerable persons, including people who are homeless.192 Notwithstanding the tactical and operational importance of this role, however, it must be borne in mind that it falls short of a National Rapporteur, similar to



185 Feikert-Ahalt

(n 55). submission on EU Directive (2011/EU/36)’ (n 39). 187 ‘Stolen freedom’ (n 40). 188 s 40 Modern Slavery Act 2015. 189 [2018] EWHC 2191 (Admin) [77]. 190 s 41 Modern Slavery Act 2015. 191 ibid s 42. 192 ‘UK Annual Report on Modern Slavery’ (n 50). 186 ‘Written

Institutional Commitment  207 that which exists in countries such as Finland and the Netherlands. Although the word ‘independent’ precedes the Anti-Slavery Commissioner’s title, and despite the duty imposed by the Modern Slavery Act on all law enforcement, border security and local government, healthcare and other authorities to cooperate with the IASC in the exercise of his functions,193 his independence continues to be ­questioned,194 particularly in light of the fact that his primary reporting responsibility is to the Home Secretary. National Rapporteurs, such as that which exists in the Netherlands, by contrast, have complete independence from the executive arm of government, and can therefore not only perform the roles described under the Modern Slavery Act, but also evaluate the effectiveness of anti-trafficking efforts in an impartial and pragmatic manner, without their objective opinions redacted or diluted by the state apparatus. Indeed, as the Dutch National Rapporteur, Corinne Dettmeijer-Vermeule, has stated: [I]n my view, independence is quite an important element. Why is it so important? If you worked for the Government, you could not pull off what I did with my research … my independence also makes for trust between the NGOs and the governmental institutions. I am not an NGO. NGOs are extremely important in this field, but for a rapporteur it is better to keep some distance. I do not look at individual cases; I have a helicopter view … the effectiveness lies in the independence and the in-between role that I have.195

Similarly, Eva Biaudet, the then Finnish National Rapporteur, has explained that: We gather police protocols, court sentences, pre-trial investigations and decisions from the victims help and assistance system. We also gather information from NGOs. This information is reliable as such, but to be able to understand the phenomenon of trafficking, the national rapporteur puts the information together and actually looks at what is not there and at what lies behind the numbers … We are trying to focus on what is not there: ‘What is it that we miss?’ For instance, we have found on several occasions that in Finland women, particularly foreign women, in prostitution are very poorly identified by the police, the courts and the health system for many reasons. Then we go in and try to see what are the reasons and what could be the thing that would improve identification there, and we try to give recommendations, and work together with the authorities.196

In short, although the work of the IASC to date has been commendable, questions about the independence of the role continue to raise eyebrows about how successful the Commissioner will be in future in balancing competing interests, especially in sensitive areas where the use of finite state resources might be in issue. 193 s 43 Modern Slavery Act 2015. 194 ‘Submission to the Joint Standing Committee on Foreign Affairs, Defence and Trade for the Inquiry into establishing a Modern Slavery Act in Australia by the Advisor Committee of the Modern Slavery Registry’ (n 135). 195 Cited in C Beddoe and V Brotherton, ‘Class Acts? Examining Modern Slavery Legislation across the UK’ (Anti-Slavery International for the Anti-Trafficking Monitoring Group, October 2016). 196 ibid.

208  Law and Practice in England and Wales

XI.  Confiscation/Forfeiture of Assets Traffickers are inherently motivated by financial gain, particularly because the commission of exploitation is easily repeated with an axiomatic low rate of detection. For this reason, renewed focus has been placed in recent years in ‘following the money’. The primary means through which this objective is achieved lies in the imposition of confiscation orders,197 which, as Janet Ulph has argued, are intended to deter convicted criminals from a life of crime by stripping them of the benefit which they have obtained from their criminal conduct.198 Indeed, as the House of Lords opined in R v Rezvi,199 these orders, in depriving offenders of the proceeds of their criminal conduct, not only punish convicted offenders, but also deter the commission of further offences and reduce the profits available to fund further criminal enterprises.200 Section 7 of the Modern Slavery Act amends Schedule 2 of the Proceeds of Crime Act (POCA) 2002, so as to include human trafficking as a ‘criminal lifestyle’ offence in relation to which a confiscation order may be made by the court. Such an order is intended to deprive the trafficker of any assets he has acquired as a result of his engaging in the ‘general criminal conduct’, namely human trafficking. Once it is accepted that the defendant has a criminal lifestyle, the court must then decide what his ‘benefit’ from the general criminal conduct was.201 This necessarily requires the judge to make four assumptions, as set out in section 10 POCA, namely: (2)  any property transferred to the defendant at any time after the relevant day was obtained by him – as a result of his general criminal conduct, and at the earliest time he appears to have held it. … (3)  any property held by the defendant at any time after the date of conviction was obtained by him – as a result of his general criminal conduct, and at the earliest time he appears to have held it. …

197 Note that the confiscation process seeks to recover the value of criminal proceeds and not the actual proceeds themselves. A confiscation order, in effect, creates a debt that the offender must settle, and which may be met by selling legitimately owned assets. 198 J Ulph, ‘Confiscation Orders, Human Rights and Penal Measures’ (2010) 126 Law Quarterly Review 251. 199 R v Rezvi [2002] UKHL 1. 200 See also Crown Prosecution Service v Jennings [2008] UKHL 29. 201 s 6(4)(b) POCA 2002.

Confiscation/Forfeiture of Assets  209 (4)  any expenditure incurred by the defendant at any time after the relevant day was met from property obtained by him as a result of his general criminal conduct. … (5) for the purpose of valuing any property obtained (or assumed to have been obtained) by the defendant, he obtained it from of any other interests in it.

In the majority of trafficking cases, the second assumption will be of particular relevance, namely any property held by the defendant, at any time after conviction, was the result of general criminal conduct, no matter when that property was acquired. This second assumption, unlike the first and third assumptions, does not have a ‘relevant day’ limitation, (ie, six years ending in the day when proceedings commenced).202 As such, the second assumption covers, in principle, property held after conviction, but acquired many years earlier. The invocation of these assumptions is not automatic, however, as the judge is statutorily mandated to disapply any of the assumptions if the assumption in question is shown to be incorrect, or there would be a serious risk of injustice if the assumption were made.203 Once the benefit is calculated, the court must decide what is the ‘recoverable amount’ under section 6(5)(a) POCA. A ‘recoverable amount’ is equal to the ‘benefit’, unless the ‘available amount’ is less than the ‘benefit’, in which case the ‘recoverable amount’ is the ‘available amount’. The court, thereafter, makes a confiscation order for the ‘recoverable amount’ under section 6(5)(b), but only to the extent that it would not be disproportionate to require the person to pay the recoverable amount. This proportionality proviso was introduced into the Act following the decision of the Supreme Court in the case of R v Waya.204 Although confiscation orders in the nature of those provided for under the Modern Slavery Act, in conjunction with POCA, are envisaged to have a monumental impact on the extent to which traffickers benefit from their criminal lifestyle, this impact has not, as yet, been felt in practice. In fact, up until 2017, very few confiscation orders have been made in trafficking cases, their collective value being just over £1.4 million.205 While the CPS attributes this to difficulties in tracing and locating funds, particularly in cash businesses,206 the Fraud Advisory Panel has commented that the lack of awareness and detailed knowledge of the legislation at all levels adversely affects the extent to which confiscation orders are used in practice.207 Additionally, as a practical matter, criminals tend not to

202 ibid s 6(8). 203 ibid s 10(6). See Regina v Andrew Clive Briggs [2018] EWCA Crim 1135. 204 R v Waya [2012] UKSC 51. 205 ‘UK Annual Report on Modern Slavery’ (n 50). 206 ‘The CPS response to the Modern Slavery Act 2015’ (n 5). 207 ‘Working Party Papers: Outline Response to the Home Office Working Group on Confiscation of Criminal Assets’ (Fraud Advisory Panel, 2012).

210  Law and Practice in England and Wales have well-organised, legitimate and transparent financial affairs and those with significant assets derived from criminal activity will typically make extensive use of nominees, limited companies, trusts or other entities (often based offshore) to shelter those assets, which renders it difficult and a resource-intensive exercise to unravel the proceeds of crime.208 In this context, it is felt in some quarters that confiscation proceedings are unlikely to deter criminals who have a ‘nest egg’, representing the fruits of their crime, stashed away ready to be enjoyed when they are finally released from prison.209 More generally, there have been concerns that the confiscation regime is ineffective in achieving positive results, evidenced by the fact that only about 2 per cent of those ordered to pay ever pay in full, with many defendants electing to go to prison instead. Additionally, the regime has been criticised for being ‘too pedestrian’, with very lengthy delays from arrest and conviction to a confiscation order being made, which afford defendants time to take steps to hide assets or disguise them in complicated offshore arrangements.210 Furthermore, it has been contended that the ‘small-time criminal’ is being targeted far more successfully than the bigger criminal, and that third-party interests in property often delay and frustrate the enforcement of the original confiscation order.211 On the question of enforcement, concerns have also been expressed in relation to the level of attrition that takes place in practice, that is, the large amount of assets lost during different stages of the confiscation process, from the initial assessment of offenders’ financial benefit from crime, through to the amount eventually recovered.212 The Home Office has attributed these high levels of attrition to the latitude that authorities are given when estimating the level of criminal benefit; negotiations between the defence and prosecution which provide an opportunity for reducing the value of both the initial assessment of criminal benefit and the value of recoverable assets held by an offender; as well as shortfalls between the expected value of assets when orders are made and the actual value they fetch when sold; difficulties faced by imprisoned offenders in selling assets to pay their orders; complications around the position of third parties in asset ownership; and the surreptitious actions on the part of some offenders to avoid recovery by, for example, hiding assets.213 Notwithstanding these challenges, however, it is undeniable that confiscation orders have the real potential to deter would-be traffickers by raising the actual and perceived risks of committing crime, while visibly depriving traffickers of their profits, and reducing their power and status within the community. They also prevent profits from crime being reinvested into further criminality, or tainting

208 ibid. 209 Ulph (n 198). 210 P Doyle, ‘Recent Changes to the Proceeds of Crime Act’ (25 Bedford Row, 22 July 2015). 211 ibid. 212 K Bullock, D Mann, R Street and C Coxon, ‘Examining Attrition in Confiscating the Proceeds of Crime’ (Home Office, 2009). 213 ibid.

Prevention and Risk Orders  211 the legitimate economy, and ensure that justice is better served because traffickers are not allowed to profit from crime and this is seen to be the case. That said, prompt criminal assets confiscation procedures in human trafficking cases are vital to ensuring effective access to compensation for victims and ensuring that the perpetrators do not avail themselves of insolvency proceedings to avoid payment of compensation or conceal or alienate their assets.214 On another note, it should also be noted that apart from the confiscation regime contemplated by POCA, the Modern Slavery Act also empowers the court to forfeit any land vehicle215 or ship or aircraft216 used or intended to be used by a trafficker in connection with the offence of human trafficking.

XII.  Prevention and Risk Orders Traffickers are often unrelenting in their pursuit of financial rewards, and are, in some instances, even undeterred by mere conviction, being determined to continue to ply their nefarious trade after their sentence has elapsed. To address this challenge, the Modern Slavery Act introduces trafficking prevention orders, which can be imposed by a court of competent jurisdiction either on sentence217 or upon application by a defined list of persons.218 For a court to grant a trafficking prevention order, the defendant must have been convicted,219 or found not guilty by reason of insanity,220 or found to be under a disability221 and has committed a human trafficking offence, and further, there is a risk that the defendant may commit a human trafficking offence,222 and it is accordingly necessary to make the order for the purpose of protecting persons generally, or particular persons, from the physical or psychological harm which would be likely to occur if the defendant committed such an offence.223 Where such an order is made, it has the advantage of applying both domestically and extraterritorially, and can restrict the defendant’s dealings in a number of important ways.224 In this context, the CPS has reported that convicted d ­ efendants

214 GRETA, Report concerning the implementation of the Council of Europe Convention on Action against Trafficking in Human Beings by the United Kingdom (n 20). 215 s 11(2) Modern Slavery Act 2015. 216 ibid s 11(3). 217 ibid s 14. 218 ibid s 15. The following persons may apply for a prevention order: a chief officer of police, an immigration officer, or the Director General of the NCA. 219 s 14(1)(a) Modern Slavery Act 2015. 220 ibid s 14(1)(b). 221 ibid s 14(1)(c). 222 ibid s 14(2)(a). 223 ibid s 14(2)(b). 224 See, eg, Nicola Slawson, ‘Two men jailed for gang related human trafficking offences’ The Guardian (13 April 2018); Rebecca Wilson, ‘Landmark judgement secured in GLA case’ (Recruitment International, 20 January 2016).

212  Law and Practice in England and Wales have, through Trafficking Prevention Orders, been forbidden from retaining the passports or bank cards of workers; forbidden from owning more than one mobile phone or SIM card, and being required to register phone numbers at local police stations; forbidden from holding travel documents or organising travel for anyone other than immediate family members; forbidden from travelling o ­ verseas or from bringing workers into the UK from overseas; and forbidden from travelling in certain areas either in the UK or abroad.225 Although Prevention Orders appear to be working well in practice, serving as a ‘potentially powerful tool in protecting victims and preventing slavery and trafficking offences from occurring, and preventing offenders from evading justice’,226 some challenges nonetheless arise, which have necessarily caught the attention of stakeholders in England and Wales. Among the main challenges that arise in this connection is the fact that, despite having been placed on a statutory footing since 2015, there still remains considerable lack of awareness on the part of many stakeholders in the anti-trafficking field as to the true nature and effect of Trafficking Prevention Orders and, indeed, the circumstances in which it is appropriate to apply for these orders.227 There have also been practical challenges in monitoring these orders where they apply extraterritorially, particularly in Slovakia and ­Romania, where efforts to use the orders to prevent convicted traffickers going to these jurisdictions to recruit vulnerable people of Roma heritage are sometimes stymied by the need to obtain agreement to enforce these orders abroad, notwithstanding the enduring work of EUROJUST. Another challenge that arises in practice is that because the Prevention Order only applies to convicted traffickers, there have been uncomfortable situations in which, for instance, five defendants are implicated in a trafficking situation, but only four are convicted for trafficking while one is convicted for smuggling, in which case only the former four may be subject to a Prevention Order, but the fifth may not, since he is not per se convicted of a trafficking offence. Though the fifth person may have narrowly escaped prosecution for trafficking, he may nonetheless not be subject to a Prevention Order, though he may be subject to a Trafficking Risk Order. In contrast to a Trafficking Prevention Order, a Trafficking Risk Order is made on application228 to a magistrates’ court in circumstances where the defendant is not convicted of a trafficking-related offence, but poses a risk of committing such an offence229 and it is necessary to make the order for the purpose of protecting persons generally, or particular persons, from the physical or psychological harm which would be likely to occur if the defendant committed such an offence.230

225 ‘The CPS response to the Modern Slavery Act 2015’ (n 5). 226 Joint Standing Committee on Foreign Affairs, ‘Hidden in Plain Sight’ (n 69). 227 ibid. 228 s 23(1) Modern Slavery Act 2015. The application can be made by a chief officer of police, an immigration officer, or the Director General of the NCA. 229 ibid s 23(2)(a). 230 ibid s 23(2)(b).

Transparency in Supply Chains  213 Where such an order is granted, it may prohibit the defendant from engaging in foreign travel or may require that he or she provides a name and address to the police. This order applies not only internally but extraterritorially also, and a breach of the order, or indeed, a Prevention Order, whether in their full or interim form,231 may result in the imposition of five years’ imprisonment on indictment, or six months’ imprisonment and/or a fine on summary conviction.232 Although there has been some success in the use of Trafficking Risk Orders both locally and abroad, it has been observed that the same challenges which adversely affect the operationalisation of Prevention Orders also impede the enforcement of Trafficking Risk Orders,233 namely a lack of awareness about its true nature and effect; concerns about the due process implications of such an order in view of the fact that it applies to unconvicted defendants;234 as well as the reality that only magistrates courts, but not crown courts, can grant the order. Notwithstanding these challenges, however, stakeholders in the anti-­trafficking field in the UK remain optimistic that these orders have the real potential to reduce recidivism, as well as protecting victims and potential victims from retaliation and harassment from traffickers and their associates.

XIII.  Transparency in Supply Chains The UN Special Rapporteur on Human Trafficking has reported that private actors, including UK companies, are increasingly becoming implicated in a significant number of trafficking cases. Regrettably, it appears that trafficking in persons has emerged as a key challenge and risk in a wide range of industries and sectors integrated into global markets, such as agriculture, information and communication technology, garments and textiles.235 The existence of trafficking in supply chains not only deprives victims caught up in the tangled web of exploitation of their basic civil and political rights, but tacitly encourages companies to sacrifice the wellbeing of these individuals on the altar of political and financial expediency. To address the challenge of trafficking in supply chains, Californian law-makers passed the California Transparency in Supply Chains Act in 2010,236 followed by British law-makers, who in 2015, enacted section 54 of the Modern Slavery Act 2015. This provision seeks to achieve transparency in supply chains by r­ equiring

231 ibid ss 21 and 28. 232 ibid s 30. 233 Haughey (n 35) 13. 234 Joint Standing Committee on Foreign Affairs, ‘Hidden in Plain Sight’ (n 69). 235 ‘Expert Group Meeting: Human Trafficking & Global Supply Chains’ (12–13 November 2012). 236 Note that there have been doubts raised about the effectiveness of the California Transparency in Supply Chains Act with a 2015 report finding that only 15% of companies required to report under the Act were fully compliant. ‘Components of effective supply chain management’ (Norton Rose Fulbright, 24 March 2018).

214  Law and Practice in England and Wales companies with an annual turnover of over £36 million to publish annual statements on their efforts to combat trafficking in supply chains.237 To date, a number of leading UK companies have resolutely published statements, which increasingly appear prominently on their websites. The requirement to publish these statements is intended to raise awareness on the part of large companies and, in particular, of directors and managers of those companies as to the risk of trafficking occurring in their supply chains, while encouraging them to take due diligence steps to eradicate the risk of this occurring. The requirement also has the objective of instilling confidence in consumers who now have a verifiable means of determining whether they should spend money on the products sold by certain companies or take their money elsewhere where the risk of this money being used to further cement the exploitation of trafficked victims is minimal or non-existent. Despite the undeniable importance of raising due diligence standards among corporate entities operating in the UK, there is a real concern on the part of a number of stakeholders that the publication of the statements by companies annually has become nothing more than a box-ticking exercise, and that, in any event, the vast differences in the overall quality and variations between the statements published has meant that comparative assessments of efforts taken by companies to combat trafficking in supply chains has been difficult.238 Another important issue raised by stakeholders lies in the fact that the duties imposed on commercial organisations239 by section 54 of the Act are merely enforceable by the Secretary of State bringing civil proceedings in the High Court for an injunction, rather than through the imposition of commensurate penalties, which may have otherwise served as a greater incentive to ensure compliance. This position has been defended by policymakers who argue that the principal enforcement mechanism is not judicial in nature, but pressure applied by consumers, investors and NGOs where an organisation is perceived to have taken insufficient steps.240 However, there is a real risk that the current relatively laissez-faire system of enforcement characterised by the court’s intervention only at last resort may inadvertently create a culture of impunity among some companies. This is especially the case in light

237 s 54(1) Modern Slavery Act 2015. 238 ‘Submission to the Joint Standing Committee on Foreign Affairs, Defence and Trade for the Inquiry into establishing a Modern Slavery Act in Australia by the Advisor Committee of the Modern Slavery Registry’ (n 135). 239 ‘Submission to the UN Special Rapporteur on Contemporary forms of Slavery’ (n 89). Noting that at time of writing, a Private Member’s Bill – Modern Slavery (Transparency in Supply Chains) Bill – was being debated. The primary purpose of this Bill is to explicitly extend the obligation to produce a supply chain statement to public bodies, and to require contracting authorities to exclude from procurement procedures economic operators who have not provided such a statement. 240 ‘Modern slavery and human trafficking A comparative analysis of existing and emerging legislation in the United Kingdom, Australia, Hong Kong and Singapore’ (Norton Rose Fulbright, March 2018).

Conclusion  215 of the fact that there does not appear to be a central registry for m ­ onitoring the timeliness of the publication and the overall quality of the statements published.241

Conclusion This chapter has demonstrated that human trafficking is a real and pressing issue that continues to challenge policymakers in the UK to develop innovative solutions to keep apace with its quickly evolving dynamics. Perhaps the biggest innovative solution of the twenty-first century is the enactment of the Modern Slavery Act, which criminalises human trafficking and robustly penalises those found to have perpetrated the offence, while also affording victims of trafficking the chance to be correctly identified, referred and supported. Despite the impressive list of measures introduced by the Act, namely, prevention and risk orders, compensation orders and regulations on transparency in supply chains, the Act and attendant state practice have not escaped criticism. These criticisms, which have been amply explored in the foregoing sections, touch and concern the weaknesses inherent in the manner in which trafficking is investigated and victims identified, and the nature of the support and assistance afforded to victims. While recent case law has done much to buttress the UK’s protection of trafficked victims, it is clear from the extensive discussion above that, in some respects, only pyrrhic victories are being won in the Sisyphean struggle against human trafficking. Whether these pyrrhic victories are exacerbated by the UK’s ‘Brexit’ from the European Union is yet to be seen.

241 GRETA, Report concerning the implementation of the Council of Europe Convention on Action against Trafficking in Human Beings by the United Kingdom (n 20) [104]. GRETA cited a report from the Chartered Institute of Procurement and Supply which indicated that one in five UK supply chain managers who fall under the new rules were unaware of the requirements: 38% of them could not say when their first modern slavery report is expected; 40% had not read the government guidance; and more than half of the managers indicated that they lacked the skills to deal with modern slavery in their supply chains.

6 Normative Aspects of Caribbean Anti-Trafficking Law and Practice Introduction As discussed in chapter one, although there are credible reports that human trafficking does in fact occur in multiple Commonwealth Caribbean countries, it has been widely acknowledged that the phenomenon largely remains both underresearched and poorly theorised. The poorly developed state of affairs with regard to the existing literature on human trafficking in the region has meant that the effectiveness of legal interventions to combat human trafficking has to date not been fully appreciated, which naturally has implications in relation to the manner in which anti-trafficking law and policy are both conceived and applied in practice. Indeed, notwithstanding the enactment of anti-trafficking legislation in 18 Commonwealth Caribbean territories and islands over the last 15 years, the region continues to be drawn into the spotlight for supposedly not doing enough to combat the scourge of human trafficking. However, to fully appreciate the existing state of affairs and the supposed shortcomings that have been alleged to characterise the region’s approach to human trafficking, unbiased research, uninfluenced by geopolitical and ideological factors, must necessarily be undertaken. It is against this backdrop that this chapter, as well as chapters seven and eight, have been conceptualised. More specifically, the aim of this chapter is to interrogate the normative aspects of anti-trafficking law and practice in the Commonwealth Caribbean in an effort to provide an original, incisive and critical analysis of anti-trafficking law and practice. The overarching goal, in this context, is to assess, from an Analytical Eclectic perspective, whether there has existed or continues to exist a ‘­disconnect’ between anti-trafficking law and the attendant practice of Commonwealth Caribbean States.

I.  Domestic Legal Framework The 18 Commonwealth Caribbean countries whose law and practice on human trafficking will be assessed in this monograph are common law jurisdictions, whose

Domestic Legal Framework  217 legal systems are, in general, based on the English legal system. It is noteworthy, however, that Guyana and St Lucia represent slightly nuanced legal traditions in this connection in that, in the case of the former, there is a strong Roman–Dutch legal heritage that complements its common law tradition, while, in the case of the latter, remnants of the French civil law legal tradition operate alongside the common law. For the purposes of this monograph, however, these differences are largely inconsequential, since anti-trafficking law enacted in these countries to date are closely aligned with the English legislative tradition. As constitutional democracies, the respective Commonwealth Caribbean territories and islands adhere to the doctrine of separation of powers, so that the responsibility for devising and enforcing policy on human trafficking lies with the executive, the mandate to enact legislation to combat human trafficking lies with the legislature, while the judiciary, as an independent arm of the state, is charged with the responsibility of applying anti-trafficking law to individual cases. Because the respective territories and islands also adhere to the rule of law, anti-trafficking laws must necessarily be free from vagueness and uncertainty, and must comply with myriad constitutional norms, including the right to a fair trial. The Judicial Committee of the Privy Council (JCPC) is the highest appellate Court for the majority of Commonwealth Caribbean territories and islands examined by this monograph, with the exception of Barbados, Belize, Dominica and Guyana, whose final appellate court is the Caribbean Court of Justice (CCJ), whose headquarters is in Trinidad and Tobago. In most cases, however, the majority of trafficking cases, unless appealed, will either be adjudicated upon in the magistrates court, which is at the lowest end of the hierarchy of courts, or in the High Court, which is positioned just below the Court of Appeal. In so far as anti-trafficking legislation is concerned, the majority of the Commonwealth Caribbean territories and islands examined by this monograph have either amended existing laws1 or enacted specific laws2 to prevent and combat human trafficking, assist victims of trafficking and prevent against the continued occurrence of the phenomenon. These laws have necessarily been enacted pursuant to the Palermo Protocol which, at the time of writing, has been ratified or acceded

1 Anguilla Criminal Code (Act 14/2009); British Virgin Islands Criminal Code (Amendment) Act 2007 (Act 3/2007); US Virgin Islands Code Annotated Chapter 134 (and Chapter 81). 2 Antigua and Barbuda Trafficking in Persons (Prevention) Act 2010 (Act 12/2010); Bahamas Trafficking in Persons (Prevention and Suppression) Act 2008; Barbados Trafficking in Persons Prevention Act 2016; Belize Trafficking in Persons (Prohibition) Act 2013; Bermuda Transnational Organised Crime Act 2013; Cayman Islands Trafficking in Persons (Prevention and Suppression) Law 2007; Dominica Transnational Organized Crime (Prevention and Control) Act, 2013; Grenada Prevention of Trafficking in Persons Act 2014; Guyana Combating of Trafficking in Persons Act 2005 (Act 2/2005); Jamaica Trafficking in Persons (Prevention, Suppression and Punishment) Act 2007 St Kitts and Nevis Trafficking in Persons (Prevention) Act 2008 (Act/32 2008); St Lucia Counter-Trafficking Act 2010 (Act 7/2010); St Vincent and the Grenadines Prevention of Trafficking In Persons Act 2011; Trinidad and Tobago Trafficking in Persons Act 2011 (Act 14/2011); Turks and Caicos Islands Trafficking in Persons (Prevention) Ordinance 2016 (Ordinance 1 of 2016) (Trafficking in Persons: hereafter TIP).

218  Normative Considerations to by the 12 independent countries that comprise the Commonwealth Caribbean, beginning with Antigua and Barbuda in 2002 and culminating with Barbados in 2016. The enactment of anti-trafficking law, in this regard, was necessary to give domestic effect to the provisions of the Palermo Protocol, since the respective Commonwealth Caribbean territories and islands, like the United Kingdom, are dualist jurisdictions under international law, which effectively means that international anti-trafficking law is not binding, in a de jure sense, in their domestic jurisdictions unless specifically incorporated into domestic law.

II.  Normative Considerations The first part of this chapter addresses the normative aspects of Caribbean antitrafficking law and practice. More specifically, it seeks to examine the evolving norms which inform the investigation and penalisation of human trafficking in the region from an Analytical Eclectic perspective. The conclusion ultimately arrived at is that while these norms exist as a matter of law, and are largely consistent with international anti-trafficking law, a number of theoretical and operational challenges continue to arise in practice, which suggest the need for action on a legislative and policy front.

A.  Criminalising Human Trafficking As explained in chapter three, the Commonwealth Caribbean countries examined by this monograph are under a positive obligation to effectively criminalise human trafficking and other trafficking related offences. This obligation is expressly provided for in a number of international instruments, including the Palermo Protocol,3 the American Convention on Human Rights,4 the Convention on the Rights of the Child5 and the Convention on the Elimination of All Forms of Discrimination Against Women.6 In this context, as intimated above, a number of Commonwealth Caribbean states have either amended existing legislation or enacted specific legislation aimed at criminalising human trafficking and related practices. In reviewing the relevant pieces of domestic anti-trafficking legislation applicable in the Commonwealth Caribbean, it is immediately apparent that the said

3 Art 5(1) Palermo Protocol. 4 Art 6 American Convention on Human Rights (adopted 22 November 1969, entered into force 18 July 1978) 1144 UNTS 123. 5 Art 5 Convention on the Rights of the Child (adopted 20 November 1989, entered into force 2 September 1990) 1577 UNTS 3. 6 Art 6 Convention on the Elimination of All Forms of Discrimination against Women (adopted 18 December 1979, entered into force 3 September 1981).

Normative Considerations  219 legislation is, in large measure, compliant with international law in so far as the definition of human trafficking is concerned. Indeed, each country’s legislation, including that of Montserrat,7 which has a population of just over 6,000 people, expressly criminalise the trafficking of adults along the ‘acts’, ‘means’ and ‘purpose’ continuum,8 though there are admittedly slight nuances in terms of terminology used. More specifically, the respective countries’ legislation prohibit the acts of recruitment, transportation, transfer, harbouring or receipt of persons where they are engaged in by means of threat or use of force or other forms of coercion, abduction, fraud, deception, the abuse of power, the abuse of a position of vulnerability or the giving or receiving of payment or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Although the notion of ‘exploitation’ is not exhaustively defined in most regional jurisdictions, there are some jurisdictions, such as Belize,9 The Bahamas,10 Bermuda11 and Guyana,12 whose legislation use exhaustive language to define ‘exploitation’. The use of the phrase ‘exploitation means’ instead of ‘exploitation includes’ in these four countries effectively means that although traditional forms of exploitation, such as slavery13 and practices similar to slavery,14 forced labour,15 servitude,16 sexual exploitation,17 and the illicit removal of organs18 are accounted 7 s 211 Montserrat Penal Code CAP 4:02. Note also s 140 (dealing in slaves); s 141 (dealing in people under 18 for sexual exploitation); s 142 (removal of body parts of persons under 18); s 143 (engagement of persons under 18 in forced labour). 8 ss 245 and 247 Anguilla Criminal Code; s 2 Antigua and Barbuda TIP Act; s 2 Bahamas TIP Act; s 3 Barbados TIP Act; s 2 Belize TIP Act; s 5 Bermuda Transnational Organised Crime Act; s 210A ­British Virgin Islands Criminal Code; s 3 Cayman Islands TIP Act; s 8 Dominica Transnational Organized Crime Act; s 9 Grenada TIP Act; s 2 Guyana TIP Act; s 4 Jamaica TIP Act; s 2 Trinidad and Tobago TIP Act; s 2 St Kitts and Nevis TIP Act; s 2 St Lucia TIP Act; s 2 St Vincent and the Grenadines TIP Act; s 7 Turks and Caicos TIP Ordinance; ss 133 and 134 US Virgin Islands Criminal Code. cf s 211 of the Montserrat Penal Code does not appear to require the ‘exploitation’ element to be proved once the ‘acts’ of arrangement, organising or procuring the reception, concealment or harbouring of a victim exist by ‘means’ or ‘deception’. 9 s 2 Belize TIP Act. 10 s 2 Bahamas TIP Act. 11 s 5(6) Bermuda Transnational Organised Crime Act. 12 s 2(e) Guyana TIP Act. 13 ‘Slavery’ is defined in most TIP Acts as the status or condition of a person over whom any or all the powers attaching to the right of ownership are exercised. 14 ‘Practices similar to slavery’ is defined in most TIP Acts as including debt bondage, serfdom, forced or servile marriages and delivery of children for exploitation. 15 ‘Forced Labour’ is defined in most TIP Acts as labour or services obtained or maintained through force, threat of force, or other means of coercion or physical restraint. 16 ‘Servitude’ is defined in most TIP Acts as a condition of dependency in which labour or services of a person are provided or obtained by threats of serious harm to that person or another person, or through any scheme, plan or pattern intended to cause the person to believe that, if the person did not perform such labour or services, that person or another person would suffer serious harm. 17 ‘Sexual Exploitation’ is defined in most TIP Acts as the prostitution of a person or engaging in any other form of commercial sexual exploitation, including but not limited to pimping, pandering, procuring, profiting from prostitution, maintaining a brothel and child pornography. 18 ‘Illicit removal of organs’ is defined in most TIP Acts as the unlawful removal of organs, tissue or body parts from a victim irrespective of whether the victim consented to it and where the removal is not a legitimate medical procedure for which proper consent has been obtained.

220  Normative Considerations for, ­uncertainty necessarily arises as to whether their legislation is meant to cover the quickly evolving dynamics of human trafficking, including the trafficking of persons for criminal exploitation, such as the cultivation and production of cannabis, a challenge currently facing the UK, the trafficking of persons for the purpose of obtaining welfare benefits, and the trafficking of children for the purposes of adoption,19 among other things. Notwithstanding this, however, it appears that the legislation in countries like Antigua and Barbuda, and Trinidad and Tobago, expressly contemplates ‘any illegality activity’20 and the ‘transport of illegal items’,21 respectively. Trinidad’s anti-trafficking legislation also contains a nuanced form of exploitation, namely trafficking for ‘ritual purposes’, which is defined in section 3 of that country’s Act to mean the use of a victim, the victim’s body parts or blood for the conduct of spiritual, religious or occult practices or such other ceremonies and rituals. Although there have been no judicial challenges in the region on the narrow question of whether the criminalisation provisions contained in the respective pieces of legislation are unconstitutional, in other jurisdictions like Canada, the argument has been raised, albeit unsuccessfully, that, in attempting to criminalise human trafficking, the legislature has enacted vague and over-broad provisions that lack the necessary quality of legal certainty. More specifically, in the Ontario Supreme Court case of R v D’Souza,22 the defendant contended that because the Criminal Code of Canada did not define certain terminologies used in respect of human trafficking, it should be struck down for being unconstitutional. The Court, however, adopted a pragmatic approach to this question, finding that: It is not at all unusual for a criminal offence to include terminology that is not defined by the legislators. We rely upon the courts, with input from litigators and counsel, in an adversarial process, to interpret the meaning of certain words and to decide whether a given accused’s conduct falls within the scope of the offence in question.23

The Court then addressed the question of whether the terminologies used in the challenged legislation were unduly complicated such that they were uncertain. To this question, the Court’s response was simply that: The words used have common, ordinary meanings that are generally well known to the citizenry. In the simplest language possible, ‘recruit’ means to enlist or get someone involved. ‘Transport’ means to take from A to B. ‘Transfer’ means to hand over. ‘Receive’ means to take or accept. ‘Hold’ means to keep or maintain. ‘Conceal’ means to hide or keep secret. ‘Harbour’ means to shelter. To exercise ‘control, direction or influence over’ means to affect. To ‘facilitate’ something means to make it easier. ‘Benefit’ means an advantage or gain.24

19 Note

that this is covered by s 12 of the Belize TIP Act. 2 Antigua and Barbuda TIP Act. 21 s 2 Trinidad and Tobago TIP Act. 22 R v D’Souza 2016 ONSC 2749. 23 ibid [141]. 24 ibid [146]. 20 s

Normative Considerations  221 Aside from confirming that once the essential elements of human trafficking are ascertainable in advance there can be no argument that the principles of fundamental justice are compromised,25 the Court also found, quite instructively, that ‘it is relevant but not necessary that the complainant felt exploited or that s/he was, in fact, exploited’.26 In short, once there is sufficient evidence that go to establishing the ‘acts’ and ‘means’ element, proof only of an attendant intention to engage in exploitation is required. On another note, in addition to criminalising the substantive offence of human trafficking, the respective pieces of regional legislation also criminalise predicate offences, including conspiracy to commit trafficking, incitement, and aiding and abetting the commission of the offence.27 Quite progressively also, myriad ­trafficking-related offences are criminalised by the respective pieces of legislation, including unlawfully procuring, destroying, concealing, removing, confiscating or possessing a person’s travel document or identification document;28 transporting a person for the purpose of exploiting that person’s prostitution;29 knowingly receiving a financial benefit from trafficking in persons;30 transporting, for commercial gain, a trafficked person in a conveyance without ensuring that that person is in possession of a lawful travel document;31 and, in the case of Belize and Grenada, making available financial services or facilities intending or having reasonable grounds to believe that they would be used to commit a trafficking offence;32 using printed or electronic media platforms to promote trafficking in persons;33 ­knowingly permitting a meeting designed for the purpose of facilitating t­ rafficking

25 ibid [34]. 26 ibid [130]; see also s 19(a) Antigua and Barbuda TIP Act; s 14(a)–(b) Grenada TIP Act; s 12(a)–(b) Turks and Caicos TIP Ordinance. 27 s 14(b)–(c) Antigua and Barbuda TIP Act; s 3(1) Bahamas TIP Act; s 7 Barbados TIP Act; s 11 Belize TIP Act; s 8(3) Bermuda Transnational Organised Crime Act; ss 3(1) and 5(1) Guyana TIP Act; s 8A Jamaica TIP Act; ss 3(1) and 5(1) St Kitts and Nevis TIP Act; ss 5(1) and 7(1) St Lucia TIP Act; ss 5(1) and 7(1) St Vincent and the Grenadines TIP Act; s 23(1) Trinidad and Tobago TIP Act; ss 8(c) and 20 Turks and Caicos Islands TIP Ordinance. 28 s 22 Antigua and Barbuda TIP Act; s 4(1) Bahamas TIP Act; s 6 Barbados TIP Act; s 23 Belize TIP Act; s 3(7) Cayman Islands TIP Act; s 17 Grenada TIP Act; s 4 Guyana TIP Act; s 4(7) Jamaica TIP Act; s 3(4) St Kitts and Nevis TIP Act; s 6 St Lucia TIP Act; s 6 St Vincent and the Grenadines TIP Act; s 20 Trinidad and Tobago TIP Act; s 15 Turks and Caicos Islands TIP Ordinance. 29 s 5(1) Bahamas TIP Act; s 7 Barbados TIP Act; s 5(1) Guyana TIP Act; s 5(1) St Kitts and Nevis TIP Act; s 7(1) St Lucia TIP Act; s 7(1) St Vincent and the Grenadines TIP Act; s 23 Trinidad and Tobago TIP Act; s 23 Trinidad and Tobago TIP Act; s 20 Turks and Caicos Islands TIP Ordinance. 30 s 6(7) Antigua and Barbuda TIP Act; s 4(2) Bahamas TIP Act; s 8 Barbados TIP Act; s 3(8) Cayman Islands TIP Act; s 3(1)(a) Dominica Transnational Organized Crime Act; s 12 St Kitts and Nevis TIP Act; s 15 St Lucia TIP Act; s 13 St Vincent and the Grenadines TIP Act; ss 25 and 26 Trinidad and Tobago TIP Act; s 11 Turks and Caicos Islands TIP Ordinance. 31 s 27 Antigua and Barbuda TIP Act; s 19 Belize TIP Act; s 27 Guyana TIP Act; s 20(2) St Kitts and Nevis TIP Act; s 32 St Lucia TIP Act; s 31 St Vincent and the Grenadines TIP Act; s 21 Turks and Caicos Islands TIP Ordinance. 32 s 5(1) Belize TIP Act; s 19 Grenada TIP Act. 33 s 16 Belize TIP Act; s 18(b) Grenada TIP Act.

222  Normative Considerations in persons on one’s premises, room or place;34 and making, obtaining, giving, selling or possessing a fraudulent travel or identity document for the purpose of facilitating trafficking in persons.35 Antigua and Barbuda’s TIP Act also contains a number of other trafficking-related offences, including debt bondage,36 using the services of a trafficked victim;37 tipping off about an ongoing police investigation into a trafficking offence;38 and the unlawful disclosure of information about a victim’s identity.39 Interestingly, the Turks and Caicos TIP Ordinance contains an atypical provision which raises the question of how effectively it will be enforced in practice, namely the offence of failing to report to the police one’s reasonable suspicion that a person might have been trafficked.40 It is also noteworthy that some pieces of anti-trafficking legislation in the region criminalise the threatening, assaulting or obstructing of a police officer in the lawful execution of his duties.41 Although this is a pragmatic approach which affords law enforcement officers the requisite protection that they need to effectively execute their duties without being subject to intimidation and harassment, it is regrettable that only Trinidad and Tobago’s legislation expressly extends this protection to ‘social worker(s), shelter worker(s), case management worker(s) or any worker’.42 That said, it should be noted that aside from criminalising the trafficking of adults, the legislation in the respective countries also criminalise child trafficking43 which, in keeping with international law, arises where the ‘acts’ and ‘purpose’ elements are satisfied by available evidence. In this connection, there is no need for prosecutors to proffer evidence that establishes the ‘means’ element, though in most cases in practice, there is evidence of the threat or use of force, coercion, deception and the abuse of the child’s position of vulnerability. That said, it is arguable that legislators in Grenada, and the Turks and Caicos Islands, respectively, did not expressly address their minds to the delineation between adult and child trafficking, since there is no mention in section 10 of the Grenada TIP Act nor section 12 of the Turks and Caicos Islands TIP Act that the ‘means’ element is not required to be satisfied in order for the offence of child trafficking to be made out. 34 s 17 Belize TIP Act; s 18(a) Grenada TIP Act. 35 s 21 Antigua and Barbuda TIP Act; s 16 Grenada TIP Act. 36 s 17(1) Antigua and Barbuda TIP Act; see also s 10 Turks and Caicos Islands TIP Ordinance. 37 s 18 Antigua and Barbuda TIP Act. 38 ibid s 44. 39 ibid s 62. 40 s 42 Turks and Caicos Islands TIP Ordinance. 41 s 41 Grenada TIP Act; s 15 Jamaica TIP Act; s 14 St Kitts and Nevis TIP Act; s 15 St Lucia TIP Act; s 18 St Vincent and the Grenadines TIP Act; s 38 Turks and Caicos Islands TIP Ordinance. 42 s 14 Trinidad and Tobago TIP Act. 43 s 9(2) Antigua and Barbuda TIP Act; s 3(4) Bahamas TIP Act; s 4(2) Barbados TIP Act; s 11(3) Belize TIP Act; s 5(5) Bermuda Transnational Organised Crime Act (note that there is likely a drafting error in this section, since the absence of the ‘means’ element is addressed from the perspective of persons over the age of 18 instead of persons under 18 years); s 210A(3) BVI Criminal Code; s 3(3) Cayman Islands TIP Act; s 10(2) Dominica Transnational Organized Crime Act; s 3(2) Guyana TIP Act; s 4(3) Jamaica TIP Act; s 10 Jamaica Child Care and Protection Act 2004; s 3(2) St Kitts and Nevis TIP Act; s 5(2) St Lucia TIP Act; s 5(2) St Vincent and the Grenadines TIP Act; s 3 Trinidad and Tobago TIP Act.

Normative Considerations  223 More generally, another important consideration that must be borne in mind is that the alleged consent of a victim of trafficking to the intended or realised exploitation does not, as a matter of law, absolve an accused person from liability for the offence of human trafficking.44 This principle is expressly provided for in both international and domestic law. On a final note, it should be borne in mind that most of the legislation in the region not only apply to natural persons, but also to corporate bodies,45 ­including their directing and/or controlling mind.

B.  Penalising Traffickers and their Associates The penalisation of traffickers and their associates is not only consistent with a state’s positive obligation under international law, but it also serves to recognise and correct the egregious wrongs committed against trafficked victims and prevent against impunity. In this context, it should not come as a surprise that each of the Commonwealth Caribbean countries examined by this monograph have enacted terms of imprisonment ranging from three years’ imprisonment to life imprisonment in respect of the trafficking of adults and children. Although, in some cases, these sentences are augmented by, or can be substituted for, fines, in general, the sanctions imposed by regional anti-trafficking legislation are not only consistent with the penalties imposed for similar offences in countries like the United Kingdom, but also appear to be commensurate with the seriousness of trafficking-related offences. Indeed, in a recent Antiguan High Court case – Cheryl Thompson v The Attorney General of Antigua and Barbuda,46 the Court rejected the argument made by a Jamaican businesswoman who was charged with the trafficking of women for sexual exploitation in her nightclub that the penalty provisions in Antigua’s TIP Act were ‘arbitrary, intimidatory or unreasonably’. Instead, as the Court held, the penalties set out in these sections are expressed in terms of the maximum sentence, the trial Judge would have the discretion to tailor the sentence to meet the justice of each case. The provisions provide penalties designed to deter those who may be inclined to commit such offenses.47

44 s 19(a)–(b) Antigua and Barbuda TIP Act; s 9(1) Bahamas TIP Act; s 5(1) Barbados TIP Act; s 25 Belize TIP Act; s 210A(4) BVI Criminal Code; s 3(4) Cayman Islands TIP Act; s 10 Dominica Transnational Organized Crime Act; s 14(a)–(b) Grenada TIP Act; s 9(1) Guyana TIP Act; s 4(4) Jamaica TIP Act; s 9(a) St Kitts and Nevis TIP Act; s 11 St Lucia TIP Act; s 9(1) St Vincent and the Grenadines TIP Act; s 20(1) Trinidad and Tobago TIP Act; s 12(b) Turks and Caicos Islands TIP Ordinance. 45 s 69 Antigua and Barbuda TIP Act; ss 12 and 13 Barbados TIP Act; s 20 Belize TIP Act; s 10 Bermuda Transnational Organised Crime Act; s 4 Cayman Islands TIP Act; s 5 Jamaica TIP Act; s 11 St Kitts and Nevis TIP Act; s 14 St Lucia TIP Act; ss 14 and 15 St Vincent and the Grenadines TIP Act; s 27 Trinidad and Tobago TIP Act; s 54 Turks and Caicos Islands TIP Ordinance. 46 Cheryl Thompson v The Attorney General of Antigua and Barbuda ANUHCV 2011/0830. 47 ibid [36].

224  Normative Considerations Table 1  Table of Sanctions Imposed by Commonwealth Caribbean TIP Acts Offence

Mode of Prosecution

TIP (adult)

Summary

Indictment

TIP (child)

ANU

BAR

BAH

BEL

BER

s.3 – not less than 3y, no more than 5y

s.5(3) – 5y and/or 50k

s.247(1) s.13(6) – 20y – 20y and/or 400k and/or 500k

s.3 – 25y “information” – s.11 – 8y and/or 1m life – not less than 5y

20y and/or fine

Same s.15 – 26y as adult and/or 1m sanction

Life and/or Same as adult 2m sanction

BVI

CAY

s.201A(2) – s.3(6) – 10y 14y and/or 5k

Summary Indictment

Destroying etc travel/ID

AXA

Summary

s. 22 – 2y and/or 150k

Indictment

20y and/or 400k

Transporting Summary for exploiting prostitution

s.4(1) – 3y

s.6 – 20y and/or 250k

s.11 – 12y Same s.201(3) as adult life sanction

Same as adult sanction

s/23 – 5y and/or 10k

10y

s.3(7) – 10y and/or 5k

s.4(3) – 3y

Indictment

s.7 – 25y 10y and/or 1m

Receiving financial benefit from TIP

Summary

s.4(2) – 3y and/or 10k

Indictment

s.13(7) – 20y and/or 400k

Transporting using conveyance without due diligence

Summary

s.27 – 2y.150k

Indictment

20y and/or 400k

Making financial services/ facilities available

Summary

s.24 – 2y/150k

Indictment

5y/50k

Promoting TIP using media platforms

Summary

s.8–25y 10y and/or fine and/or 1m (adult) or life and/or 2m (child)

s.3(8) – 10y and/or 5k

s.16 – 8y

Indictment

AXA – Anguilla ANU – Antigua and Barbuda BAR – Barbados BAH – The Bahamas BEL – Belize BER – Bermuda

BVI – The British Virgin Islands CAY – The Cayman Islands DOM – Dominica GND – Grenada GUY – Guyana JAM – Jamaica

MNI – Montserrat SKN – St Kitts and Nevis SLU – St Lucia SVG – St Vincent and the Grenadines T&T – Trinidad and Tobago TCI – Turks and Caicos Islands

Normative Considerations  225

DOM

GND

GUY

s.9(7) – 7y and/or 250k

s.3(1) – no less than 3y, no more than 5y

s.13 – 15y s.11 – 30y and/or 2m and/or 1m

Not less than 5y; life

s.4(6) – 20y s. 211 – 20y and/or and/or 500k fine

s.3 – 20y and/or 150k

s.13 – life

Same as adult sanction

s.10 Child Care & Protection Act – 20y

Same as adult sanction

s.10 – 25y and/or 1m

JAM

MNI

SKN

SLU

SVG

T&T

TCI

s.5(1) – 5y

s.16 – 6y and/or 250k

s.5(1) – 15y s.16 – not and/or 250k less than 15y

Same as adult sanction

Same as adult sanction

s.7(2) – 10y and fine

s.18 – not s.9 – 14y less than and/or fine 20y and/or 1 mil

s.6 – 2y or 10k s.4 – 5y and 1m

s.4(7) 10y and/or fine

s.4 – 20y and/or 250k

s.5(2) – 3y to 5y and 1m

s.6 – 12y s.22 – 12 and/or 100k and 350k s.7 – 5y and or 100k

s.5 – 20y and/or 250k

s.7(1) – 12y s.23(1) – and/or 100k 12y and 350k

s.20 – 10y and/or fine

s.12 – 10y s.15 – 5y and/or and or 100k 100k

s.13 – 10k or s.26 – 20y 200k and/or 500k

s.11 – 10y or fine

s.31 – 2y and/or 200k

s.21 – 5y and/or 50k

s.13 – 2y and/or 20k s.4(8) – 20y and/or fine

s.32 – 6months or 5k

s.18 – 10y or fine s.18 – 20y and/or 50k s.17 – 10y and/or fine

(continued)

226  Normative Considerations Table 1  (Continued) Offence Permitting premises to be used for TIP meeting

Mode of Prosecution

AXA

ANU

BAR

BAH

BEL

BER

BVI

CAY

Summary Indictment

Making etc Summary fraudulent ID for TIP Indictment Debt bondage Summary

Indictment Using victim’s Summary services

s.17 – 5y and/or 10k s.21 – 2y and/or 150k 20y and/or 400k s.17 – 2y and/or 50k s.17 – 30y and/or 400k s.18 – 2y and/or 50k

Indictment Tipping off

Summary

Indictment Unlawful disclosure of victim’s information

Summary

Harbouring/ interfering with arrest of perpetrator

Summary

Threatening/ assaulting police/antiTIP workers

Summary

Facilitating child adoption

Summary

s.62 – 2y or 10k

Indictment

Indictment

Indictment s.12 – 10y and/or 500k

Indictment Public officer committing TIP

Summary Indictment

s.22 – 15y

Intimidating/ Summary Harassing witness

s.8(2) – 5y and/or 50k

Indictment TIP by body corporate

Summary Indictment

10y and/or 100k s.12 – 5mil s.20 – 10y and/or 100k

s.4 – 10y and/or 5k (director); 10k body corporate

Normative Considerations  227

DOM

GND

GUY

JAM

MNI

SKN

SLU

SVG

T&T

TCI

s.18 – 20y and/or 50k s.17 – 10y and/or fine s.16 – 20y and/or 500k

s.14 – 2y and/or 20k 5y and/or 50k

s.12 – 7y and/or 250k s.10 – 10y and/or fine

s.42 – 2y and/or 150k

s.20 – 20y and/or 200k

s.19 – 14y and/or fine s.14 – 3y and/or 15k

s.21(5)–25y

s.5(1) – 20y and/or fine

s.14 – 2y and or 5k

S.14 – 2mil

s.27 – 5 mil

228  Normative Considerations The penalties prescribed for the various trafficking-related offences, on a per country basis, are indicated in Table 1 below. These penalties may be increased where certain aggravating circumstances48 are found to exist, including: a. b. c. d. e. f. g. h. i. j. k. l. m. n. o.

The offence involves serious injury or death of the trafficked person or another person, including death as a result of suicide. The offence involves a victim who is particularly vulnerable, including a pregnant woman or a child. The offence exposed the trafficked person to a life-threatening illness. The trafficked person is physically or mentally handicapped. The offence involves more than one trafficked person. The offence was committed as part of the activity of an organised criminal group. Drugs, medications or weapons were used in the commission of the offence. The trafficked person is a child who was adopted for the purpose of trafficking. The offender has been previously convicted for the same or similar offences. The convicted person is a public officer and the offence was committed when the officer was purporting to act officially. The offender is a spouse or the conjugal partner of the trafficked person. The offender is in a position of responsibility or trust in relation to the ­trafficked person. The offender is in a position of authority concerning the trafficked person who is a child. The offence was committed by means of abuse of the vulnerability of the ­trafficked person. The offence is committed by – i. a police officer; ii. an immigration officer; iii. a customs officer; iv. a prison officer; or v. any other person or public officer having the coercive power of arrest under this or any other written law.

i.  Mode of Trial Given the unarguable seriousness of trafficking-related offences, it is perhaps axiomatic that, in general, the mode of trial contemplated by the respective Commonwealth Caribbean anti-trafficking legislation is ‘on indictment’ before the High Court. That said, it should be noted that human trafficking is triable 48 s 248 Anguilla Criminal Code; s 16 Antigua and Barbuda TIP Act; s 8 Bahamas TIP Act; s 5 Belize TIP Act; s 6 Bermuda Transnational Organised Crime Act; s 11 Grenada TIP Act; s 8 Guyana TIP Act; s 4A Jamaica TIP Act; s 5 St Kitts and Nevis TIP Act; s 10 St Lucia TIP Act; s 8 St Vincent and the Grenadines TIP Act; s 21 Trinidad and Tobago TIP Act.

Normative Considerations  229 e­ xclusively on ‘summary conviction’ in the magistrates court in St Lucia, while the legislation in most other Caribbean countries provides for dual modes of trial  – ‘on summary conviction’ and ‘on indictment’. The terminology used to describe an indictable mode of trial in the Bahamas, namely ‘trial on information’ is, however, slightly dubious and indeed different from that which obtains elsewhere in the Commonwealth Caribbean, as was recently held by the JCPC in Attorney General v Hall.49 That case concerned a Jamaican female trafficker who was tried in the High Court and convicted of human trafficking, but who later challenged the lawfulness of her trial on the ground that an improper mode of trial was followed. While the Court accepted, on a related point that the Attorney General was unable to proffer a Voluntary Bill of Indictment since the offence of human trafficking in The Bahamas was triable either way and not by a judge and jury only, the crux of the judgment, for the purposes of this discussion, lies in the Court finding that in some respects the usage of terms in the criminal procedure of the Bahamas differs from that encountered elsewhere in the Caribbean and in other common law jurisdictions such as England and Wales. One particular difference, on which all appearing before the Court of Appeal and the court itself were agreed, relates to the use of the expression ‘trial on information’. In the particular usage of the Bahamas, at least in modern times, the expression ‘on information’ in relation to trial or conviction refers to proceedings in the Supreme Court before judge and jury. In that, it differs from the use of ‘information’ in most Caribbean countries and in England, where that term relates to the commencement of process before the magistrates, and where trial before judge and jury is normally referred to as trial ‘on indictment’. ‘On summary trial’ and ‘on summary conviction’, however, refer in the Bahamas, as elsewhere, to trial by a magistrate.50

Naturally, the sentences that may be imposed in the magistrates court pale in comparison to those which can be imposed in the High Court, since the High Court is a superior court of record. As such, the importance of correctly specifying the appropriate mode of trial in respect of trafficking-related offences is not merely of aesthetic importance but, as recent case law has demonstrated, of profound constitutional significance. More specifically, in the Antigua Eastern Caribbean Supreme Court case of Cheryl Thompson v The Attorney General of Antigua and Barbuda,51 briefly discussed above, the question arose as to the constitutionality of various provisions of Antigua’s TIP Act which purported to confer summary jurisdiction on magistrates to impose sentences of up to 25 years on persons convicted of trafficking-related offences. The claimant argued that the maximum periods of imprisonment that could have been imposed under the TIP Act by magistrates were very much in excess of the maximum period of



49 Attorney

General v Hall [2016] UKPC 28. [3]. 51 ANUHCV 2011/0830. 50 ibid

230  Normative Considerations imprisonment that ­magistrates could impose under the Misuse of Drugs Act or any other Act, and that, in any event, the sentencing powers conferred on the magistrates court by the TIP Act were without precedent in any other democratic common law jurisdiction. In this connection, the claimant contended that the jurisdiction that the Supreme Court has traditionally exercised in imposing severe sentences of imprisonment had effectively been altered by the TIP Act in a manner that was unconstitutional. In finding for the claimant, the Court held that trafficking-related offences are in the nature of serious offences, and that although these offences were relatively new to the statute books of Antigua and Barbuda, Parliament considered the offences so serious as to provide penalties for their violation that are comparable to life sentences. In this regard, the Court had no doubt that the trial of these serious criminal offences formed a significant part of the jurisdiction that has historically characterised the High Court. To this end, the Court concluded that the provisions of the TIP Act were in conflict with section 47 of the Constitution (which specifies the manner in which Parliament could lawfully alter the Constitution). Having regard to section 2 of the Constitution (the supremacy clause), the Court held that the impugned provisions were inconsistent with the Constitution, and that, accordingly, the Constitution had to prevail. As such, the TIP provisions had, to the extent of the inconsistency, been rendered void. Citing the now infamous Commonwealth Caribbean constitutional case of Hinds and Others v The Queen,52 the Court concluded that: [I]f the jurisdiction to try these offenses were to remain with the Magistrates Court, the individual citizen could be deprived of the safeguard, which the makers of the Constitution regarded as necessary, of having important questions affecting his civil or criminal responsibilities determined by a court, composed of judges whose independence from all local pressure by Parliament or by the executive was guaranteed by a security of tenure more absolute than that provided by the Constitution for judges of inferior courts.53

Against the backdrop of this judgment, Antiguan legislators were forced to enact the Trafficking in Persons (Prevention) (Amendment) Act 2015,54 which amends sections 15–18 and 21–27(4) of the main TIP Act so that they now confer jurisdiction on the High Court, rather than the magistrates court, to impose severe sanctions for trafficking-related offences. Suffice it to say, it is noteworthy that in Grenada, some of the existing penalty provisions necessarily raise similar concerns to those that arose in Cheryl Thompson v The Attorney General of Antigua and Barbuda, in that they purport to confer summary jurisdiction on magistrates to impose sanctions of up to 20 years’ imprisonment on persons convicted of trafficking-related offences in a manner that is



52 Hinds

and Others v The Queen (1975) 24 WIR 326 (PC). Thompson v The Attorney General of Antigua and Barbuda (n 46) [46]. 54 (Act 13/2015). 53 Cheryl

Normative Considerations  231 arguably unconstitutional. By way of example, section 16 of Grenada’s TIP Act empowers magistrates to impose a sentence of 20 years’ imprisonment in respect of a person convicted of making, obtaining, giving or possessing fraudulent travel documents for the purpose of committing a trafficking offence. In the same vein, sections 18 and 20 of said Act respectively purport to confer jurisdiction on magistrates to impose a sentence of 20 years’ imprisonment for the offences of knowingly leasing or sub-leasing one’s house or room or building for the purposes of facilitating trafficking or publishing or advertising or broadcasting material that promotes trafficking and harbouring or interfering with the arrest of a trafficker, respectively. Because of the constitutional implications of these provisions, Grenadian legislators are well advised to amend these provisions as a matter of urgency, in order to avoid the exigencies of constitutional litigation.

ii.  Mandatory Minimum Sentences Another issue with which legislators in The Bahamas, Guyana, and Trinidad and Tobago must contend is the question of the constitutionality of the mandatory minimum sentences imposed by their respective TIP Acts in relation to persons convicted of certain trafficking-related offences. By way of example, under section 3 of The Bahamas TIP Act, where the offence of human trafficking is found to have been committed, a magistrate, on summary conviction, may impose a term of imprisonment of not less than three years and no more than five years, while a judge is obliged to impose not less than five years on conviction on information. Similarly, under section 3 of the Guyana TIP Act, a term of imprisonment of not less than three years and not more than five years is contemplated for human trafficking on summary conviction, and not less than five years’ imprisonment on indictment. Meanwhile, in Trinidad and Tobago, under sections 16 and 17 of their TIP Act, a term of not less than 15 years’ imprisonment is contemplated for the trafficking of an adult, while not less than 20 years’ imprisonment is contemplated under section 18 for child trafficking. Although these provisions have not been challenged to date in regional courts, similar mandatory minimum sentencing provisions found in other legislation have been challenged, both at the level of the JCPC and in superior domestic courts. For example, in a recent appeal from the Bermuda Court of Appeal to the Privy Council, the JCPC in Selassie and Pearman v Queen55 considered the question of whether sections 286(A)(2) and 288(1) of the Bermuda Criminal Code 1907 were unconstitutional and therefore void to the extent that they purported to specify mandatory minimum periods prior to eligibility for release in respect of the offence of murder. More specifically, section 286A(2) of the Code provided that ‘any person who is convicted of premeditated murder shall be sentenced to



55 Selassie

and Pearman v Queen [2013] UKPC 29.

232  Normative Considerations imprisonment for life without eligibility for release on licence until the person has served twenty-five years of the sentence’ while section 288(1) provided, first that the sentence for ‘murder’ (as opposed to ‘premeditated murder’) shall be imprisonment for life, followed by the proviso which read: [P]rovided that where any person is sentenced under this section, such person shall, before any application for his release on licence may be entertained or granted by the Parole Board established by the Parole Board Act 2001, serve at least fifteen years of the term of his imprisonment.

The key contention, in this connection, was that these mandatory minimum sentence provisions contravened section 5(1)(a) of the Bermuda Constitution which provides that: [N]o person shall be deprived of his personal liberty save as may be authorised by law in any of the following cases: (a) in execution of the sentence or order of a court … in respect of a criminal offence of which he has been convicted.

Having regard to the legislative background and context of the legislation, the Privy Council found that: The Director’s central contention is that, just as in the Robinson case the Court of Appeal held, at para 18, that the vice of specifying a minimum period in the proviso in section 288(1) was the imposition of a tariff ‘regardless of the circumstances of the individual case and offender’, the vice of specifying a maximum period in the two sections is the same: for the specifying of a period, whether minimum or maximum, is arbitrary.56 At a level of generality, the Director’s argument is right: it is as arbitrary to impose a maximum as it is to impose a minimum period. Nevertheless, the argument misses the point. For it is through the prism of a deprivation of liberty that the analysis must be conducted. In Engel v The Netherlands (No1) (1976) 1 EHRR 647 the ECtHR stated at para 58 (and it has repeated it many times since) that the aim of article 5(1) ‘is to ensure that no one should be dispossessed of [his] liberty in an arbitrary fashion’. A period of detention will be arbitrary if it is not proportionate to the offence and other relevant circumstances: R v Governor of Brockhill Prison, ex p Evans (No2), [2001] 2 AC 19, 38 (Lord Hope). An arbitrary provision, such as the specification of a maximum period, which disables a court from depriving a person of his liberty (or, in this case, of the chance of regaining it) for longer than the specified period, even in the light of the circumstances, is entirely, and inversely, different. Maximum periods, albeit usually of terms of imprisonment rather than of periods prior to eligibility for release, are written across large tracts of criminal legislation. There is no vice in them (emphasis added).57

It, therefore, seems that if the applicable piece of legislation is not proportionate in that it does not grant any discretion to the judicial officer with respect to the imposition of a mandatory minimum sentence, it will likely be struck down as being unconstitutional. However, once such discretion is afforded the judicial officer by



56 ibid 57 ibid

[19]. [20].

Normative Considerations  233 the relevant piece of legislation, it may satisfy the test of proportionality, a key consideration in the analysis of whether the provision is constitutional. In other words, as stated in the Belize Court of Appeal judgment of Edwin Bowen v PC 440 George Ferguson,58 ‘the enactment of a mandatory minimum sentence is not unconstitutional per se, notwithstanding that it may purport to fetter the court’s discretion in sentencing’. This case addressed the question of whether section 18 of the Misuse of Drugs Act, in imposing a mandatory minimum sentence, was unconstitutional. It was argued that it contravened section 7 of the Constitution of Belize. Section 18 of the Misuse of Drugs Act, Cap 103 of the Laws of Belize provides: A person who is convicted of the offence of drug trafficking, or of being in possession of a controlled drug for the purpose of drug trafficking – a)  on summary conviction, shall be imprisoned for a term which shall not be less than three years but which may extend to ten years, and in addition, shall be ordered to pay a fine which shall not be less than ten thousand dollars but which may extend to one hundred thousand dollars or three times the street value of the controlled drug (where there is evidence of such value), whichever is greater: Provided that where the controlled drug is respect of which the offence is committed is less than – i. ii. iii. iv. v.

one kilogramme of diacetylmorphine (heroin); one kilogramme of cocaine; two kilogrammes of opium; two kilogrammes of morphine; or five kilogrammes of cannabis or cannabis resin,

the court may, for special reasons to be recorded in writing, refrain from imposing a mandatory custodial sentence and, instead, order the convicted person to pay a fine to the extent specified above and in default of such payment, to undergo imprisonment for a term specified above.

Meanwhile, section 7 of the Constitution of Belize provides that ‘no person shall be subjected to torture or to inhuman or degrading punishment or other punishment’. Having regard to the circumstances of the case, the Belize Court of Appeal held that: [W]e are constrained to observe, as also did Griffith J at paragraph 42 of her decision that the proviso to section 18(1) of The Act provides sufficient discretion, in an appropriate case, for the sentencing court to deviate from the minimum mandatory sentence and to consider the ‘special reasons’ peculiar to the accused appearing before the court, prior to the imposition of sentence.59

Although the CCJ, Belize’s final appellate court, has not to date pronounced on the specific question as to the constitutionality of mandatory minimum sentences, it is



58 Edwin 59 ibid

Bowen v PC 440 George Ferguson, Criminal Appeal No 6 of 2015. [14].

234  Normative Considerations arguable that the reasoning espoused by the Belize Court of Appeal is defensible. No doubt, were the question to arise before the CCJ, the well-developed Canadian jurisprudence on this issue would provide an excellent point of reference. Indeed, although the recent Ontario Supreme Court case of R v Alexis-McLymont and Elgin and Hird60 acknowledged that ‘an applicable mandatory minimum sentence must not be considered the “norm”, thereby effectively converting the sentencing “floor” into something resembling a “ceiling” as well’, Canadian courts have, in general, taken a rather pragmatic approach when deciding upon the constitutionality of mandatory minimum sentences, finding that: The correct approach in assessing the constitutionality of a mandatory minimum sentence first requires that the sentencing judge determine what a fit sentence would be applying traditional sentencing principles. The question then becomes whether the mandatory minimum sentence is grossly disproportionate to the fit and proportionate sentence. If the court finds that it is grossly disproportionate to the offender being sentenced then the mandatory minimum violates section 12 of the Charter. Even if it is not grossly disproportionate to this specific offender the Court must still consider whether the mandatory minimum sentence would be grossly disproportionate for a reasonably foreseeable hypothetical offender.61

This pragmatic approach was countenanced in the Supreme Court of Canada case of R v Nur.62 In that case, section 95(2)(a) of the Canadian Criminal Code, which imposed a mandatory minimum sentences of three years and five years respectively for the offence of possessing prohibited or restricted firearms when the firearm is loaded or kept with readily accessible ammunition, was challenged by the respondents who argued that these sentences were unconstitutional because they resulted in grossly disproportionate sentences in some cases, violating the guarantee in section 12 of the Canadian Charter of Rights and Freedoms against cruel and unusual punishment. Although the Supreme Court found that, in most cases, including the case of the respondents, the mandatory minimum sentences of three and five years respectively would not constitute cruel and unusual punishment, it could nonetheless foresee cases that would be caught by the impugned provision, in relation to which a finding of unconstitutionality was appropriate. While refusing to establish a per se rule that all mandatory minimum sentences are unconstitutional, the Court nonetheless opined that: Mandatory minimum sentences, by their very nature, have the potential to depart from the principle of proportionality in sentencing. They emphasize denunciation, general deterrence and retribution at the expense of what is a fit sentence for the gravity of the offence, the blameworthiness of the offender, and the harm caused by the crime. They function as a blunt instrument that may deprive courts of the ability to tailor



60 R

v Alexis-McLymont and Elgin and Hird 2018 ONCS 1389. v Mercer 2017 NSPC 20. 62 R v Nur 2015 SCC 15; [2015] 1 SCR 773. 61 R

Normative Considerations  235 ­ roportionate sentences at the lower end of a sentencing range. They may, in extreme p cases, impose unjust sentences, because they shift the focus from the offender during the sentencing process in a way that violates the principle of proportionality. They modify the general process of sentencing which relies on the review of all relevant factors in order to reach a proportionate result. They affect the outcome of the sentence by changing the normal judicial process of sentencing.63

Interestingly, on the facts of the instant case, the respondents were not arguing that the mandatory minimum terms of imprisonment under the impugned provision were grossly disproportionate as applied to them, but rather that these mandatory minimum terms of imprisonment violated section 12 of the Charter as they apply to other offenders. In answer to this contention, the Court accepted that a challenge to a mandatory minimum sentencing provision on the ground it constitutes cruel and unusual punishment under section 12 of the Charter involves two steps. First, the court must determine what constitutes a proportionate sentence for the offence having regard to the objectives and principles of sentencing in the Criminal Code. Then, the court must ask whether the mandatory minimum requires the judge to impose a sentence that is grossly disproportionate to the fit and proportionate sentence. If the answer is yes, the mandatory minimum provision is inconsistent with section 12 and will fall unless justified under section 1 of the Charter.64

In finding that courts have a responsibility to scrutinise the constitutionality of the legislature’s imposition of mandatory minimum sentences because sentencing is inherently a judicial function, the Court applied the R v Oakes65 test, which has also gained jurisprudential traction in the Commonwealth Caribbean.66 In short, in order to justify the infringement of a person’s right to liberty and freedom from inhuman treatment by virtue of the imposition of mandatory minimum sentences, the state must show that the law has a pressing and substantial objective and that the means chosen are proportionate to that objective. According to their Lordships, a law is proportionate if: (1) the means adopted are rationally connected to that objective; (2) it minimally impairs the right in question; and (3) there is proportionality between the deleterious and salutary effects of the law. On the question of rational connection, the Court emphasised that the state bears the burden of showing that the mandatory minimum sentences are rationally connected to the goals of denunciation, deterrence and retribution. To do so, the state must establish that there is a causal connection between the infringement and the benefit sought ‘on the basis of reason or logic’. On the facts, despite the admitted frailty of the connection between deterrence and mandatory minimum

63 ibid [44]. 64 ibid [46]. 65 R v Oakes [1986] 1 SCR 103. 66 See, eg, Jason Jones v The Attorney General of Trinidad and Tobago and The Equal Opportunity Commission, The Trinidad And Tobago Council of Evangelical Churches and The Sanatan Dharma Maha Sabha of Trinidad And Tobago TTHCV2017-00720 [128]; Williams and Others v INDECOM [2012] JMFC Full 1 [359].

236  Normative Considerations sentence provisions, a rational connection was found to exist between mandatory minimum terms of imprisonment and the goals of denunciation and retribution. However, an altogether different conclusion was arrived at with regard to the second requirement of the Oakes test, namely minimal impairment. The question at this stage is whether the limit on the right is reasonably tailored to the objective. A court asks ‘whether there are less harmful means of achieving the legislative goal’. In this connection, the state must show the absence of less drastic means of achieving the objective ‘in a real and substantial manner’. In short, the impingement on the right must be no more than what is reasonably necessary to achieve the state’s objective. On the facts of the instant case, however, the state had failed to discharge its burden on this branch of the Oakes test since there were found to be less harmful means of achieving the legislative goal. Suffice it to say, on the question of proportionality, the Court considered that this stage of the analysis weighs the impact of the law on protected rights against the beneficial effect of the law in terms of the greater public good. In light of the conclusion that the mandatory minimum terms of imprisonment in the instant case were grossly disproportionate, the Court invariably found that the limits imposed by the state were not a proportionate justification under section 1 of the Charter. Against the backdrop of the foregoing, the Court concluded that the mandatory minimum sentences imposed by section 95(2)(a) of the Canadian Criminal Code were inconsistent with section 12 of the Charter, and they were accordingly declared to be of no force or effect. The key message from the Canadian and, indeed, Privy Council jurisprudence is that mandatory minimum sentences, such as those imposed by some of the region’s anti-trafficking legislation, are open to constitutional challenge on the ground that they constitute an arbitrary restriction on liberty or represent inhuman and degrading punishment, a right which is expressly provided for in the relevant constitutions.67

iii. Sentencing Although the vast majority of sentences handed down by Commonwealth Caribbean courts to date with respect to human trafficking have not been publicly reported, there is a strong sense among interlocutors that there exists a ‘disconnect’ between the stringent sanctions which the law in principle contemplates and the penalties that are actually imposed in practice.68 The suggestion, in this c­ onnection,

67 s 17(1) The Bahamas Constitution; s 141(1) Guyana Constitution; s 5(2)(b) Trinidad and Tobago Constitution. 68 See, eg, Human Rights Committee, ‘Consideration of reports submitted by States parties under article 40 of the Covenant – Belize’ (CCPR/C/BLZ/1, 26 September 2017) noting that in Belize, a woman who was found guilty of human trafficking was spared a custodial sentence, having been

Normative Considerations  237 appears to be that the problem with sentencing in the region is both historical and legislative. In relation to the former, there have been recurrent arguments in the public domain that sentences handed down for various offences, including rape and other serious sexual offences, often do not reflect the gravity of those offences, while, in relation to the latter, the argument has been that, in affording judicial officers the discretion to choose between a custodial sentence and a fine for serious offences such as human trafficking, the state is potentially doing a real disservice to victims who suffer immeasurably at the hands of exploiters.69 The question of what is an appropriate sentence to impose in individual cases is not an exact science. It necessarily requires careful consideration of legislative stipulations, the individual circumstances of the case, and social and other contextual factors, buttressed by judicial experience. More pointedly, it requires the careful consideration of the well-established aims of sentencing, namely retribution (showing society’s intolerance of criminal conduct); deterrence (general or individual dissuasion); prevention (protection of society from criminality); and rehabilitation (reintegrating of the individual back into society after serving the sentence).70 Naturally, even where these aims are contemplated, judicial officers, as human beings, are not impervious; bad decisions are almost invariably made from time to time. To ameliorate against the frequency with which these bad decisions are made, however, a number of countries have enacted sentencing guidelines. Sentencing guidelines are documents which set out a methodology for judges and magistrates to decide upon a particular sentence, having regard to the relevant legislation, and the aggravating and mitigating circumstances relevant to the particular case. Sentencing guidelines go a long way in ensuring that the sentence that is ultimately imposed on an offender reflects the crime that they have committed, the personal circumstances of the offender, and is proportionate to the seriousness of the offence. They also ensure that the courts are consistent in their approach to sentencing for particular offences. By ensuring consistency of approach to sentencing, the sentencing process becomes more transparent, as victims, the accused, lawyers and the public can properly understand how particular sentences are arrived at.

required to pay a fine. See also the Jamaican case of Regina v Rajesh Gurunani in which the accused, who was convicted of forced labour, was required to pay a fine, and was not subject to a custodial sentence. 69 In interview, one interlocutor indicated that there were challenges assessing the effectiveness of penalties imposed by TIP legislation, although he considered that, ‘we are putting the fight to them [the traffickers]’. See also Errol Benjamin, ‘Deterrence the only way’ Trinidad Express Newspaper (4 December 2013) (noting that the measures currently in place to deter crime – including stiff penalties and extra policing – are mere ‘plasters for a deep, enduring wound or like spinning a top in mud!’. 70 Desmond Baptiste et al v The Queen, Criminal Appeal No 8 of 2003 (St Vincent and the Grenadines) (Byron CJ).

238  Normative Considerations In jurisdictions that have adopted sentencing guidelines, like the United Kingdom and Jamaica, these guidelines, though useful, provide guidance only. They do not compel the court to impose a particular sentence or specify the precise length of a sentence. The court is thus permitted to depart from the relevant sentencing guidelines in an appropriate and justifiable case. Although most countries are merely at an embryonic stage in respect of their enactment of sentencing guidelines with regard to human trafficking, a useful point of reference for judicial officers is necessarily the sentencing guidelines that apply in relation to cognate offences, such as rape, unlawful sexual contact and assaults. Because sentencing is a flexible exercise that is influenced by a number of factors, it should come as no surprise that the approach to sentencing guidelines for the same offences differs between jurisdictions, as explained below. a.  The United Kingdom In the United Kingdom, Sentencing Guidelines on Sexual Offences were issued in April 2014 by the Sentencing Council of England and Wales.71 These Guidelines provide, inter alia, that when deciding upon the appropriate sentence to be imposed in respect of a sexual offence, such as trafficking for the purpose of sexual exploitation, judges must, unless the circumstances are exceptional in nature, follow a number of consecutive steps: • The first step is determining what category the offence in question falls into by reference to the harm caused and the culpability of the offender.72 ○ With regard to the question of harm, two categories are provided for, namely ‘category 1’ harms which cover, inter alia, more serious harms involving abduction, detention, violence and forced prostitution, especially when such harms are committed against children, and ‘category 2’ harms which take account of factors not mentioned in the first category. ○ The court will then seek to determine the culpability of the perpetrator by reference to three distinct categories. The first, category ‘A’, requires that the court takes account of several factors, including whether the perpetrator directed or organised the criminal activity on a significant commercial basis; whether there was an expectation of significant financial gain; and whether there was an abuse of trust. The second facet of culpability, category ‘B’, requires consideration of whether the perpetrator was involved at the operational or management level in the commission of the offence, as well as whether the offence involved coercion or intimidation/exploitation or reward. The third facet of culpability, category ‘C’, looks at whether 71 Sentencing Council, Sexual Offences Definitive Guideline: Trafficking people for sexual exploitation (Sentencing Council of England and Wales, 2014) 99–103. 72 ibid 100.

Normative Considerations  239 the perpetrator has performed limited functions under the direction of a mastermind, as well as the question of whether he was coerced or intimidated into doing so.73 Table 2a  United Kingdom Sentencing Guidelines 2014 – Category and Harm Harm Category 1

Culpability A Directing or organising trafficking Violence or threats of violence Sustained and systematic psycho- on significant commercial basis Expectation of significant financial logical abuse or other gain Victim(s) under 18 Significant influence over others in Victim(s) forced or coerced to trafficking organisation/hierarchy participate in unsafe/degrading Abuse of trust sexual activity

• Abduction/detention • • • •

• Victim(s) forced/coerced into prostitution • Victim(s) tricked/deceived as to purpose of visit Category 2

Factor(s) in category 1 not present

B Operational or management function within hierarchy Involves others in operation whether by coercion/intimidation/ exploitation or reward (and offender’s involvement is not as a result of coercion) C Performs limited function under direction Close involvement but engaged by coercion/intimidation/exploitation

• Once a judge has fully considered the foregoing circumstances, the next step is to determine what should be the appropriate starting point and range. If, for example, the harm suffered falls into category 1, and the defendant’s culpability is deemed to fall into category A, then the starting point of the requisite sentence should be 8 years’ custody, albeit that the range of sentences available to the judge is between 6 and 12 years’ imprisonment. Alternatively, if the harm falls into category 2, and the defendant’s culpability is deemed to fall into category C, then the starting point ought to be 6 years’ custody, with a range of between 4 and 8 years’ imprisonment.

73 ibid.

240  Normative Considerations Table 2b  United Kingdom Sentencing Guidelines 2014 – Starting Point and Range Category 1

Category 2

A

B

C

Starting point 8 years’ custody

Starting point 6 years’ custody

Starting point 18 months’ custody

Category range 6–12 years’ custody

Category range 4–8 years’ custody

Category range 26 weeks’ – 2 years’ custody

Starting point 6 years’ custody

Starting point 4 years’ custody

Starting point 26 weeks’ custody

Category range 4–8 years’ custody

Category range 2–6 years’ custody

Category range High level community order – 18 months’ custody

• Once the starting point is decided upon, the judge must then adjust the sentence to be imposed in a manner that takes account for both aggravating and mitigating factors. In this context, a judge may consider, inter alia, previous convictions; whether the victim was deliberately isolated; whether her identity documents were confiscated; whether food was withheld from her; as well as whether she was given drugs to ensure compliance.74 The mitigating factors that ought to also be considered, at this stage, are more limited in scope, however. These include, for example, whether the perpetrator has no previous or recent convictions; the previous good character of the perpetrator; whether he has shown remorse; his age and level of maturity, as well as any mental or physical disorder that might have been affecting him at the time of the commission of the offence.75 Table 2c  United Kingdom Sentencing Guidelines 2014 – Aggravating and Mitigating Factors Aggravating factors Statutory aggravating factors Previous convictions, having regard to a) the nature of the offence to which the conviction relates and its relevance to the current offence; and b) the time that has elapsed since the conviction Offence committed whilst on bail Other aggravating factors Failure to comply with current court orders Offence committed whilst on licence



74 ibid 75 ibid

101. 102.

Normative Considerations  241 Deliberate isolation of victim(s) Children of victim(s) left in home country due to trafficking Threats made to expose victim(s) to the authorities (for example, immigration or police), family/friends or others Harm threatened against the family/friends of victim Exploitation of victim(s) from particularly vulnerable backgrounds Victim(s) previously trafficked/sold/passed around Passport/identity documents removed Victim(s) prevented from seeking medical treatment Food withheld Use of drugs/alcohol or other substance to secure victim’s compliance Earnings of victim(s) withheld/kept by offender or evidence of excessive wage reduction, debt bondage, inflated travel or living expenses, unreasonable interest rates Any steps taken to prevent the victim reporting an incident, obtaining assistance and/or from assisting or supporting the prosecution Attempts to dispose of or conceal evidence Timescale over which operation has been run Mitigating factors No previous convictions or no relevant/recent convictions Remorse Previous good character and/or exemplary conduct* Age and/or lack of maturity where it affects the responsibility of the offender Mental disorder or learning disability, particularly where linked to the commission of the offence * Previous good character/exemplary conduct is different from having no previous convictions. The more serious the offence, the less the weight which should normally be attributed to this Factor. Where previous good character/exemplary conduct has been used to facilitate the offence, this mitigation should not normally be allowed and such conduct may constitute an aggravating factor. In the context of this offence, previous good character/exemplary conduct should not normally be given any significant weight and will not normally justify a reduction in what would otherwise be the appropriate sentence.

• The judge is then required to consider factors that may reduce the sentence to be imposed, including any assistance lent to the prosecution. • The judge will then enquire into whether the perpetrator pleaded guilty to the offence in question, as well as the seriousness of the danger posed by the offender to the community. • If the perpetrator has been sentenced for another offence, the judge must then consider whether the total sentence to be imposed would be just and proportionate in light of the offending behaviour.

242  Normative Considerations • The next step will be a consideration of whether any ancillary orders may be applicable, such as, inter alia, registration in the sex offenders’ registry or monitoring of mobile phones. • The judge is required to consider the time spent on remand in an effort to reduce the perpetrator’s sentence.76 • Finally, the judge imposes the sentence and gives reasons for doing so. Although there does not appear to be a large volume of published human trafficking judgments in relation to which these Guidelines have been applied, it is noteworthy that one of the earliest trafficking cases that relied upon the 2007 version of these Guidelines was the Northern Irish case of Queen v Matyas.77 Here, the defendant was held to have trafficked two Hungarian women into prostitution in Belfast. For the purposes of this discussion, it is important to note that the Court was faced with the issue of whether it should apply the Sentencing Guidelines issued by the England and Wales Sentencing Council in 2007 in its determination of the appropriate sentence to impose. The Court ultimately found that, although these Guidelines were secondary to the guidance provided by the Northern Ireland Court of Appeal,78 there was ‘no reason why [trafficking], which take[s] place in an international context, should attract different sentences in Northern Ireland to those in place in other parts of the United Kingdom’.79 On this basis, the Court concluded that, having considered the relevant aggravating and mitigation circumstances outlined by the 2007 Sentencing Guidelines, the defendant was liable for having trafficked the complainants into prostitution, and accordingly that a starting point of 2 years’ imprisonment was appropriate in the circumstances. Notwithstanding this decision, however, at least one subsequent case, R v Chen, Dempsey and Hinton,80 has suggested that sentencing guidelines as applied to human trafficking are not always fit for purpose. In this case, one of the defendants in question (Chen) was, among other things, implicated in the trafficking of four Chinese women for the purpose of sexual exploitation in Northern Ireland. The circumstances were such that Chen had placed advertisements in Chinese newspapers advertising certain jobs. When the four victims in question made contact with her, she offered them employment at a purported salary of £220 a week in consideration for, among other things, cooking and cleaning in a massage parlour and babysitting. Once the women arrived in Northern Ireland, however, they were not paid the amount advertised nor, indeed, asked to work in the roles advertised. Rather, they were forced into prostitution. When the matter was heard before 76 ibid. 77 Queen v Matyas [2012] NICC 14. 78 See also, Attorney General’s Reference (No 1 of 2008) and Gibbons et al [2008] NICA 41, [44] per Kerr LCJ: ‘As we have repeatedly made clear, the guidance provided by the Sentencing Guidelines Council must always be regarded as secondary to the guidelines provided by the Court of Appeal in this jurisdiction’. 79 Queen v Matyas (n 77) [9]. 80 R v Chen, Dempsey and Hinton [2012] NICC 26.

Normative Considerations  243 Belfast Crown Court, one of the key questions which arose was whether the 2007 England and Wales Sentencing Council Sentencing Guidelines were applicable in Northern Ireland in respect of trafficking in persons. In this connection, Justice Stephens considered that these Guidelines were, indeed, applicable, given that he could not ‘conceive of any geographical or societal reason why this offence should attract a different sentence in Northern Ireland than in England and Wales’.81 In his attempt to apply these Guidelines to the instant case, however, Justice Stephens was quick to identify a number of ‘ambiguities’ which, in his view, warranted a modest departure from the prescriptions laid down therein. The first of these ambiguities, in his view, related to the fact that the six-year starting point for sexual exploitation presumably included a consideration of whether the victim was coerced, but yet, the Guidelines themselves also required that coercion be considered as additional aggravating factor(s) under the heading ‘coercion’, and again by implication under the heading of an ‘abuse of a position of vulnerability’.82 While it appeared that the Sentencing Guidelines required that the Court consider the issue of coercion at the starting point as well as when it was determining what aggravating circumstances to take into account, his Lordship’s main difficulty arose from the fact that the Guidelines themselves did not stipulate ‘the degree of coercion to be taken into account at each stage’.83 In view of this ambiguity, his Lordship did not consider it appropriate to use the starting point of six years as required by the Sentencing Guidelines. The foregoing was, however, not the only ambiguity observed by the learned judge in this case. In fact, later in his judgment, Justice Stephens also considered that while the Sentencing Guidelines referred to the trafficking of a ‘large number of people’ as an aggravating circumstance, it did not, however, indicate what was to be considered a ‘large number’.84 In other words, he asked, would the fact that four victims have been trafficked, as in this case, suffice as an aggravating circumstance, or was it the case that a larger number of victims were envisaged by the Guidelines? Additionally, the learned judge appeared to take issue with the fact that the Guidelines did not make reference to ‘corruption’85 as an aggravating circumstance. As such, his Lordship was left with no choice but to conclude that once coercion was present, it could not be that ‘corruption’ was to be considered a separate aggravating circumstance.86 Suffice it to say, the final issue with which his Lordship was confronted related to the fact that although the Sexual Offences Act at the time stipulated a maximum sentence of 14 years’ imprisonment for the offence of trafficking for the purposes of sexual exploitation, the sentencing range countenanced by the Sentencing Guidelines provided that imprisonment should be between four and nine years, which was arguably lower than that envisaged by

81 ibid 82 ibid

[30]. [32].

84 ibid

[34].

83 ibid.

85 ibid [35]. His Lordship defined corruption to mean, ‘the coercion of victims to work as prostitutes’. 86 ibid.

244  Normative Considerations the Sexual Offences Act. In view of these ambiguities, the Court ultimately decided that the starting point of six years stipulated by the Sentencing Guidelines was inapplicable, though after considering both aggravating and mitigating circumstances, Justice Stephens sentenced Chen to seven years’ imprisonment for the offence of trafficking for the purpose of sexual exploitation. Apart from this case, however, sentencing guidelines on trafficking for sexual exploitation in the UK have reportedly been successfully applied without much difficulty in practice. b. Jamaica After many years of consultation, in December 2017, the Chief Justice of Jamaica finally issued sentencing guidelines for a range of criminal offences. Although these Guidelines do not specifically address the issue of human trafficking, the approach to sentencing applied to cognate offences, namely sexual offences, is instructive: • The judge must determine the normal range of the sentence for the particular offence by reference to the circumstances of the offence, the offender, previous sentencing decisions and counsel’s submissions. The Sentencing Guidelines Committee has determined and published, for various offences, indicative normal sentencing ranges for the respective offences. • He or she must then identify the usual starting point within the range for the particular offence. The starting point is a notional point within the range from which the sentence may be increased or decreased, having regard to the aggravating and mitigating features of the case. The Sentencing Guidelines Committee has determined and published, for various offences, indicative starting points for the respective offences. These indicative starting points reflect judicial experience and previous decisions of the Court of Appeal. Table 3a  Jamaica Sentencing Guidelines 2017 – Normal Range and Starting Point

Offence

Statutory Section Maximum of Act (SMax)

Statutory Minimum (SMin)

Normal Range (NR)

Usual Starting Point (USP)

SEXUAL OFFENCES ACT Rape

S.3

Life

15 years

15–25 years

15 years

Sexual touching of a child

S.8

10 years

–

5 years

2–10 years

Sexual Grooming

S.9

15 years

–

5 years

2–15 years

• He or she must also consider any aggravating features that may increase the usual starting point.

Normative Considerations  245 Table 3b  Jamaica Sentencing Guidelines 2017 – Aggravating Factors Aggravating factors Generally speaking aggravating factors may relate both to the offence and the offender. However, sentencing judges should guard against double-counting, in that some aggravating factors relating to the offence may also play a part in the choice of starting point. There is no authoritative list of aggravating factors. The following list of factors, in no special order of priority, is therefore intended to be illustrative only: • maturity of the offender • previous convictions for the same or similar offences, particularly where a pattern of repeat offending is disclosed • premeditation • attempts to conceal the evidence • use of a firearm (imitation or otherwise) or other weapon • use of violence • abuse of a position of trust, particularly in relation to sexual offences involving minor victims • any peculiar vulnerability of the victim • offence committed whilst on bail for other offences • offence committed whilst on probation or serving a suspended sentence • prevalence of the offence in the community • offenders operating in groups or gangs • an intention to commit more serious harm than actually resulted from the offence Each of these factors may vary in significance from case to case and, as indicated, this is not intended to be an exhaustive list of aggravating factors.

• The judge must then consider any mitigating features that may decrease the usual starting point. Table 3c  Jamaica Sentencing Guidelines 2017 – Mitigating Factors Mitigating factors Mitigating factors are those factors which reduce the seriousness of the offence or the culpability of the offender. The sentencing judge should take into account mitigating factors relevant to both the offence itself and the offender. Again in no special order of priority, they include the following: • youth of the offender • immaturity of the offender • the mental state of the offender (continued)

246  Normative Considerations Table 3c  (Continued) • • • •

the previous good character of the offender absence of premeditation where appropriate, whether reparation has been made the pressures under which the offence was committed (such as provocation, diminished responsibility, emotional stress or other partial excuse) any incidental losses which the offender may have suffered as a result of the conviction (such as loss of employment) the offender’s capacity for reform the offender’s role in the commission of the offence, where more than one offender was involved co-operation with the police by the offender after commission of the offence personal characteristics of the offender, such as physical disability or the like family background of the offender expressions of remorse by the offender

• • • • • • •

• • • •

He or she must thereafter reduce the sentence to account for a guilty plea. He or she must then make an appropriate deduction for time spent on remand. The judge must then decide on the appropriate sentence to be imposed. Finally, he or she must give reasons for the sentence imposed. c.  Trinidad and Tobago

Trinidad and Tobago’s approach to sentencing guidelines is informed by New Zealand’s approach, as articulated in the case of R v Taueki, Ridley and Roberts.87 The Court of Appeal of Trinidad and Tobago, in Aguillera and Ors v The State,88 engaged in some degree of judicial activism by adopting Taueki’s approach to sentencing. In Aguillera, the Court indicated that the following methodology ought to be adopted when judges are sentencing accused persons in that jurisdiction: • Identify the applicable starting point. The starting point is the sentence which is deemed appropriate, having regard to the aggravating and mitigating circumstances that relate to the offence (but excluding the aggravating and mitigating factors that are personal to the offender). In a typical case, this may, for example, include extreme violence; pre-meditation; serious injury; the use of weapons; attacking the head; and perverting the course of justice etc. • Move the sentence up or down from the notional starting point, having regard to the aggravating and mitigating circumstances relevant to the offender only. Aggravating/mitigating factors relative to the offender include

87 R

v Taueki, Ridley and Roberts [2005] NZLR 372. and Ors v The State Crim App Nos 5, 6, 7, 8 of 2015.

88 Aguillera

Normative Considerations  247 the age of the accused in question, as well as other personal circumstances; his criminal history; his compliance with conditions while on bail; whether he was on parole at the time of offending; and the need to achieve rehabilitation etc. • Give a discount for a guilty plea and any remorse exhibited by the accused. • Give credit for time spent on remand. • Impose the sentence and give reasons for the decision. The major difference between the Trinidadian and Jamaican approaches is that in Trinidad, there is no indicative normal range provided, so that judges begin their analysis by extrapolating a notional starting point (having regard to aggravating and mitigating factors relevant to the offence) and then move up and down that starting point (having regard to aggravating and mitigating circumstances relevant to the offender); whereas in Jamaica, an indicative normal range is provided, and the starting point is also indicated within that range, which can be moved up or down, depending on the aggravating and mitigating circumstances of the case. d.  The Eastern Caribbean With support from the US/UK Criminal Justice Reform Project, the Chief Justice of the Eastern Caribbean Supreme Court has established a Sentencing Advisory Committee (SAC) whose responsibility it is to formulate sentencing guidelines for a range of criminal offences for the Eastern Caribbean. The SAC, which is reportedly comprised of judicial officers from the Eastern Caribbean, the Turks and Caicos Islands and the United Kingdom had, at the time of writing, formulated a draft Practice Direction on Sentencing Guidelines, as well as draft sentencing guidelines for a range of offences. The SAC is also reported to have trained judicial officers at the annual Eastern Caribbean Supreme Court judicial conference in St Lucia89 and was, at the time of writing, consulting with a range of stakeholders, including members of the Eastern Caribbean Bar Association. If the Guidelines are ultimately approved and published, these will represent a first for the Eastern Caribbean, and will undoubtedly enhance the consistency of approach to sentencing in the sub-region. The challenge in achieving consistency of approach, however, lies in the fact that each of the nine islands which fall under the remit of the Eastern Caribbean Supreme Court necessarily have different maxima for a range of offences. This effectively means that transposing the UK or Jamaican approach to sentencing might not provide the best fit for judicial officers in the Eastern Caribbean. Although there has been no official confirmation that sentencing guidelines will be drafted by the SAC in respect of human trafficking offences, it is clear that the approach adopted in relation to cognate offences might prove useful to judges in the sub-region charged with adjudicating upon trafficking cases in future. 89 ‘Sentencing guidelines: Delivering fairness and justice in the Eastern Caribbean’ (St Lucia News Online, 26 July 2018).

248  Normative Considerations Based on preliminary drafts of the Guidelines which were circulated to the Eastern Caribbean Bar Association in September 2018, it would appear that the following approach to sentencing might in future be adopted in the sub-region: • To establish the starting point by reference to the category of harm caused to the victim (exceptional, high or significant) and the seriousness of the offence (level A or B). Table 4a  Eastern Caribbean – Category of Harm Category 1–Exceptional • Extreme psychological or physical harm • Extreme degradation/humiliation • The extreme impact caused by a combination of category 2 factors may elevate to category 1 Category 2–High • Serious psychological or physical harm supported by evidence, (evidence can come from victim) • Pregnancy or STI as a consequence of offence • Some degree of degradation/humiliation Category 3–Significant • Category 1 and 2 factors not present Table 4b  Eastern Caribbean – Seriousness Seriousness – Level A (High) • Abuse of position of trust • Abduction • Significant degree of planning, including grooming • Group or gang attack • Prolonged detention/sustained incident • Violence or threats of violence (beyond that which is inherent in the offence) • Forced/uninvited entry into victim’s home • Use of drugs or alcohol on victim to facilitate the offence Seriousness – Level B (Lower) • None of the above present

Normative Considerations  249 • Find the starting point by consulting the grid provided by the SAC. ‘X’ on the grid represents the maxima for the offence in question on the respective islands. Table 4c  Eastern Caribbean – Seriousness CATEGORY 1

SERIOUSNESS Level A Starting point 75% x Range 60%–90%

SERIOUSNESS Level B Starting Point 65% x Range 50%–80%

CATEGORY 2

Starting point 50% x Range 35%–65%

Starting Point 40% x Range 25%–55%

CATEGORY 3

Starting point 40% x Range 25%–55% x

Starting Point 25% x Range 20%–30%

• Having determined the starting point, consider the following list of nonexhaustive aggravating and mitigating factors of the offence and adjust upwards or downwards, if required. Table 4d  Eastern Caribbean – Aggravating and Mitigating Factors of the Offence AGGRAVATING FACTORS of the offence • Victim is particularly vulnerable due to personal circumstances which can include age, mental or physical disability • Offence committed in the presence of others e.g. relatives, children or partner of the victim • Victim is a child or young person • Use of a weapon to frighten or injure • Ejaculation • Significant disparity in age where relevant MITIGATING FACTORS of the offence • Little or no violence • Some element of consensual sexual activity before rape • Serious medical condition if it helps to explain why the offence occurred • Medical disorder or learning disability if it helps to explain why the offence occurred

• Next, adjust the figure within the range for the aggravating and mitigating factors affecting the offender.

250  Normative Considerations Table 4e  Eastern Caribbean – Aggravating and Mitigating Factors of the Offender AGGRAVATING FACTORS of offender • Previous convictions for sexual offences • Recent or relevant convictions for other offences • Offence committed whilst on bail MITIGATING FACTORS of offender • Good character • Youth /Lack of Maturity • Physical or mental disability or ill-health • Primary carer for dependent family members

• Credit should be given for a guilty plea as appropriate. One-third reduction to be given for a guilty plea entered at the earliest practicable opportunity. Credit will reduce until one-tenth for a plea on the day of trial. • Next, adjust the figure on assessing totality (if applicable). • Credit must be given for time spent on remand for the relevant offence, to be calculated with precision. • Finally, consider ancillary orders, compensation, restraining orders etc. • Having followed the steps, the sentencing judge must pass the sentence, give reasons explaining the construction of the sentence in a way that can be readily understood, in particular explaining any departure from the Guidelines. Although the Guidelines had, at the time of writing, not been finalised, it is hoped that once they become operationalised, they will not only be frequently consulted by judicial officers, but that the quality of judicial approach to sentencing would be enhanced, thus instilling greater public confidence in the judiciary. The final point to note on the question of sentencing is that Belize and Barbados were, at the time of writing, also considering the introduction of sentencing guidelines. Whether these will specifically address trafficking-related offences is, however, yet to be seen.

C.  Forfeiture/Confiscation of Assets Traffickers and their associates are often driven by an insatiable appetite for wealth. Their unmistakable greed, which drives them to commit unimaginable acts in the process of exploiting society’s most vulnerable, is often very rewarding because human trafficking remains a low risk, high reward criminal activity in most regions of the world, including the Commonwealth Caribbean. Traffickers in many parts of the world typically lead luxurious lives; indeed, as some might suggest, lives which are ‘fit for a king’. While some traffickers are

Normative Considerations  251 conservative and seemingly lead ‘normal’ lives, others cannot help but become selfaggrandisers, often flouting large amounts of cash, massive houses and luxury cars in the face of the unsuspecting public. The unfortunate reality is that many of these individuals parade as shrewd businessmen and women while giving instructions to front-line exploiters and their associates, including complicit law enforcement officials, at nights and seemingly working ‘hard’ at their high-end business places during the day. The cloak of legitimacy, which some traffickers manage to maintain for years, allows them to open multiple bank accounts all across the world, travel in business class often, and dine at the finest restaurants and bars in the company of their significant ‘other’, often an accomplice, and high net worth individuals, including the political elite. This cloak of legitimacy, coupled with their enviable professional networks, often allows these individuals to operate as if they are untouchable. In recognition of these realities, anti-trafficking law,90 proceeds of crime, and anti-money laundering legislation91 in most Commonwealth Caribbean countries, like their UK counterparts, provide for the forfeiture or confiscation of assets linked to trafficking-related offences. More specifically, the respective TIP Acts typically empower prosecutors to apply to the court for a forfeiture order in respect of the property, including money, valuables and other movable or immovable property, of a person convicted of a trafficking-related offence that was used or obtained in the course of the offence and any benefit gained from the proceeds of the offence. Where such an order is granted, this property is forfeited to the Crown, from which, inter alia, restitution might be paid to trafficked victims. In the same vein as the UK’s approach to confiscation as discussed in chapter five, the respective Proceeds of Crime/Anti-Money Laundering legislation make provision for a confiscation order to be made in circumstances where a person is said to be leading a criminal lifestyle which, for the purposes of this discussion, includes the commission of a trafficking-related offence. In this context, the court will, first, determine whether the defendant has a criminal lifestyle. If he does, the next question is whether he has benefited from his general criminal conduct. Even if he does not have a criminal lifestyle, however, the court may still decide whether he has benefited from his particular criminal conduct. In any event, if the defendant is found to have benefited from his criminal lifestyle or particular criminal 90 s 37 Antigua and Barbuda TIP Act; s 7 Bahamas TIP Act; s 10 Barbados TIP Act; s 37 Belize TIP Act; s 6 Cayman Islands TIP Act; s 38 Grenada TIP Act; s 7 Guyana TIP Act; s 7 St Kitts and Nevis TIP Act; s 9 St Lucia TIP Act; s 12 St Vincent and the Grenadines TIP Act; s 24 Trinidad and Tobago TIP Act; s 34 Turks and Caicos Islands TIP Ordinance. 91 s 7, schedule 1 Bahamas Proceeds of Crime Act, 2018; ss 3 and 9 Bermuda Proceeds of Crime Act, 1997; s 2(5)(d) British Virgin Islands Proceeds of Criminal Conduct Act 1997; s 68, schedule 1(4) Cayman Islands Proceeds of Crime Law, 2018 Revision; s 2, schedule (3) Grenada Proceeds of Crime Act (Act 6/2012); s 2, schedule 2 Guyana Anti-Money Laundering Act 2009; schedule 2(16) Jamaica Proceeds of Crime Act 2007; ss 3 and 41 St Kitts and Nevis Proceeds of Crime Act, CAP 4.28; s 3, schedule (22) St Lucia Proceeds of Crime Act, CAP 3.04; s 16(1)(a) schedule 7(3) St Vincent and the Grenadines Proceeds of Crime Act 2013; s 2, schedule 2(3) Trinidad and Tobago Proceeds of Crime Act, CAP 11:27; s 15, schedule 1(4) Turks and Caicos Islands Proceeds of Crime Act, 2007.

252  Normative Considerations conduct, the court would make a determination of the recoverable amount and, in this connection, make a confiscation order requiring him to pay that amount.92 The question of the constitutionality of the forfeiture provision contained in Antigua’s TIP Act arose in the case of Cheryl Thompson v The Attorney General of Antigua and Barbuda,93 discussed earlier. Here, the Claimant, who was convicted of trafficking women for the purpose of sexual exploitation, argued that the forfeiture provision had the effect of compulsorily depriving her of her property, in contravention of section 9 of Antigua’s Constitution which provides that no property shall be compulsorily taken possession of or acquired, except for public use and on payment of fair compensation within a reasonable time. However, section 9(4)(a)(ii) of the Constitution appeared to justify the acquisition of such property in the following terms: Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of subsection (1) of this section – (a) to the extent that the law in question makes provision for the taking of possession or acquisition of any property, interest or right(ii)   by way of penalty for breach of the law or forfeiture in consequence of breach of the law.

In rejecting the claimant’s submission, and in accordingly finding that the forfeiture provision did not offend section 9 of the Constitution, the Court concluded that: Section 9 of the Constitution clearly contemplates the existence of statutes dealing with the taking of possession of property, interest or right by way of forfeiture in consequence of breach of the law. Such provisions are not inconsistent with or in contravention of section 9 (1) as long as the provision is reasonably justifiable in a democratic society. No allegation has been made that the provision is not reasonably justifiable in Antigua and Barbuda. The court adopts the reasoning of Kerr, LCJ and find that the forfeiture proceedings in the Act are akin to the asset recovery proceeding and are civil in nature. Its primary purpose is to recover proceeds of crime; it is not to punish in the sense normally entailed in a criminal sanction. Furthermore, even if the proceedings are to be regarded as imposing a penalty, this is not sufficient to classify the proceedings as criminal for purposes of section 15 of the Constitution, which section provides certain protection for a person ‘charged with a criminal offence’. Accordingly the court finds that the forfeiture provisions of the Act do not violate sections 9 or 15 of the Constitution94 (emphasis added).

Despite the undeniable importance of the ruling, however, it should not be forgotten that because the forfeiture/confiscation provisions, whether in the context of the TIP Acts or the proceeds of crime or anti-money laundering legislation, are relatively new to the region, there have been very few instances in which they

92 R

v Sakhizada (Abdul) [2012] EWCA Crim 1036. 2011/0830. 94 ibid [54]. 93 ANUHCV

Normative Considerations  253 have been successfully applied to human trafficking in practice. With the exception of Trinidad and Tobago, where there have been two cash seizures linked to human trafficking,95 Antigua and Barbuda,96 which has reportedly seized some $300,000 linked to human trafficking, and Dominica, which has reportedly seized $250,000,97 there has been very little activity in the other islands regarding the confiscation of assets linked to human trafficking. Interestingly, in Barbados, it was reported that in the one instance in which over $47,000 was seized from an alleged trafficker, the Solicitor General requested that the money be returned to that person as he was of the opinion that the confiscation did not meet the threshold conditions established by the Proceeds of Crime Act.98 More generally, there appears to be a general feeling among interlocutors that more needs to be done by stakeholders in the respective countries to better identify the links between human trafficking and money laundering. It has also been argued that there is a definite need for closer cooperation to be forged between financial intelligence agencies across the region and the respective counter-trafficking units, so that traffickers could be effectively deprived of unlawfully obtained property.99 Finally, with the coming on stream of the largely unregulated ‘bitcoin’ industry, regional interlocutors have warned that traffickers are increasingly ‘burrowing underground by switching to cryptocurrencies to hide their illegitimate transactions’.100 Jamaican authorities, in particular, have asked that urgent attention be placed on identifying traffickers who reportedly use bitcoin transactions to mask their true identity.101

D. Restitution/Compensation Trafficked victims often have some unimaginable things done to them in the process of being exploited. Apart from being stripped of their inherent dignity, trafficked victims often experience considerable tragedy and personal loss, including loss of wages, separation from friends and family, pain and suffering, and loss of even their most basic amenities, including their freedom of choice and movement. In an attempt to re-balance the awfully calamitous circumstances which trafficked victims have had to endure, countries across the globe, including the 95 ‘Anti-money laundering and counter-terrorist financing measures – Trinidad and Tobago Mutual Evaluation Report’ (Caribbean Financial Action Task Force, June 2016). 96 ‘Human Trafficking and Smuggling of Migrants’ (Caribbean Financial Action Task Force Working Group on Typologies, 2014). 97 ibid. 98 ‘Anti-money laundering and counter-terrorist financing measures – Barbados Mutual Evaluation Report’ (Caribbean Financial Action Task Force, February 2018). ‘Anti-money laundering and counter-terrorist financing measures – Barbados Mutual Evaluation Report’ (Caribbean Financial Action Task Force, February 2018). 99 S-A Palmer, ‘Gov’t Taking the Profit Out of Human Trafficking’ (Jamaica Information Service, 29 July 2015). 100 ‘Traffickers in Jamaica turning to Bitcoin’ Nation News Barbados (22 May 2018). 101 ibid.

254  Normative Considerations United Kingdom as explained in chapter five, have in recent years sought to afford these persons the chance of obtaining compensation for harm suffered. Commonwealth Caribbean countries are no exception in this connection. In fact, with the exception of Anguilla, Bermuda, the British Virgin Islands, Montserrat and the US Virgin Islands which do not expressly provide for restitution/compensation orders in their respective criminal or penal codes, all the other Commonwealth Caribbean countries have provided, within the context of their anti-trafficking legislation, for restitution/compensation orders. In these countries, compensation orders can be applied for by the victim or by the prosecutor in question or the court can make such an order on its own accord. The award of compensation in most countries is not, however, automatic upon the conviction of a trafficker, as most countries’ anti-trafficking legislation afford judicial officers a discretion to grant such an order. More pointedly, with the exception of The Bahamas,102 Guyana,103 Jamaica,104 and Trinidad and Tobago,105 whose legislation expressly provides that the court shall make a compensation order upon the conviction of a trafficker, the other countries’ legislation provides that the judicial officer may make such an order.106 Where such an order for restitution/compensation is made, the legislation provides that it aims to compensate for damage to or the loss or destruction of property, including money; physical, psychological or other injury; being infected with a life-threatening disease; loss of income or support; the cost of medical, psychological or physical treatment; legal costs including attorney’s fees; and any other loss suffered that the court considers applicable, resulting from the commission of the offence. Regional legislation also expressly provide that, as far as possible, the grant of compensation is contingent not only upon the conviction of the trafficker, but a forfeiture order being made since, as far as possible, compensation is payable from forfeited property. In keeping with a victim-centred approach to human trafficking, the legislation additionally provide that a victim shall be informed of the right to claim compensation by state authorities,107 and further that a victim’s right to receive compensation is not prejudiced by the return of that person to his or her country of origin.108 102 s 6 Bahamas TIP Act. 103 s 6 Guyana TIP Act. 104 s 6 Jamaica TIP Act. 105 s 30(1) Trinidad and Tobago TIP Act. 106 s 60 Antigua and Barbuda TIP Act; s 11 Barbados TIP Act; s 24 Belize TIP Act; s 5 Cayman Islands TIP Act; s 13 Dominica Transnational Organized Crime Act; s 43 Grenada TIP Act; s 6 St Kitts and Nevis TIP Act; s 8 St Lucia TIP Act; s 16 St Vincent and the Grenadines TIP Act; s 24 Turks and Caicos Islands TIP Ordinance. Note that in Antigua and Barbuda, and Turks and Caicos Islands, respectively, a restitution/compensation order has the effect of a civil judgment so that the defendant becomes the judgment debtor and victim the judgment creditor. The order can thus be subject to enforcement proceedings under the Civil Procedure Rules (CPR). 107 eg, s 31(1) Belize TIP Act. 108 s 64(3) Antigua and Barbuda TIP Act; s 6(4) Bahamas TIP Act; s 24(3) Belize TIP Act; s 5(4) Cayman Islands TIP Act; s 6(3) Guyana TIP Act; s 6(1)(c) St Kitts and Nevis TIP Act (absence from the proceedings); s 8(4) St Lucia TIP Act (absence from the proceedings); s 16(4) St Vincent and the Grenadines TIP Act (absence from the proceedings); s 30(4) Trinidad and Tobago TIP Act.

Normative Considerations  255 Although the enactment of legislative provisions which expressly afford trafficked victims the opportunity to obtain compensation is both welcome and necessary, it is regrettable that there is still a lack of appreciation among some national stakeholders as to the existence of the compensation order under the respective TIP Acts. This widely acknowledged lack of awareness has a number of externalities, including victims not being routinely informed about the possibility of being able to claim compensation; prosecutors not making applications for compensation orders though the circumstances warrant such orders; and judicial officers not being proactive in making such orders. On the latter point, as pointed out by the former UN Special Rapporteur on Human Trafficking, albeit in relation to Belize, the court appears to be reluctant make an award of monetary compensation to trafficked victims, apparently countenancing the hegemonic assumption that to rule otherwise would open the proverbial floodgates for persons to declare themselves as victims in an effort to surreptitiously obtain compensation. This, as explained by the then Special Rapporteur, is ‘untenable as it is the responsibility of investigators to gather evidence and prosecutors to assess the validity of the claim and if a victim has suffered violations, compensation should be granted in compliance with national and international legal standards’.109 To date, there have been very few cases in which compensation has been obtained against a trafficker in favour of a trafficked victim. In this context, interlocutors110 repeatedly pointed to the Jamaican case of R v Rajesh Gurunani,111 in which the Court made a compensation order in the sum of US $21,000 in respect of three Indian nationals whose labour was forcibly exploited in the defendant’s store, and who were in general treated in extremely inhospitable ways. An interesting point to note is that Antigua and Barbuda, and the Turks and Caicos Islands’ legislation are unique, if not odd, at least when compared with other pieces of anti-trafficking legislation, in that that they provide that, in addition to an award of compensation in favour of a trafficked victim, the court may make a compensation order in favour of the state upon application by the Attorney General. It would appear that any compensation awarded in this context seeks to reimburse the state for any expenses incurred or reasonably expected to be incurred in connection with the care, medical treatment, accommodation, transportation and repatriation of a trafficked person.112 More generally, it should be noted that the fact that trafficked victims obtain compensation under the applicable anti-trafficking legislation does not, per se, prejudice their ability to institute civil proceedings to obtain compensation for assault, battery and personal injury more generally, in particular, for special and/or general damages on account harm suffered at the hands of their traffickers. While 109 Human Rights Council, ‘Report of the Special Rapporteur on trafficking in persons, especially women and children, Joy Ngozi Ezeilo – Mission to Belize’ (A/HRC/26/37/Add.6, 11 June 2014) [53]. 110 GR Smith and L Palmer-Hamilton, ‘Human Trafficking: Modern Day Slavery or Child Abuse or What?’ (Jamaica Bar Association, 2015). 111 Jamaica Gleaner (3 July 2015). 112 s 61 Antigua and Barbuda TIP Act; s 25 Turks and Caicos Islands TIP Ordinance.

256  Normative Considerations this option exists, and has been utilised in other jurisdictions such as the UK, as discussed in chapter five, it does not appear to provide an attractive route to gaining compensation not only because of the prohibitive costs associated with civil litigation, but also the inherently adversarial process, and other practical considerations, including migrant victims having to leave the jurisdiction to return home. Notwithstanding these challenges, however, trafficked victims have the additional option of instituting proceedings under various pieces of regional employment and labour law legislation113 for the purposes of obtaining unpaid wages and/or the value of other employment-related benefits to which they are entitled, but in relation to which they have been deprived.114 Yet, still, trafficked victims, at least in Trinidad and Tobago and Bermuda,115 also have the option of obtaining relief from the Criminal Injuries Compensation Board (CICB),116 in similar vein to that which obtains in the UK, as discussed in chapter five. Unlike the other territories where victims’ ability to obtain compensation is indissolubly tied to the conviction of their traffickers, under the Trinidad and Tobago Criminal Injuries Compensation Act (CICA),117 restitution is payable to victims of trafficking from a ‘Consolidated Fund’. The effect of this is that even if a trafficker is not convicted of a trafficking-related offence, a lump-sum payment118 can be made to compensate the victims in question for losses sustained. This is largely in keeping with the recommendations concerning restitution recently published by the Conference of the Parties to the United Nations Convention against Transnational Organized Crime.119 That said, several challenges nonetheless arise in practice which throw some doubt on the efficacy of the Trinidad and Tobago compensation scheme, in particular, as applied to trafficked victims. The first relates to the fact that in determining whether or not to award a payment of compensation to a trafficked victim, the Trinidad and Tobago CICB will give consideration to whether such a person cooperated with the police and prosecutors in the investigation and prosecution of the case,120 as well as the question of whether the conduct of the victim contributed to

113 See generally, N Corthésy and C-A Harris-Roper, Commonwealth Caribbean Employment and Labour Law (Routledge, 2014). 114 Human Rights Council, ‘Report of the Special Rapporteur on trafficking in persons, especially women and children’ Human Rights Council, Joy Ngozi Ezeilo’ (A/HRC/26/37/Add.5, 5 June 2014); Human Rights Council, ‘Report of the Special Rapporteur on trafficking in persons, especially women and children, Joy Ngozi Ezeilo – Mission to Belize’ (n 109). 115 Bermuda Criminal Injuries (Compensation) Act 1973. 116 s 30 (2) Trinidad and Tobago TIP Act. 117 Trinidad and Tobago Criminal Injuries Compensation Act, Chapter 5:31, Act 21 of 1999, amended by Act 14 of 2011. 118 ibid s 35. 119 The Conference of the Parties to the United Nations Convention against Transnational Organized Crime, ‘Compensation of victims of trafficking in persons’ (Working Group on Trafficking in Persons, Vienna, 19 October 2010). 120 s 25 (3)(c) Trinidad and Tobago Criminal Injuries Compensation Act.

Normative Considerations  257 his or her injury/exploitation.121 This provision is somewhat problematic, however, as it is often the case that trafficked victims, by virtue of the egregious nature of the exploitation which they have to endure, simply are not willing to fully cooperate with competent authorities. More specifically, the failure of victims to cooperate with competent national authorities does not invariably mean that these persons are any less ‘real victims’. Rather, the failure to cooperate might reflect victims’ distrust of the authorities, cultural or language barriers, or the existence of severe psychological trauma, among other things. As such, to suggest that victims who do not cooperate with the authorities run the risk of not benefiting from compensation under the CICA is cause for concern. On a related issue, the notion of a victim having ‘contributed to his or her injury’ is also problematic, and may result in victims being denied compensation, notwithstanding the fact that the Trinidad and Tobago TIP Act makes it clear that a victim of trafficking cannot consent to his or her injury/exploitation.122 Additionally, it is somewhat ­regrettable that the CICA does not mandate that the CICB consider submissions made on behalf of trafficked victims by legal officers or NGO representatives.123 Of note, in this regard, is the fact that these submissions might very well be of particular importance when cultural or language barriers prevent victims from fully making representations on their own behalf. Apart from the issues identified above, it is also important to note that the CICA provides that the decision of the CICB is final.124 In other words, an adverse decision made by the CICB on the question of compensation cannot be appealed by a trafficked victim who may feel aggrieved by that decision. The difficulty with the finality of the CICB’s decisions lies in the fact that if the Board were to render an adverse ruling on the basis that the victim in question has not cooperated with the authorities or ‘contributed to his or her exploitation’, there is no conceivable way to have such a decision impugned, although judicial review remains a remote possibility. Another point of uncertainty lies in the fact that the CICA envisages the filing of an application for compensation within one year of the victim’s exploitation, albeit that the Board, in the exercise of its discretion, can extend this limitation period where ‘good cause exists for the delayed application’.125 The wide discretion afforded the Board in this regard, while not unique, raises questions as to how flexible the Board is willing to be when dealing with delicate cases such as trafficking for the removal of organs, where victims may only experience the full extent of the harm sustained after several years have passed since having been exploited. The final point of uncertainty surrounding the application of the CICA lies in the fact that the amount of compensation payable to a trafficked victim in respect of his or her exploitation is, in large part, fixed by the Act to be not

121 ibid

s 25(6). 20 (1) Trinidad and Tobago TIP Act. 123 s 26 Trinidad and Tobago Criminal Injuries Compensation Act. 124 ibid s 28(2). 125 ibid s 32. 122 s

258  Normative Considerations more than $25,000 in ex gratia payment,126 albeit that the relevant minister may, by order, increase the amount payable generally up to a maximum of $50,000.127 Although there has reportedly been no human trafficking case which has been decided upon by the CICB to date, it is noteworthy that the jurisprudence of the Court of Appeal of Bermuda provides an excellent point of reference in so far as the proper conduct of criminal injury compensation proceedings are concerned. In Raynor v CICB,128 for example, Stuart-Smith JA expressed that the broad intent of the Bermuda Criminal Injuries (Compensation) Act is not to meet costs or loss in dollar terms, but rather to express society’s sympathy and compassion for the harm done to the victim. Although the proceedings of the Board are not as formal as the regular courts, the Court of Appeal of Bermuda has, however, held in Herbie Spencer v CICB129 that, for the avoidance of doubt, … it is fundamental that a body such as the Board should provide reasons for its findings. The reasons need not be extensive, but they should be sufficient to explain to the applicant why the Board has concluded that each of the headings in its award is appropriate.130

In this connection, the Court of Appeal took the view in Tajmal Webb v CICB131 that the failure on the part of the Board to provide reasons for its decision permits the Court of Appeal to substitute the exercise of its discretion for that of the Board. More pointedly, while accepting the tariff system imposed by the applicable Act, including the maximum amount which could be claimed by a victim of crime, the Court was nonetheless prepared to request that the chair of the Board revise the Board’s practices and procedures with a view to ensuring that all future proceedings of the Board comply with the principles of natural justice. One of the Board’s practices in relation to which the Court expressed its condemnation was the practice of the Board making an award in favour of the applicant for pain and suffering, but then in the same breath reducing this amount on account of medical expenses. In this regard, the Court, quite proactively, called upon those responsible for securing the proper administration of the Act to ensure that there are funds available to allow the Board to discharge its functions under the Act, rather than making an award to the applicant and then reducing it to take into account of medical expenses that had to be paid to doctors who provided their medical services to the victim. It is submitted that the sentiments expressed in the aforementioned Bermudan judgments are, indeed, progressive, and should accordingly be borne in mind by the Trinidad and Tobago CICB.

126 ibid

s 34(1) and (2). s 34(3). 128 Raynor v [2009] Bda LR 19. 129 Herbie Spencer v CICB Civil Appeal No 17 of 2017. 130 ibid [21]. 131 Tajmal Webb v CICB Civil Appeal No 23 of 2017. 127 ibid

Normative Considerations  259

E. Investigation It is perhaps axiomatic that the investigation of human trafficking is an indispensably important aspect of a state’s anti-trafficking machinery. Indeed, without effective investigations into human trafficking, traffickers will operate with virtual impunity, victims will continue to be exploited in the most unimaginable ways and the rule of law will invariably be compromised. This accounts for why, as intimated in chapters three and five, international law places a positive obligation on states to effectively investigate both potential and actual instances of human trafficking. The obligation to investigate human trafficking necessarily requires on the part of state authorities a firm commitment to identify and gather relevant evidence, through the pursuance of both reactive and proactive investigatory techniques,132 including surveillance,133 observations134 and test purchase.135 More specifically, law enforcement officials are obliged to engage in intelligence gathering, rescue operations; obtaining statements from victims; conducting a complete investigation of the trafficking offence; gathering the necessary evidence regarding the commission of the offence; proffering charges against traffickers; preparing case files for submission within a reasonable time to the Office of the Director of Public Prosecutions; as well as collecting and sharing data on operations. While members of the Counter-Trafficking Units in the respective islands typically take the lead in this regard, police officers and immigration officers remain cognisant that, as the law enforcement arm of the state, they are under a non-delegable due diligence obligation136 to enter suspicious premises, search said premises, seize property and make arrests, where necessary. More generally, in appropriate cases, labour inspectors are also obliged to enter, inspect, take photographs of and examine,137 at reasonable times, any premises, presumably including domestic spaces, where a trafficking-related offence might be committed.138 132 ss 30–36 Antigua and Barbuda TIP Act; s 18 Bahamas TIP Act; s 25 Barbados TIP Act; s 29(1) Belize TIP Act; s 13 Cayman Islands TIP Act; ss 34–36 Grenada TIP Act; s 13 Guyana TIP Act; s 14 Jamaica TIP Act; s 13 St Kitts and Nevis TIP Act; s 16 St Lucia TIP Act; s 17 St Vincent and the Grenadines TIP Act; s 13 Trinidad and Tobago TIP Act; ss 27–31 Turks and Caicos Islands TIP Ordinance. 133 ‘Surveillance measures’ typically involve planned and structured ‘keeping watch’ of premises for suspicious activities. Implementation Review Group, ‘Review of implementation of the United Nations Convention against Corruption’ (4th session, Panama City, 26–27 November 2013) 18 November 2013 (referring to the fact that electronic surveillance is rather new and untested, but authorised under the Interception of Communications Act, 2010). 134 ‘Observations’ are usually a one-off initiative. 135 ‘Test purchase’ typically involves employing undercover agents to make planned and coordinated visits to identified premises whilst posing as clients. 136 Richard Lord, ‘Human trafficking alive in T&T’ Trinidad Guardian Newspaper (5 May 2011). 137 C Pegus, ‘A Review of Child Labour Laws of Trinidad and Tobago – a Guide to Legislative Reform’ (ILO Regional Child Labour Project, International Labour Organization, Sub-regional Office for the Caribbean, 2005) (noting that inspectors may require the owner of premises to provide documents and information to show that all laws are being complied with). 138 See, eg, the Occupational Safety and Health Act, Act No 1 of 2004, s 72(1)(a) (Trinidad and Tobago). cf Labour Officers (Powers) Act Cap 203, Law 26 of 1956, s 3 (Jamaica). Note that the Jamaican Act does not empower labour officers to investigate situations of domestic servitude in the context of private dwellings.

260  Normative Considerations In practice, although there have been relatively few high-profile investigations into human trafficking in the respective Commonwealth Caribbean countries to date, interlocutors are generally of the view that investigators in the region, guided by Standard Operating Procedures,139 are making best efforts to address the ­evolving dynamics of human trafficking.140 For instance, several reports ­indicate that members of the respective Counter-Trafficking Units have investigated, or are at present investigating, a number of actual and suspected trafficking-related offences, including sexual exploitation,141 domestic servitude142 and forced labour.143 More specifically, there have also been reports that competent national authorities, through proactive, intelligence-led, investigations, have uncovered trafficking networks144 and complicit state officials.145 The uncovering of these cases has been supported by the International Criminal Police Organization (INTERPOL),146 which has served as a key focal point between law enforcement agencies in the English-speaking Caribbean and similar agencies in the Spanishspeaking countries,147 including Columbia and the Dominican Republic. The National Crime Agency and the Joint Regional Communications Centre have also assisted greatly in so far as the provision of intelligence is concerned.

139 eg, the Law Enforcement Guide to Investigation in the case of Jamaica; the Investigation O ­ perations Manual in the case of Trinidad and Tobago; and Standardized Screening Procedures (SSPs) in the case of St Vincent and the Grenadines. See ‘TIP Task Force rejects US State Department 2013 Report on Guyana – says lacks credibility’ (Government Information Agency, 11 July 2013); Jamaican Law Enforcement Guide to Investigation Manual: Practicalities of the Trafficking in Persons [Prevention, Suppression and Punishment] Act 2007 (International Organization for Migration, 2007); ‘Human trafficking: T&T gets US kudos’ Trinidad Express (Port of Spain, 23 June 2014); Nelson King, ‘Trafficking in Persons Report “inaccurate”, “unfounded”: SVG’ (Caribbean Life, 28 June 2013). 140 See, eg, ‘Human Trafficking continues to pose a challenge in Belize’ The San Pedro Sun (24 March 2018); ‘National Plan of Action for the Prevention and Response to Trafficking in Persons 2017–2018’ (Ministerial Task Force on Trafficking in Persons, 2017); ‘Guyana achieves highest ranking in US human trafficking report’ Stabroek News (28 June 2017); Human Rights Committee, ‘Consideration of reports submitted by States parties under article 40 of the Covenant’ (CCPR/C/JAM/4, 15 May 2015); ‘Two women are among a group of six persons arrested this morning at a house on Washington Drive in St Andrew’ (Nation Wide Radio Jamaica, 30 January 2018). 141 ‘Guyanese among 13 held in Jamaica human trafficking ring raid’ Stabroek News (17 September 2010); ‘Police Clamp Down on Human Trafficking’ (The Jamaica Constabulary Force, 2 February 2014); ‘Businesswoman on human trafficking charge faces court next year’ Jamaica Observer (24 September 2013). 142 A Braham, ‘Govt Establishes Shelter for Victims of Human Trafficking’ (Jamaica Information Service, 21 June 2013). 143 ‘Local officials under investigation for human trafficking’ C-News (5 December 2013). 144 ‘CDA Uncovers Suspected Human Trafficking Ring’ (Child Development Agency, 12 March 2013). 145 See, eg, Kevon Felmine, ‘Businessman linked to human trafficking ring’ Trinidad Guardian (28 March 2013) (a Colombian man was arrested during a sting operation after he allegedly offered immigration officials $20,000 for the return of the women. A police officer also was questioned for his involvement in the operation of the hotel). 146 INTERPOL, ‘Connecting Police for a Safer World’ (INTERPOL, 2014). 147 An interlocutor in Trinidad and Tobago pointed to a case in which a Columbian woman was held in the country for a week. After the family of the alleged victim made contact with INTERPOL, an investigation into the matter was commenced, leading to the identification of the person as a victim of trafficking.

Normative Considerations  261 Notwithstanding the positive strides identified above, however, it is important to note that a number of institutional and operational challenges continue to arise in practice which undoubtedly impede the effectiveness of investigations into human trafficking in the states concerned. The first of these challenges is geographical or topographical in nature. More specifically, Guyana’s total landmass is 83,000 square miles, which is roughly equivalent to the size of Great Britain, but its population size is just over 750,000.148 The reality, therefore, is that large expanses of Guyana, including several mining camps in the ‘hinterland’ communities where trafficking frequently takes place,149 are simply not subject to law enforcement surveillance.150 In fact, several sources indicate that even where raids are conducted in these areas on the basis of sound intelligence, traffickers are hardly ever apprehended151 due, in large part, to the inability of investigators to reach remote communities, as well as the general unwillingness of some members of the community to cooperate with investigators in this regard.152 Investigators in St Vincent and the Grenadines, in particular, reportedly face relatively similar operational challenges, given the fact that St Vincent and the Grenadines is a multi-island nation that is comprised of 32 islands and cays, eight of which are inhabited. In practice, this poses significant surveillance challenges for the limited number of specialist officers currently leading the Anti-Trafficking Unit in that country. Added to this is the fact that, like Guyana,153 the process involved in reaching remote areas in Dominica,154 Grenada,155 and St Vincent and Grenadines where trafficking-related offences might be taking place is s­ ometimes impeded by the hilly topography that characterises these islands. Further afield, according to interlocutors in several other Caribbean islands, the exorbitant costs associated with conducting investigations,156 in addition to limited access to advanced technology, the unavailability of a cadre of skilled personnel157 and, indeed, the lack of requisite motivation on the part of some investigators are perennial challenges that arise in practice.

148 ‘Synopsis of Guyana’: www.guyana.org/guymap.html. 149 John Richards, ‘Human Trafficking conditions in Guyana are “horrific”, says INTERPOL Director’ Guyana Guardian (4 May 2018). 150 ‘Human Services, Natural Resources Ministries collaborating to combat TIP’ (Ministry of Labour, Human Services and Social Security, 2013). 151 ibid. 152 ibid. 153 David Jessop, ‘Crime has an adverse effect on Caribbean development’ Stabroek News (27 January 2013); ‘Guyana 2012 Crime and Safety Report’ (Overseas Security Advisory Council, 4 July 2012). 154 Ken Richards, ‘Dominica fights human trade’ (BBCCaribbean.com, 28 October 2005). 155 ‘Ghanaian charged with human trafficking’ Grenada Informer (30 April 2015). 156 US Department of State, ‘2017 Trafficking in Persons Report Country Narrative: United Kingdom’ (Office to Monitor and Combat Trafficking in Persons, 2017); ‘Greater resources needed to fight human trafficking’ Loop News (27 April 2018). 157 ‘2018 Trafficking in Persons Report’ (Office to Monitor and Combat Trafficking in Persons, US Department of State, 2018); Human Rights Council, ‘Report of the Special Rapporteur on trafficking in persons, especially women and children, Joy Ngozi Ezeilo – Mission to Belize’ (n 109).

262  Normative Considerations Moreover, various sources revealed that threats issued by traffickers against investigators, including NGO representatives,158 as well as the conflation of trafficking with other illegal activities, such as human smuggling, by some first responders, also impede the efficacy of investigations into trafficking-related offences in the Commonwealth Caribbean. Additionally, the low number of CCTV cameras and, indeed, police officers patrolling high-risk areas in some countries has been described as ‘totally unacceptable’.159 Furthermore, despite the increased focus on the use of intelligence gathering techniques in trafficking investigations, it remains the case that lead anti-trafficking investigators in some Caribbean countries do not all command what some interlocutors describe as a ‘certain presence’, often being ignorant of the ‘bigger picture’. More pointedly, it appears that some investigators, particularly in Trinidad and Tobago, simply do not view human trafficking as a serious problem. While various interlocutors160 attributed these negative attitudes on the part of these investigators to the weak entry requirements and lax training protocols for new officers joining the police force,161 others see the lack of standardisation with regard to intelligence sharing as a key challenge.162 Another pressing consideration is the prevailing ‘mindset’ or ‘hegemonic assumption’ countenanced by a number of police officers that when raiding ‘whore houses’, those in breach of anti-prostitution regulations are the prime targets of such investigations, and not traffickers, as such. This may be due in large part to the absence of standard departmental orders within some police forces that would otherwise explicitly spell out the requirement that when raiding brothels and nightclubs, officers should be open to the possibility that victims of trafficking might very well be among those identified. More generally, perhaps the greatest challenge to effective anti-trafficking investigations in the Commonwealth Caribbean is the uneasy relationship between the police and members of the community. More specifically, various sources revealed that in a number of countries, this relationship is characterised by a widespread perception of police corruption,163 which has bred an attitude of distrust164 and overall low confidence165 in the ability of investigators to ­initiate 158 ‘Guyanese victims in TT trafficking ring’ Guyana Times (10 April 2014) (revealing that CURB volunteers were threatened, followed and had their telephones monitored for their awareness campaign). 159 ‘My Crime Reduction Plan for Trinbago’ (Legal Rights, Trinidad and Tobago, 1 June 2010). 160 A Franklin, ‘Prevention and Suppression of Transnational Organized Crime’ (Institute of Marine Affairs, 2008) (noting that the efficacy of investigations in T&T is compromised by the limited capabilities of law enforcement and security agencies, as well inadequate liaison and information sharing with external partners). 161 An interlocutor in one country noted that at present, it only requires 3 O level passes to enter the police force. 162 ‘Study Finds Trafficking in Persons Have A “Deleterious” Impact on Trinidad And Tobago’ Pride News Magazine (10 January 2014). 163 S Walker, ‘Getting Smart and Scaling Up: The Impact of Organized Crime on Governance in Developing Countries – A Desk Study of Guyana’ (New York University, 2013) 197. 164 ‘Public confidence in police dangerously eroded – PSC’ Guyana Times (27 January 2014). 165 Alissa Trotz, ‘Public Confidence, Public Accountability and the Police’ Stabroek News (3 February 2014; Alissa Trotz, ‘Police Force needs major transformation to remain relevant – Rohee’

Conclusion  263 transparent investigations into human trafficking. In fact, various interlocutors indicated that police officers are typically referred to as ‘vicious brutes from a veritable “Babylon”’,166 most notably because of the perception that they operate as if ‘normal rules do not apply to them’.167 Against this backdrop, police officers in a number of Caribbean countries reportedly do not consistently receive a high level of support from members of the community when carrying out investigations into trafficking-related incidents. In fact, members of certain communities in Jamaica, for example, simply do not wish to be identified as ‘informers’ and, therefore, do not routinely make reports of suspicious activities to the police. This disconcerting reality has been attributed to a number of factors, including the perception that police officers are actually the real perpetrators of crime;168 the perception of a lack of professionalism that characterise many police officers; as well as an alleged ‘wild, wild, west’ attitude on the part many police officers when interacting with members of the community. In sum, in light of the foregoing, it can be argued that although investigations into trafficking-related offences in the Commonwealth Caribbean are ‘still at an embryonic stage’,169 existing state practice suggests that more needs to be done to ensure that these investigations are more targeted, strategic and, indeed, proactive.

Conclusion This chapter sought to interrogate the normative aspects of Commonwealth Caribbean anti-trafficking law and practice from an Analytical Eclectic perspective. More specifically, it was aimed at exploring whether there is a ‘disconnect’ between anti-trafficking law and practice in areas which concern the criminalisation and investigation of human trafficking and the provision of compensation to trafficked victims. The central argument advanced by this chapter is that although considerable progress has been made in the last decade in strengthening efforts to criminalise human trafficking, more necessarily remains to be done. This is particularly the case in relation to the investigation of human trafficking, the confiscation of tainted assets and the provision of compensation to victims of trafficking.

Guyana Times (Georgetown, 25 April 2014); Alissa Trotz, ‘Restoring confidence in the police’ Stabroek News (2 February 2003). 166 R Gonsalves, ‘The Fight Against Crime in St Vincent and the Grenadines’ (Office of the Prime Minister, St Vincent and the Grenadines, 2010). 167 Gordon Robinson, ‘Jamaica Gleaner News – Beat down Babylon’ Jamaica Gleaner (4 June 2013). 168 See, eg, William Ysaguirre, ‘Human trafficking – a growing problem in Belize’ The Reporter (13 October 13 2017). 169 ‘Challenges preventing police from solving more murders – Crime Chief Persaud’ Guyana Chronicle (13 December 2013).

7 Institutional Aspects of Caribbean Anti-Trafficking Law and Practice Introduction While the enactment of laws that criminalise human trafficking is undoubtedly an important part of a state’s anti-trafficking machinery, international law requires that states do more. Indeed, as intimated in chapter three, international law mandates, inter alia, that states take requisite steps to operationalise a robust and functional institutional apparatus that addresses the multifarious nature of human trafficking. It is against this backdrop that this chapter has been conceptualised. More specifically, this chapter seeks to interrogate the law and practice on human trafficking in the Commonwealth Caribbean in an effort to determine whether there are institutional deficiencies in the manner in which trafficking is regulated in the region. In short, the chapter attempts to assess, from an Analytical Eclectic perspective, the extent to which a ‘disconnect’ exists between anti-trafficking law and practice in the Commonwealth Caribbean, which necessarily requires amelioration.

I.  Human Trafficking on the National/Regional Agenda Notwithstanding the fact that ‘the sudden introduction of [Commonwealth Caribbean anti-trafficking statutes] was less a response to the problem of human trafficking and more a reaction to external pressures’,1 competent national authorities in the respective countries examined by this monograph have sought, in sometimes ‘drastic’ fashion,2 to place human trafficking at the forefront of their national agendas. 1 K Adair, ‘Human Trafficking Legislation in the Commonwealth Caribbean: Effective or Effected’ in D Berry and T Robinson (eds), Transitions in Caribbean Law: Lawmaking Constitutionalism and the Confluence of National and International Law (Ian Randle Publishers, 2013) 148. 2 Child Rights International Network, ‘Trinidad and Tobago: Child Rights References in the Universal Periodic Review Trinidad and Tobago’ (12th Session CRIN, 5 October 2011) (noting that the government of Trinidad and Tobago has taken drastic steps to reduce the impact of violent crimes in Trinidad and Tobago by the introduction of various pieces of legislation, such as the Trafficking in Persons Act 2011).

Human Trafficking on the National/Regional Agenda  265 These efforts have been manifested in a number of ways. At an operational level, there has been a marked improvement in institutional capacity in various areas, including training and sensitisation and stakeholder collaboration. At a structural level, the respective states have also taken significant steps in the direction of reducing vulnerability to human trafficking through investing large sums3 on measures aimed at reducing poverty4 and stigma and discrimination, while simultaneously improving access to education,5 healthcare6 and employment opportunities.7 Efforts have also been directed at improving the respective states’ criminal justice systems,8 while specialised bodies such as Counter-Trafficking Units and National Anti-Trafficking Task Forces9 have been operationalised.10 Collectively, these legislative, operational and structural commitments are intended to create an antitrafficking institutional framework that is robust enough to effectively achieve the myriad obligations which these states must satisfy under international law.11 Since the passage of the respective TIP Acts, there is a growing body of evidence which suggests that high-ranking officials from across the Commonwealth

3 ‘In 2012: Large sum expended on providing services for vulnerable’ (Ministry of Labour, Human Services and Social Security, 2013). 4 ‘National Economic and Social Development Plan 2013–2025’ (Government of St Vincent and the Grenadines, 11 January 2013). 5 See, eg, US Government, ‘Findings on the Worst Forms of Child Labor – Trinidad & Tobago’ (United States Department of Labor, Bureau of International Labor Affairs, 2012) (noting that the government of Trinidad and Tobago has put in place several programmes designed to encourage children to remain in school, including a school meal programme providing breakfast and lunch to children from low-income families, a book grant programme and a School Support Services Programme to aid high-risk students with homework, counselling and other services). 6 Note that the Jamaica Social Investment Fund has funded a number of social intervention programmes that could assist in poverty reduction thereby reducing vulnerability to human trafficking. The Planning Institute of Jamaica is also currently working on a comprehensive approach to social intervention. ‘Vision 2030’ is also a useful resource that provides a comprehensive development plan that could potentially impact the efficacy of Jamaica’s response to human trafficking. 7 ‘The future of work in the Caribbean. What do we know? What do we need to know?’ (International Labour Organization, SALISES Research consultation, UWI, St Augustine Campus, Trinidad and Tobago, 4 December 2017). 8 See, eg, R Gonsalves, ‘The Fight Against Crime in St Vincent and the Grenadines’ (Office of the Prime Minister, St Vincent and the Grenadines, August 2010). 9 ‘National Commission on Crime Prevention’ (Government of St Vincent and the Grenadines, 2014); ‘General Information – Human Trafficking’ (Ministry of Foreign Affairs, Nassau, The Bahamas, 2017); Human Rights Committee, ‘Consideration of reports submitted by States parties under article 40 of the Covenant – Belize’ (CCPR/C/BLZ/1, 26 September 2017); G Nicholas, ‘Integrating crime prevention and criminal justice into the wider United Nations agenda to address social and economic challenges and to promote the rule of law at the national and international levels, and public participation’ (13th United Nations Congress on Crime Prevention and Criminal Justice, 12–17 April 2015); ‘Statement at the Adoption of the Outcome of the Universal Periodic Review of Trinidad And Tobago Geneva’ (Human Rights Council’ 22 September 2016). 10 ‘Tackling Human Trafficking in Guyana’ (Ministry of Labour Human Services and Social Security, 2013). 11 Art 9(1) and (5) Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime in 2003 (UN Trafficking Protocol).

266  Institutional Considerations ­ aribbean12 are actively ‘speaking out’13 against the scourge of human traffickC ing at both the national and international level, as well as consistently reiterating their respective states’ commitment to fulfilling their international obligations.14 More specifically, there have been several instances in which state officials have called upon their citizenry as well as their regional and international counterparts to eliminate the ‘dehumanizing practice’15 of human trafficking through ‘new, imaginative and vigorous multifaceted approaches’,16 as well as the ‘long-­standing discrimination’17 which fuels it. Jamaica has also taken the additional step of appointing a National Rapporteur on Human Trafficking, a first for the Commonwealth Caribbean, whose responsibility it is to conduct independent investigations into alleged instances of human trafficking where the need arises; to report on violations, wherever they may occur, of the rights of victims, as well as discrimination, threats or use of violence, harassment, intimidation or reprisals directed at persons exercising these rights; and to provide an analytical overview of the situation on trafficking in an annual report to the Government of Jamaica.18 Jamaica has also, quite progressively, implemented the Integrated Trafficking in Persons Information System and Database to support law enforcement efforts to combat human trafficking in Jamaica. The database collates and manages information in nine primary areas, including data on the victim and the trafficker; the trafficking process; the nature of the exploitation in question; the response of competent national authorities; trafficking investigations; the trial process; the appeal process; and post-trial developments.19 Notwithstanding the strong symbolic value of the foregoing efforts, however, a number of institutional challenges nonetheless continue to arise in practice. The main challenge, in this context, surrounds the respective governments’ continued

12 See, eg, ‘Dr Ralph Gonsalves On Human Trafficking In SVG’ NBC SVG (25 June 2014). 13 Rhonda Rambally, ‘T&T makes some progress in tackling human trafficking’ Trinidad Guardian (4 July 2011); Krystel Rolle, ‘Nottage: Human trafficking a growing problem in The Bahamas’ Nassau Guardian (3 September 2013); ‘Barbados under threat from human trafficking – PM’ Jamaica Observer (17 April 2016). 14 See, eg, Andrea Braham, ‘PM Calls for United Effort to Fight Human Trafficking’ (Jamaica Information Service, 30 September 2013) (Jamaica’s Prime Minister, Portia Simpson-Miller at the UN General Assembly, was of the view that ‘we must unite in our efforts to eliminate this transnational scourge and bring an end to human trafficking, particularly among our women and children. We must ensure that in this modern time we do not have a re-enactment of slavery. We must stamp it out, wherever it exists, and bring the perpetrators to justice; we must protect the future generations’); Donn Bobb, ‘Jamaica reiterates its political commitment to the fight against human trafficking’ (United Nations Radio, 17 May 2013). (A senior representative from the Anti-Trafficking Secretariat noted that ‘the Government of Jamaica accords the highest level of political commitment to the fight against human trafficking and unequivocally denounces the scourge’). 15 ‘PM commits to prosecute human trafficking’ Newsday (2 December 2013). 16 Rickey Singh, ‘Time for regional war on human trafficking’ Trinidad Express (23 June 2012). 17 ibid. 18 Gordon Dillow, ‘Jamaica Appoints Caribbean’s First Human Trafficking ‘Rapporteur’ (Dialogo Americas, 7 April 2015). 19 ‘New database supporting Ja’s fight against human trafficking’ Jamaica Observer (29 August 2016).

Human Trafficking on the National/Regional Agenda  267 insistence that human trafficking is not a major problem in their jurisdictions,20 on the one hand, and the United States’ (US) as well as NGOs’ insistence that the respective governments are in a state of denial, on the other.21 More specifically, the US’ continued labelling of Commonwealth Caribbean states as ‘source, transit and destination countries’22 in respect of trafficking in persons has resulted in state officials from across the region consistently asserting that trafficking is given ‘priority one status’ in their respective jurisdictions, and that their respective governments continue to allocate expenditure23 that is ‘disproportionate to the scale of the problem’.24 Some officials have also vehemently asserted that the unfair labelling of Caribbean countries by the US as major trafficking routes has a chilling effect on the ‘local investment climate’,25 and that, in any event, it is inherently unfair to judge the quality of a state’s anti-trafficking efforts by the number of successful convictions that have been secured.26 In this context, former Attorney General of Barbados, Adriel Brathwaite, only recently criticised the US for labelling Barbados as a source, transit and destination country for human trafficking, noting that ‘it does annoy me, in all seriousness, that someone sits in Washington, writes a report every year, changes very little in the report and then determines the fate of [almost 300,000] citizens here by a stroke of a pen’.27 Similarly, in relation to the US Annual TIP Report, the government of Jamaica has forcefully expressed that ‘the negative inference seems to be derived from conjecture rather than being evidence-based, which is a recurring feature of the Report’,28 while Belize’s Foreign Minister, Wilfred Elrington, has criticised the US’ unceremonious removal of Belize from the temporary work visa programme (H-Two-A and H-Two-B) that previously allowed Belizeans to work for US companies in the agricultural and hotel sectors because of its tier three status. Elrington, in this connection, expressed that there is no ‘evidence which suggests that our people are involved in human trafficking’.29 Similar sentiments, in a legal context, have been expressed by Belize’s Attorney General, who has stated: I try to convince the State Department that we don’t have as many cases as they say we have. What they want to see are figures, they want to see arrest, they want to 20 ‘Inter-Agency Task Force launches TIP Report’ (Ministry of Labour, Human Services and Social Security, 2008); ‘Human Trafficking Not Prevalent in Guyana, says Report’ (South-South Information Gateway, 5 December 2008); ‘Dominica puts a stay on visas for Haitian nationals’ Jamaica Observer (19 January 2015). 21 Svetlana Marshall, ‘Motion passed to probe human trafficking’ Guyana Times (23 May 2013). 22 ‘Guyana: Transnational Issues’ (CIA Factbook, 2011). 23 See, eg, ‘Antigua and Barbuda’s Annual Report on Trafficking in Persons 2017’ (Trafficking in Persons (Prevention) Committee, December 2017). 24 ‘TIP Task Force rejects US State Department 2013 Report on Guyana – says lacks credibility’ (Government Information Agency, 11 July 2013). 25 ‘Guyana unfairly targeted in US trafficking persons reports, says president’ (WINN FM 98.9, 21 June 2013). 26 ‘US TIP Report on Guyana inaccurate – Human Services Minister’ Trakker News (28 June 2014). 27 George Alleyne, ‘Barbados bristles at human trafficking ranking’ Caribbean News Life (23 February 2018). 28 ‘Jamaica rejects US report on human trafficking’ The Guardian Nigeria Newspaper (29 July 2015). 29 ‘Belize reacts to US ban from temporary work visas’ Jamaica Observer (19 January 2018).

268  Institutional Considerations see convictions but I told them that I don’t know how it is in the US but in Belize a person is presumed innocent until proven guilty and we don’t arrest people unless you have evidence. So, you can’t be arresting people in a small society damaging people’s reputation and then we have no evidence because you will never get over that stigma for being arrested for something that appears to be a sex crime or a human trafficking crime.30

The challenges of securing convictions for human trafficking in the Commonwealth Caribbean, like other places across the world, are not new. Indeed, for as much as a crime might have been committed, if there is no cogent evidence to establish the Crown’s case against the accused beyond a reasonable doubt, there can be no conviction. This explains why, for example, a Crown counsel in St Vincent and the Grenadines recently withdrew a prosecution against a man who was alleged to have trafficked three Jamaicans for the purpose of forced labour. In explaining his decision to withdraw the case, the prosecutor noted that while there was evidence of recruitment, the prosecution had problems proving the element of exploitation. More specifically, he cautioned, ‘sometimes you might figure you have a case on paper, but when the witnesses are tested by cross-examination, you will see certain gaps in the case, and we saw that we would have had problems proving exploitation’.31 Against this backdrop, it is fair to say that in an adversarial system of criminal justice, a methodology that measures the success or failure of a country in respect of its efforts to combat human trafficking by reference mainly to successful convictions is unfair, unrealistic, crude and problematic. Despite these realities, however, there remains a widespread perception among NGO interlocutors across the Commonwealth Caribbean that regional governments are ‘adept at saying the right things’32 but in practice lack the requisite political will to combat human trafficking in its various forms.33 Notwithstanding the fact that human trafficking is now included as an integral aspect of each state’s National Plan of Action against Human Trafficking,34 some interlocutors have chided what they consider to be a widespread lack of awareness as to the seriousness and profound implications of human trafficking, allegedly even among members of the executive arm of regional governments. It would appear that the lack of institutional awareness about human trafficking in the Commonwealth 30 ‘Belize refocuses efforts to address human trafficking’ (Channel5Belize.com 25 August 2017). 31 ‘Case collapses, but investigators lauded’ The Vincentian (25 April 2016). 32 ‘Trinidad and Tobago: The Beginnings of a Human Trafficking Investigation’ (The Human Trafficking Project, 14 March 2011). 33 Don Mitchell, ‘Commentary: Brothel keeping in Anguilla’ (Caribbean News Now, 12 January 2018). 34 ‘New TIP Action Plan underway – aims to reduce vulnerability of youths to traffickers’ lure’ (Ministry of Labour, Human Services and Social Security, 2014); ‘Trafficking in Persons Report – Belize’ (Office to Monitor and Combat Trafficking in Persons, US Department of State, 2018); Human Rights Council, ‘Report of the Special Rapporteur on trafficking in persons, especially women and children, Joy Ngozi Ezeilo – Mission to Belize’ (A/HRC/26/37/Add.6, 11 June 2014); ‘National Plan of Action for the Prevention and Response to Trafficking In Persons 2017–2018’ (Ministerial Task Force on Trafficking in Persons, 2017).

Human Trafficking on the National/Regional Agenda  269 Caribbean is not due to a lack of access to information, but rather a widespread perception that other forms of criminal activity, such as drugs and arms trafficking, warrant priority status over human trafficking. Interlocutors in Trinidad and Tobago, for example, attributed this lack of awareness among members of the state apparatus to the fact that, over the last couple of years, there have been at least three changes to the post of Minister of National Security in that country, which has meant that renewed efforts have constantly had to be taken so as to educate each new minister about the need to prioritise efforts against human trafficking. While these are unmistakable challenges for which innovative solutions are no doubt required, it would be disingenuous not to highlight the major strides which have been made to date to raise the public and institutional profile of human trafficking across most Commonwealth Caribbean countries. In this connection, it is noteworthy that awareness-raising efforts in the region, which have largely been supported by various local NGOs, faith-based and other community-based organisations,35 as well as key international partners, including the International Organization for Migration (IOM),36 the Organization of American States (OAS) and the United Nations Development Programme (UNDP), have taken myriad forms, including the hosting of anti-trafficking press conferences;37 radio38 and television programmes;39 newspaper editorials and commentaries;40 blog postings;41 public forums, workshops42 and sensitisation sessions.43 These initiatives are typically conducted at schools, government departments, service clubs44 and churches45 and in vulnerable communities.46 In addition to frequently making official public statements,47 competent national authorities in the respective 35 See, eg, ‘Guyana’s Network to counter-trafficking in persons’ (Ministry of Labour, Human Services and Social Security, 2010). 36 ‘Saint Lucia Committed to Fighting Human Trafficking’ The Voice St Lucia (21 November 2017). 37 See, eg, M Alvarez-James, ‘Jamaica Appoints Caribbean’s First Human Trafficking ‘Rapporteur’ (DIALOGO, 7 April 2015). 38 See, eg, ‘SVG Making Progress on Combating Human Trafficking’ (Government of St Vincent and the Grenadines, 9 August 2012). 39 See, eg, ‘Risk Factors for Human Trafficking’ (National Task Force against Trafficking in Persons, 23 December 2014). 40 See, eg, Carolyn Kissoon, ‘14 suspected trafficking victims detained’ Trinidad Express Newspaper (18 August 2014). 41 See, eg, N Wallin, ‘Breaking the Silence: Human Trafficking and the Struggle for Equality in Guyana’ (Chicago Policy Review, 5 February 2014). 42 T Durbin and J St George, ‘Human Trafficking in Barbados: Achievements and Continuing Hurdles’ (2013) 38 (1–2) Journal of Eastern Caribbean Studies 126. 43 See, eg, ‘Sensitization campaign on child trafficking’ Searchlight Newspaper (Kingstown, 18 September 2012); Frank Discussions at Human Trafficking Sensitization Week’ CARIBANTIGUA (St John’s, 28 September 2013). 44 ‘Public awareness campaign launched in Jamaica to protect vulnerable migrants’ (International Organization for Migration, 24 September 2013). 45 Inga Rhonda King, ‘The appraisal of the United Nations Global Plan of Action to Combat Trafficking in Persons (UN General Assembly, New York, 28 September 2017). 46 ‘Recent Activities’ (Government of Guyana Ministry of Public Security Ministerial Task Force on Trafficking in Persons, 13 December 2017). 47 See, eg, ‘Senate address Human trafficking’ The New Today Newspaper Grenada (26 June 2014); ‘PM wants urgent action against human trafficking’ Antigua Observer (8 April 2010).

270  Institutional Considerations Commonwealth Caribbean states have also publicly disseminated a range of antitrafficking paraphernalia. These have been in the form of handbills, flyers, posters,48 brochures, bags, pamphlets and bumper stickers,49 all bearing anti-trafficking messages50 and, in the case of Jamaica51 and Belize,52 even bus advertisements53 and billboards. Additionally, in Jamaica, human trafficking now forms part of the education curriculum for students at both the primary and secondary levels.54 More generally, whistle-stops55 and cultural and artistic programmes56 showcasing anti-trafficking messages have been undertaken, as well as structured interpersonal exchanges facilitated by trained Community Focal Points, in the case of Guyana. The respective countries have also joined with their international counterparts to observe the International Day against Sexual Exploitation and Human Trafficking of Women and Children.57 Despite the implementation of measures, however, several sources revealed that awareness-raising programmes in many Caribbean countries have produced inconsistent results. Although no comprehensive empirical assessment of the effectiveness of these measures has been undertaken to date, some interlocutors have expressed that awareness-raising measures have, in many respects, failed to incentivise members of certain communities to regard human trafficking as an issue which poses significant risks,58 and about which they must take necessary precautions. Interlocutors in Guyana, for example, attribute this to the fact that many Guyanese nationals, and in particular those residing in the hinterland communities, do not possess even a basic level of education to fully appreciate the nuances associated with human trafficking. That said, even those who have a basic appreciation of what human trafficking is have allegedly conflated trafficking with other phenomena, such as prostitution and smuggling. Meanwhile, in other ­countries,

48 ‘Counter-Trafficking Unit Conducts Outreach Programmes in Secondary Schools in the Essequibo Coast’ (Ministry of Labour, Human Services and Social Security, 2009); ‘Two Human Trafficking Convictions Mark a Major Step Forward for Belize’s Justice System’ (American Bar Association, February 2012). 49 ‘TIP sensitisation campaign taken to Region 9’ (Government Information Agency, 2012). 50 ibid. 51 ‘Country Efforts – Trafficking in Persons (TIP) in Jamaica’ (International Organization for Migration, July 2016). 52 Human Rights Committee, ‘Consideration of reports submitted by States parties under article 40 of the Covenant – Belize’ (n 9). 53 Human Rights Committee, ‘Consideration of reports submitted by States parties under article 40 of the Covenant’ (CCPR/C/JAM/4, 15 May 2015). 54 ‘Human Trafficking Added to School Curriculum’ (Ministry of Education, 2015). 55 ‘Prostitution: One end result of Human Trafficking’ The Vincentian (15 April 2012); ‘Scores march to bring awareness to human trafficking’ Antigua Chronicle (19 October 2015). 56 ‘The National Commission on Crime Prevention Conducts Pan Against Crime Summer Program Starting Next Week’ (Government of St Vincent and the Grenadines, 18 July 2014). 57 ‘Jamaica Observes International Day Against Human Trafficking’ (Ministry of Justice, 2013); ‘Ambassador Hubert Emmanuel attended the 2016 International Workshop on Strategies for Combating Human Trafficking’ (St Lucia Embassy, 2016). 58 See, eg, Human Rights Council, ‘Report of the Special Rapporteur on trafficking in persons, especially women and children, Joy Ngozi Ezeilo – The Bahamas’ (A/HRC/26/37/Add.5, 5 June 2014).

Human Trafficking on the National/Regional Agenda  271 because anti-trafficking awareness-raising initiatives have been ‘spasmodic’, it is widely felt that they have failed to make a significant impact on the most vulnerable group in society – young people – presumably because mostly older women reportedly attend sensitisation sessions. In countries such as the British Virgin Islands and Dominica, which have been badly affected by hurricanes in the recent past, there is reportedly little anti-trafficking awareness activity, as all efforts are directed at assisting in the infrastructural recovery of those islands. More generally, it is also important to note that, at present, some countries lack a robust and comprehensive awareness-raising programme,59 similar to that which obtains in the UK, as discussed in chapter five. Interlocutors in these countries have indicated that the absence of such a programme is perhaps not surprising, given that these countries do not have the necessary infrastructural nor human resource capacity to deal with a potentially high number of trafficked victims being identified and referred, and the attendant services that might be required in this regard, should a major awareness-raising programme be effectuated.60 This lax approach, which is perhaps linked to the low level of political priority currently ascribed to human trafficking in these countries, is further compounded by the fact that there remains a strong cultural demand for the sexual services of trafficked victims in these countries.61 The widespread, unregulated access to pornographic material in many of these countries has reportedly contributed to this perennial demand for sexual services. Moreover, although media houses in the region are increasingly disseminating information relating to the evolving dynamics of human trafficking, and in particular the risks associated therewith,62 it is widely felt that there is, among some media houses, still a noticeable lack of appreciation of the need to deal sensitively with the many intricacies of the phenomenon. This has reportedly resulted in the sensationalising of trafficking cases in some countries, with the ‘juicy stories’ being presented at the expense of stories which genuinely address the plight of trafficked victims. An additional challenge is that in some countries, such as Guyana, bringing anti-trafficking awareness to remote communities which are typically inaccessible

59 Embassy of the United States – Trinidad and Tobago, ‘Trinidad and Tobago national among TIP Heroes 2014’ (20 June 2014). 60 An interlocutor in a particular country explained that one of the major fears in this respect is that if a comprehensive awareness raising programme were to be effectuated and many cases of human trafficking come to the fore, the institutional framework currently in place might not be capable of handling the increasing numbers of victims, or requests for charges to be laid. Evidence of this could be gleaned from an incident in which an anti-trafficking representative spoke on the radio about the indicators of human trafficking, and within minutes, calls were being directed to the radio station, indicating that victims were seen in several areas. It appears that should a prevention exercise of a greater magnitude be undertaken, the institutional arrangements currently in place will invariably be ‘overwhelmed’. 61 Richard Lord, ‘T&T on US human trafficking watch list’ Trinidad Guardian (22 June 2013). 62 ‘TIP Task Force rejects US State Department 2013 Report on Guyana – says lacks credibility’ (n 24).

272  Institutional Considerations by ordinary means of transportation has proven to be highly problematic. The absence of adequate financial resources to effectuate broad-based awarenessraising programmes, as well as limited manpower and expertise, further compound this already delicate state of affairs.

II.  Capacity Building Traffickers are increasingly becoming sophisticated in the execution of their reprehensible ‘trade’ in humans. Indeed, in the last decade alone, traffickers’ modus operandi has evolved so that they no longer timidly lure their victims with bogus advertisements in magazines and newspapers, but with the advent of technology, they now recruit victims using Tinder and other social media platforms anonymously from the comfort of their homes. Once these individuals have been recruited, travel arrangements are seamlessly made online using debit/credit card payments instead of cash. After the victim has arrived at the locus of exploitation, traffickers carefully monitor their every move using various geographical applications that may have been installed on the phone given to the victim. Traffickers and their associates use accounting software like QuickBooks to monitor the income earned from the victims, and to forecast the future expansion of their nefarious trade. Once the victim brings in money, this is then laundered in onshore and, at times, offshore bank accounts, where strict rules on confidentiality prevent disclosure of deposits made. Traffickers and their associates are then paid in virtual currencies, including Bitcoin, instead of cash. Such is the nature of the evolving dynamics of human trafficking in many jurisdictions across the globe, including in some parts of the Commonwealth Caribbean. In recognition of this reality and the attendant need to circumvent the increasingly pervasive threat posed by traffickers, international law63 and, indeed, several Caribbean anti-trafficking Acts64 expressly mandate the training of all ­stakeholders who are actively involved in the fight against human trafficking. While these instruments do not specify what such training shall entail, it is clear that to achieve the three-pronged objective of prevention, prosecution and protection, capacity-building efforts must include, at a minimum, training on the interpretation and application of legislation criminalising trafficking; the investigation of trafficking-related offences; the identification and referral of victims of trafficking; and the prosecution of the various forms of trafficking. In practice, it is apparent that, in pursuance of the obligation to build capacity in respect of human trafficking, a number of Commonwealth Caribbean countries,

63 Arts 10(2) and 29 UN Trafficking Protocol. 64 s 8(2)(a) Antigua and Barbuda TIP Act; s 6(1)(b) Belize TIP Act; s 32 Guyana TIP Act; ss 21(2)(e) and 33(4)(g) St Lucia TIP Act; s 35(1)(h) St Vincent and the Grenadines TIP Act.

Capacity Building  273 in conjunction with the IOM,65 the US Department of State,66 the US Department of Homeland Security,67 the OAS,68 the UNDP, the Office of the United Nations High Commissioner for Refugees69 and INTERPOL,70 as well as several local NGOs,71 have conducted relatively intensive training programmes in relation to various aspects of anti-trafficking law and practice to date. More specifically, personnel from a wide cross-section of the states’ national anti-trafficking community have benefited from training conducted either at home or abroad, including policymakers,72 personnel from the Counter Trafficking Unit, Office of the Director of Public Prosecutions (DPP),73 the police,74 immigration department and labour inspectorate,75 the judiciary,76 as well as various NGOs and religious institutions.77 These multi-sectorial training exercises, which typically include ‘Train the Trainers’ programmes78 have, in large part, focused on a

65 International Trade Union Confederation, ‘Report for the WTO General Council Review of the Trade Policies of Trinidad and Tobago’ (Geneva, 7 and 9 March, 2012); ‘Caribbean Counter-Trafficking Conference’ (End Human Trafficking in the Caribbean, 2010); IOM, ‘Trinidad and Tobago: Terms of Office’ (IOM, 2006); ‘Saint Lucia Police issue human trafficking alert’ St Lucia Times News (12 April 2018); ‘Trafficking in persons workshop’ (St Lucia News Online, 11 April 2018); ‘St Vincent and the Grenadines Report to the 12th Session of the Regional Conference of Women in Latin America and the Caribbean’ (The Gender Affairs Division, Ministry of National Mobilization, Social Development, the Family, Gender and Youth Affairs, 15 September 2013); C Philip, ‘IOM Builds Capacity to Combat Human Trafficking in Trinidad and Tobago’ (International Organization for Migration, 29 April 2016). 66 ‘Human Trafficking Course Participants Visit Minister Dames’ ZNS Bahamas (6 April 2018) (note that a specialised US agency, the International Narcotics and Law Enforcement Agency, takes the lead on anti-trafficking matters in the Caribbean). 67 ‘Country Efforts – Trafficking in Persons (TIP) in Jamaica’ (n 51); Human Rights Committee, ‘Consideration of reports submitted by States parties under article 40 of the Covenant’ (n 43). 68 Carol Williams, ‘Antigua & Barbuda Ready to Crack Down on Human Trafficking, Sex Tourism’ (Caribbean News Digital, 2 April 2011); ‘OAS to train law enforcement officials, judges, and prosecutors in Dominica to identify and combat trafficking in persons’ (OAS, 11 July 2010); ‘OAS to Assist Officials from St. Kitts and Nevis in Combating Trafficking in Persons’ (ZIZ Broadcasting Corporation, 22 May 2011). 69 ‘Report of the Special Rapporteur on trafficking in persons – The Bahamas’ (n 58). 70 ‘Ethically Enhanced Due Diligence and Human Trafficking’ ACAMS Today (9 June 2017); M Tingling, ‘Caribbean Human Trafficking Conference Underway in Montego Bay (Jamaica ­Information Service, 14 June 2016); ‘Members of TCIG Attend Human Trafficking Training’ (Press office, Government of the Turks and Caicos Islands, 28 June 2016). 71 ‘Trafficking in Trinbago App Goes Live’ (PRWeb, 7 April 2014); ‘About’ (End Human Trafficking in the Caribbean, 2014). 72 ‘Cayman steps up focus on human trafficking’ (Cayman News Service, 23 March 2016); Scott MacLaren, ‘Preparing for the Storm’ The Navigator (July 2011). 73 ‘Bahamian officials trained to identify and interview victims of human trafficking’ (The Warnath Group, 19 May 2016). 74 ‘Belize officials receive training in forensic interviewing techniques for human trafficking’ (Breaking Belize News, 2 November 2017). 75 IOM, ‘Victim Identification and Interviewing Techniques’ (International Organization for Migration, 2008). 76 ‘2017 Annual Report – Belize’ (The Human Trafficking Institute, 2017). 77 ‘Barbados Economic and Social Report’ (Research and Planning Unit, Ministry of Finance and Economic Affairs, June 2012). 78 IOM, ‘Trinidad and Tobago’ (Geneva, 2012); ‘Local Stakeholders Continue Training in Preventing Human Trafficking’ (SKNVibes, 6 June 2012).

274  Institutional Considerations number of key issues, such as the intricacies associated with the implementation of the provisions of the respective TIP Acts; victim identification and referral;79 victim care and assistance; child trafficking; and the role of prosecutors and members of the judiciary in the adjudication of trafficking cases.80 In view of these intensive training activities, there is a widespread perception among interlocutors that a good cross-section of the anti-trafficking community in most Commonwealth Caribbean countries is now more informed, empowered, sensitised and equipped than ever before. Suffice it to say, despite these positive developments, some interlocutors have intimated that there is a need for more consistent and targeted training, ­especially for certain groups of stakeholders who have at times been inadvertently excluded from training exercises, including members of the judiciary and media ­personalities.81 As discussed above, media personnel play an important role in bringing to the public’s attention the horrendous experiences which trafficked victims face, so it goes without saying that they must be trained to sensitively and confidentially deal with the intimate details revealed to them about victims so that victims do not become secondarily victimised. Meanwhile, because members of the judiciary play an inescapable role in adjudicating upon trafficking-related cases, they must be frequently trained so that they are not only kept abreast as to the latest developments in the field, but are able to appreciate the trauma experienced by victims while also balancing the accused’s right to a fair trial. More generally, interlocutors in a number of Caribbean countries shared that although a wide range of training programmes have been embarked upon to date, questions arise as to the adequacy and impact of the training received in this connection since, among some stakeholders, such as police officers and social workers, there remains a remarkable lack of understanding of what human trafficking entails, and in particular how to respond to victims’ myriad needs. On a related issue, several interlocutors pointed to the fact that while a number of first responders have been trained to identify and respond to transnational trafficking, a comparatively lower number have received formal training on the issue of internal trafficking. In this context, some interlocutors were adamant that greater emphasis needs to be placed on specialised training directed at newly recruited police officers who are expected to play a more sensitive role in the victim identification and referral process. In other words, those officers, who are expected to interview and assist trafficked victims, should not only have a different temperament from other officers on the front line, but must be trained to be sensitive to the needs of these victims. Without such a nuanced approach, the likelihood is that trafficked victims would be unnecessarily exposed to, at best, an attitude of 79 T Sinkovits, ‘Providing Vital Skills to Prevent and Combat Human Trafficking in Trinidad and Tobago – International Organization for Migration’ (IOM, 2008). 80 ‘Training Programmes’ (Judicial Education Institute, 2013). 81 ‘Guyana’s Response to OHCHR Request for Information on the Implementation of UNHRC Resolution 11/3, October 16, 2009’ (Cooperative Republic of Guyana, July 13, 2009).

Stakeholder Collaboration  275 indifference on the part of police officers, which even if inadvertent, may expose victims to secondary victimisation. Another concern repeatedly highlighted by interlocutors in several states is that there needs to be more effective training of front line investigators on what constitutes the specific indicators of trafficking, so that they do not conflate human trafficking with smuggling and, further, that they do not inadvertently raid ‘whore houses’ with the hegemonic assumption that prostitution, without more, is occurring. A related challenge which affects some countries in the region is the relatively high turnover rate of front line workers who have been trained to deal with trafficking-related issues. In this connection, while interlocutors accepted that change is inevitable and that there are inherently financial considerations accounting for officers’ mobility, they remain concerned that victims who build a professional relationship of trust with specialist officers may be forced to relinquish this relationship on the altar of these officers’ professional mobility. Finally, it has been argued that there is a lack of standardisation in so far as both the content of trafficking training courses is concerned and the manner in which they are delivered. Indeed, because training on trafficking is provided by a wide range of professionals, all with different backgrounds and legal culture, there is a real risk that differences of approach to investigating trafficking, identifying victims and prosecuting offenders may only serve to confuse stakeholders, especially those who are impressionable and who are therefore unable to delineate what is relevant from what is not in the context of their particular jurisdiction.

III.  Stakeholder Collaboration As intimated in chapter one, human trafficking does not exist in a vacuum. Rather, it transcends borders, touching all countries, irrespective of their geographical location, political ideology or economic profile. This accounts for why international law82 and, indeed, domestic anti-trafficking law,83 expressly mandate that robust relationships be forged between all stakeholders actively involved in the anti-trafficking field, at both the local and international levels.84 These ­relationships

82 Arts 9–11 UN Trafficking Protocol. 83 s 8(2)(c) and (h) Antigua and Barbuda TIP Act; s 20(1) The Bahamas TIP Act; s 27(2)(b) Barbados TIP Act; ss 6(1)(f) and (i) and 50(1) Belize TIP Act; s 9(2) Cayman Islands TIP Act; s 16 Dominica Transnational Organized Crime (Prevention and Control) Act 2013 (mutual legal assistance); s 32(1) (a) Grenada TIP Act; ss 18(1), 22(1), 30(3)(f) and 33(1)–(3) Guyana TIP Act; s 9(2) Jamaica TIP Act; ss 21(2)(e) and (f) and 18 St Kitts and Nevis TIP Act; ss 24(1), 28, 33(3), 33(4)(f)–(i) St Lucia TIP Act; s 29(1), 35(1)(a), (g)–(i) St Vincent and the Grenadines TIP Act; s 6(1)(a)–(b), (d)–(g) Trinidad and Tobago TIP Act; ss 41(1), 46(a) Turks and Caicos Islands TIP Ordinance. 84 ss 20 (4), 32(3) and 33(1) Guyana TIP Act; s 10(2) Jamaica TIP Act; ss 35 St Vincent and the Grenadines TIP Act; s 5 Trinidad and Tobago TIP Act.

276  Institutional Considerations should, in principle, cover the prevention, protection and prosecution aspects of anti-trafficking law, including mutual legal assistance85 and extraditions. In practice, Commonwealth Caribbean countries have reportedly developed vibrant and synergistic relationships with several international institutions in the anti-trafficking field, including the IOM,86 OAS, UNDP,87 United Nations Children’s Fund,88 United Nations Office on Drugs and Crime, the Caribbean Development Bank, INTERPOL89 and the International Association of Women Judges. Additionally, state-to-state cooperation in respect of various traffickingrelated matters continues to take place as between the respective Commonwealth Caribbean states and various foreign embassies and consulates, including the US Embassy,90 the Cuban Embassy,91 the Haitian Embassy92 and the Taiwanese Embassy,93 particularly in so far as capacity building, mutual legal assistance and the repatriation of trafficked victims are concerned. More generally, while the OAS and US Department of State have contributed to improving institutional and human resource capacity in the region, it is the IOM which has reportedly had the strongest influence and, indeed, the biggest impact on the development and implementation of anti-trafficking policies in the region.94 More specifically, the IOM has served as a major institutional hub and logistics conduit in the anti-trafficking field by coordinating engagements between the national authorities of the respective Commonwealth Caribbean states, thereby ensuring that the technical aspects of cross-border trafficking investigations, for example, are proactively addressed. Additionally, the IOM has also provided direct assistance to a number of trafficked victims, in addition to having facilitated, in conjunction with the respective Counter-Trafficking Units, the safe repatriation and reintegration of a number of foreign victims of trafficking.95 Other tangible forms of assistance provided by the IOM to date have included funding to cover

85 Ingrid Brown, ‘Jamaica gets help from CARICOM neighbours in human trafficking fight’ Jamaica Observer (18 June 2014). 86 ‘Two Day Human Trafficking Coordination Meeting Currently Underway in Antigua’ (Official Website for the Government of Antigua and Barbuda, 11 April 2013). 87 ‘Country Efforts – Trafficking in Persons (TIP) in Jamaica’ (n 51). 88 ‘National Plan of Action for the Prevention and Response to Trafficking in Persons 2017–2018’ (n 34). 89 Implementation Review Group, ‘Review of implementation of the United Nations Convention against Corruption’ (4th session, Panama City, 26–27 November 2013). 90 Michael Lohmuller, ‘Bahamas Gets US Help to Combat Human Trafficking’ Insight Crime (29 April 2015). 91 ‘4th Round of Cuba–Antigua and Barbuda Migratory Talks in St John’s’ Cuba News (21 April 2018). 92 ‘Report of the Special Rapporteur on trafficking in persons – The Bahamas’ (n 58). 93 ‘St Vincent Signs Two Agreements with Taiwan to Combat Crime’ (Taiwan Embassy, 5 March 2017). 94 Jonathan Martens, ‘IOM calls for action against exploitation on EU Anti-Trafficking Day’ (International Organization for Migration, 18 October 2013). 95 Alison Kentish, ‘Saint Lucia Sends Home Group in First Human Trafficking Case’ (teleSUR English, 27 March 2015).

Stakeholder Collaboration  277 the training of competent authorities both at home and abroad; the provision of facilitators to spearhead various anti-trafficking workshops and conferences; and the provision of a range of public education paraphernalia. At the domestic level, various sources suggest that a reasonably well-­ coordinated relationship characterises the engagements between members of the various domestic agencies charged with investigating cases of human trafficking, identifying, referring and assisting victims and prosecuting offenders, including counter-trafficking units, police forces, ministries of national security, home affairs and social welfare and offices of the Director of Public Prosecutions. With regard to the respective states’ relationship with local NGOs,96 this has been described as ‘encouraging’, with several non-governmental and community-based organisations actively tackling myriad trafficking-related issues, including efforts to reduce the demand for sexual services,97 awareness-raising, as well as the provision of basic supplies to victims of trafficking.98 Notwithstanding the no doubt commendable progress made to date in so far as stakeholder collaboration with respect to combating human trafficking in the region is concerned, various sources revealed that one of the biggest challenges that continues to arise in practice is the apparent uneasy, if not tumultuous, interactions that at times characterise the relationship between competent national authorities in the respective states, on the one hand, and the US, on the other.99 As intimated at the beginning of this chapter, this uneasy relationship stems largely from the fact that the US has been particularly critical of the progress made to date by the respective states in combating human trafficking. In this regard, the US, through its annual Trafficking in Persons (TIP) reports, has repeatedly criticised regional governments for being in a state of denial as to the existence of human trafficking in their jurisdictions and, more specifically, for failing to effectively prosecute traffickers.100 These states have, in turn, responded by critiquing the validity and reliability of data relied upon by the US in arriving at its conclusions. They have, in this context, described the US conduct as unilateral bullying, neo-imperialism, and a dangerous manifestation of US exceptionalism. More specifically, in the recent past the relationship between the US and Guyana, in particular, has deteriorated to the point where the Guyanese government has recently announced that it will no longer be cooperating with the US in so far as responding to questionnaires related to its annual TIP reports.101

96 Joy Persad Myers, ‘Counter Human Trafficking Training and Training for Social Workers – Remarks’ (Ministry of Social Development and Family Services, 24 January 2017). 97 CurbCrime, ‘Train the Trainer Workshop’ (End Human Trafficking in the Caribbean, 26 March 2011). 98 ‘Local officials under investigation for human trafficking’ C-News (12 May 2013). 99 ‘US and Guyana In Partnership on State Department’s Trafficking in Persons Report’ (Nice FM, 9 September 2013). 100 ‘US condemns Guyana again on human trafficking’ Kaieteur News (21 June 2014). 101 ‘TIP Task Force rejects US State Department 2013 Report on Guyana – says lacks credibility’ (n 24).

278  Institutional Considerations On another note, at the domestic level, it appears that collaboration between the respective governments and local NGOs is at times fraught with a number of relational difficulties.102 By way of example, in response to a statement reportedly made by the Guyanese government that human trafficking is not occurring at an ‘alarming’ rate in that country, the Guyana Women Miners Organization (GWMO) engaged in a picketing exercise against the government of that country.103 The Guyanese government, in turn, responded by criticising NGO representatives in that state for seeking ‘plaques and medals’104 from the US, and in particular for seeking unwarranted funding from the government of that country to support their programmes.105 Local NGOs, and in particular the GWMO, are nonetheless adamant that the government takes a lax attitude towards the issue of human trafficking and, further, believe that the government is reluctant to welcome the input of civil society representatives actively working in the anti-trafficking field in its decision-making processes.106 In this connection, the most recent statement issued by the GWMO, at the time of writing, again expressed dissatisfaction with the quality of the relationship between that organisation and the government: If you send cases over to the Government, particularly we will forward our cases over to public security and ministry of social protection and in some cases we have even written to them asking if we can partner to execute a rescue for an area that we have already verified – well we don’t have the resources to execute the rescue. You don’t get any response.107

While the relationship between civil society and the governments of the other countries appears to be more amicable than that which obtains in Guyana, interlocutors in some jurisdictions have nonetheless chided NGOs for submitting unsubstantiated information to international donors, presumably in the hope of maintaining their funding streams. This, according to these interlocutors, not only paints an inaccurate and indeed negative picture of the state of affairs with regard to human trafficking in these jurisdictions, but threatens to compromise ongoing relationships which these governments have forged with international donors. More generally, interlocutors in some Caribbean countries have indicated that, in practice, certain international donor organisations generally refuse to participate in sessions on human trafficking organised by other donor organisations on the basis that they are not the main sponsors of these sessions. This has reportedly resulted in a duplication of efforts, and subtle, if not unhealthy, competition between these donor organisations. In other countries, while NGOs are at least in theory statutorily listed as core participants in the National Task Force, they have 102 See, eg, ‘Situation Analysis of Children and Women’ (United Nations Children’s Fund (UNICEF), July 2016). 103 ‘Women’s rights groups picket Parliament’ Guyana Times (17 April 2014). 104 ‘Rohee, Simona Broomes clash over robbery allegation’ Kaieteur News (26 February 2014). 105 ‘TIP is a gimmick for Parliament – Simona Broomes’ (INews Guyana, 17 April 2014). 106 ‘US condemns Guyana again on human trafficking’ Kaieteur News (21 June 2014). 107 ‘Human trafficking still prevalent – GWMO – Urges Gov’t to Revise the Law’ (NCN Guyana, 8 May 2018).

Victim Identification and Referral   279 nonetheless reported that they have not been afforded the opportunity to fully participate in the work of the relevant Task Force.108 Moreover, in some countries, it has been suggested that competent national authorities are sometimes unnecessarily bureaucratic in their dealings with NGOs in the anti-trafficking field, particularly with regard to the timely release of moneys needed by these NGOs to provide for the myriad needs of trafficked victims. A final point to note is that although some regional countries, such as Jamaica and the Bahamas, have actively collaborated with each other in the investigation of trafficking-related matters, this is reportedly not an area which has gained traction in other countries. More pointedly, it is apparent, having regard to the discussion on stakeholder collaboration in the European context as discussed in chapter four, that regional countries need to move in the direction of formally operationalising Joint Investigation Teams (JITs) to aid in the investigation of trafficking-related cases on a cross-border basis.

IV.  Victim Identification and Referral The proper identification and referral of persons in relation to whom there are reasonable grounds to believe that they have been trafficked is a necessary precondition to a state’s fulfilment of its positive obligation to protect victims of trafficking. Indeed, if victims of trafficking are not correctly identified they will invariably remain in situations of exploitation while their traffickers and associates continue to live their lavish lifestyles, unimpeded. More than this, where victims are not identified they cannot benefit from the support and assistance contemplated by anti-trafficking law, which inevitably creates a chasm between law and practice. Against this backdrop, the TIP Acts in the Commonwealth Caribbean make provision for victim identification and referral. In this connection, it is important to note that while some Acts merely set out a framework for victim identification and referral, thereby leaving it up to the state to formulate and implement relevant guidance/policy, other Acts address this question in a prescriptive manner. In relation to the latter group of countries where legislation addresses the issue of victim identification and referral in a prescriptive manner, it is submitted that Antigua and Barbuda and Grenada fall within this category. Under these states’ respective legislation, the responsibility of victim identification lies both with the police109 and with ‘relevant officials’, who are defined to include an immigration officer, labour inspector, social worker, social service professional, medical practitioner, nurse or teacher.110 More specifically, in relation to police officers, where

108 ‘2011 Findings on the Worst Forms of Child Labour: Trinidad and Tobago’ (International Labour Organization, 2012). 109 s 47(1) Antigua and Barbuda TIP Act; s 23 Grenada TIP Act. 110 ss 2 and 54 Antigua and Barbuda TIP Act.

280  Institutional Considerations there are reasonable grounds to believe that a person who is found or rescued is a victim of trafficking, a police officer may take that person into custody111 and then, within 24 hours or such other period where the person first has to obtain medical attention and treatment,112 bring that person before a magistrate. Once before the magistrate, the police officer would make an application for an interim protection order. Upon hearing the application, if the magistrate is so satisfied that there are reasonable grounds to believe that the person so identified is a victim of trafficking, he may make an interim protection order which has the effect of placing the person at a ‘place of refuge’ for 14 days113 to, inter alia, allow the police to carry out further investigations into the matter. Within that 14-day period after the interim protection order is granted, the police officer must make best efforts to investigate the matter114 and upon completion of said investigation, must prepare a report and produce it before a magistrate for consideration.115 If the magistrate is thus satisfied that there are conclusive grounds to believe that the person brought before him is a victim of trafficking and in need of care of protection, he may grant a final protection order which would enable a citizen or resident of the jurisdiction in question to be afforded protection, support and assistance at a place of refuge for one year116 or three months in the case of a non-citizen/permanent resident.117 This period may, however, be either extended or revoked in appropriate circumstances upon application to the magistrate by a police officer.118 That said, if a conclusive grounds decision is arrived at that the person is not a victim of trafficking, the magistrate may, in the case of a citizen of Antigua or permanent resident, release that person119 or in the case of a non-citizen/permanent resident, release that person in the care of an immigration officer to be dealt with in accordance with the applicable immigration legislation.120 As intimated above, the obligation to correctly identify and refer a victim of trafficking does not only rest with police officers, but also other ‘relevant officials’. These individuals, where they know, suspect or have reasonable grounds to suspect that a person is a victim of trafficking, are obliged under the Antigua TIP Act121 and the Turks and Caicos Islands TIP Ordinance122 to report such knowledge or suspicion to the police so that identification procedures can be commenced. Where such a report is made, the police officer would take the victim into custody, and follow the procedure outlined above, namely bringing that person before a

111 s

47(1) Antigua and Barbuda TIP Act; s 23(1) Grenada TIP Act. 50 Antigua and Barbuda TIP Act; s 26 Grenada TIP Act. 113 s 47(2) Antigua and Barbuda TIP Act; s 23(2) Grenada TIP Act. 114 s 48(1) Antigua and Barbuda TIP Act; s 24(1) Grenada TIP Act. 115 s 48(2) Antigua and Barbuda TIP Act; s 24(2) Grenada TIP Act. 116 s 48(3)(a)(i) Antigua and Barbuda TIP Act; s 24(3)(a)(i) Grenada TIP Act. 117 s 48(3)(a)(ii) Antigua and Barbuda TIP Act; s 24(3)(a)(ii) Grenada TIP Act. 118 s 48(4) and (5) Antigua and Barbuda TIP Act; s 24(4) and (5) Grenada TIP Act. 119 s 48(3)(b)(i) Antigua and Barbuda TIP Act; s 24(3)(b)(i) Grenada TIP Act. 120 s 48(3)(b)(ii) Antigua and Barbuda TIP Act; s 24(3)(b)(ii) Grenada TIP Act. 121 s 54 Antigua and Barbuda TIP Act. 122 s 43 Turks and Caicos Islands TIP Ordinance. 112 s

Victim Identification and Referral   281 magistrate for the purposes of securing an interim and, in appropriate cases, final protection order. Where it is found that a person has failed to comply with the obligation to make a report, he may be subject, on summary conviction, to 12 months’ imprisonment or a fine of $10,000. That said, it should be noted that irrespective of who identifies an adult trafficked victim, whether a police officer or other relevant official, a referral can only take place with the consent of the victim.123 The identification/referral process described above is reminiscent of the National Referral Mechanism (NRM), described in chapter five, which applies in the UK. Indeed, just as in the UK where referrals are made upon there being reasonable grounds to believe that a person has been trafficked, the same applies in Antigua and Barbuda, and Grenada, in particular. One major difference, however, is that whereas Antigua’s and Grenada’s legislation respectively contemplate a 14-day recovery and reflection period, the requisite period in the UK is 45 days. It is submitted that the approach taken by Antigua and Barbuda, and Grenada, while a first step in the right direction, must necessarily be modified to reflect the fact that persons in relation to whom there are reasonable grounds to believe that they are victims of trafficking almost always require more than 14 days to sufficiently recover from the influence of their exploiters, and in so doing, make informed decisions as to whether they wish to proceed with supporting a prosecution or claiming compensation or simply returning home, in the case of migrant victims. Indeed, this is why, as pointed out in chapter four, European anti-trafficking law establishes as a base minimum a 30-day recovery and reflection period. Notwithstanding this, however, it is certainly a welcome development that Antigua and Barbuda, and Grenada’s legislation respectively contemplate that victims of trafficking will be appropriately supported by the state both during the recovery and reflection period and the period in relation to which the final protection order applies. It is also quite a progressive step for these countries to provide discretionary leave to remain of up to three months, subject to the possibility of extension, where there are conclusive grounds that a person has been trafficked. Meanwhile, in other countries, the applicable legislation, rather than being prescriptive in nature, simply require that ‘all reasonable steps be taken to identify victims of trafficking’.124 They also provide, quite instructively, that once victims are identified, they shall be provided with ‘reasonable protection’,125 and that, further, they should not be housed in prisons or detention centres.126 In some countries

123 s 54(5) Antigua and Barbuda TIP Act; s 42(3) Turks and Caicos Islands TIP Ordinance. 124 s 12(1) The Bahamas TIP Act; s 15(a) Barbados TIP Act; s 29(a) Belize TIP Act; s 8(1) Cayman Islands TIP Act; s 13 Guyana TIP Act; s 9(1) Jamaica TIP Act; s 16(1)(a) St Kitts and Nevis TIP Act; s 19(1)(a) St Lucia TIP Act; s 20(1)(a) St Vincent and the Grenadines TIP Act; s 32(a) Trinidad and Tobago TIP Act. 125 s 12(2) The Bahamas TIP Act; s 27(2) Barbados TIP Act; s 6(1)(c) Belize TIP Act; s 8(2) Cayman Islands TIP Act; s 13 Guyana TIP Act; s 9(2) Jamaica TIP Act; s 19(1)(b) St Lucia TIP Act; s 20(1)(b) St Vincent and the Grenadines TIP Act; s 32(b) Trinidad and Tobago TIP Act. 126 s 20(3) The Bahamas TIP Act; s 18(2)–(3) Barbados TIP Act; s 18(6) Guyana TIP Act; s 24(6) St Lucia TIP Act; s 25(5) St Vincent and the Grenadines TIP Act; s 37(3)–(4) Trinidad and Tobago TIP Act.

282  Institutional Considerations also, the applicable legislation empowers the Immigration Department to grant the victim in question authorisation to remain in the country so as to facilitate his or her proper identification and referral.127 In these jurisdictions, the practical details are set out in guidance or policy or standard operating procedures128 which, as discussed in chapter five, although not being on a statutory footing can nonetheless be challenged before the courts were the relevant authorities to act contrary to said guidance. In general, the applicable guidance in these jurisdictions provide that front line officers, including police and immigration officers, labour inspectors, medics, teachers and social workers, are obliged to actively identify persons in relation to whom there are reasonable grounds to believe that they have been trafficked, and refer them to appropriate service providers for care and assistance commensurate with their individual needs. Yet still, in a few countries, guidance on the victim identification and referral was, at the time of writing, being formulated, albeit that in these countries the absence of technical expertise129 and the necessary detail to give effect to said guidance130 were reportedly ongoing challenges. In practice, although it is widely felt that an increasing number of victims of trafficking are being correctly identified and referred to service providers in the Commonwealth Caribbean,131 the operational dimensions of the system of victim identification and referral in some of the countries in the region are reportedly fraught with weaknesses of various kinds.132 The first of these weaknesses lies in the fact that there is, at present, very limited official surveillance, especially in the remote regions of Guyana,133 Belize, Dominica, and St Vincent and the Grenadines, which has raised suspicions that victims of trafficking in these countries

127 s 14(1)(a) The Bahamas TIP Act; s 12(1) Cayman Islands TIP Act; s 13(1)(c) Jamaica TIP Act. 128 eg, The Bahamas formulated Guidelines on Identifying and Referring Victims of Trafficking in 2012; Belize has in place formal written procedures for the identification of victims of trafficking; the Cayman Islands has formulated guidelines for victim identification and referral; Guyana has established Standard Operating Procedures that govern the identification and referral of trafficked victims, with the support of the US Office to Combat and Monitor Trafficking in Persons; Jamaica has Victim Management Guidelines and a Victim Protection Protocol, as well as Standard Operating Procedures that address victim identification and referral; and Trinidad and Tobago has procedures in place to enable victim identification and referral, although they need to be strengthened. See generally ‘Comments by the government to the report of the Special Rapporteur on trafficking in persons, especially women and children – Belize’ (A/HRC/26/37/Add.11, 11 June 2014); J Austin-Smith, ‘HRC-RES-MIGRANTS’ (Cayman Islands Human Rights Commission, 1 December 2015); ‘Recent Activities’ (Government of Guyana Ministry of Public Security Ministerial Task Force on Trafficking in Persons, 13 December 2017); ‘Country Efforts – Trafficking in Persons (TIP) in Jamaica’ (n 51); ‘Trinidad and Tobago: Children’s Rights References in the Universal Periodic Review’ (CRIN, 10 May 2016). 129 US Department of State, ‘2018 Trafficking in Persons Report – Trinidad and Tobago’ (Office to Monitor and Combat Trafficking in Persons, 2018). 130 ‘St Vincent & the Grenadines – Risk & Compliance Report’ (KNOWYOURCOUNTRY.COM, March 2018). 131 ‘Minister Griffith Confirms Safety of Witness Protection Program’ (TT News Flash, 10 May 2014). 132 ‘Two Day Human Trafficking Coordination Meeting Currently Underway in Antigua’ (n 86). 133 G Garton, ‘Guyana’s Unacceptable Stance on Human Trafficking’ (2012) 32(19) Washington Report on the Hemisphere Council on Hemispheric Affairs 3; ‘US condemns Guyana again on human trafficking’ Kaieteur News (21 June 2014).

Victim Identification and Referral   283 might not be routinely identified in practice. The second relates to the fact that many persons in relation to whom there are reasonable grounds to believe they have been trafficked simply do not self-identify as victims of trafficking.134 This has been attributed to a number of factors, including, victims’ perception that they are not ‘real’ victims,135 but rather somehow complicit in their own exploitation; their close attachment to their traffickers (Stockholm syndrome), which prevents them from appreciating the full extent of their exploitation; the ‘normalisation’ of their exploitation, especially in the case of domestic servitude, where many victims believe that they are somewhat economically better off than in their countries of origin;136 prolonged isolation; the non-possession of identity or travel documents;137 restricted freedom of movement; a fear of retaliation from traffickers,138 both to themselves and their families;139 cultural and language barriers; the perception of official complicity; and a basic lack of trust140 in the capacity and, indeed, integrity141 of police officers.142 In relation to the latter point, it is widely felt among interlocutors that some potential victims of trafficking are not identified or referred to service providers because first responders countenance the hegemonic assumption when raiding ‘whore houses’ that persons rescued could never be ‘real’ victims of trafficking. The implications of these first responders countenancing this hegemonic assumption are manifold, but include, for example, the creation of a false dichotomy between those victims who have exercised some degree of agency by being in the vicinity of those ‘whore houses’, on the one hand, and other victims who might be rescued by them on the other; the trivialisation of any exploitation which victims might report to have experienced in these establishments; and the tacit exclusion of victims who are found in these places from the formal national referral mechanism. Suffice it to say, apart from ‘painting everyone who is rescued with the same broad brush’, as indicated by some interlocutors, there is, reportedly, also a basic

134 ‘Major Interpol raids in region … Several rescued from human-trafficking in Guyana’ Kaieteur News (1 May 2018). 135 ‘Message from the Hon Prime Minister on the occasion of International Day for the Elimination of Violence Against Women 2013’ (Office of the Prime Minister, Republic of Trinidad and Tobago, 2013). 136 Curbcrime, ‘Victims of Human Trafficking May Not Know They are Victims’ (End Human Trafficking in the Caribbean, 7 May 2014). 137 It has been reported that some traffickers compose stories for victims to learn in case they are approached by the authorities. The intention of traffickers, in this regard, is to undermine the credibility of victims’ stories were they to be identified as having been trafficked. 138 Karrie Williams, ‘Teens targeted – Couples paying minors to ramp up sexual pleasure’ Jamaica Gleaner (17 November 2013) 4. Some interlocutors suggested that the ‘informer fi dead’ culture is rife in Jamaica. It seems that there is a low value for life, especially among the lower classes of Jamaican society. This may explain why those who attempt to report the issue may be somewhat ostracised, if not killed. 139 Marissa Thomas, ‘Trafficking in the Caribbean’ (Women Speak, 24 June 2012). 140 ‘A cautious tilt at community – police relations’ Stabroek News (15 April 2014). 141 ‘President wants Police Force to clean up house’ (News Source Guyana 25 January 2013). 142 S Randall and J Ramirez, ‘Policing the Police: Formal and Informal Police Oversight Mechanisms in the Americas’ (Canadian Defence and Foreign Affairs Institute, 2011).

284  Institutional Considerations lack of sensitivity surrounding the issue of human trafficking on the part of some first responders in some countries. Added to this is the existence of an increasing number of cases involving complicit state officials, such as police and immigration officers, which has not only painted a negative image of the police force and immigration department, but also contributed to victims not being inclined to provide the requisite information to first responders which might otherwise reveal that they may have been trafficked.143 More generally, there also appears to be, at present, a ‘crisis in public confidence’144 in relation to the police in many parts of the region, which has a number of adverse implications. One of the main implications, in this regard, is that the general public who would otherwise be the key focal point for identifying trafficked victims or at least reporting suspicious activity, simply do not assist the police in their investigations, either because they falsely believe that human trafficking does not occur in their communities, or are simply not inclined to confide in the police for fear that any allegations made by them might not be taken seriously or may be told to traffickers.145 Some interlocutors also indicated that some ordinary citizens do not report suspicious activities that might be linked to human trafficking because they are convinced that the police contribute to criminality through corruption and abuse. Poor police visibility in certain high-risk areas, limited mobile patrols and widespread bureaucracy are also operational challenges which require amelioration.146 Moreover, ignorance among some key stakeholders, including police and immigration officers, as well as the stigma which is generally associated with people who have been sexually exploited, reportedly impede victim identification and referral in the Commonwealth Caribbean. More specifically, many interlocutors remain adamant that ‘society is not kind’ to victims of sexual violence. An additional challenge as reported by interlocutors in some countries is that society in general, and law enforcement in particular, continues to countenance the hegemonic assumption that only foreign born, young females who are forced into prostitution are trafficked victims. This situation is further compounded by the alleged incessant failure by some investigating officers in some countries to correctly distinguish between trafficking and other offences,147 such as prostitution and smuggling.

143 The World Factbook, ‘Trafficking in Persons’ (United States Government, 2013). 144 R Parks and S Mastrofski, ‘Introducing Service-oriented Policing to Trinidad and Tobago’ (Fourth Workshop, Bloomington, Indiana, June 2009). 145 Frederika Whitehead, ‘Caribbean’s high crime rate is hindering development, report says’ The Guardian (17 February 2012) (noting that levels of confidence in the police are low. In Trinidad and Tobago, only 4.6% of respondents said they had ‘a great deal of confidence in the police’). 146 Richard Charan, ‘People trafficking “a problem in T&T”’ Trinidad Express Newspaper (20 June 2012) (noting that identification procedures for the proactive identification of trafficking victims are, at present, insufficient). 147 ‘Guyana’s Response to Request for Information on the Implementation of UNHRC Resolution 11/3 – Trafficking in Persons, Especially Women and Children October 16, 2009’ (Cooperative Republic of Guyana, 13 July 2009) 1–3.

Court Proceedings  285 On another note, reports indicate that some first responders actively involved in the victim identification process, including NGO representatives, are at times subject to ‘devious and malicious attacks’148 intended to distract from the identification process. A lack of adequate training on the part of some first responders; the outright failure by some first responders to follow existing guidance;149 weak screening procedures and assessment protocols; weak technological systems, such as hotlines that operate only in English;150 a lack of awareness about the existence of channels to report potential cases of trafficking without compromising one’s anonymity; and the limited involvement of social workers in victim identification procedures are also major challenges which reportedly impede the effectiveness of national referral mechanisms in the region.

V.  Court Proceedings Regardless of how effectively victims of trafficking are identified or situations of exploitation investigated, if there are no ensuing criminal proceedings that bring perpetrators to justice, then the justice system would have failed these victims in a marked and unforgivable way. For this reason, it should come as no surprise that anti-trafficking law in the Commonwealth Caribbean provides for the efficacious conduct of criminal proceedings in a way that is grounded in principles of fairness and the overall proper administration of justice. As intimated in chapter six, the respective TIP Acts, depending on the offence for which the accused is charged, contemplate the trial of said matters in the magistrates court (on summary conviction) or in the High Court (on indictment). The burden of proof lies on the prosecution to prove the Crown’s case against the accused beyond a reasonable doubt. That said, whereas proceedings in the magistrates court are typically less formal, with the prosecution’s case being led by police prosecutors, proceedings in the High Court are more formal, with prosecutors from the Office of the Director of Public Prosecutions presenting the case on behalf of the Crown against the accused.

A.  Preliminary Enquiry In most jurisdictions in the region, a preliminary enquiry process exists. The preliminary enquiry procedure developed as part of the English common law and operated as such until it was placed on a statutory footing in England and Wales in the sixteenth century. Thereafter, it was received by a number of common law 148 ‘Simona Broomes accused of theft by suspected human trafficker’ Guyana Times (26 August 2013). 149 ‘Trafficking in Persons Report – Belize’ (Office to Monitor and Combat Trafficking in Persons, US Department of State, 2018). 150 ‘Report of the Special Rapporteur on trafficking in persons – The Bahamas’ (n 58).

286  Institutional Considerations countries, including those in the Caribbean. In the Canadian case of Skogman v The Queen,151 the Court examined the historical development of the preliminary enquiry procedure, and explained its overall context and purpose: The purpose of a preliminary hearing is to protect the accused from a needless, and indeed, improper, exposure to public trial where the enforcement agency is not in possession of evidence to warrant the continuation of the process. In addition, in the course of its development in this country, the preliminary hearing has become a forum where the accused is afforded an opportunity to discover and to appreciate the case to be made against him at trial where the requisite evidence is found to be present.152

Citing the learned G Arthur Martin, QC, the Court further explained that: The preliminary hearing has two aspects. Its primary purpose, of course, is to ascertain whether or not there is sufficient evidence to warrant the accused being placed upon his trial. In determining this, a magistrate, who is conducting a preliminary hearing is not determining whether or not the accused is guilty or not guilty. His function is to ascertain whether or not there is sufficient evidence to induce the belief in the mind of a cautious man that the accused is probably guilty. Therefore, considerations of reasonable doubt have no application at this stage of the proceedings. … From the point of view of defence counsel the preliminary hearing has another aspect. It affords counsel an opportunity of ascertaining the nature and the strength of the case against his client and it may be likened in that respect to an Examination for Discovery.153

The statutory basis for preliminary enquiries in the Commonwealth Caribbean can be found in various pieces of legislation relating to magistrates’ jurisdiction,154 such as the Grenada Criminal Procedure Code (CAP 72B).155 Under this particular instrument, the following procedure is typically adhered to: • The prosecution calls its witnesses and the magistrate takes the evidence given by these witnesses in the form of a deposition. • The magistrate reads over the deposition to the witness and has the witness sign it. • The magistrate then addresses the accused, asking him whether he has anything to say in answer to the charge. • The accused and/or his attorney-at-law cross-examines the prosecution’s witnesses. • The magistrate asks the accused if there are any witnesses that he wishes to call. 151 Skogman v The Queen [1984] 2 SCR 93; 1984 CanLII 22 (SCC). 152 ibid 105. 153 ibid 106. 154 See generally, DS Seetahal, Commonwealth Caribbean Criminal Practice and Procedure (Routledge, 2014) 169. 155 Grenada Criminal Procedure Code (CAP 72B) ss 102–08.

Court Proceedings  287 • If he does not wish to call any witnesses, this is stated in the deposition. • If, after the witnesses for both the prosecution and accused have been called, the magistrate is of the opinion that there is not a sufficient case to be made out against the accused if put to trial, he may discharge him. • If, however, there is a sufficient case against the accused, the magistrate will commit the accused for trial in the High Court at the next sitting of that court. • Once the accused is committed for trial in the High Court, the magistrate will make an order binding over both the prosecution and accused’s witnesses to give evidence at trial. • The magistrate would then send the depositions as well as related documents, exhibits and recognisances entered into by witnesses to the Registrar of the Supreme Court and the Attorney General. • If, after receiving the committal documents, the Attorney General is dissatisfied with the magistrate’s decision, he may remit the matter to the magistrate for reopening of the enquiry on the specific point in issue or ask that he deals with the matter summarily, if possible. • In those cases in which the Attorney General does not remit the matter to the magistrate, the Registrar would issue an order for the gaoler to bring the person before the judge at a fixed time (if the person is on remand). • Once committed for trial, the Attorney General/DPP will proffer the indictment against the person so he could be called upon to plead. • The trial is then held in the Supreme Court before a judge and jury (or in the case of Jamaica in relation to human trafficking trials, before a judge alone). Although this process has a long history across the English common law world, it is unnecessarily cumbersome, time-consuming and resource-intensive. Additionally, in cases involving vulnerable witnesses, such as trafficked victims, it might be that they would have to give viva voce evidence twice, once at the preliminary enquiry and then again at the actual trial if the matter is ultimately committed to the High Court, which may only contribute to their secondary victimisation.156 Against this backdrop, in the 2015 Canadian case of R v Stinert,157 the Court expressed its utmost dissatisfaction with the preliminary enquiry procedure as applied in the Canadian context. Describing the objections against the ‘present cumbersome procedure [as] formidable’,158 the Court explained that, ‘they are, in the vast majority of cases, a pure formality and an extremely wasteful one at that’.159 The Court then pointed to the pragmatic statutory developments that have taken place in the UK and elsewhere, and noted that the criticisms against the

156 ‘2018 Trafficking in Persons Report – Trinidad and Tobago’ (n 129). 157 R v Stinert 2015 ABPC 4 (CanLII). 158 ibid [8]. 159 See M Carlisle, ‘Committal Proceedings in English Criminal Law’ (1967–68) 10 Criminal Law Quarterly 147.

288  Institutional Considerations preliminary enquiry procedure have not only been made by politicians, academics and members of the legal profession, but courts too have expressed frustration with the manner in which the preliminary enquiry is conducted. It cited the decision of R v Darby,160 where the court in that case commented that, the preliminary hearing or preliminary inquiry has been turned into a nightmarish experience for any provincial court judge. Rules with respect to relevancy have been widened beyond recognition. Cross-examination at a preliminary inquiry now seems to have no limits. Attempts by provincial court judges to limit cross-examination have been perceived by some superior courts as a breach of the accused’s right to fundamental justice, a breach of his or her ability to be able to make full answer and defence.161

In noting that the ‘the present state of the preliminary inquiry is akin to a rudderless ship on choppy waters’,162 the court considered that ‘the preliminary hearing has been turned into a free-for-all, a living hell for victims of crime and witnesses who are called to take part in this archaic ritual’.163 Not only does the preliminary enquiry process have the potential to adversely affect the willingness of complainants/witnesses in human trafficking cases to provide evidence in support of a prosecution, but it also adversely affects magistrates who, because of the hectic nature of the enquiry, are increasingly being put under serious strain. In this connection, in R v Ward,164 Cory J (as he then was) took note of the plight of magistrates in the context of preliminary enquiries: One can have every sympathy for the justice presiding at a preliminary hearing, facing an urgent and lengthy docket of cases, who must hear witnesses called by the accused, when he has long-since determined that the accused should be committed for trial. The mounting pressures of lengthening dockets and protracted preliminary hearings must lead to a feeling of frustration.165

The challenges inherent in the continued existence of the preliminary enquiry procedure were again addressed by the Canadian court in R v Stinert. Citing the sentiments expressed by the then Canadian opposition member, Vic Toews, the Court noted: The last comment I wanted to make is in respect of the preliminary inquiries. I think the preliminary inquiries, in light of charter guarantees, are basically irrelevant and a waste of time. I speak to many, many provincial judges, and it’s simply a waste of time. It slows down procedure. It creates backlog. And although I know defence lawyers are very concerned about the entire loss of the preliminary hearing, I think we need to revisit it and ensure that while we have safeguarded the rights of accused, these preliminary inquiries are not abused. I think there has been abuse of the preliminary inquiries in the past.166

160 R

v Darby [1994] BCJ No 814 (Prov Ct). [9]–[10]. 162 ibid. 163 ibid. 164 R v Ward [1976] OJ No 807 (HC). 165 ibid [20]–[21]. 166 R v Stinert (n 157) [16]. 161 ibid

Court Proceedings  289 Challenges of this nature have incentivised a number of countries across the globe to abolish the preliminary enquiry procedure and replace it with paper committal proceedings. Such a pragmatic approach has not only been adopted in countries like the UK and Australia, but also in Caribbean countries, such as Jamaica,167 Barbados,168 Antigua and Barbuda,169 Guyana,170 Trinidad and Tobago,171 the Cayman Islands172 and, more recently, St Kitts and Nevis.173 In general, under the applicable regional committal proceedings legislation, the preliminary enquiry procedure is abolished, and is replaced by ‘committal proceedings’. In principle, these proceedings are instituted under the direction of the DPP. The following describes the general procedure: • The DPP files one or more written statements of witnesses in support of the charge, as well as a list of exhibits, if there are any exhibits which the prosecution intends to produce in connection with the proceedings. • These documents are, at the earliest opportunity, served on the accused person by the DPP. • The accused may then, in reply, file his own statement and any statement of his witnesses and a list of exhibits, if there are any exhibits which the accused person intends to produce in connection with the proceedings. • The accused’s reply is then served on the DPP. • After reviewing the documents filed by both sides, the magistrate may (a) dismiss the charge and, if the accused person is in custody, make an order for his release; (b) commit the accused person for trial by a jury; or (c) make any other order in relation to the case, the charge or the accused as provided for by relevant legislation. • Before making the above-mentioned order, however, the magistrate will, on an application, give the prosecution or the accused person, as the case may be, an opportunity to show cause, by way of submission only, why the order should not be made. • The DPP may appeal to the Court of Appeal from a judgment of a magistrates court in respect of the dismissal of a charge against an accused person in committal proceedings.

167 Committal Proceedings Act 2013. 168 Part III Magistrate’s Courts Chapter 116A. 169 Antigua and Barbuda Magistrate’s Code of Procedure Amendment Act, No 13 of 2004. 170 First Schedule of the Sexual Offences Act 2003, Chapter 8:03; s 43 of the Sexual Offences Act (‘where a person is charged with an offence under this Act, there shall be no oral preliminary inquiry and instead a paper committal shall be held in accordance with the procedure set out in the First Schedule’). 171 Indictable Offences (Committal Proceedings) Act 2014. 172 Criminal Procedure Code (2014 Revision) (s 88). 173 Magistrate’s Code of Procedure Amendment) Act, 2018, Act 4 of 2018.

290  Institutional Considerations The question of the constitutionality of the abolition of the preliminary enquiry procedure and its replacement with committal proceedings was considered in the Privy Council case of Hilroy Humphreys v The Attorney General of Antigua and Barbuda.174 Here, in relation to a charge of conspiracy to defraud, the appellant, an Antiguan national, had been committed by the magistrate to trial in the High Court in accordance with the committal proceedings procedure outlined by the amended Magistrate’s Code of Procedure Amendment Act, No 13 of 2004, which abolished the preliminary enquiry. The appellant questioned the constitutionality of the change in procedure, arguing that it was unfair for him to have been committed on the basis of written witness statements and exhibits, since there was, in his view, no right to cross-examine or call or give oral evidence. More specifically, he brought judicial review proceedings claiming that the abolition of the preliminary enquiry procedure infringed his constitutional rights; first, by retrospectively depriving him of the procedural protection to which he was entitled at the time he was charged; and second by depriving him of the right to a fair trial. On the question of retrospectivity, the Privy Council explained that the accused, and prospective litigants in general, ‘do not have a vested right to any particular procedure and there will generally be nothing unfair in applying whatever procedure is in force when the case comes to court’.175 In any event, in the case at hand, the language of the statute itself provided that the new regime was to apply to ‘legal proceedings pending on the commencement of this Act’. As such, it was held that any presumption against retrospectivity was rebutted. With regard to the argument that the abolition of the preliminary enquiry procedure deprived the appellant (and presumably everyone else who has been committed for trial in Antigua under the new procedure) of the right to a fair hearing guaranteed by section 15(1) of the Constitution, the Privy Council rejected this contention, finding that: It is one thing to say that if the procedure for bringing someone accused of an indictable offence to trial includes a preliminary inquiry, that inquiry must be conducted fairly, by an impartial court and so forth. It is another thing altogether to say that one cannot have a fair hearing without a preliminary inquiry. In the Board’s opinion, it is a mistake to argue that because the old system provided a fair hearing, the change or abolition of some element of that system results in the new system being unfair. Systems of criminal procedure may differ widely without being unfair. The question is not the extent to which the new committal proceedings differ from the old preliminary inquiries but whether the new system of committal proceedings and trial, taken as a whole, satisfies the requirements of section 15(1).176

The Court ultimately found that committal proceedings are not determinative of guilt, but act as a filter to enable the magistrate to screen out those cases in which 174 Hilroy Humphreys v The Attorney General of Antigua and Barbuda Privy Council Appeal No 8 of 2008. 175 ibid [4]. 176 ibid [9].

Court Proceedings  291 there appears insufficient evidence to justify a trial. Because they are conducted by an independent magistrate to whom both sides may submit evidence and make submissions, and given the fact that the restriction in relation to written evidence applied to both prosecution and defence, the specific requirements of section 15(2) of the Constitution were deemed to have been satisfied by the composite procedure of charge, committal proceedings, indictment and trial. In particular, the accused was entitled at the trial to cross-examine the prosecution witnesses and give oral evidence in accordance with section 15(2)(e) of the Constitution. In short, the new procedure was not considered to be unfair. More recently, the Guyana Court of Appeal in the case AG v Ray Bacchus177 followed the decision of Humphreys, rejecting the accused’s argument that he was denied a fair trial on the ground that the Sexual Offences Act abolished the preliminary enquiry, and introduced committal proceedings in respect of sexual offences, such as rape. The Appeal Court found that the paper committal procedure under the Sexual Offences Act was not unconstitutional. It pointed out that section 43 of the Act which provides for committal proceedings without oral evidence or the cross-examination of the victim was not excessive nor in contravention of Article 144 of the Constitution. Similar to Humphreys, it noted that the accused had the opportunity to cross-examine the victim/witnesses in the High Court. Addressing the underlying rationale for the legislation, the Court felt that its objective was not to submit the victim to cross-examination twice and to shorten the length of the criminal process, thereby allowing for the speedy resolution of matters. The benefits of committal proceedings were addressed by the Eastern Caribbean Court of Appeal in The Attorney-General of Antigua and Barbuda v Hilroy Humphreys.178 Here, the Court accepted that prior to the promulgation of committal proceedings, the pace of preliminary enquiries was ‘laborious and time-consuming and in some cases the hearing would be protracted and would typically put a strain on the resources of the police and the courts, causing a ­backlog of cases in the Magistrates Court’. It also accepted that this ‘state of affairs inevitably would lead to a loss of public confidence in the judicial system and damage the rule of law’.179 With the coming on stream of committal proceedings, however, the Eastern Caribbean Court of Appeal accepted that ‘far from prejudicing the respondent’s right to a hearing within a reasonable time, [committal proceedings] sought to and succeeded in enhancing that right’.180 Committal proceedings do not undermine the independence or impartiality of the magistrates court, but rather, serve to improve ‘the quality of justice which is dispensed by our judicial system’.181 In short, committal proceedings serve to ensure that the justice system works

177 AG

v Ray Bacchus (Guyana Court of Appeal, 24 July 2018). Attorney-General of Antigua and Barbuda v Hilroy Humphreys Civil Appeal No 1 of 2007. 179 ibid [23]. 180 ibid [24]. 181 ibid [8]. 178 The

292  Institutional Considerations ‘efficiently and expeditiously’.182 These sentiments are particularly instructive in human trafficking cases where the fair expedition of criminal proceedings and the prevention of victims’ secondary victimisation are of paramount importance.

B.  Trial by a Judge and Jury or Judge Alone? High Court proceedings, in most countries in the region, take place before a judge (arbiter of the law) and a panel of jurors (trier of facts). The exception to this general approach in relation to human trafficking is Jamaica, which in 2018, amended its Trafficking in Persons (Prevention, Suppression and Punishment) Act by inserting section 4(10)(b), which now provides that where a person is charged with human trafficking, he shall be tried before a judge of the circuit court without a jury. This amendment was passed against the backdrop of a retrial which was ordered in the case of R v Hermalinda Parker et al,183 in circumstances where, at the end of that trial, the jury returned a unanimous ‘not guilty’ verdict, albeit that it was later revealed that, in fact, three jurors voted ‘guilty’ and the other three ‘not guilty’.184 In this connection, the Office of the DPP has expressed that the irregularity inherent with jury trials was a symptom of issues faced in the prosecution of complex cases involving criminal networks, gangs and trafficking cases that expose jurors and witnesses to a high risk of intimidation and influence, and therefore recommended that such matters should be tried before a judge alone in the circuit court. In comments expressed in the Senate, Opposition Senator, Lambert Brown, appeared to be unimpressed with the then proposed amendment, noting that the law should not be changed just because of one unfortunate case, and that in any event, there was no evidence that a judge-only trial would lead to more convictions.185 In addition, he argued, the amendment would ‘rob citizens of their right to a trial by their peers’.186 Senator Brown’s concerns not only raise procedural questions, but constitutional questions, namely the extent to which it is constitutionally permissible for a trafficking case to be decided upon by a judge alone without the assistance of a panel of jurors. An interesting point to note, in this connection, is that from as far back as 1980, the Judicial Committee of the Privy Council had already ruled in Trevor Stone v The Queen:187 That when exercising the criminal jurisdiction conferred upon him by section 5(2) of the Amended Act, the Supreme Court judge sits without a jury is, in their Lordships’ view, more aptly described as a matter of practice and procedure rather than ‘jurisdiction’ or ‘powers’ as those expressions are used in section 97 of the Constitution. The only



182 ibid. 183 R

v Hermalinda Parker et al HCC 126/11. approves amendments to Trafficking in Persons Act’ Jamaica Observer (2 February 2018). 185 ‘Senate passes Trafficking in Persons Act’ Jamaica Gleaner (24 February 2018). 186 ibid. 187 Trevor Stone v The Queen Privy Council Appeal No 11 of 1979. 184 ‘House

Court Proceedings  293 fetters upon Parliament’s power to regulate the practice and procedure to be followed by courts of law in exercising their jurisdiction are those contained in sections 20 and 25 of the Constitution; and it is rightly conceded that these provisions do not confer any entrenched right to trial by jury for criminal offences.188

In short, although Jamaica’s decision to amend its TIP Act to require trial by a judge alone in respect of trafficking cases appears to be out of the norm, it is certainly not an isolated approach, and, having regard to the Trevor Stone case, cannot be regarded as unconstitutional.

C.  Special Measures In practice, human trafficking cases involving child victims/witnesses or victims who are traumatised by the experience of exploitation or who are mentally or physically challenged or who have been sexually assaulted are heard in camera,189 which effectively prevents against the sensitive details regarding victims’ exploitation being disclosed to parties other than those directly relevant to the proceedings. In addition, in a number of Caribbean countries a range of special measures are used in practice to protect trafficked victims from secondary victimisation, including the use of screens, which are permissible at common law,190 evidence via live link, video recorded evidence and the use of intermediaries and aids to communication, which are provided for under statute.191 Although, admittedly, these special measures do not appear to be widely used in practice in the region, at least one Jamaican Supreme Court case – R v Christopher Thomas192 – has pointed to importance of using these measures in cases involving vulnerable complainants/witnesses: The stress and fear of attending court and giving evidence particularly when a witness is considered vulnerable must be balanced against the administration of justice. The court must undertake a balancing exercise considering the right of the defendant to face his accuser and the prejudice which will flow if he cannot, against the right of a vulnerable

188 ibid. 189 s 63 Antigua and Barbuda TIP Act; s 15 The Bahamas TIP Act; s 16(2) Barbados TIP Act; s 30(a) Belize TIP Act; s 10 Cayman Islands TIP Act; s 10(3) Dominica Transnational Organized Crime (Prevention and Control) Act 2013; s 15(2) Guyana TIP Act; s 11 Jamaica TIP Act; s 17(2) St Kitts and Nevis TIP Act; s 21(2) St Lucia TIP Act; s 22(2) St Vincent and the Grenadines TIP Act; s 34(2) Trinidad and Tobago TIP Act; s 48 Turks and Caicos Islands TIP Ordinance. 190 R v DJX, SCY and GCZ (1989) 91 Cr App R 36. 191 See, eg, Antigua and Barbuda Evidence (Special Provisions) (Amendment) Act 2016; The Bahamas Evidence Act (Ch 65), as amended by the Evidence (Amendment) Act 2011; Belize Evidence (Amendment) Act 2017 (No 24/2017); Bermuda Evidence (Audio Visual Link) Act 2018; Dominica Protection of Witnesses Act 2012; Grenada Protection of Witnesses Act 2014; Guyana Evidence Act, as amended by Act No 19/2008; Jamaica Evidence (Special Measures) Act 2012; St Kitts and Nevis Evidence Act (No 30/2011); St Lucia Evidence Act CAP 4.15; St Vincent and the Grenadines Witness (Special Measures) Act 2013; Turks and Caicos Islands Audio Visual Link Ordinance CAP 2:08. 192 R v Christopher Thomas [2017] JMSC Crim 2.

294  Institutional Considerations witness to give evidence in a manner which does lend itself to fear or distress. Distress and fear can and does affect the quality of communication by witnesses. What is being sought from the witness is the best evidence obtainable, a complete, coherent and accurate account.193 This explains the structure of the Act and Rules which indicate that in the case of a vulnerable child witness, there is a presumption in favour of special measures unless the witness opts out or the presumption is rebutted. The court as a corollary, will embark on a process of weighing the respective interests. Additionally, the court is to be satisfied that the special measure is necessary in order to ensure that what will be given in evidence by the witness will be the best account.194

The Court then went on to examine the benefit of special measures in enhancing the efficiency of the justice system: If the legislature has moved one aspect of trial procedure into the new millennium it is this, a modern, efficient trial system is the goal and video link evidence is able to take the courts one step closer. It is not for the courts to decry modern technological advances which save time, cost and eliminate delay since it is those factors which are the greatest obstacles to efficient court administration.195 The general principle that trial evidence should ordinarily be presented orally is articulable and unequivocally the procedure, it is also appropriate, in light of the 21st century to take a modern view of the use of technology as an aid to conducting targeted, pointed, efficient criminal trials. The use of technology does not derogate from the general principle that oral evidence should be given by a witness in court. As I have indicated, a witness appearing by live link, is in court, virtually so. Any evidence is given orally, under oath or affirmation, and is ‘live’ as it would be with the witness present in the courtroom. Questions are asked and answers are given in the usual way. The witness will be observed by all and in fact, demeanour and non-verbal cues that could be missed if the individual was physically present can be observed clearly on the screen. The evidence is received by the court and heard and understood by counsel and all others present in the courtroom as required by the Act.196 Available technologies include not only the ability to examine a witness but, also, to put to that witness in a contemporaneous way documents and other exhibits, again using technology.197

More controversially, however, is the use of witness anonymity orders, which provide for withholding or removal from materials to be disclosed to any party in the proceedings of the witness’s name and other identifying details; the witness’s use of a pseudonym; a requirement that the witness is not asked questions of any specified description that might lead to the identification of the witness; the screening of the witness to any specified extent; and the modulation of the witness’s voice



193 ibid

[12]. [13]. 195 ibid [22]. 196 ibid [26]. 197 ibid [27]. 194 ibid

Court Proceedings  295 to any specified extent. These measures are being placed on a statutory footing in a growing number of Caribbean countries, including Antigua and Barbuda,198 The Bahamas,199 the Cayman Islands,200 Dominica,201 Grenada,202 St Kitts and Nevis,203 and St Vincent and the Grenadines.204

D.  Witness Anonymity The rationale behind the passage of witness anonymity legislation lies in the fact that in small jurisdictions like the Commonwealth Caribbean, where criminality, including human trafficking, is quickly becoming sophisticated through, among other things, the operation of organised criminal groups, a persistent challenge faced by the criminal justice system is ensuring the safety of witnesses to serious criminal activities who are fearful that their cooperation with the police and prosecuting authorities will lead to reprisals from accused persons and/or their associates. Although, as pointed out by Lord Bingham in R v Davis,205 the problem of witness intimidation is not new, it is nonetheless, as he aptly recognised, a serious problem, which necessitates ‘urgent attention by Parliament’.206 Parliamentary intervention in the Caribbean was necessary because, as pointed out by Lord Rodger in R v Davis, although ‘the common law is capable of developing to meet new challenges’, it has, unfortunately, not ‘responded to the challenge [of witness intimidation] at any time over the last few hundred years by allowing witnesses to give their evidence under conditions of anonymity’.207 Indeed, at common law, it remains a long-established principle that, subject to certain exceptions and statutory qualifications, the defendant in a criminal trial should be allowed to confront his accusers in order that he may cross-examine them and challenge their evidence. This principle remains pervasive throughout the common law world and finds faithful judicial adherence in the US, New Zealand, South Africa and, indeed, the Caribbean. In fact, this common law principle has been firmly transposed as a constitutional right in the US, where it has frequently been described as ‘an essential and fundamental requirement for the kind of fair trial which is this country’s constitutional goal’ and as one ‘of the fundamental guarantees of life and liberty’. In the US Supreme Court decision of



198 The

Evidence (Special Provisions) Act 2009 (Part Ill). Evidence (Witness Anonymity) Act 2008. 200 Criminal Evidence (Witness Anonymity) Act 2010 (Part III). 201 Protection of Witnesses Act 2013 (Part II). 202 Protection of Witness Act 2014 (not yet in force at the time of writing). 203 The Evidence Act 2011 (Part IV). 204 Witness (Special Measures) Act 2013 (Part II). 205 R v Davis [2008] UKHL 36. 206 ibid [27]. 207 ibid [44]. 199 Criminal

296  Institutional Considerations Smith v Illinois,208 for example, their Lordships considered it an unfair trial and, by extension, unconstitutional, for the defendant to be denied his right to ask the principal prosecution witness either his name or where he lived. In that case, the Court noted that when the credibility of a witness is in issue, the very starting point in ‘exposing falsehood and bringing out the truth’ through cross-­examination must necessarily be to ask the witness who he is and where he lives, since the witness’s name and address open countless avenues of in-court examination and out-of-court investigation. In short, the Court concluded that to forbid this most rudimentary enquiry at the threshold is effectively to emasculate the right of crossexamination itself. In other common law jurisdictions like New Zealand, although this common law position has not received constitutional protection, it is nonetheless viewed as indispensable to the achievement of a fair trial. This view was shared by the majority decision of the Court of Appeal of New Zealand in R v Hughes,209 a case in which Richardson J, having cited Smith v Illinois, observed that ‘clearly the accused cannot be assured of a true and full defence to the charge unless he is supplied with sufficient information about his accuser in order to decide on investigation whether his credibility should be challenged’.210 The Court also envisaged that it would be a ‘slippery slope as a society if on a supposed balancing of the interests of the State against those of the individual accused the Courts were by judicial rule to allow limitations on the defence in raising matters properly relevant to an issue in the trial’, fearing that today the claim is that the name of the witness need not be given: tomorrow, and by the same logic, it will be that the risk of physical identification of the witness must be eliminated in the interests of justice in the detection and prosecution of crime, either by allowing the witness to testify with anonymity, for example from behind a screen, in which case his demeanour could not be observed, or by removing the accused from the Court, or both.211

It then reiterated that the right to confront an adverse witness is basic to any civilised notion of a fair trial, and that this must include the right for the defence to ascertain the true identity of an accuser where questions of credibility are in issue. This view was again reaffirmed in the subsequent decision of R v Hines,212 where a majority of the Court of Appeal adhered to the ratio in the Hughes decision, regarding any departure from the common law rule as a matter for Parliament. Similarly, in South Africa, the Court has refused to countenance the prosecution’s application to withhold the name and identity of a witness from the defendant in a number of cases, including S v Leepile.213 In Leepile, in particular,

208 Smith

v Illinois 390 US 129, 131 (1968). v Hughes [1986] 2 NZLR 129. 210 ibid 147. 211 ibid 148–49. 212 R v Hines [1997] 3 NZLR 529. 213 S v Leepile (1–3) 1986 (2) SA 333; (4) 1986 (3) SA 661; (5) 1986 (4) SA 187. 209 R

Court Proceedings  297 the Court concluded that there was at the time no statutory authority to grant the application, and that ‘the wide direction regarding secrecy sought by the State …. has far more drastic consequences for the accused than an in camera hearing with a restriction on the publication to the public of a witness’ identity’.214 The Court then went on to explain the adverse consequences to the accused of a decision to allow the application, noting that, among other things, (a) no investigation could be conducted by the accused’s legal representatives into the witness’ background to ascertain whether he has a general reputation for untruthfulness, whether he has made previous inconsistent statements nor to investigate other matters which might be relevant to his credibility in general; (b) it would make it more difficult to make enquiries to establish that the witness was not at places on the occasions mentioned by him; and that (c) it would further heighten the witness’ sense of impregnability and increase the temptation to falsify or exaggerate.215

The courts in England and Wales have equally had to confront this issue, and have repeatedly reaffirmed the existence of the common law rule that an accused person must be able to confront his accusers in order that he may cross-examine them and challenge their evidence. The leading case on this point is the decision of the House of Lords in R v Davis.216 In that case, the crucial question for the House of Lords was whether it was permissible for a defendant to be convicted where the conviction is based solely or to a decisive extent upon the testimony of one or more anonymous witnesses. Interestingly, the appellant’s challenge did not rest on the anonymity of the witnesses alone, but on the combination of restrictions identified above. Lord Bingham, in delivering the leading judgment in this case, began by reaffirming the common law principle that the defendant in a criminal trial should be allowed to confront his accusers in order that he may cross-examine them and challenge their evidence. Noting that the origin of this principle is from as far back as ancient Rome, Lord Bingham was of the view that ‘there was no room for an attenuated version of this principle’,217 although he recognised that there have been long-recognised exceptions to the right of confrontation in this country (dying declarations and statements part of the res gestae are examples), and further exceptions have been enacted by statute. Lord Bingham then engaged in an intriguing historico-legal comparative analysis of the origins and evolution of the principle, ultimately finding that although the problem of witness intimidation is not a new one, the common law has remained firm in countenancing the accused’s right to confront witnesses giving evidence against him. On the facts of Davis, Lord Bingham felt ‘bound to conclude that the protective measures imposed by the court in this case hampered the conduct of the defence

214 ibid

215 ibid.

189.

216 [2008] 217 ibid

UKHL 36. [5].

298  Institutional Considerations in a manner and to an extent which was unlawful and rendered the trial unfair’.218 More specifically, the appellant had denied that he was the gunman, explaining that he believed the false evidence to have been procured by a former girlfriend with whom he had fallen out, a view which was in stark contrast to the anonymous witnesses’ evidence. The fact that the appellant’s counsel, when seeking to pursue this suggestion in cross-examination of the unidentified witnesses, was gravely impeded in doing so by ignorance of and inability to explore who the witnesses were, where they lived and the nature of their contact with the appellant, led to his Lordship concluding that ‘a trial so conducted cannot be regarded as meeting ordinary standards of fairness’.219 A similar finding was made by Lord Rodger, although he accepted that the intimidation of witnesses is an age-old and worldwide problem and that the witnesses in the instant case had genuine and reasonable grounds for fearing the consequences if their identities were revealed. That said, Lord Rodger was of the view that the ability of counsel for the appellant to cross-examine the decisive witnesses against him was gravely compromised as a result of the procedure adopted. Lord Rodger, like Lord Bingham, felt that the long-standing common law principle was so fundamental that he was unable even to recommend that legislation should be passed to interfere with it. Lord Carswell found that the credibility of the Crown witnesses was squarely in issue, and that, in such circumstances, it was unlikely that the trial could be fair because a very substantial degree of anonymising of evidence could not be permitted where the testimony of the witnesses concerned constituted the sole or decisive evidence implicating the defendant. Lord Brown similarly called for ‘the creeping emasculation of the common law principle [to] be not only halted but reversed’, while Lord Mance recommended that further relaxation of the basic common law rule requiring witnesses on issues in dispute to be identified and cross-examined with knowledge of their identity and permitting the defence to know and put to witnesses otherwise admissible and relevant questions about their identity, ‘is one for Parliament to endorse and delimit and not for the courts to create’.220 Immediately following their Lordships pronouncements in R v Davis, the UK Parliament enacted the Criminal Evidence (Witness Anonymity) Act 2008, which created new rules which apply to witness anonymity in criminal proceedings; illustrated the kinds of measures that may be required to be taken in relation to a witness; and identified the express preconditions which must be established before a witness anonymity order may be made. The provisions of the Criminal Evidence (Witness Anonymity) Act 2008 were soon after followed by the enactment of the Coroners and Justice Act 2009. The 2008 Act was almost immediately challenged in R v Mayers,221 a case in which their Lordships dealt with four otherwise unconnected appeals which raised

218 ibid

[35]. [31]. 220 ibid [98]. 221 R v Mayers [2008] EWCA Crim 2989. 219 ibid

Court Proceedings  299 the issue of whether the convictions of the respective defendants, based on the evidence of anonymous witnesses, were unsafe. The Court began its assessment by pointing out that notwithstanding the abolition of the common law rules by the 2008 Act, it was abundantly clear from the provisions of the Act as a whole that, save in the exceptional circumstances permitted by the Act, the ancient principle that the defendant is entitled to know the identity of witnesses who incriminate him is maintained. While accepting that there was a degree of unreality about the submission that witness relocation should normally provide a practicable alternative to an anonymity order (since the witnesses would be cut off from all their roots, and have to start completely new lives, which would amount to a ‘tumultuous’ interference), the Court was nonetheless prepared to find that ‘an anonymity order should be regarded as the special measure of last practicable resort’.222 After carefully examining the provisions of the Act, the Court explained that, in keeping with section 4, all three conditions, A (necessity), B (fair trial) and C (interests of justice), must be met before the jurisdiction to make a witness anonymity order arises. Each, it said, is both distinct and mandatory. Thus, where two of the three conditions are met, the jurisdiction to make an order does not arise unless the third condition is also satisfied. It then went on to reason that when considering whether conditions A–C are met, a number of relevant and specific matters identified in section 5 must be considered. None of these considerations outweigh any of the others, and the order in which they appear does not represent an order of priority or importance. They are not exhaustive nor restricted to those expressly mentioned, and they leave open the possibility that in an individual case some further point may properly arise for consideration. Equally, none is conclusive on the question whether the individual defendant will receive a fair trial. Moreover, none precludes the possibility of an anonymity order, but these considerations do not diminish or minimise the crucial requirement that before an order may be made, conditions A–C in section 4 must be met. As a practical matter, the Court strongly affirmed the responsibilities of the prosecution to ensure a fair trial, and to reveal any material which may undermine the case for the prosecution or advance the defendant’s own case, which is necessarily a consideration under section 5. Indeed, the Court was at pains to point out that the obligations of the prosecution in the context of a witness anonymity application go much further than the ordinary duties of disclosure. In short, the Crown must comply with its existing duties in relation to full and frank disclosure (save as expressly permitted by the Act in relation to withholding of information on the basis of public interest immunity) and, invariably, the Crown must be proactive, focusing closely on the credibility of the anonymous witness and the interests of justice. To address the requirements of Article 6 of the European Convention on Human Rights (ECHR), their Lordships pointed to the need for Courts to consider

222 ibid

[8].

300  Institutional Considerations two distinct questions – whether the evidence of the anonymous witness is the sole evidence, and whether it is the decisive evidence. It follows that the court should also examine whether the anonymous evidence is supported extraneously, or whether there are a number of anonymous witnesses who incriminate the defendant. The more facts independent of the witness, which tend to support him, the safer it would be to admit anonymous evidence. Overall, there is an overriding responsibility of the trial judge to ensure that the proceedings are conducted fairly. He must consider whether, properly directed, notwithstanding that crucial incriminating evidence was given by an anonymous witness or witnesses, and in light of the evidence as a whole, the case can safely be left to the jury. In this connection, a warning to the jury must be sufficient to ensure that the jury does not make any assumptions adverse to the defendant, or favourable to the witness, from the fact that an anonymity order has been made, and, in particular, must not draw an implication or inference of guilt against the defendant. A further direction to the jury must be about the obvious difficulties facing a defendant who is challenging either the credibility or the accuracy of an anonymous witness. Another important principle emanating from the judgement in Mayers is that witness anonymity not only applies to ordinary civilians who are in fear of reprisals, but also undercover police officers whose identity must necessarily be withheld in the public interest. The right to a fair trial is provided for in Article 6 of the ECHR. The European Court of Human Rights (ECtHR), in the case of Al-Khawaja v United Kingdom,223 in the context of its discussion of the Coroners and Justice Act 2009, has emphatically explained that: The underlying principle is that the defendant in a criminal trial should have an effective opportunity to challenge the evidence against him. This principle requires not merely that a defendant should know the identity of his accusers so that he is in a position to challenge their probity and credibility but that he should be able to test the truthfulness and reliability of their evidence, by having them orally examined in his presence, either at the time the witness was making the statement or at some later stage of the proceedings.224

The issue of whether the conviction of an accused person on the basis of the evidence of anonymous witnesses was considered by the ECtHR in the case of Doorson v The Netherlands.225 Here, the applicant argued before the ECtHR that his right to a fair trial was breached because his conviction was obtained on the basis of evidence given by anonymous witnesses. The ECtHR, however, rejected the application, finding that although there are some instances in which reliance on the evidence of anonymous witnesses may be incompatible with the Convention, the Convention does not, per se, preclude reliance on the evidence of these witnesses.226 On the facts, the Court concluded that the decision to withhold the

223 Al-Khawaja

v United Kingdom (2012) 54 EHRR 23. [127]. 225 Doorson v The Netherlands [1996] ECHR 14. 226 ibid [69]. 224 ibid

Court Proceedings  301 identity of Y.15 and Y.16 was rightly inspired by the need to obtain evidence from them while at the same time protecting them against the possibility of reprisals by the applicant. Although there was no suggestion that Y.15 and Y.16 were ever threatened by the applicant himself, the decision to maintain their anonymity was not regarded by the ECtHR as unreasonable per se. More specifically, the Court took judicial notice of the fact that drug dealers frequently resorted to threats or actual violence against persons who gave evidence against them and that, in any event, statements made by the witnesses showed that one of them had apparently on a previous occasion suffered violence at the hands of a drug dealer against whom he had testified, while the other had been threatened. Overall, the Court concluded that although the maintenance of the anonymity of the witnesses Y.15 and Y.16 presented the defence with difficulties which criminal proceedings should not normally involve, there was no violation of Article 6(1) ECHR, since the handicaps under which the defence laboured were sufficiently counterbalanced by the procedures followed by the judicial authorities. These procedures included the questioning of the anonymous witnesses at the appeals stage in the presence of counsel by an investigating judge who was aware of their identity even if the defence was not, as well as the fact that defence counsel was permitted to ask the witnesses whatever questions he considered to be in the interests of the defence, except in so far as they might lead to the disclosure of their identity, and these questions were all answered. In the Commonwealth Caribbean, the right of the accused person to confront witnesses adverse to his case has been constitutionalised in the respective regional constitutions.227 For example, section 8(2)(e) of the St Lucia Constitution provides that: Every person who is charged with a criminal offence – (e) shall be afforded facilities to examine in person or by his or her legal representative the witnesses called by the prosecution before the court, and to obtain the attendance and carry out the examination of witnesses to testify on his or her behalf before the court on the same conditions as those applying to witnesses called by the prosecution.

Notwithstanding this constitutional safeguard, however, courts in the region, in particular the Court of Appeal of The Bahamas in Attorney General v Leroy Smith and Tony Smith,228 has taken judicial notice of the fact that witness tampering and intimidation is increasing worldwide, and in the Caribbean region, in particular, which it accepted necessitates the passing of witness anonymity legislation.229 227 s 15(2)(e) Antigua and Barbuda Constitution; s 20(2)(e) The Bahamas Constitution; s 18(2)(e) Barbados Constitution; s 6(2)(e) Bermuda Constitution; s 16(2)(e) British Virgin Islands Constitution; s 7(2)(e) the Cayman Islands Constitution; s 8(2)(e) Dominica Constitution; s 8(2)(e) Grenada Constitution; s 144(2)(e) Guyana Constitution; s 16(6)(d) Jamaica Charter of Rights and Fundamental Freedoms 2011; s 57(2)(e) Montserrat Constitution; s 10(2)(e) St Kitts and Nevis Constitution; s 8(2) (e) Constitution of St Lucia; s 8(2)(e) St Vincent and the Grenadines Constitution; s 5(2)(h) Trinidad and Tobago Constitution; s 6(2)(e) Turks and Caicos Islands Constitution Order. 228 Attorney General v Leroy Smith and Tony Smith SCCrApp No 95 of 2014. 229 ibid [14]–[15].

302  Institutional Considerations The provisions contained in regional Acts are typically couched in similar terms. A useful example is the St Kitts and Nevis Evidence Act 2011 (Part IV) which provides, in part: Section 20. (2) Notwithstanding the generality of subsection (1), the kinds of measures that may be required to be taken in relation to a witness include measures for securing one or more of the following (a) that the witness’s name and other identifying details may be (i) withheld; (ii) removed from materials disclosed to any party to the proceedings; (b) that the witness may use a pseudonym; (c) that the witness is not asked questions of any specified description that might lead to the identification of the witness; (d) that the witness is screened to any specified extent; (e) that the witness’s voice is subjected to modulation to any specified extent. (3)  Nothing in this section authorises the court to require – (a) the witness to be screened to such an extent that the witness cannot be seen by (i) the judge or other members of the court (if any); (ii) the jury (if there is one); or (iii) any interpreter or other person appointed by the court to assist the witness; (b) the witness’s voice to be modulated to such an extent that the witness’s natural voice cannot be heard by any persons within paragraph (a)(i) to (iii). Section 22. (1) This section applies where an application is made for a witness anonymity order to be made in relation to a witness in criminal proceedings. (2)  The court may make an order, referred to in subsection (1), only if it is satisfied that Condition A, Condition B and Condition C are met. (3)  Condition A, referred to in subsection (2), is that the measures to be specified in the order are necessary – (a) in order to protect the safety of the witness or another person or to prevent any serious damage to property, or (b) in order to prevent real harm to the public interest; whether affecting the carrying on of any activities in the public interest or the safety of a person involved in carrying on such activities, or otherwise. (4)  Condition B, referred to in subsection (2), is that having regard to all the circumstances, the taking of those measures would be consistent with the defendant receiving a fair trial. (5)  Condition C, referred to in subsection (2), is that it is necessary to make the order in the interests of justice by reason of the fact that it appears to the court that – (a) it is important that the witness should testify, and (b) the witness would not testify if the order were not made. (6)  In determining whether the measures to be specified in the order are necessary for the purpose mentioned in subsection (3)(a), the court shall have regard (in particular) to any reasonable fear on the part of the witness – (a) that the witness or another person would suffer death or injury, or

Court Proceedings  303 (b) that there would be serious damage to property,if the witness were to be identified. Section 23. (1) When deciding whether Conditions A, B and C in section 22 are met in the case of an application for a witness anonymity order, the court shall have regard to – (a) the considerations mentioned in subsection (2), and (b) such other matters as the court considers relevant. (2)  The considerations referred to in subsection (1) are – (a) that a defendant in criminal proceedings should know the identity of a witness in the proceedings; (b) the extent to which the credibility of the witness concerned would be a relevant factor when the weight of his or her evidence comes to be assessed; (c) whether evidence given by the witness might be the sole or decisive evidence implicating the defendant; (d) whether the witness’s evidence could be properly tested, whether on grounds of credibility or otherwise, without his or her identity being disclosed; (e) whether there is any reason to believe that the witness – (i) has a tendency to be dishonest, or (ii) has any motive to be dishonest in the circumstances of the case, having regard, in particular, to any previous convictions of the witness and to any relationship between the witness and the defendant or any associates of the defendant; (f) whether it would be reasonably practicable to protect the witness’s identity by any means other than by making a witness anonymity order specifying the measures that are under consideration by the court. Section 25. (1) Subsection (2) applies where, on a trial on indictment with a jury, any evidence has been given by a witness at a time when a witness anonymity order applied to the witness. (2)  The judge shall give the jury such warning as the judge considers appropriate to ensure that the fact that the order was made in relation to the witness does not prejudice the defendant.

One of the main differences between the applicable witness anonymity legislation in Antigua and Barbuda, Dominica and St Vincent, on the one hand, and that which exists in St Kitts and Nevis (and, by extension, England and Wales) on the other, is the fact the latter contains a specific safeguard inuring to the fair trial of the defendant, while the others do not. This provision reads, Section 20 (3) Nothing in this section authorises the court to require – (a) the witness to be screened to such an extent that the witness cannot be seen by – (i) the judge or other members of the court (if any); (ii) the jury (if there is one); or (iii) any interpreter or other person appointed by the court to assist the witness; (b) the witness’s voice to be modulated to such an extent that the witness’s natural voice cannot be heard by any persons within paragraph (a)(i) to (iii).

304  Institutional Considerations The importance of this provision, from a procedural standpoint, was considered in the Bahamas Court of Appeal case of Bruce Colebrooke v R.230 In that case, the Court quashed the appellant’s conviction for murder in circumstances where an anonymous witness gave evidence implicating the appellant who was alleged to have shot and killed the deceased who had at the time been among a group of friends. Contrary to section 11 of the Criminal Evidence (Witness Anonymity) Act, ‘Alpha’, the anonymous witness, was allowed to give his evidence without the appellant, or the judge or jury being able to see him. On appeal, the appellant argued, and the Court accepted, that the judge erred in law when she allowed Alpha to testify while completely screened from herself and the jury. In finding that this was a material irregularity substantially affecting the merits of the case, the Court of Appeal opined: It must be remembered that the jury will be required to assess the truthfulness or otherwise of a witness from the demeanour of such witness while he testifies. Thus, it is crucial that the jury have the opportunity to observe the witness as he gives his evidence.231 The ability to conceal the identity of a witness from a defendant has been allowed by statute. It is an incursion into the accepted practice of witnesses giving their evidence before the judge, jury, Counsel, the defendant and the general public. Thus, any conditions put in place by Parliament ostensibly to ensure fairness to the accused while allowing a deviation from the accepted procedure should be strictly observed by the Court. Inasmuch as a party must be able to ask questions of a witness which go to the witness’ credit, it is an important part of such questioning to see how the witness reacts to the various questions posed, for example, does he flinch or get fidgety when a particular line of questioning is pursued.232 It must be borne in mind that the power to order that a witness testify anonymously goes contrary to the normal procedure whereby a witness’ identity is known to all of the participants in the trial. That enables the opposing side to question the witness on any possible animus or interest the witness may have which motivates the evidence given so the jury can properly evaluate the quality and reliability of the evidence.233

Notwithstanding the foregoing, however, provided that the provisions of the relevant Acts are followed with some degree of particularity, it is likely that a court, on appeal, will countenance the grant of a witness anonymity order. In this connection, the Court in the Caymanian case of R v Anglin234 has explained that it is essential that the three conditions for making an anonymity order are satisfied to the highest standard of proof and that probability is insufficient. Those three conditions include that the importance of the testimony was in the public interest; that the witness would not testify if his identity was revealed and it was reasonable



230 Bruce

Colebrooke v SCCrimApp No 151 of 2015. [25]. 232 ibid [26]. 233 ibid [27]. 234 GICA (Crim) No 4/2012 Ind 4/200. 231 ibid

Court Proceedings  305 for the witness to believe that testifying could lead to serious injury or death; and that the judge was satisfied that despite the anonymity order the defendant could obtain a fair trial. In that case, Quin J had heard and granted an application for an anonymity order in respect of witnesses B and E who had independently witnessed the defendant shoot the deceased. The witnesses said they were only prepared to give evidence if their identities were not revealed. On the question of the constitutionality of legislative provisions which allow for the evidence given by anonymous witnesses, The Bahamas Court of Appeal in the case of Attorney General v Leroy Smith and Tony Smith235 has held that although the Anonymity Statutes have amended the common law in relation to the appearance of witnesses at trials, with proper safeguards to ensure fair proceedings built into the legislation, as in the case of the Anonymity Act, they are not in breach of Article 20(1) of the Constitution which guarantees a fair trial to a person accused of a crime.236

In that case, an anonymous witness, ‘Alpha’, was permitted to give evidence through the use of a pseudonym and without his name or identifying details being revealed. The Court, in finding that witness Alpha apprehended death or serious bodily harm if the respondents knew that he or she was testifying and that he or she would refuse to testify without an anonymity order, concluded that in light of the prevalence of murder at this time, and the crucial nature of the evidence, it would promote the course of justice and be in the public interest to ensure that important evidence in this case is before the court. Failure to ensure that the evidence is led could do harm to the public interest.237

These sentiments also hold true in relation to the protection of victims of trafficking and witnesses to exploitation.

E.  Other Considerations More generally, although it is certainly commendable that in most Commonwealth Caribbean countries there have, in recent years, been a number of changes238 to the organisational structure239 of the judiciary in order to better cater for the

235 SCCrApp No 95 of 2014. 236 ibid [31]. 237 ibid [47]. 238 Ashni Kumar Singh, ‘Budget Speech of the Minister of Finance’ (Guyana Sessional Paper No 1 of 2014 (10th Parliament of Guyana, 1st session 2012–14, 24 March 2014) 52–54; ‘Human Rights Committee considers report of Jamaica – Replies by the Delegation’ (OHCHR, Geneva, 19 October 2016). 239 ‘Trinidad and Tobago: Amnesty International’s submission to the UN Universal Periodic Review’ (Amnesty International, 2014); ‘Report of the Special Rapporteur on trafficking in persons – The Bahamas’ (n 58).

306  Institutional Considerations specific needs of trafficked victims,240 including the establishment of additional court rooms and the hiring of additional specialist prosecutors,241 various sources nevertheless revealed that, at present, there are a number of impediments which continue to adversely affect the conduct of court proceedings in these countries.242 The first of these impediments relates to the serious ‘backlog’ of cases243 in many of the countries’ court systems,244 which can be attributed to the impact of recent hurricanes in the British Virgin Islands and Dominica; inadequate staffing of DPPs’ offices, police stations and criminal courts; deliberate delays by lawyers and other criminal justice practitioners; delays in evidence processing; poor case management capacity, especially in terms of scheduling practices; and limited resource allocation to the judiciary, in terms of personnel, physical infrastructure and security.245 In some countries, interlocutors are of the view that some judges and magistrates countenance a lax approach to granting adjournments246 on the one hand, while less experienced members of the judiciary appear to be reluctant to make adverse decisions for fear that their safety might be compromised247 or are intimidated by the possibility of an appeal against their decisions,248 on the other. This situation is further compounded by the fact that police prosecutors, who typically prosecute trafficking cases in the lower courts in some cases, are said to at times present files which show ‘poor and inadequate work’,249 and indeed, ‘shoddy investigations’.250 Apart from the fact that many of these police prosecutors take a disproportionate length of time before seeking charging advice from the Office of the DPP, interlocutors also suggest that many of these persons are simply ‘inefficient’251 in dealing with the complexity of forensic evidence, and indeed in promptly securing the attendance of witnesses for trial.252 Given the continued

240 ‘Criminal justice system receives overhaul’ (Government of Trinidad and Tobago, 23 May 2013). 241 ‘Trinidad and Tobago upgraded in the latest US trafficking in persons report’ Caribbean News Now (23 June 2014). 242 ‘Caribbean Human Development Report 2012’ (UNDP, New York, 2012) ch 5. 243 Human Rights Council, ‘Report of the Special Rapporteur on trafficking in persons – Mission to Belize’ (n 34); ‘The problem with human trafficking’ Kaieteur News (18 June 2015); ‘Jamaica: Child Labour Legislative Gap Analysis’ (International Programme on the Elimination of Child Labour, March 2012). 244 W Lewis, Transforming the Judiciary’s Court Reporting System: Building and Effective Court Reporting Services Unit’ (Institute for Court Management, 2007); ‘Combatting Trafficking in Persons’ (UNDP, 2016). 245 ‘Trinidad and Tobago’ (The Heritage Foundation, 2014). 246 ‘Backlog of cases too much for Judges – Chancellor’ Stabroek News (26 October 2008). 247 ‘Magistrates want more protection’ Guyana Times (1 March 2013). 248 ‘Inexperienced judges, magistrates causing backlog of cases – Justice Kennard’ Guyana Times (15 February 2014). 249 ‘DPP berates cops over handling of serious crimes’ Stabroek News (31 March 2013). 250 ‘President wants Police Force to clean up house’ News Source (25 January 2013). 251 S Walker, ‘Getting Smart and Scaling Up: The Impact of Organized Crime on Governance in Developing Countries – A Desk Study of Guyana’ (New York University, 2013) 197. 252 Nivedta Kowlessar, ‘Police to be asked to respond to DPP performance report’ Guyana Chronicle (12 September 2013).

Court Proceedings  307 existence of these challenges, it has been argued that a ‘tremendous burden has been placed on the [DPP’s] chambers’.253 Against the backdrop of the foregoing, the question naturally arises as to whether the lack of formal legal training on the part of some police prosecutors is the underlying problem,254 or simply a disregard for standard operating procedures. Whatever the underlying rationale, it is clear that the current state of affairs is unacceptable, as it risks, among other things, undermining victims’ confidence in the justice system.255 More generally, in some countries, it has been reported that despite official assurances that more judges and magistrates256 will be appointed, and that new forms of technology will be utilised in court proceedings,257 many victims of trafficking, especially foreign victims, are simply not inclined to participate in criminal proceedings for the reasons identified above.258 Suffice it to say, even when victims do agree to participate in criminal proceedings, interlocutors allege that a vast majority of these victims often become despondent and frustrated259 as a result of lengthy court delays, which generally result in them being repatriated to their countries of origin, even before they have properly presented evidence before the court. Meanwhile, although it is certainly commendable that some Caribbean ­countries260 are embarking upon a number of strategic relationships with other justice systems in an effort to alleviate at least some of the challenges identified above,261 public confidence262 in the respective criminal justice systems remains at an all-time low. The limited availability and poor quality of some courthouses is a major factor accounting for this lack of confidence. More specifically, various sources revealed that the physical condition of some courthouses can be best described as insalubrious, that is, they are typically dilapidated, have poor acoustics, lighting, ventilation and air conditioning, and lack proper equipment. For this reason, interlocutors have suggested that trafficked victims would

253 ibid. 254 ‘All prosecutors need to be legally trained’ Kaieteur News (13 March 2014). 255 Dale Andrews, ‘Guyanese confidence in Police Force among the lowest in the Caribbean’ Kaieteur News (13 November 2012). 256 Denyse Renne, ‘Archie wants backlog of cases cleared’ Trinidad Express (9 December 2013). 257 I Demeritte-Francis, ‘The Reform Agenda, the Court Process and Technology’ (The Commonwealth of The Bahamas Court of Appeal, 2013). 258 ‘Trafficking in Persons Report – Belize’ (n 149). 259 Jorg Kilian, ‘High Court in Trinidad and Tobago needs reform’ Tobago News (1 April 2011) (noting that as a result of the frustration faced by many victims of crime, they lose faith in the justice system and feel encouraged to handle conflicts ‘among themselves’). 260 ‘AG meets delegation on crime fighting’ Newsday (27 January 2014). 261 Canadian Regional Chair of the Dublin Group, ‘Regional report on the Caribbean’ (Council of the European Union, Brussels, 7 November 2013). 262 ‘Human rights concerns in Trinidad and Tobago’ (Amnesty International Submission to the UN Universal Periodic Review, October 2011).

308  Institutional Considerations ­ ecessarily be unwilling to pursue lengthy and adversarial criminal proceedn ings that they perceive might ultimately only result in them being secondarily victimised.263

F.  Criminal Procedure Rules A final point to note is that Criminal Procedure Rules have a real potential to enhance the delivery of justice to trafficked victims. These Rules have been adopted in many countries, including England and Wales,264 Belize,265 St Lucia,266 and Trinidad and Tobago.267 The Rules, which the court and all participants in criminal proceedings must in principle abide by, apply to both High Court and magistrates court proceedings. The Rules introduce a robust case management system, aimed at equipping the court to deal with cases justly and expeditiously. The Rules also aim to protect the rights and interests of the accused, victims, witnesses, jurors and other stakeholders. Although the scope of the Rules may vary between jurisdictions, there are a number of ways in which the Rules work to reduce delay in the criminal justice system while enhancing the efficient delivery of justice to victims of crime: • Each party is required to immediately inform the Court and all parties of any significant failure to take any procedural step required by the Rules, any Practice Directions or any orders or directions made by the Court, thereby fostering a culture of accountability. • A Magistrate is not permitted to continually allow adjournments of cases for defendants remanded in custody. • The prosecution is required to serve initial details of the prosecution’s case on the accused as soon as practicable. • A date is fixed by which the prosecution must disclose to the accused all the evidence they intend to rely upon at trial. • The accused must inform the Court of the nature of the defence so as to enable the court to consider all the legal issues that may arise in the case and allot an appropriate amount of time for the trial. • A Case Progression Officer is in principle appointed to monitor the parties’ compliance with the Court’s directions, whilst also ensuring that the Court is kept informed of events that may affect the progress of the case.

263 Government of Jamaica, Jamaican Justice System Reform Task Force Final Report (Ministry of Justice of Jamaica, 2007). 264 Criminal Procedure Rules. 265 Criminal Procedure Rules 2016. 266 Criminal Procedure Rules (No 22/2015). 267 Criminal Procedure Rules 2016.

Court Proceedings  309 • The Court necessarily limits the examination, cross-examination or re-­examination of witnesses, and the duration of any stage of the hearing. • The prosecutor and the Attorney-at-Law for the accused are required to file a certificate of readiness before trial. To give ‘teeth’ to these obligations, the Rules afford the court the power to enquire into the reasons for non-compliance with said obligations, identify who is responsible, and take appropriate action, which may include imposing appropriately stringent sanctions. In jurisdictions which have implemented Criminal Procedure Rules to date, it has been reported that the Rules have resulted in: • The early identification of all possible legal issues. • The early identification of the nature of the defence. • The early identification of the needs of witnesses or the accused, including special measures and interpretation and translation services. • Certainty as to what should be done, by whom, and by when, in particular, by the early setting of a timetable for the progress of the case. • Effective monitoring of the progress of the case and compliance with directions. • Evidence, whether disputed or not, being presented in the shortest and clearest way. • Reduction in delays, since the court is obliged to deal with as many aspects of the case as possible on the same occasion, thus avoiding unnecessary hearings. • Encouraging the participants to cooperate in the progression of the case. • More effective use of technology. • Children or young persons who appear before the court receiving legal representation at the earliest possible opportunity. The case management process, as outlined by the Rules, ultimately allows for a more efficient use of the court’s time and resources, thereby significantly reducing delay as a strategy to gain a tactical advantage. These Rules also assist in fostering within the criminal justice system and among its actors a culture of responsibility, awareness and collaboration, thereby shifting the gears of its current operations to a greater level of overall system efficiency. The requirement for parties to formally declare their readiness prior to the listing of a matter for trial or hearing is of significant assistance in achieving the goal of pre-trial readiness as all paperwork, arguments, evidence and witnesses must be prepared before the commencement of trial proceedings. This invariably encourages greater collaboration among the various actors within the criminal justice system, including the police service, forensics and the Office of the DPP. The overall effect of these Rules is a longerterm culture shift within the justice system to the benefit of not only trafficked victims, but accused persons. Indeed, in countries which have adopted the Rules, the court, in taking on a new leadership role in ensuring compliance with the

310  Institutional Considerations Rules, no longer simply wait for both sides to be ready or endure tactical delays but, via the use of directions and/or sanctions, it enables the speedy progress of matters through the criminal justice system.268

Conclusion This chapter addressed the institutional aspects of Caribbean anti-trafficking law and practice from an Analytical Eclectic perspective. The central argument advanced by this chapter is that although Commonwealth Caribbean countries have made considerable progress in the last decade in strengthening their institutional approach to human trafficking, a number of tactical and operational challenges nonetheless arise in practice which necessarily require amelioration. More specifically, the chapter explored the difficulties which Caribbean nations have encountered when attempting to place human trafficking on their national agendas, pointing, in particular, to human and financial resource constraints as well as political, situational and ideological challenges. The complexities associated with raising the public profile of human trafficking were also explored, coupled with the difficulties that continue to plague capacity building efforts in the region. The challenges associated with ensuring that stakeholders at the national, regional and international levels effectively cooperate in the collective effort to combat human trafficking were also explored. Other important considerations raised in this chapter were the numerous shortcomings associated with existing victim identification and referral processes, as well as the constitutional implications of new developments in the anti-trafficking field, including trial by judge only, committal proceedings, the use of special measures, including controversial witness anonymity orders, and the related issue of Criminal Procedure Rules and their role in improving the efficiency of the criminal justice system in the region.

268 See generally, S Abraham and J Haynes, Criminal Justice Newsletter (Criminal Justice Reform Project, US Embassy/British High Commission, February 2018) 10.

8 Individual Aspects of Caribbean Anti-Trafficking Law and Practice Introduction As intimated in chapter three, the protection of trafficked victims is one of the key pillars of international anti-trafficking law. Protection, in this context, is construed in its broadest sense to include not only a state’s obligation to provide for the immediate needs of trafficked victims, but also to ensure that their longer-term need for rehabilitation and reintegration is met. More than this, ‘protection’ contemplates the operationalisation of measures aimed at securing the safety and liberty of trafficked victims, as well as ensuring that their inherent dignity is restored and respected. No arm of the state is exempt from the obligation to protect trafficked victims. Indeed, first responders must necessarily liberate victims from situations of exploitation and refer them to appropriate support agencies in a timely fashion; medical professionals must expeditiously provide victims with necessary medical and psychological assistance; support agencies must provide for victims’ basic economic and social needs; law enforcement must offer the necessary protection to victims and witnesses so as to ensure respect for their privacy and confidentiality and prevent against intimidation or harassment; and both prosecutors and members of the judiciary must ensure that victims are treated fairly in the context of ensuing court proceedings. Against this backdrop, this chapter interrogates the law and practice on human trafficking as applied to trafficked victims from an Analytical ­Eclectic ­perspective. Like chapters six and seven, the overarching aim of this chapter is to explore whether, and the extent to which, there is a ‘disconnect’ between anti-­trafficking law and practice with regard to the protection of trafficking victims in the Commonwealth Caribbean.

I.  Primacy of Victims’ Rights Through a number of legislative provisions, as well as institutional and operational commitments, the rights of trafficked victims have, in principle, been afforded primacy in the Commonwealth Caribbean. More specifically, the respective

312  Individual Considerations Commonwealth Caribbean TIP Acts require that competent national authorities have regard to the primacy of victims’ human rights in all decision-making processes. In this context, they are required, to the greatest extent possible, to take account of victims’ ages(s), gender and special needs.1 These provisions set the tone for the operationalisation of what is considered in the literature to be a ‘victim-centred’ approach to human trafficking in the Commonwealth Caribbean, to the extent that the rights of victims have been given statutory recognition, and not merely rhetorical force. Several examples illustrate the level of primacy afforded the rights of trafficked victims in the Commonwealth Caribbean. First, in outlining the threshold requirements for a finding of human trafficking, Commonwealth Caribbean legislators, like their England and Wales counterparts, sought to ensure that traffickers are not able to use the supposed ‘consent’ of trafficked victims as a legitimate defence.2 In addition, legislators have also sought to ensure that the past sexual behaviour of a trafficked person is treated as irrelevant and inadmissible for the purpose of proving that the trafficked person was engaged in other sexual behaviour or to prove the trafficked person’s sexual predisposition.3 Furthermore, some of the Commonwealth Caribbean TIP Acts explicitly provide that trafficked victims, if they so desire, must be afforded the opportunity by the court to present their views and concerns in criminal proceedings brought against traffickers.4 Added to this, some of the regional TIP Acts also provide that trafficked victims must be allowed to communicate and receive visits from family, friends and attorneys-at-law after they have been identified;5 and that repatriation to their countries of origin prior to the conclusion of criminal proceedings cannot prejudice their right to receive compensation.6

1 s 20(4) The Bahamas TIP Act; s 6(2) Belize TIP Act; s 18(7) Guyana TIP Act; s 24(8) St Lucia TIP Act; s 35(3) St Vincent and the Grenadines TIP Act; s 44(3)(b) Trinidad and Tobago TIP Act. 2 s 19(a)–(b) Antigua and Barbuda TIP Act; s 9(1) The Bahamas TIP Act; s 5(1) Barbados TIP Act; s 25 Belize TIP Act; s 210A(4) British Virgin Islands Criminal Code; s 3(4) Cayman Islands TIP Act; s 10 Dominica Transnational Organized Crime (Prevention and Control) Act; s 14(a)–(b) Grenada TIP Act; s 9(1) Guyana TIP Act; s 4(4) Jamaica TIP Act; s 9(a) St Kitts and Nevis TIP Act; s 11 St Lucia TIP Act; s 9(1) St Vincent and the Grenadines TIP Act; s 20(1) Trinidad and Tobago TIP Act; s 12(b) Turks and Caicos Islands TIP Ordinance. 3 s 20 Antigua and Barbuda TP Act; s 9(2) The Bahamas TIP Act; s 5(3) Barbados TIP Act; s 25(1) TIP Act; s 15 Grenada TIP Act; s 9(2) Guyana TIP Act; s 9(b) St Kitts and Nevis TIP Act; s 11(2) St Lucia TIP Act; s 9(2) St Vincent and the Grenadines TIP Act; s 20(3) Trinidad and Tobago TIP Act; s 13 Turks and Caicos Islands TIP Ordinance. 4 s 17(a) The Bahamas TIP Act; s 17 Guyana TIP Act; s 23(1) St Lucia TIP Act; s 24(1) St Vincent and the Grenadines TIP Act; s 36 Trinidad and Tobago TIP Act; s 44 Turks and Caicos Islands TIP Ordinance. 5 s 20(2) The Bahamas TIP Act; s 18(5) Guyana TIP Act; s 24(5) St Lucia TIP Act; s 25(4) St Vincent and the Grenadines TIP Act; s 37(2) Trinidad and Tobago TIP Act. 6 s 64(3) Antigua and Barbuda TIP Act; s 6(4) The Bahamas TIP Act; s 24(3) Belize TIP Act; s 5(4) Cayman Islands TIP Act; s 6(3) Guyana TIP Act; s 6(1)(c) St Kitts and Nevis TIP Act (absence from the proceedings); s 8(4) St Lucia TIP Act (absence from the proceedings); s 16(4) TIP Act (absence from the proceedings); s 30(4) Trinidad and Tobago TIP Act.

Primacy of Victims’ Rights  313

A.  Non-Punishment of Trafficking Victims The non-punishment/non-criminalisation of trafficked victims remains a high priority area for the international community. Indeed, as discussed in chapter five, while it is not in the public interest for trafficked victims to escape liability for all crimes that they have committed, the international community has accepted that these individuals should not be criminalised for crimes committed as a direct result of being trafficked. This is because threats or force or the general circumstances of a person’s exploitation could explain why they committed the offence in question in the first place. Typically, these are offences in contravention of immigration and prostitution laws but, as seen in chapter five, can extend to a wider range of offences, including the cultivation and sale of cannabis. The principle regarding the non-punishment of trafficked victims is implemented in a number of ways in the Commonwealth Caribbean. At an elementary level, prosecutors, who are guided by the Full Code Test contained in the Code for Prosecutors, may determine that although there is evidential basis to indicate that a trafficked person has committed an offence, the public interest militates against the institution of criminal proceedings. In other instances where criminal proceedings have been commenced against a trafficked victim, that person can seek to invoke the defences of duress and/or necessity,7 though, as highlighted in chapter five, these defences are hardly ever successfully raised in practice. To successfully make out the defence of duress, the trafficked victim would be under an evidential burden, either by the cross-examination of the prosecution witnesses or by evidence called on his or his or her behalf, or by a combination of the two, to place sufficient material before the court so as to make duress an issue fit for the jury’s consideration. However, once he or she has done so, as noted in the Court of Appeal of Jamaica case of Clement Reid v R,8 ‘it is then for the Crown to nullify that defence in such a manner as to leave in the jury’s minds no reasonable doubt that the accused cannot be absolved on the grounds of the alleged compulsion’. In other words, it is not for the victim, having raised the issue, to prove that he or she acted under duress; rather, it is for the prosecution, in the discharge of the legal burden, to satisfy the jury so that they can be sure that the victim did not act under duress. The key considerations in relation to which a court must be satisfied for the defence of duress to be successfully raised are: i. The victim was driven or forced to act as he or she did by threats which, rightly or wrongly, he or she genuinely believed that if he or she did not commit the offence (for example, prostitution/possession or use of fraudulent identity documents), he or she or his or her family would be seriously harmed or killed.

7 For coverage of these defences from a Caribbean perspective, see R Small, ‘Necessity as a Criminal Defence, Some Practical Pointers’ (Jamaica Bar Association, 1999). 8 Clement Reid v R [2013] JMCA Crim 41.

314  Individual Considerations ii. A reasonable person of the victim’s age and background would have been driven or forced to act as he or she did in the commission of the offence. iii. The victim could not have reasonably avoided acting as he or she did without harm coming to him or her or his or her family.9 While these threshold conditions appear to be straightforward on paper, they are anything but straightforward in practice, which will in most cases mean that trafficked victims who have committed an offence are simply unable to rely on the defence of duress. Indeed, even the Court in R v N; R v LE10 intimated that the defence of duress is unlikely to succeed where a trafficked victim has had an opportunity to escape. Suffice it to say, it must be noted that even where a trafficked victim is unable to successfully rely on the defence of necessity/duress, it might be that he or she can nonetheless move the court to invoke its jurisdiction to ‘stay’ proceedings on account of said proceedings amounting to an abuse of process. Additionally, if a conviction has already been obtained, the victim can nonetheless still apply to the court to quash the conviction on account that it amounts to an abuse of process. The main considerations which the court bears in mind in respect of applications for a ‘stay’ were examined in detail in chapter five, but it suffices here to note that the court would first need to be convinced that there is a sufficient nexus between the offence committed and the victim’s trafficking experience and that the person was compelled to commit the offence to such a degree that his or her culpability was effectively extinguished, and that if this evidence was available or taken account of at trial, it would clearly have been an abuse of process to proceed with the prosecution or to convict the person. Although there is no specific Caribbean case expressly on this point, the emerging jurisprudence emanating from courts in England and Wales, as discussed in chapter five, beginning with L and Others v R11 and ending with R v S­ ermanfure Joseph,12 illustrate in no uncertain terms that the courts do in fact possess the power to ‘stay’ proceedings or quash a conviction in circumstances where it amounts to an abuse of process. In R v Sermanfure Joseph, a case which involved a St Lucian national who was trafficked to the UK, but who was later convicted for smuggling cocaine into that jurisdiction, the Court affirmed that while its jurisdiction to ‘stay’ proceedings on account of an abuse of process exists in principle, the twin requirement of sufficient nexus and compulsion must be satisfied as a necessary precondition, and that it would also be inclined, for public policy reasons, to take account of the seriousness of the criminality engaged in by the person in question when exercising its jurisdiction. The final recourse available to trafficked victims who wish to be exonerated notwithstanding the fact of having committed a criminal offence is legislative in

9 ibid

[26]–[28]. v N; R v LE [2012] EWCA Crim 189. 11 L and Others v R [2013] EWCA Crim 991. 12 R v Sermanfure Joseph [2017] EWCA Crim 36. 10 R

Primacy of Victims’ Rights  315 nature. More specifically, 13 Commonwealth Caribbean countries have express provisions incorporating the non-punishment provision, in keeping with international anti-trafficking law. While most of these provisions are couched in very much the same language, there are distinct differences between some of these provisions, which invariably affect the likely interpretation that courts will ascribe to them in future. The first category of non-punishment provisions can be regarded as ‘broad’ in their orientation, and can be found in Barbados,13 Belize,14 Guyana,15 St Lucia,16 St Vincent and the Grenadines,17 and Trinidad and Tobago.18 A typical provision of this nature reads: A victim is not criminally liable for any immigration-related offence, or any other criminal offence that is a direct result of being trafficked.19

This provision can be considered to be ‘broad’ in its orientation because it seemingly exonerates trafficked victims from not only immigration-related offences, but ‘any other criminal offence that is a direct result of being trafficked’. Although an argument can be made that, applying the ejusdem generis rule, the phrase ‘any other criminal offence’ limits the application of the provision to immigration type offences, it is submitted that such an approach to statutory interpretation is problematic because it misapprehends the true nature of the ejusdem generis rule and is not in keeping with the overall object and purpose of the statute, which is, inter alia, to offer the highest standards of protection to trafficked victims. Indeed, although the ejusdem generis rule provides that where a class of things is followed by general wording (ie, ‘any other’) that is not itself expansive, the interpretation of the general wording is usually restricted to things of the same type as the listed items,20 it is clear that the non-punishment provision averred to above does not create a genus/class, since it only lists ‘immigration-related offences’. In this connection, as a matter of principle, although a class/genus consists of at least three items, only one item is listed here, namely any immigration-related offence.21 Thus, it is clear that while the provision may find limited applicability to circumstances where a trafficked victim commits particularly serious offences, such as murder or attempted murder, owing to public policy considerations, it is nonetheless applicable to offences beyond simply immigration-related offences. In short, a trafficked victim who has committed a prostitution type offence or who has engaged in the cultivation or possession of cannabis as a result of having been trafficked can rely upon this provision in his or her quest to be exonerated.

13 s

14 Barbados TIP Act. 27 Belize TIP Act. 15 s 11 Guyana TIP Act. 16 s 13 St Lucia TIP Act. 17 s 11 St Vincent and the Grenadines TIP Act. 18 s 31 Trinidad and Tobago TIP Act. 19 s 11 St Vincent and the Grenadines TIP Act. 20 Skinner v Shew [1893] 1 Ch 413. 21 Thames and Mersey Marine Insurance Co v Hamilton, Fraser & Co (1887) 12 App Cas 494. 14 s

316  Individual Considerations The second category of non-punishment provisions can be regarded as ‘relatively limited’, and can be found in the anti-trafficking legislation in The Bahamas,22 the Cayman Islands23 and Jamaica.24 A typical provision of this nature reads thus: Where a person provides evidence that he is a victim he shall not be liable to prosecution for any offence against the laws relating to immigration or prostitution, which is a direct result of the offence of trafficking in persons committed against him.25

This provision can be considered to be ‘relatively limited’ in its orientation because it seemingly exonerates trafficked from offences against the laws relating to immigration or prostitution only, and therefore excludes its application to other offences which might be committed by a trafficked victim as a result of the trafficking experience. Although this provision offers some protection to trafficked victims against penalisation, it does not offer as much protection as the legislation in the abovementioned countries, which applies to a wider range of criminal offences. The third category of non-punishment provisions can be regarded as ‘limited’, and can be found in Antigua and Barbuda,26 Grenada,27 St Kitts and Nevis,28 and the Turks and Caicos Islands.29 A typical provision of this nature reads thus: A trafficked person shall not be liable to criminal prosecution in respect of – (a) his illegal entry into the Islands; (b) his period of unlawful residence in the Islands; or (c) his procurement or possession of any fraudulent travel or identity document which he obtained, or with which he was supplied, for the purpose of entering the islands, where such acts are the direct consequence of the offence of trafficking in persons committed against him.30

This provision can be considered to be ‘limited’ in its orientation because it seemingly exonerates trafficked victims from offences against the laws relating to immigration only, and therefore excludes its application to other offences which might be committed by a trafficked victim as a result of the trafficking experience. Such a provision offers the lowest level of protection to trafficked victims, and arguably represents a minimalist approach to the implementation of the non-punishment provision. Suffice it to say, the question arises as to what is the appropriate threshold to be satisfied in respect of the evidential (not legal) burden imposed by the legislation on trafficked victims. The answer to this question varies from jurisdiction to

22 s

10 The Bahamas TIP Act. 7 Cayman Islands TIP Act. 24 s 8 Jamaica TIP Act. 25 s 7 Cayman Islands TIP Act. 26 s 28 Antigua and Barbuda TIP Act. 27 s 21 Grenada TIP Act. 28 s 10 St Kitts and Nevis TIP Act. 29 s 23 Turks and Caicos Islands TIP Ordinance. 30 ibid. 23 s

Primacy of Victims’ Rights  317 jurisdiction, but the main argument that could be advanced in this connection is that the legislation in Barbados and in Trinidad and Tobago respectively imposes a higher evidential burden on victims than the legislation in the other Commonwealth Caribbean islands. Section 31 of the Trinidad and Tobago TIP Act provides thus: Where a victim has been compelled to engage in unlawful activities as a direct result of being trafficked and he has committed any immigration-related offence, or any other criminal offence for which he is being prosecuted, he may offer as a defence, evidence of having been compelled as a victim of trafficking to engage in such unlawful activities.31

By contrast, section 10 of The Bahamas TIP Act provides: Where a person provides evidence that he is a victim he shall not be liable to prosecution for any offence against the laws relating to immigration or prostitution that is a direct result of the offence of trafficking in persons committed against him.32

The distinguishing feature between these two provisions is that whereas the Trinidad and Tobago TIP Act requires evidence of both sufficient nexus and compulsion, the Bahamas TIP Act simply requires sufficient nexus. In this connection, a strong argument can be made that a victim of trafficking stands a harder chance of successfully relying upon the non-punishment provision if the case is brought before a court in Barbados or Trinidad and Tobago compared with the other islands. On the basis of R v Sermanfure Joseph,33 it is submitted that the following considerations must be borne in mind by courts in the region if confronted in future with the question of what amounts to sufficient nexus (‘direct result/consequence’) and compulsion: i. Sufficient nexus between the trafficking experienced by the victim and the offence he or she has committed requires consideration of the extent to which the offence with which the person is charged (or of which he or she has been found guilty) was integral to or consequent on the exploitation of which the person was a victim or simply put: is the offence directly connected to his having been trafficked? ii. The element of compulsion calls for a consideration of whether the threat or other pressure was such that it would not be in the public interest for the ­prosecution to proceed; in other words, was the compulsion at the level where his culpability for the offence was, in reality, extinguished? Was the ­compulsion continuing and were there reasonable alternatives available to defendant/victim? One of the interesting questions that arises in light of the foregoing is whether the higher evidential threshold found in the Barbados and the Trinidad and Tobago

31 s

31 Trinidad and Tobago TIP Act. 10 The Bahamas TIP Act. 33 [2017] EWCA Crim 36. 32 s

318  Individual Considerations TIP Acts should be relaxed in cases involving child victims of trafficking. This question is a pertinent one because the legislation in these countries, and, indeed in the other Caribbean countries, makes no express mention as to how the court ought to approach the question of child victims who have committed criminal offences as a result of the trafficking experience. One approach to this question can be found in the decision of R v Sermanfure Joseph, in which the Court concluded that: Once it is established that a child is a victim of trafficking for the purposes of exploitation, the relevant consideration is whether there is a sufficient nexus between the trafficking for the purposes of exploitation and the offence; it is not necessary to go so far as to show there was compulsion to commit the offence required in the case of an adult.34

While this approach fits well into the legislative schema of countries which adopt the sufficient nexus (ie, ‘direct result/ consequence’) approach to the non-­ punishment of trafficked persons, it raises some vexing questions as to whether the courts in Barbados and in Trinidad and Tobago have been afforded the necessary flexibility to adopt the Sermanfure Joseph approach. The likely answer is that because the legislation in these countries does not make a distinction between adults and child victims of trafficking in respect of the non-punishment provision, the literal approach should apply. This means that the words used in the provision must be given their natural and ordinary meaning even if they produce unwanted consequences,35 unless there is some internal disharmony within the parameters of the legislation. A final point to note in respect of the non-punishment provision is that, in practice, there has been no reported case in the region which has applied this p ­ rovision to date. That said, there have been instances, particularly in The ­Bahamas,36 Belize,37 Guyana,38 and Trinidad and Tobago where potential victims of trafficking have reportedly been arrested and, in some cases, held in detention centres or deported. Although it can be argued that the non-punishment provision does not apply in these cases, since it is intended to cover situations where a criminal prosecution is ultimately instituted against a trafficked victim, such practices

34 ibid. 35 The Sussex Peerage Case (1844) 11 Cl&Fin 85 (Tindal CJ). 36 Human Rights Council, ‘Report of the Special Rapporteur on trafficking in persons, especially women and children, Joy Ngozi Ezeilo – The Bahamas’ (A/HRC/26/37/Add.5, 5 June 2014). 37 ‘Trafficking in Persons Report – Belize’ (Office to Monitor and Combat Trafficking in Persons, US Department of State, 2018); ‘In Modern Bondage: Sex Trafficking in the Americas’ (International Human Rights Law Institute, DePaul University College of Law, October 2005); Human Rights ­Council, ‘Comments by the government to the report of the Special Rapporteur on trafficking in persons, especially women and children – Belize’ (A/HRC/26/37/Add.11, 11 June 2014). 38 ‘Dominican Strippers in custody – after Rio Inn nightclub raid for Human Trafficking’ (Guyana News and Information Discussion Forums, 16 July 2016).

Primacy of Victims’ Rights  319 are no doubt antithetical to a victim-centred approach to human trafficking, as has been pointed out by the UN Special Rapporteur on Human Trafficking.39

B.  Witness Protection The protection of victims and witnesses from harassment and intimidation at the hands of traffickers and their associates is a foundational requirement of a victim-centred approach to human trafficking. The importance of protection, in this context, lies in the fact that trafficked victims are, by virtue of the exploitation which they have had to endure, vulnerable individuals whose mental and physical wellbeing could be easily compromised by the recalcitrant practices of traffickers and their associates who wish to regain their ‘property’ or dissuade victims from cooperating with prosecuting authorities in the institution of criminal proceedings. For this reason, it should come as no surprise that anti-trafficking legislation in a number of Caribbean countries expressly provide that all victims of trafficking must be afforded reasonable protection to prevent their recapture, and to secure them from threats, reprisals and intimidation by the traffickers and their associates.40 The legislation in some countries goes even further by providing that where the family of the victim or witness resides in the particular jurisdiction in question, reasonable protection must be provided by the state to secure the family from threats, reprisals or intimidation from the traffickers or their associates.41 In some countries, anti-trafficking legislation, quite progressively, also provide that victims of trafficking who are witnesses or potential witnesses are eligible to be enrolled in applicable witness relocation and protection programmes, if it is determined that an offence involving a crime of violence directed at him or her is likely to be committed.42 In principle, witness relocation and protection programmes include, at a minimum, relocation; the provision of a new identity and documents establishing identity; the provision of new residence; the provision of work permits; and protection of the confidentiality of the person’s identity and the location at which he or she is housed. Although there have reportedly only been a handful of instances in which victims of trafficking or witnesses have been subject to reprisals from traffickers or their associates in the Commonwealth Caribbean, interlocutors have 39 Human Rights Council, ‘Report of the Special Rapporteur on trafficking in persons, especially women and children, Joy Ngozi Ezeilo – Mission to Belize’ (A/HRC/26/37/Add.6, 11 June 2014). 40 s 12(2) The Bahamas TIP Act; s 15(b) Barbados TIP Act; s 29(b) Belize TIP Act; s 8(2) Cayman Islands TIP Act; s 13 Guyana TIP Act; s 9(2) Jamaica TIP Act; s 16(1)(b) St Kitts and Nevis TIP Act; s 19(1)(b) St Lucia TIP Act; s 20(b) St Vincent and the Grenadines TIP Act; s 32(b) Trinidad and Tobago TIP Act. 41 s 12(3) The Bahamas TIP Act; s 15(c) Barbados TIP Act; s 29(c) Belize TIP Act; s 13 Guyana TIP Act; s 16(1)(c) St Kitts and Nevis TIP Act; s 19(1)(c) St Lucia TIP Act; s 20(c) St Vincent and the ­Grenadines TIP Act; s 32(c) Trinidad and Tobago TIP Act. 42 s 13 The Bahamas TIP Act; s 14 Guyana TIP Act; s 20 St Lucia TIP Act; s 21 St Vincent and the Grenadines TIP Act; s 33 Trinidad and Tobago TIP Act.

320  Individual Considerations a­ cknowledged that existing witness protection programmes in the region are far from impervious. In fact, in some countries, no witness protection programme exists at all, while other countries struggle to operationalise robust programmes. According to interlocutors, the failure to fully operationalise robust witness protection programmes in some countries may explain why a number of trafficked victims have reportedly either been hesitant or have simply refused to cooperate with competent national authorities in the initiation of criminal proceedings,43 or have withdrawn half-way through the proceedings. This unfortunate state of affairs can be attributed to the inability of competent national authorities to sufficiently persuade these victims that they will be adequately protected against retaliation from traffickers, as well as the actual conditions in which victims of crime and, in particular, victims of trafficking, are held. For example, in one Caribbean jurisdiction, interlocutors reported that the authorities in that country are ‘overprotective’. Meanwhile, in another country, victims/witnesses of crime, in general, have complained of being held in ‘hostage-like conditions’.44 Yet, still, in another country, the witness protection programme has been described as ‘ineffective, inefficient and a waste of time’.45 The latter sentiment stems from instances in the past in which victims/witnesses have become despondent and frustrated by the strict rules of the programme and, in particular, ‘their living arrangement and [meagre] standard of living’.46 Added to this is the reportedly bad precedent set in earlier cases in some jurisdictions whereby, upon the collapse of cases in which certain individuals were called to give evidence as witnesses,47 they were excluded from the witness protection programme without adequate follow-up having been provided.48 More generally, it appears that public confidence in witness protection programmes in some countries in the region remains low.49 For example, in Trinidad and Tobago, notwithstanding official statements to the effect that that country’s witness protection programme has been assessed by an ‘international agency’ and given a passing grade in respect of its staffing and operational systems,50 it remains the case that public confidence in the programme is low.51 The lack of confidence in this programme is linked to the often lengthy periods of time that it takes for

43 ‘Trafficking in Persons Unit Cites Severe Limitations in Prosecutions’ RJR News (5 January 2013). 44 ‘Witness protection programme in shambles’ Kaieteur News (29 September 2010). 45 Denyse Renne, ‘Local witness protection programme misunderstood’ Trinidad Express Newspaper (7 February 2011). 46 Shaliza Hassanali, ‘Lucky: Upgrade Witness Protection Programme’ Trinidad Guardian (13 October 2013). 47 ‘T&T witness protection programme has collapsed – former AG’ Stabroek News (6 October 2013). 48 Shaliza Hassanali (n 46). 49 Government of Jamaica, Jamaican Justice System Reform Task Force Final Report (Ministry of Justice of Jamaica, 2007). 50 Ministry of Justice, ‘The Witness Protection Programme’ (Government of Trinidad and Tobago, 8 October 2013). 51 Implementation Review Group, ‘Review of implementation of the United Nations Convention against Corruption’ (4th session, Panama City, 26–27 November 2013).

Meeting the Basic Needs of Trafficked Victims  321 criminal proceedings to be completed in that jurisdiction; victims’ incessant fear that traffickers will intimidate their families who are located abroad, a matter in relation to which the municipal authorities in the country of exploitation do not have jurisdiction; and the general perception that, in a small society, ‘everyone knows everyone and there are few secrets’.52 On a practical level, the reality is that providing adequate security, relocation and a change of identity to victims and witnesses is very costly for small jurisdictions.53 Additionally, where a victim or witness refuses to enter a witness protection programme, the state cannot compel him or her to do so.54 Moreover, although special measures legislation exists in some countries, there appears to be some hesitancy in using live link to connect victims who have left the jurisdiction to ongoing criminal proceedings, largely on account of unfamiliarity with the relevant technology or resistance to change. Against the backdrop of the foregoing, it is perhaps not surprising that there have been repeated calls for the operationalisation of a robust Caribbean Community (CARICOM) facilitated witness protection programme55 aimed at enhancing the protection afforded trafficked victims and witnesses throughout the region. Although the relocation of victims and/or witnesses who are in danger of being intimidated or harassed does reportedly happen from time to time on an informal basis in many parts of the region, it has nonetheless been widely acknowledged that this needs to become more formalised, and that CARICOM, a regional ­intergovernmental organisation, is best suited to accomplish this.

II.  Meeting the Basic Needs of Trafficked Victims The respective Commonwealth Caribbean TIP Acts56 expressly stipulate that, to the greatest extent possible, competent national authorities, in conjunction with local, regional and international partners, shall provide basic supplies to victims of trafficking, commensurate with their individual needs. These basic supplies include, at a minimum, food, clothing and personal hygiene products and subsistence. In practice, it appears that the obligation to meet the basic material needs of trafficked victims has, in general, been complied with by most Commonwealth Caribbean countries, although interlocutors acknowledged that both resource and

52 Shaliza Hassanali (n 46). 53 S McDowall, ‘Witness Protection in the Caribbean’ (2013) 6 Indictment 3. 54 ‘Minister Griffith Confirms Safety of Witness Protection Program’ (TT NewsFlash 10 May 2014). 55 ‘CARICOM witness plan needed’ Nation News Barbados (March 2014). 56 s 56 Antigua and Barbuda TIP Act; s 20(1) The Bahamas TIP Act; s 18(1) Barbados TIP Act; s 6(1) (c) Belize TIP Act; s 9(1) Cayman Islands TIP Act; s 29 Grenada TIP Act (the provision on assistance in Grenada appears to be quite restrictive/exhaustive); s 18(1) Guyana TIP Act; s 10(1) Jamaica TIP Act; s 19(1) St Kitts and Nevis TIP Act; s 24(1) St Lucia TIP Act; s 35(1) St Vincent and the Grenadines TIP Act; s 6(1)(b) Trinidad and Tobago TIP Act; s 40 Turks and Caicos Islands TIP Ordinance.

322  Individual Considerations operational constraints exist. More specifically, in Guyana, for example, interlocutors revealed that, despite best efforts, the provision of basic material supplies to trafficked victims is impeded by a general lack of requisite financial resources for this purpose. This situation is particularly acute when foreign victims, usually with no material resources of their own, require the provision of even the most basic supplies; when trafficked children, who typically have no familial support, have to be extensively provided for; and when victims who undertake to initiate court proceedings have to be assisted by the state over the course of typically lengthy criminal proceedings. Financial constraints also reportedly limit the extent to which the state can support the families of trafficked victims, including dependent children who are solely reliant on the trafficked parent, who is usually the breadwinner of the household. Similar concerns were expressed in the context of Trinidad and Tobago, where interlocutors expressed the view that, in the past, the Counter-Trafficking Unit’s ability to provide even basic supplies to trafficked victims was severely constrained by a lack of financial resources, thereby requiring, on occasions, staff members of the Unit using their personal finances to assist victims. Additionally, it has been alleged that local NGOs in Trinidad and Tobago, and indeed in other parts of the region, have had to assume a leadership role in providing basic supplies to victims of trafficking, despite limited finances, as the state’s financial commitment in this connection has been rather limited. These challenges are not unique to Trinidad and Tobago, as interlocutors in the other islands report that they exist in other parts of the Caribbean as well. While interlocutors acknowledged that meeting the immediate and long-term material needs of trafficked victims is of paramount importance as how a state treats its most vulnerable is highly indicative of its moral suasion and social and political ideology, in a practical sense, it remains the case that such efforts are cost prohibitive in the context of small island developing states with volatile economies and competing interests.57 This was demonstrated in a case involving the rescue of 21 Honduran boys who were trafficked into forced labour in Jamaican coastal waters.58 Interlocutors recounted that providing for the immediate needs of these victims was not a straightforward task, especially in light of increasingly difficult economic times.59 In that case alone, over JMD $1 million was reportedly expended by the Jamaican government in providing for the living expenses of the victims in question before they were eventually repatriated to Honduras.60 Similar 57 ‘Report of the Special Rapporteur on trafficking in persons, especially women and children – The Bahamas’ (n 36); Human Rights Committee, ‘Consideration of reports submitted by States parties under article 40 of the Covenant – Belize’ (CCPR/C/BLZ/1, 26 September 2017). 58 Luke Douglas, ‘21 Honduran teens held on illegal fishing boat’ Jamaica Observer (31 December 2012). 59 One interlocutor noted that the major challenge of providing support and assistance to meet the needs of victims is primarily a limitation of resources. 60 A Braham, ‘Govt Establishes Shelter for Victims of Human Trafficking’ (Jamaica Information Service, 21 June 2013).

Medical and Psychological Assistance  323 sentiments have also been expressed by interlocutors in other Caribbean countries, with some interlocutors even suggesting that the applicable TIP Acts are ‘too victim-centred’ in their approach.

III.  Medical and Psychological Assistance As established in The Queen on the Application of EM v The Secretary of State for the Home Department,61 discussed in chapter five, the state is obliged to provide medical and psychological assistance to trafficked victims. More specifically, competent national authorities must respond to the welfare needs of the individual, objectively assessed in each case. However, the obligation to provide medical and psychological assistance does not extend to a requirement that the assessment or treatment must be provided by specialists in trafficking, or that it be targeted towards one aspect of an individual’s needs (for example, the consequences of trafficking) as opposed to his or her overall psychological needs. In short, the obligation to provide medical and psychological assistance to trafficked victims is an obligation of means, and not an obligation of result. In other words, the obligation calls for the provision of support/assistance, not the accomplishment of physical, psychological or social recovery. The obligation to provide medical and psychological assistance to trafficked victims has been included in the domestic anti-trafficking legislation of most Commonwealth Caribbean countries.62 In practice, interlocutors in the Commonwealth Caribbean report that competent national authorities, in conjunction with local NGOs and international organisations, provide, to the greatest extent possible, requisite medical and psychological assistance to victims of trafficking. Medical assistance is generally provided by the respective countries’ Ministries of Health63 or by medical practitioners employed by Counter-Trafficking Units,64 and would typically entail, at a minimum, the performance of various tests intended to determine whether trafficked victims may have contracted sexually transmitted diseases, become pregnant, or been infected with malaria or other infectious diseases, which are reportedly very prevalent in countries such as Guyana. In Belize, the Ministry of Health has, quite progressively, implemented a system

61 The Queen on the Application of EM v The Secretary of State for the Home Department [2018] EWCA Civ 1070. 62 s 50 Antigua and Barbuda TIP Act; s 20(1)(b)–(d) The Bahamas TIP Act; s 18(1)(c) and (i) Barbados TIP Act; s 26(1) Grenada TIP Act; s 18(1)(b)–(d); s 24(1)(b)–(d) St Lucia TIP Act; s 35(1) (a) St Vincent and the Grenadines TIP Act; ss 6(1)(b) and 37(1)(b) and (d) Trinidad and Tobago TIP Act; s 41(1)(b)–(c) Turks and Caicos Islands TIP Ordinance. 63 ‘Consideration of reports submitted by States parties under article 40 of the Covenant – Belize’ (n 57). 64 ‘Antigua and Barbuda’s Annual Report on Trafficking in Persons 2017’ (Trafficking in Persons (Prevention) Committee, December 2017).

324  Individual Considerations in the south of that country bordering Guatemala and Honduras which affords potential victims of trafficking access to public hospitals even where they are not able to present their identification papers to hospital staff.65 This system of free upfront health care services has reportedly benefited many migrants, including some potential and actual victims of trafficking, who have crossed the Belizean border in search of medical care. While local NGOs assist in the provision of medical assistance to trafficked victims by arranging to provide pro bono services, interlocutors commented that access to medical services through state-run medical facilities usually involves long waiting periods and, in some instances, poor quality services, at least when compared with private medical services. More generally, poor infrastructure, particularly in Guyana’s hinterland communities,66 and limited human resource capacity in other jurisdictions have been identified by interlocutors as some of the main practical challenges that impede the efficient delivery of medical services to trafficked victims. Meanwhile, with regard to the provision of psychological assistance to trafficked victims, interlocutors revealed that such assistance is typically provided free of cost by a number of government as well as private agencies. In practice, the provision of psychological assistance has reportedly proved to be very impactful, particularly in those cases where victims have shown signs of depression, posttraumatic stress disorder67 and, increasingly, suicide. In general, counsellors who provide psychological assistance to victims of trafficking are guided by a number of ethical principles, including respect for victims’ privacy and confidentiality as well as respect for victims’ physical autonomy, dignity and agency.68 From all reports, adherence to these principles has meant that, in practice, most victims, particularly foreign victims who typically feel despondent and isolated in the respective countries, are shielded from secondary victimisation that might otherwise be occasioned during the course of often lengthy criminal trials. Notwithstanding the considerable progress made to date in respect of the provision of psychological assistance to victims of trafficking, regional stakeholders maintain that their best efforts are sometimes constrained by a basic lack of resources. For example, while the capacity of Jamaica’s Victim Support Unit69 has expanded in recent years, some uncertainty still exists as to whether the available pool of counsellors, social workers and psychologists will be able to handle the pressure of several trafficking cases being referred to them all at once. This apprehension was echoed by interlocutors throughout the region. In fact, in 65 ‘Report of the Special Rapporteur on trafficking in persons, especially women and children, Joy Ngozi Ezeilo – Mission to Belize’ (n 39). 66 ‘Guyana: Country Cooperation Strategy at a Glance’ (World Health Organization, 2013) 1. 67 ‘Comments by the government to the report of the Special Rapporteur on trafficking in persons, especially women and children – Belize’ (n 37). 68 Ministry of Justice, Victim’s Charter (MIS Department, 19 July 2006). 69 Human Rights Committee, ‘Consideration of reports submitted by States parties under article 40 of the Covenant’ (CCPR/C/JAM/4, 15 May 2015).

The Special Position of Child Victims  325 countries where Victim Support Units exist, interlocutors report that said agencies are already stretched to maximum capacity, since these agencies not only provide services to victims of trafficking, but also to victims of crime generally, including victims of domestic violence. More generally, it is important to note that in some countries, psychological assistance is not provided at all or is provided only in a very limited sense by state agencies, so that referrals for counselling in these countries are typically made to local NGOs.70 NGO interlocutors, while appreciating their role in this regard, have, however, pointed out that they are already operating to maximum capacity and with limited financial support. For them, taking on the additional responsibility of meeting the psychological needs of trafficked victims has proven to be problematic in practice. Meanwhile, in other countries, interlocutors report that few trained psychologists and psychiatrists are on staff, and, further, that no or only limited specialised counselling services are available to support victims of trafficking. An additional challenge in some countries is that while psychological assistance could be provided on a short-term basis, because of resource constraints, it proves difficult, if not impossible, to provide such assistance on a long-term basis, even if victims require this degree of support. Another, albeit minor, concern relates to the general lack of evaluation of the quality and impact of psychological assistance provided to trafficked victims.

IV.  The Special Position of Child Victims Most Commonwealth Caribbean TIP Acts make explicit provision for the specialised treatment of trafficked children, in keeping with the internationally recognised best interests of the child principle.71 In this connection, apart from requiring that competent national authorities provide child victims with housing, care and other forms of appropriate support, the respective TIP Acts also require that these vulnerable persons be reunited with their families as soon as practicable, wherever it is appropriate to do so.72 Additionally, as discussed in chapter seven, applicable regional legislation mandate that criminal proceedings involving trafficked children are to be held in camera, which is intended to prevent against secondary victimisation. More generally, as a matter of legislative stipulation,

70 ‘Human Trafficking’ (Bahamas Crisis Centre, 2018); T Durbin and J St George, ‘Human Trafficking in Barbados: Achievements and Continuing Hurdles’ (2013) 38(1)(2) Journal of Eastern Caribbean Studies 126; William Ysaguirre, ‘Human trafficking – a growing problem in Belize’ The Reporter Newspaper (13 October 2017). 71 s 36 Belize TIP Act; s 21 Barbados TIP Act; s 25 Guyana TIP Act; s 31 St Lucia TIP Act; s 32 St Vincent and the Grenadines TIP Act; s 44(1) Trinidad and Tobago TIP Act. 72 s 25(c) Guyana TIP Act; s 19(3) St Kitts and Nevis TIP Act; s 31(3)(c) St Lucia TIP Act; s 32(4)(d) St Vincent and the Grenadines TIP Act; s 44(3)(a) Trinidad and Tobago TIP Act.

326  Individual Considerations children identified as having been trafficked may not be housed in prisons or other detention facilities.73 Furthermore, as both a matter of legislative stipulation and state practice, appropriate mechanisms are in place to ensure that where child victims of trafficking are required to participate in criminal proceedings, they are assigned trained social or case management workers, as the case may be, to support and assist them throughout the course of the often arduous criminal process.74 In appropriate cases, child victims are also assigned legal guardians to aid in their psycho-social recovery, should their parents not be suitable for these purposes.75 Notwithstanding the existence of the specialised measures identified above and, indeed, the widely acknowledged fact that regional states now see themselves as being under both a legal and moral obligation to protect child victims of trafficking,76 interlocutors in several countries pointed to a number of challenges which reportedly arise in practice in so far as the protection of trafficked children is concerned. More specifically, interlocutors noted that in some countries, although efforts have been made to foster stronger relationships between Counter-Trafficking Units and child protection agencies, these efforts have produced inconsistent results in practice. Meanwhile, in other countries, although discussions have been had in respect of providing temporary guardianship to trafficked children, the roll out of temporary guardianship schemes have been slow in coming. There is, in addition, a general lack of specialised accommodation for trafficked children in many of the islands. In Trinidad and Tobago, in particular, interlocutors expressed dissatisfaction about the fact that there is no designated shelter for trafficked children on the island of Tobago. They explained that this is cause for concern because if a child victim of trafficking were to be identified in Tobago, they would be kept at a hospital under the care of medical staff and supervised by female police officers until such time as they are able to be brought over to neighbouring Trinidad. While the distance between Trinidad and its sister island, Tobago, is about two-and-a-half hours by boat, interlocutors expressed that the time has come for a designated shelter to be established on the island of Tobago to accommodate child victims of trafficking. According to interlocutors, having to wait for an extended period in order to bring a child in need of appropriate care and attention over to Trinidad from Tobago is both risky and problematic from an operational perspective, given that the immediate aftermath of being trafficked is perhaps the most delicate time frame within which support and assistance is most needed. Similar 73 s 20(3) The Bahamas TIP Act; s 18(3) Barbados TIP Act; s 18(6) Guyana TIP Act; s 24(7) St Lucia TIP Act; s 25(6) St Vincent and the Grenadines TIP Act; s 37(4) Trinidad and Tobago TIP Act; s 41(3) Turks and Caicos Islands TIP Ordinance. 74 s 4(2)(b) Child Care and Protection Act (Jamaica); s 30(e) Belize TIP Act; s 25(b) Guyana TIP Act; s 19(3) St Kitts and Nevis TIP Act; s 31(3)(b) St Lucia TIP Act; s 32(3)(b) St Vincent and the Grenadines TIP Act. 75 ibid. cf ‘Trafficking in Persons Report – Belize’ (n 37). 76 ‘Child Counter-Trafficking Conference Opens in New Providence’ (thebahamasweekly.com, 24 April 2008).

The Special Position of Child Victims  327 arguments were expressed in the context of the multi-island State of St Vincent and the Grenadines. In a number of countries in the region, interlocutors pointed to the fact that although special measures exist in principle to protect child victims of trafficking, most children remain unwilling to participate in criminal proceedings, choosing rather to simply move on with their lives. An additional concern which arises in countries like Guyana is that the structural conditions which expose children to trafficking in the first instance, including economic disenfranchisement, lack of familial and community support and poor educational prospects, largely continue to exist even after trafficked children return to their communities of origin.77 These conditions invariably expose trafficked children and, in particular, children of Amerindian descent, to being re-trafficked. This situation is further compounded by the strong cultural demand for the sexual services of Guyanese girls, particularly in the hinterland communities of Guyana,78 and even abroad, such as in Barbados, Jamaica, and Trinidad and Tobago.79 The lack of adequate surveillance in many parts of the region also raises the distinct possibility that some trafficked children might still be unaccounted for in the National Referral Mechanism. More generally, in some countries, although existing legislation provide for an ambitious list of special measures aimed at protecting child victims in the context of ensuing court proceedings, the relevant regulations to give effect to the legislation as well as appropriate equipment needed to operationalise these measures remain absent. In other countries, interlocutors noted that there is a general reluctance on the part of prosecutorial teams to make applications for the use of special measures and, in some cases, even members of the judiciary appear reticent to utilise modern forms of technology, largely owing to unfamiliarity. Another significant challenge reported by interlocutors is the real risk of invasion of child victims’ privacy, given the small size of regional jurisdictions and the fact that, as a matter of practice, word gets around about sensitive cases very quickly. Meanwhile, interlocutors in some countries are apprehensive that the line is increasingly becoming blurred between what are culturally acceptable forms of behaviour, such as children being sent to family members in other communities where they then sell in shops or take care of livestock, and the notion of ‘child trafficking’, which does not in law require the ‘means’ element to be present for a trafficking-related offence to have been committed against a child. Finally, interlocutors have also questioned the extent to which existing security systems are robust enough to protect children who have been formerly trafficked,

77 G Garton, ‘Guyana’s Unacceptable Stance on Human Trafficking’ (2012) 32(19) Washington Report on the Hemisphere Council on Hemispheric Affairs 3. 78 ‘Child labour, trafficking in persons persist here despite legislation’ (Ministry of Labour, Human Services and Social Security, 2010). 79 ‘Done in by $10 … The Guyana–Barbados human trafficking case’ Kaieteur News (7 May 2013); ‘Human trafficking in Guyana’ Kaieteur News (25 April 2013); ‘A Human Rights Report on Trafficking in Persons, Especially Women and Children: Barbados’ (Protection Protect, 2012) 1.

328  Individual Considerations and who then wish to be reintegrated back into close-knit communities, schools and other social settings, where news of their exploitation may raise suspicions and may, in fact, give rise to stigma and discrimination, as the society is reportedly not kind to victims of sexual violence.

V. Accommodation A safe, well-resourced and discreetly located shelter is an absolute necessity for trafficked victims wishing to escape the influence of traffickers and recover from the trauma associated with the exploitation they have had to endure.80 Against this backdrop, the respective Commonwealth Caribbean TIP Acts81 provide that victims of trafficking shall be afforded appropriate accommodation. Although the question of what standard of accommodation must be provided to trafficked victims was comprehensively addressed in chapter five, it suffices here to note here that, in accordance with the decision of XPQ v The London Borough of Hammersmith and Fulham,82 this standard is an ‘objectively minimum standard’ of ‘appropriate and suitable’ accommodation, having regard to all the circumstances of the case. In XPQ, while the Court accepted that there was a duty to provide safe accommodation, in the sense of accommodation that does not expose the victim to any additional risk of being intimidated, harassed or re-trafficked, it went on to note that there is nothing which makes it an essential requirement that a victim of trafficking should have self-contained rather than bed and breakfast hotel accommodation, or that he or she should be housed in single-sex (women only) accommodation, even though this would be the more appropriate course of action. Although, for various reasons, some Caribbean countries have not yet, as a matter of practice, implemented the obligation to afford appropriate accommodation to victims of trafficking, other countries have made best efforts to designate generic shelters established for victims of crime to house trafficked victims, while others have partnered with NGOs to deliver accommodation to victims.83 Yet, still, 80 ‘Shelter Established for Victims of Human Trafficking’ RJR News (6 January 2013) (noting that the establishment of a shelter is one of the principal requirements when looking to aid victims of human trafficking). 81 s 56 Antigua and Barbuda TIP Act; s 20(1)(a) The Bahamas TIP Act; s 18(1)(a) Barbados TIP Act; s 6(1)(c) Belize TIP Act; s 9(1)(g) Cayman Islands TIP Act; s 22 Grenada TIP Act; s 18(1)(a) Guyana TIP Act; s 10(1)(f) Jamaica TIP Act; s 19(1) St Kitts and Nevis TIP Act; s 24(1)(a) St Lucia TIP Act; s 24(3), ss 32(2) and 35(1)(a) St Vincent and the Grenadines TIP Act; ss 6(1)(b) and 37(1)(a) Trinidad and Tobago TIP Act; s 41(1)(a) Turks and Caicos Islands TIP Ordinance. 82 XPQ v The London Borough of Hammersmith and Fulham [2018] EWHC 1391 (QB). 83 eg, Barbados – see C Bailey, ‘Crime and Violence in Barbados’ (Technical Note No IDB-TN-1059, Inter-American Development Bank, June 2016); ‘Report of the Special Rapporteur on trafficking in persons, especially women and children– The Bahamas’ (n 36); Guyana – ‘National Plan of Action for the Prevention and Response to Trafficking In Persons 2017–2018’ (Ministerial Task Force on Trafficking in Persons, 2017); ‘Guyana achieves highest ranking in US human trafficking report’ Stabroek News (28 June 2017).

Accommodation  329 in a few of the countries, specialised shelters have been designated to meet the specific needs of trafficked victims.84 Jamaica provides a useful example of a country that, despite limited resources, has moved in the direction of establishing a specialised shelter for victims of trafficking.85 The facility, which was described by some interlocutors as ­‘impressive’, is reportedly furnished with a sick bay, recreational room, training room, a playroom for children, as well as outdoor space for recreational activities.86 The shelter is also comprised of quarters which are manned by a house mother, and is closely monitored by a security guard.87 The daily operations of the shelter are effected in accordance with the Guidelines for the Operation of Care Shelters for the Victims of Human Trafficking. This document contains detailed provisions on the rules and regulations for residents which serve to prevent against the possibility of any interaction with traffickers. It also includes, in particular, special measures for the protection of vulnerable child victims of trafficking.88 Though the relatively new shelter is a significant initiative for which Jamaica must be commended, the overarching problem which arises in practice, according to interlocutors, lies in the fact that the shelter was designed to house only 10 persons and, as such, cannot accommodate males and females at the same time, unless they are of the same family. More specifically, it does not appear that the shelter in question will have the capacity to accommodate, in exceptional cases, a large number of victims at once given its relatively small size. The limited capacity of the shelter was reportedly brought into question in a case involving 21 Honduran boys who were rescued in Jamaican coastal waters. They, it is reported, could not be accommodated at the designated shelter because of its limited capacity and thus had to be housed at alternative locations, at a significant cost to the government of Jamaica. Although, at the time of writing, the government was reportedly actively exploring other emergency locations in the event that similar cases arise in future,89 the alternative shelters which are currently available in Jamaica, including those provided by local NGOs,90 either cannot accommodate trafficked victims for

84 eg, see ‘Consideration of reports submitted by States parties under article 40 of the Covenant – Belize’ (n 57). 85 GR Smith and L Palmer-Hamilton, ‘Human Trafficking: Modern Day Slavery or Child Abuse or What?’ (Jamaica Bar Association, 2015). 86 Braham (n 60). 87 ‘8 Human Trafficking Cases Brought to Courts in Past 2 Years’ (Jamaica Information Service, 24 February 2010). 88 A Barnes, ‘Human Trafficking Data: Jamaica’ (Organisation of American States, 2012). 89 Braham (n 60). 90 Carolyn Gomes, Kimberley Byers and Rafael Tahan, ‘NGO Report On the implementation of the International Covenant on Economic, Social and Cultural Rights’ (Jamaicans for Justice, 2012) (noting that Woman Inc a voluntary, non-profit organisation, functions as an emergency temporary residence for women in crisis, but that due to limited funding, the women can only stay for a short time. This situation puts the women in danger and often forces them back to the situation that they escaped from); Ruth Chisholm, ‘Theodora’s Place Protects Jamaican Girls from Trafficking’ (USAID FrontLines, 10 September 2009) (noting that Theodora’s Place can only accommodate six girls).

330  Individual Considerations an extended period of time or are too small to accommodate many victims at once. The peculiar dilemma faced in practice, however, is that it is also proving quite costly for the government of Jamaica to maintain a shelter of the nature of the one currently in operation, given the fact that the number of victims typically housed at this location at any one time is quite small. Suffice it to say, in other countries, interlocutors have noted that shelters have proven to be quite costly to operate, which has meant that, in practice, local NGOs are constantly placed under significant pressure to house trafficked victims. Notwithstanding government subsidies, for example, in the case of Guyana, shelters run by NGOs are nonetheless overburdened and operate under exceptional financial constraints.91 An additional concern which has caught the attention of interlocutors in Guyana, as well as interlocutors in many of the other Caribbean countries, is the fact that it remains quite difficult, if not impossible, in practice to maintain the secrecy of the locations of shelters, a reality which has the potential to adversely affect the interests of trafficked victims housed at these shelters. In fact, interlocutors report that in a number of cases, trafficked victims have actually made contact with their traffickers or associates and have provided them with the location of shelters, which not only exposes those victims to the risk of intimidation and harassment, but other victims as well, including children. Indeed, as rightly pointed out by interlocutors, this is cause for some concern, particularly in light of the fact that there is no robust security system currently in place to protect victims of trafficking housed at these shelters and, indeed, members of staff working at said shelters, from harm. A related concern is that even if robust security systems are in place during the day, once staff leave in the afternoon, there is a real risk that the interests of trafficked victims may be compromised by the surreptitious activities of traffickers and their associates. In Guyana, in particular, an additional challenge is that some trafficked victims simply cannot easily access shelters because there are reportedly no such shelters located in that country’s remote hinterland communities. A different, but no less significant, concern is that in some countries, despite the existence of shelters, many victims are simply not inclined to be housed at these shelters, presumably because of a perception that the operational rules at these shelters curtail their agency. In fact, several interlocutors admitted that they often find it difficult to strike an appropriate balance between allowing victims some degree of agency in terms of their freedom of movement, on the one hand, and protecting them from further victimisation, on the other. According to interlocutors, although this is a problematic area, non-cooperative victims do themselves no good by refusing to be accommodated at the shelters, as this exposes them to the risk of becoming re-trafficked. Another concern expressed by interlocutors in Guyana, as well as in other Caribbean countries, lies in the fact that only limited accommodation is typically available for male and child victims of trafficking, respectively, at designated shelters.

91 ‘US

TIP Report on Guyana inaccurate – Human Services Minister’ TrakkerNews (28 June 2014).

Privacy and Confidentiality  331 More generally, a strong view has been expressed by interlocutors in some countries that, in practice, some trafficked victims, and more particularly foreign victims, find themselves extremely bored, anxious and depressed while housed at state or NGO-run shelters. A related concern is that because cultural and language barriers reportedly exist in these shelters, cliques sometimes develop, with local victims being agitated by the suspicion that they are treated less favourably compared with foreign victims. This situation is, of course, not helped by the fact that shelters are sometimes shared by other victims of crime, including victims of domestic violence. Some interlocutors argued that shared housing in respect of victims of different crimes potentially exposes trafficked victims to ­revictimisation. This is because, it is contended, although victims of crime all suffer some harm, whether physical or psychological, the needs of trafficked victims tend to differ considerably in practice from other victims of crime. Interlocutors worry that this may create unnecessary conflicts and apprehensions. The reported absence of bilingual staff and volunteers at most shelters in the region is also cause for concern.92

VI.  Privacy and Confidentiality The respective Commonwealth Caribbean TIP Acts and associated legislative instruments93 explicitly recognise the importance of respecting victims’ privacy, and accordingly provide that, to the greatest extent possible, confidentiality with regard to victims’ identities, past experiences and present concerns is to be ­maintained.94 Among other things, competent national authorities in the respective Caribbean countries are obliged to ensure that names, locations and other sensitive information is kept confidential, because if publicly released, this may jeopardise the safety of victims and their families. This obligation is not only imposed on state authorities, but members of the media are also obliged to respect victims’ privacy and confidentiality.95 Even further, as detailed in chapter seven, criminal proceedings involving trafficked victims who are deemed to be particularly vulnerable are to be held in camera. To ensure that the foregoing protective measures are fully complied with in practice, explicit provision is made for the imposition of commensurate penalties in respect of those who are found to be in breach of the statutory conditions 92 ‘Trafficking in Persons Report – Trinidad and Tobago’ (Office to Monitor and Combat Trafficking in Persons, US Department of State, 2018). 93 eg, the Child Care and Protection Act; Evidence (Amendment) Act; Justice Protection Act, and Witness (Public Enquiries) Protection Act (Jamaica); Witness (Special Measures) Act (SVG); Data Protection Act (T&T). 94 s 15(2) The Bahamas TIP Act; s 16(1) Barbados TIP Act; s 30(b) and (c) Belize TIP Act; s 15(1) Guyana TIP Act; s 17(1) St Kitts and Nevis TIP Act; s 21(1) St Lucia TIP Act; s 22(1) St Vincent and the Grenadines TIP Act; s 34(1) Trinidad and Tobago TIP Act. 95 ibid.

332  Individual Considerations regarding privacy and confidentiality.96 It is submitted that this is an important development, as adherence to the foundational principles of privacy and confidentiality by stakeholders not only protects against trafficked victims being recaptured, intimidated or becoming the object of reprisal by traffickers and their associates, but also helps to prevent any secondary victimisation which might otherwise ensue if victims’ personal details are revealed in small societies as those in the Caribbean where stigma, discrimination and social exclusion of victims of sexual violence remain distinct concerns. Although there have been very few instances in which sensitive information regarding trafficked victims and their families has been publicly revealed in a manner which prejudices the interests of these persons, interlocutors acknowledged that, given the relatively small size of Commonwealth Caribbean countries, and the relative lack of awareness on the part of some key stakeholders, including members of the media, there is a real potential for privacy and confidentiality to be compromised in practice. In this connection, interlocutors called upon the media to be shrewder and more sensitive in reporting on human trafficking cases, citing in one instance a case in which a newspaper in a particular country published a news item with a photograph of a young woman who was at the time alleged to be a victim of trafficking. Although there is no indication that this was done maliciously, interlocutors noted that the potential victim, who had been recruited to a Central American country, subsequently refused to cooperate with competent national authorities in the institution of criminal proceedings.97 A final concern, as expressed by interlocutors in some countries, lies in the fact that because the majority of shelters in the region do not have a strong security presence, there is a real risk that the interests of trafficked victims may be ­compromised.98 The added challenge, in this connection, is the difficulty of keeping the location of shelters discreet in small societies, such as those in the Caribbean, where news of this nature reverberates through communities.

VII.  Information, Documentation and Interpretation/Translation Exploitation, by its very nature, typically leaves victims of trafficking helpless, broken and, in some cases, even destitute. While all victims of trafficking face 96 s 16(3) Barbados TIP Act; s 15(3) Guyana TIP Act; s 44 Child Care and Protection Act (Jamaica); s 17(3) St Kitts and Nevis TIP; s 21(3) St Lucia TIP Act; s 22(3) St Vincent and the Grenadines TIP Act; s 34(3) Trinidad and Tobago TIP Act; s 3 Trinidad and Tobago Data Protection Act 2011, Act No 13 of 2011. 97 Kenton Chance, ‘Vincentian woman victim of human trafficking – Eustace’ Searchlight Newspaper (24 July 2012). 98 ‘Report of the Special Rapporteur on trafficking in persons, especially women and children – The Bahamas’ (n 36); ‘Report of the Special Rapporteur on trafficking in persons, especially women and children – Mission to Belize’ (n 39).

Information, Documentation and Interpretation/Translation  333 ­ ardship, victims who do not speak the language of the jurisdiction in which h they have been exploited face additional challenges in understanding information pertinent to their status as victims of trafficking, and may in addition not have the requisite documentation to apply for appropriate support and assistance or restitution. In some instances also, victims of trafficking despite earnestly wishing to return to their countries of origin, may simply not have the requisite financial backing or identification documents to facilitate their repatriation and subsequent reintegration. In light of these circumstances, it is the responsibility of the state to make best efforts to assist these victims by providing them with the necessary information, documentation and interpretation/translation that they need to escape the influence of traffickers and to vindicate their rights and interests. In keeping with provisions of the respective Commonwealth Caribbean TIP Acts, competent national authorities are obliged to provide, to the greatest extent possible, requisite information to actual and potential victims of trafficking regarding their legal rights, as well the measures in place to ensure their safety, recovery and safe return to their countries of origin.99 In appropriate cases, legal assistance must also be provided to victims who are inclined to institute criminal proceedings against their traffickers, which is in an effort to both hold traffickers accountable and ensure that victims receive adequate restitution for harm sustained. Additionally, trafficked victims who are deprived of their identity documents as a result of the trafficking experience must, as a matter of law, be afforded necessary documentation, including passports, visas and other forms of identification.100 In conjunction with local NGOs, international organisations and resident embassies, victims of trafficking who do not speak English as their first language must also be afforded the benefit of interpreters, and any relevant documents that are in another language must be translated to a language which the victim understands.101 Interpreters have a particularly important role in respect of their dealings with migrant victims of trafficking, as they ensure that these victims, especially those who are illiterate or ignorant of legal processes, fully understand the rights to which they are entitled. While there has been considerable progress in the region to date with regard to the fulfilment of the above-mentioned obligations, interlocutors in some ­countries 99 s 56(a)–(b) Antigua and Barbuda TIP Act; s 16 The Bahamas TIP Act; ss 15(d) and 18(1)(d) Barbados TIP Act; s 31(1)–(2) Belize TIP Act; s 9(1)(a)–(c) Cayman Islands TIP Act; s 29(a)–(b) Grenada TIP Act; s 17(f) Guyana TIP Act; s 10(1)(a)–(b) Jamaica TIP Act; s 19(1) St Kitts and Nevis TIP Act; s 24(1)(f) St Lucia TIP Act; ss 23 and 35(1)(a) St Vincent and the Grenadines TIP Act; ss 6(1)(b), 35 and 37(1)(c) Trinidad and Tobago TIP Act; s 40(a) Turks and Caicos Islands TIP Ordinance. 100 s 56(b) and (d) Antigua and Barbuda TIP Act; s 17(b) The Bahamas TIP Act; s 18(1)(e) Barbados TIP Act; s 9(1)(c)–(d) Cayman Islands TIP Act; s 29(b) and (d) Grenada TIP Act; s 10(1)(b) and (c) Jamaica TIP Act; s 26(1)(c) St Lucia TIP Act; s 27(c) St Vincent and the Grenadines TIP Act; ss 40(a) and 42(3) Trinidad and Tobago TIP Act; s 40(b) and (d) Turks and Caicos Islands TIP Ordinance. 101 s 56(c) Antigua and Barbuda TIP Act; s 21(1)(f) The Bahamas TIP Act; s 15(e) Barbados TIP Act; s 9(1)(e) Cayman Islands TIP Act; s 29(c) Grenada TIP Act; s 17 Guyana TIP Act; s 10(1)(d) Jamaica TIP Act; s 23(2) St Lucia TIP Act; s 24(2) St Vincent and the Grenadines TIP Act; s 40(c) Turks and Caicos Islands TIP Ordinance.

334  Individual Considerations highlight challenges which they see as arising from time to time as a matter of practice. The main difficulty identified by interlocutors was that while translators versed in most of the major international languages (ie, French and Spanish) are generally available in the region, very few, if any, translators versed in the more infrequently spoken international languages, such as Mandarin, are readily available in the countries in question. Although this problem is not unique to the Commonwealth Caribbean, it is nevertheless problematic, both from a protection as well as a prosecution standpoint. This is because a failure to effectively communicate with trafficked victims in a language which they understand potentially deprives them of the opportunity to fully assess the options available to them, which may in turn expose them to revictimisation and could adversely affect the quality of evidence presented in court. Jamaican authorities reportedly faced this rather unfortunate situation a few years ago when they discovered 21 Honduran boys who had been trafficked in Jamaican coastal waters on a fishing boat. These boys only spoke a dialect of Spanish called ‘Miskito’, which was not comprehensible by Jamaican authorities. As Jamaican authorities could not readily ascertain the services of an appropriately skilled interpreter for the purposes of interpretation at the relevant time, it is reported that the boys had to be repatriated to Honduras so that they could receive a fuller evaluation from Honduran authorities. This effectively meant that the matter could not be prosecuted by the Jamaican authorities, despite their best efforts to source an appropriately skilled interpreter. The challenges of securing the services of a skilled interpreter not only arise in the context of criminal proceedings, but also in respect of accommodating victims from various nationalities in shelters who necessarily speak different languages. In many countries in the region, staff at shelters are only versed in English, which renders it incredibly difficult for trafficked victims to engage in constructive dialogue with members of staff, and indeed, other persons who may also have been trafficked. The lack of adequate interpretation services is also a serious challenge at many airports across the region. Moreover, in some countries, practical challenges also arise in connection with the processing and dispensing of relevant documentation, such as passports and other identity documents, that would enable trafficked victims to verify their identify, benefit from support and assistance measures provided by the state or return to their countries of origin. For example, interlocutors cited a case involving a Guyanese woman who had been trafficked to another Caribbean island. While there, she delivered a child, but found it very difficult to obtain the documentation needed for the purposes of being repatriated to Guyana. The dependent child, who was apparently born in the jurisdiction in which the exploitation occurred, could not also readily receive the relevant documentation needed to be enrolled in school, as his birth certificate did not accurately reflect his Guyanese identity, but rather reflected the name of the alleged trafficker as his father. This challenge is, of course, not unique to Guyana, as in many places across the region, trafficked victims are subject to bureaucratic administrative procedures which stymie their ability to obtain requisite documentation.

Regularisation of Victims’ Immigration Status  335

VIII.  Regularisation of Victims’ Immigration Status Migrant victims of trafficking often find themselves in a precarious position. While they may have escaped the exploitation to which they had been subject and potentially the influence of their traffickers, their vulnerability remains a continuing concern for which the state’s intervention is apposite. This vulnerability is typically exacerbated by the fact that many of these victims do not speak the language of the country to which they have been trafficked, are physically or mentally abused, without familial support and, though willing to assist in the institution of criminal proceedings, are apprehensive that they may be left destitute, having no leave to remain in the jurisdiction and no resources to support their stay until they are repatriated. For this reason, anti-trafficking legislation in the region provides for the regularisation of victims’ immigration status. This process of regularisation is typically given effect through the grant of temporary leave to remain, similar to the recovery and reflection period discussed in chapter five, followed by discretionary leave to remain, which is similar to the European residence permit, as discussed in chapter four. Different approaches are taken with respect to the regularisation of victims’ immigration status in the Commonwealth Caribbean. The first approach, found in Antigua and Barbuda102 and Grenada,103 involves the grant of temporary immigration status to persons in relation to whom there are reasonable grounds to believe that they have been trafficked, followed by an extension of authorisation to remain for up to three months, or in exceptional cases, even longer, where there are exceptional circumstances warranting such extension. On the other end of the spectrum are countries which do not specify the duration for which victims will be granted regularised immigration status, except to say that the grant of such status is dependent upon the duration of criminal proceedings. This approach is countenanced in The Bahamas,104 Barbados,105 the Cayman Islands,106 Jamaica,107 and Trinidad and Tobago.108 Yet still, there are other Caribbean countries, including Belize,109 Guyana110 and St Lucia111 whose legislation expressly make the duration of a victim’s immigration status contingent upon their willingness to assist in the investigation and prosecution of the trafficking-related offence in issue. Curiously, St Vincent and the Grenadines TIP Act adopts a dual approach, indicating in one



102 s

48 Antigua and Barbuda TIP Act. 24 Grenada TIP Act. 14(1) The Bahamas TIP Act. 105 s 19 Barbados TIP Act. 106 s 12 Cayman Islands TIP Act. 107 s 13(1) Jamaica TIP Act. 108 s 38 Trinidad and Tobago TIP Act. 109 s 32 Belize TIP Act. 110 s 19(1)–(2) Guyana TIP Act. 111 s 25(1)–2) St Lucia TIP Act. 103 s 104 s

336  Individual Considerations provision that the duration of a victim’s immigration status depends on the length of criminal proceedings,112 but in another provision, indicating that that status is linked to the victim’s willingness to cooperate in the investigation and prosecution of the offence.113 Although, in small-island developing states like those in the region, it is understood that resource constraints exist and that competing interests must be carefully balanced, the existing literature is rife with criticisms against countries which seek to establish an uncompromising link between the regularisation of victims’ immigration status and their willingness to assist in the institution of criminal proceedings.114 The central argument advanced in this connection is that because of the peculiar position of migrant victims of trafficking in the country of exploitation, it is wholly insensitive for competent national authorities to expect them to be in the frame of mind to assist in criminal proceedings immediately following their liberation. While accepting that without the evidence of trafficked victims most prosecutions brought against traffickers would collapse, anti-trafficking scholars take issue with the fact that criminal justice considerations seemingly weigh more heavily in the decision to regularise victims’ immigration status than human rights considerations. As far as the argument goes, in the vast majority of cases, it is not as simple as victims of trafficking not wishing to assist in criminal proceedings, as there are countervailing circumstances that may impede their decision to do so, such as Stockholm syndrome, the egregious and lasting nature of harms suffered and their apprehension that their families might be exposed to harm. For this reason, anti-trafficking scholars favour an approach where, aside from victims’ willingness to assist in criminal proceedings, they are given the opportunity to rely on humanitarian grounds as a basis for regularising their immigration status. This approach would mirror Article 14 of the Council of Europe Anti-Trafficking Convention, which provides that: Each Party shall issue a renewable residence permit to victims, in one or other of the two following situations or in both: (a) the competent authority considers that their stay is necessary owing to their personal situation; (b) the competent authority considers that their stay is necessary for the purpose of their co-operation with the competent authorities in investigation or criminal proceedings.

As discussed in chapter five, The Queen on the Application of PK (Ghana) v The Secretary of State for the Home Department115 is authority for the proposition that, 112 s 26(1) St Vincent and the Grenadines TIP Act. 113 ibid s 26(2). 114 J Elliott, The Role of Consent in Human Trafficking (Routledge, 2014); V Roth, Defining Human Trafficking and Identifying its Victims: A Study on the Impact and Future Challenges of International, European and Finnish Legal Responses to Prostitution-Related Trafficking in Human Beings (Martinus Nijhoff Publishers, 2011). 115 The Queen on the Application of PK (Ghana) v The Secretary of State for the Home Department [2018] EWCA Civ 98.

Regularisation of Victims’ Immigration Status  337 in so far as Article 14(a) of the CoE Anti-Trafficking Convention is concerned, the overarching objective is the protection and assistance of victims of trafficking and that, accordingly, whether the person’s personal circumstances are such as to make it necessary for him or her to stay in the particular jurisdiction would only be assessed by reference to that objective. More pointedly, the case is also instructive in providing that if a victim of trafficking who has received a conclusive grounds decision seeks the regularisation of his or her immigration status, competent national authorities must apply the lower ‘necessity’ threshold in respect of personal circumstances, rather than the higher ‘compelling’ threshold. Meanwhile, it should also be borne in mind that although anti-trafficking legislation in most Caribbean countries afford the regularisation of immigration status to victims of trafficking, very few make provision for such status to inure to the benefit of accompanying children,116 and even fewer make provision for it to benefit members of the victim’s family, including the victim’s spouse and, in the case of child victims, the parents or guardian and the victim’s siblings.117 The extension of the categories of persons who benefit from the regularisation of immigration status is a progressive development as it recognises that familial support is essential to victims being able to fully recover from the exploitation which they may have had to endure. In practice, it appears that while most Caribbean countries have applied the provisions on the regularisation of victims’ immigration status in a flexible and largely human rights compliant fashion,118 there have been instances when the opposite has also been true. More specifically, in some countries, while victims may, in principle, be granted temporary residency status, they may never receive hard copy confirmation that they have been granted visas, residence permits or other authorisation. In other countries, although victims may be granted residence permits, they may not be granted work permits, in consequence of which they remain heavily reliant on the state for support during the period for which the residence permit is granted. Additionally, in some cases, it has been reported that while some victims have found it easy to obtain temporary residence permits, obtaining a renewal of said permits has proven to be an incredibly arduous and frustrating process, largely due to bureaucratic processes and outright lack of coordination between relevant state agencies.119 Yet still, in some countries, interlocutors have pointed to the existence of burdensome administrative requirements, such as the payment of fees,120 which unnecessarily restrict the ability of trafficked victims to 116 s 19 Barbados TIP Act; s 32 Belize TIP Act; s 38 Trinidad and Tobago TIP Act. 117 s 19(3) Guyana TIP Act; s 25(4) St Lucia TIP Act; s 26(4) St Vincent and the Grenadines TIP Act. 118 ‘Comments by the government to the report of the Special Rapporteur on trafficking in persons, especially women and children’ (n 37); ‘Trafficking in Persons Report – Trinidad and Tobago’ (Office to Monitor and Combat Trafficking in Persons, US Department of State, 2018). 119 ‘Report of the Special Rapporteur on trafficking in persons, especially women and children – The Bahamas’ (n 36). 120 ‘Report of the Special Rapporteur on trafficking in persons, especially women and children – Mission to Belize’ (n 39).

338  Individual Considerations obtain residence permits, since most victims are not in a position to afford the fees charged, however small. Regrettably also, interlocutors in some countries report that potential victims of trafficking, especially those who are viewed through the lens of prostitution or smuggling and not human trafficking, are summarily deported even before their immigration status is regularised.121 A final concern raised by interlocutors is that although national Immigration Acts exist in many countries, there is no trafficking-specific or comprehensive guidance on the regularisation of trafficked victims’ immigration status. This has meant that issues regarding when to grant such regularisation, the circumstances in which such status should be extended and the conditions under which said status could be revoked are left to the discretion of state agencies, without the necessary checks and balances. Interlocutors rightly viewed this as cause for concern, especially in light of the experience in some European countries, as described in chapters four and five, where the immigration status of trafficked victims is increasingly being given less priority as states have become more concerned with the securitisation of their borders.

IX. Repatriation The safe return of victims of trafficking to their countries of origin is a foundational principle of international law, which is reflected in the principle of non-­refoulement, discussed in chapter three. The importance of states putting in place an effective system of repatriation is perhaps axiomatic. For if victims of trafficking are not, for example, granted the appropriate travel documents to return home or prevented from returning home by a failure of the state to meet the costs associated with their travel, it is clear that they not only risk becoming destitute in the country of exploitation, but potentially also subject to intimidation and harassment by traffickers and their associates and, as a worst case scenario, becoming re-trafficked. Against this backdrop, anti-trafficking legislation in a number of Commonwealth Caribbean countries establish a system by which victims of trafficking are to be repatriated to their countries of origin, whether upon their request or upon the completion of legal proceedings.122 This system is undergirded by a number of important principles, including the principle that summary deportation of trafficked victims is prohibited; the safety of victims during the repatriation process

121 Durbin and St George (n 70). 122 ss 56 and 57 Antigua and Barbuda TIP Act; s 20 Barbados TIP Act; s 34 Belize TIP Act; s 12 Bermuda Transnational Organised Crime Act; ss 9 and 11 Cayman Islands TIP Act; ss 29–31 Grenada TIP Act; s 22 Guyana TIP Act; ss 10(1)(c) and 12 Jamaica TIP Act; s 19(3) St Kitts and Nevis TIP Act; ss 26(1)(c) St Lucia TIP Act; s 29 St Vincent and the Grenadines TIP Act; s 39 Trinidad and Tobago TIP Act; ss 40(d) and 45 Turks and Caicos Islands TIP Ordinance.

Repatriation  339 is of paramount importance; and that careful account must be accorded to the availability and suitability of care arrangements in the country to which the person is to be returned, and the possibility that the person might be harmed, killed or re-trafficked, if returned to his or her country of origin. Although the Bermuda Transnational Organised Crime Act is the only TIP legislation in the Commonwealth Caribbean that explicitly recognises the non-refoulement principle,123 it is arguable that the anti-trafficking legislation in other jurisdictions implicitly recognise this principle, in that they require that competent national authorities take account of the safety of trafficked victims when they are being returned to their countries of origin. Meanwhile, the respective TIP Acts also provide a framework through which victims of trafficking from Caribbean jurisdictions who are trafficked abroad may benefit from appropriate assistance in being repatriated to their jurisdictions of origin.124 This invariably involves the timely provision of travel and identity documents and the costs of repatriation and other relevant consular services. Interlocutors suggested that, in practice, with the assistance of the International Organization for Migration (IOM), local and foreign embassies125 and NGOs,126 the system of repatriation of trafficked victims in most Commonwealth Caribbean countries is working reasonably well.127 More pointedly, interlocutors have repeatedly commended the IOM for taking a proactive approach in respect of the repatriation of trafficked victims, noting that in a number of cases, when regional governments seemed unwilling to make the financial input required, it was the IOM which took appropriate steps to provide much needed assistance to victims.128 Despite the commendable progress made to date, however, interlocutors cited the recurrent challenge that regional governments face in finding the necessary expenditure to support the repatriation of trafficked victims, particularly in cases where foreign embassies have been unwilling to provide tangible financial assistance. Two cases which illustrate the serious burden that is often placed on small-island developing states such as those in the Caribbean with respect to the repatriation of trafficked victims include Jamaica’s repatriation of some 21 Honduran boys who had been trafficked in Jamaica’s coastal waters to ­Honduras,

123 s 59 Antigua and Barbuda TIP Act; s 32 Grenada TIP Act; ss 26(1)(d) and 28 St Lucia TIP Act; s 27 St Vincent and the Grenadines TIP Act; ss 40)(a)–(b) and 42(3) Trinidad and Tobago TIP Act. 124 s 12(3) Bermuda Transnational Organised Crime Act. 125 ‘Comments by the government to the report of the Special Rapporteur on trafficking in persons, especially women and children’ (n 37). 126 Bailey (n 83). 127 ‘Antigua and Barbuda’s Annual Report on Trafficking in Persons 2017’ (Trafficking in Persons (Prevention) Committee, December 2017); ‘Act has tough punishment for human trafficking’ The Royal Gazette: Bermuda News (17 September 2013); ‘Comments by the government to the report of the Special Rapporteur on trafficking in persons, especially women and children’ (n 37). 128 ‘Report of the Special Rapporteur on trafficking in persons, especially women and children – The Bahamas’ (n 36).

340  Individual Considerations and the repatriation of over 60 Nepalese nationals from Belize to Nepal after they had been reportedly exploited in that country by a Chinese firm.129 Another challenge which has been pointed out by some interlocutors is the fact that, in some countries, there are simply no detailed protocols in place that outline in a methodical fashion the procedures that ought to be followed when a victim of trafficking is to be repatriated. Yet still, even in those countries where these protocols do exist, interlocutors have pointed to instances in which potential or actual victims of trafficking have been summarily deported,130 without due consideration being given to their safety upon their return to their countries of origin. It is submitted that this is cause for concern and, indeed, an area of Commonwealth Caribbean anti-trafficking practice which requires appropriate remedial action.

X. Reintegration Persons who are able to liberate themselves from situations of exploitation or who are rescued by law enforcement officials do not simply require assistance that meets their immediate needs. Rather, these individuals require long-term assistance that caters to their need for reintegration, whether in the jurisdiction in which they were exploited or in their countries of origin. Against this backdrop, anti-trafficking legislation in a number of Commonwealth Caribbean countries provide a system of reintegration that aims to meet trafficked victims’ need for appropriate employment, education and training.131 In some countries also, provision is made for social welfare benefits to be afforded to victims of trafficking.132 The importance of such welfare benefits, in addition to enrolment in appropriate employment, education and training environments, cannot be overstated, for often the provision of these measures is the difference between victims becoming destitute and possibly re-trafficked on the one hand, and them regaining a sense of hope and control over their lives, on the other. According to interlocutors, in practice, reintegration programmes operationalised to date in a number of Caribbean countries have produced real success stories. For example, in Guyana, interlocutors noted that several persons who were formerly victims of trafficking were enrolled in different programmes at an institute for higher education in that country, while several others have successfully 129 ‘Report of the Special Rapporteur on trafficking in persons, especially women and children – Mission to Belize’ (n 39); ‘Comments by the government to the report of the Special Rapporteur on trafficking in persons, especially women and children’ (n 37). 130 Committee on the Rights of the Child, ‘Concluding observations on the combined second and third periodic reports of Saint Vincent and the Grenadines’ (CRC/C/VCT/CO/2-3, 13 March 2017). 131 s 20(1)(e) The Bahamas TIP Act; s 18(1)(a) Barbados TIP Act; ss 18(1)(a) and (2), 24 and 25(e) Guyana TIP Act; s 24(1)(e), ss 30 and 31(3)(e) St Lucia TIP Act; ss 35(1)(a) and 31 St Vincent and the Grenadines TIP Act; ss 6(1), 37(1)(a) and 43 Trinidad and Tobago TIP Act; s 41(1)(d) Turks and Caicos Islands TIP Ordinance. 132 s 18(3) Guyana TIP Act; s 25(1)–(2) St Vincent and the Grenadines TIP Act.

Reintegration  341 completed vocational courses in, among other things, cosmetology and catering. In Guyana and elsewhere in the region, younger victims of trafficking have also been successfully reintegrated into schools on the same terms as other students, while adult victims of trafficking have been granted training and assistance in finding jobs by state-run recruitment agencies. Additionally, interlocutors have reported that victims of trafficking have, in some instances, received soft loans from state agencies to assist in getting their lives back on track.133 Yet, still, other victims of trafficking have been reintroduced into recreational and faith-based settings,134 which has reportedly served to significantly reduce the risk of them becoming secondarily victimised or re-trafficked. In general, apart from equipping victims with the necessary skills to lead a life as close to ‘normal’ as possible, these reintegration programmes have reportedly instilled a greater sense of self-worth in many victims, which is as progressive as it is commendable. Notwithstanding the considerable progress which has been made to date, however, a number of challenges reportedly arise in practice with regard to successfully reintegrating victims of trafficking.135 The first relates to the fact that, in some countries, such as Guyana, it has been reported that some victims of trafficking have been re-trafficked or have become homeless after they returned to their communities of origin,136 because follow-up and, indeed, requisite assistance have not always been provided in a timely fashion by relevant state-run agencies. Added to this is the fact that, given the mobility of the Amerindian people in Guyana, for example, it often proves difficult in practice to locate and assist trafficked victims belonging to this ethnic group who return to their communities of origin following the trafficking experience. In this regard, interlocutors in Guyana were adamant that a more robust system of follow-up needs to be operationalised so as to periodically evaluate the effectiveness of reintegration efforts, thereby ensuring that, to the greatest extent possible, victims do not become subject to re-trafficking after they have returned to their communities of origin. Meanwhile, in other countries interlocutors pointed to the existence of a number of institutional and systemic challenges which adversely affect the delivery of reintegration programmes. The first of these challenges relates to the high costs generally associated with providing training, education and job opportunities to victims of trafficking as part of a comprehensive reintegration package, particularly in respect of those trafficked victims who, because of their precarious situation, might require the provision of these services over an extended period of time. Moreover, inter-country dialogue, which is necessary to ensure 133 ‘Support to Victims of Families Affected by Human Trafficking in Guyana’ (UNDP, 2012). 134 Danica Coto,‘US Honors Simona Broomes for her Work Fighting Human Trafficking in Guyana’ (Huffington Post, 20 June 2013). 135 John Richards, ‘Human Trafficking conditions in Guyana are “horrific”, says InterPol Director’ Guyana Guardian (4 May 2018); Human Rights Council, ‘Report of the Special Rapporteur on trafficking in persons, especially women and children, Joy Ngozi Ezeilo’ (A/HRC/26/37/Add.5, 5 June 2014); ‘Consideration of reports submitted by States parties under article 40 of the Covenant – Belize’ (n 57). 136 ‘US condemns Guyana again on human trafficking’ Kaieteur News (21 June 2014).

342  Individual Considerations that trafficked victims who return home are properly reintegrated into their home countries, and therefore not subject to further victimisation, is at times not forthcoming among some Caribbean countries, presumably because of different national priorities. There is also, in some countries, no standardised or comprehensive procedure setting out the step-by-step processes which must be followed in respect of reintegrating trafficked child victims who are desirous of returning to the formal education system. Instead, there are reportedly ad hoc procedures in place, which do not always work well in practice. Interlocutors expressed the need for these procedures to be formally translated into comprehensive protocols in order to ensure that reintegration efforts are given legal, rather than mere rhetorical, force. Finally, some countries simply do not have a robust system in place designed to provide an appropriate level of protection, including security, to child victims of trafficking who return to educational and vocational institutions after having been trafficked. The provision of adequate security to these vulnerable individuals, as well as to adult victims in general who are held in shelters for extended periods of time, according to interlocutors is not merely desirable, but necessary.

Conclusion This chapter was the final of three chapters specifically designed to interrogate the law and practice on human trafficking in the Commonwealth Caribbean from an Analytical Eclectic perspective. Although the chapter explored a number of important developments in the protection of trafficked victims in the region, including the placement of the non-punishment provision on a statutory footing, the incorporation of special measures into court procedures and the enactment of statutory stipulations regarding the provision of support and assistance to victims of trafficking, it was nonetheless made clear that, in some respects, there continues to exist a ‘disconnect’ between anti-trafficking law and practice in the Commonwealth Caribbean. This ‘disconnect’ has been widely acknowledged by stakeholders in the region who have sought to make best efforts to address the myriad needs of trafficked victims in accordance with international standards and best practices, though, as repeatedly pointed out in the chapter, there is still a long way to go before it can be said that there is true confluence between anti-trafficking law and practice.

9 Conclusion: The Way Forward Introduction Human trafficking involves the commission of severe forms of exploitation against society’s most vulnerable. It thrives in conditions of poverty, prejudice, inequality and discrimination, and has a deleterious impact on its victims. Its perpetrators come from all walks of life and are actively involved in myriad forms of exploitation which generate billions in profits on an annual basis. While there has been a notable expansion in anti-trafficking responses at the international, regional and domestic levels since the early 2000s, the effectiveness of these measures remains a hotly contested issue,1 particularly when viewed in light of the relative dearth of sustained data and research into the relationship between anti-trafficking law and practice. It is against this backdrop that the foregoing eight chapters were conceptualised. Given space constraints, this chapter will not comprehensively repeat all the findings or arguments raised in the preceding chapters, nor, indeed, attempt to provide a model for reform. Rather, it will adopt a principles-based approach, by exploring a set of key principles that should inform the reform of anti-trafficking law and practice in the Commonwealth Caribbean and beyond.

I.  General Findings This monograph revealed that all across the globe, including in the United Kingdom and in the Commonwealth Caribbean, ‘hegemonic assumptions’ are countenanced by state authorities when operationalising the criminal justice and human rights dimensions of anti-trafficking law. While these assumptions ­seemingly do not, in large part, exist in anti-trafficking law, this monograph ­illustrated several instances in which they are nonetheless countenanced in ­practice. In this context, ­reference was made to the numerous instances in which the operation of ­‘hegemonic assumptions’ has prevented ‘less blameworthy’ victims from obtaining compensation; or has led to a mischaracterising of human trafficking as a mere

1 A Gallagher and R Surtees ‘Measuring the Success of Counter-Trafficking Interventions in the Criminal Justice Sector: Who decides – and how?’ (2012) 1 Anti-Trafficking Review 10, 12.

344  Conclusion: The Way Forward border control or prostitution issue; or the targeting for penalisation of victims who have exercised some degree of agency or are deemed complicit in their exploitation. The false dichotomy between ‘real’ and therefore victims ‘worthy’ of protection and those who are deemed to be ‘unworthy’ of protection is both frightening and problematic from an Analytical Eclectic perspective. This is no less evident in the assumption that if no physical injury is immediately discernible, especially in cases involving male victims who are subject to labour exploitation, human trafficking is not in issue, as well as in the assumption that ‘historic’ victims of trafficking should not benefit from support and assistance, and in particular, medical and psychological assistance, because the passage of time somehow delegitimises an otherwise valid claim to victimhood. Although these assumptions are manifested with greater prominence in Europe and, in particular in England and Wales, it would be incorrect to assume that they are geographically specific. For, as demonstrated in chapters six to eight, they also arise in a number of Commonwealth Caribbean countries. Indeed, the analysis of the law and practice on human trafficking in the Commonwealth Caribbean in chapters six to eight revealed that in raiding ‘whore houses’, as they are described in the Caribbean, first responders sometimes countenance the assumption that only prostitutes who are willingly meeting the demand for sexual services would attend these places of ill repute, and not genuine victims of trafficking. The assumption that only foreignborn, young females who are forced into prostitution are trafficked victims also remains another of the main hegemonic assumptions that appears to arise in the Commonwealth Caribbean. Notwithstanding the existence of these assumptions, however, the monograph has argued that through increased awareness and capacity building, competent national authorities in the Commonwealth Caribbean and beyond could eliminate at least some of these assumptions, though this necessarily requires considerable financial investment and an appreciable change of attitude. Second, the preceding chapters explained that, from an Analytical Eclectic perspective, the obligations imposed by the criminal justice and human rights approaches which inform the normative, institutional and individual aspects of international anti-trafficking law, are not necessarily in conflict with each other, but rather reinforce each other. For example, the criminalisation of traffickingrelated offences and the punishment of traffickers and their associates only serve to reinforce the legitimacy of human rights standards by liberating victims from the terror of exploitation and protecting them from secondary victimisation.2 Similarly, the human rights approach, which is characterised by a strong focus

2 N Chazal, ‘The Rationale of International Criminal Justice: Idealpolitic, Realpolitic and the International Criminal Court’ in W de Lint, M Marmo and N Chazal (eds), Criminal Justice in International Society (Routledge, 2014) 22. (Relying on Bassiouni, Chazal contends that ‘the coupling of human rights norms with the framework of criminal justice invokes punishment as a legitimate mechanism that reinforces the legitimacy of human rights standards’. In other words, ‘criminal justice provides a preventative, enforcement mechanism for human rights standards’.)

General Findings  345 on addressing the causes and consequences of human trafficking, serves only to reinforce the criminal justice’s primary focus on prosecuting traffickers.3 Third, the preceding chapters advanced the argument that while the normative aspects of anti-trafficking law have been enhanced in recent years by the enactment of wide-ranging measures that adopt a hard-line approach towards the punishment of traffickers, existing state practice strongly suggests that implementation deficits continue to exist. These relate to, inter alia, the disparate manner in which trafficking-related offences are defined in some legislation, the wide variation in penalties across jurisdictions, the generally weak enforcement of forfeiture and confiscation provisions, the systemic challenges in operationalising a proactive investigatory and prosecutorial approach to trafficking, and various impediments in the provision of compensation to victims of trafficking. Fourth, the existing institutional landscape relative to the regulation of human trafficking comprises myriad actors and agencies, which have been instrumental in implementing anti-trafficking obligations in the fields of prevention, prosecution and protection. Notwithstanding the largely positive contributions of these actors and agencies, however, some states continue to engage in what Denis Galligan describes as ‘creative compliance’;4 that is, the adoption of a minimalist approach to the operationalisation of their anti-trafficking obligations. Indeed, the preceding chapters pointed to several clear examples whereby state actors, for political, ideological, social or economic reasons, have adopted a minimalist approach towards prioritising human trafficking on the national agenda, or in affording redress to victims or in implementing sustainable programmes that assist in victims’ recovery and reintegration. On the question of national priority, the continued unilateral bullying, particularly of small-island states, by the United Stated through its Annual Trafficking in Persons Report raises fundamental questions of politics, policy, law and ethics. As the preceding chapters have made clear, not only is this approach a manifestly unacceptable display of unilateral exceptionalism, but it is counterproductive in practice, as more time is spent on addressing reporting concerns than on addressing the real challenges which trafficked victims face on a daily basis. This necessarily raises the question as to whether the pragmatic approach adopted by the Group of Experts on Action against Trafficking in Human Beings (GRETA) should replace the approach currently adopted by the United States. Fifth, one of the greatest challenges in so far as the operationalisation of antitrafficking law is concerned arises at the individual level, whereby an apparent lack

3 T Obokata, Trafficking of Human Beings from a Human Rights Perspective: Towards a More Holistic Approach (Martinus Nijhoff Publishers, 2006) 169 (arguing that the human rights approach and the criminal justice approach are mutually reinforcing and not necessarily conflicting with each other. In other words, while the criminal justice approach focuses primarily on prosecution, and largely neglects the causes and consequences of trafficking, the human rights approach can serve as ­reinforcement given its near ubiquitous focus on the latter consideration). 4 D Galligan, Law in Modern Society (Oxford University Press, 2007) 343.

346  Conclusion: The Way Forward of commitment to the protection of trafficked victims remains a central concern in many countries. A major part of the challenge, it seems, lies in the fact that providing support and assistance to victims of trafficking is a resource-intensive exercise that necessarily raises political, social, ethical and wider economic questions, particularly when viewed in light of competing regional/national priorities. As the preceding chapters have repeatedly made clear, where a minimalist approach is adopted towards the protection and assistance of trafficked victims, issues of law and ethics coalesce. Indeed, the punishment of trafficked victims for offences that they have been compelled to commit, or the failure to provide adequate witness protection or the failure to provide for the basic needs of victims, including accommodation, medical and psychological assistance and related care and support, are not only inconsistent with international law, but demonstrate in no uncertain terms a state’s moral commitment to alleviating the plight faced by its most vulnerable. More generally, it can be argued that the respective approaches to the regulation of human trafficking countenanced by England and Wales and the Commonwealth Caribbean, though dissimilar in some ways, largely converge. Indeed, both jurisdictions are committed to the eradication of human trafficking and have accordingly taken active steps to promulgate a range of hard- and soft-law measures to prevent trafficking, prosecute traffickers and protect victims. These rules are, in large part, enforced by a number of actors and institutions who, despite well-acknowledged challenges, have streamlined their approaches to promote a better understanding of the dynamics of human trafficking, to enable the accurate identification of victims, and to secure their timely support and assistance. The fact that monitoring mechanisms are in place to periodically and methodically evaluate the progress made in the implementation of European anti-trafficking law is also a major strength of the European approach to human trafficking from which the Commonwealth Caribbean can learn. Commonwealth Caribbean countries can also learn from the sophisticated and progressive approaches to the investigation of human trafficking countenanced in Europe, including the use of Joint Investigation Teams (JITs). In short, the findings from this monograph give credence to the assumptions advanced by Analytic Eclectics. Indeed, the application of Analytic Eclecticism reveals that, first, anti-trafficking law cannot be assessed in isolation, as this will only paint a partial picture of the effectiveness of this law. Rather, anti-trafficking law must be viewed in light of the economic, social, political and legal contexts within which it operates. Second, when anti-trafficking law interacts with these contexts a number of results are produced in practice, both positive and negative. Examples of positive results include the criminalisation of non-traditional forms of exploitation, including forced begging and the removal of organs; the imposition of dissuasive penalties on perpetrators; the provision of compensation within the context of both civil and criminal proceedings; increased awareness about the nature and effects of human trafficking; improved coordination in the anti-­ trafficking field; and the provision of appropriate support and assistance to victims

Reforming Anti-Trafficking Law and Practice  347 of trafficking. On the other hand, however, when one assesses anti-trafficking law ‘in action’, it is apparent that a number of negative externalities are produced in practice, including national authorities’ countenancing of various hegemonic assumptions; the improper identification of an appreciable number of trafficked victims; the punishment of a number of victims for offences they were compelled to commit; the deportation of a number of victims; and largely inadequate systems for the reintegration of victims. Third, these results not only reflect the challenges associated with how anti-trafficking law is interpreted, but also social, political and economic factors. More specifically, social factors, such stigma, xenophobia, discrimination and inequality remain concerns which must be addressed if antitrafficking law is to achieve its intended objectives. Additionally, political factors, such as the turbulent relationship between Caribbean States and the United States, are also at play. Economic factors, such as the lack of employment opportunities, the large-scale disenfranchisement of certain groups, including victims of ­Amerindian descent, as well as the lack of financial and human resources for the purposes of meeting even the most basic of needs of some victims of trafficking also remain issues in relation to which serious attention must be paid. Fourth, states at times engage in ‘creative compliance’, particularly when faced with competing priorities; the minimalist approach countenanced by a number of countries is evidence of this. And, fifth, there are ‘gaps’ in implementation, which necessitate reform. The theme of reform is explored in greater detail in the next section.

II.  Reforming Anti-Trafficking Law and Practice This section briefly explores possible options for reform which might be pursued by competent authorities in the countries examined by this monograph so as to militate against the ‘disconnect’ identified in the preceding chapters. The first area in relation to which reform is required is in respect of the non-punishment provision. More specifically, in the context of the Commonwealth Caribbean, there is a need for clarity regarding the circumstances in which the non-punishment provision applies, as currently there appears to be some divergence in the statutory approaches taken, with some countries introducing a higher threshold of both compulsion and sufficient nexus, while other countries simply require a sufficient nexus between the trafficking experience and the commission of the offence by the victim. It would appear that because of the adverse impact which a higher threshold potentially introduces, guidance similar to the UK’s Crown Prosecution Service guidance needs to be adopted so that regional stakeholders are carefully guided as to the nature and operation of the non-punishment provision. On the other hand, England and Wales could very well learn a number of lessons from the Commonwealth Caribbean. For example, the sheer generosity and flexibility that characterises the Caribbean’s approach to the provision of

348  Conclusion: The Way Forward basic supplies, accommodation and information and documentation serve as an ­excellent example for England and Wales and other countries, whose approach to the rights of trafficked victims is often characterised by blunt securitisation ­policies which could appear to privilege border security over victims’ rights. Additionally, England and Wales and other countries by extension can learn from the high degree of primacy ascribed by Commonwealth Caribbean states to the rights of foreign victims of trafficking, including their relative ease of access to work and residence permits, and safe repatriation. On the other hand, Commonwealth Caribbean countries can learn from the robust manner in which England and Wales have placed human trafficking on its national agenda, and in particular, the strong political will that characterises the fight against human trafficking in this jurisdiction. Commonwealth Caribbean countries can also learn from the strong institutional framework that is currently in place in England and Wales and, more especially, the numerous regional agencies and personnel charged with the responsibility of investigating trafficking-related incidents, identifying and assisting victims, and monitoring key developments in the anti-trafficking field, including the Anti-Slavery Commissioner. On the latter point, while it is a positive development that Jamaica has sought to enhance transparency and accountability in the anti-trafficking field by establishing the Office of the National Rapporteur on Human Trafficking,5 in line with developments in several European countries, the other Caribbean countries are still lagging behind in this regard. That said, it can be argued that the Commonwealth Caribbean can also learn from the fact that European countries, cognisant of their inability to address human trafficking in an isolated fashion, have sought to actively cooperate with each other in a number of areas, including through the operation of JITs, the European Arrest Warrant and various European witness protection programmes. This not only begs the question as to whether the Caribbean Community (CARICOM), a regional intergovernmental organisation similar to the European Union, ought to play a greater role in facilitating cooperation between Caribbean countries, but also whether the time is ripe for the adoption of a regional anti-trafficking treaty that is similar in nature to the Council of Europe’s (CoE) Anti-Trafficking Convention, and an attendant monitoring mechanism like GRETA.

A.  Ensuring Clarity and Consistency This monograph has argued that a key challenge currently faced in the anti-­ trafficking field is a lack of clarity and consistency. This challenge arises at the normative, institutional and individual levels. Against this backdrop, a strong argument can be made that there is a need for greater clarity regarding the ­sensitive question of who is a ‘victim of trafficking’. More importantly, there is a 5 ‘Office of National Rapporteur for Trafficking in Persons to be Strengthened’ News Jamaica (3 July 2015).

Reforming Anti-Trafficking Law and Practice  349 need to ensure that where the indicators of trafficking are found to exist, victims are ­appropriately identified and treated as victims, and that the false dichotomy between victims who are ‘less worthy’ of protection and those who are ‘more worthy’ is eradicated. This will ensure that all victims are afforded the support and assistance that meets their individual needs. Additionally, there is need for clarity as to the appropriate circumstances in which victims of trafficking are granted residence or work permits, especially in those cases in which they are unwilling to cooperate in the institution of criminal proceedings. Added to this, there is a need to clearly articulate in what circumstances these permits would be extended, the benefits to which victims are entitled for the duration of the period in which they have been granted regularised immigration status, and when termination of such status is appropriate. This clarity is needed as it will serve to curb the circumstances in which victims are held in immigration removal centres or summarily deported or otherwise subject to secondary victimisation at the hands of the state.6 More generally, consistent action is needed to raise awareness about human trafficking, and in particular, about neglected forms of trafficking, such as forced begging, the cultivation of cannabis and the removal of organs.7 Consistent training of key personnel in the anti-trafficking field, including for first responders who have been shown through this monograph to countenance ‘hegemonic assumptions’, is also needed. Additionally, there is a need for state authorities to consistently engage in proactive investigations into exploitative activities, particularly those committed in diplomatic households,8 as well as those perpetrated by corporate bodies.9 Several organisations should play a major role in this regard, including GRETA, the EU Commission, the Organization for Security and Co-operation in Europe (OSCE), the International Organization for Migration (IOM) and CARICOM.

B.  Capacity Building The existing state practice on human trafficking strongly suggests that a major challenge currently faced is inadequate capacity on the part of state actors and agencies in the Caribbean, and to a lesser extent in Europe. Notwithstanding this,

6 CoP to the CoE Anti-Trafficking Convention, Recommendation CP(2014)6 on the implementation of the Council of Europe Convention on Action against Trafficking in Human Beings by Serbia (7 February 2014) [26]. 7 CoP to the CoE Anti-Trafficking Convention, Recommendation CP(2014)12 on the implementation of the Council of Europe Convention on Action against Trafficking in Human Beings by Sweden (7 July 2014) [12]. 8 See generally OSCE, ‘How to prevent human trafficking for domestic servitude in diplomatic households and protect private domestic workers’ (OSCE, 2014). 9 OSCE, ‘Ending Exploitation: Ensuring that Businesses do not Contribute to Trafficking in Human Beings: Duties of States and the Private Sector’ (2014) OSCE Occasional Paper Series 7, 95.

350  Conclusion: The Way Forward however, enhanced training of key actors in the anti-trafficking field;10 increased funding allocations;11 improved awareness, particularly among those who come into direct contact with victims;12 and a stronger political commitment to the goals of prevention, prosecution and protection can ameliorate the challenge of inadequate capacity.13 The strengthening of key institutions, such as TIP Units, Task Forces and National Referral Mechanisms, through the increased provision of staffing, financing and enhanced efforts aimed at reducing the involvement of state officials in trafficking-related offences, can also serve to build capacity, while simultaneously ensuring that transparency and accountability are achieved in practice.14 The systematic collection of data, as well as consistent research into the quickly evolving dynamics of human trafficking, can also contribute to the enhancement of institutional capacity in the Caribbean and beyond.15 In short, it is submitted that although these reform possibilities are necessarily costly, if effectively implemented they will not only buttress knowledge and understanding about the dynamics of human trafficking among key stakeholders, but will also serve to circumvent the institutional lethargy that has at times plagued action against human trafficking in the Caribbean and beyond.

C.  Affording Effective Access to Legal Processes and Redress Ensuring that victims of trafficking are afforded effective access to legal processes and redress has been a perennial challenge faced in England and Wales and the Caribbean, by extension. Indeed, the preceding chapters have made it clear that although compensation through the criminal courts remains an option in some jurisdictions, this route is not always available, accessible or, indeed, appropriate. More pointedly, existing state practice suggests that due to a lack of evidential corroboration, weak witness protection systems, inadequate structures for legal

10 CoP to the CoE Anti-Trafficking Convention, Recommendation CP(2014)18 on the implementation of the Council of Europe Convention on Action against Trafficking in Human Beings by Ukraine (5 December 2014) [7]. 11 Committee on the Elimination of Discrimination against Women, ‘Concluding observations on the combined fourth and fifth periodic reports of Bosnia and Herzegovina’, CEDAW/C/BIH/CO/4–5, adopted by the Committee at its fifty-fifth session (8–26 July 2013) [24(e)]. 12 Committee on the Rights of the Child, ‘Concluding observations on the report submitted by Hungary under article 12, paragraph 1 of the Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography’, CRC/C/OPSC/HUN/CO/1, 3 November 2014 [18]. 13 K Cullen-DuPont, Human Trafficking (Infobase Publishing, 2009) xii. 14 CoP to the CoE Anti-Trafficking Convention, Recommendation CP(2014) 7 on the implementation of the Council of Europe Convention on Action against Trafficking in Human Beings by Slovenia (7 February 2014) [1]. 15 Committee against Torture, ‘Concluding observations on the combined fifth and sixth periodic reports of Portugal’, CAT/C/PRT/CO/5–6, 23 December 2013 [19(c)].

Reforming Anti-Trafficking Law and Practice  351 aid, insufficient judicial awareness of the legal dynamics of the myriad forms of trafficking and conceptual conflation between trafficking and smuggling, among other things, criminal proceedings involving trafficked victims have proved to be a necessary, though inadequate, route for securing redress. Without being too prescriptive, a number of reform possibilities should be explored to ensure that redress in trafficking cases is both accessible and effective. First, there is a need to strengthen investigations into human trafficking through proactive evidence gathering techniques;16 institutional lethargy, partly manifested in the practice of waiting on victims to self-identify, should be a thing of the past. Second, stronger emphasis should be placed on confiscating the assets of traffickers, aided by enhanced cooperation between government agencies and financial institutions, since confiscated assets form the basis of compensation for victims of trafficking in criminal cases.17 Accountability mechanisms must also be put in place to ensure that any funds confiscated are actually used to enhance the protection of trafficked victims. Third, victims of trafficking need to be empowered to more effectively utilise civil proceedings as an avenue for redress. Legal aid, particularly in the context of the Commonwealth Caribbean, should be afforded victims of trafficking to bring actions in the law of torts for assault, battery and false imprisonment.18 Given that the potential of these causes of action has been comprehensively examined in the existing literature,19 it suffices here to note that civil actions can serve to augment criminal proceedings, thereby affording trafficked victims the opportunity to claim damages against their traffickers, should criminal proceedings not afford compensation. In so far as the Commonwealth Caribbean is concerned, it is submitted that the major UN Treaty bodies, including the Human Rights Committee, the CEDAW Committee and the CRC Committee, should increase their engagement with regional countries in an effort to not only enhance the visibility of international human rights law in the region but, more importantly, to ensure that any gaps in implementation are identified and rectified. This can be effectuated through continued requests for the submission of periodic reports from the states concerned, the issuance of comprehensive country-specific as well as thematic reports, the provision of pragmatic recommendations, and follow-up visits to ensure that proper implementation is achieved. On a related point, there is also a need for the Special Rapporteur on Human Trafficking, in particular, to visit the states concerned as part of her mandate so as to clarify the extent to which these countries are,

16 A Aronowitz, G Theuermann and E Tyurykanova, Analysing the Business Model of Trafficking in Human Beings to Better Prevent the Crime (OSCE Office of the Special Representative and Co-ordinator for Combating Trafficking in Human Beings, 2010) 83. 17 OSCE, ‘Leveraging Anti-Money Laundering Regimes to Combat Trafficking in Human Beings’ (OSCE, 2014) 29. 18 T Keren-Paz, Sex Trafficking: A Private Law Response (Routledge, 2013). 19 P Stewart, ‘Tortious Remedies for Deliberate Wrongdoing to Victims of Human Trafficking and Slavery in Australia’ (2011) 34 University of New South Wales Law Journal 898.

352  Conclusion: The Way Forward by virtue of their state practices, in breach of international human rights law.20 The Conference of the Parties to the Trafficking Protocol, which has arguably not lived up to expectations in the past,21 also has an important role to play in this context, particularly in bringing to the fore issues of compliance with regard to the central obligations outlined under the Trafficking Protocol. This task should not be left to the whims and fancies of the United States through its annual TIP reports.

D.  Improving Access to Assistance, Support and Reintegration The preceding chapters suggested that a number of obstacles continue to impede the level of support and assistance that victims of trafficking are afforded subsequent to their identification and referral. These obstacles range from a lack of awareness on the part of some stakeholders as to the specific needs of trafficked victims, to misdirected border security measures that only result in secondary victimisation. To counter at least some of these challenges, competent authorities must ensure that each victim of trafficking is at the very outset subject to an individual assessment aimed at ascertaining their specific needs, which may vary with their sex, age, background and type of exploitation endured. In addition, targeted support and assistance should be provided to particularly vulnerable groups, such as the indigenous peoples of Guyana.22 More generally, the role of the UN Voluntary Trust Fund for Victims of Trafficking23 would benefit from a higher profile and funding in order to carry out its important work, which involves the provision of humanitarian, legal and financial assistance to victims of trafficking. There is also a need for competent national authorities in the respective jurisdictions to reconceptualise the provision of material, medical, psychological and legal assistance to victims of trafficking using the threshold concepts of availability, accessibility, acceptability and adaptability.24

20 See A Gallagher, The International Law of Human Trafficking (Cambridge University Press, 2010) 243 (relying on the landmark case of Velásquez Rodríguez, Gallagher argues that a breach of the due diligence obligation in international human rights law will be found to exist where a state has failed to prevent an anticipated or actual human rights violation by a private individual or entity. State responsibility, according to Gallagher, would also arise where the state is found to be responsible for human rights violations that can be attributed to the act or mission of a public official. A state will not, however, be responsible for purely private harm). 21 ibid 469 (arguing that ‘reporting rates are low, and the information received is uneven, shallow and often ambiguous’). 22 Committee on the Elimination of Racial Discrimination, ‘Concluding observations on the combined second and third periodic reports of Montenegro’, adopted by the Committee at its eightyfourth session (3–21 February 2014), CERD/C/MNE/CO/2–3, 13 March 2014 [14(a–f)]. 23 UN Resolution A/RES/64/293, General Assembly, 12 August 2010, Art 38. 24 Committee on the Elimination of Discrimination against Women, ‘Concluding observations on the combined sixth and seventh periodic reports of Cyprus’, CEDAW/C/CYP/CO/6–7, adopted by the Committee at its fifty-fourth session (11 February–1 March 2013) [20(b)].

Reforming Anti-Trafficking Law and Practice  353

E.  Improving Coordination While considerable progress has been made in recent years to promote collaboration between key actors and agencies in the anti-trafficking field, the preceding chapters nonetheless identified a number of operational challenges at play. Among the main challenges identified, in this connection, are the unnecessary duplication of work among agencies; a lack of synergy as between the work of state officials, on the one hand, and civil society representatives, on the other; and other institutional issues relating to the allocation of competence. Against this backdrop, improved coordination is not merely desirable, but necessary. Coordination must not only be a prominent feature of municipal anti-trafficking law and practice, but also regional and international efforts to combat human trafficking.25 At the municipal level, the private sector can play a more significant role than it does at present by, for example, working closely with state officials to eradicate trafficking in the context of supply chains, publishing periodic Trafficking Statements accounting for efforts taken to eliminate human trafficking in supply chains similar to that which obtains in the UK, and by supporting awareness-raising and reintegration programmes.26 A more inclusive, coordinated approach should also be fostered at the regional level, first, as between major EU and CoE agencies, such as the EU Commission and GRETA in the European context, and, second, at the Commonwealth Caribbean level as between the OAS, IOM, the United Nations Development Programme (UNDP) and CARICOM. The goals of inter-institutional coordination should, among other things, ensure the avoidance of duplication of efforts, the appropriation of best practices and, more importantly, ensure that victims are protected from revictimisation in the context of repatriation procedures. In short, institutional synergy has the advantage of ensuring greater consistency between actors’ efforts, while also ensuring transparency and accountability.

F.  Addressing Broader Structural Conditions Throughout the preceding chapters, reference was consistently made to the fact that the phenomenon of human trafficking thrives in conditions of poverty, political and economic instability, as well as social disorganisation. In this context, evidence has been presented which suggests that exploitation, in its myriad forms, remains prevalent in respect of traditionally disenfranchised groups in both the United Kingdom and the Commonwealth Caribbean, including people of Roma descent, migrants more generally and indigenous people in Guyana, respectively. In view

25 Human Rights Council, ‘Report of the Special Rapporteur on trafficking in persons, especially women and children, Joy Ngozi Ezeilo’ (A/HRC/23/48, 18 March 2013) [58]. 26 Aronowitz, Theuermann and Tyurykanova (n 16) 81.

354  Conclusion: The Way Forward of these challenges, it is submitted, from an Analytical Eclectic perspective, that a holistic solution to the phenomenon of human trafficking requires more fundamental action to address global injustices such as discrimination, unequal access to education and employment opportunities,27 and prejudices and stereotypes.28 There is also a need to promote the beneficial aspects of investment and trade in the jurisdictions examined by this monograph.29 Furthermore, the EU, through its Action Plan that targets third countries, as well as the more wealthy European nations which have in place bilateral commitments with countries of origin for victims of trafficking, must remain true to their commitments. The same argument can be made in relation to international donors who, as discussed in the preceding chapters, play a crucial role in the operationalisation of anti-trafficking measures in a number of countries. Moreover, those countries which have drafted Poverty Reduction Strategy Papers need to reconceptualise these important documents to ensure that adequate account is taken of the need to combat human trafficking.30 The challenges inherent in these reform options are numerous, particularly when viewed in light of increasingly turbulent economic times, but they are certainly not insurmountable.

III. Summary To conclude, this monograph has interrogated the ‘disconnect’ between anti-­ trafficking law and practice from an Analytical Eclectic perspective. It has presented a compelling evidence-based argument that although there is a panoply of anti-trafficking measures aimed at combating human trafficking at the international, European and domestic levels, the operationalisation of these measures in practice has often been fraught with challenges, whether of a normative, institutional or individual nature. Although these challenges are not insurmountable, a sustained commitment, supported by tangible investment in social and economic structures, is both necessary and desirable. Given the importance of the issue of human trafficking and the inescapable impact that it has on victims, families, communities, nations, regions and the international community as a whole, it is hoped that this monograph will serve as a tremendously important resource for scholars, students and practitioners in this increasingly dynamic area of law.

27 ‘Concluding observations on the combined second and third periodic reports of Montenegro’ (n 22) [14]. 28 Committee on Economic and Social Rights, ‘Concluding observations on the combined third to fifth periodic reports of Romania’, E/C.12/ROU/CO/3–5, Adopted by the Committee at its fifty-third session (10–28 November 2014), 9 December 2014 [9(d)]. 29 F Laczko and G Danailova-Trainor, ‘Tracking in Persons and Human Development: Towards a More Integrated Policy Response’ (2009) UNDP Research Paper 2009/51, 22. 30 ibid 35.

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380  Bibliography ‘Ex-night club owner in Jamaica remanded over trafficking of Guyanese girl, others’ Stabroek News (1 October 2011). ‘Feds charge five from Jamaica as child pimps’ Queens Chronicle: Central/Mid Queens News (11 August 2016). ‘First deportation to Colombia for human trafficking crime’ Curaçao Chronicle (2 April 2013). ‘Four foreigners on human trafficking charges in St Lucia’ Jamaica Observer (3 March 2015). ‘Frank Discussions at Human Trafficking Sensitization Week’ CARIBANTIGUA (28 September 2013). ‘Ghanaian Charged with Human Trafficking’ Grenada Informer (30 April 2015). ‘Greater resources needed to fight human trafficking’ Loop News (27 April 2018). ‘Guyana achieves highest ranking in US human trafficking report’ Stabroek News (28 June 2017). ‘Guyanese among 13 held in Jamaica human trafficking ring raid’ Stabroek News (17 September 2010). ‘Guyanese victims in TT trafficking ring’ Guyana Times (10 April 2014). ‘Head of Immigration Service suspected of 9 cases of human trafficking’ Curaçao Chronicle (12 April 2018). ‘House approves amendments to Trafficking in Persons Act’ Jamaica Observer (2 February 2018). ‘Human Trafficking continues to pose a challenge in Belize’ The San Pedro Sun (24 March 2018). ‘Human Trafficking Course Participants Visit Minister Dames’ ZNS Bahamas (6 April 2018). ‘Human trafficking crackdown at two nightclubs’ Antigua Observer (10 February 2018). ‘Human trafficking in Guyana’ Kaieteur News (25 April 2013). ‘Human trafficking: T&T gets US kudos’ Trinidad Express (23 June 2014). ‘Inexperienced judges, magistrates causing backlog of cases – Justice Kennard’ Guyana Times (15 February 2014). ‘Intervene now, Ministry of Labor and Social Affairs facilitates women trafficking (part 2)’ Curaçao Chronicle (10 June 2015). ‘Jamaica rejects US report on human trafficking’ The Guardian Nigeria Newspaper (29 July 2015). ‘Jamaica gets help from CARICOM neighbours in human trafficking fight’ Jamaica Observer (18 June 2014). ‘Local officials under investigation for human trafficking’ C-News (5 December 2013). ‘Local officials under investigation for human trafficking’ C-News (12 May 2013). ‘Magistrates want more protection’ Guyana Times (1 March 2013). ‘Major Interpol raids in region … Several rescued from human-trafficking in Guyana’ Kaieteur News (1 May 2018). ‘Miami jury finds Jamaican guilty of sex trafficking’ Miami Herald (2 July 2014). ‘Ministry of National Security counteracts human trafficking incident’ Trinidad and Tobago Government News (8 July 2016). ‘New database supporting Ja’s fight against human trafficking’ Jamaica Observer (29 August 2016). ‘Office of National Rapporteur for Trafficking in Persons to be Strengthened’ News Jamaica (3 July 2015). ‘PM commits to prosecute human trafficking’ Newsday (2 December 2013). ‘PM wants urgent action against human trafficking’ Antigua Observer (8 April 2010). ‘President wants Police Force to clean up house’ News Source (25 January 2013). ‘Prosecutor’s Office demands stiff jail sentences in Papegaai-investigation’ Curaçao Chronicle (15 March 2017). ‘Prostitution: One end result of Human Trafficking’ The Vincentian (15 April 2012). ‘Rohee, Simona Broomes clash over robbery allegation’ Kaieteur News (26 February 2014). ‘Saint Lucia Police issue human trafficking alert’ St Lucia Times News (12 April 2018). ‘Scores march to bring awareness to human trafficking’ Antigua Chronicle (19 October 2015). ‘Senate address Human trafficking’ The New Today Newspaper Grenada (26 June 2014). ‘Senate passes Trafficking in Persons Act’ Jamaica Gleaner (24 February 2018). ‘Sensitization campaign on child trafficking’ Searchlight Newspaper (18 September 2012). ‘Shelter Established for Victims of Human Trafficking’ RJR News (6 January 2013). ‘Simona Broomes accused of theft by suspected human trafficker’ Guyana Times (26 August 2013).

Bibliography  381 ‘Study Finds Trafficking in Persons Have A “Deleterious” Impact on Trinidad And Tobago’ Pride News Magazine (10 January 2014). ‘T&T witness protection programme has collapsed – former AG’ Stabroek News (6 October 2013). ‘Trinidad and Tobago improves in global fight against Human Trafficking’ Loop News (28 June 2017). ‘The problem with human trafficking’ Kaieteur News (18 June 2015). ‘Trafficked Nepalese students detained in Grenada’ Jamaica Observer (22 April 2015). ‘Trafficking of children’ Guyana Times (11 November 2016). ‘Trafficking in Persons Unit Cites Severe Limitations in Prosecutions’ RJR News (5 January 2013). ‘Trinidad and Tobago upgraded in the latest US trafficking in persons report’ Caribbean News Now (23 June 2014). ‘Two police officers arrested in human trafficking case’ Curaçao Chronicle (21 November 2016). ‘US condemns Guyana again on human trafficking’ Kaieteur News (21 June 2014). ‘US TIP Report on Guyana inaccurate – Human Services Minister’ TrakkerNews (28 June 2014 ‘Witness protection programme in shambles’ Kaieteur News (29 September 2010). ‘Women’s rights groups picket Parliament’ Guyana Times (17 April 2014). ‘4th Round of Cuba–Antigua and Barbuda Migratory Talks in St John’s’ Cuba News (21 April 2018). George Alleyne, ‘Barbados bristles at human trafficking ranking’ Caribbean News Life (23 February 2018). —— ‘Barbados Branded Negligent on Human Trafficking’ Caribbean News Life (10 July 2018). Oluatoyin Alleyne, ‘Sex tourism growing in favoured destinations in Caribbean’ Stabroek News (15 October 2010). Dale Andrews, ‘Guyanese confidence in Police Force among the lowest in the Caribbean’ Kaieteur News (13 November 2012). Yvonne Baboolal, ‘CTU director on human trafficking: Most cases sex related’ Trinidad Guardian (1 December 2016). Amardeep Bassey, ‘This New Colour-Coding System in Airport Toilets can Help Victims Escape FGM And Forced Marriage’ (HuffPost, 31 August 2018). Errol Benjamin, ‘Deterrence the only way’ Trinidad Express Newspaper (4 December 2013). Owen Bowcott, ‘People trafficking trial collapses after serious disclosure failures’ The Guardian (31 January 2018). Ingrid Brown, ‘Jamaica gets help from CARICOM neighbours in human trafficking fight’ Jamaica Observer (18 June 2014). May Bulman, ‘Human trafficking cases hit record high amid “worrying” decline in conviction rates’ The Independent (11 October 2017). Kenton Chance, ‘Vincentian woman victim of human trafficking – Eustace’ Searchlight Newspaper (24 July 2012). Richard Charan, ‘People trafficking “a problem in T&T”’ Trinidad Express Newspaper (20 June 2012). Luke Douglas, ‘21 Honduran teens held on illegal fishing boat’ Jamaica Observer (31 December 2012). Kevon Felmine, ‘Businessman linked to human trafficking ring’ Trinidad Guardian (28 March 2013). Shaliza Hassanali, ‘Lucky: Upgrade Witness Protection Programme’ Trinidad Guardian (13 October 2013). David Jessop, ‘Crime has an adverse effect on Caribbean development’ Stabroek News (27 January 2013). L Johnson, ‘Court of Appeal quashes Jamaican woman’s human trafficking conviction’ The Tribune (21 January 2016). Jorg Kilian, ‘High Court in Trinidad and Tobago needs reform’ Tobago News (1 April 2011). Nivedta Kowlessar, ‘Police to be asked to respond to DPP performance report’ Guyana Chronicle (12 September 2013). Michael Lohmuller, ‘Bahamas Gets US Help to Combat Human Trafficking’ Insight Crime (29 April 2015). Richard Lord, ‘Human trafficking alive in T&T’ Trinidad Guardian (5 May 2011). —— ‘T&T on US human trafficking watch list’ Trinidad Guardian (22 June 2013).

382  Bibliography Scott MacLaren, ‘Preparing for the Storm’ The Navigator (July 2011). Svetlana Marshall, ‘Motion passed to probe human trafficking’ Guyana Times (23 May 2013). Tanesha Mundle, ‘Human trafficking arrest saved my life’ Jamaica Observer (12 July 2016). Daniel Ortiz, ‘Belizean woman victim of human trafficking’ Amandala (25 February 2011). Joshua Philipp, ‘Child Trafficking Through International Adoption Continues Despite Regulations’ The Epoch Times (28 March 2018). Rhonda Rambally, ‘T&T makes some progress in tackling human trafficking’ Trinidad Guardian (4 July 2011). Denyse Renne, ‘Local witness protection programme misunderstood’ Trinidad Express (7 February 2011). —— ‘Archie wants backlog of cases cleared’ Trinidad Express (9 December 2013). John Richards, ‘Human Trafficking conditions in Guyana are “horrific”, says INTERPOL Director’ Guyana Guardian (4 May 2018). Gordon Robinson, ‘Jamaica Gleaner News – Beat down Babylon’ Jamaica Gleaner (4 June 2013). Krystel Rolle, ‘Nottage: Human trafficking a growing problem in The Bahamas’ Nassau Guardian (3 September 2013). Naeisha Rose, ‘Jamaica man pleads guilty to sex trafficking of teen girl: DA’ TimesLedger (22 April 22). IP Singh, ‘6 Punjabis go missing from Bahamas, were to enter US illegally’ Chandigarh News Times of India (7 November 2017). Rickey Singh, ‘Time for regional war on human trafficking’ Trinidad Express (23 June 2012). Nicola Slawson, ‘Two men jailed for gang related human trafficking offences’ The Guardian (13 April 2018). Alissa Trotz, ‘Restoring confidence in the police’ Stabroek News (2 February 2003). —— ‘Public Confidence, Public Accountability and the Police’ Stabroek News (3 February 2014). —— ‘Police Force needs major transformation to remain relevant – Rohee’ Guyana Times (Georgetown, 25 April 2014). Frederika Whitehead, ‘Caribbean’s high crime rate is hindering development, report says’ The Guardian (17 February 2012). James Whittaker, ‘More victims possible in human trafficking case’ Cayman Compass (24 July 2016). Karrie Williams, ‘Teens targeted – Couples paying minors to ramp up sexual pleasure’ Jamaica Gleaner (17 November 2013). William Ysaguirre, ‘Human trafficking – a growing problem in Belize’ The Reporter (13 October 2017). Television, Radio, Blogs, Websites ‘Anguilla Police Report 3rd January 2018’ (721 News, 4 January 2018). ‘Bail denied in human trafficking case’ (Dominica News Online, 24 January 2013). ‘Belize refocuses efforts to address human trafficking’ (Channel5Belize.com, 25 August 2017). ‘British woman tells of sex trafficking horror in the UK’ (ITV News, 29 November 2014). ‘Businesswoman charged with labour exploitation’ (CNC3, 2018). ‘Cayman steps up focus on human trafficking’ (Cayman News Service, 23 March 2016). ‘Child Counter-Trafficking Conference Opens in New Providence’ (thebahamasweekly.com, 24 April 2008). ‘Child Labour in Haiti – What is the Government doing about it?’ (Haiti Now, 2017). ‘Cuba warns of human trafficking, forced prostitution dangers’ (Xinhua, 21 January 2018). ‘Cuban Busted in Human Trafficking Ring Sent Packing’ (NewsAmericas, 22 July 22). ‘Dominican Strippers in custody – after Rio Inn nightclub raid for Human Trafficking’ (Guyana News and Information Discussion Forums, 16 July 2016). ‘Dr Ralph Gonsalves On Human Trafficking In SVG’ (NBC SVG, 25 June 2014). ‘Guyana unfairly targeted in US trafficking persons reports, says president’ (WINN FM 98.9, 21 June 2013). ‘Human Trafficking Activities Detected’ ABS TV Radio Antigua & Barbuda (ABS TV Radio Antigua & Barbuda, November 2016).

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384  Bibliography Nadege Green, ‘Broward College Conference Highlights Haiti’s Attempts to Curb Child Slavery’ (WLRN, 25 March 2015). Alison Kentish, ‘Saint Lucia Sends Home Group in First Human Trafficking Case’ (teleSUR English, 27 March 2015). Nelson King, ‘Trafficking in Persons Report “inaccurate”, “unfounded”: SVG’ (Caribbean Life, 28 June 2013). Don Mitchell, ‘Commentary: Brothel keeping in Anguilla’ (Caribbean News Now, 12 January 2018). Ken Richards, ‘Dominica fights human trade’ (BBCCaribbean.com, 28 October 2005). Marissa Thomas, ‘Trafficking in the Caribbean’ (Women Speak, 24 June 2012). Innocent Tshukudu, ‘Jamaican in Human Trafficking Charges’ (TheVoiceBW, 30 December 2015). Julian Vigo, ‘Child Trafficking and Adoption in Haiti’ (Counter Punch, 17 September 2013). Whitney Webb, ‘31 Underage Haitian Girls Rescued from Alleged Human Trafficking Operation’ (True Activist, 8 February 2017). Carol Williams, ‘Antigua & Barbuda Ready to Crack Down on Human Trafficking, Sex Tourism’ (Caribbean News Digital, 2 April 2011). Miscellaneous ‘2017 Annual Report – Belize’ (The Human Trafficking Institute, 2017). ‘8 Human Trafficking Cases Brought to Courts in Past 2 Years’ (Jamaica Information Service, 24 February 2010). ‘A Human Rights Report on Trafficking in Persons, Especially Women and Children: Barbados’ (Protection Protect, 2012). ‘About’ (End Human Trafficking in the Caribbean, 2014). Abraham, S and Haynes, J, Criminal Justice Newsletter (Criminal Justice Reform Project, US Embassy/ British High Commission, February 2018). ‘Ambassador Hubert Emmanuel attended the 2016 International Workshop on Strategies for Combating Human Trafficking’ (St Lucia Embassy, 2016). Anderson, B and O’Connell Davidson, J, ‘Is Trafficking in Human Beings Demand Driven? A MultiCountry Pilot Study’ (International Organization for Migration, Geneva, December 2003). Angus, G, ‘Persons Urged to be Cautious in Responding to Job Offers’ (Jamaica Information Service, 1 December 2016). ‘Anti-money laundering and counter-terrorist financing measures Trinidad and Tobago – Mutual Evaluation Report’ (Caribbean Financial Action Task Force, June 2016). ‘Antigua and Barbuda’s Annual Report on Trafficking in Persons 2017’ (Trafficking in Persons (Prevention) Committee, December 2017). Austin-Smith, J, ‘HRC-RES-MIGRANTS’ (Cayman Islands Human Rights Commission, 1 December 2015). ‘Bahamian officials trained to identify and interview victims of human trafficking’ (The Warnath Group, 19 May. Bailey, C, ‘Crime and Violence in Barbados’ (Technical Note No IDB-TN-1059, Inter-American Development Bank, June 2016). ‘Barbados Economic and Social Report’ (Research and Planning Unit, Ministry of Finance and Economic Affairs, June 2012). Barnes, A, ‘Human Trafficking Data: Jamaica’ (Organization of American States, 2012). Bartilow, H, ‘Gender Representation and International Compliance against Human Trafficking’ (Department of Political Science, the University of Kentucky, Kentucky, 2010). Beddoe, C and Brotherton, V, ‘Class Acts? Examining Modern Slavery Legislation across the UK’ (Anti-Slavery International for the Anti-Trafficking Monitoring Group, October 2016). Belser, P, ‘Forced Labor and Human Trafficking: Estimating the Profits’ (International Labour Office, 2005). Boukli, P, ‘Imaginary Penalties: Reconsidering Anti-trafficking Discourses and Technologies’ (PhD Thesis, London School of Economics and Political Science, 2012).

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388  Bibliography Palmer, S-A, ‘Gov’t Taking the Profit Out of Human Trafficking’ (Jamaica Information Service, 29 July 2015). ‘Partnerships’ (Interpol, 2014). Pegus, C, ‘A Review of Child Labour Laws of Trinidad and Tobago – A Guide to Legislative Reform’ (ILO Regional Child Labour Project, International Labour Organisation, Sub-regional Office for the Caribbean, 2005). Persad Myers, J, ‘Counter Human Trafficking Training and Training for Social Workers – Remarks’ (Ministry of Social Development and Family Services, 24 January 2017). Petit, JM, ‘Assistance and Rehabilitation Programmes for Child Victims of Trafficking and Sexual Commercial Exploitation’ (A/HRC/7/8, 2008). Piccone, T, ‘The Unique Contribution of the UN’s Independent Experts on Human Rights’ (The Brookings Institution, 2010). ‘Police Clamp Down on Human Trafficking’ (The Jamaica Constabulary Force, 2 February 2014). ‘Provisional Draft of Parts of the Definition Article of the Preliminary Draft Convention Relating to the Status of Refugees’ (Working Group, UN Doc E/AC.32/L.6, 23 January 1950). ‘Public awareness campaign launched in Jamaica to protect vulnerable migrants’ (International Organization for Migration, 24 September 2013). ‘Puerto Rico: Efforts to Combat Human Trafficking’ (US Department of Health and Human Services, 2016). ‘Recent Activities’ (Government of Guyana Ministry of Public Security Ministerial Task Force on Trafficking in Persons, 13 December 2017). ‘Risk Factors for Human Trafficking’ (National Task Force against Trafficking in Persons, 23 December 2014). Sentencing Council, Sexual Offences Definitive Guideline: Trafficking people for sexual exploitation (Sentencing Council of England and Wales, 2014). Shelley, L, ‘Human Trafficking: Transnational Crime and Links with Terrorism’ (US House Committee on International Relations, Subcommittee on International Terrorism, Non-proliferation, and Human Rights, 25 June 2003). Simmons, B and Lloyd, P, ‘Subjective Frames and Rational Choice: Transnational Crime and the Case of Human Trafficking’ (International Studies Association annual meeting, Montreal, 2011). Singh, A, ‘Budget Speech of the Minister of Finance’ (Guyana Sessional Paper No 1 of 2014 (10th Parliament of Guyana, 1st session 2012–14, 24 March 2014). Sinkovits, T, ‘Providing Vital Skills to Prevent and Combat Human Trafficking in Trinidad and Tobago – International Organization for Migration’ (IOM, 2008). ‘Situation Analysis of Children and Women’ (United Nations Children’s Fund (UNICEF), July 2016). ‘Situation Analysis of Children in Antigua & Barbuda’ (United Nations Children’s Fund (UNICEF) and the Government of Antigua and Barbuda, August 2017). ‘St Vincent and the Grenadines Report to the 12th Session of the Regional Conference of Women in Latin America and the Caribbean’ (The Gender Affairs Division, Ministry of National Mobilization, Social Development, the Family, Gender and Youth Affairs, 15 September 2013). ‘St Vincent Signs Two Agreements with Taiwan to Combat Crime’ (Taiwan Embassy, 5 March 2017). ‘Statement at the Adoption of the Outcome of the Universal Periodic Review of Trinidad And Tobago Geneva’ (Human Rights Council’ 22 September 2016). ‘Stolen freedom: the policing response to modern slavery and human trafficking’ (Her Majesty’s Inspectorate of Constabulary and Fire & Rescue Services, October 2017). ‘Submission to the Joint Standing Committee on Foreign Affairs, Defence and Trade for the Inquiry into establishing a Modern Slavery Act in Australia by the Advisor Committee of the Modern Slavery Registry’ (Focus on Labour Exploitation (FLEX), 18 May 2017). ‘Submission to the UN Special Rapporteur on Contemporary forms of Slavery’ (Anti-Trafficking Monitoring Group and Human Trafficking Foundation, March 2017). ‘Summary Record of the 25th Meeting’ (New York 10 February 1950) (UN Doc E/AC.32/SR.25, 17 February 1950).

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390

INDEX Please see under individual countries for entries relating to that country abuse of process, stay on grounds of  192–201, 314 access to legal processes and redress  350–2 accommodation  77, 328–31 adequacy  71 child exploitation  142, 329–30 harassment and intimidation  142, 189, 330 homelessness  341 location, secrecy of  330 men and boys  148 NGOs  328–31 privacy  141–2 reform  348 resources  329–30 safety and security  142, 328–30 self-contained  328 single-sex  328–9 specialised shelters  329 accountability  103, 113, 350–1, 353 accounting software, use of  272 action element  119–20, 122, 219, 221–2 adoption, trafficking for  22–3, 220 adversarial procedure  256, 308 aggravated damages  186 aggravating factors  228, 244–5, 249–50 aiding and abetting  121, 153 Albania  78 American Convention on Human Rights (ACHR)  67, 218 Amerindians  327, 346 Analytical Eclecticism  34–41, 46, 52, 354 context  346 criminal injuries compensation  184 definition  27 economic factors  28, 40 European Convention on Human Rights  122 feminism  34, 35–6 hegemonic assumptions  40, 62–4, 66, 101–2, 147–8, 343–5

human rights  69 ICESCR  75 institutional aspects  264, 310 Integrated Theory  32 international dimensions  39, 48, 106 Neutralization Theory  31–2 non-punishment provisions  199 normative aspects  216, 218, 263 Social Disorganization Theory  30 social factors  38–9, 49 structural conditions  354 unified theory, failure to build a  41 Anguilla  5, 21, 254 Annan, Kofi  51–2 anonymity see witness anonymity orders Antigua and Barbuda  5, 17, 18 compensation orders  255 conclusive grounds decisions  280 Constitution  230, 252–3, 290–1 debt bondage  18, 222 Dominican Republic  25 exploitation, definition of  220 forfeiture/confiscation  252–3 High Court  230 identification/referral of victims  279–81 identity, disclosure of victim’s  222 immigration status, regularisation of  335 investigations  280 magistrates’ courts  229–30 non-punishment provisions  316 penalties  223 police officers  279–80 predicate offences  222 preliminary inquiries  290–1 recovery and reflection period  281 relevant officials, role of  280–1 services of victims, offence of using the  222 sexual exploitation  18 single mothers  18

392  Index special measures for vulnerable witnesses  295 tipping off offence  222 witness anonymity orders  303 anonymity see witness anonymity orders armed conflicts, children in  79 Aronowitz, Alexis  28, 30 Aruba  5, 25–6 Ashkali  79 assistance see support and assistance attempts  10, 121, 153 attribution  125 autonomy  35, 70, 134, 324 awareness, raising CEDAW  82 child exploitation  80 compensation orders  255 coordination  353 cultural and artistic programmes  270 education  117, 270–1 hegemonic assumptions  101–2, 116–17 human rights  101–2 identification/referral of victims  102, 117 media  271 methods  269–70 national/regional agenda  269–72 NGOs  269 remote communities  271–2 research  117 stakeholder collaboration  277 stereotyping  102 support and assistance  117 whistle-stops  270 young people, failure to reach  271 backlogs  85, 306 The Bahamas  5, 7–8 collaboration  279 Constitution  301, 305 debt bondage  8 deception  8 Dominican Republic  8, 25 either way offences  229 exploitation, definition of  219 immigration status, regularisation of  335 Jamaica, women and girls from  8, 14 labour exploitation  8 mandatory minimum sentences  231 non-punishment provisions  317–18 passports, seizure of  8 sexual exploitation  8

source, transit, and destination countries, as  6, 7–8 special measures for vulnerable witnesses  295 UN Special Rapporteur on Trafficking, visit from  7–8 witness anonymity orders  301, 304 women and girls  8 Bangladesh and Rohingya victims  82 Barbados  5, 6–7 Caribbean Court of Justice (CCJ)  217 child exploitation  327 Dominican Republic  25 forfeiture/confiscation  253 Guyanese girls  7 immigration status, regularisation of  335 labour exploitation  7 non-punishment provisions  315, 317–18 sentencing guidelines  250 sexual exploitation  7 source, transit, and destination countries, as  6–7 Barry, Kathleen  33 Bartilow, Horace  55 Başibuyuk, Oğuzhan  29 basic needs of victims, meeting the  321–3, 346 begging, forced  78, 109, 119, 132, 346, 349 Belgium  110, 219 Belize  5, 8–10 awareness, raising  270 Caribbean Court of Justice (CCJ)  217, 233–4 compensation orders  255 Criminal Procedure Rules (CPR)  308 domestic/internal trafficking  6 English language  5 exploitation, definition of  219 Honduran nationals, trafficking by  10 immigration status, regularisation of  335 labelling by United States  267–8 labour exploitation  9–10 mandatory minimum sentences  233–4 medical and psychological assistance  323–4 non-punishment provisions  315, 318 predicate offences  221–2 remote regions  282–3 sentencing guidelines  250 sexual exploitation  9–10 source, transit, and destination countries, as  6, 9 travel documents, seizure of  9

Index  393 UN Special Rapporteur on Trafficking, visit from  9–10 United States, trafficking to  10 victims, source countries of  9 women and girls  9–10 Bermuda  5, 231–3 compensation  254, 256, 258 constitutionality  231–3 Criminal Code  231–3 criminal injuries compensation  256, 258 exploitation, definition of  219 mandatory minimum sentences  231–3 murder  231–2 non-refoulement  339 Privy Council, Judicial Committee of  231–3 proportionality  233 restitution orders  254 Biaudet, Eva  207 Big Six  6–17 see also Bahamas; Barbados; Belize; Guyana; Jamaica; Trinidad and Tobago bitcoin industry and cryptocurrencies  253, 272 Boko Haram  2, 99 Bolivia  16 Bonaire  5 Borch, Christopher  40 borders, securitisation of  49, 172, 174, 338 Botswana  14–15 boys see men and boys Braithwaite, Adriel  267 Brazil  109–10 breach of contract, damages for  186–7 British Virgin Islands (BVI)  5, 254, 271, 306 Brookfield, Stephen  48 Brown, Lambert  292 Bulgaria  78, 109–10 burden of proof  192, 193, 202–4, 285 Canada Charter of Rights and Freedoms  234–5 constitutionality  234–6 Criminal Code  220, 234, 236 criminalisation  220 cruel and unusual punishment  234–6 Jamaica  14 legal certainty  220 mandatory minimum sentences  234–6 Ontario  220 preliminary inquiries  286, 287–8 proportionality  234–5

cannabis, forced cultivation of  195–7, 220 awareness, raising  349 identification/referral of victims  173–4 means element  153 non-prosecution provisions  134, 195–7, 200, 313, 315 capacity building  272–5, 310 accountability  350 European Union  117–19 funding  350 identification/referral of victims  118, 272, 274 institutional aspects  272–5, 310, 350 international organizations  272–5 investigations  272, 275 NGOs  273 prevention, prosecution and protection  272, 350 reform  349–50 social media  272 support and assistance  274 training  272–5, 350 transparency  350 travel arrangements  272 turnover of frontline workers  275 Caribbean Association of Judicial Officers  9 Caribbean Court of Justice (CCJ)  20, 217, 233–4 CARICOM  19–20, 321, 348–9, 353 case management  308–9 Cavalieri, Shelley  34, 36–7 Cayman Islands  5, 21, 335 non-punishment provisions  316 sexual exploitation  21 special measures for vulnerable witnesses  295 witness anonymity orders  304–5 Charter of Fundamental Rights of the EU  111 child exploitation  325–8 see also men and boys; women and girls accommodation  142, 329–30 action element  120, 222 adoption, for  22–3, 220 age assessments  174 Amerindian descent, children of  327 asylum seekers and refugees  79 awareness, raising  80 best interests principle  142, 173, 325 civil and political rights  78

394  Index competent authorities  325 Convention on the Rights of the Child 1989 (CRC)  78–80, 218 Armed Conflict Optional Protocol  79 Committee on the Rights of the Child  79–81, 101 key points of contention  80–1 Optional Protocols  78–81 Council of Europe (CofE) Anti-Trafficking Convention  122–3 Counter-Trafficking Units, relationships with  326 criminalisation  222–3 culture  11, 81, 327 customs and practices  80–1 economic, social and cultural rights  101 education  79, 142, 146 European Convention on Human Rights  121–3 European Union  142–3, 146 families, assistance to  142 human rights  67, 89, 100 ICERD  76 ICESCR  73 identification/referral of victims  80, 173–4 in camera proceedings  325–6 International Day against Sexual Exploitation and Human Trafficking of Women and Children  270 labour exploitation  67, 100 material assistance  142 means element  121, 222 missionaries  23 National Referral Mechanisms  327 non-punishment provisions  174, 192, 193, 318 non-refoulement  80 participation in court proceedings  137, 325–7 privacy  327 purpose element  120, 222 rehabilitation  80 reintegration  328 secondary victimisation  142, 325–6 security  327–8 sexual exploitation  79, 270, 328 social or case management workers, assignment of  326 special measures directions  73, 175, 326–7 Special Rapporteur  88–9 special treatment  325–8 structural conditions  88, 327

support and assistance  142, 322 surveillance  327 temporary guardianship  326 unaccompanied children  142, 173 use or threats of force  222 victim-centred approach  133 Worst Forms of Child Labour Convention  67, 100 China  6, 8, 109 Cho, Seo-Young  35, 55 cholera  22 civil and political rights  78, 81 see also International Covenant on Civil and Political Rights (ICCPR) civil proceedings see also damages access  351 clarity and consistency Analytical Eclecticism  39 European Union  111, 112–13 hegemonic assumptions  349 investigations  275, 349 reform  348–9 sentencing guidelines  247 training  275 victim, definition of  348–9 collaboration  117–18, 265, 275–9, 310 colonialism  4, 5 Columbia  8, 16, 260 companies  125, 213–15, 223 Comparative Approach  42, 44–6 compensation  178–90, 215, 254–5 see also criminal injuries compensation; damages awareness, raising  255 damages, as prejudicing ability to obtain  255–6 employment tribunals  179–82 European Convention on Human Rights  146 European Union  112–13 harassment legislation  188–9 hegemonic assumptions  147, 255 human rights  68 non-pecuniary losses  179 normative aspects  253–8, 263, 345 pecuniary losses  179 Proceeds of Crime Act 2002  253 reparation orders  189–90 Special Rapporteur on Trafficking in Persons, especially Women and Children  255 complicity  11, 25–6, 35–6, 50

Index  395 conclusive grounds decisions  161–2, 169, 172, 174, 177–8, 280, 337 confidentiality see privacy and confidentiality confiscation see confiscation orders (UK); forfeiture/confiscation of assets confiscation orders (UK)  208–11 assumptions  208–9 criminal lifestyle  208, 251–2 deterrence  208, 210 general criminal conduct  208–9 recoverable amount  209, 251–2 tracing and locating funds  209 consent  33, 35–6, 257, 281 consistency see clarity and consistency Convention on the Elimination of All Forms of Discrimination against Women (CEDAW)  67, 81–5 agency  83 awareness raising  82 civil and political rights  81 Committee on the Elimination of Discrimination against Women (CEDAW Committee)  81–5, 351 criminalisation  83, 218 developing countries  84 discrimination  82 economic, social and cultural rights  81 identification/referral of victims  85 Optional Protocol  81 poverty  82 prevention, prosecution and protection dimension  82–3 profitability, dealing with  84–5 ratification  85 re-trafficking and victimisation  85 sexual exploitation  84 social rights  85 success of CEDAW  83–4 supply and demand  84 support and assistance  83 unemployment  82 violence  82–4 Convention on the Rights of the Child 1989 (CRC)  67, 78–80 Armed Conflict Optional Protocol  79 asylum-seekers and refugees  79 awareness-raising  80 civil and political rights  78 Committee on the Rights of the Child  79–81, 101, 351 criminalisation  218 customs and practices  80–1

economic, social and cultural rights  101 education and training  79 identification/referral of victims  80 key points of contention  80–1 non-refoulement  80 Optional Protocols  78–81 rehabilitation  80 Sale of Children, Child Prostitution and Child Pornography Optional Protocol  79 sexual exploitation  79 Cooper, Bo  64–5 cooperation CARICOM  348 collaboration  117–18, 265, 275–9, 310 criminal injuries compensation  182–3, 256–7 financial intelligence agencies  253 international cooperation  51 investigations  51–2 joint investigations and shared inquiries  51 mutual legal assistance  51 states, between  50–1, 276 victims  64–5 corporate bodies/legal persons  125, 213–15, 223 corruption  31, 47, 52, 99, 262–3, 284 Council of Europe (CofE) see also Council of Europe (CofE) Anti-Trafficking Convention; European Convention on Human Rights (ECHR) anti-trafficking measures  108–10, 116 closely related criminal activities  116–17 collaboration  118 Committee of Ministers  116 Committee of the Parties (CoP)  114, 116 criminalisation  120–1, 122–3 EU  109–10, 118 European Convention on Human Rights  114 GRETA  114, 116, 120–1 institutional commitment  116 Parliamentary Assembly  116 political commitment  116 prevention, prosecution and protection  110 Council of Europe (CofE) Anti-Trafficking Convention  114, 149, 349 action element  122 child exploitation  122–3 Committee of the Parties (CoP)  114 compensation  180 criminalisation  122–3

396  Index GRETA  114, 118, 349, 353 immigration status, regularisation of  336–7 non-punishment provisions  193 privacy  138 purpose element  122 recommendations  114 recovery and reflection periods  143 Counter-Trafficking Units  16, 253, 259–60, 265, 276–7, 322–3, 326 courthouses, quality of  307–8 CPS see Crown Prosecution Service (CPS) creative compliance  39, 345, 347 credit card payments  272 crimes against humanity  59–60 criminal injuries compensation amount of compensation  257–8 Analytical Eclecticism  184 Anti-Trafficking Directive  183–4 blameworthiness  184–5 consent to injuries  257 cooperation with authorities  182–3, 256–7 Criminal Injuries Compensation Scheme (CICS) in UK  182–5 discretion  257–8 discrimination  183–4 European Convention on Human Rights  183–4 ex gratia payments  258 exclusionary rule  183–4 finality of decisions  257 hegemonic assumptions  182, 185 judicial review  257 natural justice  258 proportionality  184 psychological abuse  182 reasons for decisions  258 retaliation, fear of  182 tariff systems  258 time limits  182 unspent convictions  183–4 violence or threats of violence  182 criminal justice approach  47–66 cooperation between states  50–1 hegemonic assumptions  48, 62–6 human rights approach, tension with  47–8, 68, 104–7 individual paradigm  105, 106 institutional paradigm  105, 106 international dimensions  47–66 investigations  47–8, 50–1 normative paradigm  49, 105

one-sided enforcement  104 Palermo Trafficking Protocol  48–9, 52, 53–8 regulation  104 routes, identification of  50 toughness approach  49 trafficking corridors  104 typology of obligations  105–6 Criminal Procedure Rules (CPR)  175, 308–10 criminal proceedings  285–310 adversarial procedure  256, 308 backlogs  306 burden of proof  285 constitutionality  310 courthouses, quality of  307–8 Criminal Procedure Rules (CPR)  175, 308–10 delays  306–7 effectiveness  285, 306–7 fair trial, right to a  217, 274, 290–1, 295–301, 303–5 High Court  285 immigration status, regularisation of  336 impediments to effectiveness  306–7 in camera proceedings  297, 325–6, 331 institutional aspects  285–310 judge and jury or jury alone, trials by  292–3 judiciary, organisation of  305–6 magistrates’ courts  285 national/regional agenda  266 participation of victims  307–8, 325–7 police  285, 306–7 preliminary inquiries  285–92 prosecutors  285, 306–7 public confidence  307 special measures  293–5, 306 standard of proof  285 summary trials  229–30 support and assistance  322 trials on indictment  228–9 visual contact with traffickers, avoidance of  137, 155 witness anonymity  295–305, 310 criminalisation  49, 51, 218–23, 263 action element  219, 221–2 CEDAW  83 child exploitation  222 consent  223 corporate bodies/legal persons  223 corruption  52

Index  397 Council of Europe (CofE)  120–1, 122–3 criminal justice approach  68 European Convention on Human Rights  121–5 European Union  119–21, 125 exploitation, definition of  219–20 feminism  34–5 interpretation  220 labour exploitation  100 means element  219, 221 normative aspects  218–23, 263 Palermo Trafficking Protocol  52, 53–4, 56–7, 218 positive obligations  218 predicate offences  221–2 purpose element  219, 222 sexual exploitation  34–5 threatening, assaulting or obstructing police officers  222 travel, criminalising  151–2 travel documents  121, 124, 221 UN Transnational Organized Crime Convention 2000  51–2 criminology  29–32, 46 Integrated Theory  32 Neutralization Theory  30–2 Rational Choice Theory  30–2 Social Disorganization Theory  29–30 Croatia  78 cross-examination adversarial procedure  268 constitutional rights  290–1 invasive cross-examination  175 stress and trauma  188 witness anonymity orders  295–8 Crown Prosecution Service (CPS) (UK) Code for Crown Prosecutors  191, 313 discretion  190–1 Full Code Test  191, 313 guidance  347 Joint Investigation Teams (JITs)  155 non-punishment provisions  190–1, 313 support and assistance  205–6 cryptocurrencies  253, 272 Cuba  4, 24 culpability  184–5, 192, 198–9 culture accommodation  331 child exploitation  11, 81, 327 colonialism  5 companies  214–15 cooperate, failure to  257

denial of trafficking  205 economic, social and cultural rights  72–6, 78–9, 81, 85, 101 English-speaking Caribbean  5 French creole heritage  19 identification/referral of victims  283 sexual exploitation  32, 64, 81, 271, 327 stereotyping  64 Curçao  5, 25–6 customs and practices  80–1 cyclones  22 Dalits in Nepal  77 damages  185–8, 346 access  351 adversarial process  256 aggravated damages  186 breach of contract  186–7 causes of action  185–6 compensation orders, prejudicing ability to obtain  255–6 costs  256 cross-examination, stress and trauma of  188 detention, damages against state for unlawful  187 deterrence  186 employment contracts, breach of  186–7 evidence  188 exemplary damages  186 legal aid  188 psychological harm  187 reintegration  186 re-trafficking, protection from  187–8 standard of proof  186 wages and employee benefits  256 debit/credit card payments  272 debt bondage  8, 18, 222 delays  85, 161, 306–7 Dempsey, Michelle  33 denial of trafficking  205, 267, 277–9 deportation  89, 97, 138–9, 338–9, 340 destination countries  6–9, 12–17 detention damages  187 immigration detention  103 imprisonment  52, 223, 229–31, 237 Special Rapporteur on the Human Rights of Migrants  89 support and assistance  170 deterrence  51, 186, 208, 210, 235–7 Dettmeijer-Vermeule, Corinne  207

398  Index developing countries  78, 84, 101 discretionary leave to remain (DLR)  163–6, 172, 335 discrimination CEDAW  81–5, 218, 351 criminal injuries compensation  183–4 gender  64 human rights  67, 69 ICESCR  72, 74 men and boys  148 racial discrimination  33, 64, 76–8, 179, 181–2 stereotyping  33, 64, 102, 354 structural conditions  354 dissuasive penalties  51, 126, 346 doctrinal approach  42–3 documentation  310, 332–5, 337, 349 see also residence permits; travel documents Doezema, Jo  35 domestic law see criminalisation domestic servitude  19, 124 domestic trafficking see internal trafficking domestic violence  78, 325, 331 Dominica  5, 17, 18–19 backlogs  306 Caribbean Court of Justice (CCJ)  217 domestic servitude  19 English language  19 forfeiture/confiscation  253 French creole heritage  19 geographical and topographical challenges  261 Haiti, women and girls from  19 Hurricane Maria  18–19, 271 Martinique and Guadeloupe, women and girls from  19 murder  19 sexual exploitation  19 special measures for vulnerable witnesses  295 surveillance  282–3 witness anonymity orders  303 women and girls  19 Dominican Republic  24–5 Antigua and Barbuda, trafficking to  25 the Bahamas, trafficking to  8, 25 Barbados, trafficking to  25 Constitution  25 earthquake 2010  24–5 French language  4 geopolitical tensions  24–5

Haiti, relationship with  24–5 high risk to people from  6 Interpol  260 Jamaica  12, 25 restavèk practice  22–3, 25 sexual exploitation  17–18, 25 source countries  7, 16 Spanish language  4 Trinidad and Tobago  17, 25 women and girls  21 Dreher, Axel  35, 55 dualism  166, 218 duress  191, 198, 201, 203, 313–14 Dutch Caribbean  25–6 Aruba  5, 25–6 Curacao  25–6 language  5 Romano-Dutch law  217 sexual exploitation  25–6 Venezuela  25–6 earthquakes  22–3, 24–5 Eastern Caribbean  17–21 see also Antigua and Barbuda; Dominica; Grenada; St Kitts and Nevis; St Lucia; St Vincent and Grenadines aggravating factors  249–50 consistency  247 guilty pleas, credit for  250 mitigating factors  249–50 reasons  250 remand, credit for time spent on  250 Sentencing Advisory Committee (SAC)  247–8 sentencing guidelines  247–50 harm and seriousness  248–9 practice direction (draft)  247 ECHR see European Convention on Human Rights (ECHR) eclecticism see Analytical Eclecticism economic, social and cultural rights  72–6, 78–9, 81, 85, 101 see also International Covenant on Economic, Social and Cultural Rights (ICESCR) economic theory  27–8, 46 Analytical Eclecticism  28, 40 business model  27–8 competitors  28 confiscation of instrumentalities and profits  28 cultural attitudes  32

Index  399 proactive, intelligence-led investigations, need for  28 regulators  28 supply and demand  28 education see also training access  142, 146 awareness, raising  117 child exploitation  79, 142, 146 ICESCR  72 reintegration  340–2 effectiveness access to legal processes and redress  350–1 Analytical Eclecticism  39–40 confiscation orders  211 criminal proceedings  285, 306–7 European Union  108, 111 identification/referral of victims  285 investigations  128, 129–30, 259 penalties  51, 126 reintegration  340 Egypt  79 either way offences  229 ejusdem generis rule  315 El Salvador  9 Elrington, Wilfred  267–8 embassies and consulates  276 employment see also wages breach of contract, damages for  186–7 damages  179–82 employee benefits  256 employment tribunals  179–82 female participation in workforce  29–30 reintegration  340 right to work  72 unemployment  74, 82 work permits  310, 337, 349 working conditions, right to just and favourable  72 England and Wales see United Kingdom English-speaking states  5, 19, 260 enslavement, definition of  59–61 epistemology  27, 36–9, 40, 46 essentialising and othering  64 Ethiopia  15 EU see European Union Eurojust  116, 118, 155–6 European Arrest Warrants (EAWs)  155–7, 348 European Convention on Human Rights (ECHR)  153–4, 157 action element  122 Analytical Eclecticism  122

child exploitation  121–3 compensation  146 Council of Europe (CofE)  114 criminal injuries compensation  183–4 criminalisation  121–5 domestic servitude  124 ECtHR  121–2, 153–4 identification/referral of victims  131–2 information  146 investigations  128–31 labour exploitation  121–5 positive obligations  121–4, 151 purpose element  122 support and assistance  132, 168 teleological interpretation  114 victims  127–46 European Criminal Records Information System  156 European Union  109–13, 149 accommodation  141–2 Action Plans  354 Anti-Trafficking Coordinator  113, 116 anti-trafficking measures  108–13, 115–16 area of freedom, security and justice (AFSJ)  110–11 attribution  125 awareness, raising  117 Brexit  156, 215 capacity building  117–19 Charter of Fundamental Rights of the EU  111 child exploitation  142–3, 146 closely related criminal activities  116–17 collaboration  117–18 commercial carriers  125 compensation  112–13, 137, 138, 146, 182 conferral, principle of  111 confiscation/forfeiture  127 consistency of domestic laws  111, 112–13 Council of Europe (CofE)  109–10, 118 criminal injuries compensation  183–4 criminal penalties  125 criminalisation  119–21, 125 directives  111–13, 119–20 adoption  111–12 direct effect  112, 171 horizontal effect  112 indirect effect  112 vertical effect  112 documentation  139 effectiveness  111 EU Network of National Rapporteurs  116

400  Index EUGET  113, 115 Eurojust  116, 118, 155–6 European Arrest Warrants (EAWs)  155–7, 348 European Commission  113, 115, 349, 353 Europol  116, 118, 127 exploitation, definition of  119–20 fines and administrative penalties  125, 127 Framework Decision against Human Trafficking  120 Frontex  116, 118 Fundamental Rights Agency (FRA)  118 immigration status, regularisation of  143–5 implementation of measures  115–16 infringement actions, Commission discretion to bring  113 institutional commitment  115–16 internal trafficking, definition of  119 investigations  127–8 labour exploitation  109, 120, 146 legal persons  125 natural persons  125 non-punishment provisions  133–6 participation in court proceedings  136–7, 138 penalties/sanctions  125–7 political commitment  115–16 prevention, prosecution and protection  110 primacy of anti-trafficking law  111 privacy and confidentiality  137–8, 141–2 proportionality  111 recovery and reflection periods  138–9, 143–4 Refugee Convention  144–5 research, collaboration over  117 Residence Permit Directive  112–13 Schengen Second Generation Information Services  156 sexual exploitation  109, 120, 141 shared competences  110–11 situational overview  109–10 Standing of Victims Directive  112–13 state liability, principle of  113 systematic enforcement  127 subsidiarity  111 supply and demand  117 support and assistance  138, 140–2 training  118–19, 146 transnational trafficking  119–20 victims  132–46 Europol  116, 118, 127

Eurostat  109 evidence see also cross-examination; special measures for vulnerable witnesses; witness anonymity orders; witness protection programmes access  351 criminal justice approach  51 damages  188 non-punishment provisions  196, 199–201, 313 exemplary damages  186 exploitation, definition of  219–20 extradition  51, 97, 155–6 Ezeilo, Joy Ngozi  7–8, 9–10 fair trial, right to a  140, 217, 274, 290–1, 295–301, 303–5 feminism Abolitionists  33–5 agency  35–6 alternatives, provision of  33–4 Analytical Eclecticism  34, 35–6 autonomy  35 consent  35–6 decriminalisation  34–5 gender stereotypes  33 human trafficking, definition of  23, 34 innocent and complicit women, dichotomy between  35–6 internally trafficked victims, marginalisation of  34 international border-crossing  33–5 male power  33 men and boys trafficked for other purposes, marginalisation of  36 non-sex trafficking, marginalisation of  36 Palermo Protocol  35–6 patriarchal structural inequalities  33–4 Prohibitionists  35–6 prostitution and sex trafficking as linked  33–6 racial stereotypes  33 security framework  33 socio-economic forces  34 theories  33–7, 46 victims, definition of  33 financial intelligence agencies  253 fines  125, 127, 223, 237 first responders  283–5 forced labour see labour exploitation Forced Labour Convention (ILO)  99–100 forced marriage  120, 147

Index  401 forfeiture/confiscation of assets  52, 250–3, 263 access  351 confiscation orders  208–11 conviction, after  251–3 criminal lifestyles  208, 250–2 deterrence  208, 210 economic theory  28 effectiveness  211 enforcement  210 European Union  127 financial intelligence agencies, cooperation between  253 legitimacy, cloak of  251 money laundering  253 normative aspects  250–3, 263, 345 proportionality  209 recoverable amount  209 return of property  137 tracing and locating funds  209 victim-centred approach  254 France Code of Entry and Stay of Foreigners and Asylum Seekers  139 creole heritage  19 deportation  138–9 French Caribbean  4, 22–4, 217 information, right to receive adequate  138–9 Joint Investigation Teams (JITs)  155 Frank, Richard  104 fraud  209 freedom of movement, curtailment of  103 French Caribbean  4, 22–4, 217 see also Haiti French Guiana  4 Frontex  116, 118 Fundamental Rights Agency (FRA) (EU)  118 Gallagher, Anne  66–7, 103–4 Galli, Thomas  30 Galligan, Denis  39, 345 gender see men and boys; women and girls geographical apps installed on victims’ phones  272 geography  4–5, 261 geopolitics  4–5, 24–5 Germany  110 girls see women and girls Grenada  5, 17, 19–20 Caribbean Court of Justice (CCJ)  20 CARICOM free movement regime  19–20

child exploitation  222 Criminal Procedure Code  286–7 geographical and topographical challenges  261 identification/referral of victims  279–81 immigration status, regularisation of  335 investigations  280 magistrates’ courts  230–1 Nepal, people from  19 non-punishment provisions  316 police officers  279–81 predicate offences  221–2 public security, public health, public order and public morality, refusal of entry on grounds of  20 recovery and reflection period  281 special measures for vulnerable witnesses  295 Tropical Storm Ivan  19 GRETA (Group of Experts on Action against Trafficking in Human Beings)  78, 114, 116, 118, 120–1, 349, 353 Guadeloupe  4, 19 guardianship  326 Guatemala  9 Guyana  5, 10–11 accommodation  330 awareness, raising  270–2 Barbados, trafficking to  7 Caribbean Court of Justice (CCJ)  217 child exploitation  11, 327 Community Focal Points  270 denial of problems  278 domestic/internal trafficking  6 domestic servitude  11 education  340–1 English language  5 exploitation, definition of  219 fair trial, right to a  291 geographical and topographical challenges  261 Guyana Women Miners Organization (GWMO)  278 immigration status, regularisation of  335 indigenous people  353–4 information  334 labour exploitation  11 landmass  6 law enforcement, complicity of  11 mandatory minimum sentences  231 material assistance  322 medical and psychological assistance  323–4

402  Index NGOs  278 nomadic communities  11 non-punishment provisions  315, 318 population size  6 prevalence  10–11 reintegration  341 remote communities  271–2 Romano-Dutch law  217 sexual exploitation  11 source, transit, and destination countries, as  6, 7, 16 structural conditions  11 support and assistance  322, 352 surveillance  282–3 United States  277–8 women and girls  11, 21 Haiti  22–5 child exploitation  23 cholera  22 cyclone 2016  22 Dominica  19 Dominican Republic  22–5 earthquake 2010  22–3 France  4, 22 high risk to people from  6 Hurricane Matthew  8, 22 Jamaica  12 labour exploitation  8 missionaries  23 prevalence  22–3 restavèk practice  14, 22–3, 25 sexual exploitation  23–4 UN Peacekeepers  23–4 undocumented Haiti  8 women and girls  19 harassment or intimidation accommodation  142, 189, 330 compensation  188–9 course of conduct  188–9 law enforcement officers from harassment or intimidation, protection of  222 repatriation  338 UN Transnational Organized Crime Convention 2000  52 witness anonymity orders  295, 297–8, 301 witness protection programmes  319, 321 Haughey, Caroline  156, 162 Haynes, Dina  62–3 hegemonic assumptions accommodation  148 accountability  103

Analytical Eclecticism  40, 62–4, 66, 101–2, 147–8, 343–5 awareness, raising  101–2 capacity building  275 clarity and consistency  349 compensation  147–8, 180, 182, 185, 255 convictions as success, number of  66 criminal injuries compensation  182, 185 criminal justice approach  48, 62–6 human rights  48, 101–4, 344–5 identification/referral of victims  62–3, 283–4, 346 Integrated Theory  32 investigations  65, 262 labour exploitation  64, 147–8 men and boys  148 non-punishment provisions  190 prevention, prosecution and protection  65, 66, 101–3 public awareness  116–17 ‘real’ victims  54, 62–5, 116–17, 147–8, 158, 170, 185, 190, 343–4 secondary victimisation  344 sexual exploitation  63–4, 147, 344 support and assistance  65, 170, 347 women and girls  63–4 High Court  217, 229–30, 285, 308 Holmes, Paul  104 Honduras  8–9, 10, 322–4, 334, 339–40 housing see accommodation human rights approach  47–8, 66–101, 104–5 see also European Convention on Human Rights (ECHR); International Labour Organization (ILO) access to legal processes and redress  351–2 CEDAW  81–5 Charter of Fundamental Rights of the EU  111 child exploitation  67, 100 civil and political rights  78, 81 compensation  68 CRC  78–80, 101 criminal justice approach  47–8, 68, 104–7 discrimination  67, 69 economic, social and cultural rights  81, 85, 101 effective measures  68 empowerment  68 framework of action  68–9 Fundamental Rights Agency (FRA)  118

Index  403 hegemonic assumptions  48, 101–4, 344–5 Human Rights Committee (OHCHR)  351 Human Rights Council (UNHRC)  101 ICCPR  69–72 ICERD  76–8 ICESCR  72–6 immigration status, regularisation of  68, 337 individual paradigm  105 institutional paradigm  105 practical solutions  104 prevention, prosecution and protection  47 primacy of victims’ human rights  311–12 prohibition, obligation of  67 Refugee Convention 1951  91–6 regulation  104 reintegration  68 repatriation  68 respect, protect and fulfil, duty of states to  68 Special Procedures (UNCHR)  86–91 structural conditions  67, 69 support and assistance  47, 68–9 Torture Convention  96–9 typology of obligations  105–6 vindication  68 violence, trafficking as a continuum of  68 women and girls  67 human trafficking, definition of  23, 34 Hungary  78, 109, 155 hurricanes  8, 18–19, 22, 271 ICC see International Criminal Court (ICC), Rome Statute of ICCPR see International Covenant on Civil and Political Rights (ICCPR) identification/referral of victims  100, 279–85, 310 attachment to traffickers  283 awareness, raising  102, 117 capacity building  118, 272, 274 child exploitation  80 conclusive grounds decisions  280 consent to referrals  281 criminal justice approach  49–50 distinguishing from other offences  116–17, 262, 270–1, 275, 284, 338, 351 effectiveness  285 European Convention on Human Rights  131–2 first responders  283–5

guidance  279, 282 hegemonic assumptions  62–3, 283–4, 346 ICCPR  71 ICESCR  74 institutional aspects  279–85, 310 investigations  280 knowledge, lack of  284 men and boys  148 national referral mechanisms, comparison with  281, 285 NGOs  285 places of refuge  280 police officers  279–80, 283–4 policy  279, 282 positive obligations  279 protection of victims  281–2 public confidence  284 reasonable grounds decisions  280, 282–3 recovery and reflection period  161, 163, 281 relevant officials  279–81 remain in country, authorisation to  282 social workers  285 stakeholder collaboration  277 stigma  284 support and assistance  160–3, 167, 172, 279, 282 surveillance  282–3 suspicious activities, reporting of  284 technical expertise  282 training  285 identity see also witness anonymity orders concealment  253 disclosure  222 privacy and confidentiality  138 witness protection schemes  136, 176, 319, 321 immigration see also immigration status, regularisation of detention  103 illegal aliens  64 Immigration Removal Centre (IRC)  169 non-punishment provisions  315–16 immigration status, regularisation of  335–8 administrative burdens  337–8 competent authorities  337 conclusive grounds decisions  337 criminal proceedings  336 familial support  337 guidance specific to trafficking  338 hegemonic assumptions  65

404  Index human rights  337 languages  335 Palermo Trafficking Protocol  68 protection of victims  337 recovery and reflection period  335 residence permits  143–4, 146, 337–8 resources  336 temporary leave to remain (TLR)  335 imprisonment  52, 223, 229–31, 237 impunity  2, 58, 127–8, 223 in camera proceedings  137, 297, 325–6, 331 incitement  121 India  6, 8 indigenous people  353–4 information see also privacy and confidentiality adequate information, right to receive  138–9 compensation  146 cooperation  51 European Criminal Records Information System  156 intelligence  28, 49–50, 117, 154, 253, 259, 261–3 reform  348 repatriation  334 Schengen Second Generation Information Services  156 support and assistance  166, 169, 333–4 informers  154, 263 inhuman or degrading treatment  129–30 institutional aspects  264–310 capacity building  272–5, 310, 250 coordination  353 Council of Europe (CofE)  116 criminal justice approach  47–8, 50–1 criminal proceedings  285–310 European Union  115–16 human rights  105 identification/referral of victims  279–85, 310 investigations  261 national/regional agenda  264–72, 310 prevention, protection and prosecution  345 reintegration  341 stakeholder collaboration  265, 275–9, 310 support and assistance  204 Integrated Theory  32 intelligence  28, 49–50, 117, 154, 253, 259, 261–3 internal trafficking  6, 34, 55–7, 119, 274

International Convention on the Elimination of All Forms of Racial Discrimination (ICERD)  76–8 accommodation  77 child exploitation  76 Committee on the Elimination of Racial Discrimination (CERD)  76–8 developing countries  78 laws, obligation to implement  76 remedies  77 support and assistance  77 xenophobia and related intolerance  76 women and girls  76 International Covenant on Civil and Political Rights (ICCPR)  69–72 Human Rights Committee  69, 71–2 Concluding Observations  69, 71 monitoring  69 periodic reports  69, 71 identification/referral of victims  71 individuals, communications from  69 internal trafficking  71 interpretation  70–2 investigations  71 Optional Protocol  69 Palermo Trafficking Protocol  71 positive obligations  71 prevention, prosecution and protection  72 preventative measures  72 referral mechanisms  71 reservations  69 respect, protect and fulfil obligation  69 rights of victims  72 Slavery Convention  70 slavery, definition of  70–1 slavery, servitude and forced labour  69, 70–1 support and assistance  71 travaux préparatoires  70 International Covenant on Economic, Social and Cultural Rights (ICESCR)  72–6 challenges to the protection of economic, social and cultural rights  74–5 Committee on Economic, Social and Cultural Rights (CESCR)  72–4 communications procedure  75 complicity of law enforcement officials  74 data collection  74 discrimination  72, 74 education  72 identification/referral of victims  74

Index  405 minimum core obligations  73 non-derogation  72 Optional Protocol  75 political instability  74 positive obligations  72–3 poverty  74 progressive realisation of certain rights  73 prosecutions  74 prostitution  74 recommendations of States Parties  75 recovery and reintegration  74–5 resources  76 respect, protect and fulfil obligation  72–3 sexual exploitation  72 support and assistance  75 training  74 unemployment  74 work, right to  72 working conditions, right to just and favourable  72 International Criminal Court (ICC), Rome Statute of  48–9, 58–62 admissibility  60 Analytical Eclecticism  62 application to human trafficking  60–1 crimes against humanity  59–60 Elements of Crime  59 enslavement, definition of  59–61 ICTY, jurisprudence of  61 impunity  58 jurisdiction  59, 61 labour exploitation  61 trafficking, definition of  60 widespread or systematic attack on civilian population  59, 62 International Day against Sexual Exploitation and Human Trafficking of Women and Children  270 international dimensions  47–107 corruption  47 criminal justice approach  47–66, 104–7 hegemonic assumptions  48, 101–4, 107 human rights approach  47–8, 66–101, 104–5 NII (normative, individual and institutional) paradigm  105–6 regulation  47, 104, 106 International Labour Organization (ILO) Abolition of Forced Labour Convention  100 agency  100 Committee of Experts  100–1

developing countries  101 Forced Labour Convention  99–100 governments, employers’ associations and workers’ associations, complaints by  100 identification/referral of victims  100 implementation  100 investigations  100 Observations  101 penal sanctions  100 prosecution  100 rehabilitation and social integration  100 sexual exploitation, investigation and prosecution of  100 state reporting  101 supervision procedures  101 Worst Forms of Child Labour Convention  67, 100 International Organization for Migration (IOM)  118, 269, 273, 339, 349, 353 international organizations  117, 269, 272–7 INTERPOL  118, 260, 273 interpreters see language and interpreters intimidation see harassment or intimidation investigations  259–63 capacity building  272, 275 clarity and consistency  349 competent authorities  260 consistency  275 cooperation  51–2 costs  261 Counter-Trafficking Units  260 due diligence  69 effectiveness  128, 129–30, 259 European Convention on Human Rights  128–31 European Union  127–8 geographical and topographical challenges  261 hegemonic assumptions  65, 262 human rights  69 ICCPR  71 identification/referral of victims  280 ILO  100 impunity  127–8 informers  263 inhuman or degrading treatment  129–30 institutions  261 intelligence  28, 49–50, 117, 154, 253, 259, 261–3 joint investigations  51, 117, 279

406  Index Joint Regional Communications Centre  260 national/regional agenda  266 NGOs, threats against  262 normative aspects  259–63 observations  259 operational measures  128 police corruption  262–3 positive obligations  129–31, 259 potential trafficking  129–31 priorities  128 proactive investigations  128, 259, 349 reactive investigations  259 remote communities  261 resources  130 results, obligation of  128 rule of law  259 stakeholder collaboration  277–9 Standard Operating Procedures (SOPs)  260 surveillance  259, 261 test purchases  259 threats against investigators  262 Iraq  2 Islamic State (ISIS)  2, 99 Jamaica  5, 11–15 accommodation  329–30 bitcoin industry and cryptocurrencies  253 child exploitation  327 collaboration  279 compensation orders  255 convictions, lack of  12 discrimination  266 domestic/internal trafficking  6 education  270 harassment and intimidation  266 immigration status, regularisation of  335 information  334 informers  263 Integrated Trafficking in Persons Information System and Database  266 investigations  266 judge and jury or jury alone, trials by  292–3 labelling by United States  267 labour exploitation  12 missing children phenomenon  14 National Rapporteur on Human Trafficking  266 non-punishment provisions  316 organised criminal groups  12

passports/travel documents, seizure of  12–14 population size  6 prevalence  11–12 repatriation  339–40 reporting  266 reprisals  266 resources  329 sentencing guidelines  244–6 aggravating factors  244–5 mitigating factors  244, 245–6 sexual exploitation  12, 14–15, 18, 244–5 source, transit, and destination countries, as  6, 12–14 special measures for vulnerable witnesses  293–4 support and assistance  322–3 Trafficking in Persons (Prevention, Suppression, and Punishment) Act 2007  12 women and girls  12, 18 joint investigations  51, 117, 279 Judicial Committee of the Privy Council (JCPC)  217, 231–3, 292–3 judicial review  257 judiciary Caribbean Association of Judicial Officers  9 judge and jury or jury alone, trials by  292–3 organisation  305–6 training  273–4 jus cogens  96 Kara, Siddharth  28 Karakuş, Onder  29 Katzenstein, Peter  27, 37–8 Kempadoo, Kamala  35 labour exploitation  7–10 see also International Labour Organization (ILO) child exploitation  100 criminalisation  100 European Convention on Human Rights  121–5 European Union  109, 120, 146 gold mines  11 hegemonic assumptions  64, 147–8 ICC, Rome Statute of  61 men and boys  12, 64 sexual exploitation, as a lesser crime than  147–8

Index  407 language and interpreters  332–5 airports, interpreters at  334 English language  5, 19, 260 fair trial, right to a  140 funding  139 immigration status, regularisation of  335 quality  139 reform  348 repatriation  334 revictimisation  334 support and assistance  166, 169, 333–4 Lanier, Mark  32 Latvia  109 law enforcement see police and law enforcement legal aid  181–2, 188, 351 legal certainty  220 legal persons  125, 213–15, 223 legal processes, access to  350–2 Lithuania  109 Lutya, Thozama  32 MacKinnon, Catherine  33 magistrates’ courts  217, 229–31, 285, 288, 308 mandatory minimum sentences  231–6 constitutionality  231–6 denunciation  235–6 deterrence  235–6 Oakes test  235–6 Privy Council, Judicial Committee of  231–3 proportionality  233–6 retribution  235–6 Martin, Arthur G  286 marriage, forced  120, 147 Martinique  4, 19 material assistance  166, 169, 321–2 means element  119–22, 219, 221 media awareness, raising  205 predicate offences  221 privacy and confidentiality  332 sensationalism  272 social media  177, 272 training  274 women and girls  88 medical and psychological assistance  166, 169–70, 172, 346, 352 competent authorities  323 emergency services  148 ethics  324

human resource capacity  324–5 long-term assistance  325 NGOs  324–5 privacy and confidentiality  324 pro bono services  324 quality and impact, assessment of  325 resources  324–5 secondary victimisation  324 Special Rapporteur on the Human Rights of Migrants  89 Victim Support Units  324–5 men and boys accommodation  148 discrimination  148 European Union  109 hegemonic assumptions  64, 148 identification/referral of victims  148 labour exploitation  12, 64 marginalisation  36 power  33 sexual exploitation  10 support and assistance  148 traffickers, as  109–10 methodology  42–6 Comparative Approach  42, 44–6 data analysis and collection  42 doctrinal approach  42–3 non-punishment provisions  190–1 research design  42 Socio-legal Approach  42, 43–4 Mexico, safety of returned of children to  81 minimalist approach  39, 140, 148, 184, 316, 345–7 minimum sentences see mandatory minimum sentences mitigating factors  244, 245–6, 249–50 mode of trial  228–31 either way offences  229 High Court  229–30 magistrates’ courts  229–31 maximum periods of imprisonment  229–31 summary trials  229–30 trials on indictment  228–9 Modern Slavery Act 2015 (UK)  125, 171–5 awareness, lack of  158–9 child exploitation  173–5 confiscation orders  208–9 criminalisation  151–3, 215 identification/referral of victims  160

408  Index injunctions  214 investigations  206 legal aid  177–8 National Rapporteurs  207 non-punishment provisions  191, 204 reparation orders (ROs)  189–90 support and assistance  166, 171–2 Trafficking Prevention Orders  211 Moldova  78 money laundering  52, 253 Montenegro  78 Montserrat  5, 219, 254 Morocco  110 multidimensional approach  37, 40 multi-sectoral approach  272–3 mutual legal assistance (MLA)  50–2, 54, 155, 276 National Referral Mechanism (NRM) (UK)  14, 20, 167, 172, 327 national/regional agenda  264–72, 310 appeals  266 awareness, raising  269–72 competent authorities  264, 266, 269–70 convictions, difficulties in securing  268 criminal proceedings  266 international organizations, awareness raising by  269 National Anti-Trafficking Task Forces  265 National Plans of Action  268 political will, lack of  268–9 post-trial developments  266 priority of other crimes  269 proportionality  267 reform  348 resources  272 state officials  265–6 training  265 natural justice  258 necessity  191–2, 313–14 Nepal  10, 19, 77 Netherlands  109 see also Dutch Caribbean Neutralization Theory  30–2 Neumayer, Eric  35, 55 New Zealand  246, 295, 296–7 Nigeria Boko Haram  2, 99 European Union  109–10 profile of traffickers  110 nightclubs  12, 17–18, 223, 262 nomadic communities  11

non-governmental organisations (NGOs)  278, 328–31 accommodation  328–31 capacity building  273 identification/referral of victims  285 investigations  262 medical and psychological assistance  324–5 stakeholder collaboration  277–9 supervision procedures  101 non-punishment provisions  174, 190–204, 313–19 abuse of process, stay on grounds of  192–201, 314 burden of proof  192, 193, 202–4 age of children  193 evidential  192, 202–4, 316 legal  202–4, 313, 316 reverse  202–3 child exploitation  174, 192, 193, 318 compulsion, level of  192, 194–5, 198–202, 315, 317 convictions, quashing  192, 193, 197 culpability  192, 198–9 domestic law  342 duress  191, 198, 201, 203, 313–14 evidence  196, 199–201, 313 hegemonic assumptions  62–3, 190, 344 immigration-related offences  315–16 methodologies  190–1 necessity  191–2, 313–14 nexus between trafficking and time  192, 194–5, 197–200, 314, 317 Palermo Trafficking Protocol  54 proportionality  191–2 prostitution  74, 190, 193–6, 313 public interest  192, 200–1, 313, 317 public policy  190, 314, 315 revictimisation  190 statutory interpretation  315, 318 threshold conditions  313–14 trust and confidence  190 use or threats of force  313 victim-centred approach  133–6, 190, 319 non-refoulement  80, 92, 96–7, 338–9 normative aspects  216–63 Analytical Eclecticism  216, 218, 263 common law  216–17 compensation  253–8, 263, 345 criminal justice approach  49, 105 criminalisation  218–23, 263 domestic legal framework  216–18, 345 executive  217

Index  409 fair trial, right to a  217 forfeiture/confiscation of assets  250–3, 263, 345 High Court  217 investigations  259–63 magistrates’ courts  217 normative considerations  218–63 Palermo Trafficking Protocol, ratification or accession to  217–18 penalties  223–50, 345 Privy Council, Judicial Committee of the  217 restitution orders  253–8 rule of law  217 separation of powers  217 Northern Ireland  166 Nussbaum, Martha  35 Obokata, Tomoya  104 officials see state officials ontology  37–8, 40 organ removal  3, 109, 119–20, 152, 194, 219, 257, 346, 349 Organization for Security and Co-operation in Europe (OSCE)  118, 349 Organization of American States (OAS)  269, 273, 353 organised criminal groups  12, 56–7, 295 origin, countries of  6–9, 12–17, 109 Overseas Territories  21 Palermo Trafficking Protocol  48–9, 53–8 accession  217–18 anti-trafficking framework  53, 54 Anti-Trafficking Policy Index  55 broad scope of application  55–7 compliance, monitoring  53, 55 Conference of the Parties, monitoring by  53, 352 criminal justice approach  48–9, 52, 53–8 criminalisation  52, 53–4, 56–7, 218 efficacy  55–6, 58 enforcement  54 guidance  53 human trafficking, definition of  23 ICCPR  71 immigration status, regularisation of  68 immunity from prosecution of victims  54 internal trafficking  55–7 organized criminal groups and transnational limitation  56–7 political challenges  54

prevention, prosecution and protection  53–5, 57–8 ratification  53, 55, 217–18 reintegration  68 repatriation  68 socio-economic challenges  54 structural challenges  54 substantial effects condition  56 Torture Convention 1984  98 trafficking in persons, definition of  53–4 transnational limitation  55–7 Parsons, Craig  37 passports see travel documents patriarchal structural inequalities  33–4 penalties/sanctions  52, 223–50 administrative penalties  125, 127 aggravating circumstances  228 associates  223 criminal justice approach  49, 51 deterrence  51 dissuasive penalties  51, 126, 346 effectiveness  51, 126 European Union  125–7 ILO  100 impunity  223 mandatory minimum sentences  231–6 mode of trial  228–31 proportionality  51, 126 sentencing  223–50 table of sanctions  224–8 Philippines  8 Piotrowicz, Ryszard  135–6, 149 places of refuge  280 pluralistic scholarship see Analytical Eclecticism Poland  109 police and law enforcement complicity  11, 25–6 corruption  262–3, 284 criminal proceedings  285, 306–7 Europol  116, 118, 127 identification/referral of victims  279–80, 283–4 INTERPOL  118, 260, 273 prosecutions  306–7 rescued by law enforcement officials as not being victims, persons not  62–3 threatening, assaulting or obstructing police officers  222 training  307 visibility, lack of  284 population size  6

410  Index post-paradigmatic scholarship see Analytical Eclecticism potential trafficking  129–31 poverty CEDAW  82 ICESCR  74 Poverty Reduction Strategy Papers (PRSPs)  354 Social Disorganization Theory  29 structural conditions  67, 69 subsistence  141, 167–9, 171, 321 pragmatic approach  37–40 predicate offences  221–2 pregnant women, trafficking of  120 preliminary inquiries  285–92 abolition  289–91 English common law  285–7 fair trial, right to a  290–1 magistrates’ courts  288 paper committal proceedings, replacement with  289–92 public confidence  291 retrospectivity  290 secondary victimisation  287, 292 vulnerable witnesses, effect on  287 prevalence of trafficking  2, 6, 10–11, 15–16, 22–3, 66 prevention, protection and prosecution  285, 306–7 Analytical Eclecticism  30, 311, 342 awareness, raising  72 best interests  103 capacity building  72, 272, 350 CEDAW  82–3 Council of Europe (CofE)  110 criminal justice approach  47–8, 51 data collection and analysis  72 dignity  311 European Union  110 freedom of movement, curtailment of  103 hegemonic assumptions  65, 66, 101–3 human rights  47 ICCPR  72 ICESCR  74 identification/referral of victims  281–2 ILO  100 immigration detention  103 immigration status, regularisation of  337 institutional aspects  345 Integrated Theory  32 Palermo Trafficking Protocol  53, 54, 55, 57–8

police  306–7 political commitment  350 rehabilitation  311 reintegration  311 resources  72 review of decisions  137 sentencing  237 Social Disorganization Theory  30 stakeholder collaboration  276 statistics  66 training  72, 307 UN Transnational Organized Crime Convention 2000  52 victim-centred approach  133 primacy of victims’ human rights  311–12 privacy and confidentiality  331–2 accommodation  141–2 child exploitation  327 competent authorities  331–2 Council of Europe (CofE) Anti-Trafficking Convention  138 in camera proceedings  137, 297, 325–6, 331 media  331 medical and psychological assistance  324 secondary victimisation  332 social exclusion  332 stakeholders  332 Privy Council, Judicial Committee of the (JCPC)  217, 231–3, 292–3 pro bono assistance  181, 324 profile of traffickers  109–10 proportionality confiscation orders  209 criminal injuries compensation  184 European Union  111 investigations  129 mandatory minimum sentences  233–6 national/regional agenda  267 non-punishment provisions  191–2 penalties  51, 126 sentencing  237 prosecutions see prevention, protection and prosecution prostitution see also sexual exploitation agency  35 child exploitation  79, 88–9 consent  33, 35–6 Economic Theory  32 decriminalisation  34–5

Index  411 hegemonic assumptions  148, 262 identification/referral of victims  162 international border-crossing  33–4 linked with sexual exploitation, as being  33–6, 284 non-punishment provisions  74, 190, 193–6, 313 moral crusade  34 political instability  74 ‘real’ victims  344 Special Rapporteur on the Sale of Children, Child Prostitution and Child Pornography  88–9 structural conditions  36 trafficking, conflated with  116, 270–1, 275, 284–5, 338 protection of victims see also prevention, protection and prosecution Prüm Decisions  156 psychological harm  182, 187 see also medical and psychological assistance public confidence  190, 284, 291, 307, 320–1 public interest  180, 192, 200–1, 313, 317 public officials see state officials Puerto Rico  4, 25 punishment see non-punishment provisions; penalties/sanctions; prevention, protection and prosecution; sentencing purpose element  119–20, 122, 219, 222 racial discrimination employment tribunals  179, 181–2 hegemonic assumptions  64 International Convention on the Elimination of All Forms of Racial Discrimination (ICERD)  76–8 stereotyping  33 radicalisation  99 raids on premises  50, 63, 85, 131, 262, 275, 283, 344 Rational Choice theory  30–2 ‘real’ victims CEDAW  54 child exploitation  174 cooperative victims  64–5, 257 foreign victims  63–4 hegemonic assumptions  54, 62–5, 116–17, 147–8, 158, 170, 185, 190, 343–4 identification/referral of victims  132, 283, 349 marginalisation  102

migrants  180 passive victims  63–4 sexual exploitation  63–4, 102 violence, victims of  182 reasonable grounds decisions  160–1, 174, 177–8, 280, 282–3 reasons, giving  250, 258, 309 recovery and reflection period  88, 143, 161, 163, 172, 281, 335 redress see remedies and redress referrals see identification/referral of victims reform  347–54 Refugee Convention 1951  91–6 member of a particular social group requirement  93–6, 145 non-refoulement  92, 96 persecution, well-founded period of  91–2, 145 Protocol 1967  91 refugee, definition of  91–2 re-trafficking, risk of  145 sexual exploitation  145 universal standards  91 regional law  39 see also national/regional agenda regulation  28, 47, 104, 106 rehabilitation  80, 100, 237 reintegration  340–2 child exploitation  328 coordination  353 damages  186 education  340–2 employment  340 follow-up systems  341 homelessness  341 human rights  68 ICESCR  74–5 ILO  100 institutional and systemic challenges  341 social welfare benefits  340 soft loans  341 support and assistance  352 training  340–2 religious priorities  31 remote communities  261 reparation orders (ROs)  189–90 repatriation  338–40 information  334 Palermo Trafficking Protocol  68 protocols  340 reform  348 revictimisation  353

412  Index summary deportation, prohibition of  338–9, 340 support and assistance  166 reprisals and retaliation  92, 182, 300–1, 319–20 residence permits clarity and consistency  349 Discretionary Leave to Remain (DLR)  163, 335 European Union  112–13 immigration status, regularisation of  143–4, 146, 337–8 primacy to foreign victims  348 support and assistance  57, 83, 139, 336 resources accommodation  329–30 financial resources  3–4 gaps in implementation  347 human resource capacity  324–5 ICESCR  76 immigration status, regularisation of  336 investigations  130 medical and psychological assistance  324–5 national/regional agenda  272 support and assistance  166, 321–2, 346 technical resources  3–4 restavèk practice  14, 22–3, 25 restitution  253–8 retaliation and reprisals  92, 182, 300–1, 319–20 re-trafficking  85, 145, 187–8, 338–9 retribution  235–7 ritual purposes, trafficking for  220 Rohingya  82 Roma  78–9, 147, 353 Romania  78, 109–10, 155 Romano-Dutch law  217 Rome Statute see International Criminal Court (ICC), Rome Statute of rule of law  5, 127–8, 217, 259 safety and security accommodation  142, 328–30 borders, securitisation of  49–50, 172, 174, 338 child exploitation  327–8 criminal justice approach  49 feminism  33 repatriation  339 witness protection programmes  321 Saint Barthélemy  4

St Kitts and Nevis  5, 17, 20, 295, 302–4, 316 St Lucia  5, 17, 20 common law  217 Constitution  301 Criminal Procedure Rules (CPR)  308 French law  217 immigration status, regularisation of  335 National Referral Mechanism (NRM)  20 non-punishment provisions  315 Romano-Dutch law  217 summary trials  229 UK, trafficking to  20 witness anonymity orders  301 St Vincent and Grenadines  5, 16–17, 20–1 Anti-Trafficking Unit  20–1 child exploitation  327 convictions, difficulties in securing  268 geographical and topographical challenges  261 immigration status, regularisation of  335–6 labour exploitation  20–1 non-punishment provisions  315 passports/travel documents, seizure of  21 sexual exploitation  20–1 special measures for vulnerable witnesses  295 surveillance  282–3 witness anonymity orders  303 women and girls  21 Salvation Army  160, 167, 170 sanctions see penalties/sanctions Schauer, Edward  30 secondary victimisation adversarial procedure  308 capacity building  274–5 child exploitation  142, 325–6 clarity and consistency  349 hegemonic assumptions  344 information  334 interviews  137, 155, 274–5 medical and psychological assistance  324 non-punishment provisions  190 participation of victims  308 preliminary inquiries  287, 292 privacy and confidentiality  332 reintegration  341 repatriation  353 special measures for vulnerable witnesses  293 training  274–5 security see safety and security

Index  413 sentencing  223–50 see also mandatory minimum sentences; non-punishment provisions aggravating factors  249–50 consistency  247 context  237 deterrence  237 fines  125, 127, 223, 237 guidelines  238, 247–50 guilty pleas, credit for  250 imprisonment  52, 223, 229–31, 237 individual circumstances  237 mitigating factors  249–50 proportionality  237 reasons, giving  250 rehabilitation  237 remand, credit for time spent on  250 retribution  237 separation of powers  217 services of victims, offence of using the  121, 222 sexual exploitation  8–10, 18 agency  35 CEDAW  84 child exploitation  79, 270, 328 consent  33, 35–6 criminalisation  34–5 culture  32, 64, 81, 271, 327 European Union  109, 120, 141 hegemonic assumptions  63–4, 147, 344 ICESCR  72 International Day against Sexual Exploitation and Human Trafficking of Women and Children  270 Islamic State  2 labour exploitation  100, 147–8 men and boys  10 moral crusades  34 past sexual behaviour  312 prostitution and sex trafficking as linked  33–6, 284 ‘real’ victims  63–4, 102 Refugee Convention 1951  145 stigma  284 UN Peacekeepers  23–4 women and girls  10–21, 24–6, 147, 270 Sil, Rudra  27, 37–8 Simmons, Beth  104 Sint Eustatius  5 Sint Maarten  4, 5 situational overview  5–21 Slavery Convention  70

slavery, definition of  70–1 Slovakia  78, 109 small island developing states (SIDS)  33, 322, 336, 339, 345 Smith, Ann-Marie  9 smuggling of people non-punishment provisions  199–200 policy  21 trafficking, conflated with  116–17, 262, 270–1, 275, 284, 338, 351 Social Disorganization Theory  29–30 social factors  38–9, 49 social media  177, 272 social workers  285, 326 Socio-legal Approach  42, 43–4 source countries  6–9, 12–17, 109 South Africa  295, 296–7 Spain  110 see also Spanish Caribbean Spanish Caribbean  4, 24–5, 260 see also Cuba; Dominican Republic; Puerto Rico special measures for vulnerable witnesses  293–5, 306, 342 see also witness anonymity orders children  175, 326–7 intermediaries  293 live links  293 screens  293, 294 secondary victimisation  293 sexual exploitation  293 video-recorded evidence  293 witness protection programmes  321 Special Procedures (UN Commission on Human Rights)  86–91 see also Special Rapporteurs expert guidance  86 hard and soft law  86 Human Rights Council  86–91 thematic issues  86 Special Rapporteur on the Human Rights of Migrants  89 Special Rapporteur on the Sale of Children, Child Prostitution and Child Pornography  88–9 Special Rapporteur on Trafficking in Persons, especially Women and Children  86–7 access to legal processes and redress  351–2 compensation orders  255 Council of Europe (CofE)  118 hegemonic assumptions  104 mandates  86–7

414  Index non-punishment provisions  319 practical recommendations  86–7 supply chains  213 victims, remedies for  87 visits  7–10 Special Rapporteur on Violence against Women, its Causes and Consequences  87–8 Special Rapporteurs  86–91 see also Special Rapporteur on Trafficking in Persons, especially Women and Children budgets  90 in-depth studies  90 mandates  90–1 on-site visits  90–1 Special Rapporteur on the Human Rights of Migrants  89 Special Rapporteur on the Sale of Children, Child Prostitution and Child Pornography  88–9 Special Rapporteur on Violence against Women, its Causes and Consequences  87–8 Universal Periodic Review (UPR)  90–1 visibility and profile, lack of  90 specific intent, trafficking as a crime of  120 Srikantiah, Jayashri  63 stakeholder collaboration  265, 275–9, 310 competent authorities  277–9 denial of problems  277–9 donor organizations, refusal to attend sessions by  278–9 embassies and consulates  276 identification/referral of victims  277 international organizations  276–7 investigations  277–9 Joint Investigation Teams (JITs)  279 National Task Forces  278–9 NGOs  277–9 prevention, protection and prosecution  276 state-to-state cooperation  276 support and assistance  277 standard of proof  186, 285, 304 Standing of Victims Directive  112–13 state officials see also police and law enforcement complicity  50 corruption  99 harassment or intimidation  222 identification/referral of victims  279–81

national/regional agenda  265–6 relevant official, definition of  279–80 stereotyping  33, 64, 102, 354 stigma  284 Stockholm syndrome  176, 283, 336 Stoyanova, Vladislava  128–9 structural conditions  11, 353–4 Analytical Eclecticism  354 child exploitation  88, 327 discrimination  354 indigenous people  353–4 Palermo Trafficking Protocol  54 patriarchal structural inequalities  33–4 poverty  67, 69 prejudice and stereotypes  354 prostitution and sex trafficking as linked  36 Roma  353 Social Disorganization Theory  29 United Kingdom  353–4 women and girls  87 subsidiarity  111 subsistence  141, 167–9, 171, 321 substantial effects condition  56 summary trials  229–30 supply and demand  28, 84, 117, 213–15, 353 support and assistance see also medical and psychological assistance; support and assistance (UK) awareness, raising  117 basic needs of victims, meeting the  321–3, 346 capacity building  274 child exploitation  142–3 clothing  141, 321 essential services, access to  69 families, assistance to  142 food  141, 321 hegemonic assumptions  65, 148 human rights  47, 68–9 ICCPR  71 ICERD  77 ICESCR  75 identification/referral of victims  279, 282 information  333–4 social welfare benefits  340 stakeholder collaboration  277 Victim Support Units  324–5 support and assistance (UK)  151, 160–3, 166–72, 215 access, improving  352–3 accommodation  166, 169, 170–1 Anti-Trafficking Directive  167–71

Index  415 assessments  352 borders, securitisation of  172 CEDAW  83 charities  167 child exploitation  173–4 competent authorities  321, 352 conclusive grounds decisions  169, 172 Council of Europe Anti-Trafficking Convention  166, 169 counselling  97, 137, 169–73, 324–5 criminal proceedings  166–8 delay  161 detention  170 discretionary leave to remain (DLR)  172 domestic law  342 dualism  166 duration  161 ethics  346 European Convention on Human Rights  168 funding  167 guidance  166, 171–2 hegemonic assumptions  170, 347 hygiene products  321 Immigration Removal Centre (IRC)  169 information  166, 169 institutions  204 legal advice  166 material assistance  166, 169, 321–2 medical assistance and healthcare services  166, 169–70, 172, 352 Modern Slavery Act 2015  166, 171–2 Modern Slavery (Victim Support) Bill  172 National Referral Mechanism (NRM)  167, 172 psychological assistance  166, 169–70, 172, 352 reasonable grounds decisions  167, 169, 172 recovery and reflection period  172 referrals  160–3, 167, 172 reform  352–3 reintegration  352 repatriation  166 resources  166, 321–2, 346 specialist services  167 standards  170–1 subsistence  321 trafficking-specific approach  170 translation and interpretation  166, 169 UN Voluntary Trust for Victims of Trafficking  352 victim-centred approach  323

Suriname  5 surveillance  49–50, 154, 259, 261, 282–3, 327 suspicious activities, reporting of  284 Syria  2 technology accounting software, use of  272 communication technology, use of  155 expertise  282 geographical apps installed in victims’ phones  272 live links  293 resources  3–4 video-recorded evidence  293 Tellings, Agnes  41 temporary leave to remain (TLR)  335 test purchases  259 theoretical perspectives on human trafficking  27–46 Analytical Eclecticism  27, 37–41, 46 criminology  29–32, 46 economic theory  27–8, 46 epistemology  27, 46 feminist theories  33–7, 46 methodology  42–6 Theuermann, Gerda  28, 30 threats see use or threats of force and violence tipping off offences  222 Tobasz, Jennifer  34, 36 Torture Convention 1984  96–9 Committee against Torture  96–7 corrupt public officials  99 deport or extradite, obligation not to  97 detention, visits to  96 Optional Protocol  96 Palermo Trafficking Protocol  98 severe pain and suffering threshold  97–9 visits  96 tracing and locating funds  209 trafficking, definition of  53–4, 60 training adequacy  274 capacity building  272–5, 350 child exploitation  79 consistency of approach  275 European Union  118–19 ICESCR  74 identification/referral of victims  285 impartiality  119 internal trafficking  274 international organizations  274–5 judiciary  273–4

416  Index multi-sectoral approach  272–3 national/regional agenda  265 prosecutions  307 reintegration  340–2 secondary victimisation  274–5 stakeholders  118–19 standardisation  275 Train the Trainers’ programmes  272–3 transit countries  6–9, 12–17 transparency  103, 350 travel documents commercial carriers, checking by  125 criminalisation  121, 124, 221 false documents  124, 164, 169, 196, 200, 231 identity, verification of  333–4 prevention, prosecution and protection  139, 212 repatriation  338–9 seizure  8–9, 12–16, 21, 25, 124, 150, 181, 199 criminalisation  121, 124 false documents  124, 164, 169 self-identification  283 trials see criminal proceedings; fair trial, right to a Trinidad and Tobago  5, 15–17 Caribbean Court of Justice (CCJ)  217 child exploitation  16–17, 326–7 consent  257 Counter-Trafficking Unit  322 criminal injuries compensation  256–8 Criminal Procedure Rules (CPR)  308 domestic/internal trafficking  6 Dominican Republic  17, 25 exploitation, definition of  220 forfeiture/confiscation  253 immigration status, regularisation of  335 law enforcement officers from harassment or intimidation, protection of  222 mandatory minimum sentences  231 ministers, change of  269 non-punishment provisions  317–18 oil reserves  4, 15 passports/travel documents, seizure of  16 population size  6 prevalence  15–16 ritual purposes, trafficking for  220 sentencing  246–7 sexual exploitation  17 source, transit, and destination countries, as  6, 15–17

support and assistance  322 victims, origins of  16 witness protection programmes  320–1 women and girls  16–17 Tropical Storm Ivan  19 trust  190, 275 Turkey  110 Turks and Caicos Islands  5, 222, 255, 280–1, 316 turnover of frontline workers  275 Tyurykanova, Elena  28, 30 Ulph, Janet  208 UN Commission on Human Rights (OHCHR)  86–91 UN Development Programme (UNDP)  269, 273, 353 UN High Commissioner for Refugees (UNHCR)  273 UN Human Rights Committee (OHCHR)  69, 71–2 UN Human Rights Council (UNHRC)  101 UN Office on Drugs and Crime (UNODC)  118 UN Peacekeepers  23–4 UN Trafficking Guidelines  65, 66, 92 UN Transnational Organized Crime Convention 2000  48–9, 51–2 see also Palermo Trafficking Protocol Conference of the Parties (CoPs)  256 confiscation and seizure of proceeds and instrumentalities  52 corruption, criminalisation of  52 criminal justice approach  49–9, 51–2 criminalisation obligation  51–2 cross-border activities  52 enforcement  52 freezing of assets  52 imprisonment  52 money laundering  52 prosecutions  52 punitive measures  51 restitution  256 retaliation or intimidation  52 sanctions  52 women and girls  51 UN Voluntary Trust for Victims of Trafficking  352 unfair dismissal  179–82 UNICEF  11

Index  417 United Kingdom  150–215 see also Crown Prosecution Service (CPS) (UK); Modern Slavery Act 2015 (UK); support and assistance (UK) l abuse of a dominant purpose  152 accommodation  148 acts elements  152 agency  344 aiding, abetting, counselling or procuring  153 Analytical Eclecticism  147–8 anonymity  175 Anti-Trafficking Monitoring Group  157, 162–3 appeals  163 awareness raising  174, 204–5, 214 best practices  151, 206 Border Force  204 borders, securitisation of  47, 172, 174 capacity building  204 child exploitation  173–5 civil litigation, damages in  185–8, 346 coercion  152 collaboration  204–5 communication technology, use of  155 companies statements  214–15 supply chains, involvement in  213–15 compensation  147, 178–90 competent authorities  147–8, 160–5, 178 conclusive grounds decisions  161–2, 174, 177–8 confiscation orders  208–11 consent  153 Coroners and Justice Act 2009  298–9 Council of Europe (CofE) Anti-Trafficking Convention  157 county lines  150 court proceedings  155 covert human intelligence services  154 Criminal Injuries Compensation Scheme (CICS)  182–5 Criminal Justice Reform Project (US/UK)  247 Criminal Procedure Rules (CPR)  308 criminal proceedings  174–8 criminalisation  124–5, 151–3, 215 databases and data-sharing  156 delay  160–2 Department for International Development (DID)  205 disbelief, culture of  205

discretionary leave to remain (DLR)  163–6 European Arrest Warrants (EAWs)  155–7, 348 European Convention on Human Rights  151, 153–4, 157 European Union  156, 215 extradition  155–6 fair trial, right to a  297–8 financial, internet and communications data  154, 157 fire and rescue services  158 Foreign and Commonwealth Office (FCO)  205 forfeiture of assets  211 Fraud Advisory Panel  209 Gangmasters and Labour Abuse Authority  154 hegemonic assumptions  147–8, 157–8, 343–4 Her Majesty’s Inspectorate of Constabulary  158–9 Home Office  160–2, 173, 205–6, 210 hostile perceptions of victims  162–3 identification/referral of victims  160–3, 204, 215 immigration officials  163 imprisonment  151 impunity  214–15 Independent Anti-Slavery Commissioner (IASC)  163, 206–7, 348 individualised assessments  155 institutional commitment  204–7 intelligence sharing  155 interception of communications  154 intermediaries  176 internal trafficking  150–2, 155 interpreters  139–40 investigations  129, 153–9 Joint Investigation Teams (JITs)  155–7, 205, 346, 348 Judicial College  206 labour exploitation  124–5, 147–8, 150, 152 Law Society  206 legal aid  163, 178 material assistance  166, 173 means elements  152–3 media partnerships  205 medical treatment  148, 166, 173–4 Memorandum of Understanding (MoU) between CPS, National Police Chiefs’ Council, NCA and HMRC  154 men and boys  148

418  Index minimalist approach  148 Modern Slavery (Victim Support) Bill  180 Modern Slavery Human Trafficking Unit (NCA)  160 monitoring and evaluation  204 National Crime Agency (NCA)  154, 160–2, 176, 204 National Rapporteurs  206–7 National Referral Mechanism (NRM)  14, 20, 150, 159–60, 162, 178 national/regional agenda  348 NGOs  204, 206–7 non-punishment provisions  174, 190–204 organ removal  152 PACE and codes  154 Palermo Trafficking Protocol  151, 157 police  157–9, 162–3, 206 positive obligations  157 prevention and risk orders  211–13, 215 private life, unnecessary questioning concerning victim’s  155 procedural barriers  147 Project AIDANT  204 Protected Persons Service (NCA)  176 protected questioning  175–6 protection  151 Prüm Decisions  156 psychological assistance  148, 166, 173–4 public opinion  205 purpose elements  152 reasonable grounds decisions  160–1, 174, 177–8 recovery and reflection period  161, 163 referrals  160–3, 204, 215 regulation  346 resources  157, 207 Roma  147 Schengen Second Generation Information Services  156 secondary victimisation  155 sentencing  151, 155 aggravating factors  240–4 mitigating factors  240–2, 244 proportionality  241 Sentencing Guidelines  238–44 sexual exploitation  147, 150, 155–6 slavery  152 source countries  7, 150, 205 special measures for witnesses  175–7 specialist victim support services  162–3 standards  151, 206

state practice  215 statistics  150 structural conditions  353–4 supply chains  206, 213–15 surveillance  154 Trafficking People for Exploitation Regulations 2013  155 Trafficking Prevention Orders (TPOs)  211–13, 215 Trafficking Risk Orders (TROs)  212–13, 215 training  204, 205–6, 211 translation and interpretation  173 transnational trafficking  152, 155 transparency in supply chains  213–15 trust  163 use of force  152 Visas and Immigration (UKVI) (Home Office)  204 witness anonymity orders  297–9 witness protection programmes  348 United States Belize, victims from  10 borders, securitisation of  47 bullying  277, 345 California Transparency in Supply Chains Act 2010  213 capacity building  273 constitutional rights  295–6 Convention on the Rights of the Child 1989 (CRC)  81 denial of problems  267, 277 exceptionalism  3, 81, 277, 345 GRETA  345 Guyana  277–8 hegemony  3 Jamaica  14, 15 labelling  267–8 labour exploitation  10 Mexico, safety of returned of children to  81 national/regional agenda  267–8 neo-imperialism  277 political factors  346 Puerto Rico  4 recognition of trafficking  2–3 SIDSs  345 stakeholder collaboration  277 supply chains  213 Trafficking in Persons Reports (DoS)  3, 277, 345, 351 witness anonymity orders  295–6 women and girls  15

Index  419 Universal Declaration of Human Rights (UDHR)  69 US Virgin Islands (USVI)  5, 21 use or threats of force and violence CEDAW  82–4 child exploitation  222 criminal injuries compensation  182 culture  32 European Union  109 human rights  68–9, 77 investigations  262 labour exploitation  100 means element  152, 219, 222 non-punishment provisions  313 Palermo Trafficking Protocol  3 police officers, threatening, assaulting or obstructing  222 stigma  284 witness anonymity  301 witness protection schemes  319 women, violence against  32, 54, 78, 82–4, 87–8, 99, 102, 325, 331–2 van Dyke, Ruth  156–7 Venezuela  6, 16–17, 21, 25–6 victim-centred approach  132–6 child exploitation  133 employment tribunals  180 European Union  132–4 forfeiture/confiscation  254 immunity  133–4 non-punishment provisions  133–6, 190, 319 primacy of victims’ human rights  312 protective measures  133 support and assistance  323 witness protection schemes  136 victims see also identification/referral of victims; ‘real’ victims; secondary victimisation; support and assistance definition of victim  33, 132, 248–9, 349 denial of victimhood  30–1 European Convention on Human Rights  127–46 European Union  136–46 iconic victim, notion of  63–4 investigations  128–31 participation in court proceedings  136–7, 138, 307–8, 325–7 primacy of victims’ human rights  311–12 privacy and confidentiality  137–8, 141–2

private life, unnecessary questioning concerning victim’s  155 Standing of Victims Directive  112–13 UN Voluntary Trust for Victims of Trafficking  352 urgent measures  128 victimisation  32, 85, 89, 92 Vietnam  109 violence see use or threats of force and violence visual contact with traffickers in court, avoidance of  137, 155 wages  179–81, 256 compensation  253 low wages  7, 87–8, 150 national minimum wage  180–1 seizure  7, 183 unpaid wages  179, 256 Weitzer, Ronald  34 welfare benefits, trafficking for  120 Wheaton, Elizabeth  30 witness anonymity orders  294–305 common law  295–9 credibility  296, 299–300 cross-examination  295–8 fair trial, right to a  295–301, 303–5 in camera hearings  297 intimidation  295, 297–8, 301 organised criminal groups  295 reprisals  300–1 sole or decisive evidence  298, 300 standard of proof  304 voice modulation  175 witness protection programmes  319–21, 346, 348 families, intimidation of  321 harassment  319, 321 identity, change of  136, 176, 319, 321 intimidation  319, 321 public confidence  320–1 relocation  319, 321 reprisals  319–20 security  321 special measures directions  321 standard of living  320 victim-centred approach  136 witnesses see cross-examination; special measures for vulnerable witnesses; witness anonymity orders; witness protection programmes Wolken, Cynthia  34, 36, 102

420  Index women and girls see also feminism CEDAW  81–5, 218, 351 deportation  89 discrimination  64 domestic servitude  19 European Union  109 hegemonic assumptions  63–4 human rights  67, 89 ICERD  76 International Day against Sexual Exploitation and Human Trafficking of Women and Children  270 pregnant women, trafficking of  120 prosecutions  100 sexual exploitation  10–21, 24–6, 147, 270 single mothers  18

Special Rapporteur on Violence against Women, its Causes and Consequences  87–8 traffickers, as  8–9, 12, 16–17, 110 UN Transnational Organized Crime Convention 2000  51 victims, as  8–9, 11, 12, 16–17, 21 violence  32, 54, 78, 82–4, 87–8, 99, 102, 325, 331–2 workforce, participation in  29–30 work permits  310, 337, 349 worthy victims see ‘real’ victims xenophobia and related intolerance  76 Yazidi women, kidnapping of  2