Chris Marshall: Trafficked people legislation has pitfalls

There have been calls for the criminalisation of the purchase of sex to be included in the bill. Picture: PA
There have been calls for the criminalisation of the purchase of sex to be included in the bill. Picture: PA
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AMID the concerns over the problem of human trafficking lies the issue of how the law deals with victims forced into a life of crime.

The complexities of legislating in this area were highlighted yesterday by Lord Advocate Frank Mulholland who told MSPs on the Scottish Parliament’s justice committee about a case in which trafficked individuals had been convicted of shoplifting.

Only after conviction had been secured did it emerge they were victims of trafficking, with that information received not from those concerned, but from intelligence gathered by the authorities. Proceedings are now under way to have the convictions quashed, but the case illustrates the very complex bonds which often develop between trafficker and victim, and which can be based on language and societal ties.

According to the Crown Office, criminal proceedings have been dropped against six individuals in the past year when it emerged they had been trafficked.

As the Lord Advocate himself told MSPs, often the victim does not even realise they have been a victim of human trafficking.

Under the proposed Human Trafficking and Exploitation (Scotland) Bill, a single offence of human trafficking would be created.

However, bodies including the Faculty of Advocates have warned that without a statutory defence – which exists in the English legislation – trafficking victims will not be protected from prosecution.

Both Mr Mulholland and Police Scotland disagree with that analysis, however.

Prosecutors in Scotland will rely on instructions from the Lord Advocate about when not to pursue those forced into criminality as a result of their trafficked status.

The Lord Advocate said a statutory defence would put the “onus” on victims to prove their innocence and would lead to “more injustices”.

Statutory defence or no statutory defence, yesterday’s discussion at the committee showed how difficult it will be to get workable legislation which begins to address the issue.

There have been calls for the criminalisation of the purchase of sex to be included in the bill.

However, Amnesty International was among those yesterday warning about conflating the complex issues of trafficking and prostitution.

A final version of the bill may yet contain provisions to outlaw the purchase of sex.

However, it seems there is enough to be getting on with in finalising a piece of legislation which can successfully tackle those engaged in the slavery of our times.

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