Graham O’Neill: Is justice penalising the slaves, not the slavery?

ARE trafficking victims suffering miscarriages of justice in Scotland? This week, in the Old Bailey, seven men were sentenced for a total of 95 years. They groomed and subjected seven young girls to horrendous sexual, psychological, and physical abuse, over a prolonged period, committing child sexual exploitation, rape, and sex slavery: as Judge Peter Rook said, they had robbed the girls of their adolescence.

The wheels of justice turned for the survivors, and whilst the severity of the sentences is welcome, we should not be blind to the fact that with these types of crime real justice never stops at court; rather true justice is for the long term, entailing professionals working with survivors and their loved ones towards recovery, as well as striving to prevent such abuses in future.

However, what about when justice goes into reverse, when survivors of modern slavery are criminalised for offences that were a manifestation or a direct result of their trafficked predicament? Surely, this doesn’t happen in Scotland; but, unfortunately, there is mounting evidence that, regardless of whether corroboration stays or goes, we may unconsciously be criminalising slaves and not slavery.

Jenny Marra MSP raised this possibility in the Scottish Parliament in February, as did I through the media, and since then three national reports have expanded the concern, which is that we may well have children and young people in our young offender institutions, prisons, or detention centres today - many of whom of Vietnamese heritage on drugs convictions – who may not deserve to be there.

So, in March, the Equality and Human Rights Commission, in its follow-up report to its authoritative Inquiry into human trafficking in Scotland led by Helena Kennedy, recommended that:

“There would appear to be enough concern and ambiguity to undertake a review of cases where victims of trafficking may well have been prosecuted despite being coerced into illegal activity.”

In May came the evaluation of the pioneering and exemplar Scottish Guardianship Service for unaccompanied asylum seeker children, which revealed:

“Nearly a third … of young people had trafficking indicators associated with domestic servitude, sexual exploitation and cannabis cultivation. Two of those in cannabis cultivation were serving custodial sentences at Polmont Youth Offenders Institute (YOI) when the referral was made.”

Then this month we learned from the first dedicated analysis of the UK’s criminal justice response to human trafficking, published by the Anti-Trafficking Monitoring Group, that in relation to Scotland:

“Most seriously, was information of potential victims of trafficking … being penalised and held in young offenders’ institutions or prisons on remand. … This seems, in particular, to be a problem for Chinese or Vietnamese persons being exploited by organised criminals”.

Now, of course, I cannot say definitively that there is a widespread problem in Scotland of trafficking victims being prosecuted or penalised for offences that but for the control of their traffickers they would never have committed. However, I am highly sceptical of those who venture that it isn’t presently and won’t in the future happen. On the contrary, the evidence mounts that something is just not quite right.

Therefore, to even begin to bottom this one out, our criminal justice institutions must be relentless in raising awareness of the indicators of modern slavery; they must challenge their own preconceptions of victimhood; and they must continue with intelligence profiling, including on hardened criminals may be engaged in trafficking vulnerable youth from south-east Asia into organised cannabis cultivation.

However, the rules of the game have changed, such that as a matter of obligation, not being relentless is no longer an option. For a decade it has been European, not Scots, legislation that has fundamentally driven progress in anti-trafficking.

This presumption has already been felt in English courts and it may be but a matter of time before an appeal is laid in a Scottish court by a trafficking victim citing their conviction as unsafe or sentence as disproportionate.

So, to ensure compliance with the EU and ECHR, I strongly recommend that either the Crown Office and Procurator Fiscal Service or the Scottish Criminal Cases Review Commission should now seriously consider initiating a review of all convictions and sentences involving those in groups known to be vulnerable to human trafficking in Scotland andwhich involve offences known to be associated with forced criminality. Only this may resolve any past and help prevent any future miscarriages of justice.