Archives For Trafficking

Razor wire at Tinsley House

mlp-logoIn the past eighteen months Migrant Legal Project (MLP) has represented a number of Vietnamese minors on remand or serving Detention and Training Orders at Young Offender Institutes. All had been picked up for criminal offences relating to cannabis cultivation. Forced labour for cannabis cultivation is the most common form of child trafficking in the UK and Vietnam is the single largest source country for child victims of trafficking.

We have put together a short survey to assess how widespread the problem of re-trafficking, re-prosecution and removal/deportation of trafficked children is and to explore how legal practitioners currently respond. We are hugely grateful for all responses:

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handcuffsFinally, there has been a breakthrough in cases where victims of trafficking find themselves prosecuted and convicted here in the UK for engaging in the very activity into which the victim was forced. It may seem strange that it is the victims of trafficking that have ended up with criminal convictions rather than the traffickers, but that is precisely the situation so far contrived by mindless prosecutors, poorly informed defence lawyers and the courts.

In a case in which the victims are referred to only by their initials, L, HVN, THN and T v R [2013] EWCA Crim 991, with the Children’s Commissioner for England and the Equality and Human Rights Commission intervening, the Court of Appeal has quashed the convictions of four such trafficking victims. This has been a particular problem for young Vietnamese trafficked to work in cannabis factories and then get prosecuted for drug production. Three of the four cases were examples of this.

THN had pleaded guilty to to producing a Class B controlled drug, cannabis. He had been 17 at the time of arrest and it was clear he had been trafficked to the UK to work in a cannabis factory. His lawyers initially pursued this defence but seem to have dropped it, and he pleaded guilty. He was later in custody referred by chance to the UK Border Agency and accepted as a victim of trafficking. Tragically, by the time of the hearing in the Court of Appeal he had disappeared and it was thought he had been re-trafficked – forced back into the arms of the traffickers because we prosecuted rather than protected him.

T was eventually accepted by social services to have been a child at the time of arrest, also for cannabis cultivation. He has originally been ‘looked after’ by Kent County Council, but was one of the many such children in care that Kent manages to lose every year. The issue of whether T had been trafficked was basically ignored at his trial but the UK Border Agency eventually accepted that he was a victim of trafficking. You can see an interview with him by Channel 4 News below. The extent to which he was let down by his own lawyers and the criminal justice system is just staggering.

HVN was first brought to the attention of police when spotted by members of the public being moved by men into a house with his hands bound. He was accepted to be 16.  He was prosecuted, he pleaded guilty and despite the prosecution suggesting that the matter was not serious a judge disagreed and transferred the case to the Crown court. HVN was accepted to be a victim of trafficking by the UK Border Agency but neither the prosecution nor the defence were informed. HVN pleaded guilty.

L was in her mid thirties and the UK Border Agency eventually accepted that she had been trafficked to the UK for sexual exploitation. However, throughout her prosecution for possession of a false identity document, a charge to which she pleaded guilty, no-one thought her account of being trafficked was relevant. It was only when she was in custody that she was referred by a support group (not her lawyers) to the Poppy Project and then to the UK Border Agency.

The Court gives guidance for future treatment of potential trafficking victims. Essentially, the Court finds that where a person has been a victim of trafficking that is a consideration which will diminish or even extinguish culpability. A victim of trafficking may have been compelled to commit crimes and if such a person is prosecuted then the court should find such a prosecution an abuse of process.

The following paragraphs of Lord Judge’s judgment for the Court are particularly relevant:

“… It has not, however, and could not have been argued that if and when victims of trafficking participate or become involved in criminal activities, a trafficked individual should be given some kind of immunity from prosecution, just because he or she was or has been trafficked, nor for that reason alone, that a substantive defence to a criminal charge is available to a victim of trafficking. What, however, is clearly established, and numerous different papers, reports and decided cases have demonstrated, is that when there is evidence that victims of trafficking have been involved in criminal activities, the investigation and the decision whether there should be a prosecution, and, if so, any subsequent proceedings require to be approached with the greatest sensitivity. The reasoning is not always spelled out, and perhaps we should do so now. The criminality, or putting it another way, the culpability, of any victim of trafficking may be significantly diminished, and in some cases effectively extinguished, not merely because of age (always a relevant factor in the case of a child defendant) but because no realistic alternative was available to the exploited victim but to comply with the dominant force of another individual, or group of individuals.” (para 13)

“ … [What] is required in the context of the prosecutorial decision to proceed is a level of protection from prosecution or punishment for trafficked victims who have been compelled to commit criminal offences. These arrangements should follow the “basic principles” of our legal system. In this jurisdiction that protection is provided by the exercise by the “abuse of process” jurisdiction.” (para 14)

“… In any case, where it is necessary to do so, whether issues of trafficking or other questions arise, the court reviews the decision to prosecute through the exercise of the jurisdiction to stay. The court protects the rights of a victim of trafficking by overseeing the decision of the prosecutor and refusing to countenance any prosecution which fails to acknowledge and address the victim’s subservient situation, and the international obligations to which the United Kingdom is a party. The role of the court replicates its role in relation to agents provocateurs. It stands between the prosecution and the victim of trafficking where the crimes are committed as an aspect of the victim’s exploitation.” (para 16)

“…. In the context of an abuse of process argument on behalf of an alleged victim of trafficking, the court will reach its own decision on the basis of the material advanced in support and against the continuation of the prosecution. Where a court considers issues relevant to age, trafficking and exploitation, the prosecution will be stayed if the court disagrees with the decision to prosecute. The fears that the exercise of the jurisdiction to stay will be inadequate are groundless.” (para 17)

“As we have already explained the distinct question for decision once it is found that the defendant is a victim of trafficking is the extent to which the offences of which he is charged, or of which he has been found guilty are integral to or consequent on the exploitation of which he was the victim. We cannot be prescriptive. In some cases the facts will indeed show that he was under levels of compulsion which mean that in reality culpability was extinguished. If so when such cases are prosecuted, an abuse of process submission is likely to succeed. That is the test we have applied in these appeals. In other cases, more likely in the case of a defendant who is no longer a child, culpability may be diminished but nevertheless be significant. For these individuals prosecution may well be appropriate, with due allowance to be made in the sentencing decision for their diminished culpability. In yet other cases, the fact that the defendant was a victim of trafficking will provide no more than a colourable excuse for criminality which is unconnected to and does not arise from their victimisation. In such cases an abuse of process submission would fail.” (para 33)

Fantastic result and well done to a large contingent from Garden Court, Henry Blaxland QC, Stephen Knafler QC, Nadine Finch, Michelle Brewer and Shu Shin Luh, and to Parosha Chandran at 1 Pump Court.

Anyone looking for legal resources or advice on trafficking law and policy should head over to the ATLeP website.

BroomFor the second time in as many months, the Employment Appeal Tribunal (EAT) has dismissed a direct discrimination claim brought by a migrant domestic worker against her employer. In this case and an earlier case, the Claimants were Nigerian nationals who had come to the UK on domestic worker visas and both were treated abominably by their employers; they were made to work for very long hours (over 80 hours per week), paid a pittance (£50 per month in one case), had very limited rest periods and were subject to threats and abuse by their employers (passports confiscated, threats of violence when they complained etc). In each case the Employment Tribunal accepted the Claimants’ accounts of the treatment they had experienced.

The Claimants argued that the fact they were treated in this way was because of their status as migrant workers which was inextricably linked to their race/nationality. There was no actual comparator with which to compare their treatment, but it was argued that a hypothetical British worker would not have been treated in this way and that this was therefore unlawful direct discrimination. Although the Claimants succeeded with claims brought under other heads of action (e.g. unfair dismissal, unlawful deduction from wages), they stood to win probably much greater damages from any successful discrimination claim.

However the Employment Appeal Tribunal dismissed their discrimination claims saying that whilst the Claimants’ immigration status and race formed part of the background to the appalling treatment by their employers, the “features which enabled exploitation are not indissociably linked with migrant status”. Instead the EAT found that it was the Claimants’ lowly economic and social status (both came from poor villages in Nigeria) which made them vulnerable to exploitation at the hands of their employers; their precarious immigration status was merely one aspect of this vulnerability. To succeed in their claims, they would have had to show that the discrimination occurred because of their race or immigration status.

The EAT has granted the Claimants’ permission to appeal to the Court of Appeal citing the fact that two Employment Tribunals reached different conclusions on the race discrimination claim on very similar facts and recognising that the issue needs consideration by a higher court. As it stands however, the decision is a blow for the civil rights of domestic workers whose situation in the UK had already become extremely precarious following changes to the Immigration Rules last year which restrict their ability to change employers and limit their visas to 6 months. Early indications suggest that these changes have, as predicted, led to much greater abuse in an already vulnerable sector of the labour market. In its current form, the domestic worker visa is little more than a license to import slaves.

The employment rights of domestic workers without any status is even worse and was made worse still by a decision of the Court of Appeal last year. A discrimination claim brought by a trafficked Nigerian domestic worker against her employer was struck out on the grounds that to allow it would be to condone her own “illegal” conduct which was found to be equal to that of her “employers”. Illegal workers were already barred from bringing any claim which arose from their contract (i.e. most employment claims) due to the doctrine of illegality but this decision effectively bars them from one of the few remedies that was available to them- discrimination claims.  The decision is now being appealed to the Supreme Court.

It is to be hoped that the higher courts reverse these conservative rulings which leave domestic workers without many of the protections enjoyed by ordinary workers. It is ironic that such rulings together with the Coalition government’s policy on domestic workers come at a time when the International Labour Organisation (ILO) is trying to persuade governments to ratify its Domestic Workers Convention 2011 which:

“… seeks to close to this gap [lack of employment rights for domestic workers compared to other groups]. Given the highly feminized nature of the sector, the Convention is widely seen as having great potential for achieving greater gender equality in the in the world of work. Providing domestic workers with stronger rights and recognizing them as workers would help to combat gender-based discrimination, and also discrimination on the grounds of race, national extraction or caste that often manifests itself in the sector

Such laudable and high minded goals seem a very long way from the current reality faced by migrant domestic workers in the UK.

Recently the Law Society Gazette ran an article by Yewa Holiday, a barrister and a case review manager at the Criminal Cases Review Commission (CCRC), which highlighted the plight of asylum seekers and refugees wrongly convicted after being advised to plead guilty to offences relating to their entry to the UK, as well as attempted exit from the UK.

Representatives in deportation cases will be familiar with the effect of conviction on these vulnerable individuals. Where a sentence is over 12 months then they would be subject to automatic deportation.  However, it is clear that in certain cases the conviction and deportation could have been avoided had lawyers representing them in their criminal trials, recognised and/or advised them on valid defences available to them.

The CCRC is seeking to review these possible miscarriages of justice and have had the convictions of four cases referred to them quashed in the last twelve months.  As the word spreads about the CCRC’s work, there have been several referrals.  They set out the common features of the cases they are dealing with, as follows:

  • entered the UK as asylum seekers/refugees;
  • were prosecuted for offences such as not having a passport;
  • were advised to plead guilty;
  • were not advised of potential defences; and
  • were sentenced to terms of imprisonment.

One of the cases they dealt with concerned a Somali refugee who arrived in the UK without a passport and was then convicted for failing to produce a passport contrary to section 2 of the Immigration and Asylum (Treatment of Claimants) Act 2004 (the 2004 Act). But there was no recognition of the fact that there has not been a passport issuing authority in Somalia since 1991, a fact which would have entitled him to rely on the defence of ‘reasonable excuse’ in the 2004 Act.

Another case involved two Cameroonians arrested trying to board a flight to Canada from Heathrow Airport. They pleaded guilty to the possession of false passports and attempting to obtain air services by deception and were sentenced to eight months’ imprisonment. They were recognised as refugees in 2007.  Under section 31 of the Immigration and Asylum Act 1999 (the 1999 Act), they would have had a defence based on article 31 of the Refugee Convention to a limited range of offences, including the possession of false passports.  Section 31 of the 1999 Act was enacted in response to the case of R v Uxbridge Magistrates Court and another ex parte Adimi [1999] EWHC Admin 765, which  held that the prosecution of asylum seekers for offences arising from the use of false documents or deception was unlawful where the prosecution had occurred without regard to the protection from the imposition of penalties contained in article 31 of the Refugee Convention.

On the other hand, the second offence they were charged with, attempting to obtain air services by deception, is not an offence found listed in section 31 of the 1999 Act. The Commission therefore argued in the alternative that the addition of this charge was an abuse of process, relying on the House of Lords decision in R v Asfaw [2008] UKHL 31.  The Law Society Gazette article provides greater detail in relation these defences.

The CCRC are also considering cases of those who were victims of human trafficking and have been convicted of an offence.  The features in cases involving these vulnerable individuals are that they are often compelled by their circumstances to commit an offence and/or forced to commit an offence. In both situations a defence is available to them, one of “duress” or “nexus of compulsion”. If the individual was not made aware of this defence, simply being advised instead to plead guilty, the CCRC are willing to review cases even if an individual has been removed, deported or left the UK voluntarily. Applications can be made from the country of residence.

In a case recently dealt with by the CCRC a seventeen year old who had been trafficked into the UK for prostitution pleaded guilty after she managed to escape her traffickers but was then arrested trying to leave the UK with a stolen British passport.  The CCRC, having considered her circumstances, referred the case up to the Crown Court, as there had been a failure to consider the fact that she acted under “nexus of compulsion” which is distinct from the defence of “duress”.  As a result her guilty plea was set aside by the Crown Court.

The introduction of automatic deportation meant that there was an increase seen in deportation orders on the basis of convictions of offences, as described above, where sentences were of twelve months or more.  Representatives should therefore be alert to the possibility of their clients being able to apply to the CCRC in relation to these convictions. If quashed this potentially renders the deportation order invalid.

Having spoken to Justin Hawkins from the CCRC, he confirmed that they were working with a number of agencies and organisations trying to ensure that those wrongly convicted were aware of their remedy to the CCRC, who would independently review their cases.  Mr. Hawkins confirmed that the CCRC were encouraging applications from vulnerable individuals in the groups identified above who think that they may be victims of these kinds of miscarriage of justice.  The procedure for applying is simple and the application forms can be found here or alternatively the CCRC can be contacted directly for further information.

The case of R (on the application of Y) v Secretary of State for the Home Department [2012] EWHC 1075 (Admin) may change the way in which the Home Office approach ‘historic’ trafficking cases. Although the case is

Y left China, was smuggled into Sweden and then stayed in an unknown country.  She was raped about twice a month by three Snakeheads.  She was then brought to the UK made to do housework and raped. Others were released when they paid their ‘debt’ but Y could not; she had lied to the Snakeheads.  Finally, an arrangement was made with a man called M who paid some money for her release.  She was not sold to M and had freedom to come and go.  She moved in with M and they are very happy together.

No exploitation

The Home Office argued that there was no commercial exploitation, no attempt to sell Y or to attempt to re-traffick her when she could not pay the debt.  In other words, there were no actions “for the purpose of exploitation.”  The judge rejected this as irrational:

…she was detained (“harboured” in the terms of the Convention definition) for a further six months during which she was forced to submit to sex and to work in the house without pay. The smuggling process had by then ended and the only reasonable conclusion is that the Snakeheads decided to use her by way of punishment or payment in kind. That means that she was being kept for the purpose of exploitation, and that is trafficking. The decision to the contrary cannot be supported.

The Home Office had also failed to address the period before entry to the UK and this failure also rendered the decision unlawful.

Still a victim of trafficking?

The decision letter also argued that as Y had had time for “reflection and recovery” she was no longer a victim of trafficking.  The Home Office’s supplementary guidance issued in 2009 looks at when a person “is” a victim.  Paragraph 9 states that,

… where a person’s circumstances do not require protection or assistance at the time of that assessment, the person is unlikely to be a victim…

Paragraph 10 considers whether:

the person was under the influence … of traffickers … [when] they came to your attention; whether the person requires a period to recover from the influence of traffickers; if the person has suffered physical or emotional wounds from the trafficking experience and requires time to recover.

Paragraph 18 concludes that it is possible to decide that someone “has been a victim …, but at the time their case is considered [but] that their specific circumstances do not [now] engage the Convention…”

The judge decided that this approach was wrong.   Paragraph 173 of the Convention’s Explanatory Notes, in relation to Article 13 states as follows:

One of the purposes of this period is to allow victims to recover and escape the influence of traffickers. A victim’s recovery implies, for example, healing of the wounds and recovery from any physical assault.  It also implies that victims have recovered a minimum of psychological stability.

Paragraph 183, in relation to Article 14 states:

for a victim to be granted a residence permit … the victim’s personal circumstances must be such that it would be unreasonable to compel them to leave the national territory …

Was Y was still a victim of trafficking at the time of decision?  Does the Convention bar the conclusion that victim status may cease or that it prevents a consideration of whether that status subsists at the Reasonable Grounds stage?  The judge concluded that this consideration of current circumstances and need for protection and assistance is intended to apply at the Reasonable Grounds, as well as at the Conclusive Decision stage. Article 4(e) defines a victim as someone who is subject to trafficking.  Article 10(2) refers to a person who has been a victim of trafficking to ensure that she receives the assistance provided for in Article 12 to assist victims in their physical, psychological and social recovery. He goes on to comment that the Home Office cannot know what particular measures are required to assist the victim without considering the extent of her physical, psychological or social recovery.   The recovery and reflection period required by Article 13 is triggered when there are Reasonable Grounds to believe that the person is a victim.  The differences in tense are explicable by different consequences: after the recovery and reflection period, the assistance and protection is not absolute or never-ending, but is limited to the need to assist victims in their physical, psychological and social recovery and must be tailored to their personal situation.

The Convention, far from prohibiting consideration of current circumstances at the Reasonable Grounds stage when those circumstances appear to have significantly changed (i.e. trafficking has become ‘historic’), requires consideration to take place in order to comply with the duties under Articles 12 and 14.

This matches with what we know about trauma: a person survives it but never returns to what they were.

In an interesting recent ruling, (Zarkasi v Anindita & Anor [2012] UKEAT 0400_11_1801) the Employment Appeals Tribunal (EAT) considered an appeal from a trafficked domestic worker whose claim for unfair dismissal against her employer had been dismissed by the Employment Tribunal (ET). The ET had held that the contract of employment was illegal from the outset because the claimant had been working with false documents which, together with her employer, she had knowingly and fraudulently obtained in Indonesia prior to coming to the UK.  Therefore they concluded that she could not succeed in any claim where the contract was effectively prohibited by statute.

Before the EAT, the claimant argued that the ET should have allowed her a remedy against her employer despite the contract’s illegality because she had been recognised as a victim of trafficking by U
KBA and was, on balance, more sinned against than sinner. Under Article 15 of the Convention on Action against Trafficking in Human Beings, ratified by the UK in 2009, a state is obliged to provide in its domestic law for the right of victims to compensation against perpetrators. The EAT refused to accept that an international instrument which has not been incorporated into UK domestic law meant that she should be able to succeed in a claim based on an illegal contract particularly as, on the findings of the ET, she had entered it willingly and without compulsion. The fact that she had been recognised as a victim of trafficking by UKBA was not considered relevant because the ET had found that the claimant was not a victim of trafficking based on the evidence before it. The EAT stated that the claimant could pursue other non-contractual remedies against the perpetrator (false imprisonment, trespass, assault) implying that these remedies satisfied the requirement under Article 15 of the Trafficking Convention.

However, the EAT gave some hope to victims of trafficking by accepting that Article 4 of the European Convention for the Protection of Human Rights (the prohibition of slavery and forced labour) might enable a claimant to succeed against an employer in the Employment Tribunal notwithstanding the fact that the contract under which he or she was working was illegal. The EAT hinted that such a claim might succeed where the victim had been coerced or trafficked into the contract. Therefore on the right facts, a human right which is incorporated into the domestic law might enable a claimant to overcome the strictness of the doctrine of illegality and sue his trafficker in the Employment Tribunal.

Today’s report by the Children’s Commissioner, Landing in Dover, exposes gross double standards by UK Border Agency officials. The report reveals the existence of a so called ‘gentleman’s agreement’ operating at the south coast ports whereby an unaccompanied child who did not make an immediate asylum claim would be returned to France within 24 hours of arrival in the UK with no welfare or other assessment and no referral to social services.

The agreement was in place from at least 1995 through to November 2011, when the Children’s Commissioner discovered the existence of the agreement. At this point the practice was halted immediately by the new Chief Executive of UKBA, the inappropriately named Rob Whiteman.

The practice of returning unaccompanied children with no welfare assessment is so obviously in breach of the duty to safeguard and promote the welfare of children imposed by section 55 of the Borders, Citizenship and Immigration Act 2009 that it beggars belief that UKBA officials continued with the practice. The practice was also obviously in breach of all the UKBA guidance to its staff about trafficking, which encourages staff to be proactive and alert in seeking to identify potential victims of trafficking.

Not only that, but the investigation found that the UK Border Agency is still detaining children despite Government commitments to the contrary:

The report finds that children are in fact not currently being held for the ‘shortest appropriate period of time’. Rather they are detained whilst significant interviews that will inevitably bear on their prospects of being granted permission to stay in the UK are conducted. From the cases we have considered in preparation of this report, we find that the local authority is only informed of the child’s arrival several hours after initial detention and well into the interviewing process. The report concludes that interviewing children in depth immediately on arrival is unnecessary and not in their best interests and should be reconsidered.

Even where children said that they were tired or ill UKBA staff would apparently carry on regardless and press on with further interviews without referring the child to social services. The report identifies the following failings:

  • Children are generally not fit for interview due to illness, hunger, tiredness, fear or a combination of these factors.
  • The length of time between being placed into detention and release into care is too long. This is due to both the numbers of interviews routinely undertaken and the waiting times between the interviews.
  • Telephone interpreting is generally used at the interviews and is not, in our view, ‘fit for purpose’.
  • Children are in practice unable to instruct a legal representative or in most cases have an independent Responsible Adult present during interviews and yet the interviews can be relied upon by UKBA in the asylum decision.
  • Even in the absence of a legal representative or independent adult, children are required to sign the screening interview record, confirm its contents are correct and confirm that they have understood legal warnings and instructions from the immigration officer.

This is all pretty horrifying, and it should inform judges and lawyers when they consider whether weight should be attached to information from screening interviews of unaccompanied children.

The good intentions of Ministers, senior managers and the people who write the UKBA policy documents are all very well, but what matters is what happens on the ground. Culture change is always hard but the UK Border Agency has a long, long way go before it can realistically assert that its staff take children’s welfare seriously.

Ever since the mysterious disappearance of the IAA Gender Guidelines from the old IAA website, there has been an absence of good guidance to immigration judges on gender issues in an immigration context. The Equal Treatment Benchbook has a very good chapter on women and equality generally but it does not deal specifically with the unusual issues that arise in, for example, forced marriage, trafficking, Refugee Convention or human rights cases in the immigration tribunal. I’ve also got no idea how well thumbed this is by most immigration judges. The material in the old IAA Gender Guidelines was considered by many to include some useful, specific and well thought through reference points and ideas.

Asylum Aid very helpfully host a copy of the IAA Gender Guidelines if you would like to take a look.

One particular issue has always caused problems for women and trauma victims seeking asylum: the assertion, based on that most dangerous, pernicious of human qualities, common sense, that a victim of rape or other trauma would tell the Home Office all about it as soon as possible. UKBA officials and Presenting Officers make this assertion time after time after time in order to reject a claim or undermine evidence. In reality, it is nonsense. Rape and trauma victims are usually ashamed of what happened to them and do not rush to tell a complete stranger asking intimate questions in a grotty room with bolted down seats in Croydon straight after they arrive in the UK.

Some progress has been made in this regard in criminal cases. It is now accepted that the trial judge can give a direction to a jury specifically referring to the shame induced by rape and the delay this causes in reporting the crime. I thought it might be helpful to flag the terms of these directions up on the blog.

One such example can be found in the case of Miller v R [2010] EWCA Crim 1578 (09 July 2010):

“You are entitled to consider why these matters did not come to light sooner. The defence say that it is because they are not true. They say that the allegations are entirely fabricated, untrue and they say that had the allegations been true you would have expected a complaint to be made earlier…

Experience shows that people react differently to the trauma of a serious sexual assault where it has happened. There is no one classic response when it happens and I speak not only of children. Some may be compliant and submissive, some may disassociate themselves from what is happening; they may blank it out, they may freeze, others may protest and resist, they may scream and shout. Some may complain to the first person they see while others may feel shame and shock and not complain for some time. A late complaint does not necessarily mean it is a false complaint and that is a matter for you to consider in the context of all the evidence in this case.”

Another example comes up in the Court of Appeal case of R v JD [2008] EWCA Crim 2557 (24 October 2008), in which the following direction to a jury regarding delay in making complaint was upheld on appeal:

“Very often, women who are raped within relationships feel ashamed of what’s happened. They themselves feel the shame. Although they have nothing to be ashamed about, because they are the victim, that’s the reaction. They feel ashamed of what’s happened. They are often too traumatised or embarrassed to tell anyone what’s going on, and a very serious aspect of the offence in those circumstances is that a woman feels trapped. She is, after all, in her own home, very often simply too ashamed and embarrassed to tell anyone that the person that she has brought into her home to share her life, be with her children, is now raping her. She won’t tell her neighbours, friends… even very close friends…children, still less the police, because of those factors which bring to bear.

This is where you use your commonsense and your experience of life in determining that question, because it’s frequently said when women don’t complain about rape: “well it’s not true, because if it had been true they would have been straight down to the police station hammering on the door, saying “I’ve been raped”. But you may think it doesn’t work like that…”

Lord Justice Latham, giving the judgment of the Court, goes on at paragraph 11:

“We think that cases where a defendant raises the issue of delay as undermining the credibility of a complainant fall into a similar category save clearly that the need for comment is in this instance to ensure fairness to the complainant. But any comment must be uncontroversial. It is no part of the judge’s task to put before the jury Dr Mason’s learning without her having been called as a witness. However, the fact that the trauma of rape can cause feelings of shame and guilt which might inhibit a woman from making a complaint about rape is sufficiently well known to justify a comment to that effect.”

The problem for an advocate is that an immigration judge sits as judge and jury and may neglect to ‘self direct’. It is difficult to bring this sort of material to the attention of a judge without appearing to condescend and give a lecture, but it may be of use either in a skeleton argument or on appeal.

In a clear signal of a return to Victorian values of the undeserving poor and salvation through faith, the Home Office is terminating its funding for the fabulous Poppy Project for trafficked women and instead awarding a contract to the Salvation Army, the evangelical Christian missionaries known mainly for their ability to blow trumpets at Christmas. At the same time, it seems the nature of the contract and the level of support for victims of trafficking is being reduced to a bare bones service without facilities for proper counselling.

The Guardian report this news is drawn from goes on to describe details of just one Poppy Project case which would never have come to light without the fantastic service provided by the project. Substantial compensation was awarded by the Home Office.

A quick visit to the Sally Army website is rather revealing. ‘Why does the Salvation Army do what it does?’ you may ask yourself. Helpfully, the answer is provided:

Mission statement

Called to be disciples of Jesus Christ, The Salvation Army United Kingdom Territory with the Republic of Ireland exists to save souls, grow saints, and serve suffering humanity.

Vision statement

As disciples of Jesus Christ, we will be a Spirit-filled, radical growing movement with a burning desire to lead people into a saving knowledge of Jesus Christ, actively serve the community, and fight for social justice.

Presumably the whole purpose of bidding for the contract was therefore to lead trafficking victims into a saving knowledge of Jesus Christ. Major Anne Read is in charge of trafficking at the Salvation Army and is quoted as saying:

“Working with and on behalf of people who are trafficked has been part of The Salvation Army’s mission since it began but today the most vulnerable people in our world continue to be exploited and drawn into what is, effectively, modern-day slavery!  The Salvation Army wants not only to reduce human trafficking and to restore abused women but also to respond practically to the needs. It is a huge task but in God’s name, we are determined to succeed.”

Meanwhile, the Ministry of Justice has put out a press release:

“The immigration minister has said that the government is taking positive steps to ensure it remains a world leader in the fight against human trafficking.”

This is not exactly the first announcement from the Government which leaves women significantly worse off. Almost unbelievably, The Guardian quotes a spokesperson for the Ministry of Justice as saying that part of the reason for awarding the contract to the Sally Army was because they were offering to broaden the service to include male victims of trafficking. There undoubtedly are male victims of trafficking — mainly forced or indentured labour — and they get very little attention, but that is not a reason to divert and dilute the funding that was previously provided for female victims of sexual trafficking and exploitation, award it to Christian missionaries and thereby destroy the skill base built up by the Poppy Project over the last few years.

I have no doubt that trafficking victims will suffer as a consequence.