Human trafficking legislation should include statutory defence, says peer

Proposed human trafficking laws for Scotland risk being undermined by the absence of a statutory defence for victims who commit crimes, the architect of Northern Ireland’s legislation has warned

The Human Trafficking and Exploitation (Scotland) Bill in its current form would require the country’s top prosecutor to prepare and publish guidelines on the prosecution of victims for offences resulting from their exploitation.

A statutory defence in the bill would lead to “more injustices” than issuing instructions to prosecutors and police as it would place the “onus” on victims to prove their innocence, the Lord Advocate Frank Mulholland told MSPs on the Justice Committee earlier this week.

However, the Faculty of Advocates has claimed without a statutory defence in the bill, victims of human trafficking could be less well protected in Scotland than elsewhere in the UK.

Westminster’s Modern Slavery Bill, which received Royal Assent this week, includes a statutory defence and so too does legislation set to come into force in Northern Ireland in two months’ time.

“I think it [a statutory defence] is necessary and I must say that when we looked at the Scottish bill we were a bit taken aback that in fact it hasn’t been included,” Lord Morrow, who guided the Northern Irish legislation through Stormont, told Holyrood.

The DUP peer, while acknowledging he is not fully versed in Scots law, said its exclusion is a “deficiency” of the bill and urged MSPs to amend the proposed legislation accordingly.

“Guidelines are not legislation so therefore they don’t have the same force or power that a piece of legislation has,” he added.

“I think that this could turn out to be a weakness in the Scottish bill that will have to be addressed. I think now is the time to address it before it finishes its various stages through the Scottish Parliament.

“But if it doesn’t do that, then I think it is something that MSPs will be returning to here in the not too distant future.”

Proceedings have been dropped in the cases of six individuals in the last year after they have been found to be victims of human trafficking, the Crown Office confirmed earlier this week.