Human trafficking prosecution instructions set out by Lord Advocate

Individuals arrested without a bank card or keys on them should serve as a tell-tale sign of potential trafficking, instructions drafted by Scotland’s top law officer have warned.

A “strong presumption against prosecution” should exist when it comes to offences committed by victims of human trafficking and exploitation, the Lord Advocate is to tell prosecutors. 

Immigration status, the absence of an employment history within Scotland or elsewhere as well having no means of accessing money at the time of arrest are among factors that should be considered when looking at whether an accused person is a victim of human trafficking or exploitation.

A poor standard of accommodation as well as evidence an individual has been prevented from leaving or does not have a key for any of the locks also merit further investigation, Frank Mulholland QC has stated.

The instructions, which are being consulted on as the Human Trafficking and Exploitation (Scotland) Bill goes through Holyrood, put in place a “strong presumption” against prosecution of a child aged 17 or under if the child is a “credible victim” of human trafficking or exploitation.

Adults considered credible victims are also unlikely to face prosecution subject to two further tests: that they have been “compelled” to carry out the offence and that this is “directly attributable” to their status as a victim of human trafficking or exploitation.

However, serious offending behaviour, such as where an accused has committed a sexual offence or been involved in violence or the use of weapons, could see this presumption “rebutted” in line with what is deemed to be in the public interest, according to the instructions.  

“Where a case has already been marked and commenced and information comes to light which suggests that an accused person may be a victim of human trafficking it is important that steps are taken to adjourn on going proceedings for a suitable period until investigations can be completed,” the instructions read. “This applies to all cases both pre and post-conviction.”

The European Anti-Trafficking Coordinator, Myria Vassiliadou, and the UK Anti-Slavery Commissioner, Kevin Hyland, are being consulted on the draft instructions over the next few weeks.

The UKBA, the Home Office, the Scottish Human Rights Commission and the Glasgow-based Trafficking Awareness Raising Alliance (TARA) are among those who are also being asked for views.