Human trafficking and exploitation are human rights abuses which have profound impacts on victims. Scotland’s prosecutors are keenly aware that they must be open to the possibility that exploited children could be among the complainers, witnesses and accused they deal with daily.
All prosecutors in the Crown Office and Procurator Fiscal Service have mandatory training to help them identify victims and prosecute perpetrators in human trafficking cases. We are thoroughly committed to protecting children who have suffered exploitation and the Lord Advocate has published instructions which set a strong presumption against prosecution of these victims.
We are thoroughly committed to protecting children who have suffered exploitation.The Solicitor General Ruth Charteris QC
However, I know from my own professional experience that verifying a child is a victim of trafficking is a time-consuming process. This starts when the Procurator Fiscal receives a report from the police alleging a criminal offence, and raising a suspicion that the accused person is a victim of trafficking. At that stage there is insufficient information to establish that the accused has, in fact, been exploited.
Prosecutors must initiate further investigations whilst ensuring, if it transpires that the accused is not a victim of trafficking, that prosecution remains viable and justice can still be sought for the reported crime.
In the UK the formal means of determining whether a person is a victim of trafficking or exploitation is done by the Home Office through the National Referral Mechanism (NRM).
This is a two-stage process. The Home Office is sometimes able to issue an initial determination very quickly, which allows for immediate action to be taken to protect those provisionally identified as victims. COPFS works closely with Migrant Help and the Trafficking Awareness Raising Alliance to ensure that support is available to potential victims when they are released from custody in these cases.
However, for cases to be completely discontinued, the NRM must also make a final determination in light of all the evidence. In 2021, the average time from referral to final determination was 448 days. This means that the prosecutor must often, to prevent the case from timebarring, commence proceedings against people who have provisionally been identified as victims.
We appreciate this has potential to be traumatising and, conscious of our obligations under the UN Convention on the Rights of the Child, the Lord Advocate has been in contact with the Home Office to request that final determinations come more quickly. No trial should be commenced until the final determination is received.
In the meantime, prosecutors in Scotland will continue to do all they can to identify potential victims of trafficking, prosecute traffickers and apply the strong presumption against prosecution of confirmed victims detailed in the Lord Advocate’s instructions.