Duty to Notify
It’s important that a survivor understands that where there have been indicators of trafficking and they have been in contact with a public authority, there is a “duty to notify” the Home Office about those indicators, even if the survivor does not want to go into the NRM.
From 1 November 2015, specified public authorities are required to notify the Home Office about any potential victims of modern slavery they encounter in England and Wales. This is a data collection exercise intended to improve the identification of victims and law enforcement response and build up a more comprehensive picture of the nature and scale of modern slavery in the UK. This report is made through the online referral portal used for NRM referrals but if the potential victim does not want to be referred to the NRM it would just be a Duty to Notify exercise carried out through the online process.
When a survivor signs the NRM form, they should be giving ‘informed consent’ to ask for a CG decision to be made and for support to be provided while they go through the NRM process. ATLEU is aware that meetings with First Responders can be rushed and often informed consent is not given, even if the NRM form is signed. A full explanation of what constitutes “informed consent” can be found at page 44-5 of the Slavery and Trafficking Survivor Care Standards. However, we’ve listed below what should happen if informed consent is given in the NRM process:
- Ensure the survivor has capacity to understand
- Explain why an organisation or individual is concerned about them
- Provide adequate information about NRM process
- Give an explanation of support available to them and to understand what accepting this support would mean
- Explain the benefits and risks of entering the NRM, including considering other options
- Give an explanation that consent is issue specific, and that it can be withdrawn;
Manage expectations and be clear on the limits of support
- Explain how data is used and the privacy notice
- Give the survivor time to consider options and ask questions; and
- Ensure that the victim has understood and agreed.
The police can help investigate whether a criminal offence has been committed against a victim. There is no obligation on victims to cooperate with this process. It will not hurt their case as a victim of modern slavery or stop them getting support or the right to stay here if they do not want to get involved.
NRM referral form and the police
The current NRM referral form for adults says that the police will be given a copy to help the government with counting incidents of modern slavery but they may not pursue a case unless the individual engages with the police directly. If someone does not understand what all this means they should ask questions with an interpreter before signing the form. They can change their minds later if they do not want to pursue a case.
The form asks if the individual will agree to being contacted by the police about their modern slavery experiences and be kept up to date on action taken. If someone does not understand what all this means they should ask questions with an interpreter before signing the form. They also might want to speak to the police just to find out more after the referral is made. They can change their minds later if they do not want to pursue a case.
Automatic police referral
If a victim is given a positive reasonable ground decision, their case will automatically be referred by the Home Office to decide if the case is strong enough to consider a police investigation.
They can refer the details onto another department in the Home Office, which includes seconded police officers who can then refer to the local police force.
If the victim does not know what has happened with any police investigation they should ask the Home Office for an update.
If they are sure they do not want any police involvement they should tell the Home Office as soon as they know this.
Victims can always go to the police themselves at any time to ask them to investigate a crime against them.
It is important to remember that less serious crimes have time limits between when they happened and when they can go to court – so if a victim might be interested in an investigation they should get more information as soon as possible to make an informed decision.
If a victim is helping in a police investigation, the police can ask the Home Office for a residence permit so the victim can stay while the criminal case is ongoing. Victims and legal representatives can also ask for a residence permit if the victim is helping the police although this has not yet been put in the Home Office guidance.
Victim’s involvement in criminal proceedings against the trafficker
Many victims are unclear on what happens during a criminal case against their trafficker. If the victim has not been updated, then the best person to raise queries with, in the first instance, is the investigating officer.
It is important to remember that victims in the English Criminal legal system do not have their own lawyer, or the right to be represented during proceedings. They are a ‘witness for the crown’ so may be asked to provide a statement and indeed attend court to give evidence, but their involvement does not go beyond this. The decision as to whether to investigate and what charges, if any, are to be brought against the trafficker, ultimately lies with the police and the Crown Prosecution Service.
The Code of Practice for Victims of Crime (the Victim’s Code) sets out the obligations of both the Police and the CPS to victims of crime.
Where a decision is made not to investigate, the police should provide a written explanation of the decision. A victim can seek a review within three months of receiving the written decision not to charge or refer to the CPS for charging guidance.
There are a number of possible outcomes to the review. These are:
- The original decision is upheld
- The original decision is overturned and the suspect is required to go to court
- The original decision is overturned and the suspect is dealt with out of court e.g. a police caution
- The original decision is overturned and the case is referred to the CPS for them to make a decision
- The officer recommends that further enquiries are completed before they make a decision
- The original decision is overturned but it is not possible to take the case to court for another reason, for example it has been too long since the offence happened.
The failure to investigate criminal offences of trafficking and modern slavery could give rise to a breach of Article 4 of the European Convention on Human Right. Timelimits for bringing a claim will not be extended simply because the victim was asserting a right to review, so it is wise to seek legal advice as well as trigger a right of review.
Compensation in criminal proceedings
Following a successful criminal trial, the judge has the power to order compensation.
Modern Slavery Reparation Orders
Sections 130-134 of the Powers of Criminal Courts (Sentencing) Act 2000 makes provision for compensation orders to be made against convicted persons in favour of their victim(s).
A specific reparation order for victims of slavery and trafficking was brought in to enable courts to order a person convicted of a modern slavery offence to pay reparation to their victim or victims, in respect of the exploitation and degradation they have suffered. A reparation order will only be made where:
- There has been a successful prosecution
- Assets have been identified
- The court is satisfied that the defendant has the means to pay.
The Modern Slavery Act provides that the court must consider making a slavery and trafficking reparation order in any case where it has power to make one, even where an application is not made. If the court does not make an order, it must give reasons for not doing so.
While there is technically no need for independent representations on the making of a reparation order, it is worth asking the investigating officer if the traffickers’ assets have been identified or confiscated, and asking that the victim is kept informed on any proceeds of crime proceedings.
A reparation order is only made in the course of criminal proceedings and is dependent on prosecution being successful and assets being identified. There are other routes to compensation that do not require successful criminal prosecution.