Prisons

Victims may be detained in police stations or prisons pending charge, in remand pending trial, serving criminal sentences or detained under immigration powers after they have served a criminal sentence.

Victims in prisons are particularly vulnerable. There are no First Responders in prisons (the Home Office are only present in some prisons some of the time, and in any event would only have contact with foreign nationals).

Victims in prison are likely to have been brought there directly from circumstances of exploitation, into a situation which is not conducive to their recovery and they are likely to be distrustful of authorities. Victims who were arrested in a place of exploitation face the additional risk of being detained in prison with their exploiters.

Victims in prison are entitled to criminal legal aid, and should be assisted with arguing the statutory defence under s45 Modern Slavery Act 2015 in a first instance conviction or in relation to an appeal if appropriate. Legal aid criminal lawyers can also assist by flagging up indicators of trafficking to the IECA/SCA/CPS/the Court and if the victim is already in the NRM, by sending evidence to the SCA/IECA in support of a CG decision in the NRM. 

Victims in prisons are entitled to immigration and public law advice. Immigration lawyers can assist victims in prison with advice on NRM identification, if they have an asylum or protection case which is linked to their trafficking case or if they have a positive Reasonable Grounds decision and also want advice on getting immigration status. A public lawyer can also assist with NRM identification/advice on support where it is linked to a legal matter which is unlawful and can be challenged by judicial review. Public lawyers can assist with a potential judicial review against any public body who may have acted unlawfully, such as the CPS, in their decision to charge.

There is currently no dedicated duty advice line for prisoners to access legal aid in these civil areas of law, the victim has to contact solicitors directly using their contacts or information provided in the prison library. However, the recent case of R (SM) v Bail for Immigration Detainees [2021] EWHC 418 (Admin) found that it was unlawful that there is no detained duty advice scheme for prisoners detained under immigration powers. Prisoners now have access to 30 minutes non means tested immigration advice, however they still face barriers in accessing legal representatives. It is very difficult for a prisoner to know which firms have the relevant expertise to represent them, or to know how to persuade immigration lawyers who are often very busy to take on a case. Ideally a prisoner would be assisted by a support professional to contact potential legal representatives on their behalf. 

Bail 

Where there are indicators of trafficking, a criminal solicitor should also assist with criminal bail at the earliest opportunity. In the case of a victim, bail should be applied for, to a MSVCC safe, secure and appropriate accommodation. Accommodation provided by the local authority may also be safe, secure and appropriate, depending on the circumstances.

Other types of accommodation are likely to be unsuitable and pose a very high re-trafficking risk. If a victim is in prison only detained under immigration powers, bail can be applied for by the victim themselves or by an immigration solicitor (see guidance above).

Support

Our view is that being detained in prison can never constitute appropriate and safe accommodation for a victim because even if sufficient support and safety is provided, the environment itself is not conducive to the recovery of a victim. However, case law in the UK has confirmed that it is possible to provide trafficking recovery support in detained settings (ZV, R (On the Application Of) v Secretary of State for the Home Department [2020] EWHC 3562 (Admin) handed down on 21 December 2020). Nevertheless, that was a case concerning very specific facts of a survivor in a detention centre. Each case must always be considered on a case by case basis; legal representatives and support professionals should always ensure that they advocate for the trafficking recovery support entitlements if they are not provided, or they cannot be catered for in a detained setting.

If the victim remains in prison with a positive Reasonable Grounds decision, and is therefore in the ‘reflection and recovery period’, they are still entitled to support under ECAT Article 12 in prison. It is advisable to get detailed information and evidence about support that is needed and what is being provided in every case. If the victim is not receiving the support they are entitled to, this should be urgently requested and legal advice should be sought to challenge this by way of judicial review.

We are aware that there are significant practical difficulties faced by victims in accessing the support they are entitled to. In practice, it is common that there are no interpreters generally available to speak to prison staff or key worker staff, and healthcare appointments often take place without interpreters.

There is no access to outreach support workers or subsistence support. Victims we have represented have faced difficulties speaking to their lawyers in confidential settings. Victims have reported facing significant barriers in accessing basic healthcare and mental health services. We are aware that victims in prison frequently receive little or no information about the NRM process and/or poor legal advice.

New guidance for prisons on support victims of modern slavery in prisons

Following a judicial review challenge brought by ATLEU, there is now guidance for prison staff on how they should assist in identifying and supporting victims in prison. The guidance covers:

  1. Identification and indicators – how prison staff (including healthcare) would alert a First Responder a facilitate a First Responder’s contact/visit with a potential victim in a prison. 
  2. An overview on the National Referral Mechanism (NRM) and Identifies key points when a prisoner should have their NOMIS record updated relating to indicators of modern slavery or NRM decisions
  3. Instructions on how staff should complete a Modern Slavery Needs Assessment
  4. Instructions on the allocation of key worker or POM (Prison Offender Manager)
  5. Instructions on providing trafficking recovery support.
  6. Instructions on facilitating legal advice, bail (including helping a potential victim arrange potential safe house accommodation through the MSVCC) and the transfer and release of potential victims of modern slavery. It also provides advice on remand prisoners, the s45 criminal defence and advice on young people and age disputes.
  7. Confirms that prisons should consider appointing a single point of contact for modern slavery issues

If an individual has not been identified or supported in a prison, or if the guidance referred to above has not been followed, this can be challenged by way of a public law challenge, which can be linked to representation on other legal issues – such as criminal or immigration.

The points outlined above should be the minimum support that would be expected and should now be strongly argued for.

Therefore, in a case where this support is not being provided, public law advice should be sought so that representations or pre-action or a judicial review claim is brought. If a victim wants to challenge the lack of access to support in prison, please see the section above on civil legal aid in prisons.

Exclusion from support due to “public order” or “bad faith”

The current prison guidance for supporting potential or confirmed victims of modern slavery in prisons provides information and links about a recent change in the law. The guidance does not provide further information to staff about how this could impact how potential or confirmed victims of modern slavery are supported in prisons. In this section, we will explain what the legal change is, and why our view is that it should not impact the support that potential or confirmed victims of modern slavery in prisons are entitled to, even if the disqualification is applied to them.

Section 63(1) of the Nationality and Borders Act 2022 (NBA 2022) provides that the competent authority may deem an individual with a positive reasonable grounds decision as (a) a threat to public order, or (b) has claimed to be a victim of slavery or human trafficking in bad faith. These individuals are not entitled to a ‘reflection and recovery period’ and can be removed from the UK, in addition there is no requirement to grant discretionary leave to remain in the UK.

The meaning of ‘bad faith’ is not defined anywhere in NBA 2022. In terms of the meaning of ‘public order grounds’, although it has not been previously defined in UK domestic law, in NBA 2022 may apply to any person who has been convicted of a prison sentence of over 12 months . NBA 2022 also may apply to individuals who have committed serious offences (listed in Schedule 4 to the Modern Slavery Act 2015), who are deemed a threat to national security or there are reasonable grounds to suspect a person has been involved in terrorism offences.

ATLEU’s view is that this is an overly restrictive definition of ‘public order’ which is not in line with ECAT 13(3). It is also very worrying because a large proportion of victims of modern slavery have criminal sentences of over 12 months, particularly if they suffered criminal exploitation such as ‘county lines’ trafficking, cannabis cultivation or have fraud or illegal entry related convictions. There has already been a legal challenge which forced the government to amend its guidance on NBA 2022, to the effect that the needs to be a re-trafficking assessment carried out before an individual is excluded from protection and support under s63 (1) NBA 2022. It is likely that there will be further legal challenges around the public order/bad faith disqualifications.

Why should survivors in prisons still be entitled to trafficking recovery support even if they are subject to the public order/bad faith disqualification?

Victims in prisons also have rights under Article 26 ECAT, this is the right to not be punished for their involvement in unlawful activities, to the extent that they have been compelled to do so. The Article 4 ECHR protection duty is informed by the non punishment provision in Article 26 ECAT (V.C.L. AND A.N. v. THE UNITED KINGDOM 77587/12 74603/12). For a potential victim to properly exercise their Article 26 ECAT rights, they have to have proper access to support whilst in prison so that they can be in a position to use the first instance criminal defence, or their right to criminal appeal. This would be the case, even if they are excluded under s63(1) NBA 2022.

 

 

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