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), and there is no specific guidance, policy, procedure or training for prison or healthcare staff in prisons as to how they should assist in identifying and supporting victims in prison.
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 SCA/CPS/the Court and if the victim is already in the NRM, by sending evidence to the SCA in support of a CG decision in the NRM.
Criminal legal aid
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 SCA/CPS/the Court and if the victim is already in the NRM, by sending evidence to the SCA in support of a Conclusive Grounds decision in the NRM.
Civil legal aid
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  EWHC 418 (Admin) found that it was unlawful that there is no detained duty advice scheme for prisoners detained under immigration powers, therefore it is expected that some form of access to legal aid provision will be set up for those detained under immigration powers in prisons.
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 VCC 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 (see similar issues in the release/bail from detention section (above)). 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).
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.
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.
Upcoming legal changes on prison support in prisons
As a result of the settlement of a judicial review claim by consent brought by ATLEU, the Secretary of State for Justice (SSJ) has confirmed that by 31 July 2022 he will begin developing operational guidance relating to victims and potential victims of modern slavery for staff working in prisons. The government has also confirmed that it will aim to publish that guidance by 31 October 2022.
- Crucially, the government has confirmed that the guidance will include the following:
Key workers and all other prison staff should be informed through the NOMIS systems when a victim or potential victim of modern slavery receives an initial positive ‘Reasonable Grounds’ (RG) decision, or the final ‘Conclusive Grounds’ (CG) decision while going through the National Referral Mechanism (NRM).
- Key workers will be required to assess the individual needs of a victim or potential victim so that they are properly supported whilst in prison.
- A provision requiring the prison staff to liaise with partner agencies, including the Salvation Army, who operate the government contract which provides community support for victims of modern slavery. This should be done prior to release from prison in order to support resettlement and protect the victim from re-trafficking.
- A provision in relation to bail applications, including (if appropriate) communicating with the Salvation Army who can provide safe house accommodation to victims.
- Finally, the government has confirmed that it will consider whether staff in UK prisons should be designated as ‘First Responders’ which would enable staff to identify potential victims of modern slavery when indicators are first apparent, which would assist potential victims in entering into the NRM process sooner. Currently there are no staff in UK prisons who are ‘First Responders’.
As explained above, the Operational Guidance has not yet been published, however the commitments of the Secretary of State for Justice as a result of ATLEU’s judicial review claim will assist the legal case of any victim in prison detained under criminal powers who is not receiving the support they are entitled to. 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.
Exclusions from support on public order grounds
The only instance when a victim in a prison would not be entitled to Article 12 ECAT support is if they are excluded on ‘public order grounds’ (ECAT Article 13(3)). As the law stands at present, there is no definition of public order grounds in domestic law that has come into force, and we are unaware of any case where an individual has been excluded from ECAT Article 12 support on public order grounds. If an individual receives a decision on this now, public law legal advice should be sought to challenge that decision. If there has been no indication of ‘public order’ exclusion from support, it should be assumed that the victim is entitled to Article 12 ECAT support.
Upcoming legal changes
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.
This is an important legal change which is now in domestic primary legislation, HOWEVER IT IS NOT CURRENTLY IN FORCE. At the time of writing, there is no published date as to when this specific provision of NBA 2022 will come into force, or when any guidance on it will be published.
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 it applies to any person who has been convicted of a prison sentence of over 12 months (NBA 2022, s63(3)(f)), in addition to individuals who have committed serious offences, 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.
NBA 2022 is silent on whether the individual will still have their case considered and a CG decision granted, however if there is no protection from removal, the competent authority could make a quick CG decision, or make a CG decision after removal. Therefore, there may be a breach of the individuals’ rights under Article 4 ECHR because of the risk to the individual if they are removed or re-trafficked due to the lack of support.
When s63 NBA comes into force, if an individual is excluded from their reflection and recovery rights due to a ‘public order’ or ‘bad faith’ exclusion under s63 NBA 2022, legal advice should be sought because it is likely that this could be challenged, depending on any guidance that is also published in relation to this clause.