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), 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, and into a situation which is not conducive to their recovery and they are unlikely to remain 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. 

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 RG decision and also want assistance with 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. 

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 contacts on 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, 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. 

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 VCC safe, secure and appropriate accommodation. 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).

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.

If the victim remains in prison with a positive RG decision, and therefore in the “reflection and recovery period”, they are still entitled to support under ECAT Article 12 in the IRC. 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/legal advice should be sought to challenge this by way of judicial review. 

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)). The meaning of “public order grounds” has not been defined in UK domestic law, and also ATLEU is not aware of any cases where a victim has been excluded from Article 12 ECAT support on this basis. 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. If there has been a “public order” exclusion, legal advice should be sought because it is likely that this could be challenged as it is a definition that is not yet defined in UK domestic law. 

We are aware that there are significant practical difficulties faced by victims in accessing the support they are entitled to. There are no interpreters available to speak to prison staff, and healthcare appointments often take place without interpreters. There appears to be no access to outreach support workers or subsistence support. victims we have represented have faced difficulties speaking to the 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 or poor legal advice. 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

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