The litigation process can be daunting enough for those with good English and knowledge of UK society and laws. This problem is far worse for the majority of victims of trafficking.
Most of those who fall victim to traffickers have an inherent vulnerability; often this is caused or leads to what we would refer to as social exclusion. They come from countries, or communities within countries, where there is little faith in the authorities, including the courts.
In effect, advisors may have to explain the very concept of the rule of law to some victims. It may be necessary to explain for instance that the trafficker will not be able to bribe the judge and that – despite the grave problems with access to justice – there is a strong principle of equality before the law.
A court or tribunal may often be the first time that a victim of trafficking has been treated on an anything like an equal basis to their trafficker.
Preparing a case
It is well recognised that the more times a victim has to recount traumatic experiences, in general the more damaging it is. Thus, there is an inevitable tension for lawyers between avoiding re-traumatising a victim and ensuring that the best evidence is obtained to maximise the victim’s chances of success.
Most trafficking cases involve very robust disputes of fact. Much will turn on the victim’s credibility. Accordingly, is it crucial to the prospects of success that the victim’s witness statement is as ‘fire proof’ as possible. This involves checking every aspect and asking all the difficult questions before the client gets to court. This has to be done as sensitively and patiently as possible to avoid re-traumatising.
It may be worth considering if a friend or other supporter can attend the appointment with the victim. However, it may not be helpful for them to be present during the actual evidence-taking; advisors should consider whether their presence might inhibit the client.
Many clients will be evaluated by a medical expert instructed by their own advisors; and sometimes also by one instructed by the traffickers. Although some experts will deal with physical injury, the great majority will consider mental injuries. Advisors should be aware of the potential for re-traumatising during medical assessments.
However, skilful and sensitive medical experts can change the course of a case and the assessment of the victim’s wider needs. It is not unusual for a victim to share aspects of their trauma with a medical expert that they have not mentioned to anyone else, including their advisors or their family. Advisors and supporters need to be prepared for this possible result from a medical appointment.
The victim will need to be supported with the logistics of a visit to the medical expert (who may or may not be nearby) and warned that it may be an emotionally charged experience. A victim should be advised that if they are to be seen by the traffickers’ medical expert of the duties on medical experts. You should also pay careful attention to the professional credentials of any medical expert instructed by the traffickers.
The great majority of victims will need to be in receipt of legal aid in order to proceed with the litigation. Victims may need considerable support in getting and keeping legal aid throughout their case. Changes in personal income or expenditure (which may merely include sending a different amount home to their family each month) will need to be explained and evidenced to the Legal Aid Agency.
Advisors need to ensure that they warn clients in good time of the Legal Aid Agency’s requirements and take the time to explain why the documents are required. It may be necessary to source documents frequently from abroad from family members who may have little or no access to the internet. If there are relevant family members abroad, it is highly advisable to establish reliable means of communication as soon as possible.
Victims may rely on support providers to translate lawyers’ letters. It is crucial that you translate any letter line by line, rather than providing a summary. This is even more important if you are translating a witness statement.
Advisors should consider whether a victim is in need of counselling if this has not already been provided. This is something that may come out of the medical appointment. Nevertheless, it is advisable to consider very carefully if a client can deal with potentially traumatic counselling at the same time as litigation.
Litigation often involves long and, to the uninitiated, bemusing delays followed by frantic periods of activity. It is advisable to keep in touch with clients during the lengthy delays and to explain the reasons for these. This is particularly important if there are potential immigration consequences, for instance the victim is reliant on a residence permit based on the litigation to remain in the UK.
Fears for family abroad
Victims may be concerned about traffickers targeting their family overseas. Advisors need to be aware that it is very difficult for them to judge the chances of traffickers actually targeting family members. It may be helpful to investigate with the victim the physical whereabouts of the traffickers and their associates and the victim’s family, in particular, who knows whose address.
If there are attempts to interfere with the victim’s family, these should be reported to the court as soon as possible and consideration given to amending their claim to include a claim for victimisation. In these circumstances, encouraging family members to obtain evidence such as phone recordings is invaluable.
Some victims may have no experience of travelling in the UK alone and find it extremely difficult due to trauma or being unable to read. Victims may need to be escorted to and from advisors’ offices. It may be necessary to explain the need to save for the travel fares for meetings with the advisor. Nevertheless, advisors should also be wary of inadvertently discouraging victims from developing independence and recovering their own agency.
Understanding the legal process
Victims may struggle with the concept of setting a claim. The negotiating or indeed ‘horse trading’ in settlement negotiations can seem very strange. The concept of without prejudice, off the record negotiations needs to be explained clearly.
If victims have more than one lawyer, advisors should ensure that victims understand each of their roles. The victim might have a separate lawyer for their immigration case as well as a compensation case and possibly others.
Victims may require particular support in any on-going criminal case. Even the more sophisticated victims may have an unrealistic expectation of the criminal process. In the UK, a victim in a criminal trial does not have their own lawyer; they are merely a witness for the prosecution and will have minimal, if any, contact with the prosecuting team.
It may be necessary to provide considerable support to a victim of trafficking who is going through the criminal process and may not understand why they are not receiving the same support that they receive in their civil case.
Going to the hearing
Going to court can be a frightening and confusing experience for the victim. Advisors need to strike a balance between telling the victim what to expect but not intimidating the victim out of attending court.
Advisors need to consider well in advance the logistics of a court hearing. How will the victim get to court? It may be necessary to arrange escorts, first to ensure that the victim knows where they are going and secondly to ensure that they are not followed by the trafficker.
Whether or not they are living in a safe house, most victims will not want their trafficker to know their address. Hearings are sometimes located near where the trafficking experience occurred. It may be necessary to obtain accommodation if there is a multi-day hearing away from where the victim lives now.
Victims will need to ensure that they are able to attend court perhaps for over a week. If victims are working they may be in (or perceive themselves to be in) a weak position and they may be wary of asking for time off. It is necessary to check that the victim has asked for time off. If a victim is simply unable to go to a hearing they need to be able to tell their advisor and alternatives, for instance actioning a settlement immediately.
Special arrangements for vulnerable clients
Advisors need to consider well in advance of any hearing, what adjustments may be necessary to the normal court process. Most advisors will be aware of the difficulties for the victim in seeing the traffickers again but there may be other issues as well.
The courts and tribunals have powers to enact special measures such as screens or in evidence by video link in order to protect vulnerable witnesses. This should be discussed with victims at an early stage and locked into the hearing process by means of directions or case management orders as early as possible. Anonymity orders may also be necessary and should be obtained as early as possible.
Courts and tribunals are under a duty under the Equality Act 2010 to make reasonable adjustments for a disabled person (for instance a person with post-traumatic stress disorder or with learning difficulties) and also under the Humans Rights Act.
There is no limit to the adjustments which can include regular breaks, the judge taking over cross-examination, changes to the level of questioning, permitting a witness having a supporter or key worker sitting next to them, and rearrangement of the hearing room.
It is often helpful for the victim to have friends or supporters with them during the court process. There is usually sufficient space in most hearing rooms to accommodate friends and supporters.
On the other hand, the client needs to be aware that some traffickers may bring a group of ‘supporters’ of their own. So it may be necessary to take care with where the victim sits when they are not giving evidence to avoid intimidation. Any concerns with the conduct of observers should be referred to the judge.
Even if the victim cannot bring any friends, it is usually advisable to have at least one person of the same sex who will accompany them at all times in the hearing centre. This includes going to the toilet, the café, etc. Victims need to know (if this is what they want) that will never need to come across the trafficker alone.
If possible, advisors should also ensure that they have their own interpreter. While courts and tribunals provide interpreters for the hearing, these are rarely available outside of the hearing room. Apart from the practical difficulties of running a court hearing without being able to take instructions from the client, the fact that a victim cannot communicate with their legal team renders the entire process far more alienating. Having a client-focussed interpreter can also be useful to check on the quality of court interpreters, in case there are difficulties with interpreting, eg the court has not booked the correct language.
Some clients may have fears about the traffickers using witchcraft or Juju in the courtroom. The issue is not the physical reality of witchcraft or Juju, but the psychological impact on the victim. Juju is where traffickers corrupt West Africa traditional belief systems to control their victims, who believe they will be punished or killed by the spirits of the deceased for disobedience. Some victims have been put through specific Juju ceremonies before being trafficked to this country, others may simply have a cultural belief which the traffickers have exploited.